Baldwins Kentucky Revised Statutes AnnotatedTitle XXXV. Domesti.docx

Baldwin's Kentucky Revised Statutes Annotated
Title XXXV. Domestic Relations
SuperBrowse Chapter 403. Dissolution of Marriage; Child Custody (Refs & Annos)
SuperBrowse Custody

1. Proposed Legislation
Effective: July 14, 2018
KRS § 403.270
403.270 Custodial issues; best interests of child shall determine; rebuttable presumption that joint custody and equally shared parenting time is in child’s best interests; de facto custodian
Currentness
(1) (a) As used in this chapter and KRS 405.020, unless the context requires otherwise, “de facto custodian” means a person who has been shown by clear and convincing evidence to have 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 or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.
(b) A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian established in paragraph (a) of this subsection. Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section and KRS 403.280, 403.340, 403.350, 403.822, and 405.020.
(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. Subject to KRS 403.315, there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare. The court shall consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his or her custody;
(b) The wishes of the child as to his or her custodian, with due consideration given to the influence a parent or de facto custodian may have over the child's wishes;
(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;
(d) The motivation of the adults participating in the custody proceeding;
(e) The child's adjustment and continuing proximity to his or her home, school, and community;
(f) The mental and physical health of all in.

1. Baldwin's Kentucky Revised Statutes Annotated
Title XXXV. Domestic Relations
SuperBrowse Chapter 403. Dissolution of Marriage; Child
Custody (Refs & Annos)
SuperBrowse Custody

1. Proposed Legislation
Effective: July 14, 2018
KRS § 403.270
403.270 Custodial issues; best interests of child shall
determine; rebuttable presumption that joint custody and
equally shared parenting time is in child’s best interests; de
facto custodian
Currentness
(1) (a) As used in this chapter and KRS 405.020, unless the
context requires otherwise, “de facto custodian” means a person
who has been shown by clear and convincing evidence to have
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 or has been placed by the Department for
Community Based Services. Any period of time after a legal
proceeding has been commenced by a parent seeking to regain
custody of the child shall not be included in determining
whether the child has resided with the person for the required
minimum period.
(b) A person shall not be a de facto custodian until a court
determines by clear and convincing evidence that the person
meets the definition of de facto custodian established in
paragraph (a) of this subsection. Once a court determines that a
person meets the definition of de facto custodian, the court shall
give the person the same standing in custody matters that is
given to each parent under this section and KRS

2. 403.280, 403.340, 403.350, 403.822, and 405.020.
(2) The court shall determine custody in accordance with the
best interests of the child and equal consideration shall be given
to each parent and to any de facto custodian. Subject to KRS
403.315, there shall be a presumption, rebuttable by a
preponderance of evidence, that joint custody and equally
shared parenting time is in the best interest of the child. If a
deviation from equal parenting time is warranted, the court shall
construct a parenting time schedule which maximizes the time
each parent or de facto custodian has with the child and is
consistent with ensuring the child's welfare. The court shall
consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any de facto
custodian, as to his or her custody;
(b) The wishes of the child as to his or her custodian, with due
consideration given to the influence a parent or de facto
custodian may have over the child's wishes;
(c) The interaction and interrelationship of the child with his or
her parent or parents, his or her siblings, and any other person
who may significantly affect the child's best interests;
(d) The motivation of the adults participating in the custody
proceeding;
(e) The child's adjustment and continuing proximity to his or
her home, school, and community;
(f) The mental and physical health of all individuals involved;
(g) A finding by the court that domestic violence and abuse, as
defined in KRS 403.720, has been committed by one (1) of the
parties against a child of the parties or against another party.
The court shall determine the extent to which the domestic
violence and abuse has affected the child and the child's
relationship to each party, with due consideration given to
efforts made by a party toward the completion of any domestic
violence treatment, counseling, or program;
(h) The extent to which the child has been cared for, nurtured,
and supported by any de facto custodian;
(i) The intent of the parent or parents in placing the child with a

3. de facto custodian;
(j) The circumstances under which the child was placed or
allowed to remain in the custody of a de facto custodian,
including whether the parent now seeking custody was
previously prevented from doing so as a result of domestic
violence as defined in KRS 403.720 and whether the child was
placed with a de facto custodian to allow the parent now
seeking custody to seek employment, work, or attend school;
and
(k) The likelihood a party will allow the child frequent,
meaningful, and continuing contact with the other parent or de
facto custodian, except that the court shall not consider this
likelihood if there is a finding that the other parent or de facto
custodian engaged in domestic violence and abuse, as defined
in KRS 403.720, against the party or a child and that a
continuing relationship with the other parent will endanger the
health or safety of either that party or the child..
(3) The abandonment of the family residence by a custodial
party shall not be considered where said party was physically
harmed or was seriously threatened with physical harm by his or
her spouse, when such harm or threat of harm was causally
related to the abandonment.
(4) If the court grants custody to a de facto custodian, the de
facto custodian shall have legal custody under the laws of the
Commonwealth.
Credits
HISTORY: 2018 c 198, § 1, eff. 7-14-18; 2004 c 133, § 42, eff.
7-13-04; 2000 c 14, § 51, eff. 7-14-00; 1998 c 250, § 1, eff. 7-
15-98; 1992 c 169, § 2, eff. 7-14-92; 1980 c 158, § 1; 1978 c
369, § 1, c 86, § 1; 1972 c 182, § 17
Notes of Decisions (295)
KRS § 403.270, KY ST § 403.270
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session
KRS § 403.290
403.290 Child; court may interview, court may seek advice of

4. professional personnel
Currentness
(1) The court may interview the child in chambers to ascertain
the child's wishes as to his custodian and as to visitation. The
court may permit counsel to be present at the interview. The
court shall cause a record of the interview to be made and to be
part of the record in the case.
(2) The court may seek the advice of professional personnel,
whether or not employed by the court on a regular basis. The
advice given shall be in writing and made available by the court
to counsel upon request. Counsel may examine as a witness any
professional personnel consulted by the court.Credits
HISTORY: 1972 c 182, § 19, eff. 6-16-72
KRS § 403.212
403.212 Child support guidelines; terms to be applied in
calculations; table
Currentness
(1) The following provisions and child support table shall be the
child support guidelines established for the Commonwealth of
Kentucky.
(2) For the purposes of the child support guidelines:
(a) “Income” means actual gross income of the parent if
employed to full capacity or potential income if unemployed or
underemployed.
(b) “Gross income” includes income from any source, except as
excluded in this subsection, and includes but is not limited to
income from salaries, wages, retirement and pension funds,
commissions, bonuses, dividends, severance pay, pensions,
interest, trust income, annuities, capital gains, Social Security
benefits, workers' compensation benefits, unemployment
insurance benefits, disability insurance benefits, Supplemental
Security Income (SSI), gifts, prizes, and alimony or
maintenance received. Specifically excluded are benefits
received from means-tested public assistance programs,
including but not limited to public assistance as defined under
Title IV-A of the Federal Social Security Act1, and food

5. stamps.
(c) For income from self-employment, rent, royalties,
proprietorship of a business, or joint ownership of a partnership
or closely held corporation, “gross income” means gross
receipts minus ordinary and necessary expenses required for
self-employment or business operation. Straight-line
depreciation, using Internal Revenue Service (IRS) guidelines,
shall be the only allowable method of calculating depreciation
expense in determining gross income. Specifically excluded
from ordinary and necessary expenses for purposes of this
guideline shall be investment tax credits or any other business
expenses inappropriate for determining gross income for
purposes of calculating child support. Income and expenses
from self-employment or operation of a business shall be
carefully reviewed to determine an appropriate level of gross
income available to the parent to satisfy a child support
obligation. In most cases, this amount will differ from a
determination of business income for tax purposes. Expense
reimbursement or in-kind payments received by a parent in the
course of employment, self-employment, or operation of a
business or personal use of business property or payments of
expenses by a business, shall be counted as income if they are
significant and reduce personal living expenses such as a
company or business car, free housing, reimbursed meals, or
club dues.
(d) If a parent is voluntarily unemployed or underemployed,
child support shall be calculated based on a determination of
potential income, except that a determination of potential
income shall not be made for a parent who is physically or
mentally incapacitated or is caring for a very young child, age
three (3) or younger, for whom the parents owe a joint legal
responsibility. Potential income shall be determined based upon
employment potential and probable earnings level based on the
obligor's or obligee's recent work history, occupational
qualifications, and prevailing job opportunities and earnings
levels in the community. A court may find a parent to be

6. voluntarily unemployed or underemployed without finding that
the parent intended to avoid or reduce the child support
obligation.
(e) “Imputed child support obligation” means the amount of
child support the parent would be required to pay from
application of the child support guidelines.
(f) Income statements of the parents shall be verified by
documentation of both current and past income. Suitable
documentation shall include, but shall not be limited to, income
tax returns, paystubs, employer statements, or receipts and
expenses if self-employed.
(g) “Combined monthly adjusted parental gross income” means
the combined monthly gross incomes of both parents, less any
of the following payments made by the parent:
1. The amount of pre-existing orders for current maintenance
for prior spouses to the extent payment is actually made and the
amount of current maintenance, if any, ordered paid in the
proceeding before the court;
2. The amount of pre-existing orders of current child support for
prior-born children to the extent payment is actually made under
those orders; and
3. A deduction for the support to the extent payment is made, if
a parent is legally responsible for and is actually providing
support for other prior-born children who are not the subject of
a particular proceeding. If the prior-born children reside with
that parent, an “imputed child support obligation” shall be
allowed in the amount which would result from application of
the guidelines for the support of the prior-born children.
(h) “Split custody arrangement” means a situation where each
parent is the residential custodian for one (1) or more children
for whom the parents share a joint legal responsibility.
(3) The child support obligation set forth in the child support
guidelines table shall be divided between the parents in
proportion to their combined monthly adjusted parental gross
income.
(4) The child support obligation shall be the appropriate amount

7. for the number of children in the table for whom the parents
share a joint legal responsibility. The minimum amount of child
support shall be sixty dollars ($60) per month.
(5) The court may use its judicial discretion in determining
child support in circumstances where combined adjusted
parental gross income exceeds the uppermost levels of the
guideline table.
(6) The child support obligation in a split custody arrangement
shall be calculated in the following manner:
(a) Two (2) separate child support obligation worksheets shall
be prepared, one (1) for each household, using the number of
children born of the relationship in each separate household,
rather than the total number of children born of the relationship.
(b) The nonresidential custodian with the greater monthly
obligation amount shall pay the difference between the
obligation amounts, as determined by the worksheets, to the
other parent.
(7) The child support guidelines table is as follows:
COMBINED
MONTHLY
ADJUSTED
PARENTAL
GROSS
INCOME
ONE CHILD
TWO
CHILDREN
THREE
FOUR
FIVE
SIX OR MORE

8. $ 0
$ 60
$ 60
$ 60
$ 60
$ 60
$ 60
100
60
60
60
60
60
60
200
70
70
70
70
70
70
300
80
80
80
80
80
80
400
90
90
90

9. 90
90
90
500
100
105
110
115
120
125
600
120
125
130
135
140
145
700
140
156
161
166
171
176
800
160
203
208
213
218
223
900
180
261
266
271

10. 276
281
1,000
195
303
325
330
335
340
1,100
212
324
384
389
394
399
1,200
229
346
433
446
451
456
1,300
246
367
460
504
510
515
1,400
262
392
491
554
576

11. 582
1,500
277
417
522
588
642
650
1,600
293
437
548
618
674
717
1,700
308
458
574
647
706
755
1,800
322
478
599
675
736
788
1,900
336
495
620
699
763
816

12. 2,000
350
512
642
723
789
844
2,100
364
529
663
747
815
872
2,200
376
546
684
771
841
900
2,300
389
563
706
795
868
928
2,400
401
580
727
819
894
956
2,500

13. 413
597
749
843
920
984
2,600
424
614
770
867
946
1,012
2,700
435
630
790
889
970
1,038
2,800
445
646
809
911
994
1,064
2,900
455
662
829
934
1,019
1,090
3,000
465

14. 677
849
956
1,043
1,116
3,100
475
693
868
978
1,067
1,142
3,200
485
709
888
1,001
1,092
1,168
3,300
495
725
908
1,023
1,116
1,194
3,400
506
741
928
1,045
1,140
1,220
3,500
516
757

15. 947
1,067
1,164
1,246
3,600
526
773
967
1,090
1,189
1,272
3,700
536
790
988
1,113
1,215
1,299
3,800
548
808
1,011
1,139
1,243
1,329
3,900
559
826
1,033
1,164
1,270
1,359
4,000
571
844
1,056

16. 1,190
1,298
1,388
4,100
580
862
1,078
1,215
1,326
1,418
4,200
592
880
1,101
1,240
1,353
1,448
4,300
603
898
1,123
1,266
1,381
1,477
4,400
615
916
1,146
1,291
1,409
1,507
4,500
626
933
1,161
1,316

17. 1,435
1,535
4,600
636
949
1,181
1,338
1,459
1,561
4,700
647
964
1,200
1,360
1,483
1,586
4,800
657
980
1,220
1,381
1,507
1,612
4,900
667
995
1,239
1,403
1,531
1,637
5,000
676
1,010
1,257
1,424
1,554

18. 1,661
5,100
686
1,025
1,275
1,444
1,576
1,685
5,200
695
1,039
1,294
1,465
1,599
1,709
5,300
705
1,054
1,312
1,486
1,621
1,733
5,400
714
1,069
1,330
1,506
1,644
1,757
5,500
724
1,083
1,348
1,527
1,666
1,781

19. 5,600
733
1,098
1,367
1,548
1,689
1,805
5,700
743
1,113
1,385
1,568
1,712
1,829
5,800
753
1,127
1,403
1,589
1,734
1,853
5,900
762
1,142
1,421
1,610
1,757
1,877
6,000
772
1,157
1,440
1,630
1,779
1,901
6,100

20. 781
1,171
1,458
1,651
1,802
1,926
6,200
791
1,186
1,476
1,672
1,824
1,950
6,300
800
1,198
1,498
1,690
1,844
1,970
6,400
808
1,209
1,511
1,705
1,860
1,988
6,500
816
1,219
1,524
1,720
1,876
2,005
6,600
823

21. 1,230
1,538
1,735
1,893
2,023
6,700
830
1,240
1,551
1,750
1,909
2,040
6,800
837
1,251
1,564
1,764
1,925
2,058
6,900
844
1,261
1,577
1,779
1,942
2,075
7,000
851
1,272
1,591
1,794
1,958
2,093
7,100
858
1,282

22. 1,604
1,809
1,975
2,110
7,200
865
1,293
1,617
1,824
1,991
2,127
7,300
872
1,303
1,630
1,839
2,007
2,145
7,400
879
1,313
1,644
1,854
2,024
2,162
7,500
885
1,324
1,657
1,869
2,040
2,179
7,600
891
1,333
1,668

23. 1,881
2,053
2,194
7,700
896
1,342
1,679
1,893
2,066
2,208
7,800
901
1,350
1,691
1,905
2,079
2,223
7,900
907
1,359
1,702
1,917
2,093
2,238
8,000
912
1,368
1,713
1,929
2,106
2,252
8,100
917
1,377
1,724
1,941

24. 2,119
2,267
8,200
922
1,386
1,736
1,953
2,133
2,281
8,300
928
1,395
1,747
1,965
2,146
2,296
8,400
933
1,404
1,758
1,977
2,159
2,311
8,500
938
1,413
1,769
1,989
2,173
2,325
8,600
944
1,421
1,780
2,002
2,186

25. 2,340
8,700
949
1,430
1,792
2,014
2,199
2,354
8,800
954
1,437
1,800
2,024
2,210
2,366
8,900
958
1,444
1,809
2,033
2,220
2,376
9,000
962
1,450
1,817
2,042
2,230
2,387
9,100
966
1,457
1,825
2,052
2,241
2,398

26. 9,200
971
1,463
1,833
2,061
2,251
2,408
9,300
975
1,470
1,842
2,070
2,261
2,419
9,400
979
1,476
1,850
2,079
2,271
2,430
9,500
983
1,483
1,858
2,089
2,281
2,440
9,600
988
1,489
1,866
2,098
2,291
2,451
9,700

27. 992
1,496
1,874
2,107
2,301
2,461
9,800
996
1,502
1,883
2,117
2,311
2,472
9,900
1,000
1,508
1,891
2,126
2,321
2,483
10,000
1,005
1,515
1,899
2,165
2,331
2,493
10,400
1,022
1,541
1,932
2,202
2,372
2,536
10,500
1,027

28. 1,548
1,940
2,212
2,382
2,546
10,600
1,032
1,554
1,948
2,221
2,392
2,557
10,700
1,036
1,561
1,956
2,230
2,402
2,567
10,800
1,040
1,567
1,965
2,240
2,412
2,578
10,900
1,044
1,573
1,973
2,249
2,422
2,589
11,000
1,049
1,580

29. 1,981
2,258
2,432
2,599
11,100
1,053
1,587
1,989
2,268
2,443
2,610
11,200
1,058
1,593
1,997
2,277
2,453
2,620
11,300
1,062
1,600
2,005
2,286
2,463
2,631
11,400
1,066
1,606
2,013
2,295
2,473
2,642
11,500
1,070
1,613
2,021

30. 2,305
2,483
2,652
11,600
1,075
1,619
2,029
2,314
2,493
2,663
11,700
1,079
1,626
2,037
2,323
2,503
2,673
11,800
1,084
1,633
2,046
2,333
2,513
2,684
11,900
1,088
1,639
2,054
2,342
2,523
2,695
12,000
1,093
1,646
2,062
2,351

31. 2,533
2,705
12,100
1,097
1,653
2,070
2,361
2,544
2,716
12,200
1,102
1,659
2,078
2,370
2,554
2,726
12,300
1,106
1,666
2,086
2,379
2,564
2,737
12,400
1,110
1,672
2,094
2,388
2,574
2,748
12,500
1,114
1,679
2,102
2,398
2,584

32. 2,758
12,600
1,119
1,685
2,110
2,407
2,594
2,769
12,700
1,123
1,692
2,118
2,416
2,604
2,779
12,800
1,128
1,699
2,127
2,426
2,614
2,790
12,900
1,132
1,705
2,135
2,435
2,624
2,801
13,000
1,137
1,712
2,143
2,444
2,634
2,811

33. 13,100
1,141
1,719
2,151
2,454
2,645
2,822
13,200
1,146
1,725
2,159
2,463
2,665
2,832
13,300
1,150
1,732
2,167
2,472
2,665
2,843
13,400
1,154
1,738
2,175
2,481
2,675
2,854
13,500
1,158
1,745
2,183
2,491
2,685
2,864
13,600

34. 1,163
1,751
2,191
2,500
2,695
2,875
13,700
1,167
1,758
2,199
2,509
2,705
2,885
13,800
1,172
1,765
2,208
2,519
2,715
2,896
13,900
1,176
1,771
2,216
2,528
2,725
2,907
14,000
1,181
1,778
2,224
2,537
2,735
2,917
14,100
1,185

35. 1,785
2,232
2,547
2,746
2,928
14,200
1,190
1,791
2,240
2,556
2,756
2,938
14,300
1,194
1,798
2,248
2,565
2,766
2,949
14,400
1,198
1,804
2,256
2,574
2,776
2,960
14,500
1,202
1,811
2,264
2,584
2,786
2,970
14,600
1,207
1,817

36. 2,272
2,593
2,796
2,981
14,700
1,211
1,824
2,280
2,602
2,806
2,991
14,800
1,216
1,831
2,289
2,612
2,816
3,002
14,900
1,220
1,837
2,297
2,621
2,826
3,013
15,000
1,225
1,844
2,305
2,630
2,836
3,023
Credits
HISTORY: 2000 c 430, § 9, eff. 7-14-00; 1998 c 255, § 20,
c 100, § 8, eff. 7-15-98; 1996 c 365, § 6, eff. 7-15-96; 1994 c
330, § 11, eff. 7-15-94; 1990 c 418, § 3, eff. 7-13-90

37. Notes of Decisions (118)
Footnotes
1
42 U.S.C.A. § 601 et seq.
KRS § 403.212, KY ST § 403.212
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session
Effective: July 14, 2018
KRS § 403.211
403.211 Action to establish or enforce child support; rebuttable
presumption for award; allocation of child-care costs and health
care expenses; order for payment of health care coverage;
noncustodial parent's health plan; attachment of income; credit
for disability payments
Currentness
(1) An action to establish or enforce child support may be
initiated by the parent, custodian, or agency substantially
contributing to the support of the child. The action may be
brought in the county in which the child resides or where the
defendant resides.
(2) At the time of initial establishment of a child support order,
whether temporary or permanent, or in any proceeding to
modify a support order, the child support guidelines in KRS
403.212 shall serve as a rebuttable presumption for the
establishment or modification of the amount of child support.
Courts may deviate from the guidelines where their application
would be unjust or inappropriate. Any deviation shall be
accompanied by a written finding or specific finding on the
record by the court, specifying the reason for the deviation.
(3) A written finding or specific finding on the record that the
application of the guidelines would be unjust or inappropriate in
a particular case shall be sufficient to rebut the presumption and
allow for an appropriate adjustment of the guideline award if
based upon one (1) or more of the following criteria:
(a) A child's extraordinary medical or dental needs;
(b) A child's extraordinary educational, job training, or special

38. needs;
(c) Either parent's own extraordinary needs, such as medical
expenses;
(d) The independent financial resources, if any, of the child or
children;
(e) Combined monthly adjusted parental gross income in excess
of the Kentucky child support guidelines;
(f) The parents of the child, having demonstrated knowledge of
the amount of child support established by the Kentucky child
support guidelines, have agreed to child support different from
the guideline amount. However, no such agreement shall be the
basis of any deviation if public assistance is being paid on
behalf of a child under the provisions of Part D of Title IV of
the Federal Social Security Act1; and
(g) Any similar factor of an extraordinary nature specifically
identified by the court which would make application of the
guidelines inappropriate.
(4) “Extraordinary” as used in this section shall be determined
by the court in its discretion.
(5) When a party has defaulted or the court is otherwise
presented with insufficient evidence to determine gross income,
the court shall order child support based upon the needs of the
child or the previous standard of living of the child, whichever
is greater. An order entered by default or due to insufficient
evidence to determine gross income may be modified upward
and arrearages awarded from the date of the original order if
evidence of gross income is presented within two (2) years
which would have established a higher amount of child support
pursuant to the child support guidelines set forth in KRS
403.212.
(6) The court shall allocate between the parents, in proportion
to their combined monthly adjusted parental gross income,
reasonable and necessary child care costs incurred due to
employment, job search, or education leading to employment, in
addition to the amount ordered under the child support
guidelines.

