CHAPTER 401 Change of Name

401.010. Adult may have name changed by District Court.

Any person at least eighteen (18) years of age may have his or her name changed by the District Court of the county in which he or she resides. If he or she resides on a United States Army post, military reservation, or fort, his or her name may be changed by the District Court of any county adjacent thereto.

History. 3717: amend. Acts 1964, ch. 155, § 1; 1968, ch. 100, § 12; 1968, ch. 200, § 9; 1974, ch. 66, § 1; 1974, ch. 386, § 88; 1976 (Ex. Sess.), ch. 14, § 395, effective January 2, 1978; 2013, ch. 89, § 1, effective March 22, 2013.

NOTES TO DECISIONS

1.In General.

This section does not change or substantially limit the common-law right of persons to change their names, its primary effect being the requirement that a permanent record be made of the new change. Winkenhofer v. Griffin, 511 S.W.2d 216, 1974 Ky. LEXIS 479 ( Ky. 1974 ).

Person changing his name is not required to give notice to or obtain consent from persons bearing the proposed new name. Winkenhofer v. Griffin, 511 S.W.2d 216, 1974 Ky. LEXIS 479 ( Ky. 1974 ).

2.Legislative Intent.

This chapter is not intended to abrogate the common law, but merely to insure that a permanent record is made of the name change. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

Opinions of Attorney General.

A name change by adoption is a special procedure in the Circuit Court and has no connection with name changing under this section. OAG 65-650 .

This section is not an exclusive method for use of persons desiring to change their names and the statute does not in any way militate against assertion of a married woman’s common-law right to change her first name without legal proceedings. OAG 72-27 .

As this section is merely permissive, expanding the common law rather than providing an exclusive method for changing a name, it is not unconstitutionally discriminatory in its exclusion of married women from its provisions (opinion prior to 1974 amendment). OAG 72-432 .

Although her spouse objects, a married woman who is at least eighteen and a resident of the county can petition the county court for a first name and/or middle name change, including adding a given name never used before, where it appears to the court that the name change would not interfere with the rights of others and is not being done for a fraudulent purpose. OAG 74-349 .

By the common-law method, a married woman can change her first and/or middle name without any statutory or court proceedings, including adding a given name never used before, and she can document her personal unilateral action by newspaper publication, business or personal letters, or a written statement placed in her lock box or private papers. OAG 74-349 .

The action taken by the legislature in amending this section to delete “who is not a married woman” and in enacting KRS 116.085 clearly indicates that it intended that a married woman may use the permissive statute to change her surname from that of her husband to her maiden surname. OAG 74-902 .

A convicted felon whose civil rights have not been restored may seek a change of name and need not place his felony conviction on his petition. OAG 76-126 .

Name change order records must be kept in the order book of the District Court. OAG 78-454 .

Research References and Practice Aids

Cross-References.

Divorce decree may restore maiden name to wife, KRS 403.230 .

Motor vehicle operator changing name must notify transportation cabinet, KRS 186.540 .

Northern Kentucky Law Review.

Comments, Equal Protection of the Sexes in Kentucky: The Effect of the Hummeldorf Decision on a Woman’s Right to Choose Her Surname, 9 N. Ky. L. Rev. 475 (1982).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Change of Name — Adult or Minor (AOC 295), Form 265.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Marriage and Cohabitation, § 251.00.

401.020. Parents or guardian may have child’s name changed in District, Family, or Circuit Court.

Both parents, provided both are living, or one (1) parent if one (1) is deceased, or if no parent is living, the guardian, may have the name of a child under the age of eighteen (18) changed by the District Court, or if the Family Court or Circuit Court has a case before it involving the family, the Family Court of a county with a Family Court, or the Circuit Court of a county without a Family Court of the county in which the child resides. However, if one (1) parent refuses or is unavailable to execute the petition, proper notice of filing the petition shall be served in accordance with the Rules of Civil Procedure. If the child resides on a United States Army post, military reservation, or fort, his or her name may be changed by the District Court, or the Family Court of a county with a Family Court, or the Circuit Court of a county without a Family Court of any county adjacent thereto.

History. 3718: amend. Acts 1964, ch. 155, § 1; 1968, ch. 100, § 13; 1974, ch. 386, § 89; 1976 (Ex. Sess.), ch. 14, § 396, effective January 2, 1978; 1980, ch. 259, § 27, effective July 15, 1980; 2013, ch. 89, § 2, effective March 22, 2013.

NOTES TO DECISIONS

1.In General.

Where a mother petitioned court to change the surname of her infant daughter to that of her former husband who was not the child’s father, the former husband was not entitled to notice nor was his consent necessary to the proposed change. Winkenhofer v. Griffin, 511 S.W.2d 216, 1974 Ky. LEXIS 479 ( Ky. 1974 ).

A divorced and remarried mother’s petition to change her child’s surname to a hyphenated name consisting of both the father’s surname and her new surname did not show the required substantial grounds for doing so against the father’s wishes. Leadingham v. Smith, 56 S.W.3d 420, 2001 Ky. App. LEXIS 698 (Ky. Ct. App. 2001).

2.Standing.

Former husband of mother who changed the surname of her daughter who was not the former husband’s child had no standing in court to seek a further name change for the child since he was neither the father nor the guardian of the child. Winkenhofer v. Griffin, 511 S.W.2d 216, 1974 Ky. LEXIS 479 ( Ky. 1974 ).

3.Injunction.

Although a mother may possess the statutory right to change her child’s name, it does not follow that a Circuit Court may not enjoin her exercise of that right if it has jurisdiction to do so as an incident of its statutory jurisdiction to determine custody matters attendant upon a marriage dissolution. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

Since the Circuit Court is vested with continuing jurisdiction of custody matters attendant upon the dissolution of a marriage, and because KRS Chapter 403 mandates that the court safeguard family relationships and mitigate potential harm to parents and children, a Circuit Court has jurisdiction to enjoin a mother from changing a child’s name to his stepfather’s name, otherwise, an unsubstantial statutory right to apply for a name change would take precedence over an express statement of public policy favoring preservation of family relationships. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

4.— Test.

In determining whether to issue an injunction against a mother’s seeking to change the name of her children from that of their natural father the court should use the “best interest” test of subsection (1) (now subsection (2)) of KRS 403.270 . Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

5.— Hearing.

Only after a full hearing, at which all interested parties are given an opportunity to be heard, can the court determine if the proposed name change is or is not in the best interest of the child; such a hearing is mandated by the requirements of due process. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

6.Exclusive Jurisdiction.

The General Assembly has made it clear that the change of name of a child by a parent is not a “custody matter” for the purposes of KRS 403.270 . Exclusive jurisdiction for the change of name of a child is placed by this section in the District Court. Blasi v. Blasi, 648 S.W.2d 80, 1983 Ky. LEXIS 233 ( Ky. 1983 ).

A Circuit Court did not have the jurisdiction to require that a divorced parent petition a District Court in order to change the name of her infant child. Blasi v. Blasi, 648 S.W.2d 80, 1983 Ky. LEXIS 233 ( Ky. 1983 ).

7.Venue.

Where paternity was established in Hart County, the child’s significant contacts were all in that county, the pediatrician was located there, and where at the time of the filing of the petition requesting joint custody, a schedule of visitation and the change of child’s name, it appeared that the mother and the child were living in Hart County and that was the child’s permanent residence, proper venue was in Hart County. Ash v. Thompkins, 914 S.W.2d 788, 1996 Ky. App. LEXIS 13 (Ky. Ct. App. 1996).

Opinions of Attorney General.

Both the mother and the appointed guardian must file a petition for a name change. OAG 70-662 .

The word “guardian” refers to the statutory guardian as treated in KRS Chapter 387. OAG 70-662 .

Either the father or the mother may seek the name change of the child and this section does not require the petitioning parent to secure the consent of or give notice to the other parent or any other person. OAG 75-94 .

This section is not the exclusive method of changing a minor’s name and a parent or guardian of a child may change the child’s name without resort to legal proceedings by simply making a public declaration of the new name. OAG 78-93 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context Parent and Child, § 256.00.

401.030. Information to be entered on order book of court.

The original name, age, and place of birth, the name to which the change is made, and the names of the infant’s father and mother, if known, and of the person on whose motion the change is made shall be entered on the order book of the District Court, Family Court, or Circuit Court in which the action was brought and is authorized to do so pursuant to KRS 401.020 .

History. 3719: amend. Acts 1976 (Ex. Sess.), ch. 14, § 397, effective January 2, 1978; 2013, ch. 89, § 3, effective March 22, 2013.

401.040. Certification of order for name change — Index kept by county clerk.

  1. If the District Court, Family Court, or Circuit Court, as authorized by KRS 401.020 , orders any person’s name to be changed under this chapter, a copy of the order shall be certified by the clerk of that court to the county clerk, for record.
  2. The county clerk shall keep an alphabetical index for each book of records, referring to the page on which each person’s name change appears, and giving the name from and to which it is changed.

History. 3720: amend. Acts 1976 (Ex. Sess.), ch. 14, § 398, effective January 2, 1978; 2013, ch. 89, § 4, effective March 22, 2013.

CHAPTER 402 Marriage

402.005. Definition of marriage.

As used and recognized in the law of the Commonwealth, “marriage” refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.

History. Enact. Acts 1998, ch. 258, § 4, effective July 15, 1998.

Compiler's Notes

On June 26, 2015, the United States Supreme Court in Obergefell v. Hodges, 192 L. Ed. 2d 609, held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

NOTES TO DECISIONS

1.Constitutionality.

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

Ky. Rev. Stat. § 402.005 was not unconstitutional under the Fourteenth Amendment where none of the theories presented, i.e., originalism, rational basis review, animus, fundamental rights, suspect classifications, or evolving meaning, made the case for constitutionalizing the definition of marriage and for removing the issue from the hands of state voters. DeBoer v. Snyder, 772 F.3d 388, 2014 FED App. 0275P, 2014 U.S. App. LEXIS 21191 (6th Cir. Mich. 2014), rev'd, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

To the extent Ky. Rev. Stat. Ann. §§ 402.005 and 402.020(1)(d) and Ky. Const. § 233A denied same-sex couples the right to marry in Kentucky, they violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they were void and unenforceable. Love v. Beshear, 989 F. Supp. 2d 536, 2014 U.S. Dist. LEXIS 89119 (W.D. Ky. 2014 ).

Cited in:

Pinkhasov v. Petocz, 331 S.W.3d 285, 2011 Ky. App. LEXIS 18 (Ky. Ct. App. 2011).

Opinions of Attorney General.

State universities may extend employee health insurance coverage to “domestic partners” or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage, since this would constitute the recognition of such a legal status in contravention of Ky. Const. § 233A. If domestic partnership is not defined in terms of a legal status similar to marriage, but is defined in a more inclusive manner, extending such benefits would be constitutional. OAG 2007-04 .

Research References and Practice Aids

Cross-References.

Marriage between one man and one woman only marriage valid or recognized in Kentucky, see Ky. Const. § 233a.

Void Marriages

402.010. Degree of relationship that will bar marriage.

  1. No marriage shall be contracted between persons who are nearer of kin to each other by consanguinity, whether of the whole or half-blood, than second cousins.
  2. Marriages prohibited by subsection (1) of this section are incestuous and void.

History. 2096: amend. Acts 1946, ch. 124.

NOTES TO DECISIONS

1.Incestuous Marriage.

Incestuous marriages in the direct line or between brothers and sisters are not considered valid in Kentucky regardless of where they were performed. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

A marriage between a man and his niece is incestuous. Baker v. Thomas, 272 Ky. 605 , 114 S.W.2d 1113, 1938 Ky. LEXIS 170 ( Ky. 1938 ).

Marriage between father-in-law and daughter-in-law is incestuous and void. Louisville & N. R. Co. v. Turner, 290 Ky. 602 , 162 S.W.2d 219, 1942 Ky. LEXIS 470 ( Ky. 1942 ).

Marriage of first cousins by consanguinity was void ab initio and subject to attack after the death of one of the parties. Ex parte Bowen, 247 S.W.2d 379, 1952 Ky. LEXIS 694 ( Ky. 1952 ).

The provisions of KRS 403.120 do not apply primarily to incestuous marriages under this section but rather encompasses all void and prohibited marriages, such as a bigamous marriage. Ferguson v. Ferguson, 610 S.W.2d 925, 1980 Ky. App. LEXIS 410 (Ky. Ct. App. 1980).

2.Whole or Half-Blood.

No distinction is made between sisters of full and half-blood. Burdue v. Commonwealth, 144 Ky. 428 , 138 S.W. 296, 1911 Ky. LEXIS 624 ( Ky. 1911 ).

3.Father and Daughter-in-Law.

A marriage between a woman and the father of her deceased husband is incestuous. Nicely v. Howard, 195 Ky. 327 , 242 S.W. 602, 1922 Ky. LEXIS 333 ( Ky. 1922 ).

4.Invalidity After Death.

A marriage which is not in the direct line or between brother and sister cannot be invalidated after the death of one of the parties, in a collateral proceeding. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

Cited:

Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ); Bedinger v. Graybill’s Ex’r & Trustee, 302 S.W.2d 594, 1957 Ky. LEXIS 202 ( Ky. 1957 ).

Opinions of Attorney General.

A marriage between a niece and an uncle, though valid in the country where it was celebrated, would not be recognized in Kentucky on the ground that it violates the public policy expressed in this section. OAG 68-346 .

A marriage between first cousins will not be recognized in Kentucky even if it is consummated in another state. OAG 71-78 .

Marriages between first cousins are prohibited in Kentucky with no exceptions. OAG 71-78 .

A marriage between first cousins once removed would be incestuous and void under this section. OAG 71-480 .

This chapter does not require the specific data about divorce judgments in any particular. OAG 78-431 .

The difference between this section and KRS 530.020 is that the criminal statute is designed to protect against blood relationships and the adoption and stepparent situation, while the marriage statute covers only the blood relationships. OAG 79-416 .

A marriage between first cousins is incestuous and void ab initio pursuant to this section, and where the issuance of the marriage license and the compiling of the marriage records were all done in good faith by the county clerk, the clerk had no statutory authority to alter the marriage record in any respect, even though the marriage was void ab initio. OAG 80-300 .

State universities may extend employee health insurance coverage to “domestic partners” or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage, since this would constitute the recognition of such a legal status in contravention of Ky. Const. § 233A. If domestic partnership is not defined in terms of a legal status similar to marriage, but is defined in a more inclusive manner, extending such benefits would be constitutional. OAG 2007-04 .

Research References and Practice Aids

Cross-References.

Change of name, KRS ch. 401.

Descent and distribution, KRS Ch. 391.

Dower and curtesy, KRS Ch. 392.

Incest, KRS 530.020 .

Legitimacy of children of void marriage, KRS 391.100 .

Marriage of testator does not revoke will, KRS 394.090 .

Statute of frauds, agreement in consideration of marriage, KRS 371.010 .

Kentucky Law Journal.

Whiteside, Domestic Relations — Recent Kentucky Developments, 1950-1955, 44 Ky. L.J. 60 (1955).

Whiteside, Ten Years of Kentucky Domestic Relations Law, 1955-1965, 54 Ky. L.J. 206 (1966).

Miller, Kentucky’s New Dissolution of Marriage Law, 61 Ky. L.J. 980 (1973).

Comments, That Was No Wife, That Was My Lady: Is Marvin v. Marvin Appropriate for Kentucky? 66 Ky. L.J. 707 (1977-1978).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Northern Kentucky Law Review.

Royce and Waits, The Crime of Incest, 5 N. Ky. L. Rev. 191 (1978).

Treatises

Treatises

Petrilli, Kentucky Family Law, Capacity of Parties to Marry, § 4.6.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.4, Form 2.12.

Petrilli, Kentucky Family Law, Marriage in General, §§ 1.3, 1.4b.

402.020. Other prohibited marriages.

  1. Marriage is prohibited and void:
    1. With a person who has been adjudged mentally disabled by a court of competent jurisdiction;
    2. Where there is a husband or wife living, from whom the person marrying has not been divorced;
    3. When not solemnized or contracted in the presence of an authorized person or society;
    4. Between members of the same sex;
    5. Between more than two (2) persons; and
    6. Except as provided in KRS 402.210 , with a person who at the time of marriage is under eighteen (18) years of age.
  2. Subsection (1)(f) of this section shall not apply to a lawful marriage entered into in the Commonwealth of Kentucky prior to July 14, 2018, or to a lawful marriage in another state or country prior to the parties’ residence in the Commonwealth of Kentucky.

HISTORY: 2097: amend. Acts 1960, ch. 8, § 1; 1966, ch. 72; 1968, ch. 200, § 10; 1974, ch. 49, § 6; 1974, ch. 386, § 90; 1976 (Ex. Sess.), ch. 14, § 399, effective January 2, 1978; 1978, ch. 92, § 12, effective June 17, 1978; 1982, ch. 141, § 113, effective July 1, 1982; 1988, ch. 212, § 1, effective July 15, 1988; 1998, ch. 122, § 1, effective March 26, 1998; 1998, ch. 258, § 2, effective July 15, 1998; 2018 ch. 36, § 1, effective July 14, 2018.

Compiler's Notes.

This section was amended by § 124 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

On June 26, 2015, the United States Supreme Court in Obergefell v. Hodges, 192 L. Ed. 2d 609, held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

NOTES TO DECISIONS

Cited:

1.Construction.

This section and KRS 402.030 and 402.250 together make clear the legislative intent that marriages by persons under the required age are not void but only voidable. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

2.Mental Incompetency.

In determining whether one has mental capacity sufficient to contract a valid marriage, the test usually applied is whether there is a capacity to understand the nature of the contract and the duties and responsibilities which it creates. Gellert v. Busman's Adm'r, 239 Ky. 328 , 39 S.W.2d 511, 1931 Ky. LEXIS 781 ( Ky. 1931 ).

Marriage is a civil status arising out of a civil contract and in order to be valid must be the result of an agreement of minds. Johnson v. Sands, 245 Ky. 529 , 53 S.W.2d 929, 1932 Ky. LEXIS 621 ( Ky. 1932 ).

The marriage of an incompetent is void from its inception. Johnson v. Sands, 245 Ky. 529 , 53 S.W.2d 929, 1932 Ky. LEXIS 621 ( Ky. 1932 ).

Evidence supported finding of chancellor that aged man, who died two days after marriage, was physically and mentally competent to marry. Johnson v. Sands, 276 Ky. 492 , 124 S.W.2d 774, 1939 Ky. LEXIS 550 ( Ky. 1939 ).

Where husband had been found incompetent in 1926, married in 1930 and restored as a person of sound mind in 1934 but evidence indicated husband lived normal life after the marriage, marriage was not void under Indiana statute almost identical with this section. Cook v. Cook, 243 S.W.2d 900, 1951 Ky. LEXIS 1176 ( Ky. 1951 ).

In an annulment proceeding, evidence of a determination of the husband’s incompetency under KRS 387.010 without description of the nature of such incompetency two years prior to the wedding, testimony of the committee that he believed the husband to be of unsound mind, and medical testimony that he was unsound five years before and three years after the wedding was not sufficient to overcome the presumption of a valid marriage where the presumption is supported by medical and lay testimony that the husband was mentally sound at the time of the marriage. Littreal v. Littreal, 253 S.W.2d 247, 1952 Ky. LEXIS 1072 ( Ky. 1952 ).

The marriage of an idiot or a lunatic violates the fundamental public policy of this state, and thus a marriage entered into by a Kentucky resident who is an idiot or lunatic in another state will not be recognized in Kentucky, even though such marriage was only voidable in the state where solemnized. Beddow v. Beddow, 257 S.W.2d 45, 1952 Ky. LEXIS 1152 ( Ky. 1952 ).

3.Duress.

Where a marriage ceremony is performed while the woman is under duress and has a living husband, the marriage is void and no judicial decree is needed to nullify it. Tarter v. Medley, 356 S.W.2d 255, 1962 Ky. LEXIS 94 ( Ky. 1962 ).

4.Husband or Wife Living.

A subsequent marriage during the lifetime of a prior undivorced spouse is absolutely null and void. Donnelly v. Donnelly's Heirs, 47 Ky. 113 , 1847 Ky. LEXIS 129 ( Ky. 1847 ) (decided under prior law).

Polygamous marriages are not considered valid in Kentucky regardless of where they were performed. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

A woman whose husband has been absent from the state for five years without being heard from is lawfully competent to enter into a marriage contract. Strode v. Strode, 66 Ky. 227 , 1867 Ky. LEXIS 174 ( Ky. 1867 ) (decided under prior law).

A subsequent marriage by person who has a husband or wife living at the time is void from its inception. Harris v. Harris, 85 Ky. 49 , 2 S.W. 549, 8 Ky. L. Rptr. 727 , 1887 Ky. LEXIS 12 ( Ky. 1887 ). See Barth's Adm'r v. Barth, 102 Ky. 56 , 42 S.W. 1116, 19 Ky. L. Rptr. 905 , 1897 Ky. LEXIS 74 ( Ky. 1897 ).

If one of the parties to a marriage is at the time the lawful wife or husband of another person, the marriage is void as between the contracting parties. Bates v. Meade, 174 Ky. 545 , 192 S.W. 666, 1917 Ky. LEXIS 227 ( Ky. 1917 ).

Even though defendant before marrying plaintiff advised him that she believed her first husband was dead but was not certain, and plaintiff said he would shield her from possible developments and promised that he would have his lawyers procure a quiet divorce for her if her first husband ever showed up, plaintiff after living with defendant for more than ten years was not barred from having the marriage declared bigamous and void and from avoiding any responsibility for her support. Rose v. Rose, 274 Ky. 208 , 118 S.W.2d 529, 1938 Ky. LEXIS 246 ( Ky. 1938 ).

Absence of spouse from state without communication for two years is not sufficient to raise presumption of divorce. Payne v. Payne's Adm'r, 290 Ky. 461 , 161 S.W.2d 925, 1942 Ky. LEXIS 428 ( Ky. 1942 ).

Remarriage by undivorced wife is bigamous. Louisville & N. R. Co. v. Turner, 290 Ky. 602 , 162 S.W.2d 219, 1942 Ky. LEXIS 470 ( Ky. 1942 ).

This section provides a marriage is void where there is a husband or wife living from whom the person marrying has not been divorced. Hurley v. Hurley, 298 Ky. 178 , 182 S.W.2d 652, 1944 Ky. LEXIS 872 ( Ky. 1944 ).

Where, in divorce action by A against B, it was adjudged that A and B had been legally married, and A was granted a divorce, B was entitled, in a subsequent action brought by him against C, to a declaratory judgment as to whether his marriage to C, prior to date of divorce judgment, was void under this section. Hurley v. Hurley, 298 Ky. 178 , 182 S.W.2d 652, 1944 Ky. LEXIS 872 ( Ky. 1944 ).

Bigamous marriage performed in Ohio was void both in Ohio and in Kentucky. Fields v. Commonwealth, 301 Ky. 551 , 192 S.W.2d 478, 1946 Ky. LEXIS 513 ( Ky. 1946 ).

In prosecution for carnal knowledge growing out of alleged bigamous marriage, proof of issuance of marriage license for first marriage, admissions by accused to witnesses that he was married, and the filing of a divorce action by accused against alleged first wife, shortly after time of second marriage, were sufficient to prove the first marriage, notwithstanding that there was no record of the first marriage having been performed. Fields v. Commonwealth, 301 Ky. 551 , 192 S.W.2d 478, 1946 Ky. LEXIS 513 ( Ky. 1946 ).

5.Presence of Authorized Person.

Marriages are void when not solemnized in the presence of an authorized person or society. Stewart v. Munchandler, 65 Ky. 278 , 1867 Ky. LEXIS 74 ( Ky. 1867 ) (decided under prior law).

All marriages not solemnized or contracted in the presence of an authorized person or society are absolutely void. Robinson v. Redd's Adm'r, 102 Ky. 354 , 43 S.W. 435 (1897). See Klenke v. Noonan, 118 Ky. 436 , 81 S.W. 241, 26 Ky. L. Rptr. 305 , 1904 Ky. LEXIS 58 ( Ky. 1904 ).

Evidence that minister had not obtained a license from county court of county in which marriage was performed was insufficient to invalidate marriage, where there was no proof that minister resided in that county or had not obtained a license from the county of his residence. Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ).

6.Under Age.

A marriage contracted at a time when the male is under 16 (now 18) or the female under 14 (now 18) years of age is not voidable in an action by a next friend where it was entered into with parental consent or has been ratified by cohabitation after statutory age has been reached. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a Kentucky girl under 14 years of age is not against public policy; thus, where such a marriage was performed in a state in which it was valid, it was valid in Kentucky and the next friend of the girl was without authority to maintain an action for annulment. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

7.— Avoidance.

A marriage contrary to subdivision (5) (now subdivision (4)) of this section can be avoided only by an action brought by a next friend under KRS 402.030 , or by an action brought by the one under age under KRS 402.250 . Crummies Creek Coal Corp. v. Napier, 246 Ky. 569 , 55 S.W.2d 339, 1932 Ky. LEXIS 780 ( Ky. 1932 ).

Despite the fact that this section declares under age marriages “void,” these marriages are merely “voidable,” and the marriage is valid absent a court declaration to the contrary. Holbert v. West, 730 F. Supp. 50, 1990 U.S. Dist. LEXIS 1362 (E.D. Ky. 1990 ).

8.Validity.

A marriage valid where it takes place is valid everywhere except where it is against the public policy of the domiciliary state. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

Marriage of a person under 16 was voidable, not void, and thus, was not against Kentucky public policy; the denial of defendant’s request for an instruction under KRS 510.035 since he was married to the victim was error, and his convictions for third-degree rape were improper. However, defendant’s convictions for second degree rape as they related to the period preceding defendant’s marriage to the victim were proper. Robinson v. Commonwealth, 212 S.W.3d 100, 2006 Ky. LEXIS 298 ( Ky. 2006 ).

As a matter of law in Kentucky, a same-sex life partner is not the stepparent of his or her life partner’s biological child because same-sex marriages are void as against public policy, and “stepparent-like” adoptions are not recognized. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 2008 Ky. App. LEXIS 282 (Ky. Ct. App. 2008).

To the extent Ky. Rev. Stat. Ann. §§ 402.005 and 402.020(1)(d) and Ky. Const. § 233A denied same-sex couples the right to marry in Kentucky, they violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they were void and unenforceable. Love v. Beshear, 989 F. Supp. 2d 536, 2014 U.S. Dist. LEXIS 89119 (W.D. Ky. 2014 ).

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

9.Effect on Appointment of Administrator.

Where intestate decedent and widow had married six days prior to entry of final divorce decree between decedent and his prior wife, decedent’s son had no standing to attack validity of the marriage ten years later, since subsection (2) (b) of KRS 403.120 allows only parties to the marriage to attack it, and then only within one year of obtaining knowledge of a prohibitive condition; thus, the widow was properly appointed as administratrix of the estate under subsection (1) of KRS 395.040 , despite the fact that the bigamous marriage was void and prohibited under this section. Ferguson v. Ferguson, 610 S.W.2d 925, 1980 Ky. App. LEXIS 410 (Ky. Ct. App. 1980).

Cited:

Hatfield Campbell-Creek Coal Co. v. Adams, 275 Ky. 744 , 122 S.W.2d 787, 1938 Ky. LEXIS 506 ( Ky. 1938 ); Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ); Board of Education v. Bentley, 383 S.W.2d 677, 1964 Ky. LEXIS 51 , 11 A.L.R.3d 990 ( Ky. 1964 ); Murphy v. Bowen, 756 S.W.2d 149, 1988 Ky. App. LEXIS 122 (Ky. Ct. App. 1988); Glidewell v. Glidewell, 790 S.W.2d 925, 1990 Ky. App. LEXIS 73 (Ky. Ct. App. 1990).

Opinions of Attorney General.

Consent of the parents to the marriage of minor children as provided by KRS 402.210 is not required in order for the county clerk to issue a marriage license, where a Circuit Judge has issued an order giving the parties, upon their application, permission to marry based on a finding that the boy is 17 years of age and the girl is 15 and pregnant. OAG 62-876 .

Where at the time a man married his second wife a suit for divorce from his first wife had been filed but the divorce was not yet granted, the second marriage was not valid even though the divorce was subsequently granted. OAG 62-904 .

An application by underage persons to a Circuit Judge for permission to marry should properly be made by a motion filed in the Circuit Court in an ex parte proceeding. OAG 63-986 .

Upon the basis of an affidavit from a doctor that the girl is pregnant, the Circuit Judge may in his discretion enter an order granting permission to marry and directing the county clerk to issue a marriage license to the parties. OAG 63-986 .

The pregnant female applicant for a marriage license should be a resident of the county in which the application is made. OAG 66-475 .

Subdivision (5) (now (1)3.) of this section is not applicable where the child is born prior to making the application for a marriage license. OAG 68-203 .

Except in a pregnancy situation involving imminent birth, the county judge (now county judge/executive) has no authority to waive the three-day waiting period. OAG 68-321 .

A county clerk should issue a license (provided other statutory requirements are met) to a male negro and a white female, since miscegenation statutes have been held unconstitutional by the Supreme Court of the United States as being in violation of United States Const., Amend. 14. OAG 68-368 .

If the male applicant is under the age of 18, no license can be validly issued except in cases of pregnancy, and the 1968 amendment to KRS 402.210 did not authorize the marriage of persons under the age of 18 even with the consent of the parent. OAG 68-529 .

This section prohibits and renders void the marriage of a male under 18 years of age except when the female is pregnant and the 1968 amendment to KRS 402.210 which lowered the age at which the consent of the parent is no longer required from 21 to 18 did not, by implication, repeal this section. OAG 68-529 .

Where a male under the age of 18 is married under a license issued with consent, as provided in KRS 402.210 , but the female was not pregnant and the permission of the Circuit Judge was not obtained pursuant to the provisions of this section, the marriage is, pursuant to the provisions of this section, void. OAG 69-189 .

This statute is broad enough to authorize a county judge (now county judge/executive) to permit a 14-year-old girl who has given birth to a child to marry the alleged father of the illegitimate child, since the statute does not require the condition of pregnancy coexist with the application to marry. OAG 69-470 .

The three-day waiting period required by KRS 402.080 is applicable to a license issued pursuant to the provisions of subdivision (5) (now (1)3.) of this section permitting the issuance of a license with the permission of the court in the event of the pregnancy of the female. OAG 70-22 .

A boy under 18 years of age cannot be issued a marriage license with the written consent of his parents where pregnancy is not involved. OAG 71-125 .

This section requires that the female be pregnant at the time an application is made and, therefore, it does not apply where the child of the female making such application is in fact eight months old. OAG 72-553 . (But see OAG 69-470 .)

Where there was no indication that the 14-year-old female was pregnant when the application for marriage was made and the child of the couple involved was six months of age and the underage female was not a resident of Kentucky, a marriage license could not be legally issued to this couple. OAG 73-725 . (But see OAG 69-470 .)

Where a pregnant girl under 18 applies to county judge (now county judge/executive) for a marriage license under subsection (4) (now (1)3.), the application should be made in the county of the girl’s residence as required by KRS 402.080 . OAG 74-295 .

If a pregnant female under the age of 18 cannot obtain the consent of a parent or guardian as required by KRS 402.210 , she may apply under subsection (4) (now (1)3.) or KRS 402.150 (repealed) to the county judge (now county judge/executive) for permission to marry. OAG 74-524 .

If an unmarried female under the age of 18 who has just had a child cannot procure consent of her parents under KRS 402.210 , she is not qualified to apply to the county judge (now county judge/executive) under this section for an order granting the permission to get married since the term “pregnancy” mentioned in subsection (4) (now (1)3.) simply means physically and actually pregnant at the time the application for permission to marry is made. OAG 74-607 .

Regardless of the age of a person under 18, such person may legally apply for a marriage license provided he procures the consent of one of the parents or the guardian. OAG 74-607 .

If either applicant for a marriage license is under 18 and the girl is pregnant and one of the parents or the guardian of the applicant under 18 gives consent, then it is not necessary for the applicants to apply to the county judge (now county judge/executive) for permission to marry. OAG 74-674 .

As concerns applicants for a marriage license under 18, there is no longer any minimum age since the consent of either parent or guardian takes care of the age factor. OAG 74-674 .

If the clerk has any valid reason, after a discussion with the applicants, to believe that one or both of the applicants is married to another without a final decree of divorce being effectively entered, then the clerk should not issue the license in view of this section. OAG 78-431 .

A divorced girl under 18 does not require the consent of her father, mother, or guardian in making her application for marriage since KRS 402.210 makes it clear that it is only where the applicant is under 18 and not before married that parental or a guardian’s consent is required. OAG 80-138 .

The General Assembly in this section expressed a sensitive and social concern about the marriages of persons of tender age; accordingly, the county clerk may require that the applicants for marriage produce for copying a driver’s license, or a birth certificate or copy thereof, or in lieu of any of the above an affidavit of the parents or guardian as to the specific age of the applicants. OAG 82-453 .

While there is no express statutory provision covering the proof of age of applicants for a marriage license, any reasonable requirement of the clerk as to proof of age would be upheld by the courts. In order for the legislative intent expressed in KRS 402.210 , 402.080 , and this section to be practically accomplished, the strong implication is that any reasonable kind of proof of age would be upheld by the courts. OAG 82-453 .

The literal language of subdivision (4) (now (1)3.) of this section, as relates to the language, “in case of pregnancy,” means that the under age female has to be pregnant at the time the application is made in order for her to be married over her parents’ refusal of permission; accordingly, where an unmarried 17-year-old had already had her baby, she was simply no longer pregnant and, therefore, she could not get married without the consent of her parents. OAG 83-109 .

State universities may extend employee health insurance coverage to “domestic partners” or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage, since this would constitute the recognition of such a legal status in contravention of Ky. Const. § 233A. If domestic partnership is not defined in terms of a legal status similar to marriage, but is defined in a more inclusive manner, extending such benefits would be constitutional. OAG 2007-04 .

Research References and Practice Aids

Cross-References.

Bigamy, KRS 530.010 .

Legitimacy of children of void marriage, KRS 391.100 .

Kentucky Law Journal.

Miller, Kentucky’s New Dissolution of Marriage Law, 61 Ky. L.J. 980 (1973).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Turnipseed, How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America, 96 Ky. L.J. 275 (2007).

Northern Kentucky Law Review.

General Law Issue: Article: De-Clothing Sex-Based Classifications - Same-Sex Marriage is Just the Beginning: Achieving Formal Sex Equality in the Modern Era, 36 N. Ky. L. Rev. 1 (2009).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition and Order for Permission to Marry (AOC Form 201), Form 251.05.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Change of Minor’s Name, Form 265.03.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Marriage and Cohabitation, § 251.00.

Petrilli, Kentucky Family Law, Annulment of Marriage, § 10.5.

Petrilli, Kentucky Family Law, Capacity of Parties to Marry, §§ 4.1, 4.4, 4.5, 4.7.

Petrilli, Kentucky Family Law, Marriage in General, §§ 1.3, 1.4c, 1.4d, 1.4e, 1.4f.

Petrilli, Kentucky Family Law, Marriage License, §§ 5.3, 5.5, 5.7, 5.8, 5.12; 1991 Supp., § 5.5.

Petrilli, Kentucky Family Law, Solemnization, § 6.1.

Petrilli, Kentucky Family Law, Forms, Marriage, Form 1.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.2, Form 2.4, Form 2.12.

402.030. Courts may declare certain marriages void.

  1. Courts having general jurisdiction may declare void any marriage obtained by force or fraud, or, provided that the petition is brought by a party who was under the age of majority as defined by KRS 2.015 at the time of marriage, a marriage obtained by duress.
  2. At the instance of any next friend, courts having general jurisdiction may declare any marriage void where the person was under eighteen (18) years of age at the time of the marriage, and the marriage was without the consent required by KRS 402.210 .

HISTORY: 2100: amend. Acts 1960, ch. 8, § 2; 1974, ch. 386, § 91; 1976 (Ex. Sess.), ch. 14, § 400, effective January 2, 1978; 1988, ch. 212, § 2, effective July 15, 1988; 1998, ch. 122, § 2, effective March 26, 1998; 1998, ch. 258, § 5, effective July 15, 1998; 2018 ch. 36, § 2, effective July 14, 2018.

NOTES TO DECISIONS

1.Construction.

This section and KRS 402.020 and 402.250 together make clear the legislative intent that marriages by persons under the required age are not void but only voidable. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

2.Force or Duress.

The force or duress need not have been by the defendant, but may have been by his or her friends or relatives. Marks v. Crume, 29 S.W. 436, 16 Ky. L. Rptr. 707 (1895).

A marriage executed under duress may be ratified. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ).

When the husband who alleges duress had previous to the marriage seduced or had intercourse with the wife, he must prove conclusively that duress was the sole impelling motive causing him to enter into the marriage. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ).

3.Fraud.

The option to have a fraudulent marriage held void cannot be exercised by third parties or the party in fault. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ).

Fraudulent marriages are voidable only at the election of the defrauded party, and said option cannot be exercised after his death by his executors or devisees. Johnson v. Sands, 245 Ky. 529 , 53 S.W.2d 929, 1932 Ky. LEXIS 621 ( Ky. 1932 ).

False representation to paramour by woman that she was pregnant in order to induce him to marry her constitutes fraud authorizing annulment of marriage. Parks v. Parks, 418 S.W.2d 726, 1967 Ky. LEXIS 224 ( Ky. 1967 ).

4.Under Age.

When one of the parties was under age, the marriage can be avoided only under this section or under KRS 402.250 . Crummies Creek Coal Corp. v. Napier, 246 Ky. 569 , 55 S.W.2d 339, 1932 Ky. LEXIS 780 ( Ky. 1932 ).

Despite the fact that KRS 402.020 declares under age marriages “void,” these marriages are merely “voidable,” and the marriage is valid absent a court declaration to the contrary. Holbert v. West, 730 F. Supp. 50, 1990 U.S. Dist. LEXIS 1362 (E.D. Ky. 1990 ).

A marriage contracted at a time when the male is under 16 (now 18) or the female under 14 (now 18) years of age is not voidable in an action by a next friend where it was entered into with parental consent or has been ratified by cohabitation after statutory age has been reached. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a Kentucky girl under 14 years of age is not against public policy; thus, where such a marriage was performed in a state in which it was valid, it was valid in Kentucky and the next friend of the girl was without authority to maintain an action for annulment. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

5.Consent.

The marriage cannot be avoided at the instance of a next friend if consent was given. Moody v. Whittle, 271 Ky. 29 , 111 S.W.2d 401, 1937 Ky. LEXIS 181 ( Ky. 1937 ).

6.Validity.

A marriage valid where it takes place is valid everywhere except where it is against the public policy of the domiciliary state. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

Marriage of a person under 16 was voidable, not void, and thus, was not against Kentucky public policy; the denial of defendant’s request for an instruction under KRS 510.035 since he was married to the victim was error, and his convictions for third-degree rape were improper. However, defendant’s convictions for second degree rape as they related to the period preceding defendant’s marriage to the victim were proper. Robinson v. Commonwealth, 212 S.W.3d 100, 2006 Ky. LEXIS 298 ( Ky. 2006 ).

Cited:

Beddow v. Beddow, 257 S.W.2d 45, 1952 Ky. LEXIS 1152 ( Ky. 1952 ); Eck v. Eck, 793 S.W.2d 858, 1990 Ky. App. LEXIS 110 (Ky. Ct. App. 1990).

Opinions of Attorney General.

State universities may extend employee health insurance coverage to “domestic partners” or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage, since this would constitute the recognition of such a legal status in contravention of Ky. Const. § 233A. If domestic partnership is not defined in terms of a legal status similar to marriage, but is defined in a more inclusive manner, extending such benefits would be constitutional. OAG 2007-04 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Petrilli, Kentucky Family Law, Annulment of Marriage, §§ 10.1, 10.2, 10.3, 10.9, 10.12, 10.17.

Petrilli, Kentucky Family Law, Court Procedure, § 23.12.

Petrilli, Kentucky Family Law, Marriage in General, § 1.4f.

Petrilli, Kentucky Family Law, Marriage License, § 5.8; 1991 Supp., § 5.5.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Forms 2.2, 2.4, 2.12, 2.23.

Out of State Marriages

402.040. Marriage in another state.

  1. If any resident of this state marries in another state, the marriage shall be valid here if valid in the state where solemnized, unless the marriage is against Kentucky public policy.
  2. A marriage between members of the same sex is against Kentucky public policy and shall be subject to the prohibitions established in KRS 402.045 .

History. 2101; 1998, ch. 258, § 3, effective July 15, 1998.

Compiler's Notes

On June 26, 2015, the United States Supreme Court in Obergefell v. Hodges, 192 L. Ed. 2d 609, held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

NOTES TO DECISIONS

1.Validity.

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

The validity of a marriage performed in another state must be decided by the laws of that state. Dumaresly v. Fishly, 10 Ky. 368 , 1821 Ky. LEXIS 149 ( Ky. 1821 ) (decided under prior law).

A marriage valid in the state where performed is valid in other state where the parties may reside, even though it would have been invalid if performed there. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law). See Dannelli v. Dannelli's Adm'r, 67 Ky. 51 , 1868 Ky. LEXIS 78 ( Ky. 1868 ) (decided under prior law).

The fact that residents of Kentucky went to another state to have performed a marriage that would have been invalid in Kentucky with the express intent to avoid the Kentucky laws does not invalidate the marriage if it was legal in the state where performed. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

Validity of marriage performed in another state must be determined by the laws of that state. Klenke v. Noonan, 118 Ky. 436 , 81 S.W. 241, 26 Ky. L. Rptr. 305 , 1904 Ky. LEXIS 58 ( Ky. 1904 ).

In absence of pleading and proof of validity of marriage solemnized in another state, the presumption is that the common law as administered in this state prevails in the other state. Rose v. Rose, 274 Ky. 208 , 118 S.W.2d 529, 1938 Ky. LEXIS 246 ( Ky. 1938 ).

A marriage valid where it takes place is valid in Kentucky unless it is against the public policy of the state. Gilbert v. Gilbert, 275 Ky. 559 , 122 S.W.2d 137, 1938 Ky. LEXIS 468 ( Ky. 1938 ).

Where marriage took place in West Virginia, its validity must be determined by the laws of that state. Finding that husband was in fact competent made it unnecessary for court to decide whether West Virginia marriage could be attacked by third parties after death of husband, alleged to be incompetent. Johnson v. Sands, 276 Ky. 492 , 124 S.W.2d 774, 1939 Ky. LEXIS 550 ( Ky. 1939 ).

A marriage valid where it takes place is valid everywhere except where it is against the public policy of the domiciliary state. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

A marriage contracted at a time when the male is under 16 (now 18) or the female under 14 (now 18) years of age is not voidable in an action by a next friend where it was entered into with parental consent or has been ratified by cohabitation after statutory age has been reached. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a Kentucky girl under 14 years of age is not against public policy; thus, where such a marriage was performed in a state in which it was valid, it was valid in Kentucky and the next friend of the girl was without authority to maintain an action for annulment. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a person under 16 was voidable, not void, and thus, was not against Kentucky public policy; the denial of defendant’s request for an instruction under KRS 510.035 since he was married to the victim was error, and his convictions for third-degree rape were improper. However, defendant’s convictions for second degree rape as they related to the period preceding defendant’s marriage to the victim were proper. Robinson v. Commonwealth, 212 S.W.3d 100, 2006 Ky. LEXIS 298 ( Ky. 2006 ).

Because same-sex marriage was void as against public policy under KRS 402.040(2), a Family Court’s creation of the legal fiction that a same-sex life partner was a stepparent of her partner’s biological child was an invalid attempt to avoid the statutory restriction in order to approve the adoption. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 2008 Ky. App. LEXIS 282 (Ky. Ct. App. 2008).

2.Mentally Incompetent.

The marriage of an idiot or a lunatic violates the fundamental public policy of this state, and thus a marriage entered into by a Kentucky resident who is an idiot or lunatic in another state will not be recognized in Kentucky, even though such marriage was voidable only in the state where solemnized. Beddow v. Beddow, 257 S.W.2d 45, 1952 Ky. LEXIS 1152 ( Ky. 1952 ).

3.Bigamous Marriage.

Bigamous marriage performed in Ohio was void both in Ohio and in Kentucky. Fields v. Commonwealth, 301 Ky. 551 , 192 S.W.2d 478, 1946 Ky. LEXIS 513 ( Ky. 1946 ).

4.Cohabitation.

Evidence that parties lived together as husband and wife in Kentucky is competent as corroboration of evidence that they lived together as husband and wife in Ohio, in action to establish her right to dower. Hoffman v. Hoffman, 285 Ky. 55 , 146 S.W.2d 347, 1940 Ky. LEXIS 598 ( Ky. 1940 ).

5.Common-Law Marriage.

A common-law marriage in another state, in which state such a marriage is legal, will be upheld here. Klenke v. Noonan, 118 Ky. 436 , 81 S.W. 241, 26 Ky. L. Rptr. 305 , 1904 Ky. LEXIS 58 ( Ky. 1904 ). See Howard v. Asher, 219 Ky. 158 , 292 S.W. 1089, 1927 Ky. LEXIS 340 ( Ky. 1927 ).

Common-law marriage valid in the state where entered into is valid in Kentucky. Brown's Adm'r v. Brown, 308 Ky. 796 , 215 S.W.2d 971, 1948 Ky. LEXIS 1052 ( Ky. 1948 ).

Illicit cohabitation in Kentucky prior to moving to Florida where cohabitation continued did not prevent valid common-law marriage in Florida in face of uncontradicted evidence that Florida cohabitation was for the purpose of contracting a common-law marriage. Brown's Adm'r v. Brown, 308 Ky. 796 , 215 S.W.2d 971, 1948 Ky. LEXIS 1052 ( Ky. 1948 ).

Where Kentucky citizens went to Florida and entered into a common-law marriage which was valid there, and then returned to Kentucky to live, on husband’s death the wife was entitled to the widow’s statutory portion of his estate. Brown's Adm'r v. Brown, 308 Ky. 796 , 215 S.W.2d 971, 1948 Ky. LEXIS 1052 ( Ky. 1948 ).

Although Kentucky law does not provide for creation of common-law marriage, common-law marriages validly created in another state are recognized in Kentucky. Tarter v. Medley, 356 S.W.2d 255, 1962 Ky. LEXIS 94 ( Ky. 1962 ).

While Kentucky may recognize common-law marriages legalized in another state, the mere journeying to another state, registering at a motel as husband and wife, exchanging marriage vows in private, and returning the next day does not constitute such a common-law marriage in the other state which will be recognized in Kentucky. Vaughn v. Hufnagel, 473 S.W.2d 124, 1971 Ky. LEXIS 145 ( Ky. 1971 ), cert. denied, 405 U.S. 1041, 92 S. Ct. 1313, 31 L. Ed. 2d 582, 1972 U.S. LEXIS 3079 (U.S. 1972).

6.— Living Husband or Wife.

Where plaintiff had not obtained divorce from former husband at time of consummation of alleged common-law marriage in Ohio, marriage was void. Gilbert v. Gilbert, 275 Ky. 559 , 122 S.W.2d 137, 1938 Ky. LEXIS 468 ( Ky. 1938 ).

7.Extraterritoriality.

The marriage laws of Kentucky have no extraterritorial effect. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage in General, § 1.2.

ALR

Recognition by foreign state of marriage which would, though invalid where contracted, have been valid if contracted within foreign state. 82 A.L.R.3d 1240.

402.045. Same-sex marriage in another jurisdiction void and unenforceable.

  1. A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky.
  2. Any rights granted by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts.

History. Enact. Acts 1998, ch. 258, § 1, effective July 15, 1998.

Compiler's Notes

On June 26, 2015, the United States Supreme Court in Obergefell v. Hodges, 192 L. Ed. 2d 609, held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

NOTES TO DECISIONS

1.Constitutionality.

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

Kentucky’s denial of recognition for valid same-sex marriages under this provision and KRS 402.045 violates the guarantee of equal protection under the law, even under the most deferential standard of review; accordingly, this provision and KRS 402.045 are unconstitutional. Bourke v. Beshear, 996 F. Supp. 2d 542, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky.), rev'd, 772 F.3d 388, 2014 FED App. 0275P, 2014 U.S. App. LEXIS 21191 (6th Cir. Mich. 2014).

Research References and Practice Aids

Northern Kentucky Law Review.

General Law Issue: Article: De-Clothing Sex-Based Classifications - Same-Sex Marriage is Just the Beginning: Achieving Formal Sex Equality in the Modern Era, 36 N. Ky. L. Rev. 1 (2009).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Solemnization

402.050. Who may solemnize marriage — Persons present.

  1. Marriage shall be solemnized only by:
    1. Ministers of the gospel or priests of any denomination in regular communion with any religious society;
    2. Justices and judges of the Court of Justice, retired justices and judges of the Court of Justice except those removed for cause or convicted of a felony, county judges/executive, and such justices of the peace and fiscal court commissioners as the Governor or the county judge/executive authorizes; or
    3. A religious society that has no officiating minister or priest and whose usage is to solemnize marriage at the usual place of worship and by consent given in the presence of the society, if either party belongs to the society.
  2. At least two (2) persons, in addition to the parties and the person solemnizing the marriage, shall be present at every marriage.

History. 2103, 2107: amend. Acts 1968, ch. 102; 1976 (Ex. Sess.), ch. 14, § 401, effective January 2, 1978; 1978, ch. 384, § 516, effective June 17, 1978; 1992, ch. 50, § 1, effective July 14, 1992; 1996, ch. 205, § 1, effective July 15, 1996.

NOTES TO DECISIONS

1.Presence of Authorized Person.

All marriages not solemnized or contracted in the presence of an authorized person or society are absolutely void. Robinson v. Redd's Adm'r, 102 Ky. 354 , 43 S.W. 435 (1897). See Klenke v. Noonan, 118 Ky. 436 , 81 S.W. 241, 26 Ky. L. Rptr. 305 , 1904 Ky. LEXIS 58 ( Ky. 1904 ).

Cited:

Holbert v. West, 730 F. Supp. 50, 1990 U.S. Dist. LEXIS 1362 (E.D. Ky. 1990 ).

Opinions of Attorney General.

If one of the parties to the marriage is a member of a recognized religious society such as the Quakers, it is legal for the marriage to be solemnized by consent given by the parties in the presence of the society. OAG 63-24 .

Where a group of Quakers did not have a regular place to worship, it would be legal to solemnize a marriage at whatever place was currently designated as the regular place of worship. OAG 63-24 .

A county judge (now county judge/executive) pro tem may solemnize a marriage, in performing the duties of the county judge (now county judge/executive), only if the regular county judge (now county judge/executive) is absent from the county, or is unable or disqualified to perform such function because of sickness or other reason. Conversely, if the county judge (now county judge/executive) is present in the county and is not disqualified from performing the function because of sickness or other valid reasons, the county judge (now county judge/executive) pro tem has no authority to solemnize marriages. OAG 68-111 .

A county judge (now county judge/executive) may perform a marriage in any county in Kentucky. OAG 68-385 .

If the county judge (now county judge/executive) is present in the county and is not disqualified from performing the function of solemnizing marriages because of sickness or other valid reasons, the county judge pro tem has no authority to solemnize marriages. OAG 70-736 .

A justice of the peace may solemnize a marriage of a couple possessing a valid Kentucky marriage license during an airplane flight if the ceremony takes place while the plane is within the geographical boundaries of the Commonwealth of Kentucky. OAG 72-620 .

Where a religious society has no regular place of worship and such worship takes place in the various homes of the believers, the home of one such believer could be designated as a place in which a marriage ceremony is to be held and this would satisfy the requirement of subsection (1)(c) of this section as to “the usual place of worship.” OAG 72-805 .

A justice of the peace who has been properly authorized to solemnize marriages either by the governor or the county court may solemnize marriages in any county in the Commonwealth regardless of whether the license is acquired in the county where the marriage is solemnized or another county, but the return of the license and certificate must be made to the county clerk who issued the license. OAG 74-114 .

This section does not require a minister to be ordained. OAG 74-673 .

An exhorter of the Church of God with headquarters at Cleveland, Tennessee is a minister of the gospel. OAG 74-673 .

Where a county judge (now county judge/executive) determines that an applicant for a license to solemnize marriages is a minister in regular communion with his religious society in that the group is organized and maintained for the support of public worship of God and the applicant is recognized as a minister of such group and is actively engaged in such ministry and thereby qualifies as a minister and also complies with the other requirements of KRS 402.060 (repealed) he may be issued a license to solemnize marriages. OAG 76-603 .

Being a minister in regular communion with his religious society is one of the conditions required under KRS 402.060 (repealed) in order to be issued a license to solemnize marriages and if a group is organized and maintained for the support of public worship of God and the applicant is recognized as a minister of such group, and the minister is actively engaged in such ministry, he would qualify as a minister. OAG 76-603 .

The point of qualification for a minister or priest is that he must be a minister of the gospel of any denomination in regular communion with any religious society, but a particular ritual of ordainment is not a statutory prerequisite. OAG 77-326 .

County judges/executive and justices of the peace can continue to solemnize marriages as a nonjudicial function. OAG 78-33 .

In the absence of any statutory provisions for a fee for solemnizing a marriage, any money for it is purely a matter of gift. OAG 78-57 .

Since performing a marriage is not a judicial act, a justice of the peace can perform marriages provided he has proper written authorization. OAG 78-57 .

County judges/executive are authorized by this section to solemnize marriages. OAG 78-71 .

A “religious society” in Kentucky is a broad term and includes any group organized and maintained for the support of public worship of God and the recognition of a minister can take the form of ordination or license or any other form which expresses clearly the fact that the religious group recognizes the person or looks to the person as a minister of that specific group. OAG 78-303 .

There is nothing in this section suggesting that a minister must be ordained and it establishes no criterion as to the meaning of the phrase “minister of the gospel,” therefore in each case we must look to the particular church group with which the applicant is affiliated; in other words the matter of who is a minister of the religious society is left wholly to the recognition of the particular denomination or organization. OAG 78-303 .

A justice of the peace can solemnize marriages, provided that it is authorized by the governor of Kentucky or the county judge/executive of his county by way of an appropriate executive order. OAG 78-642 .

The term “persons present” is so broad as to include any two human beings or individuals, male or female, present at such wedding, regardless of age and where the witnesses are infants (under 18), the witnesses would qualify where it appears to the person solemnizing the marriage that such infant witnesses are sufficiently intelligent to observe, recollect and narrate (if it were ever necessary) the critical facts as to the marriage and identity of the parties to the marriage, and have a moral sense of obligation to speak the truth (if and when called upon). OAG 79-323 .

There is nothing in the language of subsection (2) of this section or KRS 402.220 to suggest that a witness must be of legal age, which for general purposes is 18. OAG 79-323 .

A 17-year-old minister of the gospel is qualified, under this section and KRS 402.060 (repealed), to apply to the county judge/executive for a license to solemnize marriages in Kentucky, provided he is a resident of the county in which he applies or serves as a minister in a place of worship in that county, satisfies the county judge/executive that he is a person of good moral character and in regular communion with his religious society, and makes the bond required by KRS 402.060 (repealed). OAG 80-256 .

A deputy county judge/executive, as such, has no authority to solemnize a marriage in Kentucky. OAG 82-145 .

In an urban county the power to authorize justices of the peace to solemnize marriages exists in the county judge/executive, pursuant to this section and there is no law that would permit the mayor of urban county government to exercise such authority; of course where the governor has previously authorized one or more of the justices of the peace to perform marriages, the county judge/executive’s authority would be nullified to that extent, since the statute does not envision the duplication of the authority to permit justices of the peace to solemnize marriages. OAG 82-164 .

The authority of a county judge/executive in an urban county to authorize a person to solemnize marriages applies exclusively to the justice of the peace in that county and not to county commissioners, pursuant to subdivision (1)(b) of this section. OAG 82-164 .

This section is not a general law relating to city or county government but is merely a law dealing with the subject of those persons or officials who can perform marriages; thus the marriage ceremony by one qualified by statute to solemnize the marriage does not relate to county or city governmental action, as such. OAG 82-164 .

A justice of the peace may perform marriages if he is expressly authorized to do so in writing by the Governor of Kentucky or the county judge/executive of his county. Such authority should take the form of an executive order as applies to the Governor and the county judge/executive. The original order should be filed in the county clerk’s office. OAG 82-453 .

Since the charge or money received by a county judge/executive for marrying people is not for a governmental service, it belongs to the county judge/executive as a private asset and he is not required to account for that money to the fiscal court or county treasurer. OAG 83-122 .

A county judge/executive, in performing marriages under subsection (1) of this section, may receive whatever reasonable amount of money (it is not a fee in the governmental sense) the married parties may wish to give him. While a minister or other official is generally given a small fee for performing a marriage ceremony, such a fee is not authorized by statute or required by any law and cannot be forced as a condition to the performance of marriage under existing law. OAG 83-122 .

Canadian citizen, who was an ordained minister, within the meaning of subdivision (1)(a) of this section, and who resided in Kentucky, could lawfully apply to the county judge/executive for the issuance of a license to solemnize marriages, pursuant to KRS 402.060 (repealed) and could then conduct marriages in Kentucky by himself. OAG 84-96 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order of County Judge/Executive Authorizing Justices to Perform Marriage Ceremony, Form 17.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Justices of the Peace, § 17.00.

Petrilli, Kentucky Family Law, Proxy Marriage, § 8.2.

Petrilli, Kentucky Family Law, Solemnization, § 6.1.

402.060. Minister or priest to have license to solemnize marriage — Exemption — Special license for nonresident. [Repealed.]

Compiler’s Notes.

This section (2104: amend. Acts 1974, ch. 386, § 92; 1978, ch. 246, § 1, effective June 17, 1978; 1980, ch. 188, § 110, effective July 15, 1980; 1988, ch. 243, § 2, effective April 9, 1988; 1994, ch. 220, § 1, effective July 15, 1994) was repealed by Acts 1996, ch. 205, § 3, effective July 15, 1996.

402.070. Marriage not invalid for want of authority to solemnize.

No marriage solemnized before any person professing to have authority therefor shall be invalid for the want of such authority, if it is consummated with the belief of the parties, or either of them, that he had authority and that they have been lawfully married.

History. 2102.

NOTES TO DECISIONS

1.Belief Minister Had Authority.

Where a minister who had married plaintiff and her husband was not legally qualified because he had not obtained a license but he had held himself out to the public as having authority to perform marriages for several years and he had performed a number of ceremonies in the community, and plaintiff and her husband had believed he had such authority and they consummated the marriage and thereafter lived together as husband and wife, a valid marriage was established and the wife could maintain an action for the wrongful death of her husband. Arthurs v. Johnson, 280 S.W.2d 504, 1955 Ky. LEXIS 163 ( Ky. 1955 ).

Cited in:

Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ); Barger v. Commonwealth, 256 S.W.2d 364, 1953 Ky. LEXIS 724 ( Ky. 1953 ); Turner v. Commonwealth, 315 S.W.2d 619, 1958 Ky. LEXIS 329 ( Ky. 1958 ); Holbert v. West, 730 F. Supp. 50, 1990 U.S. Dist. LEXIS 1362 (E.D. Ky. 1990 ); Pinkhasov v. Petocz, 331 S.W.3d 285, 2011 Ky. App. LEXIS 18 (Ky. Ct. App. 2011).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Petrilli, Kentucky Family Law, Solemnization, § 6.2.

402.080. Marriage license required — Who may issue.

No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person, in which case it may be issued by any county clerk.

HISTORY: 2105: amend. Acts 1948, ch. 42; 1968, ch. 100, § 14; 1978, ch. 384, § 518, effective June 17, 1978; 1980, ch. 74, § 1, effective July 15, 1980; 1984, ch. 279, § 1, effective July 13, 1984; 2018 ch. 36, § 3, effective July 14, 2018.

NOTES TO DECISIONS

1.License Issued in Wrong County.

A marriage is not invalidated because the license was issued in the wrong county. Gatewood v. Tunk, 6 Ky. 246 , 1813 Ky. LEXIS 112 ( Ky. 1813 ) (decided under prior law). See Dumaresly v. Fishly, 10 Ky. 368 , 1821 Ky. LEXIS 149 ( Ky. 1821 ); Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

2.No license.

Based on the plain language of the marriage statutes pursuant to interpretation rules under KRS 446.080 , parties who entered into a purely religious marriage ceremony, solemnized pursuant to their religious faith, but who purposely chose not to obtain a civil marriage license pursuant to KRS 402.080 and 402.220 , did not create a legally valid civil marriage. Pinkhasov v. Petocz, 331 S.W.3d 285, 2011 Ky. App. LEXIS 18 (Ky. Ct. App. 2011).

3.Standing.

Trial court properly concluded that the decedent’s mother and sister lacked standing to attack the validity of the decedent’s and wife’s marriage where the decedent and wife had sought a legally valid civil marriage and completed all steps required to comply, and case law requiring strict compliance with Ky. Rev. Stat. Ann. § 402.080 did not extend standing to a third party to contest a marriage. Marshall v. Marshall, 559 S.W.3d 381, 2018 Ky. App. LEXIS 233 (Ky. Ct. App. 2018).

Opinions of Attorney General.

The medical certificate constitutes a part of the marriage application and it must be filed at the same time that application for marriage license is made, and remain with the application in the clerk’s office for three days before the license is issued. OAG 63-266 .

After January 1, 1965, a female 18 years of age or over, be she a resident or nonresident, may apply for and have issued by any county clerk a marriage license and such a female is not limited to the county of her residence. OAG 64-503 .

The application for a marriage license must remain on file, open to the public, in the office of the county court clerk for three days before the license is issued and such is an absolute condition that must be met. OAG 66-730 .

The marriage license application book kept by the county clerk constitutes a public record open to public inspection. OAG 68-41 .

A circuit judge has no authority to waive the three-day waiting period. OAG 68-321 .

Except in a pregnancy situation involving imminent birth, the county judge (now county judge/executive) has no authority to waive the three-day waiting period. OAG 68-321 .

There are no specific residency requirements in Kentucky for persons applying for marriage licenses who are 18 years of age or over, whether residents or nonresidents, and marriage licenses may be issued to such persons in any county of the state provided other statutory requirements are met. Female residents who are not widows and who are under the age of 18 must obtain a marriage license in the county of their residence. Nonresident females under age 18 cannot validly obtain a marriage license from any county clerk. OAG 68-557 .

The statute does not fix a definite time within which a marriage license must be issued after proper application has been made but, once proper application has been filed, the license must be issued within a reasonable time thereafter and, since a marriage license after issue is only valid for 30 days, a reasonable time for the issuance of the license after the proper filing of application would be a relatively short period of time. OAG 69-453 .

The waiting period required by subsection (2) of this section is applicable to a license issued pursuant to the provisions for pregnancy of KRS 402.020(5) (now KRS 402.020(1)(f)3. OAG 70-22 .

Only the signature of the female on the marriage license application is mandatory. OAG 72-50 .

A marriage license upon receipt of a valid application therefor should be issued within a reasonable time after the three-day waiting period. A reasonable time means a relatively short time and a delay of four months is not a reasonable time. OAG 73-414 .

A nonresident pregnant girl under 16 years of age does not qualify for a marriage license in Kentucky unless she is a widow, since she does not reside anywhere in Kentucky. OAG 74-295 .

The day that the application for the license is filed constitutes the first day of the waiting period, and then on the third day of the waiting period after regular business hours, the clerk may issue the marriage license to the applicants. OAG 78-381 .

If one of the parties is under 60, the waiving of the three-day waiting period of this section cannot be applied since under the literal language of this section both persons (applicants) must be 60 years of age or older. OAG 80-415 .

Where minister, on the basis of presented license of marriage, performed marriage ceremony and completed the certificates mentioned in KRS 402.100 , but in returning the certificate to the clerk, the license-certificate was lost in the mail, in view of the public policy favoring marriage, clerk could issue a certified “duplicate” marriage license to the parties, which could then be delivered to the solemnizing minister for filling out the subject certificates and returning such duplicate license for filing; after first requiring the minister and the wedded parties to sign an affidavit, to be filed with clerk, stating that the minister did on a certain day take the original marriage license and solemnize the marriage between the subject parties. OAG 82-242 .

A county clerk may issue a marriage license where the female is a nonresident and the male is a resident of Kentucky or vice versa, provided applicable statutory requirements are met; where the female is a nonresident, subsection (1) of this section would not apply but where the female is a resident of Kentucky, it would apply. OAG 74-295 modified OAG 82-416 .

Subsection (1) of this section has no bearing on nonresident but merely relates to factual circumstances requiring that application be made in a certain county. OAG 74-295 modified OAG 82-416 .

The marriage license application should not be mailed and returned by mail; the application should be made by the applicants in person in the clerk’s office. OAG 74-295 modified OAG 82-416 .

There is no statute disqualifying nonresidents as such from applying for a marriage license in Kentucky; nonresidents may apply for a marriage license in any county in Kentucky provided they comply with applicable statutory law. OAG 74-295 modified OAG 82-416 .

The General Assembly in KRS 402.020 expressed a sensitive and social concern about the marriages of persons of tender age; accordingly, the county clerk may require that the applicants for marriage produce for copying a driver’s license, or a birth certificate or copy thereof, or in lieu of any of the above an affidavit of the parents or guardian as to the specific age of the applicants. OAG 82-453 .

While there is no express statutory provision covering the proof of age of applicants for a marriage license, any reasonable requirement of the clerk as to proof of age would be upheld by the courts. In order for the legislative intent expressed in KRS 402.020 , 402.210 , and this section to be practically accomplished, the strong implication is that any reasonable kind of proof of age would be upheld by the courts. OAG 82-453 .

In considering that the statutes contain no maximum time during which the application for a marriage license may remain on file, and considering that under KRS 402.190 (repealed and reenacted as KRS 402.105 ) a marriage license is valid for 30 days, including the date of issue, it appears that the marriage license, assuming that any pertinent marriage statutes have been complied with, should be issued by the clerk within a reasonable time after the three-day waiting period; a “reasonable time” would probably be a rather short period of time, perhaps a period of 30 days. OAG 83-359 .

The three-day waiting period is mandatory. OAG 84-79 .

Where the deputy clerk intentionally backdates a marriage application in order to avoid the three-day waiting period of this section, and where the county clerk has no actual knowledge of such wrongful issue until after the issuance has been effected, and the clerk has no reasonable opportunity to retrieve the wrongfully issued license prior to the solemnizing of marriage, the county clerk would not be subject to the penalty described in KRS 402.990(9). A repetition of this offense by the deputy would warrant the clerk’s dismissal of the deputy, where the offense is made known to the clerk, and if the offense is allowed to be repeated, the clerk could be charged under KRS 402.990(9). OAG 84-79 .

Where a county clerk’s deputy deliberately backdates a marriage application in order to avoid the three-day waiting period, the clerk’s failure to take action against the deputy and failure to explain the circumstances when mailing the application to the Department of Human Resources as required under either KRS 213.330 (repealed), for purposes of vital statistics records, or KRS 402.340 , in connection with the sickle cell detection program, would not be relevant to the clerk’s liability under the penalty provision of KRS 402.990(9). OAG 84-79 .

KRS 402.990 clearly differentiates between issuing a marriage license to persons prohibited by this chapter and issuing a license in violation of this chapter; since a license issued in violation of the three-day waiting period constitutes a violation of the chapter, but not an issuance to persons prohibited to marry, the penalty of KRS 402.990 (8) would not be applicable. OAG 84-79 .

Research References and Practice Aids

Cross-References.

Clerk’s fees for marriage license, KRS 64.012 .

Tax on marriage license, KRS 142.010 .

Treatises

Treatises

Petrilli, Kentucky Family Law, Marriage License, §§ 5.1, 5.2.

402.090. Soliciting persons to be married by particular person — Sharing remuneration — Solicitation by minister or justice of the peace.

  1. No person shall, for compensation or reward, solicit, persuade, entice, direct or induce any persons to go before any person authorized to solemnize marriage to be married. No such person shall receive for such services any part of the remuneration paid for solemnizing the marriage.
  2. No person authorized to solemnize marriage shall pay, give to, or divide or share with any other person any sum of money or other thing obtained by him for solemnizing marriage.
  3. No person authorized to solemnize marriage shall solicit, persuade, entice, direct or induce any persons to come before him to be married.

History. 2103: amend. Acts 1946, ch. 29, § 1.

NOTES TO DECISIONS

1.Constitutionality.

The provision forbidding solicitation by a person to induce persons to come before him to be married is a reasonable exercise of the state’s power to regulate the civil aspects of marriage, and is not an unconstitutional interference with the promulgation of religious views. Ladd v. Commonwealth, 313 Ky. 754 , 233 S.W.2d 517, 1950 Ky. LEXIS 975 ( Ky. 1950 ).

2.License Revoked.

Where evidence showed that minister had been guilty of soliciting marriages, it was proper to revoke his license to solemnize marriages. Ladd v. Commonwealth, 313 Ky. 754 , 233 S.W.2d 517, 1950 Ky. LEXIS 975 ( Ky. 1950 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Solemnization, § 6.4.

Licensing and Recording

402.100. Marriage license — Marriage certificate — Confidentiality of Social Security or other government-issued identification card numbers.

Each county clerk shall make available to the public the form prescribed by the Department for Libraries and Archives for the issuance of a marriage license. The department shall issue a marriage license form which provides for the entering of information identifying each party as a “bride,” “groom,” or “spouse.” This form shall provide for the entering of all of the information required in this section, and may also provide for the entering of additional information prescribed by the Department for Libraries and Archives. The form shall consist of:

  1. A marriage license which provides for the entering of:
    1. An authorization statement for any person or religious society authorized to perform marriage ceremonies to unite in marriage the parties named;
    2. Vital information for each party, including the full name, date of birth, place of birth, race, gender, condition (single, widowed, or divorced), number of previous marriages, occupation, current residence, relationship to the other party, and full names of parents;
    3. A statement signed by both parties swearing that, to the best of their knowledge, the information provided on the form is correct; and
    4. The date and place the application was made.
  2. A marriage certificate which provides for the entering of:
    1. A statement by the person performing the marriage ceremony or the clerk of the religious society authorized to solemnize the marriage ceremony that the ceremony was performed. The statement shall include the name and title of the person performing the ceremony or the name of the religious society solemnizing the marriage, the names of persons married, the date and place of the marriage, and the names of two (2) witnesses;
    2. A statement by the person performing the marriage ceremony of his legal qualification under this chapter to perform the ceremony, such statement to include the name of the county or city where his license to perform marriage ceremonies was issued or, in the case of religious societies authorized by KRS 402.050(1)(c) to solemnize marriages, the name of the city or county where the religious society is incorporated. The provisions of this paragraph shall not be construed to require the clerk of a religious society to be present at the marriage so long as the witnesses of the society are present;
    3. The printed name and dated signature of the person performing the ceremony; and
    4. A signed statement indicating that the marriage certificate was recorded in the county in which it was filed. The statement shall also include the title of the county clerk or deputy clerk of the county in which the certificate was filed and indicate the date the marriage certificate was recorded.
  3. A certificate to be delivered by the person performing the marriage ceremony or the clerk of the religious society performing the marriage ceremony to the parties married. This certificate shall provide for the entering of:
    1. A statement by the person performing the marriage ceremony or the clerk of the religious society performing the marriage ceremony that the ceremony was performed. The statement shall include the name and title of the person performing the ceremony, or the name of the religious society performing the ceremony, the names of persons married, the date and place of the marriage, and the names of two (2) witnesses; and
    2. A dated signature of the person performing the ceremony or the clerk of the religious society performing the ceremony.
  4. A Social Security card or other government-issued identification card shall be requested as a means of identification of each party but the number shall not be recorded or retained.

HISTORY: 2103: amend. Acts 1976, ch. 15, § 1; 1984, ch. 279, § 2, effective July 13, 1984; 1994, ch. 220, § 2, effective July 15, 1994; 2000, ch. 428, § 1, effective July 14, 2000; 2005, ch. 99, § 621, effective June 20, 2005; 2006, ch. 101, § 1, effective July 12, 2006; 2016 ch. 132, § 1, effective July 15, 2016; 2017 ch. 177, § 7, effective June 29, 2017.

Legislative Research Commission Note.

This section was amended by 1984 Acts Chapter 111, § 158, and 1984 Acts Chapter 279, § 2, which are in conflict and cannot be compiled together. Pursuant to KRS 7.123 , the amendment in Chapter 279, § 2, the nonrevisory Act, prevails.

Opinions of Attorney General.

Where a marriage was performed by Quakers, the marriage certificate should show that it was effectuated by saying of vows in the presence of the society which event was witnessed by the clerk of the society signing the certificate. OAG 63-24 .

The marriage register or marriage certificate can be typed, but the signatures of the applicants and of the clerk or deputy must be placed on the record, since a basic purpose of the marriage certificate data is to preserve the data as documentary evidence of the fact of marriage. OAG 78-381 .

If either applicant is divorced, they must so state, but there is no express requirement for an attested copy of a divorce decree even though one of the applicants states that he or she is divorced. OAG 78-431 .

Where minister, on the basis of presented license of marriage, performed marriage ceremony and completed the certificates mentioned in this section, but in returning the certificate to the clerk, the license-certificate was lost in the mail, in view of the public policy favoring marriage, clerk could issue a certified “duplicate” marriage license to the parties, which could then be delivered to the solemnizing minister for filling out the subject certificates and returning such duplicate license for filing; after first requiring the minister and the wedded parties to sign an affidavit, to be filed with clerk, stating that the minister did on a certain day take the original marriage license and solemnize the marriage between the subject parties. OAG 82-242 .

The General Assembly in KRS 402.020 expressed a sensitive and social concern about the marriages of persons of tender age; accordingly, the county clerk may require that the applicants for marriage produce for copying a driver’s license, or a birth certificate or copy thereof, or in lieu of any of the above an affidavit of the parents or guardian as to the specific age of the applicants. OAG 82-453 .

Where a marriage license was issued and the bride gave the name of her adoptive parents but she later learned that this couple were only legal guardians, since the data relating to the parents of the parties to the marriage is not a critical factor affecting the validity of the marriage, the validity of the marriage is not affected by this error; moreover where as here, the ceremony can be proved the court will uphold the marriage, and in absence of a court order the clerk has no authority to correct such record. OAG 82-557 .

While an applicant for a marriage license is not required to have a Social Security number, if an applicant does have one, it must be disclosed to the county clerk, or, there must be an express declaration that the applicant does not have such number. OAG 04-004 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.2.

Petrilli, Kentucky Family Law, Forms, Marriage, Form 1.3.

402.105. Marriage license valid for thirty days.

A marriage license shall be valid for thirty (30) days, including the date it is issued, and after that time it shall be invalid.

History. 2105a-3; repealed and reenact., Acts 1984, ch. 111, § 159, effective July 13, 1984.

Compiler’s Notes.

This section was formerly compiled as KRS 402.190 but was repealed and reenacted as this section.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.10.

402.110. Marriage license to be uniform and completely filled out — Exception under KRS 402.100.

Except as provided in KRS 402.100 (1), the form of marriage license prescribed in KRS 402.100 shall be uniform throughout this state, and every license blank shall contain the identical words and figures provided in the form prescribed by KRS 402.100. In issuing the license the clerk shall deliver it in its entirety to the licensee. The clerk shall see to it that every blank space required to be filled by the applicants is so filled before delivering it to the licensee.

History. 2103a: amend. Acts 1984, ch. 279, § 3, effective July 13, 1984; 2016 ch. 132, § 2, effective July 15, 2016.

Opinions of Attorney General.

Where both of the parties are 18, the clerk could issue a marriage license with only the bride or groom present to sign the marriage register. OAG 70-481 .

The marriage license application should not be mailed and returned by mail; the application should be made by the applicants in person in the clerk’s office. OAG 82-416 .

While an applicant for a marriage license is not required to have a Social Security number, if an applicant does have one, it must be disclosed to the county clerk, or, there must be an express declaration that the applicant does not have such number. OAG 04-004 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.2.

402.120. Medical examination required — Exception. [Repealed.]

Compiler’s Notes.

This section (2105a-1a: amend. Acts 1980, ch. 74, § 2, effective July 15, 1980) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.130. Medical examination — Laboratory tests. [Repealed.]

Compiler’s Notes.

This section (2105a-1b: amend. Acts 1972, ch. 157, § 2; 1974, ch. 74, Art. VI, § 107(11)) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.140. Procedure upon return of examination. [Repealed.]

Compiler’s Notes.

This section (2105a-1c: amend. 1974, ch. 74, Art. VI, § 107(10)) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.150. License for marriage of pregnant woman without medical certificate. [Repealed.]

Compiler’s Notes.

This section (2105a-1d: amend. Acts 1974, ch. 74, Art. VI, § 107(10); 1976 (Ex. Sess.), ch. 14, § 402, effective January 2, 1978) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.160. Submission of specimen to laboratory — Report to department. [Repealed.]

Compiler’s Notes.

This section (2105a-1e: amend. Acts 1972, ch. 157, § 2; 1974, ch. 74, Art. VI, § 107(10) and (11)) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.170. Protest after refusal of medical certificate and marriage license — Hearing. [Repealed.]

Compiler’s Notes.

This section (2105a-2a: amend. Acts 1974, ch. 74, Art. VI, § 107(2); 1976 (Ex. Sess.), ch. 14, § 403 effective January 2, 1978) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.180. Appeal to circuit court. [Repealed.]

Compiler’s Notes.

This section (2105a-2b: amend. Acts 1974, ch. 74, Art. VI, § 107(2); 1976 (Ex. Sess.), ch. 14, § 402, effective January 2, 1978) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.190. Marriage license valid for thirty days. — [Renumbered.]

Compiler’s Notes.

This section (2105a-3) was repealed by Acts 1984, ch. 111, § 159 and reenacted as KRS 402.105 , effective July 13, 1984.

402.200. County health officer to advise district court. [Repealed.]

Compiler’s Notes.

This section (2105a-4: amend. Acts 1976 (Ex. Sess.), ch. 14, § 405, effective January 2, 1978) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.205. Petition to court by seventeen year old for permission to marry — Evidentiary hearing — Reasons for denying petition — Effect of pregnancy — Emancipation of minor — Other court-imposed conditions — Fee.

  1. A minor who is seventeen (17) years of age may petition the family court in the county in which the minor resides, or the District Court in that county if a family court division has not been established in that county, for an order granting permission to marry. The petition shall contain the following:
    1. The petitioner’s name, gender, age, date of birth, address, and how long the petitioner has resided at that address, as well as prior addresses and dates of residence for the six (6) months preceding the petition;
    2. The intended spouse’s name, gender, age, date of birth, address, and how long the intended spouse has resided at that address, as well as prior addresses and dates of residence for the six (6) months preceding the petition;
    3. An affidavit attesting to the consent to marry signed by:
      1. The father or the mother of the petitioner, if the parents are married, the parents are not legally separated, no legal guardian has been appointed for petitioner, and no court order has been issued granting custody of petitioner to a party other than the father or mother;
      2. Both the father and the mother, if both are living and the parents are divorced or legally separated, and a court order of joint custody to the parents of the petitioner has been issued and is in effect;
      3. The surviving parent, if the parents were divorced or legally separated, and a court order of joint custody to the parents of the petitioner was issued prior to the death of either the father or mother, which order remains in effect;
      4. The custodial parent, as established by a court order which has not been superseded, where the parents are divorced or legally separated and joint custody of the petitioner has not been ordered; or
      5. Another person having lawful custodial charge of the petitioner;
    4. A statement of the reasons why the petitioner desires to marry, how the parties came to know each other, and how long they have known each other;
    5. Evidence of the petitioner’s maturity and capacity for self-sufficiency independent of the petitioner’s parents and the intended spouse, including but not limited to:
      1. Proof that the petitioner has maintained stable housing or employment for at least three (3) consecutive months prior to the petition; and
      2. Proof that the petitioner has completed high school, obtained a High School Equivalency Diploma, or completed a vocational training or certificate program;
    6. Copies of any criminal records of either party to be married; and
    7. Copies of any domestic violence order or interpersonal protective order involving either party to be married.
  2. Upon the filing of the petition for permission to marry, the court shall set a datefor an evidentiary hearing on the petition that is no sooner than thirty (30) days but not later than sixty (60) days from the date of the filing.
  3. The petitioner may be represented by counsel in court proceeding pertaining to the petition to marry.
  4. The court shall take reasonable measures to ensure that any representations made by a minor party are free of coercion, undue influence, or duress. Reasonable measures shall include but are not limited to in camera interviews.
  5. Following an evidentiary hearing, the court shall grant the minor’s petition for permission to marry unless:
    1. The age difference between the parties is more than four (4) years;
    2. The intended spouse was or is a person in a position of authority or a position of special trust as defined in KRS 532.045 in relation to the minor;
    3. The intended spouse has previously been enjoined by a domestic violence order or interpersonal protective order, regardless of whether or not the person to be protected by the order was the minor petitioner;
    4. The intended spouse has been convicted of or entered into a diversion program for a criminal offense against a victim who is a minor as defined in KRS 17.500 or for a violent or sexual criminal offense under KRS Chapter 506, 507, 507A, 508, 509, 510, 529, 530, or 531;
    5. The court finds by a preponderance of the evidence that the minor was a victim and that the intended spouse was the perpetrator of a sexual offense against the minor under KRS 510.040 , 510.050 , 510.060 , 510.110 , 510.120 , or 510.130 ;
    6. The court finds by a preponderance of the evidence that abuse, coercion, undue influence, or duress is present; or
    7. The court finds that it would otherwise not be in the minor party’s best interest to grant the petition to marry.
  6. A past or current pregnancy of the minor or the intended spouse shall not be sufficient evidence to establish that the best interests of the minor would be served by granting the petition for marriage.
  7. The granting of a petition for permission to marry filed under subsection (1) of this section shall remove the disabilities of minority. A minor emancipated by the petition shall be considered to have all the rights and responsibilities of an adult, except for specific constitutional or statutory age requirements, including but not limited to voting, the use of alcoholic beverages, and other health and safety regulations relevant to him or her because of his or her age.
  8. The minor shall be advised by the court of the rights and responsibilities of parties to a marriage and of emancipated minors. The minor shall be provided with a fact sheet on these rights and responsibilities to be developed by the Office of the Attorney General and the Cabinet for Health and Family Services. The fact sheet shall include referral information for legal aid agencies in the Commonwealth and national hotlines for domestic violence and sexual assault.
  9. The court may make any other orders that the court deems appropriate for the minor’s protection and may impose any other condition on the grant of the petition that the court determines is reasonable under the circumstances for the minor’s protection.
  10. The court may set a fee not to exceed twenty dollars ($20) to file a petition for permission to marry under this section.

HISTORY: 2018 ch. 36, § 7, effective July 14, 2018.

402.210. Requirements for issuance of license.

  1. Both parties to a marriage shall:
    1. Be present for a marriage license to be issued; and
    2. Present to the county clerk documentary proof of age in the form of:
      1. A copy of a birth record;
      2. A certification of birth issued by the state department of health, a local registrar of vital statistics, or other public office charged with similar duties by the laws of another state, territory, or country;
      3. A baptismal record showing the individual’s date of birth;
      4. A passport;
      5. An automobile driver’s license;
      6. Any government or school issued identification card showing the individual’s date of birth;
      7. An immigration record showing the individual’s date of birth;
      8. A naturalization record showing the individual’s date of birth; or
      9. A court record or any other document or record issued by a government entity showing the individual’s date of birth.
  2. If either of the parties is under seventeen (17) years of age, no license shall be issued.
  3. If either of the parties is seventeen (17) years of age, a marriage license shall not be issued unless:
    1. The party who is seventeen (17) years of age presents to the clerk a certified copy of a court order by a family court or District Court judge that grants the party permission to marry and removes the party’s disability of minority, as provided in KRS 402.205 ; and
    2. At least fifteen (15) days have elapsed since the court order was granted.

HISTORY: 2106: amend. Acts 1968, ch. 100, § 15; 1974, ch. 386, § 93; 1988, ch. 212, § 3, effective July 15, 1988; 1998, ch. 122, § 3, effective March 26, 1998; 1998, ch. 258, § 6, effective July 15, 1998; 2018 ch. 36, § 4, effective July 14, 2018.

NOTES TO DECISIONS

1.Construction.

KRS 2.015 did not impliedly amend this section by reducing from 21 to 18 the age at which a person can obtain a marriage license without the consent of parent or guardian. Commonwealth v. Hallahan, 391 S.W.2d 378, 1965 Ky. LEXIS 305 ( Ky. 1965 ).

2.Proof of Consent.

Forgery of a certificate of consent cannot be predicated upon an unattested and unproven writing. Pearson v. Commonwealth, 117 Ky. 731 , 78 S.W. 1128, 25 Ky. L. Rptr. 1866 , 1904 Ky. LEXIS 243 ( Ky. 1904 ).

The clerk has no authority to prove the execution of the consent by one who was not an attesting witness. Commonwealth v. Bradshaw, 210 Ky. 405 , 276 S.W. 124, 1925 Ky. LEXIS 689 ( Ky. 1925 ).

3.Absence of Consent.

Absence of parental consent does not invalidate a marriage otherwise duly performed. Cannon v. Alsbury, 8 Ky. 76 , 1817 Ky. LEXIS 128 ( Ky. 1817 ) (decided under prior law).

4.Action for Marriage Without Consent.

No civil action lies for enticing one to marry without his or her parents’ consent, although an action does lie for loss of service. Jones v. Tevis, 14 Ky. 25 , 1823 Ky. LEXIS 129 ( Ky. 1823 ) (decided under prior law).

Cited:

Board of Education v. Bentley, 383 S.W.2d 677, 1964 Ky. LEXIS 51 , 11 A.L.R.3d 990 ( Ky. 1964 ).

Opinions of Attorney General.

A parent can give his consent to the marriage of his child who is under 21 years of age even though the parent or guardian is not himself a resident of Kentucky. OAG 62-662 .

It is sufficient if the father who is a nonresident of this state mails to the clerk his consent in writing signed by him with his signature being attested to by two subscribing witnesses. OAG 62-662 .

Consent of the parents to the marriage of minor children as provided by KRS 402.210 is not required in order for the county clerk to issue a marriage license, where a Circuit Judge has issued an order under KRS 402.020(5) (now KRS 402.020(1)(f)3.) giving the parties, upon their application, permission to marry based on a finding that the boy is 17 years of age and the girl is 15 and pregnant. OAG 62-876 .

Absence of parental consent does not invalidate a marriage otherwise duly performed. OAG 63-982 .

This section is not changed by KRS 2.015 . OAG 64-503 .

The bond provision only applies to parties under the age of consent. OAG 66-730 .

Where a bond is proper under the statute, the signing of a bond can be properly accomplished through a power of attorney. OAG 66-730 .

For the nonresident father of a boy under age 21 (now 18) to give his consent so that a marriage license may be issued to his son in Kentucky, either the father must appear personally before the county court clerk in Kentucky who issues the license or one of the two subscribing witnesses to the father’s signature on the written consent must personally appear before the Kentucky court clerk issuing the license. OAG 68-94 .

While KRS 402.020(5) (now KRS 402.020(4)) permits application to the county judge (now county judge/executive) for permission to marry where either of the parties is under the required age and the female is pregnant, where the pregnancy has ripened into the birth of a living child, the license cannot be validly procured unless the consent procedure set forth in this section is followed, upon the girl’s reaching the age of 16. OAG 68-100 .

After June 13, 1968, the effective date of KRS 402.210 , persons who have reached the age of 18 years will be legally entitled to apply for a marriage license without their parents’ consent. OAG 68-219 .

KRS 402.210 means that persons 18 or over may apply for marriage license without observing the consent procedure and is not in conflict with KRS 402.020 which prohibits marriage where the male is under 18. OAG 68-226 .

KRS 2.015 is not controlling of the consent procedure outlined in KRS 402.210 . OAG 68-262 .

The age requirements of this section are applicable to both residents and nonresidents. OAG 68-499 .

This statute does not authorize issuance of a marriage license to a male under the age of 18, even though a consent could be obtained. OAG 69-388 .

The provision in this section for the giving of bond where the parties are personally unknown to the clerk applies only where one of the parties to the marriage is under the legal age or where there is some reason to believe that this may be the case. OAG 69-411 .

This section does not authorize the issuance of a license where the male is under 18 and no pregnancy is involved, even though consent could be obtained. OAG 71-125 .

If a pregnant female under the age of 18 cannot obtain the consent of a parent or guardian she may apply under KRS 402.020(4) (now (1)(f)3.) or KRS 402.150 (repealed) to the county judge for permission to marry. OAG 74-524 .

Regardless of the age of a person under 18, such person may legally apply for a marriage license provided he procures the consent of one of the parents or the guardian. OAG 74-607 .

If an unmarried female under the age of 18 who has just had a child cannot procure consent of her parents under this section, she is not qualified to apply to the county judge under KRS 402.020 for an order granting permission to get married since the term “pregnancy” mentioned in KRS 402.020 (4) (now (1)(f)3.) means physically and actually pregnant at the time the application for permission to marry is made. OAG 74-607 .

As concerns applicants for a marriage license under 18, there is no longer any minimum age since the consent of either parent or guardian takes care of the age factor. OAG 74-674 .

A divorced girl under 18 does not require the consent of her father, mother, or guardian in making her application for marriage since this section makes it clear that it is only where the applicant is under 18 and not before married that parental or a guardian’s consent is required. OAG 80-138 .

The marriage license application should not be mailed and returned by mail; the application should be made by the applicants in person in the clerk’s office. OAG 74-295 modified OAG 82-416 .

The General Assembly in KRS 402.020 expressed a sensitive and social concern about the marriages of persons of tender age; accordingly, the county clerk may require that the applicants for marriage produce for copying a driver’s license, or a birth certificate or copy thereof, or in lieu of any of the above an affidavit of the parents or guardian as to the specific age of the applicants. OAG 82-453 .

While there is no express statutory provision covering the proof of age of applicants for a marriage license, any reasonable requirement of the clerk as to proof of age would be upheld by the courts. In order for the legislative intent expressed in KRS 402.020 , 402.080 and this section to be practically accomplished, the strong implication is that any reasonable kind of proof of age would be upheld by the courts. OAG 82-453 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Treatises

Treatises

Petrilli, Kentucky Family Law, Capacity of Parties to Marry, § 4.1.

Petrilli, Kentucky Family Law, Marriage License, §§ 5.3, 5.5, 5.6; 1991 Supp., § 5.5.

402.220. Return of license and certificate to clerk after ceremony.

The person solemnizing the marriage or the clerk of the religious society before which it was solemnized shall within one (1) month return the license to the county clerk of the county in which it was issued, with a certificate of the marriage over his signature, giving the date and place of celebration and the names of at least two (2) of the persons present.

History. 2107: amend. Acts 1984, ch. 279, § 4, effective July 13, 1984; 1994, ch. 220, § 3, effective July 15, 1994.

NOTES TO DECISIONS

1.No license.

Based on the plain language of the marriage statutes pursuant to interpretation rules under KRS 446.080 , parties who entered into a purely religious marriage ceremony, solemnized pursuant to their religious faith, but who purposely chose not to obtain a civil marriage license pursuant to KRS 402.080 and 402.220 , did not create a legally valid civil marriage. Pinkhasov v. Petocz, 331 S.W.3d 285, 2011 Ky. App. LEXIS 18 (Ky. Ct. App. 2011).

Cited:

Barger v. Commonwealth, 256 S.W.2d 364, 1953 Ky. LEXIS 724 ( Ky. 1953 ).

Opinions of Attorney General.

Where the license and certificate were never returned as required under KRS 402.220 , if the party can prove even by parol evidence the celebration of the marriage or ceremony and the essential facts of marriage relating to general reputation, cohabitation, and acknowledgment, the marriage would be deemed valid. OAG 64-776 .

Where members of a religious organization with no clergy are married by the exchanging of vows in the presence of the religious society, the clerk of the society should alter the form of the marriage certificate to reflect this fact. OAG 72-805 .

A justice of the peace who has been properly authorized to solemnize marriages either by the governor or the county court may solemnize marriages in any county in the Commonwealth regardless of whether the license is acquired in the county where the marriage is solemnized or another county, but the return of the license and certificate must be made to the county clerk who issued the license. OAG 74-114 .

The term “persons present” is so broad as to include any two human beings or individuals, male or female, present at such wedding, regardless of age and where the witnesses are infants (under 18), the witnesses would qualify where it appears to the person solemnizing the marriage that such infant witnesses are sufficiently intelligent to observe, recollect and narrate (if it were ever necessary) the critical facts as to the marriage and identity of the parties to the marriage, and have a moral sense of obligation to speak the truth (if and when called upon). OAG 79-323 .

There is nothing in the language of KRS 402.050(2) or this section to suggest that a witness must be of legal age, which for general purposes is 18. OAG 79-323 .

There is nothing in this chapter to suggest that the validity of the marriage hinges upon whether or not the return of the license and certificate to the county clerk, under this section, is effected. OAG 82-242 .

Where minister, on the basis of presented license of marriage, performed marriage ceremony and completed the certificates mentioned in KRS 402.100 , but in returning the certificate to the clerk, the license-certificate was lost in the mail, in view of the public policy favoring marriage, clerk could issue a certified “duplicate” marriage license to the parties, which could then be delivered to the solemnizing minister for filling out the subject certificates and returning such duplicate license for filing; after first requiring the minister and the wedded parties to sign an affidavit, to be filed with clerk, stating that the minister did on a certain day take the original marriage license and solemnize the marriage between the subject parties. OAG 82-242 .

Even though the person solemnizing the marriage does not return the license and certificate to the county clerk within the three months period, the clerk has the authority and duty to file the certificate and record the data required by KRS 402.230 , where the license and certificate reach the clerk after the three months’ period has elapsed; the clerk should make a note of the deadline date and the date of acceptance. OAG 84-152 .

Even though the person who performs the marriage ceremony does not return to the county clerk the license and certificate, as required by this section, within the three months’ period, the marriage is not null and void because of such failure to return the license and certificate. OAG 84-152 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Solemnization, § 6.5.

Petrilli, Kentucky Family Law, Forms, Marriage, Form 1.3.

402.230. Filing of marriage certificate — Record of marriages.

The certificate shall be filed in the county clerk’s office. The county clerk shall keep in a record book a fair register of the parties’ names, the person by whom, or the religious society by which, the marriage was solemnized, the date when the marriage was solemnized, and shall keep an index to the book in which the register is made.

History. 2108, 2108-1; 1994, ch. 220, § 4, effective July 15, 1994.

NOTES TO DECISIONS

1.Proof by Record.

Marriage may be proved by the record. Caldwell v. Williams, 118 S.W. 932 ( Ky. 1909 ). See McDaniel v. McDaniel, 212 Ky. 833 , 280 S.W. 145, 1926 Ky. LEXIS 246 ( Ky. 1926 ).

Opinions of Attorney General.

The obligation to complete marriage records and to file original licenses was imposed upon the clerk in office when the license was issued. The present clerk has no obligation under the statute to complete such records begun in former terms by prior clerks. However, where marriage records involving prior clerks are incomplete and could be completed by transcribing original license or other loose-leaf data, the present clerk is authorized to complete the marriage records by transcribing such data and making proper attestation thereto. OAG 67-290 .

A marriage may not be recorded in this state where a couple procured a Kentucky marriage license and went to Indiana where they were married by a minister who had been bonded to perform marriages in the Commonwealth of Kentucky, because a minister who is a nonresident of this state at the time of the marriage ceremony would not be allowed to perform marriage ceremonies even in Kentucky. OAG 72-622 .

The marriage register or marriage certificate can be typed, but the signatures of the applicants and of the clerk or deputy must be placed on the record, since a basic purpose of the marriage certificate data is to preserve the data as documentary evidence of the fact of marriage. OAG 78-381 .

Where minister, on the basis of presented license of marriage, performed marriage ceremony and completed the certificate mentioned in KRS 402.100 , but in returning the certificate to the clerk, the license-certificate was lost in the mail, in view of the public policy favoring marriage, clerk could issue a certified “duplicate” marriage license to the parties, which would then be delivered to the solemnizing minister for filling out the subject certificates and returning such duplicate license for filing; after first requiring the minister and the wedded parties to sign an affidavit, to be filed with clerk, stating that the minister did on a certain day take the original marriage license and solemnize the marriage between the subject parties. OAG 82-242 .

Even though the person who performs the marriage ceremony does not return to the county clerk the license and certificate, as required by KRS 402.220 , within the three months’ period, the marriage is not null and void because of such failure to return the license and certificate. OAG 84-152 .

Even though the person solemnizing the marriage does not return the license and certificate to the county clerk within the three months period, the clerk has the authority and duty to file the certificate and record the data required by this section, where the license and certificate reach the clerk after the three months’ period had elapsed; the clerk should make a note of the deadline date and the date of acceptance. OAG 84-152 .

The clerk’s record of a marriage under this section is not the exclusive record of the marriage; marriage may be proved by the marriage witnesses or by social reputation. OAG 84-152 .

Research References and Practice Aids

Cross-References.

Cross indexes prepared by W.P.A., approval of, KRS 382.205 .

Treatises

Treatises

Petrilli, Kentucky Family Law, Court Procedure, § 23.30.

Petrilli, Kentucky Family Law, Records and Proof of Ceremonial Marriage, § 9.1.

402.240. County judge/executive to issue license in absence of clerk.

In the absence of the county clerk, or during a vacancy in the office, the county judge/executive may issue the license and, in so doing, he shall perform the duties and incur all the responsibilities of the clerk. The county judge/executive shall return a memorandum thereof to the clerk, and the memorandum shall be recorded as if the license had been issued by the clerk.

History. 2113.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.9.

Miscellaneous Provisions

402.250. Circuit Court may affirm or avoid marriage.

Where doubt is felt as to the validity of a marriage, either party may, by petition in Circuit Court, demand its avoidance or affirmance; but where one (1) of the parties was of the age of majority, as defined by KRS 2.015 at the time of marriage, the party who is of proper age may not bring such a proceeding for that cause against the party under age.

HISTORY: 2115: amend. Acts 1976 (Ex. Sess.), ch. 14, § 406, effective January 2, 1978; 2018 ch. 36, § 5, effective July 14, 2018.

NOTES TO DECISIONS

1.Construction.

KRS 402.020 , 402.030 and this section together make clear the legislative intent that marriages by persons under the required age are not void but only voidable. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

2.Under Age.

The party who is of age cannot sue to avoid the marriage on the ground that the other party was under age. Crummies Creek Coal Corp. v. Napier, 246 Ky. 569 , 55 S.W.2d 339, 1932 Ky. LEXIS 780 ( Ky. 1932 ).

A marriage contracted at a time when the male is under 16 (now 18) or the female under 14 (now 18) years of age is not voidable in an action by a next friend where it was entered into with parental consent or has been ratified by cohabitation after statutory age has been reached. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a Kentucky girl under 14 years of age is not against public policy; thus, where such a marriage was performed in a state in which it was valid, it was valid in Kentucky and the next friend of the girl was without authority to maintain an action for annulment. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

3.Marriage Attacked After Death.

Fact that party to marriage void ab initio had died, and marriage was not annulled or attacked prior to such party’s death, did not bar subsequent attack by court. Ex parte Bowen, 247 S.W.2d 379, 1952 Ky. LEXIS 694 ( Ky. 1952 ).

4.Validity.

A marriage valid where it takes place is valid everywhere except where it is against the public policy of the domiciliary state. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Annulment of Marriage, §§ 10.9, 10.12, 10.17.

Petrilli, Kentucky Family Law, Marriage in General, §§ 1.4a, 1.4f.

Petrilli, Kentucky Family Law, Records and Proof of Ceremonial Marriage, § 9.2.

402.260. Receivership for person under eighteen who marries without judicial consent. [Repealed]

HISTORY: 2116: amend. Acts 1968, ch. 100, § 16; 1974, ch. 386, § 94; 1976 (Ex. Sess.), ch. 14, § 407, effective January 2, 1978; 1988, ch. 212, § 4, effective July 15, 1988; 1998, ch. 258, § 7, effective July 15, 1998; repealed by 2018 ch. 36, § 6, effective July 14, 2018.

402.270. Marriage manual — Preparation by Human Resources Coordinating Commission for distribution to marriage applicants.

  1. The Human Resources Coordinating Commission of Kentucky shall prepare a marriage manual for distribution to all applicants for a marriage license. The manual shall include, but not be limited to, material on family planning, proper health and sanitation practices, nutrition, consumer economics, and the legal responsibilities of spouses to each other and as parents to their children.
  2. When the manual is approved it shall be printed by the Human Resources Coordinating Commission. Copies of the manual shall be sent to the county clerk of each county. Each county clerk shall give a copy to each applicant for a marriage license.

History. Enact. Acts 1972, ch. 26, § 1; 1976, ch. 62, § 123.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.1.

Sickle Cell Disease Detection

402.310. Sickle Cell Disease Detection Act.

KRS 402.310 to 402.340 may be cited as the Kentucky Sickle Cell Disease Detection Act of 1972.

History. Enact. Acts 1972, ch. 122, § 1.

402.320. Marriage license applicants to be tested for trait or genetically transmitted disease affecting hemoglobin — Counseling carriers.

Every physician examining applicants for a marriage license may obtain an appropriate blood specimen from each applicant and forward same to the Division of Laboratory Services, Cabinet for Health and Family Services, or to a laboratory approved by the cabinet, to ascertain the existence or nonexistence of sickle cell trait or sickle cell disease, or any other genetically transmitted disease which affects hemoglobin. In the event the laboratory tests indicate that both applicants are carriers of a trait or disease, the physician may provide genetic counseling or refer the applicants to the cabinet or to an agency approved by the cabinet for such counseling.

History. Enact. Acts 1972, ch. 122, § 2; 1974, ch. 273, § 1; 1998, ch. 426, § 577, effective July 15, 1998; 2005, ch. 99, § 622, effective June 20, 2005.

Opinions of Attorney General.

The medical examination mentioned in KRS 402.130 (repealed) relates only to syphilis tests and the sickle cell test under this section is left to the discretion of the examining physician. OAG 75-594 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.4.

402.330. Testing of newborn child for sickle cell trait or disease. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 122, § 3) was repealed by Acts 1974, ch. 273, § 3.

402.340. Secretary for Health and Family Services to administer and enforce Sickle Cell Disease Detection Act.

The secretary for health and family services shall adopt rules and regulations for the proper administration and enforcement of KRS 402.310 to 402.340 .

History. Enact. Acts 1972, ch. 122, § 4; 1974, ch. 74, Art. VI, § 107(10); 1998, ch. 426, § 578, effective July 15, 1998; 2005, ch. 99, § 623, effective June 20, 2005.

Opinions of Attorney General.

Where a county clerk’s deputy deliberately backdates a marriage application in order to avoid the three-day waiting period, the clerk’s failure to take action against the deputy and failure to explain the circumstances when mailing the application to the Department of Human Resources (now Cabinet for Health and Family Services) as required under either KRS 213.330 (repealed), for purposes of vital statistics records, or this section, in connection with the sickle cell detection program, would not be relevant to the clerk’s liability under the penalty provision of KRS 402.990(9) (now (7)). OAG 84-79 .

Penalties

402.990. Penalties.

  1. Any party to a marriage prohibited by KRS 402.010 shall be guilty of a Class B misdemeanor. If the parties continue after conviction to cohabit as man and wife, either or both of them shall be guilty of a Class A misdemeanor.
  2. Any person who aids or abets the marriage of any person who has been adjudged mentally disabled, or attempts to marry, or aids or abets any attempted marriage with any such person shall be guilty of a Class B misdemeanor.
  3. Any authorized person who knowingly solemnizes a marriage prohibited by this chapter shall be guilty of a Class A misdemeanor.
  4. Any unauthorized person who solemnizes a marriage under pretense of having authority, and any person who falsely personates the father, mother, or guardian of an applicant in obtaining a license shall be guilty of a Class D felony.
  5. Any person who falsely and fraudulently represents or personates another, and in such assumed character marries that person, shall be guilty of a Class D felony. Indictment under this subsection shall be found only upon complaint of the injured party and within two (2) years after the commission of the offense.
  6. Any clerk who knowingly issues a marriage license to any persons prohibited by this chapter from marrying shall be guilty of a Class A misdemeanor and removed from office by the judgment of the court in which he is convicted.
  7. Any clerk who knowingly issues a marriage license in violation of his duty under this chapter shall be guilty of a Class A misdemeanor.
  8. If any deputy clerk or any person other than a county clerk knowingly issues a marriage license in violation of this chapter, but not for a prohibited marriage, he shall be guilty of a Class A misdemeanor, and if he knowingly issues a license for a marriage prohibited by this chapter, he shall be guilty of a Class A misdemeanor.
  9. Any person who violates any of the provisions of KRS 402.090 shall be guilty of a violation.
  10. Any county clerk who violates any of the provisions of KRS 402.110 or 402.230 shall be guilty of a violation.
  11. Any person failing to make the return required of him by KRS 402.220 shall be guilty of a violation.

History. 216aa-50, 1209, 1210, 2103, 2103a, 2104, 2105a-2c, 2105a-5, 2107, 2109 to 2112, 2114: amend. Acts 1970, ch. 92, § 94; 1972, ch. 122, § 5; 1974, ch. 273, § 2; 1978, ch. 92, § 13, effective June 17, 1978; 1978, ch. 384, § 519, effective June 17, 1978; 1982, ch. 141, § 114, effective July 1, 1982; 1982, ch. 146, § 2, effective July 15, 1982; 1992, ch. 463, § 45, effective July 14, 1992; 1996, ch. 205, § 2, effective July 15, 1996.

Compiler’s Notes.

This section was amended by § 125 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Indictment.

An indictment in the words of the statute is sufficient. Barclay v. Commonwealth, 116 Ky. 275 , 76 S.W. 4, 25 Ky. L. Rptr. 463 , 1903 Ky. LEXIS 185 ( Ky. 1903 ).

2.Wife as Witness.

On an indictment against the husband as an accessory before the fact to the violation of this section, the wife is a competent witness. Barclay v. Commonwealth, 116 Ky. 275 , 76 S.W. 4, 25 Ky. L. Rptr. 463 , 1903 Ky. LEXIS 185 ( Ky. 1903 ).

Opinions of Attorney General.

This section clearly differentiates between issuing a marriage license to persons prohibited by this chapter and issuing a license in violation of this chapter; since a license issued in violation of the three-day waiting period constitutes a violation of the chapter, but not an issuance to persons prohibited to marry, the penalty of subsection (8) of this section would not be applicable. OAG 84-79 .

Where the deputy clerk intentionally backdates a marriage application in order to avoid the three-day waiting period of KRS 402.080 , and where the county clerk has no actual knowledge of such wrongful issue until after the issuance has been effected, and the clerk has no reasonable opportunity to retrieve the wrongfully issued license prior to the solemnizing of marriage, the county clerk would not be subject to the penalty described in subsection (9) of this section. A repetition of this offense by the deputy would warrant the clerk’s dismissal of the deputy, where the offense is made known to the clerk, and if the offense is allowed to be repeated, the clerk could be charged under subsection (9) (now (7)) of this section. OAG 84-79 .

Where a county clerk’s deputy deliberately backdates a marriage application in order to avoid the three-day waiting period, the clerk’s failure to take action against the deputy and failure to explain the circumstances when mailing the application to the Department of Human Resources (now Cabinet for Health and Family Services) as required under either KRS 213.330 (repealed), for purposes of vital statistics records, or KRS 402.340 , in connection with the sickle cell detection program, would not be relevant to the clerk’s liability under the penalty provision of subsection (9) (now (7)) of this section. OAG 84-79 .

Research References and Practice Aids

Cross-References.

Incest, Penal Code, KRS 530.020 .

Treatises

Petrilli, Kentucky Family Law, Marriage License, §§ 5.3, 5.12.

Petrilli, Kentucky Family Law, Solemnization, §§ 6.2, 6.3, 6.4, 6.5.

Petrilli, Kentucky Family Law, Forms, Marriage, Form 1.3.

CHAPTER 403 Dissolution of Marriage — Child Custody

General Provisions

403.010. Court may grant divorce — Remarriage.

A jury shall not be impaneled in any action for divorce, alimony or maintenance, but courts having general jurisdiction may grant a divorce for the cause set out in this chapter. A decree of dissolution of marriage authorizes either party to marry again.

History. 2117, 2118: amend. Acts 1972, ch. 182, § 27; 1976 (Ex. Sess.), ch. 14, § 408, effective January 2, 1978.

Compiler’s Notes.

Section 26 of Acts 1972, ch. 182, reads:

“(1) This act applies to all proceedings commenced on or after its effective date.

“(2) This act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. Pending actions for divorce or separation are deemed to have been commenced on the basis of irretrievable breakdown. Evidence adduced after the effective date of this act shall be in compliance with this act.

“(3) This act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this act.

“(4) In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial, and any subsequent trial or appeal.”

Section 28 of Acts 1972, ch. 182, reads:

“This act does not repeal any laws relating to:

“(1) The contents of and forms for marriage licenses and methods of registering marriages and providing for license or registration fees;

“(2) The validity of premarital agreements between spouses concerning their marital property rights;

“(3) Marital property rights during a marriage or when the marriage terminates by the death of one of the spouses;

“(4) The scope and extent of the duty of a parent to support a child of the marriage;

“(5) Custody of and support duty owed to an illegitimate child;

“(6) Any applicable laws relating to wage assignments, garnishments, and exemptions other than those providing for family support and maintenance.”

NOTES TO DECISIONS

1.Alimony.

An action for alimony is an equitable action, but controverted issues of fact may be tried by a jury; however, the jury verdict is advisory only. Wood v. Wood, 264 S.W.2d 260, 1954 Ky. LEXIS 659 ( Ky. 1954 ). (Decision prior to 1972 amendment).

In an action for alimony where the uncorroborated testimony of the husband was the only support for a verdict and judgment in his favor and such testimony was completely at variance, not only with the known facts and circumstances, but with the ordinary concept of human conduct, the judgment was reversed. Wood v. Wood, 264 S.W.2d 260, 1954 Ky. LEXIS 659 ( Ky. 1954 ). (Decision prior to 1972 amendment).

In a suit for alimony where the evidence was not sufficient to sustain the jury verdict, the Court of Appeals could reverse and direct a judgment, since it was an equitable action in which the jury verdict was only advisory. Wood v. Wood, 264 S.W.2d 260, 1954 Ky. LEXIS 659 ( Ky. 1954 ). (Decision prior to 1972 amendment).

2.Divorce.

The power of courts to grant divorce is wholly statutory. Williams v. Williams, 136 Ky. 71 , 123 S.W. 337, 1909 Ky. LEXIS 460 ( Ky. 1909 ).

The entry of a divorce judgment on the order book of the court is indispensable to establish the fact that a divorce has been granted. Robinson v. Robinson, 166 Ky. 485 , 179 S.W. 436, 1915 Ky. LEXIS 719 ( Ky. 1915 ).

A divorce judgment is not in the category of a recorded instrument and knowledge of it is not chargeable against anyone not a party to the litigation. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

3.— Obtained by Fraud.

A judgment of divorce obtained by fraud on the jurisdiction of the court will not be vacated if the marital status of the parties has been changed by remarriage. Moran v. Moran, 281 Ky. 739 , 137 S.W.2d 418, 1940 Ky. LEXIS 108 ( Ky. 1940 ).

4.— Foreign Judgment.

Where a properly authenticated Nevada divorce decree was placed before the court, the wife had been before the Nevada court on constructive service, and validity of the Nevada divorce was not put in issue, the court properly determined that the Nevada divorce terminated the marriage and dismissed the wife’s suit for divorce. Davis v. Davis, 303 S.W.2d 256, 1957 Ky. LEXIS 234 ( Ky. 1957 ).

5.— Committee of Incompetent.

The committee of an incompetent person has no authority to maintain an action for divorce on behalf of such person. Johnson v. Johnson, 294 Ky. 77 , 170 S.W.2d 889, 1943 Ky. LEXIS 375 ( Ky. 1943 ), overruled in part, Brooks v. Hagerty, 614 S.W.3d 903, 2021 Ky. LEXIS 7 ( Ky. 2021 ).

6.— Validation of Void Judgment.

Where default judgment of divorce obtained by husband on warning order was void because petition did not substantially comply with CR 4.05 and 4.06 requirements for a warning order, the judgment could not be validated in subsequent proceedings in connection with wife’s motion to redocket the case. Hill v. Hill, 299 Ky. 351 , 185 S.W.2d 245, 1945 Ky. LEXIS 403 ( Ky. 1945 ).

7.— Wife’s Acquiescence.

Where wife had no defense to husband’s divorce action, her voluntary appearance, without offer of defense, and her request that the husband be granted a divorce were not collusive and the dismissal of the husband’s petition was erroneous. Conyers v. Conyers, 311 Ky. 468 , 224 S.W.2d 688, 1949 Ky. LEXIS 1186 ( Ky. 1949 ).

Cited:

Smith v. Smith, 497 S.W.2d 418, 1973 Ky. LEXIS 323 ( Ky. 1973 ); Chapman v. Chapman, 498 S.W.2d 134, 1973 Ky. LEXIS 288 ( Ky. 1973 ); Whalen v. Whalen, 581 S.W.2d 578, 1979 Ky. App. LEXIS 407 (Ky. Ct. App. 1979).

Research References and Practice Aids

Cross-References.

General assembly not to grant divorce by special act, Const., § 59, Tenth.

Judgment granting divorce may not be reversed by Court of Appeals, KRS 22A.020 .

Uniform interstate family support act, KRS Ch. 407.

Kentucky Law Journal.

Abramson, Kentucky’s Future Need for Attorneys, 63 Ky. L.J. 323 (1974-1975).

Comments, Paternal Custody of the Young Child Under the Kentucky No-Fault Divorce Act, 66 Ky. L.J. 165 (1977-78).

Kentucky Law Survey: Savage, Insurance, 66 Ky. L.J. 631 (1977-1978).

Comments, That Was No Wife, That Was My Lady: Is Marvin v. Marvin Appropriate for Kentucky? 66 Ky. L.J. 707 (1977-1978).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

Comments, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978-79).

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Graham, Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property Upon Divorce, 73 Ky. L.J. 41 (1984-85).

Northern Kentucky Law Review.

Notes, Workers' Compensation ? Marital Property ? Johnson v. Johnson, 10 N. Ky. L. Rev. 531 (1983).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.1, 23.33.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), §§ 20.1, 20.2.

Petrilli, Kentucky Family Law, Maintenance, § 25.30.

Petrilli, Kentucky Family Law, Support of the Family, § 16.8.

403.020. Grounds for divorce — Procedure in case of divorce on ground of insanity. [Repealed.]

Compiler’s Notes.

This section (2117: amend. Acts 1946, ch. 74; 1950, ch. 162; 1956, ch. 72; 1962, ch. 210, § 49) was repealed by Acts 1972, ch. 182, § 29.

403.025. Proof in action for dissolution of marriage; credible witnesses.

  1. The statements of a petition for dissolution of marriage concerning the residence of the parties and irretrievable breakdown of the marriage shall not be taken as true because of the respondent’s failure to deny the statements, and the facts as to residence of the parties must be proved by one (1) or more credible witnesses.
  2. The petitioner or respondent in an action for dissolution of marriage may be considered a credible witness, within the meaning of subsection (1) of this section, to be utilized in order to prove residency of the parties. The provisions of this subsection shall be retroactive in effect.

History. C.C. 422: amend. Acts 1892, ch. 57; trans. Acts 1952, ch. 84, § 1; 1974, ch. 340, § 1; 1988, ch. 61, § 1, effective July 15, 1988.

NOTES TO DECISIONS

1.Construction.

Allegations of a petition for a divorce are controverted by this section and the lower court is presumed to have had sufficient evidence before it to sustain its jurisdiction. Gribben v. Gribben, 227 Ky. 96 , 11 S.W.2d 998, 1928 Ky. LEXIS 462 ( Ky. 1928 ).

In a suit for divorce, this section effectually and immediately traverses the allegations of the petition, but such statutory traverse does not carry with it the expectancy that the defendant will have any evidence to offer; it gives the defendant no right to do so and merely bars a judgment for the plaintiff until he has proved his case. Dyer v. Dyer, 300 Ky. 559 , 189 S.W.2d 842, 1945 Ky. LEXIS 596 ( Ky. 1945 ).

2.Counterclaim.

A counterclaim seeking a divorce is a petition within the meaning of this section. Carter v. Carter, 292 Ky. 344 , 166 S.W.2d 453, 1942 Ky. LEXIS 85 ( Ky. 1942 ).

3.Residence.

There being no proof other than that of plaintiff wife as to her residence, and she being an incompetent witness in this respect under KRS 421.210 (repealed, now see Kentucky Rules of Evidence, Rules 501 to 511), Court of Appeals held, citing this section, that chancellor should not have granted divorce. Hester v. Hester, 166 Ky. 544 , 179 S.W. 451, 1915 Ky. LEXIS 725 ( Ky. 1915 ).

Although defendant did not in terms object to jurisdiction of court on grounds of the residence of plaintiff, the first paragraph of her answer contained a denial of facts with reference to residence of the parties, and this was sufficient to challenge the right of court to proceed unless the plaintiff proved the jurisdictional facts. Kinser v. Kinser, 186 Ky. 173 , 216 S.W. 121, 1919 Ky. LEXIS 167 ( Ky. 1919 ).

Where two or three witnesses of plaintiff testified he had always claimed Lawrence County as his home, the mere fact that he rented an apartment in Newport and occupied it when not out on the road was not sufficient to establish his residence in Campbell County. Kinser v. Kinser, 186 Ky. 173 , 216 S.W. 121, 1919 Ky. LEXIS 167 ( Ky. 1919 ).

Where the evidence indicated that the wife had returned to her parents’ home in Kentucky at her husband’s request more than one year before filing her petition for divorce, the fact that she went to Missouri to attempt a reconciliation, but did not live with the husband there, did not prevent her meeting the residence requirement for granting a divorce. Halcomb v. Halcomb, 337 S.W.2d 32, 1960 Ky. LEXIS 360 ( Ky. 1960 ).

4.— Fraud.
5.— — Judgment Void.

Where a divorce was granted on fraudulent evidence that the husband was a resident of the county in which it was granted and the husband was not in fact a resident of such county, the judgment was void and was properly set aside. Kirk v. Kirk, 240 S.W.2d 598, 1951 Ky. LEXIS 987 ( Ky. 1951 ).

6.Proof.

In view of this section, it was incumbent upon appellant to take proof in support of allegations of his counterclaim and appellee had the right to take proof in rebuttal. Carter v. Carter, 292 Ky. 344 , 166 S.W.2d 453, 1942 Ky. LEXIS 85 ( Ky. 1942 ).

7.Witnesses.

An outside witness other than a party is required to testify as to how long the petitioner has lived in this Commonwealth to establish the court’s jurisdiction. Cable v. Cable, 730 S.W.2d 947, 1987 Ky. App. LEXIS 497 (Ky. Ct. App. 1987).

The requirement that the residence of the parties must be proved by one or more creditable witnesses is not discretionary, but is a specific requirement necessary to establish the court’s jurisdiction. Cable v. Cable, 730 S.W.2d 947, 1987 Ky. App. LEXIS 497 (Ky. Ct. App. 1987).

Cited:

Shepherd v. Mann, 490 S.W.2d 760, 1973 Ky. LEXIS 646 ( Ky. 1973 ).

Research References and Practice Aids

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Treatises

Petrilli, Kentucky Family Law, Annulment of Marriage, § 10.14.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.3, 23.17, 23.24, 23.27, 23.33.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.25.

403.030. Proof required for divorce. [Repealed.]

Compiler’s Notes.

This section (2119: amend. Acts 1946, ch. 179) was repealed by Acts 1972, ch. 182, § 29.

403.033. Advisory committee appointment — Functions — Recommendations.

The judge of any Circuit Court may appoint an advisory committee to counsel with litigants in divorce actions. The committee shall serve without salary or expenses. The court may request the parties involved in these proceedings to appear before the said committee at a designated time and place. The committee may make recommendation to the court as to their conclusions from said counseling. These recommendations are not binding on the court.

History. Enact. Acts 1966, ch. 238.

Research References and Practice Aids

Kentucky Law Journal.

Hudson, Family Law — Custody of Children, 59 Ky. L.J. 529 (1970).

Treatises

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.10.

403.035. Required allegations and proof in addition to cause of divorce. [Repealed.]

Compiler’s Notes.

This section (C. C. 423: amend. Acts 1940, ch. 96; 1952, ch. 176; trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1972, ch. 182, § 29.

403.036. Mediation not to be ordered unless conditions are met.

In any court proceeding conducted pursuant to KRS 403.010 to 403.350 , if there is a finding of domestic violence and abuse, as defined in KRS 403.720 , the court shall not order mediation unless requested by the victim of the alleged domestic violence and abuse, and the court finds that:

  1. The victim’s request is voluntary and not the result of coercion; and
  2. Mediation is a realistic and viable alternative to or adjunct to the issuance of an order sought by the victim of the alleged domestic violence and abuse.

History. Enact. Acts 1996, ch. 99, § 15, effective July 15, 1996.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Conciliation Conference, Form 253.13.

403.040. Annulment of divorce decree — Effect.

The court rendering a judgment for divorce may, at any time, annul it on the joint application of the parties, and restore the parties to the condition of husband and wife. The annulment voids the divorce decree and any separation agreement.

History. 2120: amend. Acts 1972, ch. 345, § 1; 1978, ch. 236, § 1, effective June 17, 1978.

NOTES TO DECISIONS

1.In General.

Annulment order relates back to divorce and renders it void and of no effect. Litteral v. Celebrezze, 215 F. Supp. 865, 1963 U.S. Dist. LEXIS 6385 (E.D. Ky. 1963 ).

It is only by virtue of this section and KRS 403.041 that a judgment of absolute divorce may be annulled after the term at which it was rendered. Berning v. Berning, 255 Ky. 699 , 75 S.W.2d 355, 1934 Ky. LEXIS 318 ( Ky. 1934 ).

2.Withdrawal of Consent.

Wife could withdraw consent to petition for annulment of divorce before court acted on petition although she had lived with husband several years after filing petition but before judgment was rendered, where rights of no third parties were involved. Berning v. Berning, 255 Ky. 699 , 75 S.W.2d 355, 1934 Ky. LEXIS 318 ( Ky. 1934 ).

3.Failure to File Petition.

Where procedure for annulment was properly followed and petition for annulment properly ordered, failure of clerk to file the petition and enter the order will not prevent entry of a judgment nunc pro tunc given the public policy favoring marriage. Munsey v. Munsey, 303 S.W.2d 257, 1957 Ky. LEXIS 235 ( Ky. 1957 ).

4.Joint Application Required.

Judgment of absolute divorce could be annulled only on joint petition and consent of both parties and, where consent of one party was lacking, chancellor had no authority to make judgment of annulment. Berning v. Berning, 255 Ky. 699 , 75 S.W.2d 355, 1934 Ky. LEXIS 318 ( Ky. 1934 ).

5.Divorce from Bed and Board.

A divorce from bed and board may at any time be modified or set aside by a court when it is made to appear that such relief is proper or necessary. Simpson v. Simpson, 201 Ky. 282 , 256 S.W. 412, 1923 Ky. LEXIS 277 ( Ky. 1923 ).

A judgment for a divorce from bed and board may be annulled at any time by court entering it by consent of parties. Hill v. Hill, 203 Ky. 182 , 261 S.W. 1115, 1924 Ky. LEXIS 876 ( Ky. 1924 ).

Cited:

Arnz v. Johnson, 299 Ky. 529 , 186 S.W.2d 4, 1945 Ky. LEXIS 454 ( Ky. 1945 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition to Set Aside Decree of Dissolution, Form 253.33.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.26.

Petrilli, Kentucky Family Law, Marriage in General, § 1.2.

403.041. Judgment of divorce may be annulled.

A judgment of divorce from the bond of matrimony may be annulled by the court which rendered it, upon a petition verified by the parties in person so requesting.

History. C. C. 426: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Construction.

This section and KRS 403.040 have been construed as providing the only method by which a judgment granting an absolute divorce may be annulled after the expiration of the term. Bushong v. Bushong, 283 Ky. 36 , 140 S.W.2d 610, 1940 Ky. LEXIS 275 ( Ky. 1940 ).

Cited:

Arnz v. Johnson, 299 Ky. 529 , 186 S.W.2d 4, 1945 Ky. LEXIS 454 ( Ky. 1945 ); Cecil v. Farmers Nat’l Bank, 245 S.W.2d 430, 1951 Ky. LEXIS 1255 ( Ky. 1951 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition to Set Aside Decree of Dissolution, Form 253.33.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.26.

403.042. Judgment of divorce from bed and board may be annulled.

A judgment of divorce from bed and board may be annulled by the court which rendered it, at the instance of either party showing just cause therefor in an equitable action.

History. C. C. 427: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

Cited:

Swartz v. Caudill, 279 Ky. 206 , 130 S.W.2d 80, 1939 Ky. LEXIS 264 ( Ky. 1939 ); Jones v. Tartar, 308 Ky. 813 , 215 S.W.2d 955, 1948 Ky. LEXIS 1046 ( Ky. 1948 ); Cecil v. Farmers Nat’l Bank, 245 S.W.2d 430, 1951 Ky. LEXIS 1255 ( Ky. 1951 ).

Research References and Practice Aids

Kentucky Law Journal.

Moffit, Cecil v. Farmers National Bank — Termination of Limited Divorces, 41 Ky. L.J. 468 (1953).

Treatises

Petrilli, Kentucky Family Law, Marriage in General, § 1.4e.

403.043. Interlocutory decree required; when judgment final; interlocutory decree set aside, when. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 237, § 1) was repealed by Acts 1968, ch. 43, § 1.

403.044. Testimony in certain cases not taken for sixty days after complaint filed.

In divorce actions in which there are minor children who are the issue of the marriage no testimony other than on temporary motions shall be taken or heard before sixty (60) days have elapsed from the date of service of summons, the appointment of a warning order attorney or the filing of an entry of appearance or a responsive pleading by the defendant, whichever occurs first.

History. Enact. Acts 1968, ch. 43, § 2; 1972, ch. 253, § 1; 1980, ch. 45, § 1, effective July 15, 1980.

NOTES TO DECISIONS

Cited:

Kentucky Bar Asso. v. Cohen, 625 S.W.2d 573, 1981 Ky. LEXIS 302 ( Ky. 1981 ), cert. denied, 456 U.S. 1007, 102 S. Ct. 2298, 73 L. Ed. 2d 1301, 1982 U.S. LEXIS 2344, 50 U.S.L.W. 3948 (1982); L.B.A. v. H.A., 731 S.W.2d 834, 1987 Ky. App. LEXIS 505 (Ky. Ct. App. 1987).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Uncontested or Contested Trial Date, Form 253.20.

Petrilli, Kentucky Family Law, Court Procedure, § 23.25.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.15.

403.050. Divorce from bed and board — Grounds and legal effect.

Divorce from bed and board may be rendered for any cause that allows divorce, or for any other cause that the court in its discretion considers sufficient. A divorce from bed and board shall operate as to property thereafter acquired, and upon the personal rights and legal capacities of the parties, as a divorce from the bond of matrimony, except that neither shall marry again during the life of the other, and except that it shall not bar curtesy, dower or distributive right. The judgment may be revised or set aside at any time by the court rendering it.

History. 2121.

NOTES TO DECISIONS

Compiler’s Notes. All of the following cases decided under this section were decided prior to the 1972 enactment of KRS 403.110 to 403.350 which substantially rewrote the Kentucky divorce laws.

1.In General.

Where, in a suit by a wife for divorce, the husband filed a cross-bill for similar relief, and the court denied an absolute divorce to both parties, it was authorized by this section to grant each a divorce from bed and board. Bottom v. Bottom, 143 Ky. 666 , 137 S.W. 198, 1911 Ky. LEXIS 472 ( Ky. 1911 ).

Divorce from bed and board may be granted for less cause than warrants an absolute divorce. Humphries v. Humphries, 214 Ky. 397 , 283 S.W. 391, 1926 Ky. LEXIS 342 ( Ky. 1926 ). See McCampbell v. McCampbell, 103 Ky. 7 45, 46 S.W. 18, 20 Ky. L. Rptr. 552 , 1898 Ky. LEXIS 117 ( Ky. 1898 ); McClintock v. McClintock, 147 Ky. 409 , 144 S.W. 68, 1912 Ky. LEXIS 25 4 ( Ky. 1912 ); Turner v. Turner, 211 Ky. 7 , 276 S.W. 967, 1925 Ky. LEXIS 797 ( Ky. 1925 ); McDaniel v. McDaniel, 292 Ky. 56 , 165 S.W.2d 966, 1942 Ky. LEXIS 25 ( Ky. 1942 ).

Where grounds were insufficient for divorce but circumstances were such that couple could not live happily together, divorce from bed and board should be decreed. Reynolds v. Reynolds, 224 Ky. 668 , 6 S.W.2d 1078, 1928 Ky. LEXIS 655 ( Ky. 1928 ).

To authorize a divorce from bed and board, facts must show a separation is demanded for the interest and protection of the life, health, or happiness of the party complaining, on account of the conduct of the one in default. Quinn v. Quinn, 279 Ky. 286 , 130 S.W.2d 834, 1939 Ky. LEXIS 298 ( Ky. 1939 ).

Where plaintiff husband failed to prove abandonment for one year or that he was without fault or cruel and inhuman treatment, he should not have been granted divorce, but divorce from bed and board under this section should have been granted. Distler v. Distler, 301 Ky. 331 , 191 S.W.2d 226, 1945 Ky. LEXIS 716 ( Ky. 1945 ).

Where chancellor found parties’ dispositions so incompatible and differences irreconcilable that legal separation should be decreed, this section provides for a divorce from bed and board. Flood v. Flood, 302 Ky. 167 , 194 S.W.2d 166, 1946 Ky. LEXIS 622 ( Ky. 1946 ).

Under this statute a limited divorce may be decreed under pleadings asking for an absolute divorce. Grubb v. Grubb, 310 Ky. 449 , 220 S.W.2d 1000, 1949 Ky. LEXIS 947 ( Ky. 1949 ).

A divorce from bed and board should be resorted to only in extreme cases where there is no other adequate solution to the problem. Coleman v. Coleman, 269 S.W.2d 730, 1954 Ky. LEXIS 1019 ( Ky. 1954 ).

A decree of divorce from bed and board is a judgment of limited separation and does not dissolve the marriage but only suspends certain mutual rights and obligations. Dunning v. Dunning, 325 S.W.2d 315, 1959 Ky. LEXIS 48 ( Ky. 1959 ).

Although divorce from bed and board is a poor arrangement, it should be resorted to only in those extreme cases where there is no other adequate solution to the problem. Bailey v. Bailey, 474 S.W.2d 389, 1971 Ky. LEXIS 114 ( Ky. 1971 ).

2.Grounds.

Extreme neglect of the wife by the husband, bordering on a degree of cruelty that must have tended to destroy her peace of mind, warrants a judgment for the wife of divorce from bed and board. Irwin v. Irwin, 96 Ky. 318 , 28 S.W. 664, 16 Ky. L. Rptr. 657 , 1894 Ky. LEXIS 123 ( Ky. 1894 ).

Though husband’s treatment of wife was not such as to justify absolute divorce, his indifference to her happiness and inexcusably harsh treatment of her justified a divorce from bed and board. Ramsey v. Ramsey, 162 Ky. 741 , 172 S.W. 1082, 1915 Ky. LEXIS 140 ( Ky. 1915 ).

Wife was granted divorce from bed and board on cruelty grounds where evidence showed husband married wife to obtain housekeeper and to obtain possession of wife’s money. Phillips v. Phillips, 173 Ky. 608 , 191 S.W. 482, 1917 Ky. LEXIS 508 ( Ky. 1917 ).

Divorce from bed and board was authorized where evidence, although insufficient for divorce for husband’s cruel and inhuman treatment of wife, indicated that parties were so estranged that reconciliation was improbable or that they could not live together peacefully and happily. Nall v. Nall, 287 Ky. 355 , 153 S.W.2d 909, 1941 Ky. LEXIS 555 ( Ky. 1941 ).

Where husband and wife had continued to represent to the public, and to their children, that they were living as husband and wife, they had been living in the same house, frequently occupying same bedroom and on at least one occasion, within two years of the filing of the action, had slept in the same bed, wife could not obtain absolute divorce on ground of “living apart without any cohabitation for five consecutive years,” notwithstanding both parties testified they had not cohabited sexually for more than ten years. However, such evidence was sufficient to warrant divorce from bed and board. Colvin v. Colvin, 300 Ky. 781 , 190 S.W.2d 473, 1945 Ky. LEXIS 651 ( Ky. 1945 ).

Maladjustment of sexual relations between husband and wife justifies granting each a divorce from bed and board. Stevens v. Stevens, 313 Ky. 294 , 231 S.W.2d 49, 1950 Ky. LEXIS 877 ( Ky. 1950 ).

3.Chancellor’s Discretion.

The discretion of the court, under this section, is neither arbitrary nor unlimited, but must arise from a state of facts showing that the separation is demanded for the interest and protection of the life, health, or happiness of the party complaining, on account of the conduct and treatment of the one in default. Irwin v. Irwin, 96 Ky. 318 , 28 S.W. 664, 16 Ky. L. Rptr. 657 , 1894 Ky. LEXIS 123 ( Ky. 1894 ).

Chancellor’s discretionary power to divorce from bed and board is not arbitrary or unlimited, but a sound, legal discretion, one to be exercised with a just and reasonable regard for the rights and obligations of both parties. Phillips v. Phillips, 173 Ky. 608 , 191 S.W. 482, 1917 Ky. LEXIS 508 ( Ky. 1917 ). See Metcalf v. Metcalf, 244 Ky. 536 , 51 S.W.2d 675, 1932 Ky. LEXIS 470 ( Ky. 1932 ).

A wife is entitled to a qualified divorce from bed and board, where her evidence fails to sustain grounds for absolute divorce, if, in the sound judgment of the chancellor, the interests of the parties, their infant children, and the good of society demand it. Cecil v. Cecil, 200 Ky. 453 , 255 S.W. 64, 1923 Ky. LEXIS 105 ( Ky. 1923 ).

4.Other Causes.

Under this section, the “other cause,” authorizing divorce, is one which in severity rises above the ordinary, common, and trivial disputes and differences occurring between husband and wife, though falling below conduct furnishing cause for an absolute divorce. Burns v. Burns, 173 Ky. 105 , 190 S.W. 683, 1917 Ky. LEXIS 423 ( Ky. 1917 ).

5.Both at Fault.

Where both parties are equally guilty so that neither is entitled to an absolute divorce, the chancellor may grant a divorce from bed and board. Grubb v. Grubb, 310 Ky. 449 , 220 S.W.2d 1000, 1949 Ky. LEXIS 947 ( Ky. 1949 ).

Where evidence showed that couple could not live together in peace and harmony and that, though both were in fault, the wife was more to blame, the husband properly was granted a divorce from bed and board. Grubb v. Grubb, 310 Ky. 449 , 220 S.W.2d 1000, 1949 Ky. LEXIS 947 ( Ky. 1949 ).

Where wife was of a nagging, quarrelsome disposition, was subject to tantrums and the use of profanity, and withdrew money from their joint account and concealed it from the husband and he hit her with his fist, often slapped her, and, since their separation, had been going with another woman, the chancellor properly denied the husband an absolute divorce and granted him a divorce from bed and board. Williams v. Williams, 244 S.W.2d 166, 1951 Ky. LEXIS 1207 ( Ky. 1951 ).

6.Entitled to Absolute Divorce.

Court may grant a limited divorce, although the pleadings set forth grounds for an absolute divorce, with prayer for that relief only. Simpson v. Simpson, 201 Ky. 282 , 256 S.W. 412, 1923 Ky. LEXIS 277 ( Ky. 1923 ). See Burns v. Burns, 173 Ky. 105 , 190 S.W. 683, 1917 Ky. LEXIS 423 ( Ky. 1917 ).

Where wife was the only party entitled to a divorce and she sought a divorce from bed and board, the husband could not complain of the failure to grant an absolute divorce. Alford v. Alford, 317 S.W.2d 887, 1958 Ky. LEXIS 114 ( Ky. 1958 ).

Where wife was entitled to a divorce under the evidence which was not controverted and she sought only a divorce from bed and board, it was error for the chancellor to deny her a divorce from bed and board. Hadd v. Hadd, 325 S.W.2d 312, 1959 Ky. LEXIS 46 ( Ky. 1959 ).

Where husband filed suit for an absolute divorce, but was not entitled to a divorce, and wife counterclaimed for a divorce from bed and board and was entitled to an absolute divorce, the trial court properly denied the husband a divorce and granted the wife a divorce from bed and board. Brown v. Brown, 347 S.W.2d 524, 1961 Ky. LEXIS 365 ( Ky. 1961 ).

7.Allowance.

Where a wife is entitled to a divorce from bed and board, she is entitled to an allowance for maintenance, whether or not she is entitled to a divorce. Huffman v. Huffman, 310 Ky. 688 , 221 S.W.2d 649, 1949 Ky. LEXIS 998 ( Ky. 1949 ).

8.Effect on Property.

A divorce from bed and board operates as to subsequently acquired property, but does not affect the property held by the parties at the time of the judgment, and restoration can be granted only upon judgment of absolute divorce. Gentry v. Gentry, 318 S.W.2d 870, 1958 Ky. LEXIS 155 ( Ky. 1958 ).

9.Restoration Improper.

Upon a divorce from bed and board, the status of the parties as to all previously acquired property remains unchanged and an order for restoration of property is improper. Stevens v. Stevens, 313 Ky. 294 , 231 S.W.2d 49, 1950 Ky. LEXIS 877 ( Ky. 1950 ).

By a judgment declaring that the parties were divorced from bed and board, the marriage was not dissolved to the extent that property earned through joint effort must be allocated and restoration under this section did not apply to such divorce. Bailey v. Bailey, 474 S.W.2d 389, 1971 Ky. LEXIS 114 ( Ky. 1971 ).

10.Liability for Medical Expenses.

A husband is not liable for the medical expenses of his wife incurred after a divorce from bed and board, but such support should be provided by a reasonable allowance for alimony or maintenance determined at the time of granting the limited divorce. Gentry v. Gentry, 318 S.W.2d 870, 1958 Ky. LEXIS 155 ( Ky. 1958 ).

11.Valuation of Husband’s Estate.

Improvements made to business property after a divorce from bed and board were excluded from the gross value of the husband’s estate. Duvall v. Duvall, 431 S.W.2d 491, 1968 Ky. LEXIS 364 ( Ky. 1968 ).

12.Reversal.

Court of equity has authority to modify or set aside divorce from bed and board at any time, when it appears such relief is proper or necessary. Metcalf v. Metcalf, 244 Ky. 536 , 51 S.W.2d 675, 1932 Ky. LEXIS 470 ( Ky. 1932 ).

Where final judgment has been entered denying husband’s petition for absolute divorce and granting wife divorce from bed and board, the only remedy for errors in the record is by appeal or motion for new trial within the prescribed periods, and the judgment cannot be vacated or set aside after the term unless there exists something, other than the facts appearing in the record, that the code makes a ground for such relief, such as fraud or subsequent change of circumstances. Swartz v. Caudill, 279 Ky. 206 , 130 S.W.2d 80, 1939 Ky. LEXIS 264 ( Ky. 1939 ).

Where wife was granted divorce from bed and board by Circuit Court, and husband subsequently brought suit in same court for absolute divorce, wife’s petition for writ of prohibition to enjoin such court from hearing husband’s suit was denied since Circuit Court had jurisdiction based on granting of original divorce from bed and board. Jones v. Tartar, 308 Ky. 813 , 215 S.W.2d 955, 1948 Ky. LEXIS 1046 ( Ky. 1948 ).

Where the evidence raises only a doubt as to the propriety of granting the wife a divorce from bed and board instead of an absolute divorce as she requested, the judgment will not be overturned. Baldwin v. Baldwin, 314 Ky. 399 , 235 S.W.2d 1008, 1951 Ky. LEXIS 667 ( Ky. 1951 ).

Notwithstanding terms of KRS 21.060 (repealed — now see KRS 22A.020 ) which denies jurisdiction of Court of Appeals to reverse a judgment of divorce, Court of Appeals has jurisdiction to direct that a judgment of divorce from bed and board be set aside and an absolute divorce granted. Dunning v. Dunning, 325 S.W.2d 315, 1959 Ky. LEXIS 48 ( Ky. 1959 ).

13.Refusal to Provide for Support.

The wife is entitled to a divorce from bed and board when it is made to appear that her husband has abandoned her, with a fixed determination upon his part, without good cause, to separate from her and to refuse to provide for her support. Orr v. Orr, 71 Ky. 156 , 1871 Ky. LEXIS 30 ( Ky. 1871 ) (decided under prior law).

Cited:

Evans v. Evans, 247 Ky. 1 , 56 S.W.2d 547, 1933 Ky. LEXIS 339 ( Ky. 1 933); Keith v. Keith, 270 Ky. 655 , 110 S.W.2d 424, 1937 Ky. LEXIS 130 (1937); Dodd v. Dodd, 278 Ky. 662 , 129 S.W.2d 166, 1939 Ky. LEXIS 481 ( Ky. 1939 ); Quinn v. Quinn, 279 Ky. 286 , 130 S.W.2d 834, 1939 Ky. LEXIS 298 ( Ky. 1939 ); Turner v. Ewald, 295 Ky. 764 , 174 S.W.2d 431, 1943 Ky. LEXIS 233 ( Ky. 1943 ); Cecil v. Farmers Nat’l Bank, 245 S.W.2d 430, 1951 Ky. LEXIS 1255 ( Ky. 1951 ); Smith v. Smith, 497 S.W.2d 418, 1973 Ky. LEXIS 323 ( Ky. 1973 ).

Research References and Practice Aids

Kentucky Law Journal.

Whiteside, Domestic Relations — Recent Kentucky Developments, 1950-55, 44 Ky. L.J. 60 (1955).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.5.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.1.

Petrilli, Kentucky Family Law, Marriage in General, § 1.4e.

403.055. Wife may be allowed maintenance during pendency of action. [Repealed.]

Compiler’s Notes.

This section (C. C. 424: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1972, ch. 182, § 29.

403.060. Disposition of property — Restoration of maiden name. [Repealed.]

Compiler’s Notes.

This section (2121 to 2123) was repealed by Acts 1972, ch. 182, § 29.

403.065. Proceedings for restoration of property. [Repealed.]

Compiler’s Notes.

This section (C. C. 425: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1972, ch. 182, § 29.

403.070. Court to provide for care of children. [Repealed.]

Compiler’s Notes.

This section (2123: amend. Acts 1968, ch. 100, § 17) was repealed by Acts 1972, ch. 182, § 29.

403.080. When wife may obtain order securing alimony and maintenance. [Repealed.]

Compiler’s Notes.

This section (2124) was repealed by Acts 1972, ch. 182, § 29.

403.090. Friend of the court — Appointment — Tenure — Duties — Wage withholding collections — Compensation.

  1. The fiscal court of any county may, by resolution, authorize the appointment of a “friend of the court.” If the Circuit Court of the county has but one (1) judge, the appointment shall be made by the judge. If the court has two (2) or more judges, the appointment shall be made by joint action of the judges, at the general term. The person appointed to the office of friend of the court shall serve at the pleasure of, and subject to removal by, the appointing authority. The person appointed shall be a licensed practicing attorney. The appointed person shall take the constitutional oath of office and shall give bond in such sum as may be fixed by the appointing judge or judges.
  2. Except for those cases administered pursuant to 42 U.S.C. secs. 651 et seq., it shall be the duty of the friend of the court to supervise and enforce the payment of sums ordered or adjudged by the Circuit Court in divorce actions to be paid for the care and maintenance of minor children. All persons who have been ordered or adjudged by the court, in connection with divorce actions, to make payments for the care and maintenance of children, shall, if so ordered by the court, make such payments to the friend of the court. The friend of the court shall see that the payments, except for those cases administered pursuant to 42 U.S.C. secs. 651 et seq., are properly applied in accordance with the order or judgment. However, if the court so directs, the payments may be made through the juvenile session of District Court of the county; in such case the friend of the court shall render such assistance as may be required in keeping records concerning such payments and in the enforcement of delinquent payments, and the Circuit Court may direct that a designated amount or portion of the funds appropriated by the fiscal court for expenses of the friend of the court be paid to the juvenile session of District Court as reimbursement for the expenses incurred by the juvenile session of District Court in connection with the handling of such payments. The friend of the court shall promptly investigate all cases where payments have become delinquent, and when necessary shall cause the delinquent person to be brought before the court for the purpose of compelling payment. The friend of the court shall ascertain the facts concerning the care, custody, and maintenance of children for whom payments are being made, and shall report to the court all cases in which the children are not receiving proper care or maintenance, or in which the person having custody is failing to furnish proper custody. He shall make such other reports to the court as the court may require.
  3. In the event that a waiver is granted under 42 U.S.C. secs. 651 et seq., allowing payment of wage withholding collections to be directed to the friend of the court, an obligor shall be given the option of payment either to the friend of the court or the centralized collection agency.
  4. In any action for divorce where the parties have minor children, the friend of the court, if requested by the trial judge, shall make such investigation as will enable the friend of the court to ascertain all facts and circumstances that will affect the rights and interests of the children and will enable the court to enter just and proper orders and judgment concerning the care, custody, and maintenance of the children. The friend of the court shall make a report to the trial judge, at a time fixed by the judge, setting forth recommendations as to the care, custody, and maintenance of the children. The friend of the court may request the court to postpone the final submission of any case to give the friend of the court a reasonable time in which to complete the investigation.
  5. The friend of the court shall have authority to secure the issuance by the court of any order, rule, or citation necessary for the proper enforcement of orders and judgments in divorce actions concerning the custody, care, and maintenance of children. In performing duties under subsection (4) of this section the friend of the court shall attend the taking of depositions within the county, and shall have authority to cross-examine the witnesses. In the case of depositions taken on interrogatories, the friend of the court may file cross-interrogatories. The friend of the court shall be duly notified of the time and place of the taking of depositions in all divorce actions where the parties have minor children, and shall attend the taking of all such depositions when the friend of the court deems it necessary for the protection of the minor children, or when the friend of the court may be directed by the court to attend.
  6. The friend of the court shall not directly or indirectly represent any party to a divorce action except as herein authorized to represent the minor children of parties to a divorce action, but if an allowance is made for the support of a spouse and an infant child or children, may proceed to enforce the payment of the allowance made to the spouse also.
  7. Where a friend of the court is acting as a designee of the cabinet pursuant to KRS 205.712 and an applicant for Title IV-D services pursuant to KRS 205.721 has requested a modification of an existing child support order pursuant to a divorce or other judicial order, the friend of the court shall seek the modification, providing all jurisdictional requirements are met. The friend of the court’s representation shall extend only for the limited purpose of seeking a modification of an existing child support order consistent with the provisions of KRS 403.212 .
  8. The fiscal court of any county which has authorized the appointment of a friend of the court under this section shall, by resolution, fix a reasonable compensation for the friend of the court and make a reasonable allowance for necessary expenses, equipment, and supplies, payable out of the general fund of the county, upon approval of the appointing judge or judges.

History. Enact. Acts 1946, ch. 166; 1948, ch. 168; 1956, ch. 214; 1964, ch. 169, § 1; 1966, ch. 161; 1968, ch. 150, § 1; 1974, ch. 386, § 95; 1980, ch. 188, § 180, effective July 15, 1980; 1994, ch. 330, § 7, effective July 15, 1994; 1998, ch. 255, § 16, effective July 15, 1998.

NOTES TO DECISIONS

1.Attorney Fees.

A divorced mother is entitled to a fee for an attorney in resisting reduction of child maintenance payment. Thielmeier v. Thielmeier, 420 S.W.2d 557, 1967 Ky. LEXIS 110 ( Ky. 1967 ).

Cited:

Parsley v. Knuckles, 346 S.W.2d 1, 1961 Ky. LEXIS 276 ( Ky. 1961 ).

Opinions of Attorney General.

A “Friend of the Court” appointed under KRS this section is neither a state nor a county officer and therefore a county attorney may properly be appointed as “Friend of the Court” by the Circuit Judge provided he represents no parties in divorce suits, since such representation is prohibited by subsection (5) (now (6)) of this section. OAG 68-339 .

The Circuit Judge may properly designate the “Friend of the Court” appointed under this section as an official designated to receive and disburse payments under KRS 407.300 (repealed, now see KRS 407.5101 et seq.) and 407.320 . OAG 68-339 .

In order to enforce a child support order a custodial parent can make a choice as to whether to proceed in terms of a civil remedy or whether to seek prosecution. OAG 76-336 .

Although courts have inherent power to order paid all expenses necessary for holding court, the legislature has preempted the funding of the compensation and expenses of the friend of the court by enacting the express and explicit provisions of subsection (6) (now (8)) of this section. OAG 82-173 .

Since subsection (6) (now (8)) of this section is designed to fund the compensation and expenses of the friend of the court for any and all of the various functions which the friend of the court may be called upon to perform by the court, the friend of the court may not be additionally compensated for services rendered under subsections (3) and (4) (now (4) and (5)) of this section by taxing same as court costs to be paid by the appropriate party. OAG 82-173 .

The Circuit Court is presently controlled by subsection (6) (now (8)) of this section relating to the fiscal court’s funding of the compensation and expenses of the friend of the court; however, should a fiscal court fail, arbitrarily and capriciously, to fund such compensation and expenses such as to impair or destroy the efficient administration of justice in such cases, the court can require the fiscal court, even under mandamus, to fund such compensation and expenses to the “reasonable” level required by subsection (6) (now (8)) of this section. OAG 82-173 .

There is no statutory authority for the Circuit Judge’s ordering a fee, based on a percentage of the child support payments and added to such payments, for the purpose of reimbursing the fiscal court for the compensation and expenses of the “friend of the court.” OAG 82-173 .

Research References and Practice Aids

Kentucky Law Journal.

Howard, “Friend of the Court,” 45 Ky. L.J. 128 (1956).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, § 26.19.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.23.

Petrilli, Kentucky Family Law, Juvenile Court, § 32.32.

Petrilli, Kentucky Family Law, Maintenance, § 25.28.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.13.

403.090. Friend of the court — Appointment — Tenure — Duties — Wage withholding collections — Compensation.

  1. The fiscal court of any county may, by resolution, authorize the appointment of a “friend of the court.” If the Circuit Court of the county has but one (1) judge, the appointment shall be made by the judge. If the court has two (2) or more judges, the appointment shall be made by joint action of the judges, at the general term. The person appointed to the office of friend of the court shall serve at the pleasure of, and subject to removal by, the appointing authority. The person appointed shall be a licensed practicing attorney. The appointed person shall take the constitutional oath of office and shall give bond in such sum as may be fixed by the appointing judge or judges.
  2. Except for those cases administered pursuant to 42 U.S.C. secs. 651 et seq., it shall be the duty of the friend of the court to supervise and enforce the payment of sums ordered or adjudged by the Circuit Court in divorce actions to be paid for the care and maintenance of minor children. All persons who have been ordered or adjudged by the court, in connection with divorce actions, to make payments for the care and maintenance of children, shall, if so ordered by the court, make such payments to the friend of the court. The friend of the court shall see that the payments, except for those cases administered pursuant to 42 U.S.C. secs. 651 et seq., are properly applied in accordance with the order or judgment. However, if the court so directs, the payments may be made through the juvenile session of District Court of the county; in such case the friend of the court shall render such assistance as may be required in keeping records concerning such payments and in the enforcement of delinquent payments, and the Circuit Court may direct that a designated amount or portion of the funds appropriated by the fiscal court for expenses of the friend of the court be paid to the juvenile session of District Court as reimbursement for the expenses incurred by the juvenile session of District Court in connection with the handling of such payments. The friend of the court shall promptly investigate all cases where payments have become delinquent, and when necessary shall cause the delinquent person to be brought before the court for the purpose of compelling payment. The friend of the court shall ascertain the facts concerning the care, custody, and maintenance of children for whom payments are being made, and shall report to the court all cases in which the children are not receiving proper care or maintenance, or in which the person having custody is failing to furnish proper custody. He shall make such other reports to the court as the court may require.
  3. In the event that a waiver is granted under 42 U.S.C. secs. 651 et seq., allowing payment of wage withholding collections to be directed to the friend of the court, an obligor shall be given the option of payment either to the friend of the court or the centralized collection agency.
  4. In any action for divorce where the parties have minor children, the friend of the court, if requested by the trial judge, shall make such investigation as will enable the friend of the court to ascertain all facts and circumstances that will affect the rights and interests of the children and will enable the court to enter just and proper orders and judgment concerning the care, custody, and maintenance of the children. The friend of the court shall make a report to the trial judge, at a time fixed by the judge, setting forth recommendations as to the care, custody, and maintenance of the children. The friend of the court may request the court to postpone the final submission of any case to give the friend of the court a reasonable time in which to complete the investigation.
  5. The friend of the court shall have authority to secure the issuance by the court of any order, rule, or citation necessary for the proper enforcement of orders and judgments in divorce actions concerning the custody, care, and maintenance of children. In performing duties under subsection (4) of this section the friend of the court shall attend the taking of depositions within the county, and shall have authority to cross-examine the witnesses. In the case of depositions taken on interrogatories, the friend of the court may file cross-interrogatories. The friend of the court shall be duly notified of the time and place of the taking of depositions in all divorce actions where the parties have minor children, and shall attend the taking of all such depositions when the friend of the court deems it necessary for the protection of the minor children, or when the friend of the court may be directed by the court to attend.
  6. The friend of the court shall not directly or indirectly represent any party to a divorce action except as herein authorized to represent the minor children of parties to a divorce action, but if an allowance is made for the support of a spouse and an infant child or children, may proceed to enforce the payment of the allowance made to the spouse also.
  7. Where a friend of the court is acting as a designee of the cabinet pursuant to KRS 205.712 and an applicant for Title IV-D services pursuant to KRS 205.721 has requested a modification of an existing child support order pursuant to a divorce or other judicial order, the friend of the court shall seek the modification, providing all jurisdictional requirements are met. The friend of the court’s representation shall extend only for the limited purpose of seeking a modification of an existing child support order consistent with the provisions of KRS 403.212 or Section 2 of this Act.
  8. The fiscal court of any county which has authorized the appointment of a friend of the court under this section shall, by resolution, fix a reasonable compensation for the friend of the court and make a reasonable allowance for necessary expenses, equipment, and supplies, payable out of the general fund of the county, upon approval of the appointing judge or judges.

HISTORY: Enact. Acts 1946, ch. 166; 1948, ch. 168; 1956, ch. 214; 1964, ch. 169, § 1; 1966, ch. 161; 1968, ch. 150, § 1; 1974, ch. 386, § 95; 1980, ch. 188, § 180, effective July 15, 1980; 1994, ch. 330, § 7, effective July 15, 1994; 1998, ch. 255, § 16, effective July 15, 1998; 2022 ch. 122, § 4.

403.100. Compensation of guardian ad litem when petitioner is victim of KRS Chapter 507, 508, 509, or 510 offense committed by respondent.

In any court proceeding conducted pursuant to KRS 403.010 to 403.350 , if the respondent is incarcerated for a conviction pursuant to KRS Chapter 507, 508, 509, or 510, where the petitioner is the victim, the guardian ad litem shall be paid by the Finance and Administration Cabinet.

HISTORY: 2018 ch. 27, § 1, effective July 14, 2018.

Legislative Research Commission Note.

(7/14/2018). 2018 Ky. Acts ch. 27, sec. 2 provided that this statute as created in Section 1 of that Act shall be known and may be cited as Jeanette’s Law.

403.110. Purpose of chapter.

This chapter shall be liberally construed and applied to promote its underlying purposes, which are to:

  1. Strengthen and preserve the integrity of marriage and safeguard family relationships;
  2. Promote the amicable settlement of disputes that have arisen between parties to a marriage;
  3. Mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage;
  4. Make reasonable provision for spouse and minor children during and after litigation; and
  5. Make the law of legal dissolution of marriage effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for its dissolution.

History. Enact. Acts 1972, ch. 182, § 1.

NOTES TO DECISIONS

1.Stability of Settlements.

The No-Fault Divorce Act clearly promotes the settlement of disputes by agreement, and the law favors stability in such settlements. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Unpublished Decision Nowhere did Ky. Rev. Stat. Ann. § 403.180 require the agreement to contain a specific caption or form, only that it be in writing; Ky. Rev. Stat. Ann. §§ 403.180 , 403.110 supported the conclusion the mediated agreement qualified as a separation agreement, and incorporation of the agreement into the dissolution decree was not improper. Baas v. Baas, 2018 Ky. App. LEXIS 275 (Ky. Ct. App. Nov. 30, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 977 (Ky. Ct. App. Nov. 30, 2018).

