Guardianship is a term that is commonly used, but generally misunderstood.

Guardianship and custody are NOT the same from a legal perspective. Parents have a superior right to custody, and have a higher level of rights than what guardianship provides.

Guardianship may be used if both parents are killed in an accident or otherwise predecease their child(ren). It is possible for a third party to have guardianship of a minor child (under 18 years of age) even if one or both of the child’s parents are alive. Those situations may include:

• To qualify for health insurance coverage;
• For consent to medical treatment or decisions about education and school;
• To accept an inheritance;
• To receive money from a lawsuit settlement.

Guardianships are sometimes the only avenue for parents of adult disabled children to keep tabs on their children. Limited guardianships are also permitted by Kentucky law.

Responsibilities & Duties

A guardian or limited guardian may be responsible for the care and control of the minor child, and/or managing the child’s finances. The guardian must file inventories with the Court to account for actions being taken on behalf of the child. Generally those are filed within sixty (60) days of appointment, and then every one to two years thereafter depending on what property the child owns.

Filing For Guardianship

Any interested person may file for guardianship over a minor child with the District Court. Once the petition is filed and the filing fee paid, a hearing date will generally be scheduled by the Court. The person requesting the appointment as guardian must be present at the court hearing. If the minor is 14 years old or older, the minor must also be present.

Interested in filing for guardianship but don’t know where to get started? Visit Our Attorneys page to learn more.

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The attorneys at Goldberg Simpson offer strategic and experienced advocacy in this area, having represented both sides of the family seeking or defending against custody or visitation rights. These cases routinely involve custodial evaluators, guardian ad litem (GAL), and other experts that can help a family court judge what is in a child’s best interests.

What Are Grandparents Rights?

Grandparents rights involve grandparents asserting legal claims to custody or visitation to a grandchild. Grandparents may become involved if they are prevented from seeing their grandchildren or if they feel that a child’s well-being is threatened by neglect, abuse, or drug or alcohol addiction. Many grandparents will pursue a case where a family dispute causes a parent to prevent the grandparent from seeing a grandchild.

The basis for grandparent visitation rights in Kentucky is KRS 405.021. That law provides for reasonable visitation rights to either the maternal or paternal grandmother(s) and/or grandfather(s) of a child if the court determines that it is in the best interest of the child to do so. This case must be filed in the local family court where the child resides (or circuit court if the child’s home county does not have a family court).

Once a grandparent has been granted visitation rights under Kentucky law, those rights are not affected by the termination of parental rights belonging to the grandparent’s son or daughter (who is the father or mother of the child visited by the grandparent) unless the family court judge determines that it is in the best interest of the child to do so.

It is also possible for a grandparent to receive noncustodial parental visitation rights if the parent of the child who is the son or daughter of the grandparent is deceased and the grandparent has assumed the financial obligation of child support owed by the deceased parent, unless the family court determines that the visitation is not in the best interest of the child. If visitation is not granted, then the grandparent has no obligation to pay child support for the grandchild.

Can I Get Visitation To See My Grandchild?

In Kentucky, visitation may be granted to grandparents if the court determines that it is in the child’s best interests. We will work with necessary professionals, interview witnesses and present all evidence needed to support your case to see your grandchildren. We will demonstrate to the court that it is in the best interests of the child to have contact and visitation with grandparents.

Can I Get Custody Of My Grandchild? What Is De Facto Custody?

A grandparent who has been a primary caretaker of a child for a certain period of time (usually dependent on the age of the child and whether the grandparent or family member has been the primary caregiver and financial supporter) may be able to obtain the same rights as a regular parent. In other child custody and grandparents’ rights cases, the court will consider the wishes of parents and children, the relationship between the child and parents, the child’s adjustment to their home, school and community and the mental and physical condition of all persons involved. If you are seeking visitation or custody rights or you want to defend against the right of an intervening grandparent, please contact our office for an immediate consultation.

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Many parents don’t realize the logistics of moving to another state when they share a child with someone else, so they don’t plan accordingly. We had a case recently involving a mother who wanted to return to where her family lives in Alaska, which is a substantial move. She and the child’s father hadn’t been married, so there were no child support cases. This issue of properly relocating sometimes comes up even before there’s a case pending. Most people know to follow the rules when they’re in front of the judge or in the middle of a divorce or child custody case; but for those without a case, they still need a lawyer to help them plan for relocation with a child. If the mother had left this area without our help, the father could have filed a restraining order with the local judge to get the child returned. She probably would not be living in Alaska with her child right now. If you have a child with someone, it’s important to consider the planning aspect of a move and seek good advice from a lawyer. Doing so now is much easier than cleaning up a mess later.

