The 2010 Session of the Kentucky Legislature enacted the following legislation affecting domestic relations matters.

    House Bill 1is known as Amanda’s Bill in honor of Amanda Ross who was killed in 2009 in a domestic violence incident.  The Act allows judges to order violators of a Domestic Violence Order to wear a global positioning system tracking device to monitor abuses and help make sure they maintain the required distance from their victims.  Felony charges may be brought against DVO violators who attempt to remove a court-ordered tracking device.

    House Bill 289amends relevant sections of Kentucky Revised Statutes to require the Kentucky Employees Retirement System, the County Employees Retirement System, the State Police Retirement System, the Kentucky Teachers’ Retirement System, the Legislators’ Retirement Plan, and the Judicial Retirement Plan to honor qualified domestic relations orders if the orders meet the requirements established by the retirement systems or plan and by this legislation.  Affected statutes are KRS 6.525, 16.645, 61.690, 78.545, 161.700, and 21.540.

    The Act amends KRS 16.505, 61.510, 78.510, 161.220, and 21.540 to define a qualified domestic relations order as any judgment, decree, or order issued by a court or administrative agency which relates to the provision of child support, alimony payments, or marital property rights to an alternate payee and to define an alternate payee as a former spouse, child, or other dependent of a member or retired member of the retirement systems; amends KRS 161.620 to clarify that the minimum benefit payment will not apply if the order reduces the member’s payment below the minimum.  The bill also amends KRS 161.585 to provide procedures for responding to and providing testimony when an employee of the Kentucky Teachers’ Retirement System is subpoenaed; amends KRS 161.700 to conform to KRS 403.190(4); and amends KRS 21.540 to provide authorization for the Judicial Form Retirement System to promulgate administrative regulations.

    Finally, HB 171 amends KRS 382.135 to specify that the in-care-of address is not required in deeds making certain types of conveyances, including deeds which transfer property through a court action pursuant to a divorce proceeding. The link we have to this bill doesn't work. If you have it, please post a comment. Thanks.

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Update: The bill is now HB1 and is here.  The link below no longer works.

Here is the link to the pre-filed bill, BR251, relating to a global positioning monitoring system amendment to Kentucky’s domestic violence statute. It would also permit a petitioner to request that the respondent be prohibited from going to certain designated places requested by the petitioner. Apparently respondents would pay the cost unless unable, in which case approved vendors would bear cost responsibility. The courts would be authorized to conduct a risk assessment to determine whether monitoring would deter future violence.

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I thought all proposed family law legislation was dead this session, but learned of the following two bills yesterday evening at the Family Law Forum hosted by the Jefferson Family Court Judges:

HB 489, Amending KRS 403.211 to define “appropriate health care insurance coverage” as “accessible”, “comprehensive”, and “reasonable in cost; define “cash medical support”; require the court to determine if medical support for the child is available; require the court to order the parent to obtain or maintain coverage; change the term noncustodial parent to obligated parent. Status: Is awaiting the governor’s signature.

HB 195, Amending KRS 64.090 to, inter alia, require the respondent to pay the sheriff’s fee of $40 directly when an EPO or DVO is issued on a finading that domestic violence has occurred. Status: Mar 13-reported favorably, to Rules with Committee Substitute (2) ; posted for passage in the Regular Orders of the Day for Friday, March 13, 2009; 3rd reading; Committee Substitute withdrawn; floor amendments (1) (2) and (3) withdrawn ; passed 37-0 with Committee Substitute (2) ; received in House.

The forum was helpful and fun. Thanks!

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By Michelle Eisenmenger Mapes, Published in Louisville Bar Briefs, March 2008, Volume 08, No. 3

Your client asks you, “What does it mean to be a primary residential custodian? What effect does it have? After our divorce is final, can my spouse move and take my children away?”

Good questions. Unfortunately, the family law attorney has been unable, in recent years, to give a satisfactory answer, as the law on parental relocation in Kentucky seems to be forever in a state of flux. However, the odds of having concrete answers to those questions by the end of the year have improved on both the legislative and judiciary front, for legislation has been introduced to Kentucky’s House of Representatives that would provide family courts with much-needed guidance to resolve parental relocation disputes; and the Kentucky Supreme Court recently accepted discretionary review of three parental relocation cases: Pennington v. Marcum, 2006 WL 2194903 (Ky. App. 2006); Frances v. Frances, 2006 WL 3759659 (Ky. App. 2006); and Rankin v. Coffman, 2007 WL 1229022 (Ky. App. 2007).

