Overview of the New 50/50 Custody Law

The 50/50 Custody Law is a new Kentucky law, incorporated into KRS 403.270(2)(c), which went into effect on January 1, 2018. The law is intended to reduce conflict and reduce the adversarial atmosphere of child custody cases by promoting equitable time with each parent and shared decision-making authority over the children. The law specifically says that "[a] standing order or a case schedule shall not be utilized to implement this provision of law." Thus, standard visitation schedules (i.e. alternating weekends, etc.) do not apply under the new law and judges will not apply the standard custody schedule to parents sharing equal parenting time. As of January 1, 2018, trial courts have been, and will continue to, have to implement the 50/50 Parenting time for parents going through a court action. Because the statute was passed after the summer legislative session, when the Kentucky legislature adjourned, many trial courts saw a conflict in the statute and the standard visitation schedule. For this reason, trial courts decided to interpret the statute to either not apply or postponed its implementation until January 1, 2018 . Since January 1, 2018, and for the foreseeable future, trial courts will have to interpret and apply the new 50/50 parenting time statute including court orders entered prior to January 1, 2018. There are some limitations to the 50/50 Parenting time statute. Going forward, parents must consider their responsibilities as parents going into any family law action. Since 2018, as per the new 50/50 Parenting time law: In Kentucky, at the time of writing, the law requires custody to be shared between parents on a 50/50 basis. This means parents share equal parenting time with the child(ren) and share decision-making authority over parenting choices with the child(ren) while the child(ren) reside with each parent. A lot remains to be seen about how the law will be applied and what effect it may have on litigated cases. Early indications vary widely, ranging from judges treating the new law as a new starting point in custody actions to judges inferring a limited application of the statute. It is important to stay connected to updates and amendments to the new law. There are indications that some changes will occur during the 2018 legislative session. Hopefully, the changes will bring more clarity to the 50/50 parenting time statute and continue to promote more parental involvement with child(ren).

Major Changes under the New Law

Under the new law, when parents agree to share equally the responsibility for their child’s time with each parent and the decision making responsibilities, it sets forth a legally defined arrangement as 50/50 shared parenting. The change of legal parlance has an important impact in the Court system because the standard of "best interest of the child" is still used in Kentucky custody cases to determine what is in their best interest. The 50/50 custody law sets out that where parents are equally sharing time and decision-making for the children, the Court will not second guess that arrangement and will presume that the reasoned decision of the parents was proper.
Previously, Judges took those arrangements into their own hands, requiring the parents to return to Court each year to get their plan re-approved and take testimony as to the evolving needs of the children. This sometimes backfired on parents, where one parent was now armed with another’s weaknesses to argue at the next hearing that the previous arrangement was not in the child’s best interest; what was a good idea on Monday could be scrapped 12 months later on Tuesday when your time is up. No longer will parents be subjected to making their case for 50/50 parenting time; however they need to be aware of the exact parameters of that "slot machine" the Court is now willing to give them. Appropriately done, there is no reason that parents will not now be able to "cap" the amount of money that they will spend "paying" for the other parent’s time, which is especially important to the non-custodial parent who may want to balance that out.
The 50/50 law goes a little further to spell out what happens where sex abuse or domestic violence are in the family history and shared parenting is requested. Where these parents request shared parenting, the Court must require a minimum of 1 year of weekly therapy for the perceived offender. It is furthermore presumed that primary decision-making responsibilities will be allocated to the non-offending parent if the history of events affects the child or parent.

Advantages of 50/50 Custody

There are many potential benefits of the new 50/50 custody law for parents and their children. Family law experts point out that equal 50/50 custody can lead to more cooperation on the part of the parents because they have equal parental rights under the law. When parents can cooperate more, it has a positive effect on the children as well. With equal parenting time, there is greater interaction with each parent. Frequent contact with both parents is significant for the emotional well-being of children and is crucial for their social maturity. A parent who has a close and loving bond with the child and who facilitates the relationship with the other parent has a happier and more confident child.
A 50/50 custody schedule can also benefit parents in other ways. It allows them to work full-time and not worry about who will care for their children. Also, under joint, 50/50 custody the parents have equal control over making big decisions about the children rather than one having all the say.

