Do Children Have a Say in a KY Custody Case?

Like with many other family law issues, the short answer to this question is, “it depends.” Kentucky does allow the courts to consider the child’s opinion when deciding who receives custody, but the state has no predetermined age when the child’s opinion is to be considered. The amount of weight that is given to the preferences of the child will depend largely on the child’s maturity level and other specific circumstances in the case.

Kentucky Custody Laws

In 2018, Kentucky became the first state in the nation to create a legal presumption of joint custody in divorce and child custody cases. Specifically, the law states that the family courts will have a “presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child.”

This means that, going into a child custody proceeding, the court is to presume that it is in the best interests of the child to grant joint legal custody. This is to be their default position, unless one of the parties presents sufficient evidence to the contrary. The standard to rebut the presumption of joint custody is “a preponderance of the evidence”, which means the majority of the evidence presented indicates that joint custody should not be granted.

One of the primary reasons a judge would not grant joint custody under the new law is if one of the parents has exposed the children to domestic violence or are abusing the children. The Court also considers whether there are substance abuse issues that are putting the children at risk of neglect or abuse.

When Does the Child’s Preference Come into Play in a KY Custody Case?

As mentioned earlier, there is no specific age in which a child’s opinion must be considered by the Kentucky courts. The courts look at the child’s maturity level and their ability to provide meaningful input in the case. Generally, the court is less likely to ask a younger child their opinion, because it might foster or reinforce a belief that the parents getting separated or divorced is the fault of the child. With a younger child, it is also more likely that their living preferences may not be based on their best interests.

In general, the Courts are utilizing the appointment of either a Friend of the Court (FOC) or a Guardian Ad Litem (GAL) to be able to either investigate and report back to the Court or are appointed to represent the best interest of the child.  The FOC and the GAL are both attorneys that have specialized training and are appointed by the Court with the parties paying the attorney fees.  These options allow for the child’s interests to be represent without ever having to walk into the Courthouse.  The FOC or the GAL will talk to the children to be able to determine if the child has a preference and the basis for the preference.  The child’s maturity and their ability to express why they have the preference is considered when providing the information to the Court.

It is important to note that the child’s preferences in a custody case (when they are considered) are just one of many factors that the court looks at. Other factors may include:

• The wishes of each parent (with regards to custody) as well as the opinions of any others who are able to provide meaningful input;

• The mental and physical health of both parents, the child, and others involved;

• The child’s relationship with the parents, siblings, and any others they are close to;

• Who has historically been the primary custodian and caretaker of the child;

• The child’s current environment and ability to adjust to his/her proposed new environment;

• Any history of domestic violence on the part of either parent or others who are close to the child;

• Any other factors that the court deems relevant to the case.

Are Children Required to Testify in a Kentucky Court about their Custodial Preferences?

Kentucky courts don’t typically require children to testify regarding their custodial preferences. Most judges don’t want to add to the emotional and mental trauma of a child having to watch their parents separate. They don’t want to make it more difficult by forcing the child to choose between the parents.

In relation to this, the judge may interview the child in their chambers, without the parent’s presence. Attorneys are usually allowed to be present for the interview. There may also be a court reporter present to record the conversation. In certain cases, the court may seek the help of experts, such as psychiatrists, psychologists, and custody evaluators to evaluate the child’s desires for custody (Ky. Rev. Stat. Ann. § 403.290.)

Mental health professionals or custody evaluators will speak directly with the child to submit a report to the court. The report usually includes any findings that are in the child’s best interests regarding the custodial preference. The attorneys present can call the expert as a witness in court to testify about the child’s custodial preference. (Ky. Rev. Stat. Ann. § 403.300.)

Call John H Ruby and Associates for Further Help with Kentucky Custody Cases

Most KY child custody cases are settled between the parties before the case ever gets to court.  But if the parties cannot agree, there are times when children may have a say in the outcome of the case. Whatever your circumstances, if you are involved in a custody case, you need strong legal counsel in your corner advocating forcefully for your rights and interests, and for the best interests of your child(ren).

If you are in the Louisville, LaGrange, Shepherdsville or Shelbyville, KY areas, call our office today at 502-895-2626. You may also message us through our online contact form or schedule an appointment.