2.Burden of Proof.

Given the nature of the no-fault divorce statute, coupled with the desirability of imparting some degree of finality to settlement agreements, a party challenging an agreement as unconscionable should have a relatively high burden of proof, and since the trial court is in the best position to judge the circumstances surrounding a separation agreement, its finding on the issue of conscionability should not be set aside on appeal unless there is some evidence of fraud, undue influence, overreaching, or evidence of a change of circumstances since the execution of the original agreement. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

3.Change of Child’s Name.

Since the Circuit Court is vested with continuing jurisdiction of custody matters attendant upon the dissolution of a marriage, and because this chapter mandates that the court safeguard family relationships and mitigate potential harm to parents and children, a Circuit Court has jurisdiction to enjoin a mother from changing a child’s name to his stepfather’s name, otherwise, an unsubstantial statutory right to apply for a name change would take precedence over an express statement of public policy favoring preservation of family relationships. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

An unsubstantial statutory right to apply for a name change as provided in KRS 401.020 does not take precedence over express statements of public policy favoring preservation of family relationships such as those found in subdivisions (1) and (3) of this section. Likins v. Logsdon, 793 S.W.2d 118, 1990 Ky. LEXIS 59 ( Ky. 1990 ).

4.Child Custody.

Where McCracken County had been the residence of both divorced spouses and their children for the last two years, evidence concerning custody of children could best be produced by witnesses living in that county, and it was a convenient forum for the controversy, there was no statutory prohibition or inconsistency in allowing the case to be heard in McCracken County instead of Union County where the divorce decree and custody agreement were originally entered, since the enactment of KRS 403.110 et seq. and former KRS 403.400 et seq. has eroded the doctrine of exclusive and continuing jurisdiction of the original court in custody cases, and where former law regarding jurisdiction in custody cases gave sufficient guidance and direction to establish the proper forum. Shumaker v. Paxton, 613 S.W.2d 130, 1981 Ky. LEXIS 219 ( Ky. 1981 ), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

5.Maintenance Award.

A maintenance award in a fixed amount to be paid over a definite period of time is not subject to modification either before or after its termination date; to permit such awards to be modified would do nothing toward finalizing distasteful litigation and would certainly frustrate the purposes sought by this section. Dame v. Dame, 628 S.W.2d 625, 1982 Ky. LEXIS 233 ( Ky. 1982 ), overruled, Woodson v. Woodson, 338 S.W.3d 261, 2011 Ky. LEXIS 71 ( Ky. 2011 ).

Cited:

Chapman v. Chapman, 498 S.W.2d 134, 1973 Ky. LEXIS 288 ( Ky. 1973 ); Edwardson v. Edwardson, 798 S.W.2d 941, 1990 Ky. LEXIS 124 ( Ky. 1990 ); John v. John, 893 S.W.2d 373, 1995 Ky. App. LEXIS 5 (Ky. Ct. App. 1995); Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Research References and Practice Aids

Kentucky Law Journal.

Miller, Kentucky’s New Dissolution of Marriage Law, 61 Ky. L.J. 980 (1973).

Comments, That Was No Wife, That Was My Lady: Is Marvin v. Marvin Appropriate for Kentucky? 66 Ky. L.J. 707 (1977-1978).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Northern Kentucky Law Review.

Notes, Workers' Compensation ? Marital Property ? Johnson v. Johnson, 10 N. Ky. L. Rev. 531 (1983).

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Treatises

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.3.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.1.

Petrilli, Kentucky Family Law, Maintenance, § 25.17.

Petrilli, Kentucky Family Law, Separation Agreements, § 19.1.

403.120. Marriage — Court may declare invalid.

  1. The Circuit Court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:
    1. A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or deformity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage;
    2. A party lacks the physical capacity to consummate the marriage by sexual intercourse, and the other party did not at the time the marriage was solemnized know of the incapacity;
    3. The marriage is prohibited.
  2. A declaration of invalidity under paragraph (a), (b) or (c) of subsection (1) may be sought by any of the following persons and must be commenced within the times specified, but only for the causes set out in paragraph (a) may a declaration of invalidity be sought after the death of either party to the marriage:
    1. For a reason set forth in paragraphs (a) and (b) of subsection (1), by party or by the legal representative of the party who lacked capacity to consent, who was the offended party or did not know of the incapacity, no later than 90 days after the petitioner obtained knowledge of the described condition;
    2. For the reason set forth in paragraph (c) of subsection (1), by either party, no later than one (1) year after the petitioner obtained knowledge of the described condition.

History. Enact. Acts 1972, ch. 182, § 2.

NOTES TO DECISIONS

1.Application.

The provisions of this section do not apply primarily to incestuous marriages under KRS 402.010 but rather encompasses all void and prohibited marriages, such as a bigamous marriage. Ferguson v. Ferguson, 610 S.W.2d 925, 1980 Ky. App. LEXIS 410 (Ky. Ct. App. 1980).

Even though there was generally no appeal allowed from a divorce action, an appeal was permitted if the divorce judgment was void. However, a motion to set aside a divorce decree under CR 60.02 based on the fact that a marriage had been annulled by the Roman Catholic Church was properly denied because the motion was untimely filed, there was no evidence of civil fraud, and constitutional reasons did not allow an interface between church and state law. Age v. Age, 340 S.W.3d 88, 2011 Ky. App. LEXIS 23 (Ky. Ct. App. 2011).

2.Challenge of Marriage in Probate Proceeding.

Where intestate decedent and widow had married six days prior to entry of final divorce decree between decedent and his prior wife, decedent’s son had no standing to attack validity of the marriage ten years later, since subsection (2) (b) of this section allows only parties to the marriage to attack it, and only then within one year of obtaining knowledge of a prohibitive condition; thus, the District Court correctly appointed the widow as administratrix of the estate under subsection (1) of KRS 395.040 , despite the fact that the bigamous marriage was void and prohibited under KRS 402.020 . Ferguson v. Ferguson, 610 S.W.2d 925, 1980 Ky. App. LEXIS 410 (Ky. Ct. App. 1980).

3.Force or Duress.

Husband who relied upon duress as ground for annulment or divorce must show that his consent to marry was influenced by fear from threats and that his will was overcome by such threats. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ) (decided under prior law).

Although threats and demonstrations to do bodily harm to one unless he married another were made, if he was not influenced by threats to enter into marriage, but acted from other motives, there was no duress entitling him to divorce. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ) (decided under prior law).

4.Fraud.

Fact that defendant wife, prior to marriage, had been guilty of fornication or adultery and had given birth to illegitimate child, and did not reveal this to her prospective husband, did not constitute such fraud as would vitiate marriage and did not constitute grounds for divorce. Wesley v. Wesley, 181 Ky. 135 , 204 S.W. 165, 1918 Ky. LEXIS 522 ( Ky. 1918 ) (decided under prior law).

5.Inability to Consummate Marriage.

Where it was physically impossible for wife to have sexual intercourse and she knew the facts before her marriage, but concealed them from the husband until after marriage, the husband was entitled to a divorce even though surgery might remove the malformation. Mutter v. Mutter, 123 Ky. 754 , 97 S.W. 393, 30 Ky. L. Rptr. 76 , 1906 Ky. LEXIS 211 ( Ky. 1906 ) (decided under prior law).

A party seeking a divorce on the ground of malformation of the other party preventing sexual intercourse has the burden of proving the ground. Barnett v. Barnett, 292 Ky. 672 , 167 S.W.2d 845, 1943 Ky. LEXIS 727 ( Ky. 1943 ) (decided under prior law).

6.Annulment.

Judges were entitled to absolute judicial immunity because the claimant failed to set forth sufficient factual allegations to support his claims that the judges acted in complete absence of all jurisdiction since the annulment petition was filed by a representative of family services, which was appointed as the ward's guardian eleven days before the annulment petition was filed. Anderson v. Dickson, 715 Fed. Appx. 481, 2017 FED App. 0593N, 2017 U.S. App. LEXIS 21428 (6th Cir. Ky. 2017 ), cert. denied, 138 S. Ct. 1558, 200 L. Ed. 2d 754, 2018 U.S. LEXIS 2457 (U.S. 2018).

Cited:

Knott v. Garriott, 784 S.W.2d 603, 1989 Ky. App. LEXIS 156 (Ky. Ct. App. 1989); Eck v. Eck, 793 S.W.2d 858, 1990 Ky. App. LEXIS 110 (Ky. Ct. App. 1990).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Physical Incapacity), Form 252.02.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Petrilli, Kentucky Family Law, Annulment of Marriage, §§ 10.1, 10.2, 10.5, 10.9, 10.17.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.1.

Petrilli, Kentucky Family Law, Marriage in General, § 1.4e.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Forms 2.2, 2.3, 2.12, 2.19.

403.130. Rules of Civil Procedure to apply.

  1. The Rules of Civil Procedure apply to all proceedings under this chapter, except as otherwise provided in this chapter.
  2. A proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage shall be entitled “In re the Marriage of  . . . . . . . . . . . . . . . . . . . .  and  . . . . . .” A custody or support proceeding shall be entitled “In re the (Custody) (Support) of  . . . . . . . . . . . . . . . . . . . . .”
  3. The initial pleading in all proceedings under this chapter shall be denominated a petition. A responsive pleading shall be denominated a response. Other pleadings, and all pleadings in other matters under this chapter, shall be denominated as provided in the Rules of Civil Procedure.
  4. In this chapter, “decree” includes “judgment.”
  5. A decree of dissolution or of legal separation, if made, shall not be awarded to one (1) of the parties, but shall provide that it affects the status previously existing between the parties in the manner decreed.

History. Enact. Acts 1972, ch. 182, § 3.

NOTES TO DECISIONS

1.Statutory Procedural Requirements.

Under subsection (2) of CR 1, as complemented and made applicable to divorce proceedings by subsection (1) of this section, statutory procedural requirements prevail over inconsistent procedures in the Civil Rules in all statutory proceedings; accordingly, the failure of parties in a divorce action to request the trial court for more definite findings, which ordinarily would prevent the Supreme Court from giving relief under CR 52.04, was not fatal to an appeal challenging the perfunctory manner in which the trial judge made his findings where the trial judge did not comply with the procedural requirements of KRS 403.190 and did not make specific findings of fact as required by CR 52.01. Hollon v. Hollon, 623 S.W.2d 898, 1981 Ky. LEXIS 292 ( Ky. 1981 ), overruled, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

Cited:

Mathews v. Mathews, 731 S.W.2d 832, 1987 Ky. App. LEXIS 501 (Ky. Ct. App. 1987).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit and Motion for Appointment of Warning Order Attorney, Form 253.08.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Child Support — Child Born Out of Wedlock, Form 263.23.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Response, Form 253.12.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.3, 23.18, 23.22.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.27.

Petrilli, Kentucky Family Law, Maintenance, § 25.30.

403.135. Protection of personal identifiers in domestic relations cases.

  1. If another section of this chapter or KRS 407.5311 or 407.5602 requires the provision of a personal identifier in a pleading, document, or exhibit filed with the court, the party making the filing shall provide the personal identifier in accordance with the Kentucky Rules of Civil Procedure.
  2. The clerk of the court shall allow the unredacted sealed copy of the pleading, document, or exhibit containing personal identifiers to be accessed only by a party to the case, an attorney of record in the case, a judge of the court or other authorized court personnel, a duly authorized employee or agent of the Cabinet for Health and Family Services involved in child support matters attendant to the case, or a person authorized to view the copy by specific order of the court.
  3. As used in this section, “personal identifier” means a Social Security number, name of minor child, date of birth, or financial account number.

HISTORY: Enact. Acts 2006, ch. 126, § 1, effective July 12, 2006; 2015 ch. 18, § 73, effective June 24, 2015.

Dissolution — Legal Separation

403.140. Marriage — Court may enter decree of dissolution or separation.

  1. The Circuit Court shall enter a decree of dissolution of marriage if:
    1. The court finds that one (1) of the parties, at the time the action was commenced, resided in this state, or was stationed in this state while a member of the armed services, and that the residence or military presence has been maintained for 180 days next preceding the filing of the petition;
    2. The court finds that the conciliation provisions of KRS 403.170 either do not apply or have been met;
    3. The court finds that the marriage is irretrievably broken; and
    4. To the extent it has jurisdiction to do so, the court has considered, approved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse, and the disposition of property.
  2. If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects, in which latter event the other provisions of this chapter shall apply.

History. Enact. Acts 1972, ch. 182, § 4.

NOTES TO DECISIONS

1.In General.

The marital relation is a sacred one, and should not be dissolved, unless the grounds authorizing it are clearly established. Bone v. Bone, 200 Ky. 736 , 255 S.W. 530, 1923 Ky. LEXIS 176 ( Ky. 1923 ) (decided under prior law).

The bonds of matrimony should not be severed because one or the other spouse has shortcomings. Dean v. Dean, 314 Ky. 872 , 238 S.W.2d 672, 1951 Ky. LEXIS 821 ( Ky. 1951 ) (decided under prior law).

2.Procedure.

A decree of dissolution of the marriage could be entered prior to the final disposition of the matters enumerated in this section. Putnam v. Fanning, 495 S.W.2d 175, 1973 Ky. LEXIS 391 ( Ky. 1973 ).

3.Legal Separation.

Where the trial court found that there had been an irretrievable breakdown of the marriage and where the husband objected to the request which the wife had made for a legal separation, the trial court was required by this section to dissolve the marriage rather than adjudge a legal separation. Smith v. Smith, 497 S.W.2d 418, 1973 Ky. LEXIS 323 ( Ky. 1973 ).

4.Dissolution.
5.— Irretrievably Broken.

If the trial court clearly erred by finding that the marriage was not irretrievably broken, then under CR 52.01 his findings may be set aside and if the evidence admits of but one conclusion, that is that the marriage is irretrievably broken, dissolution of the marriage must be granted. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

Where both parties testified that the marriage was irretrievably broken and the wife indicated that she wanted a legal separation, rather than dissolution, simply to give her financial security, the trial court’s finding that the marriage was not irretrievably broken was clearly erroneous and would be reversed and remanded with directions to dissolve the marriage. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

6.Jurisdiction.

Subsection (1)(d) of this section is neither a grant nor a withdrawal of jurisdiction, but merely requires the trial court to dispose of issues of custody, support, maintenance and property division, if it otherwise has jurisdiction to do so, when it enters a decree of dissolution of marriage. Hall v. Hall, 585 S.W.2d 384, 1979 Ky. LEXIS 272 ( Ky. 1979 ).

Ordinarily, actual residence in the state for the requisite statutory period is required before a dissolution action may be maintained; however, there is an exception to that rule when the divorcing parties’ absence from the state is temporary in nature. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

Where the parties left Kentucky so that husband could receive advanced training in oral surgery, but they used wife’s parents’ Kentucky address as their permanent address, registered and insured their car in Kentucky, kept Kentucky drivers’ licenses and indicated that they hoped to return to Kentucky, the evidence showed that, at the time the parties left, they only intended to be temporarily absent from this jurisdiction; therefore, the court’s finding that the 180-day residence requirement had been met was not erroneous. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

If the question of jurisdictional residence is raised in the lower court, the lower court’s determination that it has jurisdiction cannot be questioned if there is any evidence to show the necessary residence. Karahalios v. Karahalios, 848 S.W.2d 457, 1993 Ky. App. LEXIS 39 (Ky. Ct. App. 1993).

As it was undisputed that a former wife had lived in Kentucky for 180 days before she filed for divorce, even assuming that she fraudulently alleged her former husband had lived there for 180 days as well — an assumption that found no support in the record — the Kentucky Circuit Court had subject matter over the parties’ divorce action under KRS 403.140(1)(a). Jeffrey v. Jeffrey, 153 S.W.3d 849, 2004 Ky. App. LEXIS 91 (Ky. Ct. App. 2004).

Although she resided in St. Maarten for much of the marriage, at the time the husband filed his petition, there was absolutely no evidence that it was the wife’s intent to establish permanent residency in that country and abandon her Kentucky domicile; thus, the Family Court had subject matter jurisdiction and personal jurisdiction over the parties to grant the dissolution under KRS 403.140 . Fehr v. Fehr, 284 S.W.3d 149, 2008 Ky. App. LEXIS 306 (Ky. Ct. App. 2008).

Trial court properly exercised jurisdiction over the parties’ divorce proceedings despite the fact that they had been absent from the state because the parties left Kentucky for the husband to receive advanced training in oral surgery but they planned to return, used a Kentucky address as their permanent address, registered and insured their car in Kentucky, and kept Kentucky drivers’ licenses, thus, only being temporarily absent and permitting jurisdiction. Brockman v. Brockman, 2019 Ky. App. LEXIS 11 (Ky. Ct. App. Feb. 1, 2019), review denied, ordered not published, 2019 Ky. LEXIS 193 (Ky. June 5, 2019).

7.Marital Property.

The concept of “team or joint efforts” is not germane to the determination of whether property is marital or not; at most it may convert the increase in value of nonmarital property into marital property. Stallings v. Stallings, 606 S.W.2d 163, 1980 Ky. LEXIS 255 ( Ky. 1980 ).

Property acquired by a married person after an “actual” vis-a-vis “legal” separation is marital property. Stallings v. Stallings, 606 S.W.2d 163, 1980 Ky. LEXIS 255 ( Ky. 1980 ).

8.Residence.

Actual residence is that place in which a person abides. Tipton v. Tipton, 87 Ky. 243 , 8 S.W. 440, 10 Ky. L. Rptr. 252 , 1888 Ky. LEXIS 72 ( Ky. 1888 ).

Requirement of former section governing proof of divorce was that of an actual, rather than legal, residence. Tipton v. Tipton, 87 Ky. 243 , 8 S.W. 440, 10 Ky. L. Rptr. 252 , 1888 Ky. LEXIS 72 ( Ky. 1888 ) (decided under prior law).

Actual residence, as opposed to legal residence or domicile, is necessary to give the court jurisdiction of divorce suit. Lanham v. Lanham, 300 Ky. 237 , 188 S.W.2d 439, 1945 Ky. LEXIS 529 ( Ky. 1945 ) (decided under prior law).

Cited:

Shepherd v. Mann, 490 S.W.2d 760, 1973 Ky. LEXIS 646 ( Ky. 1973 ); Bell v. Bell, 494 S.W.2d 517, 1973 Ky. LEXIS 446 ( Ky. 1973 ); Purdom v. Purdom, 498 S.W.2d 131, 1973 Ky. LEXIS 287 (Ky. 1973); Hummeldorf v. Hummeldorf, 616 S.W.2d 794, 1981 Ky. App. LEXIS 242 (Ky. Ct. App. 1981); In re Air Crash Disaster at Gander, 660 F. Supp. 1202, 1987 U.S. Dist. LEXIS 4398 (W.D. Ky. 1987 ); Kirilenko v. Kirilenko, 505 S.W.3d 766, 2016 Ky. LEXIS 562 ( Ky. 2016 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Graham, Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property Upon Divorce, 73 Ky. L.J. 41 (1984-85).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Northern Kentucky Law Forum.

Sheldon, From Commandments to Consent: Ohio in the Divorce Reform Era, 2 N. Ky. St. L.F. 119 (1974-75).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Decree of Dissolution of Marriage, Form 253.30.

Caldwell’s Kentucky Form Book, 5th Ed., Petition For Legal Separation, Form 253.04.

Petrilli, Kentucky Family Law, Annulment of Marriage, §§ 10.1, 10.6.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.1, 23.3, 23.18, 23.34.

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.23, 24.27.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), §§ 20.1, 20.3.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, §§ 21.4, 21.5.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Forms 2.1, 2.10, 2.11, 2.16, 2.18, 2.21.

403.150. Procedure — Commencement of action, pleadings, abolition of existing defenses.

  1. All proceedings under this chapter are commenced in the manner provided by the Rules of Civil Procedure.
  2. The verified petition in a proceeding for dissolution of marriage or legal separation shall allege the marriage is irretrievably broken and shall set forth:
    1. The age, occupation, Social Security number, and residence of each party, provided in accordance with KRS 403.135 , and his length of residence in this state. If domestic violence and abuse, as defined in KRS 403.720 , is alleged by either party, the party filing the petition shall certify the existence and status of any domestic violence protective orders. The party filing the petition and alleging the abuse may substitute the party’s attorney’s address as the address of the party and any minor children;
    2. The date of the marriage and the place at which it was registered;
    3. That the parties are separated and the date on which the parties separated;
    4. The names, ages, Social Security numbers, and addresses, provided in accordance with KRS 403.135 , of any living infant children of the marriage, and whether the wife is pregnant;
    5. Any arrangements as to custody, visitation, and support of the children and the maintenance of a spouse; and
    6. The relief sought.
  3. Either or both parties to the marriage may initiate the proceeding.
  4. If a proceeding is commenced by one (1) of the parties, the other party must be served in the manner provided by the Rules of Civil Procedure and may file a verified response.
  5. Previously existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are abolished.
  6. The court may join additional parties proper for the exercise of its authority to implement this chapter.
  7. When the wife is pregnant at the time the petition is filed, the court may continue the case until the pregnancy is terminated.

History. Enact. Acts 1972, ch. 182, § 5; 1992, ch. 169, § 1, effective July 14, 1992; 1998, ch. 255, § 17, effective July 15, 1998; 2006, ch. 126, § 2, effective July 12, 2006.

NOTES TO DECISIONS

1.Construction.

Although appellant husband, who had been adjudicated to be disabled and incompetent, contended that a disinterested guardian could bring a dissolution action on his behalf, the use of the words “either” or “both” in Ky. Rev. Stat. Ann. § 403.150(3) unambiguously indicated that only the actual parties to the marriage may commence a dissolution action. Riehle v. Riehle, 2015 Ky. App. LEXIS 148 (Ky. Ct. App. Oct. 30, 2015), aff'd, 504 S.W.3d 7, 2016 Ky. LEXIS 561 ( Ky. 2016 ).

2.Joinder of Parties.

Trial court was entitled to invoke KRS 403.150(6) and join two business entities as additional parties based upon the husband’s continued failure to abide by the trial court’s orders requiring him to pay child support, maintenance, and a property settlement, as well as the fact that one business was solely-owned by the husband and the second business was owned jointly by the husband and wife; it was not a case where innocent third-party shareholders would be harmed. Medical Vision Group, P.S.C. v. Philpot, 261 S.W.3d 485, 2008 Ky. LEXIS 186 ( Ky. 2008 ).

Family court did not abuse its discretion in denying the joinder motion filed by the husband’s parents to collect a debt jointly owed by the husband and wife because the proper action to take to collect the debt would be for the husband or parents to obtain a common law judgment or attempt to collect the debt through a separate lawsuit. Fortwengler v. Fortwengler, 2012 Ky. App. LEXIS 295 (Ky. Ct. App. Dec. 21, 2012), review denied, ordered not published, 2013 Ky. LEXIS 671 (Ky. Dec. 11, 2013).

Cited:

Oliver v. Yates, 555 S.W.2d 263, 1977 Ky. LEXIS 504 ( Ky. 1977 ); Mathews v. Mathews, 731 S.W.2d 832, 1987 Ky. App. LEXIS 501 (Ky. Ct. App. 1987); Stone v. Dubarry, 513 S.W.3d 325, 2016 Ky. LEXIS 557 ( Ky. 2016 ).

Opinions of Attorney General.

A civil summons is unnecessary in a divorce case when the suit is filed as a joint petition and the husband and wife sign an agreement and waiver. OAG 75-574 .

Where the husband has been in prison for two and one-half years without physical access to his wife and where the wife was pregnant on the filing of the divorce petition the court should continue the action and not terminate it as provided by subsection (7) of this section since the wife anticipated having a baby of a man extrinsic to the subject marital relationship while the husband is in prison goes a long way toward establishing the “irretrievable breakdown” proposition provided for in KRS 403.170 and since KRS 406.011 permits the court to make a determination of whether the evidence shows that the marital relationship between the husband and wife ceased at least 10 months prior to the medically expected birth of the child. OAG 76-465 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Dissolution of Marriage, Form 253.06.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Verification, § 33.00.

Caldwell’s Kentucky Form Book, 5th Ed., Response, Form 253.12.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.3, 23.5, 23.9, 23.18, 23.25.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.4.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.1.

Petrilli, Kentucky Family Law, Legal Defenses to Dissolution Action, § 22.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Forms 2.1, 2.2, 2.3, 2.5, 2.6, 2.11, 2.12.

403.160. Temporary orders — Maintenance, child support, injunction — Disclosure of information on domestic violence or child abuse.

  1. In a proceeding for dissolution of marriage or for legal separation, or in a proceeding for disposition of property or for maintenance or support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, either party may move for temporary maintenance. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.
    1. In a proceeding for dissolution of marriage, legal separation, or child support, either party, with notice to the opposing party, may move for temporary child support. The motion shall be accompanied by an affidavit setting forth the number of children of the marriage and the information required to calculate the combined adjusted parental gross income set forth in KRS 403.212(2)(h), and the Social Security numbers, provided in accordance with KRS 403.135 , of all parties subject to the motion. The court shall, within fourteen (14) days from the filing of said motion, order an amount of temporary child support based upon the child support guidelines as provided by law, and the ordered child support shall be retroactive to the date of the filing of the motion unless otherwise ordered by the court. (2) (a) In a proceeding for dissolution of marriage, legal separation, or child support, either party, with notice to the opposing party, may move for temporary child support. The motion shall be accompanied by an affidavit setting forth the number of children of the marriage and the information required to calculate the combined adjusted parental gross income set forth in KRS 403.212(2)(h), and the Social Security numbers, provided in accordance with KRS 403.135 , of all parties subject to the motion. The court shall, within fourteen (14) days from the filing of said motion, order an amount of temporary child support based upon the child support guidelines as provided by law, and the ordered child support shall be retroactive to the date of the filing of the motion unless otherwise ordered by the court.
    2. Upon a showing of good cause, either party may move the court to enter an order for temporary child support without written or oral notice to the adverse party. After reviewing the affidavit required by paragraph (a) of this subsection, the court may issue a temporary child support order based upon the child support guidelines. The order shall provide that the order becomes effective seven (7) days following service of the order and movant’s affidavit upon the adverse party unless the adverse party, within the seven (7) day period, files a motion for a hearing before the court. The motion for hearing shall be accompanied by the affidavit required by paragraph (a) of this subsection. Pending the hearing, the adverse party shall pay child support in an amount based upon the guidelines and the adverse party’s affidavit. The child support order entered following the hearing shall be retroactive to the date of the filing of the motion for temporary support unless otherwise ordered by the court.
  2. As part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the court to issue a temporary injunction or restraining order pursuant to the Rules of Civil Procedure.
  3. If the court or agent of the court is made aware that there is reasonable evidence of domestic violence or child abuse, the court shall determine whether disclosure to any other person of the information could be harmful to the parent or child, and if the court determines that disclosure to any person could be harmful, the court and its agents shall not make the disclosure.
  4. On the basis of the showing made and in conformity with KRS 403.200 , the court may issue a temporary injunction or restraining order and an order for temporary maintenance in amounts and on terms just and proper in the circumstances.
  5. A temporary order or temporary injunction:
    1. Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;
    2. May be revoked or modified before final decree on a showing of the facts necessary to revocation or modification under the circumstances; and
    3. Terminates when the final decree is entered or when the petition for dissolution or legal separation is voluntarily dismissed.

History. Enact. Acts 1972, ch. 182, § 6; 1990, ch. 418, § 7, effective July 13, 1990; 1994, ch. 330, § 9, effective July 15, 1994; 1996, ch. 365, § 5, effective July 15, 1996; 1998, ch. 255, § 18, effective July 15, 1998; 2000, ch. 430, § 15, effective July 14, 2000; 2006, ch. 126, § 3, effective July 12, 2006; 2021 ch. 47, § 6, effective June 29, 2021.

Legislative Research Commission Notes.

(7/14/2000). Although House Committee Amendment 1 (adopted by the House of Representatives and concurred in by the Senate) to the General Assembly version of Senate Bill 218 eliminated a new paragraph (c) in KRS 403.212(2) that had required a conforming amendment to this statute to change a cross-reference from “KRS 403.212(2)(g)” to “KRS 403.212(2)(h)” in subsection (2)(a) of this statute, the conforming amendment was not corrected in the floor amendment. Because of this omission and because of the context of the cross-reference, the change in subsection (2)(a) of this statute constitutes a manifest clerical or typographical error and has not been included in codification. See KRS 7.136(1)(h).

NOTES TO DECISIONS

1.Procedure.

A decree of dissolution of the marriage could be entered prior to the determination of maintenance. Putnam v. Fanning, 495 S.W.2d 175, 1973 Ky. LEXIS 391 ( Ky. 1973 ).

2.Temporary Maintenance.

Where a husband made monthly payments to the wife that were more than the husband was ordered to pay for temporary maintenance, it was error to find that the husband owed a maintenance arrearage. There was no statutory requirement that temporary maintenance be paid out of non-marital property and the husband used a portion of what was later determined to be the wife’s share of monthly consulting payments to satisfy the husband’s temporary maintenance obligation to the wife. Horvath v. Horvath, 250 S.W.3d 316, 2008 Ky. LEXIS 103 ( Ky. 2008 ).

3.Discretion of Court.

The award of temporary alimony is within the sound discretion of the court. Kelly v. Kelly, 179 Ky. 586 , 200 S.W. 925, 1918 Ky. LEXIS 243 ( Ky. 1918 ) (decided under prior law). See Campbell v. Campbell, 50 S.W. 849, 21 Ky. L. Rptr. 19 (1899); Wills v. Wills, 168 Ky. 35 , 181 S.W. 619, 1916 Ky. LEXIS 497 ( Ky. 1916 ); Blackburn v. Blackburn, 198 Ky. 12 , 247 S.W. 1111, 1923 Ky. LEXIS 370 ( Ky. 1923 ) (decided under prior law).

The allowance of alimony pendente lite, or pending appeal, is within the sound discretion of the court and therefore cannot be controlled by writ of mandamus. Cadden v. Smith, 264 S.W.2d 71, 1954 Ky. LEXIS 648 ( Ky. 1954 ), overruled, Penrod v. Penrod, 489 S.W.2d 524, 1972 Ky. LEXIS 33 ( Ky. 1972 ), overruled in part, Penrod v. Penrod, 489 S.W.2d 524, 1972 Ky. LEXIS 33 ( Ky. 1972 ) decided under prior law, overruled on other grounds, Penrod v. Penrod, 489 S.W.2d 524, 1972 Ky. LEXIS 33 (Ky. 1972) (decided under prior law).

4.Factors Considered.

Considerations involved in setting an amount of temporary alimony include the husband’s income, estate, and earning capacity, the wife’s age, health, dependence and station in life, the custody of the children and the reasons for which the suit for alimony was brought. Kelly v. Kelly, 179 Ky. 586 , 200 S.W. 925, 1918 Ky. LEXIS 243 ( Ky. 1918 ) (decided under prior law).

In fixing the amount of the allowance to the wife pending divorce, many elements must be considered by the court, such as the financial condition of the respective parties and the wife’s age, health, and station in life. Brandenburg v. Brandenburg, 246 Ky. 546 , 55 S.W.2d 351, 1932 Ky. LEXIS 786 ( Ky. 1932 ) (decided under prior law).

Standard by which temporary alimony is to be fixed is the husband’s ability and the wife’s necessities measured by the social position in which her marriage placed her. Ahrens v. Ahrens, 299 Ky. 497 , 185 S.W.2d 694, 1945 Ky. LEXIS 441 ( Ky. 1945 ) (decided under prior law).

5.Award Denied.

Where, after the wife was denied a divorce, she left the husband and their children without justification and the husband was anxious for her to return, she was not entitled to alimony or maintenance during pendency of her appeal. Singleton v. Singleton, 302 S.W.2d 121, 1957 Ky. LEXIS 177 ( Ky. 1957 ) (decided under prior law).

6.Award Proper.

Evidence that wife was under indictment for attempt to kill husband established no abuse of discretion in allowance of maintenance pendente lite to wife. Coffee v. Coffee, 247 S.W.2d 501, 1952 Ky. LEXIS 705 ( Ky. 1952 ) (decided under prior law).

7.Credit Against Permanent Award.

Where the chancellor considered the amounts paid as alimony pendente lite in setting the amount of permanent alimony, the husband had no right to credit the amounts so paid against permanent alimony awarded. Hicks v. Hicks, 290 S.W.2d 483, 1956 Ky. LEXIS 325 ( Ky. 1956 ) (decided under prior law).

8.Credit Against Temporary Award.

Trial court did not err in allowing husband credit on arrears of temporary alimony for sums paid to wife by federal government while he was in service. Reid v. Reid, 306 Ky. 305 , 207 S.W.2d 16, 1947 Ky. LEXIS 1006 ( Ky. 1947 ) (decided under prior law).

9.Enforcement.

It was improper to issue an execution on an order directing husband to pay to wife a sum representing temporary alimony in arrears where such order was entered on wife’s motion and no notice was given husband. Reid v. Reid, 306 Ky. 305 , 207 S.W.2d 16, 1947 Ky. LEXIS 1006 ( Ky. 1947 ) (decided under prior law).

10Appealability.

An allowance for maintenance pending an action for divorce does not constitute a final or appealable judgment under CR 54.01. Lebus v. Lebus, 382 S.W.2d 873, 1964 Ky. LEXIS 367 ( Ky. 1964 ) (decided under prior law).

An order denying the allowance of temporary maintenance and support in a divorce proceeding was interlocutory and not appealable. Cannon v. Cannon, 434 S.W.2d 48, 1968 Ky. LEXIS 226 ( Ky. 1968 ) (decided under prior law).

Opinions of Attorney General.

In order to obtain a temporary restraining order the provisions of CR 65.05 must be complied with and such an order may no longer be issued against a husband on an injunction bond without surety. OAG 72-510 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit in Support of Motion for Temporary Child Support, Form 263.04.

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Temporary Child Support, Form 263.03.

Caldwell’s Kentucky Form Book, 5th Ed., Order of Temporary Child Support, Form 263.13.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Child Support, § 263.00.

Caldwell’s Kentucky Form Book, 5th Ed., Restraining Order, Form 253.51.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.23, 23.25, 23.37.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.1, 25.3, 25.4, 25.9, 25.30.

Petrilli, Kentucky Family Law, Property Rights, § 14.3.

Petrilli, Kentucky Family Law, Separation Agreements, § 19.9.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.1.

Petrilli, Kentucky Family Law, Support of the Family, §§ 16.3, 16.8.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.14.

403.160. Temporary orders — Maintenance, child support, injunction — Disclosure of information on domestic violence or child abuse.

  1. In a proceeding for dissolution of marriage or for legal separation, or in a proceeding for disposition of property or for maintenance or support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, either party may move for temporary maintenance. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.
    1. In a proceeding for dissolution of marriage, legal separation, or child support, either party, with notice to the opposing party, may move for temporary child support. The motion shall be accompanied by an affidavit setting forth the number of children of the marriage and the information required to calculate the combined adjusted parental gross income set forth in KRS 403.212 , and the Social Security numbers, provided in accordance with KRS 403.135 , of all parties subject to the motion. The court shall, within fourteen (14) days from the filing of said motion, order an amount of temporary child support based upon the child support guidelines as provided by law, and the ordered child support shall be retroactive to the date of the filing of the motion unless otherwise ordered by the court. (2) (a) In a proceeding for dissolution of marriage, legal separation, or child support, either party, with notice to the opposing party, may move for temporary child support. The motion shall be accompanied by an affidavit setting forth the number of children of the marriage and the information required to calculate the combined adjusted parental gross income set forth in KRS 403.212 , and the Social Security numbers, provided in accordance with KRS 403.135 , of all parties subject to the motion. The court shall, within fourteen (14) days from the filing of said motion, order an amount of temporary child support based upon the child support guidelines as provided by law, and the ordered child support shall be retroactive to the date of the filing of the motion unless otherwise ordered by the court.
    2. Upon a showing of good cause, either party may move the court to enter an order for temporary child support without written or oral notice to the adverse party. After reviewing the affidavit required by paragraph (a) of this subsection, the court may issue a temporary child support order based upon the child support guidelines. The order shall provide that the order becomes effective seven (7) days following service of the order and movant’s affidavit upon the adverse party unless the adverse party, within the seven (7) day period, files a motion for a hearing before the court. The motion for hearing shall be accompanied by the affidavit required by paragraph (a) of this subsection. Pending the hearing, the adverse party shall pay child support in an amount based upon the guidelines and the adverse party’s affidavit. The child support order entered following the hearing shall be retroactive to the date of the filing of the motion for temporary support unless otherwise ordered by the court.
  2. As part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the court to issue a temporary injunction or restraining order pursuant to the Rules of Civil Procedure.
  3. If the court or agent of the court is made aware that there is reasonable evidence of domestic violence or child abuse, the court shall determine whether disclosure to any other person of the information could be harmful to the parent or child, and if the court determines that disclosure to any person could be harmful, the court and its agents shall not make the disclosure.
  4. On the basis of the showing made and in conformity with KRS 403.200 , the court may issue a temporary injunction or restraining order and an order for temporary maintenance in amounts and on terms just and proper in the circumstances.
  5. A temporary order or temporary injunction:
    1. Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;
    2. May be revoked or modified before final decree on a showing of the facts necessary to revocation or modification under the circumstances; and
    3. Terminates when the final decree is entered or when the petition for dissolution or legal separation is voluntarily dismissed.

HISTORY: Enact. Acts 1972, ch. 182, § 6; 1990, ch. 418, § 7, effective July 13, 1990; 1994, ch. 330, § 9, effective July 15, 1994; 1996, ch. 365, § 5, effective July 15, 1996; 1998, ch. 255, § 18, effective July 15, 1998; 2000, ch. 430, § 15, effective July 14, 2000; 2006, ch. 126, § 3, effective July 12, 2006; 2021 ch. 47, § 6, effective June 29, 2021; 2022 ch. 122, § 5.

403.170. Marriage — Irretrievable breakdown.

  1. If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after hearing, shall make a finding whether the marriage is irretrievably broken. No decree shall be entered until the parties have lived apart for 60 days. Living apart shall include living under the same roof without sexual cohabitation. The court may order a conciliation conference as a part of the hearing.
  2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of reconciliation, and shall:
    1. Make a finding whether the marriage is irretrievably broken; or
    2. Continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon thereafter as the matter may be reached on the court’s calendar, and may suggest to the parties that they seek counseling.

      The court, at the request of either party shall, or on its own motion may, order a conciliation conference. At the adjourned hearing the court shall make a finding whether the marriage is irretrievably broken.

  3. A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.

History. Enact. Acts 1972, ch. 182, § 7; 1978, ch. 236, § 2, effective June 17, 1978.

NOTES TO DECISIONS

1.Conciliation Conference.

Since the only instance in which a conciliation conference is made mandatory occurs under subsection (2)(b) of this section, which is stated as part of an alternative procedure to subsection (2)(a) under which the court may instead find that the marriage is irretrievably broken, court could properly find that the provisions of this section do not apply without granting party’s motion, supported by affidavit to the effect that the marriage is not irretrievably broken, for a conciliation conference. Putnam v. Fanning, 495 S.W.2d 175, 1973 Ky. LEXIS 391 ( Ky. 1973 ).

2.Findings of Court.

The determination of whether a marriage is irretrievably broken or not is a judicial function based upon the evidence in the case. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

3.— Evidence.

If the trial court clearly erred by finding that the marriage was not irretrievably broken, then under CR 52.01 his findings may be set aside and if the evidence admits of but one conclusion, that is that the marriage is irretrievably broken, dissolution of the marriage must be granted. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

Where both parties testified that the marriage was irretrievably broken and the wife indicated that she wanted a legal separation, rather than dissolution, simply to give her financial security, the trial court’s finding that the marriage was not irretrievably broken was clearly erroneous and would be reversed and remanded with directions to dissolve the marriage. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

On the testimony of one party that a marriage is irretrievably broken, a finding by the trial court to that effect is not clearly erroneous. Goldman v. Eichenholz, 851 S.W.2d 463, 1993 Ky. LEXIS 22 ( Ky. 1993 ), dismissed, 2002 Ky. App. LEXIS 680 (Ky. Ct. App. Mar. 22, 2002).

4.Final Judgment.
5.— Mandamus.

Mandamus is not available to attack a final judgment dissolving a marriage where direct appeal is proscribed by statute. Goldman v. Eichenholz, 851 S.W.2d 463, 1993 Ky. LEXIS 22 ( Ky. 1993 ), dismissed, 2002 Ky. App. LEXIS 680 (Ky. Ct. App. Mar. 22, 2002).

Opinions of Attorney General.

Where the husband has been in prison for two and one-half years without physical access to his wife and where the wife was pregnant on the filing of the divorce petition, the court should continue the action and not terminate it as provided by subsection (7) of KRS 403.150 since the wife anticipated having a baby of a man extrinsic to the subject marital relationship while the husband is in prison goes a long way toward establishing the “irretrievable breakdown” proposition provided for in this section and since KRS 406.011 permits the court to make a determination of whether the evidence shows that the marital relationship between the husband and wife ceased at least 10 months prior to the medically expected birth of the child. OAG 76-465 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Northern Kentucky Law Review.

Kruer and Goetz, Common Sense Is No Longer a Stranger In The House of Kentucky Insurance Law, 21 N. Ky. L. Rev. 377 (1994).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Decree of Dissolution of Marriage, Form 253.30.

Caldwell’s Kentucky Form Book, 5th Ed., Findings of Fact and Conclusions of Law — No Settlement Agreement, Form 253.27.

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Conciliation Conference, Form 253.13.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Dissolution of Marriage, Form 253.06.

Caldwell’s Kentucky Form Book, 5th Ed., Petition For Legal Separation, Form 253.04.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Caldwell’s Kentucky Form Book, 5th Ed., Response, Form 253.12.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.3, 23.19, 23.24, 23.25, 23.33, 23.35, 23.37.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.6.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, §§ 21.1, 21.4.

Petrilli, Kentucky Family Law, Legal Defenses to Dissolution Action, § 22.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.9, Form 2.16, Form 2.17.

403.180. Separation agreement — Court may find unconscionable.

  1. To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for maintenance of either of them, disposition of any property owned by either of them, and custody, support and visitation of their children.
  2. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
  3. If the court finds the separation agreement unconscionable, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property, support, and maintenance.
  4. If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:
    1. Unless the separation agreement provides to the contrary, its terms shall be set forth verbatim or incorporated by reference in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or
    2. If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and state that the court has found the terms not unconscionable.
  5. Terms of the agreement set forth in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.
  6. Except for terms concerning the support, custody, or visitation of children, the decree may expressly preclude or limit modification of terms if the separation agreement so provides. Otherwise, terms of a separation agreement are automatically modified by modification of the decree.

History. Enact. Acts 1972, ch. 182, § 8.

NOTES TO DECISIONS

1.Purpose.

Under this statute the law has established a measure of protection for parties from their own irresponsible agreements. Shraberg v. Shraberg, 939 S.W.2d 330, 1997 Ky. LEXIS 42 ( Ky. 1997 ).

2.Modification.

Since the provisions for modification of separation agreements would not be valid to the extent of impairing vested contractual rights, a wife’s contractual right to maintenance could not be impaired by court modification where the right to alimony had vested in her as a result of alimony provisions attendant to the property settlement incorporated in a 1968 divorce decree. Scott v. Scott, 529 S.W.2d 656, 1975 Ky. LEXIS 60 ( Ky. 1975 ).

Trial court was clearly erroneous in reducing a husband’s maintenance obligation by the amount of the wife’s Social Security benefits as 53 percent of the wife’s benefits were attributable to her earnings; as the maintenance obligation was established in 1979, the pre-1972 modification rules were applicable, and whether the maintenance obligation was subject to modification depended on application of KRS 403.180 and KRS 403.250 . Wheeler v. Wheeler, 154 S.W.3d 291, 2004 Ky. App. LEXIS 84 (Ky. Ct. App. 2004).

In light of the conflicting testimony of the parties where both parents alleged that they had custody of the minor daughter more than 50% of the time, it would not have been an abuse of discretion for the family court to modify the agreement of the parties and to recalculate child support without reference to the split custody arrangement the parties originally envisioned in the original dissolution decree. Johnson v. Johnson, 232 S.W.3d 571, 2007 Ky. App. LEXIS 303 (Ky. Ct. App. 2007).

Changed circumstances rendering the terms of a maintenance award unconscionable is the only ground upon which a court has authority to modify any maintenance award; however, the clear language of Ky. Rev. Stat. Ann. § 403.250(1) prohibits a court from invoking this limited authority when the parties have a separation agreement pursuant to Ky. Rev. Stat. Ann. § 403.180(6) that expressly precluded subsequent modification of the terms of their separation agreement. Jaburg v. Jaburg, 558 S.W.3d 11, 2018 Ky. App. LEXIS 227 (Ky. Ct. App. 2018).

Family court did not have the authority to modify a husband’s maintenance obligations under a marital settlement agreement because its finding that it could modify the settlement agreement due to changed circumstances despite the presence of non-modification clauses was erroneous. Jaburg v. Jaburg, 558 S.W.3d 11, 2018 Ky. App. LEXIS 227 (Ky. Ct. App. 2018).

Decision to deny the husband’s motion to modify maintenance was not an abuse of discretion; the maintenance amount set in the separation agreement was a bargained-for exchange as the wife, who was disabled, waived her claim to the husband’s retirement accounts, and while he had some unemployment, he failed to show that his circumstances was anything other than temporary, not substantial and continuing, and he voluntarily created his exorbitant monthly expenses. His accumulation of debt was not directly related to his change in jobs. Andrews v. Andrews, 611 S.W.3d 271, 2020 Ky. App. LEXIS 82 (Ky. Ct. App. 2020).

3.Unconscionable.

While the use of the specific word “unconscionable” by the trial court would be preferable, this is not required by subsection (2) of this section. Jackson v. Jackson, 571 S.W.2d 90, 1978 Ky. App. LEXIS 583 (Ky. Ct. App. 1978).

Unconscionability may be defined as “manifestly unfair and inequitable.” Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Divorce litigation, whether terminated by judgment or agreement, is opened to subsequent modification if the party seeking modification can prove the terms of the judgment or agreement are unconscionable, and although subdivision (4)(b) of this section contains an exception to this principle, the purpose of this section is to expand rather than to limit the parties’ ability to settle. Brown v. Brown, 796 S.W.2d 5, 1990 Ky. LEXIS 87 ( Ky. 1990 ).

Separation agreement was unconscionable under this section where wife, without counsel, waived any right to real property, household items, child support, further notice of proceedings, two pick-up trucks, and wife was responsible for an $800 debt, even though wife received one car and custody of child and husband’s total income during six years amounted to $4,689.70, a figure apparently self-imposed. Burke v. Sexton, 814 S.W.2d 290, 1991 Ky. App. LEXIS 92 (Ky. Ct. App. 1991).

Separation agreement was unconscionable where husband pledged himself to pay over $160,000 per year in total support, while his pre-tax income was $200,000. Shraberg v. Shraberg, 939 S.W.2d 330, 1997 Ky. LEXIS 42 ( Ky. 1997 ).

After deciding that separation agreement was unconscionable, trial court could elect to decide case as though no agreement existed, and not effectuate it to the greatest extent possible. Shraberg v. Shraberg, 939 S.W.2d 330, 1997 Ky. LEXIS 42 ( Ky. 1997 ).

Separation agreement where by husband who had a pre-tax income of about $200,000 annually, obligated himself to pay in excess of $160,000 annually for the support of his children and former wife was unconscionable. Shraberg v. Shraberg, 939 S.W.2d 330, 1997 Ky. LEXIS 42 ( Ky. 1997 ).

Since the final decree of dissolution of marriage incorporated the separation agreement, the agreement was found by the trial court that entered the dissolution decree not to have been unconscionable, such that any modification was impermissible absent a showing of a change in circumstances; accordingly, a Family Court should not have applied principles of equity in interpreting and enforcing the agreement, but rather, the agreement should have been enforced as if it was a contract pursuant to KRS 403.180(2) and (5). Bailey v. Bailey, 231 S.W.3d 793, 2007 Ky. App. LEXIS 281 (Ky. Ct. App. 2007).

4.Reconciliation Agreements.

This section neither addresses itself to nor affects or prohibits reconciliation agreements. Whalen v. Whalen, 581 S.W.2d 578, 1979 Ky. App. LEXIS 407 (Ky. Ct. App. 1979).

5.Settlement Agreement.

A settlement agreement should be annulled after a true reconciliation of the parties. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Where the husband sought divorce, both parties were of age and had been married 10 years, and the husband had read and signed the separation agreement, the court was not clearly erroneous in approving such an agreement despite the fact that it called for payment of $700 of husband’s $934 net income to the wife, an amount that would have been reversed as an abuse of discretion if ordered by the court. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Trial court erred in awarding both income tax dependency exemptions to the mother, as the parties, pursuant to the divorce, included a non-modification provision in their property settlement agreement pursuant to KRS 403.180(6); thus, the trial court erred in modifying the settlement by awarding the mother both exemptions. Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

Although the couple drafted a document memorializing their property agreement during a prior separation, since neither party signed the document, the document could not serve as a valid, enforceable property settlement agreement creating two (2) non-marital estates. Heskett v. Heskett, 245 S.W.3d 222, 2008 Ky. App. LEXIS 3 (Ky. Ct. App. 2008).

Under KRS 403.180(2), the parties entered into a valid separation agreement; the wife did not appeal from either the final decree or the Qualified Domestic Relations Order, and was not permitted to do so via a motion to modify. Willis v. Willis, 362 S.W.3d 372, 2012 Ky. App. LEXIS 47 (Ky. Ct. App. 2012).

Former wife did not waive beneficiary rights to her former husband’s individual retirement account (IRA) in a property settlement agreement because it remained silent as to the beneficial interest of the IRA; the property settlement was regarded as an enforceable contract. Moreover, the language contained in the agreement did not refer to the beneficiary designation on the IRA, and the husband, as the owner of the IRA, had the authority to designate the beneficiary. Sadler v. Van Buskirk, 2013 Ky. App. LEXIS 159 (Ky. Ct. App. Nov. 22, 2013).

Husband and wife can enter into a valid postnuptial contract wherein each relinquishes his or her respective interest in the property of the other, if such an agreement is fair and equitable, and supported by an adequate consideration; contracts disposing of property, which are executed in contemplation of dissolution of marriage, do not constitute an exception to this general rule, and the enactment of the statute fortifies this decision. Davis v. Davis, 489 S.W.3d 225, 2016 Ky. LEXIS 9 ( Ky. 2016 ).

6.—Enforcement.

Where the settlement agreement in a marital dissolution action provided that the wife would assume the mortgage and the credit card debt, the husband agreed to assume all other debt; both parties were represented by counsel. The trial court acted within its jurisdiction in granting the wife’s post-judgment motion to transfer a margin loan account to the husband’s name in accordance with the terms of the agreement; the wife failed to allege a change of circumstances that rendered the agreement unconscionable under KRS 403.180(4). Money v. Money, 297 S.W.3d 69, 2009 Ky. App. LEXIS 196 (Ky. Ct. App. 2009).

Decedent's ex-spouse, despite being the designated beneficiary of the decedent's Individual Retirement Account (IRA), had no interest in the IRA because the provisions of the property settlement agreement between the decedent and the ex-spouse clearly and unambiguously assigned the full and exclusive ownership interest of the IRA to the decedent and correspondingly prohibited the ex-spouse from asserting any interest in the IRA that was owned by the decedent. Sadler v. Van Buskirk, 478 S.W.3d 379, 2015 Ky. LEXIS 2009 ( Ky. 2015 ).

Requirements of one section were not satisfied, and thus the agreement could not be enforced as a judgment by the family court. Davis v. Davis, 489 S.W.3d 225, 2016 Ky. LEXIS 9 ( Ky. 2016 ).

Statute does not automatically void settlement agreements which are improperly referenced or are not incorporated into the final decree of dissolution, nor does such a failure to comply with the statute render a prior or contemporaneous property settlement agreement unenforceable; the statute does not automatically foreclose post-decree dispositions or independent enforcement of property agreements not incorporated or referenced in the decree. Davis v. Davis, 489 S.W.3d 225, 2016 Ky. LEXIS 9 ( Ky. 2016 ).

Settlement agreement involving property division that was not incorporated or referenced in the final decree of dissolution may be enforced through an independent contract action, but this holding does not apply to agreements executed prior to or contemporaneously with an agreement that has been duly incorporated or referenced in a dissolution decree, nor does the holding apply to settlement agreements that are made in anticipation of dissolution of marriage but where the divorce is never consummated; the divorce was finalized by the dissolution decree and the agreement was not incorporated, and the ex-wife could bring her contract claim. Davis v. Davis, 489 S.W.3d 225, 2016 Ky. LEXIS 9 ( Ky. 2016 ).

Circuit court did not err in denying a wife's motion to compel the sale of the marital home where it properly interpreted the couple's settlement agreement to require the husband to list the property if he was unable to refinance, that requirement was not tied to the husband's ability to refinance in 90 days, the husband had eventually refinanced and paid the wife in full once an unknown lien was satisfied, and the wife had accepted the payment. Miranda v. Miranda, 536 S.W.3d 196, 2017 Ky. App. LEXIS 552 (Ky. Ct. App. 2017).

7.— Survival.

Where a husband and wife were married nine years, separated, were reconciled, separated again in March, 1978, executed a settlement agreement April 7, 1978, and where the husband and wife then resumed cohabitation from August 21, 1978, to September 14, 1978, the trial court’s decision that the agreement survived cannot be said to be clearly erroneous, whether this case is viewed as one in which only one party intended to reconcile or one where the parties intended reconciliation not to annul their agreement. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

8.— Burden of Proof.

Given the nature of the no-fault divorce statute, coupled with the desirability of imparting some degree of finality to settlement agreements, a party challenging an agreement as unconscionable should have a relatively high burden of proof, and since the trial court is in the best position to judge the circumstances surrounding a separation agreement, its finding on the issue of conscionability should not be set aside on appeal unless there is some evidence of fraud, undue influence, overreaching, or evidence of a change of circumstances since the execution of the original agreement. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

The party challenging a separation agreement as unconscionable has the burden of proof. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Separation agreement that granted a wife one-half of the husband’s non-marital property was enforceable under KRS 403.180(2) because it was not unconscionable. The burden of proof in challenging the agreement was on the husband because it was prepared by his attorney and the wife signed it without benefit of counsel, and he failed to demonstrate that it was the result of fraud, undue influence, or overreaching. Cameron v. Cameron, 265 S.W.3d 797, 2008 Ky. LEXIS 206 ( Ky. 2008 ).

9.— Setting Aside.

A separation agreement could be set aside on the basis of fraud, undue influence, or overreaching, but could not be held unconscionable solely on the basis that it is a bad bargain. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

An oral promise made by wife was not sufficient to defeat her right to share in the marital assets since any oral promise made before the marriage would not be enforceable for failure to comply with the statute of frauds while any settlement agreement after the marriage attempting to dispose of the marital property must be, according to this section, in writing and signed by the parties to be effective. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

Where the terms of a separation agreement executed by a husband and wife in anticipation of the dissolution of their marriage were not unconscionable, and the decree of dissolution incorporated the contract which contained a clause making the maintenance provision nonreviewable and final, the agreement did not become inequitable and would not be set aside merely because the wife entered into an unmarried cohabitation with another man particularly since the evidence indicated that their relationship was more like a roommate situation with each individual paying his or her own way. Lydic v. Lydic, 664 S.W.2d 941, 1983 Ky. App. LEXIS 347 (Ky. Ct. App. 1983).

Family court committed reversible error in adopting a mediated agreement into the decree dissolving the parties’ marriage because the wife’s attorney improperly left the wife during the mediation and the mediator impermissibly interfered in the negotiating process by continuing the mediation without the wife’s counsel being present and by dispensing of legal advice to the wife regarding the value of a tax exemption. Baas v. Baas, 2018 Ky. App. LEXIS 119 (Ky. Ct. App. Apr. 13, 2018), op. withdrawn, 2018 Ky. App. LEXIS 301 (Ky. Ct. App. Apr. 17, 2018), sub. op., 2018 Ky. App. LEXIS 275 (Ky. Ct. App. Nov. 30, 2018).

10.— Written.

The language of this section does not undertake to describe a permissible or acceptable form for written agreements; therefore, an oral agreement which is dictated to a court reporter at a scheduled deposition, subsequently transcribed, and then in its transcribed form made a part of the clerk’s record, satisfies the requirement of this section that property settlement agreements be “written.” Calloway v. Calloway, 707 S.W.2d 789, 1986 Ky. App. LEXIS 1109 (Ky. Ct. App. 1986).

The statute requires separation agreements to be in writing and signed by the parties and, therefore, an oral separation agreement is not valid. Bratcher v. Bratcher, 26 S.W.3d 797, 2000 Ky. App. LEXIS 88 (Ky. Ct. App. 2000).

11.— Breach.

The husband’s failure to comply with the first divorce decree was treated as a breach of a contract entitling the wife to the appropriate compensatory damages; therefore, the wife was entitled to the fair market value of the car owed her under the first divorce decree as of the date it was repossessed. Gray v. Gray, 745 S.W.2d 657, 1988 Ky. App. LEXIS 9 (Ky. Ct. App. 1988).

12.Economic Circumstances.
13.— Proof.

In an uncontested divorce, although the trial court could request proof of economic circumstances, this section does not require it to do so. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

14.Equitable Defenses Unavailable.

Since matters of maintenance and child support have the same effect as a money judgment for which KRS 413.090(1) has established a 15-year period in which an action on such judgment shall be brought, equitable defenses of laches or estoppel by acquiescence are not available to bar collection of maintenance and child support arrearages. Heisley v. Heisley, 676 S.W.2d 477, 1984 Ky. App. LEXIS 587 (Ky. Ct. App. 1984).

15.Disposition of Property.

With regard to the disposition of property, market value, investment and earning value, and net asset value are all legitimate considerations in the general case when evaluating a corporation or its stock, and the weight to be accorded each element depends on the circumstances of the individual case. Rupley v. Rupley, 776 S.W.2d 849, 1989 Ky. App. LEXIS 101 (Ky. Ct. App. 1989).

16.— Apportionment of Real Property.

The formula utilized in Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981), provides a useful, though not exclusive, tool in the pursuit of a just and equitable solution with regard to apportionment and the disposition of real property. Rupley v. Rupley, 776 S.W.2d 849, 1989 Ky. App. LEXIS 101 (Ky. Ct. App. 1989).

Recusal must be the rule in those situations where the judge’s knowledge about a case is obtained from a source other than the case record and may bear on the decision. Woods v. Commonwealth, 793 S.W.2d 809, 1990 Ky. LEXIS 67 ( Ky. 1990 ).

17.Expressed Finality.

Under this section — except for terms concerning the support, custody, or visitation of children — by expressly doing so, the parties may settle their affairs with a finality beyond the reach of the court’s continuing equitable jurisdiction elsewhere provided; where an agreement made no such express provision for finality, there was no such limitation on subsequent modification. Brown v. Brown, 796 S.W.2d 5, 1990 Ky. LEXIS 87 ( Ky. 1990 ).

18.Waiver of Statutory Requirement for Modification.

Parties to a separation agreement may waive a statutory requirement that the party moving for an increase in child support prove a material change in circumstances if it does not impair the rights of others, is not contrary to the public interest, and is expressly and voluntarily made. Giacalone v. Giacalone, 876 S.W.2d 616, 1994 Ky. App. LEXIS 17 (Ky. Ct. App. 1994).

19.Disregard of Former Agreement.

While the parties to a divorce are free to enter into a separation agreement to promote the settlement of the divorce, the court still retains control over child custody, support and visitation and is not bound by the parties’ agreement in these areas. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

20.Agreements Valid.

Contracts are valid between husband and wife, if made in contemplation of the continuance of a previous separation, or in contemplation of an immediate separation, where disagreements have taken place between the parties. Hendricks v. Hendricks, 4 Ky. L. Rptr. 724 (1883) (decided under prior law).

Separation agreements are upheld when untainted by fraud, undue influence or duress if the terms are fair, reasonable and equitable, considering the circumstances of the parties at the time they were made. Pegram v. Pegram, 310 Ky. 86 , 219 S.W.2d 772, 1949 Ky. LEXIS 836 ( Ky. 1949 ) (decided under prior law).

An agreement pursuant to a suit for divorce is not void unless there is some element of fraud or bad conduct present. Arnold v. Arnold's Ex'x, 314 Ky. 734 , 237 S.W.2d 58, 1951 Ky. LEXIS 744 ( Ky. 1951 ) (decided under prior law).

Where a married couple has already separated, an alimony or property settlement, if fair on its face, will be upheld in a subsequent divorce action. Gardner v. Gardner, 280 S.W.2d 198, 1955 Ky. LEXIS 146 ( Ky. 1955 ) (decided under prior law).

There is no legal prohibition against a husband and wife entering into a contract fixing their property rights in contemplation of an immediate separation. Gordon v. Gordon, 335 S.W.2d 561, 1960 Ky. LEXIS 269 ( Ky. 1960 ) (decided under prior law).

Family court did not abuse its discretion when it refused to set aside a separation agreement on the grounds of duress, fraud, and undue influence because the court concluded that the former husband, who actively negotiated the agreement, entered into the separation agreement of the husband's own free will and under no duress or threat of harm by the former wife. The amount of child support was not unconscionable because, while in excess of the guidelines, it was not shocking to the conscious or outside the husband's reasonable fiscal means. Mays v. Mays, 541 S.W.3d 516, 2018 Ky. App. LEXIS 87 (Ky. Ct. App. 2018).

20.5.Agreements Invalid.

Family court did not err in denying the motion to dismiss and in granting the domestic violence order (DVO) as the parties did not have a valid and enforceable agreement to resolve the DVO case because the agreement was presented to the family court by the wife’s attorney as a work in progress, not as a fait accompli; the exact terms of the agreement were never read into the record; the attorneys and parties were not present at the same time and the court had no opportunity to ask the parties if they agreed to the terms of the settlement; and the language used by the family court and the attorneys in reference to the agreement was replete with conditional and contingent terms. Waggoner v. Waggoner, 644 S.W.3d 548, 2022 Ky. App. LEXIS 43 (Ky. Ct. App. 2022).

21.Effect of Reconciliation.

Subsequent reconciliation and cohabitation put an end to deeds of separation insofar as they provided for living apart and to provisions of an executory nature. Hendricks v. Hendricks, 4 Ky. L. Rptr. 724 (1883) (decided under prior law).

Where intention of parties is to permanently settle their respective property rights, such agreement is binding even though parties are reconciled and, in subsequent divorce proceedings, court will not restore property so transferred. Hartley v. Hartley, 305 Ky. 350 , 203 S.W.2d 770, 1947 Ky. LEXIS 807 ( Ky. 1947 ) (decided under prior law).

Where the parties entered a separation agreement by which the husband agreed to pay back a loan from the wife, the wife was to receive all of the household furnishings, which she purchased with her own funds, and she agreed not to claim alimony and the parties subsequently resumed cohabitation for nearly a year, the effect of the cohabitation was to annul the provisions of the agreement for the consideration failed. Gardner v. Gardner, 280 S.W.2d 198, 1955 Ky. LEXIS 146 ( Ky. 1955 ) (decided under prior law).

Reconciliation and resumption of cohabitation will usually invalidate an agreed property settlement of the parties made in contemplation of separation, unless the terms of the agreement have been fully executed in which case the court will look to the intent of the parties to determine the effect of the agreement. Gordon v. Gordon, 335 S.W.2d 561, 1960 Ky. LEXIS 269 ( Ky. 1960 ) (decided under prior law).

22.Incorporation in Decree.

A voluntary property settlement of the parties should be incorporated in the divorce decree where there is no overreaching or unfairness in connection with it. Brumley v. Brumley, 247 S.W.2d 987, 1952 Ky. LEXIS 729 ( Ky. 1952 ) (decided under prior law).

23.Property Not Included.

Where a property settlement in contemplation of divorce provides that it is a complete settlement of the property rights between the parties, the rule of ejusdem generis is not applicable to exclude certain property not mentioned in the agreement from coverage by the agreement. Reese v. Greenlee, 308 Ky. 275 , 214 S.W.2d 262, 1948 Ky. LEXIS 909 ( Ky. 1948 ) (decided under prior law).

Where property settlement agreement, made in contemplation of divorce, set out in great detail disposition of various properties, provided that husband would not be required to pay alimony, attorney’s fees, court costs or other expenses, and stated that it represented a complete property settlement, the husband, following granting of divorce, was denied recovery of sum of money and jewelry, which was not mentioned in settlement agreement but which husband contended was obtained by wife by reason of and in consideration of the marriage. Reese v. Greenlee, 308 Ky. 275 , 214 S.W.2d 262, 1948 Ky. LEXIS 909 ( Ky. 1948 ) (decided under prior law).

Cited:

Jackson v. Jackson, 734 S.W.2d 498, 1987 Ky. App. LEXIS 5 29 (Ky. Ct. App. 1987); Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ); Edwardson v. Edwardson, 798 S.W.2d 941, 1990 Ky. LEXIS 124 ( Ky. 1990 ); John v. John, 893 S.W.2d 373, 1995 Ky. App. LEXIS 5 (Ky. Ct. App. 1995); Hoskins v. Hoskins, 15 S.W.3d 733, 2000 Ky. App. LEXIS 28 (Ky. Ct. App. 2000); R.D.P. v. S.M.B., — S.W.3d —, 2003 Ky. App. LEXIS 249 (Ky. Ct. App. 2003).

NOTES TO UNPUBLISHED DECISION

Written.

Unpublished Decision Nowhere did Ky. Rev. Stat. Ann. § 403.180 require the agreement to contain a specific caption or form, only that it be in writing; Ky. Rev. Stat. Ann. §§ 403.180 , 403.110 supported the conclusion the mediated agreement qualified as a separation agreement, and incorporation of the agreement into the dissolution decree was not improper. Baas v. Baas, 2018 Ky. App. LEXIS 275 (Ky. Ct. App. Nov. 30, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 977 (Ky. Ct. App. Nov. 30, 2018).

Research References and Practice Aids

Kentucky Bench & Bar.

Bagby, Estate Planning and Antenuptial Agreements, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 12.

Gilbert and Wise, Apportioning Military Pensions Under The Uniformed Services Former Spouses Protection Act and Kentucky Law, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 26.

Kentucky Law Journal.

Kentucky Law Survey, Wilson, Domestic Relations, 65 Ky. L.J. 383 (1976-77).

Comments, Paternal Custody of the Young Child Under the Kentucky No-Fault Divorce Act, 66 Ky. L.J. 165 (1977-78).

Comments, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978-79).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Northern Kentucky Law Forum.

Sheldon, From Commandments to Consent: Ohio in the Divorce Reform Era, 2 N. Ky. St. L.F. 119 (1974-75).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Property Settlement Agreement, Form 253.16.

Petrilli, Kentucky Family Law, Court Procedure, § 23.18.

Petrilli, Kentucky Family Law, Custody of Children, § 26.7.

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.23, 24.25; 1991 Supp., § 24.24.

Petrilli, Kentucky Family Law, Foreign Decrees (Conflict of Laws), § 28.1.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.17, 25.18, 25.19, 25.25, 25.27, 25.28.

Petrilli, Kentucky Family Law, Separation Agreements, §§ 19.1, 19.4, 19.19, 19.22, 19.23.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.5.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.22.

403.190. Disposition of property.

  1. In a proceeding for dissolution of the marriage or for legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s property to him. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including:
    1. Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker;
    2. Value of the property set apart to each spouse;
    3. Duration of the marriage; and
    4. Economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children.
  2. For the purpose of this chapter, “marital property” means all property acquired by either spouse subsequent to the marriage except:
    1. Property acquired by gift, bequest, devise, or descent during the marriage and the income derived therefrom unless there are significant activities of either spouse which contributed to the increase in value of said property and the income earned therefrom;
    2. Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
    3. Property acquired by a spouse after a decree of legal separation;
    4. Property excluded by valid agreement of the parties; and
    5. The increase in value of property acquired before the marriage to the extent that such increase did not result from the efforts of the parties during marriage.
  3. All property acquired by either spouse after the marriage and before a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (2) of this section.
  4. If the retirement benefits of one spouse are excepted from classification as marital property, or not considered as an economic circumstance during the division of marital property, then the retirement benefits of the other spouse shall also be excepted, or not considered, as the case may be. However, the level of exception provided to the spouse with the greater retirement benefit shall not exceed the level of exception provided to the other spouse. Retirement benefits, for the purposes of this subsection shall include retirement or disability allowances, accumulated contributions, or any other benefit of a retirement system or plan regulated by the Employees Retirement Income Security Act of 1974, or of a public retirement system administered by an agency of a state or local government, including deferred compensation plans created pursuant to KRS 18A.230 to 18A.275 or defined contribution or money purchase plans qualified under Section 401(a) of the Internal Revenue Code of 1954, as amended.

History. Enact. Acts 1972, ch. 182, § 9; 1986, ch. 441, § 1, effective July 15, 1986; 1996, ch. 328, §§ 1, 2, effective July 15, 1996.

Compiler’s Notes.

The major portion of the Employees Retirement Income Security Act of 1974, referred to in this section, is codified throughout Titles 26 and 29 of the United States Code.

Section 401(a) of the Internal Revenue Code of 1954, referred to in this section, is codified as 26 USCS § 401(a).

Legislative Research Commission Note.

(7/15/96). This section was amended by 1996 Ky. Acts ch. 328, secs. 1 and 2 which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.In General.

The fourteenth amendment of the United States constitution does not require that the state, in adjudicating the division of property in divorce cases, ignore its own laws and look to the laws of each state in which rights to the property originated to determine the effect of the divorce upon those rights. Travelers Ins. Co. v. Fields1, 451 F.2d 1292, 1971 U.S. App. LEXIS 6642, 58 Ohio Op. 2d 18(6th Cir. 1971), cert. denied, 406 U.S. 919, 92 S. Ct. 1772, 32 L. Ed. 2d 118, 1972 U.S. LEXIS 2647 (1972), cert. denied, Fields v. Travelers Ins. Co., 406 U.S. 919, 92 S. Ct. 1772, 32 L. Ed. 2d 118, 1972 U.S. LEXIS 2647 (1972) (decided under prior law).

2.Jurisdiction.

Where the court had no jurisdiction of the wife, it could not dispose of chattels not within its jurisdiction or order the wife to return personalty, but it could distribute chattels located within the state. Gaines v. Gaines, 566 S.W.2d 814, 1978 Ky. App. LEXIS 538 (Ky. Ct. App. 1978).

Antenuptial endorsement was within the bankruptcy court’s jurisdiction under 11 U.S.C.S. § 541(a)(1) because the wife brought a declaratory action, which was a “core proceeding” under 28 U.S.C.S. § 157(b)(2), to invalidate the agreement; § 541(a)(5) did not divest the bankruptcy court of jurisdiction; and the wife’s rights to marital property vested at the time the husband filed for divorce under KRS 403.190(1). Brown v. Brown, 2013 U.S. Dist. LEXIS 74323 (E.D. Ky. May 28, 2013).

3.Assignment of Property.

When the trial court assigns “each spouse’s property” record title should not be controlling, and, therefore, a tract of land conveyed by gift from the wife’s brother should be considered as the wife’s nonmarital property unless the trial court finds that husband was named as a grantee for a reason other than his marriage to the wife. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

In apportioning marital and nonmarital property, there is established a relationship between the nonmarital contribution and the total contribution, and between the marital contribution and the total contribution, and these relationships, reduced to percentages, shall be multiplied by the equity in the property at the time of distribution to establish the value of the nonmarital and marital properties. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

This section does not dictate that marital property be divided equally and the trial court’s findings with respect to the division of marital property will not be disturbed unless shown to be clearly erroneous. Accordingly, a judgment awarding $32,000 house to wife and two $10,000 certificates of deposit to husband would be upheld. Quiggins v. Quiggins, 637 S.W.2d 666, 1982 Ky. App. LEXIS 236 (Ky. Ct. App. 1982).

This section does not require that the division be equal. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

Since the trial court’s determination to split the carry-forward equally was supported by expert opinion based on the husband and wife’s joint tax return, it was not an abuse of discretion. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

4.Property Acquired by Gift or Devise.

The property each owned at the time of marriage and property acquired by inheritance or by gifts from nonrelated third parties during the marriage are to be regarded as the sole property of the spouse who so inherited or received them. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ) (decided under prior law).

Where plaintiff demanded the house and lot where she and her children were living and which had been acquired by her and her husband, as the lot was given to plaintiff by her father and mother, this was correctly restored to her. Straney v. Straney, 481 S.W.2d 292, 1972 Ky. LEXIS 248 ( Ky. 1972 ) (decided under prior law).

Where property received by a husband from the estate of his father was subject to various liabilities for funeral expenses, administrative expenses and debts and taxes owed by the estate of his father, these liabilities were a charge against the nonmarital property received by the husband from his father’s estate, and the value of those assets should have been reduced accordingly. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

The court erred in its disposition of property by not awarding wife an interest proportionate to the amount she invested in the residence and other marital property and family expenses, which amount was either given by or inherited from her parents. Farmer v. Farmer, 506 S.W.2d 109, 1974 Ky. LEXIS 744 ( Ky. 1974 ).

This statute mandates the trial judge to assign each spouse’s property to him and does not leave open for subsequent inquiry the rights of either or both that have not been adjudicated upon the final determination of the controversy. Ping v. Denton, 562 S.W.2d 314, 1978 Ky. LEXIS 326 ( Ky. 1978 ).

A tract of land received by a wife in the partition of her father’s farm clearly constituted nonmarital property; if the purchase price for any of the other tracts could be traced to an inheritance by either party, then such tracts would constitute nonmarital property, but if the purchase price for a tract could not be traced to an inheritance by either party, that tract would constitute marital property. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

Where a son contributed no capital to a corporation which was run by his father, received shares of stock for which he made no payment, and received a salary from the corporation, such stock was a gift and was not marital property. Adams v. Adams, 565 S.W.2d 169, 1978 Ky. App. LEXIS 509 (Ky. Ct. App. 1978).

Where a husband acquired a life estate in two farms by deeds of gift from his father, he was devised a life estate in two other farms under the will of his father, and he also was the owner of a residence which was a gift from his mother and father, the trial court correctly held that this real estate constituted nonmarital property to the extent that its value was not enhanced during the marriage by joint efforts of the parties. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

In determining whether property was a gift, consideration should be given to the source of the money with which the “gift” was purchased, the intent of the donor at that time as to intended use of the property, status of the marriage relationship at the time of the transfer, and whether there was any valid agreement that the transferred property was to be excluded from the marital property. O'Neill v. O'Neill, 600 S.W.2d 493, 1980 Ky. App. LEXIS 332 (Ky. Ct. App. 1980).

Where Veterans Administration granted $17,000 to former career serviceman to defray the expense of special design and features needed for handicapped, the funds were a gift within the meaning of subsection (2) of this section since the grant was a discretionary gift by the Veterans Administration to handicapped ex-servicemen and not an entitlement to the ex-serviceman; thus the funds should be restored to the ex-serviceman as nonmarital property in a dissolution of marriage proceeding. McGlone v. McGlone, 613 S.W.2d 419, 1981 Ky. LEXIS 226 ( Ky. 1981 ).

Gifts during marriage from third parties to both spouses shall be treated as marital property upon dissolution. This is a natural outgrowth of this section, and is consistent with both the Uniform Marriage & Divorce Act and the limited number of decisions in other jurisdictions which have addressed the issue. Calloway v. Calloway, 832 S.W.2d 890, 1992 Ky. App. LEXIS 140 (Ky. Ct. App. 1992).

Whether property is considered a gift for purposes of a divorce proceeding is a factual issue subject to the clearly erroneous standard of review. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Where the wife’s father made a $57,000 loan to both the husband and the wife in order for them to purchase a house, and the loan was forgiven during the marriage, the trial court erred in treating the loan as a nonmarital gift to the wife. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Trial court’s finding that a father-in-law’s $20,000 check to the wife was a gift and thus non-marital property was not clearly erroneous. Kleet v. Kleet, 264 S.W.3d 610, 2007 Ky. App. LEXIS 243 (Ky. Ct. App. 2007).

Circuit court’s finding that monetary gifts from a husband’s parents were marital property under KRS 403.190(2) and not a gift to the husband alone under § 403.190(2)(a) was not clearly erroneous where the money was given jointly to the parties during the marriage into a joint checking account for jointly titled marital homes, even though the father testified that the gifts were for their son alone. Gertler v. Gertler, 303 S.W.3d 131, 2010 Ky. App. LEXIS 6 (Ky. Ct. App. 2010).

Distributions to a husband under trusts created by his great-grandfather were exempt from characterization as marital property under KRS 403.190(2)(a); the husband’s expenditure of marital funds for litigation involving the trusts did not change the source of the distributions from the trusts. Maclean v. Middleton, 419 S.W.3d 755, 2014 Ky. App. LEXIS 3 (Ky. Ct. App. 2014).

5.— Burden of Proof.

Property acquired by either spouse subsequent to the marriage is presumed to be marital property, except for certain enumerated types including property acquired by gift (see KRS 403.190(2)); the party claiming property acquired after the marriage as his/her nonmarital property through the gift exception bears the burden of proof on that issue. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Since the wife simply showed a temporal proximity between her father’s gift and a down payment made on a residence, but nothing more concrete linking the gift to the down payment, the wife did not meet her burden to show she had a nonmarital interest in the residence. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

6.— Evidence.

The question of whether property is considered marital or nonmarital is dependent on whether the property was a gift or was received as a result of consideration and to overcome the presumption that the property is marital, clear and convincing proof must be presented to show that the property was given as a gift. Adams v. Adams, 565 S.W.2d 169, 1978 Ky. App. LEXIS 509 (Ky. Ct. App. 1978).

With respect to evidence to rebut the marital property presumption when a party asserts a nonmarital interest in property by gift, the preponderance of the evidence standard is the proper standard of proof necessary to rebut the presumption. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Trial court correctly found that only 14.2 percent of an account was marital property where there was substantial evidence that the wife’s father had intended to use a check to purchase stock for the wife; thus the stock was a gift to the wife and was nonmarital property. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

7.Marital Property.

In a situation in which property has been accumulated in the course and by virtue of the joint efforts of husband and wife as a marital unit, one carrying out his responsibilities and the other carrying out hers, each of them has a vested “ownership” interest and, upon dissolution of the marriage, the trial court should be free to weigh it up and determine when, whether and how it is to be cut off and separated out. Cooke v. Cooke, 449 S.W.2d 216, 1969 Ky. LEXIS 31 ( Ky. 1969 ) (decided under prior law).

The distribution or division of property acquired during marriage by the team effort of the marital partners is, strictly speaking, not alimony. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ) (decided under prior law).

Where property is acquired during marriage by the joint efforts of the parties, it should be divided between the spouses according to what is just and reasonable. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ) (decided under prior law).

Property acquired by a married person after an “actual” vis-a-vis “legal” separation is marital property. Stallings v. Stallings, 606 S.W.2d 163, 1980 Ky. LEXIS 255 ( Ky. 1980 ).

The concept of “team or joint efforts” is not germane to the determination of whether property is marital or not; at most it may convert the increase in value of nonmarital property into marital property. Stallings v. Stallings, 606 S.W.2d 163, 1980 Ky. LEXIS 255 ( Ky. 1980 ).

Where much of the property involved was acquired before the marriage but while the parties were living together, the trial court should have determined whether there was property in which the wife had a legally recognizable and enforceable interest at the time of marriage, assigned that interest to her, and then divided the marital property or if there had been an increase in the value of the property after the marriage due to team effort, she was entitled to share that increase. Smith v. Smith, 497 S.W.2d 418, 1973 Ky. LEXIS 323 ( Ky. 1973 ).

That portion of the proceeds from the sale of a farm attributable to the investment of the husband’s $1,400 inheritance constituted nonmarital property while that portion of the proceeds from the sale attributable to the improvements and the payment of the balance of the purchase price for the land which was made as a “team effort,” constituted marital property. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

When the nonmarital property of one spouse is expended as a part of the “team effort” for the benefit of the marriage, that amount should be considered by the trial court in measuring the contribution of each spouse to the acquisition of the marital property. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

Where husband failed to show that any property owned by the parties at the time of the separation was acquired by use of his inheritance or from the proceeds from the sale of the automobile and furniture owned by him prior to the marriage, it was error for the trial court to award him the value of such items and likewise, the court erred in awarding the wife the sum of $500 which she owned at the time of the marriage and which she could not trace into specific assets owned by the parties at the date of separation. Turley v. Turley, 562 S.W.2d 665, 1978 Ky. App. LEXIS 474 (Ky. Ct. App. 1978).

Any accumulation of income from a husband’s nonmarital property constituted marital property to be divided by the court. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

Where a husband had received, as a gift from his father, farm machinery having a value of $10,165.26, but where the husband did not trace each individual item of farm machinery into farm machinery which he owned at the date of separation, the trial court erred in assigning any portion of the farm machinery to the husband as nonmarital property. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

Where a wife failed to trace the assets which she brought into the marriage into assets owned at the time of the separation, the trial court did not err in refusing to assign any amount to the wife as nonmarital property. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

Property acquired after actual separation but prior to a decree of legal separation is marital property within subsection (3) of this section. Culver v. Culver, 572 S.W.2d 617, 1978 Ky. App. LEXIS 603 (Ky. Ct. App. 1978).

Where the husband had made certain improvements upon the wife’s farm, though in other respects he had allowed it to run down, nevertheless it was undisputed that the farm was more valuable than it would have been without them; therefore some value must be allocated to them as marital property upon divorce; nor could the benefits be received from living on the farm be used as an offset. Allen v. Allen, 584 S.W.2d 599, 1979 Ky. App. LEXIS 431 (Ky. Ct. App. 1979).

Although a professional license is not marital property, the value of the husband’s law practice is to be considered as marital property. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

Kentucky law provides that a spouse’s vested interest in a pension or retirement fund is marital property; vested does not refer to whether the fund is in “pay status,” but whether the owning party has a current right to the proceeds of the plan. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

Existing assets comprising the husband’s accounting practice — the cash in hand, the accounts receivable, and the depreciated equipment — constituted marital property; moreover the goodwill contained in the business was a factor to be considered in arriving at the value of the practice for the purpose of disposition of marital property. Heller v. Heller, 672 S.W.2d 945, 1984 Ky. App. LEXIS 542 (Ky. Ct. App. 1984).

Any dividend income derived from shares owned or controlled by the husband or wife prior to dissolution was presumably marital property pursuant to subsection (3) of this section, since such income would not fall under the exceptions set out in subsection (2) of this section. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

Property is presumed to be marital; the presumption is countered by five exceptions, none of which applied to a husband’s award under a Jones Act claim for disabling injuries suffered on board a tug boat in the course of employment, thus the award was marital property. Reeves v. Reeves, 753 S.W.2d 301, 1988 Ky. App. LEXIS 63 (Ky. Ct. App. 1988).

The fact that husband’s garage business was started before marriage does not render the entire growth of the business over the course of the parties’ 18-year marriage nonmarital; the business was the principal source of the marital funds and accordingly, the wife could contribute to the marital assets in her role as a homemaker. Consequently, the increase in value of the business during the marriage was marital property. Goderwis v. Goderwis, 780 S.W.2d 39, 1989 Ky. LEXIS 98 ( Ky. 1989 ).

In a divorce action, income produced by husband’s business and assets purchased with that income were properly ruled to be marital property where the husband owned a one-half (1/2) interest in the business before marriage and purchased the other half immediately after marriage and the business was the principal employment of the husband. Marcum v. Marcum, 779 S.W.2d 209, 1989 Ky. LEXIS 96 ( Ky. 1989 ).

Trial court was not clearly erroneous in holding that $129,298 paid to him as income by corporation which he owned and managed in an entrepreneurial fashion and which was his principal means of income for his management responsibilities was marital property, even though this sum was derived from a judgment in the corporation’s favor; fact that the value of the corporation decreased during the marriage was not controlling. Walters v. Walters, 782 S.W.2d 607, 1989 Ky. LEXIS 95 ( Ky. 1989 ).

Definition of “disability allowances” in KRS 403.190(4) is limited by its own terms solely to subsection (4) and has no application to KRS 403.190(2); the more reasonable interpretation is that the general assembly, being mindful that “disability allowances” are properly classified as nonmarital property under KRS 403.190(2) and therefore exempt from division as marital property, provided the same protection to a spouse whose spouse was receiving disability benefits. Holman v. Holman, 84 S.W.3d 903, 2002 Ky. LEXIS 132 ( Ky. 2002 ).

Better approach is to classify disability benefits, upon dissolution of marriage, according to the nature of the wages they replace rather than whether or not they are one of the statutorily excepted categories to marital property or whether the source of the funds used to acquire the benefits was marital. Holman v. Holman, 84 S.W.3d 903, 2002 Ky. LEXIS 132 ( Ky. 2002 ).

Firefighter’s disability retirement benefits replaced the post-dissolution income he would have received, but for his disability, and were, therefore, properly classified as his separate property. Holman v. Holman, 84 S.W.3d 903, 2002 Ky. LEXIS 132 ( Ky. 2002 ).

Where a husband filed for workers’ compensation benefits after he and his wife separated and a workers’ compensation settlement agreement was approved after the wife petitioned for dissolution of marriage, the trial court did not err in finding that the husband’s entire workers’ compensation settlement was marital property because workers’ compensation benefits in either the form of a lump sum settlement or ongoing benefits are marital property. Although workers’ compensation payments that accrued and were received after dissolution were not marital property, the husband received his entire workers’ compensation award prior to dissolution. Day v. Day, 302 S.W.3d 86, 2009 Ky. App. LEXIS 248 (Ky. Ct. App. 2009).

Trial court did not err in finding that the husband’s relocation incentive was marital property because it was received during the parties’ marriage, the benefit was more than an expectancy, and it was unlikely that the husband would have to return the incentive. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Husband earned the right to receive the relocation incentive during the marriage and the trial court did not err in finding the incentive was marital property; the benefits were more than a mere expectancy, as the husband received all of the funds due to him under the incentive during the marriage and the possibility that a triggering event would occur requiring him to pay back a portion of those funds was slim. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Restricted stock units (RSUs) were a form of deferred compensation representing payment for services over the three-year vesting period, and the marital portion of each RSU allotment was the proportion of time in each three-year vesting period that was marital because they were generally awarded in February of a given year, vesting three years later; their value was reported as ordinary income on the ex-husband’s W-2 in the year of vesting and appropriately taxed at that time; and the grants were a means of hiring and retention for the employer. Normandin v. Normandin, 634 S.W.3d 589, 2020 Ky. LEXIS 456 ( Ky. 2020 ).

8.— No Specific Division.

Where a marriage decree merely dissolved the marriage and made no provision for property division, such judgment had the same effect as if it had specifically said that the spouses each owned an undivided one-half (1/2) interest in two (2) tracts of land bought during the marriage. Kidwell v. Mason, 564 S.W.2d 534, 1978 Ky. LEXIS 378 ( Ky. 1978 ).

Upon the parties’ divorce, the trial court did not err in deciding that the equity in the marital home would be divided evenly between the parties. The court was convinced that the fair market value of the property on the date of dissolution was $74,000; the court valued the equity at $27,000 and ordered the husband to pay the sum of $13,500 to the wife. Chappell v. Chappell, 312 S.W.3d 364, 2010 Ky. App. LEXIS 74 (Ky. Ct. App. 2010).

9.— Discretion of Court.

This section vests in the trial court wide discretion in the division of marital property. Johnson v. Johnson, 564 S.W.2d 221, 1978 Ky. App. LEXIS 498 (Ky. Ct. App. 1978).

The trial judge was not clearly erroneous in awarding two rings to the wife where the evidence supported the determination that the rings were gifts. Ghali v. Ghali, 596 S.W.2d 31, 1980 Ky. App. LEXIS 300 (Ky. Ct. App. 1980).

Since military retirement benefits, waived by husband in order to receive disability compensation, are specifically excluded from division of marital property, where husband so waived his military retirement benefits it was not an abuse of discretion for the trial court to award ownership of a $10,000 certificate of deposit exclusively to wife, as the division of property need not be equal, but only in just proportions. Davis v. Davis, 777 S.W.2d 230, 1989 Ky. LEXIS 78 ( Ky. 1989 ).

Considering that wife received approximately $132,000.00 equity in the marital home, all of the parties’ furniture, an interest in two pension plans, life insurance policies, her car, and interest in an insurance agency totaling approximately $28,000.00 and one-half (1/2) of an account totaling approximately $15,000.00, the Court of Appeals was unable to find that the trial court abused its discretion in awarding her $1,350.00 per month, as well as the cost of providing medical insurance. Underwood v. Underwood, 836 S.W.2d 439, 1992 Ky. App. LEXIS 164 (Ky. Ct. App. 1992), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

Considering the fact that the wife was awarded a larger portion of the marital assets, as best shown by the fact that she received the lion’s share of the farm, and, furthermore, in light of the fact that the wife had a greater pool of nonmarital property from which to draw, the trial court did not abuse its discretion in awarding the husband the entirety of his modest retirement account even though it was marital property. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

10.—Considerations.

Where defendant husband in divorce action added $30,000 in assets to real estate corporation prior to his marriage, then used corporation for sole purpose of owning and operating retail clothing store, with both husband and wife participating in operation of the store, and sold all capital stock in corporation for $120,000, the profit made by defendant was marital property under this section rather than an increase in the value of his nonmarital property, and the wife was entitled to a portion of the profit under this section; however, since the record did not show the net worth of the corporation at any time and it was conceivable that depending upon accounting techniques and other circumstances no profit was realized it is possible that the wife would not receive any of the income in the dissolution proceedings. Sousley v. Sousley, 614 S.W.2d 942, 1981 Ky. LEXIS 239 ( Ky. 1981 ).

When the nonmarital property of one spouse is expended as a part of the team effort for the benefit of the marriage, that amount can be considered by the trial court in measuring the contribution of each spouse to the acquisition of the marital property, and, in addition, the trial court may consider the economic circumstances of each spouse, which would include health and ability to work. Turley v. Turley, 562 S.W.2d 665, 1978 Ky. App. LEXIS 474 (Ky. Ct. App. 1978).

A decree of dissolution which awarded the wife 70% of marital property and gave the husband 30% was reversed and remanded where husband’s nonmarital property and his share of the marital property were awarded to him in the form of a pension fund to which he would have no access for many years, and where husband’s economic situation was as bleak as the wife’s situation. Garrett v. Garrett, 766 S.W.2d 634, 1989 Ky. App. LEXIS 31 (Ky. Ct. App. 1989).

The trial court considered factors other than those utilized by the experts in valuing the insurance business. Although not calculated with mathematical exactitude, the court’s figure clearly fell within the range of competent testimony. A trial court’s valuation in a divorce action will not be disturbed on appeal unless it is clearly contrary to the weight of the evidence. Underwood v. Underwood, 836 S.W.2d 439, 1992 Ky. App. LEXIS 164 (Ky. Ct. App. 1992), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

Trial court abused its discretion in awarding wife 85% of the marital estate merely because it accumulated primarily from her nonmarital property. Upon remand the trial court should make a reapportionment of marital property, giving the factor of “contribution of each spouse to acquisition of marital property” only such weight as was fairly reflected by the evidence while also giving appropriate weight to the other statutory factors. Dotson v. Dotson, 864 S.W.2d 900, 1993 Ky. LEXIS 145 ( Ky. 1993 ).

Where liens are obtained on marital property subsequent to the filing of a lis pendens by a non-debtor spouse, they are extinguished to the extent of the ownership interest awarded to that spouse in dissolution litigation. Strong v. First Nationwide Mortg. Corp., 959 S.W.2d 785, 1998 Ky. App. LEXIS 4 (Ky. Ct. App. 1998).

Although money paid by the wife to the IRS was unquestionably nonmarital, there was no indication that the parties had separated at the time of the gift, nor was there any indication that the parties had agreed that the gift was to be excluded from the marital property; thus, the trial court correctly found that the $14,000 payment to the IRS, so the husband could avoid additional legal trouble, was a generous, marital gift from the wife to the husband. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

It was error for the family court to conclude that it was compelled to assign a goodwill value to the wife’s medical practice when dividing up the marital property. However, under Kentucky law, the family court was not required to differentiate between enterprise goodwill and personal goodwill that had been developed in the business. Gaskill v. Robbins, 2006 Ky. App. LEXIS 364 (Ky. Ct. App. Dec. 8, 2006), sub. op., 2006 Ky. App. Unpub. LEXIS 1101 (Ky. Ct. App. Dec. 8, 2006), aff'd in part, 282 S.W.3d 306, 2009 Ky. LEXIS 22 ( Ky. 2009 ).

The amount to which a wife’s 401(k) account was to be exempted was governed by the limitation found in KRS 403.190(4), i.e. her account was exempt up to an amount that did not exceed the value of the husband’s exempt teacher’s retirement account. Boone v. Ballinger, 228 S.W.3d 1, 2007 Ky. App. LEXIS 133 (Ky. Ct. App. 2007).

Because the ex-husband did not establish that the increase in value of the marital residence was due to general economic circumstances or his sole efforts, where improvements had been made while the parties were married, the appreciation in value of the residence had to be deemed to be marital property. The trial court should also have recognized that marital funds were used to reduce the mortgage debt and should additionally have apportioned some of the increased value in property as marital property. Croft v. Croft, 240 S.W.3d 651, 2007 Ky. App. LEXIS 422 (Ky. Ct. App. 2007).

Where the spouses formed a closely held corporation and entered into that business relationship as business partners, and it was reasonable to conclude that while the husband contributed more than the wife financially, she contributed a corresponding amount in her effort as manager of the business both before and during the marriage, the Family Court acted within its discretion when it found that her nonmarital contribution as manager of the property was equal to the monetary contribution of non-martial funds contributed by the husband and awarded each party a one-half interest in the business. Fehr v. Fehr, 284 S.W.3d 149, 2008 Ky. App. LEXIS 306 (Ky. Ct. App. 2008).

Marital property distribution was affirmed where the wife’s professional degree was not marital property, and the even split was appropriate. Little v. Little, 2021 Ky. App. Unpub. LEXIS 189 (Ky. Ct. App. Mar. 12, 2021).

11.— —Division.

Trial court properly divided the parties’ marital property in just proportions, in part because the trial court clearly considered that the parties really only lived as a married couple for approximately four years, during which the wife worked and supported herself and the husband received disability. The husband had a home of his own and did not need the marital residence for living purposes and the wife had paid for the improvements to the property and paid the property taxes on it throughout the marriage. Muir v. Muir, 406 S.W.3d 31, 2013 Ky. App. LEXIS 114 (Ky. Ct. App. 2013).

Trial court properly divided the property in question, in part because Kentucky law clearly mandated that how title to property was held was not determinative as to whether the property in question is non-marital or marital. Rather, the trial court was required to consider the relevant statutory factors in dividing property between the husband and wife, as it properly held. Muir v. Muir, 406 S.W.3d 31, 2013 Ky. App. LEXIS 114 (Ky. Ct. App. 2013).

Marital and non-marital shares used to construct a single residence that had decreased in value shared proportionally in the loss where the decrease in value of the combined marital and non-marital funds was due to general economic conditions. Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Family court’s award of two firearms to the mother was affirmed where the family court found in its written order that they were marital property, and nothing in Ky. Rev. Stat. Ann. § 403.190(1) required the court to consider the best interests of the child when awarding property in a dissolution action. Louisville R. Co. v. Masterson, 96 S.W. 534, 29 Ky. L. Rptr. 829 , 1906 Ky. LEXIS 347 (Ky. Ct. App. 1906).

Circuit court did not err in dividing an income tax refund in a dissolution of marriage because the equal division of the tax refund was appropriate as the court considered the parties’ contributions in that, while the husband was the wage earner spouse, the wife contributed to the marriage as a homemaker spouse during most of the 39-year marriage. Paoli v. Paoli, 634 S.W.3d 615, 2021 Ky. App. LEXIS 83 (Ky. Ct. App. 2021).

11.— Division.

Where a husband and wife had acquired a joint bank account of $6,200, from which the wife withdrew $3,100 at the time of separation, which the parties agreed she could use for living expenses in lieu of maintenance and child support, the husband would be entitled to half of the remaining $3,100, since the wife was not chargeable therefor and the marital account was reduced to $3,100. Allen v. Allen, 584 S.W.2d 599, 1979 Ky. App. LEXIS 431 (Ky. Ct. App. 1979).

The trial court abused its discretion by not delaying division of the husband’s interest in an employee pension plan, which qualified for preferential tax treatment, until a more suitable time in light of the severe economic consequences the husband and the other employees of his firm would suffer if the division was currently effective. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

The division of the marital assets was not clearly erroneous nor a clear abuse of discretion, where the wife was awarded $300,000 and other assets totaling $512,000, and the husband was awarded assets with a net value of $1,024,525. Wood v. Wood, 720 S.W.2d 934, 1986 Ky. App. LEXIS 1458 (Ky. Ct. App. 1986).

Where the trial court divided marital assets valued at approximately $150,000, restored nonmarital property, and included an award of possession of the marital residence to the husband until the minor child attained age 19 and completed high school, when the wife would pay the husband for his one-half (1/2) interest in the residence plus interest, the court’s apportionment of the marital property was not clearly erroneous. Cochran v. Cochran, 746 S.W.2d 568, 1988 Ky. App. LEXIS 46 (Ky. Ct. App. 1988), overruled in part, Rumpel v. Rumpel, 438 S.W.3d 354, 2014 Ky. LEXIS 331 ( Ky. 2014 ).

Pursuant to 10 USCS § 1408(a)(4), amounts waived in order to receive disability compensation, or VA benefits received in lieu of military retirement pay, are specifically excluded from division as marital property; however, if an inequity arises in an individual case, the trial court can resolve the problem by making an appropriate award of spousal support and/or marital property. Davis v. Davis, 777 S.W.2d 230, 1989 Ky. LEXIS 78 ( Ky. 1989 ).

As the trial court considered all relevant factors, including those listed in KRS 403.190(1)(a)-(d), its award of 57 percent of the marital assets to the wife, and 43 percent to the husband, was not an abuse of discretion. Stipp v. St. Charles, 291 S.W.3d 720, 2009 Ky. App. LEXIS 96 (Ky. Ct. App. 2009).

Where the husband received the parties’ stimulus check after the entry of the final divorce decree, the trial court did not abuse its discretion by reopening of the divorce decree under CR 60.02 for the entry of an order distributing the stimulus payment. Although the wife was not working outside the home, the funds were generated from the marital estate and were fairly classified as marital property; the trial court acted in accordance with KRS 403.190 by equally dividing the check. Wilder v. Wilder, 294 S.W.3d 449, 2009 Ky. App. LEXIS 152 (Ky. Ct. App. 2009).

Where a husband filed for workers’ compensation benefits after he and his wife separated and a workers’ compensation settlement agreement was approved after the wife petitioned for dissolution of marriage, the entire workers’ compensation settlement was marital property, and the trial court did not err in dividing the settlement amount equally between the husband and wife because the marriage was not of a short duration, the husband did not demonstrate that he was totally disabled, the husband had the ability to obtain appropriate job skills but chose not to do so, and the parties contributed equally to the marriage. Day v. Day, 302 S.W.3d 86, 2009 Ky. App. LEXIS 248 (Ky. Ct. App. 2009).

12.— Dissipation.

The concept of dissipation, that is, spending funds for a nonmarital purpose, is an appropriate one for the court to consider when the property is expended during a period when there is a separation or dissolution impending, and where there is a clear showing of intent to deprive one’s spouse of his or her proportionate share of the marital property. Robinette v. Robinette, 736 S.W.2d 351, 1987 Ky. App. LEXIS 524 (Ky. Ct. App. 1987).

The evidence failed to support the determination that the wife dissipated marital funds, where, while there was a showing that over a period of several months the wife used money from the business for nonbusiness-related reasons, there was no showing of what the money was used for, there was no evidence of when the marital breakdown occurred or whether the money was spent at a time when the dissolution was being contemplated, and there was no testimony from which the court could infer that the wife used the money for a personal, as opposed to marital, reason and certainly no evidence that it was spent with the intent of depriving the husband of his share of the estate. Robinette v. Robinette, 736 S.W.2d 351, 1987 Ky. App. LEXIS 524 (Ky. Ct. App. 1987).

Evidence was sufficient to show that the husband dissipated marital assets in contemplation of divorce where he maintained a joint checking account with his mistress and otherwise conducted himself in a manner consistent with an intention of eventually marrying her. Brosick v. Brosick, 974 S.W.2d 498, 1998 Ky. App. LEXIS 60 (Ky. Ct. App. 1998).

Dissipated assets are considered as assets already received by the offending party and, once the court accounts for those assets, the court may divide the remaining assets in such proportions as it deems just. Brosick v. Brosick, 974 S.W.2d 498, 1998 Ky. App. LEXIS 60 (Ky. Ct. App. 1998).

Because the court’s finding that a husband’s gifts of over $2 million to family members over several months were made when a dissolution was anticipated was not clearly erroneous, the court did not err in crediting the husband’s award of marital property with $2,052,297.00, based on dissipation of the marital estate under KRS 403.190 . Kleet v. Kleet, 264 S.W.3d 610, 2007 Ky. App. LEXIS 243 (Ky. Ct. App. 2007).

While the trial court equally divided the marital property, its ruling ignored the significance of the parties’ earlier property division during a separation, and the ex-husband’s subsequent dissipation of his share of the marital property by failing to provide any documents regarding the disposition of his proceeds; thus, the trial court failed to justly divide the parties’ marital property and the ex-wife was entitled to be restored to her $63,310.63 from the down payment on the marital residence. Heskett v. Heskett, 245 S.W.3d 222, 2008 Ky. App. LEXIS 3 (Ky. Ct. App. 2008).

Family court did not err in considering the needs and wants of the parties’ minor children in dividing the marital property under KRS 403.190 ; it was not error for the trial court to award a vehicle to the husband for the children to use as transportation to school. Brooks v. Brooks, 350 S.W.3d 823, 2011 Ky. App. LEXIS 111 (Ky. Ct. App. 2011).

Trial court's ruling that the husband had not dissipated marital assets was upheld where, during their separation, both parties traveled, made extravagant purchases and spent marital property, as they had done in the marriage. Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Trial court did not err in finding that a husband dissipated marital assets by forfeiting the husband's right to unvested restricted stock units (RSUs) issued by the husband's employer just two months prior to their vesting date because the husband's act of forfeiting the RSUs by terminating the husband's employment during the pendency of the parties' divorce was an intentional waste or a selfish financial impropriety, intended to deprive the wife of the wife's proportionate share of the marital estate. Duffy v. Duffy, 540 S.W.3d 821, 2018 Ky. App. LEXIS 39 (Ky. Ct. App. 2018).

13.Nonmarital Property.

Where a husband traced the proceeds from the sale of the farm which he owned at the time of the marriage into a lot which was owned by the parties, it was not error for the trial court to award him that sum as nonmarital property in lieu of the lot itself. Turley v. Turley, 562 S.W.2d 665, 1978 Ky. App. LEXIS 474 (Ky. Ct. App. 1978).

Where a husband traced $40,000 in savings to proceeds received by him from two life insurance policies following the death of his father, the trial court correctly held that this $40,000 account constituted nonmarital property. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

The gain in value of stocks purchased during the marriage with nonmarital funds was not marital property. Daniels v. Daniels, 726 S.W.2d 705, 1986 Ky. App. LEXIS 1495 (Ky. Ct. App. 1986), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

A 1980 Cadillac which husband gave wife as a Christmas present in 1980 while she was pregnant with their daughter, and which wife used most of the time was properly found to be wife’s nonmarital property. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

Evidence was sufficient to require a finding that 27 shares of stock which wife had brought into the marriage and increased to 50 shares by the dissolution is nonmarital property and should be assigned to her. Chenault v. Chenault, 799 S.W.2d 575, 1990 Ky. LEXIS 104 ( Ky. 1990 ).

Where Railroad Retirement disability annuity payments can be traced into identifiable assets, those assets are nonmarital as 45 USCS § 231m(a) provides that such annuity payments shall not “be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever . . . . . ” Elkins v. Elkins, 854 S.W.2d 787, 1993 Ky. App. LEXIS 76 (Ky. Ct. App. 1993).

Where the 112-acre tract of land in question belonged to the ex-husband and his sister prior to the marriage, was conveyed to a third party, who defaulted on it, was purchased by the ex-husband and his sister prior to the marriage, and the sister conveyed her one-half (1/2) interest in the land to the ex-husband and the ex-wife during the marriage, and the purchase was made with joint funds, the appellate court rejected the ex-wife’s challenge to the Circuit Court’s characterization of the disputed one-half (1/2) interest in the property as the ex-husband’s nonmarital property Brewick v. Brewick, 121 S.W.3d 524, 2003 Ky. App. LEXIS 292 (Ky. Ct. App. 2003).

Trial court erred by finding a husband’s Kentucky Employees Retirement System (KERS) account to have been entirely marital where his right to purchase service credit with the KERS arose from his employment before the marriage, was thus non-marital, and, although the husband withdrew those premarital funds, his right to participate in the KERS was not terminated; the fact that the value of the husband’s KERS account was enhanced by marital funds did not alter its non-marital character, and only the increase in value and the funds contributed in pursuit of that increase were subject to division as marital property. Overstreet v. Overstreet, 144 S.W.3d 834, 2003 Ky. App. LEXIS 315 (Ky. Ct. App. 2003).

Trial court’s finding that a gas line purchased during the marriage was separate property was not clearly erroneous and was supported by substantial evidence where the husband purchased an interest in two partnerships owning three (3) gas wells with his proceeds from the sale of a family business, which he received shortly before the marriage. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Trial court erred as the wife’s father demonstrated an overriding desire to preserve as much of his estate as possible for the wife and her sister in making $10,000 per year gifts in order to avoid taxes. Thus, the checks to the husband were only made because he was an available conduit for gift tax purposes and the entirety of the second-to-die policy proceeds should have been the wife’s nonmarital property. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Where the wife’s father created an irrevocable trust, or a Crummey Trust, where, upon the mother’s death, the trust was to pass tax-free to the wife and her sister, the trial court erred by awarding the husband any interest in the trust. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Since the husband inherited the life estate in the farm and the accompanying tobacco quota prior to the marriage, those items were the husband’s property. As a result, the trial court should not have classified Tobacco Transition Payment Program payments as marital property. Jones v. Jones, 245 S.W.3d 815, 2008 Ky. App. LEXIS 24 (Ky. Ct. App. 2008).

Under the “source of funds” rule to determine whether property is marital or nonmarital, the property is considered to be acquired as it is paid for; characterization of property as nonmarital or marital depends upon the source of each contribution as payments are made rather than the time at which equitable title to possession of the property is obtained. Under this analysis, the shares of stock sold to the corporation in the 1996 stock redemption agreement were not “acquired,” within the meaning of KRS 403.190 until they were paid for. These shares were paid for during the marriage over a period of years by corporate earnings. Thus, they were “acquired” during the marriage. Because the shares were “acquired” during the marriage, there is a presumption that they are marital property. Allison v. Allison, 246 S.W.3d 898, 2008 Ky. App. LEXIS 35 (Ky. Ct. App. 2008).

The husband’s transfer of real property to a limited partnership and assignment of partnership interests to an irrevocable trust extinguished the wife’s equitable interest in that property. That property was validly excluded from the marital estate by a valid agreement pursuant to KRS 403.190(2)(d) to which the wife gave consent, and, thus, the property was not subject to division. Gripshover v. Gripshover, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

As the evidence supported the trial court’s finding that a former wife used the parties’ tax refund to pay for their child’s tuition and medical care for his inpatient counseling and treatment, its decision not to include the refund in the total value of marital assets to be distributed was not an abuse of discretion. Stipp v. St. Charles, 291 S.W.3d 720, 2009 Ky. App. LEXIS 96 (Ky. Ct. App. 2009).

Family court abused its discretion in determining that a marital investment account was the one spouse's non-marital interest and in assigning it to that spouse because the spouse did not meet the spouse's burden to establish that the account contained the funds which the spouse received from the spouse's parents and therefore, the funds in the account, and any interest earned, should not have been deemed non-marital and assigned to the spouse. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

Transfer of cash from the husband's parents to partially finance the construction of the parties' residence was nonmarital property because the transfer was a gift made solely to the husband; the parents used their own funds to make gifts to the husband that were intended solely for him, and they received nothing in return. Barber v. Bradley, 505 S.W.3d 749, 2016 Ky. LEXIS 632 ( Ky. 2016 ).

Trial court properly excluded restricted stock units (RSUs) from a husband’s income in calculating maintenance and child support because the RSUs were nonmarital property belonging to the husband; the RSUs did not vest or fall under the husband’s control until the passing of a specified future date. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Trial court did not err in awarding funds from a husband’s retirement account to him as nonmarital property because the husband supported his testimony with documentation showing the roll-over deposit into his account. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Trial court properly ruled that a wife failed to meet her burden of proving her nonmarital interest in the parties’ undeveloped real property because the wife was unable to provide any documentation supporting her nonmarital claim to the property; considering the conflicting testimony offered by the husband and the wife on the issue, the trial court properly found neither party was able to prove a nonmarital interest in their premarital purchase of the property. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Trial court erred by finding that the husband’s post-retirement long-term incentive plan payments were part of the husband’s retirement package and that the wife was entitled to a portion because the payments were compensation received for executing the noncompetition agreement and earned after the parties divorced, and thus, it was not marital property under Ky. Rev. Stat.Ann. § 403.190(2). Geralds v. Geralds, 2022 Ky. App. LEXIS 60 (Ky. Ct. App. June 24, 2022).

14.— Increase in Value.

An increase in value of nonmarital property during marriage which is the result of a joint effort of the parties establishes the increase in value of the nonmarital property as marital property. The efforts of the parties may include the contribution of one spouse as a primary operator of the business and the other spouse as primarily a homemaker. Goderwis v. Goderwis, 780 S.W.2d 39, 1989 Ky. LEXIS 98 ( Ky. 1989 ).

Income produced from nonmarital property is marital property for purposes of disposition of property pursuant to this section. However, a mere increase in value of nonmarital property remains nonmarital. Therefore, accumulated interest earned from nonmarital funds deposited in a savings account is income and is to be treated as marital property and should be appropriately divided between the parties. Such interest is not an increase in value of a nonmarital asset. Mercer v. Mercer, 836 S.W.2d 897, 1992 Ky. LEXIS 125 ( Ky. 1992 ).

Trial court did not err in finding that the increase in value to a husband’s 401k, IRA, and life insurance policy were attributable to marital contributions where the numbers in a spreadsheet did not match the other documentation regarding the accounts, thus, the spreadsheet was admitted only as indicative of the husband’s position, and the husband did not present any evidence as to the actual growth of the accounts during the marriage, except for the beginning and ending numbers. Cobane v. Cobane, 544 S.W.3d 672, 2018 Ky. App. LEXIS 107 (Ky. Ct. App. 2018).

15.— Exchange During Marriage.

This section mandates restoration to the spouse having a nonmarital interest in property owned at the date of marriage, the appreciated value of that same interest in any property acquired in exchange during the marriage, not attributable to the joint efforts of the parties; the only requirement is that the spouse prove that the nonmarital funds have been reinvested in the property acquired in exchange. Woosnam v. Woosnam, 587 S.W.2d 262, 1979 Ky. App. LEXIS 464 (Ky. Ct. App. 1979).

16.— Tracing.

The requirement that nonmarital assets be “traced” should be fulfilled, where money is concerned, when it has been shown that nonmarital funds were deposited and commingled with marital funds and that the balance of the account was never reduced below the amount of the nonmarital funds deposited, and where that can be done the nonmarital funds must be restored. Allen v. Allen, 584 S.W.2d 599, 1979 Ky. App. LEXIS 431 (Ky. Ct. App. 1979).

The trial court properly awarded the stock purchased with nonmarital money as nonmarital property to the husband, where the husband had traced money which he had inherited to its use in the purchase of stock, and, except for one trade involving the sale of one stock and the purchase of another, the husband had kept intact the securities which he had bought from his cash inheritances. Daniels v. Daniels, 726 S.W.2d 705, 1986 Ky. App. LEXIS 1495 (Ky. Ct. App. 1986), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

Precise requirements for nonmarital asset-tracing may be appropriate for skilled business persons who maintain comprehensive records of their financial affairs, but such may not be appropriate for persons of lesser business skills or persons who are imprecise in their recordkeeping abilities. Chenault v. Chenault, 799 S.W.2d 575, 1990 Ky. LEXIS 104 ( Ky. 1990 ).

Where wife presented unchallenged evidence that she owned her home prior to her marriage, that it was sold during her marriage, that she bought and paid for a $10,000 Treasury Note prior to her marriage, and that it was reinvested during the course of the marriage, where the trial court found that at the time of the dissolution, she had in her possession $91,000 worth of liquid assets, and that during the marriage she had worked little and then only in a low income position, the conclusion was unavoidable that the money she claimed as nonmarital was included in her current asset portfolio and should be assigned to her, even though she was unable to document every interest payment and reinvestment made during a 16-year period. Chenault v. Chenault, 799 S.W.2d 575, 1990 Ky. LEXIS 104 ( Ky. 1990 ).

Contrary to the wife’s position, the fact that the current house was built with insurance proceeds, after the prior house burned, did not alter the appeals court’s conclusion that the house was the husband’s nonmarital property gifted to him by his parents; the proceeds merely served to replace the value of the house that was the husband’s existing nonmarital property. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

While a husband probably had some nonmarital interest in the marital home, he failed to introduce sufficient evidence to award him that interest as he could not produce records of his investments. Kleet v. Kleet, 264 S.W.3d 610, 2007 Ky. App. LEXIS 243 (Ky. Ct. App. 2007).

Trial court erred in awarding real property and a cabinet shop to the husband as his separate property because the property was purchased and the cabinet shop was built after the parties’ marriage and the husband failed to present clear and convincing evidence that the funds used to purchase the property and build the improvements were traced to his nonmarital assets. Because the evidence did not support the husband’s claim that only his premarital assets were used to purchase the lot and build the cabinet shop, the trial court erred in finding that them to be nonmarital property. Crawford v. Crawford, 358 S.W.3d 16, 2011 Ky. App. LEXIS 240 (Ky. Ct. App. 2011).

In finding that deposited funds did not fall below the amount of an inheritance and remained nonmarital property, the family court erred in lumping three accounts together when it applied the rule that cash can be traced by showing that nonmarital funds were deposited and commingled with marital funds and that the balance of the account was never reduced below the amount of the nonmarital funds deposited. Findings were necessary as to the particular account where the inheritance was deposited. Mattingly v. Fidanza, 411 S.W.3d 250, 2013 Ky. App. LEXIS 137 (Ky. Ct. App. 2013).

16.—Tracing.

Circuit court properly denied a wife’s motion to alter, amend, or vacate its findings on timesharing with the parties’ minor son and a portion of its classification and division of marital and nonmarital assets because, while she was obviously dissatisfied with the trial court’s decision, her threadbare recitals of the elements of a legal theory, supported by mere conclusory statements, were insufficient, and the increase in the value of the farm was due to the husband’s expenditure of nonmarital funds where, while the renovations were initially paid for using funds from a marital account, the husband testified that the purpose of depositing his inheritance money into the marital account was to reimburse the cost of renovations. Jones v. Livesay, 551 S.W.3d 47, 2018 Ky. App. LEXIS 170 (Ky. Ct. App. 2018).

As the husband was missing six years’ worth of statements from his retirement account, there was no way he could have accurately traced the interest attributable to his nonmarital portion of the account, and because it was clear he could not meet his burden, there was no error on the trial court’s part in refusing to allow him to testify on the issue. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

17.Property Owned at Time of Marriage.

Where husband owned certain property at the time of marriage and the wife had acquired no interest in it when it was sold a few years later, upon the subsequent divorce of the parties, the husband was entitled to the proceeds without reference to the value of the property at the time of the marriage. Stubblefield v. Stubblefield, 327 S.W.2d 24, 1959 Ky. LEXIS 68 ( Ky. 1959 ) (decided under prior law).

The property owned by each at time of the marriage and any increase in the value of such property to the extent that such increase did not result from joint efforts during the marriage must upon divorce be restored to the original owner. Sharp v. Sharp, 491 S.W.2d 639, 1973 Ky. LEXIS 576 ( Ky. 1973 ) (decided under prior law).

18.Improvements to Separate Property.

The court granting a divorce to the wife might order her to pay the amount expended by the husband in permanent improvements upon her property. Sandusky v. Sandusky, 166 Ky. 472 , 179 S.W. 415, 1915 Ky. LEXIS 711 ( Ky. 1915 ) (decided under prior law).

A wife was not obligated to pay the husband for improvements he made to her property or encumbrances he satisfied where he had use of the property by virtue of their marriage. Rogers v. Rogers, 295 S.W.2d 302, 1956 Ky. LEXIS 156 ( Ky. 1956 ) (decided under prior law).

Upon divorce wife was entitled to restoration of amounts she expended to improve the husband’s land although the expenditures did not enhance the value of the land. Triplett v. Triplett, 328 S.W.2d 544, 1959 Ky. LEXIS 130 ( Ky. 1959 ) (decided under prior law).

Where parties agreed to a property settlement then reconciled, the wife’s claim for funds expended by her after the reconciliation to improve the husband’s property was not affected by the prior agreement and these amounts were properly restored to the wife. Triplett v. Triplett, 328 S.W.2d 544, 1959 Ky. LEXIS 130 ( Ky. 1959 ) (decided under prior law).

Where a husband proved that he had constructed improvements on his wife’s property, but failed to prove the value of these services, he was not entitled to an interest in the property upon their divorce. Damron v. Damron, 415 S.W.2d 836, 1967 Ky. LEXIS 333 ( Ky. 1967 ) (decided under prior law).

19.Educational Degrees.

Where a husband acquired a degree to practice pharmacy by virtue of the joint efforts of he and his wife during their marriage, the pharmacy degree was marital property, and upon the dissolution of the marriage the wife was entitled to a return on her portion of the marital contribution to the cost of the husband’s education. However, the wife’s return was restricted to recouping her portion of the education investment and in no way reached the value of a license to practice pharmacy or the dividends it may have carried in the future. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

An educational degree received by one spouse while the other spouse contributes financially to the cost of obtaining the degree is not, upon a dissolution of their marriage, marital property. However, a person who has supported his or her spouse while the other spouse was in school should be fairly compensated, when the marriage is dissolved before the family is able to realize the benefits from the spouse’s advanced education. Inman v. Inman, 648 S.W.2d 847, 1982 Ky. LEXIS 335 ( Ky. 1982 ).

The proper formula to be followed in placing a value on an educational degree secured by a spouse, to which the other spouse contributed financially, is to measure the recovery by the amount of money the noncollege going spouse contributed toward living expenses, the amount of money contributed for educational costs, and the potential for increase in future earning capacity made possible by the degree, thus not treating the degree as marital property. Inman v. Inman, 648 S.W.2d 847, 1982 Ky. LEXIS 335 ( Ky. 1982 ).

A professional degree may not be treated as marital property. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

A spouse who has worked and financially contributed to the other spouse’s acquisition of a professional degree should not automatically receive a monetary award based on a prescribed formula; the dissolution of marriage statutes simply do not authorize trial courts to make such an award. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

If a divorce occurs shortly after a professional spouse has acquired a degree, an award of the major share of the parties’ marital property to the working spouse can be justified under subdivision (1)(a) of this section because that spouse will have contributed more to its acquisition and, moreover, if the divorce occurs some years later, the court can still consider the working spouse’s contribution to the professional degree in determining how to divide their marital estate; in addition, due to the degree, the professional spouse, no matter when the divorce occurs, will probably possess a larger earning capacity than the working spouse and subdivision (1)(d) permits the court to consider this “economic circumstance” in dividing the parties’ marital property. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

Where a professional degree cannot be viewed as marital property under Kentucky law, it can be considered as an asset of the marriage in looking at the parties’ respective contributions when the court is dividing marital property and allocating responsibility for marital debts. Schmitz v. Schmitz, 801 S.W.2d 333, 1990 Ky. App. LEXIS 131 (Ky. Ct. App. 1990).

The contribution of a spouse toward the other spouse’s education or professional degree may be considered; however, it was not error to deny the husband’s claim for reimbursement based on his support of his wife during the period she pursued a nursing degree. Brosick v. Brosick, 974 S.W.2d 498, 1998 Ky. App. LEXIS 60 (Ky. Ct. App. 1998).

Trial court appropriately considered an ex-wife’s claim that she contributed toward the ex-husband’s law degree and, after considering the evidence, rejected her claim. The ex-husband obtained the degree without a break in his employment and continued his parenting duties while in school; the property division was appropriate pursuant to KRS 403.190 . Shively v. Shively, 233 S.W.3d 738, 2007 Ky. App. LEXIS 328 (Ky. Ct. App. 2007).

20.Life Insurance.

Where nothing in the terms or provisions of the decree of dissolution of marriage made any provision for the disposition of the policy of insurance or of any interest of the named beneficiary, where the decedent alone determined to make his ex-wife the beneficiary at a time when they were not married, to retain her as the beneficiary during the period of their marriage, and not to take from her the interest of a beneficiary, and where he alone owned and controlled the policy and the right to change the beneficiary if he chose to do so, the ex-wife was entitled to receive the proceeds from the policy of insurance. Ping v. Denton, 562 S.W.2d 314, 1978 Ky. LEXIS 326 ( Ky. 1978 ).

Because of the construction of the word “property” as used in previous statutes and the legislature’s continued use of the word in this section, this section does not change the established rule that a spouse’s interest as beneficiary of insurance on the life of the other spouse terminates with their divorce, nor does the use of the word “assign” rather than “restore,” as in the former statute, have any significance in that respect. Kentucky Cent. Life Ins. Co. v. Willett, 557 S.W.2d 222, 1977 Ky. App. LEXIS 935 (Ky. Ct. App. 1977).

Where insurance policies were acquired during the marriage and had a present cash value, the wife should have been awarded one-half (1/2) of the cash value of the insurance policies under this section, and the requirement that the husband maintain insurance payable to children until they reached age 18 did not change the character of the insurance as property. Leveck v. Leveck, 614 S.W.2d 710, 1981 Ky. App. LEXIS 238 (Ky. Ct. App. 1981).

The present cash value of a life insurance policy obtained with marital funds is marital property subject to a division under this section; however, a term policy with no cash or present value is not subject to division. Davis v. Davis, 775 S.W.2d 942, 1989 Ky. App. LEXIS 109 (Ky. Ct. App. 1989).

Under subsection (2) of this section, all property is marital property if acquired during the marriage; by implication, the property must also be acquired before the death of a spouse, and where insurance proceeds from term life insurance policies were realized only after death, they were not acquired during the marriage. Davis v. Davis, 775 S.W.2d 942, 1989 Ky. App. LEXIS 109 (Ky. Ct. App. 1989).

21.Pension Funds.

Even though the court usually does not consider nonvested rights in a pension fund when dividing marital property, a nonvested or contingent amount in a pension fund can, where equity so requires, be viewed as an “economic circumstance” as provided for in subsection (1)(d) of this section even though the nonvested fund is not marital property and thus cannot be divided. Ratcliff v. Ratcliff, 586 S.W.2d 292, 1979 Ky. App. LEXIS 455 (Ky. Ct. App. 1979).

Court did not err in excluding the employer’s contribution to husband’s pension plan during the marriage from the marital property to be divided since the court considers not the source of the contribution, but rather whether a party’s rights in the fund have vested. Ratcliff v. Ratcliff, 586 S.W.2d 292, 1979 Ky. App. LEXIS 455 (Ky. Ct. App. 1979).

Even though a military pension, vested or nonvested, cannot be considered as divisible property, it may be used as a basis for paying maintenance if the equity of the total economic circumstances of the parties, including the spouse’s lack of property and ability to support herself, require that some amount of maintenance be awarded. Light v. Light, 599 S.W.2d 476, 1980 Ky. App. LEXIS 323 (Ky. Ct. App. 1980).

A pension is a form of deferred compensation which is earned during each day of month of military service or other work, and it cannot be considered as being earned on the day it matures; the value of a pension, if any, should therefore be marital property for the portion accrued during coverture, and this fact is true for any pension, whether nonvested or noncontributory. Light v. Light, 599 S.W.2d 476, 1980 Ky. App. LEXIS 323 (Ky. Ct. App. 1980).

Where military retirement pay was accumulated entirely during the marriage, it was “property” within the meaning of subsection (2) of this section; thus, the pay was subject to division by the court as marital property. Jones v. Jones, 680 S.W.2d 921, 1984 Ky. LEXIS 275 ( Ky. 1984 ).

A spouse’s interest in a nonvested pension plan is marital property which must be divided under this section. Poe v. Poe, 711 S.W.2d 849, 1986 Ky. App. LEXIS 1082 (Ky. Ct. App. 1986).

The correct date to value pension and profit sharing plans is the date of the dissolution decree. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

A non-vested pension is marital property, but should not be divided until it has vested; it was error to award wife certain marital property in lieu of her portion of husband’s police department pension. Glidewell v. Glidewell, 859 S.W.2d 675, 1993 Ky. App. LEXIS 51 (Ky. Ct. App. 1993).

That part of a teacher’s spouse’s pension which is over and above the value of the teacher’s plan should not be considered marital property; thus, even in a situation where the teacher/spouse has taught only a short time and has accrued a correspondingly small pension, and the other spouse has a large pension amassed after many years of work, the court is powerless to consider this “economic circumstance” when deciding how the other marital property is to be divided. Turner v. Turner, 908 S.W.2d 124, 1995 Ky. App. LEXIS 84 (Ky. Ct. App. 1995).

Where the words in a statute are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as it is written; therefore as both KRS 161.700(2) and subsection (4) of this section are unambiguous in their language leaving no doubt that the legislature intended to exempt, as marital property, the entire pensions of a teacher and his/her spouse upon divorce. Turner v. Turner, 908 S.W.2d 124, 1995 Ky. App. LEXIS 84 (Ky. Ct. App. 1995).

The pension, not the benefits, is the marital asset which is divided by the court. Brosick v. Brosick, 974 S.W.2d 498, 1998 Ky. App. LEXIS 60 (Ky. Ct. App. 1998).

Payments received by the husband after his voluntary resignation from the military under the federal Voluntary Separation Incentive program were marital property and were subject to equitable division since such payments are more closely akin to early retirement benefits than severance pay. Lykins v. Lykins, 34 S.W.3d 816, 2000 Ky. App. LEXIS 137 (Ky. Ct. App. 2000).

In a bifurcated divorce action where the only remaining contested issue related to property division was division of the parties’ pension plans, it was not error for a family court to divide the husband’s three (3) federal pension plans because 42 USCS § 659(i)(3)(B)(ii) did not exclude pension plans from property divisions; that statute was designed to exclude pension plans from the definition of alimony for purposes of enforcing child support and alimony obligations. However, the family court erred by failing to value the wife’s pension plan as of the day of dissolution for purposes of a set-off against the division of the husband’s plans; it was error to include future employer contributions to the plan in determining the value of the wife’s plan. Halicks v. Halicks, 2004 Ky. App. LEXIS 318 (Ky. Ct. App. Oct. 29, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. Oct. 29, 2004).

By its plain language, KRS 403.190(4) was to be read in conjunction, not in conflict with, KRS 161.700(2); a ruling that a husband in a divorce case was allowed to exclude the full amount of his Kentucky Teachers’ Retirement System (KTRS) account from classification and division as marital property pursuant to KRS 161.700(2) was error because the wife’s SEP-IRA qualified as a retirement account under KRS 403.190(4), and, thus, the divisionary rules of KRS 403.190(4) limited the amount of KTRS funds that the husband was allowed to exclude. Shown v. Shown, 233 S.W.3d 718, 2007 Ky. LEXIS 192 ( Ky. 2007 ).

A SEP-IRA falls within the definition of a “retirement account” as specifically defined by the Legislature in KRS 403.190(4). Shown v. Shown, 233 S.W.3d 718, 2007 Ky. LEXIS 192 ( Ky. 2007 ).

The clear, specific language of KRS 161.700(2) prevailed so as to exempt the entire amount of a husband’s teacher’s retirement account, even if that account was greater in value than the wife’s own 401(k) account; to hold otherwise would have improperly elevated the more general language of KRS 403.190(4) in derogation of the well-settled rule of statutory construction that a more specific provision was to take precedence over a more general provision. Boone v. Ballinger, 228 S.W.3d 1, 2007 Ky. App. LEXIS 133 (Ky. Ct. App. 2007).

In a divorce proceeding, the calculation of the present value of the husband’s pension plan was erroneous because a monthly benefit which included post-divorce earnings was used to determine the present value of the pension; even if the issue was not preserved by the husband, it was reviewable because the error was palpable. Hibdon v. Hibdon, 247 S.W.3d 915, 2007 Ky. App. LEXIS 484 (Ky. Ct. App. 2007).

Husband was entitled to CR 60.02(f) relief in seeking to amend language in his divorce decree relating to the division of his military retirement benefits; under KRS 403.190(1), the record did not distinguish between the marital and nonmarital portions of the husband’s military retired pay. Snodgrass v. Snodgrass, 297 S.W.3d 878, 2009 Ky. App. LEXIS 203 (Ky. Ct. App. 2009).

Family court did not err in excluding the husband’s retirement benefits from marital property because KRS 161.700 specifically exempts Kentucky Teachers’ Retirement System retirement benefits accumulated during the marriage from being classified as marital property subject to division. Brooks v. Brooks, 350 S.W.3d 823, 2011 Ky. App. LEXIS 111 (Ky. Ct. App. 2011).

Trial court erred in dividing the parties' retirement accounts because, by dividing the husband's teachers' retirement without regard to its substitution for Social Security it left the wife's Social Security benefits untouched and unconsidered, the trial court did not take any proof regarding newly created and complex financial computations in order to make an equitable distribution of the parties' entire financial circumstances where the wife had a qualified plan. Shown v. Shown, 479 S.W.3d 611, 2015 Ky. App. LEXIS 173 (Ky. Ct. App. 2015).

There was no error in including in an award to a former wife cost-of-living adjustments (COLAs) that a former husband's federal civil retirement account received after the parties divorced; this did not allow the former wife to enjoy a benefit that was earned post-decree, but it maintained the value of her martial interest vis-`-vis inflation. The original dissolution decree used the deferred distribution method and made no mention of the exclusion of any future COLAs. Brown v. Brown, 456 S.W.3d 823, 2015 Ky. App. LEXIS 3 (Ky. Ct. App. 2015).

Circuit court did not err in a dissolution of a marriage in its equal division of the husband’s retirement accounts because the court considered the contribution each spouse made in acquiring the property as the husband was the wage earner spouse and the wife was the homemaker spouse, the value of the property each spouse was receiving, the duration of the parties’ 39-year marriage, and the economic circumstances of each spouse once the property was divided. Paoli v. Paoli, 2021 Ky. App. LEXIS 83 (Ky. Ct. App. July 16, 2021).

22.Social Security Benefits.

Although the actual benefits themselves are not subject to division or set-off, a trial court’s consideration of non-prospective Social Security benefits in assessing the overall fairness of the parties’ property settlement agreement was not preempted by federal law. Gross v. Gross, 8 S.W.3d 56, 1999 Ky. App. LEXIS 152 (Ky. Ct. App. 1999).

Application of the four-factor Neidlinger test regarding the burden of proving that debt was marital debt showed that the husband had the burden of proving that debt that the husband helped the emancipated adult son incur was marital debt, as the husband helped the son create that debt without the wife’s knowledge or participation. As a result, the wife could not be held responsible for one-half of that debt in the husband and wife’s divorce proceedings, as even though KRS 403.190 created a rebuttable presumption that property acquired during the marriage was marital property, it did not create the same presumption regarding debt and the husband could not meet the husband’s burden of proof in showing that the debt the husband and son created was marital debt. Rice v. Rice, 336 S.W.3d 66, 2011 Ky. LEXIS 29 ( Ky. 2011 ).

23.Interest in Professional Service Corporation.

Goodwill can be considered as an asset in valuing a closely held corporation in a dissolution action. The most common method for valuing goodwill, the capitalization of excess earnings, is basically the amount the earnings of the professional spouse exceed those which would have been earned by a professional with similar education, experience, and skill as an employee in the same general area. Thus, the trial court erred in refusing to assign a value to the goodwill of the husband’s interest in his professional service corporation. Drake v. Drake, 809 S.W.2d 710, 1991 Ky. App. LEXIS 7 (Ky. Ct. App. 1991).

The trial court clearly erred by failing to consider personal and enterprise goodwill of the wife’s oral surgery practice. The trial court also abused its discretion by valuing the practice on an expert’s calculation of an estimated amount. Gaskill v. Robbins, 282 S.W.3d 306, 2009 Ky. LEXIS 22 ( Ky. 2009 ).

Attorney's contingent-fee contracts were marital property divisible as part of a marital estate because a contingent-fee contract was a chose in action that was a property right acquired subsequent to a marriage. Grasch v. Grasch, 536 S.W.3d 191, 2017 Ky. LEXIS 509 ( Ky. 2017 ).

When distributing a divorcing attorney's interest in a contingency-fee contract, trial courts were to apply the delayed-distribution method to determine the actual distribution of funds because (1) this afforded a non-attorney ex-spouse a rightfully obtained property interest created during the marriage while protecting an attorney from distributing anything until a case was won, since the attorney might ultimately prove to be unsuccessful in the case and receive nothing, and (2) the non-attorney ex-spouse was entitled only to a share of the contingent fee attributable to work done by the attorney spouse before the dissolution. Grasch v. Grasch, 536 S.W.3d 191, 2017 Ky. LEXIS 509 ( Ky. 2017 ).

24.Interest in Contingency Fee Contracts.

Because contingency fee cases run the risk of having zero or negative value, and because contingency fee contracts give the attorney no property interest in the client's funds, they are neither determinate things nor are they interests in the same. Accordingly, they are not property under Ky. Rev. Stat. Ann. § 403.190 . Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Trial court properly found that not-yet-received contingency fee contracts were to be used to calculate the husband's future income as they ran the risk of having zero or negative value, gave the attorney no property interest in the client's funds, and thus, they were not property under Ky. Rev. Stat. Ann. § 403.190 . Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

25.Marital Debt.

All debts incurred during marriage are not necessarily marital debts; consideration should be given to the nature of the debts based upon the receipt of benefits and the extent of participation. Bodie v. Bodie, 590 S.W.2d 895, 1979 Ky. App. LEXIS 492 (Ky. Ct. App. 1979).

While there is a presumption that all property acquired during marriage is marital, there is no similar presumption as to debts. O'Neill v. O'Neill, 600 S.W.2d 493, 1980 Ky. App. LEXIS 332 (Ky. Ct. App. 1980).

Trial court did not abuse its discretion in finding that only the husband was obligated to repay his father a $500,000 loan made during the marriage as the husband did not show definitely that the wife was aware of the extent and nature of the alleged loans. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Pursuant to KRS 403.190(1), the trial court properly found a husband responsible for the outstanding indebtedness on the marital residence, as the husband ceased making the payments because he became unemployed after he was fired for failing a mandatory drug test administered by his employer, and the husband failed to appear at the hearing, and offered no evidence to explain his loss of employment, or to demonstrate what efforts he had made to find a new job and thus prevent the foreclosure of the mortgage. Lawson v. Lawson, 228 S.W.3d 18, 2007 Ky. App. LEXIS 183 (Ky. Ct. App. 2007).

26.Real Estate.

Real estate owned by a husband prior to marriage which increased in value over the course of the marriage was not marital property to be divided upon divorce where the increase in value was caused solely by economic growth. Goderwis v. Goderwis, 780 S.W.2d 39, 1989 Ky. LEXIS 98 ( Ky. 1989 ).

Real estate purchased by a husband but conveyed to a corporation prior to marriage, which was subsequently purchased by husband and wife from the corporation with title in the name of the husband, was marital property to be divided proportionally between husband and wife upon divorce. Goderwis v. Goderwis, 780 S.W.2d 39, 1989 Ky. LEXIS 98 ( Ky. 1989 ).

The trial court erroneously held that real estate was a husband’s nonmarital property where, despite husband’s claims that he purchased the property before marriage, the husband offered no evidence to rebut the proof offered by the wife which showed the property was conveyed to the husband six years after marriage. Marcum v. Marcum, 779 S.W.2d 209, 1989 Ky. LEXIS 96 ( Ky. 1989 ).

Trial court did not err in failing to consider the effect of the tax liens on the marital home when awarding the marital home to the wife as KRS 403.190(1) did not require that the marital property be divided equally, but in just proportions; although the residence was substantially offset by the mortgages and by the property taxes also assigned to the wife, she was awarded a significant interest in the property above the encumbrances, and the trial court separately ordered that the husband would be responsible for the delinquent income taxes. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Family court erred as a matter of law in assigning one spouse a non-marital interest in the marital residence because the family court's findings of fact were not supported by substantial evidence of record and were clearly erroneous as the spouse's testimony, alone, was not sufficient to meet the spouse's burden of proof that the spouse had a non-marital interest in the marital residence. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

27.— Title.

Whether title is held individually or in some form of co-ownership, such as joint tenancy, tenancy in common, or tenancy by the entirety is not determinative in classifying property as marital or nonmarital, KRS 403.190(3). Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Even if KRS 403.190(3) is construed to create a marital presumption, the interrelationship between KRS 403.190(3) and KRS 403.190(2)(a) indicates that the presumption can be rebutted by evidence of a gift intended for one spouse regardless of the documentary title; this is consistent with both Calloway and Angel and the source of funds rule underpinning both statutory and case law to determine marital and nonmarital interests in property. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

28.— Out of State.

A Kentucky court with proper in personam jurisdiction over a party to a divorce may compel conveyance, by one of the parties, of real estate in another state, to the other party. Becker v. Becker, 576 S.W.2d 255, 1979 Ky. App. LEXIS 378 (Ky. Ct. App. 1979).

29.— Equity.

Equity is the equity in the property at the time of distribution, either at the date of the decree of dissolution, or, if the property has been sold prior thereto and the proceeds may be properly traced, then the date of the sale is the time at which the equity is computed. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

The contribution of either spouse of other than marital or nonmarital funds shall not be considered in the increase of equity of the property; thus, the contribution of one spouse as homemaker shall be considered only in affixing the percentage of the marital property to be assigned to that spouse. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

In a bifurcated divorce, the amount the husband paid to reduce the mortgage on the marital residence after the divorce decree and up to the final hearing was properly added to his equity. Once the parties are divorced, the payments which reduce the indebtedness on the mortgage increase the husband’s equity in the residence, not the marital equity. Thus, it would be unfair not to offset the mortgage reduction paid by the husband. Drake v. Drake, 809 S.W.2d 710, 1991 Ky. App. LEXIS 7 (Ky. Ct. App. 1991).

When determining a wife's equitable interest in marital real property awarded to a husband, it was an abuse of discretion to deduct hypothetical costs of sale because (1) no such costs were incurred, and (2) the husband had no imminent plans to sell the property. Farrar v. Farrar, 2014 Ky. App. LEXIS 184 (Ky. Ct. App. Dec. 12, 2014), review denied, ordered not published, 2015 Ky. LEXIS 1908 (Ky. Sept. 24, 2015).

30.— Marital Contribution.

Marital contribution is the amount expended after marriage from other than nonmarital funds in the reduction of mortgage principal, plus the value of all improvements made to the property after marriage from other than nonmarital funds. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

An “increase in value” of the husband’s life estate cannot be equated with the actual cost of improvements to the life estate; a court trying to determine the increase in value should subtract the fair market value of the property at the time of the dissolution without marital improvement from the fair market value of the property at the time of the dissolution with marital improvements. Jones v. Jones, 245 S.W.3d 815, 2008 Ky. App. LEXIS 24 (Ky. Ct. App. 2008).

31.— Nonmarital Contribution.

Nonmarital contribution is the equity in the property at the time of marriage, plus any amount expended after marriage by either spouse from traceable nonmarital funds in the reduction of mortgage principal, and/or the value of improvements made to the property from such nonmarital funds. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

State Supreme Court reversed the trial court’s judgment crediting a husband with only the amount of nonmarital property the husband contributed when the husband and wife purchased the marital residence because the record showed that the husband contributed additional nonmarital assets when the parties refinanced their mortgage, but the court held that the husband was entitled to credit for nonmarital assets the husband contributed that reduced the parties’ debt, but not nonmarital assets the husband paid as closing costs. Schoenbachler v. Minyard, 110 S.W.3d 776, 2003 Ky. LEXIS 82 ( Ky. 2003 ).

Trial court did not err in assigning the marital home to the wife where the court was not convinced that the husband had traced his non-marital contributions into the residence; the trial court’s finding was supported by substantial evidence as the husband deeded a one-half (1/2) interest in the property to the wife, and the deed stated that the husband had acquired the home after the parties’ marriage. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Where the husband and wife purchased a farm, the wife’s father gave each of them $3,996 for the down payment, and the husband failed to show that a gift from his father should be nonmarital property, the trial court could not be said to have erred in awarding 60 percent of the farm’s equity to the wife and 40 percent to the husband. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Because the Family Court found that a husband and wife both made nonmarital contributions to the purchase of a vacation villa, the court was required to award each their respective nonmarital interests in the property. Fehr v. Fehr, 284 S.W.3d 149, 2008 Ky. App. LEXIS 306 (Ky. Ct. App. 2008).

Family court in a dissolution action did not err in its restoration of the wife's non-marital interest in equity of the marital residence because the court properly multiplied the percentages of both the husband's and the wife's non-marital contributions to the total contributions (the down payment and the improvements) against the equity in the property to calculate the parties' respective non-marital shares. Smith v. Smith, 503 S.W.3d 178, 2016 Ky. App. LEXIS 181 (Ky. Ct. App. 2016).

32.— Total Contribution.

Total contribution is the sum of nonmarital and marital contributions. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

The formula utilized in Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981), provides a useful, though not exclusive, tool in the pursuit of a just and equitable solution with regard to apportionment and the disposition of real property. Rupley v. Rupley, 776 S.W.2d 849, 1989 Ky. App. LEXIS 101 (Ky. Ct. App. 1989).

33.—Marital Residence.

Where the home was paid for, it was the only home that the child had known, and the husband was given approximately $8,200 more value in the division of the marital estate, the trial court did not err by allowing the wife to reside in the marital residence until the emancipation of their child, even though the wife remarried and continued to reside in the home. Wood v. Wood, 720 S.W.2d 934, 1986 Ky. App. LEXIS 1458 (Ky. Ct. App. 1986).

Although the record established that a house jointly held by parties was purchased from husband’s own account, just as wife could not argue that her contribution to the marriage and the enterprise was not accurately reflected in the ownership of assets, husband was likewise precluded from arguing that the house was his sole and separate property, since in consideration of wife’s reciprocal release under antenuptial agreement, husband renounced and released unto wife any property which she might own at the termination of the marriage. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Husband and wife were each entitled to a one-half share in the home because the equity in the home was marital property; by repeatedly promising the wife that the house was “half hers” and executing a deed reflecting that agreement, the husband transferred his nonmarital interest in the home to the marital estate as a gift. Barber v. Bradley, 505 S.W.3d 749, 2016 Ky. LEXIS 632 ( Ky. 2016 ).

During marriage either spouse may “gift” his or her nonmarital funds to the parties' marital estate including by expending those funds on the marital home with express representations to the other spouse that the home will be their joint, marital property. Barber v. Bradley, 505 S.W.3d 749, 2016 Ky. LEXIS 632 ( Ky. 2016 ).

Circuit court’s equal division of the equity in the marital residence when the husband was the wage earner and the wife mostly was the homemaker during the 39-year marriage was not in error because the court utilized the property valuation administrator’s value, then subtracted the outstanding mortgage, and calculated the parties’ equity in the marital residence. Paoli v. Paoli, 2021 Ky. App. LEXIS 83 (Ky. Ct. App. July 16, 2021).

34.Reimbursement for Mortgage Payments.

The cost of paying taxes, providing insurance and payment of interest on the loan can properly be imposed upon a husband as a part of his responsibility to provide a home for his children, but to the extent that his mortgage payments reduce the principal of the indebtedness he is entitled to reimbursement; thus the judgment should be amended to provide that from the proceeds of the sale of the house the balance, if any, of the mortgage debt plus the costs of sale shall be paid, and the husband shall then be reimbursed for any amount that the mortgage payments made by him since the entry of the decree have reduced the principal balance of the indebtedness and the remaining proceeds shall be equally divided between the parties. Gibson v. Gibson, 597 S.W.2d 622, 1980 Ky. App. LEXIS 308 (Ky. Ct. App. 1980).

When, in a dissolution of marriage action, the trial court determined the parties’ respective interests in real property they had held as tenants by the entirety, and the husband had previously mortgaged his interest in the property without the wife’s consent, when that mortgagee sought to foreclose, it could only foreclose on the husband’s interest in the property, as determined by the dissolution of marriage court, even though it was not a party to the dissolution of marriage action. Bank One, NA v. Vaught, 2003 Ky. App. LEXIS 176 (Ky. Ct. App. July 18, 2003).

35.Workers’ Compensation Award.

A lump-sum award of workers’ compensation received by one of the spouses during the pendency of a divorce action between them is marital property within the meaning of subsection (2) of this section. Johnson v. Johnson, 638 S.W.2d 703, 1982 Ky. LEXIS 293 ( Ky. 1982 ).

In enacting its no-fault divorce statute, the general assembly specifically excluded certain kinds of property from the category of “marital property” and workers’ compensation benefits, in the form of either a settlement or ongoing benefits, were not excluded; as such, there was a legislative intent not to exclude such benefits. Accordingly, certificates of deposit purchased by husband with proceeds of workers’ compensation award were marital property. Quiggins v. Quiggins, 637 S.W.2d 666, 1982 Ky. App. LEXIS 236 (Ky. Ct. App. 1982).

Workers’ compensation award payments that are received, or weekly benefits that have actually accrued but have not yet been paid, as of the date of the dissolution of the marriage are to be included as marital property, just as earned income, but payments which accrue and are paid after the dissolution of the marriage are not part of the marital property. Mosley v. Mosley, 682 S.W.2d 462, 1985 Ky. App. LEXIS 486 (Ky. Ct. App. 1985).

Ongoing workers’ compensation benefits, which had not been received prior to the dissolution of the marriage, were not marital property subject to division. Mosley v. Mosley, 682 S.W.2d 462, 1985 Ky. App. LEXIS 486 (Ky. Ct. App. 1985).

Where the wife did nothing to contribute to the acquisition of the award to husband for injuries sustained in the course of his employment, there was very little property to be divided other than the award, the duration of the marriage was only 19 months, and the parties had been separated the last six of those, the husband was totally disabled, while the wife was able-bodied, and there were no children of the marriage, any disposition of the award to the wife above $7,500 that was voluntarily paid to her would be an abuse of discretion. Reeves v. Reeves, 753 S.W.2d 301, 1988 Ky. App. LEXIS 63 (Ky. Ct. App. 1988).

Portion of workers’ compensation lump-sum settlement which represented the years that husband was not married to wife was nonmarital and any personalty which was purchased with that money was likewise nonmarital provided it could be properly traced; however, the portion of the award which represented those years that the parties were married was marital. Jessee v. Jessee, 883 S.W.2d 507, 1994 Ky. App. LEXIS 106 (Ky. Ct. App. 1994).

36.Personal Injury Award.

Money recovered by a spouse in a law suit as damages for pain and suffering is not marital property. Weakley v. Weakley, 731 S.W.2d 243, 1987 Ky. LEXIS 220 ( Ky. 1987 ).

To the extent that a personal injury award for loss of earnings and permanent impairment of ability to earn money is applicable to the years while the marriage existed, it is marital property; to the extent that the award can be prorated to the remaining years of life expectancy following the dissolution of the marriage, it is nonmarital. Weakley v. Weakley, 731 S.W.2d 243, 1987 Ky. LEXIS 220 ( Ky. 1987 ).

When a personal injury occurs before the marriage, the entire compensation received therefor is nonmarital, regardless of when the judgment or settlement is obtained or whether the recovery is for the loss of wages, replacement of earning capacity, or pain and suffering. Weakley v. Weakley, 731 S.W.2d 243, 1987 Ky. LEXIS 220 ( Ky. 1987 ).

In a divorce action, the husband provided sufficient evidence to show that the settlement proceeds from a medical malpractice action were intended to compensate him for his pain and suffering for having undergone the unnecessary medical procedures and thus, that the proceeds were nonmarital property. Bond v. Bond, 2021 Ky. App. LEXIS 103 (Ky. Ct. App. Oct. 1, 2021).

37.Procedure.

Under subsection (2) of CR 1, as complemented and made applicable to divorce proceedings by KRS 403.130(1), statutory procedural requirements prevail over inconsistent procedures in the Civil Rules in all statutory proceedings; accordingly, the failure of parties in a divorce action to request the trial court for more definite findings, which ordinarily would prevent the Supreme Court from giving relief under CR 52.04, was not fatal to an appeal challenging the perfunctory manner in which the trial judge made his findings where the trial judge did not comply with the procedural requirements of this section and did not make specific findings of fact as required by CR 52.01. Hollon v. Hollon, 623 S.W.2d 898, 1981 Ky. LEXIS 292 ( Ky. 1981 ), overruled, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

A decree of dissolution of the marriage could be entered prior to the determination of disposition of the property. Putnam v. Fanning, 495 S.W.2d 175, 1973 Ky. LEXIS 391 ( Ky. 1973 ).

38.Factors Considered.

In a divorce action where both parties have contributed to the estate, the chancellor should ascertain the proportion contributed by each, sell the property, and distribute the proceeds in accordance with these proportions. Hanks v. Hanks, 282 Ky. 236 , 138 S.W.2d 362, 1940 Ky. LEXIS 155 ( Ky. 1940 ) (decided under prior law).

Where spouses had each maintained separate businesses and accumulated considerable property without maintaining their interests separately, the court could not reconstruct all of the mixed transactions of the parties but must divide their property on a consideration of the record of their lives and business relations as a whole. Wilcox v. Wilcox, 266 S.W.2d 96, 1954 Ky. LEXIS 778 ( Ky. 1954 ) (decided under prior law).

Where the wife, who was the breadwinner while the husband was obtaining an education to enable him to earn a substantial income, managed the household, attended to the needs of the children, and continued to produce income, the trial court should have considered the entire team effort which resulted in the accumulation of property and it was error to consider only the dollars earned respectively by the husband and wife in marshaling the property acquired during marriage. Beggs v. Beggs, 479 S.W.2d 598, 1972 Ky. LEXIS 300 ( Ky. 1972 ) (decided under prior law).

Where an absolute divorce was granted to the wife, in arriving at a property division the chancellor should have first arrived at the net values of the respective estates of the parties at the time of their marriage, made the proper property restorations, and then determined the value of the estate ascribable to the joint efforts of the parties, including their investments of money and services in business, and household work which should have been divided between the husband and wife on an equitable basis. Dahlenburg v. Dahlenburg, 479 S.W.2d 606, 1972 Ky. LEXIS 302 ( Ky. 1972 ) (decided under prior law).

Where a residence is to be sold so that there can be restoration of the funds used for its purchase, there is no legal impediment to postponing the sale during the minority of the child. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ) (decided under prior law).

Court of appeals erred in a marital dissolution action in holding that the husband was entitled to 100 percent of his IRA because the court of appeals, like the trial court, did not specifically consider all of the KRS 403.190(1) factors, including the value of the property set apart to each spouse, the duration of the marriage, and the economic circumstances of each spouse. Ford v. Perkins, 382 S.W.3d 821, 2012 Ky. LEXIS 163 ( Ky. 2012 ).

Trial court erred under KRS 403.190(1) in determining that a grantor retained annuity trust (GRAT) was “property” of a marriage subject to division upon dissolution of the marriage; the real estate and partnership interests were validly removed from the marital estate. Ensor v. Ensor, 431 S.W.3d 462, 2013 Ky. App. LEXIS 112 (Ky. Ct. App. 2013).

Mechanism the trial court devised to divide the couple's marital property, a random draw, was an abuse of discretion because it did not take into account the factors identified by the statute; a random draw did not differentiate between the value of the property set apart to each spouse. Barber v. Bradley, 505 S.W.3d 749, 2016 Ky. LEXIS 632 ( Ky. 2016 ).

Trial court’s assignment of both vehicles to the father constituted an abuse of discretion regarding the division of the parties’ limited marital property; the mother’s parents’ decision to provide her with the use of another vehicle was not a relevant factor in the division of marital property, and while one of the vehicle might be of limited utility to her while the children are young, it might become more useful as the children get older, plus the equity in each vehicle was roughly the same. Keith v. Keith, 556 S.W.3d 10, 2018 Ky. App. LEXIS 204 (Ky. Ct. App. 2018).

39.Evidence.

Where the evidence showed that the husband’s property acquired prior to marriage had been used to purchase the family residence while wife had acted as homemaker, it was sufficient to award less than one third to wife. Johnson v. Johnson, 564 S.W.2d 221, 1978 Ky. App. LEXIS 498 (Ky. Ct. App. 1978).

Where $5,000 received by a husband from an insurance policy on his father’s life was put in his farming business and used for operating costs, the trial court’s finding that this $5,000 could be traced to cash and personal property held by the husband was not supported by the record. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

Factors relevant to determining whether particular property is a gift include the source of the money used to purchase the item, the intent of the donor, and the status of the marriage at the time of the transfer; however, the intent of the purported donor is considered the primary factor in determining whether a transfer of property is a gift. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Calloway rule is not different from the Angel rule since both attempt to effectuate the intent of the donor; in determining the intent of the donor, a court should look at all the circumstances such as statements of the donor, statements of the spouses, the tax treatment of the gift, whether the gift is jointly titled, the relationship of the parties, and the intended use of the property. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Family court abused its discretion and committed reversible error when it did not allow the testimony of the attorney who drafted trusts when determining whether there was an inter vivos gift from a husband to a wife of the trust corpus because the exclusion deprived the husband the right to call a third fact witness where the only previous fact witnesses were the parties with opposing views of his donative intent; the exclusion had the potential to affect the outcome of the lawsuit. Lewis v. Fulkerson, 555 S.W.3d 432, 2017 Ky. App. LEXIS 556 (Ky. Ct. App. 2017).

40.Presumptions.

This section does not mention presumptions in the division of marital property and such presumptions should not be indulged in at all; accordingly, where the court of appeals stated a presumption of equal distribution, case would be reversed and remanded with directions to apply statutory standards. Herron v. Herron, 573 S.W.2d 342, 1978 Ky. LEXIS 409 ( Ky. 1978 ).

Subsection (3) of this section provides that all property acquired by either spouse during marriage is presumed to be marital property unless there is proof that the property was acquired pursuant to an exception listed in subsection (2) of this section. Marcum v. Marcum, 779 S.W.2d 209, 1989 Ky. LEXIS 96 ( Ky. 1989 ).

41.Divorce from Bed and Board.

Upon a divorce from bed and board, the status of the parties as to all previously acquired property remained unchanged. Stevens v. Stevens, 313 Ky. 294 , 231 S.W.2d 49, 1950 Ky. LEXIS 877 ( Ky. 1950 ) (decided under prior law).

A divorce from bed and board did not affect the status of property previously acquired and the court erred in refusing to restore property as an incident of an absolute divorce on the basis that the determination of the parties’ property rights were finally determined in their earlier divorce from bed and board. Gentry v. Gentry, 318 S.W.2d 870, 1958 Ky. LEXIS 155 ( Ky. 1958 ) (decided under prior law).

By a judgment declaring that the parties were divorced from bed and board, the marriage was not dissolved to the extent that property earned through joint effort must be allocated, and laws regarding restoration did not apply to such divorce. Bailey v. Bailey, 474 S.W.2d 389, 1971 Ky. LEXIS 114 ( Ky. 1971 ) (decided under prior law).

42.Form of Award.

Where the chancellor found that the wife was entitled to 15 percent of a business and the husband entitled to the balance, the wife should have been awarded the value of her interest rather than the minority interest in the business. Goldstein v. Goldstein, 377 S.W.2d 52, 1964 Ky. LEXIS 473 ( Ky. 1964 ) (decided under prior law).

43.Amount of Maintenance.

A wife was entitled to maintenance in such sum that, when added to her other source of income, would be sufficient to provide for her in the manner to which these parties have become accustomed. Newman v. Newman, 597 S.W.2d 137, 1980 Ky. LEXIS 202 ( Ky. 1980 ).