Issues and Critiques

Challenges and Criticisms have been raised/questions asked about whether the new law creates more conflict between parents who must share parenting, the danger of parents who cannot agree on how to split the time and burden of having young children, and the danger of having a very young child in daycare five days a week with all that entails. Lawyers have been struggling with the very short interval given to lawyers regarding its enactment. Does it mean the end of child support? (No). Does it mean a reduction in child support l? (No)—some data suggests that child support amounts will go up slightly as periods of shared parenting are added—meaning each parent has a higher proportion of time with the children. Is imposed sharing best for children at this point in history when so many families are single parents? (Good question). While many find the previous system of dividing the children’s time into equal parts whether one parent provided a house for the second half of the year ("in alternating homes") impractical, this new law has critics as well.
Perhaps the most prominent critic is Judge William G. Cooper, Jr. Henry Hefting, a local attorney, has an excellent article in the Louisville Cardinal citing Judge Cooper’s critique of the statute. In promulagting the statute, Judge Hefting writes that Judge Cooper refers to it as a new ‘one-size-fits-all’ approach to Child Custody, Hefting goes on to say that according to Judge William G. Cooper, Jr., this new law will create more problems than it will solve. The Judge states, "It is a radical change and completely impractical." The Judge goes onto state that, ‘"One size fits all approach is never good."’ Judge Hefting reports that Judge Cooper believes some children would benefit from the one week/one month time sharing method; however, due to the fact the law has changed, children will be confused and have to choose between two homes.
Judge Cooper has reportedly written a letter to state representative Morgan McGarvey, the representative who introduced the bill. In his letter Judge Cooper expressed that legislators are naïve in thinking children are capable of understanding this new law. He argues that most children do not understand the concept of time. Baby steps, the Judge argues, are needed to help children transition to the new law and feel comfortable switching homes. Judge Cooper believes the statute should have more consideration for classes to help parents work out their time sharing agreements.
Until people can see beyond their personal situation, the new law will be difficult to adapt to by many—especially because the law requires it be applied at every mod modification filed after July 14, 2013. With little chance of the law being repealed and with the law being applied across the board, maybe Judge Cooper will find a responsive ear for his concerns.

Effect on Legal Actions

In legal proceedings related to judicial separation or cancellation of marriage, courts must ensure that child custody is conducted in accordance with the new system. The new Kentucky law impacts not only future proceedings but also previous rulings with regard to visitation and custody. Some parents are taking advantage of the focus on 50/50 custody by seeking to have a full parenting plan change hands upon dissolution of a marriage agreement. As with current 50/50 custody arrangements, courts may not place restrictions on where the child may be raised if that is the wish of the parents. Parents retain the right to choose the school district, religious upbringing and other such details without interference from the court. This change also applies to children that are no longer of school age. In practice, if parents can agree on the time-sharing agreement, there is usually no need for the court to intervene. However, as is often the case, custody cases can get heated. Frequently, during a case, appointments are made for psychological evaluations, assessments of parenting capacity, parenting coordinators, visitation supervisors and therapists. While the new law does not specifically address these professionals, they may be obsolete under the new law. Thus, the parties may be able to avoid such costly interventions. If parents cannot agree on allocation of custody, the court is required to refer parents to mediation prior to commencement of an action in court. Parents are required to agree to mediation unless determined otherwise by the court. The court should not enter an order until mediation has been attempted.

Parental Duties and Authority

The legal responsibilities and rights of each parent, including the right to make key decisions regarding the child’s education, health care and religious upbringing are central to any custody arrangement. Of course, when parents have equal time with their children, the frequency with which they must confer about such issues is likely to be reduced. This is especially true in standard custody arrangements. As such, these provisions are not always relevant when the standard visitation schedule is approved.
In contrast, 50/50 custody arrangements require parents to make key decisions together if practical or feasible . This promotes meaningful communication between parents and sets an example for the child.
Importantly, the new law also allows the court to render a decision as to parental responsibility and recommendation regarding physical care when the parents are unable to agree. Previously this was not an option under Kentucky law. Kentucky courts now have the authority to do so based on the best interests of the child.
The requirement that the parent’s parental responsibilities and rights be equal for a 50/50 custody arrangements is mandatory and cannot be waived even if both parents attempt to do so.

