A point of confusion that often comes up in a custody case is the difference between sole custody and joint custody. Kentucky has two-tiered way of looking at what most people would think of as "custody." Legal custody refers to who has decision making authority over the child. How the time with the child is divided is referred to as "time sharing." Legal custody is where the idea of sole versus joint custody comes into play.
Sole custody actually used to be the norm in divorce cases. In a sole custody award, whomever is granted sole custody gets to make all decisions related to the child. Trial courts are normally hesitant to award sole custody absent some fairly extenuating circumstances such as domestic violence, mental instability or other similar situations. As you can imagine if one parent has sole custody, the other parent is very limited in his/her ability to remain an active participant in the child's life. If one parent has sole custody, schools and medical offices usually refuse to cooperate or give information to the other parent.
Kentucky has established by statute
that prior to a divorce, parents have joint legal custody. That means that each parent has equal decision making authority for the child. The mother does not have any greater right to make decisions than the father and the converse is true as well. With joint custody, whomever the child is with can make routine day-to-day decisions for the child. If a major decision needs to be made (medical, educational, spiritual, etc.), ideally, the parents will work together to make a decision in the best interest of the child. With the advent of Kentucky's no-fault divorce system, joint custody is deemed an arrangement on the same footing as sole custody. Equal time sharing with the child is not required in order for the parents to have joint legal custody. Although the Kentucky Court of Appeals
has previously advocated that joint custody should be favored over sole custody, the Kentucky Supreme Court
has declined to adopt that preference. Nevertheless, as the Court of Appeals recently reaffirmed in an unreported opinion
, before a trial court can order sole custody, the court must consider all of the factors set out in KRS 403.270(2
) and give equal consideration to each parent. If the court determines that joint custody is in the child's best interests (and in my experience, most trial judges favor an award of joint custody), the court may
designate one parent was the primary residential parent as we previously discussed here
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