39. (7) (a) Pursuant to 45 C.F.R. sec. 303.31(a)(2), for the purposes
of this section, “health care coverage” includes fee for service,
health maintenance organization, preferred provider
organization, and other types of private health insurance and
public health care coverage under which medical services could
be provided to a dependent child. If health care coverage is
reasonable in cost and accessible to either parent at the time the
request for coverage is made, the court shall order the parent to
obtain or maintain coverage, and the court shall allocate
between the parents, in proportion to their combined monthly
adjusted parental gross income, the cost of health care coverage
for the child, in addition to the support ordered under the child
support guidelines.
(b) A parent, who has one hundred percent (100%) of the
combined monthly adjusted parental gross income, shall be
entitled to a reduction in gross income of the entire amount of
premiums incurred and paid.
(c) The court shall order the cost of health care coverage of the
child to be paid by either or both parents of the child regardless
of who has physical custody. The court order shall include:
1. A judicial directive designating which parent shall have
financial responsibility for providing health care coverage for
the dependent child, which shall include but not be limited to
health care coverage, payments of necessary health care
deductibles or copayments;
2. If appropriate, cash medical support. “Cash medical support”
means an amount to be paid toward the cost of health care
coverage, fixed payments for ongoing medical costs,
extraordinary medical expenses, or any combination thereof;
and
3. A statement providing that if the designated parent's health
care coverage provides for covered services for dependent
children beyond the age of majority, then any unmarried
children up to twenty-five (25) years of age who are full-time
students enrolled in and attending an accredited educational
institution and who are primarily dependent on the insured

40. parent for maintenance and support shall be covered.
(d) If health care coverage is not reasonable in cost and
accessible at the time the request for the coverage is made, the
court order shall provide for cash medical support until health
care coverage becomes reasonable in cost and accessible.
(8) (a) For purposes of this section, “reasonable in cost” means
that the cost of coverage to the responsible parent does not
exceed five percent (5%) of his or her gross income. The five
percent (5%) standard shall apply to the cost of adding the child
to an existing policy, the difference in the cost between a single
and a family policy, or the cost of acquiring a separate policy to
cover the child. If the parties agree or the court finds good
cause exists, the court may order health care coverage in excess
of five percent (5%) of the parent's gross income.
(b) For purposes of this section, “accessible” means that there
are providers who meet the health care needs of the child and
who are located no more than sixty (60) minutes or sixty (60)
miles from the child's primary residence, except that nothing
shall prohibit use of a provider located more than sixty (60)
minutes or sixty (60) miles from the child's primary residence.
(9) The cost of extraordinary medical expenses shall be
allocated between the parties in proportion to their combined
monthly adjusted parental gross incomes. “Extraordinary
medical expenses” means uninsured expenses in excess of one
hundred dollars ($100) per child per calendar
year. “Extraordinary medical expenses” includes but is not
limited to the costs that are reasonably necessary for medical,
surgical, dental, orthodontal, optometric, nursing, and hospital
services; for professional counseling or psychiatric therapy for
diagnosed medical disorders; and for drugs and medical
supplies, appliances, laboratory, diagnostic, and therapeutic
services.
(10) The court order shall include the Social Security numbers,
provided in accordance with KRS 403.135, of all parties subject
to a support order.
(11) In any case administered by the Cabinet for Health and

41. Family Services, if the parent ordered to provide health care
coverage is enrolled through an insurer but fails to enroll the
child under family coverage, the other parent or the Cabinet for
Health and Family Services may, upon application, enroll the
child.
(12) In any case administered by the cabinet, information
received or transmitted shall not be published or be open for
public inspection, including reasonable evidence of domestic
violence or child abuse if the disclosure of the information
could be harmful to the custodial parent or the child of the
parent. Necessary information and records may be furnished as
specified by KRS 205.175.
(13) In the case in which a parent is obligated to provide health
care coverage, and changes employment, and the new employer
provides health care coverage, the Cabinet for Health and
Family Services shall transfer notice of the provision for
coverage for the child to the employer, which shall operate to
enroll this child in the obligated parent's health plan, unless the
obligated parent contests the notice as specified by KRS
Chapter 13B.
(14) Notwithstanding any other provision of this section, any
wage or income shall not be exempt from attachment or
assignment for the payment of current child support or owed or
to-be-owed child support.
(15) A payment of money received by a child as a result of a
parental disability shall be credited against the child support
obligation of the parent. A payment shall not be counted as
income to either parent when calculating a child support
obligation. An amount received in excess of the child support
obligation shall be credited against a child support arrearage
owed by the parent that accrued subsequent to the date of the
parental disability, but shall not be applied to an arrearage that
accrued prior to the date of disability. The date of disability
shall be as determined by the paying agency.Credits
HISTORY: 2018 c 68, § 1, eff. 7-14-18; 2009 c 82, § 1, eff. 6-
25-09; 2006 c 126, § 4, eff. 7-12-06; 2005 c 99, § 624, eff. 6-

42. 20-05; 2000 c 430, § 18, eff. 7-14-00; 1998 c 255, § 19, c 426, §
579, eff. 7-15-98; 1996 c 328, § 3, eff. 7-15-96; 1994 c 330, §
10, eff. 7-15-94; 1990 c 418, § 2, eff. 7-13-90
Notes of Decisions (70)Footnotes
1
42 U.S.C.A. § 651 to 669b.
KRS § 403.211, KY ST § 403.211
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session

KRS § 403.200
403.200 Maintenance; court may grant order for either spouse
Currentness
(1) In a proceeding for dissolution of marriage or legal
separation, or a proceeding for maintenance following
dissolution of a marriage by a court which lacked personal
jurisdiction over the absent spouse, the court may grant a
maintenance order for either spouse only if it finds that the
spouse seeking maintenance:
(a) Lacks sufficient property, including marital property
apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate
employment or is the custodian of a child whose condition or
circumstances make it appropriate that the custodian not be
required to seek employment outside the home.
(2) The maintenance order shall be in such amounts and for
such periods of time as the court deems just, and after
considering all relevant factors including:
(a) The financial resources of the party seeking maintenance,
including marital property apportioned to him, and his ability to
meet his needs independently, including the extent to which a
provision for support of a child living with the party includes a
sum for that party as custodian;
(b) The time necessary to acquire sufficient education or
training to enable the party seeking maintenance to find
appropriate employment;

43. (c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the
spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought
to meet his needs while meeting those of the spouse seeking
maintenance.Credits
HISTORY: 1972 c 182, § 10, eff. 6-16-72
Notes of Decisions (237)
KRS § 403.200, KY ST § 403.200
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session

Effective: July 12, 2006
KRS § 403.160
403.160 Temporary orders; maintenance, child support,
injunction; disclosure of information on domestic violence or
child abuse
Currentness
(1) In a proceeding for dissolution of marriage or for legal
separation, or in a proceeding for disposition of property or for
maintenance or support following dissolution of the marriage by
a court which lacked personal jurisdiction over the absent
spouse, either party may move for temporary maintenance. The
motion shall be accompanied by an affidavit setting forth the
factual basis for the motion and the amounts requested.
(2) (a) In a proceeding for dissolution of marriage, legal
separation, or child support, either party, with notice to the
opposing party, may move for temporary child support. The
motion shall be accompanied by an affidavit setting forth the
number of children of the marriage and the information required
to calculate the combined adjusted parental gross income set
forth in KRS 403.212(2)(g), and the Social Security numbers,
provided in accordance with KRS 403.135, of all parties subject
to the motion. The court shall, within fourteen (14) days from
the filing of said motion, order an amount of temporary child

44. support based upon the child support guidelines as provided by
law, and the ordered child support shall be retroactive to the
date of the filing of the motion unless otherwise ordered by the
court.
(b) Upon a showing of good cause, either party may move the
court to enter an order for temporary child support without
written or oral notice to the adverse party. After reviewing the
affidavit required by paragraph (a) of this subsection, the court
may issue a temporary child support order based upon the child
support guidelines. The order shall provide that the order
becomes effective seven (7) days following service of the order
and movant's affidavit upon the adverse party unless the adverse
party, within the seven (7) day period, files a motion for a
hearing before the court. The motion for hearing shall be
accompanied by the affidavit required by paragraph (a) of this
subsection. Pending the hearing, the adverse party shall pay
child support in an amount based upon the guidelines and the
adverse party's affidavit. The child support order entered
following the hearing shall be retroactive to the date of the
filing of the motion for temporary support unless otherwise
ordered by the court.
(3) As part of a motion for temporary maintenance or support or
by independent motion accompanied by affidavit, either party
may request the court to issue a temporary injunction or
restraining order pursuant to the Rules of Civil Procedure.
(4) If the court or agent of the court is made aware that there is
reasonable evidence of domestic violence or child abuse, the
court shall determine whether disclosure to any other person of
the information could be harmful to the parent or child, and if
the court determines that disclosure to any person could be
harmful, the court and its agents shall not make the disclosure.
(5) On the basis of the showing made and in conformity
with KRS 403.200, the court may issue a temporary injunction
or restraining order and an order for temporary maintenance in
amounts and on terms just and proper in the circumstances.
(6) A temporary order or temporary injunction:

45. (a) Does not prejudice the rights of the parties or the child
which are to be adjudicated at subsequent hearings in the
proceeding;
(b) May be revoked or modified before final decree on a
showing of the facts necessary to revocation or modification
under the circumstances; and
(c) Terminates when the final decree is entered or when the
petition for dissolution or legal separation is voluntarily
dismissed.Credits
HISTORY: 2006 c 126, § 3, eff. 7-12-06; 2000 c 430, § 15, eff.
7-14-00; 1998 c 255, § 18, eff. 7-15-98; 1996 c 365, § 5, eff. 7-
15-96; 1994 c 330, § 9, eff. 7-15-94; 1990 c 418, § 7, eff. 7-13-
90; 1972 c 182, § 6
LRC NOTES
Legislative Research Commission Note (7-14-00): Although
House Committee Amendment 1 (adopted by the House of
Representatives and concurred in by the Senate) to the General
Assembly version of Senate Bill 218 eliminated a new
paragraph (c) in KRS 403.212(2) that had required a conforming
amendment to this statute to change a cross-reference from
“KRS 403.212(2)(g)” to “KRS 403.212(2)(h)” in subsection
(2)(a) of this statute, the conforming amendment was not
corrected in the floor amendment. Because of this omission and
because of the context of the cross-reference, the change in
subsection (2)(a) of this statute constitutes a manifest clerical
or typographical error and has not been included in codification.
See KRS 7.136(1)(h).
Notes of Decisions (17)
KRS § 403.160, KY ST § 403.160
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session



32 S.W.3d 109
Court of Appeals of Kentucky.

46. Stephanie Kay GOSSETT, Appellant,
v.
Donald Steven GOSSETT, Appellee.
No. 1998–CA–001720–MR.
Oct. 20, 2000.
Synopsis
Ex-wife appealed from an order of the Barren Circuit
Court, Benjamin L. Dickinson, J., which concluded that ex-
husband was entitled to a reduction of his child support
obligation as a matter of law. The Court of Appeals, Johnson,
J., held that whether it was appropriate, for child support
purposes, to impute additional income to ex-husband already
working a full 40 hour week was not an issue of law, but,
rather, was an issue of fact.
Vacated and remanded.
West Headnotes (9)Collapse West Headnotes
Change View
1Child Support
Whether a child support obligor is voluntarily underemployed is
a factual question for the trial court to resolve.
25 Cases that cite this headnote

76EChild Support
76EVProceedings
76EV(C)Hearing
76Ek212Questions of law or fact
(Formerly 285k3.3(6))
2Appeal and Error
Findings of a trial court cannot be disturbed by appellate court
if they are supported by substantial evidence. Rules Civ.Proc.,
Rule 52.01.
12 Cases that cite this headnote

30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review

47. 30XVI(D)10Sufficiency of Evidence
30k3459Substantial Evidence
30k3460In general
(Formerly 30k1010.1(6))
3Child Support
Purpose of the statutes and the guidelines relating to child
support is to secure the support needed by the children
commensurate with the ability of the parents to meet those
needs.
4 Cases that cite this headnote

76EChild Support
76EIIn General
76Ek2Constitutional and Statutory Provisions
76Ek5Purpose
(Formerly 285k3.1(1))

76EChild Support
76EIVAmount and Incidents of Award
76Ek146Construction, operation, and effect of guidelines
(Formerly 285k3.3(7))
4Child Support
Whether it was appropriate, for child support modification
purposes, to impute additional income to ex-husband already
working a full 40 hour week based on his history of overtime
and working two jobs was not an issue of law, but, rather, was
an issue of fact.
3 Cases that cite this headnote

76EChild Support
76EVIModification
76EVI(C)Proceedings
76Ek340Hearing
(Formerly 134k309.6)
5Child Support
Parent may not voluntarily impoverish himself in order to avoid

48. his child support obligation.
3 Cases that cite this headnote

76EChild Support
76EIIIFactors Considered
76EIII(B)Factors Relating to Custodians and Obligors
76Ek76Misconduct
76Ek79Squandering resources
(Formerly 285k3.1(5))
6Child Support
Even some involuntary changes in circumstances are not
sufficient grounds for modification of parent's child support
obligation if the change is the result of parent's voluntary
action. KRS 402.213.

76EChild Support
76EVIModification
76EVI(A)In General
76Ek234Materiality of change
(Formerly 285k3.3(8))
7Child Support
Fact that ex-husband's reduction in hours was voluntary did not,
as a matter of law, preclude entitlement to reduction in his child
support obligation, where he continued to work full-time after
reduction in hours.
12 Cases that cite this headnote

76EChild Support
76EVIModification
76EVI(B)Particular Factors and Grounds
76EVI(B)2Factors Relating to Obligors
76Ek257Income
76Ek259Voluntary unemployment or underemployment
(Formerly 134k309.2(3))
8Child Support
“Change in circumstances” does not include voluntary changes

49. made for the primary purpose to reduce the support owed for
purposes of statute providing that child support decree may be
modified only upon a showing of a material change in
circumstances that is substantial and continuing. KRS
403.213(1).

76EChild Support
76EVIModification
76EVI(A)In General
76Ek234Materiality of change
(Formerly 285k3.3(8))
9Child Support
Courts should not-and do not-view the freedom to deprive
family members of child support because of personal animosity
or miserliness as one that deserves consideration or protection.

76EChild Support
76EIIIFactors Considered
76EIII(B)Factors Relating to Custodians and Obligors
76Ek70In general
(Formerly 285k3.1(5))
Attorneys and Law Firms
*110William Thomas Klapheke, III Glasgow, KY, for
Appellant.
Robert M. Alexander Glasgow, KY, for Appellee.
Before COMBS, JOHNSON and KNOPF, Judges.
OPINION
JOHNSON, Judge.

Stephanie Kay Gossett has appealed from an order of the Barren
Circuit Court entered on June 12, 1998, which concluded that
Donald Steven Gossett is entitled to a reduction of his child
support obligation as a matter of law. We vacate the order as
entered and remand with directions that the trial court resolve
the factual issues bearing on the issue of Donald's motion for a
reduction in child support.

50. The Gossetts were married in 1984. The union produced two
children: Whitney was born November 17, 1987; Derek was
born January 13, 1995. The parties separated in late 1995, and
their marriage was dissolved on August 12, 1996. The parties
agreed on the resolution of all the issues arising from their
twelve-year marital relationship with the exception of the
appropriate amount of Donald's child support obligation. For a
considerable period prior to the parties' separation, Donald
worked full-time at R.R. Donnelley & Sons and he also worked
part-time at a second job for Barren–Metcalfe Ambulance
Service. Donald would not agree to pay child support calculated
by using both of his incomes, and as a result the issue of the
amount of his child support obligation was litigated before the
domestic relations commissioner. On August 23, 1996, an order
was entered setting child support at $200.13 per week ($867.24
monthly), which amount reflected Donald's total monthly
income from both jobs of $3,555.
In April 1998, Donald moved for a reduction of his child
support obligation. At the hearing conducted on May 11, 1998,
Donald testified that his income had decreased over 40% since
the 1996 hearing, to $2,121 per month. He attributed the
decrease in his income to the fact that he had voluntarily quit
his job with the ambulance service and because he was not
working as much overtime as before at his primary job. He
justified quitting his part-time job in order to have more time
with his family, although he acknowledged, and the record
clearly demonstrates, that he was not having regular visitation
with his children.
*111 In its order, the trial court found and concluded as
follows:
1. The parties were divorced on or about August 13, 1996 in
Barren Circuit Court. The parties have two children under the
age of eighteen. At the time of the divorce [Donald] was
employed at R.R. Donnelley & Sons, Co., and was working all
the overtime that he could and was also working on a part-time
basis with the Barren Metcalfe Ambulance Service and was also

51. doing some other work of a self-employment nature.
2. [Donald's] income at the present time is $2,121.43 per month
and his only source of income is through his employment at
R.R. Donnelley & Sons, Co. This is full-time employment and
[Donald] could not reasonably find work with greater income
potential considering his education, work experience, and the
community in which he lives. The Court finds that [Donald] is
not required by law to maintain more than one job or to work to
the exclusion of any other activities of life.
3. [Donald's] income is $2,121.43 per month. [Stephanie's]
income is $1,278.71 per month. Statutory guidelines provide
that child support should be set at $588.38 per month....
...
2. KRS1 403.212 provides “income” is actual gross income of a
parent if employed to full capacity. This Court concludes that a
full-time job at R.R. Donnelley and Sons, Co., constitutes full
employment. The statutes do not require a person to work at a
second job.
In this appeal, Stephanie argues that considering Donald's
history of working at two jobs and all the overtime he could get
to support his family, the trial court erred in failing to
determine that he was voluntarily underemployed as
contemplated by the statutes relating to child support for
purposes of addressing his motion for modification. She further
insists that the trial court abused its discretion in reducing
Donald's support obligation where the evidence is
uncontradicted that Donald willfully and voluntarily reduced his
ability to earn income.
Donald argues that the trial court was “able to judge for itself
[his] credibility and sincerity [ ], as well as the reasonableness
of his actions, and found that [he] was not voluntarily
underemployed.” Elsewhere in his brief, Donald states that
whether he is voluntarily underemployed is a “factual
determination” which the trial court resolved in his favor.
12We agree that whether a child support obligor is voluntarily
underemployed is a factual question for the trial court to

52. resolve. Certainly, the findings of a trial court cannot be
disturbed by this Court if they are supported by substantial
evidence.2 However, as we view the order from which this
appeal has been taken, the trial court did not make a factual
determination, but rather held, as a matter of law, that a child
support obligor could not be required to work at two jobs and,
for that reason alone, refused to impute to Donald any income
other than his salary of R.R. Donnelley.
The statutory provisions relevant to this appeal provide as
follows:
“Income” means actual gross income of the parent if employed
to full capacity or potential income if unemployed or
underemployed.3
If a parent is voluntarily unemployed or underemployed, child
support shall be calculated based on a determination of potential
income, except that a determination of potential income shall
not be made for a parent who is physically or mentally
incapacitated or is caring for a very young child, age three (3)
or younger, for whom the parents owe a joint legal
responsibility. Potential income *112 shall be determined based
upon employment potential and probable earnings level based
on the obligor's or obligee's recent work history, occupational
qualifications, and prevailing job opportunities and earnings
levels in the community. A court may find a parent to be
voluntarily unemployed or underemployed without finding that
the parent intended to avoid or reduce the child support
obligation.4
The Kentucky child support guidelines may be used by the
parent, custodian, or agency substantially contributing to the
support of the child as the basis for periodic updates of child
support obligations and for modification of child support orders
for health care. The provisions of any decree respecting child
support may be modified only as to installments accruing
subsequent to the filing of the motion for modification and only
upon a showing of a material change in circumstances that is
substantial and continuing.5

53. 34The purpose of the statutes and the guidelines relating to
child support is to secure the support needed by the children
commensurate with the ability of the parents to meet those
needs. “Both our statutory scheme and our case law demand that
whenever possible the children of a marriage should be
supported in such a way as to maintain the standard of living
they would have enjoyed had the marriage not been
dissolved.”6KRS 403.212

mandates that earnings and income from all sources be
considered when setting child support. While we agree that it is
generally not appropriate to impute additional income to a
parent already working a full 40 hour week, we disagree with
the trial court's resolution of the issue as one of law. Rather, we
believe that the issue is one of fact as reflected in the following
reasoning employed by the Virginia Court of Appeals when
confronted with the issue:

[A]s a general rule a court should not impute to a person income
from more than one job. However, this is not a rule to be
applied in all cases as a matter of law. Depending upon the
circumstances peculiar to each case, particularly where there is
a history of a spouse having had two jobs, the trial court may
find it appropriate to consider imputing to a spouse income
from more than one job. The court should consider the previous
history of employment, the occupational qualifications, the
extent to which the parent may be under employed in the
primary job, the health of the individual, the needs of the
family, the rigors of the primary job and the second job, and all
other circumstances.7
567Cochran, supra concerned the initial setting of child support.
In the case sub judice, Donald was seeking a modification based
on his voluntary reduction in income. It is incumbent upon the
trial court, before addressing the issue in the context of the
above factors, to make findings with respect to Donald's
entitlement to a modification in the first instance. Stephanie

54. argues that a support obligor who voluntarily reduces his
income is not entitled to seek modification. Certainly a parent
may not “voluntarily impoverish himself in order to avoid his
support obligation.”8 Indeed, even some involuntary changes in
circumstances are not sufficient grounds for modification if the
change is the result of the obligor's voluntary
action. *1139 However, in the case sub judice, the trial court
found that Donald continues to work full-time despite his
voluntary reduction in hours. Thus, we are unwilling to hold, as
Stephanie suggests, that Donald is not entitled to a reduction in
his child support as a matter of law.
89The trial court could find from the evidence that Donald quit
his second job and reduced his overtime primarily to reduce his
child support obligation. A “change in circumstances”
contemplated by KRS 403.213(1) does not include voluntary
changes made for the primary purpose to reduce the support
owed. “Courts should not-and do not-view the freedom to
deprive family members of support because of personal
animosity or miserliness as one that deserves consideration or
protection.”10 Thus, on remand the trial court should make
explicit findings concerning the circumstances surrounding
Donald's reduction in his income. On remand, the trial court
should determine whether Donald is entitled to a modification
by using factors similar to those outlined in Cochran, supra.11
Accordingly, the judgment is vacated and the matter is
remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
All Citations
32 S.W.3d 109
Footnotes
1
Kentucky Revised Statutes.
2
Kentucky Rules of Civil Procedure 52.01.
3
KRS 403.212(2)(a).

55. 4
KRS 403.212(2)(d).
5
KRS 403.213(1)6Stewart v. Madera, Ky.App., 744 S.W.2d 437,
439 (1988).
7Cochran v. Cochran, 14 Va.App. 827, 419 S.E.2d 419, (1992).
8
Commonwealth, ex. rel. Marshall v. Marshall, Ky.App.,
15 S.W.3d 396, 401 (2000). See also Downey v.
Rogers, Ky.App., 847 S.W.2d 63, 65 (1993) (support obligor's
inability both to meet his own needs and pay child support
because of consumer debt is not a basis for a reduction in child
support).
9
Marshall, supra (incarcerated support obligor held to be
voluntarily unemployed despite inability to obtain employment).
10
Becker, Spousal and Child Support and the “Voluntary
Reduction of Income” Doctrine, 29 Conn.L.Rev. 647, 658
(1997).
11
The test is similar to the one set forth in Barbarine v.
Barbarine, Ky.App., 925 S.W.2d 831 (1996), which concerns a
motion to reduce maintenance predicated upon the early
retirement of the obligor.