Within four years of separation and divorce, about one fourth of mothers with custody move to a new location. Whether caused by a high divorce rate, remarriages, shifting job market, an increase of joint custody arrangements or simply the mobility of our society, more and more cases are presented to courts regarding relocation of children. It is probable that the number of cases litigated on this issue would decrease if there was clear statutory or case law on the subject, so that the family law attorney can properly advise her client. Relocation disputes pose great dilemmas for family courts. In a case where both parties are acting in good faith, the court must balance the relocating parent’s understandable desire of seeking a better life by moving away with her child against the non-relocating parent’s understandable desire to maintain frequent and continuing contact with his minor child.

Most state legislatures have addressed the issue, but ours has not. In the absence of legislation requiring notice and determining the factors to be considered when a parent desires to relocate a child, courts are struggling. In 2006, in Robinson v. Robinson, the Kentucky Court of Appeals noted that the arrival of the 21st century brought “an accelerated evolution” in child custody relocation litigation. The court then went on to lament the absence of legislation addressing the issue: “Unfortunately, despite Kentucky’s recent legislative efforts, Chapter 403 of the Kentucky Revised Statutes fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce… [U]ntil our legislature aligns with the majority of states [with relocation statutes], we are compelled to address relocation/custody issues by applying the general custodial modification statutes, KRS 403.340 and KRS 403.350.”

In 1998, in recognition of the issue and dilemmas faced by the courts, the General Assembly passed a bill establishing a task force to study custody and visitation in Kentucky and to submit findings to the Legislative Research Commission. That report was submitted January 6, 2000 and included recommendations regarding the relocation of children as well as a bill draft. Sadly, no legislation regarding child relocation was passed.
In 2008, the relocation issue may finally be addressed by our statutes. House Bill 383 has been introduced this session in the Kentucky Legislature and was referred to the House Judiciary Committee. House Bill 383 would add a new section to KRS Chapter 403 that would provide a framework to family courts for proper adjudication of parental relocation disputes. A parent who provides the principal residence for a child will be required to provide notice of his or her proposed relocation and a proposed revised parenting time schedule to any other person with custody or visitation rights. Furthermore, if the parent who does not provide the child’s principal residence intends to move, he or she will also be required to notify the parent who provides the child’s principal residence of his or her intent to relocate as well as a proposed revised parenting time schedule. In both instances, notice must be provided no less than sixty days prior to the planned relocation, unless the parent does not become aware of the need for the move during that time frame, in which case he or she will have ten days from the date the information was received. The non-relocating parent will have thirty days after receiving the notice to object to the move, or the move will be permitted. Failure to provide notice can be considered by the court in its determinations regarding relocation or change of custody or visitation, as well as a basis for ordering the return of the child, an award of attorney’s fees to the non-relocating parent, or a finding of contempt against the relocating parent. The court may grant temporary orders allowing or disallowing the relocation. The court is to determine whether the relocation of the child should take place in accordance with the best interests of the child. The court would be prohibited from considering the relocating parent’s intention that he or she will not relocate if the relocation is denied. Lastly, the relocating parent will have the burden of proof that the proposed relocation is made in good faith and in the best interests of the child. The court may sanction either party if it finds that the party’s proposal or objection was made to harass the other party or delay the proceedings or was unsupported by the law or the evidence.

Should this legislation not pass, though that would truly be to the detriment of the courts, there is still hope for clarification of relocation law in the guise of the above-mentioned Kentucky Supreme Court cases. Our last Kentucky Supreme Court case on the issue, Fenwick v. Fenwick, left many Kentucky family law attorneys shaking their heads, as the Court declared that “a custodial parent’s decision to relocate with the children is presumptively permissible, and a custodial parent may relocate with the children without prior approval or modification of the joint custody award.” The Court further declared that “a non-primary residential custodian parent who objects to the relocation can only prevent the relocation by being named the sole or primary residential custodian, and to accomplish this designation would require a modification of the prior custody award.” At the time, this meant that he or she must show that “the child’s present environment seriously endangers his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment is outweighed by its advantages.” The custodial modification statutes have since been amended, but the Court of Appeals stated in Robinson that “The Supreme Court’s holding in Fenwick remains sound law under KRS 403.340(2) where the modification is sought within two (2) years of the original award of permanent custody.”

