Brockman v. Craig

Brockman v. Craig, 205 S.W.3d 244 (Ky. App. 2006)

Issues and Holdings:

1) Whether a parent, who spends more time with child than the other parent, can claim the status of primary residential parent for purposes of determining the standard to apply to a motion to relocate. The Court held no, the parent cannot claim such status.
2) What standard is to be applied to motions to relocate, if the motion is filed less than two years since the original custody agreement. The Court held that the parent wanting to relocate must show that the present environment endangered the child’s physical and emotional well-being.
The Circuit Court ordered that the motion for modification of custody did not meet the requirements for the court to hold a hearing under KRS 403.340, and denied the motion. Brockman appealed.
COMMENT: The Court of Appeals is almost begging the Kentucky legislature to address relocation. We have promoted consideration of the AAML's model relocation act here.


The marriage of Brockman and Craig was dissolved in April 2004. At that time, both parties agreed to share joint custody of their child, and neither party was designated as the primary residential parent. Brockman had the child three days during the week, and Craig had the child for two days. The parties alternated time with the child on the weekends. Holidays and vacation time were shared equally as well.
Less than a year later, in March of 2005, Brockman wanted to move 45 minutes away to Indiana, where she could make more money and live with her new husband. Craig filed a motion to prevent Brockman from removing the child from Carroll County. Brockman, in turn, filed a motion to relocate and modify the parenting schedule. She filed an affidavit in which she asserted that relocating was in the best interests of the child and proposed that Craig be given more parenting time in the summer to make up for lost time during the school week when the child resided with her.
Craig then argued that the motion to relocate was essentially a motion to modify custody, since it sought to change the joint custody arrangement. He objected to Brockman’s request for a hearing as she did not meet her burden of proof to modify custody within two years of the custody decree.
Brockman argued that she was the primary residential custodian. Therefore, a custody modification was not needed, just a change in the visitation schedule using best interests of the child standard.
A Domestic Relations Commissioner reviewed the case and found that the parties purposely did not designate a primary residential custodian at the time of their original custody agreement. Since no party was designated the primary residential custodian, there was no right to relocate, as in Fenwick. In order to relocate, Brockman had to meet the requirements of the statute on modification of custody. Based on these findings, the Commissioner recommended that Craig’s motion to prevent relocation be granted.
The parties filed exceptions to the Commissioner’s report, and the Commissioner filed a second report. In the subsequent report, the Commissioner again noted that neither parent was designated the primary residential custodian and that the fact that the mother spent more hours with the child during the week did not designate her as the primary residential custodian. The Commissioner also maintained that the motion to relocate must be treated as a motion to modify custody. As such, the Commissioner applied KRS 403.340 and found that Brockman did not meet her burden in showing serious endangerment to the child. Instead, her affidavit alleged that the move was in the best interests of the child. The Commissioner denied Brockman a hearing and recommended that the motion to modify be denied.