266 S.W.3d 759
Supreme Court of Kentucky.
Christopher M. PENNINGTON, Appellant,
v.
Heather M. MARCUM (f/k/a Miles), Appellee.
No. 2006–SC–000642–DG.
Oct. 23, 2008.As Modified Oct. 24, 2008.
Synopsis
Background: Father brought motion to modify custody or in
alternative to expand visitation/timesharing, in response to

56. mother's attempt to relocate with child to Virginia. The Circuit
Court, Boyd County, Marc I. Rosen, J., overruled motion, and
father appealed. The Court of Appeals affirmed.
Holdings: On review, the Supreme Court, Noble, J., held that:
1 father's motion to modify custody in which he sought to
prevent mother's relocation with child was governed by best
interests of child standard, overruling Fenwick v. Fenwick, 114
S.W.3d 767;
2 trial court had discretion to accept, reject or modify any of
domestic relations commissioner's findings of fact and
recommendations; and
3 trial court had no obligation to conduct second evidentiary
hearing following receipt of domestic relations commissioner's
report and recommendation on father's motion.
Affirmed.
Cunningham, J., filed dissenting opinion in which Venters, J.,
joined.
Venters, J., filed dissenting opinion.
West Headnotes (20)Collapse West Headnotes
Change View
1Child Custody
Natural parents have the superior right to custody above all
others, if they are fit for the charge and have not given up the
right.

76DChild Custody
76DIIGrounds and Factors in General
76DII(B)Factors Relating to Parties Seeking Custody
76Dk42Right of biological parent as to third persons in general
2Child Custody
Under joint custody, both parents have responsibility for and
authority over their children at all times; equal time residing
with each parent is not required, but a flexible division of
physical custody of the children is necessary.
17 Cases that cite this headnote

57. 76DChild Custody
76DIVJoint Custody
76Dk147Physical custody arrangements

76DChild Custody
76DIVJoint Custody
76Dk151Control by and Authority of Parties
76Dk152In general
3Child Custody
A significant and unique aspect of full joint custody is that both
parents possess the rights, privileges, and responsibilities
associated with parenting and are expected to consult and
participate equally in the child's upbringing.
16 Cases that cite this headnote

76DChild Custody
76DIVJoint Custody
76Dk127Ability of parents to cooperate

76DChild Custody
76DIVJoint Custody
76Dk151Control by and Authority of Parties
76Dk152In general
4Child Custody
Prior to entry of a decree, a court may enter temporary custody
orders and may determine timesharing/visitation, which may be
modified whenever it is in the child's best interests to do so;
any such decisions are “pendente lite,” “interlocutory” or “non-
final”. KRS 403.280, 403.320.
16 Cases that cite this headnote

76DChild Custody
76DVIIParticular Status or Relationship
76DVII(D)Termination of Parents' Marriage
76Dk321Pending Proceedings
76Dk323Power and authority of court

58. 76DChild Custody
76DVIIParticular Status or Relationship
76DVII(D)Termination of Parents' Marriage
76Dk321Pending Proceedings
76Dk325Visitation

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk578Particular status or relationship
5Child Custody
When the court is making its final and appealable custody
decree, it must do so based on the “best interests of the child”
standard. KRS 403.270.
7 Cases that cite this headnote

76DChild Custody
76DIIGrounds and Factors in General
76DII(C)Factors Relating to Child
76Dk76Welfare and best interest of child

76DChild Custody
76DXIIIAppeal or Judicial Review
76Dk902Decisions reviewable
6Child Custody
When a final custody decree has been entered, and a relocation
motion arises within two years of the decree, any post-decree
determination made by the court is a modification, either of
custody or timesharing/visitation; if a change in custody is
sought within two years of the decree, then the court must apply
statutory standard requiring either serious endangerment or
abandonment to a de facto custodian, but visitation can be
modified upon proper showing, at any time, having no two-year
restriction, and, after two years from the date of the custody
decree, the standard reverts to review of the best interests of the

59. child. KRS 403.340.
29 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk568Parent or custodian's relocation of home

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
7Child Custody
If a parent opposing relocation files a motion to modify custody
within two years of the date of the custody decree, then the
moving party must establish that the move or other reason
seriously endangers the child or that the child has been
abandoned to a de facto custodian in order to modify custody; if
the standard is met, and custody is changed, then that parent as
sole custodian could prevent relocation of the child, but if the
only interest of the opposing party is to object to relocating the
child, but not to alter joint decision-making, then he is seeking
to have the existing visitation/timesharing arrangement
changed, and need only establish that it is in the child's best
interests not to relocate. KRS 403.320(3).
26 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk568Parent or custodian's relocation of home

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation

60. 8Statutes
As a matter of statutory construction, the more specific statute
controls.

361Statutes
361IIIConstruction
361III(G)Other Law, Construction with Reference to
361k1210Other Statutes
361k1217General and specific statutes
(Formerly 361k223.4)
9Child Custody
If a motion for change of custody challenging a parent
relocation with the child is made more than two years after the
date of the custody decree, the court must evaluate custody
based on the best interests of the child, and determine whether a
change of custody from joint to sole should occur on that basis;
if so, relocation of the child will be prevented, but if not, the
question converts itself to whether the change in
visitation/timesharing, either due to allowing relocation or
denying it, is in the best interest of the child. KRS
403.320, 403.340.
39 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk576Joint custody

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
10Child Custody
The change of custody motion or modification of
visitation/timesharing must be decided in the sound discretion
of the trial court. KRS 403.320, 403.340.

61. 46 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(A)In General
76Dk551Discretion

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
11Child Custody
Since neither the “serious endangerment” or “best interests”
standards with respect to child custody is defined, it is left to
the sound discretion of the trial court whether the party
opposing relocation has met his burden on either a modification
of custody or visitation/timesharing. KRS 403.320, 403.340.
21 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk568Parent or custodian's relocation of home

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
12Child Custody
The party seeking modification of custody or
visitation/timesharing is the party who has the burden of
bringing the motion before the court. KRS 403.320, 403.340.
18 Cases that cite this headnote

76DChild Custody
76DIXModification

62. 76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
13Child Custody
A residential parent who wishes only to change the
visitation/timesharing due to his relocating with the child may
bring the motion to modify visitation/timesharing, but if that
parent believes that the relocation will make a joint custody
arrangement unworkable, then the motion should be made for a
change of custody from joint to sole custody. KRS
403.320, 403.340.
66 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
14Child Custody
When one parent indicates an interest in relocating with the
child, the parent opposed need not wait, but could file his own
motion to modify custody or for change of
visitation/timesharing. KRS 403.320, 403.340.
11 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
15Child Custody
If neither party wishes to change the nature of the custody of
the child, and the court determines that it is in the best interest

63. of the child to relocate with one parent, the other parent's
visitation/timesharing would be modified to an accommodation
as reasonable as possible given the distance of the relocation
and the means of the parties. KRS 403.320.
22 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
16Child Custody
Post-judgment motion to modify custody brought by father in
opposition to mother's relocation with child to Virginia, or in
alternative to give him extended visitation or timesharing with
child, was essentially request for modification of
visitation/timesharing, and thus, was governed by best interests
of child standard. KRS 403.320.
15 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
17Child Custody
The trial court has the right to reevaluate the evidence presented
before a domestic relations commissioner in child custody
modification proceeding and reach a differing conclusion from
the commissioner.

76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)3Hearing and Determination
76Dk652Reference
18Court Commissioners
The trial commissioner acts only to further judicial economy by

64. assisting the trial court; the commissioner's report is a
recommendation and is not binding. Rules Civ.Proc., Rule
53.06(2).
2 Cases that cite this headnote

105Court Commissioners
105k3Powers, functions, and liabilities in general

105Court Commissioners
105k5Procedure
19Child Custody
Trial court had discretion to accept, reject or modify any of
domestic relations commissioner's findings of fact and
recommendations on father's motion to modify custody.
2 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)3Hearing and Determination
76Dk652Reference
20Child Custody
Trial court had no obligation to conduct second evidentiary
hearing following receipt of domestic relations commissioner's
report and recommendation on father's motion to modify
custody.

76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)3Hearing and Determination
76Dk652Reference
Attorneys and Law Firms
*761Rhonda M. Copley Ashland, KY, Counsel for Appellant.
Martha Alice Rosenberg, Lexington, KY, Counsel for Appellee.
Opinion

65. Opinion of the Court by Justice NOBLE.
The Appellant, Christopher M. Pennington, appeals the order
from the Boyd Circuit Court dated October 31, 2005. The
Appellant argues that the trial court abused its discretion by
setting forth findings of fact contrary to the recommendation of
the domestic relations commissioner without conducting an
evidentiary hearing or considering the testimony presented.
Additionally, the Appellant argues that the Boyd Circuit Court
erred when it overruled a motion to modify custody pursuant to
the best interests of the child and submits that relocation with a
minor child is sufficient to trigger a modification hearing
pursuant to KRS 403.340. After reviewing the record, the
applicable statutes, and relevant case law, this Court finds no
abuse of discretion by the trial *762 court, there being
substantial evidence to support the trial court's findings in favor
of the Appellee, Heather M. Marcum. The Court of Appeals is
affirmed for the reasons stated herein.
I. Background
On May 17, 1999, Mikayla L. Pennington was born to the
Appellant, Christopher M. Pennington, and the Appellee,
Heather M. Miles. The couple was never married but resided
together for approximately one year after the birth of Mikayla.
By Agreed Order entered February 7, 2001, which was the final
custody decree, the parties received joint custody of Mikayla
with the Appellee designated as having “joint physical custody
(residential parent)” and the Appellant receiving “liberal
visitation” of at least two days per week.
In 2002, the Appellee married Jeremy Marcum and moved to
West Virginia. The Appellant remained in Boyd County where
he married and was employed at Kings Daughters Medical
Center though he continued to spend his agreed-upon time with
Mikayla. Various motions were filed concerning visitation and
support from time to time. However, it was not until after the
Appellee and her husband subsequently relocated to
Appomattox, Virginia (approximately six hours from the
Appellant's home), that the Appellant filed a motion asking the

66. court to “award custody of the minor child” to him, on or about
July 28, 2004, more than two years after entry of the custody
decree. However, in his supporting affidavit he asked that he be
granted “primary custody” or in the alternative, that the court
“modify visitation” to give him extended contact “of at least
every weekend.” No modification motion had been filed when
Appellee initially moved to West Virginia.
On referral from Boyd Circuit Court, the domestic relations
commissioner held an evidentiary hearing and recommended
that the parties continue to have joint custody, but changed
“primary physical custody” to Appellant, with Appellee to have
“secondary physical custody with liberal visitation.” The
commissioner emphasized that the Appellant was actively
involved in his daughter's life, he and his wife arranged their
work schedules so that one adult would be at home with
Mikayla and the couple's other children at all times, that the
Appellee provided no advance notice to the Appellant of her
move to Appomattox, Virginia, and that the Appellee generally
did not consult with the Appellant when making decisions
regarding Mikayla.
The Appellee filed exceptions to the report and the circuit judge
conducted a hearing on August 22, 2005. On October 31, 2005,
the court sustained the Appellee's exception to the award of
primary physical custody to the Appellant. The Boyd Circuit
Court specifically noted in its October 31, 2005 Order that it
was “not inclined to end a 6–year relationship with a parent
merely because the parent remarries and moves to a different
location.” Additionally, the Boyd Circuit Court found Mikayla
to be well-adjusted in her new environment, including school,
and involved with several extracurricular activities. Most
importantly, the court ruled “that it would be in the best interest
of the minor child for the parties to continue to have joint
custody, but for the Respondent [mother] to have primary
physical custody and the Petitioner [father] to have secondary
custody with liberal visitation as the parties have been
exercising.”

67. This appeal followed. The Court of Appeals found there was
substantial evidence to support the Boyd Circuit Court's finding
in favor of the Appellee and affirmed the custody order. We
now affirm, but for the reasons stated herein. Further,
because *763 questions regarding relocation and its effect on
custody continue to be problematic, the Court will address the
nature of child custody, the effects of relocations, and when and
how motions relating to relocation after a custody award should
be brought, in an effort to establish clear precedent.
II. Analysis
A. General Discussion
1At the heart of all relationships between parents and children
is the legal concept of custody. Custody of children is
traditionally described as the care, control and maintenance of
the children, Black's Law Dictionary 725 (8th ed.2004), with
natural parents having the superior right to custody above all
others, if they are fit for the charge and have not given up the
right. Welsh v. Young, 240 S.W.2d 584, 586 (Ky.1951).
Historically, the guardian by nature of the child was the father,
and on his death, the mother. For children born out-of-wedlock,
the guardian was the mother. Black's Law Dictionary 725 (8th
ed.2004). Today, both parents are recognized as having the right
to custody, KRS 403.270; putative fathers may seek and obtain
custody, KRS 405.051; and de facto custodians have the same
right to seek custody as the father and mother, KRS 403.270.
While there are a larger number of children born out-of-wedlock
today than ever before, the majority of children are still born to
a married couple, consisting of a mother and a father, with
custody questions arising in relation to a divorce.1
As a consequence of the fault-based divorce scheme, sole
custody was the rule for most of the 20th century. As a marital
couple, both parents enjoyed full parenting rights and
responsibilities; however, the dissolution of the marital bond
not only altered the relationship of the parties but also altered
the relationship between the parties and any children they might
share. The “innocent” spouse who obtained divorce on

68. appropriate grounds (adultery, insanity, indignities,
imprisonment, bigamy, cruel treatment, or desertion) was
generally deemed the fit parent. The sole custodian possessed
full control and singular decision-making responsibility for his
or her children to the exclusion of the other parent who received
a limited period of access to the children through visitation, a
term which denoted the right to see the children, but not to
control them legally. During this time, custodial preference
under the law evolved from father first, then to the mother first
under the tender years presumption, and finally to equal
consideration of both parents seeking sole custody. See
generally Mary Kate Kearney, The New Paradigm in Custody
Law: Looking at the Parents with a Loving Eye, 28 Ariz. State
L.J. 543, 546–50 (1996).
In 1972, the Kentucky General Assembly enacted KRS 403.110
et seq. following a national trend to permit no-fault divorces.
With the passage of the no-fault divorce statutes, the
Commonwealth's role changed from restricting access to divorce
to permitting either spouse to unilaterally sever the marital
bond. Still, the goal of the Commonwealth remained
unchanged—to preserve family relationships. An explicitly
stated purpose of the chapter is to promote the integrity of
marriage and safeguard family relationships. KRS 403.110(1).
At its inception, the no-fault *764 divorce scheme showcased
the state's emerging role as maintaining the indissolubility of
parenthood after the dissolution of the marital relationship by
permitting joint custody of the couple's children.
During the 1970s and 1980s, American society was making
rapid changes. Women of child-bearing and -rearing age were
increasingly joining the civilian labor force, so that by 1980,
over half of that group were working outside the home.2 In part
because the “stay-at-home Mom” was an increasingly less
conventional parenting role, fathers began taking more active
roles in the day-to-day lives of their children. Consequently, at
the dissolution of the marriage both parties began seeking a
custody arrangement that allowed them to pursue livelihoods to

69. maintain households and provide for their families, but also
permitted them to function as available, responsible decision-
makers for their children.
In 1992, the Kentucky Court of Appeals decided Chalupa v.
Chalupa, 830 S.W.2d 391 (Ky.App.1992), which included an
open endorsement of joint custody over sole custody. The Court
of Appeals concluded that it was in the best interests of children
for both their parents to be regularly involved in their lives. The
court recognized the dynamic nature of family law and stated:
Joint custody is also a natural progression of our no fault
divorce concept, recognizing that both parties may be fit parents
but not compatible to be married to each other. A divorce from
a spouse is not a divorce from their children, nor should custody
decisions be used as a punishment. Joint custody can benefit the
children, the divorced parents, and society in general by having
both parents involved in the children's upbringing.
Id. at 393 (citation omitted). Though the Kentucky Supreme
Court declined to adopt the Chalupa preference for joint custody
over sole custody in Squires v. Squires, 854 S.W.2d 765, 769
(Ky.1993), and KRS 403.270 mandates that custodial
determinations are to be made individually in light of the child's
best interests, joint custody has emerged as the most prevalent
custodial arrangement.
23Joint custody as a legal concept has several defining
characteristics. Both parents have responsibility for and
authority over their children at all times. Equal time residing
with each parent is not required, but a flexible division of
physical custody of the children is necessary. A significant and
unique aspect of full joint custody is that both parents possess
the rights, privileges, and responsibilities associated with
parenting and are expected to consult and participate equally in
the child's upbringing.
However, since Kentucky became a no-fault divorce state and
joint custody was deemed an arrangement on equal footing with
sole custody, custodial arrangements have become increasingly
amorphous. Though it is often stated that there are two

70. categories of custody, sole custody and joint custody, there is in
practice a subset of joint custody that combines the concept of
joint custody with some of the patterns of sole custody—often
called “shared custody.” In shared custody, both parents have
legal custody that is subject to some limitations delineated by
agreement or court order. Unlike full joint custody, time sharing
is not necessarily flexible and frequently mirrors a typical sole
custody *765 pattern where the child may live with one parent
during the week and reside with the other on alternate
weekends. The weekend parent does not have “visitation,” a
sole-custody term which is frequently misused in this context,
but rather has “time-sharing,” as he or she is also a legal
custodian. However, in practice, the terms visitation and
timesharing are used interchangeably. Additionally, one parent
may be designated the “primary residential parent,” a term that
is commonly used to denote that the child primarily lives in one
parent's home and identifies it as his home versus “Dad's/Mom's
house.” This concept is frequently misnamed “primary
residential custody.”
A less frequently seen category found in practice is a subset of
sole custody—split custody. In this arrangement, each parent
has sole custody and decision-making authority while the child
is in residence with him or her, and only visitation when the
child is in residence with the other parent. The term “primary
residential custody” may be more appropriate here, depending
on how much time the child spends in residence with each
parent.
Shared and split custody have developed as common-sense
approaches to the realities of modern day life, even though they
are not explicitly expressed in our statutes. Better technical
ability to communicate, employment mobility, a given parent's
ability to meet certain obligations and other such factors lead to
a need for an approach to parenting after divorce that is flexible
and can be customized to the needs of each family involved
with the children. These broad approaches recognize that every
family is unique, and that it is generally in the best interests of

71. the child and parents to maximize contact with both parents.
The “designer” approach of these concepts asks the question,
“What is best for this family? ” This diversity, however, makes
it difficult to apply standardized provisions of the law,
especially when the existing statutes do not fully address all the
permutations that can occur.
B. Modification of Custody or Visitation on Parental Relocation
45At the outset, it should be noted that the effect of relocation
by a parent with the child on custody and visitation must be
viewed as either pre-or post-decree. KRS 403.340, the
modification of custody statute, speaks to modification of a
custody decree. By definition, a decree is a final
judgment, Black's Law Dictionary 440 (8th ed.2004), denoted in
Kentucky law as being “final or appealable.” CR 54.01. Prior to
entry of a decree, a court may enter temporary custody orders
pursuant to KRS 403.280, and may determine
timesharing/visitation pursuant to KRS 403.320, which may be
modified whenever it is in the child's best interests to do so.
Any such decisions are “pendente lite,” “interlocutory” or “non-
final.” As we have determined in a case that was argued with
this one and is being rendered at the same time, Frances v.
Frances, 266 S.W.3d 754, (Ky.2008), when the court is making
its final and appealable custody decree, it must do so based
on KRS 403.270, the best interests standard.
6However, when a final custody decree has been entered, as in
this case, and a relocation motion arises, any post-decree
determination made by the court is a modification, either of
custody or timesharing/visitation. If a change in custody is
sought, KRS 403.340governs. If it is only timesharing/visitation
for which modification is sought, then KRS 403.320 either
applies directly or may be construed to do so.
This pre- or post-decree designation is important when
modification of custody is *766 sought, because of the standard
the trial court must apply when a change is sought within two
years of issuance of the custody decree, the serious
endangerment or abandonment to a de facto custodian standard.