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Contrast that with a community property state, where normally everything is divided 50/50. Indiana is a hybrid of those two. It’s what’s called a marital pot state. So, in Indiana, everything you own goes into a pot, and the question that’s asked is, “Why shouldn’t we divide all of this 50/50?” In that specific case, the person who wanted out of the marriage did not want to leave without half of those assets, and so we’ve sometimes advised people to establish a new residence for purposes of divorce in order to avail themselves of more advantageous laws and protect their assets.

In a situation where somebody has inherited a lot of money and wants to protect it, Kentucky has a much more favorable law to get that back than Indiana does. Indiana would put the money in a pot and say, “Why shouldn’t each party share half?” It’s important, therefore, for each person to know their state’s unique laws about property and debt division.

For people with children, there are, obviously, some interstate issues that come up, as well as questions regarding how maintenance and alimony will be calculated. Kentucky is a fairly generous alimony state. We got an alimony award for one client who was only married for a year and a half, whereas that is very rare in Indiana, where alimony doesn’t really exist. There are very limited ways to get maintenance in Indiana. If I have a client who is disabled and has been in a 30-year marriage, it is advantageous for her to have residence in Kentucky and let that issue be decided there instead of in Indiana, where there’s not much law to support that type of claim.

When it comes to the issues of dividing property and debt and figuring out alimony and maintenance, there’s also the issue of attorney’s fees. If you have one partner making significantly more than the other, states have different rules about who pays for the divorce. So, even if you don’t have children, if you are living right next to another state or you are potentially going to be living somewhere else, you need to think about how that will look.

There’s another story that comes to mind. A couple here did not have any children, and the husband really wanted to be out in California to live the rest of his life. He met with an attorney who wasn’t well-versed in interstate matters and who told him they’d file here. His divorce ended up taking two years, time during which he was not living in the place he wanted to be. Many of his issues could have been avoided if he’d gone ahead and moved and filed there.

We also see a lot of cases where, sadly, one spouse does not wish to file. Either they don’t want to get divorced or they have religious beliefs that prevent them from doing so. Whether they want the divorce or not, they should still plan for their future because the divorce will affect their belongings, their assets, and their very livelihood going forward. If a potential relocation may change how things get divided, the spouse needs to get on top of that and not wait until it’s too late. Once the case gets filed, it’s very hard to get it moved, as a general rule.

For more information on Division of Assets & Debts And Alimony, an initial consultation is your next best step. Goldberg Simpson is proud to have a robust family law practice with clients licensed in both Indiana and Kentucky.

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Those are just a couple of issues that we have helped divorced/divorcing parents (and unmarried couples with children) navigate during this time. The most recent issue concerns the stimulus payment that most people are now receiving from the federal government. What is the rule for which parent gets the $500 stimulus payment for children?

That question would imply there is a specific rule, which is not always the case in family court. Black and white answers do not always exist, and judges can view the same issue in different ways.

Note: it is important you consult with your CPA or tax advisor about this issue. Nothing you read in this post is tax advice. Here is a link to the online tool created by the IRS to check the status of your stimulus payment: https://www.irs.gov/coronavirus/economic-impact-payments

OPTIONS FOR DIVIDING THE STIMULUS PAYMENT

Take this example: a couple with one child was divorced in 2019, and the last tax return on file with the IRS for either parent was a joint 2018 return which included the bank account information for a joint account that the father kept after the divorce. Recently, father saw that $2900 was deposited into that account ($1200 for each adult and $500 for the child). Does dad get to keep the money?

Most judges will likely find that dad should immediately transfer $1,200 to mom for her portion as an adult. Regarding the $500 payment for their kid, several options exists:

• Equally divide the $500 (each parent receives $250) to assist with raising the child during the pandemic;
• Allow the parent who provides the primary residence for the child (sometimes called the “custodial parent” or “primary residential parent”) retain the entire $500;
• Divide the stimulus check for the child in proportion to the amount of parenting time each parent has (so, if mom has the child 75% of the time and dad has 25% of the time, mom would receive $375 and dad would receive $125) (this was the ruling of an Indiana judge recently in a telephonic hearing);
• Allocate the $500 based on analyzing each parent’s qualifying income – there are phase out limits where one may not qualify for any stimulus payment under the new law. If dad would qualify based on IRS rules but mom would not, allow dad to keep his and the child’s stimulus payments;
• Allow one parent to keep the entire amount to in full or in part count as a credit towards back child support or an arrearage on medical expenses;
• Award the stimulus payment to the parent who most recently qualified to claim the child for tax purposes (formerly known as claiming the child as a dependent and under current tax law known as claiming the child tax credit on the first page of the parent’s tax return) as outlined in the parties’ divorce or custody agreement or decree.

