At Sparks Integrative Family Law, we understand that child custody is one of the most important aspects of any dissolution of marriage or legal separation case. You want what is best for your child, but your spouse may be unwilling to cooperate, may be unfit to be involved in raising your child or children, or may have different views on how to resolve your custody dispute. It is important that you have a dedicated and experienced lawyer on your side to represent your interests and ensure that your children are protected.

Types of Child Custody

In Kentucky’s family courts, parents who are going through a dissolution of marriage or legal separation case must either agree upon child custody or rely on their assigned judge to make that critical decision for them. Parents should be educated by their attorneys as to the different ways in which they may have heard the term child “custody.” Child custody often refers to the rights and responsibilities of a child's parents, but it is also used to define who will take care of the child. In the law, there are two components of child custody:

1. Legal Custody – the determination of which parent(s) will make important decisions on behalf of your child(ren).
2. Physical Custody – the determination of who the children will live with and a parenting or visitation schedule for the other parent.

Legal Custody

Legal custody includes sole and joint custody. In Kentucky, the preferred legal custody arrangement is joint custody. In a joint custody arrangement, both parents share joint decision-making for their child, usually for major life decisions such as medical issues, education and religious upbringing. Sole custody means that one parent has the responsibility of making major-life decisions on behalf of the child and is not required to reach agreement with the other parent with regard to these issues.

Physical Custody

Physical custody of a child is typically shared between both parents. A parenting or visitation schedule is decided during a divorce or child custody proceeding to specify the times that each parent will spend with the child. A pre-planned parenting schedule can limit day-to-day arguments about each parent’s ability and/or responsibility to see the children. For some families a more flexible approach to parental sharing can better meet the family’s needs.

Unless parents share an equal fifty-fifty time sharing of the child, the parent with whom the child lives with the majority of the time is considered to be the “primary” custodial parent. In many cases, that parent is entitled to receive child support from the non-custodial parent.

How is child custody determined?

Parties that are able to reach an agreement regarding child custody outside of court have the opportunity to create a flexible, creative solution to legal custody and the parenting schedule that works best for each family’s unique needs.

If parties are unable to agree on their legal custody designation or on their parenting schedule, a court will make these decisions for a family. In making decisions about child custody, the court is guided by what it considers to be in the best interest of the child. In determining legal and physical custody, the court may look to factors such as:

• The wishes of the child’s parents;
• In some cases, the child's preference;
• The relationship of the child with his parent or parents and his siblings; and
• The physical and mental health of each parent

In some cases, the judge will order a custodial evaluation to help him/her determine the best custody arrangement for a family. A child custody evaluator is a specially trained professional (often a licensed clinical psychologist) who provides evaluations of both parties and all children. The evaluations focus on family relationships, parental capacities, and the needs of the children. After completing the evaluations, the evaluator will prepare a report containing his/her recommendations regarding custody, shared parental responsibility, and visitation.

What is a de facto custodian?

Kentucky law recognizes custody situations where a relative or friend has assumed the caregiving responsibilities for a child. A person who has been the primary caregiver for and financial supporter of a child for a certain period of time may be considered the “de facto custodian.” Kentucky defines a "de facto custodian" as a person who has been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older.

If someone is determined by a court to be a de facto custodian of a child, he or she can pursue legal and physical custody of that child. It is important for parents to be aware of the legal implications of allowing a non-biological party to parent a child for an extended period of time. Contact Sparks Integrative Family Law if you have concerns about your roles as a biological parent or a potential de facto custodian.