72. Prior to 1972, trial courts in Kentucky could modify custody
decrees upon proof that the conditions under which the original
decree was entered were changed. See Skidmore v.
Skidmore, 261 Ky. 327, 87 S.W.2d 631, 634 (1935); Williams v.
Williams, 290 S.W.2d 788, 789 (Ky.1956); Hatfield v.
Derossett, 339 S.W.2d 631, 632–33 (Ky.1960); Ward v.
Ward, 407 S.W.2d 709, 710 (Ky.1966). Though the “change of
conditions” standard still plays a role in the consideration of
custody modifications, modification must now be evaluated
under the terms of KRS 403.340, originally enacted in 1972,
which contains a two-year limitation period on modification of
custody from the date of the custody decree.3 In 1973, this
Court applied the statute when it first held that a custody decree
cannot be modified within the two-year limit unless one of the
two that a custody decree cannot be modified within the two-
year limit unless one of the two statutory exceptions, serious
endangerment or abandonment to a de facto custodian, is
established. *767Day v. Day, 490 S.W.2d 483 (Ky. 1973). This
was reaffirmed in 1976 when the Court held that a trial court's
sua sponte review and modification of a custody order within
the two year period was in error. Chandler v. Chandler, 535
S.W.2d 71 (Ky. 1976). Visitation, on the other hand, can be
modified upon proper showing, at any time, having no two-year
restriction pursuant to KRS 403.320.4 And, after two years from
the date of the custody decree, the standard reverts to review of
the best interests of the child, either under KRS 403.270 or KRS
403.30(3).
Since Kentucky accepted joint custody as a custodial
arrangement equally tenable and commensurate with sole
custody, and given that very individualized time-sharing
arrangements have developed under shared joint custody or split
sole custody, whether a custodian's relocation with the minor
child changes the inherent nature of the custody the parties have
or merely affects timesharing/visitation has become a frequent
and pertinent question. This issue has been commonly
approached in two ways. Litigants have characterized the

73. motion as one to modify visitation pursuant to KRS 403.320 or
one to modify custody pursuant to KRS 403.340.
The obvious problem is that parties often ask for one thing
when they are actually seeking the other, due to the unique
nature of their shared (joint) custody or split (sole) custody.
Courts have struggled ever since the concept of joint custody
emerged with what part physical or residential possession of the
child plays in each type of custody.5 However, a modification
of custody means more than who has physical possession of the
child. Custody is either sole or joint (or the subsets of each) and
to modify it is to change it from one to the other. On the other
hand, changing how much time a child spends with each parent
does not change the legal nature of the custody ordered in the
decree. This is true whether the parent has sole or joint custody:
decision-making is either vested in one parent or in both, and
how often the child's physical residence changes or the amount
of time spent with each parent does not change this.
This is perhaps too legalistic in a reality-based world. To most
people, having custody means having possession of the child.
Parties have addressed this understanding by applying terms
such as “primary residence” or “residential parent,” in their
agreements. This type of thinking is often inconsistent with the
legal meaning of joint custody, wherein both parents are equal
legal custodians, but is nonetheless prevalent.
*768 In 2003, this Court did an extensive review of custody and
relocation issues in Fenwick v. Fenwick, 114 S.W.3d 767
(Ky.2003), a case that arose when the mother and father, who
had temporary joint custody and nearly equal timesharing,
disputed whether the mother could relocate with their two
daughters a distance of some thirty-five miles to Jefferson
County, Kentucky. The mother filed a motion requesting the
court's approval to relocate with the children. The father
objected, claiming that the move was contrary to the children's
best interests, and asked that if the mother did move, he be
named “primary residential custodian.” In a pendente lite order,
the court found that it was not in the children's best interests to

74. relocate, continued temporary joint custody, and left the mother
designated “primary caregiver,” with the option of relinquishing
that designation if she decided to relocate. This order was later
made the final custody decree on December 8, 1997.
Fenwick has an extensive, learned discussion on the confusion
that surrounds relocation, custody and timesharing/visitation.
However, much of what this Court discussed in Fenwick must
henceforth be disregarded, because this Court applied the wrong
statute. Like the Frances case also rendered today, the
relocation in Fenwick was raised prior to entry of the final
custody decree, and consequently KRS 403.270, with its best
interests standard should have been applied by this Court as it
was by the trial court. Instead, the Fenwick Court focused its
relocation determination on who was the primary residential
parent, which alone is not the proper basis for a modification of
custody.
Rather, had the relocation motion been made post-decree, as it
was in this case, the focus should have been on whether an
actual change in custody was being sought. Fenwick directs the
parent opposing relocation of the children to file a motion for
change of custody pursuant to KRS 403.340, yet subsequently
acknowledges that “the essence of joint custody is shared
decision-making,” and that “the joint custody itself will remain
unaffected by [the mother's] relocation because [the father] will
still be able to continue sharing substantial time with his
children through personal contact and other means....” 114
S.W.3d at 789. If the latter is correct, and it is, then clearly a
parent opposed to relocation, but not seeking a change in joint
custody, does not need to make a motion for a change of
custody, but rather a motion for modification of timesharing.
In a sole custody arrangement, KRS 403.320 speaks clearly to
visitation granted to a “parent not granted custody” and
modification of that visitation based on the best interests of the
child. Modification of the visitation schedule does not alter the
sole nature of the custody. While there is no statute that
specifically addresses modification of timesharing in a joint

75. custody setting, it is reasonable to infer that modifying it does
not alter the nature of joint custody. Also, since the nature of
the custody does not change, the trial court is not bound by the
statutory requirements that must be met for a change of custody,
but can modify timesharing based on the best interests of the
child as is done in modifying visitation.
Thus, the first question on a custody modification or relocation
motion is, “Is the motion actually seeking modification of
custody or visitation/timesharing?” In Fenwick, the mother's
motion to relocate ended up resulting in a modification of
timesharing due to relocation. To oppose it, the father, who did
not want the child to relocate, was directed by this Court to ask
for a modification of custody. However, this would necessitate
that he ask for a change from joint custody to sole
custody, *769 vested in him. What the father in Fenwick really
wanted was to become the primary residential parent, which
would be a modification of timesharing under joint custody. He
was asking the court to consider what is in the best interests of
the child as to where and to what extent the child spends time,
not that he become the sole decision-maker.
However, when the party opposing relocation is truly seeking a
change in custody, from joint to sole (or vice-versa), the second
pertinent question regarding modification of custody is, “When
was the custody decree issued?” This will determine the
standard of review for modification.
78If a parent opposing relocation files a motion to modify
custody within two years of the date of the custody decree, then
the moving party must establish that the move or other reason
seriously endangers the child or that the child has been
abandoned to a de facto custodian in order to modify custody. If
the standard is met, and custody is changed, then that parent as
sole custodian could prevent relocation of the child. But, if the
only interest of the opposing party is to object to relocating the
child, but not to alter joint decision-making, then he is seeking
to have the existing visitation/timesharing arrangement
changed, and need only establish that it is in the child's best

76. interests not to relocate, which would thereby change the
existing visitation/timesharing situation. While this may appear
to undercut the purpose of the two-year limitation in KRS
403.340 on modification of the custody decree, when only
visitation/timesharing modification is sought, the specific
language of KRS 403.320(3) controls, which allows
modification of visitation/timesharing “whenever modification
would serve the best interests of the child,” and specifically
directs that a court “shall not restrict a parent's visitation
rights” unless allowing visitation would seriously endanger the
child. As a matter of statutory construction, the more specific
statute controls.
9If a motion for change of custody is made more than two years
after the date of the custody decree, the court must then
evaluate custody based on the best interests of the child, and
determine whether a change of custody from joint to sole should
occur on that basis. If so, relocation of the child will be
prevented. If not, the question converts itself to whether the
change in visitation/timesharing, either due to allowing
relocation or denying it, is in the best interest of the child.
Obviously, if a parent who has been the primary residential
parent relocates and the child does not, the primary residential
parent will change.
1011Every case will present its own unique facts, and the
change of custody motion or modification of
visitation/timesharing must be decided in the sound discretion
of the trial court. This is true whether the child lives with one
parent in an arrangement like a sole custody arrangement or
whether there is equal timesharing or something in between.
Since “serious endangerment” or “best interests” is not defined,
it is left to the sound discretion of the trial court whether the
party opposing relocation has met his burden on either a
modification of custody or visitation/timesharing.
1213The party seeking modification of custody or
visitation/timesharing is the party who has the burden of
bringing the motion before the court. A residential parent who

77. wishes only to change the visitation/timesharing due to his
relocating with the child may bring the motion to modify
visitation/timesharing under KRS 403.320. If that parent
believes that the relocation will make a joint custody
arrangement unworkable, then the motion *770 should be made
for a change of custody from joint to sole under KRS 403.340.
14Likewise, when one parent indicates an interest in relocating
with the child, the parent opposed need not wait, but could file
his own motion. A parent who has equal or nearly equal
visitation/timesharing and who wants to prevent a child's
relocation with the other parent, but does not want to change
custody from joint to sole, could bring a motion for a change of
visitation/timesharing under KRS 403.320. This could result in
a designation of that parent as primary residential parent if the
child is not allowed to relocate because it is not in his best
interests to do so. If that same parent wants to change custody
from joint to sole custody to him, he must bring the motion for
a change of custody and proceed under KRS 403.340.
15Both parents may need to bring motions if their wishes differ.
For example, if the residential mother makes a motion to modify
visitation/timesharing to allow her to relocate with the child,
the father may need to make a motion for modification of
visitation/timesharing to name him as the residential parent,
which would prevent relocation of the child. Or, the father
could make a motion to be named sole custodian, and if he
could meet his statutory burden, there would be a change of
custody which would also defeat the relocation. If neither party
wishes to change the nature of the custody, and the court
determines that it is in the best interest of the child to relocate
with the mother, the father's visitation/timesharing would be
modified to an accommodation as reasonable as possible given
the distance of the relocation and the means of the parties.
To the extent that this Court's prior decision in Fenwick and its
progeny is inconsistent with this Opinion, it is overruled.
C. Application to this Case
16In this case, the Appellant brought his motion for “custody of

78. the minor child” or, in the alternative, to modify visitation to
give him extended visitation/timesharing of “at least every
weekend,” on or about July 28, 2004, more than two years after
the Order granting joint custody on February 7, 2001. If
Appellant was actually seeking a change of custody from joint
to sole, KRS 403.340(2) which imposes a two-year limitation,
does not apply, and the court was free to look at a custody
modification based on the best interests of the child. Likewise,
if the Appellant was actually seeking only a modification of
visitation/timesharing, the standard the court had to apply is
what is in the best interests of the child. The trial court
specifically stated that its findings were based on “the best
interests” of Mikayla, specifically citing her relationship with
her mother's new family, a new sibling she had been with for
some time, her adjustment to her present home and school, the
fact that Appellee was acknowledged to be a good mother, and
that the parties had been able to work out visitation/timesharing
for a significant period of time. The court determined that the
best interest of the child required retaining the current custody
status. This effectively denied Appellant's motion for a change
of custody. Despite mixing terminology of sole and joint
custody, and awarding an unknown status of “secondary
custody” to Appellant, the trial court actually modified
visitation/timesharing by allowing the relocation which
inevitably altered the when and how of Appellant's time with
his child, but did not alter the nature of the parents' joint
custody. This effectively denied Appellant's alternative motion
for “visitation” every weekend. It *771 is clear that the trial
court had an ample factual basis for its decision and did not
abuse its discretion.
It was appropriate for the Appellant to file the alternative
motions, as he objected to the changes relocation would bring to
his current visitation/timesharing arrangement with his child,
and presumably he also wished to be named sole custodian.
However, Appellee could have also brought a motion to modify
the current visitation/timesharing arrangement due to the

79. changes brought about by her new relocation with the child.
Both parties have an interest, and it is appropriate for either to
seek a modification of visitation/timesharing or custody.
Nonetheless, the issues could be resolved on the Appellant's
motion alone, and the trial court appropriately did so.
17As to whether the trial court erred in relying on the hearing
conducted by the domestic relations commissioner and the
argument of counsel, the circuit court has complete discretion
regarding the use of a commissioner's report. Haley v.
Haley, 573 S.W.2d 354, 356 (Ky.App.1978). Further, the trial
court has the right to reevaluate the evidence and reach a
differing conclusion from the commissioner. Basham v.
Wilkins, 851 S.W.2d 491 (Ky.App.1993). In Eiland v.
Ferrell, 937 S.W.2d 713 (Ky.1997), this Court conclusively
stated that the trial court has broad discretion in actions relying
on commissioner's reports, constrained only by the pertinent
Rules of Civil Procedure.
18Additionally, pursuant to CR 53.06(2), “[t]he court after
hearing may adopt the report, may modify it, or may reject it in
whole or in part, or may receive further evidence, or may
recommit it with instructions.” The trial commissioner acts only
to further judicial economy by assisting the trial court; the
commissioner's report is a recommendation and is not binding.
It is the trial court itself that makes findings of fact, either by
adopting those recommended by the commissioner or by acting
anew. When actions are tried upon facts without a jury, the trial
court's findings will not be set aside unless they are clearly
erroneous and, therefore, require the support of sufficient
evidence. CR 52.01.
1920The Appellant asserts that the findings of the trial court
included in the October 31, 2005 order are in direct
contradiction to the commissioner's findings. That is clearly
within the trial court's discretion. The distinctions between the
findings of the commissioner and the Boyd Circuit Court are
more appropriately characterized as varying constructions of the
same testimony. The commissioner and the Boyd Circuit Court

80. came to similar, yet dissimilarly worded factual findings
agreeing that Mikayla was born to the parties out-of-wedlock,
the Appellant was an active participant in Mikayla's life but she
primarily resided with the Appellee, and that Mikayla was well-
adjusted in her new home in Appomattox, Virginia. It is the
court's legal conclusions that are dramatically different from
those of the commissioner, which is certainly within the court's
authority. As to the claim that the court was required to conduct
a second evidentiary hearing, it is clear that it was not required
to do so. The Boyd Circuit Court appropriately reviewed the
report of the Domestic Relations Commissioner, allowed
arguments by counsel and gave thoughtful consideration to
both. There is no clear factual error and no abuse of discretion.
III. Conclusion
The trial court did not make clearly erroneous findings of fact,
nor did it abuse its sound discretion in relying on the
Domestic *772 Relations Commissioner's report and the
arguments of counsel. Further, the trial court correctly
determined the best interests of the child on the alternative
modification motion made more than two years after the date of
the custody order. The Court of Appeals is affirmed.
ABRAMSON, SCHRODER and SCOTT, JJ., concur.
CUNNINGHAM, J., dissents by separate opinion in
which VENTERS, J., joins.
VENTERS, J., dissents by separate opinion.
MINTON, C.J., not sitting.
Dissenting Opinion by Justice CUNNINGHAM.
I respectfully dissent from the result of the majority while at the
same time applaud much of what Justice Noble says in her
opinion. Her narrative history is much needed in bringing to
light a growing concern in child custody and visitation issues in
our ever increasingly mobile society. I also agree with her
analysis of the proper standard of proof in these kinds of cases.
However, I part ways with the majority because of the lack of
analysis given by the trial court to the issue of relocating a
child who has long had a close relationship with both her

81. mother and her father. This deficiency is in large part caused by
our own failure to provide guidance to trial judges in addressing
this daunting problem. Therefore, I would vacate and remand
for further proceedings consistent with this dissenting opinion.
We can no longer afford the simplistic approach to arbitrarily
allow parents to relocate to distant places simply because the
child is doing fine in the primary physical custody of that
parent. There is a tremendous amount of evidence which
connects frequent residential moves of children of separated
parents to major problems in child adjustment. The effects upon
children being frequently relocated include lower academic
performance and higher rates of problems with depression,
conduct, and peer relationships.1 We are not talking about
moves by intact families where children usually cope and
sometimes even thrive. Relocation by a divorced parent where
the child is torn away from the mother or father is uniquely
different.
In 1998, the prestigious American Academy of Matrimonial
Lawyers took on the difficult problem of parental relocation and
proposed a Model Relocation Act. The Act itself lists several
factors that the trial court should consider before allowing the
relocation of a child.2 While many states have dealt with the
relocation issue through legislation, others have given—as we
should do here—guideposts to trial courts through their highest
courts.3
Of course, each jurisdiction is unique, but there are common
factors running through all. The following are but a few of these
common factors: (1) the age of the child; (2) the purpose of the
move; (3) *773 the distance of the move; (4) the worthiness of
the move for the child when balanced with any negative effects;
(5) the improvement of the child's standard of living; (6) the
physical hardship of travel for the child on visitation with the
non-custodial parent; (7) the presence or absence of extended
family for the child at the new location versus the existing
location; (8) the motivation of the noncustodial parent for
objecting to the move (i.e., is it genuine concern for the child or

82. simply a way of punishing the former spouse?); (9) whether the
non-custodial parent has turned down career advancement
opportunities by not moving away in order to stay close to the
child; (10) the possibility and plausibility of the non-custodial
parent following the child; and (11) the number of times the
custodial parent has moved.4
I search in vain to find attention given by the trial court to any
of these key elements in its custody determination.
It is significant that this is a “joint custody” case and Justice
Noble ably describes how that arrangement places more
responsibility for child rearing on both parents than in a “sole
custody” situation. Here, the non-custodial parent is legally
entitled to be involved in all aspects of the child's life, which is
independent of the time actually spent in the child's presence.
The letter and spirit of Chalupa, a landmark case referred to by
the majority, hovers over these relocation cases. Indeed, “a
divorce from a spouse is not a divorce from their children,”
especially in joint custody cases.5 However, when the custodial
parent moves far away with a child, an effectual “divorce”
occurs between the child and the non-custodial parent.
The trial court in this case gave no treatment whatsoever to the
contributing role of the father in making this child happy and a
good student. There was no consideration of what would happen
when this dual parenthood was cut asunder. The trial judge
stated: “The court is not inclined to end a six year relationship
of a child with a parent merely because that parent remarries
and moves to a different location.” The essence of the trial
court's findings dealt only with uncontroverted issues; the
parties never contested that both were good parents, or that the
child had been with the mother for a very long time and was
doing well. The trial court dealt solely with the relocation and
its effects on the child. Yet the findings totally ignore the issue
of the case.
The importance of having both parents engaged in the
upbringing of children cannot be overemphasized. Reams of
research material are available addressing the negative impact

83. parental relocation has upon children.6 If we are truly dedicated
to placing the child's best interest as paramount, then we must
seriously rethink our current notions of adult freedoms and
prerogatives. When a custodial parent decides to move a great
distance, the non-custodial parent may no longer be deeply
involved in the child's life. The custodial parent has a choice—
the choice not to move. The non custodial parent has
no *774 choice and is not only helpless, but essentially stripped
of his or her child. The child is also at the mercy of the
custodial parent's choice.
The majority refers to another relocation case that this Court
decides today, which works in tandem with this one. Frances v.
Frances, 266 S.W.3d 754 (Ky.2008). Not only are these two
cases distinguishable, but the distinction between them is
instructive. First of all, in Francesthis Court affirms the Court
of Appeals' decision which relied heavily upon Brumleve v.
Brumleve, 416 S.W.2d 345 (Ky.1967). That case provides the
underpinning for this dissent: “[Custodial parents] should be
given considerable latitude in choosing where they will live.
But when this right is challenged by the former [spouse and
parent] of the children, [the custodial parent] should offer some
plausible reason for taking minor children out of the
jurisdiction of the court to the prejudice of the visitation rights
of the [non-custodial parent]. Mere whim is not enough.” Id. at
346. In Frances, the trial court considered the issue of
relocation as critical to its decision-making. The majority
declared: “Though the trial court stated the relocation of the
Appellant was a substantial factor in the custodial determination
... the record also indicates that the trial court placed significant
weight on Haley's strong relationship with her father, frequent
interaction with the father's extended family, and adjustment
within the community.” Id. at 758.
In my writing here, I do not opine that the trial court
necessarily got it wrong in this case. However, I think there was
insufficient consideration of the core issue—the impact of the
relocation upon the child. Or at best, there were insufficient

84. findings and lack of a much needed analysis.
I am concerned that our Court passes up a golden opportunity
today to lend much needed guidance to our trial judges, who
continue to confront the problem before us without assistance
from this Court or the legislature.
Therefore, I very respectfully dissent.
VENTERS, J., joins.
Dissenting Opinion by Justice VENTERS.
I join Justice Cunningham's dissent in this case simply because
I agree with his point, and the Appellant's argument, that the
trial court took the unilateral relocation of the child as a fait
accompli without adequate consideration of impact of the
relocation on the child and on the child's other family
relationships. Doing so, I believe, encourages such unannounced
relocations when we should adopt, or at least promote, a policy
that requires the joint-custodians to discuss the relocation
before it occurs. The Appellee's pre-emptive move to Virginia
was the ultimate usurpation of the status of “sole custodian”
despite the joint custody decree then in effect. Except in the
case of very young infants, a pre-emptive move can only rarely
be accomplished without involving the child in the secrecy, to
the detriment of its relationship with the non-residential parent.
Otherwise, I agree fully with Justice Noble's analysis in the
majority opinion, and note that I concurred with the majority in
the companion case of Frances v. Frances, 266 S.W.3d 754
(Ky.2008).
I distinguish this case from Frances because, in Frances, no
child custody determination had been made by any court prior to
the child's relocation.
All Citations
266 S.W.3d 759
Footnotes
1
See National Center for Health Statistics, U.S. Dep't of Health
& Human Services, Pub'n No.2008–1120, Births: Final Data for
2005, National Vital Statistics Reports at 2 (Dec.

85. 5.2007), available at http:// www.
cdc.gov/nchs/data/nvsr/nvsr56/nvsr56_06.pdf (noting that while
the number of births to nonmarried women was increasing, they
accounted only for approximately one third of all U.S. births).
2
Howard N. Fullerson Jr., Labor force participants: 75 years of
change, 1950–98 and 1998–2025, Monthly Labor Review, Dec.
1999, at 3, 4, available at
http://www.bls.gov/opub/mlr/1999/12/art1full.pdf.
3
The current version of KRS 403.340 reads in relevant part:
(1) As used in this section, “custody” means sole or joint
custody, whether ordered by a court or agreed to by the parties.
(2) No motion to modify a custody decree shall be made earlier
than two (2) years after its date, unless the court permits it to be
made on the basis of affidavits that there is reason to believe
that:
(a) The child's present environment may endanger seriously his
physical, mental, moral, or emotional health; or
(b) The custodian appointed under the prior decree has placed
the child with a de facto custodian.
(3) If a court of this state has jurisdiction pursuant to the
Uniform Child Custody Jurisdiction Act, the court shall not
modify a prior custody decree unless after hearing it finds, upon
the basis of facts that have arisen since the prior decree or that
were unknown to the court at the time of entry of the prior
decree, that a change has occurred in the circumstances of the
child or his custodian, and that the modification is necessary to
serve the best interests of the child. When determining if a
change has occurred and whether a modification of custody is in
the best interests of the child, the court shall consider the
following:
(a) Whether the custodian agrees to the modification;
(b) Whether the child has been integrated into the family of the
petitioner with consent of the custodian;
(c) The factors set forth in KRS 403.270(2) to determine the

86. best interests of the child;
(d) Whether the child's present environment endangers seriously
his physical, mental, moral, or emotional health;
(e) Whether the harm likely to be caused by a change of
environment is outweighed by its advantages to him; and
(f) Whether the custodian has placed the child with a de facto
custodian.
(4) In determining whether a child's present environment may
endanger seriously his physical, mental, moral, or emotional
health, the court shall consider all relevant factors, including,
but not limited to:
(a) The interaction and interrelationship of the child with his
parent or parents, his de facto custodian, his siblings, and any
other person who may significantly affect the child's best
interests;
(b) The mental and physical health of all individuals involved;
(c) Repeated or substantial failure, without good cause as
specified in KRS 403.240, of either parent to observe visitation,
child support, or other provisions of the decree which affect the
child, except that modification of custody orders shall not be
made solely on the basis of failure to comply with visitation or
child support provisions, or on the basis of which parent is more
likely to allow visitation or pay child support;
(d) If domestic violence and abuse, as defined in KRS 403.720,
is found by the court to exist, the extent to which the domestic
violence and abuse has affected the child and the child's
relationship to both parents.
4
The current version of KRS 403.320 reads in relevant part:
(1) A parent not granted custody of the child is entitled to
reasonable visitation rights unless the court finds, after a
hearing, that visitation would endanger seriously the child's
physical, mental, moral, or emotional health. Upon request of
either party, the court shall issue orders which are specific as to
the frequency, timing, duration, conditions, and method of
scheduling visitation and which reflect the development age of

87. the child.
(2) If domestic violence and abuse, as defined in KRS 403.720,
has been alleged, the court shall, after a hearing, determine the
visitation arrangement, if any, which would not endanger
seriously the child's or the custodial parent's physical, mental,
or emotional health.
(3) The court may modify an order granting or denying
visitation rights whenever modification would serve the best
interests of the child; but the court shall not restrict a parent's
visitation rights unless it finds that the visitation would
endanger seriously the child's physical, mental, moral, or
emotional health.
5
An excellent discussion of this is set forth in Fenwick v.
Fenwick, 114 S.W.3d 767 (Ky.2003), and will not be elaborated
upon here.
1
See “Social Science and Children's Best Interests in Relocation
Cases: Burgess Revisited,” by Richard A. Warshak, Ph.D., 34
Fam. L.Q. 96 (2000–2001)
2
See “Inertia and Inequality: Reconceptualizing Disputes Over
Parental Relocation,” by Merle H. Weiner, 40 U.C. Davis
L.Rev. 1776 (2006–2007).
3
Mize v. Mize, 621 So.2d 417 (Fla.1993); In re Marriage of
Francis, 919 P.2d 776 (Colo.1996); Pollock v. Pollock, 181
Ariz. 275, 889 P.2d 633 (Ariz.App. Div. 1, 1995); In re
Marriage of Eaton, 269 III.App.3d 507, 207 Ill.Dec. 69, 646
N.E.2d 635 (1995).
4
Here, the custodial parent, Heather, has moved five times since
she moved from Ashland, Kentucky to Charleston, West
Virginia in February of 2002, and apparently eight times since
the entry of the Agreed Order in 2001.
5

88. See Chalupa v. Chalupa, 830 S.W.2d 391, 393 (Ky.App.1992).
6
For a rundown on the statutory or case law treatment of parental
relocation divorce cases, see an article entitled, Relocation of
the Custodial Parent: A State–By–State Survey, by David M.
Cotter, Assistant Editor, Divorce Litigation, Volume 18,
Number 6, June 2006.