How to Obtain 50/50 Custody

The following is an overview of what a parent will likely need to have in order to receive equal time with their child after a divorce or other dissolution of a family. A parent will be required to present documents in the form of a parenting plan and child support calculation worksheet in order to have his or her legal counsel file and/or present them to the Court. After the parental plan and child support calculation worksheet are created, the court will review all of the evidence provided for a child to have 50/50 custody. If both parents are in agreement with the plan and the time each parent receives with the child between the two different households, then having 50/50 custody comes down to whether or not the child will be adequately cared for in the home. If the court finds that the child will be properly cared for in both environments, the court will agree to forward the case onto a judge.
If the judge agrees that the child will be well taken care of with equal time between each home, the judge will grant 50/50 parenting time. If both parents are not in agreement about how much time the child has in each household, then litigation is necessary to gain custody of the child. Custody of the child is determined by the court at the final hearing. In this circumstance, the court would focus on the following: the physical and emotional well-being of the child; the interaction between the child and each parent; and, time the child has shared before the court decides on custody. If time has been gained in favor of one parent over each household, the parent will have more custody than the other. It is critical to begin the process as soon as possible so that the child will be protected by a decree during the divorce or dissolution so that the child is protected by both parents. The sooner the paperwork is completed, filed and submitted to the court, by counsel, then the sooner the child will be provided for by decree.

Commonly Asked Questions

**Frequently Asked Questions (FAQs) Regarding Kentucky’s New 50/50 Custody Law**
Does the new law require equal sharing of time?
No. The new law requires a division of decision making over the major decisions in the child’s life. The intent of the law is not to be punitive to the non-custodial parent, but rather create structure and potential for equal time in the future.
If one of the parents wants 50/50 custody time, do I have to agree to it?
No, but you may want to consider it. Shared parenting plans have become more and more common and many parents are discovering that it benefits their children immensely. Long distance custody arrangements create difficulties in communication and complicate things for the child during a transition from home to home.
If I have limited money as it is, how on earth can I afford a shared parenting plan?
Cost should not be a prohibiting factor for parents who want to remain involved with their child’s life. However, parents must be mindful of the biggest concern of the law, which is to address the need of the child to have both parents involved in all of the major decisions in his or her life. If you expect more time with your child, you need to be involved in making those decisions and that requires more time and involvement. Also, if you want 50/50 or even a good amount of time with your child, you must make time for that in your schedule.
Can I enforce this order in the future?
Yes, but only if it is properly implemented. Until the new law is in effect, the court can only require that you have a share of the decision making. That does not necessarily mean 50/50, or making the same decisions. However, if a parent is not fulfilling their role in a 50/50 custody agreement, they could be punished in the future. Sections 1 through 4 of KRS 403.270 have been separated into four different sections and section five is new. It is located in KRS 403.270(5).
What if the other parent has a drug or alcohol problem?
Having a drug or alcohol problem would be the exception to the 50/50 schedule. If you have concerns about the other parent’s substance abuse, it would be a good idea to show the court that with sufficient proof. The Court can change the custody arrangement to something other than equal if it believes it would hurt the child.
How will my child feel? What can I expect from my child?
Usually when parental rights of a child are separated into two separate homes, everything in life changes for the child. They will experience different ways of doing things at different houses and having two different schedules. You should expect your child to have issues adapting, regardless of the plan you come up with. However, you should also expect the child to benefit from their relationship with both parents.

Closing Thoughts

Regardless of the motivation behind the passage of 50/50 parenting time laws across the country, Kentucky’s new law offers numerous advantages for children, parents that pay child support as well as the parents that receive the support. While it is clear that both parents must be active, selfless, and engage in civil communication for 50/50 time to work, the current law is a starting point for the courts and families to use as a tool for future determination of what is in a child’s best interest . Given the trend of shared parenting laws gaining support from legislators and citizens around the world, we can expect some commonalities. We will also no doubt see different variations depending on where you live. Shared parenting is going to be the norm everywhere. Just as married couples now share chores and responsibilities, divorce and unmarried parents will also continue to.