In Fenwick, the Court provided that it was following the trend of allowing the residential parent to move away with the child, if the move is made in good faith and a satisfactory revised parenting schedule can be achieved, based on “a prioritizing of the ‘new family unit’ constituted by the post-divorce relationship between the primary care-taker parent and the child.” Since that time, new evidence has been obtained to suggest that this is not the right approach. A new study suggests that, as compared with divorced families in which neither parent moved, students from families in which one parent moved had weaker relationships with their parents, as a whole, and fared worse overall as adults than their counterparts. While this should not suggest that relocation is not in a child’s best interests in every case, it will hopefully influence the Kentucky Supreme Court’s upcoming relocation decisions so that there is no longer a preference for the primary residential parent to be able to move with the child.

1. Sanford L. Braver et al., Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations, 17 J. Family Psychology 206, 206 (2003).
2. 211 S.W.3d 63, 67-68 (Ky. App. 2006).
3. 114 S.W.3d 767, 785 (Ky. 2003).
4. Id. at 786.
5. Id.
6. Robinson, 211 S.W.3d at 71.
7. Fenwick, 114 S.W.3d at 789.
8. Braver, supra at 214.

Michelle Eisenmenger Mapes is Chair of the Louisville Bar Association Family Law Section and is an associate with Diana L. Skaggs + Associates.

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HB 376 Would amend KRS 403.735 to require each court to designate at least one day per week for domestic violence hearings; amend KRS 403.740 to require an emergency protective order to remain in effect until the full domestic violence hearing occurs; require the date, time, and place of the full hearing to be noted on the emergency protective order upon service to the adverse party; require notice to be sent to the petitioner; amend KRS 403.745 to require a summons for a domestic violence hearing to remain in effect until the hearing occurs; require the date, time, and place of the full hearing to be noted on the summons upon service to the adverse party; require notice to be sent to the petitioner. Jan 25-introduced in House
UPDATE: Still in house judiciary committee 3/24/08

HB 352 Would create a new section of KRS Chapter 527, relating to firearms and weapons, to prohibit a person who is subject to a domestic violence order from possessing or attempting to possess a firearm; establish possession of a firearm by a person subject to a domestic violence order as a Class D felony.
Jan 23-introduced in House
UPDATE: Still in house judiciary committee 3/24/08

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HB383 was filed today with posting waived. It should be online tomorrow and we’ll link to it when available. It will be heard in the house judiciary committee in Frankfort on Wednesday, January 30, 2008. It mirrors with few exceptions the AAML Model Relocation Act, available here.
Update: HB383 is online here.
UPDATE: Still in house judiciary committee 3/24/08

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HB 353 would amend KRS 403.750 to provide that the court, in a domestic violence order, may prohibit a respondent from possessing firearm while the order is in effect; provide for confiscation of firearms in possession of the defendant and for confiscated firearms to be turned over to the office of the sheriff for custody; provide for return of firearms or alternate disposition of firearms upon expiration or vacation of the domestic violence order.Jan 23-introduced in House , Jan 24-to Judiciary (H)
UPDATE: still in house judiciary committee 3/24/08

SB 108 would amend KRS 403.720 to include dating partners among the class of persons allowed to obtain domestic violence protective orders; amend KRS 403.725 to permit college students and military personnel to apply for emergency protective orders and domestic violence orders; amend KRS 431.005 to conform. Jan 24-introduced in Senate
UPDATE: Still in senate judiciary committee 3/24/08

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HB 161, would amend KRS 403.720 to include dating partners among the class of persons allowed to obtain domestic violence protective orders; amend KRS 431.005 to reference the definition of “unmarried couple” in KRS 403.720.
Jan 8-introduced in House , Jan 11-to Judiciary (H)
UPDATE: still in house judiciary committee 3/24/08

HB 32 would amend KRS 403.200 to permit a court to provide for wage attachment and automatic electronic transfer of funds for payment of spousal maintenance; amend KRS 403.270 to add healthy environment for child as a factor for the consideration of awarding custody of children; amend KRS 530.050 to add ex-spouse; Oct 3-To: Interim Joint Committee on Judiciary, Jan 8-introduced in House; to Judiciary (H)
UPDATE: still in house judiciary comittee 3/24/08

HB 196 would amend KRS 403.213, relating to child support and the effects of emancipation of the child, to require continued payment of child support while the child is a high school student, regardless of the child’s age. Jan 8-introduced in House , Jan 10-to Judiciary (H)
UPDATE: posted for passage in house 3/11/08

