No Matter What Happens, I MUST Be The Primary Residential Parent

I hear this all the time.  Here is a dirty little secret, the phrase "primary residential parent" (or "primary custodian") is not found in any statute in the state of Kentucky.  That is a phrase that has been developed by courts and family law practitioners.  I have heard some practitioners actually make the claim that the primary residential parent is a "tie breaker" when the parties cannot agree on something related to the child.  This is simply not true and if you buy into that you may unnecessarily increase your litigation costs by adding more hostility to your custody case.

A recent unpublished court of appeals decision, Maze v. Darst, has an excellent analysis the of primary residential parent question.  The Court of Appeals points out that when a trial court awards joint legal custody of a child, the court may, but is not required, to designate one parent as the primary residential parent.  The Court goes on to explain that the term "primary residential parent" is used to denote with whom the child resides most of the time and whose home the child identifies as his/her own.  The Court goes on to explicitly state "[t]he designation does not vest the primary residential parent with any greater legal rights to the child. Id. It is more the product of tradition than necessity."  The Court's reasoning flows from the leading case on timesharing that has been handed down in recent years by the Kentucky Supreme Court, Pennington v. Marcum.

There are no statutory guidelines on whether a court will designate a parent as the primary residential parent, but the court is required to determine whether such a designation would be in the child's best interests as delineated in Kentucky Revised Statutes 403.270.

As you begin your custody or divorce case, make sure you (and your family law attorney) understand what you are actually fighting for.  If you have more questions, please contact us.

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