In the fixing of maintenance the trial court must take into consideration the assignment of property made pursuant to the provisions of this section and the factors delineated in KRS 403.200 ; as a matter of fact, there must be a division of property before considering the amount of maintenance. Newman v. Newman, 597 S.W.2d 137, 1980 Ky. LEXIS 202 ( Ky. 1980 ).

This section clearly requires that in distributing marital property, the judge must separate nonmarital property and divide marital property in “just proportions” after considering all factors; accordingly, where a divorce judgment described the property to be divided and its recipient but only valued a portion of the property, the maintenance award, which is partly dependant on the amount of property owned by the needy spouse, would be vacated until the trial judge complied with the property distribution statute. Hollon v. Hollon, 623 S.W.2d 898, 1981 Ky. LEXIS 292 ( Ky. 1981 ), overruled, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

It was proper to consider the level of income attained by a doctor after finishing medical school and residency, which was considerably higher than his income during the marriage, as the figure was relevant both to his ability to pay support and as an indicia of the standard of living established during the marriage by attainment of the professional degree. Lovett v. Lovett, 688 S.W.2d 329, 1985 Ky. LEXIS 218 ( Ky. 1985 ).

Where a husband made monthly payments to the wife that were more than the husband was ordered to pay for temporary maintenance, it was error to find that the husband owed a maintenance arrearage. There was no statutory requirement that temporary maintenance be paid out of non-marital property and the husband used a portion of what was later determined to be the wife’s share of monthly consulting payments to satisfy the husband’s temporary maintenance obligation to the wife. Horvath v. Horvath, 250 S.W.3d 316, 2008 Ky. LEXIS 103 ( Ky. 2008 ).

44.Settlement Agreement.

The parties’ agreement to sell the wife’s car during their second marriage on the condition that the husband replace it with the same make and model did not annul the first divorce decree which provided that the husband was to transfer a new car to the wife, where the wife brought the car with her into the second marriage, and there was a like-kind exchange which in no way could be construed as an attempt to annul the first divorce judgment. Gray v. Gray, 745 S.W.2d 657, 1988 Ky. App. LEXIS 9 (Ky. Ct. App. 1988).

With regard to the disposition of property market value, investment and earning value, and net asset value are all legitimate considerations in the general case when evaluating a corporation or its stock, and the weight to be accorded each element depends on the circumstances of the individual case. Rupley v. Rupley, 776 S.W.2d 849, 1989 Ky. App. LEXIS 101 (Ky. Ct. App. 1989).

A husband and wife may define by agreement their rights in each other’s property, regardless of any rights which would otherwise have been excluded or conferred by this section; such agreements, provided they are otherwise valid contracts, are entitled to enforcement upon dissolution of the marriage. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Family court abused its discretion in modifying the Qualified Domestic Relations Order (QDRO) in reassigning the husband’s nonmarital property to the wife, KRS 403.190(1); because the parties agreed that a certain amount was specifically the husband’s nonmarital property, it could not now alter the terms of the agreement. Willis v. Willis, 362 S.W.3d 372, 2012 Ky. App. LEXIS 47 (Ky. Ct. App. 2012).

45.Antenuptial Agreement.

It is recognized that the possibility of dissolution is significant enough that the parties to a marriage might prudently consider it in the context of an antenuptial agreement at the time the marriage is entered into. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

An antenuptial agreement, freely and voluntarily executed by the parties after full disclosure of their respective assets and marital property rights, and with the intent of providing for disposition of property in the event of divorce as well as in the event of death, does not violate public policy and to the extent of any inconsistency with this holding, prior cases are overruled. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Although antenuptial agreements providing for the disposition of property on divorce are permitted, it is possible that a particular agreement may be invalid or even void when measured by appropriate standards such as: (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) is the agreement unconscionable? (3) have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable? Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Antenuptial agreements must be examined at the time enforcement is sought; an antenuptial agreement will not be enforced if facts and circumstances have changed so as to make its enforcement unconscionable. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Antenuptial agreements in contemplation of divorce may apply only to disposition of property and maintenance. Questions of child support, child custody and visitation are not subject to such agreements; and unless the parties otherwise agree, nonmarital property retains its character as such. Edwardson v. Edwardson, 798 S.W.2d 941, 1990 Ky. LEXIS 124 ( Ky. 1990 ).

Trial courts have been vested with broad discretion to modify or invalidate antenuptial agreements, and parties and their counsel should be admonished to refrain from entering into agreements lacking mutuality and without a rational basis. Edwardson v. Edwardson, 798 S.W.2d 941, 1990 Ky. LEXIS 124 ( Ky. 1990 ).

Where wife, upon death of husband, had income in excess of $6,300 per month and estate valued at $1 million and there was evidence that the parties maintained separate bank accounts throughout the marriage, prenuptial agreement providing for a $1,000 settlement of any claims for dower or maintenance was not unconscionable at the time of enforcement of the agreement. Lawson v. Loid, 896 S.W.2d 1, 1995 Ky. LEXIS 24 ( Ky. 1995 ).

46.— Mutuality Requirement.

Mutuality requirement was satisfied in prenuptial agreement providing for a $1,000 settlement of any claims for dower or maintenance because wife had some income at the time of execution and sum, by 1952 standards, was not inequitable from what the husband could have expected to receive from her estate if she died soon after the agreement. Lawson v. Loid, 896 S.W.2d 1, 1995 Ky. LEXIS 24 ( Ky. 1995 ).

47.— Full Disclosure of Assets.

The burden of proof on the issue of full disclosure of assets at the time the agreement was signed in a prenuptial contract rests on the party relying on such agreement. Lawson v. Loid, 896 S.W.2d 1, 1995 Ky. LEXIS 24 ( Ky. 1995 ).

48.Waiver of Error.

The findings of fact did not address the manner in which the trial court arrived at its determination that the $35,000.00 down payment on a house constituted marital property. The court apparently did not make a factual finding regarding the $35,000.00 and because the parties did not request the court to do so, the error was waived. Underwood v. Underwood, 836 S.W.2d 439, 1992 Ky. App. LEXIS 164 (Ky. Ct. App. 1992), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

49.Division in Particular Cases.

Husband was entitled to recover diamond engagement ring given to wife prior to marriage upon judgment of divorce. Walter v. Moore, 198 Ky. 744 , 249 S.W. 1041, 1923 Ky. LEXIS 550 ( Ky. 1923 ) (decided under prior law).

Where husband contributed to purchase of property by farming and wife by teaching school, which she did during greater portion of her married life, she was entitled to one-half (1/2) of farm and one-half (1/2) of crops harvested in last year of marriage. Bell v. Bell, 299 Ky. 7 , 184 S.W.2d 124, 1944 Ky. LEXIS 1007 ( Ky. 1944 ) (decided under prior law).

Where, during married life, husband and wife had accumulated a substantial estate, which was held jointly until husband deeded his interest to wife shortly before final separation, judgment allowing husband sum of money equal to one-half (1/2) interest in property was proper, in view of evidence that husband had contributed equally with wife in accumulating the estate, as against wife’s contention that she had furnished all the money with which the property was acquired. Potts v. Potts, 299 Ky. 216 , 184 S.W.2d 987, 1945 Ky. LEXIS 398 ( Ky. 1945 ) (decided under prior law).

Where evidence showed husband and wife had, from the inception of marriage, treated their property accumulations as joint or partnership property, wife was entitled to one-half (1/2) of all property accumulated during marriage, upon being granted a divorce. Tutt v. Tutt, 304 Ky. 480 , 200 S.W.2d 924, 1947 Ky. LEXIS 651 ( Ky. 1947 ) (decided under prior law).

Where wife purchased, in the name of her daughter, a house with funds which she claimed were earned by her in the operation of a boardinghouse and husband contended that the funds came from his earnings which he turned over to the wife and further claimed that the boardinghouse was operated jointly by him and his wife, the chancellor did not err in a suit for divorce and for setting aside the deed by ordering that the parties share equally in the house. Smithson v. Smithson, 309 Ky. 107 , 216 S.W.2d 911, 1949 Ky. LEXIS 646 ( Ky. 1949 ) (decided under prior law).

Where wife had some property at the time of the marriage and husband did not, wife handled all financial dealings of the parties and took title to all of their property in her name individually, and the earnings of the parties during the marriage were substantially equal, the court in granting the husband a divorce should require the wife to disclose all property in her name from which the value of her property at the time of the marriage should be restored to her and the balance divided equitably between the parties. Hannan v. Hannan, 256 S.W.2d 485, 1953 Ky. LEXIS 738 ( Ky. 1953 ) (decided under prior law).

Where the parties purchased a motel using funds in the husband’s name to pay down payment, the wife ran the motel alone while the husband was in military service, she substantially improved the property by her own labor, and the motel was sold at substantial profit, the chancellor did not err in finding that the wife’s contribution was equal to the husband’s and dividing the remaining proceeds from the sale equally between the parties upon their divorce. Cook v. Cook, 373 S.W.2d 432, 1963 Ky. LEXIS 163 ( Ky. 1963 ) (decided under prior law).

Absent any indication that the family court considered factors other than the statutory criteria in KRS 403.190(1) in its division of the marital estate or that it abused its discretion in any other manner, there was no error in awarding a husband substantially less of the marital estate. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

Absent any indication that the family court considered factors other than the statutory criteria in KRS 403.190(1) in its division of the marital estate or that it abused its discretion in any other manner, there was no error in awarding a husband substantially less of the marital estate. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

In this dissolution action, the trial court erred in determining the estate planning tool was “property” of the marriage subject to division upon dissolution because the real estate and partnership interests were validly removed from the marital estate. Execution of the warranty deeds transferring the husband and wife’s interests to the partnership and the subsequent assignment of the husband’s partnership interest to the tool constituted the irrevocable transfer to the trust of a present interest–the partnership interests–for a valid trust purpose: transferring assets to the parties’ children as securely and with as limited tax liability as possible. Ensor v. Ensor, 2013 Ky. App. LEXIS 61 (Ky. Ct. App. Apr. 12, 2013), op. withdrawn, sub. op., 431 S.W.3d 462, 2013 Ky. App. LEXIS 112 (Ky. Ct. App. 2013).

Family court abused its discretion in awarding one spouse a majority percentage of a marital investment account based solely on the future benefit of the parties' adult disabled child because the funds from this account were not used for their child's benefit; rather, their child's expenses were covered by the child's own disability benefits and a portion of the spouse's income. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

Family court abused its discretion in failing to consider the value of the parties' respective marital vehicles and properly dividing this marital property because one spouse provided documentary evidence to establish the fair market value of the spouse's vehicle as well as the outstanding balance of the loan for that vehicle. On remand, the family court was to consider the value of the parties' respective vehicles in dividing the marital assets. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

50.Valuation.

Valuation of an oral surgery practice in a divorce case was not erroneous under KRS 403.190(1) because Kentucky had not adopted one method of valuation, and the trial court’s valuation based upon a 2003 evaluation was well-reasoned and based upon ample evidence; there was no abuse of discretion by failing to adopt the business valuation performed closest to the date of the decree. A wife was in sole control of the practice, she failed to disclose relevant transfers and dissipations, and there was unusually low income generated by the practice in the following year. Gaskill v. Robbins, 361 S.W.3d 337, 2012 Ky. App. LEXIS 22 (Ky. Ct. App. 2012).

Wife failed to show that the trial court committed clear error in using the husband’s valuation of property, using retail value, rather than the wife’s valuation, using resale value. Smith v. Smith, 450 S.W.3d 729, 2014 Ky. App. LEXIS 83 (Ky. Ct. App. 2014).

Cited in:

Sharp v. Sharp, 491 S.W.2d 639, 1973 Ky. LEXIS 576 ( Ky. 1973 ); Purdom v. Purdom, 498 S.W.2d 131, 1973 Ky. LEXIS 287 ( Ky. 1973 ); Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ); Hoffman v. Hoffman, 553 S.W.2d 474, 1977 Ky. App. LEXIS 746 (Ky. Ct. App. 1977); Bruton v. Bruton, 569 S.W.2d 182, 1978 Ky. App. LEXIS 556 (Ky. Ct. App. 1978); Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983); Murphy v. Bowen, 756 S.W.2d 149, 1988 Ky. App. LEXIS 122 (Ky. Ct. App. 1988); Waggoner v. Waggoner, 846 S.W.2d 704, 1992 Ky. LEXIS 189 ( Ky. 1992 ); Williams v. Farmers Stockyard, Inc., 297 S.W.3d 586, 2009 Ky. App. LEXIS 126 (Ky. Ct. App. 2009); Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 )Sadler v. Van Buskirk, — S.W.3d —, 2013 Ky. App. LEXIS 159 (Ky. Ct. App. 2013); Stone v. Dubarry, 513 S.W.3d 325, 2016 Ky. LEXIS 557 ( Ky. 2016 ).

Opinions of Attorney General.

In a suit to dispose of real property in a divorce action an appraisal under KRS 426.520 is not necessary, since the property is merely being restored and divided as between the husband and wife. OAG 76-609 .

Research References and Practice Aids

Kentucky Bench & Bar.

Bagby, Estate Planning and Antenuptial Agreements, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 12.

Mazanec, A Degree or License as Marital Property: The Inman Case, Vol. 46, No. 1, January, 1982, Ky. Bench and Bar 18.

Potter and Ewing, Apportioning Marital and NonMarital Interests in a Single Asset, Vol. 47, No. 2, April, 1983, Ky. Bench & Bar 14.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Gilbert and Wise, Apportioning Military Pensions Under The Uniformed Services Former Spouses Protection Act and Kentucky Law, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 26.

Copeland, Injured Spouses in Dying Marriages, Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 12.

Kentucky Law Journal.

Kentucky Law Survey, Wilson, Domestic Relations, 65 Ky. L.J. 383 (1976-77).

Comments, That Was No Wife, That Was My Lady: Is Marvin v. Marvin Appropriate for Kentucky? 66 Ky. L.J. 707 (1977-1978).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

Notes, Restoration of Property: Barrier to Interspousal Gifts, 67 Ky. L.J. 173 (1978-1979).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Graham, Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property Upon Divorce, 73 Ky. L.J. 41 (1984-85).

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Goff, Title Doesn’t Matter, Does It?: An Analysis of Kentucky’s Property Disposition Law and Its Treatment of Transmutation, 89 Ky. L.J. 255 (2000-2001).

Article: Accounting for Time: A Relative-Interest Approach to the Division of Equity in Hybrid-Property Homes Upon Divorce, 100 Ky. L.J. 585 (2011/2012).

Northern Kentucky Law Review.

Notes, Intangible Educational and Professional Attainments as Divisible Marital Property, 7 N. Ky. L. Rev. 145 (1980).

Notes, Workers' Compensation ? Marital Property ? Johnson v. Johnson, 10 N. Ky. L. Rev. 531 (1983).

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Findings of Fact and Conclusions of Law — No Settlement Agreement, Form 253.27.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Legal Separation, Form 253.04.

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.7, 24.8, 24.9, 24.12, 24.14, 24.17, 24.18, 24.20, 24.21; 1991 Supp., §§ 24.16, 24.17.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.1.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.4.

Petrilli, Kentucky Family Law, Maintenance, § 25.11.

Petrilli, Kentucky Family Law, 1991 Supp., Personal Rights and Privileges Resulting from Marriage, § 14.2.

Petrilli, Kentucky Family Law, Property Rights, § 14.3.

Petrilli, Kentucky Family Law, Separation Agreements, § 19.19.

Petrilli, Kentucky Family Law, Support of the Family, § 16.8.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.5.

403.200. Maintenance — Court may grant order for either spouse.

  1. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of a marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
    1. Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
    2. Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
  2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
    1. The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
    2. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
    3. The standard of living established during the marriage;
    4. The duration of the marriage;
    5. The age, and the physical and emotional condition of the spouse seeking maintenance; and
    6. The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

History. Enact. Acts 1972, ch. 182, § 10.

NOTES TO DECISIONS

1.In General.

The primary thrust of maintenance is towards economic stability. Compensation is allowed to the claiming spouse for loss of marital support and maintenance which will allow him or her to become self-sufficient. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

Based upon an appellate court's decision to reverse a family court's assignment of non-marital interests and division of marital property, the family court's decision on maintenance had to be vacated. On remand, after the court had properly assigned and divided the marital and non-marital (if any) property, the court was then to determine whether a requesting spouse was entitled to an award of maintenance considering the statutory factors. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

The primary thrust of maintenance is towards economic stability. Compensation is allowed to the claiming spouse for loss of marital support and maintenance which will allow him or her to become self-sufficient. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

2.Prerequisites to Grant of Maintenance.

The trial court may grant maintenance to a spouse only if it finds that the spouse seeking maintenance lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. Mosley v. Mosley, 682 S.W.2d 462, 1985 Ky. App. LEXIS 486 (Ky. Ct. App. 1985).

In this dissolution action, because the instant court was reversing and remanding this case to the trial court for correction of the property division and equalization awards, it must also necessarily reverse and remand on the issue of maintenance because the determination of entitlement to maintenance could not be made until a proper division of marital property was completed Ensor v. Ensor, 2013 Ky. App. LEXIS 61 (Ky. Ct. App. Apr. 12, 2013), op. withdrawn, sub. op., 431 S.W.3d 462, 2013 Ky. App. LEXIS 112 (Ky. Ct. App. 2013).

3.Discretion of Court.

Awarding of maintenance is a matter within the discretion of the trial court. Browning v. Browning, 551 S.W.2d 823, 1977 Ky. App. LEXIS 707 (Ky. Ct. App. 1977).

The trial court did not err in including the value of the goodwill of medical corporation in which husband held a one-third interest and in adopting a capitalization of excess earnings method in so doing when it divided the marital assets and awarded maintenance. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

Trial court was within its discretion in ordering maintenance retroactive to the date the wife’s motion was made. Higbee v. Higbee, 89 S.W.3d 409, 2002 Ky. LEXIS 222 ( Ky. 2002 ).

4.—Abuse.

Where evidence indicated wife would not have sufficient means to support herself after sale of the jointly acquired property and did not have qualifications to seek employment, court abused its discretion in not awarding maintenance. Priddy v. Priddy, 504 S.W.2d 711, 1974 Ky. LEXIS 831 ( Ky. 1974 ).

Where at the time of divorce, husband and wife had been married 35 years, the wife was 52, award of four years maintenance during which time she would complete her education as a teacher was an abuse of discretion in light of fact teaching positions were hard to acquire and she could not work for more than 10 or 15 years at best. Frost v. Frost, 581 S.W.2d 582, 1979 Ky. App. LEXIS 408 (Ky. Ct. App. 1979).

Where the wife in a divorce action was 53 years old, needed a tumor operation, and earned $11,400 annually as a teacher and her husband was 58 years old, vice president of a power company and earning $51,000 annually, it was an abuse of discretion to award the wife maintenance of $250 per month for three years only, since a person who can only eke out a living should not be required to have a standard of living below a person who is unable to work at all; accordingly, the maintenance should be for life or until remarriage. Combs v. Combs, 622 S.W.2d 679, 1981 Ky. App. LEXIS 295 (Ky. Ct. App. 1981).

In view of the fact that the trial court itself found the former wife’s reasonable living expenses to be twice her income, and found that the former husband had excess income with which to pay child support and/or maintenance, the trial court abused its discretion when it did not award maintenance to the wife. Atwood v. Atwood, 643 S.W.2d 263, 1982 Ky. App. LEXIS 274 (Ky. Ct. App. 1982).

The failure to award spouse a sum sufficient to allow him to meet his needs without requiring that he depend on the generosity of family and friends was plainly an abuse of discretion. Leitsch v. Leitsch, 839 S.W.2d 287, 1992 Ky. App. LEXIS 209 (Ky. Ct. App. 1992).

It was abuse of discretion for a trial court to award a 46-year-old wife maintenance beyond retirement age to the time of her death, remarriage, or cohabitation, particularly since at that time she will receive half of her ex-husband’s pension - as he will receive half of hers - thus making their incomes more equal. Weldon v. Weldon, 957 S.W.2d 283, 1997 Ky. App. LEXIS 99 (Ky. Ct. App. 1997).

Trial court abused its discretion in improperly imputing income to a wife for which there was no evidentiary basis and in limiting the duration of a maintenance award to five (5) years. Gripshover v. Gripshover, 2005 Ky. App. LEXIS 181 (Ky. Ct. App. Aug. 19, 2005), aff'd in part and rev'd in part, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

Because the duration of a maintenance award could no more be based on the college expenses of an emancipated child than could the monthly amount, the trial court erred only in adding four additional years of maintenance, based solely on anticipated college expenses. Bailey v. Bailey, 246 S.W.3d 895, 2007 Ky. App. LEXIS 351 (Ky. Ct. App. 2007).

Trial court’s open-ended maintenance award to a wife was an abuse of discretion because (1) the wife had a college degree, prior work experience, had expressed an interest in re-entering the workforce, and could, with additional training, work outside the home and obtain financial independence from the husband, so, to award open-ended maintenance thwarted the goal of severing all ties between the parties, as such an award provided no incentive for the wife to timely obtain gainful employment, clearly an achievable goal, and, (2) should the wife simply choose to maintain the status quo by not seeking employment, circumstances would not sufficiently change to justify modification or termination of maintenance. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

Circuit court abused its discretion as to the amount of maintenance that it awarded to a wife when the wife had not worked in years and was unable to work due to physical and mental health issues because the court failed to consider whether the husband had the ability to pay the wife more maintenance. Further, based on the disparity between the wife’s monthly income and reasonable expenses, the disparity between the parties’ incomes, and the wife’s inability to provide for the wife’s expenses, the wife should have been awarded more maintenance. Naramore v. Naramore, 611 S.W.3d 281, 2020 Ky. App. LEXIS 104 (Ky. Ct. App. 2020).

5.—Award Proper.

Where there was evidence that during the five years prior to the divorce judgment husband’s average earnings were $27,000 and the wife did not have sufficient estate of her own to meet the test expressed in this section, the trial court’s award of $200 a month alimony to the wife would not be disturbed. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Where evidence showed wife made $200 per month and her basic needs cost $450 per month, while husband’s income was ample, award of maintenance of $75.00 per month was proper. Johnson v. Johnson, 564 S.W.2d 221, 1978 Ky. App. LEXIS 498 (Ky. Ct. App. 1978).

An award of $650 per month as maintenance and child support against a husband with a net income of $1,118 per month was not clearly erroneous and would not be reversed. Callahan v. Callahan, 579 S.W.2d 385, 1979 Ky. App. LEXIS 390 (Ky. Ct. App. 1979).

The trial court did not abuse its discretion in ordering the husband to pay maintenance to the wife for 12 years given the length of the parties’ marriage, the wife’s lack of employment history and her need for education and training to be able to support herself. Leveridge v. Leveridge, 997 S.W.2d 1, 1999 Ky. LEXIS 36 ( Ky. 1999 ).

Trial court did not abuse its discretion in awarding a wife rehabilitative maintenance, despite her waiver of maintenance in an antenuptial agreement. The waiver provision was unconscionable because the disparity in the parties’ incomes grew exponentially during the marriage, largely because the husband concentrated on his career while the wife stayed home to care for the children. Lane v. Lane, 202 S.W.3d 577, 2006 Ky. LEXIS 232 ( Ky. 2006 ).

A wife, who had multiple sclerosis and received disability benefits of $804 per month, was properly awarded $250 per month in maintenance as she received $107,130.20 in marital property which included $80,000 which the husband was ordered to pay in a lump sum within six (6) months of the judgment, and she was assigned a comparatively small amount of the marital debt. The Family Court properly considered the factors set forth in KRS 403.200(2). Brenzel v. Brenzel, 244 S.W.3d 121, 2008 Ky. App. LEXIS 2 (Ky. Ct. App. 2008).

Trial court did not err when it set spousal maintenance at $2,300 per month and reduced this amount of monthly maintenance when pension benefits commenced; the evaluation of the factors under KRS 403.200 was appropriate, there was no abuse of discretion, and a former wife’s concurrence with the trial court’s statement of facts lent credibility to the trial court’s assessment of the proper amount of maintenance. Moreover, the amount awarded was not unreasonable, and the duration of the maintenance was not arbitrary. Age v. Age, 340 S.W.3d 88, 2011 Ky. App. LEXIS 23 (Ky. Ct. App. 2011).

Trial court’s maintenance award to a wife was not an abuse of discretion because (1) substantial evidence supported the trial court’s finding that the wife’s inherited oil and gas lease interest was nominal at best, and (2) the trial court found the wife had a college degree and was able to work and desired to do so, but recognized that the wife voluntarily left employment to care for the parties’ minor children and, as a result, the wife’s prior work experience was stale, so the wife needed time to obtain gainful employment, and the record showed the trial court properly considered the relevant statutory factors outlined in KRS 403.200(2). Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

Trial court neither abused its discretion nor committed clear error by finding that the wife was entitled to a maintenance award where although she exited the 32-year marriage with substantial assets and a moderate income, the discrepancy in the spouses' incomes and lifestyles post-marriage was great and constituted an inability to provide for her reasonable needs. Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Trial court did not abuse its discretion in not cutting off the wife's maintenance at age 67 where the award had a definite cut-off at 10 years and was for a modest amount of money. Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Family court did not abuse its discretion in awarding maintenance to a wife, or in the amount or duration of the maintenance award, because the court determined that the wife was entitled to a maintenance award, based upon the wife's reasonable living expenses and imputed minimum wage earning potential, and then went on to consider the statutory factors, including the husband's admitted income, the husband's ability to meet the husband's own reasonable needs, the length of the marriage, and the parties' standard of living in the marriage. Smith v. Smith, 503 S.W.3d 178, 2016 Ky. App. LEXIS 181 (Ky. Ct. App. 2016).

Family court did not abuse its discretion when it refused to set aside a separation agreement as the amount of maintenance was not unconscionable because the wife had not worked outside the home for over twenty years and much of the wife's education and training was outdated and stale. Moreover, the husband knew the husband would be paying an increasing amount of maintenance for yeas and signed the agreement knowing that the husband would soon be retiring from the military and seeking civilian employment as a commercial airline pilot. Mays v. Mays, 541 S.W.3d 516, 2018 Ky. App. LEXIS 87 (Ky. Ct. App. 2018).

Trial court’s decision regarding the award of maintenance was not arbitrary, unreasonable, unfair, or unsupported by legal principles because the trial court was not required to delineate every statutory factor, but only to consider the factors in its decision; the trial court rightly considered the ex-wife’s independent assets, whether as an income source or through principal liquidation, in determining her ability to support herself; the trial court addressed the wife’s inability to immediately return to the job market at her previous level; and the trial court did not abuse its discretion by not considering the ex-husband’s income as an independent factor for increasing the directed maintenance or computing the wife’s reasonable needs. Normandin v. Normandin, 634 S.W.3d 589, 2020 Ky. LEXIS 456 ( Ky. 2020 ).

Declining to award maintenance was not an abuse of discretion where the trial court had considered the financial situation of each party, the parties lived in a modest house with a sizeable amount of debt associated with it, there was no testimony regarding a lavish lifestyle or an extravagant standard of living that would have warranted maintenance, the parties did not have much money in the bank and both had always worked, and assigning responsibility for the mortgage payments to the wife until the marital home was sold was in lieu of maintenance and because the wife had the greater income. Little v. Little, 2021 Ky. App. Unpub. LEXIS 189 (Ky. Ct. App. Mar. 12, 2021).

7.Factors Considered.

Family court did not abuse its discretion in refusing to impute income to the wife for the purpose of maintenance, as the evidence showed that the wife had been absent from the workforce for more than 16 years at the agreement of the parties and the wife was forced to suspend her search when the health of the parties' daughter deteriorated. Lambe v. Weber, 2014 Ky. App. LEXIS 177 (Ky. Ct. App. Nov. 14, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1053 (Ky. Ct. App. Nov. 14, 2014).

In the fixing of maintenance the trial court must take into consideration the assignment of property made pursuant to the provisions of KRS 403.190 and the factors delineated in this section; as a matter of fact, there must be a division of property before considering the amount of maintenance. Newman v. Newman, 597 S.W.2d 137, 1980 Ky. LEXIS 202 ( Ky. 1980 ).

Even if there were no substantial accumulation of marital property, the expenditure by one spouse of nonmarital property for the benefit of the marriage is a factor which might be considered in awarding maintenance. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

The trier of fact must look to the amount of marital property awarded to the spouse seeking maintenance, and the spouse’s ability to support herself through appropriate employment; and a spouse’s ability to seek appropriate employment may be affected by the demands of an infant child, or a child who needs constant care or supervision. Richie v. Richie, 596 S.W.2d 32, 1980 Ky. App. LEXIS 301 (Ky. Ct. App. 1980).

Where the record in a dissolution of marriage action showed that the trial court clearly considered factors such as the wife’s present ability to earn a livelihood, her desire to expand her education, the husband’s ability to contribute to her support, as well as the existence of fault in causing the marriage to be terminated, the trial court did not abuse its discretion in ordering the husband to pay a maintenance award of $150.00 per month over a period of 18 months. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

When the evidence shows that a divorced wife cannot meet her monthly living expenses, then she is justified in expending whatever sums she must from her marital settlement, and her failure or inability to invest the marital settlement money at the highest rate of interest cannot be used by her former husband to deprive her of the maintenance to which she is entitled under this section. Atwood v. Atwood, 643 S.W.2d 263, 1982 Ky. App. LEXIS 274 (Ky. Ct. App. 1982).

The fact that husband was “heavily indebted” did not necessarily absolve him from the duty to pay maintenance. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

The fact that marriage was for the short duration of two years was certainly a factor to be considered in determining an appropriate amount of maintenance; the court could also consider wife’s prospects for becoming self-supporting. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

Where the trial court made no specific finding as to whether wife’s property was sufficient to meet her needs or whether she was able “through appropriate employment” to support herself and where the wife lacked a high school education, had no formal skills, and had no job, it was difficult to comprehend how she could support herself at all, let alone in any fashion resembling the standard of living she enjoyed during the marriage and trial court erred in denying maintenance. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

If the seeking party fails to satisfy the conditions of either subdivisions (1)(a) or (1)(b) of this section, maintenance need not be granted; thus, if the trial court finds that the party seeking maintenance can support himself through appropriate employment, there is no requirement for the court to make a finding as to whether or not that party lacks sufficient property to meet his needs. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

If income from a wife’s nonmarital property, and her proportion of marital property would provide for her reasonable needs, then maintenance should not be awarded. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

The fact that a wife allegedly refused to obtain employment is not to be used in determining the division of marital property, but is a factor in determining whether maintenance should be awarded. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

Where the trial court did not award the wife maintenance, but there was no finding of fact as to the income-producing value of the wife’s inherited property, nor the income-producing value of the property awarded to her in the division of the marital assets, and the trial court made no finding as to the wife’s ability to support herself through appropriate employment, nor the standard of living established during the marriage, the trial court failed to follow the statutory guidelines set forth in this section in denying the wife an award of maintenance. Wood v. Wood, 720 S.W.2d 934, 1986 Ky. App. LEXIS 1458 (Ky. Ct. App. 1986).

In order for an award of maintenance to be proper, there must first be a finding that the spouse seeking maintenance lacks sufficient property, including marital property, to provide for his or her reasonable needs, and that the spouse is unable to support himself or herself through appropriate employment according to the standard of living established during the marriage. Drake v. Drake, 721 S.W.2d 728, 1986 Ky. App. LEXIS 1480 (Ky. Ct. App. 1986).

If income from a spouse’s non marital property, combined with his or her proportion of marital property, would provide for his or her reasonable needs, then maintenance should not be awarded. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

Where the wife’s income, including the period prior to disposition of the parties’ marital property, was more than adequate to provide for her reasonable needs, an award of even temporary maintenance was inappropriate and should not have been made. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

One major factor the court may consider in determining the maintenance award is the total estate of the paying spouse, regardless of its source, since the ability of the paying spouse to support himself or herself arises from all the property the paying spouse has. Roberts v. Roberts, 744 S.W.2d 433, 1988 Ky. App. LEXIS 19 (Ky. Ct. App. 1988).

Maintenance may not be awarded until account has first been taken of the assignment and division of property, and the exact terms of the maintenance award depend, inter alia, upon the decision of the court as to the ownership of property; upon a determination that the spouse seeking maintenance qualifies for such an award, the determination of amount and duration is governed by subsection (2) of this section which requires consideration of all the financial resources of the parties. Low v. Low, 777 S.W.2d 936, 1989 Ky. LEXIS 83 ( Ky. 1989 ).

In awarding maintenance, it is especially acceptable for the trial court to consider the impact of the divorce on the nonprofessional’s standard of living and award an appropriate amount that the professional spouse can afford. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

With regard to the question of maintenance, it must first be established that spouse lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. The court certainly must also consider the ability of the spouse from whom maintenance is sought to meet his or her own needs while at the same time meeting the needs of the spouse seeking maintenance. Dotson v. Dotson, 864 S.W.2d 900, 1993 Ky. LEXIS 145 ( Ky. 1993 ).

Where wife had no job at the time of the marriage dissolution, little employment history or marketable skills, virtually no liquid assets, was not presently able to support herself in any manner approaching that enjoyed during the marriage, postponed developing any career during the marriage to prioritize the needs of the children, and needed further instruction to be certified in her field and sought maintenance for only the period of time necessary to complete this instruction, the trial court erred in failing to award her a sum in maintenance sufficient to sustain herself while completing her degree. Beckner v. Beckner, 903 S.W.2d 528, 1995 Ky. App. LEXIS 120 (Ky. Ct. App. 1995).

Whether spousal support is appropriate is based on the spouse’s ability to support herself in the standard of living established during marriage and is at the trial court’s discretion and may be overturned only for abuse of discretion or clear error. It was not abuse of discretion for a trial court to award maintenance to an ex-spouse earning $28,000, holding a master’s degree, and possessing $55,000 in marital property and cash in order to maintain the lifestyle she enjoyed with her husband on their joint $109,000 salary. Weldon v. Weldon, 957 S.W.2d 283, 1997 Ky. App. LEXIS 99 (Ky. Ct. App. 1997).

Common sense dictates that a court consider the parties’ net income when determining whether or not the spouse seeking maintenance under KRS 403.200 will be able to meet his or her needs, as well as the payor spouse’s ability to continue meeting his or her own needs. Powell v. Powell, 107 S.W.3d 222, 2003 Ky. LEXIS 144 ( Ky. 2003 ).

Family court erred in including the wife's proportional share of the children's expenses in the wife's expenses in calculated the maintenance amount0 Lambe v. Weber, 2014 Ky. App. LEXIS 177 (Nov. 14, 2014).

In a divorce matter, a mother was not awarded maintenance because she was well educated, earned close to $ 100,000 in the past, and was now capable of earning $ 60,000 per year. The trial court also found that the father was capable of earning $85,000 per year and the parties' four children lived primarily with him. Bootes v. Bootes, 470 S.W.3d 351, 2015 Ky. App. LEXIS 126 (Ky. Ct. App. 2015).

Trial court did not abuse its discretion when it awarded maintenance because it considered the wife’s financial resources, which were not limited to her marital property only, her education level and inability to return to work, the standard of living and duration of the marriage, the wife’s physical and emotional condition, and the husband’s ability to pay maintenance; it was not required to analyze the husband’s income, only his ability to provide for himself and make the payments ordered. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Trial court did not abuse its discretion in considering a wife’s nonmarital financial resources in making its maintenance award because it was proper for the trial court to consider all financial resources available to the wife when calculating her maintenance award, including all assets she inherited as well as the marital assets she would receive in the divorce. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Remand on the issue of spousal maintenance was necessary because the trial court failed to consider all of the wife’s financial resources in making an award. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Because the trial court’s order on maintenance failed to consider all of the wife’s financial resources and erroneously concluded that the husband had the ability to support himself while paying the wife $1,000 per month in maintenance, remand was required. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

8.— Ability to Support Self.

This section requires that the conditions of both subsections (1)(a) and (1)(b) be met in order for an award of maintenance to be appropriate, and where a wife was a steadily employed, if modestly paid, teacher the circumstances described in subsection (1)(b) clearly did not exist; thus the order of the trial court that the husband pay $100 a month in maintenance must be vacated. Inman v. Inman, 578 S.W.2d 266, 1979 Ky. App. LEXIS 382 (Ky. Ct. App. 1979).

Where specialist in neurological surgery testified that wife’s work as registered nurse would be limited, in that she could not work in a capacity where she would have to lift patients or objects or bend her back, it was not clearly erroneous for trial court to find that wife was unable to work as a psychiatric nurse and thus unable to support herself. Leveck v. Leveck, 614 S.W.2d 710, 1981 Ky. App. LEXIS 238 (Ky. Ct. App. 1981).

Where the trial court failed to make the statutorily required finding on the question of the wife’s ability to support herself through appropriate employment under subdivision (1)(b) of this section, the issue of maintenance was remanded to the trial court. Cochran v. Cochran, 746 S.W.2d 568, 1988 Ky. App. LEXIS 46 (Ky. Ct. App. 1988), overruled in part, Rumpel v. Rumpel, 438 S.W.3d 354, 2014 Ky. LEXIS 331 ( Ky. 2014 ).

The statutory scheme is designed to allow one to become self-supporting. While the trend is to sever all ties between divorcing parties where one is unable due to health problems to be self-supporting, the section is appropriately utilized to prevent the “drastic change” in the standard of living. Leitsch v. Leitsch, 839 S.W.2d 287, 1992 Ky. App. LEXIS 209 (Ky. Ct. App. 1992).

The trial court erred in awarding maintenance to the wife because the trial court failed to consider the ability of the husband to meet his own needs while paying the required maintenance, as required by KRS 403.200(2)(f). Lawson v. Lawson, 228 S.W.3d 18, 2007 Ky. App. LEXIS 183 (Ky. Ct. App. 2007).

The trial court abused its discretion in failing to consider the factors in KRS 403.200(2) where the trial court improperly relied on charity as a basis upon which to reduce an ex-wife’s permanent monthly maintenance to $100, and the award of such a modest sum ensured that she would be required to depend indefinitely on the generosity of others to meet her basic need for shelter. Clark v. Clark, 236 S.W.3d 616, 2007 Ky. App. LEXIS 343 (Ky. Ct. App. 2007).

As the trial court 1) found that a former husband was not able to meet his reasonable needs independently with the marital property apportioned to him; 2) found that he was unlikely to be able to substantially increase his income in the near future; and 3) considered the nature of the former wife’s financial resources, the standard of living established by the parties during the marriage, the duration of the marriage, and the ability of the husband to meet his own reasonable needs, it did not abuse its discretion as to the amount or the six-month duration of the maintenance award. Stipp v. St. Charles, 291 S.W.3d 720, 2009 Ky. App. LEXIS 96 (Ky. Ct. App. 2009).

Trial court did not err under KRS 403.200(1) in awarding a wife $2,500 per month in maintenance for 12 months because she lacked sufficient financial resources to provide for her reasonable needs was presently unable to support herself through appropriate employment. Maclean v. Middleton, 419 S.W.3d 755, 2014 Ky. App. LEXIS 3 (Ky. Ct. App. 2014).

9.— Level of Income after Schooling.

It was proper to consider the level of income attained by a doctor after finishing medical school and residency, which was considerably higher than his income during the marriage, as the figure was relevant both to his ability to pay support and as an indicia of the standard of living established during the marriage by attainment of the professional degree. Lovett v. Lovett, 688 S.W.2d 329, 1985 Ky. LEXIS 218 ( Ky. 1985 ).

10.—Change in Circumstances.

Not every instance of cohabitation by a maintenance recipient constitutes a change in circumstances making continued maintenance unconscionable. Each case stands on its own and the elements to consider are: 1) duration, 2) economic benefit, 3) intent of parties, 4) nature of living arrangements, 5) nature of financial arrangements and 6) likelihood of a continued relationship. Combs v. Combs, 787 S.W.2d 260, 1990 Ky. LEXIS 15 ( Ky. 1990 ).

Family court properly denied a former wife’s motion to modify or terminate her maintenance obligation to her former husband because the court applied the correct standard, as mandated by the parties’ property settlement agreement, of changed circumstances and unconscionability, and the former wife’s assertion that the former husband would not currently be entitled to maintenance did not render his continued receipt of maintenance unconscionable where the incomes of the parties remained disparate and the former husband’s income was contingent upon his progressive medical conditions remaining stable. Holland v. Herzfeld, 610 S.W.3d 360, 2020 Ky. App. LEXIS 109 (Ky. Ct. App. 2020).

11.Fault.

Although fault is not to be considered in determining whether a spouse is entitled to maintenance under this section, it may be considered insofar as the amount of maintenance is concerned. Chapman v. Chapman, 498 S.W.2d 134, 1973 Ky. LEXIS 288 ( Ky. 1973 ).

Subsection (2) of this section outlines certain relevant factors to be considered by the court in deciding whether to award maintenance; this list, however, is not exhaustive and has been supplemented through case interpretations to include additional factors such as fault. The clear purpose is to preclude one whose misconduct led to the marital breakdown from continuing to retain the financial benefits of the union. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

For the determination of whether a claiming spouse had the right to maintenance, fault has no bearing; the considerations as laid down in subdivision (1)(a) of this section are economic, primarily whether at the termination of the marriage he or she is in a position to account for his/her own reasonable needs. Once the right to maintenance is established, the amount is to be determined; in this aspect, and this aspect alone, fault may be considered. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

Once a determination has been made that a party is entitled to maintenance, the court may consider fault of the parties as a factor in determining the proper amount of maintenance. Atwood v. Atwood, 643 S.W.2d 263, 1982 Ky. App. LEXIS 274 (Ky. Ct. App. 1982).

Assuming marriage was “rocky and stormy” and further assuming wife was the cause, neither fact has any bearing on the determination to be made under subsection (1) of this section since fault can be considered, along with the other factors in subsection (2), only in determining the amount of maintenance. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

This section does not include “fault” anywhere as a factor to be considered when arriving at a just amount of maintenance. Platt v. Platt, 728 S.W.2d 542, 1987 Ky. App. LEXIS 473 (Ky. Ct. App. 1987).

Trial court did not discuss fault when considering the amount and duration of maintenance, but this did not constitute an abuse of discretion, as case law did not mandate that a trial court consider fault. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

12.Issue Preclusion.

Where divorce action was prosecuted to conclusion by husband who had tricked wife into believing he would drop the suit, it was error for the trial court in setting aside the judgment to preclude wife from litigating the issue of alimony. Cottrell v. Cottrell, 502 S.W.2d 80, 1973 Ky. LEXIS 69 ( Ky. 1973 ).

13.Findings.

There appears to be no requirement under the statute for the trial court to make a finding as to the wife’s reasonable needs if it finds that she is able to support herself through appropriate employment. Graham v. Graham, 595 S.W.2d 720, 1980 Ky. App. LEXIS 303 (Ky. Ct. App. 1980).

Where the trial judge merely stated in his findings of fact that the wife was presently unable to work and that the husband was working, he did not adequately comply with the requirements of this section with respect to maintenance awards. Hollon v. Hollon, 623 S.W.2d 898, 1981 Ky. LEXIS 292 ( Ky. 1981 ), overruled, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

The result in the trial court did not force wife unreasonably to jeopardize her marital estate nor did it mandate the return she must obtain. It simply concluded that a particular rate was reasonably obtainable. The findings below were based on competent evidence, and were not clearly erroneous; the Court of Appeals was not at liberty to substitute its findings of fact for those of the trial court. Perrine v. Christine, 833 S.W.2d 825, 1992 Ky. LEXIS 73 ( Ky. 1992 ).

Where the Court of Appeals concluded that the trial court had abused its discretion in hypothesizing that wife would immediately liquidate her oil interests, and suffer the attendant tax consequences and the Court of Appeals “believe[d] the better alternative” would be to preserve wife’s tax advantages by delaying liquidation, in this regard, the Court of Appeals usurped the discretion which properly rested in the trial court. The Circuit Court order did not require wife to liquidate, it merely concluded that she possessed sufficient property to provide for her reasonable needs. That decision was made responsibly, and on the basis of findings of fact which were not clearly erroneous. Perrine v. Christine, 833 S.W.2d 825, 1992 Ky. LEXIS 73 ( Ky. 1992 ).

Because the family court made the findings required by KRS 403.200(1), (2) and 403.220 , it properly awarded maintenance and attorney’s fees to the wife; as the husband had exclusive possession and use of the primary marital asset during the proceedings, retroactive judgment interest at 12 percent was proper under KRS 360.040 . 2005 Ky. App. LEXIS 182 .

Because a family court made insufficient findings to support the duration of a wife’s maintenance award, it did not comport with KRS 403.200(2). Massey v. Massey, 220 S.W.3d 700, 2006 Ky. App. LEXIS 276 (Ky. Ct. App. 2006).

Wife’s maintenance award was remanded because the trial court did not make required findings, as (1) no findings supported awarding the wife 65% of the proceeds of the sale of the parties’ marital home, and (2) it was unclear if the court’s consideration of the wife’s reasonable needs included caring for the parties’ adult son and the son’s family and a cell phone plan for those two adults and the wife’s mother. Wattenberger v. Wattenberger, 577 S.W.3d 786, 2019 Ky. App. LEXIS 79 (Ky. Ct. App. 2019).

14.Jurisdiction.

Where wife was not within jurisdiction of the court, it had no authority to deny her maintenance. Gaines v. Gaines, 566 S.W.2d 814, 1978 Ky. App. LEXIS 538 (Ky. Ct. App. 1978).

Where the state trial court had little or no justification for its award of “maintenance” except its desire to punish the husband for his alleged infidelity, such award to his ex-wife was in fact a division of property and was neither maintenance under this section nor nondischargeable under 11 USCS § 523(a)(5) and the award was therefore dischargeable in bankruptcy. Sorah v. Sorah (In re Sorah), 203 B.R. 620, 1996 Bankr. LEXIS 1646 (Bankr. E.D. Ky. 1996 ).

15.Railroad Retirement Act Benefits.

Following the opinion of Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1, 1979 U.S. LEXIS 56 (1979), benefits under the Railroad Retirement Act of 1937 cannot be considered in awarding maintenance under this section if the marriage terminates before benefits begin. Frost v. Frost, 581 S.W.2d 582, 1979 Ky. App. LEXIS 408 (Ky. Ct. App. 1979).

16.Pension or Retirement Funds.

Even though a military pension, vested or nonvested, cannot be considered as divisible property, it may be used as a basis for paying maintenance if the equity of the total economic circumstances of the parties, including the spouse’s lack of property and ability to support herself, require that some amount of maintenance be awarded. Light v. Light, 599 S.W.2d 476, 1980 Ky. App. LEXIS 323 (Ky. Ct. App. 1980).

A pension is a form of deferred compensation which is earned during each day of month of military service or other work, and it cannot be considered as being earned on the day it matures; the value of a pension, if any, should therefore be marital property for the portion accrued during coverture, and this fact is true for any pension, whether nonvested or noncontributory. Light v. Light, 599 S.W.2d 476, 1980 Ky. App. LEXIS 323 (Ky. Ct. App. 1980).

Where the trial judge considered the factor of military retirement pay in dividing marital property, where wife received over 50% of the marital property, and her earnings were greater than husband’s exclusive of his retire- ment pay, and where the trial court specifically found that both parties were able to support themselves, the trial judge did not abuse his discretion in refusing to award maintenance or to grant wife a larger share of the total assets accumulated during the marriage. Russell v. Russell, 605 S.W.2d 33, 1980 Ky. App. LEXIS 363 (Ky. Ct. App. 1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004, 1981 U.S. LEXIS 2764 (U.S. 1981).

The exclusion of military retirement pay from divisible marital property in no way precludes a trial court from considering such an asset when determining an appropriate amount for maintenance and support; if maintenance is appropriate, the income will be available to satisfy a reasonable award, especially if there are few other assets or resources to be divided. Russell v. Russell, 605 S.W.2d 33, 1980 Ky. App. LEXIS 363 (Ky. Ct. App. 1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004, 1981 U.S. LEXIS 2764 (U.S. 1981).

Pursuant to 10 USCS § 1408(a)(4), amounts waived in order to receive disability compensation, or VA benefits received in lieu of military retirement pay, are specifically excluded from division as marital property; however, if an inequity arises in an individual case, the trial court can resolve the problem by making an appropriate award of spousal support and/or marital property. Davis v. Davis, 777 S.W.2d 230, 1989 Ky. LEXIS 78 ( Ky. 1989 ).

Family court properly denied a former wife’s motion to modify or terminate her maintenance obligation to her former husband because the court applied the correct standard, as mandated by the parties’ property settlement agreement, of changed circumstances and unconscionability, and the former wife’s assertion that the former husband would not currently be entitled to maintenance did not render his continued receipt of maintenance unconscionable where the incomes of the parties remained disparate and the former husband’s income was contingent upon his progressive medical conditions remaining stable. Holland v. Herzfeld, 610 S.W.3d 360, 2020 Ky. App. LEXIS 109 (Ky. Ct. App. 2020).

17.Professional Degree.

Award of $10,000 in lump-sum maintenance was both fair and authorized by this section where wife had supported husband while he obtained professional degree, where her salary would not allow her to enjoy anything approaching the standard of living which she enjoyed as wife, where the court took into account husband’s indebtedness for educational loans, the fact that wife had remarried and was thus not entitled to periodic maintenance, and the fact that, while husband could not have matriculated without the wife’s aid and assistance, her contributions would not greatly inure to his direct financial enhancement and where the court ordered husband to pay child support, all of child’s medical and dental expenses, and $1,500 of wife’s attorney’s fees. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

A spouse who has worked and financially contributed to the other spouse’s acquisition of a professional degree should not automatically receive a monetary award based on a prescribed formula; the dissolution of marriage statutes simply do not authorize trial courts to make such an award. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

In cases where a divorcing couple may have begun to enjoy the fruits of increased earnings resulting from a professional spouse’s degree, a court can, under this section, properly consider the impact of a divorce on the nonprofessional spouse’s standard of living and, if the court finds that the nonprofessional spouse will not be able to maintain a standard of living reasonably similar to the one enjoyed during the marriage and that the professional spouse can afford it, an award of maintenance to supplement the nonprofessional spouse’s income would be appropriate; this would be especially true in those instances where there is little or no marital property to divide since through an award of maintenance, the court will be justifiably permitting the nonprofessional spouse to recoup most of his or her investment in the other spouse’s professional degree. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

Although a professional degree, a license to practice, or an acquired specialty may not be property in the literal sense, they are assets of the marriage which must be considered when contemplating the standard of living established during the marriage. Lovett v. Lovett, 688 S.W.2d 329, 1985 Ky. LEXIS 218 ( Ky. 1985 ).

The trial court should not automatically grant a monetary award simply because one spouse contributed to the other spouse obtaining a professional degree, but these efforts should be considered and compensated, especially if the spouses’ incomes or salaries are uneven. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

Where wife sacrificed and supported husband so he could obtain medical degree, after divorce, where the husband had not yet realized “future advantages” or benefits from his advanced education and the wife was capable of supporting herself, the facts did not support an award of maintenance to the wife. Schmitz v. Schmitz, 801 S.W.2d 333, 1990 Ky. App. LEXIS 131 (Ky. Ct. App. 1990).

18.Standard of Living.

Where ex-wife was employed, but at a bare subsistence level, court did not err in awarding maintenance which would bring her closer to the standard of living established during the marriage. Casper v. Casper, 510 S.W.2d 253, 1974 Ky. LEXIS 545 ( Ky. 1974 ).

A wife was entitled to maintenance in such sum that, when added to her other source of income, would be sufficient to provide for her in the manner to which these parties have become accustomed. Newman v. Newman, 597 S.W.2d 137, 1980 Ky. LEXIS 202 ( Ky. 1980 ).

An award of maintenance is appropriate when the spouse seeking it is unable to support him or herself according to the standard of living established during the marriage. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

An “established” standard of living is not necessarily one which was “enjoyed” over a protracted period of time, but is the product of many factors. Lovett v. Lovett, 688 S.W.2d 329, 1985 Ky. LEXIS 218 ( Ky. 1985 ).

The trial court’s award of maintenance was upheld, where there was substantial evidence in the record to support the court’s finding that the wife’s salary as a beautician, even when combined with an equal proportion of the marital assets, was not sufficient to provide for her in the manner to which the parties had become accustomed. Drake v. Drake, 721 S.W.2d 728, 1986 Ky. App. LEXIS 1480 (Ky. Ct. App. 1986).

Where wife was disabled and could not work and where the assets she received in conjunction with her disability payments were not sufficient to maintain the conservative standard of living which she and her husband enjoyed during their marriage of almost twenty-nine years, the trial court correctly concluded that wife was entitled to receive maintenance. Russell v. Russell, 878 S.W.2d 24, 1994 Ky. App. LEXIS 24 (Ky. Ct. App. 1994).

Husband was not entitled to maintenance since the marital lifestyle was dependent on the wife’s nonmarital inheritance and gifts, including loans which were forgiven, and the husband had been unemployed for several years and still had taken multiple trips to British Columbia for songwriting classes, as well as other trips to attend self-improvement seminars; thus, it appeared the husband continued the comfortable lifestyle he had during his marriage. Furthermore, the husband’s portion of the marital estate combined with his nonmarital property enabled him to continue his comfortable existence. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

19.Future Adjustments.

The trial court in a divorce proceeding did not abuse its discretion by reserving the question of future maintenance and medical expenses based on future circumstances, where the ex-wife derived nominal earnings from the store of which she was proprietor, and she had a history of cancer, since this section allows the trial court to provide for probable changes in either party’s ability to be self-supporting and expressly places decisions on the amount and duration of maintenance within the discretion of the trial court; accordingly, the trial court properly reasoned that, although she was not currently in need of periodic support, her present condition was unstable and adjustments should not be foreclosed. James v. James, 618 S.W.2d 187, 1981 Ky. App. LEXIS 253 (Ky. Ct. App. 1981).

20.Amount of Maintenance.

An award of maintenance was not required even though at the time of the separation the husband was earning three times the earnings of his wife, where the wife though able to pursue a higher paying job in her field did not do so as a matter of purely personal choice. Sayre v. Sayre, 675 S.W.2d 647, 1984 Ky. App. LEXIS 526 (Ky. Ct. App. 1984).

Since any award of maintenance is wholly dependent upon the value of property received by the spouse seeking maintenance, it necessarily follows that a proper award is impossible unless the trial court can be reasonably assured that its determination of property ownership will be realized. Low v. Low, 777 S.W.2d 936, 1989 Ky. LEXIS 83 ( Ky. 1989 ).

An award of maintenance to wife was not an abuse of discretion where the record indicated wife did not have an advanced education, had been a homemaker for the duration of the 18-year marriage, and suffered from a degenerative disease which limited or precluded her ability to work outside the home, even though she would receive a portion of the marital assets and may have been eligible for supplemental security income disability benefits. Calloway v. Calloway, 832 S.W.2d 890, 1992 Ky. App. LEXIS 140 (Ky. Ct. App. 1992).

Three thousand dollars ($3,000) a month maintenance award under KRS 403.200 to a wife for three (3) years held to be too low where: (1) the husband earned $565,510.52 in 11 months and that the wife’s potential annual income, after retraining, was only $45,000; (2) the wife would not be able to continue the standard of living that the parties enjoyed while married; (3) the parties were married for nearly 18 years; (4) the wife supported the husband during his training; and (5) the domestic relations commissioner improperly overstated the flow of income expected from the wife’s investment of her cash award. Powell v. Powell, 107 S.W.3d 222, 2003 Ky. LEXIS 144 ( Ky. 2003 ).

Considering the reversal of the determination that the wife had an equitable interest in the husband’s five parcels of property that were not subject to property division and the parties’ disparate post-divorce circumstances, reconsideration of the Family Court’s maintenance award was warranted. The husband had a greater standard of living considering the husband’s partnership interests, while the wife found it necessary to move to a county with far fewer house-cleaning opportunities than the county in which the wife had lived in and performed that type of work. Gripshover v. Gripshover, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

An “increase in value” of the husband’s life estate cannot be equated with the actual cost of improvements to the life estate. Since the award of maintenance made to the wife was based on the erroneous calculation of the increase in value, the wife’s maintenance had to be recalculated. Jones v. Jones, 245 S.W.3d 815, 2008 Ky. App. LEXIS 24 (Ky. Ct. App. 2008).

Trial court in a divorce case could impute income to the wife for the purposes of awarding to the wife child support, pursuant to KRS 403.212(2)(d), and awarding maintenance under KRS 403.200 . The trial court made the relevant determinations only after taking into account the wife’s work history and the wife’s testimony concerning expected income before making its decisions. McGregor v. McGregor, 334 S.W.3d 113, 2011 Ky. App. LEXIS 30 (Ky. Ct. App. 2011).

21.Reduction In Maintenance.

A spouse resisting reduction of an otherwise appropriate maintenance award must show by a preponderance of the evidence that by virtue of a mental disease or condition, he or she was unable to appreciate the wrongfulness of his or her conduct. Therefore, finding that wife, based on her ability to “switch” personalities, was not under control of a multiple personality disorder and therefore was able to appreciate the wrongfulness of her conduct, was sufficient to justify domestic relations commissioner’s reduction in maintenance award to wife based on her adultery. Tenner v. Tenner, 906 S.W.2d 322, 1995 Ky. LEXIS 80 ( Ky. 1995 ).

Because Kentucky law does not prohibit a trial court from granting a retroactive reduction of maintenance for the period of time from the filing of the motion to the entry of judgment, the trial court’s grant of reduction in maintenance payments to wife, effective from the date husband filed motion, was not an abuse of discretion. Mudd v. Mudd, 903 S.W.2d 533, 1995 Ky. App. LEXIS 141 (Ky. Ct. App. 1995).

22.Cohabitation by Recipient.

A maintenance recipient’s cohabitation can render continued maintenance “unconscionable” if the nature of the cohabitation constitutes a new “financial resource” as contemplated in subdivision (2)(a) of this section. Combs v. Combs, 787 S.W.2d 260, 1990 Ky. LEXIS 15 ( Ky. 1990 ).

Trial court erred in reducing a husband’s maintenance obligation based on his former wife’s cohabitation; the Combs factors had to be applied to determine whether the new relationship constituted a new financial resource of the wife, such that there had been a change of circumstance under KRS 403.250(1) and such that the continuation of the husband’s maintenance obligation was unconscionable. While the wife’s living arrangements were a factor, they were not dispositive. Wheeler v. Wheeler, 154 S.W.3d 291, 2004 Ky. App. LEXIS 84 (Ky. Ct. App. 2004).

Where an ex-wife’s boyfriend spent every night with her and kept his clothes and personal items at her house, their relationship qualified as cohabitation whether considered in light of sexual involvement or living in the same house; therefore, the trial court properly granted summary judgment terminating the former spouse’s maintenance obligations. Bennett v. Bennett, 133 S.W.3d 487, 2004 Ky. App. LEXIS 92 (Ky. Ct. App. 2004).

23.Enforcement of Order.

Where former spouse stipulated that he was in arrears in the neighborhood of $200,000 and that no maintenance payments had been made between January 10, 1990, and February 1, 1993, and where there was sufficient evidence to support a finding that spouse was able to pay the purge amount of $200,000 or make satisfactory arrangements for such payment, the trial court ordered former spouse incarcerated for contempt to pay child support until either $200,000 was paid to former wife, real party in interest, or satisfactory arrangements were made for said payments. The character and purpose of this action rendered it a civil rather than a criminal contempt proceeding. The act of disobedience consisted solely in refusing to do what had been ordered and not in doing something that had been prohibited. The order imposed conditional imprisonment for the very obvious purpose of compelling the former spouse to obey (pay) the order of the court or plan for payment. Blakeman v. Schneider, 864 S.W.2d 903, 1993 Ky. LEXIS 148 ( Ky. 1993 ).

Contempt orders against a former husband who has become delinquent in support payments should be limited in their coverage to the amounts the court has previosly found are within the ability of the former husband to satisfy. Following a proper determination of his ability to pay, it should be clearly set forth in a finding of fact. The court may properly, in its discretion if it finds petitioner unable to satisfy the entire judgment, order payments be made on such sum over a period of time, which are within the ability of the petitioner to satisfy. Blakeman v. Schneider, 864 S.W.2d 903, 1993 Ky. LEXIS 148 ( Ky. 1993 ).

As an obligor’s past due payments for child support and maintenance become vested when due, and each payment is a fixed and liquidated debt which a court has no power to modify, the obligee is entitled to prejudgment interest as a matter of law from the date that each payment was due. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

24.Award Proper.

Trial court's decision to include the children's living expenses in its calculation of the mother's reasonable living expenses was not erroneous, as the family court acted appropriately in considering the parties' disparity in income and the daughter's medical condition, which the court believed increased the mother's living expenses given that she was the custodial and caretaker of the child. Weber v. Lambe, 513 S.W.3d 912, 2017 Ky. LEXIS 89 ( Ky. 2017 ).

Cited in:

Bell v. Bell, 494 S.W.2d 517, 1973 Ky. LEXIS 446 ( Ky. 1973 ); Purdom v. Purdom, 498 S.W.2d 131, 1973 Ky. LEXIS 287 ( Ky. 1973 ); Farmer v. Farmer, 506 S.W.2d 109, 1974 Ky. LEXIS 744 ( Ky. 1974 ); Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ); Bruton v. Bruton, 569 S.W.2d 182, 1978 Ky. App. LEXIS 5 56 (Ky. Ct. App. 1978); Ogle v. Ogle, 681 S.W.2d 921, 1984 Ky. App. LEXIS 634 (Ky. Ct. App. 1984); In re Lineberry, 55 B.R. 510, 1985 Bankr. LEXIS 4945 (Bankr. W.D. Ky. 1985 ); In re Erler, 60 B.R. 220, 1986 Bankr. LEXIS 6250 (Bankr. W.D. Ky. 1986 ); Calloway v. Calloway, 707 S.W.2d 789, 1986 Ky. App. LEXIS 1109 (Ky. Ct. App. 1986); Poe v. Poe, 711 S.W.2d 849, 1986 Ky. App. LEXIS 1082 (Ky. Ct. App. 1986); Robinette v. Robinette, 736 S.W.2d 351, 1987 Ky. App. LEXIS 5 24 (Ky. Ct. App. 1987); Garrett v. Garrett, 766 S.W.2d 634, 1989 Ky. App. LEXIS 31 (Ky. Ct. App. 1989); Baker v. Baker, 785 S.W.2d 261, 1989 Ky. App. LEXIS 153 (Ky. Ct. App. 1989); Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ); John v. John, 893 S.W.2d 373, 1995 Ky. App. LEXIS 5 (Ky. Ct. App. 1995); Lichtenstein v. Barbanel, 322 S.W.3d 27, 2010 Ky. LEXIS 121 ( Ky. 2010 ); Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

DECISIONS UNDER PRIOR LAW

1.Alimony.

Alimony is not and has never been intended as a penalty for breach of the marriage contract. Igleheart v. Igleheart, 450 S.W.2d 239, 1970 Ky. LEXIS 433 ( Ky. 1970 ).

Where the wife’s income was equal to the husband’s, she received no alimony because she had an adequate estate of her own. Igleheart v. Igleheart, 450 S.W.2d 239, 1970 Ky. LEXIS 433 ( Ky. 1970 ).

Alimony is always represented by money and is damages to compensate for loss of marital support and maintenance. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ).

Where the trial court awarded the wife the use of the residence subject to termination upon remarriage, such award was alimony and was not a just and reasonable division of marital property. Williams v. Williams, 500 S.W.2d 79, 1973 Ky. LEXIS 208 ( Ky. 1973 ).

2.Factors Considered.

In arriving at the amount of alimony, courts have no fixed rule, but consider the age, health, estate, social position and earning capacity of both husband and wife; the conduct the parties have exhibited toward each other; the property the husband has accumulated; his income therefrom and his general ability to pay; the husband’s probable earnings and probable inheritance; the degree of fault of each party; the standard of living the wife would have had but for the divorce and whether wife assisted in the accumulation of the husband’s estate; the conditions and needs of the wife and her children; the cause for which divorce is granted; whether wife and children are living with wife’s parents; the value of dower that the wife would have otherwise received; whether husband has a child to care for, and all other relevant circumstances. Sebastian v. Rose, 135 Ky. 197 , 122 S.W. 120, 1909 Ky. LEXIS 277 ( Ky. 1909 ). See Carter v. Carter, 140 Ky. 228 , 130 S.W. 1102, 1910 Ky. LEXIS 226 ( Ky. 191 0); Shehan v. Shehan, 152 Ky. 191 , 153 S.W. 243, 1913 Ky. LEXIS 640 ( Ky. 1913 ); Anderson v. Anderson, 152 Ky. 773 , 154 S.W. 1, 1913 Ky. LEXIS 724 ( Ky. 1913 ); Wesley v. Wesley, 181 Ky. 135 , 204 S.W. 165, 1918 Ky. LEXIS 522 ( Ky. 1918 ); Kelly v. Kelly, 183 Ky. 172 , 209 S.W. 335, 1919 Ky. LEXIS 4 86 (Ky.), modified, 183 Ky. 576 , 209 S.W. 339, 1919 Ky. LEXIS 4 87 ( Ky. 1919 ); Simpson v. Simpson, 201 Ky. 282 , 256 S.W. 412, 1923 Ky. LEXIS 277 ( Ky. 1923 ); Watkins v. Watkins, 202 Ky. 141 , 259 S.W. 20, 1923 Ky. LEXIS 354 ( Ky. 1923 ); Miles v. Miles, 203 Ky. 431 , 262 S.W. 576, 1924 Ky. LEXIS 920 ( Ky. 1924 ); Sawyer v. Sawyer, 224 Ky. 522 , 6 S.W.2d 679, 1928 Ky. LEXIS 626 ( Ky. 1928 ); Riley v. Riley, 233 Ky. 134 , 25 S.W.2d 59, 1930 Ky. LEXIS 514 ( Ky. 1930 ); Harley v. Harley, 255 Ky. 370 , 74 S.W.2d 195, 1934 Ky. LEXIS 235 ( Ky. 1934 ); Glenn v. Glenn, 255 Ky. 422 , 74 S.W.2d 472, 1934 Ky. LEXIS 250 ( Ky. 1934 ); Polivick v. Polivick, 259 Ky. 653 , 83 S.W.2d 8, 1935 Ky. LEXIS 362 ( Ky. 1935 ); Beutel v. Beutel, 262 Ky. 805 , 91 S.W.2d 528, 1936 Ky. LEXIS 108 ( Ky. 1936 ); Emery v. Emery, 264 Ky. 331 , 94 S.W.2d 634, 1936 Ky. LEXIS 306 ( Ky. 1936 ); Duff v. Duff, 268 Ky. 343 , 104 S.W.2d 1095, 1937 Ky. LEXIS 463 ( Ky. 1937 ); Hawkins v. Hawkins, 272 Ky. 252 , 114 S.W.2d 97, 1938 Ky. LEXIS 114 ( Ky. 1938 ); Collins v. Collins, 279 Ky. 139 , 130 S.W.2d 37, 1939 Ky. LEXIS 251 ( Ky. 1939 ); Quinn v. Quinn, 279 Ky. 286 , 130 S.W.2d 834, 1939 Ky. LEXIS 298 ( Ky. 1939 ); Sabel v. Sabel, 286 Ky. 575 , 151 S.W.2d 56, 1941 Ky. LEXIS 286 ( Ky. 1941 ); Lewis v. Lewis, 289 Ky. 615 , 159 S.W.2d 995, 1942 Ky. LEXIS 612 ( Ky. 1942 ); Dayton v. Dayton, 290 Ky. 418 , 161 S.W.2d 618, 1942 Ky. LEXIS 415 ( Ky. 1942 ); Barnett v. Barnett, 292 Ky. 840 , 168 S.W.2d 17, 1942 Ky. LEXIS 153 (Ky. 1942); Maher v. Maher, 295 Ky. 263 , 174 S.W.2d 289, 1943 Ky. LEXIS 216 ( Ky. 1943 ); Goodwin v. Goodwin, 296 Ky. 835 , 178 S.W.2d 214, 1944 Ky. LEXIS 614 ( Ky. 1944 ); Faulconer v. Faulconer, 307 Ky. 850 , 212 S.W.2d 322, 1948 Ky. LEXIS 840 ( Ky. 1948 ); Taylor v. Taylor, 313 Ky. 11 , 230 S.W.2d 67, 1950 Ky. LEXIS 792 ( Ky. 1950 ); Ahrens v. Ahrens, 313 Ky. 55 , 230 S.W.2d 73, 1950 Ky. LEXIS 795 ( Ky. 1950 ); James v. James, 248 S.W.2d 706, 1952 Ky. LEXIS 749 ( Ky. 1952 ); Oldham v. Oldham, 259 S.W.2d 42, 1953 Ky. LEXIS 918 ( Ky. 1953 ), overruled, Hickey v. Hickey, 383 S.W.2d 114, 1964 Ky. LEXIS 4 ( Ky. 1964 ); Johnson v. Johnson, 263 S.W.2d 106, 1953 Ky. LEXIS 1231 (Ky. Ct. App. 1953); Patterson v. Patterson, 266 S.W.2d 91, 1954 Ky. LEXIS 775 ( Ky. 1954 ); Hicks v. Hicks, 290 S.W.2d 483, 1956 Ky. LEXIS 32 5 ( Ky. 1956 ); Alexander v. Alexander, 317 S.W.2d 494, 1958 Ky. LEXIS 96 ( Ky. 1958 ); Yonts v. Yonts, 329 S.W.2d 209, 1959 Ky. LEXIS 153 ( Ky. 1959 ); Boggs v. Boggs, 330 S.W.2d 118, 1959 Ky. LEXIS 186 ( Ky. 1959 ); Young v. Young, 340 S.W.2d 253, 1960 Ky. LEXIS 32 ( Ky. 1960 ); Davis v. Davis, 347 S.W.2d 534, 1961 Ky. LEXIS 369 ( Ky. 1961 ); Gann v. Gann, 347 S.W.2d 540, 1961 Ky. LEXIS 372 ( Ky. 1961 ); Hunt v. Hunt, 394 S.W.2d 743, 1965 Ky. LEXIS 199 ( Ky. 1965 ); Ralston v. Ralston, 396 S.W.2d 775, 1965 Ky. LEXIS 121 ( Ky. 1965 ).

When fixing alimony, it is proper to consider the wife’s estate, its income and market value as well as that of the husband. Lyon v. Lyon, 243 Ky. 236 , 47 S.W.2d 1072, 1932 Ky. LEXIS 79 ( Ky. 1932 ).

The rule that fixing of alimony is regulated by circumstances such as size of husband’s estate and his age, income, health, ability to labor and earning capacity, as well as wife’s age, health and situation, does not place burden of proving such circumstances on wife, but is only general formula to be applied in light of evidence actually before court. Henry v. Henry, 293 Ky. 483 , 169 S.W.2d 296, 1943 Ky. LEXIS 642 ( Ky. 1943 ).

Life insurance premiums, expenses of professional association membership, and cost of professional books and periodicals were properly deductible from physician’s gross income in determining allowance of alimony and support money. Goodloe v. Goodloe, 294 Ky. 100 , 171 S.W.2d 18, 1943 Ky. LEXIS 394 ( Ky. 1943 ).

Money received by employe in reimbursement for traveling expenses could not be added to his salary in determining his income for purposes of awarding alimony and support money. Goodloe v. Goodloe, 294 Ky. 100 , 171 S.W.2d 18, 1943 Ky. LEXIS 394 ( Ky. 1943 ).

The amount of alimony and maintenance must rest on the particular facts of each case. McCoulf v. McCoulf, 307 Ky. 682 , 212 S.W.2d 284, 1948 Ky. LEXIS 824 ( Ky. 1948 ).

The probability of total disability of the husband commencing at some future time is not a sufficient cause for relieving the husband on the payment of alimony, but may be considered as a factor in determining the amount to be fixed at the present time. Moneypenny v. Moneypenny, 310 Ky. 9 , 219 S.W.2d 960, 1949 Ky. LEXIS 839 ( Ky. 1949 ).

Determination of the amount to be allowed for alimony or maintenance must rest on the facts in each case. Stevens v. Stevens, 313 Ky. 294 , 231 S.W.2d 49, 1950 Ky. LEXIS 877 ( Ky. 1950 ).

In fixing alimony the wife’s age, health and means to support herself may be considered as well as the husband’s income and earning capacity. Youngblood v. Youngblood, 252 S.W.2d 21, 1952 Ky. LEXIS 967 ( Ky. 1952 ).

The fact that a wife is able to support herself by engaging in employment is not a basis for denying alimony. Francisco v. Francisco, 331 S.W.2d 279, 1960 Ky. LEXIS 118 ( Ky. 1960 ).

In arriving at an equitable amount of alimony, there is no exact formula to apply. Terrell v. Terrell, 352 S.W.2d 195, 1961 Ky. LEXIS 195 ( Ky. 1961 ).

A portion of the husband’s estate which was given to him by his parents should be considered in determining the amount of alimony to award his wife upon their divorce, although this portion should not necessarily be considered in the same manner as the property accumulated during the marriage. Hall v. Hall, 380 S.W.2d 231, 1964 Ky. LEXIS 291 ( Ky. 1964 ).

The estate of the husband is the most important factor in determining the amount of alimony to be award upon divorce and the source of the property involved; how and when it was acquired; whether acquired or accumulated before or after marriage; the estate of each of the parties at the time of their marriage; whether the property is the husband’s separate estate or the joint accumulation of the parties; and the contributions of each to the joint or accumulated property should also be considered. Hall v. Hall, 380 S.W.2d 231, 1964 Ky. LEXIS 291 ( Ky. 1964 ).

The wife’s estate consisting of what she owns and what she has been awarded is insufficient, unless it will yield income or profits sufficient for her comfortable maintenance in a style suitable to the social standing established by the parties during marriage, without her being required to consume the principal. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ).

3.Discretion of Trial Court.

The amount of alimony was left to the sound discretion of the chancellor to be decided in the light of the facts of each particular case. Lewis v. Lewis, 204 Ky. 5 , 263 S.W. 366, 1924 Ky. LEXIS 385 ( Ky. 1924 ). See Kelly v. Kelly, 183 Ky. 172 , 209 S.W. 335, 1919 Ky. LEXIS 486 (Ky.), modified, 183 Ky. 5 76 , 209 S.W. 339, 1919 Ky. LEXIS 487 ( Ky. 1919 ); Williamson v. Williamson, 243 Ky. 544 , 49 S.W.2d 337, 1932 Ky. LEXIS 155 ( Ky. 1932 ); Jones v. Jones, 261 Ky. 647 , 88 S.W.2d 673, 1935 Ky. LEXIS 713 ( Ky. 1935 ); Emery v. Emery, 264 Ky. 331 , 94 S.W.2d 634, 1936 Ky. LEXIS 306 ( Ky. 1936 ); Stewart v. Stewart, 272 Ky. 97 , 113 S.W.2d 842, 1937 Ky. LEXIS 695 ( Ky. 1937 ).

The court has full and complete control at all times of alimony, support and maintenance of children, and the care and custody of children. Osten v. Osten, 286 Ky. 473 , 151 S.W.2d 67, 1941 Ky. LEXIS 290 ( Ky. 1941 ).

Generally, allowance of alimony is within the discretion of the trial court. Rutledge v. Rutledge, 310 S.W.2d 276, 1958 Ky. LEXIS 383 ( Ky. 1958 ).

The chancellor was given much discretion in determining the amount of alimony and the form of its payment. Combs v. Combs, 314 S.W.2d 689, 1958 Ky. LEXIS 319 ( Ky. 1958 ).

The fixing of alimony in a divorce action was within the sound discretion of the chancellor to be arrived at from all the acts of the particular case and his decision should carry much weight. Yonts v. Yonts, 329 S.W.2d 209, 1959 Ky. LEXIS 153 ( Ky. 1959 ).

In matters of alimony, maintenance, custody and periods of visitation, the trial court has broad discretion, the exercise of which will not be disturbed unless it is abused. Somerville v. Somerville, 339 S.W.2d 940, 1960 Ky. LEXIS 495 ( Ky. 1960 ).

An award of alimony is within the sound discretion of the court and will not be disturbed unless the award appears to be clearly erroneous. Peavy v. Peavy, 351 S.W.2d 869, 1961 Ky. LEXIS 182 ( Ky. 1961 ).

If all legal conditions necessary for the allowance of permanent alimony are satisfied, then the trial judge is vested with a wide discretion to determine the amount and method of payment of the money damages awarded called “alimony.” Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ).

4.Foreign Divorce.

Where the parties were divorced in a Nevada proceeding in which the issue of alimony was not raised, a Kentucky court was not precluded from considering the resident wife’s claim for alimony. Davis v. Davis, 303 S.W.2d 256, 1957 Ky. LEXIS 234 ( Ky. 1957 ).

A foreign divorce granted to a husband who was at fault, where the wife was not personally served, did not appear, and the issue of alimony was not raised, did not preclude an award of alimony in an action in Kentucky. Pollard v. Pollard, 330 S.W.2d 407, 1959 Ky. LEXIS 193 ( Ky. 1959 ).

5.Subsequent Suit.

Wife who is before the court by personal service may not proceed for the first time to obtain alimony after a final judgment in the cause, but where wife was before the court by constructive service only, she could proceed for the first time to obtain alimony after final judgment. Honaker v. Honaker, 218 Ky. 212 , 291 S.W. 42, 1927 Ky. LEXIS 132 ( Ky. 1927 ).

Where the wife in good faith incorrectly believed that the husband had orally contracted to pay her an amount monthly in lieu of alimony and a property settlement, the wife was allowed to maintain a separate suit for alimony after the husband had been granted a divorce. Reynierson v. Reynierson, 303 S.W.2d 252, 1957 Ky. LEXIS 233 ( Ky. 1957 ).

Absent any evidence of unusual circumstances justifying an award of alimony some 14 months after the final divorce decree, where no motion or petition for the allowance of alimony was filed by the wife after the decree, the court’s award for alimony was erroneous. Hodges v. Hodges, 478 S.W.2d 713, 1972 Ky. LEXIS 337 ( Ky. 1972 ).

6.Res Judicata.

Where original suit for divorce and alimony was dismissed and no proof was taken, such judgment was not res judicata as far as award for alimony was concerned. Littleton v. Littleton, 229 Ky. 353 , 17 S.W.2d 204, 1929 Ky. LEXIS 745 ( Ky. 1929 ), overruled, Bobbitt v. Bobbitt, 297 Ky. 28 , 178 S.W.2d 986, 1944 Ky. LEXIS 676 ( Ky. 1944 ).

7.Enforcement.

Where husband was able to pay judgment for alimony, maintenance and attorney fees, his imprisonment for contempt in failing to pay was not imprisonment for debt. Stinson v. Stinson, 311 Ky. 139 , 223 S.W.2d 727, 1949 Ky. LEXIS 1080 ( Ky. 1949 ).

The chancellor could secure the payment of alimony by granting the wife a lien on the husband’s property. Davis v. Davis, 347 S.W.2d 534, 1961 Ky. LEXIS 369 ( Ky. 1961 ).

8.Appeal.

A wife was not barred from appealing the alimony portion of divorce judgment by her acceptance of the benefits of the other portions of the judgment. Hundley v. Hundley, 291 S.W.2d 544, 1956 Ky. LEXIS 382 ( Ky. 1956 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Mazanec, A Degree or License as Marital Property: The Inman Case, Vol. 46, No. 1, January, 1982, Ky. Bench and Bar 18.

Gilbert and Wise, Apportioning Military Pensions Under The Uniformed Services Former Spouses Protection Act and Kentucky Law, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 26.

Kentucky Law Journal.

Kentucky Law Survey, Wilson, Domestic Relations, 65 Ky. L.J. 383 (1976-77).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Notes, Restoration of Property: Barrier to Interspousal Gifts, 67 Ky. L.J. 173 (1978-1979).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Graham, Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property Upon Divorce, 73 Ky. L.J. 41 (1984-85).

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Northern Kentucky Law Review.

Notes, Intangible Educational and Professional Attainments as Divisible Marital Property, 7 N. Ky. L. Rev. 145 (1980).

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.7, 24.20.

Petrilli, Kentucky Family Law, Foreign Decrees (Conflict of Laws), § 28.4.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.4.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.1, 25.3, 25.4, 25.10, 25.11, 25.12, 25.29, 25.30.

Petrilli, Kentucky Family Law, Separation Agreements, §§ 19.19, 19.20.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.25.

403.210. Recognition of “Family Support Act of 1988” mandate.

The General Assembly recognizes that under the federal “Family Support Act of 1988,” P.L. 100-485, the Commonwealth of Kentucky is required to implement child support guidelines.

History. Enact. Acts 1972, ch. 182, § 11; 1988, ch. 258, § 7, effective July 15, 1988; repealed and reenact., Acts 1990, ch. 418, § 1, effective July 13, 1990.

Compiler’s Notes.

The Family Support Act of 1988, P.L. 100-485 referred to in this section is compiled as found in pertinent part as 42 USCS §§ 652, 654, 666, and 667.

Research References and Practice Aids

Kentucky Bench & Bar.

Crocker, Current Issues in Child Support and the Use of Child Support Guidelines, Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 9.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation (CS-71), Form 263.01.

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation Exception (CS-71.1), Form 263.02.

Caldwell’s Kentucky Form Book, 5th Ed., Property Settlement Agreement, Form 253.16.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.23.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.4.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.1, 25.3, 25.11, 25.13, 25.30.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), §§ 27.1, 27.2, 27.3, 27.9, 27.11, 27.15.

403.211. Action to establish or enforce child support — Rebuttable presumption for award — Allocation of child-care costs and health care expenses — Order for payment of health care coverage — Noncustodial parent’s health plan — Attachment of income — Credit for disability payments.

  1. An action to establish or enforce child support may be initiated by the parent, custodian, or agency substantially contributing to the support of the child. The action may be brought in the county in which the child resides or where the defendant resides.
  2. At the time of initial establishment of a child support order, whether temporary or permanent, or in any proceeding to modify a support order, the child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation.
  3. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption and allow for an appropriate adjustment of the guideline award if based upon one (1) or more of the following criteria:
    1. A child’s extraordinary medical or dental needs;
    2. A child’s extraordinary educational, job training, or special needs;
    3. Either parent’s own extraordinary needs, such as medical expenses;
    4. The independent financial resources, if any, of the child or children;
    5. Combined monthly adjusted parental gross income in excess of the Kentucky child support guidelines;
    6. The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. However, no such agreement shall be the basis of any deviation if public assistance is being paid on behalf of a child under the provisions of Part D of Title IV of the Federal Social Security Act; and
    7. Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.
  4. “Extraordinary” as used in this section shall be determined by the court in its discretion.
  5. When a party has defaulted or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs of the child or the previous standard of living of the child, whichever is greater. An order entered by default or due to insufficient evidence to determine gross income may be modified upward and arrearages awarded from the date of the original order if evidence of gross income is presented within two (2) years which would have established a higher amount of child support pursuant to the child support guidelines set forth in KRS 403.212 .
  6. The court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, reasonable and necessary child care costs incurred due to employment, job search, or education leading to employment, in addition to the amount ordered under the child support guidelines.
    1. Pursuant to 45 C.F.R. sec. 303.31(a)(2), for the purposes of this section, “health care coverage” includes fee for service, health maintenance organization, preferred provider organization, and other types of private health insurance and public health care coverage under which medical services could be provided to a dependent child. If health care coverage is reasonable in cost and accessible to either parent at the time the request for coverage is made, the court shall order the parent to obtain or maintain coverage, and the court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, the cost of health care coverage for the child, in addition to the support ordered under the child support guidelines. (7) (a) Pursuant to 45 C.F.R. sec. 303.31(a)(2), for the purposes of this section, “health care coverage” includes fee for service, health maintenance organization, preferred provider organization, and other types of private health insurance and public health care coverage under which medical services could be provided to a dependent child. If health care coverage is reasonable in cost and accessible to either parent at the time the request for coverage is made, the court shall order the parent to obtain or maintain coverage, and the court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, the cost of health care coverage for the child, in addition to the support ordered under the child support guidelines.
    2. A parent, who has one hundred percent (100%) of the combined monthly adjusted parental gross income, shall be entitled to a reduction in gross income of the entire amount of premiums incurred and paid.
    3. The court shall order the cost of health care coverage of the child to be paid by either or both parents of the child regardless of who has physical custody. The court order shall include:
      1. A judicial directive designating which parent shall have financial responsibility for providing health care coverage for the dependent child, which shall include but not be limited to health care coverage, payments of necessary health care deductibles or copayments;
      2. If appropriate, cash medical support. “Cash medical support” means an amount to be paid toward the cost of health care coverage, fixed payments for ongoing medical costs, extraordinary medical expenses, or any combination thereof; and
      3. A statement providing that if the designated parent’s health care coverage provides for covered services for dependent children beyond the age of majority, then any unmarried children up to twenty-five (25) years of age who are full-time students enrolled in and attending an accredited educational institution and who are primarily dependent on the insured parent for maintenance and support shall be covered.
    4. If health care coverage is not reasonable in cost and accessible at the time the request for the coverage is made, the court order shall provide for cash medical support until health care coverage becomes reasonable in cost and accessible.
    1. For purposes of this section, “reasonable in cost” means that the cost of coverage to the responsible parent does not exceed five percent (5%) of his or her gross income. The five percent (5%) standard shall apply to the cost of adding the child to an existing policy, the difference in the cost between a single and a family policy, or the cost of acquiring a separate policy to cover the child. If the parties agree or the court finds good cause exists, the court may order health care coverage in excess of five percent (5%) of the parent’s gross income. (8) (a) For purposes of this section, “reasonable in cost” means that the cost of coverage to the responsible parent does not exceed five percent (5%) of his or her gross income. The five percent (5%) standard shall apply to the cost of adding the child to an existing policy, the difference in the cost between a single and a family policy, or the cost of acquiring a separate policy to cover the child. If the parties agree or the court finds good cause exists, the court may order health care coverage in excess of five percent (5%) of the parent’s gross income.
    2. For purposes of this section, “accessible” means that there are providers who meet the health care needs of the child and who are located no more than sixty (60) minutes or sixty (60) miles from the child’s primary residence, except that nothing shall prohibit use of a provider located more than sixty (60) minutes or sixty (60) miles from the child’s primary residence.
  7. The cost of extraordinary medical expenses shall be allocated between the parties in proportion to their combined monthly adjusted parental gross incomes. “Extraordinary medical expenses” means uninsured expenses in excess of two hundred fifty dollars ($250) per child per calendar year. “Extraordinary medical expenses” includes but is not limited to the costs that are reasonably necessary for medical, surgical, dental, orthodontal, optometric, nursing, and hospital services; for professional counseling or psychiatric therapy for diagnosed medical disorders; and for drugs and medical supplies, appliances, laboratory, diagnostic, and therapeutic services.
  8. The court order shall include the Social Security numbers, provided in accordance with KRS 403.135 , of all parties subject to a support order.
  9. In any case administered by the Cabinet for Health and Family Services, if the parent ordered to provide health care coverage is enrolled through an insurer but fails to enroll the child under family coverage, the other parent or the Cabinet for Health and Family Services may, upon application, enroll the child.
  10. In any case administered by the cabinet, information received or transmitted shall not be published or be open for public inspection, including reasonable evidence of domestic violence or child abuse if the disclosure of the information could be harmful to the custodial parent or the child of the parent. Necessary information and records may be furnished as specified by KRS 205.175 .
  11. In the case in which a parent is obligated to provide health care coverage, and changes employment, and the new employer provides health care coverage, the Cabinet for Health and Family Services shall transfer notice of the provision for coverage for the child to the employer, which shall operate to enroll this child in the obligated parent’s health plan, unless the obligated parent contests the notice as specified by KRS Chapter 13B.
  12. Notwithstanding any other provision of this section, any wage or income shall not be exempt from attachment or assignment for the payment of current child support or owed or to-be-owed child support.
  13. A payment of money received by a child as a result of a parental disability shall be credited against the child support obligation of the parent. A payment shall not be counted as income to either parent when calculating a child support obligation. An amount received in excess of the child support obligation shall be credited against a child support arrearage owed by the parent that accrued subsequent to the date of the parental disability, but shall not be applied to an arrearage that accrued prior to the date of disability. The date of disability shall be as determined by the paying agency.

History. Enact. Acts 1990, ch. 418, § 2, effective July 13, 1990; 1994, ch. 330, § 10, effective July 15, 1994; 1996, ch. 328, § 3, effective July 15, 1996; 1998, ch. 255, § 19, effective July 15, 1998; 1998, ch. 426, § 579, effective July 15, 1998; 2000, ch. 430, § 18, effective July 14, 2000; 2005, ch. 99, § 624, effective June 20, 2005; 2006, ch. 126, § 4, effective July 12, 2006; 2009, ch. 82, § 1, effective June 25, 2009; 2018 ch. 68, § 1, effective July 14, 2018; 2021 ch. 47, § 1, effective June 29, 2021.

Compiler’s Notes.

Part D of Title IV of the Social Security Act referred to in subdivision (3)(f) of this section is compiled as 42 USCS 651 to 667.

NOTES TO DECISIONS

1.Discretion of Court.

Subsection (4) of this section provides that the circumstances considered as extraordinary shall be determined by the court in its discretion and clearly the guidelines are not designed to cover all the possible scenarios in which divorcing parents find themselves; the legislature has not taken away the trial court’s broad discretion in ensuring that the needs of their children will continue to be met. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

Where unusual circumstances exist which are not specifically provided for in the statute, the Legislature has provided that trial courts should exercise their discretion to achieve just results. But a trial court does not have the discretion to deviate from the guidelines simply because it thinks the Legislature erred in setting the appropriate levels. Nor does it have the discretion to ignore the guidelines because it feels that important factors were ignored by the Legislature. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

The court has the flexibility to fashion appropriate orders for situations not addressed by the current statutory scheme. Brown v. Brown, 952 S.W.2d 707, 1997 Ky. App. LEXIS 95 (Ky. Ct. App. 1997).

Court’s refusal to require father to pay child support was not clearly erroneous where children resided with father 60% of the time and father, as primary custodian, had an ongoing obligation to maintain a residence for the children on a permanent basis, regardless of the amount of time that they spent with their mother. Brown v. Brown, 952 S.W.2d 707, 1997 Ky. App. LEXIS 95 (Ky. Ct. App. 1997).

State Supreme Court found that KRS 403.212(2)(f) imposed a mandatory obligation on parents to report and verify their income but that trial courts could consider evidence not provided in a parent’s statement of income when determining a parent’s child support obligation, and although the Supreme Court upheld the trial court’s decision to consider whether a wife had sources of income other than those the wife reported, it affirmed the intermediate appellate court’s judgment vacating the trial court’s judgment awarding neither the wife nor the wife’s husband child support because the record did not support the trial court’s judgment imputing income to the wife. Schoenbachler v. Minyard, 110 S.W.3d 776, 2003 Ky. LEXIS 82 ( Ky. 2003 ).

Visitation is not a factor to be considered in setting an amount of child support. Dickens v. Dickens, 401 S.W.3d 489, 2013 Ky. App. LEXIS 79 (Ky. Ct. App. 2013).

Supreme Court of Kentucky concludes that trial courts have the discretion to award a credit for Social Security retirement benefits paid to the dependent child. This authority does not stem from Ky. Rev. Stat. Ann. § 403.211(15) but from a trial court's general authority and discretion to determine child-support questions. C.D.G. v. N.J.S., 469 S.W.3d 413, 2015 Ky. LEXIS 1763 ( Ky. 2015 ).

2.Authority of Cabinet.

The Cabinet for Families and Children had authority to intervene to seek a modification of a final order terminating child support, and was not required to file an independent action. Berry v. Cabinet for Families & Children, 998 S.W.2d 464, 1999 Ky. LEXIS 86 ( Ky. 1999 ).

Because a county attorney failed to submit any application to intervene on behalf of the Commonwealth of Kentucky’s Cabinet for Health and Family Services, the Cabinet was not properly before the family court. Its motion to set child support was thus ineffectual, and, as a result, the family court should have entered no order of child support. Boggs v. Commonwealth ex rel. Boggs, 2012 Ky. App. LEXIS 133 (Ky. Ct. App. Aug. 10, 2012), review denied, ordered not published, 2013 Ky. LEXIS 188 (Ky. Feb. 13, 2013).

3.Minor Parent.

Father of an illegitimate child, although lacking the statutorily-defined capacity to consent to sexual relations on the date a child is conceived, may be adjudged liable in a civil paternity action for the years subsequent to the date upon which the father reaches the age of majority. Commonwealth ex rel. Rush v. Hatfield, 929 S.W.2d 200, 1996 Ky. App. LEXIS 148 (Ky. Ct. App. 1996).

4.Assets of Noncustodial Parent.

The child support guidelines, which are exclusively tied to income, are not appropriate where the noncustodial parent has no income, but may have sufficient assets from which support can be obtained; therefore where incarcerated father did not claim to be indigent, nor did he state he had no property to satisfy the support obligation, his children should not have to bear additional deprivation in the form of a reduced standard of living if the father has property, or potential sources of assets, which could be liquidated to satisfy any support delinquency or arrearage. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

5.Income.

Supplemental security income (SSI) benefits paid to a child because of his own disability may be considered as independent financial resources of the child in determining the parental support obligation and in determining whether application of the guidelines would be unjust or inappropriate as considering SSI in the child’s name is consistent with considering social security benefits in the parent’s gross income. The child’s independent benefits would merely be recognized in weighing the equities and fairness of the circumstances of the child and the parents. Barker v. Hill, 949 S.W.2d 896, 1997 Ky. App. LEXIS 70 (Ky. Ct. App. 1997).

Although combined monthly adjusted parental gross income in excess of the child support guidelines is a valid basis for deviating from the child support table, and a trial court may use its judicial discretion to determine child support in circumstances where combined adjusted parental gross income exceeds the uppermost level of the guidelines table, a trial court erred when it based the amount of child support to be paid by a former husband who earned $57,000 per month almost entirely on a mathematical extrapolation from the child support guidelines. Downing v. Downing, 45 S.W.3d 449, 2001 Ky. App. LEXIS 41 (Ky. Ct. App. 2001), limited, Conley v. Conley, 2008 Ky. App. Unpub. LEXIS 975 (Ky. Ct. App. May 16, 2008).

Where a divorce settlement agreement provided that the father’s federal income tax returns would be used to determine his income, and that his children would receive 30 percent of the proceeds from his said salary and bonus, his “income” was his salary and bonus less deductions for taxes (but not for voluntary payments, such as 401K contributions) — in other words, his “net income.” Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

Trial court properly determined unvested restricted stock units would not be considered part of a husband’s income for the purpose of calculating child support because it was not required to do award more than the guidelines recommended; the trial court found the children all participated in one normal extra-curricular activity each, attended public school, and did not have any extraordinary medical needs. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Because the combined gross monthly income captured all sources of income available to the parties including bonuses, restricted stock units (RSUs), and maintenance, the ex-husband’s RSU income should have been included in the income calculation for child support purposes, and the trial court erred in not doing so. Normandin v. Normandin, 634 S.W.3d 589, 2020 Ky. LEXIS 456 ( Ky. 2020 ).

6.— Source.

Disabled parent whose sole means of income was supplementary security income (SSI) benefits was not required to pay child support absent other sufficient assets. Youngblood v. James, 883 S.W.2d 512, 1994 Ky. App. LEXIS 114 (Ky. Ct. App. 1994).

Provisions of KRS 403.211 did not authorize a court to credit against a parent’s child support obligation the retirement dependent benefit that the child received based upon the child’s receipt of Social Security retirement benefits on account of the other parent. N.J.S. v. C.D.G., 2014 Ky. App. LEXIS 49 (Ky. Ct. App. Mar. 21, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 830 (Ky. Ct. App. Mar. 21, 2014).

7.Extraordinary Factor.

Where trial court sought to justify its decision by referring to the uncertain nature of father’s work, although that factor might properly have been taken into account in setting a schedule for payments (e.g. by having father make payments at one level when working and at another level when laid off, as was done by the trial court in a previous order), under the facts of this case, it was not an “extraordinary factor” justifying departure from the guidelines. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

The incarceration of the obligor parent is not an extraordinary circumstance within the meaning of this section and does not relieve him or her from the obligation to pay child support. Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396, 2000 Ky. App. LEXIS 26 (Ky. Ct. App. 2000).

If an imputed monthly child support obligation for a prior-born child that was considered as part of the mother’s income calculation created an extraordinary hardship on the father or the father’s after-born child, the court had authority to permit deviation from the guidelines, pursuant to KRS 403.211(2) and (3). Kimbrough v. Child Support Div. ex rel. Belmar, 215 S.W.3d 69, 2006 Ky. App. LEXIS 226 (Ky. Ct. App. 2006).

Trial court erred in finding there was no legal justification for ordering an ex-husband to pay half the funeral expenses for his only son as it would offend equity and would be unjust not to have the ex-husband pay half of the funeral expenses after collecting death benefits based upon his son’s death. Jewell v. Jewell, 255 S.W.3d 522, 2008 Ky. App. LEXIS 162 (Ky. Ct. App. 2008).

8.Educational Expenses.

For purposes of determining a modification in child support based on incurred educational expenses, educational expenses encompass more than mere tuition. Giacalone v. Giacalone, 876 S.W.2d 616, 1994 Ky. App. LEXIS 17 (Ky. Ct. App. 1994).

Where the mother made a unilateral decision to send the child to a parochial school, the father was not obligated to pay the child’s tuition under KRS 403.211(3)(b), as there was no evidence that a public school would have been an abuse of discretion. Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

9.—Extraordinary Educational Needs.

This section does not encompass private music lessons in its definition of “extraordinary educational needs.” “Extraordinary educational needs” refers to those things not ordinarily necessary to the acquisition of a common school education but which become necessary because of the special needs of a particular student. Smith v. Smith, 845 S.W.2d 25, 1992 Ky. App. LEXIS 230 (Ky. Ct. App. 1992).

In case law, the court agreed with the finding that tuition was an extraordinary expense and could be required in addition to child support, and this finding met the requirements of the statute. Bjelland v. Bjelland, 408 S.W.3d 86, 2013 Ky. App. LEXIS 121 (Ky. Ct. App. 2013).

Trial court made factual findings supporting its holding that the mother was responsible for her part of the several extracurricular expenses that included the field trip cost that was the subject of the appeal. Bjelland v. Bjelland, 408 S.W.3d 86, 2013 Ky. App. LEXIS 121 (Ky. Ct. App. 2013).

Trial court found that the mandatory field trip costs were required for the child’s participation in class and that non-mandatory field trip costs were a special need of the child, and the court found no abuse of discretion or clear error; the trial court’s acceptance of the father’s testimony as more credible met the substantial evidence requirement for its ruling. Bjelland v. Bjelland, 408 S.W.3d 86, 2013 Ky. App. LEXIS 121 (Ky. Ct. App. 2013).

Despite alleging that there was no credible evidence of special needs for extracurricular expenses, the mother did not make a motion for additional findings, and the court found no error in the order requiring the mother to pay for such expenses. Bjelland v. Bjelland, 408 S.W.3d 86, 2013 Ky. App. LEXIS 121 (Ky. Ct. App. 2013).

Trial court found that the child had extraordinary educational needs but failed to address binding case law requiring that in the absence of an agreement, a parent like the father here could not be ordered to pay private school tuition without showing that public schools were inadequate; remand was required. Ridgeway v. Warren, 2020 Ky. App. LEXIS 74 (Ky. Ct. App. June 26, 2020), op. withdrawn, sub. op., 605 S.W.3d 567, 2020 Ky. App. LEXIS 78 (Ky. Ct. App. 2020) (Ky. Ct. App. June 26, 2020), op. withdrawn, sub. op., 2020 Ky. App. LEXIS 78 (Ky. Ct. App. July 2, 2020).

Trial court improperly deviated from the child support guidelines when it ordered the father to pay private school tuition where he had not agreed to d so, and the trial court failed to make the requisite finding under Ky. Rev. Stat. Ann. § 403.211(3)(b) that public schools would have been inadequate to meet the child’s educational needs. Ridgeway v. Warren, 605 S.W.3d 567, 2020 Ky. App. LEXIS 78 (Ky. Ct. App. 2020).

Absent an agreement, a parent cannot be ordered to pay private school tuition unless the trial court also finds that public schools have been shown to be inadequate to meet the child’s needs under binding judicial precedent. Ridgeway v. Warren, 605 S.W.3d 567, 2020 Ky. App. LEXIS 78 (Ky. Ct. App. 2020).

10.Health Care Expenses.

Remand for additional proceedings was required where the court failed to make the required findings to justify its modification of a child support order to require the former wife to assume the entire burden of health insurance and other health related expenses. Van Meter v. Smith, 14 S.W.3d 569, 2000 Ky. App. LEXIS 17 (Ky. Ct. App. 2000).

family court properly determined the amount of a father’s child support arrearage, and denied the mother’s motion to require the father to provide health insurance for his emancipated children because his testimony and records were more credible than the mother’s, the parties’ oral contract to reduce the amount of child support by 17 cents was supported by the father’s testimony and records, and the mother failed to prove all the statutorily required elements where she testified that the emancipated children were now dependent upon her as opposed to the father. McCain v. McCarty, 611 S.W.3d 745, 2020 Ky. App. LEXIS 117 (Ky. Ct. App. 2020).

11.Independent Financial Resources of Child.

It was error for the court to refuse to consider the independent financial resources of the child, due to his receipt of a sizeable personal injury settlement, in determining whether extraordinary circumstances existed to merit deviating from the child support guidelines. The court also erred in not hearing evidence regarding the child’s present physical and mental condition, his current medical needs or the likelihood of further medical expenses given his injuries and whether mother was justified in being unemployed. Rainwater v. Williams, 930 S.W.2d 405, 1996 Ky. App. LEXIS 160 (Ky. Ct. App. 1996).

While Social Security disability benefits made on behalf of a disabled parent are arguably a financial resource of a recipient, such benefits are not the type of “independent financial resource” that would allow a trial court to deviate from the basic child support guidelines; allowing the trial court to consider the Social Security benefits of the disabled parent when calculating the child support obligation of the non-disabled parent would, in effect, nullify the mandate of KRS 403.211(15). Therefore, a trial court erred by deviating from the guidelines in determining the child support obligation of a noncustodial mother based on the payments of such benefits to the children of a custodial father. Artrip v. Noe, 311 S.W.3d 229, 2010 Ky. LEXIS 81 ( Ky. 2010 ).

12.Change of Circumstances.

Father continued to have a child support obligation owed to his minor child, despite the child’s placement in a rehabilitation program with the Department of Juvenile Justice, instead of living with her mother, the custodial parent. R.D.P. v. S.M.B., 2003 Ky. App. LEXIS 249 (Ky. Ct. App. Oct. 10, 2003), rev'd, 169 S.W.3d 834, 2005 Ky. LEXIS 245 ( Ky. 2005 ).

Circuit court properly awarded a father half of the mother’s monthly social security benefits she received on behalf of their children as support payments retroactive to the date of the filing of the father’s motion because both parties were unemployed as a result of disabilities and the father ceased receiving any benefits for the children inasmuch as the mother’s benefits were higher. Moody v. Demala, 2019 Ky. App. LEXIS 122 (Ky. Ct. App. July 19, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 910 (Ky. Ct. App. July 19, 2019).

13.Deviation from Guidelines.

Trial court erred by refusing to deviate from the statutory child support guidelines and in awarding child support to the mother under circumstances in which the parties were awarded joint custody of the children, neither of them was designated as the primary residential custodian, physical custody of the children was evenly divided between the parents, they bore an almost identical responsibility for the day-to-day expenses associated with their care, and, because there was no significant disparity between the parties’ annual income, the expenses necessary to provide a home for the children were also incurred by each party in equal proportion; the statutory guidelines offered sufficient flexibility to allow the trial court to fashion appropriate and just child support orders. Plattner v. Plattner, 228 S.W.3d 577, 2007 Ky. App. LEXIS 198 (Ky. Ct. App. 2007).

In a case where a legal father was equitably estopped from setting aside an agreed paternity order, it was an abuse of discretion to set aside the father's child support obligation based on the fact that he was not the biological father of two children who were born out of wedlock; the children were statutorily entitled to support, and the court was permitted to deviate from the child support guidelines where their application would have been unjust or inappropriate. K.W. v. J.S., 459 S.W.3d 399, 2015 Ky. App. LEXIS 21 (Ky. Ct. App. 2015).

14.— Support Less Than Authorized by Guidelines.

KRS 403.213 applies to any action to modify an award of child support even in a case where there was a separation agreement where the spouse acknowledged that the child support payable under the terms of the agreement was less than that authorized by the child support guidelines pursuant to subsection (3) of this section. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

15.— Support Greater Than Authorized by Guidelines.

Divorce settlement agreement’s child support provisions are not unconscionable just because the child support exceeds either the child support guidelines or the children’s reasonable needs, as the guidelines themselves allow parents to agree to child support in excess of the guidelines and a parent has a right to do more for his or her children than the law requires. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

While a trial court may not itself award child support in excess of the guidelines or a child’s reasonable needs, it may do so when the parent knowingly agrees. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

Divorce settlement agreement that obliged the former husband to pay 30 percent of his salary and bonuses as child support for the parties’ two (2) children and to pay support past the age of majority should the children attend college and graduate school was not unconscionable as (1) he was a sophisticated businessman who understood the agreement’s terms, (2) he was entitled to agree to pay support in excess of the guidelines or the children’s reasonable needs, and (3) that he later had second thoughts was not a basis to void the agreement. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

Family court did not abuse its discretion when it refused to set aside a separation agreement as the amount of child support was not unconscionable because, while in excess of the guidelines, it was not shocking to the conscious or outside the former husband's reasonable fiscal means. Mays v. Mays, 541 S.W.3d 516, 2018 Ky. App. LEXIS 87 (Ky. Ct. App. 2018).

16.Excess Payments.

Where social security payments received by child on account of father’s disability exceeded the father’s monthly support obligation, any payments of child support made by father after the social security payments began should be credited to his arrearage; the remainder of any surplus must be considered a gratuity and not allowed to offset any arrearage for support which accrued prior to the disability. Miller v. Miller, 929 S.W.2d 202, 1996 Ky. App. LEXIS 147 (Ky. Ct. App. 1996).

Where the father had overpaid the mother for day care expenses which were never incurred by the mother, and the mother had misled the father and the court regarding the day care expenses, the trial court had the authority to order mother to reimburse those costs to father. Connelly v. Degott, 132 S.W.3d 871, 2003 Ky. App. LEXIS 29 (Ky. Ct. App. 2003).

Although the trial court was allowed to modify the allocation of child care costs to reflect the fact that a wife’s need to pay those costs had decreased, the trial court improperly considered the issue under KRS 403.213 , not under KRS 403.211(6), and the appellate court vacated the trial court’s judgment and remanded the case for further proceedings. Olson v. Olson, 108 S.W.3d 650, 2003 Ky. App. LEXIS 158 (Ky. Ct. App. 2003).

Father was properly given a credit for his overpayment of child care expenses where he tendered evidence proving that a substantial amount of the allocated child care expenses had not been incurred; consequently, he was entitled to be repaid the excess funds he had provided. Nosarzewski v. Nosarzewski, 375 S.W.3d 820, 2012 Ky. App. LEXIS 135 (Ky. Ct. App. 2012).

17.Disregard of Former Agreement.

Since once an award of child support entered pursuant to the terms of a separation agreement under KRS 403.280 is reopened for modification, the child support must be set anew pursuant to KRS 403.210 et seq., and in reaching its decision the court is to consider both the changes in finances of both parents as well as the needs of the child, it was proper for the court to disregard the prior agreement of the parties as to the amount of child support payable by the husband in deciding to raise that amount. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

Modification of a father’s child support obligation was vacated because (1) a prior court established that obligation at $0, so the mother’s assignment of the right to child support to the Cabinet for Health and Family Services (CHFS) only assigned a right to seek modification, (2) CHFS’ complaint did not comply with a procedural rule by demanding that the court establish a child support obligation, (3) the court in which the complaint was filed discounted the prior decree, and, (4) while any objection to the subsequent court as an improper forum was waived, that court did not recognize the prior decree as establishing the father’s initial obligation and did not find if the facts justified modification of the initial obligation. Martin v. Commonwealth Cabinet, 583 S.W.3d 12, 2019 Ky. App. LEXIS 86 (Ky. Ct. App. 2019).

18.Interest on Support Arrearages.

As an obligor’s past due payments for child support and maintenance become vested when due, and each payment is a fixed and liquidated debt which a court has no power to modify, the obligee is entitled to prejudgment interest as a matter of law from the date that each payment was due. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

Where the record indicates that, at the time they entered into an agreement regarding child support, a child’s parents were aware of the child support guideline calculations and were represented by counsel, the family court, under KRS 403.211(3)(f), is permitted to deviate from the child support guidelines. Where such an agreement has been made, it is not an abuse of discretion for the family court to denying a motion to modify child support on the basis of the parties’ agreement. Cabinet v. Bowman, 2010 Ky. App. LEXIS 123 (Ky. Ct. App. July 16, 2010).

Child support guidelines were inapplicable, KRS 403.211(3)(e) and (g), because the parties’ combined monthly gross income exceeded the uppermost level of the child support guidelines rendering application of the guidelines inappropriate, and the familial circumstances were of an extraordinary nature rendering application of the child support guidelines unjust; as the child support guidelines were inapplicable, the rebuttable presumption found in KRS 403.213(2) concerning modification of child support was inapplicable, and upon remand, the family court had to consider the father’s motions to modify child support in accordance with KRS 403.213(1). Dudgeon v. Dudgeon, 318 S.W.3d 106, 2010 Ky. App. LEXIS 136 (Ky. Ct. App. 2010).

Trial court erred when it terminated a parent’s child support obligations, in part, because the parent bought clothes for the children, because the clothing expenses did not represent a substantial shift in expenses; the family court’s decision to terminate all of the parent’s child support was improper, unfair, and difficult to reconcile with public policy. Jones v. Hammond, 329 S.W.3d 331, 2010 Ky. App. LEXIS 151 (Ky. Ct. App. 2010).

Trial court was permitted under KRS 403.211(2) and (3) to deviate from the child support guidelines upon finding that the application of the guidelines would be unjust or inappropriate. In the wife and husband’s divorce case, the trial court specifically set out its reasons for deviating from the child support guidelines, and the evidence supported its conclusion that the parties’ shared-parenting schedule and resulting relatively equal division of physical custody was a valid ground for deviating from the guidelines. McGregor v. McGregor, 334 S.W.3d 113, 2011 Ky. App. LEXIS 30 (Ky. Ct. App. 2011).

19.Res Judicata.

Because the child was not a party to either the divorce or divorce decree, where both mother and father claimed there were no children and that mother was not pregnant, or the initial paternity action brought by mother, which was dismissed, the circuit court erred in reversing the finding of paternity and order of child support brought on behalf of the child and case was remanded for reinstatement of award. Commonwealth ex rel. Hansard v. Shackleford, 908 S.W.2d 671, 1995 Ky. App. LEXIS 188 (Ky. Ct. App. 1995).

Parent receiving the credit under KRS 403.211(15) is to be the non-custodial disabled parent with the child support obligation. Therefore, a mother paying child support was not entitled to a credit for Social Security disability benefits that were paid to a custodial father. Artrip v. Noe, 311 S.W.3d 229, 2010 Ky. LEXIS 81 ( Ky. 2010 ).

20.Child Care Costs.

Because the children’s grandfather incurred costs related to gasoline when he drove the children to and from school, the mother had to pay her niece and another babysitter to care for the children due to the grandfather having medical issues, and she introduced into evidence a worksheet detailing her childcare expenses, under KRS 403.211(6), the father had to pay his share of those costs. McIntosh v. Landrum, 377 S.W.3d 574, 2012 Ky. App. LEXIS 160 (Ky. Ct. App. 2012).

Mother was reimbursed for respite care as the father’s missed parenting time caused the mother to sometimes have to pay for extra childcare herself for the parties’ autistic son, who required constant supervision, and their daughter during times when she should not have had to. McIntosh v. Landrum, 377 S.W.3d 574, 2012 Ky. App. LEXIS 160 (Ky. Ct. App. 2012).

Statute requires the trial court to treat child-care costs in the same manner as support set under the guidelines; in this case, the trial court deviated from the guidelines based on the equal parenting time that each had with the children, and the trial court also had the discretion to deviate from a proportionate division of child care expenses, and as nothing in the trial court’s decision was unjust or unreasonable, no abuse of discretion was found. Keith v. Keith, 556 S.W.3d 10, 2018 Ky. App. LEXIS 204 (Ky. Ct. App. 2018).

21.Parenting Time.

If the court finds that the time a parent spends with a child results in unjust or inappropriate child support, this section requires a written finding about why the court is deviating from the guidelines amount. McFelia v. McFelia, 406 S.W.3d 838, 2013 Ky. LEXIS 372 ( Ky. 2013 ).

While a trial court may take into account the parents’ visitation or time-sharing arrangement in deciding the amount of child support to be paid under the guidelines, it is not mandatory. McFelia v. McFelia, 406 S.W.3d 838, 2013 Ky. LEXIS 372 ( Ky. 2013 ).

Where the trial court was aware of the amount of time the children spent with their father, the court’s failure to factor time-sharing into the child support decision under the guidelines was not error. The court was not required to sua sponte raise this issue unless it found the time spent with the father resulted in unjust or inappropriate child support. McFelia v. McFelia, 406 S.W.3d 838, 2013 Ky. LEXIS 372 ( Ky. 2013 ).

Cited in:

Wiegand v. Wiegand, 862 S.W.2d 336, 1993 Ky. App. LEXIS 120 (Ky. Ct. App. 1993); Clary v. Clary, 54 S.W.3d 568, 2001 Ky. App. LEXIS 696 (Ky. Ct. App. 2001); Campbell v. Campbell, — S.W.3d —, 2004 Ky. App. LEXIS 89 (Ky. Ct. App. 2004); Seay v. Seay, 404 S.W.3d 215, 2013 Ky. App. LEXIS 102 (Ky. Ct. App. 2013); Ciampa v. Ciampa, 415 S.W.3d 97, 2013 Ky. App. LEXIS 128 (Ky. Ct. App. 2013).

Opinions of Attorney General.

The language of KRS 205.796 and KRS 403.211(11) is clear on its face: they proscribe disclosure of any information received or transmitted in cases administered by the Cabinet, notwithstanding the fact that some of that information is accessible through court records, unless the requester can demonstrate that he or she otherwise qualifies for access to the records under KRS 205.175 or another provision of KRS Chapter 205. The Cabinet is strictly prohibited by the language of these provisions from disclosing the information in an Open Records request. OAG 03-ORD-90.

Research References and Practice Aids

Kentucky Bench & Bar.

Crocker, Current Issues in Child Support and the Use of Child Support Guidelines, Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 9.

Underwood, More Confessions of an Ethics Chairman, Vol. 59, No. 3, Summer 1995 Ky. Bench & B. 32.

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Notes, House, Awarding Child Support Against the Impoverished Parent: Straying from Statutory Guidelines and Using SSI in Setting the Amount, 83 Ky. L.J. 681 (1994-95).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Bartlett, Setting Child Support for the Low Income and High Income Families in Kentucky, 25 N. Ky. L. Rev. 2 (1998).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit in Support of Motion for Qualified Medical Child Support Order, Form 263.17.

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Qualified Medical Child Support Order, Form 263.16.

Caldwell’s Kentucky Form Book, 5th Ed., Order for Qualified Medical Child Support, Form 263.18.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Child Support — Child Born Out of Wedlock, Form 263.23.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Child Support, § 263.00.

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation Exception (CS — 71.1), Form 263.02.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

403.211. Action to establish or enforce child support — Rebuttable presumption for award — Allocation of child-care costs and health care expenses — Order for payment of health care coverage — Noncustodial parent’s health plan — Attachment of income — Credit for disability payments.

  1. An action to establish or enforce child support may be initiated by the parent, custodian, or agency substantially contributing to the support of the child. The action may be brought in the county in which the child resides or where the defendant resides.
  2. At the time of initial establishment of a child support order, whether temporary or permanent, or in any proceeding to modify a support order, the child support guidelines in KRS 403.212 or Section 2 of this Act shall serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation.
  3. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption and allow for an appropriate adjustment of the guideline award if based upon one (1) or more of the following criteria:
    1. A child’s extraordinary medical or dental needs;
    2. A child’s extraordinary educational, job training, or special needs;
    3. Either parent’s own extraordinary needs, such as medical expenses;
    4. The independent financial resources, if any, of the child or children;
    5. Combined monthly adjusted parental gross income in excess of the Kentucky child support guidelines;
    6. The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. However, no such agreement shall be the basis of any deviation if public assistance is being paid on behalf of a child under the provisions of Part D of Title IV of the Federal Social Security Act; and
    7. Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.
  4. “Extraordinary” as used in this section shall be determined by the court in its discretion.
  5. When a party has defaulted or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs of the child or the previous standard of living of the child, whichever is greater. An order entered by default or due to insufficient evidence to determine gross income may be modified upward and arrearages awarded from the date of the original order if evidence of gross income is presented within two (2) years which would have established a higher amount of child support pursuant to the child support guidelines set forth in KRS 403.212 or Section 2 of this Act.
  6. The court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, reasonable and necessary child care costs incurred due to employment, job search, or education leading to employment, in addition to the amount ordered under the child support guidelines.
    1. Pursuant to 45 C.F.R. sec. 303.31(a)(2), for the purposes of this section, “health care coverage” includes fee for service, health maintenance organization, preferred provider organization, and other types of private health insurance and public health care coverage under which medical services could be provided to a dependent child. If health care coverage is reasonable in cost and accessible to either parent at the time the request for coverage is made, the court shall order the parent to obtain or maintain coverage, and the court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, the cost of health care coverage for the child, in addition to the support ordered under the child support guidelines. (7) (a) Pursuant to 45 C.F.R. sec. 303.31(a)(2), for the purposes of this section, “health care coverage” includes fee for service, health maintenance organization, preferred provider organization, and other types of private health insurance and public health care coverage under which medical services could be provided to a dependent child. If health care coverage is reasonable in cost and accessible to either parent at the time the request for coverage is made, the court shall order the parent to obtain or maintain coverage, and the court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, the cost of health care coverage for the child, in addition to the support ordered under the child support guidelines.
    2. A parent, who has one hundred percent (100%) of the combined monthly adjusted parental gross income, shall be entitled to a reduction in gross income of the entire amount of premiums incurred and paid.
    3. The court shall order the cost of health care coverage of the child to be paid by either or both parents of the child regardless of who has physical custody. The court order shall include:
      1. A judicial directive designating which parent shall have financial responsibility for providing health care coverage for the dependent child, which shall include but not be limited to health care coverage, payments of necessary health care deductibles or copayments;
      2. If appropriate, cash medical support. “Cash medical support” means an amount to be paid toward the cost of health care coverage, fixed payments for ongoing medical costs, extraordinary medical expenses, or any combination thereof; and
      3. A statement providing that if the designated parent’s health care coverage provides for covered services for dependent children beyond the age of majority, then any unmarried children up to twenty-five (25) years of age who are full-time students enrolled in and attending an accredited educational institution and who are primarily dependent on the insured parent for maintenance and support shall be covered.
    4. If health care coverage is not reasonable in cost and accessible at the time the request for the coverage is made, the court order shall provide for cash medical support until health care coverage becomes reasonable in cost and accessible.
    1. For purposes of this section, “reasonable in cost” means that the cost of coverage to the responsible parent does not exceed five percent (5%) of his or her gross income. The five percent (5%) standard shall apply to the cost of adding the child to an existing policy, the difference in the cost between a single and a family policy, or the cost of acquiring a separate policy to cover the child. If the parties agree or the court finds good cause exists, the court may order health care coverage in excess of five percent (5%) of the parent’s gross income. (8) (a) For purposes of this section, “reasonable in cost” means that the cost of coverage to the responsible parent does not exceed five percent (5%) of his or her gross income. The five percent (5%) standard shall apply to the cost of adding the child to an existing policy, the difference in the cost between a single and a family policy, or the cost of acquiring a separate policy to cover the child. If the parties agree or the court finds good cause exists, the court may order health care coverage in excess of five percent (5%) of the parent’s gross income.
    2. For purposes of this section, “accessible” means that there are providers who meet the health care needs of the child and who are located no more than sixty (60) minutes or sixty (60) miles from the child’s primary residence, except that nothing shall prohibit use of a provider located more than sixty (60) minutes or sixty (60) miles from the child’s primary residence.
  7. The cost of extraordinary medical expenses shall be allocated between the parties in proportion to their combined monthly adjusted parental gross incomes. “Extraordinary medical expenses” means uninsured expenses in excess of two hundred fifty dollars ($250) per child per calendar year. “Extraordinary medical expenses” includes but is not limited to the costs that are reasonably necessary for medical, surgical, dental, orthodontal, optometric, nursing, and hospital services; for professional counseling or psychiatric therapy for diagnosed medical disorders; and for drugs and medical supplies, appliances, laboratory, diagnostic, and therapeutic services.
  8. The court order shall include the Social Security numbers, provided in accordance with KRS 403.135 , of all parties subject to a support order.
  9. In any case administered by the Cabinet for Health and Family Services, if the parent ordered to provide health care coverage is enrolled through an insurer but fails to enroll the child under family coverage, the other parent or the Cabinet for Health and Family Services may, upon application, enroll the child.
  10. In any case administered by the cabinet, information received or transmitted shall not be published or be open for public inspection, including reasonable evidence of domestic violence or child abuse if the disclosure of the information could be harmful to the custodial parent or the child of the parent. Necessary information and records may be furnished as specified by KRS 205.175 .
  11. In the case in which a parent is obligated to provide health care coverage, and changes employment, and the new employer provides health care coverage, the Cabinet for Health and Family Services shall transfer notice of the provision for coverage for the child to the employer, which shall operate to enroll this child in the obligated parent’s health plan, unless the obligated parent contests the notice as specified by KRS Chapter 13B.
  12. Notwithstanding any other provision of this section, any wage or income shall not be exempt from attachment or assignment for the payment of current child support or owed or to-be-owed child support.
  13. A payment of money received by a child as a result of a parental disability shall be credited against the child support obligation of the parent. A payment shall not be counted as income to either parent when calculating a child support obligation. An amount received in excess of the child support obligation shall be credited against a child support arrearage owed by the parent that accrued subsequent to the date of the parental disability, but shall not be applied to an arrearage that accrued prior to the date of disability. The date of disability shall be as determined by the paying agency.

HISTORY: Enact. Acts 1990, ch. 418, § 2, effective July 13, 1990; 1994, ch. 330, § 10, effective July 15, 1994; 1996, ch. 328, § 3, effective July 15, 1996; 1998, ch. 255, § 19, effective July 15, 1998; 1998, ch. 426, § 579, effective July 15, 1998; 2000, ch. 430, § 18, effective July 14, 2000; 2005, ch. 99, § 624, effective June 20, 2005; 2006, ch. 126, § 4, effective July 12, 2006; 2009, ch. 82, § 1, effective June 25, 2009; 2018 ch. 68, § 1, effective July 14, 2018; 2021 ch. 47, § 1, effective June 29, 2021; 2022 ch. 122, § 6.

403.212. Child support guidelines — Terms to be applied in calculations — Table.

  1. The following provisions and child support table shall be the child support guidelines established for the Commonwealth of Kentucky.
  2. For the purposes of the child support guidelines:
    1. “Income” means actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed;
    2. “Gross income” includes income from any source, except as excluded in this subsection, and includes but is not limited to income from salaries, wages, retirement and pension funds, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, Supplemental Security Income (SSI), gifts, prizes, and alimony or maintenance received. Specifically excluded are benefits received from means-tested public assistance programs, including but not limited to public assistance as defined under Title IV-A of the Federal Social Security Act, and food stamps;
    3. For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required for self-employment or business operation. Straight-line depreciation, using Internal Revenue Service (IRS) guidelines, shall be the only allowable method of calculating depreciation expense in determining gross income. Specifically excluded from ordinary and necessary expenses for purposes of this guideline shall be investment tax credits or any other business expenses inappropriate for determining gross income for purposes of calculating child support. Income and expenses from self-employment or operation of a business shall be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. In most cases, this amount will differ from a determination of business income for tax purposes. Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business or personal use of business property or payments of expenses by a business, shall be counted as income if they are significant and reduce personal living expenses such as a company or business car, free housing, reimbursed meals, or club dues;
    4. “Self-support reserve” means a low-income adjustment amount to the obligated parent of nine hundred fifteen dollars ($915) per month that considers the subsistence needs of the parent with a limited ability to pay in accordance with 45 C.F.R. sec. 302.56(c)(1)(ii), and as applied under subsection (3) of this section;
      1. If there is a finding that a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a finding of voluntary unemployment or underemployment and a determination of potential income shall not be made for a parent who is incarcerated, physically or mentally incapacitated, or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility; (e) 1. If there is a finding that a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a finding of voluntary unemployment or underemployment and a determination of potential income shall not be made for a parent who is incarcerated, physically or mentally incapacitated, or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility;
      2. A court may find a parent is voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation; and
      3. Imputation of potential income, when applicable, shall include consideration of the following circumstances of the parents, to the extent known:
        1. Assets and residence;
        2. Employment, earning history, and job skills;
        3. Educational level, literacy, age, health, and criminal record that could impair the ability to gain or continue employment;
        4. Record of seeking work;
        5. Local labor market, including availability of employment for which the parent may be qualified and employable;
        6. Prevailing earnings in the local labor market; and
        7. Other relevant background factors, including employment barriers;
    5. “Imputed child support obligation” means the amount of child support the parent would be required to pay from application of the child support guidelines;
    6. Income statements of the parents shall be verified by documentation of both current and past income. Suitable documentation shall include, but shall not be limited to, income tax returns, paystubs, employer statements, or receipts and expenses if self-employed;
    7. “Combined monthly adjusted parental gross income” means the combined monthly gross incomes of both parents, less any of the following payments made by the parent:
      1. The amount of pre-existing orders for current maintenance for prior spouses to the extent payment is actually made and the amount of current maintenance, if any, ordered paid in the proceeding before the court;
      2. The amount of pre-existing orders of current child support for prior-born children to the extent payment is actually made under those orders; and
      3. A deduction for the support to the extent payment is made, if a parent is legally responsible for and is actually providing support for other prior- born children who are not the subject of a particular proceeding. If the prior-born children reside with that parent, an “imputed child support obligation” shall be allowed in the amount which would result from application of the guidelines for the support of the prior-born children; and
    8. “Split custody arrangement” means a situation where each parent is the residential custodian for one (1) or more children for whom the parents share a joint legal responsibility.
    1. Except as provided in paragraph (b) of this subsection, the child support obligation set forth in the child support guidelines table shall be divided between the parents in proportion to their combined monthly adjusted parental gross income. (3) (a) Except as provided in paragraph (b) of this subsection, the child support obligation set forth in the child support guidelines table shall be divided between the parents in proportion to their combined monthly adjusted parental gross income.
    2. If the monthly adjusted gross income of the obligated parent and the number of children for whom support is being determined fall within the following defined areas, which represent the self-support reserve, the basic child support obligation shall be calculated by using the monthly adjusted gross income of the obligated parent only to provide the obligated parent with the self-support reserve:
      1. Equal to or less than one thousand one hundred dollars ($1,100) with one (1) or more children;
      2. Equal to or less than one thousand three hundred dollars ($1,300) with two (2) or more children;
      3. Equal to or less than one thousand four hundred dollars ($1,400) with three (3) or more children;
      4. Equal to or less than one thousand five hundred dollars ($1,500) with four (4) or more children; or
      5. Equal to or less than one thousand six hundred dollars ($1,600) with six (6) or more children.
  3. The child support obligation shall be the appropriate amount for the number of children in the table for whom the parents share a joint legal responsibility. The minimum amount of child support shall be sixty dollars ($60) per month.
  4. The court may use its judicial discretion in determining child support in circumstances where combined adjusted parental gross income exceeds the uppermost levels of the guideline table.
  5. The child support obligation in a split custody arrangement shall be calculated in the following manner:
    1. Two (2) separate child support obligation worksheets shall be prepared, one (1) for each household, using the number of children born of the relationship in each separate household, rather than the total number of children born of the relationship.
    2. The parent with the greater monthly obligation amount shall pay the difference between the obligation amounts, as determined by the worksheets, to the other parent.
  6. The child support guidelines table is as follows:

COMBINED MONTHLY ADJUSTED PARENTAL GROSS INCOME ONE CHILD TWO CHILDREN THREE FOUR FIVE SIX OR MORE $0 $60 $60 $60 $60 $60 $60 100 60 60 60 60 60 60 200 60 60 60 60 60 60 300 60 60 60 60 60 60 400 60 60 60 60 60 60 500 60 60 60 60 60 60 600 60 60 60 60 60 60 700 60 60 60 60 60 60 800 60 60 60 60 60 60 900 60 60 60 60 60 60 1,000 85 85 85 85 85 85 1,100 148 150 152 154 155 157 1,200 200 231 234 237 239 242 1,300 216 312 316 320 323 327 1,400 231 339 398 403 407 412 1,500 247 362 437 486 491 497 1,600 262 384 464 518 570 582 1,700 277 406 491 548 603 655 1,800 292 428 517 578 635 691 1,900 307 450 544 607 668 726 2,000 322 472 570 637 701 762 2,100 337 494 597 667 734 797 2,200 352 516 624 697 766 833 2,300 367 538 650 726 799 869 2,400 382 560 677 756 832 904 2,500 397 582 704 786 865 940 2,600 412 604 730 816 897 975 2,700 427 626 757 845 930 1,011 2,800 442 648 783 875 963 1,046 2,900 457 670 810 905 995 1,082 3,000 472 692 837 935 1,028 1,118 3,100 487 714 863 964 1,061 1,153 3,200 502 737 890 994 1,094 1,189 3,300 517 759 917 1,024 1,126 1,224 3,400 532 781 943 1,054 1,159 1,260 3,500 547 803 970 1,083 1,192 1,295 3,600 562 825 997 1,113 1,224 1,331 3,700 577 847 1,023 1,143 1,257 1,367 3,800 592 869 1,050 1,173 1,290 1,402 3,900 607 891 1,076 1,202 1,323 1,438 4,000 621 912 1,102 1,230 1,353 1,471 4,100 634 931 1,125 1,256 1,382 1,502 4,200 647 950 1,148 1,282 1,410 1,533 4,300 660 969 1,171 1,308 1,439 1,564 4,400 673 988 1,194 1,334 1,467 1,595 4,500 686 1,007 1,217 1,359 1,495 1,625 4,600 699 1,026 1,240 1,385 1,524 1,656 4,700 712 1,045 1,263 1,411 1,552 1,687 4,800 725 1,064 1,286 1,437 1,580 1,718 4,900 738 1,084 1,309 1,463 1,609 1,749 5,000 751 1,103 1,332 1,488 1,637 1,780 5,100 764 1,122 1,356 1,514 1,666 1,810 5,200 777 1,141 1,379 1,540 1,694 1,841 5,300 790 1,160 1,402 1,566 1,722 1,872 5,400 799 1,172 1,415 1,581 1,739 1,890 5,500 805 1,177 1,419 1,585 1,744 1,896 5,600 810 1,181 1,423 1,590 1,749 1,901 5,700 815 1,186 1,427 1,594 1,753 1,906 5,800 820 1,191 1,431 1,598 1,758 1,911 5,900 825 1,195 1,435 1,603 1,763 1,916 6,000 831 1,200 1,439 1,607 1,768 1,922 6,100 837 1,208 1,449 1,618 1,780 1,935 6,200 844 1,217 1,459 1,629 1,792 1,948 6,300 851 1,226 1,469 1,641 1,805 1,962 6,400 858 1,234 1,479 1,652 1,817 1,975 6,500 865 1,243 1,489 1,663 1,829 1,988 6,600 871 1,251 1,499 1,674 1,841 2,002 6,700 881 1,263 1,513 1,690 1,859 2,021 6,800 892 1,278 1,530 1,709 1,880 2,044 6,900 903 1,292 1,548 1,729 1,902 2,067 7,000 914 1,306 1,565 1,748 1,923 2,090 7,100 925 1,320 1,582 1,767 1,944 2,113 7,200 935 1,335 1,600 1,787 1,965 2,136 7,300 946 1,348 1,616 1,805 1,986 2,159 7,400 954 1,360 1,630 1,820 2,003 2,177 7,500 962 1,372 1,643 1,836 2,019 2,195 7,600 969 1,384 1,657 1,851 2,036 2,213 7,700 977 1,396 1,670 1,866 2,052 2,231 7,800 984 1,407 1,683 1,880 2,068 2,248 7,900 991 1,419 1,696 1,895 2,084 2,266 8,000 996 1,426 1,704 1,903 2,094 2,276 8,100 1,000 1,429 1,709 1,908 2,099 2,282 8,200 1,004 1,433 1,713 1,914 2,105 2,288 8,300 1,008 1,437 1,718 1,919 2,110 2,294 8,400 1,012 1,441 1,722 1,924 2,116 2,300 8,500 1,016 1,444 1,727 1,929 2,122 2,306 8,600 1,020 1,448 1,731 1,934 2,127 2,312 8,700 1,026 1,456 1,740 1,944 2,138 2,324 8,800 1,033 1,464 1,749 1,953 2,149 2,336 8,900 1,039 1,472 1,758 1,963 2,160 2,347 9,000 1,046 1,480 1,766 1,973 2,170 2,359 9,100 1,052 1,488 1,775 1,983 2,181 2,371 9,200 1,059 1,496 1,784 1,993 2,192 2,382 9,300 1,065 1,502 1,792 2,002 2,202 2,393 9,400 1,070 1,507 1,799 2,010 2,211 2,403 9,500 1,075 1,511 1,807 2,018 2,220 2,413 9,600 1,080 1,516 1,814 2,026 2,229 2,423 9,700 1,085 1,520 1,822 2,035 2,238 2,433 9,800 1,090 1,524 1,829 2,043 2,247 2,443 9,900 1,094 1,529 1,836 2,051 2,256 2,453 10,000 1,099 1,533 1,844 2,059 2,265 2,463 10,100 1,104 1,538 1,851 2,068 2,275 2,472 10,200 1,109 1,542 1,859 2,076 2,284 2,482 10,300 1,115 1,549 1,867 2,086 2,294 2,494 10,400 1,123 1,560 1,878 2,098 2,308 2,509 10,500 1,130 1,571 1,889 2,110 2,321 2,523 10,600 1,137 1,582 1,900 2,123 2,335 2,538 10,700 1,145 1,593 1,911 2,135 2,349 2,553 10,800 1,152 1,604 1,922 2,147 2,362 2,568 10,900 1,159 1,615 1,933 2,160 2,376 2,582 11,000 1,167 1,626 1,944 2,172 2,389 2,597 11,100 1,174 1,637 1,956 2,185 2,403 2,612 11,200 1,182 1,649 1,968 2,198 2,418 2,628 11,300 1,191 1,661 1,980 2,212 2,433 2,644 11,400 1,199 1,673 1,992 2,225 2,448 2,660 11,500 1,207 1,685 2,004 2,239 2,462 2,677 11,600 1,215 1,695 2,016 2,252 2,477 2,693 11,700 1,222 1,705 2,029 2,266 2,493 2,710 11,800 1,229 1,714 2,041 2,280 2,508 2,726 11,900 1,237 1,723 2,054 2,294 2,523 2,743 12,000 1,244 1,732 2,066 2,308 2,539 2,759 12,100 1,252 1,742 2,078 2,322 2,554 2,776 12,200 1,259 1,751 2,091 2,336 2,569 2,793 12,300 1,267 1,760 2,103 2,349 2,584 2,809 12,400 1,274 1,769 2,116 2,363 2,600 2,826 12,500 1,282 1,778 2,128 2,377 2,615 2,842 12,600 1,289 1,788 2,141 2,391 2,630 2,859 12,700 1,296 1,797 2,153 2,405 2,645 2,876 12,800 1,304 1,806 2,165 2,419 2,661 2,892 12,900 1,311 1,815 2,178 2,433 2,676 2,909 13,000 1,319 1,825 2,190 2,447 2,691 2,925 13,100 1,326 1,834 2,203 2,461 2,707 2,942 13,200 1,334 1,843 2,215 2,474 2,722 2,959 13,300 1,341 1,852 2,228 2,488 2,737 2,975 13,400 1,348 1,861 2,238 2,500 2,750 2,990 13,500 1,353 1,868 2,247 2,510 2,761 3,001 13,600 1,359 1,875 2,255 2,519 2,771 3,012 13,700 1,364 1,882 2,264 2,529 2,781 3,023 13,800 1,370 1,889 2,272 2,538 2,792 3,035 13,900 1,375 1,896 2,281 2,547 2,802 3,046 14,000 1,381 1,903 2,289 2,557 2,812 3,057 14,100 1,386 1,910 2,297 2,566 2,822 3,068 14,200 1,391 1,916 2,304 2,574 2,831 3,078 14,300 1,396 1,922 2,312 2,582 2,841 3,088 14,400 1,401 1,929 2,319 2,591 2,850 3,098 14,500 1,406 1,935 2,327 2,599 2,859 3,108 14,600 1,410 1,941 2,334 2,607 2,868 3,118 14,700 1,415 1,947 2,342 2,616 2,877 3,128 14,800 1,420 1,954 2,349 2,624 2,886 3,138 14,900 1,425 1,960 2,357 2,632 2,896 3,147 15,000 1,430 1,966 2,364 2,641 2,905 3,157 15,100 1,435 1,972 2,371 2,649 2,914 3,167 15,200 1,440 1,978 2,379 2,657 2,923 3,177 15,300 1,444 1,985 2,386 2,666 2,932 3,187 15,400 1,449 1,991 2,394 2,674 2,941 3,197 15,500 1,454 1,997 2,401 2,682 2,950 3,207 15,600 1,459 2,003 2,409 2,691 2,960 3,217 15,700 1,464 2,010 2,416 2,699 2,969 3,227 15,800 1,469 2,016 2,424 2,707 2,978 3,237 15,900 1,474 2,022 2,431 2,715 2,987 3,247 16,000 1,478 2,028 2,439 2,724 2,996 3,257 16,100 1,484 2,035 2,445 2,732 3,005 3,266 16,200 1,490 2,041 2,452 2,739 3,013 3,275 16,300 1,495 2,047 2,459 2,747 3,022 3,285 16,400 1,501 2,053 2,466 2,755 3,030 3,294 16,500 1,506 2,059 2,473 2,763 3,039 3,303 16,600 1,512 2,065 2,480 2,770 3,047 3,313 16,700 1,518 2,071 2,487 2,778 3,056 3,322 16,800 1,523 2,077 2,494 2,786 3,065 3,331 16,900 1,529 2,083 2,501 2,794 3,073 3,340 17,000 1,534 2,089 2,508 2,801 3,082 3,350 17,100 1,540 2,095 2,515 2,809 3,090 3,359 17,200 1,545 2,102 2,522 2,817 3,099 3,368 17,300 1,551 2,108 2,529 2,825 3,107 3,378 17,400 1,557 2,114 2,536 2,832 3,116 3,387 17,500 1,562 2,120 2,543 2,840 3,124 3,396 17,600 1,568 2,126 2,550 2,848 3,133 3,405 17,700 1,573 2,132 2,557 2,856 3,141 3,415 17,800 1,579 2,138 2,563 2,863 3,149 3,423 17,900 1,584 2,144 2,570 2,870 3,157 3,432 18,000 1,589 2,149 2,576 2,878 3,166 3,441 18,100 1,595 2,155 2,583 2,885 3,174 3,450 18,200 1,600 2,161 2,590 2,893 3,182 3,459 18,300 1,605 2,167 2,596 2,900 3,190 3,467 18,400 1,611 2,173 2,603 2,907 3,198 3,476 18,500 1,616 2,178 2,609 2,915 3,206 3,485 18,600 1,621 2,184 2,616 2,922 3,214 3,494 18,700 1,627 2,190 2,623 2,929 3,222 3,503 18,800 1,632 2,196 2,629 2,937 3,231 3,512 18,900 1,637 2,202 2,636 2,944 3,239 3,520 19,000 1,642 2,207 2,642 2,952 3,247 3,529 19,100 1,648 2,213 2,649 2,959 3,255 3,538 19,200 1,653 2,219 2,656 2,966 3,263 3,547 19,300 1,658 2,225 2,662 2,974 3,271 3,556 19,400 1,664 2,231 2,669 2,981 3,279 3,565 19,500 1,669 2,236 2,675 2,989 3,287 3,573 19,600 1,674 2,242 2,682 2,996 3,295 3,582 19,700 1,680 2,248 2,689 3,003 3,304 3,591 19,800 1,685 2,254 2,695 3,011 3,312 3,600 19,900 1,690 2,260 2,702 3,018 3,320 3,609 20,000 1,696 2,265 2,709 3,025 3,328 3,617 20,100 1,701 2,271 2,715 3,033 3,336 3,626 20,200 1,706 2,277 2,722 3,040 3,344 3,635 20,300 1,710 2,282 2,728 3,047 3,352 3,643 20,400 1,713 2,287 2,733 3,053 3,358 3,651 20,500 1,717 2,292 2,739 3,059 3,365 3,658 20,600 1,720 2,297 2,745 3,066 3,372 3,666 20,700 1,723 2,302 2,750 3,072 3,379 3,673 20,800 1,726 2,307 2,756 3,078 3,386 3,681 20,900 1,730 2,313 2,761 3,084 3,393 3,688 21,000 1,733 2,318 2,767 3,091 3,400 3,695 21,100 1,736 2,323 2,773 3,097 3,407 3,703 21,200 1,739 2,328 2,778 3,103 3,413 3,710 21,300 1,743 2,333 2,784 3,109 3,420 3,718 21,400 1,746 2,338 2,789 3,116 3,427 3,725 21,500 1,749 2,343 2,795 3,122 3,434 3,733 21,600 1,752 2,348 2,801 3,128 3,441 3,740 21,700 1,756 2,353 2,806 3,134 3,448 3,748 21,800 1,759 2,358 2,812 3,141 3,455 3,755 21,900 1,762 2,363 2,817 3,147 3,462 3,763 22,000 1,765 2,368 2,823 3,153 3,469 3,770 22,100 1,769 2,373 2,829 3,160 3,475 3,778 22,200 1,772 2,378 2,834 3,166 3,482 3,785 22,300 1,775 2,383 2,840 3,172 3,489 3,793 22,400 1,778 2,388 2,845 3,178 3,496 3,800 22,500 1,782 2,393 2,851 3,185 3,503 3,808 22,600 1,785 2,398 2,857 3,191 3,510 3,815 22,700 1,788 2,403 2,862 3,197 3,517 3,823 22,800 1,791 2,408 2,868 3,203 3,524 3,830 22,900 1,795 2,413 2,873 3,210 3,531 3,838 23,000 1,798 2,418 2,879 3,216 3,537 3,845 23,100 1,801 2,423 2,885 3,222 3,544 3,853 23,200 1,804 2,429 2,890 3,228 3,551 3,860 23,300 1,808 2,434 2,896 3,235 3,558 3,868 23,400 1,811 2,439 2,901 3,241 3,565 3,875 23,500 1,814 2,444 2,907 3,247 3,572 3,883 23,600 1,817 2,449 2,913 3,253 3,579 3,890 23,700 1,821 2,454 2,918 3,260 3,586 3,898 23,800 1,824 2,459 2,924 3,266 3,593 3,905 23,900 1,827 2,464 2,929 3,272 3,599 3,913 24,000 1,830 2,469 2,935 3,278 3,606 3,920 24,100 1,834 2,474 2,941 3,285 3,613 3,928 24,200 1,837 2,479 2,946 3,291 3,620 3,935 24,300 1,840 2,484 2,952 3,297 3,627 3,943 24,400 1,843 2,489 2,957 3,304 3,634 3,950 24,500 1,847 2,494 2,963 3,310 3,641 3,957 24,600 1,850 2,499 2,969 3,316 3,648 3,965 24,700 1,853 2,504 2,974 3,322 3,655 3,972 24,800 1,856 2,509 2,980 3,329 3,661 3,980 24,900 1,860 2,514 2,986 3,335 3,668 3,987 25,000 1,863 2,519 2,991 3,341 3,675 3,995 25,100 1,866 2,524 2,997 3,347 3,682 4,002 25,200 1,869 2,529 3,002 3,354 3,689 4,010 25,300 1,873 2,534 3,008 3,360 3,696 4,017 25,400 1,876 2,540 3,014 3,366 3,703 4,025 25,500 1,879 2,545 3,019 3,372 3,710 4,032 25,600 1,882 2,550 3,025 3,379 3,716 4,040 25,700 1,886 2,555 3,030 3,385 3,723 4,047 25,800 1,889 2,560 3,036 3,391 3,730 4,055 25,900 1,892 2,565 3,042 3,397 3,737 4,062 26,000 1,895 2,570 3,047 3,404 3,744 4,070 26,100 1,899 2,575 3,053 3,410 3,751 4,077 26,200 1,902 2,580 3,058 3,416 3,758 4,085 26,300 1,905 2,585 3,064 3,422 3,765 4,092 26,400 1,908 2,590 3,070 3,429 3,772 4,100 26,500 1,912 2,595 3,075 3,435 3,778 4,107 26,600 1,915 2,600 3,081 3,441 3,785 4,115 26,700 1,918 2,605 3,086 3,447 3,792 4,122 26,800 1,921 2,610 3,092 3,454 3,799 4,130 26,900 1,925 2,615 3,098 3,460 3,806 4,137 27,000 1,928 2,620 3,103 3,466 3,813 4,145 27,100 1,931 2,625 3,109 3,473 3,820 4,152 27,200 1,934 2,630 3,114 3,479 3,827 4,160 27,300 1,938 2,635 3,120 3,485 3,834 4,167 27,400 1,941 2,640 3,126 3,491 3,840 4,175 27,500 1,944 2,645 3,131 3,498 3,847 4,182 27,600 1,948 2,650 3,137 3,504 3,854 4,190 27,700 1,951 2,656 3,142 3,510 3,861 4,197 27,800 1,954 2,661 3,148 3,516 3,868 4,205 27,900 1,957 2,666 3,154 3,523 3,875 4,212 28,000 1,961 2,671 3,159 3,529 3,882 4,219 28,100 1,964 2,676 3,165 3,535 3,889 4,227 28,200 1,967 2,681 3,170 3,541 3,896 4,234 28,300 1,970 2,686 3,176 3,548 3,902 4,242 28,400 1,972 2,689 3,179 3,551 3,907 4,247 28,500 1,974 2,691 3,182 3,555 3,911 4,251 28,600 1,976 2,694 3,185 3,558 3,914 4,255 28,700 1,978 2,696 3,188 3,561 3,918 4,259 28,800 1,980 2,699 3,191 3,565 3,922 4,263 28,900 1,982 2,701 3,194 3,568 3,926 4,268 29,000 1,984 2,704 3,197 3,571 3,930 4,272 29,100 1,986 2,707 3,200 3,575 3,934 4,276 29,200 1,988 2,709 3,203 3,578 3,938 4,280 29,300 1,990 2,712 3,206 3,581 3,941 4,284 29,400 1,992 2,714 3,209 3,584 3,945 4,289 29,500 1,993 2,717 3,212 3,588 3,949 4,293 29,600 1,995 2,719 3,215 3,591 3,953 4,297 29,700 1,997 2,722 3,218 3,594 3,957 4,301 29,800 1,999 2,724 3,221 3,598 3,961 4,305 29,900 2,001 2,727 3,224 3,601 3,965 4,310 30,000 2,003 2,730 3,227 3,604 3,968 4,314

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History. Enact. Acts 1990, ch. 418, § 3, effective July 13, 1990; 1994, ch. 330, § 11, effective July 15, 1994; 1996, ch. 365, § 6, effective July 15, 1996; 1998, ch. 100, § 8, effective July 15, 1998; 1998, ch. 255, § 20, effective July 15, 1998; 2000, ch. 430, § 9, effective July 14, 2000; 2019 ch. 162, § 2, effective June 27, 2019; 2021 ch. 47, § 2, effective June 29, 2021.

Compiler’s Notes.

Title IV-A of the Federal Social Security Act, referred to in subdivision (2)(b), is codified as 42 USCS § 601 et seq.

NOTES TO DECISIONS

Analysis

1.Voluntarily Underemployed.

A finding of bad faith is required under this section to find an individual to be voluntarily underemployed even though the statutory language makes no mention of a bad faith requirement. McKinney v. McKinney, 813 S.W.2d 828, 1991 Ky. App. LEXIS 115 (Ky. Ct. App. 1991).

The Circuit Court erred in concluding that a father was entitled to a reduction of his child support obligation as a matter of law, notwithstanding that he was still employed on a full-time basis, where (1) for a considerable period prior to the parties’ separation, the father had a full-time job and a second part-time job, and (2) the father’s income decreased because he voluntarily quit his part-time job and because he was not working as much overtime as before at his primary job; on remand, the Circuit Court would be required to make explicit findings concerning the circumstances surrounding the father’s reduction in his income and to determine whether to impute income to him. Gossett v. Gossett, 32 S.W.3d 109, 2000 Ky. App. LEXIS 120 (Ky. Ct. App. 2000).

Although the evidence might support a finding that the husband was voluntarily underemployed, the trial court erred in basing its finding that a husband was underemployed for purposes of determining child support under KRS 403.212(2)(d) on federal statistics where: (1) the certified public accountant frequently bartered accounting work in exchange for goods and services, (2) the husband purposely limited his accounting work during the marriage to spend more time with the children, (3) there was no evidence offered concerning comparable wages earned by similarly qualified individuals in the county or the region, and (4) tax records reflected that the husband’s primary income came from his gas wells. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Although a trial court had the authority to impute income under KRS 403.212(2)(d), no findings were made that husband was voluntarily underemployed. Other than generally stating that the imputed income was derived from the law practice, rental properties and capital gains, the trial court provided no explanation as to how it reached the support figure; without adequate factual findings, as required by CR 52.01, the trial court decision could not be meaningfully reviewed. McKinney v. McKinney, 257 S.W.3d 130, 2008 Ky. App. LEXIS 187 (Ky. Ct. App. 2008).

Trial court should have granted a CR 52.02 motion for additional fact findings. Although the trial court was authorized to impute income under KRS 403.212(2)(d), a general statement that the imputation was derived from a part time law practice, rental properties and capital gains was not an explanation of how a child support figure was reached; fact findings were essential to the judgment, and the decision to impute income could not be meaningfully reviewed. McKinney v. McKinney, 257 S.W.3d 130, 2008 Ky. App. LEXIS 187 (Ky. Ct. App. 2008).

While the trial court properly suspended a father’s sentencing for contempt so long as he made arrearage payments of $100 per week, the court erred in granting his motion to modify child support because he was voluntarily underemployed where he voluntarily engaged in conduct which he should have known would impair his ability to support his children, a result that was unfair and unsupported by sound legal principles, and the court lacked substantial evidence for its decision to reduce the father’s support child support payments to zero. Louisville R. Co. v. Masterson, 96 S.W. 534, 29 Ky. L. Rptr. 829 , 1906 Ky. LEXIS 347 (Ky. Ct. App. 1906).

2.Discretion of Court.

KRS 403.211(4) provides that the circumstances considered as extraordinary shall be determined by the court in its discretion and clearly the guidelines are not designed to cover all the possible scenarios in which divorcing parents find themselves; the legislature has not taken away the trial court’s broad discretion in ensuring that the needs of their children will continue to be met. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

Where trial court sought to justify its decision by referring to the uncertain nature of father’s work, although that factor might properly have been taken into account in setting a schedule for payments (e.g. by having father make payments at one level when working and at another level when laid off, as was done by the trial court in a previous order), under the facts of this case, it was not an “extraordinary factor” justifying departure from the guidelines. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

Trial court’s determination that husband did not have additional income requiring an increase in his child support obligation as a result of free military housing being furnished to him was not an abuse of discretion. Pegler v. Pegler, 895 S.W.2d 580, 1995 Ky. App. LEXIS 26 (Ky. Ct. App. 1995).

Court’s refusal to require father to pay child support was not clearly erroneous where children resided with father 60% of the time and father, as primary custodian, had an ongoing obligation to maintain a residence for the children on a permanent basis, regardless of the amount of time that they spent with their mother. Brown v. Brown, 952 S.W.2d 707, 1997 Ky. App. LEXIS 95 (Ky. Ct. App. 1997).

Visitation is not a factor to be considered in setting an amount of child support. Dickens v. Dickens, 401 S.W.3d 489, 2013 Ky. App. LEXIS 79 (Ky. Ct. App. 2013).

3.Imputed Income.

The concept of imputed income did not apply where there was no evidence, or even a hint, that defendant/father committed the crimes for which he was serving time to avoid his child support obligation, although he certainly must have realized his conduct was inimical to the interest of his children. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

KRS 403.212(2)(d) does not require a trial court to impute income to a parent who earns less than the amount which the occupational statistics indicate he should; rather, the trial court must consider the totality of the circumstances in deciding whether to impute income to a parent. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Where trial court noted that mother had quit a job paying $4.05 an hour to pursue her college courses, while subdivision (2)(d) of this section allows the trial court to consider a party’s potential income under some circumstances, there must be a showing of bad faith. Thus, the trial court erred by refusing to consider mother’s lack of income, or in imputing to mother $700 per month income, even though she did not actually make that much. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

State Supreme Court found that KRS 403.212(2)(f) imposed a mandatory obligation on parents to report and verify their income but that trial courts could consider evidence not provided in a parent’s statement of income when determining a parent’s child support obligation, and although the Supreme Court upheld the trial court’s decision to consider whether a wife had sources of income other than those the wife reported, it affirmed the intermediate appellate court’s judgment vacating the trial court’s judgment awarding neither the wife nor the wife’s husband child support because the record did not support the trial court’s judgment imputing income to the wife. Schoenbachler v. Minyard, 110 S.W.3d 776, 2003 Ky. LEXIS 82 ( Ky. 2003 ).

Record did not support imputing income to the wife, who mostly cleaned houses during the marriage. The imputation of income to the wife pursuant to KRS 403.212(2)(d) did not take adequately into account the prevailing job opportunities the wife confronted when the wife found it necessary to move, near the time of the divorce, from a county that had more opportunities to a county with far fewer opportunities or the wife’s very limited occupational qualifications. Gripshover v. Gripshover, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

Trial court in a divorce case could impute income to the wife for the purposes of awarding to the wife child support, pursuant to KRS 403.212(2)(d), and awarding maintenance under KRS 403.200 . The trial court made the relevant determinations only after taking into account the wife’s work history and the wife’s testimony concerning expected income before making its decisions. McGregor v. McGregor, 334 S.W.3d 113, 2011 Ky. App. LEXIS 30 (Ky. Ct. App. 2011).

In determining a father’s child support obligation, the family court erred in finding that he was underemployed and in imputing income to him under KRS 403.212(2)(d), absent evidence of the strength or nature of prevailing job opportunities in the community or the expected earnings levels. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

In determining a father’s child support obligation, the family court erred in finding that he was underemployed and in imputing income to him under KRS 403.212(2)(d), absent evidence of the strength or nature of prevailing job opportunities in the community or the expected earnings levels. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

It was not an abuse of discretion to impute income to a husband when entering a child support order because, while a downturn in the economy and the resulting decline in the fortune of the husband’s businesses occurred through no fault of the husband, it could not be said that the trial court’s factual determination that the husband was voluntarily underemployed was unsupported by substantial evidence, as (1) the evidence revealed the husband was an entrepreneur, businessman, and a lawyer who held several degrees, including a master’s degree in business administration and a juris doctorate, (2) the husband incorporated and successfully maintained three separate businesses, including a law practice, (3) the husband had the ability to earn a greater income if the husband chose to fully exercise the husband’s entrepreneurial and business skills and, (4) in light of the husband’s demonstrated past success in running the husband’s own businesses, the husband was capable of earning more than $19.00 per hour. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

It was not an abuse of discretion for a trial court to determine that a wife was not underemployed because (1) when the parties decided to have more children, by agreement, the wife left the wife’s job to stay home with the children, since which time the wife had not worked outside the home except to occasionally assist the husband, and (2) the wife testified the wife desired to return to the workforce and was currently in the process of searching for work. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

In a marital dissolution action, the trial court erred with respect to determining child support and maintenance by refusing to include additional gift income to the wife; the gift income from the wife’s parents in the amount of $3,700 per month should have been imputed to her pursuant to KRS 403.212(2)(b). Penner v. Penner, 411 S.W.3d 775, 2013 Ky. App. LEXIS 143 (Ky. Ct. App. 2013).

In calculating a husband’s child support obligation in a divorce action, the trial court did not err under KRS 403.212(2)(d) in imputing an income of $2,100 per month to the wife; the trial court was responsible for evaluating the parties’ credibility based on their testimony and other evidence. Maclean v. Middleton, 419 S.W.3d 755, 2014 Ky. App. LEXIS 3 (Ky. Ct. App. 2014).