The CARES Act is the recent law that brought this issue to light. Courts may look to the actual language of the law (found at www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf) and its reference to “qualifying children” as defined by the Internal Revenue Code 152 in deciding where stimulus money for children was intended to land. Under a strict reading there, parties sharing 50/50 custody of the child may be ordered to split the payment, but a non-custodial parent who received the stimulus just because he or she was entitled to claim the child during the last tax season (or just because that parent’s bank information was on the last return on file with the IRS) would need to provide the money to the custodial parent.

We have seen some parents rushing to file their 2019 return in hopes that the IRS will use that updated information instead of what appeared on their 2018 tax return. Other parents may be holding off on filing their 2019 return if they made too much money to qualify for a stimulus payment based on their 2019 income. Many couples who have divorced in the past few years and/or couples who have a joint return on file with their ex-spouse may be affected by this.  Couples with a single/head of household return filed may also be affected due to the IRS not automatically sending $250 to each parent. The fact that the 2019 tax filing deadline has been extended to July 15, 2020 should also be considered in assessing how many of these disputes may play out in local divorce courts over the coming months in 2020.

Parties would be wise to consult with their tax advisor or accountant as it is expected parties will have to account for the amount received on their 2020 tax return. Does that provide courts with another factor to analyze – is the stimulus payment really an advance on the 2020 tax situation?

DIFFERENT RESULTS IN DIFFERENT FAMILY COURTS

It is likely that parents will see mixed results depending on the specific judge assigned to their case. Getting an answer is complicated by the fact that most courts are not operating as normally right now and a hearing may not be an option for months. Litigants must also take into account the attorney fees incurred in arguing over a $500 payment for a child. If other issues are pending, however, this topic could easily be raised.

If the parties did not provide bank account information on their last filed tax return and are in line for a paper check, that may allow the funds to more easily be escrowed for the parties to agree or the court to decide on who ultimately receives what. The paper check option may also be invoked if the bank account information listed on the parents’ last filed tax return is now outdated because that account was closed as part of their divorce settlement.

We are continuing to help clients in virtual mediations and settlement conferences while family courts are mostly closed. Feel free to contact our family law attorneys if you would like to discuss this or other issues that parents are encountering due to COVID-19.

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Kentucky law allows a divorce judge to divide property and debt all the way up until the time of the divorce. (Compare this to a divorce in Indiana, where the marital estate generally closes at the time the case is filed.) Usually the financial disclosure form is filed weeks or months before the divorce is finalized, and often the spouses have already physically separated by the time they are working with their attorneys to complete their financial disclosure. This leads to one or both sides of the case leaving out property or debt that came into existence after the parties separated.

Another common error is failing to list assets that were acquired before the marriage, or only listing items that are in joint names or that were obtained during the marriage. Kentucky law recognizes pre-marital and non-marital items, but it is important that your attorney properly categorizes these items on the required disclosure form so that those claims are not lost.

In contested divorce cases, multiple disclosure forms are often filed – a preliminary or initial disclosure filed early on in the case, followed by a final version prior to the divorce trial. While some items can be corrected in the “final” version, these disclosure forms outline important issues for the family court, and it is important that your divorce attorney is experienced with properly disclosing property and debt in your case.

Sample financial disclosure forms can be found at http://courts.ky.gov/resources/legalforms/Pages/legalformlibrary.aspx

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Family courts see dozens of parents and spouses fighting about custody, child support, how to divide property, and other issues on a weekly basis. The reason those people are at the courthouse is because they have been unable to resolve their differences outside of court, such as at a settlement conference, mediation, or even across the kitchen counter from one another.

Judges generally do not require divorcing couples to appear before them to finalize a legal separation or divorce. A motion for a divorce decree can be filed “off docket” as long as all necessary documents are properly filed and signed (including by a notary in certain situations).

The difficulty for most people is getting their spouse to see eye-to-eye on all issues stemming from their marriage, as even if the parties agree on 99% of the proposed divorce terms, they may have to go to court to resolve all issues. Having an experienced divorce attorney not only increases your chances of not having to go to court by ensuring that divorce documents are properly filed and submitted to the judge, but also to help solidify an agreement on all aspects of your separation or divorce that are important to you.

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The new protective orders, called IPOs (for interpersonal protection order), will allow individuals who are in a dating relationship or believe they are being stalked to file a petition for relief. Presently, EPOs (emergency protective orders – which can become a DVO, or a domestic violence order, if a family court determines long-term protection is needed) only offer protection to those that are married, living together, or share a child.

While Jefferson Family Courts hear EPO/DVO cases, the dispute recently has been about what courts were going to hear these new cases – family court or Jefferson District court. The Chief Justice of Kentucky has said the cases will initially be heard in district court. These new orders can restrict communication between individuals and include a 500 foot separation barrier similar to EPOs and DVOs.

The Domestic Violence Intake Center in the Hall of Justice will handle the intake of all protective order cases.

