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Changes to Temporary Custody Statute Gives Parents Equal Time Sharing

On April 10, 2017 Governor Matt Bevin signed into law House Bill 492. HB 492 makes significant changes to KRS 403.280, the statute setting forth the law regarding temporary custody orders. Today, parties going through a divorce may move for a temporary custody order which will establish temporary custody until the final custody determination is made by the Court. Under the current statutory language, a party seeking a temporary custody order must support their motion with an affidavit setting forth the facts upon which their motion for temporary custody is based. The Court then may award temporary custody, applying the "best interest of the child" standard set forth in KRS 403.270, after a hearing or based solely on the affidavits if there is no objection. This typically ends with joint custody with one parent being designated the "primary residential custodian." This parent receives the majority of time with the child with the other parents getting visitation. HB 492 makes some significant changes to 403.280 that will likely have implications beyond just the temporary custody framework.

As of July 1, 2017, when HB 492, takes effect:

1. Parties to a custody proceeding may create their own temporary custody agreement which, if it adequately provides for the welfare of the child, shall become the temporary custody order of the court.

2. If the parties do not reach an agreement and the decision is left to the court, there is now a presumption, rebuttable by a preponderance of the evidence, that the parents (or de facto custodian) shall share joint custody with equal parenting time.

3. If the court finds that equal parenting time is not appropriate, the court shall create a time schedule which maximizes each parent's time with the child and ensures the child's welfare.

4. The court must include specific findings of fact and conclusions of law in its temporary custody order unless it adopts the agreement of the parties.

5. The court's order must address how the physical exchange of the child will take place.

6. A party can seek modification of the court's order, subject to KRS 403.320(4) and 403.340(5), when there is a material and substantial change in the circumstances.

The aforementioned changes to the statute are significant, not just for temporary custody arrangements but for final custody adjudications as well, and have the potential to create changes across the custody spectrum. Parties are likely to argue that, if equal timesharing and joint custody is a rebuttable presumption in temporary custody orders, why should it not be in final custody determinations?

Give us a call to see whether this new statutory language will have an effect on your custody arrangement.

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