524 S.W.3d 30
Court of Appeals of Kentucky.
Jamie Lynn BAIZE, Appellant
v.

Jeffrey Alan PEAK, Appellee
NO. 2016-CA-001462-ME
JUNE 30, 2017; 10:00 A.M.
Synopsis
Background: Unwed father filed a petition for joint custody of
the child, with the father as primary custodian. The Daviess
Circuit Court, Jay A. Wethington, J., granted primary physical
custody of the parties' child to father, and mother appealed.
Holding: The Court of Appeals, Lambert, J., held that evidence
was sufficient to support trial court's finding that it was in the
best interests of the child for father to be primary custodian.
Affirmed.
West Headnotes (1)Collapse West Headnotes
Change View
1Child Custody
Evidence was sufficient to support trial court's finding that it
was in the best interests of the child for unwed father to be
primary custodian; mother’s itinerant lifestyle after the parties'
separation was not healthy for child, father lived with the child

89. until the parents' separation when the child was six years' old,
mother left child with a friend for a short time, and mother
suffered from anxiety for which she had two prescription
medications. Ky. Rev. Stat. Ann. § 403.270.

76DChild Custody
76DIVJoint Custody
76Dk147Physical custody arrangements
APPEAL FROM DAVIESS CIRCUIT COURT, HONORABLE
JAY A. WETHINGTON, JUDGE, ACTION NO. 16 -CI-00455
Attorneys and Law Firms
BRIEF FOR APPELLANT: Patrick T. Flaherty, Owensboro,
Kentucky.
BRIEF FOR APPELLEE: David M. Taylor, Owensboro,
Kentucky.
BEFORE: COMBS, JOHNSON, AND J. LAMBERT, JUDGES.
OPINION
LAMBERT, J., JUDGE:

Jamie Lynn Baize (the Mother) appeals the Daviess Circuit
Court order granting primary physical custody of the parties'
child to Jeffrey Alan Peak (the Father). We affirm.
The Mother and Father began a relationship in late 2007/early
2008. The Mother became pregnant, and the parties' son (the
Child) was born in September 2008. Paternity of the Father was
established in April 2009, and he was ordered to pay child
support.
The parties never married, but they remained together for the
most part until they separated in 2014. At that time, the issue of
child support was revisited, and the Father was ordered to pay
$691.00 per month.
On May 5, 2016, the Father filed a petition for joint custody of
the Child, with the Father as primary custodian. The Father
alleged that the Mother moved residences frequently, which
resulted in multiple changes of schools for the Child, and that
the Father could provide a more stable lifestyle. The Father also

90. requested that he be allowed to claim the Child for federal and
state income tax purposes.
The Mother filed her response the following month; she did not
contest the requested award of joint custody but urged that
primary custody of the Child be awarded to her. The Mother
also requested that child support payments be recalculated and
that the parties should share claiming the Child for income tax
purposes on alternate years.
*31 The Daviess County Domestic Relations Commissioner held
a hearing on the petition and response on July 28, 2016. In his
Recommended Order entered on August 3 of that year, the
Commissioner proposed that the parties be awarded joint
custody of the Child with the Father as primary custodian. The
Commissioner found that the Mother had moved seven times
since the parties' separation and that the Child was forced to
change schools four times in one academic year. The Father, on
the other hand, had a stable domestic life (with plans to marry
the woman with whom he was cohabitating), a full-time
employment history, and a steady income. The Commissioner
recommended that child support payments being made by the
Father cease when primary custody was effected; he also
proposed that the parties alternate years for claiming the Child
on taxes (with the Mother claiming on odd years—beginning in
2015—and the Father on even years).
The Mother filed timely exceptions, the Father responded to the
Mother’s exceptions, and the Daviess Circuit Court held a
hearing on September 21, 2016. The circuit court entered its
Order adopting the recommendation of the Domestic Relations
Commissioner on September 22, 2016, and the Mother appealed.
This Court ordered the matter expedited on November 1, 2016.
The Mother argues that the circuit court erred in adopting the
Commissioner’s Recommended Order. The Mother specifically
complains that neither the circuit court nor the commissioner
made findings pursuant to Kentucky Revised Statute (KRS)
403.270 (“Custodial issues—Best interests of child shall
determine—Joint custody permitted—De facto custodian”). The

91. pertinent parts of that statute (as argued by the Mother) are as
follows:
(2) The court shall determine custody in accordance with the
best interests of the child and equal consideration shall be given
to each parent and to any de facto custodian. The court shall
consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any de facto
custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his
parent or parents, his siblings, and any other person who may
significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved[.]
....
(3) The court shall not consider conduct of a proposed custodian
that does not affect his relationship to the child.
....
The Mother insists that the circuit court and the commissioner
improperly considered her personal life (KRS 403.270(3)) in the
decision to grant the Father primary custodianship. She further
contends that there were no factual findings regarding the
factors enunciated in KRS 403.270(2)(a)–(e).
We disagree with the Mother. Kentucky Rule of Civil Procedure
(CR) 52.01 provides:
In all actions tried upon the facts without a jury or with an
advisory jury, the court shall find the facts specifically and
state separately its conclusions of law thereon and render an
appropriate judgment; and in granting or refusing temporary
injunctions or permanent injunctions the court shall similarly
set forth the findings of fact and conclusions of *32 law which
constitute the grounds of its action. Requests for findings are
not necessary for purposes of review except as provided in Rule
52.04. Findings of fact, shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses. The

92. findings of a commissioner, to the extent that the court adopts
them, shall be considered as the findings of the court. If an
opinion or memorandum of decision is filed, it will be sufficient
if the findings of fact and conclusions of law appear therein.
Findings of fact and conclusions of law are unnecessary on
decisions of motions under Rules 12 or 56 or any other motion
except as provided in Rule 41.02.
(Emphasis added.) The Father correctly points out that the
Mother failed to request specific findings pursuant to CR
52.04 (“A final judgment shall not be reversed or remanded
because of the failure of the trial court to make a finding of fact
on an issue essential to the judgment unless such failure is
brought to the attention of the trial court by a written request
for a finding on that issue or by a motion pursuant to Rule
52.02.”). See alsoAnderson v. Johnson, 350 S.W.3d 453, 458
(Ky. 2011) (“[T]he litigant must assist the court in its good
faith efforts to comply with the rule by requesting that specific
finding.”).
Moreover, the findings that were made by the Commissioner
and adopted by the circuit court were sufficient to support the
decision to make the Father primary custodian. The Mother’s
itinerant lifestyle (she was never in any one residence longer
than four months) after the parties' separation could not be
healthy for a child of any age. Not only did the Child attend
four different schools during his second grade year, but the
schools were in four different counties (including one move to
another state). It defies credibility for the Mother to argue that
this type of instability did not adversely affect the Child. Also,
the Father testified that the Child had exhibited behavioral
problems.
Furthermore, the Mother’s assertion that the Child has always
lived with her (“this Child has never lived anywhere other than
with his Mother”), while factually accurate, neglects to inform
this Court that the Father also lived with the Child until the
parents' separation when the Child was six years' old. The
Mother does not mention the testimony about her leaving the

93. Child with a friend for a short time, or that, when she claimed
that the Father was often absent (sometimes for “months at a
time”), it was his response that “the breaks” were caused by the
Mother’s infidelity. There was also a finding that the Mother
suffers from anxiety for which she has two prescription
medications.
There was more than sufficient evidence to support the finding
that it was in the best interests of the Child for the Father to be
primary custodian. The Mother was granted “liberal and
frequent visitation.” The circuit court’s decision comports with
Kentucky statutory and case law. KRS 403.270; Burton v.
Burton, 355 S.W.3d 489, 493–94 (Ky. App. 2011).
The Order of the Daviess Circuit Court is affirmed.
ALL CONCUR.
All Citations
524 S.W.3d 30

513 S.W.3d 912
Supreme Court of Kentucky.
Jude WEBER, Appellant
v.
Thomas Francis LAMBE, Appellee
2015-SC-000173-DG
MARCH 23, 2017
Synopsis
Background: Father filed petition for dissolution of marriage.
The Jefferson Circuit Court, No. 11-CI-503339, entered decree
of dissolution after a bench trial, including a division of marital
assets and an award to mother of child support and nine years of
maintenance. Both parties appealed, and the Court of
Appeals, 2014 WL 6092239, affirmed in part and reversed in
part. Both parties appealed.
Holdings: The Supreme Court, Keller, J., held that:
1 family court could include mother's share of the living
expenses for the parties' two children in its calculation of
mother's monthly living expenses;

94. 2 family court made sufficient findings to support its award of
nine years of maintenance;
3 family court's findings as to father's projected income were
not clearly erroneous; and
4 family court did not abuse its discretion by ordering father to
pay only $15,000 of the $75,000 that mother requested for
attorney fees.
Affirmed in part and reversed in part.
West Headnotes (12)Collapse West Headnotes
Change View
1Appeal and Error
If the trial judge’s findings of fact in the underlying action are
not clearly erroneous, that is, are supported by substantial
evidence, then the appellate court’s role is confined to
determining whether those facts support the trial judge’s legal
conclusion.

30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)9Verdict and Findings in General
30k3425Clear Error;  "Clearly Erroneous" Standard
30k3428Judge as factfinder below
(Formerly 30k1008.1(5))

30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)10Sufficiency of Evidence
30k3459Substantial Evidence
30k3460In general
(Formerly 30k842(2))

30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review

95. 30XVI(D)10Sufficiency of Evidence
30k3459Substantial Evidence
30k3462Judge as factfinder below
(Formerly 30k1010.1(6))
2Appeal and Error
Where the trial court exercises its discretion, its decision is
reviewed for an abuse of discretion.

30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)1In General
30k3139Discretion of Lower Court
30k3141Abuse of discretion
(Formerly 30k946)
3Appeal and Error
The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.

30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)1In General
30k3139Discretion of Lower Court
30k3141Abuse of discretion
(Formerly 30k946)
4Appeal and Error
The trial court’s conclusions of law are reviewed de novo.

30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)2Particular Subjects of Review in General
30k3162Conclusions of Law in General
30k3166De novo review

96. (Formerly 30k893(1))
5Divorce
Family court could include, in its calculation of mother's
monthly living expenses for purposes of determining father's
maintenance obligation in dissolution of marriage action,
mother's share of the living expenses for the parties' two
children; mother was acting as caretaker for the children, one of
whom had diabetes and required a significant amount of care,
including frequent trips to physicians, assistance with the
administration of insulin, and monitoring after meals, and
family court apparently determined that mother would have
additional living expenses as a result of her role as custodian
and caretaker. Ky. Rev. Stat. Ann. § 403.200(2)(a).

134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k567Grounds and Defenses in Determining Existence and
Amount of Obligation
134k580Child custody and support
6Divorce
A maintenance award’s amount and duration are within the
sound discretion of the trial court.

134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k565Authority and Discretion of Trial Court
134k565(2)Discretion as to amount

134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k605Extent of Time of Payments
134k606In general
7Divorce

97. Family court made sufficient findings in dissolution of marriage
action to support its award to mother of maintenance for nine
years; family court noted that it considered the 19-year length
of the marriage, mother's age of 48 years, mother's financial
resources and physical and emotional condition, and father's
ability to meet his own and mother's needs, and family court
found that mother could not maintain full-time employment
until the medical condition of one of the parties' children, who
had diabetes, stabilized, and it made the award specifically
modifiable upon a change in such child's condition or when
other child completed 8th grade. Ky. Rev. Stat. Ann. § 403.200.

134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k587Actions and Proceedings in General
134k597Determination and Findings
134k597(1)In general
8Divorce
Family court was not required to make findings in dissolution of
marriage action as to mother's future ability to meet her own
needs and father's continued ability to pay maintenance in order
to support its award to mother of nine years of maintenance;
trial court was not required to predict the future financial
situation of parties, since it could not possibly know that
information, and maintenance decree could be modified in the
future upon a showing of changed circumstances. Ky. Rev. Stat.
Ann. §§ 403.200, 403.250.

134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k587Actions and Proceedings in General
134k597Determination and Findings
134k597(2)Needs

98. 134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k587Actions and Proceedings in General
134k597Determination and Findings
134k597(3)Ability to pay in general
9Divorce
Family court's findings as to father's projected income were not
clearly erroneous in dissolution of marriage case in which
mother was awarded maintenance; family court heard testimony
from parties' jointly retained accountant and considered all of
the evidence concerning father's income, including the fact that
his executive position had been eliminated and that he would no
longer be eligible to receive bonus pay that he had received in
the past.

134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k587Actions and Proceedings in General
134k594Evidence
134k594(3)Weight and Sufficiency
134k594(7)Income and assets
10Divorce
Family court did not abuse its discretion in dissolution of
marriage action by ordering father to pay only $15,000 of the
$75,000 that mother requested for attorney fees; family court
heard extensive testimony regarding father's annual income and
mother's liquidation of a jointly held bank account without
permission from father or the court. Ky. Rev. Stat. Ann. §
403.220.

134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(H)Counsel Fees, Costs, and Expenses
134k1170Applications and Proceedings Between Parties

99. 134k1170(6)Evidence in general
11Divorce
Under statute governing payment of attorney fees in dissolution
of marriage actions, it is within the trial court’s discretion to
order one party to pay the other party’s attorney fees. Ky. Rev.
Stat. Ann. § 403.220.

134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(H)Counsel Fees, Costs, and Expenses
134k1131Authority and discretion of court
12Divorce
The trial court in a dissolution of marriage action is in the best
position to observe conduct and tactics that waste the court’s
and attorneys' time and must be given wide latitude to sanction
or discourage such conduct through an award of attorney
fees. Ky. Rev. Stat. Ann. § 403.220.

134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(H)Counsel Fees, Costs, and Expenses
134k1137Grounds and Considerations for Award or Amount in
General
134k1141Conduct of litigation;  misconduct in general
*913 ON APPEAL FRO M COURT OF APPEALS, CASE NOS.
2013-CA-000891, 2013-CA-000930, 2013-CA-001642,
JEFFERSON CIRCUIT COURT NO. 11 -CI-503339
Attorneys and Law Firms
COUNSEL FOR APPELLANT: Allen McKee Dodd,
Louisville, Jacob Wayne Crouse, Dodd & Dodd Attorneys,
PLLC.
COUNSEL FOR APPELLEE: Eugene L. Mosley,
Louisville, Michael Thomas Underwood, Mosley, Sauer,
Townes & Watkins, PLLC.
Opinion
OPINION OF THE COURT BY JUSTICE KELLER

100. Jude Weber and Thomas Francis Lambe cross-appeal the
decision of the Court of Appeals to reverse in part and affirm in
part the Jefferson Family Court. This Court granted
discretionary review, and for the reasons stated herein, we
affirm in part and reverse in part the opinion of the Court of
Appeals.
*914I. BACKGROUND.
Weber and Lambe were married on October 10, 1992. They
remained together for nineteen years before separating. Two
children were born during the marriage: Margaret, born in
December 1996, and Kevin, born in September 1999. Margaret
was diagnosed with juvenile diabetes at the age of two and was
diagnosed with an eating disorder approximately two to three
months before trial. Margaret’s health issues require frequent
trips to various physicians, assistance with administration
of insulin, and monitoring after meals. Weber is a stay-at-home
mother, who has not worked outside the home since Margaret
was born. Lambe has been employed by General Electric for
more than twenty-five years preceding this action.
In September 2011, Lambe filed a petition for dissolution.
Following a two-day bench trial, the Jefferson Family Court
entered its Findings of Fact, Conclusions of Law, and Decree of
Dissolution on February 26, 2013. The family court’s decree
restored each party’s non-marital assets and then divided their
marital assets, which included significant real property and
numerous investment and brokerage accounts.
The family court awarded the parties joint custody of the two
children and determined that their monthly living expenses
(excluding education costs) were $3,697. The court then
ordered Lambe to pay child support in the amount of $2,150.09
per month in addition to the $108 per month that he paid in
health insurance for the children. The family court also
determined that because of Margaret’s health issues, Weber was
unable to obtain full-time employment. The family court
estimated that Weber’s reasonable monthly living expenses
were $5,800 (including 39%, or $1,440, of the children’s living

101. expenses), which required taxable income of about $7,300 per
month. Accordingly, Lambe was ordered to pay maintenance in
the amount of $7,300 per month for a period of nine years.
Finally, the family court found that Weber used $50,000 in
marital assets to pay her attorney’s fees, and
credited Lambe with having contributed $25,000 of that amount.
Due to the disparity in the parties' financial
resources, Lambe was ordered to pay an additional $15,000
of Weber’s attorney’s fees.
Following entry of the decree, both parties filed motions to
alter, amend, or vacate pursuant to Kentucky Rule of Civil
Procedure (CR) 59.05. On April 30, 2013, the family court ruled
on the motions, making minor changes to its original judgment
but otherwise denying the parties' requests. Both parties
appealed the family court’s decree.
In an Order rendered November 14, 2014, the Court of Appeals
determined that the family court erred by including a portion of
the children’s living expenses in its calculation of Weber’s
maintenance award. The Court of Appeals also found that the
family court erred by failing to make findings that justified its
award of maintenance for a period of nine years. We set forth
additional background information as necessary below.
II. STANDARD OF REVIEW.
1234A trial court is required to make specific findings of fact
and set forth the conclusions of law it relied upon in rendering
its judgement. CR 52.01. Because this matter was tried without
a jury, the trial court’s findings of fact “shall not be set aside
unless clearly erroneous....” Id. “If the trial judge’s findings of
fact in the underlying action are not clearly erroneous, i.e., are
supported by substantial evidence, then the appellate court’s
role is confined to determining whether those *915 facts support
the trial judge’s legal conclusion.” Commonwealth v. Deloney,
20 S.W.3d 471, 473-74 (Ky. 2000). However, where the trial
court exercises its discretion, its decision is reviewed for an
abuse of discretion. “The test for abuse of discretion is whether
the trial judge’s decision was arbitrary, unreasonable, unfair, or

102. unsupported by sound legal principles.” Goodyear Tire and
Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). The
trial court’s conclusions of law are reviewed de novo.Sawyers
v. Beller, 384 S.W.3d 107, 110 (Ky. 2012).
III. ANALYSIS.
A. The family court’s decision to include the children’s living
expenses in its calculation of Weber’s reasonable living
expenses was neither clearly erroneous nor an abuse of
discretion.
The family court ordered Lambe to pay 61% of the children’s
living expenses, which totaled $3,697 per month. After
deducting Lambe’s monthly payment for the children’s health
insurance, Lambe’s child support contribution was $2,150.09
per month. The court then found that Weber could not maintain
full-time employment until Margaret’s medical condition
stabilized. The family court found that Weber’s reasonable
monthly living expenses were $4,400. In addition, she was
allocated about 39%,1 or $1,440 of the children’s living
expenses. As such, her monthly living expenses totaling $5,800
included 39% of the children’s living expenses. The court found
that Weber’s monthly living expenses would require taxable
income of $7,300 per month, and the court ordered Lambe to
pay maintenance in that amount.
At the Court of Appeals, Lambe argued that the family court
erred by including 39% of the children’s living expenses
within Weber’s living expenses. Lambe contended that, because
he was ordered to pay in child support 61% of the children’s
living expenses, he will, in fact, pay 100% of Weber’s and the
children’s living expenses for nine years.
The Court of Appeals agreed with Lambe, holding that, “in
calculating the amount and duration of maintenance, the family
court is not to consider any amount expended by the party
seeking maintenance for the care and support of a dependent
child.” In doing so, the Court of Appeals noted that while
“maintenance is for the needs of the recipient spouse[,] ... the
purpose of the statutes and the guidelines relating to child

103. support ... is to secure the support needed by the children
commensurate with the ability of the parents to meet those
needs.” Thus, the Court of Appeals remanded the issue to the
family court to determine the amount of maintenance awarded
to Weber without taking into account the children’s living
expenses.
5Weber now challenges the Court of Appeals’s decision.
Specifically, she argues that, pursuant to Kentucky Revised
Statute (KRS) 403.200, the family court was within its
discretion to consider her child care burden when calculating
her maintenance award. In response, Lambe argues that the
Court of Appeals was correct in requiring the family court to
calculate the *916 children’s living expenses separate and apart
from Weber’s living expenses.
6In reaching its maintenance determination, the family court
noted that it has the discretion to award maintenance to either
spouse if it finds the spouse seeking maintenance “lacks
sufficient property” and “[i]s unable to support [her]self ... or is
the custodian of a child whose condition or circumstances make
it appropriate that the custodian not be required to seek
employment outside the home.” KRS 403.200(1). A
maintenance award’s amount and duration are within the sound
discretion of the trial court. Id. (“The maintenance order shall
be in such amounts and for such periods of time as the court
deems just....” Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky.
1990)) (“[T]he award of maintenance is left to the trial court’s
sound discretion.”). In determining the amount and duration of
the maintenance award, the family court is to consider all
relevant factors, including: “[t]he financial resources of the
party seeking maintenance”; and her ability to meet her needs
independently, “including the extent to which a provision for
support of a child living with the party includes a sum for that
party as custodian[.]” KRS 403.200(2)(a).
In this case, Weber was acting as caretaker of Kevin and
Margaret, the latter of whom required a significant amount of
care, including frequent trips to various physicians, assistance

104. with administration of insulin, and monitoring after meals. It
appears the family court believed that Weber would have
additional living expenses because of her role as Margaret’s
custodian and caretaker. In calculating those additional living
expenses, the court took a percentage of the children’s living
expenses and added that amount to Weber’s living expenses. As
noted above, when determining maintenance, KRS
403.200(2)(a) permits the court to consider “the extent to which
a provision for support of a child living with the party includes
a sum for that party as custodian.” Here, the court determined
that a percentage of the children’s living expenses, i.e., the
amount of child support due, included a sum for Weber as
custodian, which the court appropriately attributed to her living
expenses. In other words, the court determined that, because she
was custodian of the parties' children and caretaker of
Margaret, Weber’s living expenses were greater than they would
otherwise have been. As farther support for the court’s decision
to assign a percentage of the children’s living expenses
to Weber, in addition to KRS 403.250’s requirement for
modification, the court made the maintenance award specifically
modifiable “in June of 2014, when Kevin completes 8th grade,
or upon a change in Margaret’s medical condition.”
Finally, we note that Weber presented evidence that her living
expenses, independent of any consideration of her role as
custodian, were between $9,932 and $10,887. Therefore, the
court could have simply awarded Weber maintenance in the
amount of $7,300 without including any amount in her living
expenses for her role as the children’s custodian.
The parties' discrepancy in income, paired with Margaret’s
medical condition, presented a somewhat rare dilemma for the
family court, forcing it to reconcile Kentucky’s maintenance
and child support statutes. We believe the family court acted
appropriately and within the express provisions of both statutes
in doing so. For the preceding reasons, we hold that the court’s
calculation of maintenance was not clearly erroneous as a
matter of law, nor was it an abuse of discretion.

105. *917B. The family court was within its discretion to
award Weber maintenance for nine years.