When a grandfather was awarded custody of grandchildren, a child support order erred because minimum wage was imputed to the children's mother when the mother cared for children under three. Lambert v. Lambert, 475 S.W.3d 646, 2015 Ky. App. LEXIS 155 (Ky. Ct. App. 2015).

When a husband terminated the husband's employment during the pendency of a divorce proceeding and accepted lesser paying employment, the trial court did not err by concluding that the husband was voluntarily underemployed and, as a result, imputing to the husband a potential gross monthly income, which represented the amount which the husband earned at the husband's former employer, despite the fact that the husband's actual gross monthly income was a lesser amount. Duffy v. Duffy, 540 S.W.3d 821, 2018 Ky. App. LEXIS 39 (Ky. Ct. App. 2018).

Declining to impute income to the mother for gifts received from her parents was not error given the lack of evidence as to a car’s value or that the gifts from her parents were recurring. Layman v. Bohanon, 599 S.W.3d 423, 2020 Ky. LEXIS 71 ( Ky. 2020 ).

4.Assets of Noncustodial Parent.

The child support guidelines, which are exclusively tied to income, are not appropriate where the noncustodial parent has no income, but may have sufficient assets from which support can be obtained; therefore where incarcerated father did not claim to be indigent, nor did he state he had no property to satisfy the support obligation, his children should not have to bear additional deprivation in the form of a reduced standard of living if the father has property, or potential sources of assets, which could be liquidated to satisfy any support delinquency or arrearage. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

Where in 1986 father made less than $5,000 but admitted that he earned approximately $30,000 per year in 1989 and 1990, and he admitted that he was earning at that level in 1991, and where he did not present any evidence to show that his future earnings were likely to vary significantly from the 1990 level, subdivision (2)(a) of this section must be read as creating a presumption that future income will be on a par with the worker’s most recent experience. The party who wants the trial court to use a different income level in applying the child support guidelines bears the burden of presenting evidence which would support the requested finding. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

5.Modification.

Although father indicated that future layoffs were likely, he indicated that such layoffs had also occurred in 1990. Thus, the Court of Appeals saw nothing to indicate a likelihood of lower earnings in the future; but modifications could be had as events warranted. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

Where the father had overpaid the mother for day care expenses which were never incurred by the mother, and the mother had misled the father and the court regarding the day care expenses, the trial court had the authority to order mother to reimburse those costs to the father. Connelly v. Degott, 132 S.W.3d 871, 2003 Ky. App. LEXIS 29 (Ky. Ct. App. 2003).

Because a father failed to adequately preserve issues related to the recalculation and increase in his child support by failing to request the Family Court to make findings of fact relative to the support, the Court of Appeals was unable to review the father’s claim of error. Johnson v. Johnson, 232 S.W.3d 571, 2007 Ky. App. LEXIS 303 (Ky. Ct. App. 2007).

Although a father’s income had increased since a judgment of paternity was entered, KRS 403.212(5) was violated when the trial court arbitrarily increased a father’s child support obligation solely based on the father’s increased income without supportive evidence of an increase in the child’s reasonable needs. Bell v. Cartwright, 277 S.W.3d 631, 2009 Ky. App. LEXIS 6 (Ky. Ct. App. 2009).

This section does not express any intentionality, but merely lists the amount of child support to be paid when parties’ income is not outside the guidelines; therefore, a father’s argument that the intent of this section was not met when only a minimal reduction was ordered after another child reached the age of 18 was rejected. The trial court rejected some of the mother’s claimed expenses and considered the reasonable day-to-day needs of the child and the parents ability to pay before deciding on an appropriate amount of child support. Ciampa v. Ciampa, 415 S.W.3d 97, 2013 Ky. App. LEXIS 128 (Ky. Ct. App. 2013).

6.— Waiver of Statutory Requirement.

Parties to a separation agreement may waive a statutory requirement that the party moving for an increase in child support prove a material change in circumstances if it does not impair the rights of others; is not contrary to the public interest; and is expressly and voluntarily made. Giacalone v. Giacalone, 876 S.W.2d 616, 1994 Ky. App. LEXIS 17 (Ky. Ct. App. 1994).

7.Equal Physical Possession.

Child support may be ordered where the parties have equal physical possession of the children. Downey v. Rogers, 847 S.W.2d 63, 1993 Ky. App. LEXIS 18 (Ky. Ct. App. 1993), limited, Conley v. Conley, 2008 Ky. App. Unpub. LEXIS 975 (Ky. Ct. App. May 16, 2008).

8.Award.
9.— Not Excessive.

The trial court’s award of child support in the amount of $100 per week, maintenance of $500 per month, and $1500 towards attorney’s fees to wife with only eighth grade education was not excessive. Robbins v. Robbins, 849 S.W.2d 571, 1993 Ky. App. LEXIS 41 (Ky. Ct. App. 1993).

An upward modification of a father’s child support obligation was proper as the trial court did not abuse its discretion by basing its determination of the father’s gross income on something other than his 1997 taxable income since the father’s substantial deferral of business income at the end of 1997, which led directly to his year-end losses, was not a lasting circumstance and, thus, did not provide a proper basis for reducing his child-support obligation. Snow v. Snow, 24 S.W.3d 668, 2000 Ky. App. LEXIS 75 (Ky. Ct. App. 2000).

10.Source of Income.

Disabled parent whose sole means of income was supplementary security income (SSI) benefits was not required to pay child support absent other sufficient assets. Youngblood v. James, 883 S.W.2d 512, 1994 Ky. App. LEXIS 114 (Ky. Ct. App. 1994).

It was not error to add social security benefits received by child on account of noncustodial father’s disability as part of the income of the custodial parent. Miller v. Miller, 929 S.W.2d 202, 1996 Ky. App. LEXIS 147 (Ky. Ct. App. 1996).

Supplemental security income (SSI) benefits paid to a child because of his own disability may be considered as independent financial resources of the child in determining the parental support obligation and in determining whether application of the guidelines would be unjust or inappropriate as considering SSI in the child’s name is consistent with considering social security benefits in the parent’s gross income. The child’s independent benefits would merely be recognized in weighing the equities and fairness of the circumstances of the child and the parents. Barker v. Hill, 949 S.W.2d 896, 1997 Ky. App. LEXIS 70 (Ky. Ct. App. 1997).

Subsection (2)(b), which mandates inclusion of Supplemental Security Income (SSI) benefits in income computation for calculation of child support payments, does not conflict with 42 USCS § 407(a), an anti-attachment statute relating to SSI benefits. Commonwealth ex rel. Morris v. Morris, 984 S.W.2d 840, 1998 Ky. LEXIS 138 ( Ky. 1998 ).

Trial court did not err in including a payor parent’s share of capital gain from sale of a farm in the parent’s gross income for purposes of a motion to modify child support, but did err in prorating the capital gain over the parent’s remaining work life expectancy rather than including the amount as income in the year received. Clary v. Clary, 54 S.W.3d 568, 2001 Ky. App. LEXIS 696 (Ky. Ct. App. 2001).

In its child support calculation, the Family Court properly excluded from income, as a means-tested public assistance program under KRS 403.212(2)(b), the earned income tax credit (EIC) received by the mother because the EIC was a money grant to assist needy families, the amount of which decreased as the taxpayer’s earnings increased. Brausch v. Brausch, 265 S.W.3d 837, 2008 Ky. App. LEXIS 279 (Ky. Ct. App. 2008).

Where a mother received an additional child tax credit, the credit was not within the parameters of a means-tested public assistance program under KRS 403.212(2)(b) because the additional child tax credit began to phaseout only when a taxpayer’s adjusted gross income reached $110,000 in the case of a joint return, and a family earning $110,000 per year was not “needy” as that term was commonly understood and used in KRS 205.010 . Brausch v. Brausch, 265 S.W.3d 837, 2008 Ky. App. LEXIS 279 (Ky. Ct. App. 2008).

Because the combined gross monthly income captured all sources of income available to the parties including bonuses, restricted stock units (RSUs), and maintenance, the ex-husband’s RSU income should have been included in the income calculation for child support purposes, and the trial court erred in not doing so. Normandin v. Normandin, 634 S.W.3d 589, 2020 Ky. LEXIS 456 ( Ky. 2020 ).

11.Effect of Agreements Among Different Ex-spouses.

Where divorced husband had two ex-wives, each ex-wife having a child of the marriage for which ex-husband owed child support, and where ex-husband and second ex-wife jointly agreed that ex-husband would increase the child support he paid for their joint child, the resulting order entered by the court increasing the amount paid to the second ex-wife for the support of their joint child was not improper, even though that new, increased amount was deducted from husband’s income when calculating the first ex-wife’s child support award resulting in a lesser increased award for first ex-wife. Marksberry v. Riley, 889 S.W.2d 47, 1994 Ky. App. LEXIS 145 (Ky. Ct. App. 1994).

12.Determination of Potential Income.

Subsection (2)(d) of this section in providing that if the Domestic Relations Counselor does find that a parent is voluntarily unemployed or underemployed, then the DRC should calculate child support on a determination of potential income, means that the DRC must determine potential income which would be greater than zero income and could require the parent’s child support obligations to be more than $60.00 a month. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

Where a father was in school for the first half of the year, the Family Court did not err, in calculating the father’s child support obligation, when it did not use the father’s income for the entire year, because such a methodology was contrary to the parties’ agreement and would not have correctly reflected his earning capacity for the purpose of calculating child support. Brausch v. Brausch, 265 S.W.3d 837, 2008 Ky. App. LEXIS 279 (Ky. Ct. App. 2008).

Family court did not abuse its discretion when it omitted from the child support calculation a partnership’s allocation of tax items to a mother because it carefully distinguished between the mother’s allocated tax burden and income received and at her disposal when calculating the father’s modified child support obligation; there was no evidence that the mother received anything but her proportionate share of tax liability for being a member of a limited partnership. Hawkins v. Hawkins, 437 S.W.3d 171, 2014 Ky. App. LEXIS 109 (Ky. Ct. App. 2014).

In a child support matter, there was no error in finding that a mother was capable of earning $ 60,000 per year where the trial court considered her work history, prior earnings, and the fact that she was beginning a new job at the time of trial. Bootes v. Bootes, 470 S.W.3d 351, 2015 Ky. App. LEXIS 126 (Ky. Ct. App. 2015).

13.Application of Minimum Support Obligations.

Fact that father was unemployed and received AFDC benefits were not extraordinary facts that would allow deviation of the child support guidelines. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

Merely being a recipient of AFDC does not rebut the presumption that the $60.00 minimum is appropriate for families with no adjusted income. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

Since the application of the $60.00 child support obligation is presumed to be correct in all cases where the combined monthly adjusted gross income is between $0.00 and $100.00, unless it can be shown that the application of this guidline would be unjust and inappropriate, the application of the $60.00 child support is presumed to be correct unless rebutted and the fact that one has no gross income does not rebut the presumption. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

Where DRC found that father was able-bodied and had tenth grade education and was employed part-time before the hearing, these facts support the application of $60.00 minimum child support obligation and it was not necessary for the DRC to find that he was voluntarily unemployed or underemployed. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

14.Order to Pay.
15.— Effective.

Order directing father pay $60.00 per month for support of noncustodial child was effective and enforceable from the date it was entered and not when father who was unemployed and receiving AFDC benefits for custodial child was able to pay. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

16.Change of Circumstances.

Because one (1) of the parties’ children had been placed with the Department of Juvenile Justice, the trial court erred in increasing the father’s child support obligation pursuant to KRS 403.213(1), the guidelines figure for the support of one (1) child; if the Department had obtained child support from the father pursuant to KRS 610.170 , his child support obligation to the mother should have been recalculated as split custody in accordance with KRS 403.212(6). Rodney P. v. Stacy B., 169 S.W.3d 834, 2005 Ky. LEXIS 245 ( Ky. 2005 ).

Father seeking a modification of child support did not meet the father's burden of proof to establish a substantial and continuing material change in circumstances because (1) self-employment income attributable to the father based on the evidence exceeded the father's representations, and (2) there was little or no credible evidence from which to find the father's ordinary and necessary expenses. Shelton v. Shelton, 446 S.W.3d 663, 2014 Ky. App. LEXIS 164 (Ky. Ct. App. 2014).

17.Calculation of Self-employed Income.

Trial court erred as a matter of law in allowing a husband to reduce his income for child support purposes by utilizing the accelerated depreciation provision of 26 USCS § 179 because KRS 403.212 (c) required straight line depreciation. Gripshover v. Gripshover, 2005 Ky. App. LEXIS 181 (Ky. Ct. App. Aug. 19, 2005), aff'd in part and rev'd in part, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

Although the husband appropriately used 26 USCS § 179 to expense deductions in calculating the husband’s income for federal income tax purposes, KRS 403.212 (2)(c) provided that straight-line depreciation was the only allowable method of calculating depreciation expense in determining gross income and, thus, the Family Court erred in finding that 26 USCS § 179 deductions were appropriate adjustments to gross receipts under KRS 403.212 . Gripshover v. Gripshover, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

KRS 403.212 required an individual to be self-employed to receive the deduction from gross income contemplated in KRS 403.212 (2)(c). Bell v. Bell, 423 S.W.3d 219, 2014 Ky. LEXIS 7 ( Ky. 2014 ).

Reversal of the trial court’s order setting the amount of the father’s monthly child-support obligation was necessary where the trial court erred by deducting the father’s unreimbursed business expenses from his gross income without first finding if the father was self-employed, as required by KRS 403.212(2)(c). Bell v. Bell, 423 S.W.3d 219, 2014 Ky. LEXIS 7 ( Ky. 2014 ).

18.Prior-Born Child.

Trial court’s order that allowed the mother to impute a child support obligation for a prior-born child, pursuant to KRS 403.212(2)(g)(4), was upheld because the statute protected a legitimate state interest in assuring that the prior-born child was cared for and the statute did not violate the father’s equal protection rights because he could not take a similar deduction for his after-born child. The father had not shown that his due process rights were violated because there was insufficient evidence presented to support such a violation. Kimbrough v. Child Support Div. ex rel. Belmar, 215 S.W.3d 69, 2006 Ky. App. LEXIS 226 (Ky. Ct. App. 2006).

19.Support Outside of Guidelines.

Trial court did not abuse its discretion by setting child support outside of the guidelines where the parties’ income exceeded the highest annual income level set forth in the guidelines. Explanations were given for a minimal change in support after other children turned 18, imputing income to the mother would not have changed the calculation, a mother substantiated the expenses with documentation, and there was no abuse of discretion relating to the household expenses allocated to the child. Ciampa v. Ciampa, 415 S.W.3d 97, 2013 Ky. App. LEXIS 128 (Ky. Ct. App. 2013).

Family court did not abuse its discretion when it refused to set aside a separation agreement as the amount of child support was not unconscionable because, while in excess of the guidelines, it was not shocking to the conscious or outside the former husband's reasonable fiscal means. Mays v. Mays, 541 S.W.3d 516, 2018 Ky. App. LEXIS 87 (Ky. Ct. App. 2018).

20.Gross income.

Trial court did not err in using the husband's gross income in calculated his child support. Lambe v. Weber, 2014 Ky. App. LEXIS 177 (Ky. Ct. App. Nov. 14, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1053 (Ky. Ct. App. Nov. 14, 2014).

Income from a tax preparation business should not have been excluded from a father's income for child support calculations because the father failed to prove that the amount paid to a relative constituted an ordinary and necessary expense required to operate the business; on remand, the trial court had to determine how much of the gross receipts from the business was paid out as an ordinary and necessary business expense via a reasonable salary to the relative for his administrative work. The remainder constituted gross income to be included in calculating father's child support obligation. Bootes v. Bootes, 470 S.W.3d 351, 2015 Ky. App. LEXIS 126 (Ky. Ct. App. 2015).

Cited in:

Wiegand v. Wiegand, 862 S.W.2d 336, 1993 Ky. App. LEXIS 120 (Ky. Ct. App. 1993); Cabinet for Human Resources v. Houck, 908 S.W.2d 673, 1995 Ky. App. LEXIS 185 (Ky. Ct. App. 1995); Rainwater v. Williams, 930 S.W.2d 405, 1996 Ky. App. LEXIS 160 (Ky. Ct. App. 1996); Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396, 2000 Ky. App. LEXIS 26 (Ky. Ct. App. 2000); Seay v. Seay, 404 S.W.3d 215, 2013 Ky. App. LEXIS 102 (Ky. Ct. App. 2013).

Notes to Unpublished Decisions

Analysis

1.Imputed Income.

Unpublished decision: Trial court erred in imputing to the father as “gross income,” for purposes of modifying his child support, his student loans as student loans were not “gross income” under the statutory definition of “gross income” for purposes of modifying child support, KRS 403.212(2)(b), because of the requirement that student loans be repaid. Stewart v. Burton, 108 S.W.3d 647, 2003 Ky. App. LEXIS 159 (Ky. Ct. App. 2003).

2.Source of Income.

Unpublished decision: Income pursuant to KRS 403.212 including income from any source for purposes of determining the father’s gross income and modifying his child support if necessary, and, thus, gifts and financial assistance from his parents were properly included as “gross income” that the father received. Stewart v. Burton, 108 S.W.3d 647, 2003 Ky. App. LEXIS 159 (Ky. Ct. App. 2003).

Unpublished decision: Financial assistance and gifts that parents gave to the father were properly included as “gross income” for purposes of determining whether the father’s child support obligation should be modified, as the the term “gross income” was not limited solely to income producing items. Stewart v. Burton, 108 S.W.3d 647, 2003 Ky. App. LEXIS 159 (Ky. Ct. App. 2003).

Research References and Practice Aids

Kentucky Bench & Bar.

Cullison, How Kentucky’s Civil Legal Aid Programs Assist Victims of Domestic Violence: One Program’s Perspective, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 6.

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Notes, House, Awarding Child Support Against the Impoverished Parent: Straying from Statutory Guidelines and Using SSI in Setting the Amount, 83 Ky. L.J. 681 (1994-95).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Bartlett, Setting Child Support for the Low Income and High Income Families in Kentucky, 25 N. Ky. L. Rev. 2 (1998).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Child Support, § 263.00.

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation (CS-71), Form 263.01.

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation Exception (CS-71.1), Form 263.02.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

403.212. Child support guidelines — Terms to be applied in calculations — Table.

  1. The following provisions and child support table shall be the child support guidelines established for the Commonwealth of Kentucky.
  2. The Cabinet for Health and Family Services shall:
    1. Promulgate an administrative regulation in accordance with KRS Chapter 13A establishing a child support obligation worksheet; and
    2. Make accessible on its Web site a manual providing examples or illustrations of the application of the child support guidelines and the child support obligation worksheet.
  3. For the purposes of the child support guidelines:
    1. “Income” means actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed;
    2. “Gross income” includes income from any source, except as excluded in this subsection, and includes but is not limited to income from salaries, wages, retirement and pension funds, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, Supplemental Security Income (SSI), gifts, prizes, and alimony or maintenance received. Specifically excluded are benefits received from means-tested public assistance programs, including but not limited to public assistance as defined under Title IV-A of the Federal Social Security Act, and food stamps;
    3. For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required for self-employment or business operation. Straight-line depreciation, using Internal Revenue Service (IRS) guidelines, shall be the only allowable method of calculating depreciation expense in determining gross income. Specifically excluded from ordinary and necessary expenses for purposes of this guideline shall be investment tax credits or any other business expenses inappropriate for determining gross income for purposes of calculating child support. Income and expenses from self-employment or operation of a business shall be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. In most cases, this amount will differ from a determination of business income for tax purposes. Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business or personal use of business property or payments of expenses by a business, shall be counted as income if they are significant and reduce personal living expenses such as a company or business car, free housing, reimbursed meals, or club dues;
    4. “Self-support reserve” means a low-income adjustment amount to the obligated parent of nine hundred fifteen dollars ($915) per month that considers the subsistence needs of the obligor with a limited ability to pay in accordance with 45 C.F.R. sec. 302.56(c)(1)(ii), and as applied under subsection (5) of this section;
      1. If there is a finding that a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a finding of voluntary unemployment or underemployment and a determination of potential income shall not be made for a parent who is incarcerated, physically or mentally incapacitated, or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility; (e) 1. If there is a finding that a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a finding of voluntary unemployment or underemployment and a determination of potential income shall not be made for a parent who is incarcerated, physically or mentally incapacitated, or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility;
      2. A court may find a parent is voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation; and
      3. Imputation of potential income, when applicable, shall include consideration of the following circumstances of the parents, to the extent known:
        1. Assets and residence;
        2. Employment, earning history, and job skills;
        3. Educational level, literacy, age, health, and criminal record that could impair the ability to gain or continue employment;
        4. Record of seeking work;
        5. Local labor market, including availability of employment for which the parent may be qualified and employable;
        6. Prevailing earnings in the local labor market; and
        7. Other relevant background factors, including employment barriers;
    5. “Obligor” has the same meaning as in KRS 205.710 ;
    6. “Imputed child support obligation” means the amount of child support the parent would be required to pay from application of the child support guidelines;
    7. Income statements of the parents shall be verified by documentation of both current and past income. Suitable documentation shall include, but shall not be limited to, income tax returns, paystubs, employer statements, or receipts and expenses if self-employed;
    8. “Combined monthly adjusted parental gross income” means the combined monthly gross incomes of both parents, less any of the following payments made by the parent:
      1. The amount of pre-existing orders for current maintenance for prior spouses to the extent payment is actually made and the amount of current maintenance, if any, ordered paid in the proceeding before the court;
      2. The amount of pre-existing orders of current child support for prior-born children to the extent payment is actually made under those orders; and
      3. A deduction for the support to the extent payment is made, if a parent is legally responsible for and is actually providing support for other prior-born children who are not the subject of a particular proceeding. If the prior-born children reside with that parent, an “imputed child support obligation” shall be allowed in the amount which would result from application of the guidelines for the support of the prior-born children; and
    9. “Split custody arrangement” means a situation where each parent has sole custody and decision-making authority while the child or children is in his or her residence. Visitation only occurs when the child is in residence with the other parent.
  4. Any child support obligation shall be calculated by using the number of children for whom the parents share a joint legal responsibility.
    1. Except as provided in paragraph (b) of this subsection, the child support obligation set forth in the child support guidelines table shall be divided between the parents in proportion to their combined monthly adjusted parental gross income. (5) (a) Except as provided in paragraph (b) of this subsection, the child support obligation set forth in the child support guidelines table shall be divided between the parents in proportion to their combined monthly adjusted parental gross income.
    2. The child support obligation of an obligated parent whose monthly adjusted gross income is equal to or less than the amounts in subparagraphs 1. to 5. of this paragraph shall be calculated using the monthly adjusted gross income of the obligated parent alone to provide for the self— support reserve. The following monthly adjusted gross income amounts shall qualify an individual for the self-support reserve:
      1. One thousand one hundred dollars ($1,100) with one (1) child;
      2. One thousand three hundred dollars ($1,300) with two (2) children;
      3. One thousand four hundred dollars ($1,400) with three (3) children;
      4. One thousand five hundred dollars ($1,500) with four (4) or five (5) children; or
      5. One thousand six hundred dollars ($1,600) with six (6) or more children.
    3. The obligated parent shall pay the lesser support amount calculated in accordance with:
      1. Paragraph (a) of this subsection;
      2. Paragraph (b) of this subsection; and
      3. As determined under Section 2 of this Act if the shared parenting time credit is applicable.
  5. The minimum amount of child support shall be sixty dollars ($60) per month, except as provided in subsection (3) of Section 2 of this Act.
  6. The court may use its judicial discretion in determining child support in circumstances where combined adjusted parental gross income exceeds the uppermost levels of the guideline table.
  7. The child support obligation in a split custody arrangement shall be calculated in the following manner:
    1. Two (2) separate child support obligation worksheets shall be prepared, one (1) for each household, using the number of children born of the relationship in each separate household, rather than the total number of children born of the relationship.
    2. The parent with the greater monthly obligation amount shall pay the difference between the obligation amounts, as determined by the worksheets, to the other parent.
  8. The child support guidelines table is as follows:

COMBINED MONTHLY ADJUSTED PARENTAL GROSS SIX INCOME ONE TWO THREE FOUR FIVE OR CHILD CHILDREN MORE $ 0 $60 $60 $60 $60 $60 $60 100 60 60 60 60 60 60 200 60 60 60 60 60 60 300 60 60 60 60 60 60 400 60 60 60 60 60 60 500 60 60 60 60 60 60 600 60 60 60 60 60 60 700 60 60 60 60 60 60 800 60 60 60 60 60 60 900 60 60 60 60 60 60 1,000 85 85 85 85 85 85 1,100 148 150 152 154 155 157 1,200 200 231 234 237 239 242 1,300 216 312 316 320 323 327 1,400 231 339 398 403 407 412 1,500 247 362 437 486 491 497 1,600 262 384 464 518 570 582 1,700 277 406 491 548 603 655 1,800 292 428 517 578 635 691 1,900 307 450 544 607 668 726 2,000 322 472 570 637 701 762 2,100 337 494 597 667 734 797 2,200 352 516 624 697 766 833 2,300 367 538 650 726 799 869 2,400 382 560 677 756 832 904 2,500 397 582 704 786 865 940 2,600 412 604 730 816 897 975 2,700 427 626 757 845 930 1,011 2,800 442 648 783 875 963 1,046 2,900 457 670 810 905 995 1,082 3,000 472 692 837 935 1,028 1,118 3,100 487 714 863 964 1,061 1,153 3,200 502 737 890 994 1,094 1,189 3,300 517 759 917 1,024 1,126 1,224 3,400 532 781 943 1,054 1,159 1,260 3,500 547 803 970 1,083 1,192 1,295 3,600 562 825 997 1,113 1,224 1,331 3,700 577 847 1,023 1,143 1,257 1,367 3,800 592 869 1,050 1,173 1,290 1,402 3,900 607 891 1,076 1,202 1,323 1,438 4,000 621 912 1,102 1,230 1,353 1,471 4,100 634 931 1,125 1,256 1,382 1,502 4,200 647 950 1,148 1,282 1,410 1,533 4,300 660 969 1,171 1,308 1,439 1,564 4,400 673 988 1,194 1,334 1,467 1,595 4,500 686 1,007 1,217 1,359 1,495 1,625 4,600 699 1,026 1,240 1,385 1,524 1,656 4,700 712 1,045 1,263 1,411 1,552 1,687 4,800 725 1,064 1,286 1,437 1,580 1,718 4,900 738 1,084 1,309 1,463 1,609 1,749 5,000 751 1,103 1,332 1,488 1,637 1,780 5,100 764 1,122 1,356 1,514 1,666 1,810 5,200 777 1,141 1,379 1,540 1,694 1,841 5,300 790 1,160 1,402 1,566 1,722 1,872 5,400 799 1,172 1,415 1,581 1,739 1,890 5,500 805 1,177 1,419 1,585 1,744 1,896 5,600 810 1,181 1,423 1,590 1,749 1,901 5,700 815 1,186 1,427 1,594 1,753 1,906 5,800 820 1,191 1,431 1,598 1,758 1,911 5,900 825 1,195 1,435 1,603 1,763 1,916 6,000 831 1,200 1,439 1,607 1,768 1,922 6,100 837 1,208 1,449 1,618 1,780 1,935 6,200 844 1,217 1,459 1,629 1,792 1,948 6,300 851 1,226 1,469 1,641 1,805 1,962 6,400 858 1,234 1,479 1,652 1,817 1,975 6,500 865 1,243 1,489 1,663 1,829 1,988 6,600 871 1,251 1,499 1,674 1,841 2,002 6,700 881 1,263 1,513 1,690 1,859 2,021 6,800 892 1,278 1,530 1,709 1,880 2,044 6,900 903 1,292 1,548 1,729 1,902 2,067 7,000 914 1,306 1,565 1,748 1,923 2,090 7,100 925 1,320 1,582 1,767 1,944 2,113 7,200 935 1,335 1,600 1,787 1,965 2,136 7,300 946 1,348 1,616 1,805 1,986 2,159 7,400 954 1,360 1,630 1,820 2,003 2,177 7,500 962 1,372 1,643 1,836 2,019 2,195 7,600 969 1,384 1,657 1,851 2,036 2,213 7,700 977 1,396 1,670 1,866 2,052 2,231 7,800 984 1,407 1,683 1,880 2,068 2,248 7,900 991 1,419 1,696 1,895 2,084 2,266 8,000 996 1,426 1,704 1,903 2,094 2,276 8,100 1,000 1,429 1,709 1,908 2,099 2,282 8,200 1,004 1,433 1,713 1,914 2,105 2,288 8,300 1,008 1,437 1,718 1,919 2,110 2,294 8,400 1,012 1,441 1,722 1,924 2,116 2,300 8,500 1,016 1,444 1,727 1,929 2,122 2,306 8,600 1,020 1,448 1,731 1,934 2,127 2,312 8,700 1,026 1,456 1,740 1,944 2,138 2,324 8,800 1,033 1,464 1,749 1,953 2,149 2,336 8,900 1,039 1,472 1,758 1,963 2,160 2,347 9,000 1,046 1,480 1,766 1,973 2,170 2,359 9,100 1,052 1,488 1,775 1,983 2,181 2,371 9,200 1,059 1,496 1,784 1,993 2,192 2,382 9,300 1,065 1,502 1,792 2,002 2,202 2,393 9,400 1,070 1,507 1,799 2,010 2,211 2,403 9,500 1,075 1,511 1,807 2,018 2,220 2,413 9,600 1,080 1,516 1,814 2,026 2,229 2,423 9,700 1,085 1,520 1,822 2,035 2,238 2,433 9,800 1,090 1,524 1,829 2,043 2,247 2,443 9,900 1,094 1,529 1,836 2,051 2,256 2,453 10,000 1,099 1,533 1,844 2,059 2,265 2,463 10,100 1,104 1,538 1,851 2,068 2,275 2,472 10,200 1,109 1,542 1,859 2,076 2,284 2,482 10,300 1,115 1,549 1,867 2,086 2,294 2,494 10,400 1,123 1,560 1,878 2,098 2,308 2,509 10,500 1,130 1,571 1,889 2,110 2,321 2,523 10,600 1,137 1,582 1,900 2,123 2,335 2,538 10,700 1,145 1,593 1,911 2,135 2,349 2,553 10,800 1,152 1,604 1,922 2,147 2,362 2,568 10,900 1,159 1,615 1,933 2,160 2,376 2,582 11,000 1,167 1,626 1,944 2,172 2,389 2,597 11,100 1,174 1,637 1,956 2,185 2,403 2,612 11,200 1,182 1,649 1,968 2,198 2,418 2,628 11,300 1,191 1,661 1,980 2,212 2,433 2,644 11,400 1,199 1,673 1,992 2,225 2,448 2,660 11,500 1,207 1,685 2,004 2,239 2,462 2,677 11,600 1,215 1,695 2,016 2,252 2,477 2,693 11,700 1,222 1,705 2,029 2,266 2,493 2,710 11,800 1,229 1,714 2,041 2,280 2,508 2,726 11,900 1,237 1,723 2,054 2,294 2,523 2,743 12,000 1,244 1,732 2,066 2,308 2,539 2,759 12,100 1,252 1,742 2,078 2,322 2,554 2,776 12,200 1,259 1,751 2,091 2,336 2,569 2,793 12,300 1,267 1,760 2,103 2,349 2,584 2,809 12,400 1,274 1,769 2,116 2,363 2,600 2,826 12,500 1,282 1,778 2,128 2,377 2,615 2,842 12,600 1,289 1,788 2,141 2,391 2,630 2,859 12,700 1,296 1,797 2,153 2,405 2,645 2,876 12,800 1,304 1,806 2,165 2,419 2,661 2,892 12,900 1,311 1,815 2,178 2,433 2,676 2,909 13,000 1,319 1,825 2,190 2,447 2,691 2,925 13,100 1,326 1,834 2,203 2,461 2,707 2,942 13,200 1,334 1,843 2,215 2,474 2,722 2,959 13,300 1,341 1,852 2,228 2,488 2,737 2,975 13,400 1,348 1,861 2,238 2,500 2,750 2,990 13,500 1,353 1,868 2,247 2,510 2,761 3,001 13,600 1,359 1,875 2,255 2,519 2,771 3,012 13,700 1,364 1,882 2,264 2,529 2,781 3,023 13,800 1,370 1,889 2,272 2,538 2,792 3,035 13,900 1,375 1,896 2,281 2,547 2,802 3,046 14,000 1,381 1,903 2,289 2,557 2,812 3,057 14,100 1,386 1,910 2,297 2,566 2,822 3,068 14,200 1,391 1,916 2,304 2,574 2,831 3,078 14,300 1,396 1,922 2,312 2,582 2,841 3,088 14,400 1,401 1,929 2,319 2,591 2,850 3,098 14,500 1,406 1,935 2,327 2,599 2,859 3,108 14,600 1,410 1,941 2,334 2,607 2,868 3,118 14,700 1,415 1,947 2,342 2,616 2,877 3,128 14,800 1,420 1,954 2,349 2,624 2,886 3,138 14,900 1,425 1,960 2,357 2,632 2,896 3,147 15,000 1,430 1,966 2,364 2,641 2,905 3,157 15,100 1,435 1,972 2,371 2,649 2,914 3,167 15,200 1,440 1,978 2,379 2,657 2,923 3,177 15,300 1,444 1,985 2,386 2,666 2,932 3,187 15,400 1,449 1,991 2,394 2,674 2,941 3,197 15,500 1,454 1,997 2,401 2,682 2,950 3,207 15,600 1,459 2,003 2,409 2,691 2,960 3,217 15,700 1,464 2,010 2,416 2,699 2,969 3,227 15,800 1,469 2,016 2,424 2,707 2,978 3,237 15,900 1,474 2,022 2,431 2,715 2,987 3,247 16,000 1,478 2,028 2,439 2,724 2,996 3,257 16,100 1,484 2,035 2,445 2,732 3,005 3,266 16,200 1,490 2,041 2,452 2,739 3,013 3,275 16,300 1,495 2,047 2,459 2,747 3,022 3,285 16,400 1,501 2,053 2,466 2,755 3,030 3,294 16,500 1,506 2,059 2,473 2,763 3,039 3,303 16,600 1,512 2,065 2,480 2,770 3,047 3,313 16,700 1,518 2,071 2,487 2,778 3,056 3,322 16,800 1,523 2,077 2,494 2,786 3,065 3,331 16,900 1,529 2,083 2,501 2,794 3,073 3,340 17,000 1,534 2,089 2,508 2,801 3,082 3,350 17,100 1,540 2,095 2,515 2,809 3,090 3,359 17,200 1,545 2,102 2,522 2,817 3,099 3,368 17,300 1,551 2,108 2,529 2,825 3,107 3,378 17,400 1,557 2,114 2,536 2,832 3,116 3,387 17,500 1,562 2,120 2,543 2,840 3,124 3,396 17,600 1,568 2,126 2,550 2,848 3,133 3,405 17,700 1,573 2,132 2,557 2,856 3,141 3,415 17,800 1,579 2,138 2,563 2,863 3,149 3,423 17,900 1,584 2,144 2,570 2,870 3,157 3,432 18,000 1,589 2,149 2,576 2,878 3,166 3,441 18,100 1,595 2,155 2,583 2,885 3,174 3,450 18,200 1,600 2,161 2,590 2,893 3,182 3,459 18,300 1,605 2,167 2,596 2,900 3,190 3,467 18,400 1,611 2,173 2,603 2,907 3,198 3,476 18,500 1,616 2,178 2,609 2,915 3,206 3,485 18,600 1,621 2,184 2,616 2,922 3,214 3,494 18,700 1,627 2,190 2,623 2,929 3,222 3,503 18,800 1,632 2,196 2,629 2,937 3,231 3,512 18,900 1,637 2,202 2,636 2,944 3,239 3,520 19,000 1,642 2,207 2,642 2,952 3,247 3,529 19,100 1,648 2,213 2,649 2,959 3,255 3,538 19,200 1,653 2,219 2,656 2,966 3,263 3,547 19,300 1,658 2,225 2,662 2,974 3,271 3,556 19,400 1,664 2,231 2,669 2,981 3,279 3,565 19,500 1,669 2,236 2,675 2,989 3,287 3,573 19,600 1,674 2,242 2,682 2,996 3,295 3,582 19,700 1,680 2,248 2,689 3,003 3,304 3,591 19,800 1,685 2,254 2,695 3,011 3,312 3,600 19,900 1,690 2,260 2,702 3,018 3,320 3,609 20,000 1,696 2,265 2,709 3,025 3,328 3,617 20,100 1,701 2,271 2,715 3,033 3,336 3,626 20,200 1,706 2,277 2,722 3,040 3,344 3,635 20,300 1,710 2,282 2,728 3,047 3,352 3,643 20,400 1,713 2,287 2,733 3,053 3,358 3,651 20,500 1,717 2,292 2,739 3,059 3,365 3,658 20,600 1,720 2,297 2,745 3,066 3,372 3,666 20,700 1,723 2,302 2,750 3,072 3,379 3,673 20,800 1,726 2,307 2,756 3,078 3,386 3,681 20,900 1,730 2,313 2,761 3,084 3,393 3,688 21,000 1,733 2,318 2,767 3,091 3,400 3,695 21,100 1,736 2,323 2,773 3,097 3,407 3,703 21,200 1,739 2,328 2,778 3,103 3,413 3,710 21,300 1,743 2,333 2,784 3,109 3,420 3,718 21,400 1,746 2,338 2,789 3,116 3,427 3,725 21,500 1,749 2,343 2,795 3,122 3,434 3,733 21,600 1,752 2,348 2,801 3,128 3,441 3,740 21,700 1,756 2,353 2,806 3,134 3,448 3,748 21,800 1,759 2,358 2,812 3,141 3,455 3,755 21,900 1,762 2,363 2,817 3,147 3,462 3,763 22,000 1,765 2,368 2,823 3,153 3,469 3,770 22,100 1,769 2,373 2,829 3,160 3,475 3,778 22,200 1,772 2,378 2,834 3,166 3,482 3,785 22,300 1,775 2,383 2,840 3,172 3,489 3,793 22,400 1,778 2,388 2,845 3,178 3,496 3,800 22,500 1,782 2,393 2,851 3,185 3,503 3,808 22,600 1,785 2,398 2,857 3,191 3,510 3,815 22,700 1,788 2,403 2,862 3,197 3,517 3,823 22,800 1,791 2,408 2,868 3,203 3,524 3,830 22,900 1,795 2,413 2,873 3,210 3,531 3,838 23,000 1,798 2,418 2,879 3,216 3,537 3,845 23,100 1,801 2,423 2,885 3,222 3,544 3,853 23,200 1,804 2,429 2,890 3,228 3,551 3,860 23,300 1,808 2,434 2,896 3,235 3,558 3,868 23,400 1,811 2,439 2,901 3,241 3,565 3,875 23,500 1,814 2,444 2,907 3,247 3,572 3,883 23,600 1,817 2,449 2,913 3,253 3,579 3,890 23,700 1,821 2,454 2,918 3,260 3,586 3,898 23,800 1,824 2,459 2,924 3,266 3,593 3,905 23,900 1,827 2,464 2,929 3,272 3,599 3,913 24,000 1,830 2,469 2,935 3,278 3,606 3,920 24,100 1,834 2,474 2,941 3,285 3,613 3,928 24,200 1,837 2,479 2,946 3,291 3,620 3,935 24,300 1,840 2,484 2,952 3,297 3,627 3,943 24,400 1,843 2,489 2,957 3,304 3,634 3,950 24,500 1,847 2,494 2,963 3,310 3,641 3,957 24,600 1,850 2,499 2,969 3,316 3,648 3,965 24,700 1,853 2,504 2,974 3,322 3,655 3,972 24,800 1,856 2,509 2,980 3,329 3,661 3,980 24,900 1,860 2,514 2,986 3,335 3,668 3,987 25,000 1,863 2,519 2,991 3,341 3,675 3,995 25,100 1,866 2,524 2,997 3,347 3,682 4,002 25,200 1,869 2,529 3,002 3,354 3,689 4,010 25,300 1,873 2,534 3,008 3,360 3,696 4,017 25,400 1,876 2,540 3,014 3,366 3,703 4,025 25,500 1,879 2,545 3,019 3,372 3,710 4,032 25,600 1,882 2,550 3,025 3,379 3,716 4,040 25,700 1,886 2,555 3,030 3,385 3,723 4,047 25,800 1,889 2,560 3,036 3,391 3,730 4,055 25,900 1,892 2,565 3,042 3,397 3,737 4,062 26,000 1,895 2,570 3,047 3,404 3,744 4,070 26,100 1,899 2,575 3,053 3,410 3,751 4,077 26,200 1,902 2,580 3,058 3,416 3,758 4,085 26,300 1,905 2,585 3,064 3,422 3,765 4,092 26,400 1,908 2,590 3,070 3,429 3,772 4,100 26,500 1,912 2,595 3,075 3,435 3,778 4,107 26,600 1,915 2,600 3,081 3,441 3,785 4,115 26,700 1,918 2,605 3,086 3,447 3,792 4,122 26,800 1,921 2,610 3,092 3,454 3,799 4,130 26,900 1,925 2,615 3,098 3,460 3,806 4,137 27,000 1,928 2,620 3,103 3,466 3,813 4,145 27,100 1,931 2,625 3,109 3,473 3,820 4,152 27,200 1,934 2,630 3,114 3,479 3,827 4,160 27,300 1,938 2,635 3,120 3,485 3,834 4,167 27,400 1,941 2,640 3,126 3,491 3,840 4,175 27,500 1,944 2,645 3,131 3,498 3,847 4,182 27,600 1,948 2,650 3,137 3,504 3,854 4,190 27,700 1,951 2,656 3,142 3,510 3,861 4,197 27,800 1,954 2,661 3,148 3,516 3,868 4,205 27,900 1,957 2,666 3,154 3,523 3,875 4,212 28,000 1,961 2,671 3,159 3,529 3,882 4,219 28,100 1,964 2,676 3,165 3,535 3,889 4,227 28,200 1,967 2,681 3,170 3,541 3,896 4,234 28,300 1,970 2,686 3,176 3,548 3,902 4,242 28,400 1,972 2,689 3,179 3,551 3,907 4,247 28,500 1,974 2,691 3,182 3,555 3,911 4,251 28,600 1,976 2,694 3,185 3,558 3,914 4,255 28,700 1,978 2,696 3,188 3,561 3,918 4,259 28,800 1,980 2,699 3,191 3,565 3,922 4,263 28,900 1,982 2,701 3,194 3,568 3,926 4,268 29,000 1,984 2,704 3,197 3,571 3,930 4,272 29,100 1,986 2,707 3,200 3,575 3,934 4,276 29,200 1,988 2,709 3,203 3,578 3,938 4,280 29,300 1,990 2,712 3,206 3,581 3,941 4,284 29,400 1,992 2,714 3,209 3,584 3,945 4,289 29,500 1,993 2,717 3,212 3,588 3,949 4,293 29,600 1,995 2,719 3,215 3,591 3,953 4,297 29,700 1,997 2,722 3,218 3,594 3,957 4,301 29,800 1,999 2,724 3,221 3,598 3,961 4,305 29,900 2,001 2,727 3,224 3,601 3,965 4,310 30,000 2,003 2,730 3,227 3,604 3,968 4,314

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HISTORY: Enact. Acts 1990, ch. 418, § 3, effective July 13, 1990; 1994, ch. 330, § 11, effective July 15, 1994; 1996, ch. 365, § 6, effective July 15, 1996; 1998, ch. 100, § 8, effective July 15, 1998; 1998, ch. 255, § 20, effective July 15, 1998; 2000, ch. 430, § 9, effective July 14, 2000; 2019 ch. 162, § 2, effective June 27, 2019; 2021 ch. 47, § 2, effective June 29, 2021; 2022 ch. 122, § 1.

403.2121. Establishment of adjustment to child support obligations based upon parenting time — Authority to promulgate administrative regulations — Children receiving public assistance. [Effective until March 31, 2023]

  1. Except as provided in subsection (4) of this section or otherwise provided in this chapter, the child support obligation determined under KRS 403.212 shall be subject to further adjustment as follows:
    1. If the parents share equal parenting time, the child support obligation determined under KRS 403.212 shall be divided between the parents in proportion to their combined monthly adjusted parental gross income, and the parent with the greater proportional child support obligation shall pay the parent with the lesser proportional obligation the difference in the value of each parent’s proportional obligation; and
    2. If the parents share unequal parenting time under either a court-ordered time-sharing schedule or a time-sharing schedule exercised by agreement of the parties, the court shall:
      1. Calculate the child support obligation set forth in the child support guidelines table in accordance with KRS 403.212;
      2. Determine the percentage of overnight stays the child spends with each parent on an annual basis based upon the time-sharing order or agreement;
      3. Multiply each parent’s support obligation as calculated under KRS 403.212 by the percentage of the other parent’s overnight stays as calculated in subparagraph 2. of this paragraph;
      4. Set the difference between the amounts calculated in subparagraph 3. of this paragraph as the monetary transfer or credit necessary between the parents for the care of the child; and
      5. Use its discretion in adjusting each parent’s child support obligation under this paragraph in accordance with the factors under KRS 403.212, and the following:
        1. The obligated parent’s low income and ability to maintain the basic necessities of the home for the child;
        2. The likelihood that either parent will actually exercise the time- sharing schedule set forth in the court-ordered time-sharing schedule or time-sharing agreement between the parents;
        3. Whether all of the children are exercising the same time-sharing schedule; and
        4. Whether the time-sharing plan results in fewer overnights due to a significant geographical distance between the parties that may affect the child support obligation.
  2. As used in this section, unless the context requires otherwise, an “overnight stay” shall include the costs associated with feeding and transporting the child, entertainment, attending to school work, athletic events, extracurricular activities, or other expenses that transfer with the child as they move from one parent to the other. Merely providing a child with a place to sleep in order to obtain an adjustment in a child support obligation shall not constitute an overnight stay under this section.
  3. The child support calculations required under this section shall be on a worksheet prescribed by the Cabinet for Health and Family Services in administrative regulations promulgated under KRS Chapter 13A.
  4. This section shall not apply if the child or children subject to the child support award receive public assistance, including KCHIP, K-TAP, food stamps, or Medicaid.

HISTORY: 2021 ch. 47, § 3, effective March 1, 2022.

403.2121 Establishment of adjustment to child support obligations based upon parenting time — Authority to promulgate administrative regulations — Children receiving public assistance. [Effective March 31, 2023]

  1. For purposes of this section, “day”:
    1. Means more than twelve (12) consecutive hours in a twenty-four (24) hour period under the care, control, or direct supervision of one (1) parent or caretaker, or as the court determines based on findings of substantially equivalent care or expense; and
    2. Unless the context requires otherwise, includes housing, entertaining, feeding, and transporting the child, attending to school work, athletic events, extracurricular activities, or other activities that transfer with the child as he or she moves from one parent to the other;
    1. In order to receive a shared parenting time credit, a parent shall maintain care, custody, and control over the child for a minimum of seventy-three (73) days per year, as defined by this section. (2) (a) In order to receive a shared parenting time credit, a parent shall maintain care, custody, and control over the child for a minimum of seventy-three (73) days per year, as defined by this section.
    2. The shared parenting time credit shall only be applicable for parenting time that is court-ordered or approved and consistently exercised.
  2. Except as provided in subsection (6) of this section or otherwise provided in this chapter, the child support obligation determined under Section 1 of this Act shall be subject to further adjustment as follows:
    1. For parents who share parenting time under either a court-ordered time-sharing schedule or a time-sharing schedule exercised by agreement of the parties, the court shall:
        1. Calculate the child support obligation set forth in the child support guidelines table in accordance with subsection (5)(a) of Section 1 of this Act using the combined gross adjusted income of the parties; 1. a. Calculate the child support obligation set forth in the child support guidelines table in accordance with subsection (5)(a) of Section 1 of this Act using the combined gross adjusted income of the parties;
        2. If both parents exercise their equal shared parenting time, consider the parent with the higher gross monthly income the obligor;
      1. Determine the number of days for both parents on an annual basis based upon either a court-ordered time-sharing schedule or a time-sharing schedule exercised by agreement of the parties;
      2. Using the days a child spends with the obligated parent, determine the adjustment percentage using the shared parenting time credit chart in subsection (4) of this section;
      3. Determine the shared parenting time credit adjustment by multiplying the obligated parent’s adjustment percentage by the total support obligation found on the child support obligation worksheet to establish the shared parenting expense adjustment for the obligated parent, as determined in subparagraph 1. of this paragraph; and
      4. Subtract the amount calculated in subparagraph 4. of this paragraph from the obligated parent’s monthly obligation, found on the child support obligation worksheet, as determined in subparagraph 1. of this paragraph;
    2. The court may use its discretion in adjusting each parent’s child support obligation under this paragraph in accordance with the factors proscribed in this section, and the following:
      1. The obligated parent’s low income and ability to maintain the basic necessities of the home for the child;
      2. The likelihood that either parent will actually exercise the time-sharing schedule set forth in the court-ordered time-sharing schedule or time-sharing agreement between the parents;
      3. Whether all of the children are subject to the same time-sharing schedule;
      4. Whether the time-sharing plan results in fewer overnights due to a significant geographical distance between the parties that may affect the child support obligation; and
      5. The military deployment or extended service obligations of the parties; and
    3. The self-support reserve, as calculated under subsection (5)(b) of Section 1 of this Act, and the shared parenting time credit, as calculated under this subsection, shall not be applied together. The obligor shall be responsible for the lesser support amount as determined under subsection (5)(c) of Section 1 of this Act.
  3. The shared parenting time credit chart is as follows:

    Click to view

  4. Failure by one (1) party to consistently comply with the parenting schedule shall be grounds for the other party to seek modification from the court. A party may seek modification following a fifteen percent (15%) change in the number of timesharing days and shall have the burden of proving a material change in circumstances.
  5. This section shall not apply if the child or children subject to the child support award receive public assistance, including:
    1. Kentucky Children’s Health Insurance Program (KCHIP);
    2. Kentucky Transitional Assistance Program (K-TAP);
    3. Supplemental Nutrition Assistance Program (SNAP); or
    4. Medicaid.

Parenting Time Days Adjustment Percentage 73-87 10.5% 88-115 15% 116-129 20.5% 130-142 25% 143-152 30.5% 153-162 36% 163-172 42% 173-181 48.5% 182-182.5 50%

HISTORY: 2021 ch. 47, § 3, effective March 1, 2022; repealed and reenacted by 2022 ch. 122, § 2, effective March 31, 2023.

403.213. Criteria for modification of orders for child support and for health care — Effects of emancipation and death of obligated parent — Commission to review guidelines.

  1. The Kentucky child support guidelines may be used by the parent, custodian, or agency substantially contributing to the support of the child as the basis for periodic updates of child support obligations and for modification of child support orders for health care. The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing.
  2. Application of the Kentucky child support guidelines to the circumstances of the parties at the time of the filing of a motion or petition for modification of the child support order which results in equal to or greater than a fifteen percent (15%) change in the amount of support due per month shall be rebuttably presumed to be a material change in circumstances. Application which results in less than a fifteen percent (15%) change in the amount of support due per month shall be rebuttably presumed not to be a material change in circumstances. For the one (1) year period immediately following enactment of this statute, the presumption of material change shall be a twenty-five percent (25%) change in the amount of child support due rather than the fifteen percent (15%) stated above.
  3. Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of eighteen (18). In cases where the child becomes emancipated because of age, but not due to marriage, while still a high school student, the court-ordered support shall continue while the child is a high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years. Provisions for the support of the child shall not be terminated by the death of a parent obligated to support the child. If a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances. Emancipation of the child shall not terminate the obligation of child support arrearages that accrued while the child was an unemancipated minor.
  4. The child support guidelines table shall be reviewed at least once every four (4) years by a commission consisting of the following persons:
    1. The secretary of the Cabinet for Health and Family Services or a supervisory staff person designated by him;
    2. Two (2) members of the Kentucky Bar Association who have at least six (6) consecutive years’ experience and are presently practicing domestic relations cases, one (1) member from a metropolitan or large urban area and one (1) member from a less populated area;
    3. Two (2) Circuit Judges appointed by the Chief Justice of the Kentucky Supreme Court, one (1) from a metropolitan or large urban area, and one (1) from a less populated area;
    4. One (1) District Judge appointed by the Chief Justice of the Kentucky Supreme Court;
    5. Two (2) county attorneys appointed by the president of the County Attorneys Association, one (1) from a metropolitan or large urban area and one (1) from a less populated area;
    6. The Attorney General or his designee, who shall be an attorney from his office;
    7. One (1) person who is a custodial parent;
    8. One (1) person who is a noncustodial parent;
    9. One (1) person who is a parent with split custody; and
    10. One (1) child advocate.

      The members designated in paragraphs (g) to (j) of this subsection shall be appointed by the Governor from a list of three (3) names for each category submitted by the Cabinet for Health and Family Services. If the status of one (1) of these members changes, the member shall be replaced through appointment by the Governor from a list of three (3) names submitted by the cabinet.

  5. The commission shall make a recommendation to the Kentucky General Assembly to ensure that the child support guidelines table results in a determination of appropriate child support amounts.

History. Enact. Acts 1990, ch. 418, § 4, effective July 13, 1990; 1992, ch. 434, § 3, effective July 14, 1992; 1994, ch. 330, § 12, effective July 15, 1994; 1998, ch. 426, § 580, effective July 15, 1998; 2000, ch. 430, § 10, effective July 14, 2000; 2001, ch. 161, § 1, effective March 21, 2001; 2005, ch. 99, § 625, effective June 20, 2005.

NOTES TO DECISIONS

1.Change of Circumstances.

Father seeking a modification of child support did not meet the father's burden of proof to establish a substantial and continuing material change in circumstances because (1) self-employment income attributable to the father based on the evidence exceeded the father's representations, and (2) there was little or no credible evidence from which to find the father's ordinary and necessary expenses. Shelton v. Shelton, 446 S.W.3d 663, 2014 Ky. App. LEXIS 164 (Ky. Ct. App. 2014).

Where father agreed to provide support while son was in high school or until son reached the age of maturity, change of age of maturity by statute did not excuse father from supporting son until he graduated from high school. Leathers v. Ratliff, 925 S.W.2d 197, 1996 Ky. App. LEXIS 109 (Ky. Ct. App. 1996).

Since once an award of child support entered pursuant to the terms of a separation agreement under KRS 403.280 is reopened for modification, the child support must be set anew pursuant to KRS 403.210 et seq., and in reaching its decision the court is to consider both the changes in finances of both parents as well as the needs of the child, thus it was proper for the court to disregard the prior agreement of the parties as to the amount of child support payable by the husband in deciding to raise that amount. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

Payor parent’s receipt of a substantial capital gain from sale of a farm constituted a material change of circumstances, and the capital gain was to be included in the parent’s gross income for the year received; upon a future motion to modify the trial court could adjust the child support obligation to reflect fluctuations in income due to the nonrecurring event, but proration of the capital gain over the parent’s remaining work life expectancy was improper. Clary v. Clary, 54 S.W.3d 568, 2001 Ky. App. LEXIS 696 (Ky. Ct. App. 2001).

Jessamine Circuit Court erroneously granted the mother’s motion to compel discovery in the child support modification case, and the father was, therefore, granted a writ of prohibition under CR 76.36; before seeking discovery, the mother, under KRS 403.213(1), was required to make a showing of a material change of circumstances and to file a motion to modify child support, neither of which the mother had done. Combs v. Daugherty, 170 S.W.3d 424, 2005 Ky. App. LEXIS 170 (Ky. Ct. App. 2005).

Where the mother had not previously received child support and sought modification when one of the children moved in with the mother full-time, the trial court erred under KRS 403.213(1) in awarding child support retroactive to the date that the child moved in, as the date that the motion for modification was filed was the earliest retroactive date allowed. Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

Because a father failed to adequately preserve issues related to the recalculation and increase in his child support by failing to request the Family Court to make findings of fact relative to the support, the Court of Appeals was unable to review the father’s claim of error. Johnson v. Johnson, 232 S.W.3d 571, 2007 Ky. App. LEXIS 303 (Ky. Ct. App. 2007).

Because a father failed to show the substantial and continuing material change in circumstance required by KRS 403.213 , he was properly found to be voluntarily underemployed; accordingly, his motion to modify his child support obligations was properly denied. Howard v. Howard, 2009 Ky. App. Unpub. LEXIS 1090 (Ky. Ct. App. June 12, 2009), aff'd, 336 S.W.3d 433, 2011 Ky. LEXIS 52 ( Ky. 2011 ).

Family court did not err in denying a mother’s motion to modify a father’s child support obligation because the mother failed to prove a material change in circumstances to justify an increase in the father’s support obligation under KRS 403.213 . Although the mother claimed that she was forced to seek state assistance for the child’s medical needs, the family court found that the father had always provided insurance for the child and that the mother simply needed an updated insurance card; thus, the only evidence of any change in circumstances was readily refuted by the record. Cabinet v. Bowman, 2010 Ky. App. LEXIS 123 (Ky. Ct. App. July 16, 2010).

Child support guidelines were inapplicable, KRS 403.211(3)(e) and (g), because the parties’ combined monthly gross income exceeded the uppermost level of the child support guidelines rendering application of the guidelines inappropriate, and the familial circumstances were of an extraordinary nature rendering application of the child support guidelines unjust; as the child support guidelines were inapplicable, the rebuttable presumption found in KRS 403.213(2) concerning modification of child support was inapplicable, and upon remand, the family court had to consider the father’s motions to modify child support in accordance with KRS 403.213(1). Dudgeon v. Dudgeon, 318 S.W.3d 106, 2010 Ky. App. LEXIS 136 (Ky. Ct. App. 2010).

Husband made an insufficient demonstration of a change of circumstances after a divorce decree with the exception of filing for bankruptcy to warrant modification of child support; because other financial obligations were discharged, more of the husband’s income could presumably be applied to child support, and the husband’s ex-wife testified that the husband’s child support payments had become more regular since the bankruptcy discharge. Howard v. Howard, 336 S.W.3d 433, 2011 Ky. LEXIS 52 ( Ky. 2011 ).

Emancipations of the father’s two older children constituted a material change in circumstances and the father was entitled to a modification in his support obligation under KRS 403.213 , but only as to installments accruing subsequent to the filing of the motion to modify child support. Bennett v. Bennett, 2011 Ky. App. LEXIS 106 (Ky. Ct. App. June 10, 2011).

Circuit court erred in, sua sponte, directing a mother to seek child support because the only issue before the court was the child's school placement, the mother did not request child support, and a showing of a material change in circumstances that was substantial and continuing was statutorily required. Keeton v. Keith, 511 S.W.3d 918, 2017 Ky. App. LEXIS 16 (Ky. Ct. App. 2017).

Family court failed to set forth substantial evidence supporting its finding that the mother met her burden of demonstrating that a material change in circumstances had occurred in the two years since the prior support order was entered, as a comparison of the parties’ circumstances showed little change other than the child’s growth and the father’s decline in income. Wilson v. Inglis, 554 S.W.3d 377, 2018 Ky. App. LEXIS 197 (Ky. Ct. App. 2018).

Modification of a father’s child support obligation was vacated because (1) a prior court established that obligation at $0, so the mother’s assignment of the right to child support to the Cabinet for Health and Family Services (CHFS) only assigned a right to seek modification, (2) CHFS’ complaint did not comply with a procedural rule by demanding that the court establish a child support obligation, (3) the court in which the complaint was filed discounted the prior decree, and, (4) while any objection to the subsequent court as an improper forum was waived, that court did not recognize the prior decree as establishing the father’s initial obligation and did not find if the facts justified modification of the initial obligation. Martin v. Commonwealth Cabinet, 583 S.W.3d 12, 2019 Ky. App. LEXIS 86 (Ky. Ct. App. 2019).

Modification of a marital settlement agreement would be appropriate under the child support modification statute because the parties reconciled and cohabited, which allowed for an equal sharing of time and resources as it related to the children; that was a substantial and continuing material change sufficient to modify a child support obligation, especially since it went on for six years. Brannock v. Brannock, 598 S.W.3d 91, 2019 Ky. App. LEXIS 196 (Ky. Ct. App. 2019).

2.— Decreased Income.

Where mother’s decreased income alone would not support a modification of support under the guidelines, and where there had been no showing of “extraordinary educational needs” or finding of other circumstance which would overcome the statutory presumption, the circuit court’s child support modification order was set aside. Smith v. Smith, 845 S.W.2d 25, 1992 Ky. App. LEXIS 230 (Ky. Ct. App. 1992).

Father failed to carry his burden of establishing a substantial and continuing change in circumstances that would warrant a reduction in the father’s child support obligation where, while the father asserted that he no longer had income producing rental properties, the father failed to present any evidence as to what had happened to the properties. Goldsmith v. Bennett-Goldsmith, 227 S.W.3d 459, 2007 Ky. App. LEXIS 131 (Ky. Ct. App. 2007).

3.— Incarceration.

Incarceration of the obligor parent is simply not a change in circumstances within the meaning of the statute; instead, it is akin to voluntary unemployment as it is the result of voluntary conduct which the obligor parent should have known would impair his ability to support his children. Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396, 2000 Ky. App. LEXIS 26 (Ky. Ct. App. 2000).

Because one (1) of the parties’ children had been placed with the Department of Juvenile Justice, the trial court erred in increasing the father’s child support obligation pursuant to KRS 403.213(1), the guidelines figure for the support of one (1) child; if the Department had obtained child support from the father pursuant to KRS 610.170 , his child support obligation to the mother should have been recalculated as split custody in accordance with KRS 403.212(6). Rodney P. v. Stacy B., 169 S.W.3d 834, 2005 Ky. LEXIS 245 ( Ky. 2005 ).

4.— Consumer Debt.

The total court erred as a matter of law in modifying the support award where the only change in circumstances father could demonstrate was a higher amount of consumer debt. Downey v. Rogers, 847 S.W.2d 63, 1993 Ky. App. LEXIS 18 (Ky. Ct. App. 1993), limited, Conley v. Conley, 2008 Ky. App. Unpub. LEXIS 975 (Ky. Ct. App. May 16, 2008).

5.Contempt Action.

A contempt action does not mean that a trial judge can excuse accrued child support arrearage. Lewis v. Lewis, 875 S.W.2d 862, 1993 Ky. LEXIS 78 ( Ky. 1993 ).

6.Educational Expenses.

For purposes of determining a modification in child support based on incurred educational expenses, educationsl expenses encompass more than mere tuition. Giacalone v. Giacalone, 876 S.W.2d 616, 1994 Ky. App. LEXIS 17 (Ky. Ct. App. 1994).

Where child received a high school diploma from a fully-accredited American School, and there was nothing in the record to suggest that the school was a sham operation, or that it did not provide an adequate education to its students which was substantially equivalent to that which might be obtained in a traditional Kentucky public school, it was a “high school” for purposes of this section. Smiley v. Browning, 8 S.W.3d 887, 1999 Ky. App. LEXIS 160 (Ky. Ct. App. 1999).

7.Daycare Expenses.

Although the trial court was allowed to modify the allocation of child care costs to reflect the fact that a wife’s need to pay those costs had decreased, the trial court improperly considered the issue under KRS 403.213 , not under KRS 403.211(6), and the appellate court vacated the trial court’s judgment and remanded the case for further proceedings. Olson v. Olson, 108 S.W.3d 650, 2003 Ky. App. LEXIS 158 (Ky. Ct. App. 2003).

8.Discretion of Court.

Trial court abused its discretion by overruling a father's modification motion on the ground that he could not be physically present in court for a hearing since he was unable to legally enter the United States; due to an older child's emancipation, the trial court was under an affirmative obligation to review the support and enter a new order, and the father argued that modification was in order due to a change in the currency exchange rate. There was a procedure for putting the father under oath in another country. Moskovitz v. Moskovitz, 459 S.W.3d 886, 2015 Ky. App. LEXIS 46 (Ky. Ct. App. 2015).

Where a trial court relieved a father’s child support arrearages not because the original child support decree had been modified but because the father had been in physical custody of the child and had been providing for all necessities of the child, the court abused its discretion since it had no power to relieve the father of his obligations when no motion for modifying the child support order had been made, as required by this section. Price v. Price, 912 S.W.2d 44, 1995 Ky. LEXIS 146 ( Ky. 1995 ).

Because the trial court could not modify a father’s child support payments once they had accrued, and because no motion for modification had been filed, pursuant to KRS 403.213(1), the trial court properly denied the father’s motion for a nunc pro tunc order. Holland v. Holland, 290 S.W.3d 671, 2009 Ky. App. LEXIS 116 (Ky. Ct. App. 2009).

9.— Future Medical Expenses.

It was error for the court to refuse to consider the independent financial resources of the child, due to his receipt of a sizeable personal injury settlement, in determining whether extraordinary circumstances existed to merit deviating from the child support guidelines. The court also erred in not hearing evidence regarding the child’s present physical and mental condition, his current medical needs or the likelihood of further medical expenses given his injuries and whether mother was justified in being unemployed. Rainwater v. Williams, 930 S.W.2d 405, 1996 Ky. App. LEXIS 160 (Ky. Ct. App. 1996).

10.Credit for Overpayments.

Where social security payments received by child on account of father’s disability exceeded the father’s monthly support obligation, any payments of child support made by father after the social security payments began should be credited to his arrearage; the remainder of any surplus must be considered a gratuity and not allowed to offset any arrearage for support which accrued prior to the disability. Miller v. Miller, 929 S.W.2d 202, 1996 Ky. App. LEXIS 147 (Ky. Ct. App. 1996).

A former husband was entitled to a refund of nearly $11,000.00 for child support he was held to have twice paid where (1) after becoming disabled, he was awarded workers’ compensation benefits and also received disability benefits under a pension plan which required that he apply for social security disability benefits; (2) while awaiting a ruling on social security disability benefits, he continued to pay almost $11,000 in child support; (3) the Social Security Administration approved the disability claim and paid, inter alia, a back award of dependent’s benefits to the child at issue in the amount of about $21,000; and (4) the pension plan thereupon demanded that the former husband repay pension benefits to the extent of the social security back awards, including the back award of dependent benefits. Van Meter v. Smith, 14 S.W.3d 569, 2000 Ky. App. LEXIS 17 (Ky. Ct. App. 2000).

11.Child Custody and Support.

This section applies to any action to modify an award of child support even in a case where there was a separation agreement where the spouse acknowledged that the child support payable under the terms of the agreement was less than that authorized by the child support guidelines pursuant to subsection (3) of KRS 403.211 . Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

While the parties to a divorce are free to enter into a separation agreement to promote the settlement of the divorce, the court still retains control over child custody, support and visitation and is not bound by the parties’ agreement in these areas. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

Father was not entitled to reduce his child support obligation by one-half when his daughter reached the age of emancipation without an out-of-court agreement with the mother or a motion to reduce his child support payments; however, nowhere in his affidavit did the father claim that there was an agreement between himself and the mother which allowed him to reduce his child support payments. Thus, the family court did not err when it found that the father failed to file a motion to reduce his child support and that there was insufficient evidence to support the conclusion that the mother agreed to a reduction. Therefore, the family court correctly concluded that KRS 403.213(1) did not permit retroactive modification to the father’s child support. Pecoraro v. Pecoraro, 148 S.W.3d 813, 2004 Ky. App. LEXIS 310 (Ky. Ct. App. 2004).

Father, through counsel, informed the family court judge that the matter regarding retroactively recalculating his child support was ready for submission; thus, he should not be allowed to complain after receiving an unfavorable ruling that the trial court failed to hold a hearing. Having passed up the opportunity for a hearing before the family court made its decision on the father’s motion to retroactively recalculate his child support, the father could not subsequently expect the appellate court to find that the family court committed an error in failing to hold a hearing to determine whether an agreement modifying his child support existed. Pecoraro v. Pecoraro, 148 S.W.3d 813, 2004 Ky. App. LEXIS 310 (Ky. Ct. App. 2004).

Where, in the child support modification in which the mother was awarded child support for the first time, the appellate court refused to consider the father’s challenge to the amount of child support awarded because the father failed to file a motion to modify in the trial court pursuant to KRS 403.213 . Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

Even though a mother failed to preserve error due to noncompliance with CR 76.12(4)(c)(v) and failed to request review under CR 61.02, the manifest injustice standard of review was applied to a child support modification case given the oddly-timed circumstances of this appeal relative to the rendering of the decision in Artrip v. Noe, 311 S.W.3d 229, 2010 Ky. LEXIS 81 ( Ky. 2010 ). The evidence showed that a child would not have suffered an injustice by a minimal increase in child support that occurred after a trial court took into account that the child was receiving government benefits for his mother’s disability. Hudson v. Hudson, 2010 Ky. App. LEXIS 243 (Ky. Ct. App. Jan. 14, 2010).

Pursuant to KRS 403.213 and 405.020(1), the father was not entitled to retroactive automatic modification of his child support obligation based on the emancipation of fewer than all his children covered by the prevailing support order; instead, the father had a duty to file a motion requesting the court to modify his child support obligation. Bennett v. Bennett, 2011 Ky. App. LEXIS 106 (Ky. Ct. App. June 10, 2011).

12.Emancipation of Child.

Language of the statute expresses an unequivocal intent by the legislature that child support be terminated upon emancipation of a child absent the statutory exception; therefore, the emancipation of a child is a singular event that triggers a review of the current child support obligation of a party pursuant to Kentucky’s statutes, caselaw and guidelines based on the facts and circumstances post emancipation. A father was entitled to have his child support obligation reviewed in light of the emancipation of the eldest child because the emancipation of one of the children upon which the prior child support order was based was an event that triggered the review of the child support obligation. Seay v. Seay, 404 S.W.3d 215, 2013 Ky. App. LEXIS 102 (Ky. Ct. App. 2013).

13.Post-Majority Child in High School.

In a child support dispute, a trial court erred by assigning May 30, 2014 as the end of the school and as the termination date for a father's obligation to pay child support because the school year ended on June 30, pursuant to statute; however, there was no error in failing to extend the school year to November 2014 to allow the student to finish his senior year after the age of majority. Mix v. Petty, 465 S.W.3d 891, 2015 Ky. App. LEXIS 40 (Ky. Ct. App. 2015).

This section, as amended in 1992, manditorily postpones the termination of the support obligation for a child who is a high-school student upon attaining majority. Bustin v. Bustin, 969 S.W.2d 697, 1998 Ky. LEXIS 94 ( Ky. 1998 ).

The parties’ child was enrolled in a high school when she became 18 years of age and, therefore, the father’s child support obligation did not automatically terminate on her eighteenth birthday where the child had enrolled in a home-bound program after withdrawing from a public high school because of problems with her nerves brought on by the ambiance of the public school. Marcinek v. Commonwealth, 999 S.W.2d 721, 1999 Ky. App. LEXIS 113 (Ky. Ct. App. 1999).

Trial court erred in finding that an emancipated child was not a high school student for child support purposes under KRS 403.213(3) where she was in an unaccredited home-school program that gave her an education that was substantially equivalent to that offered in a traditional public school. Commonwealth ex rel. Francis v. Francis, 148 S.W.3d 805, 2004 Ky. App. LEXIS 239 (Ky. Ct. App. 2004).

14.Deceased Parent’s Child Support Obligation.

When the mother of a disabled child sued the estate of the child’s father regarding various statutory violations in the handling of the estate which allegedly resulted in denying the child the opportunity to present a child support claim against the estate, it was error to dismiss the complaint on summary judgment because the estate could potentially be held liable for such support. Thompson v. Porter, 2012 Ky. App. LEXIS 248 (Ky. Ct. App. Nov. 30, 2012), op. withdrawn, sub. op., 2013 Ky. App. Unpub. LEXIS 418 (Ky. Ct. App. May 24, 2013).

15.Emancipated Child.

Court erred by concluding that the divorced father’s child support obligation could not be modified without a 15 percent change in the amount of support due when a child is emancipated because the emancipation of one of the children on which the prior child support order was based was an event that triggered review of the child support obligation. Thus, the divorced father was entitled to have his child support obligation reviewed. Dickens v. Dickens, 401 S.W.3d 489, 2013 Ky. App. LEXIS 79 (Ky. Ct. App. 2013).

In a child custody case, it was error to award a former husband attorney fees because there was no finding of a disparity in income; moreover, discovery could not have been conducted because there was no pending motion to modify custody or parenting time. The former wife could not have been ordered to pay fees that were incurred due to the alleged contempt of her new husband. Hencye v. White, 2016 Ky. App. LEXIS 85 (Ky. Ct. App. May 27, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 892 (Ky. Ct. App. May 27, 2016).

Cited:

Pretot v. Pretot, 905 S.W.2d 868, 1995 Ky. App. LEXIS 165 (Ky. Ct. App. 1995); Gossett v. Gossett, 32 S.W.3d 109, 2000 Ky. App. LEXIS 120 (Ky. Ct. App. 2000).

Research References and Practice Aids

Kentucky Bench & Bar.

Crocker, Current Issues in Child Support and the Use of Child Support Guidelines, Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 9.

Hicks, Postminority Support for College Expenses A Moral and Legal Dilemma, Vol. 60, No. 4, Fall 1996 Ky. Bench & B. 34.

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Bartlett, Setting Child Support for the Low Income and High Income Families in Kentucky, 25 N. Ky. L. Rev. 2 (1998).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit in Support of Motion to Reduce Child Support, Form 263.09.

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit in Support of Motion to Terminate Child Support, Form 263.20.

Caldwell’s Kentucky Form Book, 5th Ed., Motion to Increase Child Support, Form 263.05.

Caldwell’s Kentucky Form Book, 5th Ed., Motion to Terminate Child Support, Form 263.19.

403.215. Assignment of wages for child support obligations.

After July 15, 1990, any new or modified order or decree which contains provisions for the support of a minor child or minor children, shall provide for a wage assignment which shall begin immediately except for good cause shown, and which shall be paid based upon the payment schedule of wages of the employer to whom the wage assignment is directed, and at a minimum, on a monthly basis. If good cause is shown, the wage assignment shall take effect when an arrearage accrues that is equal to the amount of support payable for one (1) month, pursuant to KRS 405.465 . Notice of all orders providing for wage assignment issued in Kentucky on or after January 1, 1994, shall be sent to the employer using the federally approved Income Withholding for Support (IWO) form that contains the accompanying OMB number.

History. Enact. Acts 1986, ch. 487, § 11, effective July 15, 1986; 1988, ch. 411, § 3, effective July 15, 1988; 1990, ch. 418, § 14, effective July 13, 1990; 1998, ch. 255, § 50, effective July 15, 1998; 2019 ch. 162, § 3, effective June 27, 2019.

Opinions of Attorney General.

KRS 205.741 (now repealed) and 405.465 require immediate and automatic wage assignment in all child support orders issued after July 15, 1988, unless the court has found in its judicial discretion that the basis exists for a good cause exception. In addition, this section requires the inclusion within every order or decree of dissolution containing provisions for child support issued after July 15, 1988, the notice that a wage assignment may issue if an arrearage accrues equal to one month. OAG 88-84 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Wage Assignment, Form 263.11.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

403.220. Costs of action and attorney’s fees.

The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

History. Enact. Acts 1972, ch. 182, § 12.

NOTES TO DECISIONS

1.Discretion of Court.

The allocation of court costs and attorney’s fees are entirely within the discretion of the court. Wilhoit v. Wilhoit, 521 S.W.2d 512, 1975 Ky. LEXIS 156 ( Ky. 1975 ).

Allocation of court costs and award of attorney’s fees are entirely within the discretion of the trial court. Browning v. Browning, 551 S.W.2d 823, 1977 Ky. App. LEXIS 707 (Ky. Ct. App. 1977).

The trial judge should determine if fees should be granted under his discretionary authority granted in this section, after he determines that fees are not mandatory under KRS 403.340(3). Dexter v. Spainhoward, 563 S.W.2d 474, 1978 Ky. App. LEXIS 478 (Ky. Ct. App. 1978).

Where the trial judge labors under the misconception that he lacks authority to award attorneys’ fees, it cannot be said that he exercised his discretion. Adkins v. Adkins, 574 S.W.2d 898, 1978 Ky. App. LEXIS 631 (Ky. Ct. App. 1978).

The trial court has a broad latitude in determining whether to assess attorney fees in a dissolution of marriage and where the trial judge thoroughly considered the provisions of this section and the appropriate stan- dards for awarding such fees, it did not abuse its discretion in requiring each party to pay for his own attorney. Russell v. Russell, 605 S.W.2d 33, 1980 Ky. App. LEXIS 363 (Ky. Ct. App. 1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004, 1981 U.S. LEXIS 2764 (U.S. 1981).

The amount of an award of attorney’s fees is committed to the sound discretion of the trial court with good reason; that court is in the best position to observe conduct and tactics which waste the court’s and attorneys’ time and must be given wide latitude to sanction or discourage such conduct. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

The allocation of attorney’s fees is entirely within the discretion of the court and is not mandatory. In addition to $5,000.00 for attorney’s fees, the court awarded wife $3,500.00 for costs incurred in hiring expert witnesses. Furthermore, wife’s attorney’s fees totaling $17,000.00 were based on the cost of employing two attorneys. Considering this and the amount of property wife was awarded at trial, the Court of Appeals did not believe that the parties’ financial resources were such that the trial court abused its discretion. Underwood v. Underwood, 836 S.W.2d 439, 1992 Ky. App. LEXIS 164 (Ky. Ct. App. 1992), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

The trial court’s refusal to order the husband to reimburse the wife for attorney’s fees she had paid did not abuse the trial court’s discretion, even where there was a financial disparity between the parties. Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Where an ex-wife instituted divorce proceedings, she was ineligible to receive extra compensation under an antenuptial agreement; however, despite the agreement, the trial court failed to use its discretion to consider the disparity in the parties’ financial resources in determining whether to award attorney’s fees and costs. Ford v. Blue, 106 S.W.3d 470, 2003 Ky. App. LEXIS 100 (Ky. Ct. App. 2003).

Where there was a vast discrepancy between the mother’s income and the father’s income, the trial court did not abuse its discretion under KRS 403.220 in awarding the mother $2,829 in attorney’s fees and costs in the child support modification proceeding that the mother instituted. Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

Since the wife clearly had greater financial resources than the husband, which definitively prevented her from receiving attorney’s fees, and it was clear that the trial court considered the parties’ conduct during the dissolution proceedings and the financial imbalance between them in ordering the wife to pay $30,000 of the husband’s attorney fees, there was no abuse of discretion. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

2.Court Costs.

In divorce proceeding the court did not abuse its discretion in awarding allocation of liability for court costs to husband. Beaver v. Beaver, 551 S.W.2d 23, 1977 Ky. App. LEXIS 692 (Ky. Ct. App. 1977).

In assessing costs, including attorneys’ fees, against husband in divorce action, the trial court found disparity in the financial resources of the parties, and under the statute, no more is required. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

3.Attorney’s Fees.

Ky. Rev. Stat. Ann. § 403.220 permitted an attorney's fee award given the General Assembly's concerns with insuring that the financially less fortunate party would have the ability to make an adequate response Rumpel v. Rumpel, 438 S.W.3d 354, 2014 Ky. LEXIS 331 ( Ky. 2014 ).

Trial court did not err in awarding the wife attorney fees based on the fact that the husband had a hiring earning capacity. Lambe v. Weber, 2014 Ky. App. LEXIS 177 (Ky. Ct. App. Nov. 14, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1053 (Ky. Ct. App. Nov. 14, 2014).

In divorce action, allowance of an attorney’s fee is to be taxed as costs and is to be made pursuant to a motion for same. Such allowance in no way partakes of the qualities of a legal issue growing out of the clause of action, and mere fact that an attorney withdrew from case does not create such a legal issue. Buttermann v. Fox, 312 Ky. 652 , 229 S.W.2d 160, 1950 Ky. LEXIS 715 ( Ky. 1950 ) (decided under prior law).

Interest is allowable on an award of attorney’s fees in a divorce proceeding because such fees are part of the court costs. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Fees of out-of-state attorney for representing wife in divorce proceedings and taking out-of-state depositions were properly taxed as costs payable by husband. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Allowance of $17,500 fee to wife’s attorney in divorce proceeding was not exorbitant and excessive since considering the extent of the litigation and the amount of property involved as reflected by the record, it appeared that adequate information was available to the chancellor to justify the allowance made. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

In connection with claim that attorney’s fee allowed wife’s attorney in divorce proceeding was excessive and exorbitant, action of trial court denying husband the opportunity to take deposition of the attorney for the purpose of ascertaining facts pertinent to the consideration of the amount of attorney’s fees to be allowed was improper, but where no prejudice resulted the award would not be disturbed. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Where husband argued that since both parties have adequate financial resources it was a clear abuse of discretion to award an attorney’s fee to his former wife’s attorney against him, but husband did not name his former wife’s attorney a party to the appeal, such appeal must fail since the attorney must be made a party to the appeal whether the fee is adjudged to be paid directly to him or is allowed to one of the parties to the divorce in order to be included as a court-cost item. Beaver v. Beaver, 551 S.W.2d 23, 1977 Ky. App. LEXIS 692 (Ky. Ct. App. 1977).

Where the trial court assessed against a husband the attorney’s fees payable by the wife in a divorce action, it was error to attempt such an allowance without any evidence showing a need for it, since this section authorizes awards only when supported by an imbalance in the financial resources of the respective parties. Sullivan v. Levin, 555 S.W.2d 261, 1977 Ky. LEXIS 503 ( Ky. 1977 ).

The court’s authority to order payment of an attorney’s fee in a divorce action is strictly for the benefit of the client, not that of the attorney, and the power of the court to fix the fee payable by one of the parties to his own attorney is not conferred by this section so that the trial court exceeded its discretion in assessing attorney’s fees against both husband and wife at the request of the wife’s attorney. Sullivan v. Levin, 555 S.W.2d 261, 1977 Ky. LEXIS 503 ( Ky. 1977 ).

Where the attorneys originally representing a wife in a divorce action were discharged by her prior to entry of judgment, the trial court had no authority to consider the amount of their fee or award a recovery for the attorneys against their own client. Oliver v. Yates, 555 S.W.2d 263, 1977 Ky. LEXIS 504 ( Ky. 1977 ).

Where the sale or partitioning of real estate is merely incidental, and not primary, in an action for divorce, the court is precluded from awarding an attorney’s fee to be taxed as a part of the costs and paid out of the proceeds from the sale of the property as would occur in a partition suit pursuant to KRS 389A.030 ; rather, the remedy would be recovery from the husband pursuant to this section. Meredith v. Meredith, 619 S.W.2d 508, 1981 Ky. App. LEXIS 269 (Ky. Ct. App. 1981).

While the findings of the trial court or the record did not justify relief under the demanding standards of CR 60.02(f), there were sufficient findings to support the award of attorney’s fee pursuant to this section. Bishir v. Bishir, 698 S.W.2d 823, 1985 Ky. LEXIS 276 ( Ky. 1985 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

While it would have been better practice for affidavits or other evidence to be submitted in support of an award of attorney’s fees, there was no abuse of discretion in the court’s award of $1,500, given the extent of the record, the number of depositions taken, and numerous motions involved. Poe v. Poe, 711 S.W.2d 849, 1986 Ky. App. LEXIS 1082 (Ky. Ct. App. 1986).

The trial court abused its discretion in ordering the husband to pay his former wife’s attorney fees of $2,500, in view of the court’s allowance of maintenance and equal division of the marital and nonmarital property, as well as the fact of the wife’s own employment. Drake v. Drake, 721 S.W.2d 728, 1986 Ky. App. LEXIS 1480 (Ky. Ct. App. 1986).

An allowance of attorney’s fees is authorized by this section only when it is supported by an imbalance in the financial resources of the respective parties. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

Where the resources of the parties were approximately equal, an award of attorney fees was an abuse of discretion. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

This section, which authorizes the court in certain divorce cases to order one party to pay a reasonable amount for attorney’s fees of the other party, is broad enough to authorize the payment of a fee to an attorney who has accepted representation of an indigent client under an express agreement that he would not charge his client any fee for his services. Hale v. Hale, 772 S.W.2d 628, 1989 Ky. LEXIS 62 ( Ky. 1989 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Where husband earned only $4,550 more a year than wife, but that figure represented approximately 27% of what wife earned per year, there was a disparity in financial resources justifying an award of attorney fees to wife. Glidewell v. Glidewell, 859 S.W.2d 675, 1993 Ky. App. LEXIS 51 (Ky. Ct. App. 1993).

The gross imbalance in the parties’ income, $45,000+ compared to $0, plus the wife’s lack of any income-producing property should have entitled her to an award of attorney fees pursuant to this section. Beckner v. Beckner, 903 S.W.2d 528, 1995 Ky. App. LEXIS 120 (Ky. Ct. App. 1995).

The statutory language is broad enough to authorize a trial court to require a party to advance prospective attorney’s fees necessary to enable the other party to obtain adequate representation. Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

A wife’s attorney was not an indispensable party to her request that she be reimbursed by the husband for fees she had already paid the attorney, nor to her appeal of the trial court’s denial of her request. Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Because the family court made the findings required by KRS 403.200(1), (2) and 403.220 , it properly awarded maintenance and attorney’s fees to the wife; as the husband had exclusive possession and use of the primary marital asset during the proceedings, retroactive judgment interest at 12 percent was proper under KRS 360.040 . 2005 Ky. App. LEXIS 182 .

Since the record contained evidence that there was an imbalance in the financial resources of the husband and wife, which was in the husband’s favor, the trial court could justifiably award attorney fees to the wife. In particular, the husband continued to live “rent free” on a farm the husband had inherited before the marriage while the wife was leaving the marriage only with a small home that was fully encumbered. Jones v. Jones, 245 S.W.3d 815, 2008 Ky. App. LEXIS 24 (Ky. Ct. App. 2008).

In light of the husband’s failure to seek a more specific finding from the trial court, and in light of the fact that a finding of disparity in the parties’ financial resources due to the parties’ respective incomes was supported by the evidence, the trial court did not abuse its discretion in awarding the wife 25% of her attorney fees and expert witness fees. Allison v. Allison, 246 S.W.3d 898, 2008 Ky. App. LEXIS 35 (Ky. Ct. App. 2008).

Even though an issue relating to the reimbursement of attorney fees for an allegedly frivolous motion to set aside a divorce decree was not properly before an appellate court, the issue was still considered because the primary objective of appellate procedure was deciding cases on the merits, a cross-appellee made no objection himself, and no unfair prejudice resulted. At any rate, an argument that the trial court failed to make adequate findings of fact was rejected because a trial court judge exhaustively covered the division of marital assets post-judgment and was aware of the financial situation of the parties; it was not the province of an appellate court to substitute its judgment for the trial court’s decision with regard to attorney fee issues absent an abuse of discretion. Age v. Age, 340 S.W.3d 88, 2011 Ky. App. LEXIS 23 (Ky. Ct. App. 2011).

In a custody dispute between a father and maternal grandparents as part of a dissolution action in which the grandparents intervened, it was not necessary for the family court to conclude that the grandparents employed delay tactics to justify an award of attorney fees to the father. Rather, the only factor the family court was required to consider was the financial resources of the parties. The mere fact that litigation was lengthy and hotly contested, paired with consideration of the parties’ relative financial resources, was sufficient to permit an award of attorney fees under KRS 403.220 . Heltsley v. Frogge, 350 S.W.3d 807, 2011 Ky. App. LEXIS 100 (Ky. Ct. App. 2011).

Because the father made approximately $450,000 while working in Abu Dhabi, and he would be making about $250,000 a year at his new job in Texas, while the mother was making approximately $46,000 a year at her job, the trial court did not abuse its discretion in awarding some attorney fees to the mother due to the disparity of the parties’ incomes under KRS 403.220 . McIntosh v. Landrum, 377 S.W.3d 574, 2012 Ky. App. LEXIS 160 (Ky. Ct. App. 2012).

Trial court did not abuse its discretion in determining a wife did not need any additional reimbursement for attorney’s fees because the wife used marital funds to pay her attorney, both parties’ total attorneys’ fees were roughly equal, and the wife already used marital assets to pay most of the fees she owed and had sufficient nonmarital assets to assist her in paying her fees. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Because the trial court followed the dictates of the statute, it did not err in assessing attorney’s fees against a husband after considering the parties’ financial resources; the trial court was in the best position to observe the lack of candor and cooperation that led to the accrual of many of the fees in the case, which it noted in its order. Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Supreme court will no longer read a requirement into the statute that is not found within its plain language, and it overrules a line of cases insofar as they require a financial disparity in order for attorney’s fees to be awarded and return to the plain language of the statute; that language requires only that the trial court consider the financial resources of the parties before awarding attorney’s fees, not that a financial disparity exist. Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Statutory language is plain: after a trial court considers the parties’ financial resources, it may order one party to pay a reasonable amount of the other party’s attorney’s fees; the statute does not require that a financial disparity must exist in order for the trial court to do so, rather, that language is a creature of case law born out of the supreme court’s decisions. Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

While financial disparity is no longer a threshold requirement which must be met in order for a trial court to award attorney’s fees, the financial disparity is still a viable factor for trial courts to consider in following the statute and looking at the parties’ total financial picture. Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

4.— Attorney Becomes Party.

When judgment in divorce action allows wife’s attorney a fee, he thereby becomes a party in interest and the part of the judgment allowing the fee cannot be vacated or modified unless he is treated as a party in the proceedings to vacate or modify the judgment. Hutchinson v. Hutchinson, 293 Ky. 270 , 168 S.W.2d 738, 1943 Ky. LEXIS 589 ( Ky. 1943 ) (decided under prior law).

In divorce action where attorney of record was adjudged a fee by name, he became a party to suit and motion to dismiss suit was properly controlled by court for the purpose of protecting attorney’s rights. Huls v. Smith, 252 S.W.2d 917, 1952 Ky. LEXIS 1047 ( Ky. 1952 ) (decided under prior law).

5.— Discretion of Court.

Allowance of counsel fees in divorce action is for chancellor in exercise of sound discretion and will be disturbed only for abuse of discretion or where more than a doubt exists as to correctness of chancellor’s conclusion. Buttermann v. Fox, 312 Ky. 652 , 229 S.W.2d 160, 1950 Ky. LEXIS 715 ( Ky. 1950 ) (decided under prior law).

In post-divorce child custody proceedings, the chancellor, as in other items of cost, is vested with a discretion in adjudging the wife’s attorney’s fees against the husband. Barnes v. Barnes, 458 S.W.2d 772, 1970 Ky. LEXIS 187 ( Ky. 1970 ) (decided under prior law).

Where the chancellor was not convinced that he had the authority to award the mother attorney fees in a post-divorce custody proceeding, it could not be said that he exercised his discretion in denying the mother her attorney fees. Molloy v. Molloy, 460 S.W.2d 15, 1970 Ky. LEXIS 579 ( Ky. 1970 ) (decided under prior law).

In a dissolution of marriage proceeding, the court properly denied the husband’s request for attorney’s fees because it considered the financial resources of both parties throughout the lengthy proceedings. Specifically, the trial court did so when it ordered the husband to divide the marital portion of his retirement benefits and when it ordered the wife to pay the husband the judgment previously entered, plus interest. Bailey v. Bailey, 399 S.W.3d 797, 2013 Ky. App. LEXIS 74 (Ky. Ct. App. 2013).

6.— Determination of Amount.

Family court did not err in ordering the father to pay only $15,000 of the mother's $75,000 requested attorney's fees given the mother's liquidation of mutual funds from the parties joint account without permission. Weber v. Lambe, 513 S.W.3d 912, 2017 Ky. LEXIS 89 ( Ky. 2017 ).

Where no evidence was offered as to value of services rendered by attorney for wife suing for divorce, chancellor had right to look to record to ascertain services and fix value from his own knowledge of such matters. Heskamp v. Heskamp, 203 Ky. 75 , 261 S.W. 848, 1924 Ky. LEXIS 843 ( Ky. 1924 ) (decided under prior law).

Where in divorce action, no evidence is offered as to value of services rendered by attorney, chancellor has right to look into record to ascertain services and fix value from his own knowledge of such matters. Buttermann v. Fox, 312 Ky. 652 , 229 S.W.2d 160, 1950 Ky. LEXIS 715 ( Ky. 1950 ) (decided under prior law).

Factors to be considered in fixing attorney fees are (1) amount and character of services, (2) labor, time and trouble, (3) nature and importance of litigation or business, (4) responsibility imposed, (5) amount of money or value of property affected or involved, (6) skill and experience required, (7) professional character and standing of the attorney, and (8) results secured. Boden v. Boden, 268 S.W.2d 632, 1954 Ky. LEXIS 913 ( Ky. 1954 ) (decided under prior law).

Where the wife’s attorney was named as a party in the appeal, but the husband in his brief made no effort to question the reasonableness of the fee, the reasonableness of the amount should be presumed. Gernert v. Gernert, 457 S.W.2d 831, 1970 Ky. LEXIS 218 ( Ky. 1970 ) (decided under prior law).

In deciding whether the husband should be required to pay the wife’s attorney fees in post-divorce custody proceedings, factors to be considered are whether the proceeding is for the benefit or welfare of the child involved, the mother’s personal interest in the custody case, the element of harassment, and the ability to pay. Barnes v. Barnes, 458 S.W.2d 772, 1970 Ky. LEXIS 187 ( Ky. 1970 ) (decided under prior law).

Where a re-evaluation of the distribution of property and the amount of alimony was necessary, the question of whether the amount of time spent by the wife’s attorney was reasonably spent required a reconsideration and possible revision of the attorney’s fees and costs which the husband was ordered to pay by the trial court. Sharp v. Sharp, 491 S.W.2d 639, 1973 Ky. LEXIS 576 ( Ky. 1973 ) (decided under prior law).

7.Accountant’s Fees.

The trial court did not err in assessing an accountant’s fee as a cost of the action; such an allowance was within the sound discretion of the trial judge. Culver v. Culver, 572 S.W.2d 617, 1978 Ky. App. LEXIS 603 (Ky. Ct. App. 1978).

8.Appraisers’ Fees.

Allowance to wife of amount paid for services of appraisers of husband’s property, held not improper. Walters v. Walters, 419 S.W.2d 750, 1967 Ky. LEXIS 186 ( Ky. 1967 ) (decided under prior law). See Justice v. Justice, 421 S.W.2d 868, 1967 Ky. LEXIS 94 ( Ky. 1967 ) (decided under prior law).

9.Parties’ Financial Situation.

Although the court, in divorce action, did not mention the financial resources of wife in its orders awarding her attorney fees, there is no requirement that it do so; the trial court need only “consider” the parties’ financial situation. Hollingsworth v. Hollingsworth, 798 S.W.2d 145, 1990 Ky. App. LEXIS 159 (Ky. Ct. App. 1990).

An award of attorney’s fees to the former wife under KRS 403.220 was improper because the Family Court considered the parties’ financial situation during their marriage rather than at the time of the order, which was more than three (3) years after the parties had separated, and no showing had been made that there was an imbalance in the parties’ resources. Miller v. McGinity, 234 S.W.3d 371, 2007 Ky. App. LEXIS 322 (Ky. Ct. App. 2007).

Refusal to award attorney fees based on the disparity of financial resources of the parties was proper because the trial court’s finding that an award was not appropriate given the parties’ financial resources was not clearly erroneous. Muir v. Muir, 406 S.W.3d 31, 2013 Ky. App. LEXIS 114 (Ky. Ct. App. 2013).

Order directing a husband to pay one-half of a wife’s attorney fees was not erroneous because there was a substantial disparity in the parties’ resources. Maclean v. Middleton, 419 S.W.3d 755, 2014 Ky. App. LEXIS 3 (Ky. Ct. App. 2014).

10.Homestead Exemption.

A judgment against husband for attorney’s fees and costs in divorce suit brought by wife, and subsequently dismissed, cannot subject to its satisfaction the homestead of the husband exempt under KRS 427.060 . Nunn v. Page, 134 Ky. 698 , 121 S.W. 442, 1909 Ky. LEXIS 408 ( Ky. 1909 ) (decided under prior law).

11.Payment by Husband.

Where the wife had no estate except that given her by her husband, the amount of which was credited on the alimony award, it was not error to hold that the attorneys must be paid in part by the husband. Reed v. Reed, 457 S.W.2d 4, 1969 Ky. LEXIS 1 ( Ky. 1969 ), cert. denied, Reed v. Reed, 410 U.S. 931, 93 S. Ct. 1375, 35 L. Ed. 2d 594, 1973 U.S. LEXIS 3373 (1973) (decided under prior law).

It was not an abuse of discretion for a trial court to order a husband to pay part of a wife’s attorney fees because there was an imbalance of financial resources between the parties - particularly the parties’ respective salaries and the distribution of debt. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

Trial court did not abuse its discretion in awarding attorney fees to the wife in a dissolution action because, despite the fact that the husband did not have supplemental income from an IRA like the wife did, the husband was in a better financial position than she was. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Husband grossed more than two times as much as the wife per year, and despite the fact that the husband did not have supplemental income from a retirement account like the wife did, he was still in a better financial position than she was, and the trial court did not abuse its discretion in ordering the husband to pay a portion of the wife’s attorney fees. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

12.Payment by Wife.

Where there was a finding of fact that the wife was financially able to pay her own attorneys and that much of the time spent by her counsel was unnecessary, the chancellor was justified in denying the wife recovery of her attorney fees against her husband. Barnes v. Barnes, 458 S.W.2d 772, 1970 Ky. LEXIS 187 ( Ky. 1970 ) (decided under prior law).

13.Jurisdiction.

Order that awarded fathers attorney’s fees in a custody matter was an abuse of discretion because the award was barred by res judicata and waiver due to lack of timeliness and lack of jurisdiction, as the order had become final, and the fathers did not seek further findings, reconsideration, or appeal in the interim. Nesselhauf v. Haden, 412 S.W.3d 213, 2013 Ky. App. LEXIS 149 (Ky. Ct. App. 2013).

Cited in:

Robinette v. Robinette, 736 S.W.2d 351, 1987 Ky. App. LEXIS 524 (Ky. Ct. App. 1987); Cochran v. Cochran, 746 S.W.2d 568, 1988 Ky. App. LEXIS 46 (Ky. Ct. App. 1988); Tucker v. Hill, 763 S.W.2d 144, 1988 Ky. App. LEXIS 191 (Ky. Ct. App. 1988); Castle v. Castle, 266 S.W.3d 245, 2008 Ky. App. LEXIS 278 (Ky. Ct. App. 2008); Howard v. Howard, 336 S.W.3d 433, 2011 Ky. LEXIS 52 ( Ky. 2011 ).

NOTES TO UNPUBLISHED DECISIONS

1.Attorney Fees

Unpublished decision: Trial court's award of attorney's fees related to a contempt proceeding had to be remanded because the court did not make findings required by Ky. Rev. Stat. Ann. § 403.220 . Farrar v. Farrar, 2014 Ky. App. LEXIS 184 (Ky. Ct. App. Dec. 12, 2014), review denied, ordered not published, 2015 Ky. LEXIS 1908 (Ky. Sept. 24, 2015).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Attorneys’ Fees Recoverable in Kentucky Liti- gation, Vol. 44, No. 4, October 1980, Ky. Bench & Bar 28.

Kentucky Law Journal.

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Treatises

Petrilli, Kentucky Family Law, Court Procedure, § 23.18.

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.31, 24.32, 24.34; 1991 Supp., § 24.31.

Petrilli, Kentucky Family Law, Separation Agreements, §§ 19.9, 19.16.

403.230. Legal separation — Court may convert, to a decree of dissolution — Restoration of former name.

  1. No earlier than one (1) year after entry of a decree of legal separation, the court on motion of either party shall convert the decree to a decree of dissolution of marriage.
  2. Upon request by a wife whose marriage is dissolved or declared invalid, the court may, and if there are no children of the parties shall, order her maiden name or a former name restored.

History. Enact. Acts 1972, ch. 182, § 13.

NOTES TO DECISIONS

1.Restoration of Name.

Court of Appeals had power to reverse so much of judgment of divorce as denied to wife restoration of maiden name. Rayburn v. Rayburn, 300 Ky. 209 , 187 S.W.2d 804, 1945 Ky. LEXIS 797 ( Ky. 1945 ) (decided under prior law).

When a restoration of a maiden name was not contained in a divorce judgment, though the wife had prayed for such restoration, and no exception was taken to this, the judgment would not be reversed but would be modified to provide for restoration. Phillips v. Phillips, 307 Ky. 217 , 210 S.W.2d 756, 1948 Ky. LEXIS 707 ( Ky. 1948 ) (decided under prior law).

Where wife did not request restoration of her former name, the chancellor erred in restoring it. Terrell v. Terrell, 352 S.W.2d 195, 1961 Ky. LEXIS 195 ( Ky. 1961 ) (decided under prior law).

Where wife filed for divorce and husband counterclaimed, including in his petition the request for restoration of his wife’s maiden name, the trial court, in granting the divorce to the husband, was without authority to restore the wife’s maiden name when she had not so requested. Peniston v. Peniston, 511 S.W.2d 675, 1974 Ky. LEXIS 508 ( Ky. 1974 ).

Cited:

Blasi v. Blasi, 648 S.W.2d 80, 1983 Ky. LEXIS 233 ( Ky. 1983 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Comment, Equal Protection of the Sexes in Kentucky: The Effect of the Hummeldorf Decision on a Woman’s Right to Choose Her Surname, 9 N. Ky. L. Rev. 475 (1982).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Decree of Dissolution of Marriage, Form 253.30.

Caldwell’s Kentucky Form Book, 5th Ed., Decree of Legal Separation, Form 253.05.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.1.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.1.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.4.

403.240. Decree or temporary order — Failure to comply with — Good-cause defense — Attorney’s fees.

  1. If a party fails to comply with a provision of a decree or temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation is not suspended; but he may move the court to grant an appropriate order.
  2. The failure of either party, without good cause, to comply with a provision of a decree or temporary order or injunction, including a provision with respect to visitation or child support shall constitute contempt of court, and the court shall remedy the failure to comply.
  3. Good cause not to comply with a provision of a decree or temporary order or injunction with respect to visitation shall include mutual consent of the parties, reasonable belief by either party that there exists the possibility of endangerment to the physical, mental, moral, or emotional health of the child, or endangerment to the physical safety of either party, or extraordinary circumstances as determined by the court.
  4. The court may, if no reasonable cause is found for denial of visitation, award attorney’s fees to the prevailing party.

History. Enact. Acts 1972, ch. 182, § 14; 1980, ch. 188, § 286, effective July 15, 1980; 1992, ch. 414, § 2, effective July 14, 1992.

NOTES TO DECISIONS

1.Failure to Comply with Visitation Orders.

An obligation to pay child support cannot be suspended as a result of a failure of either the custodial parent or the child itself to comply with the trial court’s visitation orders. Stevens v. Stevens, 729 S.W.2d 461, 1987 Ky. App. LEXIS 486 (Ky. Ct. App. 1987).

Trial court was precluded from reducing father’s child support arrearages to nothing, even though the mother never demanded the child support payments and the mother never made her whereabouts known to the father, thus making it impossible for him to exercise his visitation rights. Gera v. Gera, 796 S.W.2d 13, 1990 Ky. App. LEXIS 129 (Ky. Ct. App. 1990).

Cited:

Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Custody of Children, § 26.14; 1991 Supp., §§ 26.14, 27.6, 27.12.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), §§ 27.2, 27.6.

403.250. Modification or termination of provisions for maintenance and property disposition.

  1. Except as otherwise provided in subsection (6) of KRS 403.180 , the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.
  2. Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

History. Enact. Acts 1972, ch. 182, § 15; 1990, ch. 418, § 5, effective July 13, 1990.

NOTES TO DECISIONS

Cited:

1.In General.

Questions involving custody of children and the amount of alimony and maintenance are always open to modification in trial court. Heltsley v. Heltsley, 242 S.W.2d 973, 1951 Ky. LEXIS 1088 ( Ky. 1951 ) (decided under prior law).

3.Attorney’s Fees.

After examining the record, including the videotape of the hearing, no abuse of discretion was found in the circuit court’s decision to award the wife the amount of fees she requested. Andrews v. Andrews, 611 S.W.3d 271, 2020 Ky. App. LEXIS 82 (Ky. Ct. App. 2020).

2.Distinction Between Support and Property Rights.

A pre-1972 property settlement which made no provision for an adjustment of maintenance due to subsequent social security benefits was not modifiable. The agreement was a determination of the property rights as distinguished from a right of support. Williams v. Williams, 789 S.W.2d 781, 1990 Ky. LEXIS 133 ( Ky. 1990 ).

3.Proper Forum.

Where the custodial parent and children were not residents of Kentucky, but the noncustodial parent resided, worked and owned real property in Kentucky, a Kentucky Circuit Court was the proper forum to determine the amount of child support. Hall v. Hall, 585 S.W.2d 384, 1979 Ky. LEXIS 272 ( Ky. 1979 ).

4.Jurisdiction Retained.

Trial courts which reduce or terminate maintenance under subsection (1) of this section as a result of a maintenance recipient’s cohabitation retain jurisdiction over the issue to make subsequent modifications if a substantial change occurs in the cohabitation relationship. Combs v. Combs, 787 S.W.2d 260, 1990 Ky. LEXIS 15 ( Ky. 1990 ).

5.Burden of Proof.

Since father seeking a modification of a decree for child support payments did not meet his burden of showing that there was a change of circumstances so substantial as to make the terms of the earlier decree unconscionable, there was no error in refusal to modify decree. McKenzie v. McKenzie, 502 S.W.2d 657, 1973 Ky. LEXIS 105 ( Ky. 1973 ).

When the court granted modification of a divorce judgment, it was necessary for the Circuit Court to make appropriate findings of fact in order to determine that the requirements of this section as to a showing of change of conditions were complied with, but such findings were unnecessary when the motion was denied since necessarily the movant did not sustain his burden of showing the required change of conditions. Burnett v. Burnett, 516 S.W.2d 330, 1974 Ky. LEXIS 93 ( Ky. 1974 ), overruled in part, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

Where a husband was able to show a prior court proceeding modifying the original divorce decree so as to allow him custody of his children during the summer months, he met the burden of proof for a party seeking a modification of a divorce decree. Adkins v. Adkins, 574 S.W.2d 898, 1978 Ky. App. LEXIS 631 (Ky. Ct. App. 1978).

6.Findings of Fact.

A trial court should make findings of evidentiary facts, when granting a motion for modification under subsection (1) of this section, so that it can be determined whether there has been a showing of changed conditions. Mullins v. Mullins, 584 S.W.2d 601, 1979 Ky. App. LEXIS 432 (Ky. Ct. App. 1979).

7.Motion Not Made.

In order to enforce oral agreements to modify child support obligations, a court must find that modification might reasonably have been granted had a proper motion to modify been brought before the court, pursuant to this section, at the time such oral modification was originally agreed to by the parties. Whicker v. Whicker, 711 S.W.2d 857, 1986 Ky. App. LEXIS 1183 (Ky. Ct. App. 1986).

Where there was nothing in the record on appeal to indicate what evidence was considered by the trial court, the appellate court had to presume that the evidence supported the trial court’s finding that the increase in child support was justified under subsection (1) of this section, even though no motion for modification had been made by either party. Whicker v. Whicker, 711 S.W.2d 857, 1986 Ky. App. LEXIS 1183 (Ky. Ct. App. 1986).

8.Divorce from Bed and Board.

After a divorce from bed and board, the court retains jurisdiction to grant an absolute divorce and to modify the allowance granted to the wife and child. Adkins v. Adkins, 213 Ky. 100 , 280 S.W. 477, 1926 Ky. LEXIS 460 ( Ky. 1926 ) (decided under prior law).

9.Alimony.

No gross sum for alimony being fixed, chancellor had the power on proper application to modify or discontinue monthly allowance to meet changed conditions of parties. Jones v. Jones, 239 Ky. 153 , 39 S.W.2d 262, 1931 Ky. LEXIS 762 ( Ky. 1931 ) (decided under prior law).

Court rendering alimony decree has discretion, upon motion of either party, to modify the provisions as to alimony even though the judgment incorporated agreed allowances, except where the agreement or judgment pursuant thereto is in gross. Michael v. Michael, 277 Ky. 820 , 127 S.W.2d 864, 1939 Ky. LEXIS 739 ( Ky. 1939 ) (decided under prior law).

Where alimony is payable in installments, the court has authority to modify it in the event the conditions of the parties change. Ratliff v. Ratliff, 312 Ky. 450 , 227 S.W.2d 989, 1950 Ky. LEXIS 670 ( Ky. 1950 ) (decided under prior law).

An alimony award may be modified to meet changed conditions and a motion is the proper method for raising such question. Burke v. Burke, 248 S.W.2d 716, 1952 Ky. LEXIS 753 ( Ky. 1952 ) (decided under prior law).

Modification of an alimony decree on the ground of changed financial conditions of the parties is in the discretion of the chancellor and will be disturbed only in case of abuse. Gann v. Gann, 347 S.W.2d 540, 1961 Ky. LEXIS 372 ( Ky. 1961 ) (decided under prior law).

10.— Agreement of Parties.

Decrees based on contract providing periodic allowance having effect of property settlement cannot be modified by the courts. Turner v. Ewald, 290 Ky. 833 , 162 S.W.2d 181, 1942 Ky. LEXIS 456 ( Ky. 1942 ), aff’d, 295 Ky. 764 , 174 S.W.2d 431, 1943 Ky. LEXIS 233 ( Ky. 1943 ) (decided under prior law).

As a general rule, the exercise of the power of the court to modify a decree for alimony is not affected by the fact that it is based upon an agreement entered into by the parties, for the agreement becomes merged into the judgment and loses its contractual nature. Pegram v. Pegram, 310 Ky. 86 , 219 S.W.2d 772, 1949 Ky. LEXIS 836 ( Ky. 1949 ) (decided under prior law).

The trial court has the power to modify a periodic alimony award unless it is based on an agreement of the parties and no express reservation was retained and such power may be exercised as a matter of judicial discretion to meet a material or substantial change in conditions of the parties. Gann v. Gann, 347 S.W.2d 540, 1961 Ky. LEXIS 372 ( Ky. 1961 ) (decided under prior law).

Periodic payments specified in an agreement which is incorporated in a divorce decree may not be modified by the court, if the agreement constitutes a property settlement whether or not it also contains alimony provisions, so that, where the wife released any claims she had to a leasehold on which the husband operated a business in exchange for his agreement to make periodic payments to her, the agreement constituted a property settlement and the court could not reduce the periodic payments. Richey v. Richey, 389 S.W.2d 914, 1965 Ky. LEXIS 397 ( Ky. 1965 ) (decided under prior law).

11.— Grounds for Modification.

The general rule is that, on the marriage of the wife to another husband, her right to alimony as against her first husband terminates. Lyon v. Lyon, 243 Ky. 236 , 47 S.W.2d 1072, 1932 Ky. LEXIS 79 ( Ky. 1932 ) (decided under prior law). See Wallace v. Wallace, 189 Ky. 451 , 225 S.W. 31, 1920 Ky. LEXIS 450 ( Ky. 1920 ) (decided under prior law).

A judgment for alimony alone may be modified, and the husband’s obligation terminated, on remarriage of divorced wife to one capable of furnishing suitable support. Duff v. Duff, 275 Ky. 367 , 121 S.W.2d 933, 1938 Ky. LEXIS 441 ( Ky. 1938 ) (decided under prior law).

One of the grounds for modification of alimony decree is inability of the husband to meet the allowances adjudged. Michael v. Michael, 277 Ky. 820 , 127 S.W.2d 864, 1939 Ky. LEXIS 739 ( Ky. 1939 ) (decided under prior law).

Facts justifying modification of alimony allowance, not made in gross, are (1) impairment of husband’s earning capacity to extent that he is unable to meet them and discharge other imperative duties, and (2) remarriage of the wife. Baker v. Ward, 278 Ky. 206 , 128 S.W.2d 563, 1939 Ky. LEXIS 400 ( Ky. 1939 ) (decided under prior law).

Fact that husband, after entry of divorce judgment, quit his job, with result that wife, through work as schoolteacher, was earning more than husband did not entitle husband to discontinuance of alimony payments, where there was no change in his ability to work or in his financial condition. Smith v. Smith, 299 Ky. 715 , 187 S.W.2d 271, 1945 Ky. LEXIS 808 ( Ky. 1945 ) (decided under prior law).

An agreement between the parties as to the amount of alimony is based on the earning power of the husband; therefore, the present earning power of the husband, as compared to his earning power at the time of the original award, is a prime factor in determining whether there has been such a change in condition as to require a modification of the original order. Moneypenny v. Moneypenny, 310 Ky. 9 , 219 S.W.2d 960, 1949 Ky. LEXIS 839 ( Ky. 1949 ) (decided under prior law).

The death of an invalid child, who required constant care by the mother, is sufficient ground for a hearing on a motion to modify an alimony award to the mother. Burke v. Burke, 248 S.W.2d 716, 1952 Ky. LEXIS 753 ( Ky. 1952 ) (decided under prior law).

Increased earnings of the wife are an important consideration in regard to modification of her alimony award, but do not automatically entitle the husband to a reduction. Gann v. Gann, 347 S.W.2d 540, 1961 Ky. LEXIS 372 ( Ky. 1961 ) (decided under prior law).

Retired military husband was entitled to have property order entered in the retired military husband’s divorce case from the former wife reopened and modified pursuant to CR 60.02. Modification was warranted regarding the KRS 403.250(1) property provision, as the language in the original order stated that the former wife was entitled to property based on the retired military husband’s retirement pay from after the divorce until the retired military husband retired, which was not correct because that retirement pay was non-marital property. Copas v. Copas, 359 S.W.3d 471, 2012 Ky. App. LEXIS 24 (Ky. Ct. App. 2012).

Former husband was entitled to have the husband's maintenance payment reduced if the husband demonstrated changed circumstances, such as the former wife's cohabitation, that rendered unconscionable the husband's obligation to pay the full maintenance amount set forth in the parties' separation agreement. Mays v. Mays, 541 S.W.3d 516, 2018 Ky. App. LEXIS 87 (Ky. Ct. App. 2018).

12.Child Support.

Judgment ordering divorced husband to pay wife for support of child may be opened at any time and additional allowances made. Davis' Adm'r v. Cincinnati, N. O. & T. P. R. Co., 172 Ky. 55 , 188 S.W. 1061, 1916 Ky. LEXIS 154 ( Ky. 1916 ) (decided under prior law).

Chancellor has power to make further inquiry into husband’s ability to pay for support of child, and may alter judgment for support money on a proper showing. Travis v. Travis, 282 Ky. 215 , 138 S.W.2d 336, 1940 Ky. LEXIS 147 ( Ky. 1940 ) (decided under prior law).

Order of maintenance for child should not provide allowance be reduced when he became 16 years of age, but right to modify should have been reserved until that time. Fitzgerald v. Fitzgerald, 285 Ky. 404 , 148 S.W.2d 286, 1941 Ky. LEXIS 401 ( Ky. 1941 ). See Sandlin v. Sandlin, 289 Ky. 290 , 158 S.W.2d 635, 1942 Ky. LEXIS 544 ( Ky. 1942 ) (decided under prior law).

The chancellor retains jurisdiction of the cause and may modify the order of allowance at any time. Pennington v. Pennington, 294 Ky. 84 , 171 S.W.2d 10, 1943 Ky. LEXIS 390 ( Ky. 1943 ) (decided under prior law).

An increase in support would be made if, in the future, there would be justification for awarding permanent custody to the mother. Ragland v. Ragland, 299 Ky. 699 , 187 S.W.2d 257, 1945 Ky. LEXIS 782 ( Ky. 1945 ) (decided under prior law).

Remarriage of both parents and father’s assumption of the obligation to support another family with other facts justified the trial court in reducing the father’s child support obligation. Ullman v. Ullman, 302 S.W.2d 849, 1957 Ky. LEXIS 224 ( Ky. 1957 ) (decided under prior law).

Where the mother was allowed to take two children to South Africa to live over the father’s objections, the court properly refused to terminate the father’s obligation to pay $20.00 per week for their support or to increase it to an adequate amount. Byers v. Byers, 370 S.W.2d 193, 1963 Ky. LEXIS 73 ( Ky. 1963 ) (decided under prior law).

Where the court considered all the facts and there was sufficient evidence of probative value to sustain its findings on the motion for increased child maintenance, there was no abuse of discretion nor were the findings of fact clearly erroneous. Spurlin v. Spurlin, 456 S.W.2d 683, 1970 Ky. LEXIS 226 ( Ky. 1970 ) (decided under prior law).

13.— Contract Between Parents.

A contract between parents concerning custody and maintenance of the children will not deprive the court of its power to modify provisions for custody and maintenance. Renick v. Renick, 247 Ky. 628 , 57 S.W.2d 663, 1933 Ky. LEXIS 445 ( Ky. 1933 ) (decided under prior law). See Taylor v. Trosper, 275 Ky. 259 , 121 S.W.2d 41, 1938 Ky. LEXIS 405 ( Ky. 1938 ) (decided under prior law); Morell v. Morell, 291 Ky. 686 , 165 S.W.2d 351, 1942 Ky. LEXIS 301 ( Ky. 1942 ) (decided under prior law).

That part of a judgment in a divorce suit which incorporates an agreement between parents concerning the custody and maintenance of a child is not binding on the court and cannot deprive it of jurisdiction to vacate or modify such judgment. Harms v. Harms, 302 Ky. 60 , 193 S.W.2d 407, 1946 Ky. LEXIS 568 ( Ky. 1946 ) (decided under prior law).

Neither a contract between parents, made either before or after the commencement of a divorce suit, nor a judgment in accordance with the contract, is binding in respect to the custody and maintenance of minor children so as to deprive a court of its jurisdiction to revise the judgment. Mullins v. Mullins, 314 Ky. 178 , 234 S.W.2d 680, 1950 Ky. LEXIS 1054 ( Ky. 1950 ) (decided under prior law).

An agreement of parents, though incorporated in a judgment, cannot deprive the court of jurisdiction to modify its judgment in respect to support and custody of children. Bowling v. Robinson, 332 S.W.2d 285, 1960 Ky. LEXIS 147 ( Ky. 1960 ) (decided under prior law).

A father’s obligation to support his children cannot be diminished by contract and, after a divorce decree in which an agreement of the parties covering support of the children has been incorporated, the court retains jurisdiction over the support of the children and has power to modify the original decree or agreement as circumstances require, for there can be no final judgment as to the infant children. Elkins v. Elkins, 359 S.W.2d 620, 1962 Ky. LEXIS 206 ( Ky. 1962 ) (decided under prior law).

Where a wife receives property under a contract by which she agrees to relieve the husband of his obligation to support their children an the income from the property is insufficient for that purpose, then at least as between her and the divorced father she is the one primarily liable for the support of the children, but the immediate welfare of the children comes first and, regardless of whatever equitable adjustments between the parents are required to preserve the integrity of the contract, the father should be required to contribute such additional funds as are necessary to provide for the children. Elkins v. Elkins, 359 S.W.2d 620, 1962 Ky. LEXIS 206 ( Ky. 1962 ) (decided under prior law).

The fact that an order reducing the amount of child support was based on a contract between the divorced parents does not defeat the court’s power to reopen the order on a showing of a change in conditions. Wilford v. Wilford, 371 S.W.2d 867, 1963 Ky. LEXIS 121 ( Ky. 1963 ) (decided under prior law).

Where the evidence of need on a motion to increase child maintenance payments was conflicting, a previous maintenance agreement executed by the parties did not bind the hands of the chancellor. Spurlin v. Spurlin, 456 S.W.2d 683, 1970 Ky. LEXIS 226 ( Ky. 1970 ) (decided under prior law).

14.— Termination.

In the absence of something to the contrary, the estate of a divorced father is not liable for the support of his children after the father’s death. Arnold v. Arnold's Ex'x, 314 Ky. 734 , 237 S.W.2d 58, 1951 Ky. LEXIS 744 ( Ky. 1951 ) (decided under prior law).

Where divorce decree provided that husband would pay fixed amounts for support of his children and have visitation rights, the wife’s removal of the children from the state depriving the husband of his visitation rights did not automatically terminate the husband’s obligation to make the support payments. Spencer v. Spencer, 312 S.W.2d 360, 1958 Ky. LEXIS 223 ( Ky. 1958 ) (decided under prior law).

Order awarding husband custody of children terminated allowance made to wife for their support. Goff v. Goff, 323 S.W.2d 209, 1959 Ky. LEXIS 322 ( Ky. 1959 ) (decided under prior law).

Unless there is a provision that would unalterably impose liability upon a father’s estate, the power of the court to modify an allowance for support is not lost by the father’s death. Bowling v. Robinson, 332 S.W.2d 285, 1960 Ky. LEXIS 147 ( Ky. 1960 ) (decided under prior law).

Unless there is a provision of the judgment to the contrary, the death of a parent who has been ordered to make payments for the support of his child automatically terminates the obligation with respect to periodic payments which would accrue after his death, and his estate is not bound for them. Bowling v. Robinson, 332 S.W.2d 285, 1960 Ky. LEXIS 147 ( Ky. 1960 ) (decided under prior law).

Where parties’ agreement that the husband would pay a specified amount monthly for the support of two minor children was incorporated in their divorce decree with the provision that such amount be paid until further order of the court, the father’s obligation under the decree terminated at his death and the chancellor could also modify the decree under the power retained in the original decree to terminate the obligation. Bowling v. Robinson, 332 S.W.2d 285, 1960 Ky. LEXIS 147 ( Ky. 1960 ) (decided under prior law).

Under ordinary circumstances, a father’s responsibility for the maintenance of his children continues until they become 21 years of age, and this rule is not affected by the constitutional amendment whereby one may vote when he becomes 18. Dalton v. Dalton, 367 S.W.2d 840, 1963 Ky. LEXIS 32 ( Ky. 1963 ) (decided under prior law).

The court should not have decided in advance that the support of two children should cease when they reached age 18, when the children were about three and six, since the father’s responsibility to support his children generally continues until they reach age 21. Dalton v. Dalton, 367 S.W.2d 840, 1963 Ky. LEXIS 32 ( Ky. 1963 ) (decided under prior law).

15.— Retroactive Modification.

The trial court has discretion to make a modification of the amount of a child support order retroactive to the date the petition for it was filed and, where it was made retroactive to a date about midway between the date of filing and the date of judgment, there was no abuse of this discretion. Ullman v. Ullman, 302 S.W.2d 849, 1957 Ky. LEXIS 224 ( Ky. 1957 ) (decided under prior law).

16.Change of Circumstances.

Where ex-wife receiving $150 per month per each of three children under original support decree sought an increase in support payments, and where it was shown that father’s income in his medical practice had increased considerably, court erred in failing to increase support payments. Wilhoit v. Wilhoit, 506 S.W.2d 511, 1974 Ky. LEXIS 756 ( Ky. 1974 ); Wilhoit v. Wilhoit, 521 S.W.2d 512, 1975 Ky. LEXIS 156 ( Ky. 1975 ).

In an action to modify the provisions of a divorce judgment by terminating the obligation of the husband to pay maintenance to his divorced wife and by terminating the right of divorced wife to occupy the house owned by the husband on claim of changed conditions resting on testimony that husband had remarried and gone into debt for $4,000 and divorced wife had become able to work and support herself, changes of condition resulting from remarriage and going into debt were not of such character as to make the terms of the original judgment unconscionable within the requirements of this section, and since the third charge was denied by divorced wife’s testimony, the Circuit Court was not required to find it to be true. Burnett v. Burnett, 516 S.W.2d 330, 1974 Ky. LEXIS 93 ( Ky. 1974 ), overruled in part, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

In action to modify provisions of a divorce judgment providing that divorced wife was entitled to occupy the house as a home for divorced wife “and their child” since child had reached age 18 and no longer lived in house it could reasonably be considered that the intent of the original judgment was that the divorced wife was entitled to occupy the house as her home even after the child reached majority. Burnett v. Burnett, 516 S.W.2d 330, 1974 Ky. LEXIS 93 ( Ky. 1974 ), overruled in part, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

Since subsection (1) of this section controls the modification or termination of provisions for maintenance, testimony contained in avowal showing conduct of wife that husband contended was immoral was not sufficient to support husband’s motion for reduction of maintenance. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Because the circumstances have changed so that the terms of the maintenance and child support provision of the divorce decree have become unreasonably favorable to the wife, coupled with the likelihood that the present status of the parties will continue, the chancellor could properly eliminate the maintenance provision. Williams v. Williams, 554 S.W.2d 880, 1977 Ky. App. LEXIS 776 (Ky. Ct. App. 1977).

The modification of an original divorce judgment, so as to allow the father to have custody of the children for three months out of each year, is a changed condition so substantial and continuing as to make the terms of the original separation agreement unconscionable, and it cannot be said that the trial court abused its discretion in so finding. Adkins v. Adkins, 574 S.W.2d 898, 1978 Ky. App. LEXIS 631 (Ky. Ct. App. 1978).

The fact that the wife has supplanted the husband as the supporter of the children constitutes a substantial change, within the meaning of subsection (1) of this section, justifying changing his right to claim the children as income tax dependents. Mullins v. Mullins, 584 S.W.2d 601, 1979 Ky. App. LEXIS 432 (Ky. Ct. App. 1979).

Subsection (2) of this section, which controls the discontinuance of maintenance payments upon remarriage, does not apply to cohabitation as well as remarriage. Lydic v. Lydic, 664 S.W.2d 941, 1983 Ky. App. LEXIS 347 (Ky. Ct. App. 1983).

Maintenance payments to a former spouse are not automatically terminated upon that former spouse’s unmarried cohabitation in a “marriage-resembling” relationship. Lydic v. Lydic, 664 S.W.2d 941, 1983 Ky. App. LEXIS 347 (Ky. Ct. App. 1983).

Where the terms of a separation agreement executed by a husband and wife in anticipation of the dissolution of their marriage were not unconscionable, and the decree of dissolution incorporated the contract which contained a clause making the maintenance provision nonreviewable and final, the agreement did not become inequitable and would not be set aside merely because the wife entered into an unmarried cohabitation with another man particularly since the evidence indicated that their relationship was more like a roommate situation with each individual paying his or her own way. Lydic v. Lydic, 664 S.W.2d 941, 1983 Ky. App. LEXIS 347 (Ky. Ct. App. 1983).

The husband’s inheritance received from his second spouse, and the interest earned thereon, were not property or income that could properly be considered for the purpose of increasing maintenance. Roberts v. Roberts, 744 S.W.2d 433, 1988 Ky. App. LEXIS 19 (Ky. Ct. App. 1988).

While the mere showing that the husband received an inheritance would probably not alone be enough to warrant a change in the maintenance award, the trial court’s findings that the wife was no longer receiving any wages from her employment as a domestic, that she was unlikely to be employed in the future due to her health, that she no longer received social security payments for child support, and that her net monthly income was nearly $300 less than at the time of the original maintenance award, constituted changed circumstances of a substantial and continuing nature warranting a modification of the maintenance award. Roberts v. Roberts, 744 S.W.2d 433, 1988 Ky. App. LEXIS 19 (Ky. Ct. App. 1988).

Holding of McCord v. McCord, 558 S.W.2d 624, 1977 Ky. App. LEXIS 851 (1977), conflicted with the plain meaning of KRS 403.250(2) and was overruled; the annulment of a remarriage by a party awarded maintenance in a divorce decree or separation agreement did not invest a trial court with discretion to reinstate maintenance, and a trial court’s order reinstating maintenance was reversed. Hutton v. Hutton, 118 S.W.3d 176, 2003 Ky. LEXIS 226 ( Ky. 2003 ).

Trial court erred when ruling on a motion to modify a maintenance obligation in limiting its consideration to the changes in circumstance that had occurred since the wife’s first motion to modify the maintenance obligation had been denied; res judicata did not bar consideration of the changes occurring before the first motion was denied as no modification was made. Wheeler v. Wheeler, 154 S.W.3d 291, 2004 Ky. App. LEXIS 84 (Ky. Ct. App. 2004).

Absent a specific statement in the written agreement or in the decree that maintenance will not terminate upon the death of either party or the obligee’s remarriage, the occurrence of one of those statutory contingencies terminates the maintenance obligation by operation of law pursuant to KRS 403.250(2). Messer v. Messer, 134 S.W.3d 570, 2004 Ky. LEXIS 111 ( Ky. 2004 ).

As a decree incorporating the parties’ separation agreement was silent as to whether the former husband’s duty to pay his former wife periodic maintenance terminated on her remarriage, such remarriage terminated his maintenance obligation by operation of Kentucky law pursuant to KRS 403.250 . Messer v. Messer, 134 S.W.3d 570, 2004 Ky. LEXIS 111 ( Ky. 2004 ).

KRS 403.250 allows modification to a divorce decree only where there had been a change in circumstances subsequent to the immediate effects of the divorce decree; the apparent reduction in a party’s income that is the direct result of a deduction of income from maintenance is not a change in circumstances. The decrease in the husband’s income was the result of the divorce decree, not some change in circumstances that arose after the maintenance obligation came into effect. Rayborn v. Rayborn, 185 S.W.3d 641, 2006 Ky. LEXIS 41 ( Ky. 2006 ).

An open-ended maintenance award may be modified by only two methods: (1) agreement of the parties pursuant to a separation agreement, or (2) changed circumstances so substantial and continuing as to make the terms of the award unconscionable. Consequently, the family court’s order subjecting the award to modification only if the wife’s financial situation improved is clearly contrary to the mandates of KRS 403.250(1). Massey v. Massey, 220 S.W.3d 700, 2006 Ky. App. LEXIS 276 (Ky. Ct. App. 2006).

Where separation agreement provided that if the former wife cohabitated with an unrelated man the family court could entertain the former husband’s motion to modify maintenance under KRS 403.250 , and since the wife’s relationship with an unrelated man was a new “financial resource” for her, and the other factors outlined in Combs v. Combs, 787 S.W.2d 260, 1990 Ky. LEXIS 15 ( Ky. 1990 ), weighed in heavily favor of the husband, his maintenance obligation should have been terminated. Block v. Block, 252 S.W.3d 156, 2007 Ky. App. LEXIS 132 (Ky. Ct. App. 2007).

Circuit Court did not err in terminating a former wife’s maintenance due to her cohabitation with a non-relative because the maintenance award clearly contemplated future modification consistent with KRS 403.250(1), and the Circuit Court made a specific evidentiary finding that the wife’s cohabitation relationship was inequitable and found the existence of changed circumstances sufficient to make the payment of maintenance unconscionable. Castle v. Castle, 266 S.W.3d 245, 2008 Ky. App. LEXIS 278 (Ky. Ct. App. 2008).

Family court did not have the authority to modify a husband’s maintenance obligations under a marital settlement agreement because its finding that it could modify the settlement agreement due to changed circumstances despite the presence of non-modification clauses was erroneous. Jaburg v. Jaburg, 558 S.W.3d 11, 2018 Ky. App. LEXIS 227 (Ky. Ct. App. 2018).

Decision to deny the husband’s motion to modify maintenance was not an abuse of discretion; the maintenance amount set in the separation agreement was a bargained-for exchange as the wife, who was disabled, waived her claim to the husband’s retirement accounts, and while he had some unemployment, he failed to show that his circumstances was anything other than temporary, not substantial and continuing, and he voluntarily created his exorbitant monthly expenses. His accumulation of debt was not directly related to his change in jobs. Andrews v. Andrews, 611 S.W.3d 271, 2020 Ky. App. LEXIS 82 (Ky. Ct. App. 2020).

17.— Unconscionable Terms.

Divorce litigation, whether terminated by judgment or agreement, is opened to subsequent modification if the party seeking modification can prove the terms of the judgment or agreement are unconscionable, and although subdivision (4)(b) of KRS 403.180 contains an exception to this principle, the purpose of that section is to expand rather than to limit the parties’ ability to settle. Brown v. Brown, 796 S.W.2d 5, 1990 Ky. LEXIS 87 ( Ky. 1990 ).

Trial court erred in reducing a husband’s maintenance obligation based on his former wife’s cohabitation; the Combs factors had to be applied to determine whether the new relationship constituted a new financial resource of the wife, such that there had been a change of circumstance under KRS 403.250(1) and such that the continuation of the husband’s maintenance obligation was unconscionable. While the wife’s living arrangements were a factor, they were not dispositive. Wheeler v. Wheeler, 154 S.W.3d 291, 2004 Ky. App. LEXIS 84 (Ky. Ct. App. 2004).

Changed circumstances rendering the terms of a maintenance award unconscionable is the only ground upon which a court has authority to modify any maintenance award; however, the clear language of Ky. Rev. Stat. Ann. § 403.250(1) prohibits a court from invoking this limited authority when the parties have a separation agreement pursuant to Ky. Rev. Stat. Ann. § 403.180(6) that expressly precluded subsequent modification of the terms of their separation agreement. Jaburg v. Jaburg, 558 S.W.3d 11, 2018 Ky. App. LEXIS 227 (Ky. Ct. App. 2018).

18.Income Tax.

Trial court did not exceed its authority by allowing ex-husband to modify his divorce decree by claiming the children as dependents since this tax break, which results in a cash savings, is an element of maintenance or support. Williams v. Williams, 554 S.W.2d 880, 1977 Ky. App. LEXIS 776 (Ky. Ct. App. 1977).

The fact that the husband was $3,520 in arrears in child support could be construed as rendering unconscionable a prior agreement allowing him to claim the children as income tax dependents. Mullins v. Mullins, 584 S.W.2d 601, 1979 Ky. App. LEXIS 432 (Ky. Ct. App. 1979).

19.Death of Parent.

A contract for child support entered into prior to the enactment of this section is a personal obligation which terminates at death in the absence of expression of an intention that the support shall continue beyond the death of the obligated party. Herring v. Moore, 561 S.W.2d 95, 1977 Ky. App. LEXIS 888 (Ky. Ct. App. 1977).

There was substantial evidence to support the trial judge’s findings that, under the circumstances, it was appropriate to revoke the support payments upon the death of the father, where, when the father died, the child, who was 16 years of age, became entitled to Social Security benefits of $341.10 per month, whereas the separation agreement provided for payments of $141.00 per month. Hamilton v. Hamilton, 598 S.W.2d 767, 1980 Ky. App. LEXIS 317 (Ky. Ct. App. 1980).

The death of the obligor is a statutory contingency the occurrence of which terminates the obligation to pay future maintenance unless the decree expressly provides that the occurrence of said contingency does not terminate the obligation. Clark v. Clark, 601 S.W.2d 614, 1980 Ky. App. LEXIS 336 (Ky. Ct. App. 1980).

Where decree did not specifically state that maintenance payments would continue after the payor’s death the obligation to pay future maintenance would be terminated upon the death of either party. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

20.Social Security Payments.

Social security payments may be considered by the trial court in determining whether to modify a support obligation, but that obligation is not necessarily satisfied in every case as to the amount of benefits received. Hamilton v. Hamilton, 598 S.W.2d 767, 1980 Ky. App. LEXIS 317 (Ky. Ct. App. 1980).

Trial judge’s finding that social security benefits were a set-off against child support was within the court’s discretion; to so find was not a “modification” as defined by this section, for the result was the same whether the child support credit was made pursuant to subsection (1) of this section, that is, a motion to modify child support, or whether it was made in defense of a motion for arrearage. Board v. Board, 690 S.W.2d 380, 1985 Ky. LEXIS 217 ( Ky. 1985 ).

Trial court was clearly erroneous in reducing a husband’s maintenance obligation by the amount of the wife’s Social Security benefits as 53 percent of the wife’s benefits were attributable to her earnings; as the maintenance obligation was established in 1979, the pre-1972 modification rules were applicable, and whether the maintenance obligation was subject to modification depended on application of KRS 403.180 and KRS 403.250 . Wheeler v. Wheeler, 154 S.W.3d 291, 2004 Ky. App. LEXIS 84 (Ky. Ct. App. 2004).

21.Life Insurance.

This statute constitutes a legislative change of the common law that developed prior to the adoption of the uniform act; thus, a trial court in Kentucky may order that life insurance be maintained by a parent obligated to pay child support. Graham v. Graham, 595 S.W.2d 720, 1980 Ky. App. LEXIS 303 (Ky. Ct. App. 1980).

22.Handicapped Child.

In the absence of a written agreement by the parties in a dissolution proceeding or express provision in the decree of dissolution, subsection (3) of this section (omitted by 1990 amendment; see KRS 403.213(3) for current law), terminates the obligation of a parent to support a child, only upon the child’s emancipation; as to a child who is not handicapped, KRS 405.020(1) mandates that emancipation occurs when such a child becomes 18 years of age, however, for a severely handicapped child, KRS 405.020(2) is controlling and provides that a wholly dependent child is not emancipated by operation of law at the time at which he becomes 18 years of age. Thus, under KRS 405.020(2) and subsection (3) of this section (omitted by 1990 amendment; see KRS 403.213(3) for current law), the Circuit Court retained and continued to retain jurisdiction over the support provisions of its decree of dissolution as they affected the parties’ wholly dependent handicapped child. Abbott v. Abbott, 673 S.W.2d 723, 1983 Ky. App. LEXIS 407 (Ky. Ct. App. 1983).

23.Sale of Residence.

The trial court abused its discretion in not ordering a sale of the marital residence pursuant to the terms of the property settlement agreement; refusing to order the sale pursuant to the agreement amounted to a modification without the entry of appropriate findings. Barnes v. Barnes, 772 S.W.2d 636, 1989 Ky. App. LEXIS 85 (Ky. Ct. App. 1989).

24.Pension.

In assigning pension benefits as marital or nonmarital property, the trial court must determine whether the pension has vested. There was no evidence to indicate whether or not vesting had occurred when the dissolution decree was entered. Wife argued that extraordinary circumstances existed in this case to justify reopening the dissolution decree but the trial court apparently did not believe that such compelling circumstances existed where nearly five years elapsed between the entry of the decree dissolving the parties’ marriage and the filing of wife’s motion and prior to that time, wife had several occasions to discuss marital assets with the domestic relations commissioner and the trial court, but failed to mention the pension plan. Fry v. Kersey, 833 S.W.2d 392, 1992 Ky. App. LEXIS 149 (Ky. Ct. App. 1992).

25.Lump Sum.

A lump sum maintenance award is not subject to modification under the provisions of subsection (1) of this section. Bishir v. Bishir, 698 S.W.2d 823, 1985 Ky. LEXIS 276 ( Ky. 1985 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

26.Fixed Amount Paid Over Definite Period.

A maintenance award in a fixed amount to be paid over a definite period of time is not subject to modification either before or after its termination date; to permit such awards to be modified would do nothing toward finalizing distasteful litigation and would certainly frustrate the purposes sought by KRS 403.110 . Dame v. Dame, 628 S.W.2d 625, 1982 Ky. LEXIS 233 ( Ky. 1982 ), overruled, Woodson v. Woodson, 338 S.W.3d 261, 2011 Ky. LEXIS 71 ( Ky. 2011 ).

In ordinary circumstances parties may continue to rely upon the finality of a lump sum maintenance award, but upon the occurrence of an event causing manifest inequity, the holding in Dame v. Dame, 628 S.W.2d 625, 1982 Ky. LEXIS 233 ( Ky. 1982 ), may not be used as a shield to prevent restoration of the underlying purpose of a decree, and the trial court may, under such circumstances, modify a lump sum maintenance award. Low v. Low, 777 S.W.2d 936, 1989 Ky. LEXIS 83 ( Ky. 1989 ).

A divorce decree awarding a fixed sum for “maintenance,” payable either in one distribution or in installments, may be modified under a showing of unconscionability. Baker v. Baker, 785 S.W.2d 261, 1989 Ky. App. LEXIS 153 (Ky. Ct. App. 1989).

Where marital settlement agreement called for stated sum of maintenance payment to ex-wife to be paid in installments over ten years without mention of possibility of ex-wife’s remarriage, ex-husband’s obligation to pay was fixed and vested at the time of its execution and was not affected by ex-wife’s remarriage. John v. John, 893 S.W.2d 373, 1995 Ky. App. LEXIS 5 (Ky. Ct. App. 1995), overruled in part, Messer v. Messer, 134 S.W.3d 570, 2004 Ky. LEXIS 111 ( Ky. 2004 ).

27.Future Adjustments.

Subsection (1) of this section provides the exclusive method for effecting a modification of an award of child support in those instances where the parent paying child support has not agreed to pay automatic increases based on a percentage of earnings; accordingly, court erred in providing for automatic annual adjustment of child support. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

The trial court has the authority to extend maintenance obligations beyond the life of the payor by express order; if the trial court orders maintenance until the death, remarriage, or cohabitation of the payee, then the payor’s obligation ends at his death, as there is no explicit order for the obligation to continue beyond the obligor’s death. Weldon v. Weldon, 957 S.W.2d 283, 1997 Ky. App. LEXIS 99 (Ky. Ct. App. 1997).

Without evidence as to when a payee spouse was of the age to receive Social Security or how much the spouse was to be eligible to receive, the circuit court’s order to stop all maintenance when the spouse was of the age to receive Social Security was arbitrary. It was better practice for the court to have entered an open-ended award that could have been reduced or eliminated. Naramore v. Naramore, 611 S.W.3d 281, 2020 Ky. App. LEXIS 104 (Ky. Ct. App. 2020).

28.Award Proper.

An award of maintenance to wife was not an abuse of discretion where the record indicated wife did not have an advanced education, had been a homemaker for the duration of the 18-year marriage, and suffered from a degenerative disease which limited or precluded her ability to work outside the home, even though she would receive a portion of the marital assets and may have been eligible for supplemental security income disability benefits. Calloway v. Calloway, 832 S.W.2d 890, 1992 Ky. App. LEXIS 140 (Ky. Ct. App. 1992).

29.Time of Taking Effect.

Even though the court has the power to modify a support judgment, the judgment will remain in effect as long as the parties acquiesce in it and any modification would take effect only from the time an application is made. Middleton v. Middleton, 235 Ky. 395 , 31 S.W.2d 615, 1930 Ky. LEXIS 373 ( Ky. 1930 ) (decided under prior law).

30.Past Due Payments.

A trial court cannot excuse past due accrued support payments. Burton v. Burton, 748 S.W.2d 166, 1988 Ky. App. LEXIS 60 (Ky. Ct. App. 1988).

31.Vesting of Unpaid Payments.

After a divorce judgment is entered, although it may be subject to modification at a subsequent date, it is binding and final until modified, and any payments which may have become due previous to such modification constitute a fixed and liquidated debt in favor of the judgment creditor against the judgment debtor. Distler v. Distler, 309 Ky. 454 , 218 S.W.2d 26, 1949 Ky. LEXIS 737 ( Ky. 1949 ) (decided under prior law).

A judgment for alimony is subject to modification but, until it is modified, it is binding and final so that installments vest when they become due and the court has no power to modify the decree as to them. Bailey v. Bailey, 294 S.W.2d 942, 1956 Ky. LEXIS 152 ( Ky. 1956 ) (decided under prior law).

Although a divorce judgment providing for monthly payments to support children of the parties is interlocutory in nature, it is binding and final until modified and any payments which have become due prior to modification constitute a fixed and liquidated debt in favor of judgment creditor against judgment debtor. Spencer v. Spencer, 312 S.W.2d 360, 1958 Ky. LEXIS 223 ( Ky. 1958 ) (decided under prior law).

The accrued sum of child maintenance delinquencies is a fixed and liquidated debt, and the court has no power to modify the judgment as to it. Dalton v. Dalton, 367 S.W.2d 840, 1963 Ky. LEXIS 32 ( Ky. 1963 ) (decided under prior law).

Unpaid periodical payments for maintenance of children become vested when due. Dalton v. Dalton, 367 S.W.2d 840, 1963 Ky. LEXIS 32 ( Ky. 1963 ) (decided under prior law).

While the court is without authority to modify or cancel vested rights in accruals of unpaid maintenance money, the matter of equitable and appropriate remedy and punishment for having previously failed to comply with court’s order is within the sound discretion of the court. Dalton v. Dalton, 367 S.W.2d 840, 1963 Ky. LEXIS 32 ( Ky. 1963 ) (decided under prior law).

32.Appeal of Original Award.

An appeal of an award of maintenance and child support does not deprive a trial court of jurisdiction over a motion for modification of that judgment pursuant to this section; however, to merit relief, a showing of a substantial and continuing change in condition is incumbent upon the moving party. Ogle v. Ogle, 681 S.W.2d 921, 1984 Ky. App. LEXIS 634 (Ky. Ct. App. 1984).

If it appears that a motion for modification under this section is merely an additional attack on maintenance and child support as originally granted, the trial court in its sound discretion may properly refuse to exercise jurisdiction during the pendency of an appeal of that same question. Ogle v. Ogle, 681 S.W.2d 921, 1984 Ky. App. LEXIS 634 (Ky. Ct. App. 1984).

33.Failure to Comply With Visitation Orders.

An obligation to pay child support cannot be suspended as a result of a failure of either the custodial parent or the child itself to comply with the trial court’s visitation orders. Stevens v. Stevens, 729 S.W.2d 461, 1987 Ky. App. LEXIS 486 (Ky. Ct. App. 1987).

34.Separation Agreement.

Wife's appellate claim that a trial court had no jurisdiction to modify a separation agreement without making Ky. R. Civ. P. 60.02 findings was not considered because the issue (1) was not raised in the trial court, and (2) did not concern subject-matter jurisdiction. Farrar v. Farrar, 2014 Ky. App. LEXIS 184 (Ky. Ct. App. Dec. 12, 2014), review denied, ordered not published, 2015 Ky. LEXIS 1908 (Ky. Sept. 24, 2015).

Subsection (1) of this section provides the exclusive method for modification of maintenance awards unless such modification is expressly precluded or limited by the parties’ separation agreement as incorporated in the decree of dissolution. Roberts v. Roberts, 744 S.W.2d 433, 1988 Ky. App. LEXIS 19 (Ky. Ct. App. 1988).

35.Child Support During Visitation.

The trial court could not excuse the father from paying child support for the four weeks in the summer that he had visitation with his two children. Burton v. Burton, 748 S.W.2d 166, 1988 Ky. App. LEXIS 60 (Ky. Ct. App. 1988).

36.Voluntary Modification.

Where without the assistance of counsel, and without reopening their divorce judgment pursuant to CR 60.02 or CR 60.03 the parties entered a written agreement modifying certain terms in their original Property Settlement Agreement, this modification, contained in a letter and signed and dated by both parties, was permissible, since under ordinary circumstances parties may settle their legal differences in a civil action by agreement, and this is so regardless of whether such settlement is entered into before the suit goes to trial or after a final judgment has been entered in the matter, and may be done without first consulting the court for permission. Brown v. Brown, 796 S.W.2d 5, 1990 Ky. LEXIS 87 ( Ky. 1990 ).

This section provides the method by which a party may seek court ordered modification or termination of provisions for maintenance, support and property disposition, but it nowhere specifies, expressly or implicitly, that such method is exclusive of the parties’ right to effect the same result by a voluntary, arms-length settlement if, when later contested, such a settlement is proved to the satisfaction of the trial court with reasonable certainty. Brown v. Brown, 796 S.W.2d 5, 1990 Ky. LEXIS 87 ( Ky. 1990 ).

37.Oral Agreement to Modify.

To be enforceable, an oral agreement to modify a child support obligation must be proved with reasonable certainty, and the court must find that the agreement is fair and equitable under the circumstances; the court must find that a modification might reasonably have been granted if a proper motion to modify the obligation under this section had been made at the time of the making of the oral agreement; therefore, where father, who carried the burden of proof presented no evidence or arguments concerning the reasonableness of the agreement the court should have granted wife’s motion to reduce the $7,918.40 arrearage in child support payments to judgment. Arnold v. Arnold, 825 S.W.2d 621, 1992 Ky. App. LEXIS 37 (Ky. Ct. App. 1992).

38.Res Judicata.

A divorce decree involving custody and alimony is not res judicata as to future allowances for maintenance for a child. Parks v. Parks, 209 Ky. 127 , 272 S.W. 419, 1925 Ky. LEXIS 442 ( Ky. 1925 ) (decided under prior law).

39.— Procedure.

Civil Rule 5.02 authorizes service of a motion for modification of a judgment relating to the allowance for the maintenance of children of divorced parents to be served by mail. Ullman v. Ullman, 302 S.W.2d 849, 1957 Ky. LEXIS 224 ( Ky. 1957 ) (decided under prior law).

Where father was not delinquent in his child support payments at the time he filed his motion for modification of the support order on the ground that he was unable to meet the obligation imposed due to a change in his physical and financial condition since the original order was issued, it was error for the court to summarily dismiss his motion without allowing him to submit proof, although at the time of the hearing he was in default. Knight v. Knight, 341 S.W.2d 59, 1960 Ky. LEXIS 61 ( Ky. 1960 ) (decided under prior law).

Where the appellant sought an increase in monthly child support payments and the appellee failed to file a brief on appeal, the failure to file the brief was treated as a confession or error and the increased payments were to be continued until and unless modified upon a proper showing. Smith v. Smith, 424 S.W.2d 573, 1968 Ky. LEXIS 457 ( Ky. 1968 ) (decided under prior law).

40.— Appeal.

Adjudications of the right to have child support payments increased or decreased are reviewable by the appellate court. Stone v. Stone, 275 S.W.2d 910, 1955 Ky. LEXIS 391 ( Ky. 1955 ) (decided under prior law).

A finding that a wife is not entitled to an increase in the allowance for support of a child will not be disturbed unless it is clearly erroneous. Stone v. Stone, 275 S.W.2d 910, 1955 Ky. LEXIS 391 ( Ky. 1955 ) (decided under prior law).

41.Foreign Child Support Decree.

This section authorizes a court of the Commonwealth to reopen a foreign child support decree if it can be reopened under the laws of the rendering state. Hall v. Hall, 585 S.W.2d 384, 1979 Ky. LEXIS 272 ( Ky. 1979 ).

An obligee may register a foreign support order with the circuit clerk, and after a foreign support order is registered, the obligee may seek modification in the Circuit Court pursuant to the standards of this section. Commonwealth ex rel. Ball v. Musiak, 775 S.W.2d 524, 1989 Ky. App. LEXIS 107 (Ky. Ct. App. 1989).

Cited:

Farmer v. Farmer, 506 S.W.2d 109, 1974 Ky. LEXIS 744 ( Ky. 1974 ); Scott v. Scott, 529 S.W.2d 656, 1975 Ky. LEXIS 60 ( Ky. 1975 ); Wilcher v. Wilcher, 566 S.W.2d 173, 1978 Ky. App. LEXIS 516 (Ky. Ct. App. 1978); Jackson v. Jackson, 571 S.W.2d 90, 1978 Ky. App. LEXIS 583 (Ky. Ct. App. 1978); Haley v. Haley, 573 S.W.2d 354, 1978 Ky. App. LEXIS 607 (Ky. Ct. App. 1978); Helm v. Helm, 48 B.R. 215, 1985 Bankr. LEXIS 6309 (Bankr. W.D. Ky. 1985 ); Lovett v. Lovett, 688 S.W.2d 329, 1985 Ky. LEXIS 218 ( Ky. 1985 ); Klopp v. Klopp, 763 S.W.2d 663, 1988 Ky. App. LEXIS 118 (Ky. Ct. App. 1988); Burke v. Sexton, 814 S.W.2d 290, 1991 Ky. App. LEXIS 92 (Ky. Ct. App. 1991); Bustin v. Bustin, 969 S.W.2d 697, 1998 Ky. LEXIS 94 ( Ky. 1998 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Hicks, Postminority Support for College Expenses A Moral and Legal Dilemma, Vol. 60, No. 4, Fall 1996, Ky. Bench & Bar 34.

Kentucky Law Journal.

Kentucky Law Survey, Wilson, Domestic Relations, 65 Ky. L.J. 383 (1976-77).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

Comments, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978-79).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Northern Kentucky Law Review.

Notes, Intangible Educational and Professional Attainments as Divisible Marital Property, 7 N. Ky. L. Rev. 145 (1980).

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.23; 1991 Supp., § 24.24.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.17, 25.18, 25.19, 25.22, 25.23, 25.25; 1991 Supp., § 25.25.

Petrilli, Kentucky Family Law, Separation Agreements, §§ 19.20, 19.21; 1991 Supp., § 19.22.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), §§ 27.4, 27.6, 27.8, 27.9, 27.10, 27.11.

Custody

403.260. Custody — Jurisdiction, commencement of proceedings. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 182, § 16; 1976, ch. 241, § 1) was repealed by Acts 1980, ch. 69, § 25, effective July 15, 1980.

403.270. Custodial issues — Best interests of child shall determine — Rebuttable presumption that joint custody and equally shared parenting time is in child’s best interests — De facto custodian.

    1. As used in this chapter and KRS 405.020 , unless the context requires otherwise, “de facto custodian” means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who within the last two (2) years has resided with the person for an aggregate period of six (6) months or more if the child is under three (3) years of age and for an aggregate period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period. (1) (a) As used in this chapter and KRS 405.020 , unless the context requires otherwise, “de facto custodian” means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who within the last two (2) years has resided with the person for an aggregate period of six (6) months or more if the child is under three (3) years of age and for an aggregate period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.
    2. A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian established in paragraph (a) of this subsection. Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section and KRS 403.280 , 403.340 , 403.350 , 403.822 , and 405.020.
  1. The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. Subject to KRS 403.315 , there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child’s welfare. The court shall consider all relevant factors including:
    1. The wishes of the child’s parent or parents, and any de facto custodian, as to his or her custody;
    2. The wishes of the child as to his or her custodian, with due consideration given to the influence a parent or de facto custodian may have over the child’s wishes;
    3. The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
    4. The motivation of the adults participating in the custody proceeding;
    5. The child’s adjustment and continuing proximity to his or her home, school, and community;
    6. The mental and physical health of all individuals involved;
    7. A finding by the court that domestic violence and abuse, as defined in KRS 403.720 , has been committed by one (1) of the parties against a child of the parties or against another party. The court shall determine the extent to which the domestic violence and abuse has affected the child and the child’s relationship to each party, with due consideration given to efforts made by a party toward the completion of any domestic violence treatment, counseling, or program;
    8. The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
    9. The intent of the parent or parents in placing the child with a de facto custodian;
    10. The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school; and
    11. The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent or de facto custodian, except that the court shall not consider this likelihood if there is a finding that the other parent or de facto custodian engaged in domestic violence and abuse, as defined in KRS 403.720, against the party or a child and that a continuing relationship with the other parent will endanger the health or safety of either that party or the child.
  2. The abandonment of the family residence by a custodial party shall not be considered where said party was physically harmed or was seriously threatened with physical harm by his or her spouse, when such harm or threat of harm was causally related to the abandonment.
  3. If the court grants custody to a de facto custodian, the de facto custodian shall have legal custody under the laws of the Commonwealth.

HISTORY: Enact. Acts 1972, ch. 182, § 17; 1978, ch. 86, § 1, effective June 17, 1978; 1978, ch. 369, § 1, effective June 17, 1978; 1980, ch. 158, § 1, effective July 15, 1980; 1992, ch. 169, § 2, effective July 14, 1992; 1998, ch. 250, § 1, effective July 15, 1998; 2000, ch. 14, § 51, effective July 14, 2000; 2004, ch. 133, § 42, effective July 13, 2004; 2018 ch. 198, § 1, effective July 14, 2018; 2021 ch. 132, § 1, effective June 29, 2021.

NOTES TO DECISIONS

Analysis

1.Applicability.

Alleged father was incorrect in asserting that he had standing pursuant to KRS 430.270 to file a petition in the Family Court seeking custody and support regarding a child that was born to a wife of another. KRS 430.270 did not govern whether a court had subject matter jurisdiction to determine custody of children in cases such as the alleged father’s case that did not involve a dissolution of marriage. J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ), overruled in part, J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

When a court is making its final and appealable custody decree, it must do so based on the best interests standard under KRS 403.270 . Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

When the choice of custodian is between non-parents, Kentucky courts seek the result that is in the best interests of the child. Kentucky courts have not expressed a preference for relatives in non-parent custody cases; therefore, a grandparent does not have an automatic advantage over another blood relative. Miller v. Harris, 320 S.W.3d 138, 2010 Ky. App. LEXIS 152 (Ky. Ct. App. 2010).

Ky. Rev. Stat. Ann. §§ 403.270 and 403.320 address separate stages of a custody dispute: the initial custody determination and modification of visitation or timesharing. For each of these stages, a different standard is established. Under § 403.270 , an initial determination of custody requires consideration of the best interests of the child, with a rebuttable presumption that joint custody and equal parenting time is in the child’s best interests. A modification of visitation or timesharing, governed by § 403.320 , on the other hand, requires that the change be in the best interests of the child, unless the modification is less than reasonable, in which case the physical, mental, moral, or emotional health of the child must be seriously endangered. Layman v. Bohanon, 599 S.W.3d 423, 2020 Ky. LEXIS 71 ( Ky. 2020 ).

