Kentucky Child Custody Agreement

Introduction

Key Things to Know

1. 1

   Custody is carved out of the rule that makes an agreement binding. KRS 403.180(1) invites parents to sign a separation agreement containing provisions for custody, support and visitation of their children, and KRS 403.180(2) then makes the terms binding upon the court unless it finds the agreement unconscionable, except those providing for the custody, support, and visitation of children. Those excepted terms are the ones this document is about, so the court reaches its own conclusion on custody under KRS 403.270 whatever the parents signed. KRS 403.180(6) closes the other route, allowing property and maintenance terms to be made non-modifiable by agreement but not terms concerning the support, custody, or visitation of children.

2. 2

   Kentucky presumes shared custody and equal time. KRS 403.270(2) provides that joint custody and equally shared parenting time is presumed to be in the best interest of the child, and the presumption is rebuttable by a preponderance of the evidence rather than by a higher standard. It is not a one time rule at the start of a case: the same presumption operates on temporary custody under KRS 403.280(2) and on modification under KRS 403.340(5). An agreement that asks for something other than equal time is asking the court to depart from that starting point.

3. 3

   Temporary custody is the one place a Kentucky agreement decides the outcome. Under KRS 403.280(1), where the parents present a temporary custody agreement and a mutually agreed plan for parenting time and the court confirms that the agreement adequately provides for the welfare of the child, the agreement shall become the temporary custody order of the court. KRS 403.280(4) then excuses the court from the findings of fact and conclusions of law a temporary custody order otherwise requires. The only stated test is the court's confirmation that the child's welfare is adequately provided for, so a temporary agreement that is specific and complete is doing real work.

4. 4

   No Kentucky statute requires the parents to file a parenting plan, but the order will always contain a schedule. Whenever the court departs from equal parenting time it shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child, a requirement repeated in KRS 403.270(2) for initial custody, KRS 403.280(3) for temporary custody and KRS 403.340(5) for modification. On the request of either party, KRS 403.320(1) requires visitation orders to be specific as to the frequency, timing, duration, conditions, and method of scheduling, and to reflect the developmental age of the child. KRS 403.280(5) separately requires a temporary custody order to address the circumstance in which physical possession of the child will be exchanged.

5. 5

   The current best interest test has a gate in front of it. KRS 403.270(3) requires the court, prior to consideration of any other factors enumerated in subsection (4), to consider allegations of domestic violence and abuse or of an abused or neglected child and to make written findings on the record as to the impact, if any. Only after that does KRS 403.270(4) apply, listing twelve lettered factors and directing the court to consider all other factors relevant to the determination of custody including those, so the list is open rather than closed. Nothing in KRS 403.270 switches the factors off when parents agree.

6. 6

   Where domestic violence is found Kentucky imposes hard limits rather than a weighing exercise, and KRS 403.315(3)(a) provides that the court shall not make an award of custody or grant unsupervised visitation to a party found to have committed two or more acts of domestic violence and abuse unless that party has completed the listed steps, which include a batterer's intervention program, parenting classes, substance use and mental health assessments with any recommended treatment, and supervised visitation, and KRS 403.315(3)(b) then requires an evidentiary hearing before unsupervised visitation and a further hearing before any custodial rights. On the same finding, KRS 403.315(2) reverses the shared custody presumption, and under KRS 403.315(1) a domestic violence order being or having been entered against a party switches the presumption off entirely. KRS 403.317 protects the other side, barring the court from removing custody from or reducing the parenting time of a non-offending party the child is bonded to, where that parent is competent and non-abusive, solely to improve the child's relationship with the offending party, and KRS 403.036 restricts ordering mediation after a domestic violence finding. If any of this is present in your situation, take it to a lawyer rather than a form.

7. 7

   Do not assume Kentucky has a mileage or notice rule for moving with a child. KRS Chapter 403 contains no relocation section at all, so the statutes set no notice period, no distance trigger, and no permission to move procedure, and general figures repeated in online custody articles do not come from the Kentucky statutes. Rules outside the statute book can govern a move, and they are worth checking with a Kentucky lawyer before either parent relies on this document alone. The practical step is to write your own notice term into the agreement so both parents know what warning they will get.

Kentucky Requirements for Child Custody Agreement

• Custody Carved Out of Binding Agreement Terms Under KRS 403.180(1) and (2)

  Parents may enter a separation agreement containing provisions for custody, support and visitation, but the terms binding upon the court exclude those providing for the custody, support, and visitation of children. The document should be drafted as a proposal the court decides under KRS 403.270 rather than as terms that bind it.

• No Non-Modifiable Custody Terms Under KRS 403.180(6)

  Parents may agree that property and maintenance terms are not subject to modification, but not terms concerning the support, custody, or visitation of children. A clause attempting to make the parenting arrangement permanent should not be used.

• Joint Custody and Equally Shared Parenting Time Presumption Under KRS 403.270(2)

  Joint custody and equally shared parenting time is presumed to be in the child's best interest, rebuttable by a preponderance of the evidence, and a court departing from equal parenting time must construct a schedule maximizing each parent's time with the child. A document seeking a different arrangement should say why.

• Domestic Violence Considered Before Any Other Factor Under KRS 403.270(3)

  Prior to consideration of any other factor, the court must consider allegations of domestic violence and abuse or of an abused or neglected child and make written findings on the record as to the impact, if any. This step applies whether or not the parents have agreed.

• Best Interest Factors Under KRS 403.270(4)

  Twelve lettered factors are listed and the court considers all other relevant factors including those, so the list is open. The factors are not switched off when parents agree, and they operate against the presumption of joint custody and equally shared parenting time.

• Agreed Temporary Custody Order Under KRS 403.280(1), (4) and (5)

  An agreed temporary custody agreement with a mutually agreed parenting time plan becomes the temporary custody order once the court confirms it adequately provides for the child's welfare, and no findings of fact and conclusions of law are then required. A temporary custody order must address the circumstance in which physical possession of the child will be exchanged.

• Parenting Time Schedule on Departure From Equal Time Under KRS 403.280(3) and 403.340(5)

  Where a deviation from equal parenting time is warranted, the court constructs a parenting time schedule which maximizes the time each parent or de facto custodian has with the child, at the temporary stage and on modification alike. A schedule in the document should be written with that standard in view.

• Written Agreement on the Child's Upbringing Under KRS 403.330(1)

  The default rule is that the custodian decides matters of the child's upbringing, including education, health care and religious training, and the parents' written agreement can displace it. The document should state clearly who decides which categories and what consultation is required.

• Specific Visitation Orders on Request Under KRS 403.320(1)

  On the request of either party, orders must be specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and reflect the developmental age of the child. A schedule written to that level of detail is easier to present and easier to enforce.

• Domestic Violence Limits Under KRS 403.315 and KRS 403.317

  A party found to have committed two or more acts of domestic violence and abuse may not receive custody or unsupervised visitation until the listed programs and assessments are completed and the required hearings held, and the same finding reverses the shared custody presumption. A domestic violence order removes the presumption as to that party, and the court may not reduce a non-offending bonded parent's custody or parenting time solely to improve the child's relationship with the offending party.