HB 197, would repeal KRS 402.090, Soliciting persons to be married by particular person; sharing remuneration; solicitation by minister or justice of the peace. Amend KRS 402.990 to conform. This statute defines penalty for marriages violating 402.010, persons who marry who are closer than 2nd cousins, and penalties for other acts such as aiding and abetting the marriage of those adjudged mentally disabled.
Jan 8-introduced in House, Jan 11-to Judiciary (H)
UPDATE: passed house with one amendment, received in senate 3/20/08

SB 74 Would amend KRS 403.725, relating to issuance of domestic violence orders, to specify that if the petition is filed in a county other than the county of usual residence, then the petition shall also include the name of the county of usual residence; provide that when an emergency protective order is issued other than in the county in which there is a pending domestic relations action, that the action be transferred to the county in which the domestic relations action was filed for a full hearing; amend KRS 403.765, relating to certification of domestic violence orders, to provide that either party to an existing domestic violence order may apply to have the case transferred to the court in which an action under KRS Chapter 403 is pending.
Jan 10-introduced in Senate , Jan 14-to Judiciary (S)
UPDATE: still in senate judiciary committee 3/24/08

SB 28 would create a new section of KRS Chapter 199 to establish a putative father registry to be called the Fatherhood Information System of Kentucky within Cabinet for Health and Family Services; require the cabinet to consider contracting to operate the registry; require the cabinet to provide public information on the registry including how to revoke a registration; prohibit a fee for registering; permit a putative father to register before or after the birth of a child; require the cabinet to date and file a submitted form; require the cabinet to attempt to notify a registered putative father if a search identifies him; permit persons with legitimate interest to request a search; permit the cabinet to charge a fee for conducting a search of the registry; require an affidavit of a search to be submitted with the petition for adoption; permit the cabinet to contact a putative father in circumstances other than an adoption if it is in the best interest of the child and the putative father has given consent to be contacted under other circumstances; require the cabinet to respond to a request for a search within 10 days and verify the attempt to notify a putative father if he was identified; require the cabinet to establish the registry by administrative regulation; amend KRS 199.490 to require a termination of parental rights petition to include an affidavit of the registry search; amend KRS 213.036 to require local registrars to provide forms and information on the registry; amend KRS 213.046 to require a hospital to provide forms and information on the registry; amend KRS 625.050 to require a petition for termination of parental rights to include an affidavit of a registry search.Jan 8-introduced in Senate; to Judiciary (S)
UPDATE: still in senate judiciary committee 3/24/08

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A bill based on the AAML Model Relocation Act is expected to be introduced in the House this week and quickly scheduled for a hearing in the Judiciary Committee. More on that as it happens. Meanwhile, these family law related bills have been filed:

HB 199 Would create a new section of KRS Chapter 403 to require that divorce, child custody, child support, and similar records not be released with information identifying the address, Social Security number, telephone number or similar information relating to a party to the proceeding; provide exemptions for public agencies and court-ordered disclosure of the information. Jan 8-introduced in House, Jan 10-to Judiciary (H)
UPDATE: still in house judiciary committee 3/24/08

SB 61 Would amend KRS 403.200, relating to spousal maintenance, to provide that, for good cause shown, the court may provide for payment of court-ordered maintenance by wage assignment, bank draft, or other automatic payment method. Jan 9-introduced in Senate , Jan 10-to Judiciary (S)
UPDATE: still in senate judiciary committee

HB 261 Would create a new section of KRS Chapter 403, relating to dissolution of marriage and child custody and support, to require a person who is obligated to pay child support to pay his or her proportional share of the child’s reasonable funeral expenses; amend KRS 403.211 and 403.213 to conform. Jan 10-introduced in House, Jan 15-to Judiciary (H)
UPDATE: passed house , received in senate 3/17/08, in senate judiciary committee

SB 9/LM (BR 247) – Would create a new section of KRS Chapter 605, relating to juvenile proceedings, to require social service workers, child protective services workers, peace officers, and others interviewing a child alleged to be abused, needy, neglected, dependent, or delinquent to make a video or audio recording of the interview; specify to whom recordings of interviews are available; limit uses of recordings of interviews; provide for destruction of recordings when no longer needed. (Prefiled)
Oct 3-To: Interim Joint Committee on Judiciary, Jan 8-introduced in Senate; to Judiciary (S)

Finally, a bill was introduced by Rep. Darryl Owens on to require notice of right to legal counsel in certain child custody cases and specify when Cabinet for Health and Family Services must pay for counsel. However it is not HB 181 as reported by KentuckyVotes.org. I’ll post the correct bill number and link when I find it.

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