Original story link: http://www.courier-journal.com/story/news/crime/2015/10/26/courts-share-duties-protect-dating-couples/73952740/

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E-Filing is planned to be available in all Kentucky counties by the end of 2015, and has been available in certain counties for civil cases for several months. Today, however, marks the first time that divorce attorneys and others who are registered with the filing system can file documents in divorce, legal separation, and child custody / visitation/ support cases.

Thirty-seven (37) counties in Kentucky are now e-filing, including the local counties of Bullitt, Nelson, Oldham, Shelby and Spencer. Jefferson County is the last region scheduled to be brought onto the system. 

Eligible family court cases must have a “CI” in the case number, which means that filing electronically in domestic violence (D) or paternity (J) cases is not yet available.

New cases that can be filed online are as follows:

• Petition for dissolution of marriage (contested or uncontested, with or without children)
• Petition for Legal Separation
• Petition for Child Custody or Visitation
• Petition for Child Support

Subsequent filings that can be processed online, in addition to other motions or documents specifically for “Domestic & Family” cases, include:

• pendente lite motions
• child support motions
• court scheduling and docketing
• evidentiary and discovery matters
• counsel/representation
• modification and enforcement

A note to divorce lawyers and their staff: filing the VS-300 form must be completed by uploading the form in addition to filing an original VS-300 with the local circuit court clerk. So a decree will not be issued until the filer mails or hand-delivers a physical copy to the clerk’s office.

Also, don’t forget about re-opening fees. The statewide family court rules require a fee of $50.00 to be paid in domestic relations cases once six (6) months has passed from the divorce decree and either side wants to modify the order. When filing a motion using the online system, you must answer “Does this motion ask to reopen the case and modify the decree after six months of its entry?” Failing to pay the required fee will result in the motion being rejected.

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Mediation provides more flexibility than court in most instances and has many benefits, but you may want to be aware of the following information to help you prepare for your mediation session:

• The mediator, usually a former judge or an experienced attorney, cannot force, make or require you to sign a settlement agreement. The mediator is a neutral person who assists parties in negotiations. The mediator cannot disclose any information to the Court other than whether a full or partial agreement was reached, and this is usually done by the filing of a simple report after the mediation.
• If you and the other party reach an agreement on some or all issues, a written agreement will generally be prepared for your signature at the conclusion of the mediation session. If you sign an agreement at mediation, you will be bound to the terms. The Court will accept the agreement and will not allow either party to withdraw his/her consent or modify the terms of the agreement.  Typically, the mediated agreement will be entered by the Judge in your case as a Court Order. Failure to comply with the terms of such a Court Order, can warrant contempt sanctions against the party who fails to comply.
• Depending on the issues in your case, a Court may be allowed to modify the mediated agreement in the future under certain circumstances, particularly in dealing with family law (divorce/custody) issues, e.g., child support, custody, visitation. Be sure to discuss with us prior to mediation, the types of issues which could be modified in the future and the legal requirements for modification. In addition, laws change over time and such changes may effectively modify your agreement. It is not possible however, to foresee the future and the changes which may occur. Thus, there is some prospective uncertainty to any agreement reached in the present.
• During mediation, you may need advice from another professional, such as, a certified public accountant, tax preparer, mortgage broker or realtor. As an attorney, we cannot give you advice in other specialized fields. It may be prudent for you to contact one or more of these professionals, in advance, and arrange for a telephone conference, if necessary, during mediation.  Please contact us if you have any questions regarding this. If professional advice is necessary, but unavailable to you during mediation, you have the right to delay signing any agreement in order to obtain the required advice or information.
• In order to be prepared for mediation, you should be well-rested and free from the influence of any mood or mind-altering medications.
• Come prepared to compensate the mediator for his/her time in helping you negotiate your case. Usually the Court will order the parties to divide the expense of mediation equally or proportionally prior to mediation being scheduled.
• Since mediation can be very stressful, do not plan to skip nourishment before or during mediation. Your decision-making ability depends on your physical and emotional well-being. Take appropriate steps to be as comfortable and at ease throughout the process as possible.
• If you are responsible for the care of others, i.e., children or pets, make arrangements for their care in advance as mediation sessions may last longer than anticipated.
• You are under no obligation to settle your case during mediation.  It is natural for each side to feel pressure during mediation as the mediator does his/her job.  If a mediated agreement is signed, it will be your decision. Neither the mediator, us or any third party can compel you to settle your case. Do not sign a settlement for any reason other than you want to do so.
• If a mediated settlement is reached in whole or in part, you will generally be precluded from obtaining discovery or other information regarding the settled issues. Thus, if further information/documentation is desired by you on an issue, you are responsible raising this issue and discussing it fully with us prior to signing any agreement.

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