Kentucky courts distinguish between an initial custody determination, which is governed by Ky. Rev. Stat. Ann. § 403.270 , and a modification of that decree, either under Ky. Rev. Stat. Ann. §§ 403.320 or 403.340 . For example, when a final custody decree has been entered and a relocation motion arises, any post-decree determination made by the court is a modification, either of custody or timesharing/visitation. If a change in custody is sought, § 403.340 governs. If it is only timesharing/visitation for which modification is sought, then § 403.320 either applies directly or may be construed to do so. Layman v. Bohanon, 599 S.W.3d 423, 2020 Ky. LEXIS 71 ( Ky. 2020 ).

Modification of visitation or timesharing is governed by Ky. Rev. Stat. Ann. § 403.320 , rather than the standard for an initial custody determination as set forth in Ky. Rev. Stat. Ann. § 403.270 . Accordingly, the recently added presumption of joint custody and equal parenting time in § 403.270 applies to custody determinations, but it does not apply to modifications of visitation or timesharing. Layman v. Bohanon, 599 S.W.3d 423, 2020 Ky. LEXIS 71 ( Ky. 2020 ).

1.5.Interpretation.

Court of Appeals erred in reversing a family court’s finding that a minor child’s maternal grandfather and his girlfriend were de facto custodians of the child because they were not precluded from being the child’s de facto custodians simply because they were an unmarried couple where the child had been living with them since she was eight months old, the statutory language did not limit a minor’s de facto custodian to one person, and use of “de facto custodians” in the plural did not represent a departure where the statute expressly allowed the court to deviate from the legislative definition of “de facto custodian” if the context required otherwise. Krieger v. Garvin, 584 S.W.3d 727, 2019 Ky. LEXIS 377 ( Ky. 2019 ).

Family court erred in finding that a maternal grandfather and his girlfriend qualified as de facto custodians of the subject child and awarding them permanent sole custody of her because the statutorily required period of the child’s residency with them, and dependency solely on the grandfather and his girlfriend for support, was not satisfied where there was never a continuous, untolled period of six months in which the child resided with the grandfather and his girlfriend that was not tolled by the mother’s efforts to regain custody, and he periods between the denials of the mother’s motions for custody and her renewals of those motions could not be aggregated to satisfy the six-month requirement. Garvin v. Krieger, 601 S.W.3d 481, 2020 Ky. App. LEXIS 32 (Ky. Ct. App. 2020).

2.Best Interest.

Overriding concern is child’s best interest, and trial judge’s decision regarding custody will not be reversed where there is no evidence that a custody decision is not in the child’s best interest. Eviston v. Eviston, 507 S.W.2d 153, 1974 Ky. LEXIS 665 ( Ky. 1974 ).

The test for determining custody of an infant child is the “best interest” of the child, and not the most suitable person to have custody. Casale v. Casale, 549 S.W.2d 805, 1977 Ky. LEXIS 411 ( Ky. 1977 ).

Agreement between parents as to which of them should have custody of minor child is not binding on the court which is at all times primarily concerned with the welfare of the child and thereafter concerned for the parents. Atwood v. Atwood, 550 S.W.2d 465, 1976 Ky. LEXIS 153 ( Ky. 1976 ).

In every custody proceeding the mental and physical health of all of the parties and whether the child is in an environment likely to endanger his physical, mental, moral or emotional health is of major importance. Atwood v. Atwood, 550 S.W.2d 465, 1976 Ky. LEXIS 153 ( Ky. 1976 ).

In determining whether to issue an injunction against a mother’s seeking to change the name of her children from that of their natural father the court should use the “best interest” test of subsection (1) (now subsection (2)) of this section. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

Only after a full hearing, at which all interested parties are given an opportunity to be heard, can the court determine if the mother’s proposed name change of her child is or is not in the best interest of the child; such a hearing is mandated by the requirements of due process. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

In child custody cases where the trial court conducts a nonjury trial pursuant to CR 52.01, the court must first consider all relevant factors, including those specifically enumerated under subsection (1) (now subsection (2)) of this section and then, as the ultimate or conclusory fact, determine the “best interests of the child”; it is mandatory that the facts be “specifically” found pursuant to CR 52.01. Stafford v. Stafford, 618 S.W.2d 578, 1981 Ky. App. LEXIS 256 (Ky. Ct. App. 1981).

The “best interests of the child” standard applies in determining custody of children born out of wedlock; gone is the preference for the mother of the illegitimate child. Basham v. Wilkins, 851 S.W.2d 491, 1993 Ky. App. LEXIS 1 (Ky. Ct. App. 1993). Unrelated holding superseded by statute as stated in Elery v. Martin, 4 S.W.3d 550, 1999 Ky. App. LEXIS 1 23 (Ky. Ct. App. 1999).

Where father made a motion for modification of joint physical custody under KRS 403.340 prompted by mother’s decision to relocate with the child to another state, and where father failed to allege that there was an inability or bad faith refusal of the parties to cooperate, the best interests of the child controlled and court intervention must be based on factors enumerated in this section. Mennemeyer v. Mennemeyer, 887 S.W.2d 555, 1994 Ky. App. LEXIS 138 (Ky. Ct. App. 1994), overruled, Scheer v. Zeigler, 21 S.W.3d 807, 2000 Ky. App. LEXIS 68 (Ky. Ct. App. 2000).

The best interests of the child standard is set out in this section and applies to a custody dispute between parents and requires that equal consideration shall be given to both parents. Shifflet v. Shifflet, 891 S.W.2d 392, 1995 Ky. LEXIS 8 ( Ky. 1995 ).

Application of equitable estoppel to paternity matters is in accord with the best interest test of KRS 403.270 applying to custody cases; it is in the best interest of children to prohibit fathers, who have previously represented that they were the children’s fathers, to disclaim fatherhood in order to avoid paying child support. S.R.D. v. T.L.B., 174 S.W.3d 502, 2005 Ky. App. LEXIS 220 (Ky. Ct. App. 2005).

Trial court erred in finding four months to be an unreasonable time for the mother to move to set aside a custody order, CR 60.02, as there was no absolute cutoff for filing a motion, and the trial court erred in awarding custody to the father without receiving evidence in support of its decision, KRS 403.270(2). Kerr v. Osborne, 305 S.W.3d 455, 2010 Ky. App. LEXIS 52 (Ky. Ct. App. 2010).

Paternal grandparents were properly awarded permanent custody of their grandson where a family court analyzed the factors under KRS 403.270 , 620.023 and determined that the award was in the child’s best interest because the grandparents provided the grandson with a stable and secure environment and had worked with the school and counselors to ensure he was receiving proper treatment; a mother had not sought return of the child since 2003, she failed to stop abuse she was aware of, she failed to obtain a court-ordered evaluation, she failed to seek counseling, and she threatened another child in her care. L.D. v. J.H., 350 S.W.3d 828, 2011 Ky. App. LEXIS 258 (Ky. Ct. App. 2011).

Family court erred in awarding custody of the mother’s children to their respective fathers because the family court failed to sufficiently consider and make findings related to the factors set forth in KRS 403.270(2). While the family court checked several boxes in its original form orders granting custody to the fathers addressing those factors, the family court did not include any additional findings upon which those rulings were based. N.L. v. W.F., 368 S.W.3d 136, 2012 Ky. App. LEXIS 80 (Ky. Ct. App. 2012).

Based on the history of the relationship of the parties, the fact that neither had an income and both parties relied on the charity and good will of other people to survive, their support systems, and their lack of ties to the county, under KRS 403.270 , the child’s best interest would be served by allowing her to be relocated to Washington with her mother. Samson v. Samson, 377 S.W.3d 571, 2012 Ky. App. LEXIS 143 (Ky. Ct. App. 2012).

Court properly found it was in the child’s best interest to name the father as the residential parent because the mother tended to reject any challenge to the diagnosis of gender identity disorder for the child, dismissing medical opinions, and the record also reflected the mother’s history of seeking out diagnoses for the child from before she was even a year old. The court’s findings related both to the mother’s behavior, including her actions in dressing the child in boy clothing and giving her a boy haircut prior to visiting the first provider to diagnose her. Williams v. Frymire, 377 S.W.3d 579, 2012 Ky. App. LEXIS 161 (Ky. Ct. App. 2012).

Even if the appellate court were to assume that appellee had unequivocally decided to relocate to Kansas (rather than Missouri) with the parties' minor children, the exhibits referenced by the family court were too generalized to support a finding that moving to Kansas would be in the best interest of these children, who had very special needs. There was no testimony that utilization of the services in Kansas would actually be more beneficial to the children. Agnich v. Tyler, 520 S.W.3d 394, 2017 Ky. App. LEXIS 119 (Ky. Ct. App. 2017).

Family court failed to adequately address whether the parties' minor children's best interests would actually be served by relocating with appellee to another state. A finding that the move was in appellee's personal interest was not the same as a conclusion that the children's interests would be benefited. Agnich v. Tyler, 520 S.W.3d 394, 2017 Ky. App. LEXIS 119 (Ky. Ct. App. 2017).

Trial court fully considered all relevant evidence and the split custody determination was not an abuse of its discretion; the mother did not point to evidence casting doubt on the split custody arrangement, and while both parties had significant personal issues at the time of the filing of the divorce, they seemed to have resolved most of those issues when the final order was entered. Keith v. Keith, 556 S.W.3d 10, 2018 Ky. App. LEXIS 204 (Ky. Ct. App. 2018).

3.— Child’s Preference of Custodian.

Under subdivisions (1)(a) and (b) (now (2)(a) and (b)) of this section, the trial court’s award of custody to the mother was improper where the evidence showed, that both parents earnestly sought custody, but the mother’s wish was maternalistic in nature, and, that both children, ages 16 and 12 emphatically demanded to live with their father and unequivocally expressed a renunciation of their mother based on hostility and bitterness. Stafford v. Stafford, 618 S.W.2d 578, 1981 Ky. App. LEXIS 256 (Ky. Ct. App. 1981).

When children expressed a desire to resume visitation with the children’s mother, it was error to order such resumption because (1) the children’s wishes were only one factor to consider, and (2) substantial evidence did not show a resumption of visitation was in the children’s best interests. Oster v. Oster, 444 S.W.3d 460, 2014 Ky. App. LEXIS 128 (Ky. Ct. App. 2014).

4.—Interaction of Child with Family.

Under subdivision (1)(c) (now (2)(c)) of this section, the trial court’s award of custody to the mother was improper where the evidence showed that while there were no other siblings or another marriage to adjust to, the interaction and interrelationship of both children with their mother after she was awarded temporary custody, resulted in poor school grades, hostility, bitterness, violence, refusal of one child to eat, complaint from school authorities, and constant turmoil. Stafford v. Stafford, 618 S.W.2d 578, 1981 Ky. App. LEXIS 256 (Ky. Ct. App. 1981).

Award of joint custody, with primary physical custody to a father, was proper as: (1) a mother disregarded a child’s best interest under KRS 403.270 by pulling the child out of school and removing the child to Iowa without notification to the father; (2) the child had a strong relationship with the father, had had frequent interaction with the father’s extended family, and was adjusted within the community; and (3) it was proper to enter the award without the results of a home-study as the mother’s testimony that her live-in boyfriend had completed court-ordered alcohol counseling and did not drink around the home was less than candid as the boyfriend’s visitation with his own children was supervised since he had passed out while under house arrest while his children played unattended in a pool.. Frances v. Frances, 266 S.W.3d 754, 2008 Ky. LEXIS 258 ( Ky. 2008 ).

Family court properly refrained from conducting a retrospective best-interest-of-the-child analysis by considering whether, on balance, the new and developing bonds of Kansas family members outweighed the dilution of existing Kentucky familial relationships, or vice versa. Gonzalez v. Dooley, 614 S.W.3d 515, 2020 Ky. App. LEXIS 116 (Ky. Ct. App. 2020).

5.— Child’s Social Adjustment.

Under subdivision (1)(d) (now (2)(d)) of this section, the trial court’s award of custody to the mother was improper where the evidence showed that the children were maladjusted while under the temporary sole custody of their mother, which resulted in their being rebellious, getting poor grades in school, experiencing behavioral changes and becoming withdrawn in the community. Stafford v. Stafford, 618 S.W.2d 578, 1981 Ky. App. LEXIS 256 (Ky. Ct. App. 1981).

6.— Mental Condition of Parent.

In light of subdivision (1)(e) (now (2)(e)) of this section, the trial court improperly granted custody of children to the mother where the evidence showed, that the mother suffered from a weak mental health condition resulting in depression, obsession with sanitary conditions, exclusion of herself from the family, unequal treatment of the children, violence, and a dependency on prescribed drugs; thus, award of custody was a detriment to the mental and physical health of the children. Stafford v. Stafford, 618 S.W.2d 578, 1981 Ky. App. LEXIS 256 (Ky. Ct. App. 1981).

7.Dependency Hearings.

In order for a custody order to be a “custody decree,” within the meaning of KRS Chapter 403, it must be based on the standards set out in KRS 403.270(2). A permanency order in a dependency action, under KRS Chapter 620, can and ordinarily should satisfy this requirement. London v. Collins, 242 S.W.3d 351, 2007 Ky. App. LEXIS 462 (Ky. Ct. App. 2007).

8.Misconduct of Proposed Custodian.

When the misconduct of a proposed custodian is advanced as a factor in the determination of custody, evidence of such misconduct may be heard and received, but before giving any consideration to such misconduct, the court must conclude, in its reasonable discretion, that such misconduct has affected, or is likely to affect, the child adversely. If such a determination is made, the trial court may then consider the potential adverse effect of such misconduct as it relates to the best interests of the child. Krug v. Krug, 647 S.W.2d 790, 1983 Ky. LEXIS 229 ( Ky. 1983 ).

In determining child custody disputes a judge is not required to wait until the children have already been harmed before he can give consideration to the conduct causing the harm. Krug v. Krug, 647 S.W.2d 790, 1983 Ky. LEXIS 229 ( Ky. 1983 ).

Subsection (2) (now (3)) of this section did not intend to require the testimony of a child psychologist or a social worker that certain conduct had affected, or would adversely affect, the child as an absolute prerequisite to the consideration of the conduct by the trial judge. Krug v. Krug, 647 S.W.2d 790, 1983 Ky. LEXIS 229 ( Ky. 1983 ).

The standard to be used in consideration of misconduct on the part of the custodian is not whether it has affected the child but whether it is likely to adversely affect the child; if such a determination is made, the trial court may then consider the potential adverse effect of such misconduct as it relates to the best interests of the child. Powell v. Powell, 665 S.W.2d 312, 1984 Ky. LEXIS 217 ( Ky. 1984 ).

It was error to base an award of child custody to a father on a mother's past drug use and criminal history because (1) the court did not explain how the mother's past adversely affected the child's best interest or might do so in the future, and (2) nothing showed the mother displayed a pattern of substance abuse and related behavior at the time of the hearing making the mother unable to adequately care for the child and ensure the child's safety. Varney v. Bingham, 513 S.W.3d 349, 2017 Ky. App. LEXIS 36 (Ky. Ct. App. 2017).

9.Award to Adoptive Father.

In a child custody case, where the child’s natural mother and the child’s adoptive father each sought custody, and each was regarded as a fit parent, the court was required by subsection (2) of KRS 199.520 to ignore the fact of adoption, treat the father and mother equally, and make the decision as if the father were the natural father of the child; accordingly, a decision that the father should be granted custody, when made in consideration of the fact that the child was currently with the father and had lived with him for the longest period of time over the prior two (2) years, was in the best interest of the child under subsection (1) (now (2)) of this section. Davis v. Davis, 619 S.W.2d 727, 1981 Ky. App. LEXIS 275 (Ky. Ct. App. 1981).

The March 17, 1978, amendment to this section requires that each parent in a custody dispute be given equal consideration and appears to abrogate the tender years presumption. Jones v. Jones, 577 S.W.2d 43, 1979 Ky. App. LEXIS 374 (Ky. Ct. App. 1979).

10.Award to Father.

Where appellant-mother was 17, unemployed, drank excessively during which periods she ignored her child, lived with eight relatives in a four-room house lacking running water and toilet facilities, had moved three times since the parties’ separation during which time the child lost two (2) pounds in one month in her custody, while appellee-father, 22, paid medical bills of child and lived with his more affluent parents, it was no abuse of discretion to award custody to him. Jones v. Jones, 577 S.W.2d 43, 1979 Ky. App. LEXIS 374 (Ky. Ct. App. 1979).

Where the wife was the stepmother of the husband’s child, and admitted she could not prove the husband to be unfit as a parent, the husband was entitled to custody of his son as a matter of law. Simpson v. Simpson, 586 S.W.2d 33, 1979 Ky. LEXIS 281 ( Ky. 1979 ).

Where in a child custody action the choice lay between placing custody with a father who had previously had custody of the children and who proposed to keep them, as he had before, in the home of the grandparents which the trial court concluded to be a wholesome environment and a desirable place for the children to be reared, or placing custody with the mother who saw nothing wrong in engaging in a number of extramarital affairs over a continuing period, who carried on a lurid clandestine correspondence while married with an imprisoned felon, not her husband, and who commenced to cohabit with the prisoner in the home where the children resided after he was released from prison, the trial judge did not abuse his discretion in determining that the environment of the children around the mother was quite suspect and that the best interests of the children would be served by granting custody to the father. Krug v. Krug, 647 S.W.2d 790, 1983 Ky. LEXIS 229 ( Ky. 1983 ).

Where the trial court elected to accept the testimony of the two psychologists that the son needed a male role model, and various psychological tests performed and interviews taken supported the court’s finding on the child’s psychological needs, the trial court’s award of custody of the son to the father was not error. Poe v. Poe, 711 S.W.2d 849, 1986 Ky. App. LEXIS 1082 (Ky. Ct. App. 1986).

The Court of Appeals erred in reversing the trial court and awarding custody to the father solely based on a review of the psychological reports, where on the day of the trial, the trial judge had before it two psychological evaluations recommending that the father be awarded custody and after hearing the testimony for an entire trial day, the trial judge decided that the child was better off with the mother. Reichle v. Reichle, 719 S.W.2d 442, 1986 Ky. LEXIS 309 ( Ky. 1986 ).

Simply because the father might be working during part of the time the children were in his custody did not justify replacing him as the primary residential custodian; thus, under KRS 403.270(2), 403.320(3), the trial court did not err in denying the mother’s motion to alter, amend or vacate the order designating the father as the primary residential custodian. Rice v. Rice, 372 S.W.3d 449, 2012 Ky. App. LEXIS 111 (Ky. Ct. App. 2012).

Mother in a child custody modification case incorrectly claimed that the trial court failed to follow KRS 403.340(3) about finding that a change in circumstances had occurred, as the record showed that the trial court had made such findings. The trial court found that since the original custody order was entered in favor of the mother, the father had obtained increased visitation, that the younger daughter missed seeing an older daughter who had obtained the age of majority, and that the relationship between the mother and younger daughter had deteriorated, which not only showed changed circumstances existed, but supported a finding that the best interests of the youngest daughter, considering application of the relevant factors under KRS 403.340(3)(c), dictated that custody be changed from the mother to the father. Morgan v. Getter, 2013 Ky. App. LEXIS 43 (Ky. Ct. App. Feb. 22, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 517 (Ky. Ct. App. Feb. 22, 2013).

Circuit court properly awarded joint custody of the parties' child with the father as primary custodian because it was in the child's best interest where, inter alia, the mother had moved seven times since the parties' separation, forcing the child to change schools four times in one academic year, the father had a stable domestic life, a full-time employment history, and a steady income, and the mother was granted liberal and frequent visitation. Baize v. Peak, 524 S.W.3d 30, 2017 Ky. App. LEXIS 300 (Ky. Ct. App. 2017).

11.Preference for Mother.

The quantum of proof necessary to overcome the preference that the mother should be the custodian of children of tender years is a value judgment that must be decided on a case-by-case basis. Casale v. Casale, 549 S.W.2d 805, 1977 Ky. LEXIS 411 ( Ky. 1977 ). (Decision prior to 1978 amendment).

Where all things are equal, the preference is for the mother to have custody of a young child. Casale v. Casale, 549 S.W.2d 805, 1977 Ky. LEXIS 411 ( Ky. 1977 ). (Decision prior to 1978 amendment).

The March 17, 1978, amendment to this section requires that each parent in a custody dispute be given equal consideration and appears to abrogate the tender years presumption. Jones v. Jones, 577 S.W.2d 43, 1979 Ky. App. LEXIS 374 (Ky. Ct. App. 1979).

The only conclusion to be drawn from subsection (2) (now subsection (3)) of this section is that there must be proof that sexual misconduct of the parent affects the relationship of the parent to the child; otherwise, the evidence of such misconduct is irrelevant and should not be admitted into evidence, and where there was no showing or even a suggestion that the child was aware of the mother’s misconduct or that the relationship of the child and the mother was in any way affected by the incident, the testimony should have been excluded, without which the parties were in substantially equal positions with regard to fitness to have custody of the child, and the natural preference for the mother was in the best interest of the child. Moore v. Moore, 577 S.W.2d 613, 1979 Ky. LEXIS 219 ( Ky. 1979 ).

It was improper for a trial court to grant temporary custody and then permanent custody to the mother where it gave preference to the mother solely because she was the mother, since the legislature has eliminated the maternal preference standard through the readoption, effective in 1980, of subsection (1) (now subsection (2)) of this section, with the additional requirement that “equal consideration shall be given to each parent.” Stafford v. Stafford, 618 S.W.2d 578, 1981 Ky. App. LEXIS 256 (Ky. Ct. App. 1981).

12.Nonparents.

Trial court erred in denying the father's motion to dismiss the grandparents' de facto custodian petition where the dissolution proceedings between the father and mother tolled the Ky. Rev. Stat. Ann. § 403.270(1)(a) time period. Robison v. Theele, 461 S.W.3d 772, 2015 Ky. App. LEXIS 55 (Ky. Ct. App. 2015).

Trial court erred in granting custody to maternal grandparents where unstable mother was living in the same household and where father had good relationship with child, was financially secure, and was of more appropriate age. Bond v. Shepherd, 509 S.W.2d 528, 1974 Ky. LEXIS 583 ( Ky. 1974 ).

The rule is that not only must it be shown that the child’s welfare will be better served under the custody of the nonparent, but also it must be found that the parent is not a suitable custodian and neither this section nor KRS 403.340 modifies this principle. Chandler v. Chandler, 535 S.W.2d 71, 1975 Ky. LEXIS 6 ( Ky. 1975 ).

The fact that the trial court stated in the decree that father and the child were to live with the paternal grandparents did not make the case a parent/nonparent dispute; rather, the statement as to living arrangements did no more than expressly state the inherent power of the trial court; since this section requires the trial court to evaluate all relevant factors surrounding the child, the court must, in part, base its decision on the existing living conditions. Jones v. Jones, 577 S.W.2d 43, 1979 Ky. App. LEXIS 374 (Ky. Ct. App. 1979).

When the choice of custodian is to be made between a natural parent and a nonparent, the parent will prevail if all else is equal. Jones v. Jones, 577 S.W.2d 43, 1979 Ky. App. LEXIS 374 (Ky. Ct. App. 1979).

It must be shown that the child’s welfare is better served by placement with the nonparent and also that the parent is unfit. Jones v. Jones, 577 S.W.2d 43, 1979 Ky. App. LEXIS 374 (Ky. Ct. App. 1979).

Even though one party seeking custody was the maternal aunt of the child and the other party was a nonrelative, family court abused its discretion by refusing to hold a hearing to consider the merits of each party as to custody and to determine what was in the child’s best interests. Williams v. Phelps, 961 S.W.2d 40, 1998 Ky. App. LEXIS 6 (Ky. Ct. App. 1998).

Where parent has been declared unfit or has relinquished custody, a court shall determine custody between nonparents in accordance with the best interests of the child and the merits of each party as to custody, taking into consideration all relevant factors set out in the statute. Williams v. Phelps, 961 S.W.2d 40, 1998 Ky. App. LEXIS 6 (Ky. Ct. App. 1998).

The determination of de facto custodianship is a matter that must be addressed anew whenever the status is asserted, which is not to say that a prior finding of de facto custodianship has no bearing on a subsequent determination, nor is it to say that possession of the child is a necessary prerequisite to recognition of de facto custodian status; it is only to say that a finding of de facto custodianship does not thereafter conclusively persist and thereby give a de facto custodian an abiding right to participate in custody-related decisions affecting the child. Sullivan v. Tucker, 29 S.W.3d 805, 2000 Ky. App. LEXIS 83 (Ky. Ct. App. 2000).

Although the statute makes it clear that the court must determine de facto custodian status prior to considering custody modification, there is no statutory requirement that a separate hearing be held. French v. Barnett, 43 S.W.3d 289, 2001 Ky. App. LEXIS 42 (Ky. Ct. App. 2001).

A grandmother’s petition for custody complied with the general rules of pleading, and it was not necessary for her to specifically plead de facto custodian status. French v. Barnett, 43 S.W.3d 289, 2001 Ky. App. LEXIS 42 (Ky. Ct. App. 2001).

Foster parents may not use the de facto custodian statutes to challenge the custody of the Cabinet for Families and Children where the child at issue was placed with the foster parents by the cabinet. Swiss v. Cabinet, 43 S.W.3d 796, 2001 Ky. App. LEXIS 48 (Ky. Ct. App. 2001).

Nonparents are required to show not only that they have been the primary caregiver for the child, but also the primary financial supporter of the child, in order to prove de facto custodian status and, therefore, foster parents cannot show de factor custodian status where the Cabinet for Families and Children provided the primary financial support for the child. Swiss v. Cabinet, 43 S.W.3d 796, 2001 Ky. App. LEXIS 48 (Ky. Ct. App. 2001).

Trial court erred in determining that grandparents were the de facto custodians of a child because the grandparents had not met the one-year time requirement set forth by KRS 403.270(1)(a); the child had only been with the grandparents for ten months when they filed their petition for declaration of de facto custodian and permanent custody, and although only a few days passed between the filing of the parents’ motion to alter the decision and for further findings of fact and a ruling on the motion, those days did not count toward the de facto custodian time requirement. J.G. v. J.C., 285 S.W.3d 766, 2009 Ky. App. LEXIS 44 (Ky. Ct. App. 2009).

Where a mother and father had a child together, where the mother’s parents (maternal grandparents) contributed financially to the family, where the father was on active military duty, where the mother, as a precursor to instituting divorce proceedings, moved in with her parents, where the maternal grandparents filed a petition seeking custody and alleging that the child was their dependent, where the grandparents were granted temporary custody even though the child’s mother lived with them as well, where the mother commended an action for dissolution of marriage from the father, where her petition sought to regain custody of her son, where the father’s responsive pleading sought custody, and where the maternal grandparents intervened, the family court did not err in failing to recognize the grandparents as de facto custodians because the mother’s petition and the father’s response, motions, and his answer to the grandparent’s intervening complaint all occurred prior to the date upon which the grandparents might have become de facto custodians under KRS 403.270(1); because these occurrences were sufficient to justify the family court’s ruling that the maternal grandparents were not the primary caregivers for the statutory one-year period, the family court properly denied the grandparents standing to proceed as the child’s de facto custodians. Heltsley v. Frogge, 350 S.W.3d 807, 2011 Ky. App. LEXIS 100 (Ky. Ct. App. 2011).

Order granting a child’s great-aunt and great-uncle de facto custodian status and awarding them custody of the child pursuant to KRS 403.270 was error where the family court lacked subject matter jurisdiction to modify the final custody decree entered in another family court; not only were no affidavits presented to establish subject matter jurisdiction, the order at issue made clear that the circumstances existing when the child’s mother was awarded custody were the identical circumstances existing when the great-aunt and the great-uncle filed their petition for custody. Gossett v. Kelley, 362 S.W.3d 379, 2012 Ky. App. LEXIS 46 (Ky. Ct. App. 2012).

De facto custodians were not eligible for that status because they had not been a child's primary caregivers and financial supporters for six months before the mother sought to regain custody. Luu v. Murphy, 2014 Ky. App. LEXIS 169 (Ky. Ct. App. Oct. 17, 2014), review denied, ordered not published, 2015 Ky. LEXIS 55 (Ky. Feb. 11, 2015).

13.Name Changes.

The General Assembly has made it clear that the change of name of a child by a parent is not a “custody matter” for the purposes of this section. Exclusive jurisdiction for the change of name of a child is placed by KRS 401.020 in the District Court. Blasi v. Blasi, 648 S.W.2d 80, 1983 Ky. LEXIS 233 ( Ky. 1983 ).

A Circuit Court did not have the jurisdiction to require that a divorced parent petition a District Court in order to change the name of her infant child. Blasi v. Blasi, 648 S.W.2d 80, 1983 Ky. LEXIS 233 ( Ky. 1983 ).

During the marriage, appellee mother had been primarily responsible for the day-to-day rearing of the children; the trial court carefully considered each of the factors under KRS 403.270(2) in designating her as the primary residential custodian. The mother desired to have the children maintain a close connection to their father, while he tended to punish the children excessively and speak to them harshly; therefore, it was in the children’s best interests to continue residing primarily with their mother. Chappell v. Chappell, 312 S.W.3d 364, 2010 Ky. App. LEXIS 74 (Ky. Ct. App. 2010).

14.Joint Custody.

When joint custody is awarded under subsection (3) (now (5)) of this section and the parties subsequently disagree, neither KRS 403.340 nor KRS 403.350 applies, as those sections are applicable to modification of a sole custody award; instead, modification should be made anew under this section as if there had been no prior custody determination. Benassi v. Havens, 710 S.W.2d 867, 1986 Ky. App. LEXIS 1081 (Ky. Ct. App. 1986), overruled, Scheer v. Zeigler, 21 S.W.3d 807, 2000 Ky. App. LEXIS 68 (Ky. Ct. App. 2000).

Where the joint custody award provided for the children to spend one-half of the school year with their mother in Indiana, and one-half of the year with their father in Kentucky, essentially splitting the summer vacation in the same manner, and it appeared highly unlikely that the parents would be able to agree and cooperate with each other on such matters as the children’s education, health care, and religious training, joint custody was not in the best interest of the children. Hardin v. Hardin, 711 S.W.2d 863, 1986 Ky. App. LEXIS 1163 (Ky. Ct. App. 1986).

An arrangement of joint custody does not necessarily require absolute equal division of all matters. Erdman v. Clements, 780 S.W.2d 635, 1989 Ky. App. LEXIS 149 (Ky. Ct. App. 1989).

Although designating an arrangement as joint custody does not necessarily make it so, if the parties intended a joint custody arrangement at the time of their agreement it will be considered as such. Erdman v. Clements, 780 S.W.2d 635, 1989 Ky. App. LEXIS 149 (Ky. Ct. App. 1989).

Where both parents are found to be fit custodians but are unable to cooperate in a joint custody situation, the trial court should make a determination as to which is best suited to be sole custodian based upon the factors enumerated in this section. Erdman v. Clements, 780 S.W.2d 635, 1989 Ky. App. LEXIS 149 (Ky. Ct. App. 1989).

Where there has been an award of joint custody under this section, but parents are unable to cooperate, a hearing de novo should be held to determine custody as if no prior custody determination had been made. Erdman v. Clements, 780 S.W.2d 635, 1989 Ky. App. LEXIS 149 (Ky. Ct. App. 1989).

Joint custody is a natural progression of our no fault divorce concept (KRS 403.140(1)(c)), recognizing that both parties may be fit but not compatible to be married to each other. A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Chalupa v. Chalupa, 830 S.W.2d 391, 1992 Ky. App. LEXIS 93 (Ky. Ct. App. 1992).

Joint custody recognizes that, although one parent may have primary physical possession of the child, both parents share the decision making in major areas concerning the child’s upbringing, such as which school to attend, etc., a role traditionally enjoyed by both parents during the marriage. Chalupa v. Chalupa, 830 S.W.2d 391, 1992 Ky. App. LEXIS 93 (Ky. Ct. App. 1992).

In determining whether to award joint custody appropriate consideration of subsection (1) (now subsection (2)) of this section may reveal the result which would be in the child’s best interest; thereafter, a trial court should look beyond the present and assess the likelihood of future cooperation between the parents. Squires v. Squires, 854 S.W.2d 765, 1993 Ky. LEXIS 71 ( Ky. 1993 ).

Just as it is impermissible to prefer one parent over the other based on gender, it is now impermissible to prefer sole custody over joint custody. In every case the parties are entitled to an individualized determination of whether joint custody or sole custody serves the child’s best interest. Squires v. Squires, 854 S.W.2d 765, 1993 Ky. LEXIS 71 ( Ky. 1993 ).

Joint custody must be accorded the same dignity as sole custody and trial court must determine which form would serve the best interest of the child. Squires v. Squires, 854 S.W.2d 765, 1993 Ky. LEXIS 71 ( Ky. 1993 ).

The General Assembly, through this section, intended to inform courts of their option to award joint custody in a proper case without mandating its use in any case. Implicit in the authorization to award joint custody is that the court do so after becoming reasonably satisfied that for the child the positive aspects outweigh those which are negative. Squires v. Squires, 854 S.W.2d 765, 1993 Ky. LEXIS 71 ( Ky. 1993 ).

Parental agreement and willingness to cooperate at the time of the custody determination is not a condition precedent to an award of joint custody. Squires v. Squires, 854 S.W.2d 765, 1993 Ky. LEXIS 71 ( Ky. 1993 ).

Joint custody had to be accorded the same dignity as sole custody, trial courts had to determine which form would serve the best interest of the child, and, to ensure meaningful application of the best-interest standard in individual cases, the Legislature set forth numerous factors for a trial court to consider in its determination of what type of custody arrangement would best serve the child’s interests in KRS 403.270(2); in addition to these statutory considerations, the likelihood of future cooperation between parents regarding decisions pertinent to raising a child was a relevant factor in determining whether to award joint custody. Fenwick v. Fenwick, 114 S.W.3d 767, 2003 Ky. LEXIS 208 ( Ky. 2003 ), overruled in part, Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

When the General Assembly amended KRS 403.270 to authorize joint custody, the statutes that governed the modification of custody were already on the books, and, because the General Assembly took no steps to enact additional statutes governing modification of joint custody awards, the Legislature must have intended those prior provisions to apply equally to joint custody, and the General Assembly amended KRS 403.340 to expressly encompass joint custody modifications, KRS 403.340 (1), and this subsequent enactment further supported the conclusion that joint custody modification was to be governed by the custody modification statutes. Fenwick v. Fenwick, 114 S.W.3d 767, 2003 Ky. LEXIS 208 ( Ky. 2003 ), overruled in part, Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Where a wife disavowed the parties’ former Amish-like lifestyle at the time of the divorce, the circuit court did not abuse its discretion when it found that joint custody would not be in the children’s best interests since the husband would not be able to cooperate with the wife in reaching decisions affecting their children’s educational, religious, and medical needs. Gertler v. Gertler, 303 S.W.3d 131, 2010 Ky. App. LEXIS 6 (Ky. Ct. App. 2010).

Although the parties had difficulty co-parenting, the family court did not err in failing to award the wife sole custody of both children, as the family court observed that the parties were both genuinely concerned with their children's well being and expressed a willingness to participate in family therapy. Lambe v. Weber, 2014 Ky. App. LEXIS 177 (Ky. Ct. App. Nov. 14, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1053 (Ky. Ct. App. Nov. 14, 2014).

Family court’s determination regarding where the child was to sleep was an abuse of discretion because, at the time of the hearing, it was not supported by substantial evidence that allowing the child to sleep with the wife would have endangered his physical health or significantly impaired his emotional development. Gonzalez v. Dooley, 614 S.W.3d 515, 2020 Ky. App. LEXIS 116 (Ky. Ct. App. 2020).

Portion of the final custody order awarding joint custody was affirmed because the mother did not make any type of domestic violence allegation below, nor did she seek a domestic violence order, and parental cooperation was not a condition precedent for an award of joint custody. Carr v. Carr, 2022 Ky. App. LEXIS 23 (Ky. Ct. App. Mar. 18, 2022).

Portion of the final custody order as to parenting time was vacated because the circuit court failed to point to what factors led it to reach the conclusion that the presumption of equal parenting time had been rebutted. Carr v. Carr, 2022 Ky. App. LEXIS 23 (Ky. Ct. App. Mar. 18, 2022).

15.Factors Considered.

Custody decisions should be based on all the statutory factors and not just on psychological evaluations; it is an improper delegation of the statutory duty of the court to rely solely on the recommendations of psychologists. Reichle v. Reichle, 719 S.W.2d 442, 1986 Ky. LEXIS 309 ( Ky. 1986 ).

Trial court’s award of child custody to a wife was not clearly erroneous where: (1) medical and psychiatric experts recommended that the wife be given custody of the children, (2) the husband failed to recognize the medical and emotional needs of the children, (3) the children were unhappy during the second interview with the trial court and the court was told that the husband had threatened the son, and (4) at the third interview, the children told the court that the husband had screamed at them during his limited visitation, but the children’s demeanor had improved. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Trial court erred in dismissing a father’s motion to modify child custody without holding an evidentiary hearing; the trial court applied a version of the modification statute, KRS 403.340 , and the new version required that the trial court consider and to permit a change of custody based on the factors enumerated in KRS 403.270(2), the statute used in making initial custody decisions, and thus the trial court applied an incorrect standard in dismissing the motion. Fowler v. Sowers, 151 S.W.3d 357, 2004 Ky. App. LEXIS 331 (Ky. Ct. App. 2004).

Trial court did not employ the correct standard in its ruling which modified custody, as it did not consult KRS 403.340 , but instead decided the custody determination anew under KRS 403.270 as if there had been no permanent custody order in place. Crouch v. Crouch, 2005 Ky. App. LEXIS 191 (Ky. Ct. App. Sept. 2, 2005), aff'd, 201 S.W.3d 463, 2006 Ky. LEXIS 227 ( Ky. 2006 ).

Since this case is not about paternity but is about the custody rights between a husband and wife as they relate to a child born and raised within the confines of their marriage, an action to determine the paternity of a third party to a child born during a marriage between a husband and wife did not adjudicate the rights and duties of the husband, who was not a party to the case. The determination that the husband is not the child’s biological father does not mean the husband is without custody rights. Hinshaw v. Hinshaw, 2006 Ky. App. LEXIS 275 (Ky. Ct. App. Sept. 1, 2006), aff'd, 237 S.W.3d 170, 2007 Ky. LEXIS 216 ( Ky. 2007 ).

It was error for the trial court to consider unsworn testimony that was given during an earlier pre-trial proceeding and to deny admission of impeachment testimony related to the conclusions made by the husband’s expert in making a determination that the husband should have sole custody of the child. Gaskill v. Robbins, 2006 Ky. App. LEXIS 364 (Ky. Ct. App. Dec. 8, 2006), sub. op., 2006 Ky. App. Unpub. LEXIS 1101 (Ky. Ct. App. Dec. 8, 2006), aff'd in part, 282 S.W.3d 306, 2009 Ky. LEXIS 22 ( Ky. 2009 ).

Common law doctrine of equitable estoppel is applicable to custody cases. Hinshaw v. Hinshaw, 237 S.W.3d 170, 2007 Ky. LEXIS 216 ( Ky. 2007 ).

Award of sole custody to the wife was appropriate based on the fact that the wife had always been the child’s primary caregiver and even under the husband’s proposal for joint custody the child would continue to reside with the wife Lane v. Caudill-Lane, 2007 Ky. App. LEXIS 323 (Ky. Ct. App. Aug. 31, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 359 (Ky. Ct. App. Aug. 31, 2007).

In a divorce action, the family court erred under KRS 403.270(3) in awarding sole custody of the parties’ children to the husband; the decision relied heavily on the wife’s same-sex relationship as problematic without showing that the children were harmed or that their relationship with the wife was harmed. Maxwell v. Maxwell, 382 S.W.3d 892, 2012 Ky. App. LEXIS 223 (Ky. Ct. App. 2012).

16.—Residency.

Circuit court erred in designating the children's maternal grandfather as a de facto custodian because the children—all over the age of three—had lived with him less than seven months rather than the year required by statute, the nearly seven months the children were placed with the grandfather could not simply be tacked on to the nearly five years they lived with their maternal aunt, and the phrase “period of one year or more” had to be read to mean 12 continuous months—or more—not multiple periods of time adding up to or exceeding 12 months in the care of different people. Cherry v. Carroll, 507 S.W.3d 23, 2016 Ky. App. LEXIS 209 (Ky. Ct. App. 2016).

17.Mother’s Unfitness.

The type of evidence that is necessary to show unfitness on the part of the mother in this custody battle with a third party is: (1) Evidence of inflicting or allowing to be inflicted physical injury, emotional harm or sexual abuse; (2) moral delinquency; (3) abandonment; (4) emotional or mental illness; and (5) failure, for reasons other than poverty alone, to provide essential care for the children. Davis v. Collinsworth, 771 S.W.2d 329, 1989 Ky. LEXIS 42 ( Ky. 1989 ).

An order granting custody of a child born out of wedlock to the natural father in a proceeding subsequent to the paternity action was supported by substantial evidence where mother had a bipolar disorder which affected her ability to parent. Basham v. Wilkins, 851 S.W.2d 491, 1993 Ky. App. LEXIS 1 (Ky. Ct. App. 1993). Unrelated holding superseded by statute as stated in Elery v. Martin, 4 S.W.3d 550, 1999 Ky. App. LEXIS 1 23 (Ky. Ct. App. 1999).

Family court did not err in concluding that custody by children’s great uncle and aunt was in the children’s best interests because the record showed that the aunt and uncle had been married for more than 50 years and had two adult children and grandchildren, that they had lived in the same three-bedroom home that they had owed for 38 years, that they were retired but in good health, that neither had a criminal record or history of illegal drug or alcohol use, and that they were close to the children and had cared for them during various periods of their lives. In contrast, the grandmother had lived in public housing for the last eight years, had not held a paying job in the last two decades and relied upon public assistance for support, had no reliable transportation, had been married and divorced four times, had a long history of drug and alcohol abuse convictions, was of questionable health, and had repeatedly violated court orders by thwarting the aunt and uncle from having weekly telephone contact and weekend visitation with the children. Miller v. Harris, 320 S.W.3d 138, 2010 Ky. App. LEXIS 152 (Ky. Ct. App. 2010).

Family court erred by awarding custody of three minor children to their paternal grandparents because they did not qualify as de facto custodians under this statute, and they did not prove by clear and convincing evidence that a mother was unfit. Although the mother had been incarcerated and had a substance abuse problem, she was sober after her release from prison, she passed all drug tests, was working full-time, and she had the children for a significant period of time. Glodo v. Evans, 474 S.W.3d 550, 2015 Ky. App. LEXIS 147 (Ky. Ct. App. 2015).

18.Abandonment.

There can be no abandonment when the wife is forced to leave the home under threat of physical violence. Davis v. Collinsworth, 771 S.W.2d 329, 1989 Ky. LEXIS 42 ( Ky. 1989 ).

19.Sufficiency of Findings.

In a child custody award, the trial court’s simple statement “That the Respondent is the fit and proper person to have custody of the three minor children” was less than adequate and the court’s ruling was remanded for more specific findings. McFarland v. McFarland, 804 S.W.2d 17, 1991 Ky. App. LEXIS 21 (Ky. Ct. App. 1991).

Trial court erred in awarding sole custody of a child to the father because it did not conduct an evidentiary hearing and based its factual findings almost exclusively on a report filed by the guardian ad litem, whom the mother was not allowed to question. S.E.A. v. R.J.G., 470 S.W.3d 739, 2015 Ky. App. LEXIS 134 (Ky. Ct. App. 2015).

Only difference between the trial court's order and the father's proposed order in this custody case was the date for calculating child support, but many other concerns existed, including the stability of the father's living arrangements and where the child would be living and attending school if the father were the primary residential parent; these were factors to be addressed independently by the trial court when it reassessed the testimony. Retherford v. Monday, 500 S.W.3d 229, 2016 Ky. App. LEXIS 156 (Ky. Ct. App. 2016).

Custody decree making the mother the primary residential custodian and awarding the father timesharing which exceeded that specified in the model guidelines but was significantly less than 50/50 timesharing was affirmed where the inability of the parents to cooperate made a 50/50 timesharing arrangement impractical and problematic, and that lack of cooperation was sufficient to establish by a preponderance of the evidence that the best interest of child was best served by adopting an unequal timesharing arrangement. In essence, under either version of Ky. Rev. Stat. Ann. § 403.270(2), the circuit court properly exercised its discretion in determining that equal timesharing was not appropriate. Barnett v. White, 584 S.W.3d 755, 2019 Ky. App. LEXIS 109 (Ky. Ct. App. 2019).

Trial court’s decision not to award equal parenting time was affirmed where the trial court, after considering each of the factors set forth in Ky. Rev. Stat. Ann. § 403.270(2), was concerned with one child’s separation anxiety and well-being, and the distance the paternal grandparents lived from the husband supported a finding that he did not adequate family support. Little v. Little, 2021 Ky. App. Unpub. LEXIS 189 (Ky. Ct. App. Mar. 12, 2021).

20.De Novo Review.

In a nonconsensual modification situation where father failed to allege that there was an inability or bad faith refusal of the parties to cooperate, but instead was prompted to make his motion because the mother intended to relocate with the child to another state, the trial court did not have authority to make a de novo review of the physical custody issue pursuant to the decree and to modify the joint custody previously awarded simply because there was a joint custody decree in place. Mennemeyer v. Mennemeyer, 887 S.W.2d 555, 1994 Ky. App. LEXIS 138 (Ky. Ct. App. 1994), overruled, Scheer v. Zeigler, 21 S.W.3d 807, 2000 Ky. App. LEXIS 68 (Ky. Ct. App. 2000).

Where a trial court determines that one or both joint custodians of a minor cannot, or in bad faith will not, cooperate in rationally making decisions about their child’s upbringing, it should make a de novo determination as to custody in light of the child’s best interest and in accordance with the factors enumerated in the statute. Jacobs v. Edelstein, 959 S.W.2d 781, 1998 Ky. App. LEXIS 1 (Ky. Ct. App. 1998).

21.When Waiver of Custody Right is Required.

Before applying the best interests of the child standard that applies between parents, in a case where maternal grandmother jointly petitioned for custody with her daughter and daughter admitted that she was not at present suited for an award of custody but supported her mother in their joint petition for custody to the exclusion of the child’s natural father, the trial court must first find the father had made a waiver of his superior right to custody under KRS 405.020 . Greathouse v. Shreve, 891 S.W.2d 387, 1995 Ky. LEXIS 9 ( Ky. 1995 ).

When a child’s grandparents sought custody of the child, they had to demonstrate by clear and convincing evidence that the child’s father waived his superior right to the child’s custody, and, as the father paid child support for four years without a court order, visited the child, sought to intervene in the custody action filed by the grandparents and requested custody, and had a motion for visitation with the child pending when the grandparents filed for custody, this burden was not met because no voluntary and intentional surrender or relinquishment of the father’s known right to custody of his child was shown. Vinson v. Sorrell, 136 S.W.3d 465, 2004 Ky. LEXIS 151 ( Ky. 2004 ).

22.Modification.

Cohabitation of a custodial parent with an HIV-infected stepparent is, taken alone, sufficient grounds for modifying custody in favor of the non-custodial parent. Newton v. Riley, 899 S.W.2d 509, 1995 Ky. App. LEXIS 113 (Ky. Ct. App. 1995).

An attempt to modify joint custody must be examined de novo, pursuant to this section, which sets forth factors which must be considered by lower court in establishing a custodial arrangement, as an award of joint custody is the functional equivalent of no award at all since it does not change the custodial arrangement which existed during the marriage. Newton v. Riley, 899 S.W.2d 509, 1995 Ky. App. LEXIS 113 (Ky. Ct. App. 1995).

Absent an order in the decree or a provision in the agreement of the parties, a custodial parent is not required to seek court approval prior to moving to another location, and the court cannot modify a custody award over the objection of one party without first making a finding that there has been an inability or bad faith refusal of one or both parties to cooperate. Stroud, 9 S.W.3d 579, 1999 Ky. App. LEXIS 138 (Ky. Ct. App. 1999).

Trial court's decision to modify the parties' visitation and timesharing with their children and to have the children primarily reside in the area with one parent and to prohibit the other parent from relocating to Mississippi with the parties' two minor children was not an abuse of the court's discretion because the court conducted a thorough analysis of the evidence presented, applied the requisite statutory factors, and reached a conclusion supported by the evidence. A. G. v. T. B., 452 S.W.3d 141, 2014 Ky. App. LEXIS 162 (Ky. Ct. App. 2014).

Because the county domestic relations commissioner determined the parents would maintain joint custody of the child but effectively modified the custody arrangement, the commissioner had not considered the factors required under Ky. Rev. Stat. Ann. § 403.340(3) in rendering its recommendation. Further, it was unclear whether the commissioner made a finding that there was a change in circumstances warranting a modification as required by § 403.340(3). Although there may have been grounds for modifying the shared custody arrangement or awarding the father sole custody, the commissioner had not demonstrated that the § 403.340(3) requirements were met or that Ky. Rev. Stat. Ann. §§ 403.340(3)(a)–(f) and 403.270(2) were considered, and thus, the family court abused its discretion in effectively granting the father sole custody. Carver v. Carver, 611 S.W.3d 750, 2020 Ky. App. LEXIS 119 (Ky. Ct. App. 2020).

23.De Facto Custodian.

Trial court erred in holding that the former husband qualified as a de facto custodian with regard to the former wife’s two (2) minor children, neither of which was the natural child of the former husband, as the evidence did not show the former husband was their primary caregiver for a year as was required under KRS 403.270 to obtain de facto custodian status, even though the record did show that he provided some care to them and had a relationship with them. Consalvi v. Cawood, 63 S.W.3d 195, 2001 Ky. App. LEXIS 1258 (Ky. Ct. App. 2001).

When substantial evidence supported a trial court’s findings that individuals were the de facto custodians of children whose grandfather and step-grandmother had petitioned for their custody, under KRS 403.270(1)(a), because they were the primary caregivers and financial supporters of the children, who lived with them for over six (6) months, and the children were under three (3) years old, the trial court had to find the de facto custodians, as well as the children’s parents, were unfit or had relinquished their superior rights to custody before the grandfather and step-grandmother had standing to seek custody, because, under KRS 403.270(1)(b), the de facto custodians had the same standing as the children’s parents. Allen v. Devine, 178 S.W.3d 517, 2005 Ky. App. LEXIS 21 (Ky. Ct. App. 2005).

When substantial evidence supported a trial court’s findings that individuals were the de facto custodians of children whose grandfather and step-grandmother had petitioned for their custody, under KRS 403.270(1)(a), because they were the primary caregivers and financial supporters of the children, who lived with them for over six (6) months, and the children were under three (3) years old, once the children’s parents were found to be unfit, custody of the children had to be awarded to the de facto custodians, absent evidence the de facto custodians were unfit or had relinquished their superior rights to custody. Allen v. Devine, 178 S.W.3d 517, 2005 Ky. App. LEXIS 21 (Ky. Ct. App. 2005).

When substantial evidence supported a trial court’s findings that individuals were the de facto custodians of children whose grandfather and step-grandmother had petitioned for their custody, under KRS 403.270(1)(a), because they were the primary caregivers and financial supporters of the children, who lived with them for over six (6) months, and the children were under three (3) years old, the trial court abused KRS 403.270(3) by eliminating the de facto custodians from consideration to be awarded custody of the children due to factors not enumerated in KRS 403.270(2), for reasons that did not affect the custodians’ relationship with the children. Allen v. Devine, 178 S.W.3d 517, 2005 Ky. App. LEXIS 21 (Ky. Ct. App. 2005).

The family court did not abuse its discretion in awarding custody to the child’s grandmother and aunt. The grandmother and aunt were already the child’s physical custodians after findings of abuse and neglect had caused removal of the child from the home, so they were de facto custodians and were on equal footing with the father; therefore, the best interest standards under KRS 403.270(2) and KRS 620.023 were the proper guidelines and were properly applied to grant the grandmother and aunt permanent custody. B.C. v. B.T., 182 S.W.3d 213, 2005 Ky. App. LEXIS 281 (Ky. Ct. App. 2005).

Because a co-habitant failed to meet the statutory requirements of former KRS 403.420 and KRS 403.270 to be deemed a de facto custodian, and because the child was in the custody of the adoptive mother, the co-habitant lacked standing to claim custody. B.F. v. T.D., 194 S.W.3d 310, 2006 Ky. LEXIS 162 ( Ky. 2006 ).

Where the biological father of two (2) girls was not the wife’s husband, but rather her boss, with whom she had been having an extra-marital affair, the trial court should have denied a husband de facto custodian status as a matter of law; KRS 403.270 was unavailable to the husband since he was not the sole caregiver for the two (2) girls but rather provided for them alongside the natural parent. Boone v. Ballinger, 228 S.W.3d 1, 2007 Ky. App. LEXIS 133 (Ky. Ct. App. 2007).

There was sufficient evidence to support a trial court’s finding that de facto custodians waived their superior right to custody under circumstances in which the testimony at both an earlier trial and a hearing on remand showed that the de facto custodians never evinced desire for permanent custody of the children but maintained that they wanted at most temporary custody of the children. Allen v. Devine, 2007 Ky. App. LEXIS 159 (Ky. Ct. App. May 25, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 1129 (Ky. Ct. App. May 25, 2007), review denied, ordered not published, 2007 Ky. LEXIS 258 (Ky. Oct. 24, 2007).

Trial court erred in finding that the cousin of the deceased mother was a de facto custodian pursuant to KRS 403.270 (1)(a) and that she should retain permanent custody; the proceeding was not a dependency proceeding as to the father, the father was not represented by counsel, and there was no evidence taken, let alone evidence required to make the findings necessary to support an award of custody pursuant to KRS 403.270 . London v. Collins, 242 S.W.3d 351, 2007 Ky. App. LEXIS 462 (Ky. Ct. App. 2007).

Before the Family Court may determine custody as between the natural mother and the paternal grandparents using a best interests standard, it must first independently decide that the the grandparents are de facto custodians and therefore qualify for best interest standard. Checking boxes on a preprinted AOC-DNA-9 form does not provide the necessary support for such an assumption. Baker v. Combs, 248 S.W.3d 581, 2008 Ky. App. LEXIS 48 (Ky. Ct. App. 2008).

Since a mother’s former significant other was neither a biological nor adoptive parent of the mother’s child, and had not established that she was a de facto custodian, she had to prove either that the mother was unfit or had waived a superior right to custody; since she failed to prove waiver by clear and convincing evidence, she lacked standing to assert custody of the child. Pickelsimer v. Mullins, 2008 Ky. App. LEXIS 95 (Ky. Ct. App. Mar. 28, 2008), aff'd in part and rev'd in part, 317 S.W.3d 569, 2010 Ky. LEXIS 7 ( Ky. 2010 ).

Former significant other did not qualify as a de facto custodian under KRS 403.270 as she was never the primary caregiver or primary financial provider for the child. Pickelsimer v. Mullins, 2008 Ky. App. LEXIS 95 (Ky. Ct. App. Mar. 28, 2008), aff'd in part and rev'd in part, 317 S.W.3d 569, 2010 Ky. LEXIS 7 ( Ky. 2010 ).

A paternal aunt and uncle could not be considered de facto custodians of a minor child and therefore they had no superior right to the minor in a guardianship proceeding under KRS 387.032 because the de facto custodian statute, KRS 403.270 , did not apply to guardianship proceedings. McCary v. Mitchell, 260 S.W.3d 362, 2008 Ky. App. LEXIS 249 (Ky. Ct. App. 2008).

While the stepfather’s de facto custodian status was the basis for the trial court’s award of joint custody, the stepfather’s standing to participate in the custody proceedings was derived from his status as a joint custodian, and there was no requirement under Kentucky law that a non-parent who was granted custodial rights due to his or her designation as a de facto custodian had to maintain the de facto custodian status in order to maintain standing as a joint custodian; the adoptive parents failed to present any evidence to suggest that the stepfather’s status as joint custodian was not in the child’s best interest, as required by KRS 403.340 . Williams v. Bittel, 299 S.W.3d 284, 2009 Ky. App. LEXIS 241 (Ky. Ct. App. 2009).

Where a natural parent’s same-sex partner sought joint custody of a child they agreed to conceive through artificial insemination and parent together as a family, the trial court properly granted CR 60.02 relief regarding the parties’ agreed judgment of custody on grounds that it was based on falsified evidence and fraud because the partner could not be considered a de facto parent under KRS 403.270(1)(a) when the partner was co-parenting the child with the parent. Mullins v. Picklesimer, 317 S.W.3d 569, 2010 Ky. LEXIS 7 ( Ky. 2010 ), limited, S.R.V. v. J.S.B., 2020 Ky. App. LEXIS 127 (Ky. Ct. App. Dec. 4, 2020).

Parental grandparents met the requirement for de facto custodians under KRS 403.270 because a grandson had resided with the grandparents for more than 6 months, and intended compliance with a permanency plan with a goal of returning the grandson to his mother did not equate to a legal proceeding under KRS 403.270 ; the mother had taken no legal action to regain custody of the grandson since his initial removal, and she had not complied with the permanency plan. Notwithstanding the mother’s argument, the grandparents had standing under KRS 620.027 because they provided a stable environment for the grandson; the grandson’s mental health issues were due to his diagnosis, not due to a problem with the grandparents. L.D. v. J.H., 350 S.W.3d 828, 2011 Ky. App. LEXIS 258 (Ky. Ct. App. 2011).

Kentucky Legislature does not intend mere compliance with a permanency plan to equate to a legal proceeding under KRS 403.270 . L.D. v. J.H., 350 S.W.3d 828, 2011 Ky. App. LEXIS 258 (Ky. Ct. App. 2011).

Grandparents were properly found to be de facto custodians of a child under KRS 403.270 because the child resided with them for 4 1/2 years, and the grandparents provided food, clothes, and toys. It was not dispositive that a custody arrangement was temporary at the outset, and a six-week period that the child was in the possession of her father did not break the time period required for a de facto custodian. Kidd v. Combs, 2012 Ky. App. LEXIS 91 (Ky. Ct. App. June 15, 2012).

In a child custody case, because there was no statute or caselaw in the Commonwealth which suggested that the great-grandmother had to show that she derived income through her own employment which was used to support the child, the great-grandmother had standing to intervene as a de facto custodian under KRS 403.270 . S.S. v. Commonwealth, 372 S.W.3d 445, 2012 Ky. App. LEXIS 110 (Ky. Ct. App. 2012).

Trial court did not err in designating a mother’s adoptive parents de facto custodians of the mother’s special needs child because there was proof that the child lived with the mother’s adoptive parents for at least one year, satisfying the requirements of KRS 403.270(1)(a); the mother’s adoptive parents took the child to physical therapy appointments and administered the child’s medication. Ball v. Tatum, 373 S.W.3d 458, 2012 Ky. App. LEXIS 118 (Ky. Ct. App. 2012).

It was not error to determine that a child’s great aunt was the child’s de facto custodian because (1) the child continuously resided with the aunt, (2) the child’s parents provided no financial support, (3) the aunt ensured the child received all necessary medical care, and (4) the aunt was the primary financial supporter of the child. Spreacker v. Vaughn, 397 S.W.3d 419, 2012 Ky. App. LEXIS 246 (Ky. Ct. App. 2012), overruled, Meinders v. Middleton, 572 S.W.3d 52, 2019 Ky. LEXIS 142 ( Ky. 2019 ).

It was not error to determine that a child’s great aunt was the child’s de facto custodian, even though the aunt received government benefits for the child, because (1) there was no authority in the Commonwealth of Kentucky for withholding de facto status from a custodian receiving government financial support, and (2) evidence showed the government benefits supplemented what the aunt provided and that the benefits did not supplant the aunt’s primary support of the child. Spreacker v. Vaughn, 397 S.W.3d 419, 2012 Ky. App. LEXIS 246 (Ky. Ct. App. 2012), overruled, Meinders v. Middleton, 572 S.W.3d 52, 2019 Ky. LEXIS 142 ( Ky. 2019 ).

It was not error to determine that a child’s great aunt was the child’s de facto custodian because, inter alia, the child had resided with the aunt for one year or more, since the child’s mother’s response to the aunt’s custody petition did not toll this time period, under KRS 403.270(1)(a), as (1) the mother admitted the mother did not commence a separate action to regain custody of the child, and (2) CR 3.01 required the filing of a complaint with a court and the issuance of a summons to commence such an action, which did not occur. Spreacker v. Vaughn, 397 S.W.3d 419, 2012 Ky. App. LEXIS 246 (Ky. Ct. App. 2012), overruled, Meinders v. Middleton, 572 S.W.3d 52, 2019 Ky. LEXIS 142 ( Ky. 2019 ).

Trial court erred by designating two nonparents as de facto custodians of a minor child under KRS 403.270(1), because they were co-parenting with the mother and did not stand in the place of the natural parent. Brumfield v. Stinson, 368 S.W.3d 116, 2012 Ky. App. LEXIS 304 (Ky. Ct. App. 2012).

While the evidence supported a family court’s finding that an aunt was a child’s primary caretaker and satisfied the qualifications of de facto custodian, it failed to make the specific findings regarding the best interest of the child when it awarded custody to the aunt. Hicks v. Halsey, 402 S.W.3d 79, 2013 Ky. App. LEXIS 90 (Ky. Ct. App. 2013).

In a child custody case, it had to be determined whether a grandmother qualified as a de facto custodian or if the parents had been conclusively determined to be unfit; a mother had not waived her superior right to custody. Without such a determination, the grandmother did not have standing to proceed. Crews v. Shofner, 425 S.W.3d 906, 2014 Ky. App. LEXIS 41 (Ky. Ct. App. 2014).

Trial court properly overruled caregivers' petition to be declared de facto custodians of two minor children because they could not rely on the times during which the children's father and mother were seeking custody in different legal proceedings to meet the six-month period; because the dissolution proceedings were ongoing, that period could not be used to meet the six-month threshold, and when the periods were excluded the caregivers could not meet the minimum six-month period required. Jones-Swan v. Luther, 478 S.W.3d 392, 2015 Ky. App. LEXIS 161 (Ky. Ct. App. 2015).

Trial court erred when it denied caregivers' petition to be declared de facto custodians of two minor children on the basis that they did not have physical possession of the children when the petition was filed because they did not have to file the petition while the children are residing with them. Jones-Swan v. Luther, 478 S.W.3d 392, 2015 Ky. App. LEXIS 161 (Ky. Ct. App. 2015).

So long as the petitioners can establish that the children at issue resided with them for the required period of time, and that during such time they were the primary caregivers for, and financial supporters of, the children, they have satisfied the statute; they do not have to file the petition while the children are residing with them, and many of these disputes arise after the children have been removed from the possession of the individuals seeking to be declared de facto custodians. Jones-Swan v. Luther, 478 S.W.3d 392, 2015 Ky. App. LEXIS 161 (Ky. Ct. App. 2015).

Circuit court properly dismissed the foster parents' petition for de facto custody of a child where even though the child was with the biological father, their claims arose out of the Cabinet for Health and Family Services' placement of the child with them, and case law was clear that foster parents could not use Ky. Rev. Stat. Ann. § 403.270 to challenge the Cabinet's custody. Wells v. Toye, 2016 Ky. App. LEXIS 20 (Ky. Ct. App. Feb. 26, 2016), review denied, ordered not published, 2016 Ky. LEXIS 292 (Ky. June 8, 2016).

Grandmother had standing to bring a petition for custody and/or visitation because she was a person acting as a parent based on the fact that she helped the 15-year-old mother with the child after its birth; however, she was not a de facto custodian because her care did not supplant that of the mother's. Inter alia, the mother sought and received government benefits for the child, entered custody agreements, and held herself out as the child's custodian throughout several court proceedings. Chadwick v. Flora, 488 S.W.3d 640, 2016 Ky. App. LEXIS 67 (Ky. Ct. App. 2016).

Trial court erred by determining that an aunt met the criteria of a de facto custodian under this statute because, when a nonparent shared the parenting responsibility with a natural parent, the nonparent could not obtain this status; the aunt here was a paid child care provider for the father. Jones v. Jones, 510 S.W.3d 845, 2017 Ky. App. LEXIS 18 (Ky. Ct. App. 2017).

Family court committed reversible error as a matter of law by recognizing both a maternal grandfather and his girlfriend as de facto custodians of a child because they were an unmarried couple and the statute at issue only recognized a married couple as a "single unit," otherwise case law was clear that only one individual could qualify as a de facto custodian under the statute. Garvin v. Krieger, 2018 Ky. App. LEXIS 91 (Ky. Ct. App. Feb. 23, 2018), rev'd, 584 S.W.3d 727, 2019 Ky. LEXIS 377 ( Ky. 2019 ).

Period of time required for de facto custodian status under Ky. Rev. Stat. Ann. § 403.270 had to be one continuous period of time where the word “a” when used in the context of the phrase “a period of six months,” meant one single thing, and allowing a claimant to aggregate periods of time would have undermined the statute’s purpose. Meinders v. Middleton, 572 S.W.3d 52, 2019 Ky. LEXIS 142 ( Ky. 2019 ).

Parent’s right to raise his or her child is a fundamental constitutional right. And any process designed to take that right away should be fair and safeguard that right to the greatest extent possible. Therefore, the process by which a parent may toll the de facto time period should be simple and easy. In addition, it would be counter-intuitive to require a parent to file a separate custody action when an active custody case already exists. There are expenses associated with filing a new case, and those cases will most likely be joined for convenience anyway. Therefore, Spreacker v. Vaughn, 397 S.W.3d 419 (Ky. App. 2012), is overruled. Any direct participation in a child custody proceeding that demonstrates a parent’s desire to regain custody of their child is sufficient to toll the de facto time requirement under Ky. Rev. Stat. Ann. § 403.270 . Meinders v. Middleton, 572 S.W.3d 52, 2019 Ky. LEXIS 142 ( Ky. 2019 ).

Brother of a purported father did not qualify as a de facto custodian as he was granted custody only 14 days prior to the biological father’s first appearance, and the biological father not been found to be an unfit parent, his parental rights had not been terminated, and no dependency, neglect, or abuse proceedings or similar proceedings had been filed against him. Meinders v. Middleton, 572 S.W.3d 52, 2019 Ky. LEXIS 142 ( Ky. 2019 ).

Trial court’s ruling that the neighbors satisfied the requirements for de facto custody was not supported by substantial evidence, as it was clear that the mother and the neighbors, who provided care and financial support for the child, were at least co-parenting and the mother was present at more than a few doctor’s appointments. Kruger v. Hamm, 2019 Ky. App. LEXIS 84 (Ky. Ct. App. May 10, 2019), review denied, ordered not published, 2019 Ky. LEXIS 486 (Ky. Dec. 13, 2019).

Family court erred by precluding appellants from being considered as the primary financial providers for a mother’s biological children solely because the children received health insurance as a public benefit. Unless the insurance benefit was the sole support for the children, the benefit itself would not supplant appellants’ support, assuming the evidence established they provided primary support for the children. Lage v. Esterle, 591 S.W.3d 416, 2019 Ky. App. LEXIS 195 (Ky. Ct. App. 2019).

Family court properly denied appellant’s motion to be designated as a de facto custodian where the father had been paying child support since paternity was verified, an agreed order splitting custody between the mother and the father had been entered in September 2017, appellant did not move to intervene in the custody action until the following June and had never sought to be designated as a de facto custodian before that time, testimony established that the child spent a considerable amount of time at appellant’s son’s house, as well as her own house, and that her son and others collectively provided for the child’s financial support, not just appellant. Turner v. Hodge, 590 S.W.3d 294, 2019 Ky. App. LEXIS 197 (Ky. Ct. App. 2019).

Trial court erred in finding that the maternal grandmother qualified as a de facto custodian under Ky, Rev, Stat. Ann. § 403.270 where although she provided significant financial support for the child for at least a year, she conceded that the natural father made an effort to provide for the child and remain a presence in her life despite working long hours. Thus, the grandmother failed to present clear and convincing evidence that she was the primary caretaker and financial supporter of the child to the substantial exclusion of the father. Santiago v. Berry, 2021 Ky. App. LEXIS 21 (March 12, 2021).

Family court erred in awarding joint custody and primary residential custody of a mother’s minor child to the child’s paternal grandmother and in determining that she was child’s de facto custodian because, while the grandmother generously provided care and financial support to child for several years when child and the father were living with her, the mother continued to exercise her right to parenting time under the joint custody decree and to make decisions and to provide for child during her parenting time—in addition to providing some financial support for child’s needs incurred in Kentucky. Burgess v. Chase, 629 S.W.3d 826, 2021 Ky. App. LEXIS 86 (Ky. Ct. App. 2021).

24.Equitable Estoppel.

Although presumption of paternity was rebutted by DNA test results that showed that an ex-husband was not the father of a child, the doctrine of equitable estoppel precluded the mother from using that fact to challenge the ex-husband’s right to custody of the child where the mother had always represented to both the ex-husband and the world that the ex-husband was the child’s father and she had encouraged the development of a strong father-son relationship. Hinshaw v. Hinshaw, 237 S.W.3d 170, 2007 Ky. LEXIS 216 ( Ky. 2007 ).

25.Requirements of Written Order.

Order modifying custody and visitation was properly reversed because, although adequate findings were made by the trial court from the bench at the conclusion of the hearing, the trial judge’s duty was not satisfied until the findings were reduced to writing; the father’s argument that the trial court was not obligated to make written findings of fact when it ruled upon the mother’s motion was rejected. Keifer v. Keifer, 354 S.W.3d 123, 2011 Ky. LEXIS 149 ( Ky. 2011 ).

26.Privilege.

In a case alleging a violation of the Health Insurance Portability and Accountability Act by attorneys during a custody hearing, the statements and questions by attorneys were relevant to a custody hearing under KRS 403.270 . The statements made during a judicial proceeding were privileged and not subject to any action. Yeager v. Dickerson, 391 S.W.3d 388, 2013 Ky. App. LEXIS 7 (Ky. Ct. App. 2013).

27.Default Judgment.

Kentucky Court of Appeals adopts the majority view that expresses a strong preference against use of default judgments in custody matters, and holds as paramount above all other factors, including procedural considerations, the child’s best interest in custody matters; a full hearing to determine the child’s best interest and to adjudicate the other factors for custody awards or modification is a prerequisite to the entry of a default judgment. Therefore, a trial court erred by entering a default judgment in favor of a grandmother in a custody case where no hearing was conducted. Crews v. Shofner, 425 S.W.3d 906, 2014 Ky. App. LEXIS 41 (Ky. Ct. App. 2014).

Cited in:

Brown v. Brown, 510 S.W.2d 14, 1974 Ky. LEXIS 517 ( Ky. 1974 ); Crosier v. Hunt, 522 S.W.2d 453, 1975 Ky. LEXIS 137 ( Ky. 1975 ); Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ); Cherry v. Cherry, 634 S.W.2d 423, 1982 Ky. LEXIS 263 ( Ky. 1982 ); Surrogate Parenting Associates, Inc. v. Commonwealth, 704 S.W.2d 209, 1986 Ky. LEXIS 237 ( Ky. 1986 ); Stinnett v. Stinnett, 915 S.W.2d 323, 1996 Ky. App. LEXIS 17 (Ky. Ct. App. 1996); Diaz v. Morales, 51 S.W.3d 451, 2001 Ky. App. LEXIS 82 (Ky. Ct. App. 2001); Williams v. Williams, — S.W.3d —, 2002 Ky. App. LEXIS 2222 (Ky. Ct. App. 2002); Coffman v. Rankin, 260 S.W.3d 767, 2008 Ky. LEXIS 159 ( Ky. 2008 ); S.J.L.S. v. T.L.S., 265 S.W.3d 804, 2008 Ky. App. LEXIS 282 (Ky. Ct. App. 2008); Nelson County Bd. of Educ. v. Forte, 337 S.W.3d 617, 2011 Ky. LEXIS 53 ( Ky. 2011 ); Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ); Deleo v. Deleo, 533 S.W.3d 211, 2017 Ky. App. LEXIS 649 (Ky. Ct. App. 2017); May v. Harrison, 559 S.W.3d 789, 2018 Ky. LEXIS 438 ( Ky. 2018 ); Carr v. Carr, 2022 Ky. App. LEXIS 23 (Ky. Ct. App. Mar. 18, 2022).

Opinions of Attorney General.

One who knowingly violates a properly established custody and visitation order entered pursuant to Chapter 406 should be subject to prosecution under KRS 509.070 ; to differentiate between those visitation orders entered under Chapter 406 from those entered under this chapter or other chapters would establish an improper distinction between the children whom these orders cover. OAG 90-18 .

Research References and Practice Aids

Cross-References.

Permanent relative placement and custody order, concurrent jurisdiction of District Court with Circuit Court, KRS 620.027 .

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Kentucky Law Journal.

Comments, Paternal Custody of the Young Child Under the Kentucky No-Fault Divorce Act, 66 Ky. L.J. 165 (1977-78).

Comments, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978-79).

Bratt, Joint Custody, 67 Ky. L.J. 271 (1978-1979).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Leathers, Tomasi and Hunt, Civil Procedure, 70 Ky. L.J. 551 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Bruce, A Parent’s Rights Under the Fourteenth Amendment: Does Kentucky’s De Facto Custodian Statute Violate Due Process?, 92 Ky. L.J. 529 (2003).

Northern Kentucky Law Review.

Bratton, Joint Custody In Kentucky, 8 N. Ky. L. Rev. 553 (1981).

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Notes, Greathouse v. Shreve and Shifflet v. Shifflet: Maintaining the Status Quo in Custody Disputes Between Parents and Third Party Contestants, 23 N. Ky. L. Rev. 451 (1996).

Schlam, Third-Party Standing in Child Custody Disputes: Will Kentucky’s New “De Facto Guardian” Provision Help?, 27 N. Ky. L. Rev. 368 (2000).

Dowell and Baluchi, Kentucky Law Survey: A Survey of Recent Decisions Regarding Custody and Visitation Rights, 30 N. Ky. L. Rev. 1 (2003).

Kentucky Survey Issue: Article: A Biological Father’s Rights Extinguished, 37 N. Ky. L. Rev. 343 (2010).

Treatises

Treatises

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.4, 26.5, 26.6, 26.8, 26.11, 26.21; 1991 Supp., § 26.4.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.23.

403.280. Temporary custody orders.

  1. A party to a custody proceeding may move for a temporary custody order. The motion must be supported by an affidavit as provided in KRS 403.350 . The court may award temporary custody under the standards of KRS 403.270 after a hearing, or, if there is no objection, solely on the basis of the affidavits. If the parents or a de facto custodian joined under subsection (9) of this section present a temporary custody agreement and 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.
  2. Subject to KRS 403.315 , in making an order for temporary custody, there shall be a presumption, rebuttable by preponderance of evidence, that it is in the best interest of the child for the parents or a de facto custodian joined under subsection (9) of this section to have temporary joint custody and share equally in parenting time.
  3. If a deviation 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.
  4. Each temporary custody order shall include specific findings of fact and conclusions of law, except when the court confirms the agreement of the parties.
  5. Any temporary custody order shall address the circumstance in which physical possession of the child will be exchanged.
  6. Modification of a temporary custody order may be sought when there is a material and substantial change in the circumstances of the parents, de facto custodian, or child.
  7. If a proceeding for dissolution of marriage or legal separation is dismissed, any temporary custody order is vacated unless a parent or the child’s custodian moves that the proceeding continue as a custody proceeding and the court finds, after a hearing, that the circumstances of the parents and the best interests of the child require that a custody decree be issued.
  8. If a custody proceeding commenced in the absence of a petition for dissolution of marriage or legal separation under KRS 403.822(1)(a) or (b) is dismissed, any temporary custody order is vacated.
  9. If a court determines by clear and convincing evidence that a person is a de facto custodian, the court shall join that person in the action, as a party needed for just adjudication under Rule 19 of the Kentucky Rules of Civil Procedure.

History. Enact. Acts 1972, ch. 182, § 18; 1998, ch. 250, § 2, effective July 15, 1998; 2004, ch. 133, § 43, effective July 13, 2004; 2017 ch. 163, § 1, effective June 29, 2017; 2018 ch. 198, § 2, effective July 14, 2018; 2021 ch. 94, § 31, effective June 29, 2021.

NOTES TO DECISIONS

1.In General.

Orders entered pursuant to KRS 403.280 , such as pendente lite, interlocutory, or non-final orders, are temporary custody orders; the final decision about custody is the custody decree, and while it is immediately appealable, it is subject to modification at a later time under KRS 403.340 . The decree is the one that is final or appealable, meaning that it is a final order under CR 54.01 adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under CR 54.02. Frances v. Frances, 266 S.W.3d 754, 2008 Ky. LEXIS 258 ( Ky. 2008 ).

2.Father’s Petition.

Circuit Court which found that party petitioning for custody of four-year old child was the father and a fit and proper person to have custody should have granted custody to him without regard to the provisions of the Uniform Paternity Act. Sweat v. Turner, 547 S.W.2d 435, 1976 Ky. LEXIS 146 ( Ky. 1976 ).

So long as a father can produce reliable evidence that he is the father and that the best interest of the child would result, the putative father may petition the Circuit Court for custody without going through the formality of a paternity action in juvenile court. Sweat v. Turner, 547 S.W.2d 435, 1976 Ky. LEXIS 146 ( Ky. 1976 ).

3.De Facto Custodian.

Grandparents were properly named as de facto custodians, even though they did not petition a trial court for such a status and were not original parties to a custody action; the trial court was permitted to join the grandparents to the action, pursuant to KRS 403.280 . Kidd v. Combs, 2012 Ky. App. LEXIS 91 (Ky. Ct. App. June 15, 2012).

Trial court erred by determining that an aunt met the criteria of a de facto custodian under this statute because, when a nonparent shared the parenting responsibility with a natural parent, the nonparent could not obtain this status; the aunt here was a paid child care provider for the father. Jones v. Jones, 510 S.W.3d 845, 2017 Ky. App. LEXIS 18 (Ky. Ct. App. 2017).

Cited:

Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.3, 26.21.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.23.

403.290. Child: court may interview, court may seek advice of professional personnel.

  1. The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case.
  2. The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel upon request. Counsel may examine as a witness any professional personnel consulted by the court.

History. Enact. Acts 1972, ch. 182, § 19.

NOTES TO DECISIONS

1.Experts Retained by Parties.

The court is not limited by this section to hearing the testimony of only those professionals it elects to appoint; testimony of various experts retained by the parties is clearly admissible, so long as the expert testifying is qualified as such, and his or her testimony is relevant to the issues at hand. Poe v. Poe, 711 S.W.2d 849, 1986 Ky. App. LEXIS 1082 (Ky. Ct. App. 1986).

2.Psychological Tests.

Subsection (2) of this section does allow a court to order psychological tests of the child, as well as the parents, in order to assist in making the custody determination. The statute is permissive, not mandatory, and the professional’s conclusions are merely expert testimony, or evidence to be considered by the courts. Chalupa v. Chalupa, 830 S.W.2d 391, 1992 Ky. App. LEXIS 93 (Ky. Ct. App. 1992).

3.Record of In Camera Interview Required.

While, in the context of a child custody case, it was within the discretion of the trial court to conduct an in camera interview of the child in the absence of the parties and counsel, a record of such interview needed to be made so that the parties were afforded the subsequent opportunity to determine and contradict the accuracy of statements and facts given during the interview; the denial of a mother’s motion to unseal an in camera interview of the child was reversed. Couch v. Couch, 146 S.W.3d 923, 2004 Ky. LEXIS 238 ( Ky. 2004 ).

4.Failure to Conduct In Camera Interview.

Where the parties’ divorce was acrimonious, the trial court decided not to put the children in the middle of the child custody dispute. After reviewing an abundance of evidence about their relationships, the trial court did not abuse its discretion by not conducting an in-chambers interview of the children to hear their preferences on custody and visitation under KRS 403.290(1). Chappell v. Chappell, 312 S.W.3d 364, 2010 Ky. App. LEXIS 74 (Ky. Ct. App. 2010).

5.Guardian Ad Litem.

No CR 52.01 clear error occurred in a child custody modification case where the trial court ruled in favor of the father’s request for modification after it declined to allow the mother to examine the guardian ad litem (GAL), appointed to represent a younger daughter, about the guardian ad litem’s report. A GAL was not similarly situated to professional personnel under KRS 403.290 who could be examined, as a GAL was a licensed attorney who as an advocate was barred under SCR 3.130-1.6 from disclosing confidential information, would likely be called upon to do so in being questioned about the younger daughter, and would not otherwise be able to cite a SCR 3.130-3.7 exception against be called as a necessary witness. Morgan v. Getter, 2013 Ky. App. LEXIS 43 (Ky. Ct. App. Feb. 22, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 517 (Ky. Ct. App. Feb. 22, 2013).

Cited:

Brown v. Brown, 510 S.W.2d 14, 1974 Ky. LEXIS 517 ( Ky. 1974 ); Hardin v. Hardin, 711 S.W.2d 863, 1986 Ky. App. LEXIS 1163 (Ky. Ct. App. 1986); May v. Harrison, 559 S.W.3d 789, 2018 Ky. LEXIS 438 ( Ky. 2018 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Wiederstein, Closed Courtrooms and the Public’s Right of Access, Vol. 67, No. 4, July 2003, Ky. Bench & Bar 15.

Northern Kentucky Law Review.

Brantton, Joint Custody in Kentucky, 8 N. Ky. L. Rev. 553 (1981).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.19, 26.21.

403.300. Investigation: court may order in custody proceedings — Attorney to receive copy.

  1. In contested custody proceedings, and in other custody proceedings if a parent or the child’s custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by the friend of the court or such other agency as the court may select.
  2. In preparing his report concerning a child, the investigator may consult any person who may have information about the child and his potential custodial arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child’s custodian; but the child’s consent must be obtained if he has reached the age of 16, unless the court finds that he lacks mental capacity to consent. If the requirements of subsection (3) are fulfilled, the investigator’s report may be received in evidence at the hearing.
  3. The clerk shall mail the investigator’s report to counsel and to any party not represented by counsel at least 10 days prior to the hearing. The investigator shall make available to counsel and to any party not represented by counsel the investigator’s file of underlying data, and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (2), and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator and any person whom he has consulted for cross-examination. A party may not waive his right of cross-examination prior to the hearing.

History. Enact. Acts 1972, ch. 182, § 20.

NOTES TO DECISIONS

1.Submission of Written Report Required.

Trial court committed reversible error when it permitted social worker, in a child custody modification case, to testify without first submitting her written report to the court and counsel. Bond v. Bond, 887 S.W.2d 558, 1994 Ky. App. LEXIS 96 (Ky. Ct. App. 1994).

2.Investigators.

Although an investigator, pursuant to KRS 403.300(3), could be called to testify in a child custody modification case, the same was not true for a guardian ad litem (GAL), as the considerations were different. The trial court could disallow the GAL from testifying in the father’s case to modify the custody of the father and mother’s youngest daughter, as the GAL was appointed to act as an advocate for the youngest daughter, whereas the investigator would be testifying as to what the investigator learned in the case. Morgan v. Getter, 2013 Ky. App. LEXIS 43 (Ky. Ct. App. Feb. 22, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 517 (Ky. Ct. App. Feb. 22, 2013).

3.Admissibility of Report.

Family court properly denied a father’s request to be the primary residential custodian, but ordered additional parenting time for the father, because the court did not err in admitting and considering the friend-of-court’s statements concerning the mental health of the mother. Even assuming that the father was not given the opportunity to cross-examine the sources of the updated report, the court’s reliance upon the report did not require reversal as more than enough evidence supported the court’s conclusions as to the mother’s mental health. Greene v. Boyd, 603 S.W.3d 231, 2020 Ky. LEXIS 224 ( Ky. 2020 ).

First and second-level hearsay statements contained within investigative report of friend-of-court (FOC) that do not fall within a recognized hearsay exception are nonetheless admissible as evidence in a domestic custody proceeding when the notice and procedural requirements comply with statutory requirements. Family court’s appointment of an FOC to investigate and generate a report amounts to a determination that the FOC is sufficiently qualified to offer opinion evidence concerning the fitness of a parent and child’s custody arrangements. Greene v. Boyd, 603 S.W.3d 231, 2020 Ky. LEXIS 224 ( Ky. 2020 ).

Father had sufficient notice and an opportunity to cross-examine friend-of-court’s sources in report because, although the updated report was not filed at least 10 days before the bench trial, the family court appeared to have left the record open after the bench trial and allowed testimony of sources to be taken by deposition and submitted after the bench trial ended. The appellate court suspected that the court would have allowed the father to cross-examine the sources mentioned in the updated report during and even after the bench trial. Greene v. Boyd, 603 S.W.3d 231, 2020 Ky. LEXIS 224 ( Ky. 2020 ).

Cited:

Hardin v. Hardin, 711 S.W.2d 863, 1986 Ky. App. LEXIS 1163 (Ky. Ct. App. 1986).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Wilson, Domestic Relations, 65 Ky. L.J. 383 (1976-77).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, § 26.19.

403.310. Hearings: custody proceedings shall receive priority.

  1. Custody proceedings shall receive priority in being set for hearing.
  2. The court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court deems necessary to determine the best interests of the child.
  3. The court without a jury shall determine questions of law and fact. If it finds that a public hearing may be detrimental to the child’s best interests, the court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the court.
  4. If the court finds it necessary to protect the child’s welfare that the record of any interview, report, investigation, or testimony in a custody proceeding be kept secret, the court may make an appropriate order sealing the record.

History. Enact. Acts 1972, ch. 182, § 21.

NOTES TO DECISIONS

1.Discretion of the Court.

Although in most custody determinations the trial judge would prefer an oral evidentiary hearing, in his discretion the trial judge could determine that such a hearing is unnecessary. Dexter v. Spainhoward, 563 S.W.2d 474, 1978 Ky. App. LEXIS 478 (Ky. Ct. App. 1978).

Cited in:

Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.4, 26.19, 26.21.

403.315. Presumption that joint custody and equally shared parenting time is in best interest of child inapplicable if domestic violence order entered against a party.

When determining or modifying a custody order pursuant to KRS 403.270 , 403.280 , 403.340 , or 403.740 , the court shall consider the safety and well-being of the parties and of the children. If a domestic violence order is being or has been entered against a party by another party or on behalf of a child at issue in the custody hearing, the presumption that joint custody and equally shared parenting time is in the best interest of the child shall not apply as to the party against whom the domestic violence order is being or has been entered. The court shall weigh all factors set out in KRS 403.270 (2) in determining the best interest of the child.

HISTORY: 2018 ch. 198, § 5, effective July 14, 2018.

403.320. Visitation of minor child — Visitation rights of custodial relatives following termination of parental rights of others.

  1. A parent not granted custody of the child and not awarded shared parenting time under the presumption specified in KRS 403.270(2), 403.280(2), or 403.340(5) is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.
  2. If domestic violence and abuse, as defined in KRS 403.720 , has been alleged, the court shall, after a hearing, determine the visitation arrangement, if any, which would not endanger seriously the child’s or the custodial parent’s physical, mental, or emotional health.
  3. The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health.
  4. Under circumstances where the court finds, by clear and convincing evidence, it is in the best interest of the child, any relative, by blood or affinity, that was previously granted temporary custody pursuant to the provisions of KRS 620.090 may be granted reasonable noncustodial parental visitation rights by a Circuit Court or Family Court as an intervenor or by original action. Once the relative has been granted visitation pursuant to this subsection, those rights shall not be adversely affected by the termination of custodial or parental rights of an individual who has permanent custody of the child unless the court determines that termination of the visitation rights are in the best interests of the child. The action shall be brought in the county in which the temporary or permanent custody order was entered or where the child resides.

History. Enact. Acts 1972, ch. 182, § 22; 1992, ch. 169, § 3, effective July 14, 1992; 1992, ch. 414, § 1, effective July 14, 1992; 2013, ch. 79, § 1, effective March 22, 2013; 2018 ch. 198, § 3, effective July 14, 2018; 2021 ch. 94, § 32, effective June 29, 2021.

NOTES TO DECISIONS

Analysis

1.Nonparents.

This section does not prohibit the grant of visitation to nonparents who stand in loco parentis and are jurisdictionally capable of litigating custody. Simpson v. Simpson, 586 S.W.2d 33, 1979 Ky. LEXIS 281 ( Ky. 1979 ).

Where a nonparent alleges an in loco parentis relationship has been established in a jurisdictionally viable custody action, the court should hold a hearing to determine whether the granting of visitation privileges to the nonparent would be in the best interest of the child. Simpson v. Simpson, 586 S.W.2d 33, 1979 Ky. LEXIS 281 ( Ky. 1979 ).

A trial court as an incident to custody determination may grant visitation to nonparents if it is in the best interest of the child. Simpson v. Simpson, 586 S.W.2d 33, 1979 Ky. LEXIS 281 ( Ky. 1979 ).

2.Basis of Order.

The visitation rights ordered by the trial court were not clearly erroneous and unreasonable, even though it was evident that the basis for such an order was the fact that the husband was living with a woman to whom he was not married. Richie v. Richie, 596 S.W.2d 32, 1980 Ky. App. LEXIS 301 (Ky. Ct. App. 1980).

Ky. Rev. Stat. Ann. §§ 403.270 and 403.320 address separate stages of a custody dispute: the initial custody determination and modification of visitation or timesharing. For each of these stages, a different standard is established. Under § 403.270 , an initial determination of custody requires consideration of the best interests of the child, with a rebuttable presumption that joint custody and equal parenting time is in the child’s best interests. A modification of visitation or timesharing, governed by § 403.320 , on the other hand, requires that the change be in the best interests of the child, unless the modification is less than reasonable, in which case the physical, mental, moral, or emotional health of the child must be seriously endangered. Layman v. Bohanon, 599 S.W.3d 423, 2020 Ky. LEXIS 71 ( Ky. 2020 ).

Kentucky courts distinguish between an initial custody determination, which is governed by Ky. Rev. Stat. Ann. § 403.270 , and a modification of that decree, either under Ky. Rev. Stat. Ann. §§ 403.320 or 403.340 . For example, when a final custody decree has been entered and a relocation motion arises, any post-decree determination made by the court is a modification, either of custody or timesharing/visitation. If a change in custody is sought, § 403.340 governs. If it is only timesharing/visitation for which modification is sought, then § 403.320 either applies directly or may be construed to do so. Layman v. Bohanon, 599 S.W.3d 423, 2020 Ky. LEXIS 71 ( Ky. 2020 ).

Modification of visitation or timesharing is governed by Ky. Rev. Stat. Ann. § 403.320 , rather than the standard for an initial custody determination as set forth in Ky. Rev. Stat. Ann. § 403.270 . Accordingly, the recently added presumption of joint custody and equal parenting time in § 403.270 applies to custody determinations, but it does not apply to modifications of visitation or timesharing. Layman v. Bohanon, 599 S.W.3d 423, 2020 Ky. LEXIS 71 ( Ky. 2020 ).

Under Ky. Rev. Stat. Ann. § 403.320(3), the family court can modify the timesharing arrangement if it first finds that the modification was in the best interests of the children, or it could restrict timesharing (i.e., order a less than reasonable timesharing) if it first finds that the children’s physical, mental, moral or emotional health was seriously endangered. Layman v. Bohanon, 599 S.W.3d 423, 2020 Ky. LEXIS 71 ( Ky. 2020 ).

3.— Endangerment of Child.

Under subsection (1) of this section, the noncustodial parent has absolute entitlement to visitation unless there is a finding of serious endangerment of the child. No “best interests” standard is to be applied; denial of visitation is permitted only if the child is seriously endangered. Hornback v. Hornback, 636 S.W.2d 24, 1982 Ky. App. LEXIS 224 (Ky. Ct. App. 1982).

Noncustodial parent’s status as an inmate in a penal institution alone did not make visitation with his child inappropriate where there was no finding that the child would be endangered in any manner by visiting her father in prison. Smith v. Smith, 869 S.W.2d 55, 1994 Ky. App. LEXIS 7 (Ky. Ct. App. 1994).

Trial court erred in amending a domestic violence order (DVO) to include the couple’s minor child because the trial court erred in precluding appellant from presenting a witness who would testify that she changed the minor child after appellant returned him and before the mother returned and that she did not observe any burns or other injuries to the child; the trial court should have considered that evidence before concluding that appellant committed an act of domestic violence against his child. Abdur-Rahman v. Peterson, 338 S.W.3d 823, 2011 Ky. App. LEXIS 79 (Ky. Ct. App. 2011).

Trial court abused its discretion by restricting a parent's visitation rights with the parent's teenage child because the evidence was insufficient to establish that the child's welfare was endangered, in that, while a hair follicle of the parent tested positive for low level marijuana use twelve to fourteen months preceding the test, there was no evidence that the parent was using illegal drugs in front of the child. Ryan v. Ryan, 473 S.W.3d 637, 2015 Ky. App. LEXIS 141 (Ky. Ct. App. 2015).

4.Modification of Judgment.

In modifying a previous denial of visitation to allow visitation, there is no presumption, as in KRS 403.320(1), of entitlement to visitation because the child’s best interests must prevail, and when visitation has already been denied, the standard for modification is not serious endangerment but the best interests of the child. Oster v. Oster, 444 S.W.3d 460, 2014 Ky. App. LEXIS 128 (Ky. Ct. App. 2014).

Where the original decree dissolving her marriage temporarily excluded the natural mother from having any visitation with her children until she was certified to be mentally and emotionally stable at which time she could request that the court permit supervised visitation, and the mother did not appeal that judgment, a subsequent court order, which summarily modified the previous judgment in order to allow the mother to have visitation with her children, was improper in that since the previous order was unappealed, the court was bound to follow it as the law between the parties and not to consider a modification of visitation without a certification that the mother was mentally and emotionally stable. Hornback v. Hornback, 636 S.W.2d 24, 1982 Ky. App. LEXIS 224 (Ky. Ct. App. 1982).

As a decree granting or denying visitation may be modified, a trial court’s original finding that visitation was not in the best interest of the children at issue does not bar a later modification of that ruling. McNeeley v. McNeeley, 45 S.W.3d 876, 2001 Ky. App. LEXIS 64 (Ky. Ct. App. 2001).

Change in the primary residential custodian amounted to a modification of the joint custody arrangement (not visitation) because, under the new arrangement, the mother assumed the primary role in the minor day-to-day decisions concerning the children, was primarily responsible for providing a residence for the children, and assumed their normal routine care and control, and the Circuit Court’s order noted that the “parenting time” was “reversed” as was the child support obligation. Because it was a modification of custody, the Circuit Court was without jurisdiction to consider the motion since it was not supported by at least two (2) affidavits, as required by KRS 403.340(2). Crossfield v. Crossfield, 155 S.W.3d 743, 2005 Ky. App. LEXIS 4 (Ky. Ct. App. 2005).

Where a decree permitted review only of the parents’ “time-sharing arrangement,” not of the joint custody award, when the mother moved more than 150 miles from the county where the decree was entered, the trial court reversibly erred by modifying custody. Robinson v. Robinson, 211 S.W.3d 63, 2006 Ky. App. LEXIS 354 (Ky. Ct. App. 2006).

Practice of renaming visitation “shared time,” “time-sharing,” “parenting time,” or any other similar term, even as to joint custodians, will not affect the inherent nature of visitation nor the applicability of KRS 403.320 to modify it. Robinson v. Robinson, 211 S.W.3d 63, 2006 Ky. App. LEXIS 354 (Ky. Ct. App. 2006).

When a final custody decree has been entered and a relocation motion arises, any post-decree determination made by a court is a modification, either of custody or timesharing/visitation. If a change in custody is sought, KRS 403.340 governs, but if it is only timesharing/visitation for which modification is sought, then KRS 403.320 either applies directly or may be construed to do so. Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Visitation or time-sharing may be modified pursuant to KRS 403.320 , and custody may be modified pursuant to KRS 403.340 ; the distinction between a visitation/time-sharing motion and a custody motion has been explained by the Kentucky Supreme Court in Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ). The obvious problem is that parties often ask for one thing when they are actually seeking the other, due to the unique nature of their shared (joint) custody or split (sole) custody, and courts have struggled ever since the concept of joint custody emerged with what part physical or residential possession of the child plays in each type of custody; the first question on a custody modification is whether the motion actually seeks modification of custody or visitation/timesharing. Kelsay v. Carson, 317 S.W.3d 595, 2010 Ky. App. LEXIS 124 (Ky. Ct. App. 2010).

Order modifying custody and visitation was properly reversed because, although adequate findings were made by the trial court from the bench at the conclusion of the hearing, the trial judge’s duty was not satisfied until the findings were reduced to writing; the father’s argument that the trial court was not obligated to make written findings of fact when it ruled upon the mother’s motion was rejected. Keifer v. Keifer, 354 S.W.3d 123, 2011 Ky. LEXIS 149 ( Ky. 2011 ).

Under KRS 403.320 , an order modifying parenting time in favor of the father was appropriate as the mother’s school and work schedules inhibited her ability to spend sufficient time with the children, while the father participated in school activities, met with teachers, transported the children to and from games, and helped them with homework. Burton v. Burton, 355 S.W.3d 489, 2011 Ky. App. LEXIS 231 (Ky. Ct. App. 2011).

Simply because the father might be working during part of the time the children were in his custody did not justify replacing him as the primary residential custodian; thus, under KRS 403.270(2), 403.320(3), the trial court did not err in denying the mother’s motion to alter, amend or vacate the order designating the father as the primary residential custodian. Rice v. Rice, 372 S.W.3d 449, 2012 Ky. App. LEXIS 111 (Ky. Ct. App. 2012).

Court properly found it was in the child’s best interest to modify custody to the father because the mother tended to reject any challenge to the diagnosis of gender identity disorder for the child, dismissing medical opinions, and the record also reflected the mother’s history of seeking out diagnoses for the child from before she was even a year old. The court’s findings related both to the mother’s behavior, including her actions in dressing the child in boy clothing and giving her a boy haircut prior to visiting the first provider to diagnose her. Williams v. Frymire, 377 S.W.3d 579, 2012 Ky. App. LEXIS 161 (Ky. Ct. App. 2012).

Trial court's decision to modify the parties' visitation and timesharing with their children and to have the children primarily reside in the area with one parent and to prohibit the other parent from relocating to Mississippi with the parties' two minor children was not an abuse of the court's discretion because the court conducted a thorough analysis of the evidence presented, applied the requisite statutory factors, and reached a conclusion supported by the evidence. A. G. v. T. B., 452 S.W.3d 141, 2014 Ky. App. LEXIS 162 (Ky. Ct. App. 2014).

Family court did not clearly err in declining to release the children's therapy records in the context of a father's motion to modify visitation where case law did not create an automatic waiver of the children's psychiatrist-patient privilege, none of the exceptions to the privilege applied, and the family court had followed the procedure established by the parties for reviewing the children's records. Williams v. Williams, 526 S.W.3d 108, 2017 Ky. App. LEXIS 393 (Ky. Ct. App. 2017).

Reduction in a father’s timesharing was not an abuse of discretion because the reduction did not cause the father to have less than reasonable visitation, so the father’s time was not “restricted” as used in the relevant statute. French v. French, 581 S.W.3d 45, 2019 Ky. App. LEXIS 117 (Ky. Ct. App. 2019).

5.— Best Interest of Child.

Once a finding has been made that the children’s welfare is endangered, the court may not modify the judgment without finding that the best interests of the child are served. Hornback v. Hornback, 636 S.W.2d 24, 1982 Ky. App. LEXIS 224 (Ky. Ct. App. 1982).

Under subsection (2) of this section, a “best interests” of the child standard is required when a judgment is sought to be modified. In modifying a previous denial of visitation to allow visitation, there is no presumption, as in subsection (1) of this section, of entitlement to visitation; instead, the child’s best interests must prevail. Hornback v. Hornback, 636 S.W.2d 24, 1982 Ky. App. LEXIS 224 (Ky. Ct. App. 1982).

Although trial court’s order reducing father’s visitation privileges with his child did not “restrict” his visitation rights as that term is contemplated under subsection (3) of this section, the court’s modification was made without the requisite finding that the child’s best interest would be served by such a modification and was inappropriately used as punishment for his “piggy-backing” vacation time onto his regular weekend visitation; as a result, the trial court’s order was reversed and father’s original visitation restored. Kulas v. Kulas, 898 S.W.2d 529, 1995 Ky. App. LEXIS 97 (Ky. Ct. App. 1995).

Evidence supported a conclusion that placing the child with her mother was in the child’s best interests under KRS 403.320 because the father failed to supply the family court with assurances that his alcohol issues would not arise again after he had undergone repeated relapses in the last 18 months. Kelsay v. Carson, 317 S.W.3d 595, 2010 Ky. App. LEXIS 124 (Ky. Ct. App. 2010).

Family court properly denied an ex-wife’s motion to relocate with the divorced parties’ three minor children where three months was not an unreasonable time in which to file the ex-husband’s motion for a change of custody, given the motions filed and the amount of activity in the case, and where the family court had not clearly erred when it found that relocation was not in the best interests of the children. Carpenter-Moore v. Carpenter, 323 S.W.3d 11, 2010 Ky. App. LEXIS 170 (Ky. Ct. App. 2010).

Father’s motion seeking to make him the primary residential parent of a minor child should have been granted because the undisputed facts were more than sufficient to show that it was in the child’s best interest under KRS 403.320 where a mother failed to protect the child from an attack that occurred in the mother’s presence. Moreover, the mother failed to take the child for medical treatment until nearly midnight of the day following the attack. Caskey v. Caskey, 328 S.W.3d 220, 2010 Ky. App. LEXIS 219 (Ky. Ct. App. 2010).

When a mother sought resumption of visitation with the mother’s children, it was error to presume the mother was entitled to reasonable visitation, absent serious endangerment, under KRS 403.320(3), because, when visitation had been denied, the children’s best interests, not whether the children would be seriously endangered, controlled. Oster v. Oster, 444 S.W.3d 460, 2014 Ky. App. LEXIS 128 (Ky. Ct. App. 2014).

Even if the appellate court were to assume that appellee had unequivocally decided to relocate to Kansas (rather than Missouri) with the parties' minor children, the exhibits referenced by the family court were too generalized to support a finding that moving to Kansas would be in the best interest of these children, who had very special needs. There was no testimony that utilization of the services in Kansas would actually be more beneficial to the children. Agnich v. Tyler, 520 S.W.3d 394, 2017 Ky. App. LEXIS 119 (Ky. Ct. App. 2017).

Family court failed to adequately address whether the parties' minor children's best interests would actually be served by relocating with appellee to another state. A finding that the move was in appellee's personal interest was not the same as a conclusion that the children's interests would be benefited. Agnich v. Tyler, 520 S.W.3d 394, 2017 Ky. App. LEXIS 119 (Ky. Ct. App. 2017).

6.Burden of Proof.

The statute has created the presumption that visitation is in the child’s best interest for the obvious reason that a child needs and deserves the affection and companionship of both its parents; the burden of proving that visitation would harm the child is on the one who would deny visitation. Smith v. Smith, 869 S.W.2d 55, 1994 Ky. App. LEXIS 7 (Ky. Ct. App. 1994).

Husband was entitled to unrestricted reasonable visitation, not supervised visitation, because no finding was entered that unrestricted reasonable vitiation would seriously endanger the child; contrary to the trial court’s findings, there was no proof that the husband “frequently visited” pornographic websites, the wife proved only that the husband had done so on one night of their marriage, nor was their proof that the husband’s interest in pornography was “excessive.” Lane v. Caudill-Lane, 2007 Ky. App. LEXIS 323 (Ky. Ct. App. Aug. 31, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 359 (Ky. Ct. App. Aug. 31, 2007).

7.Jurisdiction.

It was error for the Circuit Court to dismiss for lack of subject matter jurisdiction a motion to enforce a pre-existing, valid order finding the custodial parent in contempt of court for failure to comply with the court’s previous orders regarding visitation, despite mother’s contention that the Kentucky court lost subject matter jurisdiction over the contempt action by virtue of the Uniform Child Custody Jurisdiction Act (UCCJA) (now the Uniform Child Custody Jurisdiction and Enforcement Act) and by virtue of her having left Kentucky with the child in 1988. Brighty v. Brighty, 883 S.W.2d 494, 1994 Ky. LEXIS 92 ( Ky. 1994 ).

8.Hearing.

A parent, even though incarcerated, is entitled to a hearing before his/her visitation rights can be denied. Alexander v. Alexander, 900 S.W.2d 615, 1995 Ky. App. LEXIS 118 (Ky. Ct. App. 1995).

A trial court erred in granting a motion by the father for visitation without holding a hearing to allow the mother to be heard on the subject of the harm to the children. McNeeley v. McNeeley, 45 S.W.3d 876, 2001 Ky. App. LEXIS 64 (Ky. Ct. App. 2001).

9.Standard Visitation Schedule.

A local rule of the 11th Judicial Circuit, which provided a standard visitation schedule, was problematic because it suggested that the standard visitation schedule should be deemed to be reasonable visitation unless a parent shows grounds for modifying it; such an interpretation conflicted with the statute, which requires the trial court to make findings regarding visitation based upon the facts of the particular case, and, therefore, the rule could not be interpreted as requiring a parent to prove grounds for modifying an existing visitation order. Drury v. Drury, 32 S.W.3d 521, 2000 Ky. App. LEXIS 127 (Ky. Ct. App. 2000).

When either party requests specific findings regarding visitation, the trial court must make a de novo determination of what amount of visitation is appropriate and enter a visitation order accordingly; the terms of a standard visitation schedule may be considered among all other options, but the trial court should not make any presumption in favor of a standard visitation schedule. Drury v. Drury, 32 S.W.3d 521, 2000 Ky. App. LEXIS 127 (Ky. Ct. App. 2000).

A trial court’s use of a standardized visitation schedule is not automatically grounds for reversal, even in a case involving an award of joint custody; rather, the court will only reverse a trial court’s determinations as to visitation if they constitute a manifest abuse of discretion or were clearly erroneous in light of the facts and circumstances of the case. Drury v. Drury, 32 S.W.3d 521, 2000 Ky. App. LEXIS 127 (Ky. Ct. App. 2000).

10.Custodial Evaluation.

Because neither party could afford to pay for a custodial evaluation, the trial court properly determined that it was not necessary and proceeded with the trial; accordingly, the trial court’s award of visitation to the father was not an abuse of discretion. T.A.N. v. M.J., 266 S.W.3d 251, 2008 Ky. App. LEXIS 298 (Ky. Ct. App. 2008).

11.Visitation Rights.

Family court erred in denying an incarcerated father visitation with his children because there was a statutory presumption that visitation was in the child's best interest, a maternal uncle could not act as the grandfather's “attorney-in-fact” inasmuch as such representation entailed the unauthorized practice of law, and his statements constituted inadmissible hearsay, and while domestic violence and abuse were alleged, the matter was not properly filed where there was no custody order in the paternity action, and should be filed where custody had been determined. Baldwin v. Mollette, 527 S.W.3d 830, 2017 Ky. App. LEXIS 467 (Ky. Ct. App. 2017).

Where custody was awarded to the father, the mother was entitled to visitation rights so long as such visits did not interfere with the father’s right to send the children to school or college if he so desired. Edwards v. Edwards, 64 S.W. 726, 23 Ky. L. Rptr. 1051 , 1901 Ky. LEXIS 561 (Ky. Ct. App. 1901) (decided under prior law).

An order awarding the custody of a child to the mother should provide that the father be permitted at reasonable times and places to visit the child. Barlow v. Barlow, 90 S.W. 216, 28 Ky. L. Rptr. 664 (1906) (decided under prior law). See McQueary v. McQueary, 181 Ky. 667 , 205 S.W. 769, 1918 Ky. LEXIS 592 ( Ky. 1918 ) (decided under prior law).

Divorced father should have right of visiting his child at reasonable times and places other than at the mother’s home, but this does not absolve him from his duty to continue his contributions towards its support during such short periods. Sowders v. Sowders, 286 Ky. 269 , 150 S.W.2d 903, 1941 Ky. LEXIS 263 ( Ky. 1941 ) (decided under prior law).

Where court awarded wife a divorce and custody of child with right of visitation by father, a subsequent order directing that child visit paternal grandparents every other Sunday in order that father, who was employed 175 miles away, might visit child when he could was not an abuse of discretion although father was able to make trip to parents’ home only very infrequently. Gaffeney v. Gaffeney, 311 Ky. 126 , 223 S.W.2d 583, 1949 Ky. LEXIS 1069 ( Ky. 1949 ) (decided under prior law).

Child’s aunt had standing because she had a substantial interest in the litigation by virtue of the January 2018 visitation order and since the mother sought to terminate the visitation, the aunt stood to be negatively impacted by a ruling adverse to her. F.E. v. E.B., 641 S.W.3d 700, 2022 Ky. App. LEXIS 14 (Ky. Ct. App. 2022).

12.— Failure to Provide For.

The failure of the trial court to provide visitation rights for the father in a divorce action was not erroneous when there was no showing that he had been denied such rights and the trial court could properly provide for any future violation of them. Peavy v. Peavy, 351 S.W.2d 869, 1961 Ky. LEXIS 182 ( Ky. 1961 ) (decided under prior law).

13.Friend-of-court’s Report.

Family court properly modified time-sharing to order additional parenting time for the father, because the court did not err in admitting and considering the friend-of-court’s statements concerning the mental health of the mother. Even assuming that the father was not given the opportunity to cross-examine the sources of the updated report, the court’s reliance upon the report did not require reversal as more than enough evidence supported the court’s conclusions as to the mother’s mental health. Greene v. Boyd, 603 S.W.3d 231, 2020 Ky. LEXIS 224 ( Ky. 2020 ).

Cited:

Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979); Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ); Deleo v. Deleo, 533 S.W.3d 211, 2017 Ky. App. LEXIS 649 (Ky. Ct. App. 2017).

Notes to Unpublished Decisions

1.Basis of Order.

Unpublished decision: Since the trial court did not adequately explain or support its reason for reducing the father’s visitation with the daughter at the time she turned age five, the visitation order that reduced his visitation with the daughter at that time had to be vacated and a new visitation order had to be entered; pursuant to statutory law, visitation could only be reduced if the trial court found that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health and the trial court made no such finding. Stewart v. Burton, 108 S.W.3d 647, 2003 Ky. App. LEXIS 159 (Ky. Ct. App. 2003).

Opinions of Attorney General.

If documentation, i.e., a court order, is on file with the child’s school instructing that the noncustodial parent has no visitation rights, shall not have access to the child during the school day, or shall have access to the child only during certain times which do not include the school day, then it is important that school officials act consistently with such court order. As a matter of local school district policy, the school should receive from the custodial parent a copy of the custody decree, so as to establish which parent has legal custody of the child, as well as any other written instructions regarding the child’s welfare. OAG 85-130 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Northern Kentucky Law Review.

Dowell and Baluchi, Kentucky Law Survey: A Survey of Recent Decisions Regarding Custody and Visitation Rights, 30 N. Ky. L. Rev. 1 (2003).

Treatises

Treatises

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.13, 26.21.

403.322. Custody, visitation, and inheritance rights denied parent convicted of felony sexual offense from which victim delivered a child — Waiver — Child support obligation.

  1. The Commonwealth recognizes that certain victims of sexual assault may conceive a child as a result of the sexual assault and may choose to bear and raise the child. The Commonwealth also recognizes that victims of a sexual assault who have elected to raise a child born as a result of the sexual assault, as well as that child, may suffer serious emotional or physical trauma if the perpetrator of the assault is granted parental rights with the child.
  2. Except as provided in subsection (3) of this section, any person who has been convicted of a felony offense under KRS Chapter 510, or a comparable offense from another jurisdiction, in which the victim of that offense has conceived and delivered a child, shall not have custody or visitation rights, or the rights of inheritance under KRS Chapter 391 with respect to that child.
  3. The adult mother of the child may waive the protection afforded under subsection (2) of this section regarding visitation and request that the court grant reasonable visitation rights with the child if paternity has been acknowledged.
  4. Unless waived by the mother, or a guardian of a minor mother or a de facto custodian of the child in the case of a minor mother, and, if applicable, the public agency substantially contributing to the support of the child, a court shall establish a child support obligation against the father of the child pursuant to KRS 403.211 .

History. Enact. Acts 2014, ch. 130, § 1, effective July 15, 2014; 2020 ch. 30, § 1, effective July 15, 2020.

403.325. Visitation denied parent convicted of homicide of other parent — Exception — Hearing required.

  1. Notwithstanding the provisions of KRS 403.320 , if a parent of a child is convicted of murder or manslaughter in the first degree of the other parent, a court shall not grant the convicted parent visitation rights with respect to that child unless the court, through a hearing, determines that visitation is in the child’s best interest.
  2. If the court later modifies a denial of visitation to grant visitation, the court shall do so only after a hearing which establishes that visitation is in the child’s best interest.
  3. In any hearing conducted under subsection (1) or (2) of this section:
    1. Jurisdiction shall lie with the Circuit Court of the county where the child resides; and
    2. The convicted parent, to obtain visitation, shall have to meet the burden of proving that visitation is in the child’s best interest.

History. Enact. Acts 2000, ch. 58, § 1, effective July 14, 2000.

Compiler’s Notes.

Section 2 of Acts 2000, ch. 58, effective July 14, 2000 read: “This Act may be cited as the Roxie Denkhoff Act.”

403.330. Judicial supervision of custody decree or agreement.

  1. Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing, including his education, health care, and religious training, unless the court after hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian’s authority, the child’s physical health would be endangered or his emotional development significantly impaired.
  2. If both parents or all contestants agree to the order, or if the court finds that in the absence of the order the child’s physical health would be endangered or his emotional development significantly impaired, the court may order the local probation, another appropriate local entity, or if currently involved in the case, the child welfare department to exercise continuing supervision over the case to assure that the custodial or visitation terms of the decree are carried out.

History. Enact. Acts 1972, ch. 182, § 23; 1998, ch. 338, § 1, effective July 15, 1998.

NOTES TO DECISIONS

1.Religious Education.

It was error in a supplemental decree to a divorce to allow a provision whereby the noncustodial parent could enroll the children in a Jewish day school where there was no agreement as to religious education and there was no finding that to allow the custodial parent to determine religious training would endanger physical health or impair emotional development. Wilhelm v. Wilhelm, 504 S.W.2d 699, 1973 Ky. LEXIS 37 ( Ky. 1973 ), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

2.Joint Custody Agreement.

This section was not applicable where the parties agreed that they would have joint custody of the children and specifically agreed to jointly make decisions involving their children’s education and health care needs. In this situation, the fact that mother had physical possession of the children did not accord her superior authority to determine how the children would be raised; although she was responsible for their day-to-day care while they were in her possession, major decisions affecting the children had to be made in concert with father. Burchell v. Burchell, 684 S.W.2d 296, 1984 Ky. App. LEXIS 576 (Ky. Ct. App. 1984).

Even when joint custody was awarded, a court could designate where the child would usually reside, and the court could make such other orders as were necessary to properly effectuate joint custody; joint custody envisioned shared decision-making and extensive parental involvement in a child’s upbringing, and in general served the child’s best interest. Fenwick v. Fenwick, 114 S.W.3d 767, 2003 Ky. LEXIS 208 ( Ky. 2003 ), overruled in part, Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

3.Mental Health Treatment.

This section provides that decisions as to the type of mental health treatment one of the children of the parties is “required” to receive are within the sole province of the custodial parent “unless the court after a hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian’s authority, the child’s physical health would be endangered or his emotional development significantly impaired.” Klopp v. Klopp, 763 S.W.2d 663, 1988 Ky. App. LEXIS 118 (Ky. Ct. App. 1988).

Where the basis for father’s motion for modification of a divorce decree wasn’t that the child did not need counseling for emotional problems but that he didn’t want to be responsible for the fees because he didn’t believe himself to be the “cause” of the problems, and his insurance would not cover the fees, and such treatment wasn’t “medical”-related did not state reasons having any bearing on the standard set forth in this section. Klopp v. Klopp, 763 S.W.2d 663, 1988 Ky. App. LEXIS 118 (Ky. Ct. App. 1988).

4.Church Service During Visitation.

Father’s motion to compel the mother to take the parties’ child to Sunday services at the father’s church during her visitation was properly denied because both parents retained rights to convey religious or other fundamental beliefs to their children; KRS 403.330 did not apply because this case did not involve the mother’s challenge of the father’s right to take the child to his church. Wireman v. Perkins, 229 S.W.3d 919, 2007 Ky. App. LEXIS 205 (Ky. Ct. App. 2007).

5.Sleeping Arrangements.

Family court’s determination regarding where the child was to sleep was an abuse of discretion because, at the time of the hearing, it was not supported by substantial evidence that allowing the child to sleep with the wife would have endangered his physical health or significantly impaired his emotional development. Gonzalez v. Dooley, 614 S.W.3d 515, 2020 Ky. App. LEXIS 116 (Ky. Ct. App. 2020).

Opinions of Attorney General.

The language of this section does not ban a noncustodial parent from inspection of his or her child’s educational records. Therefore, absent a court order or other legally binding document prohibiting a noncustodial parent from inspection of his or her child’s educational records, schools are free to allow such inspection; indeed if they wish to receive federal funds they are required to allow such inspection. OAG 90-52 .

This section does not ban a noncustodial parent from inspection of his or her child’s educational records nor does it require a school to allow a noncustodial parent to inspect his or her child’s educational records. OAG 90-52 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.9, 26.11, 26.21.

403.340. Modification of custody decree.

  1. As used in this section, “custody” means sole or joint custody, whether ordered by a court or agreed to by the parties.
  2. No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:
    1. The child’s present environment may endanger seriously his physical, mental, moral, or emotional health; or
    2. The custodian appointed under the prior decree has placed the child with a de facto custodian.
  3. If a court of this state has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act, the court shall not modify a prior custody decree unless after hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. When determining if a change has occurred and whether a modification of custody is in the best interests of the child, the court shall consider the following:
    1. Whether the custodian agrees to the modification;
    2. Whether the child has been integrated into the family of the petitioner with consent of the custodian;
    3. The factors set forth in KRS 403.270(2) to determine the best interests of the child;
    4. Whether the child’s present environment endangers seriously his physical, mental, moral, or emotional health;
    5. Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him; and
    6. Whether the custodian has placed the child with a de facto custodian.
  4. In determining whether a child’s present environment may endanger seriously his physical, mental, moral, or emotional health, the court shall consider all relevant factors, including, but not limited to:
    1. The interaction and interrelationship of the child with his parent or parents, his de facto custodian, his siblings, and any other person who may significantly affect the child’s best interests;
    2. The mental and physical health of all individuals involved;
    3. Repeated or substantial failure, without good cause as specified in KRS 403.240 , of either parent to observe visitation, child support, or other provisions of the decree which affect the child, except that modification of custody orders shall not be made solely on the basis of failure to comply with visitation or child support provisions, or on the basis of which parent is more likely to allow visitation or pay child support;
    4. If domestic violence and abuse, as defined in KRS 403.720 , is found by the court to exist, the extent to which the domestic violence and abuse has affected the child and the child’s relationship to both parents.
  5. Subject to KRS 403.315 , if the court orders a modification of a child custody decree, there shall be a presumption, rebuttable by a preponderance of evidence, that it is in the best interest of the child for the parents to have joint custody and share equally in parenting time. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child’s welfare.
  6. Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.

History. Enact. Acts 1972, ch. 182, § 24; 1992, ch. 414, § 3, effective July 14, 1992; 1998, ch. 250, § 3, effective July 15, 1998; 2001, ch. 161, § 2, effective March 21, 2001; 2006, ch. 252, Pt. XXVIII, § 10, effective April 25, 2006; 2018 ch. 198, § 4, effective July 14, 2018; 2021 ch. 94, § 33, effective June 29, 2021.

Compiler’s Notes.

The Uniform Child Custody Jurisdiction Act referenced in subsection (3) is now the Uniform Child Custody Jurisdiction and Enforcement Act, which is found at KRS 403.800 et seq.

NOTES TO DECISIONS

1.In General.

In every proceeding for the modification of a custody decree the mental and physical health of all the parties and whether the child is in an environment likely to endanger his physical, mental, moral or emotional health is of major importance. Atwood v. Atwood, 550 S.W.2d 465, 1976 Ky. LEXIS 153 ( Ky. 1976 ).

The original award of care, custody and control of minors is subject to the control of the court and may be modified pursuant to this section upon a showing of a change of circumstances. Cherry v. Cherry, 634 S.W.2d 423, 1982 Ky. LEXIS 263 ( Ky. 1982 ).

Where father made a motion for modification of joint physical custody under this section prompted by mother’s decision to relocate with the child to another state, and where father failed to allege that there was an inability or bad faith refusal of the parties to cooperate, the best interests of the child controlled and court intervention must be based on factors enumerated in KRS 403.270 . Mennemeyer v. Mennemeyer, 887 S.W.2d 555, 1994 Ky. App. LEXIS 138 (Ky. Ct. App. 1994), overruled, Scheer v. Zeigler, 21 S.W.3d 807, 2000 Ky. App. LEXIS 68 (Ky. Ct. App. 2000).

The standards set forth in this section are intended to apply only to modifications of permanent awards of custody. Shifflet v. Shifflet, 891 S.W.2d 392, 1995 Ky. LEXIS 8 ( Ky. 1995 ).

Orders entered pursuant to KRS 403.280 , such as pendente lite, interlocutory, or non-final orders, are temporary custody orders; the final decision about custody is the custody decree, and while it is immediately appealable, it is subject to modification at a later time under KRS 403.340 . The decree is the one that is final or appealable, meaning that it is a final order under CR 54.01 adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under CR 54.02. Frances v. Frances, 266 S.W.3d 754, 2008 Ky. LEXIS 258 ( Ky. 2008 ).

2.Legislative Intent.

Both subsection (1) and (2) of this section require a situation that may “seriously endanger” the child, and both quite obviously express the legislative intent to stabilize the child’s condition and inhibit further litigation over his custody unless the child is in serious danger. Quisenberry v. Quisenberry, 785 S.W.2d 485, 1990 Ky. LEXIS 29 ( Ky. 1990 ).

Visitation or time-sharing may be modified pursuant to KRS 403.320 , and custody may be modified pursuant to KRS 403.340 ; the distinction between a visitation/time-sharing motion and a custody motion has been explained by the Kentucky Supreme Court in Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ). The obvious problem is that parties often ask for one thing when they are actually seeking the other, due to the unique nature of their shared (joint) custody or split (sole) custody, and courts have struggled ever since the concept of joint custody emerged with what part physical or residential possession of the child plays in each type of custody; the first question on a custody modification is whether the motion actually seeks modification of custody or visitation/timesharing. Kelsay v. Carson, 317 S.W.3d 595, 2010 Ky. App. LEXIS 124 (Ky. Ct. App. 2010).

3.Application.

When joint custody is awarded under subsection (3) (now subsection (5)) of KRS 403.270 and the parties subsequently disagree, neither this section nor KRS 403.350 applies, as these sections are applicable to modification of a sole custody award; instead, modification should be made anew under KRS 403.270 as if there had been no prior custody determination. Benassi v. Havens, 710 S.W.2d 867, 1986 Ky. App. LEXIS 1081 (Ky. Ct. App. 1986), overruled, Scheer v. Zeigler, 21 S.W.3d 807, 2000 Ky. App. LEXIS 68 (Ky. Ct. App. 2000).

This section and KRS 403.350 are applicable only to a modification of a sole custody award. Erdman v. Clements, 780 S.W.2d 635, 1989 Ky. App. LEXIS 149 (Ky. Ct. App. 1989).

Where there has been an award of joint custody under KRS 403.270 , but parents are unable to cooperate, a hearing de novo should be held to determine custody as if no prior custody determination had been made. Erdman v. Clements, 780 S.W.2d 635, 1989 Ky. App. LEXIS 149 (Ky. Ct. App. 1989).

KRS 403.350 is not a substitute for subsection (2) (now subsection (3)) of this section, but is simply a procedural device establishing the method for bringing a motion for modification before the court. The existence of this procedure does not provide a vehicle to discard subdivision (2)(c) (now subsection (3)(c)) of this section and utilize the best interest rule as the sole standard for deciding a change of custody issue. Quisenberry v. Quisenberry, 785 S.W.2d 485, 1990 Ky. LEXIS 29 ( Ky. 1990 ).

The differences between subsections (1) and (2) (now (2) and (3)) of this section are procedural, and arise to accommodate circumstances inherent in the passage of time. Quisenberry v. Quisenberry, 785 S.W.2d 485, 1990 Ky. LEXIS 29 ( Ky. 1990 ).

This section did not apply where a party moved to set aside a previous custody decree, rather than to modify it. Dull v. George, 982 S.W.2d 227, 1998 Ky. App. LEXIS 116 (Ky. Ct. App. 1998).

Joint custody is an award of custody which is subject to the custody modification statutes set forth in this section and KRS 403.350 , and there is no threshold requirement for modifying joint custody other than such requirements as may be imposed by the statutes. Scheer v. Zeigler, 21 S.W.3d 807, 2000 Ky. App. LEXIS 68 (Ky. Ct. App. 2000).

After the enactment of KRS 403.340 , a custodial parent’s decision to relocate with the parties’ children was presumptively permissible, and a custodial parent could relocate with the children without prior approval or modification of a joint custody award. After receiving notice from the residential custodian of his or her intent to relocate with the parties’ child, the burden was then upon any party objecting to file a custody modification motion within a reasonable time and after that, to satisfy the modification standard of KRS 403.340 in order to change the designation of primary residential custodian, and if no motion was filed within a reasonable time, the primary residential custodian could relocate with the parties’ child. Fenwick v. Fenwick, 114 S.W.3d 767, 2003 Ky. LEXIS 208 ( Ky. 2003 ), overruled in part, Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Although a relocation of the children of the parties to a divorce would, as a practical matter, impact a non-primary residential custodian’s ability to share physical custody of the children, the relocation did not extinguish the non-primary residential custodial parent’s rights with regard to shared physical custody, nor did the relocation affect the essential nature of the joint custody — i.e., the parents’ shared decision-making authority, so a non-primary residential custodian parent who objected to the relocation could only prevent the relocation by being named the sole or primary residential custodian, and to accomplish this re-designation required a modification of the prior custody award, and he or she had to therefore show that the child’s present environment endangered seriously his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment was outweighed by its advantages. Fenwick v. Fenwick, 114 S.W.3d 767, 2003 Ky. LEXIS 208 ( Ky. 2003 ), overruled in part, Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

When a mother who had been designated as primary residential custodian in the parties’ joint custody arrangement wanted to relocate to pursue better educational opportunities out of state, and the father objected to the relocation, the father had to show that the proposed relocation seriously endangered the children’s physical, mental, moral, or emotional health, and that the harm likely to be caused by a change of their custody to the father would be outweighed by its advantages, and a prior order precluding the mother from relocating with the children without the father’s consent or a court order inappropriately placed the burden on the mother to justify the relocation despite the evidentiary burdens the father had to meet to prevent the relocation under KRS 403.340 . Fenwick v. Fenwick, 114 S.W.3d 767, 2003 Ky. LEXIS 208 ( Ky. 2003 ), overruled in part, Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

When the General Assembly amended KRS 403.270 to authorize joint custody, the statutes that governed the modification of custody were already on the books, and, because the General Assembly took no steps to enact additional statutes governing modification of joint custody awards, the Legislature must have intended those prior provisions to apply equally to joint custody, and the General Assembly amended KRS 403.340 to expressly encompass joint custody modifications, KRS 403.340 (1), and this subsequent enactment further supported the conclusion that joint custody modification was to be governed by the custody modification statutes. Fenwick v. Fenwick, 114 S.W.3d 767, 2003 Ky. LEXIS 208 ( Ky. 2003 ), overruled in part, Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Joint custody modification fell exclusively within the purview of KRS 403.340 and 403.350 , and previous judicially-created “gateways” to joint custody modification were inapplicable, so joint custody was not subject to modification at the mere whim of a party or simply because the parties disagreed as to a child-rearing decision, nor was the lack of cooperation by one or both parties grounds for modification of joint custody unless it rose to the statutory level required for modification of custody under KRS 403.340 . Fenwick v. Fenwick, 114 S.W.3d 767, 2003 Ky. LEXIS 208 ( Ky. 2003 ), overruled in part, Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

If a permanency order in a dependency action brought under Chapter 620 complies with KRS 403.270(2) and is based on the best interests of the child, it would qualify as a “custody decree” and the requirements of KRS 403.340 would have to be satisfied in order to amend it. Since the permanency order in question in this case was not a “custody decree” within the meaning of KRS Chapter 403, KRS 403.340 is inapplicable, and the Family Court was required to consider the petition for custody as if there had been no prior custody determination. London v. Collins, 242 S.W.3d 351, 2007 Ky. App. LEXIS 462 (Ky. Ct. App. 2007).

A trial court’s order modifying child custody was proper because, pursuant to KRS 403.340 , the “serious endangerment” standard was not the only standard for modifications occurring more than two years after rendition of the order sought to be modified, and the trial court explicitly applied the KRS 403.340 standards to the case; the trial court’s decision was not unreasonable or unfair, and the decision was not clearly erroneous and applied the proper law. Coffman v. Rankin, 260 S.W.3d 767, 2008 Ky. LEXIS 159 ( Ky. 2008 ).

When a final custody decree has been entered and a relocation motion arises, any post-decree determination made by a court is a modification, either of custody or timesharing/visitation. If a change in custody is sought, KRS 403.340 governs, but if it is only timesharing/visitation for which modification is sought, then KRS 403.320 either applies directly or may be construed to do so. Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

While the stepfather’s de facto custodian status was the basis for the trial court’s award of joint custody, the stepfather’s standing to participate in the custody proceedings was derived from his status as a joint custodian, and there was no requirement under Kentucky law that a non-parent who was granted custodial rights due to his or her designation as a de facto custodian had to maintain the de facto custodian status in order to maintain standing as a joint custodian; the adoptive parents failed to present any evidence to suggest that the stepfather’s status as joint custodian was not in the child’s best interest, as required by KRS 403.340 . Williams v. Bittel, 299 S.W.3d 284, 2009 Ky. App. LEXIS 241 (Ky. Ct. App. 2009).

Mother in a child custody modification case incorrectly claimed that the trial court failed to follow KRS 403.340(3) about finding that a change in circumstances had occurred, as the record showed that the trial court had made such findings. The trial court found that since the original custody order was entered in favor of the mother, the father had obtained increased visitation, that the younger daughter missed seeing an older daughter who had obtained the age of majority, and that the relationship between the mother and younger daughter had deteriorated, which not only showed changed circumstances existed, but supported a finding that the best interests of the youngest daughter, considering application of the relevant factors under KRS 403.340(3)(c), dictated that custody be changed from the mother to the father. Morgan v. Getter, 2013 Ky. App. LEXIS 43 (Ky. Ct. App. Feb. 22, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 517 (Ky. Ct. App. Feb. 22, 2013).

4.Procedure.

Where mother sought relief from order awarding the father care, custody and control of infant son pursuant to CR 60.02 and no motion was ever made for such relief during the trial, mother was not entitled for such relief on her motion to redocket and motion to modify previous custody order. Crosier v. Hunt, 522 S.W.2d 453, 1975 Ky. LEXIS 137 ( Ky. 1975 ).

Where record disclosed no semblance of compliance with this section which sets forth the only way in which a custody decree may be modified within two years after its date, and where there was no motion by either party that the original judgment be modified, order of trial court refusing to enforce it was erroneous. Chandler v. Chandler, 535 S.W.2d 71, 1975 Ky. LEXIS 6 ( Ky. 1975 ).

Trial court erred in dismissing a father’s motion to modify child custody without holding an evidentiary hearing; the trial court applied a version of the modification statute, KRS 403.340 , and the new version required that the trial court consider and to permit a change of custody based on the factors enumerated in KRS 403.270(2), the statute used in making initial custody decisions, and thus the trial court applied an incorrect standard in dismissing the motion. Fowler v. Sowers, 151 S.W.3d 357, 2004 Ky. App. LEXIS 331 (Ky. Ct. App. 2004).

Change in the primary residential custodian amounted to a modification of the joint custody arrangement (not visitation) because, under the new arrangement, the mother assumed the primary role in the minor day-to-day decisions concerning the children, was primarily responsible for providing a residence for the children, and assumed their normal routine care and control, and the Circuit Court’s order noted that the “parenting time” was “reversed” as was the child support obligation. Because it was a modification of custody, the Circuit Court was without jurisdiction to consider the motion since it was not supported by at least two (2) affidavits, as required by KRS 403.340(2). Crossfield v. Crossfield, 155 S.W.3d 743, 2005 Ky. App. LEXIS 4 (Ky. Ct. App. 2005).

Since the parties’ intent was for their child to return to the mother under their agreed order, the father was required to move for modification if he wanted a change; as the father did not move for modification of custody or file an affidavit as required by KRS 403.340 and 403.350 , a trial court had no jurisdiction and improperly modified the custodial arrangement on its own motion. Crouch v. Crouch, 2005 Ky. App. LEXIS 191 (Ky. Ct. App. Sept. 2, 2005), aff'd, 201 S.W.3d 463, 2006 Ky. LEXIS 227 ( Ky. 2006 ).

It was not error for the lower court to deny the wife’s request for a hearing on her request to modify the custody agreement because the agreement was less than two years old, the wife was not designated as the primary custodial parent but both parents had joint custody, and the wife had not established that the child was seriously endangered under the current custody arrangement. Brockman v. Craig, 205 S.W.3d 244, 2006 Ky. App. LEXIS 215 (Ky. Ct. App. 2006), overruled in part, Shafizadeh v. Bowles, 366 S.W.3d 373, 2011 Ky. LEXIS 127 ( Ky. 2011 ).

Because a father’s pursuit of custody modification occurred within two (2) years of the custody award, he had to file a motion under KRS 403.340(2) and file affidavits showing grounds for modification pursuant to KRS 403.350 . Since he failed to do so, the trial court had no authority to modify custody, and the mother should have been permitted to relocate with the children. Robinson v. Robinson, 211 S.W.3d 63, 2006 Ky. App. LEXIS 354 (Ky. Ct. App. 2006).

Subject matter jurisdiction to adjudicate a motion to modify a child custody determination was obtained by filing a proper motion and affidavit. The trial court determined that the moving papers were sufficient, and, upon that determination, had subject matter jurisdiction to adjudicate the claim and proceed to the merits. Coffman v. Rankin, 260 S.W.3d 767, 2008 Ky. LEXIS 159 ( Ky. 2008 ).

There was no procedural vehicle to challenge a trial court’s determination that adequate cause for a hearing on a motion to modify custody was shown; such a determination was similar to an order overruling a motion for summary judgment, and any challenge was required to await the trial court’s final order. Coffman v. Rankin, 260 S.W.3d 767, 2008 Ky. LEXIS 159 ( Ky. 2008 ).

It was clear error for the trial court to modify child custody without engaging in the analysis mandated by KRS 403.340(3) and reducing its required findings to writing. Were the court to affirm this order, with its absence of any of the required findings, it would be giving its imprimatur to what amounted to a default judgment. Murphy v. Murphy, 272 S.W.3d 864, 2008 Ky. App. LEXIS 310 (Ky. Ct. App. 2008).

It was error to grant a motion to modify child custody in the mother’s absence. Because the divorce had terminated the relationship between the mother and her attorney as a matter of law, and because the attorney’s filing of a notice of nonrepresentation put the trial court and opposing counsel on notice that she no longer represented the mother, a new hearing date should have been set and service of the motion and notice under KRS 403.350 made directly upon the mother under CR 5.02. Murphy v. Murphy, 272 S.W.3d 864, 2008 Ky. App. LEXIS 310 (Ky. Ct. App. 2008).

5.— Right to Petition.

A husband and wife who were denied a divorce could, nevertheless, petition for a change in a child custody order where conditions came into existence which would permit modification. Braden v. Braden, 280 Ky. 563 , 133 S.W.2d 902, 1939 Ky. LEXIS 165 ( Ky. 1939 ) (decided under prior law).

After death of former wife who was granted custody of child, the husband had the right to petition the court for a modification of the custody award to give him custody and he was entitled to a hearing on said petition. Cupp v. Cupp, 302 S.W.2d 371, 1957 Ky. LEXIS 188 ( Ky. 1957 ) (decided under prior law).

6.—Authority to Modify.

A judgment in a divorce action as to custody of a child may be modified either by petition or on the court’s own motion, even though judgment does not reserve right of modification. Lawson v. Lawson, 278 Ky. 602 , 129 S.W.2d 135, 1939 Ky. LEXIS 471 ( Ky. 1939 ) (decided under prior law).

Children of divorced parents are wards of the court and when the children’s persons or properties are affected there are few, if any, inflexible rules of procedure, and judgments relating to custody and support of such children may be modified or set aside at any time on notice and motion. Franklin v. Franklin, 299 Ky. 426 , 185 S.W.2d 696, 1945 Ky. LEXIS 442 ( Ky. 1945 ) (decided under prior law).

In all cases involving the custody of children, the chancellor had power to reopen the case, take evidence in respect to conditions at the time of reopening the case, and make such an award of custody as the circumstances demanded. Moore v. Moore, 307 Ky. 552 , 211 S.W.2d 852, 1948 Ky. LEXIS 797 ( Ky. 1948 ) (decided under prior law).

Questions involving custody of children and the amount of alimony and maintenance are always open to modification in trial court. Heltsley v. Heltsley, 242 S.W.2d 973, 1951 Ky. LEXIS 1088 ( Ky. 1951 ) (decided under prior law). See Thomas v. Thomas, 252 S.W.2d 38, 1952 Ky. LEXIS 975 ( Ky. 1952 ) (decided under prior law).

7.— —Changed Conditions.

Although the court which grants a divorce retains jurisdiction to revise its judgment relative to the care and custody of children, the right of either party to a revision or modification of the judgment is dependent upon proof of changed conditions. Cole v. Cole, 299 Ky. 319 , 185 S.W.2d 382, 1945 Ky. LEXIS 410 ( Ky. 1945 ) (decided under prior law).

An order awarding the custody of a child is final, although, on a showing of changed conditions, the question of modification may be entertained by the same court or by any court having jurisdiction of the person of the child at the time the modification is sought. Marlar v. Howard, 312 Ky. 209 , 226 S.W.2d 755, 1949 Ky. LEXIS 1259 ( Ky. 1949 ) (decided under prior law).

The chancellor was free to modify his judgment relative to the custody of children upon the change of conditions or when he thought their welfare required such modification. Sparkman v. Sparkman, 256 S.W.2d 20, 1953 Ky. LEXIS 710 ( Ky. 1953 ) (decided under prior law).

A decree of divorce fixing the custody of a child may be modified only upon a showing of a change of conditions. Williams v. Williams, 290 S.W.2d 788, 1956 Ky. LEXIS 342 ( Ky. 1956 ) (decided under prior law).

The rule that a decree fixing custody of a child should be modified only on a showing of a change of conditions relates only to the merits of the case and not to judicial power. Vincent v. Vincent, 316 S.W.2d 853, 1958 Ky. LEXIS 62 ( Ky. 1958 ) (decided under prior law).

An order pertaining to the custody of children may be modified only upon proof showing a change of conditions. Hatfield v. Derossett, 339 S.W.2d 631, 1960 Ky. LEXIS 476 ( Ky. 1960 ) (decided under prior law).

The court has authority to modify custodial orders without an allegation of a change in conditions, where evidence is heard on general matters of the children’s custody and the changed conditions of the parents. Dalton v. Dalton, 367 S.W.2d 840, 1963 Ky. LEXIS 32 ( Ky. 1963 ) (decided under prior law).

Because the county domestic relations commissioner determined the parents would maintain joint custody of the child but effectively modified the custody arrangement, the commissioner had not considered the factors required under Ky. Rev. Stat. Ann. § 403.340(3) in rendering its recommendation. Further, it was unclear whether the commissioner made a finding that there was a change in circumstances warranting a modification as required by § 403.340(3). Although there may have been grounds for modifying the shared custody arrangement or awarding the father sole custody, the commissioner had not demonstrated that the § 403.340(3) requirements were met or that Ky. Rev. Stat. Ann. §§ 403.340(3)(a)–(f) and 403.270(2) were considered, and thus, the family court abused its discretion in effectively granting the father sole custody. Carver v. Carver, 611 S.W.3d 750, 2020 Ky. App. LEXIS 119 (Ky. Ct. App. 2020).

8.— — Welfare of Child.

Where either husband or wife, given the custody of children, prove unworthy of their custody, the chancellor may thereafter make proper orders for the welfare of the children. Wallace v. Wallace, 171 Ky. 192 , 188 S.W. 331, 1916 Ky. LEXIS 318 ( Ky. 1916 ) (decided under prior law).

In an application for modification of a custody award, the chief consideration is the welfare of the child. Simmons v. Simmons, 208 Ky. 614 , 271 S.W. 679, 1925 Ky. LEXIS 346 ( Ky. 1925 ) (decided under prior law).

In proceeding to modify an order as to custody of child, determination of issue is not a question of burden of proof but of making such a showing as will persuade the court that the child’s welfare will best be served by making the modification. Lawson v. Lawson, 278 Ky. 602 , 129 S.W.2d 135, 1939 Ky. LEXIS 471 ( Ky. 1939 ) (decided under prior law).

The Circuit Court has not only the authority but the duty to modify divorce judgments as they relate to the custody of children, when the welfare of the children requires it. Sowders v. Sowders, 286 Ky. 269 , 150 S.W.2d 903, 1941 Ky. LEXIS 263 ( Ky. 1941 ) (decided under prior law).

Where a court having jurisdiction has awarded custody of a child to someone other than its parent, the parent seeking to regain custody of the child has the burden of proving that the change will promote the welfare of the child. Bonilla v. Bonilla, 335 S.W.2d 572, 1960 Ky. LEXIS 273 ( Ky. 1960 ) (decided under prior law).

9.— De Novo Review.

In a nonconsensual modification situation where father failed to allege that there was an inability or bad faith refusal of the parties to cooperate, but instead was prompted to make his motion because the mother intended to relocate with the child to another state, the trial court did not have authority to make a de novo review of the physical custody issue pursuant to the decree and to modify the joint custody previously awarded simply because there was a joint custody decree in place. Mennemeyer v. Mennemeyer, 887 S.W.2d 555, 1994 Ky. App. LEXIS 138 (Ky. Ct. App. 1994), overruled, Scheer v. Zeigler, 21 S.W.3d 807, 2000 Ky. App. LEXIS 68 (Ky. Ct. App. 2000).

10.— Venue.

When a custody dispute is wholly intrastate, the issue is not jurisdiction, it is venue. In such circumstances, any circuit court in Kentucky possesses jurisdiction to decide the case; the only question is which of Kentucky’s 120 Circuit Courts is the appropriate venue. Pettit v. Raikes, 858 S.W.2d 171, 1993 Ky. LEXIS 74 ( Ky. 1993 ).

11.— Affidavits.

Where verified motion to change custody was filed, but no affidavits were filed in support of this motion as required by subsection (1) of this section, the trial court was without authority to consider a modification of custody. That was so, even if the verified motion was construed to somehow comply as an affidavit, because this section clearly required more than one affidavit. Copas v. Copas, 699 S.W.2d 758, 1985 Ky. App. LEXIS 682 (Ky. Ct. App. 1985).

The trial court was without authority to modify custody decree in mother’s favor on its own motion; this section contemplates that a motion for modification be made with supporting affidavits. Gladish v. Gladish, 741 S.W.2d 658, 1987 Ky. App. LEXIS 512 (Ky. Ct. App. 1987).

Where no affidavits or other documentary evidence were filed by father seeking to change children’s custody from mother to himself by a motion made less than a year after the final custody order, the court had no basis on which to find that adequate cause for a hearing had been established and thus the court was required to deny father’s motion to modify custody decree. Robbins v. King, 519 S.W.2d 839, 1975 Ky. LEXIS 184 ( Ky. 1975 ).

Read together, this section and KRS 403.350 require that a motion to modify a prior custody decree must be accompanied by at least one affidavit; and if the motion is made earlier than two years after its date, it must be accompanied by at least two affidavits. Petrey v. Cain, 987 S.W.2d 786, 1999 Ky. LEXIS 28 ( Ky. 1999 ), overruled in part, Masters v. Masters, 415 S.W.3d 621, 2013 Ky. LEXIS 638 ( Ky. 2013 ).

Because a family court had been granted jurisdiction by statute over cases seeking a modification of custody, an error with respect to affidavits did not divest it of subject matter jurisdiction; rather, it simply gave an aggrieved party the opportunity for relief. However, because a mother failed to raise the issue, she waived a challenge to the affidavit requirement. (Petrey v. Cain, 987 S.W.2d 786, 1999 Ky. LEXIS 28 ( Ky. 1999 ), is overruled to the extent that it holds that a circuit court or a family court lacked subject matter jurisdiction over a motion to modify child custody simply because the motion was not compliant with the requirement for more than one affidavit.) Masters v. Masters, 415 S.W.3d 621, 2013 Ky. LEXIS 638 ( Ky. 2013 ).

Order granting a child’s great-aunt and great-uncle de facto custodian status and awarding them custody of the child pursuant to KRS 403.270 was error where the family court lacked subject matter jurisdiction to modify the final custody decree entered in another family court; not only were no affidavits presented to establish subject matter jurisdiction, the order at issue made clear that the circumstances existing when the child’s mother was awarded custody were the identical circumstances existing when the great-aunt and the great-uncle filed their petition for custody. Gossett v. Kelley, 362 S.W.3d 379, 2012 Ky. App. LEXIS 46 (Ky. Ct. App. 2012).

It was an abuse of discretion for a trial court to dismiss a husband’s motion to modify child custody for lack of subject matter jurisdiction because, while the husband’s declaration was not sufficient to satisfy the affidavit requirement of KRS 403.340 , since the declaration was not made under oath and was neither subscribed to nor sworn to before a notary who inscribed the date and location of such affirmation, the husband attached four affidavits to the motion, so the trial court acquired subject matter jurisdiction to entertain the motion. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

12.— Improper to Prejudge Subsequent Motion.

The trial court erroneously entered an order imposing a $5,000 fine upon former husband for wife’s attorney fees if former husband again moved the court to reopen the issue of child custody; the court was not free to prejudge the next motion as vexatious and harassing, even if there was reason to believe such may be the case based on what had taken place previously. Quisenberry v. Quisenberry, 785 S.W.2d 485, 1990 Ky. LEXIS 29 ( Ky. 1990 ).

13.— Foreign Decree.

Where Massachusetts decree was entered only five weeks prior to the petition for modification filed in Kentucky and where the petition did not aver any circumstances which endangered the child’s physical, mental, moral or emotional health, the trial court was without authority to modify the decree within the two-year time limitation. Day v. Day, 490 S.W.2d 483, 1973 Ky. LEXIS 631 ( Ky. 1973 ).

14.Factors Considered.

A trial judge may not consider the issue of race in determining a question of child custody. Holt v. Chenault, 722 S.W.2d 897, 1987 Ky. LEXIS 189 ( Ky. 1987 ).

The child’s emotional reaction to her mother’s marital circumstances may enter into deciding what is in the best interest of the child if it is significant and severe, and, if it does, this is a consideration whatever the cause. Holt v. Chenault, 722 S.W.2d 897, 1987 Ky. LEXIS 189 ( Ky. 1987 ).

While the findings required by this section are unnecessary when changing from joint custody to sole custody, such findings are always required when changing single custody into another arrangement. Lynch v. Lynch, 737 S.W.2d 184, 1987 Ky. App. LEXIS 567 (Ky. Ct. App. 1987).

Trial court did not employ the correct standard in its ruling which modified custody, as it did not consult KRS 403.340 , but instead decided the custody determination anew under KRS 403.270 as if there had been no permanent custody order in place. Crouch v. Crouch, 2005 Ky. App. LEXIS 191 (Ky. Ct. App. Sept. 2, 2005), aff'd, 201 S.W.3d 463, 2006 Ky. LEXIS 227 ( Ky. 2006 ).

15.— Potentiality of Danger to Child.

The use of the word “may” in subsection (1) (now subsection (2)) of this section does not mean that the injury to physical, mental, moral or emotional health must have already occurred or be occurring at the time the change in custody is sought; the test is whether there is a potentiality for such danger and the courts need not wait until the damage has occurred. S v. S, 608 S.W.2d 64, 1980 Ky. App. LEXIS 383 (Ky. Ct. App. 1980), cert. denied, 451 U.S. 911, 101 S. Ct. 1982, 68 L. Ed. 2d 300, 1981 U.S. LEXIS 1714 (U.S. 1981).

In determining child custody disputes a judge is not required to wait until the children have already been harmed before he can give consideration to the conduct causing the harm. Krug v. Krug, 647 S.W.2d 790, 1983 Ky. LEXIS 229 ( Ky. 1983 ).

Where a trial court ordered a hearing on a motion to modify a custody decree made within two years of the original decree on the basis of affidavits alleging inadequate living conditions and physical abuse, it was necessary that the court determine whether it had reason to believe the child’s present environment might seriously endanger his physical, moral or emotional health under this section. Fugate v. Fugate, 896 S.W.2d 621, 1995 Ky. App. LEXIS 78 (Ky. Ct. App. 1995).

The fact that a mother’s relocation to Tennessee might affect the frequency of the father’s time-sharing with his children and the children’s contact with other persons was insufficient to support a finding that the proposed relocation created a likelihood of serious harm to the children. Robinson v. Robinson, 211 S.W.3d 63, 2006 Ky. App. LEXIS 354 (Ky. Ct. App. 2006).

16.— Misconduct of Custodian.

The trial court was correct to consider the sexual misconduct of the custodian mother and her friends in making a determination as to whether to change the custody of the child from the mother to the father. Powell v. Powell, 665 S.W.2d 312, 1984 Ky. LEXIS 217 ( Ky. 1984 ).

The standard to be used in consideration of misconduct on the part of the custodian is not whether it has affected the child but whether it is likely to adversely affect the child; if such a determination is made, the trial court may then consider the potential adverse effect of such misconduct as it relates to the best interests of the child. Powell v. Powell, 665 S.W.2d 312, 1984 Ky. LEXIS 217 ( Ky. 1984 ).

17.— Change of Residence.

Circuit Court did not abuse its discretion by overruling the domestic relations commissioner’s recommendation that one parent was to have primary physical custody of the parties’ minor child when the other parent relocated with the child to another state as there was substantial evidence to support the court’s findings in favor of the parent who relocated. Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

18.Findings.

Where the divorced father filed a petition for the modification of a judgment determining custody and support, the petition was in fact a motion and the court was not required to state its findings of fact and conclusions of law. Powell v. Powell, 423 S.W.2d 896, 1968 Ky. LEXIS 493 ( Ky. 1968 ) (decided under prior law).

19.Nonparents.

The rule is that not only must it be shown that the child’s welfare will be better served under the custody of the nonparent, but also it must be found that the parent is not a suitable custodian and neither KRS 403.270 nor this section modifies this principle. Chandler v. Chandler, 535 S.W.2d 71, 1975 Ky. LEXIS 6 ( Ky. 1975 ).

20.Agreement Between Parents.

Agreement between parents as to which of them should have custody of minor child is not binding on the court which is at all times primarily concerned with the welfare of the child and thereafter concerned for the parents. Atwood v. Atwood, 550 S.W.2d 465, 1976 Ky. LEXIS 153 ( Ky. 1976 ).

Where an agreed order entered into by a mother and father stated that their child would reside with the father “until further orders of the court,” since this phrase could be reasonably interpreted to mean that the trial court would transfer custody back to the mother upon completion of her military duty, and the parties admitted that this had been their intent, the agreed order was a temporary one, not a modification of the prior permanent order designating the mother as primary residential custodian. Crouch v. Crouch, 201 S.W.3d 463, 2006 Ky. LEXIS 227 ( Ky. 2006 ).

Since an agreed order to transfer custody of a child to the father was meant to be temporary and not a modification of the permanent custody order making the mother the primary custodian, the trial court lacked jurisdiction to modify the permanent order and grant the father physical custody, as he did not file a motion to modify, along with a supporting affidavit, as required by KRS 403.350 . Crouch v. Crouch, 201 S.W.3d 463, 2006 Ky. LEXIS 227 ( Ky. 2006 ).

Where a decree permitted review only of the parents’ “time-sharing arrangement,” not of the joint custody award, when the mother moved more than 150 miles from the county where the decree was entered, the trial court reversibly erred by modifying custody. Robinson v. Robinson, 211 S.W.3d 63, 2006 Ky. App. LEXIS 354 (Ky. Ct. App. 2006).

21.Consent.

The custodial parent’s voluntary and consensual transfer of custody of the children to the noncustodial parent for a six-month period is all that is necessary to establish the consent required under subdivision (2)(b) of this section; the consent requirement of this subdivision only applies to the consensual transfer of physical possession, and not the integration of the child. Carnes v. Carnes, 704 S.W.2d 207, 1986 Ky. LEXIS 233 ( Ky. 1986 ).

22.Due Process.

Forcing the mother to defend her role as temporary custodian on short notice and without benefit of the facts upon which the movant intended to rely was a particularly egregious denial of due process; however, her remedy was to file an original action in the Court of Appeals seeking to prohibit the trial court from conducting the hearing. Gladish v. Gladish, 741 S.W.2d 658, 1987 Ky. App. LEXIS 512 (Ky. Ct. App. 1987).

Family court properly denied an ex-wife’s motion to relocate with the divorced parties’ three minor children where three months was not an unreasonable time in which to file the ex-husband’s motion for a change of custody, given the motions filed and the amount of activity in the case, and where the family court had not clearly erred when it found that relocation was not in the best interests of the children. Carpenter-Moore v. Carpenter, 323 S.W.3d 11, 2010 Ky. App. LEXIS 170 (Ky. Ct. App. 2010).

23.Uniform Child Custody Jurisdiction Act.

The Uniform Child Custody Jurisdiction Act (U.C.C.J.A.) (repealed, see now Uniform Child Custody Jurisdiction and Enforcement Act KRS 403.800 et seq.), applies to all cases, regardless of whether the custody order originated with the court now asked to consider a change of custody, or originated elsewhere. By the terms of the act, a court entering an original custody decree may be required to refuse jurisdiction of a subsequent motion to change custody because of a child’s present living arrangements and place of residence; thus, the U.C.C.J.A. is a threshold consideration in every case, and the prefatory reference to it in subsection (2) of this section does no more than make clear that when a court is asked to entertain a change of custody case it shall not do so unless the circumstances covered by the U.C.C.J.A. are present. Quisenberry v. Quisenberry, 785 S.W.2d 485, 1990 Ky. LEXIS 29 ( Ky. 1990 ).

24.Burden of Proof.

A party seeking modification of a custody decree pursuant to this section must bear the burden of proof. Wilcher v. Wilcher, 566 S.W.2d 173, 1978 Ky. App. LEXIS 516 (Ky. Ct. App. 1978).

Evidence by a psychologist that the lesbian activities of the mother would subject infant daughter to social stigma and create a homosexual parent model was sufficient to meet the burden of proof under subsection (1) (now subsection (2)) of this section in determining that placing the child in the custody of the father would be in the best interests of the child. S v. S, 608 S.W.2d 64, 1980 Ky. App. LEXIS 383 (Ky. Ct. App. 1980), cert. denied, 451 U.S. 911, 101 S. Ct. 1982, 68 L. Ed. 2d 300, 1981 U.S. LEXIS 1714 (U.S. 1981).

25.Presumption Favoring Status Quo.

This section directs the trial court to continue the status quo in a custody arrangement unless certain proven facts indicate a need for change. Dexter v. Spainhoward, 563 S.W.2d 474, 1978 Ky. App. LEXIS 478 (Ky. Ct. App. 1978).

This section reflects a strong legislative policy to maximize the finality of custody decrees without jeopardizing the health and welfare of the child and creates a presumption that the present custodian is entitled to continue as the child’s custodian. Wilcher v. Wilcher, 566 S.W.2d 173, 1978 Ky. App. LEXIS 516 (Ky. Ct. App. 1978).

The purpose of subsection (1) (now subsection (2)) of this section is to provide stability and finality to a custody decree and it creates an assumption that the present custodian shall continue custody for the first two years unless it is shown (1) that the environment may endanger the physical, mental, moral or emotional health of the child; and (2) that the stability of consistency is outweighed by the advantages attendant to change. S v. S, 608 S.W.2d 64, 1980 Ky. App. LEXIS 383 (Ky. Ct. App. 1980), cert. denied, 451 U.S. 911, 101 S. Ct. 1982, 68 L. Ed. 2d 300, 1981 U.S. LEXIS 1714 (U.S. 1981).

