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The Tie That Binds

Many couples believe once they get divorced they will never have to see or hear from one another ever again. They hope that the divorce will sever their bonds and set them free to chart their own new course in the world. While this may be true in some circumstances, couples who are divorcing but have children together are in for a shock. Children are the tie that binds and divorcing couples with children must be prepared to see each other and communicate regularly based on the type of custody that is set in their divorce case.

Typically, the number one issue in a divorce where children are involved is custody. The number two issue is timesharing, meaning how much time each parent gets to spend with the child. If the parties cannot reach a mutually agreed upon custody and timesharing arrangement, the Court will do so. Custody has a number of different meanings and can take several different forms in Kentucky. The two forms you have most likely heard about are joint and sole custody.

To reach a custody determination, the Court is required by Kentucky statues to evaluate a number of different factors. An in depth analysis of these factors is a topic for another article, suffice it to say that the Court will weigh each factor and the evidence and render its decision based on what it believes is in the best interest of the child. The Court will then typically either award both parents joint custody, or one parent sole custody.

Sole custody means that the court has awarded physical and legal custody to one parent. The child lives with that parent and that parent has the right to make major and minor decisions for the child. The other parent is often given visitation with the child on a set schedule but this is determined by the facts of the case. Sole custody is not typically favored in most cases in the Purchase area but is sometimes ordered by the court when there has been domestic violence, drug use, or other extreme circumstances where awarding a party physical and legal custody of the child would not be appropriate. Sole Custody is also occasionally implemented when one parent lives a great distance from the other and it would simply not be reasonable to require both parents to consent and reach an agreement on important decisions for the child due to the distances involved. In addition, in circumstances where the rancor between two parents is so great that they cannot agree on anything, no matter how insignificant, the court may find that sole custody is appropriate.

Joint custody means both parties have the right to make major decisions for the child, such as healthcare, schooling, religious upbringing, etc. Unless the parties are awarded 50/50 timesharing, one party is designated the primary residential custodian and the child lives primarily with that parent. The other parent is typically given set visitation with the child. Day to day decisions are made by the residential custodian/parent but any major decision is supposed to be made and agreed upon by both parents.

This is where we come back to our divorcing parents who wish to be completely rid of one another. If they have a child, and share joint custody, they must be prepared to communicate and be in touch with one another for as long as it takes for that child to reach the age of maturity as all of the major life decisions, until the child turns 18 and graduates high school, must be made by both parents together.

When it comes to a joint custody situation, "both parents possess the rights, privileges, and responsibilities associated with parenting and are expected to consult and participate equally in the child's upbringing." Pennington v. Marcum, 266 S.W.3d 759, 764 (Ky. 2008). Divorcing parents will see each other at ball games and recitals, speak to one another regarding grades and health, and must co-parent with one another when it comes to discipline and major life decisions. It is always better for parents who share joint custody of their child to work together and co-parent that child effectively as a united front.

If one joint custodian doesn't agree with an educational or medical decision made by the other custodian, should they put the decision in the hands of the Court? That is a difficult decision and one that should be made very carefully. As the Kentucky Court of Appeals reminds parents, "Once the parents have abdicated their role as custodians to the trial court, its decision is binding on the parties until it is shown that the decision is detrimental to the child physically or emotionally, or is no longer in his best interest." Young v. Holmes, 295 S.W.3d 144 (Ky. Ct. App. 2009)

When the other parent wants to make a decision you don't agree with, you may be able to negotiate or resolve that difference. When the court makes a decision that you don't agree with, it is often much more difficult to get it changed in your favor. I always counsel parents to try and get along and work out their disagreement without resorting to the court system. Co-parenting effectively and amicably is always the best option and divorcing parents should try and overcome any personal animosity they have towards one another and maybe even sit together at the next t-ball or soccer game. Text or email your ex-spouse to make sure you are on the same page when it comes to school or disciplining your child. Show up to your child's school and extra-curricular events even if your ex-spouse will be there. Especially if your ex-spouse will be there!

The court system and local judge's work hard to do what is in the best interest of the child and, while it may be a hard pill to swallow, divorced parents should do the same. Not only will your child appreciate and notice the effort, when the day comes that you and your ex-spouse simply cannot agree on a decision, and that day will most likely come, the court will appreciate that you tried your best to resolve things on your own beforehand.

If you and your ex-spouse or significant other have reached an impasse, please give us a call to discuss your options and the best way to move forward.

-Warner Wheat

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