Today's post is co-written by Ashley Wiggins. Ashley is a talented attorney at the Alford Law Office focusing her practice on Family Law, Child Custody, and Divorce.
The primary barometer the family court uses to make custody determinations is the best interest of the child. However, in certain circumstances the court is required to use a much higher standard of "serious endangerment."
The first instance when serious endangerment could come into consideration is in making an initial custody and visitation (time sharing) decision. Kentucky courts have previously interpreted Kentucky Statute to grant an absolute entitlement of visitation to the parent who is not granted custody unless there is a finding of serious endangerment although little other guidance is given in that particular statute.
More guidance is found in the context of a modification of custody within the first two years after an initial custody decision is made. In order to modify a custody determination within the first two years there must be a showing of serious endangerment. Here the statute gives more guidance and directs the court to consider all of the factors considered for the best interests of the child as well as the child's interaction and relationship with the parents, siblings, and any other person that may significantly affect the child's best interests. The mental health of all individuals involved or interacting with the child are considered along with domestic violence and the repeated and substantial failure to abide by the court's previous orders of visitation, support or other provisions of the decree that affect the child. Courts have stated that, although mental health is a factor to consider, a person is not required to present proof from a mental health professional in order to meet the serious endangerment standard.
This begs the question, what does “serious endangerment” look like? Kentucky law does not provide an exhaustive list but some example subjects include: 1. Drug or alcohol abuse to the extent that if affects the child(ren); 2. Domestic violence to the extent that if affects the child(ren); 3. Mental health to the extent that if affects the child(ren); 4. Physical abuse perpetrated upon the child(ren), for example, striking that results in bruising or striking inflicted upon a vital area of the body, such as the child’s face; 5. Failure to provide the child(ren) with necessary food, clothing, medical care or supervision; 6. Failure to protect the child(ren) by continually exposing the child(ren) to a person, such as a boyfriend or girlfriend, who seriously endangers the child(ren)’s mental, moral or emotional health. Other cases seem to make it clear that courts often apply the serious endangerment standard with an "I know it when I see it" sort of attitude.
Courts will also consider serious endangerment in the context of allegations of dependency, neglect or abuse when it is necessary to remove a child from the home of his parents or other caregivers in order to protect the child. These are usually instances when social services might get involved as well.
If you think of standards for child custody decisions along a continuum best interests would be the lower standard applied by the court. Serious endangerment would be a more rigid standard that still allows the opportunity for the parent to correct his/her issues and resume a normal life or relationship with the child at some point. Finally, there is a finding of unfitness which is a prelude to complete termination of a parent's rights to his/her child. If you have more questions, contact the Alford Law Office.
Photo courtesy of Shawn Carpenter
Labels: best interest, child custody, defacto custodian, divorce, divorce lawyer, ex husband, ex wife, family law, modification, nonresidential, paducah, time sharing, visitation