Child Custody in Divorce Cases

In the unfortunate circumstances of divorce, among the array of issues to be resolved, the future of the children involved is typically top priority. If custody of the children cannot be resolved between the parties, the court will determine custody. According to Kentucky law, "[t]he 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." Judges are not bound by what the parties may wish or desire and are to encourage parents to work in unison in raising their children.

In deciding custody, courts are to consider all pertinent factors that may come into play. Among those factors considered are the child's wishes as to his or her custodian, the mental and physical health of all individuals involved, and the child's adjustment to his or her home, school, and community.

Two types of custody exist within the state of Kentucky, joint custody and sole custody. Joint custody allows joint custodians to make major life decisions for the child, such as religious, educational, and medical decisions, together. Sole custody allows the custodian to make such decisions without input from any other party. Custody is not to be confused with timesharing or visitation, which can vary wildly from case-to-case.

The state prefers joint custody as it is considered to typically be in the best interests of the child to have all custodians weigh in on the child's life decisions. However, under certain circumstances it may be in the child's best interests for only one custodian to make those decisions and sole custody is awarded.

In some instances a third party, someone other than a child's parents, will try to gain custody of a child. This third party must first have legal standing to ask the court for custody by either being found to be a de facto custodian or a person acting as a parent, both of which are technical legal terms defined by Kentucky statutes and case law. If the third party is found to have standing, he or she still must prove to that it is in the child's best interest that he or she be awarded custody. Further, this third party may be awarded joint custody with one or both of the parents of the child, or may be awarded sole custody of the child.

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