The purpose of KRS 403.350 and this section is to maximize the finality of a custody decree without jeopardizing the health and welfare of the child; moreover, this section creates a presumption that the present custodian is entitled to continue as the child’s custodian. West v. West, 664 S.W.2d 948, 1984 Ky. App. LEXIS 468 (Ky. Ct. App. 1984).

26.Evidence.

Where father petitioned court for a modification of a divorce decree to give him custody of his child after the death of his former wife, the court erred in denying relief upon a confidential report of a welfare worker without giving the father an opportunity to be heard and without taking evidence. Cupp v. Cupp, 302 S.W.2d 371, 1957 Ky. LEXIS 188 ( Ky. 1957 ) (decided under prior law).

Where motion to modify child custody award was withdrawn by the father, the withdrawal could be treated as an admission that welfare of child was not in jeopardy prior to withdrawal and evidence of conditions prior to such time was properly excluded at a hearing on his subsequent motion for modification. Ward v. Ward, 407 S.W.2d 709, 1966 Ky. LEXIS 181 ( Ky. 1966 ) (decided under prior law).

27.Psychotherapist — Patient Privilege Inapplicable.

The custodial parent may not invoke the psychotherapist — patient privilege for a child in custody litigation as it thwarts the purpose of this section. Bond v. Bond, 887 S.W.2d 558, 1994 Ky. App. LEXIS 96 (Ky. Ct. App. 1994).

28.Modification Granted.

Where, after the decree splitting custody of the children, the mother had remarried to prosperous businessman who liked the children and furnished a good home for them and the father had married a French woman, re-enlisted in the army, lived with his parents in a crowded home and was expecting a new child, modification giving the mother full custody was justified. Runge v. Runge, 307 Ky. 752 , 212 S.W.2d 275, 1948 Ky. LEXIS 820 ( Ky. 1948 ) (decided under prior law).

Where, upon divorce, a young, immature wife married the man with whom she committed acts of indiscretion during marriage, lived a wholesome upright life, and had a home suitable for the child, the chancellor did not err in modifying the original award of full custody to the father so as to give the mother custody during the three summer months. Hager v. Hager, 309 Ky. 803 , 219 S.W.2d 10, 1949 Ky. LEXIS 812 ( Ky. 1949 ) (decided under prior law).

Where wife brought contempt proceeding against her former husband to recover custody of her children and to obtain payment of the maintenance allowance for them and the husband responded with a request for modification of the judgment and award of the children’s custody to him, the record justified the court’s dismissal of the contempt proceeding and grant of modification. Martin v. Martin, 255 S.W.2d 45, 1953 Ky. LEXIS 640 ( Ky. 1953 ) (decided under prior law).

On mother’s petition to modify divorce decree granting full custody of the parties’ three children to the husband, the chancellor properly modified the decree to give the mother custody for three months each year. Sparkman v. Sparkman, 256 S.W.2d 20, 1953 Ky. LEXIS 710 ( Ky. 1953 ) (decided under prior law).

Where mother was seeking modification of the portion of a divorce decree awarding custody of her children to her former husband, her averment that she no longer used intoxicants, had changed her way of life, and was now leading an exemplary life was sufficient to support her motion for modification. Estes v. Estes, 299 S.W.2d 785, 1957 Ky. LEXIS 421 ( Ky. 1957 ) (decided under prior law).

Where a mother sought a modification of an order giving her former husband custody of her child a few days after a similar petition had been denied without alleging a change in circumstances since that denial, the court could grant her petition on a finding that his denial had been a mistake. Vincent v. Vincent, 316 S.W.2d 853, 1958 Ky. LEXIS 62 ( Ky. 1958 ) (decided under prior law).

Where, at the time of the divorce, the father was given primary custody of the parties’ child, in part because the mother did not then have a home in which she could care for the child, and subsequently the mother remarried and had a home for the child, this was a sufficient change of circumstances to justify a modification of the original custody order. Wilkerson v. Wilkerson, 335 S.W.2d 552, 1960 Ky. LEXIS 264 ( Ky. 1960 ) (decided under prior law).

Court properly found it was in the child’s best interest to modify custody to the father because the mother tended to reject any challenge to the diagnosis of gender identity disorder for the child, dismissing medical opinions, and the record also reflected the mother’s history of seeking out diagnoses for the child from before she was even a year old. The court’s findings related both to the mother’s behavior, including her actions in dressing the child in boy clothing and giving her a boy haircut prior to visiting the first provider to diagnose her. Williams v. Frymire, 377 S.W.3d 579, 2012 Ky. App. LEXIS 161 (Ky. Ct. App. 2012).

29.Modification Denied.

Where judgment awarding custody of children to mother was valid, court could not subsequently award custody to father except on proof of change of conditions indicating mother was no longer a fit person. West v. West, 294 Ky. 301 , 171 S.W.2d 453, 1943 Ky. LEXIS 438 ( Ky. 1943 ) (decided under prior law).

Where, at time of entering divorce judgment, court properly awarded custody of infant children to father, on proof of his good character and proof of mother’s unchastity and moral unfitness, the mother could not later obtain modification of judgment, awarding custody to her, on mere allegations that she was not unchaste or unfit, without introducing any proof of changed conditions since the judgment. Cole v. Cole, 299 Ky. 319 , 185 S.W.2d 382, 1945 Ky. LEXIS 410 ( Ky. 1945 ) (decided under prior law).

The mere fact that the mother had remarried since her appeal was filed was not a sufficient ground for disturbing the award of custody to the child’s grandparents. Ragland v. Ragland, 299 Ky. 699 , 187 S.W.2d 257, 1945 Ky. LEXIS 782 ( Ky. 1945 ) (decided under prior law).

Where mother was granted custody of young children and husband was allowed to have them visit on every fourth week end, the judgment would not be modified to allow the father to have custody of the older child and supervision of her education or to have custody of both children during school vacations where there was no showing of changed circumstances. Smith v. Smith, 299 Ky. 715 , 187 S.W.2d 271, 1945 Ky. LEXIS 808 ( Ky. 1945 ) (decided under prior law).

Where divorce decree awarded custody of a girl not yet two years old to her mother, the mother immediately left the girl in the care of her maternal grandmother, the father had shown no interest in the girl and had paid nothing on her support until a criminal action was brought against him, both the mother and father remarried and had comfortable homes, but the mother did not wish to disturb the relationship between the girl and her grandmother and grandmother furnished the girl an adequate home, the chancellor properly denied the father’s request for custody of the girl. Middleton v. Middleton, 261 S.W.2d 640, 1953 Ky. LEXIS 1039 ( Ky. 1953 ) (decided under prior law).

Where a mother sought a modification of a divorce decree awarding custody of her son to his father and was refused, a modification could not later be granted on the sole basis of a condition existing at the time of the hearing on her prior request. Williams v. Williams, 290 S.W.2d 788, 1956 Ky. LEXIS 342 ( Ky. 1956 ) (decided under prior law).

Where husband sought a modification of a divorce decree granting the wife custody of two minor children so that he could take them to live with his aged mother in her home, which was not equipped with modern conveniences, because he was unable to care for them himself, and the evidence, which implied indiscretions on the part of the wife, also indicated that she furnished a good home for the children and properly cared for them, the request for modification was properly denied. Benson v. Benson, 291 S.W.2d 27, 1956 Ky. LEXIS 363 ( Ky. 1956 ) (decided under prior law).

Where father brought an action against the child’s maternal grandmother, who was caring for the child while the mother was working and going to school in another state, the father could not strengthen his case by the mother’s absence which was necessitated by his failure to meet his obligation to support the child and the court properly found against him in the absence of any evidence indicating the child was not receiving proper care. Wyatt v. Webb, 317 S.W.2d 883, 1958 Ky. LEXIS 111 ( Ky. 1958 ) (decided under prior law).

Where husband, in seeking a modification of the custody of his children, testified that his former wife visited a man in a motel room on two or three occasions and this was corroborated by a gumshoe hired by him but was denied by the wife and the uncontradicted evidence indicated that the children were well cared for by the wife, the chancellor’s refusal to alter the wife’s custody of the children was proper. Hall v. Hall, 329 S.W.2d 375, 1959 Ky. LEXIS 160 ( Ky. 1959 ) (decided under prior law).

Where custody of a child was awarded to its maternal grandparents and the evidence showed that the child was well cared for by the grandparents, the chancellor did not abuse his discretion in refusing the father’s motion for a modification giving him custody. Bonilla v. Bonilla, 335 S.W.2d 572, 1960 Ky. LEXIS 273 ( Ky. 1960 ) (decided under prior law).

Family court did not abuse its discretion in refusing to modify custody of the parties’ child because the court properly considered the statutory factors, the credibility of the witnesses, and determined that modification was not in the best interest of the child, primarily due to the actions and behaviors of the father. Moreover, the court did not err in rejecting the father’s assertion that the court should have presumed joint custody before it determined if a custody modification was proper and in the best interest of the child. Berzansky v. Parrish, 583 S.W.3d 6, 2019 Ky. App. LEXIS 71 (Ky. Ct. App. 2019).

30.Modification Erroneous.

Where father of child served notice on mother that he would move court for modification of judgment entered in divorce action awarding custody of child to mother, but no motion was actually made, and the notice did not state any grounds of motion, judgment of modification made pursuant to such notice was erroneous, and was properly set aside on subsequent motion by mother. Franklin v. Franklin, 299 Ky. 426 , 185 S.W.2d 696, 1945 Ky. LEXIS 442 ( Ky. 1945 ) (decided under prior law).

Where each parent and the maternal grandmother, with whom the child stayed for most of the six years prior to the action for modification while the mother had custody under the divorce decree, all could furnish a good home for the child, but the mother had shown no desire for the child to live with her while the father had shown an interest in the child and a desire to have her with him, and where the child was suffering from the effects of emotional insecurity, the chancellor improperly awarded custody to the grandmother and the father should have been given custody with provision for the mother to have the child during the summer, if she so desired. Whalen v. Boles, 314 Ky. 817 , 236 S.W.2d 885, 1951 Ky. LEXIS 708 ( Ky. 1951 ) (decided under prior law).

Where the evidence shows that the mother’s home had improved since the order granting her custody of her daughters, that the father’s had deteriorated as a place to raise the girls, and that other circumstances had not changed, the chancellor erred in modifying his order to give the father custody. Hatfield v. Derossett, 339 S.W.2d 631, 1960 Ky. LEXIS 476 ( Ky. 1960 ) (decided under prior law).

31.Setting Aside Decree.

Removal of child from Kentucky by parent to whom custody had been awarded, subject to right of visitation by other parent, might constitute grounds for modifying the decree as to custody, but would not constitute grounds for setting the decree aside. Beutel v. Beutel, 300 Ky. 756 , 189 S.W.2d 933, 1945 Ky. LEXIS 607 ( Ky. 1945 ) (decided under prior law).

Where a court properly refuses to exercise further jurisdiction in a divorce action, it is error to set aside its prior orders concerning custody and support of the parties’ child because such orders may be modified only prospectively. Carter v. Netherton, 302 S.W.2d 382, 1957 Ky. LEXIS 193 ( Ky. 1957 ) (decided under prior law).

32.Appeal.

In action to modify divorce decree as it pertains to custody of children, the appellate court would not disturb the chancellor’s determination, especially where the parties and their witnesses appeared before him, where there was only a doubt as to the correctness of his decision. Sparkman v. Sparkman, 256 S.W.2d 20, 1953 Ky. LEXIS 710 ( Ky. 1953 ) (decided under prior law).

On appeal from judgments modifying a divorce decree to increase the amount of father’s child support payments and refusing modification to give him custody, narrative statements of the evidence heard in prior hearings submitted by the parties and filed without approval or disapproval by the trial court could not be considered. Meek v. Meek, 318 S.W.2d 851, 1958 Ky. LEXIS 149 ( Ky. 1958 ) (decided under prior law).

An order denying a motion for change of custody is clearly appealable. Goff v. Goff, 323 S.W.2d 209, 1959 Ky. LEXIS 322 ( Ky. 1959 ) (decided under prior law).

Prohibition would not issue where a divorced wife had an adequate remedy by appeal to contest an order transferring custody of her son to a great aunt. Pace v. Wolfinbarger, 420 S.W.2d 561, 1967 Ky. LEXIS 112 ( Ky. 1967 ) (decided under prior law).

33.Fees.

This section does not establish the exclusive means by which a trial court may grant fees, for the trial court has discretionary power to grant fees under KRS 403.220 . Dexter v. Spainhoward, 563 S.W.2d 474, 1978 Ky. App. LEXIS 478 (Ky. Ct. App. 1978).

34.Attorney Fees.

Where the mother is in as good a financial condition as her former husband, she should not be allowed her attorney fees from him for a petition to modify the custody of their child. Wilkerson v. Wilkerson, 335 S.W.2d 552, 1960 Ky. LEXIS 264 ( Ky. 1960 ) (decided under prior law).

Cited in:

Eviston v. Eviston, 507 S.W.2d 153, 1974 Ky. LEXIS 665 ( Ky. 1974 ); Jones v. Jones, 577 S.W.2d 43, 1979 Ky. App. LEXIS 374 (Ky. Ct. App. 1979); Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 4 61 (Ky. Ct. App. 1979); Holland v. Holland, 679 S.W.2d 835, 1984 Ky. App. LEXIS 592 (Ky. Ct. App. 1984); D.S. v. F.A.H., 684 S.W.2d 320, 1985 Ky. App. LEXIS 516 (Ky. Ct. App. 1985); Betzer v. Betzer, 749 S.W.2d 694, 1988 Ky. App. LEXIS 4 1 (Ky. Ct. App. 1988); Basham v. Wilkins, 851 S.W.2d 491, 1993 Ky. App. LEXIS 1 (Ky. Ct. App. 1993); Strong v. First Nationwide Mortg. Corp., 959 S.W.2d 785, 1998 Ky. App. LEXIS 4 (Ky. Ct. App. 1998); Forester v. Forester, 979 S.W.2d 928, 1998 Ky. App. LEXIS 35 (Ky. Ct. App. 1998); Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ); Crews v. Shofner, 425 S.W.3d 906, 2014 Ky. App. LEXIS 41 (Ky. Ct. App. 2014).

Opinions of Attorney General.

Temporary relief may be obtained pursuant to CR 65.03 from a custody decree upon proper motion pending the outcome of a change of custody procedure if the limited circumstances of this section are present which allow the “pending” action to be reinstated. OAG 77-517 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Notes, Greathouse v. Shreve and Shifflet v. Shifflet: Maintaining the Status Quo in Custody Disputes Between Parents and Third Party Contestants, 23 N. Ky. L. Rev. 451 (1996).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Awarding Custody, Time Sharing, and Support, Form 253.46.

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.4, 26.11, 26.16, 26.17, 26.18, 26.21, 26.22; 1991 Supp., § 26.18.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.32.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.11.

403.350. Affidavit required with motion for temporary custody order or for modification of custody decree.

A party seeking a temporary custody order or modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits. If a court determines that a child is in the custody of a de facto custodian, the court shall make the de facto custodian a party to the proceeding. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.

History. Enact. Acts 1972, ch. 182, § 25; 1998, ch. 250, § 4, effective July 15, 1998.

NOTES TO DECISIONS

1.Application.

When joint custody is awarded under subsection (3) of KRS 403.270 and the parties subsequently disagree, neither KRS 403.340 nor this section applies, as these sections are applicable to modification of a sole custody award; instead, modification should be made anew under KRS 403.270 as if there had been no prior custody determination. Benassi v. Havens, 710 S.W.2d 867, 1986 Ky. App. LEXIS 1081 (Ky. Ct. App. 1986), overruled, Scheer v. Zeigler, 21 S.W.3d 807, 2000 Ky. App. LEXIS 68 (Ky. Ct. App. 2000).

This section and KRS 403.340 are applicable only to a modification of a sole custody award. Erdman v. Clements, 780 S.W.2d 635, 1989 Ky. App. LEXIS 149 (Ky. Ct. App. 1989).

Where there has been an award of joint custody under KRS 403.270 , but parents are unable to cooperate, a hearing de novo should be held to determine custody as if no prior custody determination had been made. Erdman v. Clements, 780 S.W.2d 635, 1989 Ky. App. LEXIS 149 (Ky. Ct. App. 1989).

This section is not a substitute for KRS 403.340(2) (now (3)), but is simply a procedural device establishing the method for bringing a motion for modification before the court. The existence of this procedure does not provide a vehicle to discard KRS 403.340(2)(c) (now (3)(c)) and utilize the best interest rule as the sole standard for deciding a change of custody issue. Quisenberry v. Quisenberry, 785 S.W.2d 485, 1990 Ky. LEXIS 29 ( Ky. 1990 ).

Joint custody is an award of custody which is subject to the custody modification statutes set forth in KRS 403.340 and this section, and there is no threshold requirement for modifying joint custody other than such requirements as may be imposed by the statutes. Scheer v. Zeigler, 21 S.W.3d 807, 2000 Ky. App. LEXIS 68 (Ky. Ct. App. 2000).

Joint custody modification fell exclusively within the purview of KRS 403.340 and 403.350 , and previous judicially-created “gateways” to joint custody modification were inapplicable, so joint custody was not subject to modification at the mere whim of a party or simply because the parties disagreed as to a child-rearing decision, nor was the lack of cooperation by one or both parties grounds for modification of joint custody unless it rose to the statutory level required for modification of custody under KRS 403.340 . Fenwick v. Fenwick, 114 S.W.3d 767, 2003 Ky. LEXIS 208 ( Ky. 2003 ), overruled in part, Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Since an agreed order to transfer custody of a child to the father was meant to be temporary and not a modification of the permanent custody order making the mother the primary custodian, the trial court lacked jurisdiction to modify the permanent order and grant the father physical custody, as he did not file a motion to modify, along with a supporting affidavit, as required by KRS 403.350 . Crouch v. Crouch, 201 S.W.3d 463, 2006 Ky. LEXIS 227 ( Ky. 2006 ).

2.Purpose.

The purpose of KRS 403.340 and this section is to maximize the finality of a custody decree without jeopardizing the health and welfare of the child; moreover, KRS 403.340 creates a presumption that the present custodian is entitled to continue as the child’s custodian. West v. West, 664 S.W.2d 948, 1984 Ky. App. LEXIS 468 (Ky. Ct. App. 1984).

3.Factual Basis.

This section requires a party seeking a change in custody to submit an affidavit with his motion setting forth facts supporting the requested change; such facts must establish adequate cause for a hearing. Lacking such facts, the court is required to deny the motion without a hearing. West v. West, 664 S.W.2d 948, 1984 Ky. App. LEXIS 468 (Ky. Ct. App. 1984).

Given the trial court’s reluctance to change custody, the movant must present facts in his affidavit that compel the court’s attention; he cannot simply assert the statutory requirements for modification of the court’s custody decree. West v. West, 664 S.W.2d 948, 1984 Ky. App. LEXIS 468 (Ky. Ct. App. 1984).

Where the affidavits submitted to change temporary custody contained no facts upon which the court could find cause for a hearing, but instead were vague and conclusory, it was an abuse of discretion for the court to entertain the father’s motion. Gladish v. Gladish, 741 S.W.2d 658, 1987 Ky. App. LEXIS 512 (Ky. Ct. App. 1987).

Only affidavits may be considered in determining adequate cause for a hearing on modification of custody. Betzer v. Betzer, 749 S.W.2d 694, 1988 Ky. App. LEXIS 41 (Ky. Ct. App. 1988).

Mere allegations are not sufficient to establish adequate cause for a hearing on modification of custody. Betzer v. Betzer, 749 S.W.2d 694, 1988 Ky. App. LEXIS 41 (Ky. Ct. App. 1988).

Although the father alleged in his affidavit that the two boys spent most of the time either at day care or with their maternal grandparents and spent very little time with the mother, that the maternal grandparents had a drinking problem, that the children participated in very few activities while with their mother, and that the youngest child had told him that his mother had struck him causing a black eye, the affidavit failed to indicate that the children’s physical, mental, emotional or moral health was endangered by their living conditions with the mother where the father offered no grounds for his accusation, he did not specify what activities the children were being deprived of, and the mother asserted that a police investigation of the child’s allegation produced no factual information to support it; therefore, no facts were established which would show that adequate cause for a hearing existed. Betzer v. Betzer, 749 S.W.2d 694, 1988 Ky. App. LEXIS 41 (Ky. Ct. App. 1988).

The fact that a mother’s relocation to Tennessee might affect the frequency of the father’s time-sharing with his children and the children’s contact with other persons was insufficient to support a finding that the proposed relocation created a likelihood of serious harm to the children. Robinson v. Robinson, 211 S.W.3d 63, 2006 Ky. App. LEXIS 354 (Ky. Ct. App. 2006).

4.Failure to Submit Affidavit.

Where no affidavits or other documentary evidence were filed by father seeking to change children’s custody from mother to himself by a motion made less than a year after the final custody order, the court had no basis on which to find that adequate cause for a hearing had been established and thus the court was required to deny father’s motion to modify custody decree. Robbins v. King, 519 S.W.2d 839, 1975 Ky. LEXIS 184 ( Ky. 1975 ).

Change in the primary residential custodian amounted to a modification of the joint custody arrangement (not visitation) because, under the new arrangement, the mother assumed the primary role in the minor day-to-day decisions concerning the children, was primarily responsible for providing a residence for the children, and assumed their normal routine care and control, and the Circuit Court’s order noted that the “parenting time” was “reversed” as was the child support obligation. Because it was a modification of custody, the Circuit Court was without jurisdiction to consider the motion since it was not supported by at least two (2) affidavits, as required by KRS 403.340(2). Crossfield v. Crossfield, 155 S.W.3d 743, 2005 Ky. App. LEXIS 4 (Ky. Ct. App. 2005).

Since the parties’ intent was for their child to return to the mother under their agreed order, the father was required to move for modification if he wanted a change; as the father did not move for modification of custody or file an affidavit as required by KRS 403.340 and 403.350 , a trial court had no jurisdiction and improperly modified the custodial arrangement on its own motion. Crouch v. Crouch, 2005 Ky. App. LEXIS 191 (Ky. Ct. App. Sept. 2, 2005), aff'd, 201 S.W.3d 463, 2006 Ky. LEXIS 227 ( Ky. 2006 ).

Because a father’s pursuit of custody modification occurred within two (2) years of the custody award, he had to file a motion under KRS 403.340(2) and file affidavits showing grounds for modification pursuant to KRS 403.350 . Since he failed to do so, the trial court had no authority to modify custody, and the mother should have been permitted to relocate with the children. Robinson v. Robinson, 211 S.W.3d 63, 2006 Ky. App. LEXIS 354 (Ky. Ct. App. 2006).

5.Burden of Proof.

The show-cause order entered pursuant to this section does no more than give the custodial parent notice of the court’s decision to have a hearing on the motion to modify the custody decree and does not place the burden of proof on the custodial parent. Wilcher v. Wilcher, 566 S.W.2d 173, 1978 Ky. App. LEXIS 516 (Ky. Ct. App. 1978).

This section should not be construed to place the burden of proof upon the custodial parent at a hearing of a motion to modify a prior custody decree, since such a construction would defeat the obvious purpose of KRS 403.340 and this section to encourage stability in the custodial relationship. Wilcher v. Wilcher, 566 S.W.2d 173, 1978 Ky. App. LEXIS 516 (Ky. Ct. App. 1978).

6.Depositions.

Although the trial court considered deposition testimony along with the affidavits, the error was not prejudicial where that testimony did not materially add to the statements in the affidavits. Betzer v. Betzer, 749 S.W.2d 694, 1988 Ky. App. LEXIS 41 (Ky. Ct. App. 1988).

7.Number of affidavits.

Read together, this section and KRS 403.340 require that a motion to modify a prior custody decree must be accompanied by at least one affidavit; and if the motion is made earlier than two years after its date, it must be accompanied by at least two affidavits. Petrey v. Cain, 987 S.W.2d 786, 1999 Ky. LEXIS 28 ( Ky. 1999 ), overruled in part, Masters v. Masters, 415 S.W.3d 621, 2013 Ky. LEXIS 638 ( Ky. 2013 ).

8.Verified Complaint.

Because a father’s verified complaint seeking modification of custody was a written statement or declaration, signed by the father and sworn to before a notary public, the complaint technically fulfilled the requirements of CR 43.13. Rankin v. Coffman, 2007 Ky. App. LEXIS 119 (Ky. Ct. App. Apr. 27, 2007), rev'd, 260 S.W.3d 767, 2008 Ky. LEXIS 159 ( Ky. 2008 ).

9.Service.

It was error to grant a motion to modify child custody in the mother’s absence. Because the divorce had terminated the relationship between the mother and her attorney as a matter of law, and because the attorney’s filing of a notice of nonrepresentation put the trial court and opposing counsel on notice that she no longer represented the mother, a new hearing date should have been set and service of the motion and notice under KRS 403.350 made directly upon the mother under CR 5.02. Murphy v. Murphy, 272 S.W.3d 864, 2008 Ky. App. LEXIS 310 (Ky. Ct. App. 2008).

Trial court denied the father’s right to due process when it proceeded to hear the mother’s motion to change custody because her custody modification motion had not been scheduled to be heard under KRS 403.350 and the father had received no notice of such a hearing. Corns v. Corns, 343 S.W.3d 622, 2011 Ky. App. LEXIS 113 (Ky. Ct. App. 2011).

Setting the father’s motion, which the trial court erroneously treated as a motion for a change in custody, for a hearing under KRS 403.350 did not satisfy the due process requirement that the father receive notice that the court was hearing the mother’s request for a change in custody. Corns v. Corns, 343 S.W.3d 622, 2011 Ky. App. LEXIS 113 (Ky. Ct. App. 2011).

10.Jurisdiction.

Because a family court had been granted jurisdiction by statute over cases seeking a modification of custody, an error with respect to affidavits did not divest it of subject matter jurisdiction; rather, it simply gave an aggrieved party the opportunity for relief. However, because a mother failed to raise the issue, she waived a challenge to the affidavit requirement. (Petrey v. Cain, 987 S.W.2d 786, 1999 Ky. LEXIS 28 ( Ky. 1999 ), is overruled to the extent that it holds that a circuit court or a family court lacked subject matter jurisdiction over a motion to modify child custody simply because the motion was not compliant with the requirement for more than one affidavit.) Masters v. Masters, 415 S.W.3d 621, 2013 Ky. LEXIS 638 ( Ky. 2013 ).

Even if the father had intended to move for custody modification, the mother’s verified response would, at most, represent an opposing affidavit under KRS 403.350 , and would not satisfy the strict statutory requirements necessary for the father’s motion to have conveyed subject matter jurisdiction to the trial court. Corns v. Corns, 343 S.W.3d 622, 2011 Ky. App. LEXIS 113 (Ky. Ct. App. 2011).

Cited:

Frances v. Frances, 266 S.W.3d 754, 2008 Ky. LEXIS 258 ( Ky. 2008 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Northern Kentucky Law Review.

Dowell and Baluchi, Kentucky Law Survey: A Survey of Recent Decisions Regarding Custody and Visitation Rights, 30 N. Ky. L. Rev. 1 (2003).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.3, 26.11, 26.21.

403.352. Power of attorney for temporary delegation of parental rights and responsibilities regarding care and custody of a child.

  1. A parent or legal guardian of a child, by a properly executed power of attorney, as established in this section and KRS 403.353 , may temporarily delegate to another person, named in the instrument as the attorney-in-fact, for a period not to exceed one (1) year any of the traditional parental rights and responsibilities regarding care and custody of the child except the following authorities:
    1. Consent for the child to marry;
    2. Consent for an abortion or inducement of an abortion to be performed on or for the child; or
    3. The termination of parental rights to the child.
  2. A temporary delegation of rights and responsibilities under this section shall not:
    1. Operate to change or modify any parental or legal rights, obligations, or authority established by an existing court order; or
    2. Deprive the parent or legal custodian of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of the child.
  3. The parent or legal custodian of the child shall have the authority to revoke or withdraw the power of attorney authorized by this section at any time.
  4. Upon the termination, withdrawal, expiration, or revocation of the power of attorney established by this section, the child shall be returned to the custody of the parent or legal guardian as soon as reasonably possible.
  5. The attorney-in-fact named in the instrument as established by this section shall not be compensated for serving as the attorney-in-fact pursuant to this section.
  6. Unless the power of attorney established by this section is terminated, revoked, or withdrawn, the attorney-in-fact named in the instrument shall exercise parental or legal authority on a continuous basis for the duration of the power of attorney established by this section.
    1. An attorney-in-fact properly appointed pursuant to this section and in compliance with this section shall not be subject to any statutes dealing with the licensing or regulation of foster care homes or other child-care facility licensing statutes, and the appointment of an attorney-in-fact pursuant to this section and KRS 403.353 shall not constitute an out-of-home child placement. (7) (a) An attorney-in-fact properly appointed pursuant to this section and in compliance with this section shall not be subject to any statutes dealing with the licensing or regulation of foster care homes or other child-care facility licensing statutes, and the appointment of an attorney-in-fact pursuant to this section and KRS 403.353 shall not constitute an out-of-home child placement.
    2. The child or children subject to the power of attorney established in this section shall not be considered placed in foster care, and the parties involved in the power of attorney established in this section shall not be subject to any requirements, monitoring, or other regulation for foster care or community care solely because of the execution of an instrument authorized pursuant to this section or KRS 403.353.
  7. Except as otherwise provided pursuant to the Kentucky Revised Statutes, the execution of a power of attorney as established pursuant to this section by a parent or legal guardian shall not by itself constitute evidence of abandonment, abuse, or neglect, unless the parent or legal guardian fails to take custody of the child or execute a new power of attorney after the one (1) year time limit has elapsed. Nothing in this subsection shall be interpreted to prevent an investigation of abuse, neglect, abandonment, other mistreatment of a child, or other crime.
    1. A parent or legal guardian shall not execute a power of attorney pursuant to this section or KRS 403.353 with the intention of permanently avoiding or divesting himself or herself of parental or legal responsibility for the care of the child or for any other illegal or fraudulent purpose. (9) (a) A parent or legal guardian shall not execute a power of attorney pursuant to this section or KRS 403.353 with the intention of permanently avoiding or divesting himself or herself of parental or legal responsibility for the care of the child or for any other illegal or fraudulent purpose.
    2. An attorney-in-fact or prospective attorney-in-fact designated or potentially designated pursuant to this section or KRS 403.353 shall not demand or request that a parent or guardian enter into an instrument established pursuant to this section or KRS 403.353 as a result of any person’s financial or other debt or obligation, or for any other illegal or fraudulent purpose.
    3. A power of attorney established pursuant to this section and KRS 403.353 shall not be used solely for the purpose of establishing residency for school attendance purposes unless the child actually resides with the attorney-in-fact in the school district where the enrollment is sought, or the child otherwise resides in the district.
    4. Violation of this section shall be punishable under Kentucky law.
  8. If a parent or legal guardian of a child chooses to delegate powers pursuant to this section regarding the care and custody of the child to a person or persons other than a grandparent, aunt, uncle, or adult sibling of the child, a full criminal history and child abuse and neglect background check shall be conducted on the person or persons prior to the execution of the power of attorney authorized by this section. The results of the background check shall be kept with the instrument establishing the power of attorney pursuant to this section. A child shall not be placed with an individual whose background check indicates that he or she has a criminal history of child abuse and neglect.
  9. Any period of time during which a child resides with an attorney-in-fact under an unexpired and valid power of attorney properly executed pursuant to this section and KRS 403.353 , shall not be included in determining whether the child has resided with the attorney-in-fact for the minimum period required to be designated a de facto custodian pursuant to KRS 403.270(1).

HISTORY: 2016 ch. 107, § 1, effective July 15, 2016; 2021 ch. 94, § 34, effective June 29, 2021.

NOTES TO DECISIONS

1.Neglect.

Despite the mother’s execution of the power of attorney after the child’s birth, there was no reason to disturb the neglect finding against her because executing a revocable power temporarily delegating some parental rights and responsibilities pursuant to Ky. Rev. Stat. Ann. §§ 403.352 and 403.353 did not preclude a finding of neglect against a parent. Further, execution of a revocable power of attorney to temporarily delegate some parental rights or responsibilities pursuant to § 403.352 and § 403.353 had limited effect and did not affect a parent’s legal rights and obligations concerning the child’s care and custody. S.G. v. Cabinet for Health & Fam. Servs., 2022 Ky. App. LEXIS 56 (Ky. Ct. App. June 3, 2022).

403.353. Form of power of attorney authorized by this section, KRS 403.352, and KRS Chapter 403A.

  1. A power of attorney established pursuant to this section, KRS 403.352 , and KRS Chapter 403A shall be substantially in the following form, and may include other specific directions which are in accordance with accepted legal practice and not specifically prohibited by any other statute. If any other specific directions are held by a court of appropriate jurisdiction to be invalid, that invalidity shall not affect the power of attorney or other provisions established in this section, KRS 403.352 , and KRS Chapter 403A. Click to view
  2. The power of attorney is legally sufficient under this section, KRS 403.352 , and KRS Chapter 403A if the wording of the form complies substantially with subsection (1) of this section, the form is properly completed and signed, and the form or parties are not otherwise invalid pursuant to KRS 403.352 .

Power of Attorney for Temporary Delegation of Parental or Legal Custody and Care 1. I certify that I am the parent or legal guardian of: (Full name of minor child) (Date of birth) (Full name of minor child) (Date of birth) (Full name of minor child) (Date of birth) 2. I designate (Full name of Attorney-in-fact), (Street address, city, state, and zip code of Attorney-in-fact) (Home phone of Attorney-in-fact) (Work phone of Attorney-in-fact) as the Attorney-in-fact of each minor child named above. 3. I delegate to the Attorney-in-fact all of my power and authority regarding the care, custody, and property of each minor child named above, including but not limited to the right to enroll the child in school, inspect and obtain copies of education records and other records concerning the child, the right to attend school activities and other functions concerning the child, and the right to give or withhold any consent or waiver with respect to school activities, medical and dental treatment, and any other activity, function, or treatment that may concern the child. This delegation shall not include the power or authority to consent to marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child. OR In the event that Section 4 is completed, Section 3 does not apply. 4. I delegate to the Attorney-in-fact the following specific powers and responsibilities (write in): 5. This power of attorney is effective for a period not to exceed one (1) year, beginning , 20, and ending , 20. I reserve the right to revoke this authority at any time ORIn the event Section 6 is completed and valid, Section 5 does not apply. 6. I am a parent or legal guardian on active duty as governed by KRS Chapter 403A. My active duty service is scheduled to begin on 20 . I acknowledge that in no event may this delegation of power last more than one (1) year or the term of my active duty plus thirty (30) days, whichever is longer. 7. BY: (Parent/Legal Guardian signature) 8. I hereby accept my designation as Attorney-in-fact for the minor child or children specified in this power of attorney. (Attorney-in-fact signature) County of ACKNOWLEDGMENT Before me, the undersigned, a Notary Public, in and for said County and State on this , (Name of Parent/Legal Guardian) (Name of Attorney-in-fact) , to me known to be the identical persons who executed this instrument and acknowledged to me that each executed the same as his or her free and voluntary act and deed for the uses and purposes set forth in the instrument. Witness my hand and official seal the day and year above written. day of , 20, personally appeared (Signature of notary public) My commission expires:

HISTORY: 2016 ch. 107, § 2, effective July 15, 2016; 2021 ch. 94, § 35, effective June 29, 2021.

NOTES TO DECISIONS

1.Neglect.

Despite the mother’s execution of the power of attorney after the child’s birth, there was no reason to disturb the neglect finding against her because executing a revocable power temporarily delegating some parental rights and responsibilities pursuant to Ky. Rev. Stat. Ann. §§ 403.352 and 403.353 did not preclude a finding of neglect against a parent. Further, execution of a revocable power of attorney to temporarily delegate some parental rights or responsibilities pursuant to § 403.352 and § 403.353 had limited effect and did not affect a parent’s legal rights and obligations concerning the child’s care and custody. S.G. v. Cabinet for Health & Fam. Servs., 2022 Ky. App. LEXIS 56 (Ky. Ct. App. June 3, 2022).

403.355. Definition of “safe child drop-off location” — Child custody exchanges in these locations.

  1. As used in this section, “safe child drop-off location” means any public building owned, leased, or occupied by the Commonwealth, or by any city or county within the Commonwealth, to which access is limited and security measures, including metal detectors, are in place.
  2. Any separation agreement, decree of divorce, temporary custody order, or post-decree order may require that exchanges of child custody take place in a safe child drop-off location at a point past the metal detectors and other security measures.
  3. Public buildings owned, leased, or occupied by the Commonwealth, or by any city or county within the Commonwealth, to which access is limited and in which security measures, including metal detectors, are in place, may allow access to spaces otherwise open to the public for use as a safe child drop-off location, but no such building shall be required to make any other accommodation for such use.

History. Enact. Acts 2013, ch. 79, § 2, effective March 22, 2013.

Uniform Child Custody Jurisdiction Act

403.400. Purposes — Construction. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 1, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.1, 26.8.

403.410. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 2, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

403.420. Prerequisites to jurisdiction — Commencement of proceeding. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 3, effective July 15, 1980; 1998, ch. 250, § 5, effective July 15, 1998) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

403.430. Notice and opportunity to be heard. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 4, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

403.440. Notice to persons outside state — Exception. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 5, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

403.450. Simultaneous proceedings in other states. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 6, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

403.460. Inconvenient forum. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 7, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

403.470. Jurisdiction declined by reason of conduct. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 8, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

403.480. Information under oath to be submitted to court — Continuing duty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 9, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

403.490. Joinder of parties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 10, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004. For current law, see KRS 403.800 to 403.880 .

403.500. Court appearance of parties and the child. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 11, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.510. Binding force and res judicata effect of custody decree. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 12, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.520. Recognition of out-of-state decree. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 13, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.530. Modification of decree of another state. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 14, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.540. Filing and enforcement of custody decree of another state. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 16, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.550. Registry of out-of-state custody decrees and proceedings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 16, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.560. Certified copies of custody decree. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 17, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.570. Taking testimony in another state. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 18, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.580. Hearings and studies in another state — Orders to appear. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 19, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.590. Assistance to courts of other states. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 20, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.600. Preservation of court records — Use in other states. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 21, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.610. Request for court records of another state. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 22, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.620. International application. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 23, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

403.630. Short title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 69, § 24, effective July 15, 1980) was repealed by Acts 2004, ch. 133, § 46, effective July 13, 2004.

Domestic Violence Councils

403.700. Council on Domestic Violence and Sexual Assault — Membership — Executive committee — Duties and responsibilities of council — Administrative and staff assistance. [Repealed]

History. Enact. Acts 2000, ch. 317, § 2, effective July 14, 2000; 2005, ch. 99, § 68, effective June 20, 2005; 2007, ch. 85, § 304, effective June 26, 2007; 2012, ch. 158, § 68, effective July 12, 2012; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2000, ch. 317, § 2, effective July 14, 2000; 2005, ch. 99, § 68, effective June 20, 2005; 2007, ch. 85, § 304, effective June 26, 2007; 2012, ch. 158, § 68, effective July 12, 2012) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

403.705. Domestic violence coordinating councils — Membership — Purpose — Local protocol required — Domestic violence fatality review teams — Duties.

  1. One (1) or more local domestic violence coordinating councils may be established in any jurisdiction or group of counties.
  2. Membership on local domestic violence coordinating councils may include, but not be limited to, judges, Commonwealth’s and county attorneys, law enforcement officers, probation or parole officers, spouse abuse center staff, other victim advocates defined under KRS 421.570 , family service workers employed by the Cabinet for Health and Family Services, mental health professionals, health care professionals, educators, public advocates, and other persons as deemed appropriate.
  3. The purpose of local domestic violence coordinating councils shall include, but not be limited to, the promotion of public awareness about domestic violence, the facilitation of interagency coordination, and the assessment of service delivery related to domestic violence.
  4. Local domestic violence coordinating councils shall develop a local protocol consistent with nationally recognized practice.
  5. Local domestic violence coordinating councils may, if authorized by the local coroner or a medical examiner, create a domestic violence fatality review team, the purpose of which shall be to prevent future deaths and injuries related to domestic violence.
  6. Domestic violence fatality review teams of local domestic violence coordinating councils may:
    1. Analyze information regarding local domestic violence fatalities to identify trends, patterns, and risk factors;
    2. Evaluate the effectiveness of local prevention and intervention strategies; and
    3. Recommend, to the appropriate state or local governmental agency , changes in the Kentucky Revised Statutes, administrative regulations, policies, budgets, and treatment and service standards that may facilitate the prevention of domestic violence fatalities. The fatality review team may establish a protocol for the investigation of domestic violence fatalities and may establish operating rules and procedures as it deems necessary to carry out the purposes of this section.
  7. The review of a case by a domestic violence fatality review team may include information from reports generated or received by agencies, organizations, or individuals responsible for investigation, prosecution, or treatment in the case.
  8. The proceedings, records, opinions, and deliberations of the domestic violence fatality review team shall be privileged and shall not be subject to discovery, subpoena, or introduction into evidence in any civil action in any manner that would directly or indirectly identify specific persons or cases reviewed by the local team. Nothing in this subsection shall be construed to restrict or limit the right to discover or use in any civil action any evidence that is discoverable independent of the proceedings of the domestic violence fatality review team.

HISTORY: Enact. Acts 2000, ch. 317, § 3, effective July 14, 2000; 2005, ch. 99, § 626, effective June 20, 2005; 2017 ch. 80, § 51, effective June 29, 2017.

403.707. Sexual Assault Response Team Advisory Committee — Co-chairs — Membership — Duties.

  1. The Sexual Assault Response Team Advisory Committee is established.
  2. The Sexual Assault Response Team Advisory Committee shall be co-chaired by the executive director of the Kentucky Association of Sexual Assault Programs and the commissioner of the Department of Kentucky State Police or the commissioner’s designee.
  3. The membership of the Sexual Assault Response Team Advisory Committee shall consist of the following:
    1. The executive director of the Kentucky Board of Nursing or the executive director’s designee;
    2. The executive director of the Kentucky Nurses Association or the executive director’s designee;
    3. The executive director of the Kentucky Hospital Association or the executive director’s designee;
    4. The executive director of the Kentucky Association of Children’s Advocacy Centers;
    5. The director of the Department of Kentucky State Police Crime Lab;
    6. The commissioner of the Department for Community Based Services or the commissioner’s designee;

    7. The director of the Victims’ Advocacy Division of the Office of the Attorney General or the director’s designee;
    8. A sexual assault nurse examiner appointed by the secretary of the Cabinet for Health and Family Services;
    9. A representative from a sexual assault response team appointed by the executive director of the Kentucky Association of Sexual Assault Programs;
    10. A physician appointed by the secretary of the Cabinet for Health and Family Services; and
    11. A Commonwealth’s attorney or an assistant Commonwealth’s attorney appointed by the Attorney General.
  4. Members appointed under subsection (3)(h) to (k) of this section shall serve at the pleasure of the appointing authority and shall not serve longer than four (4) years without reappointment.
  5. The Sexual Assault Response Team Advisory Committee shall:
    1. Serve in an advisory capacity to the Kentucky Board of Nursing in accomplishing the duties set forth under KRS 314.142 ;
    2. Serve in an advisory capacity to the Justice and Public Safety Cabinet in the development of the statewide sexual assault protocol required under KRS 216B.400(4);
    3. Develop a model protocol for the operation of sexual assault response teams which shall include the roles of sexual assault nurse examiners, physicians, law enforcement, prosecutors, and victim advocates;
    4. Provide assistance to each regional rape crisis center, as designated by the Cabinet for Health and Family Services, in establishing a regional sexual assault response team;
    5. Develop model policies for law enforcement agencies related to handling sexual assault examination kits and investigating sexual assaults with a victim-centered, evidence-based approach;
    6. By January 1, 2018, report to the General Assembly on the results of the analysis of previously untested sexual assault examination kits submitted to the Department of Kentucky State Police forensic laboratory pursuant to 2016 Ky. Acts ch. 58, sec. 1, including whether analysis of those kits led to the identification and prosecution of suspects and the cost to society of the offenses committed by the suspects identified;
    7. By July 1, 2018, and by each July 1 thereafter, report to the General Assembly and to the secretary of the Justice and Public Safety Cabinet on the number of sexual assaults reported, the number of sexual assault examination kits submitted to the Department of Kentucky State Police forensic laboratory, the number of kits tested, and the number of charges filed and convictions obtained in sexual assault cases in the previous calendar year;
    8. Provide information and recommendations concerning the activities of the agency or organization represented by each individual committee member as related to sexual assault issues and programs within the purview of the agency or organization; and
    9. Recommend to the appropriate state agency any changes in statute, administrative regulation, training, policy, and budget to promote a multidisciplinary response to sexual assault.

HISTORY: Enact. Acts 2002, ch. 20, § 4, effective July 15, 2002; 2005, ch. 99, § 69, effective June 20, 2005; 2007, ch. 85, § 305, effective June 26, 2007; 2010, ch. 101, § 3, effective July 15, 2010; 2012, ch. 158, § 69, effective July 12, 2012; 2016 ch. 58, § 5, effective April 8, 2016; 2017 ch. 80, § 52, effective June 29, 2017.

Legislative Research Commission Note.

(4/8/2016). 2016 Ky. Acts ch. 58, sec. 11 provided that that Act shall be known as the Sexual Assault Forensic Evidence (SAFE) Act of 2016. This statute was amended in Section 5 of that Act.

Domestic Violence and Abuse

403.710. Protective orders by Court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 93, § 1, effective July 15, 1980) was repealed by Acts 1984, c. 152, § 16, effective July 13, 1984.

Legislative Research Commission Note.

This section was amended by 1984 Acts Chapter 111, § 160 (the Revisor’s Bill). Pursuant to KRS 7.123 , the repeal by the nonrevisory Act prevails.

403.715. Interpretation of KRS 403.715 to 403.785.

KRS 403.715 to 403.785 shall be interpreted to:

  1. Allow victims to obtain effective, short-term protection against further wrongful conduct in order that their lives may be as secure and as uninterrupted as possible;

    Expand the ability of law enforcement officers to effectively respond to further wrongful conduct so as to prevent future incidents and to provide assistance to the victims;

    (3) Provide peace officers with the authority to immediately apprehend and charge for violation of an order of protection any person whom the officer has probable cause to believe has violated an order of protection and to provide courts with the authority to conduct contempt of court proceedings for these violations;

    (4) Provide for the collection of data concerning incidents of domestic violence and abuse in order to develop a comprehensive analysis of the numbers and causes of such incidents; and

(5) Supplement and not repeal or supplant any duties, responsibilities, services, or penalties under KRS Chapters 209, 209A, and 620.

HISTORY: Enact. Acts 1984, ch. 152, § 1, effective July 13, 1984; 1992, ch. 172, § 1, effective July 14, 1992; repealed and reenacted by 2015 ch. 102, § 1, effective January 1, 2016.

NOTES TO DECISIONS

1.Construction.

Kentucky’s domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence, but the construction cannot be unreasonable; a court is not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used. Barnett v. Wiley, 103 S.W.3d 17, 2003 Ky. LEXIS 68 ( Ky. 2003 ).

Under KRS 403.715(1), the domestic violence and abuse statutes are to be interpreted by the District Courts to allow victims to obtain protection against further violence and abuse; if a domestic violence order (DVO) has been effective in giving protection to a victim of domestic violence and abuse, then the District Court should not be required to reject a request to extend the effective period of the DVO simply because no additional acts have occurred. Kingrey v. Whitlow, 150 S.W.3d 67, 2004 Ky. App. LEXIS 39 (Ky. Ct. App. 2004).

Police officer who did not arrest a victim’s boyfriend for domestic violence, pursuant to KRS 403.715 , 403.785 , and 431.005 , in the absence of clear evidence of physical assault or injury, was entitled to defense of qualified immunity, as the effecting of any arrest was within the officer’s discretion. Howard v. Bayes, 378 F. Supp. 2d 753, 2005 U.S. Dist. LEXIS 20066 (E.D. Ky. 2005 ), aff'd, 457 F.3d 568, 2006 FED App. 0285P, 2006 U.S. App. LEXIS 20378 (6th Cir. Ky. 2006 ).

Trial court erred by entering a sua sponte mutual protection order against a mother in a domestic violence proceeding the mother filed against the father because there was no provision under KRS 403.750(1)(h) and 403.715 that permitted the court to sua sponte enter the order when no petition for domestic violence was filed against the mother. Manning v. Willett, 221 S.W.3d 394, 2007 Ky. App. LEXIS 112 (Ky. Ct. App. 2007).

Domestic violence order (DVO) issued against an ex-husband was properly extended for three more years because the evidence showed that the ex-wife had been the victim of extensive domestic violence during the parties’ marriage, that the ex-husband’s conduct after the marriage continued to be such that the ex-wife lived in fear of what he would do, and that the ex-husband again began harassing the ex-wife when the first DVO expired. The fact that the DVO had been effective in giving protection to the ex-wife should not have resulted in a mandatory rejection of a request to extend the effective period of the DVO simply because no additional acts had occurred. Baird v. Baird, 234 S.W.3d 385, 2007 Ky. App. LEXIS 332 (Ky. Ct. App. 2007).

2.Due Process.

Ex-boyfriend sought a continuance of the domestic violence order (DVO) hearing until the ex-girlfriend could be deposed, but the trial court denied the motion; he did not show how postponing the DVO hearing to conduct discovery would have changed the outcome of the proceedings, the timely holding the domestic violence hearing is essential to the purpose of the statutes, and as the trial court conducted the hearing in a full and fair manner, the ex-boyfriend was afforded due process. Hohman v. Dery, 371 S.W.3d 780, 2012 Ky. App. LEXIS 330 (Ky. Ct. App. 2012).

3.Extension of Domestic Violence Order.

Extension of a domestic violence order (DVO) for one year was proper as KRS 403.750(2) did not require proof of additional acts of violence, and a hearing was not required before an extension of a DVO was ordered; trial court properly considered the circumstances surrounding the original issuance of the DVO and the effectiveness of the DVO in preventing any violence between the parties, which fully satisfied the purpose of Kentucky’s domestic violence and abuse policy under KRS 403.715(1). Kessler v. Switzer, 289 S.W.3d 228, 2009 Ky. App. LEXIS 76 (Ky. Ct. App. 2009).

Contempt order against appellant was improperly entered, because the record reflected that he was not successfully served with the amended domestic violence order (DVO) and accompanying orders as required by KRS 403.735 (6) before he contacted his former wife by letter after the expiration date of the original DVO. The notice and service requirements set forth in KRS 403.735 , which apply to any order of protection issued pursuant to KRS 403.715 through KRS 403.785 , and KRS 403.750(3), must be satisfied before an amended DVO may become effective. Stinson v. Stinson, 381 S.W.3d 333, 2012 Ky. App. LEXIS 202 (Ky. Ct. App. 2012).

Cited:

Wright v. Wright, 181 S.W.3d 49, 2005 Ky. App. LEXIS 260 (Ky. Ct. App. 2005).

Opinions of Attorney General.

Local law enforcement agencies are required to make available for public inspection the arrest records of all persons; police departments are required to maintain daily logs of arrests made by police officers and to make them available for public inspection, and no provision in the Domestic Violence and Abuse Act makes arrest records and incident reports confidential. OAG 91-12 .

If the accused has apparently desisted from the threat of danger to the victim and victim’s present location is apparently safe from attack, the decision to seek promptly an arrest warrant and a domestic violence protective order pursuant to KRS 403.715 to 403.785 rather than undertake a warrantless arrest would be justified and appropriate. Conversely, if the accused has fled from the scene of the attack and the officer determines that there is probable cause to believe that the accused intentionally or wantonly caused physical injury to the victim and still presents an immediate threat of danger, for example, because the accused may return to the victim’s dwelling or other location or because the accused may follow, menace, stalk, or otherwise stay in the vicinity of the victim; a warrantless arrest under KRS 431.005(2) would be justified. OAG 92-96 .

The limited definition of “peace officer” set forth in KRS 431.005(3) (now (4)) as affecting a special deputy sheriff (KRS 70.045 ) applies only in relation to an arrest made without a warrant pursuant to KRS 431.005(2) (now (3)), in the “domestic violence” circumstance. This limited definition does not restrict the authority of a special deputy sheriff, as a peace officer, to make an arrest without a warrant as required by KRS 403.760(2), for violation of a protective order issued under the provisions of KRS 403.740 or 403.750 pursuant to KRS 500.020 , this section, and KRS 403.740 . OAG 92-140 .

Research References and Practice Aids

Kentucky Bench & Bar.

Gagne with Grandon, Across the Great Divide: A Sociological Analysis of Domestic Violence from Two Perspectives, Vol. 67, No. 5, Sept. 2003, Ky. Bench & Bar 7.

Cullison, How Kentucky’s Civil Legal Aid Programs Assist Victims of Domestic Violence: One Program’s Perspective, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 6.

Hill, EPOs and DVOs: Significant Protection; Significant Restrictions; Potential for Abuse, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 15.

Northern Kentucky Law Review.

Jones, Kentucky Tort Liability for Failure to Report Family Violence, 26 N. Ky. L. Rev. 43 (1999).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Domestic Violence, § 264.00.

Petrilli, Kentucky Family Law, Actions, § 17.15.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.27.

403.720. Definitions for KRS 403.715 to 403.785.

As used in KRS 403.715 to 403.785 :

  1. “Domestic animal” means a dog, cat, or other animal that is domesticated and kept as a household pet, but does not include animals normally raised for agricultural or commercial purposes;
  2. “Domestic violence and abuse” means:
    1. Physical injury, serious physical injury, stalking, sexual abuse, strangulation, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, strangulation, or assault between family members or members of an unmarried couple; or
    2. Any conduct prohibited by KRS 525.125 , 525.130 , 525.135 , or 525.137 , or the infliction of fear of such imminent conduct, taken against a domestic animal when used as a method of coercion, control, punishment, intimidation, or revenge directed against a family member or member of an unmarried couple who has a close bond of affection to the domestic animal;
  3. “Family member” means a spouse, including a former spouse, a grandparent, a grandchild, a parent, a child, a stepchild, or any other person living in the same household as a child if the child is the alleged victim;
  4. “Foreign protective order” means any judgment, decree, or order of protection which is entitled to full faith and credit pursuant to 18 U.S.C. sec. 2265 that was issued on the basis of domestic violence and abuse;
  5. “Global positioning monitoring system” means a system that electronically determines a person’s location through a device worn by the person which does not invade his or her bodily integrity and which transmits the person’s latitude and longitude data to a monitoring entity;
  6. “Member of an unmarried couple” means each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together;
  7. “Order of protection” means an emergency protective order or a domestic violence order and includes a foreign protective order;
  8. “Strangulation” refers to conduct prohibited by KRS 508.170 and 508.175 , or a criminal attempt, conspiracy, facilitation, or solicitation to commit the crime of strangulation; and
  9. “Substantial violation” means criminal conduct which involves actual or threatened harm to the person, family, or property, including a domestic animal, of an individual protected by an order of protection.

History. Enact. Acts 1984, ch. 152, § 2, effective July 13, 1984; 1988, ch. 258, § 4, effective July 15, 1988; 1992, ch. 172, § 2, effective July 14, 1992; 2010, ch. 170, § 1, effective July 15, 2010; 2015 ch. 102, § 2, effective January 1, 2016; 2019 ch. 183, § 3, effective June 27, 2019; 2021 ch. 175, § 4, effective April 1, 2021; 2022 ch. 158, § 1.

Legislative Research Commission Notes.

(7/15/2010). 2010 Ky. Acts ch. 170, sec. 20, provides that the amendments made to KRS 15.334 , 403.720 , 403.735 , 403.740 , 403.750 , 431.005 , 431.517 , 431.518 , 431.520 , 533.030 , and 533.250 and the creation of KRS 67.372 , 67.374 , 403.741 , 403.743 , 403.747 , 403.761 , 403.762 , and 511.085 in that Act shall be known as the “Amanda Ross Domestic Violence Prevention Act.”

NOTES TO DECISIONS

1.Domestic Violence and Abuse.

The standard of proof necessary pursuant to subsection (1) of this section to establish that a person is a victim of domestic violence and therefore exempt from the requirements of KRS 439.3401(3), the violent offender statute, is the preponderance of the evidence standard set forth in KRS 403.740 and merely requires that the evidence believed by the fact-finder be sufficient that the defendant was more likely than not to have been a victim of domestic violence. Commonwealth v. Anderson, 934 S.W.2d 276, 1996 Ky. LEXIS 121 ( Ky. 1996 ).

Where the evidence did not support a finding that defendant had been a victim of domestic violence in that he did not offer proof that he had ever suffered physical injury or serious physical injury or that he had been sexually abused or assaulted as a result of his wife’s actions and although wife had threatened to harm him and burn down their house neither he nor other family members testified that they actually feared she would carry out her threats and defendant was not aware of her threats until after the shooting, the Circuit Court properly denied defendant’s motion for exemption from the restrictions of KRS 439.3401 and 533.060 . Jacobs v. Commonwealth, 947 S.W.2d 416, 1997 Ky. App. LEXIS 7 (Ky. Ct. App. 1997).

Family court properly issued a domestic violence order restraining a father, under KRS 403.750 ; the court did not consider hearsay evidence regarding comments a minor child allegedly made to a babysitter concerning sexual abuse of the child by the father, and the testimony of the mother and a social worker regarding their own actions and observations as to the child supported the trial court’s ruling. S.L.T. v. R.J.C., 196 S.W.3d 530, 2006 Ky. App. LEXIS 204 (Ky. Ct. App. 2006).

Preponderance of the evidence supported the issuance of a domestic violence order against a husband based on a wife’s testimony, which included testimony that the husband had threatened the wife in the past and that she was fearful of him. Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

Defendant was entitled to post-conviction relief under RCr 11.42 because the trial court committed clear error in determining that the domestic violence exception to the violent offender statute, KRS 439.3401(5), did not apply to defendant where defendant’s sister was involved in an ongoing relationship with a homicide victim that was frequently punctuated by domestic violence, where the homicide victim fled the sister’s apartment after one such violent episode and the sister was taken to the hospital for medical treatment, where defendant and other family members went to the apartment to repair a phone broken in the altercation and the homicide victim returned, where they ordered the homicide victim to leave but he refused, and where defendant, after the homicide victim advanced menacingly toward him, fired seven shots and killed the homicide victim. The exception applied because the facts showed that a family member of defendant — his sister — was a domestic violence victim as defined in KRS 403.720(2), that the homicide victim and defendant’s sister were members of an unmarried couple as defined in KRS 403.720(3), that the violence between the homicide victim and defendant’s sister satisfied the definition of domestic violence under KRS 403.720(1), and that a connection existed between the domestic violence and the victim’s death. Fuston v. Commonwealth, 2009 Ky. App. LEXIS 140 (Ky. Ct. App. Aug. 21, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1088 (Ky. Ct. App. Aug. 21, 2009), review denied, ordered not published, 2010 Ky. LEXIS 31 (Ky. Jan. 13, 2010).

Because appellant’s actions were more akin to unwanted touching, which standing alone would not meet the definition of domestic violence, under KRS 403.720(1), 403.750(1), the family court did not show that domestic violence and abuse had occurred and might occur again and erred in granting a domestic violence order to appellee. Telek v. Daugherty, 376 S.W.3d 623, 2012 Ky. App. LEXIS 154 (Ky. Ct. App. 2012).

Entry of a Domestic Violence Order (DVO) against the former husband was improper under KRS 403.740 because, although the trial court did have jurisdiction to enter the DVO, it erred in entering the DVO since the record did not support by a preponderance of the evidence that domestic violence might occur again. The former wife’s monosyllabic responses to her attorney’s leading questions regarding verbal abuse and her fear of future abuse similar to the altercation between the parties was insufficient. Guenther v. Guenther, 379 S.W.3d 796, 2012 Ky. App. LEXIS 174 (Ky. Ct. App. 2012).

Inquiry was whether substantial evidence supported a finding that the ex-boyfriend inflicted upon his ex-girlfriend a fear of imminent physical injury or assault; she said she felt threatened and believed her ex-boyfriend was unable to control his emotions and his aggressive confrontations would escalate, and the trial court could have inferred that the ex-girlfriend feared imminent injury, such that the finding of domestic violence was not clearly erroneous, and the denial of the ex-boyfriend’s motion to vacate the order was proper. Hohman v. Dery, 371 S.W.3d 780, 2012 Ky. App. LEXIS 330 (Ky. Ct. App. 2012).

Trial court did not err in entering a Domestic Violence Order (DVO) as appellant made serious threats of domestic violence against appellee because appellant did not have the right to protect himself under the castle doctrine as appellant granted appellee permission to pick up their child's shoes from his house within 48 hours of the incident; appellant was not threatened or intimidated by appellee to the point that he felt he needed to use deadly force to protect himself; his text message that she had no right to be on his property and that he would shoot her if she ever came back constituted an imminent threat of domestic violence; and serious threats of physical violence were made and could continue to be made by appellant. Gibson v. Campbell-Marletta, 503 S.W.3d 186, 2016 Ky. App. LEXIS 185 (Ky. Ct. App. 2016).

Family court erred in denying an incarcerated father visitation with his children because there was a statutory presumption that visitation was in the child's best interest, a maternal uncle could not act as the grandfather's “attorney-in-fact” inasmuch as such representation entailed the unauthorized practice of law, and his statements constituted inadmissible hearsay, and while domestic violence and abuse were alleged, the matter was not properly filed where there was no custody order in the paternity action, and should be filed where custody had been determined. Baldwin v. Mollette, 527 S.W.3d 830, 2017 Ky. App. LEXIS 467 (Ky. Ct. App. 2017).

Trial court’s finding that the dispute between defendant and the boyfriend being over money somehow excluded it from also being an act of domestic violence was erroneous where the boyfriend’s taking defendant’s money was an act of domestic violence in the context of the extensive evidence about the couple’s relationship. Roberts v. Commonwealth, 599 S.W.3d 841, 2020 Ky. LEXIS 69 ( Ky. 2020 ).

Domestic violence order on behalf of a daughter against the stepfather was not clearly erroneous as family court’s oral findings under Ky. Rev. Stat. Ann. ch. 403 were properly incorporated into its written order, and stepfather’s kissing of the twelve-year-old child with his tongue was more than sufficient to create a concern of future abuse, putting her in fear of imminent physical injury. Smith v. Commonwealth, 636 S.W.3d 421, 2021 Ky. LEXIS 421 ( Ky. 2021 ).

2.“Family Member”.

For the purposes of the domestic violence statutes, two homosexual men living together in an intimate relationship are not family members but are members of an “unmarried couple who are living together” and, thus, may benefit from the protection of the domestic violence statutes by filing petitions for a domestic violence order and for a restraining order. Ireland v. Davis, 957 S.W.2d 310, 1997 Ky. App. LEXIS 131 (Ky. Ct. App. 1997).

KRS 403.720(2) was ambiguous in its method of determining kinship within the second degree, and since, in interpreting an ambiguous penal statute, doubt was to have been resolved in favor of the accused, the common law method for computing kinship was applied in interpreting KRS 403.720(2); use of the common law method for computing kinship brought defendant’s manslaughter case within the availability of the exception for victims of domestic violence, since the victim, defendant’s cousin, was related to defendant’s mother in the second degree, and defendant claimed that he shot the victim after the victim had attacked and choked defendant’s mother. Kirby v. Commonwealth, 132 S.W.3d 233, 2004 Ky. App. LEXIS 82 (Ky. Ct. App. 2004).

Boyfriend’s nephew was a member of the boyfriend’s family as defined by KRS 403.720(2) and, therefore, would be subject to the protection of the domestic violence statutes; however, he was a minor and could not file a petition on his own behalf. Hunter v. Mena, 302 S.W.3d 93, 2010 Ky. App. LEXIS 4 (Ky. Ct. App. 2010).

3.Member of an Unmarried Couple.

Plain language of KRS 403.720(3) (now (4)) cannot be stretched to construe a mere dating relationship as falling within the definition of an “unmarried couple.” Barnett v. Wiley, 103 S.W.3d 17, 2003 Ky. LEXIS 68 ( Ky. 2003 ).

While KRS 403.720(3) (now (4)) does not define “living together,” courts give substance to this language, and in doing so they should focus on the purpose of the statute rather than technicalities; the point of domestic violence legislation is to protect victims from harm caused by the persons whose intimate physical relationship to the victim increases the danger of harm, either because the parties live in physical proximity or because the relationship is one whose intimacy may disable the victim from seeking protection. Barnett v. Wiley, 103 S.W.3d 17, 2003 Ky. LEXIS 68 ( Ky. 2003 ).

Phrase “living together” in KRS 403.720(3) (now (4)) implies some sort of cohabitation; this is consistent with the dictionary definition of “cohabitation,” which means the fact or state of living together, especially as partners in life, usually with the suggestion of sexual relations. Barnett v. Wiley, 103 S.W.3d 17, 2003 Ky. LEXIS 68 ( Ky. 2003 ).

Six Kellogg factors (i.e., sexual relations between the parties while sharing the same living quarters, sharing of income or expenses, joint use or ownership of property, whether the parties hold themselves out as husband and wife, the continuity of the relationship, and the length of the relationship) are relevant in determining whether two people are “living together” within the meaning of KRS 403.720 , but, under the plain language of that statute, there must be, at a minimum, proof that the petitioner seeking a Domestic Violence Order shares or has shared living quarters with the respondent before a finding can be made that the two are an “unmarried couple” under KRS § 403.725 . Barnett v. Wiley, 103 S.W.3d 17, 2003 Ky. LEXIS 68 ( Ky. 2003 ).

Appellee first individual was not a “member of an unmarried couple” within the meaning of KRS 403.725 , and therefore lacked standing to seek a Domestic Violence Order (DVO) against appellant second individual where the parties were not related; had no children together; and were not “living together” within the meaning of KRS 403.720(3) (now (4)) given that they had never shared living quarters, either on a temporary or permanent basis. Accordingly, the trial court erred in issuing a DVO against the second individual. Barnett v. Wiley, 103 S.W.3d 17, 2003 Ky. LEXIS 68 ( Ky. 2003 ).

In determining standing to seek a domestic violence order as a member of an unmarried couple, the court should consider whether there was evidence of: (1) sexual relations between the parties while sharing the same living quarters; (2) sharing of income or expenses; (3) joint use or ownership of property; (4) holding themselves out as husband and wife; (5) the continuity of the relationship; and (6) the length of the relationship. Randall v. Stewart, 223 S.W.3d 121, 2007 Ky. App. LEXIS 64 (Ky. Ct. App. 2007).

Trial court’s issuance of a domestic violence order was clearly erroneous because it was not supported by substantial evidence; there was insufficient evidence that they were “living together” under KRS 403.720(3) (now (4)), since, while they dated for approximately 18 months, there was no evidence they had sexual relations while sharing living quarters, there was no evidence they shared living quarters, and there was no evidence they shared income or expenses, jointly owned or used any property, or presented themselves as husband and wife. Randall v. Stewart, 223 S.W.3d 121, 2007 Ky. App. LEXIS 64 (Ky. Ct. App. 2007).

Because the parties did not share financial resources, own property jointly, or live in circumstances indicative of cohabitation, they were not “members of an unmarried couple” as defined in KRS 403.720 ; therefore, a domestic violence order could not be issued against the boyfriend pursuant to KRS 403.725 . Rivers v. Howell, 276 S.W.3d 279, 2008 Ky. App. LEXIS 378 (Ky. Ct. App. 2008).

Where defendant killed his sister’s abusive boyfriend, substantial evidence supported a conclusion that defendant’s sister and the boyfriend were members of an unmarried couple under subsection (3) (now (4)) for purposes of the domestic violence exception to the violent offender statute under KRS 439.3401(5) because the evidence established that the boyfriend resided in the sister’s apartment and help pay the bills. Further, a district court had previously determined that the boyfriend and defendant’s sister were members of an unmarried couple when it entered a domestic violence order under KRS 403.725 , which clearly required that only a family member or member of an unmarried couple could obtain such an order. Fuston v. Commonwealth, 2009 Ky. App. LEXIS 140 (Ky. Ct. App. Aug. 21, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1088 (Ky. Ct. App. Aug. 21, 2009), review denied, ordered not published, 2010 Ky. LEXIS 31 (Ky. Jan. 13, 2010).

Court issued erroneous jury instructions on a fleeing charge because no mention was made of the statutory term, “unmarried couple” in KRS 403.720 ; the instructions were at odds with KRS 520.095 , which required the jury to find defendant was “fleeing immediately after committing an act of domestic violence.” The jury was not instructed to find that defendant and the complainant were members of an unmarried couple. Wright v. Commonwealth, 2012 Ky. LEXIS 170 (Ky. Oct. 25, 2012), modified, 391 S.W.3d 743, 2012 Ky. LEXIS 496 ( Ky. 2012 ), modified, 2013 Ky. LEXIS 209 (Ky. Feb. 21, 2013).

Jury was improperly instructed on the elements of first-degree fleeing or evading because (1) KRS 520.095 required a finding that defendant was fleeing immediately after committing an act of domestic violence as defined in KRS 403.720 , requiring findings that defendant committed an act of violence enumerated in KRS 403.720 , and that defendant and the victim were members of an “unmarried couple,” but, (2) under the instruction given, the jury had to find defendant guilty if the jury decided defendant and the victim had “shared living quarters,” without mentioning the statutory definition of an “unmarried couple” in KRS 403.720(4), so the instructions were too broad. Wright v. Commonwealth, 391 S.W.3d 743, 2012 Ky. LEXIS 496 ( Ky. 2012 ).

4.“Living Together”.

“Living together” under KRS 403.720(3) (now (4)), which gives a party standing to seek a domestic violence order, implies some sort of cohabitation. Randall v. Stewart, 223 S.W.3d 121, 2007 Ky. App. LEXIS 64 (Ky. Ct. App. 2007).

5.Extension of Expired Domestic Violence Order Improper.

Order extending a prior domestic violence order (DVO) pursuant to KRS 403.750(2) after it had expired was error because, when the prior DVO expired, the trial court lost jurisdiction and the case was concluded; no further action could have been based on the expired DVO, and a new domestic violence petition should have been filed. Fedders v. Vogt-Kilmer, 292 S.W.3d 905, 2009 Ky. App. LEXIS 121 (Ky. Ct. App. 2009).

Cited:

Wright v. Wright, 181 S.W.3d 49, 2005 Ky. App. LEXIS 260 (Ky. Ct. App. 2005); Holland v. Commonwealth, 192 S.W.3d 433, 2005 Ky. App. LEXIS 290 (Ky. Ct. App. 2005); Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Hill, EPOs and DVOs: Significant Protection; Significant Restrictions; Potential for Abuse, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 15.

Polley, Amanda’s Law Brings Changes, Vol. 74, No. 5, September 2010, Ky. Bench & Bar 26.

Kentucky Law Journal.

McClure, The Battered Woman Syndrome and the Kentucky Criminal Justice System: Abuse Excuse or Legitimate Mitigation?, 85 Ky. L.J. 169 (1997).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Domestic Violence, § 264.00.

Petrilli, Kentucky Family Law, Actions, § 17.15.

403.725. Petition for order of protection — Venue — Verified contents — Concurrent jurisdiction — Protocols for access and supplemental jurisdiction — Referral.

  1. A petition for an order of protection may be filed by:
    1. A victim of domestic violence and abuse; or
    2. An adult on behalf of a victim who is a minor otherwise qualifying for relief under this subsection.
  2. The petition may be filed in the victim’s county of residence or a county where the victim has fled to escape domestic violence and abuse.
  3. The petition shall be verified and contain:
    1. The name, age, address, occupation, residence, and school or postsecondary institution of the petitioner;
    2. The name, age, address, occupation, residence, and school or postsecondary institution of the person or persons who have engaged in the alleged act or acts complained of in the petition;
    3. The facts and circumstances which constitute the basis for the petition;
    4. The date and place of the marriage of the parties, if applicable; and
    5. The names, ages, and addresses of the petitioner’s minor children, if applicable.
  4. The petition shall be filed on forms prescribed by the Administrative Office of the Courts and provided to the person seeking relief by the circuit clerk or by another individual authorized by the court to provide and verify petitions in emergency situations, such as law enforcement officers, Commonwealth’s or county attorneys, and regional rape crisis centers or domestic violence shelters.
  5. All petitions requested, completed, and signed by persons seeking protection under this chapter shall be accepted and filed with the court.
    1. Jurisdiction over petitions filed under this chapter shall be concurrent between the District Court and Circuit Court and a petition may be filed by a petitioner in either court, except that a petition shall be filed in a family court if one has been established in the county where the petition is filed. (6) (a) Jurisdiction over petitions filed under this chapter shall be concurrent between the District Court and Circuit Court and a petition may be filed by a petitioner in either court, except that a petition shall be filed in a family court if one has been established in the county where the petition is filed.
    2. The Court of Justice shall provide a protocol for twenty-four (24) hour access to orders of protection in each county with any protocol, whether statewide or local, being subject to Supreme Court review and approval of the initial protocol and any subsequent amendments. This protocol may allow for petitions to be filed in or transferred to a court other than those specified in paragraph (a) of this subsection.
    3. The Court of Justice may authorize by rule that petitions in a specific county be filed in accordance with a supplemental jurisdictional protocol adopted for that county. This protocol may provide for petitions to be filed in or transferred to a court other than those specified in paragraph (a) of this subsection.
      1. In addition to the protocols for twenty-four (24) hour access established under paragraphs (b) and (c) of this subsection, before January 1, 2019, the Court of Justice shall provide protocols for filing, including electronic filing, of petitions for orders of protection at those regional rape crisis centers designated under KRS 211.600 , or regional domestic violence shelters designated under KRS 209A.045 , that elect to participate in any county’s twenty-four (24) hour access protocol. (d) 1. In addition to the protocols for twenty-four (24) hour access established under paragraphs (b) and (c) of this subsection, before January 1, 2019, the Court of Justice shall provide protocols for filing, including electronic filing, of petitions for orders of protection at those regional rape crisis centers designated under KRS 211.600 , or regional domestic violence shelters designated under KRS 209A.045 , that elect to participate in any county’s twenty-four (24) hour access protocol.
      2. These protocols shall be subject to Supreme Court review for approval of the initial protocol and any subsequent amendments.
  6. Any judge to whom a petition is referred under subsection (6) of this section shall have full authority to review and hear a petition and subsequently grant and enforce an order of protection.
  7. If the judge of a court in which there is a pending request for modification or enforcement of an existing order of protection is unavailable or unable to act within a reasonable time, the proceedings may be conducted by any judge of the county in accordance with court rules.

HISTORY: Enact. Acts 1984, ch. 152, § 3, effective July 13, 1984; 1992, ch. 172, § 3, effective July 14, 1992; 1992, ch. 414, § 4, effective July 14, 1992; 1996, ch. 99, § 1, effective July 15, 1996; 2015 ch. 102, § 3, effective January 1, 2016; 2018 ch. 115, § 6, effective July 14, 2018.

Legislative Research Commission Note.

(7/14/2018). Pursuant to 2018 Ky. Acts ch. 115, sec. 12, that Act shall be known as the Women's Dignity in the Justice System Act. This statute was amended in Section 6 of that Act.

NOTES TO DECISIONS

1.In General.

In regard to a protective order, the distinction between prohibitory and affirmative orders represents the fairest balance between protecting the due process rights of a nonresident defendant and the state’s clearly-articulated interest in protecting a spouse and a child against domestic violence. Spencer v. Spencer, 191 S.W.3d 14, 2006 Ky. App. LEXIS 115 (Ky. Ct. App. 2006).

Girlfriend could have filed a petition on behalf of the boyfriend’s nephew but the girlfriend’s petition clearly was not filed on the nephew’s behalf; the girlfriend filed the petition on her own behalf, and thus, her petition could not justify entry of an order protecting the boyfriend, and that portion of the domestic violence order (DVO) prohibiting the boyfriend’s contact with his nephew had to be stricken from the DVO. Hunter v. Mena, 302 S.W.3d 93, 2010 Ky. App. LEXIS 4 (Ky. Ct. App. 2010).

2.Family Member.

For the purposes of the domestic violence statutes, two homosexual men living together in an intimate relationship are not family members but are members of an “unmarried couple who are living together” and, thus, may benefit from the protection of the domestic violence statutes by filing petitions for a domestic violence order and for a restraining order. Ireland v. Davis, 957 S.W.2d 310, 1997 Ky. App. LEXIS 131 (Ky. Ct. App. 1997).

3.Member of an Unmarried Couple.

Six (6) Kellogg factors (i.e., sexual relations between the parties while sharing the same living quarters, sharing of income or expenses, joint use or ownership of property, whether the parties hold themselves out as husband and wife, the continuity of the relationship, and the length of the relationship) are relevant in determining whether two (2) people are “living together” within the meaning of KRS 403.720 , but, under the plain language of that statute, there must be, at a minimum, proof that the petitioner seeking a Domestic Violence Order shares or has shared living quarters with the respondent before a finding can be made that the two are an “unmarried couple” under KRS 403.725 . Barnett v. Wiley, 103 S.W.3d 17, 2003 Ky. LEXIS 68 ( Ky. 2003 ).

Appellee first individual was not a “member of an unmarried couple” within the meaning of KRS 403.725 , and therefore lacked standing to seek a Domestic Violence Order (DVO) against appellant second individual where the parties were not related; had no children together; and were not “living together” within the meaning of KRS 403.720(3) given that they had never shared living quarters, either on a temporary or permanent basis. Accordingly, the trial court erred in issuing a DVO against the second individual. Barnett v. Wiley, 103 S.W.3d 17, 2003 Ky. LEXIS 68 ( Ky. 2003 ).

Under the plain language of the statute, there had to be, at a minimum, proof that the alleged victim shared or had shared living quarters with the alleged attacker before a finding could be made that the two were an “unmarried couple” under KRS 403.725 . Randall v. Stewart, 223 S.W.3d 121, 2007 Ky. App. LEXIS 64 (Ky. Ct. App. 2007).

In determining standing to seek a domestic violence order as a member of an unmarried couple, the court should consider whether there was evidence of: (1) sexual relations between the parties while sharing the same living quarters; (2) sharing of income or expenses; (3) joint use or ownership of property; (4) holding themselves out as husband and wife; (5) the continuity of the relationship; and (6) the length of the relationship. Randall v. Stewart, 223 S.W.3d 121, 2007 Ky. App. LEXIS 64 (Ky. Ct. App. 2007).

Because the parties did not share financial resources, own property jointly, or live in circumstances indicative of cohabitation, they were not “members of an unmarried couple” as defined in KRS 403.720 ; therefore, the girlfriend lacked standing to pursue a domestic violence order against the boyfriend pursuant to KRS 403.725 . Rivers v. Howell, 276 S.W.3d 279, 2008 Ky. App. LEXIS 378 (Ky. Ct. App. 2008).

4.Enforcement.

Circuit Court properly denied a father’s petition for injunctive relief in which he sought an order prohibiting the Family Court from enforcing its domestic violence order, as the mother was entitled to seek protection against allegations that the father physically abused his children under KRS 403.725(1). Cottrell v. Cottrell, 114 S.W.3d 257, 2002 Ky. App. LEXIS 2357 (Ky. Ct. App. 2002).

Since the trial court did not have personal jurisdiction over the husband, who was not a resident of Kentucky, insofar as the protective order prohibited him from breaking the law in Kentucky by approaching the wife and child, it comported with due process; in all other respects, it went beyond the permissible limits of Kentucky courts’ jurisdiction. Spencer v. Spencer, 191 S.W.3d 14, 2006 Ky. App. LEXIS 115 (Ky. Ct. App. 2006).

5.Jurisdiction.

Unlike the residency requirements to establish home-state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, KRS 403.800 et seq., there is no minimum time period under KRS 403.725 to establish residency for entry of a domestic violence order (DVO). As a mother had clearly re-established her residency in Kentucky, the trial court had subject-matter jurisdiction to grant her a DVO. Bissell v. Baumgardner, 236 S.W.3d 24, 2007 Ky. App. LEXIS 304 (Ky. Ct. App. 2007).

Where a father, who was domiciled in Utah, made an alleged threat to kill their son’s mother in Kentucky, that state had personal jurisdiction over him in the mother’s action to obtain a domestic violence order. Bissell v. Baumgardner, 236 S.W.3d 24, 2007 Ky. App. LEXIS 304 (Ky. Ct. App. 2007).

Family Courts have concurrent jurisdiction with District Courts regarding the issuance of domestic violence orders. Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

Family Court, as a division of the Circuit Court, had jurisdiction to enter a domestic violence order even though a District Court had denied an emergency protective order due to the fact that a dissolution proceeding involving the parties was pending within the Circuit Court. Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

Contrary to a husband’s arguments, the fact that a District Court declined to issue an emergency protective order did not leave a Family Court without jurisdiction to issue a domestic violence order subsequent to a hearing on a wife’s petition; under KRS 23A.100(3), the Family Court was the primary forum for cases involving domestic violence and abuse although the District Court had concurrent jurisdiction to enter protective orders under KRS 403.725 . Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

Family court did not lack subject matter jurisdiction where there was no evidence that it was the girlfriend’s intent to establish permanent residency in Indiana and abandon her Kentucky domicile; absent that intent, the girlfriend’s temporary residence out of the state, even for an indefinite period, would not constitute the party a non-resident. Hunter v. Mena, 302 S.W.3d 93, 2010 Ky. App. LEXIS 4 (Ky. Ct. App. 2010).

6.Venue.

Mother was not entitled to writs of prohibition and mandamus because she could not show that the circuit court was in error in issuing a domestic violence order (DVO), that she had no remedy by appeal or otherwise, that great injustice and irreparable injury will result, or “force” another circuit court to conform its custody orders in the separate DVO action because she would have the opportunity to appeal any final order by that court, neither the DVO nor the custody and visitation order took precedence over the other, and the mother could request the DVO court transfer the matter to the court where the custody action was pending. Patterson v. Winchester, 482 S.W.3d 792, 2016 Ky. App. LEXIS 73 (Ky. Ct. App. 2016).

Cited:

Wright v. Wright, 181 S.W.3d 49, 2005 Ky. App. LEXIS 260 (Ky. Ct. App. 2005); Manning v. Willett, 221 S.W.3d 394, 2007 Ky. App. LEXIS 112 (Ky. Ct. App. 2007).

Research References and Practice Aids

Kentucky Bench & Bar.

Grandon, Recent Changes in Kentucky Laws Related to Domestic Violence, Winter 1998, Vol. 62, No. 1, Ky. Bench & Bar 10.

Cullison, How Kentucky’s Civil Legal Aid Programs Assist Victims of Domestic Violence: One Program’s Perspective, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 6.

Kentucky Law Journal.

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

May, Social Reform for Kentucky’s Judicial System: The Creation of Unified Family Courts, 92 Ky. L.J. 571 (2003).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Domestic Violence Petition/Motion (AOC 275.1), Form 264.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Domestic Violence, § 264.00.

403.730. Immediate review of petition — Summons to evidentiary hearing — Ex parte emergency protective order.

    1. The court shall review a petition for an order of protection immediately upon its filing. If the review indicates that domestic violence and abuse exists, the court shall summons the parties to an evidentiary hearing not more than fourteen (14) days in the future. If the review indicates that such a basis does not exist, the court may consider an amended petition or dismiss the petition without prejudice. (1) (a) The court shall review a petition for an order of protection immediately upon its filing. If the review indicates that domestic violence and abuse exists, the court shall summons the parties to an evidentiary hearing not more than fourteen (14) days in the future. If the review indicates that such a basis does not exist, the court may consider an amended petition or dismiss the petition without prejudice.
    2. Service of the summons and hearing order under this subsection shall be made upon the adverse party personally and may be made in the manner and by the persons authorized to serve subpoenas under Rule 45.03 of the Rules of Civil Procedure. A summons may be reissued if service has not been made on the adverse party by the fixed court date and time.
    1. If the review under this section also indicates the presence of an immediate and present danger of domestic violence and abuse, the court shall, upon proper motion, issue ex parte an emergency protective order that: (2) (a) If the review under this section also indicates the presence of an immediate and present danger of domestic violence and abuse, the court shall, upon proper motion, issue ex parte an emergency protective order that:
      1. Authorizes relief appropriate to the situation utilizing the alternatives set out in KRS 403.740 , other than awarding temporary support or counseling;
      2. Expires upon the conclusion of the evidentiary hearing required by this section unless extended or withdrawn by subsequent order of the court; and
      3. Does not order or refer the parties to mediation unless requested by the petitioner, and the court finds that:
        1. The petitioner’s request is voluntary and not the result of coercion; and
        2. Mediation is a realistic and viable alternative to or adjunct to the issuance of an order sought by the petitioner.
    2. If an order is not issued under this subsection, the court shall note on the petition, for the record, any action taken or denied and the reason for it.

History. Enact. Acts 1984, ch. 152, § 4, effective July 13, 1984; 1992, ch. 172, § 4, effective July 14, 1992; 2015 ch. 102, § 4, effective January 1, 2016.

NOTES TO DECISIONS

1.No Proper Service.

Trial court clearly erred by conducting a hearing on the wife’s petition for a domestic violence order (DVO) without proper service on the husband; three different attempts to serve it had been unsuccessful, and although the wife contended that the summons was served on the husband by mail at his last known address, the statute required service to be made upon the adverse party personally, plus nothing supported the wife’s contention that the summons was actually mailed to the husband. Thurman v. Thurman, 560 S.W.3d 884, 2018 Ky. App. LEXIS 252 (Ky. Ct. App. 2018).

2.Full Hearing.

Because there was insufficient evidence presented in a hearing on a petition for a domestic violence order to meet the applicable standard or proof, the dismissal of the petition had to be vacated and the matter remanded for a full hearing as contemplated, comprised of the full testimony of any appropriate witnesses sought to be presented. Furthermore, the trial court erred in failing to perform its mandatory duty of entering written findings of fact and conclusions of law revealing the rationale for its decision. Tipan v. Tipan, 582 S.W.3d 70, 2019 Ky. App. LEXIS 126 (Ky. Ct. App. 2019).

3.Sufficiency of Evidence.

Family court properly entered a domestic violence order that restrained a husband from unauthorized contact with his wife because the husband was given fair notice of the hearings and full opportunity to be heard, he expressed to the court, without reservation, that he was ready to proceed, and retained able counsel to represent him, the wife said that she was afraid of the husband—he pushed her onto a sofa, pushed her against a wall, grabbed her by the face, verbally abused her, and controlled her through access to money and transportation—and the court reasonably inferred from the undisputed testimony that the husband regarded the wife as his property, and that he also believed that he was justified in pushing her. Almasyabi v. Baghit, 2019 Ky. App. LEXIS 221 (Ky. Ct. App. Dec. 13, 2019).

Cited:

Wright v. Wright, 181 S.W.3d 49, 2005 Ky. App. LEXIS 260 (Ky. Ct. App. 2005).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Domestic Violence, § 264.00.

Petrilli, Kentucky Family Law, Actions, § 17.15.

403.730. Immediate review of petition — Summons to evidentiary hearing — Ex parte emergency protective order.

    1. The court shall review a petition for an order of protection immediately upon its filing. If the review indicates that domestic violence and abuse exists, the court shall summons the parties to an evidentiary hearing not more than fourteen (14) days in the future. If the review indicates that such a basis does not exist, the court may consider an amended petition or dismiss the petition without prejudice. (1) (a) The court shall review a petition for an order of protection immediately upon its filing. If the review indicates that domestic violence and abuse exists, the court shall summons the parties to an evidentiary hearing not more than fourteen (14) days in the future. If the review indicates that such a basis does not exist, the court may consider an amended petition or dismiss the petition without prejudice.
    2. Service of the summons and hearing order under this subsection shall be made upon the adverse party personally and may be made in the manner and by the persons authorized to serve subpoenas under Rule 45.03 of the Rules of Civil Procedure. A summons may be reissued if service has not been made on the adverse party by the fixed court date and time.
    1. If the review under this section also indicates the presence of an immediate and present danger of domestic violence and abuse, the court shall, upon the filing of the petition, issue ex parte an emergency protective order that: (2) (a) If the review under this section also indicates the presence of an immediate and present danger of domestic violence and abuse, the court shall, upon the filing of the petition, issue ex parte an emergency protective order that:
      1. Authorizes relief appropriate to the situation utilizing the alternatives set out in KRS 403.740 , other than awarding temporary support or counseling;
      2. Sets forth which communications, if any, as requested by the petitioner, are authorized and which communications are unauthorized;
      3. Allows either party to retrieve his or her personal belongings from the parties’ shared residence and directs law enforcement to assist, if requested;
      4. Expires upon the conclusion of the evidentiary hearing required by this section unless extended or withdrawn by subsequent order of the court; and
      5. Does not order or refer the parties to mediation unless requested by the petitioner, and the court finds that:
        1. The petitioner’s request is voluntary and not the result of coercion; and
        2. Mediation is a realistic and viable alternative to or adjunct to the issuance of an order sought by the petitioner. Nothing in this paragraph shall be interpreted to place any restriction or restraint on the petitioner.
    2. If an order is not issued under this subsection, the court shall note on the petition, for the record, any action taken or denied and the reason for it.

HISTORY: Enact. Acts 1984, ch. 152, § 4, effective July 13, 1984; 1992, ch. 172, § 4, effective July 14, 1992; 2015 ch. 102, § 4, effective January 1, 2016; 2022 ch. 143, § 2.

403.735. Hearing on petition for order of protection — Criteria to assess appropriate relief and sanctions — Continuance of hearing and emergency protective order.

  1. Prior to or at a hearing on a petition for an order of protection:
    1. The court may obtain the respondent’s Kentucky criminal and protective order history and utilize that information to assess what relief and which sanctions may protect against danger to the petitioner or other person for whom protection is being sought, with the information so obtained being provided to the parties in accordance with the Rules of Civil Procedure; and
    2. If the petitioner or respondent is a minor, the court shall inquire whether the parties attend school in the same school system to assist the court in imposing conditions in the order that have the least disruption in the administration of education to the parties while providing appropriate protection to the petitioner.
    1. If the adverse party is not present at the hearing ordered pursuant to KRS 403.730 and has not been served, a previously issued emergency protective order shall remain in place, and the court shall direct the issuance of a new summons for a hearing set not more than fourteen (14) days in the future. If service has not been made on the adverse party before that hearing or a subsequent hearing, the emergency protective order shall remain in place, and the court shall continue the hearing and issue a new summons with a new date and time for the hearing to occur, which shall be within fourteen (14) days of the originally scheduled date for the continued hearing. The court shall repeat the process of continuing the hearing and reissuing a new summons until the adverse party is served in advance of the scheduled hearing. If service has not been made on the respondent at least seventy-two (72) hours prior to the scheduled hearing, the court may continue the hearing no more than fourteen (14) days in the future. In issuing the summons, the court shall simultaneously transmit a copy of the summons or notice of its issuance and provisions to the petitioner. (2) (a) If the adverse party is not present at the hearing ordered pursuant to KRS 403.730 and has not been served, a previously issued emergency protective order shall remain in place, and the court shall direct the issuance of a new summons for a hearing set not more than fourteen (14) days in the future. If service has not been made on the adverse party before that hearing or a subsequent hearing, the emergency protective order shall remain in place, and the court shall continue the hearing and issue a new summons with a new date and time for the hearing to occur, which shall be within fourteen (14) days of the originally scheduled date for the continued hearing. The court shall repeat the process of continuing the hearing and reissuing a new summons until the adverse party is served in advance of the scheduled hearing. If service has not been made on the respondent at least seventy-two (72) hours prior to the scheduled hearing, the court may continue the hearing no more than fourteen (14) days in the future. In issuing the summons, the court shall simultaneously transmit a copy of the summons or notice of its issuance and provisions to the petitioner.
    2. The provisions of this section permitting the continuance of an emergency protective order shall be limited to six (6) months from the issuance of the emergency protective order. If the respondent has not been served within that period, the order shall be rescinded without prejudice. Prior to the expiration of the emergency protective order, the court shall provide notice to the petitioner stating that, if the petitioner does not file a new petition, the order shall be rescinded without prejudice.

HISTORY: Enact. Acts 1984, ch. 152, § 5, effective July 13, 1984; 1992, ch. 172, § 5, effective July 14, 1992; 1996, ch. 99, § 14, effective July 15, 1996; 2010, ch. 170, § 19, effective July 15, 2010; 2015 ch. 102, § 5, effective January 1, 2016.

NOTES TO DECISIONS

1.Mutual Protective Orders.

Trial court erred by entering a sua sponte mutual protection order against a mother in a domestic violence proceeding the mother filed against the father because there was no provision under KRS 403.750 and 403.715 that permitted the court to sua sponte enter the order when no petition for domestic violence was filed against the mother. Manning v. Willett, 221 S.W.3d 394, 2007 Ky. App. LEXIS 112 (Ky. Ct. App. 2007).

Family court properly entered a domestic violence order against a former boyfriend because it did not lose jurisdiction when it rescheduled the hearing one day past the statutory 14-day period, the boyfriend waived his right to contest the family court’s particular-case jurisdiction by failing to raise it earlier in the proceeding below, he was present when the hearing was rescheduled, and his behavior, when considered in its totality from the time he assaulted the former girlfriend, showed the type of power and control that often characterized domestic violence. Lee v. King, 2020 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 24, 2020).

2.Failure to Serve.

Contempt order against appellant was improperly entered, because the record reflected that he was not successfully served with the amended domestic violence order (DVO) and accompanying orders as required by KRS 403.735 (6) before he contacted his former wife by letter after the expiration date of the original DVO. The notice and service requirements set forth in KRS 403.735 must be satisfied before an amended DVO may become effective. Stinson v. Stinson, 381 S.W.3d 333, 2012 Ky. App. LEXIS 202 (Ky. Ct. App. 2012).

Research References and Practice Aids

Kentucky Bench & Bar.

Grandon, Recent Changes in Kentucky Laws Related to Domestic Violence, Winter 1998, Vol. 62, No. 1, Ky. Bench & Bar 10.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Domestic Violence, § 264.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Family Court, § 5.00.

Petrilli, Kentucky Family Law, 1991 Supp., Actions, § 17.15.

403.737. Forms for documents entered into Law Information Network of Kentucky. [Repealed]

History. Enact. Acts 1996, ch. 99, § 3, effective July 15, 1996; 2007, ch. 85, § 306, effective June 26, 2007; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.740. Domestic violence order — Restrictions — Temporary child support — Expiration and reissuance.

  1. Following a hearing ordered under KRS 403.730 , if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur, the court may issue a domestic violence order:
    1. Restraining the adverse party from:
      1. Committing further acts of domestic violence and abuse;
      2. Any unauthorized contact or communication with the petitioner or other person specified by the court;
      3. Approaching the petitioner or other person specified by the court within a distance specified in the order, not to exceed five hundred (500) feet;
      4. Going to or within a specified distance of a specifically described residence, school, or place of employment or area where such a place is located; and
      5. Disposing of or damaging any of the property of the parties;
    2. Directing or prohibiting any other actions that the court believes will be of assistance in eliminating future acts of domestic violence and abuse, except that the court shall not order the petitioner to take any affirmative action;
    3. Directing that either or both of the parties receive counseling services available in the community in domestic violence and abuse cases; and
    4. Additionally, if applicable:
      1. Directing the adverse party to vacate a residence shared by the parties to the action;
      2. Utilizing the criteria set forth in KRS 403.270 , 403.320 , and 403.822 , grant temporary custody, subject to KRS 403.315 ; and
      3. Utilizing the criteria set forth in KRS 403.211 , 403.212 , and 403.213 , award temporary child support.
  2. In imposing a location restriction described in subsection (1)(a)4. of this section, the court shall:
    1. Afford the petitioner and respondent, if present, an opportunity to testify on the issue of the locations and areas from which the respondent should or should not be excluded;
    2. Only impose a location restriction where there is a specific, demonstrable danger to the petitioner or other person protected by the order;
    3. Specifically describe in the order the locations or areas prohibited to the respondent; and
    4. Consider structuring a restriction so as to allow the respondent transit through an area if the respondent does not interrupt his or her travel to harass, harm, or attempt to harass or harm the petitioner.
  3. When temporary child support is granted under this section, the court shall enter an order detailing how the child support is to be paid and collected. Child support ordered under this section may be enforced utilizing the same procedures as any other child support order.
  4. A domestic violence order shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for subsequent periods of up to three (3) years each. The fact that an order has not been violated since its issuance may be considered by a court in hearing a request for a reissuance of the order.

History. Enact. Acts 1984, ch. 152, § 6, effective July 13, 1984; 1992, ch. 172, § 6, effective July 14, 1992; 1996, ch. 99, § 16, effective July 15, 1996; 2004, ch. 133, § 44, effective July 13, 2004; 2010, ch. 170, § 2, effective July 15, 2010; 2015 ch. 102, § 6, effective January 1, 2016; 2018 ch. 198, § 6, effective July 14, 2018.

NOTES TO DECISIONS

1.Applicability.

Family Court did not abuse its discretion in denying a husband a continuance on a hearing on a domestic violence order (DVO) because the husband had already been granted one continuance and KRS 403.740 provided that the hearing date had to be fixed no later than the expiration of the emergency protective order. Ruby v. Ruby, 2009 Ky. App. LEXIS 11 (Ky. Ct. App. Jan. 23, 2009).

Family court properly entered a domestic violence order against a former boyfriend because it did not lose jurisdiction when it rescheduled the hearing one day past the statutory 14-day period, the boyfriend waived his right to contest the family court’s particular-case jurisdiction by failing to raise it earlier in the proceeding below, he was present when the hearing was rescheduled, and his behavior, when considered in its totality from the time he assaulted the former girlfriend, showed the type of power and control that often characterized domestic violence. Lee v. King, 2020 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 24, 2020).

2.Jurisdiction.

Court of appeals erred in holding that a family court lost jurisdiction to issue a domestic violence order on the ground that it failed to conduct a hearing within 14 days after the issuance of an emergency protective order, as required by KRS 403.740(4), because the family court’s failure to follow the statute was, at most, the erroneous exercise of subject matter jurisdiction; it was not a lack of subject matter jurisdiction. Daugherty v. Telek, 366 S.W.3d 463, 2012 Ky. LEXIS 73 ( Ky. 2012 ).

3.Standard of Proof.

The standard of proof necessary pursuant to KRS 403.720(1) to establish that a person is a victim of domestic violence and therefore exempt from the requirements of KRS 439.3401(3), the violent offender statute, is the preponderance of the evidence standard set forth in this section and merely requires that the evidence believed by the fact-finder be sufficient that the defendant was more likely than not to have been a victim of domestic violence. Commonwealth v. Anderson, 934 S.W.2d 276, 1996 Ky. LEXIS 121 ( Ky. 1996 ).

4.Full Hearing.

Two appellants in separate cases were denied the full hearing to which they were statutorily entitled under KRS 403.740 and KRS 403.745 so there was either no evidence or insufficient evidence presented to meet the preponderance of the evidence standard of proof. There was no testimony, sworn or otherwise, allowed in one hearing, while in the other case, counsel was not permitted to complete direct examination before the lower court’s decision was announced. Wright v. Wright, 181 S.W.3d 49, 2005 Ky. App. LEXIS 260 (Ky. Ct. App. 2005).

Trial courts are not required to hold a separate hearing to determine the voluntariness of a petitioner's dismissal in the context of a domestic violence order. Moore v. Moore, 2016 Ky. App. LEXIS 175 (Ky. Ct. App. Sept. 30, 2016).

Family court properly granted a motion by a wife to extend a domestic violence order (DVO) against the husband because, while there was no evidence he had violated any provisions of the DVO since it was entered, had been incarcerated for most of the time that the DVO had been in effect, and would remain incarcerated for the foreseeable future, the statute at issue did not require proof of additional acts of domestic violence before extending a DVO, the trial court specifically found that the wife continued to have a reasonable fear of the husband, and he was not entitled to attend the hearing while incarcerated. Cottrell v. Cottrell, 571 S.W.3d 590, 2019 Ky. App. LEXIS 28 (Ky. Ct. App. 2019).

Because there was insufficient evidence presented in a hearing on a petition for a domestic violence order to meet the applicable standard or proof, the dismissal of the petition had to be vacated and the matter remanded for a full hearing as contemplated, comprised of the full testimony of any appropriate witnesses sought to be presented. Furthermore, the trial court erred in failing to perform its mandatory duty of entering written findings of fact and conclusions of law revealing the rationale for its decision. Tipan v. Tipan, 582 S.W.3d 70, 2019 Ky. App. LEXIS 126 (Ky. Ct. App. 2019).

5.Order Upheld.

An emergency protective order and a domestic violence order were properly entered against the ex-boyfriend, because the standards under KRS 403.740 and 403.750 and case law were met. The ex-girlfriend suffered physical injury and sexual abuse at the hands of the ex-boyfriend, who sought personal information about the ex-girlfriend which the ex-girlfriend feared might be used by the ex-boyfriend upon parole or release to help find and harm the ex-girlfriend again. Valentine v. Horan, 275 S.W.3d 737, 2008 Ky. App. LEXIS 272 (Ky. Ct. App. 2008).

Trial court did not abuse its discretion in issuing a domestic violence order because the evidence was sufficient for the court to make a finding that domestic violence may again occur due to the physical proximity of the parties, the husband's having substance abuse issues which had not been addressed, and the severity of the underlying incident of domestic violence in which both parties apparently pointed guns at each other. Moore v. Moore, 2016 Ky. App. LEXIS 175 (Ky. Ct. App. Sept. 30, 2016).

While the husband's smacking of a chip off the wife's arm did not constitute a physical injury within the definition of domestic violence or abuse, the husband's text message to the wife threatening to commit suicide pushed things into the realm of domestic violence and supported the trial court's finding that such occurred Ashley v. Ashley, 520 S.W.3d 400, 2017 Ky. App. LEXIS 130 (Ky. Ct. App. 2017).

Domestic violence order was properly entered as to the mother, even though she may not have been the individual directly responsible for the abuse, because the mother was aware of her boyfriend’s abuse of the child, as evidenced by her text messages to the father stating that the boyfriend treated the child horrible, spanked her way too hard, and jerked her up by the harms so hard the mother was afraid he would pop the child’s shoulders out of their socket. Dunn v. Thacker, 546 S.W.3d 576, 2018 Ky. App. LEXIS 121 (Ky. Ct. App. 2018).

Family court erred in entering a domestic violence order where neither party was sworn in or asked about the contents of the petition, and nothing in the petition supported a factual finding that domestic violence had occurred. Clark v. Parrett, 559 S.W.3d 872, 2018 Ky. App. LEXIS 240 (Ky. Ct. App. 2018).

6.Removal of One Party From Property.

In a contested divorce case, it was proper for the trial court to enter an order requiring the husband to remove himself from the parties’ jointly owned property, based on the court’s finding that there had been physical and emotional abuse resulting from the parties living under the same roof, since the Circuit Court has jurisdiction to enter whatever orders are necessary to protect the parties pursuant to this section. Stevenson v. Higgins, 619 S.W.2d 42, 1981 Ky. App. LEXIS 263 (Ky. Ct. App. 1981) (decided under prior law).

7.Continuance of 14-Day Hearing.

KRS 403.7405 does not prohibit a court from granting a continuance of the 14-day hearing on a petition for an Emergency Protective Order/Domestic Violence Order. Guenther v. Guenther, 379 S.W.3d 796, 2012 Ky. App. LEXIS 174 (Ky. Ct. App. 2012).

8.Support in the Record.

Entry of a Domestic Violence Order (DVO) against the former husband was improper under KRS 403.740 because, although the trial court did have jurisdiction to enter the DVO, it erred in entering the DVO since the record did not support by a preponderance of the evidence that domestic violence might occur again. The former wife’s monosyllabic responses to her attorney’s leading questions regarding verbal abuse and her fear of future abuse similar to the altercation between the parties was insufficient. Guenther v. Guenther, 379 S.W.3d 796, 2012 Ky. App. LEXIS 174 (Ky. Ct. App. 2012).

Preponderance of the evidence did not support entry of a DVO where appellant’s touching of his stepdaughter’s breast some six months earlier was too tenuous to qualify as sexual abuse, especially given the lack of proof that the touching occurred to sexually gratify the stepdaughter or appellant, that it progressed beyond an incidental touching, or that it was repeated. Castle v. Castle, 567 S.W.3d 908, 2019 Ky. App. LEXIS 8 (Ky. Ct. App. 2019).

Family court’s summation of the family’s history before the court was insufficient to issue a domestic violence order under Ky. Rev. Stat. Ann. § 403.740(1) where the family court failed to make a finding of a physical injury, past or present physical threats of abuse, or fear of imminent harm, which wholly undermined its decision, the father’s act of restraining the minor from hitting him any further did not rise to the level of domestic violence as that term was statutorily defined. Petrie v. Brackett, 590 S.W.3d 830, 2019 Ky. App. LEXIS 209 (Ky. Ct. App. 2019).

9.Rules of Civil Procedure.

Kentucky Civil Rules apply to domestic violence proceedings; therefore, in a case involving a domestic violence order sought on behalf of a child, a trial court properly denied a mother’s request for a continuance to obtain medical records because she had not complied with discovery. The Kentucky Rules of Civil Procedure applied to the proceedings under CR 1, and did not conflict with the time limits in domestic violence actions; continuances and other methods alleviated any apparent conflict. Wolfe v. Wolfe, 393 S.W.3d 42, 2013 Ky. App. LEXIS 35 (Ky. Ct. App. 2013).

Because a domestic violence order is a civil proceeding, the civil rule for the voluntary dismissal of actions applies in the context of a proceeding for a domestic violence order. Moore v. Moore, 2016 Ky. App. LEXIS 175 (Ky. Ct. App. Sept. 30, 2016).

10.Hearing.

Trial courts are not required to hold a separate hearing to determine the voluntariness of a petitioner's dismissal in the context of a domestic violence order. Moore v. Moore, 2016 Ky. App. LEXIS 175 (Ky. Ct. App. Sept. 30, 2016).

11.Findings.

Domestic violence order (DVO) was reversed where the trial court made no written findings, no findings made from the bench were incorporated into either the standard form used to enter the DVO or the written order denying the motion to alter, amend or vacate the DVO, and appellant had asked for written findings and was rebuffed. Castle v. Castle, 567 S.W.3d 908, 2019 Ky. App. LEXIS 8 (Ky. Ct. App. 2019).

Cited in:

Manning v. Willett, 221 S.W.3d 394, 2007 Ky. App. LEXIS 112 (Ky. Ct. App. 2007); Masters v. Masters, 415 S.W.3d 621, 2013 Ky. LEXIS 638 ( Ky. 2013 ).

Opinions of Attorney General.

The limited definition of “peace officer” set forth in KRS 431.005(3) as affecting a special deputy sheriff (KRS 70.045 ) applies only in relation to an arrest made without a warrant pursuant to KRS 431.005(2), in the “domestic violence” circumstance. This limited definition does not restrict the authority of a special deputy sheriff, as a peace officer, to make an arrest without a warrant as required by KRS 403.760(2), for violation of a protective order issued under the provisions of this section or KRS 403.750 pursuant to KRS 500.020 , 403.715 , and 403.740 . OAG 92-140 .

Research References and Practice Aids

Kentucky Bench & Bar.

Cullison, How Kentucky’s Civil Legal Aid Programs Assist Victims of Domestic Violence: One Program’s Perspective, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 6.

Hill, EPOs and DVOs: Significant Protection; Significant Restrictions; Potential for Abuse, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 15.

Polley, Amanda’s Law Brings Changes, Vol. 74, No. 5, September 2010, Ky. Bench & Bar 26.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Domestic Violence, § 264.00.

Petrilli, Kentucky Family Law, 1991 Supp., Actions, § 17.15.

403.740. Domestic violence order — Restrictions — Temporary child support — Expiration and reissuance.

  1. Following a hearing ordered under KRS 403.730 , if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur, the court may issue a domestic violence order:
    1. Restraining the adverse party from:
      1. Committing further acts of domestic violence and abuse;
      2. Any unauthorized contact or communication with the petitioner or other person specified by the court;
      3. Approaching the petitioner or other person specified by the court within a distance specified in the order, not to exceed five hundred (500) feet;
      4. Going to or within a specified distance of a specifically described residence, school, or place of employment or area where such a place is located; and
      5. Disposing of or damaging any of the property of the parties;
    2. Directing or prohibiting any other actions that the court believes will be of assistance in eliminating future acts of domestic violence and abuse, except that the court shall not order the petitioner to take any affirmative action;
    3. Directing that either or both of the parties receive counseling services available in the community in domestic violence and abuse cases; and
    4. Additionally, if applicable:
      1. Directing the adverse party to vacate a residence shared by the parties to the action;
      2. Utilizing the criteria set forth in KRS 403.270 , 403.320 , and 403.822 , grant temporary custody, subject to KRS 403.315 ;
      3. Utilizing the criteria set forth in KRS 403.211 , 403.212 , and 403.213 , award temporary child support; and
      4. Awarding possession of any shared domestic animal to the petitioner.
  2. In imposing a location restriction described in subsection (1)(a)4. of this section, the court shall:
    1. Afford the petitioner and respondent, if present, an opportunity to testify on the issue of the locations and areas from which the respondent should or should not be excluded;
    2. Only impose a location restriction where there is a specific, demonstrable danger to the petitioner or other person protected by the order;
    3. Specifically describe in the order the locations or areas prohibited to the respondent; and
    4. Consider structuring a restriction so as to allow the respondent transit through an area if the respondent does not interrupt his or her travel to harass, harm, or attempt to harass or harm the petitioner.
  3. When temporary child support is granted under this section, the court shall enter an order detailing how the child support is to be paid and collected. Child support ordered under this section may be enforced utilizing the same procedures as any other child support order.
  4. A domestic violence order shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for subsequent periods of up to three (3) years each. The fact that an order has not been violated since its issuance may be considered by a court in hearing a request for a reissuance of the order.

HISTORY: Enact. Acts 1984, ch. 152, § 6, effective July 13, 1984; 1992, ch. 172, § 6, effective July 14, 1992; 1996, ch. 99, § 16, effective July 15, 1996; 2004, ch. 133, § 44, effective July 13, 2004; 2010, ch. 170, § 2, effective July 15, 2010; 2015 ch. 102, § 6, effective January 1, 2016; 2018 ch. 198, § 6, effective July 14, 2018; 2022 ch. 158, § 2.

403.740. Domestic violence order — Restrictions — Temporary child support — Expiration and reissuance.

  1. Following a hearing ordered under KRS 403.730 , if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur, the court may issue a domestic violence order:
    1. Restraining the adverse party from:
      1. Committing further acts of domestic violence and abuse;
      2. Any unauthorized contact or communication with the petitioner or other person specified by the court;
      3. Approaching the petitioner or other person specified by the court within a distance specified in the order, not to exceed five hundred (500) feet;
      4. Going to or within a specified distance of a specifically described residence, school, or place of employment or area where such a place is located; and
      5. Disposing of or damaging any of the property of the parties;
    2. Authorizing, at the request of the petitioner:
      1. Limited contact or communication between the parties that the court finds necessary; or
      2. The parties to remain in a common area, which may necessitate them being closer than five hundred (500) feet under limited circumstances with specific parameters set forth by the court. Nothing in this paragraph shall be interpreted to place any restriction or restraint on the petitioner;
    3. Directing or prohibiting any other actions that the court believes will be of assistance in eliminating future acts of domestic violence and abuse, except that the court shall not order the petitioner to take any affirmative action;
    4. Directing that either or both of the parties receive counseling services available in the community in domestic violence and abuse cases; and
    5. Additionally, if applicable:
      1. Directing the adverse party to vacate a residence shared by the parties to the action;
      2. Utilizing the criteria set forth in KRS 403.270 , 403.320 , and 403.822 , grant temporary custody, subject to KRS 403.315 ; and
      3. Utilizing the criteria set forth in KRS 403.211 , 403.212 , and 403.213 , award temporary child support.
  2. In imposing a location restriction described in subsection (1)(a)4. of this section, the court shall:
    1. Afford the petitioner and respondent, if present, an opportunity to testify on the issue of the locations and areas from which the respondent should or should not be excluded;
    2. Only impose a location restriction where there is a specific, demonstrable danger to the petitioner or other person protected by the order;
    3. Specifically describe in the order the locations or areas prohibited to the respondent; and
    4. Consider structuring a restriction so as to allow the respondent transit through an area if the respondent does not interrupt his or her travel to harass, harm, or attempt to harass or harm the petitioner.
  3. When temporary child support is granted under this section, the court shall enter an order detailing how the child support is to be paid and collected. Child support ordered under this section may be enforced utilizing the same procedures as any other child support order.
  4. A domestic violence order shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for subsequent periods of up to three (3) years each. The fact that an order has not been violated since its issuance may be considered by a court in hearing a request for a reissuance of the order.

HISTORY: Enact. Acts 1984, ch. 152, § 6, effective July 13, 1984; 1992, ch. 172, § 6, effective July 14, 1992; 1996, ch. 99, § 16, effective July 15, 1996; 2004, ch. 133, § 44, effective July 13, 2004; 2010, ch. 170, § 2, effective July 15, 2010; 2015 ch. 102, § 6, effective January 1, 2016; 2018 ch. 198, § 6, effective July 14, 2018; 2022 ch. 143, § 1.

403.740. Domestic violence order — Restrictions — Temporary child support — Expiration and reissuance.

  1. Following a hearing ordered under KRS 403.730 , if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur, the court may issue a domestic violence order:
    1. Restraining the adverse party from:
      1. Committing further acts of domestic violence and abuse;
      2. Any unauthorized contact or communication with the petitioner or other person specified by the court;
      3. Approaching the petitioner or other person specified by the court within a distance specified in the order, not to exceed five hundred (500) feet;
      4. Going to or within a specified distance of a specifically described residence, school, or place of employment or area where such a place is located; and
      5. Disposing of or damaging any of the property of the parties;
    2. Directing or prohibiting any other actions that the court believes will be of assistance in eliminating future acts of domestic violence and abuse, except that the court shall not order the petitioner to take any affirmative action;
    3. Directing that either or both of the parties receive counseling services available in the community in domestic violence and abuse cases; and
    4. Additionally, if applicable:
      1. Directing the adverse party to vacate a residence shared by the parties to the action;
      2. Utilizing the criteria set forth in KRS 403.270 , 403.320 , and 403.822 , grant temporary custody, subject to KRS 403.315 ; and
      3. Utilizing the criteria set forth in KRS 403.211 , 403.212 , Section 2 of this Act, and 403.213 , award temporary child support.
  2. In imposing a location restriction described in subsection (1)(a)4. of this section, the court shall:
    1. Afford the petitioner and respondent, if present, an opportunity to testify on the issue of the locations and areas from which the respondent should or should not be excluded;
    2. Only impose a location restriction where there is a specific, demonstrable danger to the petitioner or other person protected by the order;
    3. Specifically describe in the order the locations or areas prohibited to the respondent; and
    4. Consider structuring a restriction so as to allow the respondent transit through an area if the respondent does not interrupt his or her travel to harass, harm, or attempt to harass or harm the petitioner.
  3. When temporary child support is granted under this section, the court shall enter an order detailing how the child support is to be paid and collected. Child support ordered under this section may be enforced utilizing the same procedures as any other child support order.
  4. A domestic violence order shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for subsequent periods of up to three (3) years each. The fact that an order has not been violated since its issuance may be considered by a court in hearing a request for a reissuance of the order.

HISTORY: Enact. Acts 1984, ch. 152, § 6, effective July 13, 1984; 1992, ch. 172, § 6, effective July 14, 1992; 1996, ch. 99, § 16, effective July 15, 1996; 2004, ch. 133, § 44, effective July 13, 2004; 2010, ch. 170, § 2, effective July 15, 2010; 2015 ch. 102, § 6, effective January 1, 2016; 2018 ch. 198, § 6, effective July 14, 2018; 2022 ch. 122, § 7.

403.741. Consideration of respondent’s criminal history and past emergency protective order or domestic violence order required. [Repealed]

History. Enact. Acts 2010, ch. 170, § 3, effective July 15, 2010; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.743. Referral of petitioner to county attorney — Duties of county attorney. [Repealed]

History. Enact. Acts 2010, ch. 170, § 4, effective July 15, 2010; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.745. Duration of emergency protective order and domestic violence order — Prohibited costs and conditions — Mutual orders of protection — Amendment — Expungement.

  1. An emergency protective order and a domestic violence order shall become effective and binding on the respondent when the respondent is given notice of the existence and terms of the order by a peace officer or the court or upon personal service of the order, whichever is earlier. A peace officer or court giving notice of an unserved order shall make all reasonable efforts to arrange for the order’s personal service upon the respondent. Once effective, a peace officer or the court may enforce the order’s terms and act immediately upon their violation.
  2. Costs, fees, or bond shall not be assessed against or required of a petitioner for any filing, hearing, service, or order authorized by or required to implement KRS 403.715 to 403.785 .
  3. A court shall not require mediation, conciliation, or counseling prior to or as a condition of issuing an order of protection.
  4. Mutual orders of protection may be issued only if:
    1. Separate petitions have been filed by both parties; and
    2. The orders are written with sufficient specificity to allow any peace officer to identify which party has violated the order.
  5. Upon proper filing of a motion, either party may seek to amend an order of protection.
  6. Testimony offered by an adverse party in a hearing ordered pursuant to KRS 403.730 shall not be admissible in any criminal proceeding involving the same parties, except for purposes of impeachment.
    1. The Court of Justice, county and Commonwealth’s attorneys, law enforcement agencies, and victim services organizations may jointly operate a domestic violence intake center to assist persons who apply for relief under KRS 403.715 to 403.785 . (7) (a) The Court of Justice, county and Commonwealth’s attorneys, law enforcement agencies, and victim services organizations may jointly operate a domestic violence intake center to assist persons who apply for relief under KRS 403.715 to 403.785 .
    2. In cases where criminal conduct is alleged, a court may suggest that a petitioner voluntarily contact the county attorney. A court may not withhold or delay relief if the petitioner elects to not contact the county attorney.
  7. A person’s right to apply for relief under this chapter shall not be affected by that person leaving his or her residence to avoid domestic violence and abuse.
  8. A court shall order the omission or deletion of the petitioner’s address and the address of any minor children from any orders or documents to be made available to the public or to any person who engaged in the acts complained of in the petition.
    1. If a petition under KRS 403.715 to 403.785 did not result in the issuance of a domestic violence order, the court in which the petition was heard may for good cause shown order the expungement of the records of the case if: (10) (a) If a petition under KRS 403.715 to 403.785 did not result in the issuance of a domestic violence order, the court in which the petition was heard may for good cause shown order the expungement of the records of the case if:
      1. Six (6) months have elapsed since the case was dismissed; and
      2. During the six (6) months preceding the expungement request, the respondent has not been bound by an order of protection issued for the protection of any person, including an order of protection as defined in KRS 456.010 .
    2. As used in this subsection, “expungement” has the same meaning as in KRS 431.079 .

HISTORY: Enact. Acts 1984, ch. 152, § 7, effective July 13, 1984; 1992, ch. 172, § 7, effective July 14, 1992; 2015 ch. 102, § 7, effective January 1, 2016.

NOTES TO DECISIONS

1.Full Hearing.

Two (2) appellants in separate cases were denied the full hearing to which they were statutorily entitled under KRS 403.740 and KRS 403.745 so there was either no evidence or insufficient evidence presented to meet the preponderance of the evidence standard of proof. There was no testimony, sworn or otherwise, allowed in one hearing, while in the other case, counsel was not permitted to complete direct examination before the lower court’s decision was announced. Wright v. Wright, 181 S.W.3d 49, 2005 Ky. App. LEXIS 260 (Ky. Ct. App. 2005).

Family Court’s consideration of the contents of a domestic violence petition filed by a former wife and of certain dependency files that were read by the Family Court but were not admitted into evidence nor disclosed to the parties, did not provide the former husband with the full evidentiary hearing on the petition to which the husband was entitled. Rankin v. Criswell, 277 S.W.3d 621, 2008 Ky. App. LEXIS 380 (Ky. Ct. App. 2008).

Cited:

Manning v. Willett, 221 S.W.3d 394, 2007 Ky. App. LEXIS 112 (Ky. Ct. App. 2007); Telek v. Daugherty, — S.W.3d —, 2010 Ky. App. LEXIS 236 (Ky. Ct. App. 2010).

Research References and Practice Aids

Kentucky Bench & Bar.

Hill, EPOs and DVOs: Significant Protection; Significant Restrictions; Potential for Abuse, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 15.

Treatises

Petrilli, Kentucky Family Law, 1991 Supp., Actions, § 17.15.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Domestic Violence, § 264.00.

403.747. Testimony to be given under oath — Consideration of specified areas respondent is to be excluded from. [Repealed]

History. Enact. Acts 2010, ch. 170, § 6, effective July 15, 2010; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.750. Order of protection for family member or member of unmarried couple upon filing of petition or action under KRS Chapter 403.

  1. Any family member or any member of an unmarried couple may file for and receive protection under this chapter from domestic violence and abuse, notwithstanding the existence of or intent to file an action under this chapter by either party.
    1. Any family member or member of an unmarried couple who files a petition for an order of protection based upon domestic violence or abuse shall make known to the court any custody or divorce actions involving both the petitioner and the respondent that are pending in any court. (2) (a) Any family member or member of an unmarried couple who files a petition for an order of protection based upon domestic violence or abuse shall make known to the court any custody or divorce actions involving both the petitioner and the respondent that are pending in any court.
    2. If the petitioner or respondent to an order of protection initiates an action under this chapter, the party initiating the action shall make known to the court the existence and status of any orders of protection, which shall remain effective and enforceable until superseded by order of the court in which the case is filed.
  2. If a family member or member of an unmarried couple files an action for dissolution of marriage, child custody, or visitation, the court hearing the case shall have jurisdiction to issue an order of protection upon the filing of a verified motion either at the commencement or during the pendency of the action.

HISTORY: Enact. Acts 1984, ch. 152, § 8, effective July 13, 1984; 1990, ch. 418, § 6, effective July 13, 1990; 1992, ch. 172, § 8, effective July 14, 1992; 1996, ch. 99, § 2, effective July 15, 1996; 2004, ch. 133, § 45, effective July 13, 2004; 2010, ch. 170, § 5, effective July 15, 2010; repealed and reenacted by 2015 ch. 102, § 8, effective January 1, 2016.

NOTES TO DECISIONS

1.Double Jeopardy.

Since charge of contempt retaliating against a witness would have required proof that defendant attacked victim because she testified against him while such proof would not be required to convict him of crime of contempt, conviction on the contempt charge would not bar a prosecution against defendant for retaliating against a witness on the grounds of double jeopardy. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996), modified, sub. op., 1997 Ky. LEXIS 76 (Ky. June 19, 1997).

Since contempt convictions require that it be proven that defendant had knowledge that a valid court order prohibiting the conduct was in effect and felony charges of burglary in the first degree, assault in the second degree and retaliating against a witness do not, prosecution on the felony charges after conviction on the contempt charges would not be double jeopardy. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996), modified, sub. op., 1997 Ky. LEXIS 76 (Ky. June 19, 1997).

Since charge against defendant of assault in the first or second degree required proof of intent to cause physical injury by means of a dangerous instrument and intent to cause serious physical injury and proof of such elements were not necessary to convict for contempt, conviction for contempt did not bar prosecution for assault in the first or second degree. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996), modified, sub. op., 1997 Ky. LEXIS 76 (Ky. June 19, 1997).

Conviction of contempt for violating restraining order prohibiting defendant from going about or entering wife’s house and from threatening, assaulting or otherwise interfering with her did not bar action against defendant on double jeopardy grounds for burglary in the first degree for breaking into wife’s home since his burglary conviction required proof of elements unnecessary to convict him of contempt. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996), modified, sub. op., 1997 Ky. LEXIS 76 (Ky. June 19, 1997).

Protections of Const., § 13 attach in non-summary criminal contempt proceedings just as they do in other criminal prosecutions. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996), modified, sub. op., 1997 Ky. LEXIS 76 (Ky. June 19, 1997).

Non-summary criminal contempt is a crime for double jeopardy purposes. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996), modified, sub. op., 1997 Ky. LEXIS 76 (Ky. June 19, 1997).

Family court properly entered a domestic violence order against a former boyfriend because it did not lose jurisdiction when it rescheduled the hearing one day past the statutory 14-day period, the boyfriend waived his right to contest the family court’s particular-case jurisdiction by failing to raise it earlier in the proceeding below, he was present when the hearing was rescheduled, and his behavior, when considered in its totality from the time he assaulted the former girlfriend, showed the type of power and control that often characterized domestic violence. Lee v. King, 2020 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 24, 2020).

2.Due Process.

Ex-boyfriend sought a continuance of the domestic violence order (DVO) hearing until the ex-girlfriend could be deposed, but the trial court denied the motion; he did not show how postponing the DVO hearing to conduct discovery would have changed the outcome of the proceedings, the timely holding the domestic violence hearing is essential to the purpose of the statutes, and as the trial court conducted the hearing in a full and fair manner, the ex-boyfriend was afforded due process. Hohman v. Dery, 371 S.W.3d 780, 2012 Ky. App. LEXIS 330 (Ky. Ct. App. 2012).

3.Proof of Additional Acts Not Required.
4.— Reissuance of Domestic Violence Order.

KRS 403.750(2) does not require proof of additional acts of domestic violence or abuse during the prior period before a domestic violence order may be reissued; rather, the statute makes it clear that testimony that such acts did not occur may be presented for the trial court’s consideration in determining whether or not to reissue the order. Kingrey v. Whitlow, 150 S.W.3d 67, 2004 Ky. App. LEXIS 39 (Ky. Ct. App. 2004).

5.— Extension of Domestic Violence Order.

Under KRS 403.715(1), the domestic violence and abuse statutes are to be interpreted by the District Courts to allow victims to obtain protection against further violence and abuse; if a domestic violence order (DVO) has been effective in giving protection to a victim of domestic violence and abuse, then the District Court should not be required to reject a request to extend the effective period of the DVO simply because no additional acts have occurred. Kingrey v. Whitlow, 150 S.W.3d 67, 2004 Ky. App. LEXIS 39 (Ky. Ct. App. 2004).

Domestic violence order (DVO) issued against an ex-husband was properly extended for three (3) more years because the evidence showed that the ex-wife had been the victim of extensive domestic violence during the parties’ marriage, that the ex-husband’s conduct after the marriage continued to be such that the ex-wife lived in fear of what he would do, and that the ex-husband again began harassing the ex-wife when the first DVO expired. The fact that the DVO had been effective in giving protection to the ex-wife should not have resulted in a mandatory rejection of a request to extend the effective period of the DVO simply because no additional acts had occurred. Baird v. Baird, 234 S.W.3d 385, 2007 Ky. App. LEXIS 332 (Ky. Ct. App. 2007).

Extension of a domestic violence order (DVO) for one year was proper as KRS 403.750(2) did not require proof of additional acts of violence, and a hearing was not required before an extension of a DVO was ordered; trial court properly considered the circumstances surrounding the original issuance of the DVO and the effectiveness of the DVO in preventing any violence between the parties, which fully satisfied the purpose of Kentucky’s domestic violence and abuse policy under KRS 403.715(1). Kessler v. Switzer, 289 S.W.3d 228, 2009 Ky. App. LEXIS 76 (Ky. Ct. App. 2009).

KRS 403.750(2) does not require proof of additional acts of violence before the extension of a domestic violence order (DVO); a hearing is also not required before an extension of a DVO is ordered. Kessler v. Switzer, 289 S.W.3d 228, 2009 Ky. App. LEXIS 76 (Ky. Ct. App. 2009).

Trial court did not abuse its discretion by extending a domestic violence order (DVO) against a husband as a sentence for contempt of its prior orders because the husband continued to post threatening messaging against the wife on social media after the trial court warned him to stop engaging in harassing conduct where the wife presented evidence that the DVO had been effective in keeping the husband away from her, the husband's posting suggested he planned to harm her after the DVO expired, and the husband's irrational and clearly menacing conduct required the wife to have continuing protection. Morris v. Grenough, 504 S.W.3d 710, 2016 Ky. App. LEXIS 142 (Ky. Ct. App. 2016).

6.Sufficiency of Evidence.

Family court properly issued a domestic violence order restraining a father, under KRS 403.750 ; the court did not consider hearsay evidence regarding comments a minor child allegedly made to a babysitter concerning sexual abuse of the child by the father, and the testimony of the mother and a social worker regarding their own actions and observations as to the child supported the trial court’s ruling. S.L.T. v. R.J.C., 196 S.W.3d 530, 2006 Ky. App. LEXIS 204 (Ky. Ct. App. 2006).

That a mother delayed in seeking an emergency protective order and that there had been no previous allegations of domestic violence during the marriage, while relevant to assess the credibility of her allegations of domestic violence, were not necessarily controlling. The trial court was entitled to grant the mother a domestic violence order under KRS 403.750(1) based on its finding that she was more credible than the father. Bissell v. Baumgardner, 236 S.W.3d 24, 2007 Ky. App. LEXIS 304 (Ky. Ct. App. 2007).

Preponderance of the evidence supported the issuance of a domestic violence order against a husband based on a wife’s testimony, which included testimony that the husband had threatened the wife in the past and that she was fearful of him. Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

An emergency protective order and a domestic violence order were properly entered against the ex-boyfriend, because the standards under KRS 403.740 and 403.750 and case law were met. The ex-girlfriend suffered physical injury and sexual abuse at the hands of the ex-boyfriend, who sought personal information about the ex-girlfriend which the ex-girlfriend feared might be used by the ex-boyfriend upon parole or release to help find and harm the ex-girlfriend again. Valentine v. Horan, 275 S.W.3d 737, 2008 Ky. App. LEXIS 272 (Ky. Ct. App. 2008).

Family Court erred in issuing a domestic violence order under KRS 403.750(1) against a former husband because it failed to afford the husband a full evidentiary hearing; instead, the Family Court improperly relied only on the allegations in the former wife’s petition and on certain dependency files that the Family Court read to itself but did not disclose to the parties or admit into evidence. Rankin v. Criswell, 277 S.W.3d 621, 2008 Ky. App. LEXIS 380 (Ky. Ct. App. 2008).

Family court abused its discretion in entering a Domestic Violence Order against a husband, as there were no allegations or evidence that the husband had ever acted violently toward the husband’s wife or threatened violent actions toward the wife; the wife based the wife’s alleged fear of the husband on the wife’s marriage counselor’s uninformed opinion that the husband had sociopathic tendencies. Fraley v. Rice-Fraley, 313 S.W.3d 635, 2010 Ky. App. LEXIS 83 (Ky. Ct. App. 2010).

Family court properly entered a domestic violence order under KRS 403.750(1) against an ex-husband and in favor of his ex-wife despite the husband’s claim that the evidence was insufficient to support its continuation. The evidence showed that domestic violence had occurred and could occur in the future and that the wife was in fear of imminent physical harm. Rupp v. Rupp, 357 S.W.3d 207, 2011 Ky. App. LEXIS 144 (Ky. Ct. App. 2011).

Because appellant’s actions were more akin to unwanted touching, which standing alone would not meet the definition of domestic violence, under KRS 403.720(1), 403.750(1), the family court did not show that domestic violence and abuse had occurred and might occur again and erred in granting a domestic violence order to appellee. Telek v. Daugherty, 376 S.W.3d 623, 2012 Ky. App. LEXIS 154 (Ky. Ct. App. 2012).

Entry of a Domestic Violence Order (DVO) against the former husband was improper under KRS 403.740 because, although the trial court did have jurisdiction to enter the DVO, it erred in entering the DVO since the record did not support by a preponderance of the evidence that domestic violence might occur again. The former wife’s monosyllabic responses to her attorney’s leading questions regarding verbal abuse and her fear of future abuse similar to the altercation between the parties was insufficient. Guenther v. Guenther, 379 S.W.3d 796, 2012 Ky. App. LEXIS 174 (Ky. Ct. App. 2012).

Inquiry was whether substantial evidence supported a finding that the ex-boyfriend inflicted upon his ex-girlfriend a fear of imminent physical injury or assault; she said she felt threatened and believed her ex-boyfriend was unable to control his emotions and his aggressive confrontations would escalate, and the trial court could have inferred that the ex-girlfriend feared imminent injury, such that the finding of domestic violence was not clearly erroneous, and the denial of the ex-boyfriend’s motion to vacate the order was proper. Hohman v. Dery, 371 S.W.3d 780, 2012 Ky. App. LEXIS 330 (Ky. Ct. App. 2012).

Trial court did not err in entering a Domestic Violence Order (DVO) as appellant made serious threats of domestic violence against appellee because appellant did not have the right to protect himself under the castle doctrine as appellant granted appellee permission to pick up their child's shoes from his house within 48 hours of the incident; appellant was not threatened or intimidated by appellee to the point that he felt he needed to use deadly force to protect himself; his text message that she had no right to be on his property and that he would shoot her if she ever came back constituted an imminent threat of domestic violence; and serious threats of physical violence were made and could continue to be made by appellant. Gibson v. Campbell-Marletta, 503 S.W.3d 186, 2016 Ky. App. LEXIS 185 (Ky. Ct. App. 2016).

Husband’s discarding of the wife’s personal property from a seemingly abandoned trailer home, which the husband was fixing up so that his daughter could put it up for sale, was insufficient to support the issuance of a domestic violence order, because there was no evidence of past or present physical threats or abuse, contact between the parties, or fear of imminent harm. Matehuala v. Torres, 547 S.W.3d 142, 2018 Ky. App. LEXIS 118 (Ky. Ct. App. 2018).

7.Final Order.

Relief afforded by CR 60.02 as to “final judgments, orders, or proceedings” was available as to domestic relations orders if a movant set forth any of the criteria covered by the rule; since the domestic violence order at issue was a “final judgment” or “final order” as understood by CR 54.01, the trial court had jurisdiction to weigh and to rule upon the CR 60.02 motion to vacate a domestic relations order. Roberts v. Bucci, 218 S.W.3d 395, 2007 Ky. App. LEXIS 82 (Ky. Ct. App. 2007).

Trial court erred by entering a sua sponte mutual protection order against a mother in a domestic violence proceeding the mother filed against the father because there was no provision under KRS 403.750 and 403.715 that permitted the court to sua sponte enter the order when no petition for domestic violence was filed against the mother. Manning v. Willett, 221 S.W.3d 394, 2007 Ky. App. LEXIS 112 (Ky. Ct. App. 2007).

8.Contempt.

Family Court properly exercised its contempt powers in sentencing appellant to complete domestic violence counseling, even though the domestic violence order (DVO) had expired prior to the contempt hearing, because the Family Court was not attempting to enforce the defunct DVO but to punish appellant for his contumacious behavior. Meyers v. Petrie, 233 S.W.3d 212, 2007 Ky. App. LEXIS 321 (Ky. Ct. App. 2007).

9.Vacation.

While KRS 403.750 permitted an amendment to a domestic violence order (DVO), a husband’s motion to vacate, allegedly with the wife’s agreement, did not mandatorily have to be sustained; as a matter of public policy, an inquiry had to be made as to the voluntary nature of the wife’s agreement to vacate the DVO. Ruby v. Ruby, 2009 Ky. App. LEXIS 11 (Ky. Ct. App. Jan. 23, 2009).

Trial court erred in amending a domestic violence order (DVO) to include the couple’s minor child because the trial court erred in precluding appellant from presenting a witness who would testify that she changed the minor child after appellant returned him and before the mother returned and that she did not observe any burns or other injuries to the child; the trial court should have considered that evidence before concluding that appellant committed an act of domestic violence against his child. Abdur-Rahman v. Peterson, 338 S.W.3d 823, 2011 Ky. App. LEXIS 79 (Ky. Ct. App. 2011).

10.Preservation for Review.

Since the husband failed to notify the Kentucky Attorney General during the pendency of the case before the trial court, the husband’s claims that KRS 403.750(2) was unconstitutional were not preserved for review under KRS 418.075 . Kessler v. Switzer, 289 S.W.3d 228, 2009 Ky. App. LEXIS 76 (Ky. Ct. App. 2009).

Order extending a prior domestic violence order (DVO) pursuant to KRS 403.750(2) after it had expired was error because, when the prior DVO expired, the trial court lost jurisdiction and the case was concluded; no further action could have been based on the expired DVO, and a new domestic violence petition should have been filed. Fedders v. Vogt-Kilmer, 292 S.W.3d 905, 2009 Ky. App. LEXIS 121 (Ky. Ct. App. 2009).

11.Mootness.

Although the domestic violence order (DVO) had been dismissed while the appeal was pending, the ex-boyfriend’s appeal was not moot and was to be resolved on the merits to determine whether the DVO was entered erroneously. Hohman v. Dery, 371 S.W.3d 780, 2012 Ky. App. LEXIS 330 (Ky. Ct. App. 2012).

12.Extension After Expiration.

At a hearing past the expiration date of a domestic violence order (DVO), the family court did not have the authority to re-characterize the petition for a DVO as a motion for extension of the original DVO because the original DVO had expired and, therefore, could not be extended. Since the family court lacked jurisdiction to extend the original DVO past the time set in KRS 403.750(2), the amended DVO was vacated. Wooldridge v. Zimmerer, 311 S.W.3d 254, 2010 Ky. App. LEXIS 75 (Ky. Ct. App. 2010).

13.Notice Requirements.

Contempt order against appellant was improperly entered, because the record reflected that he was not successfully served with the amended domestic violence order (DVO) and accompanying orders as required by KRS 403.735 (6) before he contacted his former wife by letter after the expiration date of the original DVO. The notice and service requirements set forth in KRS 403.735 , which apply to any order of protection issued pursuant to KRS 403.715 through KRS 403.785 , and KRS 403.750(3), must be satisfied before an amended DVO may become effective. Stinson v. Stinson, 381 S.W.3d 333, 2012 Ky. App. LEXIS 202 (Ky. Ct. App. 2012).

Family court erred in entering a domestic violence order where neither party was sworn in or asked about the contents of the petition, and nothing in the petition supported a factual finding that domestic violence had occurred. Clark v. Parrett, 559 S.W.3d 872, 2018 Ky. App. LEXIS 240 (Ky. Ct. App. 2018).

14.Untimely Notice of Appeal.

Boyfriend appeared to appeal from an order that denied his motion to amend a domestic violence order (DVO), but every argument he made related to the parties’ actions prior to the entry of the amended DVO, and while any argument that arose after that date arguably could have been the basis of a motion to amend, over which the court had jurisdiction, that was not the case; the boyfriend’s failure to appeal within 30 days of entry of the original orders left the court without jurisdiction. Erwin v. Cruz, 423 S.W.3d 234, 2014 Ky. App. LEXIS 19 (Ky. Ct. App. 2014).

15.Evidence.

State of mind exception to the hearsay rule was not directly applicable as the statements of the declarant, appellant's ex-wife, were not being used to show the declarant's state of mind because, instead, they went to appellee's state of mind with regard to the declarant's statements and her fear of appellant; however, while the statements were prejudicial, the trial court had ample other evidence to determine whether or not there were grounds to issue a domestic violence order, and any introduction of the declarant's testimony was harmless. Gibson v. Campbell-Marletta, 503 S.W.3d 186, 2016 Ky. App. LEXIS 185 (Ky. Ct. App. 2016).

Court's entry of a domestic violence order against appellant was supported by substantial evidence, including the parties were in an intimate relationship over the course of six years, the parties had lived together for at least seven weeks, appellant had stalked appellee, followed her home, broke into her garage, pulled her out of her car, broke her phone, physically assaulted her, had texted her using other people's phone numbers, set up a fake online profile to attempt to talk to her, and emailed her attorney to ask him to help the parties get back together, and appellee was fearful that appellant would harm her. Benson v. Lively, 544 S.W.3d 159, 2018 Ky. App. LEXIS 68 (Ky. Ct. App. 2018).

Cited:

Copas v. Copas, 699 S.W.2d 758, 1985 Ky. App. LEXIS 682 (Ky. Ct. App. 1985); Commonwealth v. Anderson, 934 S.W.2d 276, 1996 Ky. LEXIS 121 ( Ky. 1996 ); Wright v. Wright, 181 S.W.3d 49, 2005 Ky. App. LEXIS 260 (Ky. Ct. App. 2005).

Opinions of Attorney General.

The limited definition of “peace officer” set forth in KRS 431.005(3) as affecting a special deputy sheriff (KRS 70.045 ) applies only in relation to an arrest made without a warrant pursuant to KRS 431.005(2), in the “domestic violence” circumstance. This limited definition does not restrict the authority of a special deputy sheriff, as a peace officer, to make an arrest without a warrant as required by KRS 403.760(2), for violation of a protective order issued under the provisions of KRS 403.740 or this section pursuant to KRS 500.020 , 403.715 , and 403.740 . OAG 92-140 .

Research References and Practice Aids

Kentucky Bench & Bar.

Grandon, Recent Changes in Kentucky Laws Related to Domestic Violence, Winter 1998, Vol. 62, No. 1, Ky. Bench & Bar 10.

Cullison, How Kentucky’s Civil Legal Aid Programs Assist Victims of Domestic Violence: One Program’s Perspective, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 6.

Hill, EPOs and DVOs: Significant Protection; Significant Restrictions; Potential for Abuse, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 15.

Kentucky Law Journal.

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Gold, Note, Why Are Victims of Domestic Violence Still Dying at the Hands of Their Abusers? Filling the Gap in State Domestic Violence Gun Laws, 91 Ky. L.J. 957 (2002).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Domestic Violence, § 264.00.

Petrilli, Kentucky Family Law, 1991 Supp., Actions, § 17.15.

403.7505. Certification standards for mental health professionals providing court-mandated treatment — List of certified providers to Administrative Office of the Courts — Collection of data.

  1. The Cabinet for Health and Family Services shall, by administrative regulations promulgated pursuant to KRS Chapter 13A, establish certification standards for mental health professionals providing court-mandated treatment services for domestic violence offenders.
  2. The standards created by the cabinet shall be based on the following principles:
    1. Domestic violence is a pattern of coercive control which includes physical, sexual, psychological, and environmental abuse, and is considered to be criminal conduct;
    2. The primary goal of treatment programs for domestic violence offenders shall be the cessation of violence which will provide for the safety of victims and their children; and
    3. Domestic violence offenders are responsible and shall be held accountable for the violence which they choose to perpetrate.
  3. The standards created by the cabinet shall address the following:
    1. Qualifications of providers of court-mandated domestic violence offender treatment services which shall include appropriate requirements for degree, experience, training, and continuing education;
    2. Procedures for application by providers to receive certification which shall include methods of appeal if certification is denied, and sanctions for noncompliance with the standards which may include revocation of certification;
    3. Admittance and discharge criteria for domestic violence offenders to enter court-mandated treatment services provided pursuant to this section;
    4. Written protocols for referral by a court to certified providers and for progress reports to be made to the court by providers;
    5. Contracts for domestic violence offenders to sign prior to entering court-ordered treatment services provided pursuant to this section. The contract shall specify that certified providers may contact the victims of the offender if the victim chooses to be contacted. The contract shall authorize the provider to release information regarding the offender’s progress in treatment to the court, victims, probation and parole officers, and other individuals authorized by the court to receive the information;
    6. Written procedures in compliance with KRS 202A.400 , 209.030 , and 620.030 ;
    7. Payment protocols which require the offender to pay the actual cost for any court-mandated evaluation or treatment pursuant to this section, subject to the offender’s ability to pay; and
    8. Other provisions which shall further the availability and quality of court-mandated domestic violence offender services.
  4. The cabinet shall:
    1. Maintain a list of providers certified pursuant to this section and regularly submit the list to the Administrative Office of the Courts; and
    2. Collect data from certified providers, which shall include demographic information and clinical characteristics on offenders served, number of offenders admitted into treatment and discharge conditions, total clinical services provided to offenders, and other information necessary to monitor the safety and effectiveness of services provided, to be provided upon request.
  5. No person, association, or organization shall conduct, operate, maintain, advise, or advertise any program that provides court-ordered treatment services for domestic violence offenders without first obtaining or maintaining valid certification under this chapter. If the cabinet has cause to believe that court-ordered treatment services for domestic violence offenders are being provided by a person or entity that does not possess valid certification under this chapter, the cabinet may institute proceedings, in the Circuit Court of the county in which the person or entity is located or in Franklin Circuit Court, for injunctive relief to terminate the provision of those services.
  6. Any person certified under this section shall submit quarterly to the cabinet:
    1. Demographic information and clinical characteristics on offenders served;
    2. Number of offenders admitted into treatment and discharge conditions;
    3. Total clinical services provided to offenders; and
    4. Other information as required by administrative regulation.

HISTORY: Enact. Acts 1996, ch. 54, § 1, effective July 15, 1996; 1998, ch. 426, § 581, effective July 15, 1998; 2000, ch. 317, § 4, effective July 14, 2000; 2002, ch. 70, § 1, effective July 15, 2002; 2005, ch. 99, § 627, effective June 20, 2005; 2017 ch. 80, § 53, effective June 29, 2017.

403.751. Entry of summons or order of protection issued pursuant KRS 403.715 to 403.785 into Law Information Network of Kentucky.

  1. All forms, affidavits, and orders of protection issued or filed pursuant to KRS 403.715 to 403.785 which require entry into the Law Information Network of Kentucky shall be entered on forms prescribed by the Administrative Office of the Courts after consultation with the Justice and Public Safety Cabinet. If the provisions of an order of protection are contained in an order which is narrative in nature, the prescribed form shall be used in addition to the narrative order.
  2. The circuit clerk, in cooperation with the court, shall cause a copy of each summons or order issued pursuant to KRS 403.715 to 403.785 , or foreign protective order, fully completed and authenticated pursuant to KRS 403.715 to 403.785 , to be forwarded, by the most expedient means reasonably available and within twenty-four (24) hours following its filing with the clerk, to the appropriate agency designated for entry of orders of protection into the Law Information Network of Kentucky and to the agency assigned service. Any order or court record superseding, modifying, or otherwise affecting the status of an earlier summons or order shall likewise be forwarded by the circuit clerk to the appropriate Law Information Network of Kentucky entering agency and to the agency assigned service, if service is required. The clerk and the court shall comply with all provisions and guidelines of the Law Information Network of Kentucky for entry of the records.
  3. Each agency designated for entry of summonses and orders issued pursuant to KRS 403.715 to 403.785 , or foreign protective orders authenticated pursuant to this chapter, into the Law Information Network of Kentucky shall, consistent with the provisions and guidelines of the Law Information Network of Kentucky, enter the records immediately upon receipt of copies forwarded to the agency in accordance with subsection (2) of this section.

History. Enact. Acts 1996, ch. 99, § 13, effective July 15, 1996; repealed and reenacted by 2015 ch. 102, § 9, effective January 1, 2016.

403.7521. Foreign protective orders — Rebuttable presumption of validity — Enforcement — Civil and criminal proceedings mutually exclusive.

  1. All foreign protective orders shall have the rebuttable presumption of validity. The validity of a foreign protective order shall only be determined by a court of competent jurisdiction. Until a foreign protective order is declared to be invalid by a court of competent jurisdiction, it shall be given full faith and credit by all peace officers and courts in the Commonwealth.
  2. All peace officers shall treat a foreign protective order as a legal document valid in Kentucky, and shall make arrests for a violation thereof in the same manner as for a violation of an order of protection issued in Kentucky.
  3. The fact that a foreign protective order has not been entered into the Law Information Network of Kentucky shall not be grounds for a peace officer not to enforce the provisions of the order unless it is readily apparent to the peace officer to whom the order is presented that the order has either expired according to a date shown on the order, or that the order’s provisions clearly do not prohibit the conduct being complained of. Officers acting in good faith shall be immune from criminal and civil liability.
  4. If the order has expired or its provisions do not prohibit the conduct being complained of, the officer shall not make an arrest unless the provisions of a Kentucky statute have been violated, in which case the peace officer shall take the action required by Kentucky law.
  5. Civil proceedings and criminal proceedings for violation of a foreign protective order for the same violation of the protective order shall be mutually exclusive. Once either proceeding has been initiated, the other shall not be undertaken, regardless of the outcome of the original proceeding.

HISTORY: Enact. Acts 1996, ch. 99, § 4, effective July 15, 1996; 2015 ch. 102, § 10, effective January 1, 2016.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Temporary Order of Protection — Foreign Protective Affidavit and Order (AOC 275.8), Form 264.05.

403.7524 Statement to assist out-of-state court in determining whether order issued under KRS 403.715 to 403.785 is entitled to full faith and credit.

  1. In order to assist a court of another state in determining whether an order issued under KRS 403.715 to 403.785 is entitled to full faith and credit pursuant to 18 U.S.C. sec. 2265 :
    1. All domestic violence orders shall include a statement certifying that the issuing court had jurisdiction over the parties and the matter, and that reasonable notice and opportunity to be heard has been given to the person against whom the order is sought sufficient to protect that person’s right to due process; and
    2. All emergency protective orders shall include a statement certifying that notice and opportunity to be heard has been provided within the time required by state law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights.
  2. The Administrative Office of the Courts shall prescribe the form to be used for the purposes of this section.

HISTORY: Enact. Acts 1996, ch. 99, § 5, effective July 15, 1996; 2015 ch. 102, § 11, effective January 1, 2016.

Legislative Research Commission Note.

(1/7/98). The KRS references contained in subsections (1) and (3) of this statute have been codified as those references were enacted in 1996 Ky. Acts ch. 99 (Senate Bill 105), sec. 5, but it appears that these statute references may be erroneous. Subsection (1) contained a reference to Section 1 of the Act (KRS 403.725 ), but from context it appears that Section 4 of the Act (KRS 403.7521 ) may have been intended; subsection (3) contained a reference to Section 4 of the Act (KRS 403.7521 ), but from context it appears that Section 2 of the Act (KRS 403.750 ) may have been intended. (Modified to correct a mistaken subsection reference.)

403.7527. Filing foreign protective order and affidavit — Certification by issuing court official — Entry into Law Information Network of Kentucky.

  1. A copy of a foreign protective order may be filed in the office of the clerk of any court of competent jurisdiction of this state. A foreign protective order so filed shall have the same effect and shall be enforced in the same manner as an order of protection issued by a court of this state.
    1. At the time of the filing of the foreign protective order, the person filing the order shall file with the clerk of the court an affidavit on a form prescribed and provided by the Administrative Office of the Courts. The affidavit shall set forth the name, city, county, and state or other jurisdiction of the issuing court. The person shall certify in the affidavit the validity and status of the foreign protective order, and attest to the person’s belief that the order has not been amended, rescinded, or superseded by any orders from a court of competent jurisdiction. All foreign protective orders presented with a completed and signed affidavit shall be accepted and filed. (2) (a) At the time of the filing of the foreign protective order, the person filing the order shall file with the clerk of the court an affidavit on a form prescribed and provided by the Administrative Office of the Courts. The affidavit shall set forth the name, city, county, and state or other jurisdiction of the issuing court. The person shall certify in the affidavit the validity and status of the foreign protective order, and attest to the person’s belief that the order has not been amended, rescinded, or superseded by any orders from a court of competent jurisdiction. All foreign protective orders presented with a completed and signed affidavit shall be accepted and filed.
    2. The affidavit signed by the applicant shall have space where the reviewing judge shall place information necessary to allow the order’s entry into the Law Information Network of Kentucky in the same manner as a Kentucky order.
    1. If the person seeking to file the order presents a copy of the foreign order which is current by the terms of the order and has been certified by the clerk or other authorized officer of the court which issued it, the circuit clerk shall present it to the District Judge or Circuit Judge, who shall read the order and enter on the affidavit the information necessary to allow the order’s entry into the Law Information Network of Kentucky. The order shall not be subject to further verification and shall be accepted as authentic, current, and subject to full faith and credit. (3) (a) If the person seeking to file the order presents a copy of the foreign order which is current by the terms of the order and has been certified by the clerk or other authorized officer of the court which issued it, the circuit clerk shall present it to the District Judge or Circuit Judge, who shall read the order and enter on the affidavit the information necessary to allow the order’s entry into the Law Information Network of Kentucky. The order shall not be subject to further verification and shall be accepted as authentic, current, and subject to full faith and credit.
    2. If the order presented is current by the terms of the order but is not certified in the manner specified in paragraph (a) of this subsection, the circuit clerk shall present the order and the affidavit to the District Judge or Circuit Judge, who shall read the order and enter on the affidavit the information necessary to allow the order’s entry into the Law Information Network of Kentucky. The order shall be subject to full faith and credit in the same manner as a Kentucky order of protection, but shall be subject to verification by the circuit clerk. The order shall be valid for a period of fourteen (14) days and may be renewed once for a period of fourteen (14) days if the circuit clerk has not received a certified copy of the order from the issuing jurisdiction. The clerk shall treat the foreign protective order in the same manner as an order of protection issued pursuant to KRS 403.740 , except that no service on the adverse party shall be required pursuant to 18 U.S.C. sec. 2265 .
    3. Upon the filing of an uncertified foreign protective order, the circuit clerk shall, within two (2) business days, contact the issuing court to request a certified copy of the order. If the certified copy of the order is received by the circuit clerk within the initial fourteen (14) day period, the clerk shall cause the information that certification has been received to be entered into the Law Information Network of Kentucky and shall notify the applicant for the order of the fact of its certification. A facsimile copy of a certified foreign protective order shall be grounds for the issuance of an order of protection.
    4. If the clerk has not received a certified copy of the foreign protective order within ten (10) days, the clerk shall notify the court and the applicant that the order has not been received. The notice to the applicant, on a form prepared by the Administrative Office of the Courts, shall state that the foreign protective order will be extended for another fourteen (14) days, but will be dismissed at the expiration of that time. If the clerk informs the judge in writing that the certified foreign protective order has been requested but has not yet been received, the judge shall extend the foreign protective order for a period of fourteen (14) days. If certification of the foreign protective order is not received within twenty-eight (28) days, the foreign protective order shall expire and shall not be reissued. If the applicant meets the qualifications for the issuance of a Kentucky domestic violence order, the court may, upon proper application and showing of evidence, issue a Kentucky order in accordance with this chapter.
  2. The right of a person filing a foreign protective order to bring an action to enforce the order instead of proceeding under this chapter remains unimpaired.

HISTORY: Enact. Acts 1996, ch. 99, § 6, effective July 15, 1996; 1998, ch. 606, § 189, effective July 15, 1998; 2015 ch. 102, § 12, effective January 1, 2016.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Amended Order of Protection and Affidavit for Certified Foreign Protective Order (AOC 275.10), Form 264.07.

403.7529. Authentication of foreign protective order.

  1. Upon ex parte review of the foreign protective order and the affidavit filed pursuant to KRS 403.7527 , and after determining the order is entitled to full faith and credit in this Commonwealth pursuant to 18 U.S.C. sec. 2265 , the court shall declare the order to be authenticated and record the finding on the affidavit.
  2. If the court declares the order to be authenticated, the court shall:
    1. Direct the appropriate law enforcement agency to assist the petitioner in having the provisions of the order complied with, if applicable; and
    2. Order its enforcement in any county of the Commonwealth in the same manner as an domestic violence order of this state issued pursuant to KRS 403.740 .
  3. The clerk shall notify the person who filed the foreign protective order of the decision of the court and provide the person a certified copy of the affidavit declaring the authentication of the order.

HISTORY: Enact. Acts 1996, ch. 99, § 7, effective July 15, 1996; 1998, ch. 606, § 190, effective July 15, 1998; 2015 ch. 102, § 13, effective January 1, 2016.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Amended Order of Protection and Affidavit for Certified Foreign Protective Order (AOC 275.10), Form 264.07.

403.7531. Clearing of foreign protective orders from Law Information Network of Kentucky.

  1. A foreign protective order which has been entered into the Law Information Network of Kentucky shall be immediately cleared as an active record from the computer system when:
    1. The order expires according to its terms;
    2. A Kentucky court notifies the Law Information Network of Kentucky that a foreign protective order has been dismissed, either by court order or entry of notification by a circuit clerk; or
    3. A circuit clerk notifies the Law Information Network of Kentucky that a foreign protective order tendered to the clerk has not been authenticated in the time period specified in KRS 403.7527 .
  2. For validation purposes, the Law Information Network of Kentucky shall provide the circuit court clerk with a printout of foreign protective orders. The clerk shall validate each order annually by contacting the original issuing court or jurisdiction. If the clerk has not received information from the foreign jurisdiction within thirty-one (31) days, the clerk shall cause those orders to be cleared from the Law Information Network of Kentucky.

HISTORY: Enact. Acts 1996, ch. 99, § 8, effective July 15, 1996; 2015 ch. 102, § 14, effective January 1, 2016.