The family court ordered Lambe to pay maintenance
to Weber for nine years. In rendering its decision, the family
court found that Lambewas unable to provide for her reasonable
monthly living expenses through adequate employment or
property awarded to her, and that she could not maintain full-
time employment until Margaret’s medical condition stabilized.
At the Court of Appeals, Weber argued that she was entitled to
permanent maintenance, given the length of the parties'
marriage and her inability to find future employment,
citing Gripshover v. Gripshover, 246 S.W.3d 460 (Ky.
2008). Lambe, on the other hand, argued that the award of
maintenance, for a nine-year duration was excessive and an
abuse of the family court’s discretion. We note that this issue
was properly before the Court of Appeals pursuant to Lambe’s
motion to alter, amend or vacate portions of the family court’s
findings of fact, conclusions of law, and judgment.
The Court of Appeals held that Weber was not entitled to
permanent maintenance. In doing so, the court noted
that Weber’s reliance on Gripshover was misplaced.
In Gripshover, our Court held that maintenance for longer
periods and in greater amounts is warranted where “the
marriage was long term, the dependent spouse is near retirement
age, the discrepancy in incomes is great, or the prospects for
self-sufficiency appear dismal.” Id. at 470. The Court of
Appeals noted that Weber was only forty-eight years old at the
time and possesses a bachelor’s degree in communications.
Additionally, the Court of Appeals noted that one of the
circumstances the family court used to justify its maintenance
award—Margaret’s precarious health—would not continue
indefinitely; therefore, Weber was not entitled to an award of
permanent maintenance. However, the Court of Appeals made
no determination regarding the appropriateness of the
maintenance award’s nine-year duration. Rather, it remanded

106. the issue of duration to the family court with instructions for
the court to make specific findings supporting its choice to
award maintenance for nine years.
7Having reviewed the record, we hold that the family court
made sufficient findings of fact to justify the nine-year
maintenance award.

The family court noted that it considered the factors contained
in KRS 403.200: the length of the parties' marriage; Weber’s
age, financial resources, and physical and emotional condition;
and Lambe’s ability to meet his needs and Weber’s
needs. Additionally, the family court found that Weber could
not maintain full-time employment until Margaret’s medical
condition had stabilized, and it made the award specifically
modifiable “in June of 2014, when Kevin completes 8th grade,
or upon a change in Margaret’s medical condition.”
The duration of a maintenance award falls within the trial
court’s discretion. Gentry, 798 S.W.2d at 937 (Ky. 1990). The
trial court was provided with sufficient evidence and it gave
sufficient consideration to KRS 403.200’s relevant factors in
awarding Weber maintenance. As such, we discern that the
family court’s decision to award maintenance to Weber for nine
years was within the court’s discretion and was not error. For
the preceding reasons, we reverse the Court of Appeals’s
decision to remand to the family court for further findings of
fact.
8The Court of Appeals, in dicta, stated: “The family court
neither found that [Weber’s] need for maintenance will
terminate in nine years because of an increased *918 ability to
meet her needs through property or employment income, nor
found that [Lambe] will retain his ability to pay maintenance
for nine years.” If the Court of Appeals meant to direct the
family court to make findings of Weber’s ability to meet her
own needs during the maintenance’s nine-year duration, as well
as Lambe’s ability to pay during that time, that direction was in
error. The trial court is not required to predict with certainty

107. what the future financial situation of the parties will be for
three reasons. First, the family court cannot possibly know what
that parties' financial situation will be nine years into the
future. Second, the family court is not required by statute to
speculate as to the parties' future finances. Rather, the court
must look at the parties' financial positions as they are at the
time the parties appear before the court, and make reasonable
determinations for that point in time and going forward.
Finally, KRS 403.250 provides for modifying a maintenance
decree upon “a showing of changed circumstances.” As such,
any change in the parties' financial situation is envisioned in the
maintenance modification statute.
The family court should neither speculate as to whether Weber’s
need for maintenance will end because of an increased ability to
meet her needs nor whether Lambe will receive the same level
of income nine years from now as he is presently receiving.
Accordingly, the Court of Appeals should not have directed the
trial court to so speculate.
C. The Court of Appeals did not err in affirming the family
court’s calculation of Lambe’s income.

9Weber argues that the Court of Appeals erred in affirming the
family court’s calculation of Lambe’s income. She asserts that
the family court erred by not considering Lambe’s projected
income for 2012, which reflected the fact that he historically
received a bonus of approximately $30,000 and a grant of stock
options for every year since 2004.
In its ruling, the family court found the following:
At the inception of this case, Mr. Lambe held an executive
position with G.E. Supply Chain


Solution

108. s, where he earned a base salary of $194,376 per year, plus an
annual incentive bonus. His 2012 bonus was $30,700, bringing
his total income to $225,076. The Court notes that Mr. Lambe’s
year-to-date income, as reflected on his November 11, 2012 pay
statement is $256,615.32. However, that number is artificially
inflated because it includes significant taxable income from his
exercise of stock options....
In the fall of 2012, G.E. underwent a management restructure
that resulted in the elimination of Mr. Lambe’s position.
Mr. Lambe wished to remain with the company, so he
considered several internal options. He ultimately accepted a
position as Business Leader for G.E.’s Dishwasher Plastics
Operations, which had no effect on his base salary. However,
his new job is not an executive-level positon, so he is no longer
eligible for an incentive bonus. Mr. Lambe will receive a bonus
in February of 2013 for work performed in 2012. He may
receive an additional bonus in 2014 as a type of severance, but
that payment is not guaranteed.
Based on the foregoing, the Court finds that Mr. Lambe’s
current income is $225,076, which yields a gross monthly
income of $18,756. The Court understands that Mr. Lambe’s
income may substantially decrease after 2013 or 2014, when his
incentive pay has definitively ended.
*919 We agree with the Court of Appeals that the family court
“thoroughly considered all of the evidence concerning

109. [Lambe’s] income.” The family court made detailed findings
regarding Lambe’s income after hearing testimony from the
parties' jointly-retained accountant, Helen Cohen. The trial
court’s findings of fact were not clearly erroneous; therefore,
the Court of Appeals did not err by affirming the trial court’s
ruling.
D. The Court of Appeals properly found no abuse of discretion
in the family court’s denial of Weber’s request that Lambe pay
the entirety of her attorney's fees.

10Finally, Weber challenges the family court’s decision to
order Lambe to pay Weber only $15,000 of the $75,000 she
requested in attorney’s fees. Weber asserts that this decision
was an abuse of the court’s discretion. Prior to the family court
rendering its decision, Weber, without permission
from Lambe or the family court, liquidated more than $35,000
in mutual funds from the parties' joint account. Weber then paid
this sum to her lawyer, despite the existence of a status quo
order, which the family court noted in its judgment:
After her recent liquidation of the parties' Vanguard Account,
[Weber] has used $50,000 in marital assets to pay her attorney
fees. Therefore, [Lambe] will be credited with having
contributed $25,000. The Court orders him to pay an additional
$15,000 in light of the disparity in the parties' financial
resources.

110. 11KRS 403.220 states that, “after considering the financial
resources of both parties, [the court] may order a party to pay a
reasonable amount for the cost to the other party ... for
attorney’s fees.” (Emphasis added). Thus, it is within the trial
court’s discretion to order one party to pay the other party’s
attorney’s fees. SeeNeidlinger v. Neidlinger, 52 S.W.3d 513,
519 (Ky. 2001) (“But even if a disparity exists, whether to make
such an assignment and, if so, the amount to be assigned is
within the discretion of the trial judge.”) and Wilhoit v.
Wilhoit, 521 S.W.2d 512, 514 (Ky. 1975) (“[A]n allocation of
court costs and an award of an attorney’s fees are entirely
within the discretion of the court.”).
12The family court heard extensive testimony
regarding Lambe’s annual income and Weber’s liquidation of
the parties' jointly-held bank account. “[The] court is in the best
position to observe conduct and tactics which waste the court’s
and attorneys' time and must be given wide latitude to sanction
or discourage such conduct.” Gentry, 798 S.W.2d at 938. We
hold that the family court did not abuse its discretion in
ordering Lambe to pay an additional $15,000 of Weber’s
attorney’s fees. Therefore, the decision by the Court of Appeals
is affirmed.
IV. CONCLUSION.
For the reasons stated above, we affirm in part and reverse in
part the opinion of the Court of Appeals.

111. All sitting. All concur.
All Citations
513 S.W.3d 912
Footnotes
1
The family court stated that $1,440 amounted to 30% of the
children’s living expenses. However, given that Lambe was
responsible for 61% of the children’s living expenses, and that
$1,440 is approximately 39% of the children’s total monthly
living expenses ($3,697), the trial court’s “30%” appears to
have been a typographical error. We recognize that 39% of
$3,697 is actually $1,441.83, nonetheless, the family court
rounded that amount to $1,440, and we do not question its
decision to do so. Furthermore, we assume that the court
followed this same procedure in rounding Weber’s total monthly
living expenses from $5,840 to $5,800.



211 S.W.3d 63
Court of Appeals of Kentucky.
Eugenia Sue Wynn ROBINSON, Appellant,
v.
Robert Dale ROBINSON, Appellee.
No. 2006–CA–001095–ME.

112. Dec. 1, 2006.
Synopsis
Background: Father filed motion to set aside child custody
decree that awarded parties joint custody of children, with
mother being children's primary residential custodian. The
Circuit Court, Rockcastle County, Debra Hembree Lambert, J.,
denied motion, but ordered that deposition testimony be taken if
mother chose to relocate more than 120 miles from her current
residence, and, after mother relocated, modified custody decree
by naming father as children's primary residential custodian.
Mother appealed.
Holding: The Court of Appeals, Acree, J., held that trial court
lacked jurisdiction to modify custody decree.
Reversed and remanded.
West Headnotes (5)Collapse West Headnotes
Change View
1Child Custody
A motion to modify a child custody decree where the
modification is sought earlier than two years after entry of
decree must be accompanied by at least two affidavits; if the
applicable requirement is not met, the trial court is without
authority to entertain motion, and, thus, the filing of affidavits
is a jurisdictional requirement. KRS 403.340(2), 403.350.
7 Cases that cite this headnote

113. 76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
2Child Custody
Under proper circumstances, relief from a court's final decree of
divorce, including an award of child custody, is available by
means of a motion to set aside a judgment based on mistake,
inadvertence, excusable neglect, newly discovered evidence, or
fraud. Rules Civ.Proc., Rule 60.02.

76DChild Custody
76DVIIIProceedings
76DVIII(D)Judgment
76Dk526Amendment, clarification, opening, or vacating
3Child Custody
Trial court lacked jurisdiction to modify custody decree that
awarded parties joint custody of children, with mother being
children's primary residential custodian, as father's pursuit of
custody modification occurred within two years of award of
custody in decree, such that father was required to file motion
under statute governing motions for custody modification made
within two years of entry of custody decree, which statute

114. required that he attach to motion a minimum of two affidavits
setting forth proper showing, which father failed to do. KRS
403.340(2).
7 Cases that cite this headnote

76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
4Child Custody
Child custody modification falls exclusively within the purview
of statutes governing custody modification, and any other
judicially-created “gateways” to custody modification are
inapplicable. KRS 403.340, 403.350.
1 Case that cites this headnote

76DChild Custody
76DIXModification
76DIX(A)In General
76Dk550In general
5Child Custody
Mere fact that mother's relocation with children might affect
frequency of father's time-sharing with children and children's

115. contact with other persons did not, standing alone, support
finding that mother's relocation created likelihood of serious
harm to children, so as to warrant modification of joint custody
to change primary residential custodian from mother to
father. KRS 403.340(2).
1 Case that cites this headnote

76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk576Joint custody
Attorneys and Law Firms
*64Scott M. Webster, London, KY, for appellant.
No Brief for Appellee.
Before ACREE, BARBER, and TAYLOR, Judges.
OPINION
ACREE, Judge.
When the Rockcastle Circuit Court entered a judgment
dissolving the marriage of Eugenia “Gina” Sue Wynn Robinson
(Gina) and Robert Dale Robinson (Dale) on June 23, 2005, it
awarded the couple joint custody of their three (3) minor
children *65 with Gina as the “primary custodian.”1 On March
15, 2006, the circuit court modified the joint custody order by
making Dale the “primary custodian.” Gina appeals that order
modifying custody. For the reasons stated, we reverse.

116. On March 11, 2004, Gina filed her petition for the dissolution
of her fourteen-year marriage to Dale. Dale had previously
removed himself from the marital residence and resided for the
pendency of this action with his parents. Both parties in their
initial pleadings expressed a desire for sole custody of their
three (3) minor children.
Dale was first to move the court for an order of temporary
custody. Prior to the hearing on that motion, the parties were
able to agree on certain issues. On June 4, 2004, the court made
an entry on its docket sheet2 noting among other things that
mediation had resulted in the parties' agreement that Gina was
to have possession of the marital residence until the divorce was
final. Though not specifically stated in the record, the parties
apparently agreed that the children would reside primarily in the
marital residence with Gina. Notably, the court entered no
temporary custody order nor did the court order either parent to
pay child support.
On July 17, 2004, Gina found it necessary to move the court for
temporary child support. Dale responded on July 28, 2004, by
moving the court for his own order that he “be designated
primary custodian” and that he also be awarded exclusive use of
the marital residence. The court, still without entering a
custodial order, directed the parties to “maintain status quo.”
Six months later, on January 14, 2005, still with no custody or
support order in place, Gina re-noticed her motion for

117. temporary child support. At the hearing on the motion ten days
later, as reflected only on the docket sheet, the court “set c/s
[child support to be paid by Dale] as $575.00 which is a $50.00
reduction for extra time.” The “extra time” referenced was one
additional day beyond the standard visitation schedule that the
parties agreed would be Dale's visitation. Still, no custody order
was entered.
According to the Mandatory Case Disclosures filed by Dale and
Gina one week before the court's entry of its Findings of Fact,
Conclusions of Law and Decree of Dissolution (Decree),
custody continued to remain an issue. The first custodial ruling
by the trial court appears in the Decree entered June 23, 2005. It
stated:
The court finds that the best interest of the children will be
served by awarding the parties joint custody with the mother
being the primary custodian, and the father having standard
visitation....
*66 The Decree went on to divide the marital and non-marital
assets and debts between the parties. Finally, the Decree
contains the following relevant provision:
If either party should relocate their residence more than 150
miles from Rockcastle County, the time-sharing arrangement
from herein shall be subject to de nova [sic] review and
modification.
Shortly after entry of the Decree, Dale stopped paying certain

118. debts assigned to him. Because the parties' creditors were not
bound by the trial court's distribution of the parties' liabilities,
the creditors pursued both Gina and Dale for payment; that is,
until Dale filed a petition in bankruptcy on October 16,
2005. Thereafter, those creditors pursued only Gina. This added
$17,501.78 to her liabilities. She soon was compelled to list the
marital property for sale.
It was about this time that Gina received and had been
contemplating an offer of employment and managerial training
from a Chili's restaurant chain. This employment would provide
her and her family with a substantially greater income.
However, if she accepted, she would be required to relocate to
the Memphis, Tennessee area.
On October 17, 2005, Gina brought a motion to modify Dale's
mid-week visitation before the court because she believed that
the relocation provision of the Decree required it. The motion
was initially heard on October 21, 2005. The court, however,
did not rule on Gina's motion then or at any time.
Instead, Dale's counsel requested additional time to respond to
the motion and indicated he would be moving to set aside the
Decree as to custody on the basis of the newly discovered
evidence that Gina desired to move out of state. He further
informed the court that he realized Fenwick v. Fenwick, 114
S.W.3d 767 (Ky.2003) would normally put the burden on his
client to show the contemplated move would endanger the

119. children. He believed, however, that setting aside the Decree
would allow a de novo review of the permanent custody
determination without the need to show endangerment but,
instead, only the best interests of the children.
After hearing from both counsel, the court indicated Dale's need
to take discovery to determine “whether or not it's in the
children's best interest or what the harm might be to move to
Memphis.” TAPE No. 089; 10/21/05; 9:14:45. The court then
gave Dale “ten (10) days to file motion for modification.”
Dale's counsel stuck with his strategy and filed a “Motion to Set
Aside Custody Decree” pursuant to Kentucky Rules of Civil
Procedure (CR) 60.02. He further requested a subsequent “de
nova [sic] custody hearing pursuant to the standard of Kentucky
Revised Statute (KRS) 403.270, rather than KRS 403.340....” (
[Appellee's] Motion to Set Aside Custody Decree, R.118).
The basis of Dale's CR 60.02 motion was fraud and newly
discovered evidence. He claimed he only agreed to allow Gina
to serve as their children's primary residential custodian
because “during the pendency of this action, [Gina] repeatedly
assured [Dale], the Court, and her own attorney that she had no
plans to leave the state of Kentucky with the children.” (
[Appellee's] Motion to Set Aside Custody Decree, R.118).
Dale's motion was heard on November 4, 2005. During the
hearing, Dale's counsel represented to the trial court that there
was a “clause in their joint decree that if Mrs. Robinson

120. relocated more than *67 1203 miles, that we would revisit the
issue of custody de novo.” (TAPE No. 092; 11/4/05; 9:21:35).
The trial court accepted this representation at face value:
Court: I guess we could have a de novo hearing as to custody
but the, if the agreement [sic], and I wasn't aware of that, but if
the separation agreement [sic] does have the 120 mile distance
provision in it, then there would be a de novo hearing I would
imagine.
(TAPE No. 092; 11/4/05; 9:24:26).
The court then denied Dale's CR 60.02 motion. Without stating
a basis for continuing to consider modification, the court
ordered “de nova[sic] testimony to be taken by deposition if
Petitioner in fact moves 120 miles from Mt. Vernon per
separation agreement....”
Faced with mounting expenses, Gina did make the decision to
pursue the significantly more lucrative managerial-track
employment with the restaurant chain in Memphis. On
December 2, 2005, after being informed of Gina's decision, the
circuit court ordered testimony to be taken by deposition and
submitted to the court. On March 15, 2006, the trial court, in
pertinent part, ruled as follows:
... The parties, by agreement, acknowledge that should either
party relocate more than 150 miles from Rockcastle County, the
custody and visitation issues would be subject to review and
modification. Petitioner has relocated to the Memphis,

121. Tennessee area, thus subjecting the decree to de novo review on
these issues.
....
IT IS ORDERED that the custody award, child support and
visitation order be modified [such] that the parties shall have
joint custody of the minor children.... The father, Robert Dale
Robinson, shall be the primary custodian, and the mother,
Eugenia [sic] Sue Wynn Robinson, shall have standard
visitation ... except there shall be no midweek visitation.... The
mother testified ... that her income would be $35,000 per year.
IT IS THEREFORE ORDERED tha t the mother shall pay child
support to the father in the amount of $710.84....
It is this order that Gina appeals. Because the trial court erred
in its interpretation of the June 23, 2005, Decree and in its
application of law, we must reverse and order enforcement of
the original permanent custody award contained in the Decree.
Child custody relocation litigation is not a new phenomenon in
Kentucky. See, e.g., Duncan v. Duncan, 293 Ky. 762, 170
S.W.2d 22, 154 A.L.R. 549 (1943)( “[S]ole question presented
... is whether the chancellor erred in modifying the judgment so
as to permit [the custodial parent] to move to Pennsylvania and
take the children with her.”). The arrival of the 21st century,
however, heralded an accelerated evolution in this area of the
law. This is true nationally4 as well as in Kentucky where our
courts continue to address increasing numbers of such

122. cases.5 Unfortunately, *68 despite Kentucky's recent legislative
efforts,6 Chapter 403 of the Kentucky Revised Statutes
(Dissolution of Marriage Child Custody) fails to specifically
address the special problem faced by our courts when custodial
parents desire to relocate with their children subsequent to
divorce.
The vast majority of state legislatures has passed a wide variety
of laws directly addressing the relocation issue; nearly half
require a relocating custodial parent to give advance notice of
the move to the other parent, the court, or both.7 Kentucky is
among the minority of states that have no specific statute.
Therefore, until our legislature aligns with the majority of
states, we are compelled to address relocation/custody issues by
applying the general custodial modification statutes, KRS
403.340 and KRS 403.350.
KRS 403.340(2) states:
No motion to modify a custody decree shall be made earlier
than two (2) years after its date, unless the court permits it to be
made on the basis of affidavits that there is reason to believe
that:
(a) The child's present environment may endanger seriously his
physical, mental, moral, or emotional health; or
*69 (b) The custodian appointed under the prior decree has
placed the child with a de facto custodian.
KRS 403.340(2).8 The companion statute, KRS 403.350, states,

123. in pertinent part:
A party seeking ... modification of a custody decree shall
submit together with his moving papers an affidavit setting
forth facts supporting the requested ... modification and shall
give notice, together with a copy of his affidavit, to other
parties to the proceeding, who may file opposing affidavits....
The court shall deny the motion unless it finds that adequate
cause for hearing the motion is established by the affidavits, in
which case it shall set a date for hearing on an order to show
cause why the requested order or modification should not be
granted.
KRS 403.350.
1Taken together, these statutes establish certain clear
prerequisites to the modification of a prior custody decree
where the modification is sought earlier than two years after its
entry. Specifically, the motion to modify “must be accompanied
by at least two affidavits. [Citation omitted]. If the applicable
requirement is not met, the circuit court is without authority to
entertain the motion.” Petrey v. Cain, 987 S.W.2d 786, 788
(Ky.1999). The filing of affidavits, therefore, is a jurisdictional
requirement. Crouch v. Crouch, 201 S.W.3d 463, 465
(Ky.2006)(“[T]rial court had no jurisdiction to modify the
[permanent custody] order unless a motion to modify, along
with a supporting affidavit, was filed in the case.”).
However, before we find that the trial court had no jurisdiction

124. to modify the Decree regarding custody, we will first examine
the alternative means by which Dale attempted to obtain
custody modification.
As indicated by the comments of Dale's attorney at the October
21, 2005, hearing, Dale was aware of the requirement of KRS
403.340(2) that he show Gina's contemplated move would
endanger the children. He sought to avoid both the
jurisdictional and substantive requirements of the statute by
filing a CR 60.02 motion, thereby obviating the need for
affidavits or proof of endangerment. Dull v. George,982 S.W.2d
227, 229 (Ky.App.1998)(When CR 60.02 relief is sought,
requirements of KRS 403.340 do not apply), cited with approval
in Gullion v. Gullion, 163 S.W.3d 888, 892 (Ky.2005).
2Under proper circumstances, relief from a court's final decree
of divorce, including an award of custody, is available by means
of a CR 60.02 motion. Crouch v. Crouch, 201 S.W.3d 463, 465
fn. 2 (Ky.2006). Had the trial court granted the extraordinary
relief requested in Dale's CR 60.02 motion, the custody
determination in the Decree would have been a nullity. The
standard for determining custody then would not have been a
modification under KRS 403.340, but an original determination
of permanent custody under KRS 403.270. Dull, 982 S.W.2d at
229.
Unfortunately for Dale, the trial court denied his CR
60.02 motion. Dale did not appeal the trial court's denial and for

