In April 2017, Governor Matt Bevin signed a bill into law which mandates that custody cases in Kentucky begin with the presumption of joint custody and equally shared parenting. The new law presumes that children are better off when both parents are involved. The statutory changes apply the presumption of joint custody and equally shared parenting to both initial custody determinations and custody modifications. The Kentucky General Assembly previously passed a measure last year applying the presumption to temporary custody orders.
Statutory changes also related to how domestic violence and abuse will be taken into consideration in custody determinations. The new language specifically lists as a factor to be considered “a finding by the court that domestic violence and abuse is being or has been entered.” In order to have a finding, a court would need to hear evidence and issue an order stating that domestic violence and abuse did in fact occur. This is a deviation from the previous statutory language which referred to “alleged” domestic violence or abuse. Victims of domestic violence who have obtained an order of protection and then seek a subsequent divorce or child custody will clearly be able to bring in evidence of past domestic violence. In fact, an entirely new section of the KRS was created stating that the presumption of joint custody and equally shared parenting does not apply if a domestic violence order has been issued between the parties.
However, for victims who do not have a court finding of domestic violence in a protective order case, the outcome seems less clear. Will the court hearing the custody matter be willing to hold an independent hearing to determine if a finding of domestic violence can be made? Or will victims who do not have a pervious finding be barred from presenting evidence of domestic violence in their custody proceedings altogether?
On average, Legal Aid of the Bluegrass handles about 500 cases each year for victims of domestic violence who seek a divorce or annulment, and/or who seek custody of their children. Legal Aid of the Bluegrass attorneys have represented 494 adults and 713 children so far this year affected by this representation. We are keeping a close eye on how this affects our clients and the wellbeing of any child(ren) involved.