Legislative Research Commission Note

(1/1/2016). In codification, the Reviser of Statutes has corrected a manifest clerical or typographical error in subsection (1)(c) of this statute by changing a reference to the time period for authentication of foreign protective orders to read “time period specified in KRS 403.7527 ,” the section which contains the deadlines for authentication of foreign protective orders. The error was corrected under the authority of KRS 7.136(1).

403.7535. Duty to notify court of change in foreign protective order.

  1. A person who has filed a foreign protective order in a court in Kentucky is under a continuing obligation to inform the court of any expiration, vacation, modification, or other change in the order which the person filing the order has received from the issuing foreign court.
  2. A person who has filed a foreign protective order in a court in Kentucky shall, within two (2) working days of the occurrence of any event specified in subsection (1) of this section, notify the clerk of the court in which the foreign protective order was filed of the fact of the changed order and present the clerk with a copy of the order for authentication as provided in this chapter. The clerk shall immediately notify the Law Information Network of Kentucky entering agency of the modification.
  3. No court in Kentucky and no peace officer in Kentucky shall be expected to enforce a provision of a foreign protective order which has been the subject of any action specified in subsection (1) of this section, unless proper notice has been given in accordance with this section.
  4. Intentional failure of a person who has filed a foreign protective order to make the notifications required by this section in the manner required by this section shall constitute contempt of court and may be grounds for an appropriate civil action brought by any person damaged by the intentional act of omission by the person failing to act.

HISTORY: Enact. Acts 1996, ch. 99, § 9, effective July 15, 1996; 2015 ch. 102, § 15, effective January 1, 2016.

403.7539. Civil and criminal proceedings for violations of foreign protective orders. [Repealed]

History. Enact. Acts 1996, ch. 99, § 10, effective July 15, 1996; 1998, ch. 606, § 191, effective July 15, 1998; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.754. Petitioner for protective order may apply for temporary permit to carry concealed deadly weapon — Criteria — Denial of application final — Conversion to concealed carry license — Automated listing of temporary permit holders.

  1. A petitioner for an order of protection granted under KRS 403.715 to 403.785 may apply for a temporary permit to carry a concealed deadly weapon on or about his or her person into those places and under the same conditions as a person holding a carry concealed deadly weapon license issued under KRS 237.110 .
  2. To request a temporary permit authorized by this section, the petitioner shall apply electronically for a license to carry a concealed deadly weapon in the manner set forth in KRS 237.110 and administrative regulation promulgated by the Department of Kentucky State Police, unless the electronic application is unavailable. If the electronic application is unavailable, applications for temporary permits under this section shall not be accepted.
  3. Prior to the issuance of a temporary permit authorized by this section, the Department of Kentucky State Police, upon receipt of a completed application, application fee, and any documentation required by KRS 237.110 or administrative regulation promulgated by the Department of Kentucky State Police, shall conduct the background check as set forth in KRS 237.110 .
  4. The Department of Kentucky State Police shall issue a temporary permit authorized by this section if the applicant is not disqualified under the standards set forth in KRS 237.110(4)(a) to (h).
  5. A temporary permit issued under this section shall be valid for forty-five (45) days from the date of issuance and not be subsequently extended or reissued. A temporary permit which has expired shall be void and shall not be valid for any purpose.
  6. The Department of Kentucky State Police shall, within one (1) working day or as soon as practically possible after the date of receipt of the completed application, a recent color photograph of the applicant, and, for applicants who are not citizens of the United States, any documentation required under KRS 237.110 , either issue the temporary permit or deny the application based solely on the grounds that the applicant fails to qualify under the criteria set forth in KRS 237.110 .
  7. In order to convert the temporary permit issued under this section into a license to carry a concealed deadly weapon issued under KRS 237.110 , the applicant shall meet the firearms safety training requirement under KRS 237.110 (4) within the forty-five (45) day period the temporary permit is valid. If firearms safety training is not completed within the forty-five (45) day temporary permit period, a new application for a license to carry a concealed deadly weapon shall be required.
  8. If the Department of Kentucky State Police denies the application for a temporary permit, that decision shall be final but the applicant’s application for a license to carry a concealed deadly license shall continue to be processed and either issued or denied in accordance with KRS 237.110 .
  9. The holder of a permit issued under this section shall carry the permit at all times the permit holder is carrying a concealed firearm or other deadly weapon and shall display the permit upon request of a law enforcement officer. Violation of the provisions of this subsection shall constitute a noncriminal violation with a penalty of twenty-five dollars ($25), payable to the clerk of the District Court, but no court costs shall be assessed.
  10. The Department of Kentucky State Police shall maintain an automated listing of temporary permit holders and pertinent information under the same circumstances and restrictions set forth in KRS 237.110 .
  11. Nothing in this section shall authorize the carrying of a concealed deadly weapon by a person prohibited from possessing such a weapon by state or federal law.

History. Enact. Acts 2014, ch. 120, § 4, effective July 15, 2014.

403.755. Enforcement by law enforcement agency. [Repealed]

History. Enact. Acts 1984, ch. 152, § 9, effective July 13, 1984; 1992, ch. 172, § 9, effective July 14, 1992; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.760. Contempt of court. [Repealed]

History. Enact. Acts 1984, ch. 152, § 10, effective July 13, 1984; 1992, ch. 172, § 10, effective July 14, 1992; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.761. Amendment of domestic violence order to require participation in global positioning monitoring system — Cost to be paid by respondent and system operator — Shortening or vacating of order — Penalty for violation.

  1. Upon a petitioner’s request and after an evidentiary hearing, a court may amend a domestic violence order to require a respondent to participate in a global positioning monitoring system if:
    1. The respondent has committed a substantial violation of a previously entered domestic violence order;
    2. The court has reviewed an updated history of the respondent’s Kentucky criminal and protective order history; and
    3. The court makes a factual determination that the use of a global positioning monitoring system would increase the petitioner’s safety.
  2. An order requiring participation in a global positioning monitoring system shall:
    1. Require the respondent to pay the cost of participation up to the respondent’s ability to pay, with the system operator bearing any uncovered costs for indigent respondents;
    2. State with specificity the locations or areas where the respondent is prohibited from being located or persons with whom the respondent shall have no contact;
    3. Include the date that the order expires, which shall be no longer than the expiration date of the domestic violence order, although participation may be extended if the underlying order is extended;
    4. Require the entity that operates the monitoring system to immediately notify the petitioner, the local law enforcement agency named in the order, and the court if a respondent violates the order; and
    5. Include any other information as the court deems appropriate.
  3. The Administrative Office of the Courts shall prepare a publicly available informational pamphlet containing information on the method of applying for, hearing, amending, and terminating an order requiring participation in a global positioning monitoring system.
    1. The Supreme Court may establish by rule a sliding scale of payment responsibility for indigent defendants for use in establishing required payments under subsection (2) of this section. (4) (a) The Supreme Court may establish by rule a sliding scale of payment responsibility for indigent defendants for use in establishing required payments under subsection (2) of this section.
    2. A person, county, or other organization may voluntarily agree to pay all or a portion of a respondent’s monitoring costs specified in this section.
  4. An order requiring participation in a global positioning monitoring system may be shortened or vacated by the court either:
    1. Upon request of the petitioner; or
    2. Upon request of the respondent after an evidentiary hearing, if the respondent has not violated the order and:
      1. Three (3) months have elapsed since the entry of the order; and
      2. No previous request has been made by the respondent in the previous six (6) months.
  5. A respondent who fails to wear, removes, tampers with, or destroys a global positioning monitoring system device in contravention of an order entered under this section shall be guilty of a Class D felony.

HISTORY: Enact. Acts 2010, ch. 170, § 7, effective July 15, 2010; 2014, ch. 141, § 5, effective July 15, 2014; 2015 ch. 102, § 16, effective January 1, 2016.

403.762. Request for modification of global positioning monitoring order — Hearing. [Repealed]

History. Enact. Acts 2010, ch. 170, § 8, effective July 15, 2010; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.763. Violation order of protection constitutes contempt of court and criminal offense.

  1. Violation of the terms or conditions of an order of protection after the person has been served or given notice of the order shall constitute contempt of court and a criminal offense under this section. Once a criminal or contempt proceeding has been initiated, the other shall not be undertaken regardless of the outcome of the original proceeding.
    1. Court proceedings for contempt of court for violation of an order of protection shall be held in the county where the order was issued or filed. (2) (a) Court proceedings for contempt of court for violation of an order of protection shall be held in the county where the order was issued or filed.
    2. Court proceedings for a criminal violation of an order of protection shall follow the rules of venue applicable to criminal cases generally.
  2. Nothing in this section shall preclude the Commonwealth from prosecuting and convicting the respondent of criminal offenses other than violation of an order of protection.
    1. A person is guilty of a violation of an order of protection when he or she intentionally violates the provisions of an order of protection after the person has been served or given notice of the order. (4) (a) A person is guilty of a violation of an order of protection when he or she intentionally violates the provisions of an order of protection after the person has been served or given notice of the order.
    2. Violation of an order of protection is a Class A misdemeanor.

HISTORY: Enact. Acts 1992, ch. 172, § 15, effective July 14, 1992; 2015 ch. 102, § 17, effective January 1, 2016.

Legislative Research Commission Note.

(1/1/2016). In 2015 Ky. Acts ch. 102, sec. 17, this statute was repealed and reenacted with language substantially different from that contained in the version current at that time. In Section 51 of that Act, KRS 403.763 (this statute) was also included in the list of statutes to be repealed. In codification, the Reviser of Statutes has determined that there was no intention to both repeal and repeal and reenact the same statute and that the inclusion of KRS 403.763 in the list of statutes to be repealed was a manifest clerical or typographical error. As such, that repeal will not prevail over its repeal and reenactment in the same Act under the authority of KRS 7.136(1)(h).

NOTES TO DECISIONS

1.Element of Offense.

A defendant was not placed in double jeopardy by being prosecuted for assault and burglary after contempt sanctions for violation of an Emergency Protective Order had been imposed because criminal contempt, as defined under this section, burglary, and assault all require elements not enumerated in the other offenses. Butts v. Commonwealth, 953 S.W.2d 943, 1997 Ky. LEXIS 93 ( Ky. 1997 ), overruled in part, Commonwealth v. McCombs, 304 S.W.3d 676, 2009 Ky. LEXIS 61 ( Ky. 2009 ), abrogated in part, Elery v. Commonwealth, 368 S.W.3d 78, 2012 Ky. LEXIS 87 ( Ky. 2012 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Cullison, How Kentucky’s Civil Legal Aid Programs Assist Victims of Domestic Violence: One Program’s Perspective, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 6.

Hill, EPOs and DVOs: Significant Protection; Significant Restrictions; Potential for Abuse, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 15.

Wright, Prosecuting Domestic Violence, Vol 76, No. 2, March 2012, Ky. Bench & Bar 30.

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

403.765. Certification of existence of domestic violence protective orders — Efficacy of existing orders. [Repealed]

History. Enact. Acts 1984, ch. 152, § 11, effective July 13, 1984; 1988, ch. 258, § 6, effective July 15, 1988; 1992, ch. 172, § 11, effective July 14, 1992; 1996, ch. 99, § 11, effective July 15, 1996; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.770. Nonpublication of petitioner’s and minor children’s addresses — Forwarding of orders to Law Information Network of Kentucky and other agencies. [Repealed]

History. Enact. Acts 1984, ch. 152, § 12, effective July 13, 1984; 1992, ch. 172, § 12, effective July 14, 1992; 1996, ch. 99, § 12, effective July 15, 1996; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.771. Printout of foreign orders — Annual validation. [Repealed]

History. Enact. Acts 1996, ch. 99, § 17, effective July 15, 1996; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.775. Effect of petitioner’s leaving residence. [Repealed]

History. Enact. Acts 1984, ch. 152, § 13, effective July 13, 1984; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.780. Testimony not admissible in criminal proceeding. [Repealed]

History. Enact. Acts 1984, ch. 152, § 14, effective July 13, 1984; repealed by 2015 ch. 102, § 51, effective January 1, 2016.

403.783. Model law enforcement domestic violence policy and procedures manual — Distribution — Agency submission to Justice Cabinet — Assistance by cabinet when policy inadequate. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1996, ch. 54, § 7; 1998, ch. 426, § 582; 2000, ch. 14, § 52; 2005, ch. 99, § 628) was repealed by Acts 2007 ch. 85, § 334.

403.784. Training and continuing education courses for law enforcement officers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1996, ch. 54, § 8, effective July 15, 1996; 2000, ch. 317, § 5, effective July 14, 2000.) was repealed by Acts 2005, ch. 132, § 32, effective June 20, 2005.

403.785. Duties of law enforcement officers and agencies.

  1. A court issuing an order of protection shall direct the appropriate law enforcement agency to assist the petitioner in having the provisions of the order complied with.
  2. When a law enforcement officer has reason to suspect that a person has been the victim of domestic violence and abuse, the officer shall use all reasonable means to provide assistance to the victim, including but not limited to:
    1. Remaining at the location of the call for assistance so long as the officer reasonably suspects there is danger to the physical safety of individuals there without the presence of a law enforcement officer;
    2. Assisting the victim in obtaining medical treatment, including transporting the victim to the nearest medical facility capable of providing the necessary treatment; and
    3. Advising the victim immediately of the rights available to them as provided in KRS 421.500 , including the provisions of this chapter.
  3. Orders of protection shall be enforced in any county of the Commonwealth.
  4. Officers acting in good faith under this section shall be immune from criminal and civil liability.

History. Enact. Acts 1984, ch. 152, § 15, effective July 13, 1984; 1992, ch. 172, § 13, effective July 14, 1992; 1996, ch. 54, § 9, effective July 15, 1996; 1998, ch. 426, § 583, effective July 15, 1998; 2000, ch. 14, § 53, effective July 14, 2000; 2005, ch. 99, § 629, effective June 20, 2005; 2015 ch. 102, § 18, effective January 1, 2016; 2017 ch. 191, § 15, effective June 29, 2017.

NOTES TO DECISIONS

1.In General.

District court properly granted summary judgment for police officers in an estate administrator’s 42 U.S.C.S. § 1983 action alleging a violation of the decedent’s U.S. Const. amend. XIV due process rights from the officers’ failure to arrest the decedent’s abusive boyfriend the night before she was murdered; there was no constitutional violation because KRS 403.785(2) and KRS 431.005 did not confer an entitlement or property interest on victims of domestic abuse. Howard v. Bayes, 457 F.3d 568, 2006 FED App. 0285P, 2006 U.S. App. LEXIS 20378 (6th Cir. Ky. 2006 ).

Since neither the Kentucky legislature nor judiciary has affirmatively indicated that KRS 403.785(2) and KRS 431.005 confer an entitlement or property interest on victims of domestic abuse, the United States Court of Appeals for the Sixth Circuit is left to conclude that Kentucky neither intended to grant, nor did grant, such an entitlement for purposes of creating a protected property interest under the Due Process Clause of U.S. Const. amend. XIV. Howard v. Bayes, 457 F.3d 568, 2006 FED App. 0285P, 2006 U.S. App. LEXIS 20378 (6th Cir. Ky. 2006 ).

2.Construction.

KRS 403.785(2) cannot be considered mandatory for purposes of creating a protected property interest under the Due Process Clause of U.S. Const. amend. XIV. Howard v. Bayes, 457 F.3d 568, 2006 FED App. 0285P, 2006 U.S. App. LEXIS 20378 (6th Cir. Ky. 2006 ).

3.Officer's Discretion.

Police officer who did not arrest a victim’s boyfriend for domestic violence pursuant to KRS 403.715 , 403.785 , and 431.005 , in the absence of clear evidence of physical assault or injury, was entitled to defense of qualified immunity, as the effecting of any arrest was within the officer’s discretion. Howard v. Bayes, 378 F. Supp. 2d 753, 2005 U.S. Dist. LEXIS 20066 (E.D. Ky. 2005 ), aff'd, 457 F.3d 568, 2006 FED App. 0285P, 2006 U.S. App. LEXIS 20378 (6th Cir. Ky. 2006 ).

4.Investigative Stop.

Defendant’s conviction for criminal mischief and disorderly conduct was affirmed as: (1) the police officers had a legal right to be on the premises as they were there in response to a 911 call of domestic violence, (2) there was ample evidence to indicate that the potential for domestic violence existed, (3) after locating defendant, the police acted reasonably in asking him to step out of an abandoned vehicle so that they could determine whether he was a threat, (4) defendant’s repeated refusals to cooperate, his reaching under the seat, and his desire to let loose his dog caused the officers to remove him forcibly from the vehicle, and (5) defendant was handcuffed and placed in the police cruiser because he was prohibiting the officers from carrying out their duty under KRS 403.785 , not because the officers were attempting to place him under arrest. Poe v. Commonwealth, 201 S.W.3d 37, 2006 Ky. App. LEXIS 258 (Ky. Ct. App. 2006).

Cited:

Manning v. Willett, 221 S.W.3d 394, 2007 Ky. App. LEXIS 112 (Ky. Ct. App. 2007).

403.785. Duties of law enforcement officers and agencies.

  1. A court issuing an order of protection shall direct the appropriate law enforcement agency to assist the petitioner in having the provisions of the order complied with.
  2. When a law enforcement officer has reason to suspect that a person has been the victim of domestic violence and abuse, the officer shall use all reasonable means to provide assistance to the victim, including but not limited to:
    1. Remaining at the location of the call for assistance so long as the officer reasonably suspects there is danger to the physical safety of individuals there without the presence of a law enforcement officer;
    2. Assisting the victim in obtaining medical treatment, including transporting the victim to the nearest medical facility capable of providing the necessary treatment;
    3. Advising the victim immediately of the rights available to them as provided in KRS 421.500 , including the provisions of this chapter; and
    4. Completing a JC-3 form, or its equivalent replacement, and providing the information to the Criminal Justice Statistical Analysis Center pursuant to Section 3 of this Act.
  3. Orders of protection shall be enforced in any county of the Commonwealth.
  4. Officers acting in good faith under this section shall be immune from criminal and civil liability.

HISTORY: Enact. Acts 1984, ch. 152, § 15, effective July 13, 1984; 1992, ch. 172, § 13, effective July 14, 1992; 1996, ch. 54, § 9, effective July 15, 1996; 1998, ch. 426, § 583, effective July 15, 1998; 2000, ch. 14, § 53, effective July 14, 2000; 2005, ch. 99, § 629, effective June 20, 2005; 2015 ch. 102, § 18, effective January 1, 2016; 2017 ch. 191, § 15, effective June 29, 2017; 2022 ch. 224, § 5.

Uniform Child Custody Jurisdiction and Enforcement Act

Article 1. General Provisions

403.800. Definitions for KRS 403.800 to 403.880.

As used in KRS 403.800 to 403.880 :

  1. “Abandoned” means left without provision for reasonable and necessary care or supervision;
  2. “Child” means an individual who has not attained eighteen (18) years of age;
  3. “Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes permanent, temporary, initial, and modification orders. The term does not include an order relating to child support or other monetary obligation of an individual;
  4. “Child custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Article 3;
  5. “Commencement” means the filing of the first pleading in a proceeding;
  6. “Court” means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination;
  7. “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six (6) months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period;
  8. “Initial determination” means the first child custody determination concerning a particular child;
  9. “Issuing court” means the court that makes a child custody determination for which enforcement is sought under KRS 403.800 to 403.880 ;
  10. “Issuing state” means the state in which a child custody determination is made;
  11. “Modification” means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination;
  12. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity;
  13. “Person acting as a parent” means a person, other than a parent, who:
    1. Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding; and
    2. Has been awarded legal custody by a court or claims a right to legal custody under the law of this state;
  14. “Physical custody” means the physical care and supervision of a child;
  15. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States;
  16. “Tribe” means an Indian tribe or band, or Alaskan Native village, which is recognized by federal law or formally acknowledged by a state; and
  17. “Warrant” means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

History. Enact. Acts 2004, ch. 133, § 1, effective July 13, 2004.

NOTES TO DECISIONS

Analysis

1.Application.

Former Uniform Child Custody Jurisdiction Act (U.C.C.J.A.) (now Uniform Child Custody Jurisdiction and Enforcement Act, see KRS 403.800 et seq.), applied to all cases, regardless of whether the custody order originated with the court now asked to consider a change of custody, or originated elsewhere. By the terms of the act a court entering an original custody decree may be required to refuse jurisdiction of a subsequent motion to change custody because of a child’s present living arrangements and place of residence; thus, the U.C.C.J.A. was a threshold consideration in every case, and the prefatory reference to it in KRS 403.340(2) did no more than make clear that when a court is asked to entertain a change of custody case it shall not do so unless the circumstances covered by the U.C.C.J.A. are present. Quisenberry v. Quisenberry, 785 S.W.2d 485, 1990 Ky. LEXIS 29 ( Ky. 1990 ) (decided under prior law).

Where a natural parent’s same-sex partner sought joint custody of a child they agreed to conceive through artificial insemination and parent together as a family, the partner had standing to seek custody of the child under the Uniform Child Custody Jurisdiction and Enforcement Act where the partner claimed a right to legal custody of the child under both an agreed judgment of custody and pursuant to a waiver theory, satisfying the requirement of KRS 403.800(13)(b). Mullins v. Picklesimer, 317 S.W.3d 569, 2010 Ky. LEXIS 7 ( Ky. 2010 ), limited, S.R.V. v. J.S.B., 2020 Ky. App. LEXIS 127 (Ky. Ct. App. Dec. 4, 2020).

To the extent that a family court applied the Uniform Child Custody Jurisdiction and Enforcement Act, KRS 403.800 et seq., as a tool to resolve substantive factual questions upon which custody or visitation/timesharing determinations were based in parties’ custody dispute, such was error; there were no jurisdictional issues before the court. N.B. v. C.H., 351 S.W.3d 214, 2011 Ky. App. LEXIS 250 (Ky. Ct. App. 2011).

Couple, whose husband was a first cousin of the father’s minor twin children, lacked standing under KRS 403.822(1)(b) to seek custody of the minor twin children after their mother died and, thus, the trial court could not have awarded joint custody of the minor twin children as well as the father. Although the couple had KRS 403.800(14) physical custody of the minor twin children in the sense that the couple were their caretakers and physically supervised them, the couple did not qualify as KRS 403.800(13) persons acting as parents because their petition for custody had not been filed after they had the twins in their care for at least six months. Wethington v. Coffey, 2012 Ky. App. LEXIS 201 (Ky. Ct. App. Oct. 5, 2012), rev'd, 421 S.W.3d 394, 2014 Ky. LEXIS 12 ( Ky. 2014 ).

2.Proper Forum.

Where McCracken County had been the residence of both divorced spouses and their children for the last two years, evidence concerning custody of children could best be produced by witnesses living in that county and it was a convenient forum for the controversy, there was no statutory prohibition or inconsistency in allowing the case to be heard in McCracken County instead of Union County where the divorce decree and custody agreement were originally entered, since the enactment of KRS 403.110 et seq. and former KRS 403.400 et seq. has eroded the doctrine of exclusive and continuing jurisdiction of the original court in custody cases, and where former law regarding jurisdiction in custody cases gave sufficient guidance and direction to establish the proper forum. Shumaker v. Paxton, 613 S.W.2d 130, 1981 Ky. LEXIS 219 ( Ky. 1981 ), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ) (decided under prior law).

Where young child had lived his entire life in Ohio, and was brought by father, in a surreptitious manner, to Kentucky two days prior to the filing of marriage dissolution action, and there was no evidence in the record to show that it would be in the best interest of the child for Kentucky to exercise jurisdiction, but to the contrary, the record showed that the best interest of this small child would be served by leaving his future to the authorities in Ohio, who cared for him, supervised him and provided for him since his birth, Circuit Court had no jurisdiction to award custody in action filed by father and a writ of prohibition was the appropriate remedy. Wood v. Graham, 633 S.W.2d 404, 1982 Ky. LEXIS 251 ( Ky. 1982 ) (decided under prior law).

3.Full Faith and Credit.

Portions of a Texas decree pertaining to child support and custody should not have been given full faith and credit, since the decree was from a state that had not adopted the uniform act and therefore was not entitled to full faith and credit in Kentucky courts, and since the father made no appearance in the Texas courts. Green v. Bruenning, 690 S.W.2d 770, 1985 Ky. App. LEXIS 582 (Ky. Ct. App. 1985) (decided under prior law).

4.Jurisdiction.

The primary responsibility in child support and visitation issues under the Parental Kidnapping Prevention Act lies on counsel for the “home state” party, who should make sure that the record shows that the sister state has lost jurisdiction or declined to exercise it. If the sister state refuses to give up its jurisdiction, and if a party disagrees with the assumption of continuing jurisdiction by that other state, the appropriate remedy should be by appeal through the appellate courts of that state and then, if necessary, to the United States Supreme Court. The courts of this Commonwealth, however, should not be acting as appellate courts with respect to decisions by courts of other states. Cann v. Howard, 850 S.W.2d 57, 1993 Ky. App. LEXIS 20 (Ky. Ct. App. 1993) (decided under prior law).

A clear difference exists between enforcement jurisdiction and modification jurisdiction with respect to child custody disputes; this difference works no change in existing Kentucky law related to the requirements for jurisdiction over original decree or modification disputes that do fall within the purview of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA). Brighty v. Brighty, 883 S.W.2d 494, 1994 Ky. LEXIS 92 ( Ky. 1994 ) (decided under prior law).

Once Texas assumed jurisdiction of the right to visitation of two (2) children and modified the visitation order, there no longer existed an enforceable Kentucky visitation order for the father to attempt to enforce through a motion for contempt; accordingly, the Kentucky court lacked jurisdiction to enforce a visitation order that had been superceded by the order from the Texas court and was no longer valid. Scott v. Summers, 2003 Ky. App. LEXIS 99 (Ky. Ct. App. May 9, 2003), aff'd, 2005 Ky. Unpub. LEXIS 204 (Ky. June 16, 2005) (decided under prior law).

Although a mother argued that a trial court lacked personal jurisdiction to modify visitation under the Uniform Child Custody Jurisdiction Act, since the trial court retained jurisdiction for matters of custody from January 14, 2004, until March 10, 2004 and the trial court exercised jurisdiction over such matters on February 25, 2004, and there was no additional order prior to or on March 10, 2004, the period of time over which the trial court retained jurisdiction had passed, and the mother had failed to identify any relief that could be granted. Gibson v. Gibson, 211 S.W.3d 601, 2006 Ky. App. LEXIS 390 (Ky. Ct. App. 2006).

5.Home State.

Neither Texas nor Florida were proper forum to adjudicate child custody where Texas was place of birth of the child but none of the parties involved had any recent contact with Texas, and Florida was initially the child’s home state, as defined in this section, only because father took her there in violation of previous custody order and kept her whereabouts concealed from mother for more than two (2) years; Kentucky was properly considered as the child’s home state as a result of a two and one-half (21/2) year stay consented to by father. Pike v. Aigner, 828 S.W.2d 674, 1992 Ky. App. LEXIS 78 (Ky. Ct. App. 1992) (decided under prior law).

Kentucky court had jurisdiction over custody dispute between birth parents and adoptive parents pursuant to former KRS 403.420(1) because the action filed by birth parents for immediate entitlement and custody was a “custody proceeding” under former KRS 403.410(3); although Kentucky was not the child’s home state pursuant to former KRS 403.410(5) when the action was commenced, and although Ohio, where the child resided with the adoptive parents, could have qualified as the child’s home state, Kentucky had been the child’s home state within six (6) months before commencement of the proceeding, Ohio had previously yielded to Kentucky and declined to exercise jurisdiction, and Ohio had recognized that Kentucky was the proper forum in which to assert jurisdiction over the matter. Moore v. Asente, 110 S.W.3d 336, 2003 Ky. LEXIS 149 ( Ky. 2003 ), rehearing denied, 2003 Ky. LEXIS 151 ( Ky. 2003 ), rehearing denied, 2003 Ky. LEXIS 152 (Ky. 2003) (decided under prior law).

Unlike the residency requirements to establish home-state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, KRS 403.800 et seq., there is no minimum time period under KRS 403.725 to establish residency for entry of a domestic violence order (DVO). As a mother had clearly re-established her residency in Kentucky, the trial court had subject-matter jurisdiction to grant her a DVO. Bissell v. Baumgardner, 236 S.W.3d 24, 2007 Ky. App. LEXIS 304 (Ky. Ct. App. 2007).

Where a mother resided in Utah for 11 months prior to returning to Kentucky, and at the time of her domestic violence order hearing, she had been in Kentucky for less than six months, and since there was a pending dissolution and custody proceeding in Utah, Utah remained the child’s home state under KRS 403.800(7). Therefore, the child custody determination was subject to the Utah courts under KRS 403.822(1)(a). Bissell v. Baumgardner, 236 S.W.3d 24, 2007 Ky. App. LEXIS 304 (Ky. Ct. App. 2007).

Trial court had jurisdiction to hear a grandfather's custody petition because (1) the children lived with the grandfather for over six months, and (2) the grandfather was a “person acting as a parent,” due to having physical custody and being awarded temporary custody. Lambert v. Lambert, 475 S.W.3d 646, 2015 Ky. App. LEXIS 155 (Ky. Ct. App. 2015).

Trial court erred in finding Colorado did not have jurisdiction in a child custody matter because, accepting a mother’s statement of facts as true due to a father’s failure to file an appellate brief, the children’s absence from Colorado and presence in Kentucky was temporary, as that was the parties’ intent and agreement, and, thus, the temporary absence was included in finding the children had resided in Colorado for more than six months, making Colorado the children’s home state and depriving the trial court of jurisdiction. Dellapenta v. Goldy, 575 S.W.3d 697, 2018 Ky. App. LEXIS 256 (Ky. Ct. App. 2018).

6.Physical Custody.

“Physical custody” under former KRS 403.410(8) for the purposes of establishing standing in a custody dispute required more than “actual possession and control of a child” at the time a custody action is commenced because it required a showing that a parent has somehow voluntarily and indefinitely relinquished custody of the child; under that standard, adoptive parents had standing under former KRS 403.420(4)(b) to pursue custody of a child where the birth parents had filed an action to terminate their parental rights and to transfer the child’s custody to the adoptive parents and where the birth parents did not file the action to regain custody until almost six (6) months after they had placed the child with adoptive parents. Moore v. Asente, 110 S.W.3d 336, 2003 Ky. LEXIS 149 ( Ky. 2003 ), rehearing denied, 2003 Ky. LEXIS 151 ( Ky. 2003 ), rehearing denied, 2003 Ky. LEXIS 152 (Ky. 2003) (decided under prior law).

7.Person Acting as a Parent.

Mother's former partner was not a “person acting as a parent” who would have standing to pursue custody, as the former partner and the child had not lived together during the relevant period of time. W.R.L. v. A.H., 2015 Ky. App. LEXIS 52 (Ky. Ct. App. Apr. 17, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 668 (Ky. Ct. App. Apr. 17, 2015).

Issue of standing turned on whether the couple fell within the category of a person acting as a parent as required by the statute, as there was no dispute that they met the other requirements. Coffey v. Wethington, 421 S.W.3d 394, 2014 Ky. LEXIS 12 ( Ky. 2014 ).

For purposes of a person acting as a parent, the six-month requirement does not apply to those currently in physical custody of the child, as the couple clearly was at the commencement of this action; if the legislature had intended that the six-month requirement apply to those currently having custody of the child, then it would have indicated that by using “and” instead of “or,” and the court concluded that the couple had standing. Coffey v. Wethington, 421 S.W.3d 394, 2014 Ky. LEXIS 12 ( Ky. 2014 ).

Grandmother had standing to bring a petition for custody and/or visitation because she was a person acting as a parent based on the fact that she helped the 15-year-old mother with the child after its birth; however, she was not a de facto custodian because her care did not supplant that of the mother's. Inter alia, the mother sought and received government benefits for the child, entered custody agreements, and held herself out as the child's custodian throughout several court proceedings. Chadwick v. Flora, 488 S.W.3d 640, 2016 Ky. App. LEXIS 67 (Ky. Ct. App. 2016).

8.Child Custody Determination.

Under the statute’s definition of child custody determination, the order, while labeled temporary, was the initial child custody determination, and any subsequent child custody determination would be a modification of the initial determination. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Cited:

Rockwell v. Henning, 731 S.W.2d 11, 1987 Ky. App. LEXIS 496 (Ky. Ct. App. 1987); Fitch v. Burns, 782 S.W.2d 618, 1989 Ky. LEXIS 105 ( Ky. 1989 ); Qaisi v. Alaeddin, 580 S.W.3d 891, 2019 Ky. App. LEXIS 118 (Ky. Ct. App. 2019).

Research References and Practice Aids

Comparative Legislation.

Uniform Child Custody Jurisdiction Act:

Ark Code of 1987 (Michie) §§ 9-13-201 — 9-13-227.

Ill Ann. Stat., ch. 750, §§ 35/1 — 35/26 (Michie).

Ind Code Ann. §§ 31-17-3-1 — 31-17-3-25 (Burns).

Mo Ann. Stat. §§ 452.440 452.550 (Vernon).

Ohio Rev. Code Ann. §§ 3109.21 — 3109.37 (Page).

Tenn Code Ann. §§ 36-6-201 — 36-6-225.

Va Code §§ 20-125 — 20-146.

W.Va Code §§ 48-10-1 — 48-10-26.

Kentucky Bench & Bar.

Bonar, The Parental Kidnapping Prevention Act: More Peaks Than Pitfalls? Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 16.

Kentucky Law Journal.

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Northern Kentucky Law Review.

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.1, 26.8.

403.802. Proceedings governed by other law.

KRS 403.800 to 403.880 shall not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

History. Enact. Acts 2004, ch. 133, § 2, effective July 13, 2004.

403.804. Application to Indian tribes.

  1. A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. secs. 1901 et seq., is not subject to KRS 403.800 to 403.880 to the extent that it is governed by the Indian Child Welfare Act.
  2. A court of this state shall treat a tribe as if it were a state of the United States for the purpose of applying Articles 1 and 2.
  3. A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of KRS 403.800 to 403.880 shall be recognized and enforced under Article 3.

History. Enact. Acts 2004, ch. 133, § 3, effective July 13, 2004.

403.806. International application.

  1. A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying Articles 1 and 2.
  2. Except as otherwise provided in subsection (3) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of KRS 403.800 to 403.880 shall be recognized and enforced under Article 3.
  3. A court of this state need not apply KRS 403.800 to 403.880 if the child custody law of a foreign country violates fundamental principles of human rights.

History. Enact. Acts 2004, ch. 133, § 4, effective July 13, 2004.

403.808. Effect of child custody determination.

A child custody determination made by a court of this state that had jurisdiction under KRS 403.800 to 403.880 binds all persons who have been served in accordance with the laws of this state or notified in accordance with KRS 403.812 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

History. Enact. Acts 2004, ch. 133, § 5, effective July 13, 2004.

403.810. Priority.

If a question of existence or exercise of jurisdiction under KRS 403.800 to 403.880 is raised in a child custody proceeding, the question, upon request of a party, shall be given priority on the calendar and handled expeditiously.

History. Enact. Acts 2004, ch. 133, § 6, effective July 13, 2004.

403.812. Notice to persons outside state.

  1. Notice required for the exercise of jurisdiction when a person is outside this state shall be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice shall be given in a manner reasonably calculated to give actual notice but may be by warning order if other means are not effective.
  2. Proof of service shall be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.
  3. Notice shall not be required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

History. Enact. Acts 2004, ch. 133, § 7, effective July 13, 2004.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Custody of Children, § 26.1.

403.814. Appearance and limited immunity.

  1. A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.
  2. A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.
  3. The immunity granted by subsection (1) of this section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under KRS 403.800 to 403.880 committed by an individual while present in this state.

History. Enact. Acts 2004, ch. 133, § 8, effective July 13, 2004.

403.816. Communication between courts.

  1. A court of this state may communicate with a court in another state concerning a proceeding arising under KRS 403.800 to 403.880 .
  2. The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they shall be given an opportunity to present facts and legal arguments before a decision on jurisdiction is made.
  3. Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.
  4. Except as otherwise provided in subsection (3) of this section, a record shall be made of a communication under this section. The parties shall be informed promptly of the communication and granted access to the record.
  5. As used in this section, “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

History. Enact. Acts 2004, ch. 133, § 9, effective July 13, 2004.

NOTES TO DECISIONS

1.Applicability.

Since the trial court did not produce a record as required by KRS 403.816 , and there was no question but that it relied on letters which were not filed in the trial court record and that it failed to produce a record of its communications with the Tennessee court, there was clear error by impairing or eliminating a father’s ability to examine and rebut the evidence relied upon in the custody matter. Skinner v. Skinner, 249 S.W.3d 196, 2008 Ky. App. LEXIS 67 (Ky. Ct. App. 2008).

403.818. Taking testimony in another state.

  1. In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.
  2. A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.
  3. Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing shall not be excluded from evidence on an objection based on the means of transmission.

History. Enact. Acts 2004, ch. 133, § 10, effective July 13, 2004.

403.820. Cooperation between courts — Preservation of records.

  1. A court of this state may request the appropriate court of another state to:
    1. Hold an evidentiary hearing;
    2. Order a person to produce or give evidence pursuant to procedures of that state;
    3. Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;
    4. Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; or
    5. Order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.
  2. Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in subsection (1) of this section.
  3. Travel and other necessary and reasonable expenses incurred under subsections (1) and (2) of this section may be assessed against the parties according to the law of this state.
  4. A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding until the child attains eighteen (18) years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.

History. Enact. Acts 2004, ch. 133, § 11, effective July 13, 2004.

Article 2. Jurisdiction

403.822. Initial child custody jurisdiction.

  1. Except as otherwise provided in KRS 403.828 , a court of this state shall have jurisdiction to make an initial child custody determination only if:
    1. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; or
    2. A court of another state does not have jurisdiction under paragraph (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under KRS 403.834 or 403.836 ; and
      1. The child and the child’s parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
      2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships; or
    3. All courts having jurisdiction under paragraph (a) or (b) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under KRS 403.834 or 403.836 ; or
    4. No court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b), or (c) of this subsection.
  2. Subsection (1) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
  3. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

History. Enact. Acts 2004, ch. 133, § 12, effective July 13, 2004.

NOTES TO DECISIONS

1.Applicability.

Original custody decree is valid and binding until superseded by a custody modification order properly entered by a court with jurisdiction; where no modification is sought or obtained, courts have consistently held that the former Kentucky Uniform Child Custody Jurisdiction Act (UCCJA) former KRS 403.400 et seq. (now Uniform Child Custody Jurisdiction and Enforcement Act, KRS 403.800 et seq.), did not apply to contempt proceedings as, under KRS 403.420(1), the UCCJA explicitly applied to “child custody determinations by initial or modification decree,” and an order for contempt is simply not a custody determination in any way, shape, or form. Scott v. Summers, 2003 Ky. App. LEXIS 99 (Ky. Ct. App. May 9, 2003), aff'd, 2005 Ky. Unpub. LEXIS 204 (Ky. June 16, 2005) (decided under prior law).

2.Proper Forum.

Where young child had lived its entire life in Ohio, and was brought by father, in a surreptitious manner, to Kentucky two days prior to the filing of marriage dissolution action, and there was no evidence in the record to show that it would be in the best interest of the child for Kentucky to assume jurisdiction, but to the contrary, the record showed that the best interest of this small child would be served by leaving his future to the authorities in Ohio, who cared for him, supervised him and provided for him since his birth, Circuit Court had no jurisdiction to award custody in action filed by father and a writ of prohibition was the appropriate remedy. Wood v. Graham, 633 S.W.2d 404, 1982 Ky. LEXIS 251 ( Ky. 1982 ) (decided under prior law).

A nonparent cannot create venue by taking a child from one county to another without permission, even though after the child has been so taken he may then be “found” in the latter county. Fitch v. Burns, 782 S.W.2d 618, 1989 Ky. LEXIS 105 ( Ky. 1989 ) (decided under prior law).

Kentucky court had jurisdiction over custody dispute between birth parents and adoptive parents pursuant to former KRS 403.420(1) because the action filed by birth parents for immediate entitlement and custody was a “custody proceeding” under former KRS 403.410(3); although Kentucky was not the child’s home state pursuant to former KRS 403.410(5) when the action was commenced, and although Ohio, where the child resided with the adoptive parents, could have qualified as the child’s home state, Kentucky had been the child’s home state within six (6) months before commencement of the proceeding, Ohio had previously yielded to Kentucky and declined to exercise jurisdiction, and Ohio had recognized that Kentucky was the proper forum in which to assert jurisdiction over the matter. Moore v. Asente, 110 S.W.3d 336, 2003 Ky. LEXIS 149 ( Ky. 2003 ), rehearing denied, 2003 Ky. LEXIS 151 ( Ky. 2003 ), rehearing denied, 2003 Ky. LEXIS 152 (Ky. 2003) (decided under prior law).

Where a mother resided in Utah for 11 months prior to returning to Kentucky, and at the time of her domestic violence order hearing, she had been in Kentucky for less than six (6) months, and since there was a pending dissolution and custody proceeding in Utah, Utah remained the child’s home state under KRS 403.800(7). Therefore, the child custody determination was subject to the Utah courts under KRS 403.822(1)(a). Bissell v. Baumgardner, 236 S.W.3d 24, 2007 Ky. App. LEXIS 304 (Ky. Ct. App. 2007).

3.Jurisdiction.

The courts of this Commonwealth were without jurisdiction to modify custody of the child, where the child had lived her entire life in another state until she was brought to this Commonwealth, apparently without parental consent, eight (8) days before this petition was filed, there was nothing in the record to show that it would be in the best interest of the child for this Commonwealth to assume jurisdiction, and there was nothing in this record to suggest that her sole living parent was an unfit parent or had failed to support or visit his daughter prior to her removal by the grandparents. Rockwell v. Henning, 731 S.W.2d 11, 1987 Ky. App. LEXIS 496 (Ky. Ct. App. 1987) (decided under prior law).

An approach to the exercise of jurisdiction in which the totality of the circumstances is evaluated is preferable to the mechanical application of the statute to deprive a court of jurisdiction when the greater part of the evidence pertaining to the child’s interest is present in the state whose jurisdiction is invoked. Pike v. Aigner, 828 S.W.2d 674, 1992 Ky. App. LEXIS 78 (Ky. Ct. App. 1992) (decided under prior law).

The provisions of former KRS 403.470 do not come into operation unless the court has jurisdiction under this section to modify the custody decree of another state. Pike v. Aigner, 828 S.W.2d 674, 1992 Ky. App. LEXIS 78 (Ky. Ct. App. 1992) (decided under prior law).

The primary responsibility in child support and visitation issues under the Parental Kidnapping Prevention Act lies on counsel for the “home state” party, who should make sure that the record shows that the sister state has lost jurisdiction or declined to exercise it. If the sister state refuses to give up its jurisdiction, and if a party disagrees with the assumption of continuing jurisdiction by that other state, the appropriate remedy should be by appeal through the appellate courts of that state and then, if necessary, to the United States Supreme Court. The courts of this Commonwealth, however, should not be acting as appellate courts with respect to decisions by courts of other states. Cann v. Howard, 850 S.W.2d 57, 1993 Ky. App. LEXIS 20 (Ky. Ct. App. 1993) (decided under prior law).

The mere fact that child and custodial parent live in another state does not, as a matter of law, divest the trial court of jurisdiction to modify its custody orders. Dillard v. Dillard, 859 S.W.2d 134, 1993 Ky. App. LEXIS 115 (Ky. Ct. App. 1993) (decided under prior law).

A clear difference exists between enforcement jurisdiction and modification jurisdiction with respect to child custody disputes; this difference works no change in existing Kentucky law related to the requirements for jurisdiction over original decree or modification disputes that do fall within the purview of the Uniform Child Custody Jurisdiction Act (UCCJA) (now Uniform Child Custody Jurisdiction and Enforcement Act) or the Parental Kidnapping Prevention Act (PKPA). Brighty v. Brighty, 883 S.W.2d 494, 1994 Ky. LEXIS 92 ( Ky. 1994 ) (decided under prior law).

It was error for the Circuit Court to dismiss for lack of subject matter jurisdiction a motion to enforce a pre-existing, valid order finding the custodial parent in contempt of court for failure to comply with the court’s previous orders regarding visitation, despite mother’s contention that the Kentucky court lost subject matter jurisdiction over the contempt action by virtue of the former Uniform Child Custody Jurisdiction Act (UCCJA) (now Uniform Child Custody Jurisdiction and Enforcement Act) and by virtue of her having left Kentucky with the child in 1988. Brighty v. Brighty, 883 S.W.2d 494, 1994 Ky. LEXIS 92 ( Ky. 1994 ) (decided under prior law).

As of the time of the filing of the petition for dissolution, there was no home state jurisdictional preference in favor of Ohio, where the mother resided, as the child at issue was not yet born at the time the petition was filed and, therefore, could have no home state. Gullett v. Gullett, 992 S.W.2d 866, 1999 Ky. App. LEXIS 20 (Ky. Ct. App. 1999) (decided under prior law).

As of the time of the filing of the petition for dissolution, the parties’ unborn child did not have any significant connections with any state, be it Kentucky, in which the father resided, or Ohio, in which the mother resided. Gullett v. Gullett, 992 S.W.2d 866, 1999 Ky. App. LEXIS 20 (Ky. Ct. App. 1999) (decided under prior law).

At the time of the filing of the petition to dissolve the parties’ marriage, Kentucky was a proper forum to litigate child custody issues as the parties’ child was unborn at the time the petition was filed. Gullett v. Gullett, 992 S.W.2d 866, 1999 Ky. App. LEXIS 20 (Ky. Ct. App. 1999) (decided under prior law).

A Kentucky court had jurisdiction over a proceeding involving adoptive parents who resided in Ohio and biological parents who resided in Kentucky since a “Petition for Immediate Entitlement/Petition for Custody” was a “custody proceeding” under the former UCCJA, thereby making those statutes applicable, and the orders entered by the Kentucky court from which the adoptive parents appealed were entered at times when Ohio had yielded to Kentucky and declined jurisdiction. Asente v. Moore, 2000 Ky. App. LEXIS 103 (Ky. Ct. App. Sept. 15, 2000), aff'd in part and rev'd in part, 110 S.W.3d 336, 2003 Ky. LEXIS 149 ( Ky. 2003 ) (decided under prior law).

Kentucky was not home state of a mother and her children under KRS 403.420(1)(a) of the former Kentucky Uniform Child Custody Jurisdiction Act, former KRS 403.400 et seq. (see now Uniform Child Custody Jurisdiction and Enforcement Act, KRS 403.800 et seq.)where they did not reside in Kentucky within six (6) months before the commencement of the proceeding filed by the father to hold the mother in contempt of the Kentucky visitation order. Scott v. Summers, 2003 Ky. App. LEXIS 99 (Ky. Ct. App. May 9, 2003), aff'd, 2005 Ky. Unpub. LEXIS 204 (Ky. June 16, 2005) (decided under prior law).

Kentucky had jurisdiction to adjudicate the mother’s petition since it was uncontroverted that the child resided with her in Kentucky for at least six (6) months prior to the filing of the petition as set out in former KRS 403.420(1). Skinner v. Skinner, 249 S.W.3d 196, 2008 Ky. App. LEXIS 67 (Ky. Ct. App. 2008) (decided under prior law).

Trial court lacked subject matter jurisdiction over a custody matter because Kentucky was not the children’s home state for six months before commencement of the custody proceeding, there was no evidence that the children’s home state, North Carolina, had declined to exercise jurisdiction, and KRS 403.828(1) did not apply as there was no evidence that the children were in foreseeable danger of mistreatment or abuse; although the father took the children to an undisclosed location, under the parties’ separation agreement, the father was the custodial parent, and there was no evidence that the father intended to leave the children unattended or abandoned. Hearld v. Hearld, 278 S.W.3d 162, 2009 Ky. App. LEXIS 22 (Ky. Ct. App. 2009).

Family court did not possess subject matter jurisdiction under KRS 403.824(2) to modify a child custody determination where it lacked jurisdiction to make an initial custody determination under KRS 403.822 because Kentucky was not the home state of the child and neither parent continued to live in Kentucky. Wahlke v. Pierce, 392 S.W.3d 426, 2013 Ky. App. LEXIS 32 (Ky. Ct. App. 2013).

Where a father appealed a trial court’s order declining to exercise jurisdiction over the father’s petition to modify the custody and visitation provisions, the trial court abused its discretion by declining to exercise jurisdiction as only Kentucky had the relevant evidence relating to custody and visitation of the son. While the trial court had concerns about splitting the custody matters on the two children, te home state requirements of KRS 403.822 and the factors set out in KRS 403.834 had to control over the general policy against splitting custody. Ellis v. Ellis, 420 S.W.3d 528, 2014 Ky. App. LEXIS 11 (Ky. Ct. App. 2014).

Family court lacked subject matter jurisdiction over the initial custody determination because Kentucky never qualified at the children’s home state since the children had not resided in Kentucky for the previous six months, and the parties could not circumvent the home state requirement of the Kentucky Uniform Child Custody Jurisdiction and Enforcement Act, Ky. Rev. Stat. Ann. §§ 403.800 to 403.880 , by agreement. Officer v. Blankenship, 555 S.W.3d 449, 2018 Ky. App. LEXIS 186 (Ky. Ct. App. 2018).

Trial court erred in finding Colorado did not have jurisdiction in a child custody matter because, accepting a mother’s statement of facts as true due to a father’s failure to file an appellate brief, the children’s absence from Colorado and presence in Kentucky was temporary, as that was the parties’ intent and agreement, and, thus, the temporary absence was included in finding the children had resided in Colorado for more than six months, making Colorado the children’s home state and depriving the trial court of jurisdiction. Dellapenta v. Goldy, 575 S.W.3d 697, 2018 Ky. App. LEXIS 256 (Ky. Ct. App. 2018).

Trial court did not lack jurisdiction to make the final custody determination, as the child had resided in Kentucky within the last 180 days, no other state meet the statutory jurisdictional requirements, and the child still had significant connections to Kentucky. Brockman v. Brockman, 2019 Ky. App. LEXIS 11 (Ky. Ct. App. Feb. 1, 2019), review denied, ordered not published, 2019 Ky. LEXIS 193 (Ky. June 5, 2019).

4.Foreign Decree.

Where the mother had a valid Ohio decree awarding custody of the children to her, and there was no evidence that she was about to harm the children, she was entitled to immediate custody, even though the father had obtained an order in this Commonwealth granting temporary custody. Wieczorek v. Sebastian, 751 S.W.2d 38, 1988 Ky. App. LEXIS 69 (Ky. Ct. App. 1988) (decided under prior law).

In a child custody dispute, mandamus to require a Kentucky court to give full faith and credit to orders entered by an Alaskan court would have been improper where the issue of whether the Kentucky court had deferred jurisdiction was a question of fact rather than a jurisdictional question. Bock v. Graves, 804 S.W.2d 6, 1991 Ky. LEXIS 7 ( Ky. 1991 ) (decided under prior law).

5.Venue.

When a custody dispute is wholly intrastate, the issue is not jurisdiction, it is venue. In such circumstances, any Circuit Court in Kentucky possesses jurisdiction to decide the case; the only question is which of Kentucky’s 120 Circuit Courts is the appropriate venue. Pettit v. Raikes, 858 S.W.2d 171, 1993 Ky. LEXIS 74 ( Ky. 1993 ) (decided under prior law).

Where paternity was established in Hart County, the child’s significant contacts were all in that county, the pediatrician was located there, and where at the time of the filing of the petition requesting joint custody, a schedule of visitation and the change of child’s name, it appeared that the mother and the child were living in Hart County and that was the child’s permanent residence, proper venue was in Hart County. Ash v. Thompkins, 914 S.W.2d 788, 1996 Ky. App. LEXIS 13 (Ky. Ct. App. 1996) (decided under prior law).

6.Foster Parents Request for Custody.

Foster mother’s request for custody was properly considered as a petition for custody pursuant to the former Uniform Child Custody Act and the decision that the best interests of the child under Kentucky law required that custody be awarded to foster mother was affirmed. The Indian Child Welfare Act (ICWA) was not applicable to this situation under the “Existing Indian Family Doctrine” which holds that the ICWA applies only in those situations where Indian children are being removed from an existing Indian family as there was never an existing Indian family in this case. Rye v. Weasel, 934 S.W.2d 257, 1996 Ky. LEXIS 124 ( Ky. 1996 ) (decided under prior law).

7.Adoptive Parents Request for Custody.

“Physical custody” under former KRS 403.410(8) for the purposes of establishing standing in a custody dispute required more than “actual possession and control of a child” at the time a custody action is commenced because it required a showing that a parent has somehow voluntarily and indefinitely relinquished custody of the child; under that standard, adoptive parents had standing under former KRS 403.420(4)(b) to pursue custody of a child where the birth parents had filed an action to terminate their parental rights and to transfer the child’s custody to the adoptive parents and where the birth parents did not file the action to regain custody until almost six (6) months after they had placed the child with adoptive parents. Moore v. Asente, 110 S.W.3d 336, 2003 Ky. LEXIS 149 ( Ky. 2003 ), rehearing denied, 2003 Ky. LEXIS 151 ( Ky. 2003 ), rehearing denied, 2003 Ky. LEXIS 152 (Ky. 2003) (decided under prior law).

8.Standing.

Because a co-habitant failed to meet the statutory requirements of former KRS 403.420 and KRS 403.270 to be deemed a de facto custodian, and because the child was in the custody of the adoptive mother, the co-habitant lacked standing to claim custody. B.F. v. T.D., 194 S.W.3d 310, 2006 Ky. LEXIS 162 ( Ky. 2006 ).

Where a natural parent’s same-sex partner sought joint custody of a child they agreed to conceive through artificial insemination and parent together as a family, the partner had standing to seek custody of the child under the Uniform Child Custody Jurisdiction and Enforcement Act where the partner claimed a right to legal custody of the child under both an agreed judgment of custody and pursuant to a waiver theory, satisfying the requirement of KRS 403.800(13)(b). Mullins v. Picklesimer, 317 S.W.3d 569, 2010 Ky. LEXIS 7 ( Ky. 2010 ), limited, S.R.V. v. J.S.B., 2020 Ky. App. LEXIS 127 (Ky. Ct. App. Dec. 4, 2020).

Couple, whose husband was a first cousin of the father’s minor twin children, lacked standing under KRS 403.822(1)(b) to seek custody of the minor twin children after their mother died and, thus, the trial court could not have awarded joint custody of the minor twin children as well as the father. Although the couple had KRS 403.800(14) physical custody of the minor twin children in the sense that the couple were their caretakers and physically supervised them, the couple did not qualify as KRS 403.800(13) persons acting as parents because their petition for custody had not been filed after they had the twins in their care for at least six months. Wethington v. Coffey, 2012 Ky. App. LEXIS 201 (Ky. Ct. App. Oct. 5, 2012), rev'd, 421 S.W.3d 394, 2014 Ky. LEXIS 12 ( Ky. 2014 ).

According to the court’s holding, it appears that if a non-parent has physical custody of a child and has been awarded legal custody or claims a right to legal custody then the non-parent has standing. Coffey v. Wethington, 421 S.W.3d 394, 2014 Ky. LEXIS 12 ( Ky. 2014 ).

Issue of standing turned on whether the couple fell within the category of a person acting as a parent as required by the statute, as there was no dispute that they met the other requirements. Coffey v. Wethington, 421 S.W.3d 394, 2014 Ky. LEXIS 12 ( Ky. 2014 ).

For purposes of a person acting as a parent, the six-month requirement does not apply to those currently in physical custody of the child, as the couple clearly was at the commencement of this action; if the legislature had intended that the six-month requirement apply to those currently having custody of the child, then it would have indicated that by using “and” instead of “or,” and the court concluded that the couple had standing. Coffey v. Wethington, 421 S.W.3d 394, 2014 Ky. LEXIS 12 ( Ky. 2014 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Schlam, Third-Party Standing in Child Custody Disputes: Will Kentucky’s New “De Facto Guardian” Provision Help?, 27 N. Ky. L. Rev. 368 (2000).

403.824. Exclusive, continuing jurisdiction.

  1. Except as otherwise provided in KRS 403.828 , a court of this state which has made a child custody determination consistent with KRS 403.822 or 403.826 has exclusive, continuing jurisdiction over the determination until:
    1. A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
    2. A court of this state or a court of another state determines that the child, the child’s parents, and any other person acting as a parent do not presently reside in this state.
  2. A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under KRS 403.822 .

History. Enact. Acts 2004, ch. 133, § 13, effective July 13, 2004.

NOTES TO DECISIONS

1.Applicability.

Denial of a father’s motion to modify visitation for lack of jurisdiction was improper because, although the two (2) youngest children at issue in the motion lived with the mother in Tennessee, Kentucky had exclusive, continuing jurisdiction under circumstances in which, pursuant to two (2) prior custody orders, both entered by Kentucky courts, the oldest child lived with the father in Kentucky. Wallace v. Wallace, 224 S.W.3d 587, 2007 Ky. App. LEXIS 141 (Ky. Ct. App. 2007).

Trial court’s refusal to exercise jurisdiction after an Alabama court had assumed jurisdiction, while understood, was misaligned with the purposes of the Uniform Child Custody Jurisdiction Act as adopted in Kentucky. As the mother still resided in Kentucky, Kentucky had continuing jurisdiction to determine visitation. Bearden v. Mauldin, 2008 Ky. App. LEXIS 163 (Ky. Ct. App. May 23, 2008), rev'd, 293 S.W.3d 392, 2009 Ky. LEXIS 194 ( Ky. 2009 ).

Exclusive, continuous jurisdiction of the custody matters remained in Kentucky so long as the stepfather resided in Kentucky and maintained a significant relationship with the child; therefore, the Georgia adoption decree did not invalidate or alter the circuit court’s custody orders. Williams v. Bittel, 299 S.W.3d 284, 2009 Ky. App. LEXIS 241 (Ky. Ct. App. 2009).

Trial court erred in declining to exercise continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act after a mother moved a son from Kentucky to Colorado because the trial court did not apply the necessary statutory factors and improperly found that neither the son nor the father in Kentucky had significant connections with Kentucky even though the son had lengthy visits with the father in Kentucky after the father returned from deployment overseas. Biggs v. Biggs, 301 S.W.3d 32, 2009 Ky. App. LEXIS 246 (Ky. Ct. App. 2009).

Where a mother and father divorced in Tennessee and agreed that the father would have primary custody but that their son would visit the mother two weekends a month, where the father thereafter moved to Kentucky, and where the father filed a motion in a Kentucky family court to modify the custody arrangement after his son began acting out after spending weekends with his mother and her new husband, the Kentucky family court’s order modifying custody was vacated because the family court lacked subject matter jurisdiction over the matter. The Tennessee court maintained jurisdiction over the matter because both the child and one parent—the mother—maintained substantial connections with Tennessee. Walsh-Stender v. Walsh, 307 S.W.3d 127, 2009 Ky. App. LEXIS 253 (Ky. Ct. App. 2009).

Family court had continuing jurisdiction because both parents maintained significant connections with Kentucky; the father lived in Kentucky his whole life, and while the child no longer lived in Kentucky, she maintained a significant connection with Kentucky through visits with her father and her father’s family. Williams v. Frymire, 377 S.W.3d 579, 2012 Ky. App. LEXIS 161 (Ky. Ct. App. 2012).

Family court did not possess subject matter jurisdiction under KRS 403.824(2) to modify a child custody determination where it lacked jurisdiction to make an initial custody determination under KRS 403.822 because Kentucky was not the home state of the child and neither parent continued to live in Kentucky. Wahlke v. Pierce, 392 S.W.3d 426, 2013 Ky. App. LEXIS 32 (Ky. Ct. App. 2013).

After the temporary order was entered, the parties agreed to a parenting time schedule in their partial settlement agreement, which the trial court incorporated into the supplemental decree, but the trial court determined it was in the best interest of the children to modify the parenting time schedule and did so; thus, the supplemental decree worked as a modification of the previous parenting time schedule, and the statute governed the trial court’s jurisdiction in this instance. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

At the time the supplemental decree was entered, no interested party was residing in Kentucky, and Ky. Rev. Stat. Ann. § 403.824(1)(b) applied and § 403.824(2) would not apply; at the time the trial court entered the supplemental decree and sua sponte addressed the timesharing issue, the children and their parents had been living in Texas for approximately one year, and thus the trial court lacked jurisdiction to modify custody or parenting time. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

2.Temporary Emergency Jurisdiction.

Pursuant to KRS 403.824 and Utah Code Ann. § 78-45c-202, a Kentucky trial court’s exercise of temporary emergency jurisdiction did not impinge upon the superior jurisdiction of the Utah courts to make the final custody jurisdiction. Bissell v. Baumgardner, 236 S.W.3d 24, 2007 Ky. App. LEXIS 304 (Ky. Ct. App. 2007).

3.Exclusive and Continuing Jurisdiction.

Because a family court had determined in a child custody matter that neither the parents nor the child resided in Kentucky at the filing of the mother’s motion to modify visitation, the family court no longer possessed exclusive, continuing jurisdiction per KRS 403.824(1)(b) to adjudicate custody issues. Rather, the court was divested of subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, KRS 403.800 403.880 , to modify child custody and visitation issues, thus rendering its orders modifying visitation of the parties’ child void. Wahlke v. Pierce, 392 S.W.3d 426, 2013 Ky. App. LEXIS 32 (Ky. Ct. App. 2013).

Under KRS 403.824(1), a family court’s jurisdiction is exclusive and continuing until one of two circumstances are determined by a court to have occurred: neither the child nor a parent of the child has a significant connection with the state and substantial evidence regarding the child is lacking, or neither the child nor the parents of the child reside in that state. Wahlke v. Pierce, 392 S.W.3d 426, 2013 Ky. App. LEXIS 32 (Ky. Ct. App. 2013).

Family court lacked jurisdiction under Ky. Rev. Stat. Ann. § 403.824 to modify an Indiana custody order where the Indiana court clearly made the initial custody and visitation determination as to the children, and at the time the father filed his petition in Kentucky, he had also filed a modification and enforcement action in the original Indiana court. Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 2015 Ky. LEXIS 1758 ( Ky. 2015 ).

There must be something more than one parent's connection to the decree state for exclusive, continuing jurisdiction to endure. Ball v. McGowan, 497 S.W.3d 245, 2016 Ky. App. LEXIS 128 (Ky. Ct. App. 2016).

Mother was not entitled to a first-class writ of prohibition to stay a child custody order where the family court, in deciding whether it continued to have jurisdiction over the case after a change in circumstances, was exercising the subject-matter jurisdiction it had had in the case since 2014 in order to make a particular-case jurisdiction determination given the then-current facts. Even if the trial court had misconstrued or misapplied Ky. Rev. Stat. Ann. § 403.824 , it nonetheless maintained subject-matter jurisdiction. Lawson v. Woeste, 603 S.W.3d 266, 2020 Ky. LEXIS 223 ( Ky. 2020 ).

4.Significant Connections.

Circuit court erred in dismissing a father's action to modify custody because it was authorized to request the Nevada court to consider declining to exercise jurisdiction if it determined it was an inconvenient forum and the circuit court was a more appropriate forum; there was no evidence the mother exercised parenting time in Nevada or maintained a relationship with the child, and the relationship was so attenuated it was highly doubtful the significant connections requirement was satisfied. Ball v. McGowan, 497 S.W.3d 245, 2016 Ky. App. LEXIS 128 (Ky. Ct. App. 2016).

5.Parties Living Out of State.

Trial court lacked jurisdiction to modify custody or parenting time at the time that the supplemental decree was made because the children and parents has been living in Texas for approximately one year. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

403.826. Jurisdiction to modify determination.

Except as otherwise provided in KRS 403.828 , a court of this state shall not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under KRS 403.822(1)(a) or (b) and:

  1. The court of the other state determines that it no longer has exclusive, continuing jurisdiction under KRS 403.824 or that a court of this state would be a more convenient forum under KRS 403.834 ; or
  2. A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

History. Enact. Acts 2004, ch. 133, § 14, effective July 13, 2004.

NOTES TO DECISIONS

1.Substantial Connections.

Where a mother and father divorced in Tennessee and agreed that the father would have primary custody but that their son would visit the mother two weekends a month, where the father thereafter moved to Kentucky, and where the father filed a motion in a Kentucky family court to modify the custody arrangement after his son began acting out after spending weekends with his mother and her new husband, the Kentucky family court’s order modifying custody was vacated because the family court lacked subject matter jurisdiction over the matter. The Tennessee court maintained jurisdiction over the matter because both the child and one parent—the mother—maintained substantial connections with Tennessee. Walsh-Stender v. Walsh, 307 S.W.3d 127, 2009 Ky. App. LEXIS 253 (Ky. Ct. App. 2009).

2.Jurisdiction.

Kentucky would have initial child custody jurisdiction because at the time the father filed his motion to modify custody in 2013, the child had lived in Kentucky continuously since 2007, and Kentucky was the child's home state. Ball v. McGowan, 497 S.W.3d 245, 2016 Ky. App. LEXIS 128 (Ky. Ct. App. 2016).

Although the circuit court did not err in concluding that the Nevada court that entered the original custody order had exclusive, continuing jurisdiction, it erred in dismissing a father's action to modify custody because it was authorized to request that the Nevada court consider declining to exercise its jurisdiction if it determined it was an inconvenient forum and the circuit court was a more appropriate forum. Ball v. McGowan, 497 S.W.3d 245, 2016 Ky. App. LEXIS 128 (Ky. Ct. App. 2016).

Circuit court erred in dismissing a father's action to modify custody because it was authorized to request the Nevada court to consider declining to exercise jurisdiction if it determined it was an inconvenient forum and the circuit court was a more appropriate forum; there was no evidence the mother exercised parenting time in Nevada or maintained a relationship with the child, and the relationship was so attenuated it was highly doubtful the significant connections requirement was satisfied. Ball v. McGowan, 497 S.W.3d 245, 2016 Ky. App. LEXIS 128 (Ky. Ct. App. 2016).

403.828. Temporary emergency jurisdiction.

  1. A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
  2. If there is no previous child custody determination that is entitled to be enforced under KRS 403.800 to 403.880 and a child custody proceeding has not been commenced in a court of a state having jurisdiction under KRS 403.822 , 403.824 , and 403.826 , a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under KRS 403.822 , 403.824 , and 403.826 . If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under KRS 403.822, 403.824, and 403.826, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
  3. If there is a previous child custody determination that is entitled to be enforced under KRS 403.800 to 403.880 , or a child custody proceeding has been commenced in a court of a state having jurisdiction under KRS 403.822 , 403.824 , and 403.826 , any order issued by a court of this state under this section shall specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under KRS 403.822 , 403.824 , and 403.826 . The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
  4. A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under KRS 403.822 , 403.824 , and 403.826 , shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to KRS 403.822 , 403.824 , and 403.826 , upon being informed that a child custody proceeding has been commenced in, or a child custody determination had been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

History. Enact. Acts 2004, ch. 133, § 15, effective July 13, 2004.

NOTES TO DECISIONS

1.Jurisdiction.

Trial court lacked subject matter jurisdiction over a custody matter because Kentucky was not the children’s home state for six months before commencement of the custody proceeding, there was no evidence that the children’s home state, North Carolina, had declined to exercise jurisdiction, and KRS 403.828(1) did not apply as there was no evidence that the children were in foreseeable danger of mistreatment or abuse; although the father took the children to an undisclosed location, under the parties’ separation agreement, the father was the custodial parent, and there was no evidence that the father intended to leave the children unattended or abandoned. Hearld v. Hearld, 278 S.W.3d 162, 2009 Ky. App. LEXIS 22 (Ky. Ct. App. 2009).

Circuit court erred in determining that Kentucky was the child's home state because West Virginia became the home state when the mother moved there after her birth, and she did not leave until more than six months later; the mother maintained her status as the child's parent, and the child's temporary absences from West Virginia did not count against the six-month period required to establish the home state. Luu v. Murphy, 2014 Ky. App. LEXIS 169 (Ky. Ct. App. Oct. 17, 2014), review denied, ordered not published, 2015 Ky. LEXIS 55 (Ky. Feb. 11, 2015).

Order rescinding prior emergency order was proper where neither of the parties had informed the circuit court of prior custody proceedings in Tennessee, and the mother’s motion was solely for the court to rescind its own emergency order. However, once the circuit court became aware of the prior custody decree, it did not have jurisdiction to modify Tennessee’s custody determination as to the location of exchanging the child. R.B. v. S.M., 570 S.W.3d 9, 2019 Ky. App. LEXIS 23 (Ky. Ct. App. 2019).

Circuit court had subject matter jurisdiction to enter a temporary order of custody where an action was initiated by the filing of a petition alleging that the child was in Kentucky and neglected based on facts sufficient to establish emergency jurisdiction under Ky. Rev. Stat. Ann. § 403.828(3). R.B. v. S.M., 570 S.W.3d 9, 2019 Ky. App. LEXIS 23 (Ky. Ct. App. 2019).

2.Prior Custody Proceedings.

Parties stand in the best position to inform the court of prior custody proceedings in another state. A plain reading of Ky. Rev. Stat. Ann. § 403.828(4) indicates the burden is not upon the court to ferret out the existence of a sister state’s judicial determinations. The statute requires the court to act further only if it has been informed of such proceedings. Certainly, the court has no duty to inform itself. R.B. v. S.M., 570 S.W.3d 9, 2019 Ky. App. LEXIS 23 (Ky. Ct. App. 2019).

403.830. Notice — Opportunity to be heard — Joinder.

  1. Before a child custody determination is made under KRS 403.800 to 403.880 , notice and an opportunity to be heard in accordance with the standards of KRS 403.812 shall be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.
  2. KRS 403.800 to 403.880 does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.
  3. The obligation to join a party and the right to intervene as a party in a child custody proceeding under KRS 403.800 to 403.880 are governed by the law of this state as in child custody proceedings between residents of this state.

History. Enact. Acts 2004, ch. 133, § 16, effective July 13, 2004.

403.832. Simultaneous proceedings.

  1. Except as otherwise provided in KRS 403.828 , a court of this state shall not exercise jurisdiction under Article 2 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with KRS 403.800 to 403.880 , unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under KRS 403.834 .
  2. Except as otherwise provided in KRS 403.828 , a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to KRS 403.828 . If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with KRS 403.800 to 403.880 , the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with KRS 403.800 to 403.880 does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
  3. In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
    1. Stay the proceeding for modification pending the entry of an order of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
    2. Enjoin the parties from continuing with the proceeding for enforcement; or
    3. Proceed with the modification under conditions it considers appropriate.

History. Enact. Acts 2004, ch. 133, § 17, effective July 13, 2004.

NOTES TO DECISIONS

1.Communication with Foreign State.

Where the Circuit Court did not communicate with the Tennessee court as required by former UCCJA, its award of custody to an appellee was vacated and remanded so that it may communicate with the Tennessee court. Karahalios v. Karahalios, 848 S.W.2d 457, 1993 Ky. App. LEXIS 39 (Ky. Ct. App. 1993) (decided under prior law).

2.Jurisdiction.

Circuit court properly held a hearing and entered an order regarding jurisdiction because de facto custodians filed their custody action in Kentucky, prior to the mother filing her action in West Virginia; thus, it was up to Kentucky to decide the jurisdictional issue, and the West Virginia family court should have waited until the circuit court in Boyd County entered its jurisdictional ruling. Luu v. Murphy, 2014 Ky. App. LEXIS 169 (Ky. Ct. App. Oct. 17, 2014), review denied, ordered not published, 2015 Ky. LEXIS 55 (Ky. Feb. 11, 2015).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Northern Kentucky Law Review.

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, § 26.1.

403.834. Inconvenient forum.

  1. A court of this state which has jurisdiction under KRS 403.800 to 403.880 to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
  2. Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
    1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
    2. The length of time the child has resided outside this state;
    3. The distance between the court in this state and the court in the state that would assume jurisdiction;
    4. The relative financial circumstances of the parties;
    5. Any agreement of the parties as to which state should assume jurisdiction;
    6. The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
    7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
    8. The familiarity of the court of each state with the facts and issues in the pending litigation.
  3. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
  4. A court of this state may decline to exercise its jurisdiction under KRS 403.800 to 403.880 if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

History. Enact. Acts 2004, ch. 133, § 18, effective July 13, 2004.

NOTES TO DECISIONS

1.Applicability.

Trial court erred in declining to exercise continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act after a mother moved a son from Kentucky to Colorado because the trial court did not apply the necessary statutory factors, improperly found that neither the son nor the father in Kentucky had significant connections with Kentucky, failed to consider what other courts might be appropriate when the mother was planning to move the son from Colorado to Indiana, and failed to stay the proceedings upon condition that another child custody proceeding be commenced in another designated state, thus leaving the son in limbo. Biggs v. Biggs, 301 S.W.3d 32, 2009 Ky. App. LEXIS 246 (Ky. Ct. App. 2009).

In a child custody case, the court properly found that Kentucky was not an inconvenient forum because no lay witnesses were located in Missouri; rather, those witnesses were in Kentucky or Illinois. All of the witnesses, including the child’s daycare provider, were able to testify live in the courtroom, and the family court permitted telephonic testimony for the medical providers located in Missouri. Williams v. Frymire, 377 S.W.3d 579, 2012 Ky. App. LEXIS 161 (Ky. Ct. App. 2012).

Where a father appealed a trial court’s order declining to exercise jurisdiction over the father’s petition to modify the custody and visitation provisions, the trial court abused its discretion by declining to exercise jurisdiction as only Kentucky had the relevant evidence relating to custody and visitation of the son. While the trial court had concerns about splitting the custody matters on the two children, the home state requirements of KRS 403.822 and the factors set out in KRS 403.834 had to control over the general policy against splitting custody. Ellis v. Ellis, 420 S.W.3d 528, 2014 Ky. App. LEXIS 11 (Ky. Ct. App. 2014).

2.Proper Condition.

Trial court’s imposition of the condition set out in the final sentence of its order entered on May 5, 2008, was a just and proper condition to its decision to defer to Georgia’s courts on the issue of the stepfather’s custody and visitation rights with the child; whether and to what extent the Georgia courts would enforce the “previous orders” of the Daviess Circuit Court were issues not before the appellate court. Williams v. Bittel, 299 S.W.3d 284, 2009 Ky. App. LEXIS 241 (Ky. Ct. App. 2009).

3.Consideration of Factors.

Trial court erred in dismissing a mother’s motion for modification of a child custody order for lack of jurisdiction because there was no dispute that Kentucky had original jurisdiction over the custody determination, there was no evidence the trial court considered statutory factors, and the child’s residency in Kentucky was not a requirement for the court to exercise continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. Curry v. Curry, 430 S.W.3d 909, 2014 Ky. App. LEXIS 69 (Ky. Ct. App. 2014).

Trial court did not err in retaining jurisdiction because the mother should have raised the issue years ago and the trial court was familiarity with the issues and statutory factors. Addison v. Addison, 463 S.W.3d 755, 2015 Ky. LEXIS 1641 ( Ky. 2015 ).

Although the circuit court did not err in concluding that the Nevada court that entered the original custody order had exclusive, continuing jurisdiction, it erred in dismissing a father's action to modify custody because it was authorized to request that the Nevada court consider declining to exercise its jurisdiction if it determined it was an inconvenient forum and the circuit court was a more appropriate forum. Ball v. McGowan, 497 S.W.3d 245, 2016 Ky. App. LEXIS 128 (Ky. Ct. App. 2016).

It is proper that a Kentucky court ask the decree state to relinquish jurisdiction in favor of Kentucky on grounds that Kentucky would be a more convenient forum. Ball v. McGowan, 497 S.W.3d 245, 2016 Ky. App. LEXIS 128 (Ky. Ct. App. 2016).

Circuit court erred in dismissing a father's action to modify custody because it was authorized to request the Nevada court to consider declining to exercise jurisdiction if it determined it was an inconvenient forum and the circuit court was a more appropriate forum; there was no evidence the mother exercised parenting time in Nevada or maintained a relationship with the child, and the relationship was so attenuated it was highly doubtful the significant connections requirement was satisfied. Ball v. McGowan, 497 S.W.3d 245, 2016 Ky. App. LEXIS 128 (Ky. Ct. App. 2016).

Family court properly denied a father’s motion to transfer jurisdiction to New Jersey under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because it was unable to conclude that Kentucky had become an inconvenient forum or that New Jersey was a more appropriate forum for resolving issues concerning custody, parenting time, and support of the parties’ minor children where the order in question clearly addressed the statutory factors, it was inimical to both the letter and the spirit of the UCCJEA to deny appellate review of a claim that the statute had not been properly applied, especially where that denial would result in duplication of litigation in two states. Santise v. Santise, 596 S.W.3d 611, 2020 Ky. App. LEXIS 17 (Ky. Ct. App. 2020).

4.Inconvenient Forum.

Trial court did not abuse its discretion in finding that Kentucky was an inconvenient forum in this custody case; the child and mother resided in North Carolina since 2010, the child had no contact with Kentucky, his school and residence were in North Carolina and he participated in social activities and sports in that state, the father had not regularly exercised visitation in Kentucky, and he had sufficient economic resources to travel to North Carolina where he initially agreed to exchange the child for visitation. Robinson v. Robinson, 556 S.W.3d 41, 2018 Ky. App. LEXIS 213 (Ky. Ct. App. 2018).

5.Standard of Review.

Because the Uniform Child Custody Jurisdiction and Enforcement vests the trial court with the discretion to decline to exercise its jurisdiction if it finds Kentucky is not a convenient forum, its decision will not be reversed absent a showing that it abused that discretion in either accepting or declining jurisdiction. Robinson v. Robinson, 556 S.W.3d 41, 2018 Ky. App. LEXIS 213 (Ky. Ct. App. 2018).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, § 26.1.

403.836. Jurisdiction declined by reason of conduct.

  1. Except as otherwise provided in KRS 403.828 , or by other law of this state, if a court of this state has jurisdiction under KRS 403.800 to 403.880 because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
    1. The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
    2. A court of the state otherwise having jurisdiction under KRS 403.822 , 403.824 , and 403.826 determines that this state is a more appropriate forum under KRS 403.834 ; or
    3. No court of any other state would have jurisdiction under the criteria specified in KRS 403.822 , 403.824 , and 403.826 .
  2. If a court of this state declines to exercise its jurisdiction pursuant to subsection (1) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under KRS 403.822 , 403.824 , and 403.826 .
  3. If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (1) of this section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court shall not assess fees, costs, or expenses against this state unless authorized by law other than KRS 403.800 to 403.880 .

History. Enact. Acts 2004, ch. 133, § 19, effective July 13, 2004.

NOTES TO DECISIONS

1.Improper Removal from Legal Custodian.

Where young child had lived its entire life in Ohio, and was brought by father, in a surreptitious manner, to Kentucky two days prior to the filing of marriage dissolution action, and there was no evidence in the record to show that it would be in the best interest of the child for Kentucky to assume jurisdiction, but to the contrary, the record showed that the best interest of this small child would be served by leaving his future to the authorities in Ohio, who cared for him, supervised him and provided for him since his birth, Circuit Court had no jurisdiction to award custody in action filed by father and a writ of prohibition was the appropriate remedy. Wood v. Graham, 633 S.W.2d 404, 1982 Ky. LEXIS 251 ( Ky. 1982 ) (decided under prior law).

The courts of this Commonwealth were without jurisdiction to modify custody of the child, where the child had lived her entire life in another state until she was brought to this Commonwealth, apparently without parental consent, eight days before this petition was filed, there was nothing in the record to show that it would be in the best interest of the child for this Commonwealth to assume jurisdiction, and there was nothing in this record to suggest that her sole living parent was an unfit parent or had failed to support or visit his daughter prior to her removal by the grandparents. Rockwell v. Henning, 731 S.W.2d 11, 1987 Ky. App. LEXIS 496 (Ky. Ct. App. 1987) (decided under prior law).

Neither Texas nor Florida were proper forum to adjudicate child custody where Texas was place of birth of the child but none of the parties involved had any recent contact with Texas, and Florida was initially the child’s home state, as defined in former KRS 403.410 , only because father took her there in violation of previous custody order and kept her whereabouts concealed from mother for more than two (2) years; Kentucky was properly considered as the child’s home state as a result of a two and one-half (21/2) year stay consented to by father. Pike v. Aigner, 828 S.W.2d 674, 1992 Ky. App. LEXIS 78 (Ky. Ct. App. 1992) (decided under prior law).

2.Foreign Decree.

Where the mother had a valid Ohio decree awarding custody of the children to her, and there was no evidence that she was about to harm the children, she was entitled to immediate custody, even though the father had obtained an order in this Commonwealth granting temporary custody. Wieczorek v. Sebastian, 751 S.W.2d 38, 1988 Ky. App. LEXIS 69 (Ky. Ct. App. 1988) (decided under prior law).

The provisions of former KRS 403.470 do not come into operation unless the court has jurisdiction under former KRS 403.420 to modify the custody decree of another state. Pike v. Aigner, 828 S.W.2d 674, 1992 Ky. App. LEXIS 78 (Ky. Ct. App. 1992) (decided under prior law).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, 1991 Supp., Actions, § 17.15.

Petrilli, Kentucky Family Law, Custody of Children, § 26.1.

403.838. Information to be submitted to court.

  1. In a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit shall state whether the party:
    1. Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
    2. Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
    3. Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
  2. If the information required by subsection (1) of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
  3. If the declaration as to any of the items described in subsection (1) of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to the details of the information furnished and other matters pertinent to the court’s jurisdiction and the disposition of the case.
  4. Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.
  5. If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information shall be sealed and shall not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.

History. Enact. Acts 2004, ch. 133, § 20, effective July 13, 2004.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Court Procedures, § 23.18.

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.1, 26.3.

403.840. Appearance of parties and child.

  1. In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.
  2. If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to KRS 403.812 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.
  3. The court may enter any order necessary to ensure the safety of the child and of any person ordered to appear under this section.
  4. If a party to a child custody proceeding who is outside this state is directed to appear under subsection (2) of this section or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.

History. Enact. Acts 2004, ch. 133, § 21, effective July 13, 2004.

Article 3. Enforcement

403.842. Definitions for Article 3.

As used in Article 3:

  1. “Petitioner” means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination; and
  2. “Respondent” means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

History. Enact. Acts 2004, ch. 133, § 22, effective July 13, 2004.

403.844. Enforcement under Hague Convention.

Under Article 3, a court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.

History. Enact. Acts 2004, ch. 133, § 23, effective July 13, 2004.

403.846. Duty to enforce.

  1. A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with KRS 403.800 to 403.880 or the determination was made under factual circumstances meeting the jurisdictional standards of KRS 403.800 to 403.880 and the determination has not been modified in accordance with KRS 403.800 to 403.880.
  2. A court of this state may utilize any remedy available under other law of this state to enforce a child custody determination made by a court of another state. The remedies provided in Article 3 are cumulative and do not affect the availability of other remedies to enforce a child custody determination.

History. Enact. Acts 2004, ch. 133, § 24, effective July 13, 2004.

NOTES TO DECISIONS

1.Foreign Judgment Not Enforced.

Petition to register a foreign child custody order was properly denied because Kentucky was the home state of the child, and Kentucky courts did not have to enforce a foreign child custody decree if the issuing state did not have jurisdiction under the Uniform Child Custody and Jurisdiction Enforcement Act. Danaher v. Hopkins, 449 S.W.3d 765, 2014 Ky. App. LEXIS 174 (Ky. Ct. App. 2014).

403.848. Temporary visitation.

  1. A court of this state which does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing:
    1. A visitation schedule made by a court of another state; or
    2. The visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.
  2. If a court of this state makes an order under subsection (1)(b) of this section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in Article 2. The order shall remain in effect until an order is obtained from the other court or the period expires.

History. Enact. Acts 2004, ch. 133, § 25, effective July 13, 2004.

403.850. Registration of child custody determination.

  1. A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to a court with jurisdiction in this state:
    1. A letter or other document requesting registration;
    2. Two (2) copies, including one (1) certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and
    3. Except as otherwise provided in KRS 403.838 , the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.
  2. On receipt of the documents required by subsection (1) of this section, the registering court shall:
    1. Cause the determination to be filed as a foreign judgment, together with one (1) copy of any accompanying documents and information, regardless of their form; and
    2. Serve notice upon the persons named pursuant to subsection (1)(c) of this section and provide them with an opportunity to contest the registration in accordance with this section.
  3. The notice required by subsection (2)(b) of this section shall state that:
    1. A registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;
    2. A hearing to contest the validity of the registered determination shall be requested within twenty (20) days after service of notice; and
    3. Failure to contest the registration shall result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.
  4. A person seeking to contest the validity of a registered order shall request a hearing within twenty (20) days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
    1. The issuing court did not have jurisdiction under Article 2;
    2. The child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2; or
    3. The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of KRS 403.812 , in the proceedings before the court that issued the order for which registration is sought.
  5. If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served shall be notified of the confirmation.
  6. Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

History. Enact. Acts 2004, ch. 133, § 26, effective July 13, 2004.

403.852. Enforcement of registered determination.

  1. A court of this state may grant any relief normally available under the law of this state to enforce a registered child custody determination made by a court of another state.
  2. A court of this state shall recognize and enforce, but shall not modify, except in accordance with Article 2, a registered child custody determination made by a court of another state.

History. Enact. Acts 2004, ch. 133, § 27, effective July 13, 2004.

NOTES TO DECISIONS

1.Foreign Judgment Not Enforced.

Petition to register a foreign child custody order was properly denied because Kentucky was the home state of the child, and Kentucky courts did not have to enforce a foreign child custody decree if the issuing state did not have jurisdiction under the Uniform Child Custody and Jurisdiction Enforcement Act. Danaher v. Hopkins, 449 S.W.3d 765, 2014 Ky. App. LEXIS 174 (Ky. Ct. App. 2014).

403.854. Simultaneous proceedings.

If a proceeding for enforcement under Article 3 is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under Article 2, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

History. Enact. Acts 2004, ch. 133, § 28, effective July 13, 2004.

403.856. Expedited enforcement of child custody determination.

  1. A petition under Article 3 shall be verified. Certified copies of all orders sought to be enforced and of any order confirming registration shall be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.
  2. A petition for enforcement of a child custody determination shall state:
    1. Whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
    2. Whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision is entitled to enforcement under KRS 403.800 to 403.880 and, if so, identify the court, the case number, and the nature of the proceeding;
    3. Whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;
    4. The present physical address of the child and the respondent, if known;
    5. Whether relief in addition to the immediate physical custody of the child and attorney’s fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and
    6. If the child custody determination has been registered and confirmed under KRS 403.850 , the date and place of registration.
  3. Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing shall be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.
  4. An order issued under subsection (3) of this section shall state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs, and expenses under KRS 403.864 , and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:
    1. The child custody determination has not been registered and confirmed under KRS 403.850 and that:
      1. The issuing court did not have jurisdiction under Article 2;
      2. The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2; or
      3. The respondent was entitled to notice, but notice was not given in accordance with the standards of KRS 403.812 , in the proceedings before the court that issued the order for which enforcement is sought; or
    2. The child custody determination for which enforcement is sought was registered and confirmed under KRS 403.850 but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Article 2.

History. Enact. Acts 2004, ch. 133, § 29, effective July 13, 2004.

403.858. Service of petition and order.

Except as otherwise provided in KRS 403.862 , the petition and order shall be served, by any method authorized by the law of this state, upon respondent and any person who has physical custody of the child.

History. Enact. Acts 2004, ch. 133, § 30, effective July 13, 2004.

403.860. Hearing and order.

  1. Unless the court issues a temporary emergency order pursuant to KRS 403.828 , upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:
    1. The child custody determination has not been registered and confirmed under KRS 403.850 and that:
      1. The issuing court did not have jurisdiction under Article 2;
      2. The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Article 2; or
      3. The respondent was entitled to notice, but notice was not given in accordance with the standards of KRS 403.812 , in the proceedings before the court that issued the order for which enforcement is sought; or
    2. The child custody determination for which enforcement is sought was registered and confirmed under KRS 403.850 but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Article 2.
  2. The court shall award the fees, costs, and expenses authorized under KRS 403.864 and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.
  3. If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
  4. A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under Article 3.

History. Enact. Acts 2004, ch. 133, § 31, effective July 13, 2004.

403.862. Warrant to take physical custody of child.

  1. Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this state.
  2. If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. The petition shall be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant shall include the statements required by KRS 403.856(2).
  3. A warrant to take physical custody of a child shall:
    1. Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;
    2. Direct law enforcement officers to take physical custody of the child immediately; and
    3. Provide for the placement of the child pending final relief.
  4. The respondent shall be served with the petition, warrant, and order immediately after the child is taken into physical custody.
  5. A warrant to take physical custody of a child is enforceable throughout this state. If the court finds, on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.
  6. The court may impose conditions upon placement of a child to ensure the appearance of the child and the child’s custodian.

History. Enact. Acts 2004, ch. 133, § 32, effective July 13, 2004.

403.864. Costs, fees, and expenses.

  1. The court may award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.
  2. The court shall not assess fees, costs, or expenses against a state unless authorized by law other than KRS 403.800 to 403.880 .

History. Enact. Acts 2004, ch. 133, § 33, effective July 13, 2004.

403.866. Recognition and enforcement.

A court of this state shall accord full faith and credit to an order issued by another state and consistent with KRS 403.800 to 403.880 which enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2.

History. Enact. Acts 2004, ch. 133, § 34, effective July 13, 2004.

NOTES TO DECISIONS

1.Foreign State’s Order Enforceable.

Under former KRS 403.520 , a Texas court’s modification of a Kentucky visitation order could be recognized and enforced by the courts of the Commonwealth of Kentucky as Texas assumed jurisdiction under statutory provisions substantially in accordance with former KRS 403.420 to 403.620 ; the children had been living with their mother in Texas for at least six (6) consecutive months prior to the filing of the mother’s motion to modify visitation, and there was no pending motion in Kentucky pertaining to custody when the mother filed her motion in Texas. Scott v. Summers, 2003 Ky. App. LEXIS 99 (Ky. Ct. App. May 9, 2003), aff'd, 2005 Ky. Unpub. LEXIS 204 (Ky. June 16, 2005) (decided under prior law).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, § 26.1.

403.868. Appeals.

A party may move for an expedited appeal from a final order in a proceeding under Article 3. Unless the court enters a temporary emergency order under KRS 403.828 , the enforcing court shall not stay an order enforcing a child custody determination pending appeal.

History. Enact. Acts 2004, ch. 133, § 35, effective July 13, 2004.

403.870. Role of county attorney or other appropriate public official.

  1. In a case arising under KRS 403.800 to 403.880 or involving the Hague Convention on the Civil Aspects of International Child Abduction, the county attorney or other appropriate public official may take any lawful action, including resort to a proceeding under Article 3 or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child custody determination if there is:
    1. An existing child custody determination;
    2. A request to do so from a court in a pending child custody proceeding;
    3. A reasonable belief that a criminal statute has been violated; or
    4. A reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.
  2. A county attorney or other appropriate public official acting under this section acts on behalf of the court and shall not represent any party.

History. Enact. Acts 2004, ch. 133, § 36, effective July 13, 2004.

403.872. Role of peace officers.

At the request of a county attorney or other appropriate public official acting under KRS 403.870 , a peace officer may take any lawful action reasonably necessary to locate a child or a party and assist a county attorney or other appropriate public official with responsibilities under KRS 403.870 .

History. Enact. Acts 2004, ch. 133, § 37, effective July 13, 2004.

403.874. Costs and expenses.

If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the county attorney or other appropriate public official and peace officers under KRS 403.870 or 403.872 .

History. Enact. Acts 2004, ch. 133, § 38, effective July 13, 2004.

Article 4. Miscellaneous Provisions

403.876. Application and construction of KRS 403.800 to 403.880.

In applying and construing KRS 403.800 to 403.880 , consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History. Enact. Acts 2004, ch. 133, § 39, effective July 13, 2004.

403.878. Transitional provisions.

  1. A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before July 13, 2004, is governed by the law in effect at the time the motion or other request was made.
  2. Custody decrees previously registered in this state under the provisions of KRS 403.400 to 403.620 shall be deemed registered under the provisions of KRS 403.800 to 403.880 .

History. Enact. Acts 2004, ch. 133, § 40, effective July 13, 2004.

NOTES TO DECISIONS

Cited:

Skinner v. Skinner, 249 S.W.3d 196, 2008 Ky. App. LEXIS 67 (Ky. Ct. App. 2008).

403.880. Short title for KRS 403.800 to 403.880.

KRS 403.800 to 403.880 may be cited as the Uniform Child Custody Jurisdiction and Enforcement Act.

History. Enact. Acts 2004, ch. 133, § 41, effective July 13, 2004.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Petrilli, Kentucky Family Law, Custody of Children, § 26.1.

CHAPTER 403A Uniform Deployed Parents Custody and Visitation Act

HISTORY: 2021 ch. 94, § 1.

Article 1. General Provisions.

403A.101. Short title.

This chapter may be cited as the Uniform Deployed Parents Custody and Visitation Act.

HISTORY: 2021 ch. 94, § 1, effective June 29, 2021.

403A.102. Definitions for chapter.

As used in this chapter:

  1. “Adult” means an individual who has attained eighteen (18) years of age or an emancipated minor;
  2. “Caretaking authority” means the right to live with and care for a child on a day-to-day basis. The term includes physical custody, parenting time, right to access, and visitation;
  3. “Child” means:
    1. An unemancipated individual who has not attained eighteen (18) years of age; or
    2. An adult son or daughter by birth or adoption, or under law of this state other than this chapter, who is the subject of a court order concerning custodial responsibility;
  4. “Court” means a tribunal authorized under law of this state other than this chapter to make, enforce, or modify a decision regarding custodial responsibility;
  5. “Custodial responsibility” includes all powers and duties relating to caretaking authority and decision-making authority for a child. The term includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child;
  6. “Decision-making authority” means the power to make important decisions regarding a child, including decisions regarding the child’s education, religious training, health care, extracurricular activities, and travel. The term does not include the power to make decisions that necessarily accompany a grant of caretaking authority;
  7. “Deploying parent” means a service member, who is deployed or has been notified of impending deployment and is:
    1. A parent of a child under law of this state other than this chapter; or
    2. An individual who has custodial responsibility for a child under law of this state other than this chapter;
  8. “Deployment” means the movement or mobilization of a service member for more than ninety (90) days but less than eighteen (18) months pursuant to uniformed service orders that:
    1. Are designated as unaccompanied;
    2. Do not authorize dependent travel; or
    3. Otherwise do not permit the movement of family members to the location to which the service member is deployed;
  9. “Family member” means a sibling, aunt, uncle, cousin, stepparent, or grandparent of a child or an individual recognized to be in a familial relationship with a child under law of this state other than this chapter;
  10. “Limited contact” means the authority of a nonparent to visit a child for a limited time. The term includes authority to take the child to a place other than the residence of the child;
  11. “Nonparent” means an individual other than a deploying parent or other parent;
  12. “Other parent” means an individual who, in common with a deploying parent, is:
    1. A parent of a child under law of this state other than this chapter; or
    2. An individual who has custodial responsibility for a child under law of this state other than this chapter;
  13. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
  14. “Return from deployment” means the conclusion of a service member’s deployment as specified in uniformed service orders;
  15. “Service member” means a member of a uniformed service;
  16. “Sign” means, with present intent to authenticate or adopt a record:
    1. To execute or adopt a tangible symbol; or
    2. To attach to or logically associate with the record an electronic symbol, sounds, or process;
  17. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; and
  18. “Uniformed service” means:
    1. Active and reserve components of the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States;
    2. The United States Merchant Marine;
    3. The commissioned corps of the United States Public Health Service;
    4. The commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or
    5. The National Guard of a state.

HISTORY: 2021 ch. 94, § 2, effective June 29, 2021.

403A.103. Remedies for noncompliance.

In addition to other remedies under law of this state other than this chapter, if a court finds that a party to a proceeding under this chapter has acted in bad faith or intentionally failed to comply with this chapter or a court order issued under this chapter, the court may assess reasonable attorney’s fees and costs against the party and order other appropriate relief.

HISTORY: 2021 ch. 94, § 3, effective June 29, 2021.

403A.104. Jurisdiction.

  1. A court may issue an order regarding custodial responsibility under this chapter only if the court has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, KRS 403.800 to 403.880 .
  2. If a court has issued a temporary order regarding custodial responsibility pursuant to KRS 403A.301 to 403A.311 , the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act during the deployment.
  3. If a court has issued a permanent order regarding custodial responsibility before notice of deployment and the parents modify that order temporarily by agreement pursuant to KRS 403A.201 to 403A.205 , the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.
  4. If a court in another state has issued a temporary order regarding custodial responsibility as a result of impending or current deployment, the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.
  5. This section does not prevent a court from exercising temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.

HISTORY: 2021 ch. 94, § 4, effective June 29, 2021.

403A.105. Notification required of deploying parent.

  1. Except as otherwise provided in subsection (4) of this section, and subject to subsection (3) of this section, a deploying parent shall notify in a record the other parent of a pending deployment not later than seven (7) days after receiving notice of deployment unless reasonably prevented from doing so by the circumstances of service. If the circumstances of service prevent giving notification within the seven (7) days, the deploying parent shall give the notification as soon as reasonably possible.
  2. Except as otherwise provided in subsection (4) of this section, and subject to subsection (3) of this section, each parent shall provide in a record the other parent with a plan for fulfilling that parent’s share of custodial responsibility during deployment. Each parent shall provide the plan as soon as reasonably possible after notification of deployment is given under subsection (1) of this section.
  3. If a court order currently in effect prohibits disclosure of the address or contact information of the other parent, notification of deployment under subsection (1) of this section, or notification of a plan for custodial responsibility during deployment under subsection (2) of this section, may be made only to the issuing court. If the address of the other parent is available to the issuing court, the court shall forward the notification to the other parent. The court shall keep confidential the address or contact information of the other parent.
  4. Notification in a record under subsection (1) or (2) of this section is not required if the parents are living in the same residence and both parents have actual notice of the deployment or plan.
  5. In a proceeding regarding custodial responsibility, a court may consider the reasonableness of a parent’s efforts to comply with this section.

HISTORY: 2021 ch. 94, § 5, effective June 29, 2021.

403A.106. Duty to notify of change of address.

  1. Except as otherwise provided in subsection (2) of this section, an individual to whom custodial responsibility has been granted during deployment pursuant to KRS 403A.201 to 403A.205 or 403A.301 to 403A.311 shall notify the deploying parent and any other individual with custodial responsibility of a child of any change of the individual’s mailing address or residence until the grant is terminated. The individual shall provide the notice to any court that has issued a custody or child support order concerning the child which is in effect.
  2. If a court order currently in effect prohibits disclosure of the address or contact information of an individual to whom custodial responsibility has been granted, a notification under subsection (1) of this section may be made only to the court that issued the order. The court shall keep confidential the mailing address or residence of the individual to whom custodial responsibility has been granted.

HISTORY: 2021 ch. 94, § 6, effective June 29, 2021.

403A.107. General consideration in custody proceeding of parent’s military service.

In a proceeding for custodial responsibility of a child of a service member, a court may not consider a parent’s past deployment or possible future deployment in itself in determining the best interest of the child but may consider any significant impact on the best interest of the child of the parent’s past or possible future deployment.

HISTORY: 2021 ch. 94, § 7, effective June 29, 2021.

Article 2. Agreement Addressing Custodial Responsibility During Deployment.

403A.201. Form of agreement.

  1. The parents of a child may enter into a temporary agreement under KRS 403A.201 to 403A.205 granting custodial responsibility during deployment.
  2. An agreement under subsection (1) of this section shall be:
    1. In writing; and
    2. Signed by both parents and any nonparent to whom custodial responsibility is granted.
  3. Subject to subsection (4) of this section, an agreement under subsection (1) of this section, if feasible, shall:
    1. Identify the destination, duration, and conditions of the deployment that is the basis for the agreement;
    2. Specify the allocation of caretaking authority among the deploying parent, the other parent, and any nonparent;
    3. Specify any decision-making authority that accompanies a grant of caretaking authority;
    4. Specify any grant of limited contact to a nonparent;
    5. If under the agreement custodial responsibility is shared by the other parent and a nonparent, or by other nonparents, provide a process to resolve any dispute that may arise;
    6. Specify the frequency, duration, and means, including electronic means, by which the deploying parent will have contact with the child, any role to be played by the other parent in facilitating the contact, and the allocation of any costs of contact;
    7. Specify the contact between the deploying parent and child during the time the deploying parent is on leave or is otherwise available;
    8. Acknowledge that any party’s child-support obligation cannot be modified by the agreement, and that changing the terms of the obligation during the deployment requires modification in the appropriate court;
    9. Provide that the agreement will terminate according to the procedures under KRS 403A.401 to 403A.404 after the deploying parent returns from deployment; and
    10. If the agreement must be filed pursuant to KRS 403A.205 , specify which parent is required to file the agreement.
  4. The omission of any of the items specified in subsection (3) of this section does not invalidate an agreement under this section.

HISTORY: 2021 ch. 94, § 8, effective June 29, 2021.

403A.202. Nature of authority created by agreement.

  1. An agreement under KRS 403A.201 to 403A.205 is temporary and terminates pursuant to KRS 403A.401 to 403A.404 after the deploying parent returns from deployment, unless the agreement has been terminated before that time by court order or modification under KRS 403A.203 . The agreement does not create an independent, continuing right to caretaking authority, decision-making authority, or limited contact in an individual to whom custodial responsibility is given.
  2. A nonparent who has caretaking authority, decision-making authority, or limited contact by an agreement under KRS 403A.201 to 403A.205 has standing to enforce the agreement until it has been terminated by court order, by modification under KRS 403A.203 , or under KRS 403A.401 to 403A.404 .

HISTORY: 2021 ch. 94, § 9, effective June 29, 2021.

403A.203. Modification of agreement.

  1. By mutual consent, the parents of a child may modify an agreement regarding custodial responsibility made pursuant to KRS 403A.201 to 403A.205 .
  2. If an agreement is modified under subsection (1) of this section before deployment of a deploying parent, the modification shall be in writing and signed by both parents and any nonparent who will exercise custodial responsibility under the modified agreement.
  3. If an agreement is modified under subsection (1) of this section during deployment of a deploying parent, the modification shall be agreed to in a record by both parents and any nonparent who will exercise custodial responsibility under the modified agreement.

HISTORY: 2021 ch. 94, § 10, effective June 29, 2021.

403A.204. Power of attorney.

A deploying parent, by power of attorney, may delegate all or part of custodial responsibility to an adult nonparent for the period of deployment if no other parent possesses custodial responsibility under law of this state other than this chapter, or if a court order currently in effect prohibits contact between the child and the other parent. The deploying parent may revoke the power of attorney by signing a revocation of the power.

HISTORY: 2021 ch. 94, § 11, effective June 29, 2021.

403A.205. Filing agreement or power of attorney with court.

An agreement or power of attorney under KRS 403A.201 to 403A.205 shall be filed within a reasonable time with any court that has entered an order on custodial responsibility or child support that is in effect concerning the child who is the subject of the agreement or power. The case number and heading of the pending case concerning custodial responsibility or child support shall be provided to the court with the agreement or power.

HISTORY: 2021 ch. 94, § 12, effective June 29, 2021.

Article 3. Judicial Procedure for Granting Custodial Responsibility During Deployment.

403A.301. Close and substantial relationship defined.

As used in KRS 403A.301 to 403A.311 , “close and substantial relationship” means a relationship in which a significant bond exists between a child and a nonparent.

HISTORY: 2021 ch. 94, § 13, effective June 29, 2021.

403A.302. Proceeding for temporary custody order.

  1. After a deploying parent receives notice of deployment and until the deployment terminates, a court may issue a temporary order granting custodial responsibility unless prohibited by the Servicemembers Civil Relief Act, 50 U.S.C. Appendix Sections 521 and 522. A court may not issue a permanent order granting custodial responsibility without the consent of the deploying parent.
  2. At any time after a deploying parent receives notice of deployment, either parent may file a motion regarding custodial responsibility of a child during deployment. The motion shall be filed in a pending proceeding for custodial responsibility in a court with jurisdiction under KRS 403A.104 or, if there is no pending proceeding in a court with jurisdiction under KRS 403A.104 , in a new action for granting custodial responsibility during deployment.

HISTORY: 2021 ch. 94, § 14, effective June 29, 2021.

403A.303. Expedited hearing.

If a motion to grant custodial responsibility is filed under KRS 403A.302(2) before a deploying parent deploys, the court shall conduct an expedited hearing.

HISTORY: 2021 ch. 94, § 15, effective June 29, 2021.

403A.304. Testimony by electronic means.

In a proceeding under KRS 403A.301 to 403A.311 , a party or witness who is not reasonably available to appear personally may appear, provide testimony, and present evidence by electronic means unless the court finds good cause to require a personal appearance.

HISTORY: 2021 ch. 94, § 16, effective June 29, 2021.

403A.305. Effect of prior judicial order or agreement.

In a proceeding for a grant of custodial responsibility pursuant to KRS 403A.301 to 403A.311 , the following rules apply:

  1. A prior judicial order designating custodial responsibility in the event of deployment is binding on the court unless the circumstances meet the requirements of law of this state other than this chapter for modifying a judicial order regarding custodial responsibility; and
  2. The court shall enforce a prior written agreement between the parents for designating custodial responsibility in the event of deployment, including an agreement executed under KRS 403A.201 to 403A.205 , unless the court finds that the agreement is contrary to the best interest of the child.

HISTORY: 2021 ch. 94, § 17, effective June 29, 2021.

403A.306. Grant of caretaking or decision-making authority to nonparent.

  1. On motion of a deploying parent and in accordance with law of this state other than this chapter, if it is in the best interest of the child, a court may grant caretaking authority to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship.
  2. Unless a grant of caretaking authority to a nonparent under subsection (1) of this section is agreed to by the other parent, the grant is limited to an amount of time not greater than:
    1. The amount of time granted to the deploying parent under a permanent custody order, but the court may add unusual travel time necessary to transport the child; or
    2. In the absence of a permanent custody order that is currently in effect, the amount of time that the deploying parent habitually cared for the child before being notified of deployment, but the court may add unusual travel time necessary to transport the child.
  3. A court may grant part of a deploying parent’s decision-making authority, if the deploying parent is unable to exercise that authority, to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship. If a court grants the authority to a nonparent, the court shall specify the decision-making powers granted, including decisions regarding the child’s education, religious training, health care, extracurricular activities, and travel.

HISTORY: 2021 ch. 94, § 18, effective June 29, 2021.

403A.307. Grant of limited contact.

On motion of a deploying parent, and in accordance with law of this state other than this chapter, unless the court finds that the contact would be contrary to the best interest of the child, a court shall grant limited contact to a nonparent who is a family member of the child or an individual with whom the child has a close and substantial relationship.

HISTORY: 2021 ch. 94, § 19, effective June 29, 2021.

403A.308. Nature of authority created by temporary custody order.

  1. A grant of authority under KRS 403A.301 to 403A.311 is temporary and terminates under KRS 403A.401 to 403A.404 after the return from deployment of the deploying parent, unless the grant has been terminated before that time by court order. The grant does not create an independent, continuing right to caretaking authority, decision-making authority, or limited contact in an individual to whom it is granted.
  2. A nonparent granted caretaking authority, decision-making authority, or limited contact under KRS 403A.301 to 403A.311 has standing to enforce the grant until it is terminated by court order or under KRS 403A.401 to 403A.404 .

HISTORY: 2021 ch. 94, § 20, effective June 29, 2021.

403A.309. Content of temporary custody order.

  1. An order granting custodial responsibility under this article shall:
    1. Designate the order as temporary; and
    2. Identify to the extent feasible the destination, duration, and conditions of the deployment.
  2. If applicable, an order for custodial responsibility under KRS 403A.301 to 403A.311 shall:
    1. Specify the allocation of caretaking authority, decision-making authority, or limited contact among the deploying parent, the other parent, and any nonparent;
    2. If the order divides caretaking or decision-making authority between individuals, or grants caretaking authority to one (1) individual and limited contact to another, provide a process to resolve any dispute that may arise;
    3. Provide for liberal communication between the deploying parent and the child during deployment, including through electronic means, unless contrary to the best interest of the child, and allocate any costs of communication;
    4. Provide for liberal contact between the deploying parent and the child during the time the deploying parent is on leave or otherwise available, unless contrary to the best interest of the child;
    5. Provide for the reasonable contact between the deploying parent and the child after return from deployment until the temporary order is terminated, even if the time of contact exceeds the time the deploying parent spent with the child before entry of the temporary order; and
    6. Provide that the order will terminate pursuant to KRS 403A.401 to 403A.404 after the deploying parent returns from deployment.

HISTORY: 2021 ch. 94, § 21, effective June 29, 2021.

403A.310. Order for child support.

If a court has issued an order granting caretaking authority under this article, or an agreement granting caretaking authority has been executed under KRS 403A.201 to 403A.205 , the court may enter a temporary order for child support consistent with law of this state other than this chapter if the court has jurisdiction under the Uniform Interstate Family Support Act, KRS 407.5101 to 407.5902 .

HISTORY: 2021 ch. 94, § 22, effective June 29, 2021.

403A.311. Modifying or terminating grant of custodial responsibility to nonparent.

  1. Except for an order under KRS 403A.305 , except as otherwise provided in subsection (2) of this section, and consistent with the Servicemembers Civil Relief Act, 50 U.S.C. Appendix Sections 521 and 522, on motion of a deploying or other parent or any nonparent to whom caretaking authority, decision-making authority, or limited contact has been granted, the court may modify or terminate the grant if the modification or termination is consistent with KRS 403A.301 to 403A.311 and it is in the best interest of the child. A modification is temporary and terminates pursuant to KRS 403A.401 to 403A.404 after the deploying parent returns from deployment, unless the grant has been terminated before that time by court order.
  2. On motion of a deploying parent, the court shall terminate a grant of limited contact.

HISTORY: 2021 ch. 94, § 23, effective June 29, 2021.

Article 4. Return from Deployment.

403A.401. Procedure for terminating temporary grant of custodial responsibility established by agreement.

  1. At any time after return from deployment, a temporary agreement granting custodial responsibility under KRS 403A.201 to 403A.205 may be terminated by an agreement to terminate signed by the deploying parent and the other parent.
  2. A temporary agreement under KRS 403A.201 to 403A.205 granting custodial responsibility terminates:
    1. If an agreement to terminate under subsection (1) of this section specifies a date for termination, on that date; or
    2. If the agreement to terminate does not specify a date, on the date the agreement to terminate is signed by the deploying parent and the other parent.
  3. In the absence of an agreement under subsection (1) of this section to terminate, a temporary agreement granting custodial responsibility terminates under KRS 403A.201 to 403A.205 sixty (60) days after the deploying parent gives notice to the other parent that the deploying parent returned from deployment.
  4. If a temporary agreement granting custodial responsibility was filed with a court pursuant to KRS 403A.205 , an agreement to terminate the temporary agreement also shall be filed with that court within a reasonable time after the signing of the agreement. The case number and heading of the case concerning custodial responsibility or child support shall be provided to the court with the agreement to terminate.

HISTORY: 2021 ch. 94, § 24, effective June 29, 2021.

403A.402. Consent procedure for terminating temporary grant of custodial responsibility established by court order.

At any time after a deploying parent returns from deployment, the deploying parent and the other parent may file with the court an agreement to terminate a temporary order for custodial responsibility issued under KRS 403A.301 to 403A.311 . After an agreement has been filed, the court shall issue an order terminating the temporary order effective on the date specified in the agreement. If a date is not specified, the order is effective immediately.

HISTORY: 2021 ch. 94, § 25, effective June 29, 2021.

403A.402. Consent procedure for terminating temporary grant of custodial responsibility established by court order.

At any time after a deploying parent returns from deployment, the deploying parent and the other parent may file with the court an agreement to terminate a temporary order for custodial responsibility issued under KRS 403A.301 to 403A.311 . After an agreement has been filed, the court shall issue an order terminating the temporary order effective on the date specified in the agreement. If a date is not specified, the order is effective immediately.

HISTORY: 2021 ch. 94, § 25, effective June 29, 2021.

403A.403. Visitation before termination of temporary grant of custodial responsibility.

After a deploying parent returns from deployment until a temporary agreement or order for custodial responsibility established under KRS 403A.201 to 403A.205 or KRS 403A.301 to 403A.311 is terminated, the court shall issue a temporary order granting the deploying parent reasonable contact with the child unless it is contrary to the best interest of the child, even if the time of contact exceeds the time the deploying parent spent with the child before the deployment.

HISTORY: 2021 ch. 94, § 26, effective June 29, 2021.

403A.404. Termination by operation of law of temporary grant of custodial responsibility established by court order.

  1. If an agreement between the parties to terminate a temporary order for custodial responsibility under KRS 403A.301 to 403A.311 has not been filed, the order terminates sixty (60) days after the deploying parent gives notice to the other parent and any nonparent granted custodial responsibility that the deploying parent has returned from deployment.
  2. A proceeding seeking to prevent termination of a temporary order for custodial responsibility is governed by law of this state other than this chapter.

HISTORY: 2021 ch. 94, § 27, effective June 29, 2021.

Article 5. Miscellaneous Provisions.

403A.501. Uniformity of application and construction.

In applying and construing the Uniform Deployed Parents Custody and Visitation Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

HISTORY: 2021 ch. 94, § 28, effective June 29, 2021.

403A.502. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. sec. 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. sec. 7001 (c) , or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. sec. 7003(b) .

HISTORY: 2021 ch. 94, § 29, effective June 29, 2021.

403A.503. Savings clause.

This chapter does not affect the validity of a temporary court order concerning custodial responsibility during deployment which was entered before June 29, 2021.

HISTORY: 2021 ch. 94, § 30, effective June 29, 2021.

CHAPTER 404 Contracts and Separate Estate of Married Women

404.010. Effect of marriage on wife’s property — Separate estate — Subjection of estate to debts.

  1. Marriage shall give to the husband, during the life of the wife, no estate or interest in the wife’s property, real or personal, owned at the time or acquired after the marriage. During the existence of the marriage relationship the wife shall hold and own all her estate to her separate and exclusive use, and free from the debts, liabilities or control of her husband.
  2. A married woman’s estate shall be liable for her debts and responsibilities contracted before marriage, and for such contracted after marriage, except as provided in this chapter and in KRS Chapter 392.

History. 2127: amend. Acts 1954, ch. 21, § 1; 1974, ch. 268, § 1; 1974, ch. 286, § 2; 1984, ch. 111, § 161, effective July 13, 1984.

NOTES TO DECISIONS

Compiler’s Notes. The following cases were decided prior to the 1974 amendments to this section and may no longer represent current law. This is particularly true of the cases involving suretyship under headings 13-27.

1.Purpose.

Where a married woman, prior to the married woman’s act, had obtained a decree of court conferring upon her the powers of a single woman, as was authorized by the law then in force, that act did not take from her the power to bind herself as her husband’s surety, though it declares, in effect, that a married woman shall not have that power, as the purpose of the act was to enlarge, and not to restrict, the powers of married woman. Mundo v. Anderson, 109 Ky. 147 , 58 S.W. 520, 22 Ky. L. Rptr. 663 , 1900 Ky. LEXIS 174 ( Ky. 1900 ).

2.Construction.

This section abolished the distinction between the separate and general estate of a married woman and enlarged the powers of a woman over her estate, and will apply to the estate of a married woman acquired prior to passage of married woman’s act. Morrison v. Morrison's Assignee, 113 Ky. 507 , 68 S.W. 467, 24 Ky. L. Rptr. 340 , 24 Ky. L. Rptr. 786 , 1902 Ky. LEXIS 76 ( Ky. 1902 ); Morrison v. Morrison's Assignee, 113 Ky. 507 , 68 S.W. 467, 24 Ky. L. Rptr. 340 , 24 Ky. L. Rptr. 786 , 1902 Ky. LEXIS 76 ( Ky. 1902 ).

The statute was not designed to prevent a married woman from borrowing money or to deny her the right to discharge her husband’s debts or to do with her money as she pleases, and a lender’s rights are not prejudiced by the wife’s disposition of the money borrowed upon her note, provided the transaction is not a subterfuge to evade the statute, or a scheme to procure the obligation of the wife as surety for her husband or another. Third Nat'l Bank v. Tierney, 128 Ky. 836 , 110 S.W. 293, 33 Ky. L. Rptr. 418 , 1908 Ky. LEXIS 103 ( Ky. 1908 ).

Where a couple was married prior to enactment of this section, the husband acquired title to his wife’s personal property which she owned prior to KRS 404.010 to 404.050 and which he had reduced to his possession, and he was also entitled to the rents and profits from her real property which he had also acquired prior to KRS 404.010 to 404.050 . Fowler v. Fowler, 138 Ky. 326 , 127 S.W. 1014, 1910 Ky. LEXIS 76 ( Ky. 1910 ).

This section and KRS 404.020 do not affect the husband’s right in property acquired by his wife prior to their enactment. Tucker v. Tucker's Adm'r, 165 Ky. 306 , 176 S.W. 1173, 1915 Ky. LEXIS 530 ( Ky. 1915 ).

Prior to the enactment of this section, the property of a married woman was not her separate estate and her personal property became the property of her husband when he reduced it to his possession. Miller v. Keown, 176 Ky. 117 , 195 S.W. 430, 1917 Ky. LEXIS 28 ( Ky. 1917 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ).

This section and KRS 404.020 remove all restrictions from the wife with respect to owning, holding, controlling and disposing of her property and engaging in business activities the same as if she were an unmarried woman, the only exception being that with respect to her becoming bound as surety or making executory contracts to mortgage or convey her real estate. Smith v. Butt & Hardin, 281 Ky. 127 , 135 S.W.2d 67, 1939 Ky. LEXIS 23 ( Ky. 1939 ).

3.Inchoate Rights.

This section does not prevent the inchoate right under KRS 392.020 of one spouse in the realty of the other from attaching at the moment the other spouse becomes seized in fee simple during coverture. Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

4.Tort Liability.

A husband is not liable for the torts of his wife committed without his direction or procurance. Lane v. Bryant, 100 Ky. 138 , 37 S.W. 584, 18 Ky. L. Rptr. 658 , 1896 Ky. LEXIS 152 ( Ky. 1896 ).

Where wife owned auto and paid most of maintenance costs but permitted husband and son to use it, and they paid part of maintenance, wife and not husband was liable for negligent operation by minor son, under “family purpose” doctrine. McNamara v. Prather, 277 Ky. 754 , 127 S.W.2d 160, 1939 Ky. LEXIS 720 ( Ky. 1939 ).

5.Loss of Consortium.

Where a married woman was injured by the negligence of a railroad company, the husband could maintain an action for the loss of the aid and service of her society, although she had been compensated for her personal injuries and her physical pain and suffering. Louisville & N. R. Co. v. Kinman, 182 Ky. 597 , 206 S.W. 880, 1918 Ky. LEXIS 413 ( Ky. 1918 ).

This section confers no new rights upon married women so as to now enable a wife to sue for loss of consortium due to negligent injury to her husband, although she may sue for loss due to intentional wrongs or direct attacks on the marriage relation. Cravens v. Louisville & N. R. Co., 195 Ky. 257 , 242 S.W. 628, 1922 Ky. LEXIS 341 ( Ky. 1922 ).

6.Wife’s Estate.

As between the widow and heirs at law of deceased, the widow is entitled to articles purchased by her out of her own means and which were claimed as her separate estate during her husband’s lifetime. Chorn v. Chorn's Adm'x, 98 Ky. 627 , 33 S.W. 1107, 17 Ky. L. Rptr. 1178 , 1896 Ky. LEXIS 13 ( Ky. 1896 ).

The progeny of a mare, which is the separate property of the wife, is also her separate property. Kelley v. Grundy, 45 S.W. 100, 20 Ky. L. Rptr. 1081 , 1898 Ky. LEXIS 295 (Ky. Ct. App. 1898).

It cannot be assumed that a crop raised by the husband on the wife’s land is her property. Sharp v. Wood, 51 S.W. 15, 21 Ky. L. Rptr. 189 (1899).

Where the proceeds of the wife’s separate property were deposited in bank in the name of the husband as a matter of convenience, the husband held the fund as a trustee for the wife, and she was entitled to it as against his administrator. Nagle's Adm'r v. Nagle, 60 S.W. 639, 22 Ky. L. Rptr. 1417 (1901).

A wife’s salary, earned while she worked for a company for which her husband also worked and for which she was hired by her husband, is free from her husband’s control and, where she claims to have applied these earnings to the purchase of certain property, mere suspicion of fraud in her acquisition of the property will not deprive her of it, though the court will carefully scrutinize the transaction. Clark v. Meyers, 68 S.W. 853, 24 Ky. L. Rptr. 380 , 1902 Ky. App. LEXIS 4 (Ky. Ct. App. 1902).

The fact that a firm borrowed money from the wife of one of the partners did not merge the lender’s right to it into that of her husband, though the loan took place before the married woman’s act, and therefore she could assert her claim individually. Parker, Jones & Steele v. Parker, 80 S.W. 209, 25 Ky. L. Rptr. 2193 (1904).

The separate property of a tenant’s wife cannot be subjected to payments due for rent. Fite v. Briedenback, 127 Ky. 504 , 105 S.W. 1182, 32 Ky. L. Rptr. 400 , 1907 Ky. LEXIS 159 ( Ky. 1907 ).

That a grocery store was conducted in the name of the wife, and the bank account so kept, was sufficient to create a presumption of ownership by her. Johnson v. Johnson's Adm'x, 134 Ky. 263 , 120 S.W. 303, 1909 Ky. LEXIS 381 ( Ky. 1909 ).

A husband’s deed conveying real estate to his wife in consideration of love and affection, with power to her to dispose of it by last will, did not create a separate estate in the wife. Hankins v. Columbia Trust Co., 142 Ky. 206 , 134 S.W. 498, 1911 Ky. LEXIS 221 ( Ky. 1911 ).

A wife is not bound by her husband’s consent to the taking of her property. Hazard Dean Coal Co. v. McIntosh, 183 Ky. 316 , 209 S.W. 364, 1919 Ky. LEXIS 496 ( Ky. 1919 ).

A husband may not, without his wife’s express authority, agree with an adjoining landowner to remove gates over a passway at the request of either party. Bard v. Batsell, 184 Ky. 11 , 211 S.W. 185, 1919 Ky. LEXIS 7 ( Ky. 1919 ).

7.— Husband’s Debts.

Land conveyed to a married woman may be subjected to the payment of the unpaid purchase money. Adams v. Feeder, 41 S.W. 275, 19 Ky. L. Rptr. 581 (1897).

Property purchased with money earned by the wife before the husband’s debts were contracted, while acting as clerk and bookkeeper in his store, was not subjected to the payment of these debts. J. M. Houston Grocer Co. v. McGinnis, 45 S.W. 514, 20 Ky. L. Rptr. 157 , 1898 Ky. LEXIS 297 (Ky. Ct. App. 1898).

Where the wife of a cigar maker embarked in the business of manufacturing cigars without experience or capital, the husband having charge of the manufacturing department and selling the cigars and collecting the money while the wife kept the books and attended to the finances, property in which the accumulations of the business were invested, after supporting the family, could be subjected by the husband’s creditors. Edelmuth v. Wybrant, 53 S.W. 528, 21 Ky. L. Rptr. 929 , 1899 Ky. App. LEXIS 4 (Ky. Ct. App. 1899).

Where the husband has acted as the wife’s agent in the management of a mercantile business conducted in the wife’s name, the stock of merchandise cannot be subjected by the husband’s creditors where the entire profits of the wife’s investment, including the value of the husband’s services, have been required to support their family, and there has been no accumulation. Davis v. Francis, 60 S.W. 931, 22 Ky. L. Rptr. 1618 (1901).

The rule requiring the wife, in order to sustain her claim to land as against the husband’s creditors, to allege and prove that the money with which she paid for the land was her separate estate, was abolished by this section. Clark v. Meyers, 68 S.W. 853, 24 Ky. L. Rptr. 380 , 1902 Ky. App. LEXIS 4 (Ky. Ct. App. 1902). See Eberhardt v. Wahl's Adm'r, 124 Ky. 223 , 98 S.W. 994, 30 Ky. L. Rptr. 412 , 1907 Ky. LEXIS 176 ( Ky. 1907 ); Hill's Ex'r v. Young, 157 Ky. 42 , 162 S.W. 558, 1914 Ky. LEXIS 227 ( Ky. 1914 ).

Land purchased by husband in his own name with money deposited to his credit is liable for a pre-existing debt, though the money originally belonged to his wife, where it became his property under a law existing when he reduced it to his possession. Alford v. Guffy, 115 S.W. 216 ( Ky. 1909 ).

When a home was purchased partly with the husband’s funds and partly with those of his wife and the title was taken in the wife’s name, the home was not subjected to the debts of the husband. Thompson & Co. v. Taylor, 124 S.W. 357, 1910 Ky. LEXIS 644 (Ky. Ct. App. 1910).

Where there was no proof that sums making up overdraft of an account in the husband’s name were used for the wife’s benefit or that such account was in fact the account of the wife, the overdraft must be regarded as the debt of the husband, and a wife cannot be made liable for the debt of her husband, with her consent or without it, except in the manner provided by this section. Hannen v. People's State Bank, 195 Ky. 58 , 241 S.W. 355, 1922 Ky. LEXIS 275 ( Ky. 1922 ).

A wife who had allowed her husband to hold the property in his name and to hold himself out as owner thereof was too late to assert claims thereto as against his creditors. Luther v. Campbell, 207 Ky. 420 , 269 S.W. 313, 1925 Ky. LEXIS 101 ( Ky. 1925 ).

Claims of creditors to property in husband’s name, belonging to wife, are preferred to those of the wife. Phillips v. Bowles, 209 Ky. 580 , 273 S.W. 85, 1925 Ky. LEXIS 549 ( Ky. 1925 ). See Miller v. McLin, 147 Ky. 248 , 143 S.W. 1008, 1912 Ky. LEXIS 202 ( Ky. 1912 ); Foster v. Miller, 256 Ky. 48 , 75 S.W.2d 534, 1934 Ky. LEXIS 343 ( Ky. 1934 ).

Since the right of husband to succeed in the entirety to title in the property held by himself and wife upon the contingency of his surviving her is a contingent interest, such interest may be taken and sold for judgment creditor’s debts, under execution. Hoffmann v. Newell, 249 Ky. 270 , 60 S.W.2d 607, 1932 Ky. LEXIS 889 ( Ky. 1932 ).

The lower court was proper in its holding that during the joint lives of husband and wife, the wife had right to possession, rents, issues, and profits of the whole property, subject to husband’s rights as her husband and cotenant by the entirety. Hoffmann v. Newell, 249 Ky. 270 , 60 S.W.2d 607, 1932 Ky. LEXIS 889 ( Ky. 1932 ).

Under this section a creditor attempting to subject land in the name of a wife to the debts of her husband has the burden of proving a fraudulent conveyance to the wife, but the burden may be shifted by proof of circumstances inferring fraud, especially where the transaction is inter familia. Carson v. Johnson, 253 S.W.2d 608, 1952 Ky. LEXIS 1109 ( Ky. 1952 ).

Where a farm in the name of the husband was sold shortly before his insolvency and another was purchased in the wife’s name, the burden of proving the bona fides of the transactions was shifted to the wife, but, by proving that there was a prior agreement by which the husband, due to his heavy drinking, was allowed to live with the family only if the profits of the farm were shared with the wife and children and that the second farm was purchased from these shares of the wife and children, the wife sustained this burden and the chancellor properly refused to subject the farm to the husband’s debts. Carson v. Johnson, 253 S.W.2d 608, 1952 Ky. LEXIS 1109 ( Ky. 1952 ).

8.— Improvements by Husband.

The surviving husband cannot enforce a claim against the deceased wife’s land for improvements made by him thereon. Carpenter v. Hazelrigg, 103 Ky. 538 , 45 S.W. 666, 20 Ky. L. Rptr. 231 , 1898 Ky. LEXIS 90 ( Ky. 1898 ). See Ketterer v. Nelson, 146 Ky. 7 , 141 S.W. 409, 1911 Ky. LEXIS 758 ( Ky. 1911 ).

Where a husband ordered materials and labor for repairs on his wife’s property to be charged to him, then estate will be liable for the repairs. Rau v. Rowe's Adm'x, 168 Ky. 704 , 182 S.W. 846, 1916 Ky. LEXIS 602 ( Ky. 1916 ).

Generally, when a husband makes improvements on his wife’s land, he is presumed to have done so for her benefit and he is not entitled to compensation. Thoben v. Thoben, 202 Ky. 571 , 260 S.W. 376, 1924 Ky. LEXIS 764 ( Ky. 1924 ).

When a wife agrees to reimburse her husband for improvements he has made upon her land, the agreement may be enforced. Thoben v. Thoben, 202 Ky. 571 , 260 S.W. 376, 1924 Ky. LEXIS 764 ( Ky. 1924 ).

9.— Managed by Husband.

Where husband, with his wife’s consent, collected the rents from her separate estate, it will be presumed, absent evidence to the contrary, that he used the proceeds according to her wishes and will not be required to account for them. Carpenter v. Hazelrigg, 103 Ky. 538 , 45 S.W. 666, 20 Ky. L. Rptr. 231 , 1898 Ky. LEXIS 90 ( Ky. 1898 ).

That a wife permitted her husband to represent her in renting her separate property and receiving the rents was not a waiver by her of the rents received, so as to relieve the husband of his duty to account therefor. Smith's Ex'r v. Johns, 154 Ky. 274 , 157 S.W. 21, 1913 Ky. LEXIS 48 ( Ky. 1913 ).

Generally the rule is that an insolvent husband, who assumes full control over his wife’s estate, may be subjected to the claims of his creditors in the amount of such enhancement as was produced by his skill and labor. Ely & Walker Dry Goods Co. v. Freedberg, 226 Ky. 713 , 11 S.W.2d 964, 1928 Ky. LEXIS 184 ( Ky. 1928 ). See Blackburn v. Thompson, 66 S.W. 5, 23 Ky. L. Rptr. 1723 (1902); Patton's Ex'r v. Smith, 130 Ky. 819 , 114 S.W. 315, 1908 Ky. LEXIS 327 ( Ky. 1908 ).

10.— Sale by Husband.

The fact that the property of a wife is shipped and sold by her husband in his own name does not render the proceeds subject to his debts not contracted on the faith of his ownership. Glover v. Suter, 38 S.W. 869, 18 Ky. L. Rptr. 1018 (1897).

The sale by the husband of a piano bought by him for his wife, who controlled and managed it, and had possession of it at the time of the sale, did not pass the title, and the wife is entitled to the piano as against the purchaser. De Witt v. Moore, 43 S.W. 697, 19 Ky. L. Rptr. 1534 (1897).

11.— Joint Possession.

A wife’s interest in land became adverse to her husband’s after they were separated and the husband gave his interest to her, even where they had held the land as joint tenants. Moore v. Pauley, 250 Ky. 156 , 61 S.W.2d 1106, 1933 Ky. LEXIS 660 ( Ky. 1933 ).

12.— Adverse Possession by Husband.

A husband cannot hold adversely to the wife holding a life estate in property. Green v. Jones, 169 Ky. 146 , 183 S.W. 488, 1916 Ky. LEXIS 668 ( Ky. 1916 ). See Watt v. Watt, 39 S.W. 48, 19 Ky. L. Rptr. 25 (1897).

Where lands of a wife are jointly occupied by her and her husband, his possession is not adverse to her. Mize v. Boston, 185 Ky. 275 , 215 S.W. 33, 1919 Ky. LEXIS 284 ( Ky. 1919 ). See Gambrell v. Gambrell, 167 Ky. 734 , 181 S.W. 328, 1916 Ky. LEXIS 456 ( Ky. 1916 ); Bowling v. Little, 182 Ky. 86 , 206 S.W. 1, 1918 Ky. LEXIS 304 ( Ky. 1918 ).

A husband may not acquire adverse title to his wife’s land during the marriage. Sandlin v. Baker, 242 Ky. 645 , 47 S.W.2d 55, 1932 Ky. LEXIS 324 ( Ky. 1932 ). See Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ); Howard v. Turner, 287 Ky. 206 , 152 S.W.2d 589, 1941 Ky. LEXIS 516 ( Ky. 1941 ).

13.Wife as Surety.

Compiler’s Notes. Prior to the 1974 amendment, this section did not allow a wife to act as surety and the following annotations under headings 13 through 27 must be read with this in mind.

A judgment of the Circuit Court conferring on a married woman the rights and powers of a feme sole does not authorize her to make a contract of suretyship. Lane v. Traders' Deposit Bank, 43 S.W. 442, 19 Ky. L. Rptr. 1357 (1897).

Subsection (2) provides the only manner in which a married woman may become a surety. Travers v. Wood, 50 S.W. 60, 20 Ky. L. Rptr. 1819 (1899). See Parks' Ex'rs v. Parks, 286 Ky. 233 , 150 S.W.2d 687, 1941 Ky. LEXIS 249 ( Ky. 1941 ).

Under this section a married woman may not become personally liable as a surety even though she binds her own property as security. Baker v. Owensboro Sav. Bank & Trust Co.'s Receiver, 140 Ky. 121 , 130 S.W. 969, 1910 Ky. LEXIS 183 ( Ky. 1910 ).

When a married woman signs an obligation, her defense to a suit thereon that she is only a surety must be pleaded. Bogie v. Nelson, 151 Ky. 443 , 152 S.W. 250, 1913 Ky. LEXIS 496 ( Ky. 1913 ). See Bush v. Arnett, 271 Ky. 803 , 113 S.W.2d 442, 1938 Ky. LEXIS 58 ( Ky. 1938 ); Clay City Nat'l Bank v. Bush, 280 Ky. 406 , 133 S.W.2d 522, 1939 Ky. LEXIS 132 ( Ky. 1939 ).

In determining whether a married woman was principal debtor or surety under this section, the court will be governed by the substance and not by the form of the transaction. Lucas v. Hagedorn, 158 Ky. 369 , 164 S.W. 978, 1914 Ky. LEXIS 617 ( Ky. 1914 ). See Peoples's Bank v. Baker, 238 Ky. 473 , 38 S.W.2d 225, 1931 Ky. LEXIS 255 ( Ky. 1931 ); National Bank of Kentucky's Receiver v. Snead, 267 Ky. 816 , 103 S.W.2d 269, 1937 Ky. LEXIS 384 ( Ky. 1937 ).

Where the purpose of wife’s agreement to pay husband’s note was not the assumption of husband’s debt as a surety by wife but was a contract for the purchase of husband’s real estate and the promise to pay, unconditionally, the husband’s debt as the purchase price, the consideration for the promise was sufficient, new and different from the one upon which the execution of note was based and hence the agreement was not within the meaning of the prohibition of the statute. Bryant v. Jones, 183 Ky. 298 , 209 S.W. 30, 1919 Ky. LEXIS 471 ( Ky. 1919 ).

This section, exempting a married woman from liability as a surety, cannot be circumvented by the form of the transaction. Smith v. First Nat'l Bank, 243 Ky. 716 , 49 S.W.2d 538, 1932 Ky. LEXIS 162 ( Ky. 1932 ).

Where the evidence showed that the substance of the transaction was a loan of money to husband and wife was his surety for repayment of it, the court should have peremptorily instructed the jury to find for the wife. Oatts v. First Nat'l Bank, 244 Ky. 635 , 51 S.W.2d 952, 1932 Ky. LEXIS 496 ( Ky. 1932 ). See Van Galder v. Foster, 243 Ky. 543 , 49 S.W.2d 352, 1932 Ky. LEXIS 160 ( Ky. 1932 ); Bryant v. Jones, 183 Ky. 298 , 209 S.W. 30, 1919 Ky. LEXIS 471 ( Ky. 1919 ); Cawood v. Madison Southern Nat'l Bank & Trust Co., 251 Ky. 637 , 65 S.W.2d 734, 1933 Ky. LEXIS 931 ( Ky. 1933 ).

Law does not prevent wife from borrowing money and giving or lending it to another, and fact lender knows she intends to turn over proceeds of note to third person does not convert wife into a surety and relieve her of liability unless transaction is subterfuge to evade statute. National Bank of Kentucky's Receiver v. Snead, 267 Ky. 816 , 103 S.W.2d 269, 1937 Ky. LEXIS 384 ( Ky. 1937 ).

The fact that a wife executed a note for her husband’s pre-existing debt raises the presumption that the wife acted as surety. National Bank of Kentucky's Receiver v. Snead, 267 Ky. 816 , 103 S.W.2d 269, 1937 Ky. LEXIS 384 ( Ky. 1937 ).

14.— Oral Promise.

A promise by the wife to the husband to pay a note, which he had previously assumed, cannot be enforced by the holder of the note unless it could be enforced by the husband. Brown v. Dalton, 105 Ky. 669 , 49 S.W. 443, 20 Ky. L. Rptr. 1484 , 1899 Ky. LEXIS 247 ( Ky. 1899 ).

The wife’s oral promise to pay a note which she signed as surety for her husband would not create a legal obligation on her part to pay it so long as she remained under the disability of marriage. Swafford v. Manning, 295 S.W.2d 802, 1956 Ky. LEXIS 182 ( Ky. 1956 ).

15.— Ratification and Renewal.

A note executed by a married woman for the amount which the payee had paid as surety for her husband was not binding on her, and therefore a note executed by her in lieu thereof was without consideration and unenforceable. Russell v. Rice, 44 S.W. 110, 19 Ky. L. Rptr. 1613 (1898).

Where a woman and her husband executed a note which was void as to her when executed, she could not later become liable by recognizing the debt or by making a partial payment on it. Ruppel v. Kissel, 74 S.W. 220, 24 Ky. L. Rptr. 2371 , 1903 Ky. LEXIS 499 (Ky. Ct. App. 1903).

A married woman is not bound by a contract which she signed as surety previous to her signing renewal notes when she was free from disability unless such notes were supported by new and sufficient consideration. Farmers' Bank of White Plains v. Williams, 205 Ky. 261 , 265 S.W. 771, 1924 Ky. LEXIS 88 ( Ky. 1924 ).

Generally a married woman cannot ratify a contract of suretyship as such a contract is void at its inception and not merely voidable. Farmers' Bank of White Plains v. Williams, 205 Ky. 261 , 265 S.W. 771, 1924 Ky. LEXIS 88 ( Ky. 1924 ).

Since a renewal of note is not a new contract, wife was not liable on the renewal note as surety in absence of a new consideration where she was still a married woman when she renewed the note, and no contention was made that she received any consideration when she renewed it. Clark County Nat'l Bank v. Allen, 262 Ky. 236 , 90 S.W.2d 17, 1936 Ky. LEXIS 21 ( Ky. 1936 ).

16.— Contract Made in Another State.

Notwithstanding this section a married woman’s property, located in this state, can be subjected to her husband’s debts though not set apart when she signed as surety in another state while she was a resident there when that state allowed a married woman to assume liability for her husband’s debts. Moody v. Barker, 188 Ky. 401 , 222 S.W. 89, 1920 Ky. LEXIS 292 ( Ky. 1920 ).

A suretyship obligation incurred in Ohio by a married woman resident in Kentucky may be enforced against her by suit in Kentucky, and the judgment executed on her property here, since the law of Ohio, the place of performance, governs the enforceability of the suretyship contract. Gibbs v. Deins, 282 Ky. 625 , 139 S.W.2d 430, 1940 Ky. LEXIS 218 ( Ky. 1940 ).

17.— Accommodation Indorser.

A married woman indorsing a draft became, she receiving none of the proceeds thereof, merely an accommodation indorser and such contract of indorsement was not binding. Kentucky Title Sav. Bank & Trust Co. v. Langan, 144 Ky. 46 , 137 S.W. 846, 1911 Ky. LEXIS 559 ( Ky. 1911 ). See Baker v. Owensboro Sav. Bank & Trust Co.'s Receiver, 140 Ky. 121 , 130 S.W. 969, 1910 Ky. LEXIS 183 ( Ky. 1910 ).

18.— Wife in Partnership.

In entering into a partnership firm, a married woman’s liability for firm debts was not based on theory of principal and surety but on relation of principal and agent and at least to the extent of her interest in the firm property she was liable even on contract of guaranty, and as to such property this section restricting such liability as surety had no application. Memhard v. Alfred Gabrielsen Co., 224 Ky. 238 , 5 S.W.2d 1070, 1928 Ky. LEXIS 569 ( Ky. 1928 ).

A married woman may enter into a partnership with her husband and thereby become liable for the partnership indebtedness. Smith v. Butt & Hardin, 281 Ky. 127 , 135 S.W.2d 67, 1939 Ky. LEXIS 23 ( Ky. 1939 ).

Wife who was engaged in a partnership with her husband was liable for debts of the partnership and could not escape liability on a check signed by her on the ground that she signed it as surety for the partnership. Crook v. Cochran, 303 Ky. 127 , 197 S.W.2d 92, 1946 Ky. LEXIS 810 ( Ky. 1946 ).

19.— Consideration Received by Husband.

Where all the parties to the transaction, including the person making the loan, are aware that the transaction is really a loan to the husband and that the wife is acting merely as a surety, then the wife may avail herself of the protection of this section. National Bank of Kentucky's Receiver v. Snead, 267 Ky. 816 , 103 S.W.2d 269, 1937 Ky. LEXIS 384 ( Ky. 1937 ).

Where a statement in mortgage showed that the husband got the proceeds of the note and that his wife signed merely as his surety, under this section in effect at the time of execution of note, she as her husband’s surety was not bound on the note. Evans' Adm'r v. Evans, 304 Ky. 28 , 199 S.W.2d 734, 1947 Ky. LEXIS 577 ( Ky. 1947 ).

Where the husband negotiated the loan and received all the consideration, the wife was but a surety, and therefore was not liable on the note under this section. Daugherty v. Brewer, 267 S.W.2d 948, 1954 Ky. LEXIS 886 ( Ky. 1954 ).

In an action on a note executed by a husband and wife and secured by a mortgage on the wife’s property, where the evidence showed that the proceeds of the loan were received by the wife but that she turned them over to the husband who dissipated them and that she received no benefit from them, there was no more than a doubt raised as to the correctness of the Circuit Court decision refusing to grant a personal judgment against the wife and, therefore, the decision was affirmed. Swafford v. Manning, 272 S.W.2d 339, 1954 Ky. LEXIS 1093 ( Ky. 1954 ).

20.— Consideration Received by Wife.

Where a wife did not follow the method prescribed by this section to allow her to become responsible for the debt of another person, she was not liable for her husband’s debt even though she received some consideration from the transaction. Bank of St. Helens v. Mann's Ex'r, 226 Ky. 381 , 11 S.W.2d 144, 1928 Ky. LEXIS 125 ( Ky. 1928 ).

Receipt of consideration for becoming a surety does not prevent a married woman from claiming immunity from liability under this section. Alford v. Rodgers, 262 S.W.2d 676, 1953 Ky. LEXIS 1114 ( Ky. 1953 ).

21.— Wife Not Liable.

A married woman cannot be held liable as a surety on an obligation of notes of a corporation in which she owned stock. Smith v. Stone, 202 F. Supp. 11, 1962 U.S. Dist. LEXIS 3881 (E.D. Ky. 1962 ).

The fact that the payee, in accepting the note of the wife, voluntarily released the husband did not make the note binding on her. Russell v. Rice, 44 S.W. 110, 19 Ky. L. Rptr. 1613 (1898).

The wife is not liable on a note executed by her for the husband’s debt, though the word “principal” appears after her signature, the creditor not being deceived thereby. Crumbaugh v. Postell, 49 S.W. 334, 20 Ky. L. Rptr. 1366 , 1899 Ky. LEXIS 413 (Ky. Ct. App. 1899). See Postell v. Crumbaugh, 66 S.W. 830, 23 Ky. L. Rptr. 2193 , 1902 Ky. LEXIS 517 (Ky. Ct. App. 1902).

Though a note purports to be the joint obligation of husband and wife, the wife may show that she is a surety merely, and thus avoid liability thereon. Skinner v. Lynn, 51 S.W. 167, 21 Ky. L. Rptr. 185 (1899). See Black v. McCarley's Ex'r, 126 Ky. 825 , 104 S.W. 987, 31 Ky. L. Rptr. 1198 , 1907 Ky. LEXIS 104 ( Ky. 1907 ).

A note executed by the wife in lieu of the husband’s note without a new consideration is not binding. Deposit Bank of Carlisle v. Stitt, 107 Ky. 49 , 52 S.W. 950, 21 Ky. L. Rptr. 671 , 1899 Ky. LEXIS 130 ( Ky. 1899 ). See Milburn v. Jackson, 52 S.W. 949, 21 Ky. L. Rptr. 700 , 1899 Ky. LEXIS 403 (Ky. Ct. App. 1899); Third Nat'l Bank v. Tierney, 128 Ky. 836 , 110 S.W. 293, 33 Ky. L. Rptr. 418 , 1908 Ky. LEXIS 103 ( Ky. 1908 ).

Where a debt evidenced by a note was, to the knowledge of the payee, the debt of one of the makers, the prior signing of the note by a married woman, the placing of the proceeds to her credit, and a giving of a check to the real debtor by her was a mere technical arrangement to avoid the effect of the statute prohibiting married women from binding themselves as sureties, and was ineffectual to hold her. H. C. Hines & Co. v. Hays, 82 S.W. 1007, 26 Ky. L. Rptr. 967 , 1904 Ky. LEXIS 418 (Ky. Ct. App. 1904).

A wife who merely signs notes of her husband as his surety does not charge her separate estate. Bowron v. Curd, 88 S.W. 1106, 28 Ky. L. Rptr. 58 (1905).

A married woman executing a note as surety is not personally bound. Daviess County Bank & Trust Co. v. Wright, 129 Ky. 21 , 110 S.W. 361, 33 Ky. L. Rptr. 457 , 1908 Ky. LEXIS 137 ( Ky. 1908 ). See Magoffin v. Boyle Nat'l Bank, 69 S.W. 702, 24 Ky. L. Rptr. 585 , 1902 Ky. LEXIS 491 (Ky. Ct. App. 1902); Davis v. Poulos, 237 Ky. 763 , 36 S.W.2d 373, 1931 Ky. LEXIS 686 ( Ky. 1931 ); Allen v. Wireman, 243 Ky. 156 , 47 S.W.2d 928, 1932 Ky. LEXIS 29 ( Ky. 1932 ); Oatts v. First Nat'l Bank, 244 Ky. 635 , 51 S.W.2d 952, 1932 Ky. LEXIS 496 ( Ky. 1932 ).

The device of placing the wife’s signature above the husband’s will not evade the statute making the wife’s estate not liable upon her contract to another’s surety. Farmers' Bank of Wickliffe v. Beck, 114 S.W. 1189 ( Ky. 1908 ). See Planters' Bank & Trust Co. v. Major, 76 S.W. 331, 25 Ky. L. Rptr. 702 (1903); Mutual Ben. Life Ins. Co. v. First Nat'l Bank, 160 Ky. 538 , 169 S.W. 1028, 1914 Ky. LEXIS 510 ( Ky. 1914 ); Peoples's Bank v. Baker, 238 Ky. 473 , 38 S.W.2d 225, 1931 Ky. LEXIS 255 ( Ky. 1931 ).

A married woman cannot make herself liable, personally or otherwise, as a surety for her husband or as a surety for anyone else. Bryant v. Jones, 183 Ky. 298 , 209 S.W. 30, 1919 Ky. LEXIS 471 ( Ky. 1919 ). See Brady v. Equitable Trust Co., 178 Ky. 693 , 199 S.W. 1082, 1918 Ky. LEXIS 459 ( Ky. 1918 ); Bartley v. Ford's Ex'x, 220 Ky. 71 , 294 S.W. 800, 1927 Ky. LEXIS 472 ( Ky. 1927 ).

Where wife had not signed husband’s note secured by mortgage of husband and wife, the court erred in entering a personal judgment against wife. Wren v. Peoples' Bank, 237 Ky. 398 , 35 S.W.2d 566, 1931 Ky. LEXIS 619 ( Ky. 1931 ). See Hall v. Hall, 118 Ky. 656 , 82 S.W. 269, 26 Ky. L. Rptr. 553 , 1904 Ky. LEXIS 87 ( Ky. 1904 ); Napier v. Duff, 281 Ky. 779 , 136 S.W.2d 1083, 1939 Ky. LEXIS 38 ( Ky. 1939 ).

A married woman may borrow money for use of husband, but if the transaction is merely a subterfuge to secure the payment of husband to the lender, she will be treated as surety and relieved from liability. Edwards v. Citizens' Sav. Bank, 244 Ky. 508 , 51 S.W.2d 661, 1932 Ky. LEXIS 465 ( Ky. 1932 ). See Kelemen v. Citizens' Bank of Cumberland's Liquidating Agent, 259 Ky. 292 , 82 S.W.2d 355, 1935 Ky. LEXIS 309 ( Ky. 1935 ).

Where a married woman signed a note as surety for a company in which she had an interest, she is not liable on the note. Prater v. Hays Elkhorn Coal Co., 253 Ky. 713 , 70 S.W.2d 378, 1934 Ky. LEXIS 727 ( Ky. 1934 ).

Where a wife signed a note as surety for husband prior to 1954, a judgment holding her personally liable on the note is erroneous. Rogers v. Winchester Bldg. & Sav. Asso., 293 S.W.2d 463, 1956 Ky. LEXIS 66 ( Ky. 1956 ).

22.— Wife Liable as Principal.

Where a wife signed a note when asked by her husband to sign as his surety and then made her husband her agent to deliver the note, she is bound by his representations that she signed as principal and she is liable even though the statute of limitations as to a surety has run. Wm. Deering & Co. v. Veal, 78 S.W. 886, 25 Ky. L. Rptr. 1809 (1904).

Where a wife signed a note with her name appearing first before her husband’s and the payee knew that a married woman could not sign as surety and had refused to accept only the husband’s signature, the wife may not contend that she signed only as a surety even where the proceeds of the note were used in a business conducted solely by the husband and, therefore, she may be held liable on the note. Swearingen's Ex'r & Trustee v. Tyler, 132 Ky. 458 , 116 S.W. 331, 1909 Ky. LEXIS 104 ( Ky. 1909 ).

Where a husband negotiated a note, signed by himself and his wife, the proceeds of which were invested in real property, the title being taken in the wife’s name, the wife cannot defeat her liability on the ground that she was a surety. Thomas v. Boston Banking Co., 157 Ky. 473 , 163 S.W. 480, 1914 Ky. LEXIS 319 ( Ky. 1914 ).

Where a wife signed a note with her husband and the proceeds were used in a business in which the wife had an interest, she is liable on the note even though she may have intended to sign only as a surety. Longnecker v. Bondurant, 173 Ky. 427 , 191 S.W. 286, 1917 Ky. LEXIS 483 ( Ky. 1917 ).

Although wife may not have intended to become a part owner of real estate, but where she did propose to become a joint owner of merchandise, and signed the notes with her husband after she agreed to become his partner and joint owner of merchandise and the notes were given in large part for the price of merchandise, the trial court did not err in holding wife liable on the notes as principal. Bowling v. Webster, 209 Ky. 661 , 273 S.W. 501, 1925 Ky. LEXIS 571 ( Ky. 1925 ).

The fact that the contract was in writing and signed by husband as agent of his wife, an undisclosed principal, and he executed his individual notes for the contract price of improvements of her real estate did not relieve her as an undisclosed principal from liability, although all these acts were done before the discovery that the husband was acting as agent for her. Williamson Heater Co. v. Kaiser, 211 Ky. 192 , 277 S.W. 237, 1925 Ky. LEXIS 843 ( Ky. 192 5). See Dark Tobacco Growers' Co-op. Ass'n v. Garth, 218 Ky. 391 , 291 S.W. 367, 1927 Ky. LEXIS 147 ( Ky. 1927 ).

Where a married woman signed a note to enable payee to borrow money and payee pledged the note as collateral for another note on which he was indebted, this was not a suretyship transaction and the woman was primarily liable on her note. Cawood v. Madison Southern Nat'l Bank & Trust Co., 251 Ky. 637 , 65 S.W.2d 734, 1933 Ky. LEXIS 931 ( Ky. 1933 ).

Where a wife gave her husband a note which was to be paid out of real estate conveyed to her by her brother, it was a primary obligation of the wife and not a promise to act as surety for her brother’s debt to her husband. Williams v. Hayes, 264 Ky. 643 , 95 S.W.2d 272, 1936 Ky. LEXIS 378 ( Ky. 1936 ).

Where wife signed mortgage note with husband, and later husband conveyed mortgaged property to her, action to foreclose mortgage was not barred by seven-year statute of limitations, notwithstanding wife’s claim that she signed note only as surety. Combs v. Salyer, 291 Ky. 592 , 165 S.W.2d 40, 1942 Ky. LEXIS 273 ( Ky. 1942 ).

Where husband and wife owned all of their property jointly and had joint bank account, wife who signed note with husband in order to borrow money to meet son’s business debts was liable as a principal, notwithstanding her testimony that she did not take any part in loan negotiations and knew nothing of transaction. Rusch v. Roehr, 294 Ky. 511 , 172 S.W.2d 205, 1943 Ky. LEXIS 488 ( Ky. 1943 ).

Where married woman borrowed money from bank on her own note and turned proceeds of loan over to husband to enable him to buy a grocery business, she was liable on the note as a principal, even though the bank knew that the money was being borrowed for the benefit of the husband. Kann v. Peoples State Bank & Trust Co., 301 Ky. 708 , 192 S.W.2d 945, 1945 Ky. LEXIS 758 ( Ky. 1945 ).

Where wife signed notes with husband to pay for services of engineers employed by the husband to plat land, title to which had been taken in the names of the husband and wife jointly with right of survivorship at the request of the grantor who had retained a purchase money lien, the court properly found that the wife had a present interest in the property which was benefited by the platting and thus she was liable on the notes as a principal. Alford v. Rodgers, 262 S.W.2d 676, 1953 Ky. LEXIS 1114 ( Ky. 1953 ).

Where wife joined husband in executing a mortgage and note to secure the husband’s obligation on a note which he cosigned with a corporation, the note was enforceable against the mortgaged property which the husband and wife owned by the entireties. Cooke v. Louisville Trust Co., 380 S.W.2d 255, 1964 Ky. LEXIS 300 ( Ky. 1964 ).

23.— — Liable as Stockholder.

A note executed by the only two bona fide stockholders of a corporation, one of whom was a married woman, for money used by the corporation was an original undertaking, and not a contract to answer for the debt or default of another. Williams v. Farmers' & Drovers' Bank, 49 S.W. 183, 20 Ky. L. Rptr. 1273 , 1899 Ky. LEXIS 429 (Ky. Ct. App. 1899).

The general rule is that a married woman who joins in the execution of a note for the benefit of a corporation in which she is a stockholder is liable primarily, and the fact that the note was for an existing debt of the corporation does not invalidate it as to the married woman, where there is present benefit in the form of an agreement to extend additional credit. Raco Corp. v. Edwards, 272 S.W.2d 345, 1954 Ky. LEXIS 1096 ( Ky. 1954 ).

24.— Wife’s Property as Security.

A married woman can bind her separate estate by mortgage to secure her husband’s debt. Miller v. Sanders, 98 Ky. 535 , 33 S.W. 621, 17 Ky. L. Rptr. 1114 , 1896 Ky. LEXIS 2 ( Ky. 1896 ). See Brady v. Equitable Trust Co., 178 Ky. 693 , 199 S.W. 1082, 1918 Ky. LEXIS 459 ( Ky. 1918 ).

This section does not require the execution of a mortgage to set apart personal property but the same may be done by any suitable conveyance, and a pledge by a wife in a note accompanied by delivery of a policy of insurance payable to her on the life of her husband to secure a debt of the husband is valid. Wirgman v. Miller, 98 Ky. 620 , 33 S.W. 937, 17 Ky. L. Rptr. 1174 , 1896 Ky. LEXIS 8 ( Ky. 1896 ).

The wife’s written assignment of a policy of insurance to secure a loan made to the husband or to indemnify his surety is valid. New York Life Ins. Co. v. Miller, 56 S.W. 975, 22 Ky. L. Rptr. 230 , 1900 Ky. LEXIS 594 (Ky. Ct. App. 1900).

A married woman cannot become personally bound as surety for her husband, but she may bind her specific property as security for the husband’s obligations. Cook v. Landrum, 82 S.W. 585, 26 Ky. L. Rptr. 813 , 1904 Ky. LEXIS 424 (Ky. Ct. App. 1904).