125. good reason. Dale's deposition testimony made it clear that he
knew Gina had developed ties to the Memphis area long before
entry of the Decree. The fact that relocation was addressed in
the Decree itself is further indication of a contemplated
potential move whether to Memphis or some other destination in
excess of 150 miles away.
*703Dale's effort to revisit the custody issue should have ended
with denial of the CR 60.02 motion, but the trial court
continued toward modification and, in doing so, committed
reversible error. In reviewing the record on appeal, including
the depositions and videotapes of the many hearings, it is clear
the trial court did not follow KRS 403.340 in reaching its
decision to modify custody.
The trial court appears to have relied on Dale's counsel's
representation9 and did not examine the Decree. If the court
had, the error in interpretation would have been immediately
apparent. The provision in question permits review only of the
“time-sharing arrangement”—not of the custody award. The
error mistaking a provision authorizing modification of “time-
sharing” for one authorizing modification of custody is a
decisive, and in this case reversible, error.
The difference is significant since a motion to modify custody
made within two years after the date of the custody decree must
be made on the basis of affidavits that the child's or children's
present environment may endanger seriously his physical,

126. mental, moral, or emotional health, or that the custodian under
the prior decree has placed the child with a de facto
custodian. KRS 403.340(2). Where the modification is one of
visitation only, however, the court may grant an order
modifying visitation rights if it would serve the best interests of
the child. KRS 403.320(3).
Crossfield v. Crossfield, 155 S.W.3d 743, 745 (Ky.App.2005).
Just as KRS 403.320(3) authorizes the court to modify a
visitation order whenever it would serve the best interests of the
child, the parties' “time-sharing arrangement” can be similarly
modified.10 This is certainly true where the court anticipated
such a need and identified in the decree events that would
trigger reconsideration.
Clearly, Gina was mindful of the correct purpose and
interpretation of the provision when she filed her “Motion to
Modify Mid–Week Visitation.” The trial court was apparently
confused by the combination of Dale's response in the form of
his own motion to modify custody and his attorney's
representation that the Decree permitted such modification.
4Our case law clearly holds that custody modification falls
exclusively within the purview of KRS 403.340 and 403.350,
and any other judicially-created “gateways” to custody
modification are inapplicable. Fenwick v. Fenwick, 114 S.W.3d
767, 784 (Ky.2003). Consequently, even if the Decree had
contained a provision setting up a standard for modification of

127. permanent custody, it would be invalid unless it was in
complete harmony with KRS 403.340. This, however, was not
the case.
Because Dale's pursuit of custody modification occurred within
two years of the award of custody in the Decree, Dale was
required to file a motion pursuant to KRS 403.340(2) and attach
to his motion a minimum of two affidavits with the
proper *71 showing. He failed to do so and the trial court had
no authority to modify custody.
Despite our statement in Fowler v. Sowers, 151 S.W.3d 357
(Ky.App.2004) that “Fenwick carries quite limited precedential
weight[,]” id. at 359, the Supreme Court's holding in that case
remains sound law under KRS 403.340(2) where the
modification is sought within two (2) years of the original
award of permanent custody. The following passage from
Fenwick applies in this case:
[W]hen a primary residential custodian gives notice of his or
her intent to relocate with the parties' child, the burden is then
upon any party objecting to file a custody modification motion
within a reasonable time and after that, to satisfy the
modification standard of KRS 403.340 in order to change the
designation of primary residential custodian. If no motion is
filed within a reasonable time, the primary residential custodian
may relocate with the parties' child.
Fenwick, 114 S.W.3d at 786. Dale never pursued modification

128. pursuant to KRS 403.340. In fact, he avoided it. Custody should
not have been modified and Gina should have been permitted to
relocate with her children.
5Furthermore, we have thoroughly examined the record and see
no substantive basis for preventing Gina from relocating with
her children to the Memphis area.
Although the “interaction and interrelationship” of the children
with their father and other persons where they now live is a
relevant factor in determining the likelihood of harm by the
proposed relocation, [footnote omitted] the mere fact that
relocation may affect the frequency of [Dale's] time-sharing
with his children and the children's contact with other persons
does not, standing alone, support a finding that the proposed
relocation creates a likelihood of serious harm to the children.
Id. at 788.
For the foregoing reasons, the order of the Rockcastle Circuit
Court modifying the joint custody award by designating Robert
Dale Robinson as “primary [residential] custodian” is
REVERSED and the custody order pursuant to which Eugenia
Sue Wynn Robinson is to have primary residential custody of
the children is ordered to be reinstated. The case is remanded
for an order consistent with this opinion.
ALL CONCUR.
All Citations
211 S.W.3d 63

129. Footnotes
1
As in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003),
[t]he trial court employed the term “primary custodian.” This is
undoubtedly a misnomer because the trial court awarded joint
custody. Aton v. Aton, Ky.App., 911 S.W.2d 612, 615
(1995)(“There can be no ‘primary custodian’ in the joint
custody context. Joint custody prohibits a court from selecting a
primary custodian from two joint custodians. Such an act
annihilates shared decision-making, a fundamental principle of
joint custody. Although the statement quoted above is a
distortion of the law, the Chalupa [v. Chalupa, Ky., 830 S.W.2d
391 (1992)] opinion reiterates that although one parent may
have primary physical possession, the major decision-making is
shared.”). Accordingly, it is apparent that the trial court
intended to designate [Gina] as the primary residential
custodian.
Fenwick, 114 S.W.3d at 773 fn. 8. Where the trial court or
parties are quoted in this opinion, the error is retained.
Otherwise, the proper term is used.
2
Referred to by the circuit clerk as “Ct. Cal.” or Court Calendar.
3
The Decree actually said “150 miles,” but this error is irrelevant
since the contemplated move was greater than 400 miles. This

130. irrelevant error was corrected in the order from which the
appeal is taken.
4
Linda D. Elrod, Feature, States Differ on Relocation, 28 FAM.
ADVOC. 8, 8 (Spring 2006)(“Lawyers and judges have noticed
the increase in the number of custody disputes in which
relocation is an issue. The reasons are many: the steady high-
divorce rate; the number of joint-custody and shared-residency
arrangements; the shifting job market; remarriages; and the
mobility of today's society.”).
5
Despite the Supreme Court's comment in Fenwick v.
Fenwick, 114 S.W.3d 767 (Ky.2003) that “the relocation issue,
at least in the context of sole custody, has been addressed and
settled in Kentucky for more than a decade,” Id. at
784, Kentucky law in this area continues to evolve at a fast
pace. Since 2000, the Kentucky appellate courts have addressed
relocation/custody issues in some form in the following
cases: Crouch v. Crouch, 201 S.W.3d 463 (Ky.2006); Brockman
v. Craig, 205 S.W.3d 2444 (Ky.App.2006), mot. for disc. rev.
filed, (Ky. Aug. 15, 2006) (No. 2006–SC–587–D); Bowman v.
Bowman, ––– S.W.3d ––––, 2006 WL 658938
(Ky.App.2006)(Opinion Final, May 5, 2006); Allen v.
Devine, 178 S.W.3d 517 (Ky.App.2005); Cox v. Cox, 170
S.W.3d 389 (Ky.2005); Fowler v. Sowers, 151 S.W.3d 357, 359

131. (Ky.App.2004); Fenwick v. Fenwick, 114 S.W.3d 767, 779
(Ky.2003); Scheer v. Zeigler, 21 S.W.3d 807 (Ky.App.2000).
We could add to that list a fair number of unpublished opinions.
6
In 2001, child custody litigation in Kentucky was significantly
affected when the state legislature amended KRS 403.340. The
effect of the amendment was to soften custody modification
requirements when a motion for modification is filed more than
two years after the decree is entered. Fowler v. Sowers, 151
S.W.3d 357, 359 (Ky.App.2004). For modification within two
(2) years of the award of permanent custody, the standard
remains as strict now as prior to the amendment.
7
The following states require 30 days' notice prior to relocation:
Florida (FLA. STAT. § 61.13001(3)(2006)), Georgia
(GA.CODE ANN. § 19–9–1 (2006)), Kansas (KAN. STAT.
ANN.. § 60–1620 (2006)), Maine (ME.REV.STAT.ANN. tit.19–
A, §§ 1653(14) & 1657 (2006)), Montana (MONT.CODE
ANN. § 40–4–217 (2006)), New Mexico (N.M. STAT. § 40–4–
9.1 (2006)), and Virginia (VA.CODE ANN. § 20–124.5 (2006)).
These states require 45 days' notice: Alabama (ALA.CODE §
30–3–163 to 167 (2006)), California (CAL. FAM.CODE §
3024 (2006)) and Maryland (MD.CODE ANN., FAM. LAW § 9–
106 (2006)). States requiring 60 days' notice are: Arizona
(ARIZ.REV.STAT. § 25–408 (2006)), Louisiana

132. (LA.REV.STAT. ANN. § 9:355.4 (2006)), Missouri
(MO.REV.STAT. § 452.377 (2006)), New Hampshire
(N.H.REV.STAT. ANN. § 458:23–a (2006)), Tennessee
(TENN.CODE ANN. § 36–6–108 (2006)), Utah (Utah Code
Ann. § 30–3–37 (2006)), Washington (WASH. REV.CODE §§
26.09.405, et seq.(2006)), West Virginia (W.VA.CODE § 48–9–
403 (2006)) and Wisconsin (WIS. STAT. § 767.481 (2006)).
The 2006 session of the Indiana legislature recently enacted a
90–day notice requirement (IND.CODE ANN. § 31–17–2.2–
3 (2006)). “Reasonable” notice is required in Colorado
(COLO.REV.STAT. ANN. § 14–10–129 (2006)) and Oregon
(OR.REV.STAT. ANN. § 107.159 (2006)). Finally, the
following states specifically address the relocation issue
without implementing a notice requirement: Illinois (750 ILL.
COMP. STAT. ANN. § 5/609 (2006)), Iowa (Iowa Code Ann. §
598.21D (2006)), Massachusetts (MASS. GEN. LAWS ch. 208,
§ 30 (2006)), Michigan (MICH. COMP. LAWS § 722.31
(2006)), Minnesota (MINN.STAT. § 518.195, Subd. 7 (2006)),
Nevada (NEV.REV.STAT. § 125C.200 (2006)), New Jersey
(N.J. STAT. ANN. § 9:2–2 (2006)) and North Dakota (N.D.
CENT.CODE § 14–09–07 (2006)).
8
Formerly KRS 403.340(1).
9
Having carefully reviewed these representations, they appear

133. more cavalier than intentional or negligent. Matters of this
import, however, should not be handled cavalierly either.
10
Strictly speaking, neither joint custodian derives his or her
visitation rights from KRS 403.320. However, we agree with
authority that the practice of renaming visitation “shared time,”
“time-sharing,” “parenting time,” or any other similar term,
even as to joint custodians, will not affect the inherent nature of
visitation nor the applicability of KRS 403.320 to modify it.
16 LOUISE E. GRAHAM & JAMES E. KELLER, Kentucky
Practice, Domestic Relations Law § 22.1 (2nd ed.1997).
End of Document
© 2019 Thomson Reuters. No claim to original U.S.
Government Works.
SELECTED TOPICS
· Modification of Joint Child Custody Decree
· Child Custody
·
· Proceedings
·
· Prior Judgment Incorporating Shared Parenting Plan
· Child Support
·
· Contracts Relating to Support
·

134. · Provisions of Separation Agreement Concerning Custody,
Support, and Visitation of Minor Children
1. Secondary Sources
Divorce: power of court to modify decree for support of child
which was based on agreement of parties
61 A.L.R.3d 657 (Originally published in 1975)
...This annotation considers the question of the power of a court
to modify a decree for child support which was based upon a
predivorce agreement of the parties. The type of factual
situation presented a...
2. Validity and effect, as between former spouses, of agreement
releasing parent from payment of child support provided for in
an earlier divorce decree
100 A.L.R.3d 1129 (Originally published in 1980)
...This annotation collects and analyzes the cases determining
the validity and effect, as between divorced spouses,
agreements between such divorced spouses, made subsequent to
the entry of their divorce...
3. Effect of Parent's Military Service Upon Child Custody
21 A.L.R.6th 577 (Originally published in 2007)
...This annotation collects and discusses the state and federal
cases specifically considering the effect on the determination of
a child custody award or modification, as between the child's
parents, of ...
4. See More Secondary Sources

135. 5. Briefs
Appellees' John Hugh Shannon, P.A. and Lauren J. Strickland
Opening Brief
1996 WL 33475112
Kenneth I. STRICKLAND, Appellant., v. John Hugh
SHANNON, P.A. and Lauren J. Strickland Appellees.
United States Court of Appeals, Eleventh Circuit.
Mar. 04, 1996
...A threshold issue is whether the District Court's decision
appealed by Kenneth I. Strickland constitutes a final decision,
thus authorizing appellate review by this Court pursuant to 28
U.S.C. § 158(d)...
6. Brief of The County of Cuyahoga, Ohio as Amicus Curiae in
Support of Petitioners
2015 WL 981535
James OBERGEFELL, et al., and Brittani HENRY, et al.,
Petitioners, v. Richard HODGES, Director, Ohio Department of
Health, et al., Respondents.
Supreme Court of the United States
Feb. 27, 2015
...Cuyahoga County submits this Brief as amicus curiae in
support of Petitioners. Home to the city of Cleveland, Cuyahoga
County is the most populous county in the State of Ohio - one
of the four states s...
7. JOINT APPENDIX, VOL. I

136. 2015 WL 881797
James Obergefell, et al., and Brittani Henry, et al., Petitioners,
v. Richard Hodges, Director, Ohio Department of Health, et al.,
Respondents. Valeria Tanco, et al., Petitioners, v. William
Edward Bill Haslam, Governor of Tennessee, et al.,
Respondents. Gregory Bourke, et al., and Timothy Love, et al.,
Petitioners, v. Steve Beshear, Governor of Kentucky, et al.,
Respondents.
Supreme Court of the United States
Feb. 27, 2015
...FN* Counsel of Record FN* Not admitted in D.C.; supervised
by Ropes & Gray partners who are members of the D.C. Bar
[Filed: 07/19/13] I, James Obergefell, under 28 U.S.C. §1746,
declare under the penal...
8. See More Briefs
9. Trial Court Documents
Out of Plan
U.S. v. Luther
2000 WL 35621613
UNITED STATES OF AMERICA, v. David Ray LUTHER,
Defendant.
United States District Court, W.D. North Carolina.
July 10, 2000
...(For Offenses Committed On or After November 1, 1987)
THE DEFENDANT: X pleaded guilty to count(s) 1 _ pleaded

137. nolo contendere to count(s) _ which was accepted by the court.
_ pleaded guilty by alford p...
10. Out of Plan
USA, v. MAALI, et al.
2005 WL 6073954
USA, v. MAALI, et al.
United States District Court, M.D. Florida.
Sep. 08, 2005
...The defendant was found guilty on Counts 54, 56, 57, 58, 59-
71 of the Third Superseding Indictment. Accordingly, the court
has adjudicated that the defendant is guilty of the following
offenses: The de...
11. U.S. v. Liverman
2002 WL 34392421
UNITED STATES OF AMERICA, v. James A. LIVERMAN, Jr.,
Defendant.
United States District Court, E.D. Virginia.
July 12, 2002
...The defendant, JAMES A. LIVERMAN, JR., was represented
by Walter B. Dalton. The defendant pleaded guilty to count(s)
1. Accordingly, the defendant is adjudged guilty of the
following count(s), involvin

266 S.W.3d 754
SupremeCourt of Kentucky.

138. Maria Regina FRANCES, Appellant,
v.
Bobby Gene FRANCES, Appellee.
No. 2007–SC–000076–DGE.
Oct. 23, 2008.Synopsis
Background: In context of divorce proceedings, the Circuit
Court, Trigg County, declared husband as child's primary
residential custodian. Wife appealed. The Court of Appeals
affirmed.
Holdings: On review, the SupremeCourt held that:
1 initial custody determination was governed by statute
requiring consideration of child's best interest,
overruling Fenwick v. Fenwick, 114 S.W.3d 767, and
2 designation of husband as child's primary residential
custodian was in best interests of child.
Affirmed.West Headnotes (5)Collapse West Headnotes
Change View
1Appeal and Error
Findings of fact shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses.
50 Cases that cite this headnote

30Appeal and Error
30XVIReview

139. 30XVI(D)Scope and Extent of Review
30XVI(D)10Sufficiency of Evidence
30k3452Credibility and Number of Witnesses
30k3455Judge as factfinder below
(Formerly 30k1008.1(4))

30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)9Verdict and Findings in General
30k3425Clear Error;  “Clearly Erroneous” Standard
30k3426In general
(Formerly 30k1008.1(5))
2Appeal and Error
Findings of fact are clearly erroneous only if they are
manifestly against the weight of the evidence.
57 Cases that cite this headnote

30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)10Sufficiency of Evidence
30k3465Weight of Evidence
30k3473Manifest weight;  manifestly contrary
(Formerly 30k1012.1(5))

140. 3Child Custody
When an appellate court reviews the decision in a child custody
case, the test is whether the findings of the trial judge were
clearly erroneous or that he abused his discretion.
37 Cases that cite this headnote

76DChild Custody
76DXIIIAppeal or Judicial Review
76Dk913Review
76Dk921Discretion
76Dk921(1)In general

76DChild Custody
76DXIIIAppeal or Judicial Review
76Dk913Review
76Dk922Questions of Fact and Findings of Court
76Dk922(1)In general
4Child Custody

Initial custody determination that involved wife's relocation
with child to Iowa as factor was governed by statute requiring
consideration of child's best interest, and was not governed by
statute governing modification of custody; overruling Fenwick
v. Fenwick, 114 S.W.3d 767.KRS 403.270, 403.340.
15 Cases that cite this headnote

141. 76DChild Custody
76DVIGeographical Considerations
76Dk260In general
5Child Custody
Designation of husband as child's primary residential custodian
under joint custody order was in best interests of child; wife
had unilaterally relocated to Iowa with child without informing
husband, which showed disregard of child's strong relationship
with husband, husband's extended family, and child's adjustment
in community, and mother's live-in boyfriend had restricted,
supervised visitation with his own children due to
alcoholism. KRS 403.270.
22 Cases that cite this headnote

76DChild Custody
76DIVJoint Custody
76Dk147Physical custody arrangementsAttorneys and Law
Firms
*754Julia Thigpen Crenshaw, White, White & Crenshaw,
Hopkinsville, KY, Counsel for Appellant.
Sands Morris Chewning, Chewning & Chewning,
Hopkinsville, KY, Counsel for Appellee.Opinion
Opinion of the Court by Justice NOBLE.

142. This case arises from an initial custody determination by the
Trigg Circuit Court awarding primary physical custody of the
parties' daughter to the Appellee, Bobby Gene Frances. The
Appellant, Maria Regina Frances, claims that the trial court's
findings of fact were clearly erroneous and that the court
improperly considered her relocations as a factor in its decision.
After reviewing the record and the applicable statute, KRS
403.270, this Court finds no *755 clear error or abuse of
discretion by the trial court and affirms the Court of Appeals,
which affirmed the trial court's decision granting joint custody,
with the Appellee being designated as the primary residential
parent.
I. Background

The parties were married on January 30, 1991, and had a
daughter, Haley, on December 2, 1997. In March 2004, the
parties separated but continued to live together in
Cadiz, Kentucky. The Appellant filed for divorce on May 9,
2004, and in June 2004, the Appellee moved to neighboring
Hopkinsville, Kentucky. A decree dissolving the parties'
marriage was entered June 8, 2005. The decree, however, did
not address custody, visitation, child support, and other matters,
and the Trigg Circuit Court retained jurisdiction over those
issues.
By agreed order entered September 2, 2004, the Appellee was

143. ordered to pay $212.68 in child support each month. After their
separation, the parties operated under an informal shared
custody agreement, under which the Appellant functioned as the
primary residential parent and the Appellee enjoyed nearly
equal time sharing with Haley. This was not formalized in a
temporary custody order or agreed order.
Both parties adhered to the informal custody agreement until
April 2005, when the Appellant removed Haley from school and
relocated to Iowa without notifying the Appellee or the Trigg
Circuit Court. The Appellee filed an emergency motion for
temporary custody on April 11, 2005, at which time the parties
were awarded temporary joint custody. The order provided for
nearly equal time sharing and reasonable telephonic
communication between the parties and Haley. A hearing was
conducted on April 28, 2005, and proof was taken on the issue
of custody. On June 21, 2005, a second hearing was conducted,
and on June 28, 2005, the Trigg County Circuit Court awarded
joint custody with primary physical custody to the Appellee. In
support of its ruling, the trial court concluded that the
Appellant's unilateral decision to remove Haley from school and
relocate to Iowa without notifying the Appellee disregarded the
child's best interests. Haley's close relationship with the
Appellee, regular and frequent interaction with the Appellee's
extended family, and successful adjustment within the
community of Trigg County, Kentucky provided the basis for

144. the trial court's decision. The trial court denied a subsequent
motion to amend, alter, or vacate.
The Court of Appeals affirmed the Trigg Circuit Court, holding
that the trial court was in the best position to make a custody
determination and the decision was neither clearly erroneous
nor an abuse of discretion.
This Court subsequently granted discretionary review to address
custody and relocation issues. This case was heard on the same
day as Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008),
released herewith and which also addresses relocation and child
custody. Much of what is discussed therein applies here as well,
though this case involves relocation issues prior to issuance of
the custody decree, and Pennington's relocation issues arose
subsequent to the custody decree.
Specifically, however, Appellant relies on Fenwick v.
Fenwick, 114 S.W.3d 767 (Ky.2003), which is overruled in part
in Pennington and must also be addressed in this case because
both this case and Fenwick involve relocation issues that arise
prior to entry of the custody decree.
II. Analysis
The Appellant argues that the trial court erred in naming the
Appellee the primary *756 residential custodian and erred in its
findings regarding her abrupt relocation to Iowa. She argues
specifically that it was unreasonable and unfair in light of the
evidence for the trial court to name the Appellee primary

145. residential custodian when she functioned as Haley's primary
caregiver throughout her life. Additionally, she argues that it
was erroneous for the trial court to conclude the relocation to
Iowa was not motivated by a desire to improve living
conditions. Though the Appellant attempts to characterize the
trial court's determinations as two distinct errors, the bottom
line is that the finding regarding her relocation to Iowa was
simply part of the consideration in determining that it was in
Haley's best interest for the Appellee to be her primary
residential custodian.
123Civil Rule 52.01 states in pertinent part, “Findings of fact
shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” Furthermore, findings of fact are
clearly erroneous only if they are manifestly against the weight
of the evidence. Wells v. Wells, 412 S.W.2d 568, 571
(Ky.1967). These directives are clearly applicable to child
custody cases. Reichle v. Reichle, 719 S.W.2d 442, 444
(Ky.1986). When an appellate court reviews the decision in a
child custody case, the test is whether the findings of the trial
judge were clearly erroneous or that he abused his
discretion. Eviston v. Eviston, 507 S.W.2d 153 (Ky.1974).
The Appellant primarily notes various items of evidence in the
record that support her version of the facts and that cut against
the trial court's findings. She also relies on a 2004 unpublished

146. opinion from the Court of Appeals, Jones v. Jones, No.2001–
CA–002037–MR, 2004 WL 360901 (Ky.App. Feb.27, 2004),
which she cites pursuant to CR 76.28. The Appellant improperly
characterizes the trial court's finding that the relocation “was
not career motivated but was based on a whim arising out of a
romantic relationship” as the deciding factor in the trial court's
custodial determination. She cites Jones to support her claim
that the trial court's conclusion that she moved for a “romantic
relationship” was an improper basis for denying her designation
as primary residential custodian.1
4As the trial court in this case properly noted, its custody ruling
was not entered in response to a motion to modify a permanent
order of custody; rather, it was actually the custody
determination. As such, the court properly considered the
standard required by KRS 403.270, the custody determination
statute, which states that custody shall be determined in
accordance with the best interests of the child giving each
parent equal consideration. The statutory guidelines of KRS
403.270 do not include a definition of the best interests of the
child standard; however, KRS 403.270(2) requires the trial
court to consider all relevant factors and provides a list of non-
exclusive, demonstrative factors to be considered in custodial
determinations.
Citing Fenwick as authority, Appellant argues that as the
primary caregiver in Haley's life up until the final custody

147. decree, she was entitled to relocate with her child and that
Appellee was required to show that the move seriously
endangered the child, and that the harm from change of custody
to him would be outweighed by *757 the good. However, this
Court in Fenwick did not consider that relocation had been
raised prior to entry of the final custody decree, and thus
applied KRS 403.340, the modification of custody statute. In so
doing, this Court erred because it did not distinguish between a
temporary custody order and a custody decree. The Court now
recognizes that the effect of relocation by a parent with the
child on custody and visitation must be viewed in light of
whether relocation occurs pre- or post-decree.
KRS 403.340, the modification of custody statute, speaks to
modification of a custody decree, but the child custody statutes
include no express definition of a “custody decree.” While the
generally preferred dictionary definitions of “decree”
contemplate it as an ultimate decision or a “final judgment,” the
term having originated as the name of the “judgment” from a
court of equity, it is often applied even to interim orders,
especially in domestic cases. See Black's Law Dictionary 440–
41 (8th ed.2004). Though Kentucky's child custody statutes
include no express definition, it is clear that they distinguish
between interlocutory child custody orders and decrees, with the
latter meaning a final decision that ends the custody proceeding,
is immediately appealable, and is subject to modification at a

148. later date. The decree is the “judgment” (as defined in CR
54.01) in a custody case. The distinction is inherent in KRS
403.280, which provides that a court may enter temporary
custody orders during a proceeding. This anticipates that
custody matters will have to be dealt with in an interim manner
before the final decree is entered. KRS 403.350 discusses both
temporary custody orders and custody decrees, which further
indicates that they are two separate things.
Thus, this Court must conclude that there are both temporary
custody orders and custody decrees. Any order entered pursuant
to KRS 403.208 is a temporary custody order; such decisions
are “pendente lite,” “interlocutory,” or “non-final.” The trial
judge's “final” decision about custody is the custody decree.
Finality in this context is different than in most others,
however, as the decision, while immediately appealable, is
subject to modification at a later time under KRS 403.340. For
present purposes, the final decision—the decree—is the one that
is “final or appealable,” meaning that it is “a final order
adjudicating all the rights of all the parties in an action or
proceeding, or a judgment made final under Rule 54.02.” CR
54.01. For example, as applied to Fenwick, the pendente lite
order discussed in that opinion was a “temporary custody order”
and the final decision (entered on December 8, 1997) was a
custody decree. To the extent that Fenwick is inconsistent with
this understanding, it is overruled.

