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The Presumption Of Joint Custody

The 2017 Kentucky Legislature passed a new statute creating a rebuttable presumption of joint custody and equal parenting time in a custody proceeding when a party is filing for a temporary order. KRS §403.280. The link to the full statute is below.

Section 2 of KRS §403.280 states:

In making an order for temporary custody, there shall be a presumption, rebuttable by preponderance of evidence, that the parents or a de facto custodian joined under subsection (9) of this section shall have temporary joint custody and shall share equally in parenting time. 

This creates a situation in which the party moving for a different schedule or sole custody order has to prove by a preponderance of the evidence that it is not in the children's best interest for joint custody or an equal time share. This is a high burden for the moving party.

Section 3 goes onto state as follows:

If a deviation [sic] from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian joined under subsection (9) of this section has with the child and is consistent with ensuring the child's welfare.

This may not create much of a change in Northern Kentucky counties, although the burden for an order other than the statutory presumption is higher. It may differ from county to county how the courts will interpret this presumption and what evidence will be enough to overcome it. There is speculation that the Legislature will pass a bill with the same presumption for permanent custody orders. However, only time will tell.

There is no such statutory presumption in the state of Ohio.


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