legal FYI

Joint Custody In Kentucky - What Is It?

This article cannot begin to answer some of the questions that you may have regarding joint custody. It is to encourage you to ask any questions you may have at anytime.
"Joint Custody" is a term that comes up very often while parties are negotiating and discussing child custody and visitation. There are several types of joint custody in Kentucky and it is a term which is frequently misunderstood. This article attempts to explain the basic meanings, effects, benefits and disadvantages of joint custody.


1.  Q.  What is "Joint Custody"?
     A. Joint custody is not defined by the Kentucky Revised Statutes. The statutes provide only that a court can order joint custody using the “best interest of the child” standard. Below we have attempted to give a description of the most common two ways that joint custody can be defined:
         (1) Joint custody with one parent designated as the primary residential parent. This term means that the parents will share in making all major decisions that affect the child. These decisions might include whether or not the child will go to private or public school, undergo elective surgery, or in what religious faith the child will be raised. It does not mean that the parents will jointly make day-to-day decisions. Neither does it mean that the child will spend the same amount of time with each parent. 
         (2) Joint custody with an equal division of parenting time. Sometimes referred to as "fifty-fifty custody," means that each parent will have an equal or nearly equal amount of time with the child. This can be accomplished in many ways. For example, the child can alternate weeks with each parent or spend three and a half days of each week with each one.  
2.  Q.  What are the effects of joint legal custody?
     A. The effects of a joint custody arrangement differ just about as much as the term “joint custody”.  In order for joint custody to work both parents will have to be able to discuss the child's needs more frequently than with a sole custody arrangement. 
      Joint custody means that both parents will need to cooperate with each other and reach agreements where the child is concerned. If you and your spouse have been able in the past to set aside your other differences and discuss and agree on matters concerning the child, joint legal custody may be ideal. This is not always easy to do. If your disagreements include issues concerning the child, the arguments and disagreements may abate once everything is finalized. Good parents are usually at their worst during the divorce. The courts clearly prefer joint custody.  Sometimes the court will order that the parties engage a parenting coordinator who will help them work through problems and will make a decision or recommendation if the parents can’t work together.  The use of a parenting coordinator has become more frequent as it helps parties resolve their differences and learn to work with each other without having to go back to court. 
3.  Q.  Are there any benefits to joint custody with equal parenting time?
     A. Joint custody with a fifty-fifty time split is becoming more and more prevalent in Kentucky.  More parents are seeking this type of custody.  With an equal parenting time arrangement this means that both parents maintain a "real home" for the child, including a room, toys, and clothes. This helps reinforce the idea that families are forever.  It used to be prevalent that parties had joint custody with one parent being the primary residential parent.  In this arrangement, the non-residential parent's every-other-weekend visits may not allow a real parent- child relationship to form or continue. Both parent and child are trying to do everything in one weekend. A joint custody arrangement with a fifty-fifty equal parenting time can allow both parents to spend real parental time with the child and thus develop a better relationship.
4.  Q.  Are there disadvantages of joint custody with a fifty-fifty equal parenting time split?
     A. Some children are clearly more emotionally attached to one parent and a 50/50 division of time is not in their best interest. It  has become apparent that joint custody with a fifty-fifty parenting time split has some drawbacks. Frequently the child is shuttled back and forth between parents and has no real sense of a "home." Consistency is the major obstacle and is often difficult to achieve in such an arrangement. For instance:  the rules may be different at each parent's home -- bedtime is 8:30 at Mom's but 10:00 at Dad's. Schoolwork sometimes suffers. For example, homework assigned while the child is staying at one home, but due to be turned in when he is at the other, can be inadvertently overlooked. Friends are different at each home and harder to keep up with; the babysitter may be different each time, and so on. Children who have difficulty adapting to change may find joint custody with equal parenting time to chaotic. Generally, the parents must work very hard at such an arrangement. Joint custody with an equal division of parenting time seldom reduces hostility between the parties and may even increase it. It requires two parents who maintain a commitment over time to put the needs of the child first and are able to create a conflict- free zone for their child. Parents who choose joint physical custody must be willing to have open and frequent communication with each other. Joint custody will equal division of parenting time requires two parents committed to be co-parents.
5.  Q.  When is joint custody with equal parenting time not advisable?
     A. Joint custody with equal parenting time is not advisable where there is a history of domestic violence, drug or alcohol abuse, child abuse or neglect by a parent, or where a parent suffers from a debilitating mental illness. Joint custody with equal parenting time is not appropriate where there is a history indicating that the parents are unable to agree on child rearing.  This type of custody arrangement requires joint decision making and a tremendous amount of cooperation between the parents.  Additionally, this type of custody arrangement may not be a good choice where the child involved becomes overanxious or confused when asked to cope with numerous things or has a temperament which makes it difficult for him or her to adapt easily to change.
6.  Q.  What effect does joint custody with equal parenting time have on child support?
     A. Kentucky has no approved formula that is used when parents enjoy equal parenting time, but a lower amount of child support is usually paid by the higher income earning parent.    "Joint custody with equal parenting time" will result in a different amount of child support than in a joint custody with a primary residential parent situation.   This is based on the theory that the parent must provide substantial support for the child during the extended visits and therefore the other parent is saved that expense, and the fact that there are duplicated expenses in maintaining two households for the child.
7.  Q.  What happens if a resolution can’t be reached regarding custody?