149. In making the final custody decree, the trial court must
apply KRS 403.270, which has a best interests standard.
Consequently, most of the discussion in Fenwick about the
standard to be applied to modification of custody must be
disregarded in this case, as must any rule that appears to give a
preference on relocation to a primary residential parent. Here,
the trial court correctly applied the best interests standard, and
while Appellant obviously disagrees with its findings, this
Court cannot depart from them unless the factual findings are
clearly erroneous or the trial court abused its discretion in
applying the law.
5The Appellant's brief focuses on providing explanations and
justifications for her move to Iowa. She asserts, among other
things, that her reasons for relocating were to escape the
Appellee's threatening, erratic behavior and to improve her
financial situation by sharing household expenses with her live-
in boyfriend. She *758 claims these points demonstrate why the
trial court made incorrect findings of fact and abused its
discretion. However, the trial court conducted “extensive
hearings on child custody, visitation and support,” considered
these allegations and, based on the evidence, came to the
conclusion that the Appellant “disregarded the child's best
interest by abruptly pulling her out of school later in the term
and removing her to Iowa without notification to the child's
father.” Though the trial court stated the relocation of the

150. Appellant was a substantial factor in the custodial determination
(not the “deciding factor” as alleged by the Appellant), the
record also indicates that the trial court placed significant
weight on Haley's strong relationship with her father, frequent
interaction with the father's extended family, and adjustment
within the community. The Appellant's unilateral decision to
disregard these substantial components of Haley's life supports
the conclusion that it is in Haley's best interests that the
Appellee function as primary residential custodian.
The Appellant also faults the trial court for making a final
custody determination without waiting for the results from a
court-ordered home study in Iowa entered May 4, 2005. Before
the home evaluation report was concluded, the Appellee moved
to reopen the proof, claiming that the Appellant had lied under
oath concerning her live-in boyfriend's criminal convictions. At
a hearing on June 21, 2005, evidence was presented that
Appellant's live-in boyfriend, Michael Plank, had a prior DUI
conviction. While under house incarceration, Plank had “passed
out” in his hotel room while his own children played unattended
in a motel pool on his visitation day. As a result, for an
extended period thereafter, he was restricted to supervised
visitation with his own children. The Appellant had testified
that Plank had completed court-ordered alcohol counseling and
did not drink around the home. While this was not directly
contradictory to the new evidence, it did indicate less than fully

151. candid testimony, and it was proper for the trial court to give
that testimony weight.
The trial court was in a position to weigh the new evidence
presented at this hearing with that it had heard in the previous
hearings, and to make a well-reasoned custody determination
without the benefit of a home study. The record clearly
demonstrates careful attention and consideration to the best
interests of the child.
Strikingly, the Appellant argues that the trial court placed too
much emphasis on a single factor—her relocation to Iowa—yet
simultaneously requests this Court to reverse the decision of the
trial court almost solely based on her status as primary
caregiver before the parties separated. While the trial court
acknowledged it can be detrimental to remove a young daughter
from her mother, it held that the other factors nevertheless
supported the change in primary residence.
Although Appellant did relocate with the child, this case is not
about the typical relocation questions of whether the relocation
warrants a change of custody or of timesharing. Since this was
the actual custody determination, the trial court had a clear
directive to make its decision based on the best interests
standard set forth in KRS 403.270.
After reviewing the record, it is clear the trial court's decision
was supported by substantial evidence. While some of the
evidence conflicted with the trial court's conclusions, and a

152. different trial court or a reviewing appellate court might
disagree with the trial court, the standard on appellate review
requires a great deal of deference both to its findings of fact and
discretionary decisions. To echo the Court of Appeals, the trial
court was in the best *759 position to resolve the conflicting
evidence and make the determination that it was in Haley's best
interest for the Appellee to have primary physical custody. The
trial court's decision adheres to the mandate of KRS 403.270,
including giving due consideration to all relevant factors. The
Court of Appeals was correct in noting that the trial court's
decision was neither clearly erroneous nor an abuse of
discretion.
Therefore, the Court of Appeals is affirmed.
MINTON,
C.J.; ABRAMSON, SCHRODER, SCOTT and VENTERS, JJ.,
concur. CUNNINGHAM, J., not sitting.All Citations
266 S.W.3d 754Footnotes
1
Without discussing the propriety of CR 76.28 as applied in this
case, the Court has addressed Jones only to the extent Appellant
relies on it for the reasoning of her argument as that case is not
binding on this Court.

153. OFFICE LEGAL MEMORANDUM

To: Harvey Litt, Supervising Attorney

From: Paralegal

Date: April 16, 2019

Re: Smith v. Smith
It is an impending divorce, regarding arrangements for three
children custody and child support and argument for
maintenance.

ISSUES
Issue I: Under Kentucky law In Determining custody, what
factors does the court use to make that Determination, if one
child is still breastfeeding with medical needs and the other two
teens want a particular high school that offers Volleyball
scholarship located where the father lives, How Guardians Ad
Litem perform a significant role in the best interests of the child
Who would be the primary custodian?
Brief Answer 1: Under Kentucky Revised Statues Title XXV.
Domestic relations, Chapter 403 states that the best interest of
the child shall be used to determine custody. With this statute,
the primary caregiver, or “de facto custodian,” must be an

154. individual who can act as the primary caregiver and financial
supporter of the child. The individual must meet the
requirements of KRS 405.020 to be granted custody of the child.
The court considers the wishes of the parent(s), the wish of the
child, the interrelationship between child and parent, the child’s
adjustment at home and their mental health. A “guardian ad
litem,” or GAL, is a person that is appointed by the court to
investigate what solutions would be in the best interest of the
child. The GAL investigates the family and advises the court.
This will include: where the children should live most of the
time; if a child is being harmed by a parent’s substance abuse;
and what kind of contact the child should have with the parent.
Issue II Under the Kentucky family law, does the court to
establish or enforce child support for minor children when one
of spouse unemployed?
Brief Answer 2: Under Kentucky Family law, if a parent is
unemployed or underemployed, then the parent’s “potential
income” is used. Potential income includes the parent’s
employment potential, probable earning, occupational
qualification, and job opportunities in the community. There are
three situations where potential income is not used for
unemployment. This includes if the parent is physically or
mentally incapacitated or if the parent is caring for a child that
is three-years-old or younger to which the parents owe a joint
legal responsibility.

155. Issue III Under the Kentucky law, if one spouse is unemployed,
but will earn 50,000 annually once she completes 4 classes
earning a Bachelor’s of Science Nursing degree, meanwhile the
other spouse is employed with an annual income of $120,000
and offered a mortgage-free marital home for the spouse. What
are the criterions the court will use determine maintenance?
Brief Answer 3: The potential income will be used. It is
expected that the partner will make $50,000 once the four
classes are finished. The court will consider this factor (the
$50,000 the individual would earn) and take into account the
individual’s potential for employment, occupational
qualification, and job opportunities. This will be used to
determine maintenance.
Statement of Facts
Jennifer Smith and Jonny have decided to obtain a divorce
(dissolution of marriage) thirteen years. For approximately five
months, they have been living apart. Johnny is now living in a
three-bedroom condo in Lexington, Kentucky, while Jennifer is
living in the marital home. Jonny and Jennifer Smith have
already had several quarrels and arguments concerning
arrangements of child support and custody for their three
children Joe, age thirteen months, Jessica, age twelve years, and
Julie, age sixteen years. Jessica and Julie are both "father's
daughter" and want to live with the dad. They blame their
mother for the divorce. Jennifer still breastfeeds Joel. Joel is a

156. particular need child. Therefore, the medical backgrounds of
Jennifer are necessary for Joel's needs. Jonny has challenges
meeting the medical needs of Joel and has no medical
knowledge. Currently, Jonny is dating Dr. Sizemore Sandy
Nevertheless, Dr. Alex Miller, the Pediatrician of Joel, would
be ready to testify that Jennifer is better placed to achieve the
needs of the toddler.
Analysis Issue I
The issue I: Joint Custody Will Be the Default under New
Kentucky Law
In the case of Jonny and Jennifer, the court may allow Jennifer
to have full custody of Joel because of his special needs.
However, the court can still recognize the father to access him
at will. Kentucky is the original state in the nation to establish
"legal assumptions" for joint custody in the proceedings of
divorce. The law argues that joint custody supports a more
stable rearing of the children. In Pennington v. Marcum, 266
S.W.3d 759 (Ky. 2008) The court granted joint custody to both
spouses since it was a no-fault divorce scheme. Both parties had
joint custody, with the mother having primary custody and the
father liberal visitation. The court is likely to allow for joint
custody because, under Kentucky laws, single parenting
deprives the children meaningful connections with both of their
parents. The family juries were granting all of the parenting
time and one parent custody essentially. This excluded

157. otherwise fit parent from being involved in the upbringing of
their children and essentially relegating them to being a visitor
in the lives of their children. The law, therefore, advocates for
equals rights for custody of the children where both parents
must be involved in the rearing of their kids. Jonny and Jennifer
should try to solve the custody cases before they get to court to
avoid confrontations and antagonism between them.
Counter analysis

a)Jess and Julie
In Johnny’s situation, the court will make several considerations
while granting custody in the case of Julie and Jess. According
to Statue KRS 403.290. A child who is above 11 years and is
capable of making her own decisions has the freedom to choose
who they want to live with. Both Jess and Julie are above 11
years and are willing to live with Johnny. The court can
therefore grant John full custody from this point of view.
Secondly, according to the KRS 403.270; the best interests of
the kids should be put into consideration when making decisions
on child custody. In addition to the fact that they want to live
with Johnny, Julie and Jess play volleyball and have been
accepted to a school that play volleyball exceptionally which is
near where Johnny is currently living. The court can therefore
grant Johnny custody on the basis of Guardian Ad Litem since
his conditions better support the wellbeing of Jess and Julie.

158. b)Joel
Joel is still breastfeeding and has a disability. With reference to
KRS 403.290; best interests of the child and Guardian Ad
Litem, Jennifer is the best caregiver to john. Being a nurse,
Jennifer is more likely to offer better care to Joel compared to
John. In addition, the fact that Joel is still breastfeeding makes
Jennifer his Guardian Ad Litem.
Summary of Possible Outcomes: Johnny to be Julie’s and Jess’
primary custodian. Jennifer is more likely to be Joel’s primary
custodian.
Analysis Issue II
The court may allow the children to live with the unemployed
parent but compel the employed parent to provide the necessary
support the children need. Alternatively, the court may allow
the children to live with an employed parent and let the other
parent just to be visiting them to know their well-being. Under
the Kentucky child support guidelines, if one of the spouses is
unemployed but has the ability to seek for employment; then the
employed spouse has the responsibility of providing temporary
child support; an amount, which is decided, by the court for the
minor child. However, if the spouse is not capable of getting a
job due to health or mental issues, then the employed spouse
has an obligation to provide full child support.
Analysis Issue III
Jennifer’s MaintenanceDespite being currently unemployed,

159. Jennifer has the potential of finding a job that will give her a
salary of approximately $50, 000 once she completes her four
classes in nursing. According to the Kentucky’s guideline on
maintenance and with reference to GOSSET v. GOSSET case
law; Jennifer is entitled to receiving temporary maintenance
from Johnny until she completes her classes, gets a job and gets
up on her feet. In GOSSET, v. GOSSET, 32 S.W.3d 109 (2000)
the court ruled that the defendant (ex-wife); who was at the time
of separation unemployed had the capacity to find employment.
Therefore, the court ruled that the defendant could receive a
temporary maintenance of $50 per month for a period of two
years; according to KRS 403.212 before getting back to her
feet. This maintenance was mainly dedicated to healthcare.





MEMO Outline


Issues:
1. Under Kentucky law In Determining custody, what factors
does the court use to make that Determination, if one child is
still breastfeeding with medical needs and the other two teens

160. want a particular high school that offers Volleyball scholarship
located where the father lives, Who would be the primary
custodian?
How Guardians Ad Litem perform a significant role in the best
interests of the child

2. Under the Kentucky family law, does the court to establish or
enforce child support for minor children when one of spouse
unemployed?


3. Under the Kentucky law, If one spouse is unemployed, but
will earns 50,000 annually once she complete 4 classes earning
a Bachelor’s of Science Nursing degree, meanwhile the other
spouse is employed with an annual income of $120,000, and
offered a mortgage free marital home for the spouse. What are
the criterions the court will use determine maintenance?

Cases:
1. GOSSETT, v. GOSSETT, 32 S.W.3d 109 (2000) child
support- unemployed.
2. Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) - joint
custody, Child Custody.
3. Baize v. peak (2017)
4. Weber v. Lambe (2017)

161. 5. Frances v. Frances Supreme Court of Kentucky. October 23,
2008266 S.W.3d 754


What statutes are you using?
KRS 403.270 > best interest of the childe
KRS 403.290> chlid wishes
KRS 403.212 >child support
KRS 403.211 > to establish or enforce child support
KRS 403.200> maintenance
KRS 403.160> maintenance and child support

Secondary sources:
1- § 24:32. Child support—Guidelines—Deviation. 16 Ky. Prac.
Domestic Relations L. Ch. 24 Refs.
2- § 21:31.Child custody—Joint custody—Court-ordered. 16
Ky. Prac. Domestic Relations L. § 21:31
3- § 24:27. Child support—Guidelines—Gross income—
Voluntarily underemployed or unemployed obligors 16 Ky.
Prac. Domestic Relations
4- § 8:22.50.Guardian ad litem in civil custody cases

The facts part, it is the summary of the basic latter in the
ASSIGNMENT.
(Issues , answers ) +3

162. Example, custody analysis: rules 1,2,3 “ whether case relevant
statutes secondary sources” continue analysis then counter
analysis. Short conclusion, to close the analysis.
For the five cases and relevant statutes and least (3) secondary
sources all would be in the analysis part and the counter
argument” each issue must have a counterargument” as
examples to support the addressing issues with explanations.
In the conclusion: No law will be used


LEGAL RESEARCH & WRITI NG I
OFFICE MEMORANDUM FACT SITUATION

Johnny and Jennifer Smith have decided to obtain a dissolution
of marriage (divorce) after thirteen years of marriage. They
have been living apart for approximately five months. Jennifer
is living in the marital home, and Johnny is now living in a 3
bedroomcondo in Lexington, Kentucky. Johnny, age 40, is a
Lexington bank manager who has an annual income of
$120,000. Jennifer, age 38, is a homemaker who has not worked
outside the home in 13 years. Before giving birth to Julie (their
oldest daughter), Jennifer attended nursing school at EKU and
worked full-time as a Certified NursingAide (CNA). A full
time CNA can expect to earn $30,000 annually in Richmond,
Kentucky. She is one semester/12 hours (4 classes) shy of

163. earning a Bachelor’s of Science Nursing (BSN) degree. A
Kentucky Registered Nurse can expect to start out earning
$50,000 annually in Richmond, Kentucky.

Johnny has come to the law offices of Bluegrass Family Law,
PLLC, where you work as a paralegal, for help. Jonny has just
informed your supervising attorney, Harvey Litt, that this will
not be a “friendly” divorce. He and Jessica have already had
several arguments concerning custody and child support
arrangements for their three children Julie, age 16, Jessica, age
12, and Joel, age 13 months.

Julie and Jessica are both “Daddy’s girls” and want to live with
Johnny. They blame Jennifer for the divorce. The girls both
play volleyball, and they want to transfer from Madison Central
High School to Tates Creek High School (in the school district
where Johnny now resides). Tates Creek is the 3-time
defending Kentucky Volleyball State Champions, and the school
has had 13 students earn volleyball scholarships the past 5
years. Julie is already being recruited by several Colleges, and
her dream is to attend the University of Kentucky on a
Volleyball scholarship. Jennifer is still breast-feeding Joel.
Joel is a special needs toddler, so Jennifer’s medical
background is crucial for his needs. Johnny has no medical
knowledge and has challenges meeting Joel’s medical needs.

164. Johnny is currently dating Dr. Sandy Sizemore, his Cardiologist
in Lexington, Kentucky. However, Joel’s Pediatrician, Dr. Alex
Miller, would be willing to testify that Jennifer is better suited
to meet the toddler’s needs.

Johhny has asked Mr. Litt about the following issues regarding
the impending divorce:


1. Both parents want sole custody of the children. However,
Johnny would concede to joint custody, which he believes
would mean the parents would share equal time with the
children, and he wants to be the primary custodian of the
children (they live with him). Johnny would like to know what
joint custody means and if it truly means equal time. Mr. Litt
has told you the law on this question recently changed.

2. In addition, Johnny thinks that because he and Jennifer are so
bitter and antagonistic toward each other, that a joint custody
arrangement would never work. Therefore, Johnny wants to
know if a Court could, and would be likely to, award joint
custody in this situation. What is the standard for custody?
Does the Court care what the children want to do? Does the
Court have a way to represent the children’s interests?

165. 3. Johnny knows that Jennifer also wants to receive child
support payments from him if she is granted sole custody, or
she is the primary custodian. Johnny expects the same if he is
granted sole custody, or he is the primary custodian. However,
Johnny thinks that if the court awards joint custody – where
they would share equal time with the children – neither will not
have to pay the other any child support. Johnny wants to know
whether this is true. Johnny also wants to know how a Court
goes about determining who pays child support.

4. Finally, Johnny knows that Jennifer also expects to receive
alimony (maintenance) from him. She’s told him that she
“wants payments for at least 13 years” (equal to the number of
years they were married). Johnny has told Jennifer that he
“can’t pay her alimony (maintenance) and child support and still
have enough disposable income to make ends meet.” Johnny
has offered to let Jennifer keep the “mortgage free” marital
home. What are factors the Court will consider. Is Jessica
likely to receive alimony (maintenance)?


Mr. Litt wants you to research the above issues and prepare an
office (internal) memorandum on these issues. He has asked that
you research these issues and first prepare a detailedoutline
with relevant authorities included for review before giving him

166. the final product. You will then submit a rough draft of your
office memorandum. The final product will be an office
memorandum for the lawyer to review before he meets with
Johnny again. You must cite at least five (5) recent (i.e., 1990s
or later) cases, all relevant statutes, and at least (3) secondary
sources (e.g., law review, law journal, legal treatise article,
etc.) on KENTUCKY domestic relations law (family law).

You cannot use cases that have been overruled (red flags)
unless for background or to discuss points not related to the red
flag. That type of case that has been overruled or superseded
would supplement the five cases minimum you are required to
include in the final memo. You cannot use unpublished opinions
unless to supplement the five required cases. The unpublished
opinion or red flagged case will not count as one of the four
cases.Cases should be supplied on more than one of the
numbered points above.

There are heading examples on p. 489. There is a form on page
487 of the textbook for basic office legal memorandum format.
Please leave off “statement of assignment” as a category
because the issues should state what you have been asked to
research and therefore that category is duplicative here. Make
sure your brief answer does not get so long it is merely a copy
of the research and analysis portion of the memo. The analysis

167. and research must be contained within each issue. Remember
you are not researching for the sake of giving your opinion, but
to provide what the statutes, case law, and other authorities say
about these issues.

The final memo must be typed in 12 point font with 1½” left
margins and 1” remaining margins, and have numbered pages,
and be double-spaced. The memo must be at least five (5) full
pages long.

All citations in the memo must be in proper Bluebook form and
include pinpoint citations where appropriate.

Finally, be sure to KeyCite all cases and statutes cited in your
memo, and indicate on your list of cited authority any cases or
materials that have “yellow” or “red” flags.

You must attach to the final memo only a list of all cited
authority used in your memo, using proper Bluebook citations.

The memo assignment is worth 170 points, of which 20 are
assigned to the case briefs and 10 to the list of authorities.

The outline is worth 20 points, and your memo rough draft is
worth 50 points. Both will also be used for me to give feedback

168. in case you are on the wrong track, which often happens, so
both should be complete and be done only after you have
researched and done readings in the secondary Kentucky
sources.



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