     A.  Should the parties not be able to reach an amicable solution regarding custody the court will make the decision and may require the parties and the children to have a custody evaluation performed by a psychologist. 
8.  Q. Should my spouse not want to have joint custody with equal parenting time, what are thing I can do to make this happen?
     A. Below are some tips that may help you to obtain your goal of equal parenting time:
     If you want joint custody with equal parenting time, you must have a workable schedule to propose.
     You must also be able to show that you have the time, the room and the ability to care for the child, and that such an arrangement will be the least disruptive to the child. 
     Beyond that, for joint custody with equal parenting time, you should be able to show to the judge that you have always been substantially involved with the child's upbringing and have previously helped care for and make decisions concerning the child.
     You should be able to demonstrate that you and the other parent have usually been cooperative and communicative as to the child and that you have the ability to continue this relationship during your separation and divorce.
Finally, all of your evidence should indicate to the judge that a joint custody arrangement would be in the best interest of the child.
9.  Q.  My spouse wants joint custody with equal parenting time -- How can I keep this from happening?
     A. If this decision is left to a judge, you must show the judge the opposite of the above. It might be difficult for your spouse to convince a court that joint custody with equal parenting time is appropriate when you can show that your spouse has rarely agreed with you on issues concerning the child, has had very little to do with caring for and raising of your child, or if during your separation the child has been made a part of your disagreements and arguments. The court will need to know that you and your spouse are not good candidates for joint custody with equal parenting time and that joint custody with equal parenting time is not in the child's best interest.
10.  Q.  What are the pro's and con's of joint custody with equal parenting time?
      A. As mentioned earlier, joint custody with equal parenting time gives both parents a greater opportunity to interact with the child and be a continuing part of the child's life. Many times a child can continue to maintain a relationship with both parents that may not otherwise be possible.
Under joint custody with equal parenting time the parents also have greater contact with each other than they would with another custody arrangement. If the parties are bitter and uncooperative people this probably means that the arguments, disagreements and anger will continue to be an issue. This in turn will create tension that is communicated to the child, and all the benefits of joint custody with equal parenting time could well be negated by the parents' behavior.
11.  Q.  How do I know if joint custody with equal parenting time will be right for me -- and our child?
      A. A joint custody with equal parenting time can be a good solution or a bad solution. Whether or not such an arrangement is right for you, your spouse and your child, depends entirely on the relationship that all of you have, and this relationship should be carefully considered when you make your decisions concerning custody. You should consider your child's age, temperament and coping style, the current quality and nature of the parent-child relationships, and the practicality of such an arrangement. A successful joint custody arrangement requires a great deal of maturity, cooperation and a commitment to making the child's needs a priority. A very important measure of whether or not joint custody is right for you are whether or not you and the other parent can be good "co- parents." Co-parenting requires mutual commitments:
     Both parents will continue to be fully involved in making major decisions about their children's health, education, welfare and religion. 
     Parents will not place the children between them and their conflicts. Parents must be business-like partners. As business partners, the parents are not in love and may (and often do) have areas of disagreement. When there are disagreements regarding the children, the parents are cordial and work out their differences in a fair and equitable manner.
    Both parents view themselves as having a family. Neither parent refers to the other as a "visitor." Each has a family home and each is entitled to make decisions and have a life style which the children will be a part of when in that parent's home. Neither parent may interfere with the other's lifestyle or home life; each parent must support the other's relationship to the children.
    Children are not allowed to "play" one parent off of the other. Decisions are made by the parents, then handed down to the children. The parents must guide the children, not the other way around.
    Parents must communicate with one another. This means regular discussions of children's activities, needs, progress, and conditions. There must be a sharing of significant events in the lives of the children. 
    Parents must concede that they are jointly responsible for the rearing of the children and will work together to equitably share children's expenses, living arrangements and care. Both must invest time to teachers' conferences, doctors' appointments, religious activities, etc. 
    Parents must agree that, even though they have differences, they will value and respect each other as a co-parent, and that this means that the children need to be involved with both parents. 
    Court must be seen only as the final option. All other means of settling problems must be tried first.
If some or all of the requirements of co-parenting are lacking from your relationship with the other parent, joint custody with equal parenting time could be a very poor solution.
Joint custody will equal parenting time can have an excellent effect on both the child and the parents -- if the parents are able to work together on issues concerning the child. However, it can have disastrous results for the child if the parents cannot or will not co-parent. The relationship you have with your spouse concerning your child will be the largest factor affecting the outcome of any joint custody arrangement you might choose.

January, 2007

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Diana L. Skaggs, is the President of the Kentucky Chapter of The American Academy of Matrimonial Lawyers. Practicing divorce law for more than twenty years, Diana was recognized by the Louisville Bar Association in 2006 as the family law practitioner of the year, for being  on the forefront of new developments in the practice of family law, for her innovation in the field as well as her continued dedication to families, children and public service. To learn more about Kentucky Divorce Law and Diana L. Skaggs + Associates  visit http://www.LouisvilleDivorce.com/legalfyi/.
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