A married woman may make contracts, sell and dispose of her personal property, sue and be sued as a single woman, and is liable for her debts and in all respects stands in the same position as if she were a single woman, except that no part of her estate may be subjected to the satisfaction of any contract made after marriage to answer for the debt of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance. Third Nat'l Bank v. Tierney, 128 Ky. 836 , 110 S.W. 293, 33 Ky. L. Rptr. 418 , 1908 Ky. LEXIS 103 ( Ky. 1908 ).

Since land of the wife cannot be subjected to the payment of the husband’s debts unless it has been set apart for that purpose in the manner provided by statute, neither can rent received by her from the land be subjected to such debts. Patton's Ex'r v. Smith, 130 Ky. 819 , 114 S.W. 315, 1908 Ky. LEXIS 327 ( Ky. 1908 ).

A wife’s property may be mortgaged by her and her husband to secure the debt of her husband or another, regardless of whether or not it is a homestead. Hite v. Reynolds, 163 Ky. 502 , 173 S.W. 1108, 1915 Ky. LEXIS 238 ( Ky. 1915 ).

Where a wife mortgaged her property and then assigned that mortgage as indemnity for her husband’s bond and also executed and assigned a second mortgage, this constituted a setting apart of the wife’s separate estate within the meaning of this section. Forcht v. National Surety Co., 177 Ky. 139 , 197 S.W. 545, 1917 Ky. LEXIS 554 ( Ky. 1917 ).

This section did not require that the purpose for which wife’s property was set apart be contained in the writing evidencing the act of setting it apart, and hence the blank indorsement of the stock was sufficient to constitute such setting apart. Staib v. German Ins. Bank, 179 Ky. 118 , 200 S.W. 322, 1918 Ky. LEXIS 176 ( Ky. 1918 ).

Wife’s conveyance setting apart property for husband’s debt need not express the purpose of the wife as well as the setting apart. Staib v. German Ins. Bank, 179 Ky. 118 , 200 S.W. 322, 1918 Ky. LEXIS 176 ( Ky. 1918 ).

Where wife signed note as surety on a loan to company principally owned by her husband and constituted him her agent with full authority to act for her in its disposition, she was liable, although her property was not placed in lien for the payment of debts. Scott v. First Nat'l Bank, 221 Ky. 297 , 298 S.W. 949, 1927 Ky. LEXIS 720 ( Ky. 1927 ).

A pledge of collateral is a conveyance within the meaning of this section, so that collateral pledged by a married woman to secure a suretyship obligation may be subjected to payment of the obligation. Staten v. Louisville Trust Co., 289 Ky. 258 , 158 S.W.2d 387, 1942 Ky. LEXIS 518 ( Ky. 1942 ). See Wirgman v. Miller, 98 Ky. 620 , 33 S.W. 937, 17 Ky. L. Rptr. 1174 , 1896 Ky. LEXIS 8 ( Ky. 1896 ).

Where a wife signed a note as surety for her husband and executed a mortgage on her realty securing the note, she set apart the mortgaged property to answer for her husband’s debt and the note could be enforced against that property. Rogers v. Winchester Bldg. & Sav. Asso., 293 S.W.2d 463, 1956 Ky. LEXIS 66 ( Ky. 1956 ).

25.— — Discharge of Lien.

A married woman cannot enter into a contract of personal suretyship, but where she mortgages her property to secure her husband’s debt, she occupies the position of a surety and is entitled to have the lien on her property discharged by any act that would discharge a personal surety. State Nat'l Bank v. Thompson, 277 Ky. 527 , 126 S.W.2d 412, 1938 Ky. LEXIS 569 ( Ky. 1939 ).

Where collateral was released without consent of wife, she was entitled to a partial discharge of the lien on her property based on the proportion the value of the surrendered collateral bore to the entire value of all the original security. State Nat'l Bank v. Thompson, 277 Ky. 527 , 126 S.W.2d 412, 1938 Ky. LEXIS 569 ( Ky. 1939 ).

26.— — Release by Novation.

If a wife mortgages her separate property to secure her husband’s debt, she is not his surety and her property cannot be released by a novation which would release one who is a surety. Magoffin v. Boyle Nat'l Bank, 69 S.W. 702, 24 Ky. L. Rptr. 585 , 1902 Ky. LEXIS 491 (Ky. Ct. App. 1902).

27.— Antenuptial Debts.

A married woman is liable for antenuptial debts. Button v. Dehoney, 29 S.W. 615, 16 Ky. L. Rptr. 725 (1895).

28.Presumption of Agency.

Marital relations do not create a presumption of agency between husband and wife when dealing with each other’s property, and such agency, when denied, must be proved the same as any other agency. Lazarus' Adm'x v. Hall, 287 Ky. 199 , 152 S.W.2d 592, 1941 Ky. LEXIS 517 ( Ky. 1941 ).

29.Burden of Proof.

Where there is an absence of any evidence in a note and mortgage signed by a wife which indicated that she had signed as a surety, the party seeking to hold wife as a surety has the burden of proving that fact. Baskett v. Rudy, 186 Ky. 208 , 217 S.W. 112, 1919 Ky. LEXIS 199 ( Ky. 1919 ).

Where names of husband and wife are signed to a note, there is a presumption that the wife is a principal debtor, and the burden is on her to show that she signed as surety rather than as principal. Rusch v. Roehr, 294 Ky. 511 , 172 S.W.2d 205, 1943 Ky. LEXIS 488 ( Ky. 1943 ).

Where wife signed a note with her husband without any indication of the capacity in which she signed, she had the burden of proving that she signed as a surety when she asserted immunity under this section. Alford v. Rodgers, 262 S.W.2d 676, 1953 Ky. LEXIS 1114 ( Ky. 1953 ).

30.Evidence.

To charge the separate estate of a married woman with the payment of her debts, facts must be averred showing that such was the agreement at the time of the contract. Benson v. Simmers, 53 S.W. 1035, 21 Ky. L. Rptr. 1060 , 1899 Ky. LEXIS 606 (Ky. Ct. App. 1899).

Deed, pursuant to which wife conveyed her land to husband’s creditor, and which creditor claimed was intended as a mortgage to secure husband’s debt, was not sufficient to charge land with liability for husband’s debt, in absence of express written provision to that effect, and could not be proved to have that effect by parol evidence. Britton v. Marcum, 278 Ky. 138 , 128 S.W.2d 553, 1939 Ky. LEXIS 396 ( Ky. 1939 ).

Cited:

Johnson v. Johnson’s Committee, 122 Ky. 13 , 28 Ky. L. Rptr. 937 , 90 S.W. 964, 1906 Ky. LEXIS 14 ( Ky. 1906 ); Underhill v. Mayer, 174 Ky. 229 , 192 S.W. 14, 1917 Ky. LEXIS 167 ( Ky. 1917 ); King v. Owensboro, 187 Ky. 21 , 218 S.W. 297, 1920 Ky. LEXIS 72 ( Ky. 1920 ); Bailey’s Adm’r v. Hampton Grocery Co., 189 Ky. 261 , 224 S.W. 1067, 1920 Ky. LEXIS 412 ( Ky. 1920 ); Bevins v. Commonwealth, 204 Ky. 444 , 264 S.W. 1063, 1924 Ky. LEXIS 484 ( Ky. 1924 ); Tewmy v. Commonwealth, 206 Ky. 522 , 267 S.W. 1087, 1925 Ky. LEXIS 988 (1925); Anderson v. Commonwealth, 211 Ky. 726 , 277 S.W. 1008, 1925 Ky. LEXIS 956 ( Ky. 1925 ); Wireman v. Commonwealth, 224 Ky. 116 , 5 S.W.2d 884, 1928 Ky. LEXIS 537 ( Ky. 1928 ); In re Bowles, 15 F. Supp. 353, 1936 U.S. Dist. LEXIS 1190 (D. Ky. 1936 ); Cloud v. Hug, 281 S.W.2d 911, 1955 Ky. LEXIS 212 , 54 A.L.R.2d 1049 ( Ky. 1955 ); Johnston v. Hodges, 372 F. Supp. 1015, 1974 U.S. Dist. LEXIS 9341 (E.D. Ky. 1974 ); First Union Home Equity Bank, N.A. v. Bedford Loan & Deposit Bank, 111 S.W.3d 892, 2003 Ky. App. LEXIS 178 (Ky. Ct. App. 2003).

Opinions of Attorney General.

A married woman can sign as a surety on a bond, as result of the 1974 amendment to this section. OAG 78-795 .

Research References and Practice Aids

Cross-References.

Alien spouse or child of United States citizen may take and hold property, KRS 381.310 .

General Assembly not to pass special act to relieve any person of disability, Const., § 59, Seventh.

Kentucky Law Journal.

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Treatises

Treatises

Petrilli, Kentucky Family Law, Business Transactions, §§ 15.1, 15.2.

Petrilli, Kentucky Family Law, Property Rights, §§ 14.2, 14.5.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.1.

404.020. Property rights — Contract rights — Transfer of personal property between husband and wife.

  1. A married woman may acquire and hold property, real and personal, by gift, devise or descent, or by purchase, and may, in her own name, as if she were unmarried, sell and dispose of her personal property. She may make contracts, and sue and be sued, as a single woman. She may rent out her real estate, and collect, receive and recover in her own name the rents thereof, and make contracts for the improvement thereof.
  2. A gift, transfer or assignment of personal property between husband and wife shall not be valid as to third persons, unless it is in writing, and acknowledged and recorded as chattel mortgages are required to be acknowledged and recorded; but the recording of any such writing shall not make valid any such gift, transfer or assignment that is fraudulent or voidable as to creditors or purchasers.

History. 2128: amend. Acts 1974, ch. 268, § 2.

NOTES TO DECISIONS

1.Purpose.

This section purports to protect third persons from transfers made with the fraudulent intent of defeating them either as creditors or purchasers. Hager v. Coleman, 307 Ky. 74 , 208 S.W.2d 518, 1948 Ky. LEXIS 602 ( Ky. 1948 ).

2.Construction.

Subsection (1) of this section, enlarging a married woman’s property rights, abrogated the common-law rule that one spouse could not be guilty of stealing from the other. Fugate v. Commonwealth, 308 Ky. 815 , 215 S.W.2d 1004, 1948 Ky. LEXIS 1064 ( Ky. 1948 ).

3.Property Rights.

This section invests a married woman with the same power to create liens upon her property for the improvement thereof that persons not under disability have. Tarr v. Muir, 107 Ky. 283 , 53 S.W. 663, 21 Ky. L. Rptr. 988 , 1899 Ky. LEXIS 167 ( Ky. 1899 ).

A married woman may be the grantee in a deed, and the land conveyed is subject to the payment of notes for the purchase price executed by her. Shoptaw v. Ridgway's Adm'r, 60 S.W. 723, 22 Ky. L. Rptr. 1495 (1901).

Contributions given to a married woman on account of her having at one time given birth to five children became her separate estate, and could not be subjected to the claims of her husband’s creditors. Lyon v. Lyon, 72 S.W. 1102, 24 Ky. L. Rptr. 2100 , 1903 Ky. LEXIS 318 (Ky. Ct. App. 1903).

A married woman may acquire a title by adverse possession. Big Blaine Oil & Gas Co. v. Yates, 182 Ky. 45 , 206 S.W. 2, 1918 Ky. LEXIS 305 ( Ky. 1918 ).

A married woman, with certain exceptions not material here, may make contracts and may own money or personal property just as a single woman. Dawson v. Dawson, 226 Ky. 750 , 11 S.W.2d 933, 1928 Ky. LEXIS 172 ( Ky. 1928 ).

4.Right to Contract.

A separate contract by a wife for nursing and care in her last illness is valid. Dearing v. Moran, 78 S.W. 217, 25 Ky. L. Rptr. 1545 (1904).

A married woman may contract as if single except where it is provided otherwise by statute. Bogie v. Nelson, 151 Ky. 443 , 152 S.W. 250, 1913 Ky. LEXIS 496 ( Ky. 1913 ). See Dawson v. Dawson, 226 Ky. 750 , 11 S.W.2d 933, 1928 Ky. LEXIS 172 ( Ky. 1928 ).

Where the husband joined the wife in the deed but did not sign the supplemental contract pursuant to which deed was made whereby wife could waive counterclaim just as a single woman, the supplemental contract was valid although husband did not sign. Jetter v. Christman's Ex'x, 222 Ky. 542 , 1 S.W.2d 966, 1928 Ky. LEXIS 192 ( Ky. 1928 ). (Decision prior to 1974 amendment.)

Where evidence showed that wife not only personally entered into contract for acquisition and development of leases but participated in the venture through and by her husband as her agent, she was liable under her commitment. Oliver v. Noe, 232 Ky. 809 , 24 S.W.2d 592, 1930 Ky. LEXIS 81 ( Ky. 1930 ).

An oral contract by which each spouse released all rights in the other’s personal property and agreed to bequeath their separate estates to their own family is valid. Smith's Adm'r v. Price, 252 Ky. 806 , 68 S.W.2d 422, 1934 Ky. LEXIS 867 ( Ky. 1934 ).

5.— Liability for Necessities.

A wife may make a contract for necessities under this section even though KRS 404.040 makes a husband liable for necessities furnished to his wife. Atkins v. Atkins' Adm'r, 203 Ky. 291 , 262 S.W. 268, 1924 Ky. LEXIS 898 ( Ky. 1924 ). See Hardiman's Adm'r v. Crick, 131 Ky. 358 , 115 S.W. 236, 1909 Ky. LEXIS 33 ( Ky. 1909 ); Underhill v. Mayer, 174 Ky. 229 , 192 S.W. 14, 1917 Ky. LEXIS 167 ( Ky. 1917 ).

Under this section an antenuptial contract which provided that after marriage the wife should be liable for necessities furnished to her is not void as against public policy. Atkins v. Atkins' Adm'r, 203 Ky. 291 , 262 S.W. 268, 1924 Ky. LEXIS 898 ( Ky. 1924 ).

6.— Improvements to Property.

Under this section a married woman may contract to have a house built on her property without the consent of her husband. Ware v. Long, 69 S.W. 797, 24 Ky. L. Rptr. 696 (1902).

Under this section, where married woman accepts material and work placed upon her property, the law implies a promise on her part to pay for it. Salisbury v. Wellman Electrical Co., 173 Ky. 462 , 191 S.W. 289, 1917 Ky. LEXIS 484 ( Ky. 1917 ). See Burnett Bros. v. Helburn, 261 Ky. 245 , 87 S.W.2d 371, 1935 Ky. LEXIS 622 ( Ky. 1935 ).

Pursuant to this section, wife could not only contract with her husband as her agent but could also contract in her own name for such improvements. Williamson Heater Co. v. Kaiser, 211 Ky. 192 , 277 S.W. 237, 1925 Ky. LEXIS 843 ( Ky. 192 5).

7.— Partnership Liability.

A married woman may be held liable on her notes where she was a partner in the business for which the notes were executed or where she borrowed money to give to her husband and sons for use in the business. Redmon v. First Nat'l Bank, 256 Ky. 659 , 76 S.W.2d 933, 1934 Ky. LEXIS 473 ( Ky. 1934 ).

A wife may enter into a partnership with her husband and thereby become liable for the partnership indebtedness. Smith v. Butt & Hardin, 281 Ky. 127 , 135 S.W.2d 67, 1939 Ky. LEXIS 23 ( Ky. 1939 ). See Louisville & N. R. Co. v. Alexander, 27 S.W. 981, 16 Ky. L. Rptr. 306 (1894).

8.— Services Rendered by Wife.

Husband and wife may not contract with each other for the payment by the husband to the wife for her services in nursing him during his illness, it being the duty of husband and wife to attend, nurse, and care for each other where either is unable to care for himself. Foxworthy v. Adams, 136 Ky. 403 , 124 S.W. 381, 1910 Ky. LEXIS 498 ( Ky. 1910 ).

There is no implied obligation which would require a husband to pay a wife for services which she performs apart from household chores and, therefore, a wife was not entitled to payment for work performed in her husband’s store. Lewis v. Lewis, 196 Ky. 701 , 245 S.W. 509, 1922 Ky. LEXIS 587 ( Ky. 1922 ).

9.Right to Sue or Be Sued.

A judgment against a married woman alone, in an action to foreclose a mortgage in which her husband did not join, is binding on her and her heirs. Deusch v. Questa, 116 Ky. 474 , 76 S.W. 329, 25 Ky. L. Rptr. 707 , 1903 Ky. LEXIS 209 ( Ky. 1903 ).

A personal judgment may be recovered against a married woman. Fain v. Heathman, 154 Ky. 174 , 156 S.W. 1071, 1913 Ky. LEXIS 30 ( Ky. 1913 ).

Since this section provides married woman right to sue and be sued concerning her own property, she may be liable on the bond executed securing costs and damages that a bondsman might sustain by virtue of obtention of injunction. Strong v. Duff, 228 Ky. 615 , 15 S.W.2d 517, 1929 Ky. LEXIS 637 ( Ky. 1929 ).

The limitations on a married woman’s power to dispose of her own land do not affect her power to sue or be sued. Ballman v. Ballman, 252 Ky. 332 , 67 S.W.2d 39, 1934 Ky. LEXIS 774 ( Ky. 1934 ). (Decision prior to 1974 amendment).

10.— Tort Actions.

In a personal injury action, a wife may recover for impairment of her earning capacity even without proof that she had ever had any earnings. Louisville & N. R. Co. v. Dick, 78 S.W. 914, 25 Ky. L. Rptr. 1831 (1904).

A wife who has secured a divorce a mensa et thoro may sue her husband for a tort thereafter committed. Coffinbarger v. Coffinbarger, 180 Ky. 704 , 203 S.W. 533, 1918 Ky. LEXIS 122 ( Ky. 1918 ).

A married woman may sue her husband for personal injuries. Brown v. Gosser, 262 S.W.2d 480, 1953 Ky. LEXIS 1104 ( Ky. 1953 ).

Where a prospective wife was injured in an automobile driven by her prospective husband and the suit was filed and the summons served on the prospective husband some two or three hours before the parties were married, the wife could maintain the action against the husband for the injuries sustained, although at the time of the trial of the action the parties were living together as husband and wife. Brown v. Gosser, 262 S.W.2d 480, 1953 Ky. LEXIS 1104 ( Ky. 1953 ).

11.— Alienation of Affections.

Wife may maintain an action against one who entices her husband from her and alienates his affection. Dietzman v. Mullin, 108 Ky. 610 , 57 S.W. 247, 22 Ky. L. Rptr. 298 (1900). See Turner v. Heavrin, 182 Ky. 65 , 206 S.W. 23, 1918 Ky. LEXIS 316 ( Ky. 1918 ).

12.— Loss of Services.

In a negligence action where injury to wife did not result in her immediate death, husband’s action for loss of her services was not barred. Paducah v. McManus, 256 Ky. 405 , 76 S.W.2d 254, 1934 Ky. LEXIS 424 ( Ky. 1934 ).

The right of husband to maintain action of this kind is not affected by statutes relating to married women, nor by fact that compensation may have been made the wife for her personal injuries. Commercial Carriers, Inc. v. Small, 277 Ky. 189 , 126 S.W.2d 143, 1939 Ky. LEXIS 638 ( Ky. 1939 ).

13.— Husband’s Debt to Wife.

Where a husband gave a note to his wife secured by a mortgage, the wife may sue in equity in an action on the note as the rights between husband and wife are not affected by this section. Leahy v. Leahy, 97 Ky. 59 , 29 S.W. 852, 17 Ky. L. Rptr. 187 , 1895 Ky. LEXIS 143 ( Ky. 1895 ).

A wife could make a valid loan of money to her husband on his note, and, having purchased certain notes of the husband from her father’s estate pending the marriage, was entitled after divorce, notwithstanding her former coverture, to sue her husband thereon. Coleman v. Coleman, 142 Ky. 36 , 133 S.W. 1003, 1911 Ky. LEXIS 134 ( Ky. 1911 ).

A married woman may sue and recover of her husband any debt that he may owe her. Greenup v. United States Fidelity & Guaranty Co., 159 Ky. 647 , 167 S.W. 910, 1914 Ky. LEXIS 853 ( Ky. 1914 ).

14.— Criminal Conversation.

Wife has right of action for criminal conversation. Turner v. Heavrin, 182 Ky. 65 , 206 S.W. 23, 1918 Ky. LEXIS 316 ( Ky. 1918 ).

15.— Slander.

Husband and wife may sue separately for slander on account of the speaking of the same words, where the words contain a slander as to each of them, and, in the action by the wife, a verdict and judgment in favor of the husband in the action by him are not admissible in evidence of the defendant. Alcorn v. Powell, 60 S.W. 520, 22 Ky. L. Rptr. 1353 (1901).

16.— Forcible Detainer.

Under this section a wife may maintain an action for forcible detainer against her separated husband who continued his tenancy on her land after having been given notice to leave. Walker v. Walker, 215 Ky. 154 , 284 S.W. 1042, 1926 Ky. LEXIS 692 ( Ky. 1926 ), overruled in part, Brown v. Gosser, 262 S.W.2d 480, 1953 Ky. LEXIS 1104 ( Ky. 1953 ).

17.— Judicial Sale of Land.

A wife may sue her husband for a judicial sale of land owned jointly by them if it is not susceptible to division and sale cannot be effected by agreement. Niles v. Niles, 143 Ky. 94 , 136 S.W. 127, 1911 Ky. LEXIS 337 ( Ky. 1911 ).

18.Interspousal Transfer of Property.

The law does not mean that either a husband or wife may so dispose of his or her personal property as to intentionally commit a fraud on the other. Orth v. B. B. Park & Co., 117 Ky. 779 , 79 S.W. 206, 25 Ky. L. Rptr. 1910 , 1904 Ky. LEXIS 245 ( Ky. 1904 ).

A wife who takes property from her husband as a gift with knowledge that his mother had conveyed the property to him in consideration for maintenance, which she did not get, being unable to live with the wife, cannot object to the declaring of a lien in favor of the mother. Hopper v. Hopper, 151 Ky. 120 , 151 S.W. 359, 1912 Ky. LEXIS 760 ( Ky. 1912 ).

A transfer made by a debtor in anticipation of a suit against him, or after a suit has begun, and while it is pending against him is a badge of fraud. Allen v. Ligon, 175 Ky. 767 , 194 S.W. 1050, 1917 Ky. LEXIS 391 ( Ky. 1917 ). See Hager v. Coleman, 307 Ky. 74 , 208 S.W.2d 518, 1948 Ky. LEXIS 602 ( Ky. 1948 ).

Where husband allowed wife to collect money and keep it as her own and his creditors were not thereby prejudiced, it was as much her money as if she had earned it or derived it from some other source. Pare v. Renfro, 178 Ky. 143 , 198 S.W. 553, 1917 Ky. LEXIS 688 ( Ky. 1917 ).

Transactions between husband and wife will be closely scrutinized when their claims are prejudicial to or in conflict with the claims of creditors. Clausen v. First Nat'l Bank, 277 Ky. 600 , 126 S.W.2d 1065, 1939 Ky. LEXIS 689 ( Ky. 1939 ).

The law closely scrutinizes a conveyance between husband and wife, and where the marital relation is accompanied by suspicious circumstances, the burden of proof rests upon the wife to prove that conveyances from her husband were supported by valuable consideration and made in good faith. Liberty Bank & Trust Co. v. Davis, 281 Ky. 51 , 134 S.W.2d 988, 1939 Ky. LEXIS 13 ( Ky. 1939 ).

Where husband started out with money and wife ended up with corporate stock and at no time was the corporate stock in apparent ownership of husband, except for three shares which were issued to him and which he then indorsed to his wife, this section applied to those three shares only. Alt v. Burt, 242 S.W.2d 974, 1951 Ky. LEXIS 1089 ( Ky. 1951 ).

Where there is no actual transfer of an identifiable item of personal property from one person to another, but only a transaction pursuant to which one party transfers from his possession one kind of property and the other party receives into his possession a different kind of property, this section does not apply. Alt v. Burt, 242 S.W.2d 974, 1951 Ky. LEXIS 1089 ( Ky. 1951 ).

19.— Third Persons.

The words “third persons,” as used in subsection (2) of this section, do not include any person not a party to the transaction who had no interest in the property, and who did not sustain to the donor the relation of creditor, or to the property that of an innocent purchaser, and hence an heir of a husband could not object to the validity of a gift made by him to his wife because not evidenced by a writing under such section. McWethy's Adm'x v. McCright, 141 Ky. 816 , 133 S.W. 1001, 1911 Ky. LEXIS 109 ( Ky. 1911 ).

The words “third persons” in this section have been construed to include subsequent creditors who contract with the transferor on the faith of his or her apparent ownership of the property transferred. Farmers Bank of Dry Ridge v. Ashcraft's Adm'r, 281 Ky. 758 , 137 S.W.2d 422, 1940 Ky. LEXIS 110 ( Ky. 1940 ).

20.— Valid Transfer.

Where a wife had a real and substantial claim against her husband which he satisfied by issuing to her certain stock in a corporation which he had formed and thereafter he became bankrupt, the wife had more than simple color of title, although there was no recording in compliance with this section. Alt v. Burt, 181 F.2d 996, 1950 U.S. App. LEXIS 3560 (6th Cir. Ky. 1950 ).

A promissory note given by husband to his wife for money so loaned is valid. Dawson v. Dawson, 226 Ky. 750 , 11 S.W.2d 933, 1928 Ky. LEXIS 172 ( Ky. 1928 ).

A creditor cannot have a gift of money from husband to wife for the purpose of building a house set aside as a fraudulent or voluntary transfer where husband’s indebtedness to the creditor was created many years after the gift was made, and husband was not held out to be the owner of the house. Farmers Bank of Dry Ridge v. Ashcraft's Adm'r, 281 Ky. 758 , 137 S.W.2d 422, 1940 Ky. LEXIS 110 ( Ky. 1940 ).

When title to car is erroneously placed in husband, correction of the mistake by retransfer of title by husband to vendor, and by him to wife, is not a gift, transfer or assignment within the provision of this section, inasmuch as the wife was the real owner throughout, unless she acted so as to be estopped from claiming ownership. Roberts v. Farley, 290 Ky. 516 , 161 S.W.2d 930, 1942 Ky. LEXIS 430 ( Ky. 1942 ).

21.— Invalid Transfer.

An unacknowledged and unrecorded contract between husband and wife by which it was agreed that in case of the death of either, the property of the other should go to the survivor and his heirs, forever, was unenforceable as against the heirs of the wife, who predeceased her husband. Stroud v. Ross, 118 Ky. 630 , 82 S.W. 254, 26 Ky. L. Rptr. 521 , 1904 Ky. LEXIS 84 ( Ky. 1904 ).

An agreement between a husband and wife that on the death of either, the survivor should receive his or her property is void, where not in writing and not recorded, as to an adopted child. Wilson v. Mullins, 119 S.W. 1180 ( Ky. 1909 ).

An indorsement on a note, reciting that the payee assigns the principal to his wife, he retaining the interest for life, and that should he outlive his wife, the note shall remain a part of his estate, and a delivery of the note, is not a valid gift inter vivos to the wife. Foxworthy v. Adams, 136 Ky. 403 , 124 S.W. 381, 1910 Ky. LEXIS 498 ( Ky. 1910 ).

Where a husband borrowed money from his wife, then conveyed real property to her to satisfy it, the conveyance would be ineffective against his other creditors even though he remained solvent, if the conveyance was not acknowledged and recorded. Motch's Adm'r v. Glenn, 251 Ky. 235 , 64 S.W.2d 900, 1933 Ky. LEXIS 853 ( Ky. 1933 ).

Where a husband transferred without recordation to his wife an undivided one-half interest in property jointly owned with a third party in satisfaction of a debt he owed to his wife, which was secured by a recorded mortgage on the property, the property was subject to levy of execution by a judgment creditor of the husband. Farmers' State Bank v. Evans, 258 Ky. 660 , 80 S.W.2d 830, 1935 Ky. LEXIS 219 ( Ky. 1935 ).

A gift of oriental rugs from husband to wife, not made in writing, acknowledged or recorded, is void as to creditors of the husband, and the rugs are subject to execution for the debts of the husband. Thomson v. Dennis' Ex'x, 282 Ky. 352 , 138 S.W.2d 490, 1940 Ky. LEXIS 170 ( Ky. 1940 ).

Pledge of corporate stock by husband to wife to secure his note to her, which was not acknowledged and recorded as required by this section to be valid as to third persons, was invalid as to creditor of husband. Moore v. Pope, 285 Ky. 125 , 147 S.W.2d 67, 1941 Ky. LEXIS 351 ( Ky. 1941 ).

22.Conveyance of Real Estate.

The refusal of husband to join the wife in a deed to carry out executory contract for the sale of her real estate entered into by her before their marriage would not abrogate the contract or prevent a court of equity from decreeing its specific performance at the suit of vendee. Lockhart v. Kentland Coal & Coke Co., 182 Ky. 673 , 207 S.W. 18, 1918 Ky. LEXIS 422 ( Ky. 1918 ). (Decision prior to 1974 amendment.)

23.— Joinder by Husband.

Where a husband asked his wife to sign his name to an oil lease and he acknowledged it, the lease was valid under this section which requires a husband to join in a conveyance with his wife. Hester v. O'Rear, 202 Ky. 176 , 259 S.W. 41, 1924 Ky. LEXIS 681 ( Ky. 1924 ). (Decision prior to 1974 amendment.)

24.— Warranty Liability.

A married woman is liable for the warranties contained in a deed executed by her even where the original conveyance of the land to her by her husband was found to be fraudulent as to her husband’s creditors. Crawford v. Baker, 235 Ky. 784 , 32 S.W.2d 340, 1930 Ky. LEXIS 466 ( Ky. 1930 ).

A married woman joining in the deed of her husband merely to release her dower is not bound by the covenant of warranty in such a deed. Williams v. Thomas, 285 Ky. 776 , 149 S.W.2d 525, 1941 Ky. LEXIS 470 ( Ky. 1941 ).

25.Statute of Limitations.

The running of the statutes of limitation against a cause of action in favor of an infant married woman is not suspended during her infancy, because she occupies the same status as an adult. Hicks v. Steele, 309 Ky. 833 , 219 S.W.2d 35, 1949 Ky. LEXIS 817 ( Ky. 1949 ).

26.Necessary Parties.

In a suit concerning a wife’s land, her husband is a proper party in the suit because his dower rights in his wife’s land would not be affected unless he is a party. Ballman v. Ballman, 252 Ky. 332 , 67 S.W.2d 39, 1934 Ky. LEXIS 774 ( Ky. 1934 ).

27.Burden of Proof.

In an action against husband for attachment of money deposited to wife’s account, where it was established that a large amount of her husband’s money was placed in her account, the burden devolved upon her to show that her husband checked out and received for his own use and benefit the money thus deposited by him to her credit. Clausen v. First Nat'l Bank, 277 Ky. 600 , 126 S.W.2d 1065, 1939 Ky. LEXIS 689 ( Ky. 1939 ).

28.Estoppel.

A married woman may be bound by estoppel the same as a man. Overcast v. Lawrence, 141 Ky. 25 , 131 S.W. 1029, 1910 Ky. LEXIS 390 ( Ky. 1910 ).

In action to obtain cancellation of deeds conveying interest in mineral rights by married woman on ground that her husband was an infant when he joined her in the execution of the deeds and thus incompetent to contract or unite in the conveyances, even though such deeds were void, wife was estopped to maintain such action by the executory sales she made of her interest in the mineral rights prior to her marriage. Lockhart v. Kentland Coal & Coke Co., 182 Ky. 673 , 207 S.W. 18, 1918 Ky. LEXIS 422 ( Ky. 1918 ).

Cited:

Swaim v. Commissioner, 417 F.2d 353, 1969 U.S. App. LEXIS 10377 (6th Cir. 1969).

Research References and Practice Aids

Cross-References.

Marriage does not revoke will, exception, KRS 394.090 .

Married woman may dispose of estate by will, KRS 394.020 .

Kentucky Law Journal.

Notes, Restoration of Property: Barrier to Interspousal Gifts, 67 Ky. L.J. 173 (1978-1979).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Northern Kentucky Law Review.

Notes, Workers' Compensation ? Marital Property ? Johnson v. Johnson, 10 N. Ky. L. Rev. 531 (1983).

Mohan & Byrd, You Cannot Change 500 Years of Property Law at 5:00 P.M. on a Friday — Dower as Applied in Kentucky., 33 N. Ky. L. Rev. 335 (2006).

Treatises

Treatises

Petrilli, Kentucky Family Law, Business Transactions, §§ 15.1, 15.2, 15.3, 15.4, 15.5, 15.6.

Petrilli, Kentucky Family Law, Property Rights, § 14.5.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.1.

404.030. Conveyance or encumbrance of real property by married woman — Husband’s curtesy right — Conveyance by married woman through agent.

  1. A married woman may sell, convey or encumber any of her lands and chattels real, but such sale, conveyance or encumbrance shall not bar the husband’s right to curtesy unless he joins in the instrument of sale, conveyance or encumbrance or releases his right to curtesy by separate instrument.
  2. Any married woman may convey by agent any interest she has in real or personal property situated in this state if she could lawfully convey it in person. The conveyance shall be made by virtue of a power of attorney, executed and acknowledged or proven as deeds by married women are required to be.

History. 508, 2129: amend. Acts 1942, ch. 152, § 4.

NOTES TO DECISIONS

1.Conveyance of Property.

Where deed recited that husband “consents” to and “unites” with wife in deed conveying wife’s property and the deed was signed and acknowledged by the husband, the conveyance was valid. Bowling v. Wilkerson, 19 F. Supp. 584, 1937 U.S. Dist. LEXIS 1678 (D. Ky. 1937 ) (decision prior to 1942 amendment).

Where husband executed a deed and wife, who owned the mineral rights, joined but was not named as owner, her estate never passed to the grantee. Big Sandy Co. v. Abshire, 200 Ky. 38 , 252 S.W. 108, 1923 Ky. LEXIS 5 ( Ky. 1923 ) (decision prior to 1942 amendment).

Prior to 1942 amendment to this section, an attempted conveyance of land from a married woman to her husband, by means of a deed executed by the woman to her son and by the son to the husband, was void where the husband did not join in the wife’s deed. Moore v. Terry, 293 Ky. 727 , 170 S.W.2d 29, 1943 Ky. LEXIS 695 ( Ky. 1943 ).

Subsection (1) of KRS 404.020 , providing that a married woman cannot make executory contract to sell, convey or mortgage her real estate unless her husband joins her in the contract, was repealed by implication by the 1942 amendment to subsection (1) of this section permitting a married woman to sell, convey or encumber her real estate without her husband joining except to release his curtesy. Schaengold v. Behen, 306 Ky. 544 , 208 S.W.2d 726, 1948 Ky. LEXIS 606 ( Ky. 1948 ). See Turner v. Smith, 306 Ky. 551 , 208 S.W.2d 731, 1948 Ky. LEXIS 607 ( Ky. 1948 ).

The effect of the 1942 amendment of this section is to place a married woman on an equality with a married man in the conveyance of her real estate. Schaengold v. Behen, 306 Ky. 544 , 208 S.W.2d 726, 1948 Ky. LEXIS 606 ( Ky. 1948 ).

A deed executed by a wife, prior to the 1942 amendment of subsection (1) of this section, without joinder by her husband was void. May v. May, 311 Ky. 74 , 223 S.W.2d 362, 1949 Ky. LEXIS 1053 ( Ky. 1949 ).

2.— Joinder by Husband.

Husband must be grantor in deed. The mere signing of the husband’s name to a deed executed by the wife on her land, wherein his name does not appear in the body of the deed, does not meet the requirement of the statute that the conveyance must be by joint deed, and therefore the deed is void. Webber v. Tanner, 65 S.W. 848, 23 Ky. L. Rptr. 1694 , 1901 Ky. LEXIS 408 (Ky. Ct. App. 1901). See Farley v. Stacey, 177 Ky. 109 , 197 S.W. 636, 1917 Ky. LEXIS 562 ( Ky. 1917 ); Foust v. Hill, 215 Ky. 364 , 285 S.W. 235, 1926 Ky. LEXIS 745 ( Ky. 1926 ) (decision prior to 1942 amendment).

A deed executed and delivered by a married woman in which her husband joined, which was destroyed before it was recorded, was a valid conveyance between the parties. Mounts v. Mounts, 155 Ky. 363 , 159 S.W. 818, 1913 Ky. LEXIS 252 ( Ky. 1913 ).

Where husband did not join in wife’s title bond, such bond was ineffective for any purpose. Noe's Guardian v. McKinney, 229 Ky. 726 , 17 S.W.2d 1007, 1929 Ky. LEXIS 828 ( Ky. 1929 ).

Married woman may singly transfer oil and gas lease without her husband’s signature and, since such leasehold is less than fee simple, it is not subject to husband’s inchoate curtesy interest. Buehrer v. Gates, 411 S.W.2d 676, 1967 Ky. LEXIS 482 ( Ky. 1967 ).

3.— Infancy of Husband.

Under this section, providing that the husband must join in a deed of the wife’s land, he, after coming of age, having disaffirmed such a deed executed while he was an infant, the wife is not bound thereby. Phillips v. Hoskins, 128 Ky. 371 , 108 S.W. 283, 33 Ky. L. Rptr. 378 , 1908 Ky. LEXIS 57 ( Ky. 1908 ) (decision prior to 1942 amendment).

Where a wife and her infant husband joined in a trust deed of her land, the deed, being invalid as to the husband because of his infancy, was void in toto. Mueller v. Ragsdale, 158 Ky. 412 , 165 S.W. 404, 1914 Ky. LEXIS 626 ( Ky. 1914 ) (decision prior to 1942 amendment).

4.— Acknowledgment.

Where a married woman authorized another to sign her name to a deed, which he did in her presence, and she thereafter acknowledged the act to be hers, as required by law, it was immaterial that she did not sign the deed in person. Godsey v. Virginia Iron, Coal & Coke Co., 82 S.W. 386, 26 Ky. L. Rptr. 657 , 1904 Ky. LEXIS 385 (Ky. Ct. App. 1904).

A wife’s deed is void even where her husband signed and acknowledged it when his name did not appear as grantor. Shively v. Elkhorn Coal Corp., 217 Ky. 192 , 289 S.W. 262, 1926 Ky. LEXIS 70 ( Ky. 192 6 ) (decision prior to 1942 amendment).

Deed signed and acknowledged only by wife was void, if delivered and accepted, though subsequently signed and acknowledged by husband. Shively v. Elkhorn Coal Corp., 217 Ky. 192 , 289 S.W. 262, 1926 Ky. LEXIS 70 ( Ky. 192 6 ) (decision prior to 1942 amendment).

5.— Given to Husband.

A married woman who purchased land at a commissioner’s sale was under no disability precluding her from assigning her bid and purchase to her husband. Noel v. Fitzpatrick, 124 Ky. 787 , 100 S.W. 321, 30 Ky. L. Rptr. 1011 , 1907 Ky. LEXIS 250 ( Ky. 1907 ).

6.— Recording of Deed.

The deed of a married woman, in which the husband joins, is valid though not lodged for record until after her death, there being no time fixed by the statute in which the deed shall be lodged for record. Crawford v. Tate, 105 Ky. 502 , 49 S.W. 307, 20 Ky. L. Rptr. 1314 , 1899 Ky. LEXIS 232 ( Ky. 1899 ).

7.— Warranty Liability.

Where wife not only had a potential right of dower in the portion of land belonging to her husband but also owned an interest in the land itself, and she joined in the deed for purpose of releasing her dower and conveying all interest in the property, husband was liable on warranty as to all land and wife was liable on her own warranty to the extent of interest which she claimed to own and attempted to convey but was not liable on her husband’s warranty as to his interest in the land. Edgewater Coal Co. v. Swinney, 251 Ky. 531 , 65 S.W.2d 674, 1933 Ky. LEXIS 910 ( Ky. 1933 ).

8.— Mortgages.

Where husband did not sign mortgage note or any contract made by wife to bank, bank could not attach lien on land under mortgage note. Ballard v. Security State Bank, 219 Ky. 468 , 293 S.W. 950, 1927 Ky. LEXIS 352 ( Ky. 1927 ) (decision prior to 1942 amendment).

Mortgagees who had no knowledge of alleged duress by husband in forcing his wife to sign a mortgage on her property are entitled to have mortgage enforced. Hale v. Hale, 245 Ky. 358 , 53 S.W.2d 554, 1932 Ky. LEXIS 587 ( Ky. 1932 ).

Where a mortgage on the property of a married woman was void for lack of an acknowledgment, the woman’s later assumption of the debt was void for lack of consideration. Dwiggins v. Howard, 247 Ky. 746 , 57 S.W.2d 649, 1932 Ky. LEXIS 885 ( Ky. 1932 ).

9.— Use of Agent.

Where a wife, who was blind, allowed her husband to carry on a transaction which resulted in the sale of her land, she was bound by the husband’s representations as to the boundaries of the land because she had allowed him to act as her agent. Lainhart v. Gabbard, 89 S.W. 10, 28 Ky. L. Rptr. 105 (1905).

10.Waiver of Curtesy.

A husband may waive his rights in his wife’s estate and agree to hold it for her own use and such an agreement will be upheld. Bohannon v. Bohannon's Adm'x, 92 S.W. 597, 29 Ky. L. Rptr. 143 (1906).

11.Estoppel.

As against a subsequent innocent purchaser, a married woman is estopped to deny the recital of her deed conveying her separate property to the effect that she had received the cash consideration recited. Johnson v. Mutual Life Ins. Co., 113 Ky. 871 , 69 S.W. 751, 24 Ky. L. Rptr. 668 , 1902 Ky. LEXIS 113 ( Ky. 1902 ).

A wife, having joined with her husband in the execution of a mortgage by which they conveyed “all their interest” in a lot, is estopped to assert after his death that they intended to convey only his life estate and not the life estate which she held. Simmons v. Reinhardt, 78 S.W. 890, 25 Ky. L. Rptr. 1804 (1904).

Where a husband did not join in his wife’s deed, it was void, and the wife is not bound or estopped by any representations that she would never question the validity of her deed. Mays v. Pelly, 125 S.W. 713, 1910 Ky. LEXIS 703 ( Ky. 1910 ) (decision prior to 1942 amendment).

Where a wife executed a deed in which her husband did not join, she was not estopped from regaining possession where the parties were in good faith and believed that good title had been conveyed. Weber v. Lightfoot, 152 Ky. 83 , 153 S.W. 24, 1913 Ky. LEXIS 599 ( Ky. 1913 ) (decision prior to 1942 amendment).

Where a husband did not join in his wife’s deed, she will not be estopped to deny its validity and those who claim under her are also not estopped. Hellard v. Rockcastle Mining Lumber & Oil Co., 153 Ky. 259 , 154 S.W. 401, 1913 Ky. LEXIS 776 ( Ky. 1913 ) (decision prior to 1942 amendment).

In order for a wife to be estopped from renouncing her deed and recovering the land because of a void conveyance where there was fraud, the fraud must have been of such a nature as to be analogous to the crime of obtaining property by false pretenses. Looney v. Elkhorn Land & Improv. Co., 195 Ky. 198 , 242 S.W. 27, 1922 Ky. LEXIS 308 ( Ky. 1922 ).

12.Necessary Party.

Where, during the pendency of an equitable action for partition of the undivided interests in a remainder, the life tenant died and the husband of an owner of an undivided interest in the remainder was not made a party, the judgment confirming the commissioner’s report dividing the land did not bar the husband’s interest. Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

Cited:

First Union Home Equity Bank, N.A. v. Bedford Loan & Deposit Bank, 111 S.W.3d 892, 2003 Ky. App. LEXIS 178 (Ky. Ct. App. 2003).

Research References and Practice Aids

Cross-References.

Conveyances and encumbrances, KRS Ch. 382.

Power of attorney, how executed, KRS 382.370 .

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Northern Kentucky Law Review.

Mohan & Byrd, You Cannot Change 500 Years of Property Law at 5:00 P.M. on a Friday — Dower as Applied in Kentucky., 33 N. Ky. L. Rev. 335 (2006).

Treatises

Petrilli, Kentucky Family Law, Business Transactions, §§ 15.1, 15.4, 15.7.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

404.040. Liability of husband for wife’s debts.

The husband shall not be liable for any debt or responsibility of the wife contracted or incurred before or after marriage, except to the amount or value of the property he received from or by her by virtue of the marriage; but he shall be liable for necessaries furnished to her after marriage.

History. 2130.

NOTES TO DECISIONS

1.Necessaries.

When the conduct of the husband towards his wife makes it necessary that she should apply to the law for securing either protection or support, the husband will be chargeable for the expenses thus rendered necessary by his own misconduct. Williams v. Monroe, 57 Ky. 514 , 1857 Ky. LEXIS 60 ( Ky. 1857 ) (decided under prior law).

A wife is liable for necessities furnished to her at her request but a husband is primarily liable for such a debt and a wife may not be liable on her note where the goods or services were actually for the benefit of the husband. Underhill v. Mayer, 174 Ky. 229 , 192 S.W. 14, 1917 Ky. LEXIS 167 ( Ky. 1917 ).

The word “necessaries,” as it is used in this section, is not defined by it. The common law must be looked to, in the absence of a statutory definition thereof, to determine what is included by the statutory term “necessaries.” Palmer v. Turner, 241 Ky. 322 , 43 S.W.2d 1017, 1931 Ky. LEXIS 81 ( Ky. 1931 ).

Husband is under legal duty to support and maintain wife. Faulkner v. Faulkner, 246 Ky. 238 , 54 S.W.2d 905, 1932 Ky. LEXIS 735 ( Ky. 1932 ). See Davis v. Davis, 208 Ky. 605 , 271 S.W. 659, 1925 Ky. LEXIS 343 ( Ky. 1925 ); White v. White, 245 Ky. 618 , 54 S.W.2d 24, 1932 Ky. LEXIS 653 ( Ky. 1932 ); Brewer v. Brewer, 268 Ky. 625 , 105 S.W.2d 582, 1937 Ky. LEXIS 491 ( Ky. 1937 ).

Where this section imposes primary liability on a husband for necessaries furnished to his wife, the fact that a wife may also be liable for such necessaries does not relieve the husband from liability or place an obligation on the wife’s estate to repay the husband. Fidelity & Casualty Co. v. Downey, 284 Ky. 2 , 284 Ky. 72 , 143 S.W.2d 869, 1940 Ky. LEXIS 444 ( Ky. 1940 ).

Where couple separated several times, lived together for six months, filed for divorce, but were seeing each other regularly and were in the process of reconciliation at the time of decedent’s husband’s death, the couple was still married at the time of death and decedent husband was therefore liable to plaintiff wife for necessaries, thereby enabling her to qualify for reparations benefits for survivor’s economic loss. Automobile Club Ins. Co. v. Lainhart, 609 S.W.2d 692, 1980 Ky. App. LEXIS 394 (Ky. Ct. App. 1980).

2.— Medical and Funeral Expenses.

A wife’s heirs may be reimbursed by the husband for the wife’s medical and funeral expenses which were paid by a sale of the wife’s property. Carpenter v. Hazelrigg, 103 Ky. 538 , 45 S.W. 666, 20 Ky. L. Rptr. 231 , 1898 Ky. LEXIS 90 ( Ky. 1898 ).

If a husband fails to pay his wife’s medical and funeral expenses as he is obligated to do, then the wife’s estate will be liable for these expenses. Carpenter v. Hazelrigg, 103 Ky. 538 , 45 S.W. 666, 20 Ky. L. Rptr. 231 , 1898 Ky. LEXIS 90 ( Ky. 1898 ).

A husband is primarily liable for medical and burial expenses for his wife. Ketterer v. Nelson, 146 Ky. 7 , 141 S.W. 409, 1911 Ky. LEXIS 758 ( Ky. 1911 ). See Long v. Beard, 48 S.W. 158, 20 Ky. L. Rptr. 1036 (1898); Brand Ex'r v. Brand, 109 Ky. 7 21 , 60 S.W. 704, 22 Ky. L. Rptr. 1366 , 1901 Ky. LEXIS 36 ( Ky. 1901 ); Palmer v. Turner, 241 Ky. 322 , 43 S.W.2d 1017, 1931 Ky. LEXIS 81 ( Ky. 1931 ); Colovos' Adm'r v. Gouvas, 269 Ky. 752 , 108 S.W.2d 820, 1937 Ky. LEXIS 671 ( Ky. 1937 ).

Where a wife gave a note for her medical expenses only after her husband refused to pay, she was not liable on the note as this section makes a husband liable for necessaries furnished to his wife. Underhill v. Mayer, 174 Ky. 229 , 192 S.W. 14, 1917 Ky. LEXIS 167 ( Ky. 1917 ).

Under this section necessaries would include expenses for a wife whom husband has placed in a sanatorium. Fidelity & Casualty Co. v. Downey, 284 Ky. 2 , 284 Ky. 72 , 143 S.W.2d 869, 1940 Ky. LEXIS 444 ( Ky. 1940 ).

Husband’s estate is not liable for widow’s funeral expenses. Brashears' Adm'r v. Oder, 291 Ky. 817 , 165 S.W.2d 801, 1942 Ky. LEXIS 323 ( Ky. 1942 ).

The payment of the wife’s medical expenses out of a widowhood estate for medical care after she remarried was improper. Rhodus v. Proctor, 433 S.W.2d 625, 1968 Ky. LEXIS 278 ( Ky. 1968 ).

3.— Legal Expenses.

Where a trustee, under a trust deed executed by a husband alone, filed suit against the husband and wife for the construction of the deed and for a settlement of the trust, a claim for legal services for the wife was not “necessaries,” within this section, and the fees of the wife’s counsel cannot be adjudged a proper charge on the estate of the husband, though deemed necessary, within this section. Mulligan v. Mulligan, 161 Ky. 628 , 171 S.W. 420, 1914 Ky. LEXIS 148 ( Ky. 1914 ).

4.— Administration Expenses.

A surviving husband is not liable to pay the cost of administering his deceased wife’s estate and of an action by her administrator for a settlement of the estate. Long v. Beard, 48 S.W. 158, 20 Ky. L. Rptr. 1036 (1898).

5.— Furnished After Husband’s Death.

A husband’s estate could not be held liable for services rendered his widow many years after his death. Engle v. Terrell, 281 Ky. 88 , 134 S.W.2d 980, 1939 Ky. LEXIS 11 ( Ky. 1939 ).

6.Pre-Existing Debts.

A husband who receives an estate by his marriage is legally bound to pay the debts of his wife existing at the date of the marriage. Bell v. Rogers, 9 Ky. Op. 292, 1877 Ky. LEXIS 169 (Ky. Ct. App. Jan. 24, 1877) (decided under prior law).

Law provided that husband was responsible for the wife’s debts only to the extent of the value of the property received by him and this was true even though before and after marriage such property was exempt from seizure. Clark v. Miller, 88 Ky. 108 , 10 S.W. 277, 10 Ky. L. Rptr. 691 , 1889 Ky. LEXIS 2 ( Ky. 1889 ) (decided under prior law).

Cited:

In re Bowles, 15 F. Supp. 353, 1936 U.S. Dist. LEXIS 1190 (D. Ky. 1936 ); Priestley v. Priestley, 949 S.W.2d 594, 1997 Ky. LEXIS 66 ( Ky. 1997 ).

Research References and Practice Aids

Cross-References.

Insurance for benefit of married woman, KRS 304.14-340 .

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Wife and Husband on Contract Made by Wife Before Marriage, Form 250.01.

Caldwell’s Kentucky Form Book, 5th Ed., Creditor’s Complaint against Husband for Wife’s Contract for Necessaries, Form 250.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Husband and Wife, § 250.00.

Petrilli, Kentucky Family Law, Business Transactions, § 15.9.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

Petrilli, Kentucky Family Law, Support of the Family, §§ 16.1, 16.3.

404.050. When wife may convey or mortgage her real estate free from husband’s claim.

When a husband has been adjudged mentally disabled by a court of competent jurisdiction, the wife, by judgment of a court of equity, may be empowered to sell and convey by her own deed, or to mortgage by appropriate instrument, any of her real estate freed as to it and its proceeds from any claim of her husband.

History. 2131: amend. Acts 1942, ch. 152, § 1; 1978, ch. 92, § 14, effective June 17, 1978; 1982, ch. 141, § 128, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 139 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Effect of Mental Disability.

A Circuit Court judgment finding the husband to be a lunatic was conclusive on a later proceeding in which the wife sought authority to sell her land free of the husband’s interest. Smith v. Ruehl, 135 Ky. 264 , 122 S.W. 145, 1909 Ky. LEXIS 283 ( Ky. 1909 ).

Research References and Practice Aids

Cross-References.

Dower and curtesy, KRS Ch. 392.

Sale or mortgage of dower or curtesy interest of mentally disabled spouse, KRS 392.140 .

Treatises

Treatises

Petrilli, Kentucky Family Law, Business Transactions, § 15.1.

404.060. Married women as parties to actions.

  1. A married woman may sue, and be sued, as a single woman.
  2. She may defend an action against her and her husband for herself, and for him also if he fail to defend.
  3. If a husband desert his wife, she may bring or defend for him any action which he might bring or defend, and shall have the powers and rights with reference thereto which he would have had but for such desertion.
  4. If a female party to an action marry, her husband may be made a party by a motion, causing the fact to be stated upon the record; and the action shall not be delayed by reason of the marriage.
  5. But if a wife be adjudged mentally disabled, or imprisoned, the actions mentioned in subsections (1), (2) and (3), of this section must be prosecuted or defended by her guardian, conservator, or curator, if she have one, and if she have none, must be prosecuted by her next friend, or defended by her guardian ad litem.

History. C.C. 34: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1982, ch. 141, § 129, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 140 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Tort Action Against Husband.

A married woman may sue her husband for personal injuries. Brown v. Gosser, 262 S.W.2d 480, 1953 Ky. LEXIS 1104 ( Ky. 1953 ).

Where a prospective wife was injured in an automobile driven by her prospective husband and the suit was filed and the summons served on the prospective husband some two or three hours before the parties were married, the wife could maintain the action against the husband for the injuries sustained, although at the time of the trial of the action the parties were living together as husband and wife. Brown v. Gosser, 262 S.W.2d 480, 1953 Ky. LEXIS 1104 ( Ky. 1953 ).

2.Abandonment by Husband.

A wife whose husband has abandoned her may institute an action against an officer for damages for the levy of a general attachment upon the exempted property of her husband, such property being in her possession and used by her. Baum v. Turner, 139 Ky. 597 , 76 S.W. 129, 25 Ky. L. Rptr. 600 , 1903 Ky. LEXIS 4 ( Ky. 1903 ).

Where the husband is the owner and occupies a homestead with his wife, and then abandons his wife, the wife may, for herself, assert and maintain her right to the homestead. Purdy v. Melton, 164 Ky. 749 , 176 S.W. 346, 1915 Ky. LEXIS 461 ( Ky. 1915 ).

Where wife whose husband has abandoned her also abandons the homestead, she forfeits her right to the homestead. Purdy v. Melton, 164 Ky. 749 , 176 S.W. 346, 1915 Ky. LEXIS 461 ( Ky. 1915 ).

3.Husband Fails to Defend.

The purpose of this section being to guarantee to the family protection and benefits, the wife was properly allowed to defend herself in a suit brought against husband to enforce a lien against homestead where he was on bad terms with his wife, was in a very bad nervous condition, and refused to defend. Bishop v. Simpson, 224 Ky. 289 , 6 S.W.2d 253, 1928 Ky. LEXIS 588 ( Ky. 1928 ).

Cited:

Hemphill v. Haas, 88 Ky. 492 , 11 Ky. L. Rptr. 62 , 11 S.W. 510, 1889 Ky. LEXIS 64 ( Ky. 1889 ); Stephens v. Stephens, 139 Ky. 810 , 27 Ky. L. Rptr. 555 , 85 S.W. 1093, 1905 Ky. LEXIS 1 ( Ky. 1905 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Actions, § 17.1.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

CHAPTER 405 Parent and Child

Parent and Child

405.010. Parents entitled to services and earnings of child — Suit for loss of.

The father and mother of a child under the age of eighteen (18) are equally entitled to its services and earnings. If one of the parents is dead, or has abandoned the child, or been deprived of its custody by court decree, the other is entitled to its services and earnings. The parents jointly may maintain an action for loss of the services or earnings of their child under the age of eighteen (18) when the loss is occasioned by an injury wrongfully or negligently inflicted upon the child. But if either the father or mother is dead, or has abandoned the child, or has been deprived of its custody by court decree, or refuses to sue, the other may sue alone. This section shall not affect the existing law relating to workers’ compensation and industrial accidents.

History. 326a-1: amend. Acts 1968, ch. 100, § 18.

NOTES TO DECISIONS

1.Earnings and Services.
2.— Right of Parent.

The father and mother of an infant are entitled to its services and earnings during its minority. Vincennes Bridge Co. v. Guinn's Guardian, 231 Ky. 772 , 22 S.W.2d 300, 1929 Ky. LEXIS 374 ( Ky. 1929 ). See Kentucky Service Co. v. Miracle, 246 Ky. 797 , 56 S.W.2d 521, 1933 Ky. LEXIS 27 ( Ky. 1933 ).

Where father practically abandoned son, who worked on mother’s farm and who, when reaching 17 years of age, took charge of it, mother would be entitled to his earnings while he was a minor. Gayheart's Adm'r v. Gayheart, 287 Ky. 720 , 155 S.W.2d 1, 1941 Ky. LEXIS 618 ( Ky. 1941 ).

3.— Action for Loss.

One in loco parentis cannot file suit for loss of child’s services. Kelly v. Illinois C. R. Co., 125 Ky. 1 , 100 S.W. 239, 30 Ky. L. Rptr. 1062 , 1907 Ky. LEXIS 251 ( Ky. 1 907) (decided under prior law).

In an action to recover wages, there should be deducted from any recovery the amount necessarily expended by the child for its expenses. Rounds Bros. v. McDaniel, 133 Ky. 669 , 118 S.W. 956, 1969 Ky. LEXIS 490 ( Ky. 1969 ), limited, Miller v. Miller, 459 S.W.2d 81, 1970 Ky. LEXIS 109 ( Ky. 1970 ) (decided under prior law).

The infant may not recover for the impairment of his power to earn money before he is of age unless he has been emancipated, or the parents have waived their right to sue. Vincennes Bridge Co. v. Guinn's Guardian, 231 Ky. 772 , 22 S.W.2d 300, 1929 Ky. LEXIS 374 ( Ky. 1929 ). See Kentucky Service Co. v. Miracle, 246 Ky. 797 , 56 S.W.2d 521, 1933 Ky. LEXIS 27 ( Ky. 1933 ).

When an infant is injured by the negligence of another, two distinct causes of action arise: one in favor of the infant for his pain and suffering, and the permanent impairment of his power to earn money after becoming of age; the other in favor of his parents for loss of the infant’s services until he reaches maturity, and for medicines and medical services. Kentucky Service Co. v. Miracle, 246 Ky. 797 , 56 S.W.2d 521, 1933 Ky. LEXIS 27 ( Ky. 1933 ).

In the absence of any showing of a right in the father to services of a child, the Court of Appeals will not presume such right as the sole basis for reversing a judgment granting a minor compensation for his loss of earnings without limitation to his post-age-21 earnings. Behemoth Coal Co. v. Helton, 310 Ky. 810 , 222 S.W.2d 845, 1949 Ky. LEXIS 1029 ( Ky. 1949 ).

Where a jury awarded damages for all future loss of earnings to a 17-year-old boy, his mother had waived any claim she might have for loss of his services, and there was no showing that the boy’s father had any claim for the loss of his services, the Court of Appeals would not reverse the judgment for failure to limit the recovery to earnings lost after the boy reached 21. Behemoth Coal Co. v. Helton, 310 Ky. 810 , 222 S.W.2d 845, 1949 Ky. LEXIS 1029 ( Ky. 1949 ).

Where the father of an infant acted as his guardian and next friend and took an active role in negotiating a settlement of the boy’s claim for pain and suffering, medical expenses and loss of earning power, without limitation, the father and the mother, who also were aware of the son’s claims and the settlement, were estopped by the settlement from recovering for the loss of the son’s earnings prior to age 21 and his medical expenses. Smith v. Geoghegan & Mathis, 333 S.W.2d 254, 1960 Ky. LEXIS 181 ( Ky. 1960 ).

An infant has one cause of action for his injuries and his parent has a separate cause of action for loss of services and medical expenditures. Blackburn v. Burchett, 335 S.W.2d 342, 1960 Ky. LEXIS 258 ( Ky. 1960 ).

4.— — Waiver.

The right to a child’s services and earnings may be relinquished (1) by failing to provide it a home when able to do so; (2) by ill treatment, neglect or cruel treatment forcing the child to abandon its home; (3) by becoming so degraded or dissolute that the child cannot in morals or decency remain at home; and (4) by emancipation. Rounds Bros. v. McDaniel, 133 Ky. 669 , 118 S.W. 956, 1969 Ky. LEXIS 490 ( Ky. 1969 ), limited, Miller v. Miller, 459 S.W.2d 81, 1970 Ky. LEXIS 109 ( Ky. 1970 ) (decided under prior law). See Nichols v. Harvey & Hancock, 206 Ky. 112 , 266 S.W. 870, 1924 Ky. LEXIS 251 ( Ky. 1924 ) (decided under prior law).

The right of parents to compensation for loss of the services of a minor child may be waived where they have notice of the minor’s suit and participate in it without asserting an independent right of recovery. Behemoth Coal Co. v. Helton, 310 Ky. 810 , 222 S.W.2d 845, 1949 Ky. LEXIS 1029 ( Ky. 1949 ).

5.— Liability for Loss.

One standing temporarily in loco parentis may be liable to the parent for loss of services caused by his negligence. Cashen v. Riney, 239 Ky. 779 , 40 S.W.2d 339, 1931 Ky. LEXIS 860 ( Ky. 1931 ), limited, Miller v. Miller, 459 S.W.2d 81, 1970 Ky. LEXIS 109 ( Ky. 1970 ).

Research References and Practice Aids

Cross-References.

Action for death caused by negligent or wrongful act, KRS 411.130 .

Action for seduction without proof of loss of service, KRS 411.030 .

Adoption, KRS 199.470 to 199.590 .

Apprenticeship, KRS Ch. 343.

Boarding and lodging homes for children, licensing of, KRS 199.380 to 199.410 .

General Assembly not to pass special act to declare person of age, Const., § 59, Seventh.

Guardians, KRS Ch. 387.

Juvenile Code, KRS Chapters 600-645.

Uniform interstate family support act, KRS Ch. 407.

Will, minor may not make will, exceptions, KRS 394.030 .

Workers’ compensation, certain minors sui juris for purpose of, KRS 342.065 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Seduction, Form 262.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context Parent and Child, § 256.00.

Kentucky Instructions To Juries (Civil), 5th Ed., Damages, § 39.10.

Petrilli, Kentucky Family Law, Minors, §§ 30.12, 30.27.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

405.020. Custody, nurture, and education of minor child — Physically and mentally disabled children — De facto custodian.

  1. The father and mother shall have the joint custody, nurture, and education of their children who are under the age of eighteen (18). If either of the parents dies, the survivor, if suited to the trust, shall have the custody, nurture, and education of the children who are under the age of eighteen (18). The father shall be primarily liable for the nurture and education of his children who are under the age of eighteen (18) and for any unmarried child over the age of eighteen (18) when the child is a full-time high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years.
  2. The father and mother shall have the joint custody, care, and support of their children who have reached the age of eighteen (18) and who are wholly dependent because of permanent physical or mental disability. If either of the parents dies, the survivor, if suited to the trust, shall have the custody, care, and support of such children.
  3. Notwithstanding the provisions of subsections (1) and (2) of this section, a person claiming to be a de facto custodian, as defined in KRS 403.270 , may petition a court for legal custody of a child. The court shall grant legal custody to the person if the court determines that the person meets the definition of de facto custodian and that the best interests of the child will be served by awarding custody to the de facto custodian.
  4. Notwithstanding the provisions of subsections (1) and (2) of this section, if either parent dies and at the time of death a child is in the custody of a de facto custodian, as defined in KRS 403.270 , the court shall award custody to the de facto custodian if the court determines that the best interests of the child will be served by that award of custody.

History. 2016: amend. Acts 1952, ch. 138; 1968, ch. 100, § 19; 1986, ch. 360, § 1, effective July 15, 1986; 1992, ch. 434, § 4, effective July 14, 1992; 1998, ch. 250, § 6, effective July 15, 1998.

NOTES TO DECISIONS

1.Jurisdiction.

In an action to determine the custody of children, if the court had jurisdiction of the children when the proceeding was initiated, removal of the children from the territorial jurisdiction of the court prior to judgment will not deprive the court of jurisdiction. Chamblee v. Chamblee, 248 S.W.2d 422, 1952 Ky. LEXIS 742 ( Ky. 1952 ).

2.Standing.

Since a mother’s former significant other was neither a biological nor adoptive parent of the mother’s child, and had not established that she was a de facto custodian, she had to prove either that the mother was unfit or had waived a superior right to custody; since she failed to prove waiver by clear and convincing evidence, she lacked standing to assert custody of the child. Pickelsimer v. Mullins, 2008 Ky. App. LEXIS 95 (Ky. Ct. App. Mar. 28, 2008), aff'd in part and rev'd in part, 317 S.W.3d 569, 2010 Ky. LEXIS 7 ( Ky. 2010 ).

3.Necessary Parties.

In view of the fact that the father of child in custody dispute had a “right” to the child, subject to a burden on others to show why said right should be terminated, the obligation on father was to join only those parties that had actual physical custody of child and those defendants could then join others. None of the other parties attempted to join parties to prove their burden. Sumner v. Roark, 836 S.W.2d 434, 1992 Ky. App. LEXIS 142 (Ky. Ct. App. 1992). Unrelated holding superseded by statute as stated in Elery v. Martin, 4 S.W.3d 550, 1999 Ky. App. LEXIS 123 (Ky. Ct. App. 1999).

4.Decree of Foreign State.

While a decree of a sister state having to do with custody of a child is entitled to full faith and credit, when the child was living with her mother in this state at the time of the divorce decree in Indiana, she was not domiciled in Indiana, and, therefore, that part of the Indiana judgment awarding custody of the infant child to the father was of no effect. Callahan v. Callahan, 296 Ky. 444 , 177 S.W.2d 565, 1944 Ky. LEXIS 558 ( Ky. 1944 ).

An award of custody is conclusive only of the status of a child and its parents at the time the award is made, and a court of competent jurisdiction will enforce a decree of custody entered in a foreign state by a court which had jurisdiction of the parties and the subject matter at the time of the award only insofar as it determined the status of the child at the time of the award. Frick v. Kaufman, 310 Ky. 829 , 222 S.W.2d 185, 1949 Ky. LEXIS 1016 ( Ky. 1949 ).

Although a court into whose jurisdiction a child has moved may alter a valid award of the child’s custody upon a showing of changed conditions, it must give full faith and credit to such prior award insofar as it fixed the status of the parties at the time it was entered. Marlar v. Howard, 312 Ky. 209 , 226 S.W.2d 755, 1949 Ky. LEXIS 1259 ( Ky. 1949 ).

5.Writ of Prohibition.

Where wife was ordered to surrender custody of her children to the parents of her deceased husband and she claimed that the court lacked jurisdiction to make such an order, she was not entitled to a writ of prohibition against the judge to prevent a hearing on her contempt in refusing to obey such order, because the judgment was not void and she had other adequate remedies. Luster v. Auxier, 285 S.W.2d 900, 1955 Ky. LEXIS 88 ( Ky. 1955 ).

6.Habeas Corpus.

Where mother brought habeas corpus action to regain custody of her children from their father in accordance with a decree of divorce rendered in another state, the court properly excluded evidence relating to events prior to the original decree offered by the father to prove that the mother was unfit. Frick v. Kaufman, 310 Ky. 829 , 222 S.W.2d 185, 1949 Ky. LEXIS 1016 ( Ky. 1949 ).

Where a writ of habeas corpus presents the question of the welfare of infants, the technical requirements for the writ are generally disregarded. Smith v. Lloyd, 311 Ky. 863 , 226 S.W.2d 32, 1950 Ky. LEXIS 569 ( Ky. 1950 ).

A habeas corpus action regarding custody of a child is not in the nature of an equity proceeding, and evidence of the fitness of the parties for such custody may not be submitted over objection, because the only issue before the court is who is entitled to immediate possession of the child and the determination of that issue will not affect the rights of the parties to proceed in equity for a determination of the proper person to have ultimate custody of the child. Chamblee v. Chamblee, 248 S.W.2d 422, 1952 Ky. LEXIS 742 ( Ky. 1952 ).

In a habeas corpus action for custody of minor child, the court must determine who is entitled to immediate custody of the children and not whether modification of the original award is warranted, and relief should not be delayed by the pendency of a separate action for modification of the original award. Dake v. Timmons, 283 S.W.2d 378, 1955 Ky. LEXIS 312 ( Ky. 1955 ).

In a true habeas corpus action to determine only who is entitled to the immediate custody of children, alleged unfitness of one of the parties is not relevant. Valentine v. Goodin, 338 S.W.2d 702, 1960 Ky. LEXIS 412 ( Ky. 1960 ).

The Circuit Court of the county wherein children are physically present has jurisdiction over a true habeas corpus action to determine who is entitled to immediate custody of the children. Valentine v. Goodin, 338 S.W.2d 702, 1960 Ky. LEXIS 412 ( Ky. 1960 ).

7.Adoption Proceedings.

Where an attorney misinformed birth parents that they had until a hearing on the termination of parental rights to withdraw their consent to adoption, and where the birth parents relied upon that advice in signing consent forms, the forms were invalid; however, on remand the standard that applied in determining whether the birth parents or the adoptive parents had custody was the child’s best interest because the birth parents’ intentions to permanently change the legal custody of the child was clearly evident from their actions, including their signing the consent forms with the knowledge that the consent forms would facilitate the child’s adoption and delivering the child to the adoptive parents when placement was approved. Moore v. Asente, 110 S.W.3d 336, 2003 Ky. LEXIS 149 ( Ky. 2003 ).

8.Custody.

It is ordinarily immaterial that the person entitled to custody of the child is a nonresident. Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ). See Workman v. Workman, 191 Ky. 124 , 229 S.W. 379, 1921 Ky. LEXIS 290 ( Ky. 1921 ).

As an infant is a ward of the court, the court may control the custody of the child by the exercise of judicial discretion. Ridgeway v. Walter, 281 Ky. 140 , 133 S.W.2d 748, 1939 Ky. LEXIS 1 ( Ky. 1939 ).

The question of whether the surviving father or the maternal grandparents are entitled to the custody of the child is a controversy which may properly be decided in a declaratory judgment action. Carter v. Nance, 304 Ky. 256 , 200 S.W.2d 457, 1947 Ky. LEXIS 616 ( Ky. 1947 ).

In child custody cases, the anticipated unhappiness of disappointed litigants must be ignored. Lewis v. Lewis, 343 S.W.2d 146, 1961 Ky. LEXIS 411 ( Ky. 1961 ).

It always follows that if a parent is unfit, the best interests of the children require that he not be granted custody; it does not always follow, however, that if the best interests of the children would be served by placing custody with one particular person then any other person who desired custody would be considered unfit. Rice v. Hatfield, 638 S.W.2d 712, 1982 Ky. App. LEXIS 244 (Ky. Ct. App. 1982).

In order for a nonparent to prevail in a child custody suit with a parent, the nonparent must prove that the parent is not suitable for the trust and that the best interests of the child will be served by placing it with the nonparent; the burden of proving unfitness is on the nonparent. It is not necessary, however, to show the parent unsuited for the trust if it is proved that the parent abandoned the child, or entered into a voluntary agreement that the nonparent could have custody. Raddish v. Raddish, 652 S.W.2d 668, 1983 Ky. App. LEXIS 295 (Ky. Ct. App. 1983).

In a case in which maternal grandparents sought custody of grandchildren as against their father, who subsequently pled guilty to second-degree manslaughter in the death of their mother, the trial judge was to weigh the proof against the father using the clear and convincing evidence standard; this approach requires the party with the burden of proof to produce evidence substantially more persuasive than a preponderance of evidence, but not beyond a reasonable doubt. Fitch v. Burns, 782 S.W.2d 618, 1989 Ky. LEXIS 105 ( Ky. 1989 ).

9.— Welfare of Child.

The welfare of the child is the controlling consideration in determining its proper custodian when the controversy is between the parents or when both parents are dead. Shallcross v. Shallcross, 135 Ky. 418 , 122 S.W. 223, 1909 Ky. LEXIS 305 ( Ky. 1909 ). See Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ); Smart's Ex'x v. Bree, 211 Ky. 335 , 277 S.W. 478, 1925 Ky. LEXIS 876 ( Ky. 1925 ); Riggins v. Riggins, 216 Ky. 281 , 287 S.W. 715, 1926 Ky. LEXIS 891 ( Ky. 1926 ); Shelton v. Hensley, 221 Ky. 808 , 299 S.W. 979, 1927 Ky. LEXIS 835 ( Ky. 1927 ); Preston v. Preston, 227 Ky. 561 , 13 S.W.2d 751, 1929 Ky. LEXIS 915 ( Ky. 1929 ); Moore v. Smith, 228 Ky. 286 , 14 S.W.2d 1072, 1929 Ky. LEXIS 533 ( Ky. 1929 ); Baker v. Coleman, 229 Ky. 473 , 17 S.W.2d 417, 1929 Ky. LEXIS 785 (Ky. 1929).

The overruling factor in awarding custody is the welfare of the child and the court will consider such things as mutual affection between child and the person seeking custody as well as that person’s physical, mental, moral and financial background and the nature of the physical and emotional environment in which the child would be placed. Ridgeway v. Walter, 281 Ky. 140 , 133 S.W.2d 748, 1939 Ky. LEXIS 1 ( Ky. 1939 ).

The welfare and interest of the infant looms largely in the determination of the question as to the right to the custody and rearing of the infant, although the parents have a superior right to others. Lewis v. Lewis, 295 Ky. 258 , 174 S.W.2d 294, 1943 Ky. LEXIS 217 ( Ky. 1943 ).

In a child custody case, the best interests of the child, rather than those of the party seeking the writ, are paramount. Kavanaugh v. Duncan, 310 Ky. 643 , 221 S.W.2d 628, 1949 Ky. LEXIS 990 ( Ky. 1949 ).

The best interests of the children in a child custody case are paramount and the right of a person who has been caring for the children to compensation for furnishing such care will not prevent or delay a change in the custody of the children. Kavanaugh v. Duncan, 310 Ky. 643 , 221 S.W.2d 628, 1949 Ky. LEXIS 990 ( Ky. 1949 ).

The best interest of the child is the determining consideration in cases involving its custody. Poland v. Poland, 312 Ky. 45 , 226 S.W.2d 314, 1950 Ky. LEXIS 571 ( Ky. 1950 ).

In determining custody of a child, the judicial inquiry is not limited to moral character and financial ability, but considers all facts and factors that have a bearing on the complex and responsible duty of rearing, training, and fostering a child, according to its potential capacity and consistent with its individual character and needs. Brown v. Fudge, 312 Ky. 494 , 228 S.W.2d 34, 1950 Ky. LEXIS 685 ( Ky. 1950 ).

In determining custody of a child, the prime consideration is the welfare of the child. Brown v. Fudge, 312 Ky. 494 , 228 S.W.2d 34, 1950 Ky. LEXIS 685 ( Ky. 1950 ).

The basic principle underlying all decisions where the custody and care of a child of tender age are involved is the welfare of the child. Mays v. Mays, 313 Ky. 673 , 232 S.W.2d 1009, 1950 Ky. LEXIS 918 ( Ky. 1950 ).

In a child custody case, the present and future well-being of the child is the primary concern. Shaw v. Graham, 310 S.W.2d 522, 1958 Ky. LEXIS 392 ( Ky. 1958 ).

The custody of a child is to be determined by what is best for its welfare considering present circumstances and future prospects. Lewis v. Lewis, 343 S.W.2d 146, 1961 Ky. LEXIS 411 ( Ky. 1961 ).

The best interest and welfare of a child demand that divided custody should be avoided if possible, and it will not be approved except under exceptional circumstances or for strong and convincing reasons. McLemore v. McLemore, 346 S.W.2d 722, 1961 Ky. LEXIS 322 ( Ky. 1961 ).

The paramount consideration in child custody cases is the welfare of the child and not the wishes of the parents. McLemore v. McLemore, 346 S.W.2d 722, 1961 Ky. LEXIS 322 ( Ky. 1961 ).

Ordinarily the mother is presumptively entitled to custody of her child, but, where the mother is morally unfit to have custody, the trial judge may determine the custody question in light of what is in the best interest of the child. Roberson v. Wells, 355 S.W.2d 675, 1962 Ky. LEXIS 78 ( Ky. 1962 ). (Decision prior to 1978 amendment of KRS 403.270 ).

When the surviving parent has been deprived of custody by a court of law, in circumstances under which ordinarily such action would not have been taken without a reason pertaining to his or her fitness, then in a suit to regain custody he has the burden of proving that the transfer will not be detrimental to the child. Manion v. Cofer, 459 S.W.2d 76, 1970 Ky. LEXIS 107 ( Ky. 1970 ).

Where a child had spent half her life with a person other than her mother and she was happy, well-adjusted, and performed well in school, the evidence would not support a finding that a transfer would not have an injurious effect upon her. Manion v. Cofer, 459 S.W.2d 76, 1970 Ky. LEXIS 107 ( Ky. 1970 ).

Whether the parent is “suited to the trust” does not rest solely on his personal qualifications but depends to a reasonable extent on what is best for the child for, although both the blood relationship and the welfare of the child are factors of great importance, neither can obviate consideration of the other. Manion v. Cofer, 459 S.W.2d 76, 1970 Ky. LEXIS 107 ( Ky. 1970 ).

Two persons may seek custody, both of whom are fit for the responsibility, yet one may offer significant advantages to the children. The best interests of the child is the standard where both are fit custodians. Rice v. Hatfield, 638 S.W.2d 712, 1982 Ky. App. LEXIS 244 (Ky. Ct. App. 1982).

This section establishes the initial right of the parent to custody of her child, but not the continuing right once custody has been relinquished; once parent consents to adoption, the right of the parent to reclaim the child is not extinguished, but the parent’s superior statutory right to custody has been waived so that thereafter the court will look primarily to the child’s welfare in awarding custody. Van Wey v. Van Wey, 656 S.W.2d 731, 1983 Ky. LEXIS 300 ( Ky. 1983 ), cert. denied, 465 U.S. 1066, 104 S. Ct. 1416, 79 L. Ed. 2d 742 (U.S. 1984).

10.— Parents Preferred.

Parents are jointly entitled to the custody of their infant child. Mason v. Williams, 165 Ky. 331 , 176 S.W. 1171, 1915 Ky. LEXIS 529 ( Ky. 1915 ). See Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ); Walker v. Crockett, 194 Ky. 531 , 240 S.W. 35, 1922 Ky. LEXIS 191 ( Ky. 1922 ).

The right of a parent to custody of his or her child is superior to the right of the guardian. Mason v. Williams, 165 Ky. 331 , 176 S.W. 1171, 1915 Ky. LEXIS 529 ( Ky. 1915 ). See Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ).

The parents of a child are primarily entitled to its joint custody when they are living together, and will be deprived of that custody only when it is clearly for the benefit of the infant. Chance v. Pigneguy, 212 Ky. 430 , 279 S.W. 640, 1926 Ky. LEXIS 163 ( Ky. 1926 ).

Parents are primarily given preference to the custody of their children, but the child’s welfare supersedes all claims to its custody. Thus each case must be determined on its own facts. Staggs v. Sparks, 286 Ky. 398 , 150 S.W.2d 690, 1941 Ky. LEXIS 251 ( Ky. 1941 ).

Where parent’s home and home of uncle and aunt, with whom 11-year-old girl had lived from time to time, were equally suitable places for rearing of her, and all parties had treated her well and bestowed love and affection upon her, the parents were entitled to her custody even though she had privately confided to circuit court judge that she preferred to live with the uncle and aunt because one of her older sisters was cruel to her. Combs v. Brewer, 310 Ky. 261 , 220 S.W.2d 572, 1949 Ky. LEXIS 897 ( Ky. 1949 ).

A person devoid of legal or natural right to the custody of a child cannot maintain an action against a parent whose superior right of natural custody has not been legally terminated or voluntarily surrendered. Marlar v. Howard, 312 Ky. 209 , 226 S.W.2d 755, 1949 Ky. LEXIS 1259 ( Ky. 1949 ).

The rule that where both parties are equally fitted to care for a child, the natural right of the parent will ordinarily prevail is applicable where an institution is aligned against the natural parent. Smith v. Lloyd, 311 Ky. 863 , 226 S.W.2d 32, 1950 Ky. LEXIS 569 ( Ky. 1950 ).

Where the ability of the parties to care for a child is substantially equal, the natural right of the parent to the child’s custody will prevail. Brown v. Fudge, 312 Ky. 494 , 228 S.W.2d 34, 1950 Ky. LEXIS 685 ( Ky. 1950 ).

The natural parents, having no basis for finding a surrender of their parental rights, have a superior right of custody which must prevail unless they are not suitable, fit or capable of making reasonably adequate provisions for the child’s well-being. Crase v. Shepherd, 240 S.W.2d 548, 1951 Ky. LEXIS 968 ( Ky. 1951 ).

Usually a child is placed in the custody of its natural parents rather than a relative in the absence of a showing that the parent is unfit, but the welfare of the child is the controlling consideration in determining its custody. Middleton v. Middleton, 261 S.W.2d 640, 1953 Ky. LEXIS 1039 ( Ky. 1953 ).

The superior right of a parent to custody of his child may be relinquished, and when it is, the chancellor may exercise his discretion in determining the custody of the child. Higgason v. Henry, 339 S.W.2d 929, 1960 Ky. LEXIS 490 ( Ky. 1960 ).

If the trial court finds that the natural parent and the other party are equally fit, the natural parent shall prevail. James v. James, 457 S.W.2d 261, 1970 Ky. LEXIS 195 ( Ky. 1970 ).

In a custody suit between a natural parent and a person not the natural parent, it was reversible error to place the burden of proof on the parent to show that he was a fit person. James v. James, 457 S.W.2d 261, 1970 Ky. LEXIS 195 ( Ky. 1970 ).

Normally, a natural parent is entitled to custody of his child in a contest with a person not a parent except where a judgment of a court of competent jurisdiction has found the natural parent unfit or unsuitable to have custody or in instances where the natural parent has contracted to give up his right of parental custody. James v. James, 457 S.W.2d 261, 1970 Ky. LEXIS 195 ( Ky. 1970 ).

Mere fact that appellant may be able to provide more abundant living conditions is not a basis for denying fundamental right of custody vouchsafed to natural parents by this section and recognized by a long line of decisions. Killen v. Parker, 464 S.W.2d 815, 1971 Ky. LEXIS 503 ( Ky. 1971 ).

Where in a child custody action between the natural father and a maternal uncle, following the death of the children’s mother who had been divorced from the father, the trial court awarded custody to the uncle, that award had to be vacated because the trial court had not made any finding that the father was an unfit parent. Rice v. Hatfield, 638 S.W.2d 712, 1982 Ky. App. LEXIS 244 (Ky. Ct. App. 1982).

To deny a natural parent custody in a contest with a nonparent there must be a finding of unfitness. Rice v. Hatfield, 638 S.W.2d 712, 1982 Ky. App. LEXIS 244 (Ky. Ct. App. 1982).

To deny a natural parent custody in a contest with a nonparent, there must be a finding of unfitness. McDaniel v. Garrett, 661 S.W.2d 789, 1983 Ky. App. LEXIS 381 (Ky. Ct. App. 1983).

Absent an agreement of a permanent nature, the natural parents of a child have a statutorily granted superior right to its care and custody; this right may only be abrogated in an action involving a nonparent seeking custody by a showing of unfitness sufficient to support an involuntary termination of parental rights. Boatwright v. Walker, 715 S.W.2d 237, 1986 Ky. App. LEXIS 1135 (Ky. Ct. App. 1986).

Not only was the burden of proof on the child’s grandparents to show the father was unfit for custody, but there was also a presumption that the father, as surviving parent, was competent and suitable to rear the child. Grandparents did not meet their burden of proof in attempting to prove father unfit for custody of child, and therefore, father was entitled to custody of his infant daughter. Sumner v. Roark, 836 S.W.2d 434, 1992 Ky. App. LEXIS 142 (Ky. Ct. App. 1992). Unrelated holding superseded by statute as stated in Elery v. Martin, 4 S.W.3d 550, 1999 Ky. App. LEXIS 123 (Ky. Ct. App. 1999).

11.— Mother Preferred.

As a general rule, the mother is entitled to the custody of an infant of tender years, if she is able, financially and otherwise, to give it proper care and attention. Travis v. Travis, 282 Ky. 215 , 138 S.W.2d 336, 1940 Ky. LEXIS 147 ( Ky. 1940 ). (Decision prior to 1978 amendment of KRS 403.270 ).

Generally the mother should have custody of a child of tender years, unless she is unfit or unable to furnish a good home. Belderes v. Jones, 309 Ky. 66 , 216 S.W.2d 39, 1948 Ky. LEXIS 1069 ( Ky. 1948 ). (Decision prior to 1978 amendment of KRS 403.270 ).

A mother is entitled to the custody of a child of tender years, provided she is a person of suitable character and can make reasonably adequate provision for its well-being. Crase v. Angeli, 309 Ky. 63 , 216 S.W.2d 40, 1948 Ky. LEXIS 1070 ( Ky. 1948 ). (Decision prior to 1978 amendment of KRS 403.270 ).

Only in the most extreme cases should an infant be completely deprived of the loving care of its mother. Poland v. Poland, 312 Ky. 45 , 226 S.W.2d 314, 1950 Ky. LEXIS 571 ( Ky. 1950 ).

Other considerations being equal, a mother is better able to care for her child than are the child’s grandparents. Brown v. Fudge, 312 Ky. 494 , 228 S.W.2d 34, 1950 Ky. LEXIS 685 ( Ky. 1950 ).

Where all other things are equal, custody of a child of tender years will be given to its natural mother, but, where she is shown to be a person of loose morals, custody will not be awarded to her unless she shows her conduct has improved so as to render her a fit person to care for the child. Mays v. Mays, 313 Ky. 673 , 232 S.W.2d 1009, 1950 Ky. LEXIS 918 ( Ky. 1950 ). (Decision prior to 1978 amendment of KRS 403.270 ).

The desire of a mother that the father of her child perform his legal obligation to support the child should not militate against the mother’s desire for custody of the child. Bowman v. Bowman, 313 Ky. 806 , 233 S.W.2d 1020, 1950 Ky. LEXIS 1002 ( Ky. 1950 ).

A child’s well-being is usually fostered and developed better by awarding custody to the mother because of the nature of their relationship; therefore, a court is always loath to deprive a mother of custody of very young children, especially girls. McLemore v. McLemore, 346 S.W.2d 722, 1961 Ky. LEXIS 322 ( Ky. 1961 ). (Decision prior to 1978 amendment of KRS 403.270 ).

12.— Surviving Parent.

A surviving parent, if suited to the trust, is entitled to custody of his or her child. Mason v. Williams, 165 Ky. 331 , 176 S.W. 1171, 1915 Ky. LEXIS 529 ( Ky. 1915 ). See Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ); Walker v. Crockett, 194 Ky. 531 , 240 S.W. 35, 1922 Ky. LEXIS 191 ( Ky. 1922 ); Hampton v. Alcorn, 213 Ky. 599 , 281 S.W. 540, 1926 Ky. LEXIS 575 ( Ky. 1926 ); Moore v. Smith, 228 Ky. 286 , 14 S.W.2d 1072, 1929 Ky. LEXIS 533 ( Ky. 1929 ); Cummins v. Bird, 230 Ky. 296 , 19 S.W.2d 959, 1929 Ky. LEXIS 74 ( Ky. 1929 ); Thompson v. Childers, 231 Ky. 179 , 21 S.W.2d 247, 1929 Ky. LEXIS 241 (Ky. 1929); Matlock v. Elam, 262 Ky. 631 , 90 S.W.2d 1015, 1936 Ky. LEXIS 70 ( Ky. 1936 ).

The surviving parent is entitled to the custody of all children born of the marriage, except where such parent is unfit for that purpose, or the welfare of the child demands that the custody be denied the parent, or the parent has, by contract consistent with the child’s welfare, waived the right of custody. Altemeier v. Rachford, 291 Ky. 845 , 165 S.W.2d 848, 1942 Ky. LEXIS 332 ( Ky. 1942 ).

The parent is primarily entitled to custody of minor children except where the parent is shown to be unfit, or the placing of its custody elsewhere would better contribute to its welfare. Bard v. Bard, 295 Ky. 254 , 173 S.W.2d 569, 1943 Ky. LEXIS 190 ( Ky. 1943 ).

A surviving parent is entitled to the custody of his child if that surviving parent is a suitable person to have such care and custody, and this statutory right cannot be surrendered except by a contract in language clear and convincing. Estridge v. Taylor, 310 Ky. 684 , 221 S.W.2d 644, 1949 Ky. LEXIS 996 ( Ky. 1949 ).

The right of a surviving parent to custody of minor children is conditional upon the suitability of such parent to discharge the serious duties and responsibilities of rearing children. Shaw v. Graham, 310 S.W.2d 522, 1958 Ky. LEXIS 392 ( Ky. 1958 ).

Although subsection (1) of this section provides that a surviving parent, if suited to the trust, shall have custody of children under the age of 18, it applies with equal force to the case where one of the natural parents has abandoned the child. Raddish v. Raddish, 652 S.W.2d 668, 1983 Ky. App. LEXIS 295 (Ky. Ct. App. 1983).

13.— Wishes of Child.

The preference of the child as to its custody is to be given weight only when great doubt exists as to the proper judgment. Stapleton v. Poynter, 111 Ky. 264 , 62 S.W. 730, 23 Ky. L. Rptr. 76 , 1901 Ky. LEXIS 170 ( Ky. 1901 ). See Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ); Cummins v. Bird, 230 Ky. 296 , 19 S.W.2d 959, 1929 Ky. LEXIS 74 ( Ky. 1929 ).

In determining custody of child, welfare of child is paramount issue, and where child was 121/2 years old, his wishes would be given great weight. Bridges v. Matthews, 276 Ky. 59 , 122 S.W.2d 1021, 1938 Ky. LEXIS 531 ( Ky. 1938 ).

The expressed desire of a 13-year-old boy is entitled to great weight in determining his custody. Lewis v. Lewis, 343 S.W.2d 146, 1961 Ky. LEXIS 411 ( Ky. 1961 ).

14.— Suitability of Parent.

In determining a parent’s suitability, a court will consider moral fitness, habits, surroundings, age, financial ability, concern and affection for the child and other circumstances which would affect the welfare of the child such as the disruption of the child’s existing relationships. Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ). See Moore v. Smith, 228 Ky. 286 , 14 S.W.2d 1072, 1929 Ky. LEXIS 533 ( Ky. 1929 ); Cummins v. Bird, 230 Ky. 296 , 19 S.W.2d 959, 1929 Ky. LEXIS 74 ( Ky. 1929 ).

The burden of showing a parent’s want of suitability is on the one who would deny the parent custody upon that ground. Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ).

Evidence that a parent was formerly unsuited to have custody of his child may be rebutted by evidence of exemplary life in recent years. Vanover v. Johnson, 201 Ky. 302 , 256 S.W. 422, 1923 Ky. LEXIS 282 ( Ky. 1923 ). See Hampton v. Alcorn, 213 Ky. 599 , 281 S.W. 540, 1926 Ky. LEXIS 575 ( Ky. 1926 ); Moore v. Smith, 228 Ky. 286 , 14 S.W.2d 1072, 1929 Ky. LEXIS 533 ( Ky. 1929 ).

Mere fact that parent did not contribute to support of child is insufficient to show parent to be unsuited to have its custody. Hampton v. Alcorn, 213 Ky. 599 , 281 S.W. 540, 1926 Ky. LEXIS 575 ( Ky. 1926 ).

In determining suitability of a parent, each individual case must be determined from the facts, circumstances, and conditions in that particular case. Moore v. Smith, 228 Ky. 286 , 14 S.W.2d 1072, 1929 Ky. LEXIS 533 ( Ky. 1929 ). See Cummins v. Bird, 230 Ky. 296 , 19 S.W.2d 959, 1929 Ky. LEXIS 74 ( Ky. 1929 ).

Acts of indiscretion by a woman with a man she soon married, in the absence of evidence of promiscuity, do not brand her as an unfit person to have custody of her young children. Smith v. Lloyd, 311 Ky. 863 , 226 S.W.2d 32, 1950 Ky. LEXIS 569 ( Ky. 1950 ).

The possibility that a child may have been begotten before marriage is not a material consideration in determining the mother’s right to custody of the child where there is no other unfavorable evidence as to the mother’s fitness. Brown v. Fudge, 312 Ky. 494 , 228 S.W.2d 34, 1950 Ky. LEXIS 685 ( Ky. 1950 ).

Where a mother has committed certain indiscretions with a man she later marries, such acts do not render her unfit to care for her children. Mays v. Mays, 313 Ky. 673 , 232 S.W.2d 1009, 1950 Ky. LEXIS 918 ( Ky. 1950 ).

In determining the suitability of a parent for custody of his child, the primary consideration is the child’s welfare which necessitates a consideration of the parent’s moral fitness and habits, surroundings, age, financial ability, interest and affection for the child, and any other factors which have a bearing on the complex and responsible duty of rearing, training, and fostering a child according to its potential capacity and consistently with its individual character and needs. Crase v. Shepherd, 240 S.W.2d 548, 1951 Ky. LEXIS 968 ( Ky. 1951 ).

Parents do not have an absolute right to custody of their children; their right is conditioned on their suitability for such custody, but the burden of proving a parent unsuitable is upon the person seeking to overcome the parents’ right. Crase v. Shepherd, 240 S.W.2d 548, 1951 Ky. LEXIS 968 ( Ky. 1951 ).

The person asserting an agreement by a parent relinquishing custody of his child has the burden of proving the agreement. Bridwell v. Coomes, 250 S.W.2d 868, 1952 Ky. LEXIS 894 ( Ky. 1952 ).

In a contest between a foster parent and a natural parent who has not surrendered custody, the natural parent has the superior right of custody which must prevail unless the natural parent is not suitable, fit, or capable of making reasonably adequate provisions for the child’s well-being and the burden of proving such unfitness of the parent is on the person seeking to deprive the parent of custody. Berry v. Berry, 386 S.W.2d 951, 1965 Ky. LEXIS 528 ( Ky. 1965 ).

Where the father in a custody proceeding assumed the burden of persuasion and demonstrated his fitness for custody and the absence of detriment to the child, the trial court’s findings that the burden of proof was on the contestants to show that the father was less suited for custody was nonprejudicial. Cox v. Bramblet, 492 S.W.2d 188, 1973 Ky. LEXIS 504 ( Ky. 1973 ).

In determining parent’s fitness or unfitness to have custody, the court will take into consideration parent’s moral fitness and habits, surroundings, age, financial ability, interest and affection for the child, and any circumstances, which would be prejudicial to the best interest of the child, but the burden of showing unfitness is cast upon the one who would deny the parent custody of child upon that ground; these are the standards to be applied in determining “suitability” or its negative “unfitness,” not the narrower standards of physical and mental health, strength, good moral character and the ability to earn necessary finances. McDaniel v. Garrett, 661 S.W.2d 789, 1983 Ky. App. LEXIS 381 (Ky. Ct. App. 1983).

15.— Agreements to Relinquish.

A contract by which a parent transfers custody of a child to another person is not contrary to public policy unless it is not in the interest of the child’s welfare. Bedford v. Hamilton, 153 Ky. 429 , 155 S.W. 1128, 1913 Ky. LEXIS 852 ( Ky. 1913 ). See Edleson v. Edleson, 179 Ky. 300 , 200 S.W. 625, 1918 Ky. LEXIS 223 ( Ky. 1918 ); Scott v. Kirkpatrick, 205 Ky. 700 , 266 S.W. 390, 1924 Ky. LEXIS 218 ( Ky. 1924 ); Chance v. Pigneguy, 212 Ky. 430 , 279 S.W. 640, 1926 Ky. LEXIS 163 ( Ky. 1926 ); Thompson v. Childers, 231 Ky. 179 , 21 S.W.2d 247, 1929 Ky. LEXIS 241 ( Ky. 1929 ); Cashen v. Riney, 239 Ky. 779 , 40 S.W.2d 339, 1931 Ky. LEXIS 860 ( Ky. 1931 ), limited, Miller v. Miller, 459 S.W.2d 81, 1970 Ky. LEXIS 109 ( Ky. 1970 ).

One parent cannot by will or contract give a child to a third person so as to deprive the other parent of his or her right of custody if the other parent be a fit person to have such custody. Mason v. Williams, 165 Ky. 331 , 176 S.W. 1171, 1915 Ky. LEXIS 529 ( Ky. 1915 ). See Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ); Matlock v. Elam, 262 Ky. 631 , 90 S.W.2d 1015, 1936 Ky. LEXIS 70 ( Ky. 1936 ); Addison v. Allen, 293 Ky. 325 , 168 S.W.2d 1005, 1943 Ky. LEXIS 611 ( Ky. 1943 ).

Agreement by one parent upon death of the other to give custody of child to strangers will not be upheld where the meaning of the language employed in the agreement is not unequivocal or the evidence is not clear and convincing or the act of relinquishment is performed under circumstances of temporary distress or discouragement. Ferguson v. Klein, 273 Ky. 473 , 116 S.W.2d 950, 1938 Ky. LEXIS 646 ( Ky. 1938 ).

Agreements for the custody of children are enforceable between the parties when not prejudicial to the welfare of the children. Staggs v. Sparks, 286 Ky. 398 , 150 S.W.2d 690, 1941 Ky. LEXIS 251 ( Ky. 1941 ).

The law permits parents by parol agreement to permanently relinquish custody of their children to others but, before such an alleged agreement will be sustained and enforced by the courts, the testimony substantiating the agreement must be clear and convincing. Lewis v. Lewis, 295 Ky. 258 , 174 S.W.2d 294, 1943 Ky. LEXIS 217 ( Ky. 1943 ).

A contract by a parent transferring custody of a child to others is not contrary to public policy. Fraze v. Grundy, 300 Ky. 613 , 189 S.W.2d 265, 1945 Ky. LEXIS 552 ( Ky. 1945 ).

As long as the persons to whom the custody of a child has been surrendered by contract faithfully perform the duties the parent should have performed, the parent is estopped from repudiating his agreement. Fraze v. Grundy, 300 Ky. 613 , 189 S.W.2d 265, 1945 Ky. LEXIS 552 ( Ky. 1945 ).

A surviving parent who voluntarily, freely, and uninfluenced agrees to and does consign the custody of his infant child to another who is capable of performing the duties to correctly rear him and which transaction he continues to reaffirm and acquiesce in, thereby becomes deprived of the superior right given to him by this section. Rose v. Leford, 306 Ky. 662 , 208 S.W.2d 957, 1948 Ky. LEXIS 624 ( Ky. 1948 ).

A contract by which a parent releases the custody of a child to another, including an institution, and agrees not to reclaim the child is valid only to the extent that the parent surrenders the superior right to custody vested in him by the statutes, and it does not prevent a court from determining what is best for the welfare of the child in a habeas corpus proceeding. Smith v. Lloyd, 311 Ky. 863 , 226 S.W.2d 32, 1950 Ky. LEXIS 569 ( Ky. 1950 ).

In a habeas corpus action by a parent to regain custody of her children, which she had surrendered by contract, the addition partakes of a suit in equity and is considered to be an action in rem with the child as the res and therefore a suit on the contract is not required. Smith v. Lloyd, 311 Ky. 863 , 226 S.W.2d 32, 1950 Ky. LEXIS 569 ( Ky. 1950 ).

A contract for surrender of parental rights must be established by clear and convincing evidence. Crase v. Shepherd, 240 S.W.2d 548, 1951 Ky. LEXIS 968 ( Ky. 1951 ).

In determining the custody of a child, the best interests of the child are controlling so that a parent may overcome an agreement forfeiting his statutorily superior right to custody by showing that the best interest of the child would be served by him having custody, and a nonparent, in the absence of such an agreement, can overcome the statutory right of the parent by showing the parent’s custody to be contrary to the child’s best interest. Bridwell v. Coomes, 250 S.W.2d 868, 1952 Ky. LEXIS 894 ( Ky. 1952 ).

Before applying the best interests of the child standard that applies between parents of KRS 403.270 in deciding custody, in a case where maternal grandmother jointly petitioned for custody with her daughter and daughter admitted that she was not at present suited for an award of custody but supported her mother in their joint petition for custody to the exclusion of the child’s natural father, the trial court must first find the father had made a waiver of his superior right to custody under this section. Greathouse v. Shreve, 891 S.W.2d 387, 1995 Ky. LEXIS 9 ( Ky. 1995 ).

Evidence constituting proof that a parent has waived his or her superior custodial right to a child when that right is challenged by a non-parent, requires proof of a “knowing and voluntary surrender or relinquishment of a known right,” and such proof must be clear and convincing. Although no formal or written waiver is required, statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof. Greathouse v. Shreve, 891 S.W.2d 387, 1995 Ky. LEXIS 9 ( Ky. 1995 ).

16.— — Not Binding.

An agreement by a parent which gives custody of a child to another is not binding where the language is ambiguous and the evidence as to the existence of the agreement is unclear, or where the agreement was made under a situation of distress or discouragement. Turner v. Lee, 291 Ky. 395 , 164 S.W.2d 954, 1942 Ky. LEXIS 247 ( Ky. 1942 ).

Contract by which young mother purported to give custody of infant daughter to paternal grandparents was not conclusive as to right of custody, welfare of child being the paramount consideration. Creech v. Lewis, 307 Ky. 799 , 211 S.W.2d 812, 1948 Ky. LEXIS 785 ( Ky. 1948 ).

Agreements whereby a surviving parent relinquishes custody of his children will not be upheld where the meaning of the language employed is not unequivocal and the evidence as to the existence of the agreement is not clear and convincing, or where the act of relinquishment is performed under acts of temporary distress or discouragement. Estridge v. Taylor, 310 Ky. 684 , 221 S.W.2d 644, 1949 Ky. LEXIS 996 ( Ky. 1949 ).

Where a child stays with foster parents for over four years while its mother is mentally ill and there is no conversation or understanding as to the final disposition of the child, this is not sufficient to establish an agreement by which the natural parents surrendered their right as such to custody of the child. Crase v. Shepherd, 240 S.W.2d 548, 1951 Ky. LEXIS 968 ( Ky. 1951 ).

Where a contract for surrender of parental rights is made in circumstances of temporary distress or discouragement, it will not be upheld. Crase v. Shepherd, 240 S.W.2d 548, 1951 Ky. LEXIS 968 ( Ky. 1951 ).

An agreement between parents that should either of them file suit for divorce, the husband would be given custody of the children, does not prevent the court from awarding custody to the mother in her action against the paternal grandparents, where both parties are fit to have custody, because the agreement did not contemplate custody by the grandparents and, regardless of any agreement, the court will look primarily to the welfare of the children in determining their custody. Girdler v. Girdler, 258 S.W.2d 725, 1953 Ky. LEXIS 883 ( Ky. 1953 ).

Where the parents of children are separated but not divorced and there is an action to determine custody as between the mother and the paternal grandparents, both of whom are fit for such custody, a reconciliation agreement between the parents executed prior to the birth of two of the three children involved by which the mother agreed to relinquish custody of the children, if she was not a good mother, was not longer effective due to changes in the circumstances. Girdler v. Girdler, 258 S.W.2d 725, 1953 Ky. LEXIS 883 ( Ky. 1953 ).

The Court of Appeals is not inclined to uphold agreements by parents relinquishing custody of their children where the meaning of the language employed is not unequivocal and the evidence as to its existence is not clear and convincing or where the relinquishment is performed during a period of temporary distress or discouragement. Riggle v. Rhoten, 319 S.W.2d 472, 1958 Ky. LEXIS 172 ( Ky. 1958 ).

Where the parties to a divorce agreed that the husband’s parents would have custody of their child, the agreement was incorporated into the divorce decree, both parties had remarried, the husband had shown no desire to have the son live with him, and the wife sought a modification to give her custody, the trial court determination that the mother’s superior right to custody was not forfeited by the agreement, because it was intended to be only temporary and was made while in a state of discouragement, was proper and the award of custody to the mother raised no more than a doubt as to its correctness and, therefore, was affirmed. Wells v. Wells, 412 S.W.2d 568, 1967 Ky. LEXIS 428 ( Ky. 1967 ).

17.— — Attempt to Rescind.

Contract in which mother promised not to try to reclaim children from children’s home was valid, but only to extent that it destroyed mother’s superior statutory right to custody; in suit by mother the court would look primarily to children’s welfare in awarding custody. Galilean Children's Home, Inc. v. Ball, 308 Ky. 319 , 214 S.W.2d 403, 1948 Ky. LEXIS 933 ( Ky. 1948 ).

A parent who voluntarily agrees to surrender the custody of his child to another who is capable of properly caring for it cannot regain possession of the child without showing it would be for its best interests, since it is the duty of the courts in such instances to weigh the primary and superior right of a parent as qualified by an agreement to surrender custody of an infant child as against the child’s welfare. Belderes v. Jones, 309 Ky. 66 , 216 S.W.2d 39, 1948 Ky. LEXIS 1069 ( Ky. 1948 ).

Where a parent has consigned the care of children to their grandparents, who are suited for the trust, he or she may not take it away without first convincing the court that it would be for the best interests of the child that it be done. Shaw v. Graham, 310 S.W.2d 522, 1958 Ky. LEXIS 392 ( Ky. 1958 ).

Where a parent has relinquished custody of his child by contract, the parent must prove that the change of custody would promote the welfare of the child in order to recover such custody. Higgason v. Henry, 339 S.W.2d 929, 1960 Ky. LEXIS 490 ( Ky. 1960 ).

18.— Awarded to Father.

That a father left the state with the understanding that his wife and child were to follow him, which they did not do, and that he did not visit them for several years is not an abandonment such as forfeits his right to the child’s custody after the wife’s death. Rallihan v. Motschmann, 179 Ky. 180 , 200 S.W. 358, 1918 Ky. LEXIS 188 ( Ky. 1918 ).

Upon wife’s death, husband is entitled to custody of minor child, if he is able to support child, and custody will not be awarded to stranger merely because of supposed advantage to child. Ferguson v. Klein, 273 Ky. 473 , 116 S.W.2d 950, 1938 Ky. LEXIS 646 ( Ky. 1938 ).

Where the surviving husband placed his child in the custody of a cousin, contributed greatly to the child’s support, attempted twice in the two years to regain custody and was of good character, he was entitled to custody where evidence as to the original custody agreement was conflicting. Turner v. Lee, 291 Ky. 395 , 164 S.W.2d 954, 1942 Ky. LEXIS 247 ( Ky. 1942 ).

Where father was sober, industrious and of good habits, and would provide suitable home for his infant daughter either with his married sister or with his parents, the mere fact that he possessed no property was not grounds for depriving him of custody of the child and awarding custody to his deceased wife’s parents. Addison v. Allen, 293 Ky. 325 , 168 S.W.2d 1005, 1943 Ky. LEXIS 611 ( Ky. 1943 ).

A father, who was a suitable person to have such custody, was entitled to custody of minor children as opposed to mother-in-law, who was a widow, to whom the father had relinquished children on his wife’s death and who, at the present time, had no means of support other than contributions from two sons. Estridge v. Taylor, 310 Ky. 684 , 221 S.W.2d 644, 1949 Ky. LEXIS 996 ( Ky. 1949 ).

Where each parent and the maternal grandmother, with whom the child stayed for most of the six years prior to this action for modification while the mother had custody under the divorce decree, could furnish a good home for the child, the mother had shown no desire for the child to live with her, the father had shown an interest in the child and a desire to have her with him since his release from military service, and the child was suffering from the effects of emotional insecurity, the chancellor improperly awarded custody to the grandmother and the father should have been given custody with provision for the mother to have the child during the summer, if she so desired. Whalen v. Boles, 314 Ky. 817 , 236 S.W.2d 885, 1951 Ky. LEXIS 708 ( Ky. 1951 ).

Where evidence indicated father of children had a good reputation and only evidence against him related principally to what children’s grandparents regarded as mistreatment of his wife prior to her death, father was entitled to custody of children as against their maternal grandmother. Montgomery v. Abel, 239 S.W.2d 60, 1951 Ky. LEXIS 839 ( Ky. 1951 ).

Where the adult son of divorced parents was unable to support himself, the father had expressed a willingness and desire to take the son into his home to care for him, and there was nothing to indicate that the son could not be cared for in his father’s home as effectively as in the mother’s home, the divorced father would be permitted to take son into his home, and no award for future support would be made against the father as long as he was willing and able to support his son in his own home. Williams v. West, 258 S.W.2d 468, 1953 Ky. LEXIS 835 ( Ky. 1953 ).

Father has a prima facie right under this section to custody of his children and does not have burden of proving his suitability when it is not placed in issue and mother is proven to be unfit. Goff v. Goff, 323 S.W.2d 209, 1959 Ky. LEXIS 322 ( Ky. 1959 ).

Where father had given temporary custody of his three girls to their maternal grandmother after the death of his wife until he could get settled, in his habeas corpus proceeding he established that he was fit for the trust, that his home offered superior educational opportunities, and that, due to the grandmother’s age, she could not care for the children many more years, the court properly awarded custody of the children to the father, although the two older children expressed a desire to stay with their grandmother. Pickett v. Farrow, 340 S.W.2d 462, 1960 Ky. LEXIS 45 ( Ky. 1960 ).

Where husband was granted a divorce, had cared for the parties’ nearly blind seven-year-old child very well during the three years he had been separated from his wife, and had a good home for the child and the wife had no suitable home, showed no indication of settling down or providing a home for the child, had visited the child infrequently, and some evidence indicated that she had been running around with a married man, the trial court did not abuse its broad discretion in granting the husband custody of the child. Harper v. Harper, 344 S.W.2d 616, 1961 Ky. LEXIS 241 ( Ky. 1961 ).

Where, in a contest between the father and the maternal grandparents of two children, the chancellor made no determination that the father was unfit for the trust and under the evidence no such determination could have been made, the father was entitled to custody. Reynardus v. Garcia, 437 S.W.2d 740, 1968 Ky. LEXIS 169 ( Ky. 1968 ).

19.— Awarded to Mother.

Mere fact that parent roomed for ten days in a house of ill repute, not knowing its reputation, and departed as soon as its reputation became known to her did not prove her unsuited to have custody of her child. Scott v. Kirkpatrick, 205 Ky. 700 , 266 S.W. 390, 1924 Ky. LEXIS 218 ( Ky. 1924 ).

Where father and mother were separated, and there was no evidence that mother was an unsuitable person, she was entitled to custody of infant daughter. Fugate v. Fugate, 291 Ky. 266 , 163 S.W.2d 451, 1942 Ky. LEXIS 198 ( Ky. 1942 ). (Decision prior to 1978 amendment of KRS 403.270 ).

Where there was no evidence that mother’s character and home were unfit, fact that she had left child with paternal grandparents during period she was unable to support child, and had not made any effort prior to husband’s death to set aside divorce decree awarding custody to him, did not justify denial of custody to mother. Altemeier v. Rachford, 291 Ky. 845 , 165 S.W.2d 848, 1942 Ky. LEXIS 332 ( Ky. 1942 ).

Where the mother agreed to allow adoption of her second illegitimate child by a married couple, who were able to furnish a good home for it, in exchange for their caring for her prior to and during the child’s birth and paying the expenses thereof, the chancellor did not err in awarding custody of the child to the mother in her habeas corpus action which she brought when the child was nine months old and she had married the father of her first illegitimate child, was able to support the child and furnish a good home, expressed a willingness to repay the amounts expended by the couple, and was not shown to have been guilty of any misconduct since the birth of the child in question. Crase v. Angeli, 309 Ky. 63 , 216 S.W.2d 40, 1948 Ky. LEXIS 1070 ( Ky. 1948 ).

Where, in habeas corpus action by the mother for custody of her children, the woman having custody says that she is willing to return them to the mother if she is paid the amount due her for caring for the children and there is no showing that the mother is in any way unfit or unable to provide a proper home for the children, the mother is entitled to custody immediately. Kavanaugh v. Duncan, 310 Ky. 643 , 221 S.W.2d 628, 1949 Ky. LEXIS 990 ( Ky. 1949 ).

Where mother of child shot and killed father in self-defense and there is some disputed evidence reflecting adversely on her moral character, she is not proven unfit to an extent justifying completely denying her the right to share the custody of her child. Poland v. Poland, 312 Ky. 45 , 226 S.W.2d 314, 1950 Ky. LEXIS 571 ( Ky. 1950 ).

Where second husband of mother of four-year-old boy by divorced first husband made good wages, lived with family on country place which he owned and promised to take care of boy the same as he and his wife’s own one-year-old son, in the absence of a showing that the mother was an unfit person to have the boy’s care and custody, the mother was entitled to his custody as against the paternal grandparents. Brown v. Fudge, 312 Ky. 494 , 228 S.W.2d 34, 1950 Ky. LEXIS 685 ( Ky. 1950 ).

Where the mother has committed indiscretions which did not constitute such lewd and lascivious conduct as would render her unfit to care for her children and she is able to provide a good home for them, she was awarded their custody in preference to their grandfather and legal guardian, who would place them in an orphanage. Mays v. Mays, 313 Ky. 673 , 232 S.W.2d 1009, 1950 Ky. LEXIS 918 ( Ky. 1950 ).

In a true habeas corpus action by a mother to regain custody of her children from their paternal grandmother, where the grandmother made no showing of any right to such custody, the court properly awarded custody to the mother because she had a superior statutory right as a parent to their custody. Valentine v. Goodin, 338 S.W.2d 702, 1960 Ky. LEXIS 412 ( Ky. 1960 ).

Where the mother was a fit person and the welfare of the children would be best served by the mother’s custody, the court properly awarded her custody in preference to the maternal grandmother. Jones v. Mow, 341 S.W.2d 260, 1960 Ky. LEXIS 77 ( Ky. 1960 ).

20.— Awarded to Others.

Where father, after death of mother, left child with maternal grandmother, who cared for child for several years and gave him good home, custody would not be awarded father against child’s will, although father was able to support child properly. Bridges v. Matthews, 276 Ky. 59 , 122 S.W.2d 1021, 1938 Ky. LEXIS 531 ( Ky. 1938 ).

Where child whose health was poor had been in custody of paternal grandparents for more than ten years, pursuant to agreement with mother and judgment of court in divorce action, child’s welfare justified continuation of grandparents’ custody, notwithstanding that mother’s home afforded better educational and social advantages, since grandparents’ home was better suited to furnish peace and quiet necessary to preserve child’s health. Noble v. Noble, 292 Ky. 433 , 166 S.W.2d 991, 1942 Ky. LEXIS 118 ( Ky. 1942 ).

Where mother left 13-month-old child with a couple, joined a carnival, and had little, if any, contact with the child and the couple furnished the child a good home, the chancellor properly denied the mother’s habeas corpus proceeding for custody of the child, who was then nine years old and expressed a desire to stay where she was. Belderes v. Jones, 309 Ky. 66 , 216 S.W.2d 39, 1948 Ky. LEXIS 1069 ( Ky. 1948 ).

In a custody suit between the mother and paternal grandparents of a child where the mother is financially able to furnish only a room or small apartment as a home, would have to leave the child with others while working, and is of questionable fitness, while the grandparents are both fit and able to care for the child very well, granting primary custody to the grandparents subject to the mother’s right to custody for three months each year was proper. Poland v. Poland, 312 Ky. 45 , 226 S.W.2d 314, 1950 Ky. LEXIS 571 ( Ky. 1950 ).

Where grandparents were properly granted primary custody of a child, the chancellor erred in allowing the mother to visit the child only in the grandparents’ home, because, due to the animosity between the parties, this effectively denied the mother any right to visit the child under favorable circumstances, and he should have granted the mother custody of the child during three months of the year with the right to remove the child from the county upon execution of a reasonable bond for its return. Poland v. Poland, 312 Ky. 45 , 226 S.W.2d 314, 1950 Ky. LEXIS 571 ( Ky. 1950 ).

In a suit by natural parents for custody of their five-year-old son, who had lived with another couple for over four years while the mother was mentally ill, where the parents had a large family which the father was, at best, barely able to support, the mother had only recently resumed her duties as such, there was no contribution to his support and the father visited him only once during this period, the natural parents lived in a one-room house with no conveniences, and the foster parents were able and willing to furnish a good home for him, the award of custody to the natural parents was improper. Crase v. Shepherd, 240 S.W.2d 548, 1951 Ky. LEXIS 968 ( Ky. 1951 ).

Where both parties were fit to have custody of an 11-year-old girl, the mother was properly denied custody in favor of the grandfather with whom the child had lived since being virtually abandoned by her mother and with whom the child wished to remain. Runions v. Powers, 258 S.W.2d 514, 1953 Ky. LEXIS 858 ( Ky. 1953 ).

Where divorce decree awarded custody of a girl not yet two years old to her mother, the mother immediately left the girl in the care of her maternal grandmother, the father had shown no interest in the girl and had paid nothing on her support until a criminal action was brought against him, both the mother and father have remarried and have comfortable homes but the mother does not wish to disturb the relationship between the girl and her grandmother, and the grandmother furnishes the girl an adequate home, the chancellor properly denied the father’s request for custody of the girl. Middleton v. Middleton, 261 S.W.2d 640, 1953 Ky. LEXIS 1039 ( Ky. 1953 ).

Where, within a year prior to hearing, mother of ten-year-old boy was guilty of immoral conduct, which was not necessarily sufficient to render her permanently unfit to have custody of the boy, and had remarried to an army officer who would soon go overseas, the boy had expressed a desire to remain with his maternal grandparents, and the grandparents were able and anxious to provide a good home for the boy, the court erred in granting custody to the mother so that she could take him overseas. Hall v. Fehler, 261 S.W.2d 646, 1953 Ky. LEXIS 1042 ( Ky. 1953 ).

Where a mother had been granted a divorce and custody of her children by default in Indiana while the children were domiciled in Kentucky, and she had been guilty of indiscretions with a man she later married, had taken little interest in her children and had acquiesced to their paternal grandmother caring for them, the chancellor did not abuse his discretion in refusing the mother full custody although both the homes were fit for the children. Shaw v. Graham, 310 S.W.2d 522, 1958 Ky. LEXIS 392 ( Ky. 1958 ).

Although the uncorroborated testimony of the mother’s former husband would not usually be sufficient to sustain a finding that she was unfit, due to moral delinquency, to have custody of her child, where she made no attempt by positive proof to show her fitness or the suitability of her home, the award of custody to the paternal grandparents with whom the child was living was affirmed. Riggle v. Rhoten, 319 S.W.2d 472, 1958 Ky. LEXIS 172 ( Ky. 1958 ).

Where custody of a child was awarded to its maternal grandparents and the evidence showed that the child was well cared for by the grandparents, the chancellor did not abuse his discretion in refusing the father’s motion for a modification giving him custody. Bonilla v. Bonilla, 335 S.W.2d 572, 1960 Ky. LEXIS 273 ( Ky. 1960 ).

Where the mother of an illegitimate child agreed to its adoption, the prospective adoptive parents took the child and paid the mother’s hospital bill a few days after the child’s birth, the adoption failed because the mother’s signature was not notarized on the consent to adoption, the mother brought an action to recover custody of the child in which she proved that she was not unfit for the child’s custody although she had been married and divorced twice, and the child was receiving very good care from the foster parents, the chancellor properly found that such a change in the child’s custody would not promote its welfare and denied the mother custody. Higgason v. Henry, 339 S.W.2d 929, 1960 Ky. LEXIS 490 ( Ky. 1960 ).

Where 13-year-old boy had lived with his paternal grandparents continuously since he was three months old, had received very good care, and expressed a desire to remain with the grandparents, the chancellor did not abuse his discretion in denying the mother custody, although the mother desired to have her son while he was with the grandparents but had been unable to furnish a suitable home for him previously, and the mother’s home offered certain conveniences and educational advantages not available in the grandparents’ home. Lewis v. Lewis, 343 S.W.2d 146, 1961 Ky. LEXIS 411 ( Ky. 1961 ).

Where, after the death of a child’s father, its mother had an illegitimate child, frequently had male guests at her home overnight, gave frequent unseemly parties, and had a generally bad moral reputation in the community, the trial court did not abuse its discretion in awarding custody of the child to its father’s aunt and uncle in preference to its mother. Roberson v. Wells, 355 S.W.2d 675, 1962 Ky. LEXIS 78 ( Ky. 1962 ).

Where, after the death of both its parents who were domiciled in Indiana, a child’s paternal aunt was appointed its guardian in that state pursuant to surviving parent’s will, aunt was entitled to immediate custody as against grandparents who obtained actual custody when child was brought to Kentucky for father’s funeral. Walden v. Johnson, 417 S.W.2d 220, 1967 Ky. LEXIS 246 ( Ky. 1967 ).

The natural mother was not entitled to custody of a 13-year-old child upon the death of the natural father where the child had resided with father and grandparents for over 10 years and had not seen his mother for over two years. Wynn v. Wynn, 689 S.W.2d 608, 1985 Ky. App. LEXIS 535 (Ky. Ct. App. 1985).

21.— Modification of Award.

In a child custody case, a court of a state other than that which made the original award may change the award upon facts which have arisen subsequent to the first decree, if such court has jurisdiction of the parties and the subject matter at the time it attempts to exercise its power. Frick v. Kaufman, 310 Ky. 829 , 222 S.W.2d 185, 1949 Ky. LEXIS 1016 ( Ky. 1949 ).

An order awarding the custody of a child is final, although, on a showing of changed conditions, the question of modification may be entertained by the same court or by any court having jurisdiction of the person of the child at the time the modification is sought. Marlar v. Howard, 312 Ky. 209 , 226 S.W.2d 755, 1949 Ky. LEXIS 1259 ( Ky. 1949 ).

Where a court of another state having jurisdiction of certain children determines their custody, the children subsequently become residents of Kentucky without violation of the original order, and the original court does not retain jurisdiction by either statute or specific edict, it is without jurisdiction as to the custody of the children after they become residents of this state and a purported modification of the original custody award is void. Marlar v. Howard, 312 Ky. 209 , 226 S.W.2d 755, 1949 Ky. LEXIS 1259 ( Ky. 1949 ).

After death of former wife who was granted custody of child, the husband has the right to petition the court for a modification of the custody award to give him custody and he is entitled to a hearing on said petition. Cupp v. Cupp, 302 S.W.2d 371, 1957 Ky. LEXIS 188 ( Ky. 1957 ).

Where father petitioned court for a modification of a divorce decree to give him custody of his child after the death of his former wife, the court erred in denying relief upon a confidential report of a welfare worker without giving the father an opportunity to be heard and without taking evidence. Cupp v. Cupp, 302 S.W.2d 371, 1957 Ky. LEXIS 188 ( Ky. 1957 ).

Where a court having jurisdiction has awarded custody of a child to someone other than its parent, the parent seeking to regain custody of the child has the burden of proving that the change will promote the welfare of the child. Bonilla v. Bonilla, 335 S.W.2d 572, 1960 Ky. LEXIS 273 ( Ky. 1960 ).

A judgment of another state awarding custody of a child to its grandparents, who were residents of that state, for nine months of the year and to its mother, who was a resident of this state, for the other three months was entitled to full faith and credit, so that an action pending in this state for modification of the custody did not defeat the grandparents’ right to immediate possession of the child at the expiration of the mother’s three-month period. Burk v. Burk, 356 S.W.2d 40, 1962 Ky. LEXIS 90 ( Ky. 1962 ).

22.Duty to Support.

The right of infants to support by their father cannot be prejudiced by any contract made by a parent or between the parents. Edleson v. Edleson, 179 Ky. 300 , 200 S.W. 625, 1918 Ky. LEXIS 223 ( Ky. 1918 ). See Hayden v. Hayden, 215 Ky. 299 , 284 S.W. 1073, 1926 Ky. LEXIS 705 ( Ky. 1926 ); Singleton v. Singleton, 217 Ky. 38 , 288 S.W. 1029, 1926 Ky. LEXIS 15 ( Ky. 1926 ); Thompson v. Childers, 231 Ky. 179 , 21 S.W.2d 247, 1929 Ky. LEXIS 241 ( Ky. 1929 ); Bishop v. Bishop, 238 Ky. 702 , 38 S.W.2d 657, 1931 Ky. LEXIS 292 ( Ky. 1931 ); Wilson v. Wilson, 251 Ky. 522 , 65 S.W.2d 694, 1933 Ky. LEXIS 919 ( Ky. 1933 ), overruled in part, Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

The duty of the father to support his children is a continuing one, and fact that his wife abandoned him, taking the children with her, does not excuse a failure to perform such duty. Commonwealth v. Donovan, 187 Ky. 779 , 220 S.W. 1081, 1920 Ky. LEXIS 204 ( Ky. 1920 ). See Barker v. Commonwealth, 211 Ky. 540 , 277 S.W. 840, 1925 Ky. LEXIS 917 ( Ky. 1925 ).

The liability of a father for the debts of his child ceases when it becomes of age, unless at such time it is and continues to be unable physically or mentally to support itself. Breuer v. Dowden, 207 Ky. 12 , 268 S.W. 541, 1925 Ky. LEXIS 2 ( Ky. 1925 ).

The primary duty to support and maintain a child rests upon its father. Parks v. Parks, 209 Ky. 127 , 272 S.W. 419, 1925 Ky. LEXIS 442 ( Ky. 1925 ). See Hamilton v. Preston, 166 Ky. 61 , 178 S.W. 1146, 1915 Ky. LEXIS 630 ( Ky. 1915 ); Webb v. Commonwealth, 237 Ky. 141 , 35 S.W.2d 14, 1931 Ky. LEXIS 567 ( Ky. 1931 ).

The parents are bound to educate, maintain and support their infant children. Cashen v. Riney, 239 Ky. 779 , 40 S.W.2d 339, 1931 Ky. LEXIS 860 ( Ky. 1931 ), limited, Miller v. Miller, 459 S.W.2d 81, 1970 Ky. LEXIS 109 ( Ky. 1970 ). See Webb v. Commonwealth, 237 Ky. 141 , 35 S.W.2d 14, 1931 Ky. LEXIS 567 ( Ky. 1931 ).

A father is liable for the funeral expenses of his children. Colovos' Adm'r v. Gouvas, 269 Ky. 752 , 108 S.W.2d 820, 1937 Ky. LEXIS 671 ( Ky. 1937 ).

The mother’s reputation or character, or what he believes it to be, does not affect the father’s liability to support his children. De Long v. De Long, 271 Ky. 815 , 113 S.W.2d 455, 1938 Ky. LEXIS 62 ( Ky. 1938 ).

Where a husband is insane, the wife has a right to expend his funds for support of their minor children. Flynn v. Jones, 312 Ky. 41 , 226 S.W.2d 339, 1950 Ky. LEXIS 581 ( Ky. 1950 ).

A father is responsible for the support of his child regardless of whether he or the mother has the custody. Bowman v. Bowman, 313 Ky. 806 , 233 S.W.2d 1020, 1950 Ky. LEXIS 1002 ( Ky. 1950 ).

Where divorced mother of a dependent adult son had paid extraordinary expenses of the son before he reached 21 and had expended additional sums caring for him after he reached majority, the chancellor properly allowed her full recovery of these amounts against the boy’s father. Williams v. West, 258 S.W.2d 468, 1953 Ky. LEXIS 835 ( Ky. 1953 ).

A father is not required to give his child a college education or to support an adult child capable of supporting himself, but he is ordinarily required to support a minor child unless the particular conditions justify a court in relieving him of such responsibility before the child reaches majority. Clark v. Graves, 282 S.W.2d 146, 1955 Ky. LEXIS 232 ( Ky. 1955 ).

Where a father claims he is unable to support his children, the burden of proof of this assertion rests on him. Department of Economic Secur., etc. v. Mills, 391 S.W.2d 363, 1965 Ky. LEXIS 296 ( Ky. 1965 ), limited, Miller v. Miller, 459 S.W.2d 81, 1970 Ky. LEXIS 109 ( Ky. 1970 ).

Pursuant to KRS 403.213 and 405.020(1), the father was not entitled to retroactive automatic modification of his child support obligation based on the emancipation of fewer than all his children covered by the prevailing support order; instead, the father had a duty to file a motion requesting the court to modify his child support obligation. Bennett v. Bennett, 2011 Ky. App. LEXIS 106 (Ky. Ct. App. June 10, 2011).

Circuit court properly affirmed a district court's entry of summary judgment in favor of a hospital in its collection action against a father because his brief did not contain a single reference to the record supportive of his arguments, the constitutionality of a support statute had no foreseeable application to him, his failure to implead the mother rendered him the sole potentially responsible party before the court, and he relied solely upon his bare assertions and arguments. Smothers v. Baptist Hosp. East, 468 S.W.3d 878, 2015 Ky. App. LEXIS 93 (Ky. Ct. App. 2015).

23.— Child Has Own Estate.

A father is not obligated to support his child where the child has an estate sufficient for its maintenance. Clay's Guardian v. Clay, 87 S.W. 807, 27 Ky. L. Rptr. 1020 (1905).

While parent is presumably bound to support his infant children without charge upon their estate, yet if parent is poor, and the estate of the children is more justly able to bear the expense of their maintenance and education, the parent may recover for supporting them. Funk's Guardian v. Funk, 130 Ky. 354 , 113 S.W. 419, 1908 Ky. LEXIS 274 ( Ky. 1908 ). See Hedges v. Hedges, 73 S.W. 1112, 24 Ky. L. Rptr. 2220 (1903); Harper v. Payne, 73 S.W. 1123, 24 Ky. L. Rptr. 2301 , 1903 Ky. LEXIS 339 (Ky. Ct. App. 1903).

24.— Tort Liability.

In absence of a contract, there being no legal obligation to support a child past the age of 18, the negligence of a son who was over 18 in operating the family car was not imputed to the father under the family purpose doctrine. Keeney v. Smith, 521 S.W.2d 242, 1975 Ky. LEXIS 152 ( Ky. 1975 ).

25.— Handicapped Child.

In the absence of a written agreement by the parties in a dissolution proceeding or express provision in the decree of dissolution, KRS 403.250(3) (see now KRS 403.212(3)) terminates the obligation of a parent to support a child, only upon the child’s emancipation; as to a child who is not handicapped, subsection (1) of this section mandates that emancipation, occurs when such a child becomes 18 years of age, however, for a severely handicapped child, subsection (2) of this section is controlling and provides that a wholly dependent child is not emancipated by operation of law at the time at which he becomes 18 years of age. Thus, under KRS 403.250(3) (see now KRS 403.212(3)) and subsection (2) of this section, the circuit court retained and continued to retain jurisdiction over the support provisions of its decree of dissolution as they affected the parties’ wholly dependent handicapped child. Abbott v. Abbott, 673 S.W.2d 723, 1983 Ky. App. LEXIS 407 (Ky. Ct. App. 1983).

Family Court’s finding that divorced parties’ adult daughter remained wholly dependent upon her parents for financial support and other assistance, as contemplated by KRS 405.020(2), was not clearly erroneous as defined in CR 52.01. The daughter was a determined, hard-working young woman; through the care and support of her mother and her immediate community, she was able to perform at a level that would ordinarily exceed expectations in some respects. Nelson v. Nelson, 287 S.W.3d 667, 2009 Ky. App. LEXIS 60 (Ky. Ct. App. 2009).

Family Court’s order requiring a former husband to continue paying for an adult daughter’s financial support was not error: (1) the daughter’s status as a wholly dependent person was known to the parties at the time of the divorce; (2) the settlement agreement reflected the parties’ intention to encourage their daughter to reach a degree of self-sufficiency; (3) the agreement was executed within the context of an anticipated award of social security insurance benefits; (3) even if these expected benefits had been awarded, the parties acknowledged in their agreement that it would likely be necessary for each of them to contribute to her support; and (4) when the anticipated award was not made, the circumstances surrounding the daughter’s need for support were altered. Nelson v. Nelson, 287 S.W.3d 667, 2009 Ky. App. LEXIS 60 (Ky. Ct. App. 2009).

26.In Loco Parentis.

One who stands to a child in loco parentis has the same rights and duties during the continuance of that relationship as the parent. Cashen v. Riney, 239 Ky. 779 , 40 S.W.2d 339, 1931 Ky. LEXIS 860 ( Ky. 1931 ), limited, Miller v. Miller, 459 S.W.2d 81, 1970 Ky. LEXIS 109 ( Ky. 1970 ). See Strangway v. Allen, 194 Ky. 681 , 240 S.W. 384, 1922 Ky. LEXIS 230 ( Ky. 1922 ).

One who stands in loco parentis is obligated to support and educate the child and is involved in the reciprocal rights and obligations of parent and child. Rudd v. Fineberg's Trustee, 277 Ky. 505 , 126 S.W.2d 1102, 1939 Ky. LEXIS 701 ( Ky. 1939 ).

27.Remarriage of Parents.

Remarriage of divorced parents restores them to all their former rights over their children. Cain v. Garner, 169 Ky. 633 , 185 S.W. 122, 1916 Ky. LEXIS 769 ( Ky. 1916 ) ( Ky. 1916 ).

28.Contract.

In a wrongful death case against a nursing home, an arbitration agreement was not valid because parents could not enter a contract on behalf of their disabled daughter, there was no actual authority on the part of the parents to enter into a contract on behalf of the daughter, a signatory was not a guardian of the disabled adult, and the parents could not appoint the signatory as a power of attorney; even though the parents had the right to make health care decisions under KRS 311.631(1), entering into an arbitration agreement was not a health care decision. Because the parents were unable to name an attorney-in-fact on behalf of their disabled daughter, there was no apparent authority either. GGNSC Stanford, LLC v. Rowe, 388 S.W.3d 117, 2012 Ky. App. LEXIS 177 (Ky. Ct. App. 2012).

In light of the limited authority granted to custodians by KRS 405.020 and KRS 387.280 , the Kentucky Court of Appeals cannot conclude they are permitted to contractually bind their wards without formal appointment as guardians. GGNSC Stanford, LLC v. Rowe, 388 S.W.3d 117, 2012 Ky. App. LEXIS 177 (Ky. Ct. App. 2012).

Pre-injury liability waiver signed by a parent on behalf of a minor child was unenforceable under the specific facts of the case; the statutes of the General Assembly and decisions of the supreme court reflect no public policy shielding the operators of for-profit trampoline parks from liability. E.M. v. House of Boom Ky., LLC (In re Miller), 575 S.W.3d 656, 2019 Ky. LEXIS 211 ( Ky. 2019 ).

Grant of custody and a parent’s right to raise their child, choose the child’s educational path, and make healthcare decisions on a child’s behalf has never abrogated the traditional common law view that parents have no authority to enter into contracts on behalf of their child when dealing with a child’s property rights, prior to being appointed guardian by a district court. E.M. v. House of Boom Ky., LLC (In re Miller), 575 S.W.3d 656, 2019 Ky. LEXIS 211 ( Ky. 2019 ).

29.Superior Custodial Rights.

Record failed to show that the neighbors could defeat the mother’s superior custodial rights, as there was no evidence she was unfit and no evidence that the mother waived her superior custodial rights. Kruger v. Hamm, 2019 Ky. App. LEXIS 84 (Ky. Ct. App. May 10, 2019), review denied, ordered not published, 2019 Ky. LEXIS 486 (Ky. Dec. 13, 2019).

Cited in:

Reynolds Metal Co. v. Glass, 302 Ky. 622 , 195 S.W.2d 280, 1946 Ky. LEXIS 722 ( Ky. 1946 ); Kantorowicz v. Reams, 332 S.W.2d 269, 1959 Ky. LEXIS 17 ( Ky. 1959 ); Young v. Young, 413 S.W.2d 887, 1967 Ky. LEXIS 400 ( Ky. 1967 ); Boone v. Ballinger, 228 S.W.3d 1, 2007 Ky. App. LEXIS 133 (Ky. Ct. App. 2007); Bartley v. Commonwealth, 400 S.W.3d 714, 2013 Ky. LEXIS 291 ( Ky. 2013 ); Lage v. Esterle, 591 S.W.3d 416, 2019 Ky. App. LEXIS 195 (Ky. Ct. App. 2019).

Research References and Practice Aids

Cross-References.

Abandonment, nonsupport of minor, KRS 530.040 , 530.050 .

Child custody, award upon divorce, KRS 403.270 to 403.350 .

Education of the physically handicapped, KRS Ch. 167.

Guardian, parent may appoint by will, KRS 387.040 .

Insurance for benefit of married woman inures to married woman and her children, KRS 304.14-340 .

Kentucky Bench & Bar.

Davies, Children Born Out of Wedlock: Their Time Has Come, Volume 49, No. 2, April 1985 Ky. Bench & B. 10.

Crocker, Current Issues in Child Support and the Use of Child Support Guidelines, Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 9.

Hicks, Postminority Support for College Expenses A Moral and Legal Dilemma, Vol. 60, No. 4, Fall 1996 Ky. Bench & B. 34.

Kentucky Law Journal.

Hudson, Family Law — Custody of Children, 59 Ky. L.J. 529 (1970).

Comments, Paternal Custody of the Young Child Under the Kentucky No-Fault Divorce Act, 66 Ky. L.J. 165 (1977-78).

Comments, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978-79).

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Hauser, Note, Child Custody for Disabled Adults: What Kentucky Families Need, 91 Ky. L.J. 667 (2002).

Northern Kentucky Law Review.

Brantton, Joint Custody in Kentucky, 8 N. Ky. L. Rev. 553 (1981).

Notes, Greathouse v. Shreve and Shifflet v. Shifflet: Maintaining the Status Quo in Custody Disputes Between Parents and Third Party Contestants, 23 N. Ky. L. Rev. 451 (1996).

Schlam, Third-Party Standing in Child Custody Disputes: Will Kentucky’s New “De Facto Guardian” Provision Help?, 27 N. Ky. L. Rev. 368 (2000).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, §§ 26.4, 26.8, 26.23.

Petrilli, Kentucky Family Law, Minors, § 30.11.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), §§ 27.1, 27.8.

Petrilli, Kentucky Family Law, Support of the Family, §§ 16.1, 16.17.

405.021. Reasonable visitation rights to grandparents.

    1. The Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so. Once a grandparent has been granted visitation rights under this subsection, those rights shall not be adversely affected by the termination of parental rights belonging to the grandparent’s son or daughter, who is the father or mother of the child visited by the grandparent, unless the Circuit Court determines that it is in the best interest of the child to do so. (1) (a) The Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so. Once a grandparent has been granted visitation rights under this subsection, those rights shall not be adversely affected by the termination of parental rights belonging to the grandparent’s son or daughter, who is the father or mother of the child visited by the grandparent, unless the Circuit Court determines that it is in the best interest of the child to do so.
    2. If the parent of the child who is the son or daughter of the grandparent is deceased, there shall be a rebuttable presumption that visitation with the grandparent is in the best interest of the child if the grandparent can prove a pre-existing significant and viable relationship with the child.
    3. In order to prove a significant and viable relationship under paragraph (b) of this subsection, the grandparent shall prove by a preponderance of the evidence that:
      1. The child resided with the grandparent for at least six (6) consecutive months with or without the current custodian present;
      2. The grandparent was the caregiver of the child on a regular basis for at least six (6) consecutive months;
      3. The grandparent had frequent or regular contact with the child for at least twelve (12) consecutive months; or
      4. There exist any other facts that establish that the loss of the relationship between the grandparent and the child is likely to harm the child.
  1. The action shall be brought in Circuit Court in the county in which the child resides.
  2. The Circuit Court may grant noncustodial parental visitation rights to the grandparent of a child if the parent of the child who is the son or daughter of the grandparent is deceased and the grandparent has assumed the financial obligation of child support owed by the deceased parent, unless the court determines that the visitation is not in the best interest of the child. If visitation is not granted, the grandparent shall not be responsible for child support.

HISTORY: Enact. Acts 1976, ch. 277, § 1; 1984, ch. 136, § 1, effective July 13, 1984; 1994, ch. 493, § 1, effective July 15, 1994; 1996, ch. 302, § 1, effective July 15, 1996; 1996, ch. 314, § 2, effective July 15, 1996; 2018 ch. 197, § 1, effective July 14, 2018.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

At common law, grandparents had no legal right to visitation; however, the General Assembly determined that, in modern day society, it was essential that some semblance of family and generational contact be preserved. If a grandparent is physically, mentally and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent. That grandparents and grandchildren normally have a special bond cannot be denied. Each benefits from contact with the other. These considerations by the state do not go too far in intruding into the fundamental rights of the parents. Thus, the Supreme Court found that this section is constitutional. King v. King, 828 S.W.2d 630, 1992 Ky. LEXIS 44 (Ky.), cert. denied, 506 U.S. 941, 113 S. Ct. 378, 121 L. Ed. 2d 289, 1992 U.S. LEXIS 6648 (U.S. 1992).

Circuit court erred in determining that subsections (b) and (c) of the grandparent visitation statute was unconstitutional because it did not analyze the facts of the case upon the standard of a constitutional presumption that a fit parent acted in the child’s best interest, and that the presumption was a starting point for analysis, the requirements required as a prerequisite that the grandparent seeking visitation must prove he or she had a “pre-existing significant and viable relationship with the child.” Robison v. Pinto, 2019 Ky. App. LEXIS 169 (September 27, 2019).

In a case in which the maternal grandparents sought visitation, Ky. Rev. Stat. Ann. § 405.021(1)(b) and (c), on their face, ran afoul of a parent’s fundamental constitutional right to the care and custody of his or her child under the Due Process Clause of the Fourteenth Amendment because the statutory scheme failed to accord the requisite “special weight” to the parent’s determination regarding his or her child; and it did not comply with the presumption in favor of the parent as it stated that, if a grandparent could prove the existence of a significant and viable relationship with the child merely by a preponderance of the evidence, the grandparent was then entitled to a presumption in his or her favor. Pinto v. Robison, 607 S.W.3d 669, 2020 Ky. LEXIS 301 ( Ky. 2020 ).

2.Application.

The overriding considerations expressed through the termination and adoption statutes for cutting, finally and irrevocably, all connections to the biological parent and his family where there has been a final order terminating parental rights and where there has been an adoption introducing the child into a new family, simply do not apply where there has been only a stepparent adoption with no prior legal severance of the bond to the grandparents. Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

As amended, this section provides that visitation rights granted to grandparents are not affected by termination of their child’s parental rights unless the court finds that it is in the best interest of the grandchild to do so. The amendment is remedial, so applies to cases decided prior, as well as subsequent, to its July 1996 enactment. Dotson v. Rowe, 957 S.W.2d 269, 1997 Ky. App. LEXIS 72 (Ky. Ct. App. 1997).

Grandmother’s statutory right to grandparent visitation under KRS 405.021 was foreclosed by the termination of her daughter’s parental rights to the children since the grandmother was not previously granted visitation by the Circuit Court; the fact that an order in the dependency action referred to grandparent visitation did not change the result, since that order was issued by the District Court and not the Circuit Court. E.D. v. Commonwealth, 152 S.W.3d 261, 2004 Ky. App. LEXIS 337 (Ky. Ct. App. 2004).

Trial court erred in awarding grandparents additional visitation since they had not petitioned for such relief under KRS 405.021 , the trial court did not find that additional visitation would be in the children’s best interest, and the trial court did not consider the factors set out in Vibbert v. Vibbert, 144 S.W.3d 292, 2004 Ky. App. LEXIS 246 (Ky. Ct. App. 2004).VanWinkle v. Petry, 217 S.W.3d 252, 2007 Ky. App. LEXIS 18 (Ky. Ct. App. 2007).

By filing ex parte motions seeking custody when they disagreed with the parents’ decisions, the grandparents unduly interfered with the parents’ constitutionally protected rights to make decisions for their children. But as the grandparents had been granted visitation pursuant to KRS 405.021 , they remained parties to the dissolution action to that extent; therefore, they could not be dismissed from that action. VanWinkle v. Petry, 217 S.W.3d 252, 2007 Ky. App. LEXIS 18 (Ky. Ct. App. 2007).

Court erred in ordering grandparent visitation because the grandmother engaged in extraordinary acts of hostility toward the children’s mother and father, there was extreme acrimony between the grandmother and the mother, and the grandmother stated that she wished her son would divorce the mother. Grayson v. Grayson, 319 S.W.3d 426, 2010 Ky. App. LEXIS 127 (Ky. Ct. App. 2010).

Trial court properly determined that KRS 405.021(1), rather than KRS 405.021(3), was applicable to a grandmother’s request for visitation with a mother’s child following the death of the child’s father, as the grandmother did not indicate any intention to seek noncustodial parental visitation, which was for a greater amount. Walker v. Blair, 2011 Ky. App. LEXIS 179 (Ky. Ct. App. Sept. 30, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 982 (Ky. Ct. App. Sept. 30, 2011).

No matter how well-intended, a grandparent’s petition for visitation beyond a parent’s consent is an attack upon that parent’s superior and fundamental right to make her own determination of her child’s best interest. Hamilton v. Duvall, 563 S.W.3d 697, 2018 Ky. App. LEXIS 260 (Ky. Ct. App. 2018).

Grandparents sought visitation pursuant to the statute, but the court failed to make the required finding that grandparents met the criterion of assuming the financial obligation of child support, and there was no order imposing upon the grandparents the child support obligation of their son, and reversal was required. Hamilton v. Duvall, 563 S.W.3d 697, 2018 Ky. App. LEXIS 260 (Ky. Ct. App. 2018).

Family court properly denied the motions by a maternal grandfather and step-grandmother (jointly, the grandparents) to intervene and to hold the termination proceedings in abeyance because they did not have a statutory or tangible interest in the underlying action, they did not include a pleading setting forth the claim or defense for which intervention was sought, they had other means to achieve relief, they did not show how the termination of parental rights petition against the subject child’s father would affect any petition they would file for grandparent visitation or future motions for custody or visitation, and they did not raise any arguments regarding the denial of the motion to hold the termination proceedings in abeyance. S.B. v. Cabinet for Health & Family Servs., 616 S.W.3d 715, 2020 Ky. App. LEXIS 118 (Ky. Ct. App. 2020).

Neither the adoption statute, Ky. Rev. Stat. Ann. § 199.520 nor the grandparent visitation statute, Ky. Rev. Stat. Ann. § 405.021 , requires notice to grandparents of a pending adoption petition initiated by another grandparent. Considering these statutory deficiencies, extending the stepparent adoption exception established in Hicks v. Enlow to grandparent adoptions is necessary. Blackaby v. Barnes, 614 S.W.3d 897, 2021 Ky. LEXIS 12 ( Ky. 2021 ).

In a case dealing with the effect of a grandparent visitation petition filed by a paternal grandfather, the Supreme Court concluded that the grandparent visitation statute, Ky. Rev. Stat. Ann. § 405.021 , did not contemplate the situation at hand and further, that the public policy considerations of the stepparent exception articulated in Hicks v. Enlow extend equally to an intra-family grandparent adoption such as this one. Blackaby v. Barnes, 614 S.W.3d 897, 2021 Ky. LEXIS 12 ( Ky. 2021 ).

3.Legislative Intent.

The court must assume that the 1976 grandparents’ visitation rights statute was written with the language of the termination and adoption statutes in KRS Chapter 199 in mind. This includes the exception clause in KRS 199.520(2) for stepparent adoptions. Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

In 1984 the General Assembly expanded this section by deleting its limitation to the situation where the “parent is deceased,” but it did not change the basic premise that it was subject to the overriding importance of the termination and adoption statutes to the welfare of children. Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

4.Great-Grandparent.

The term great-grandparent is not included in the purview of this section. Cole v. Thomas, 735 S.W.2d 333, 1987 Ky. App. LEXIS 541 (Ky. Ct. App. 1987).

5.Putative Grandparents.

Putative grandparents have standing to pursue reasonable visitation rights under this section; there is no requirement that they obtain a court order establishing father’s paternity prior to seeking visitation. Posey v. Powell, 965 S.W.2d 836, 1998 Ky. App. LEXIS 27 (Ky. Ct. App. 1998).

6.Visitation Denied.

Paternal grandmother whose son’s parental rights to an infant were terminated on the basis of abandonment for a period exceeding five years, was not entitled to visitation rights. Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

Paternal grandparents of children whose parents died and who were then adopted by a maternal first cousin and her spouse, had no legal relationship with their grandchildren and thus were not awarded visitation rights. Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

Trial court did not err in dismissing appellant’s action for grandparent visitation, because she failed to seek visitation when she still had a right to do so under KRS ch. 405 before her daughter’s parental rights were terminated. Equitable estoppel did not preclude the adoptive parents from raising this defense. Miller v. Norris, 2012 Ky. App. LEXIS 101 (Ky. Ct. App. June 22, 2012).

Family court properly denied a paternal grandfather’s petition for grandparent visitation for lack of standing after the maternal grandmother adopted the child because the grandfather’s petition was untimely, inasmuch as he waited more than two years after the father’s death despite acknowledging that he was aware of the court proceedings trying to terminate the father’s rights and never preserved his right to have visitation with the child. Blackaby v. Barnes, 2019 Ky. App. LEXIS 212 (Ky. Ct. App. Dec. 6, 2019), rev'd, 614 S.W.3d 897, 2021 Ky. LEXIS 12 ( Ky. 2021 ).

7.Visitation Granted.

Paternal grandparents were awarded visitation rights, under the “best interest of the child” standard, where the granddaughter’s father had died and the granddaughter was subsequently adopted by her stepfather. Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

The Supreme Court found no valid reason that a trivial disagreement between a father and son should be allowed to deprive a grandparent and grandchild from developing the natural affinity so common between these family members. King v. King, 828 S.W.2d 630, 1992 Ky. LEXIS 44 (Ky.), cert. denied, 506 U.S. 941, 113 S. Ct. 378, 121 L. Ed. 2d 289, 1992 U.S. LEXIS 6648 (U.S. 1992).

Order granting grandparents’ visitation was affirmed; the grandparents had shown by clear and convincing evidence that harm would result to the children if they were denied visitation rights. E.H. v. C.M., 2004 Ky. App. LEXIS 100 (Ky. Ct. App. Apr. 16, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 681 (Ky. Ct. App. Apr. 16, 2004), review denied, ordered not published, 2006 Ky. LEXIS 20 (Ky. Jan. 12, 2006).

Father’s fairly incoherent appellate brief, filed in a case where the trial court found that the maternal grandmother had proved by clear and convincing evidence a right to limited grandparent visitation pursuant to KRS 405.021 , failed to show that KRS 405.021 was unconstitutional. Since such visitation was in the best interests of the two children, the maternal grandmother was entitled to the reasonable visitation with them as awarded by the trial court. Grant v. Heltsley, 268 S.W.3d 382, 2008 Ky. App. LEXIS 318 (Ky. Ct. App. 2008).

Trial court properly granted a paternal grandmother visitation with a mother’s child pursuant to KRS 405.021(1) where it was shown that such was in the child’s best interest; her father had committed suicide, and the grandmother had maintained a relationship with the child since birth. Walker v. Blair, 2011 Ky. App. LEXIS 179 (Ky. Ct. App. Sept. 30, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 982 (Ky. Ct. App. Sept. 30, 2011).

Grant of visitation to grandparents was affirmed; the family court noted the enormous benefits the child received from spending time with them, and while the family court did not explain how each fact fit with each relevant factor, it was clear the family court properly considered the evidence in light of the factors. Nein v. Columbia, 517 S.W.3d 492, 2017 Ky. App. LEXIS 41 (Ky. Ct. App. 2017).

8.Stepparent Adoption.

Given the language of the exception clause in KRS 199.520(2) it is reasonable to interpret the meaning of this section as extending grandparents’ rights to seek court ordered visitation to cases where the surviving parent seeks to cut off the grandparents by using the device of stepparent adoption. Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

9.Considerations.

It was error to order grandparent visitation because (1) the court did not address the objection of the child's mother, who was the sole custodian and a “fit” parent, (2) the court never applied the modified best interest standard to find if such visitation were in the child's best interest, and (3) the grandparents provided no clear and convincing evidence to show grandparent visitation was compelling enough to override the mother's objections and that such visitation served the child's best interest. Waddle v. Waddle, 447 S.W.3d 653, 2014 Ky. App. LEXIS 167 (Ky. Ct. App. 2014).

This section gives grandparents the right to have a court determine whether visitation would be in the best interest of their grandchildren. As part of this determination, the court should, of course, take into consideration the custodial parent’s attitude, and the possibility of conflict; however, the evaluation cannot stop there. There are other considerations, including the nature of the relationship between the child and her grandmother, the preferences of the child, and the mental and physical health of the parties. Baker v. Perkins, 774 S.W.2d 129, 1989 Ky. App. LEXIS 93 (Ky. Ct. App. 1989), overruled in part, Walker v. Blair, 382 S.W.3d 862, 2012 Ky. LEXIS 179 ( Ky. 2012 ).

Where a grandparent seeks visitation with a grandchild over the parents’ objections, under KRS 405.021 , the grandparent seeking visitation must prove, by clear and convincing evidence, that the requested visitation is in the best interest of the child. The court must consider, inter alia, the nature and stability of the relationship between the child and the grandparent; the physical and emotional health of all the adults involved; and the wishes and preferences of the child. Vibbert v. Vibbert, 144 S.W.3d 292, 2004 Ky. App. LEXIS 246 (Ky. Ct. App. 2004).

Grandparents conceded that the mother was a fit parent, and thus the family court was required to presume that the mother's decision to lessen the child's time with the grandparents was in the child's best interest; nothing indicated that the family court failed in this respect. Nein v. Columbia, 517 S.W.3d 492, 2017 Ky. App. LEXIS 41 (Ky. Ct. App. 2017).

Circuit court erred when it, sua sponte, granted grandparent visitation without following the required procedures as the paternal grandparents did not petition the court for the visitation, did not raise the issue of visitation in a juvenile dependency, neglect, and abuse proceeding, and did not present any evidence that the visitation was in the children's best interest. In addition, the court made no finding that the visitation was in the children's best interest, nor did it consider the factors set forth in the case law. K. C. O. v. Cabinet for Health and Family Servs., 518 S.W.3d 778, 2017 Ky. App. LEXIS 68 (Ky. Ct. App. 2017).

In granting visitation to the grandparents, the trial court was most convinced by the long-established relationship between the grandparents and the children, but without additional findings under the other factors, the relationship factor alone was not sufficient to warrant court intervention; it was not clear that the trial court gave presumptive weight to the father's superior rights as a parent, or to the fact that the grandparents had the burden of proving that the father's assessment of best interests was incorrect. Goodlett v. Brittain, 544 S.W.3d 656, 2018 Ky. App. LEXIS 92 (Ky. Ct. App. 2018).

Nothing in Ky. Rev. Stat. Ann. § 405.021(1)(a) requires that the parents of the child be divorced. Hartlage v. Hartlage, 601 S.W.3d 495, 2020 Ky. App. LEXIS 43 (Ky. Ct. App. 2020).

10.Parental Opposition.

The custodial parent’s opposition by itself should not suffice to deny the grandparent relief. Baker v. Perkins, 774 S.W.2d 129, 1989 Ky. App. LEXIS 93 (Ky. Ct. App. 1989), overruled in part, Walker v. Blair, 382 S.W.3d 862, 2012 Ky. LEXIS 179 ( Ky. 2012 ).

Although there was significant animosity between child’s parents and maternal grandparents, which could be destructive to child, it was error for the trial court to deny grandparents’ petition without an evidentiary hearing to determine if visitation would be in the best interests of the child. Mustaine v. Kennedy, 971 S.W.2d 830, 1998 Ky. App. LEXIS 38 (Ky. Ct. App. 1998).

In granting a paternal grandmother’s petition for visitation with her deceased son’s child under KRS 405.021(1), a court failed to give the mother’s decision to deny visitation the special weight that was due a fit parent; hence, it was necessary to remand the case for a new evidentiary hearing. Walker v. Blair, 382 S.W.3d 862, 2012 Ky. LEXIS 179 ( Ky. 2012 ).

In a grandparent visitation case, a father should have been allowed to object to the entry of a visitation order, even if he had not entirely denied visitation; the trial court had to presume that the parents had a right to impose any limitation on a grandparent’s visitation with the children. The proper determinations could not have been made where the father was not allowed a reasonable opportunity to present proof; moreover, the trial court had to give due regard to the assignment of the burden of proof on the grandparent to show that visitation was in the best interest of the children. Fairhurst v. Moon, 416 S.W.3d 788, 2013 Ky. App. LEXIS 167 (Ky. Ct. App. 2013).

Family court erred by concluding that a mother’s decision to grant grandparent visitation prevailed over the father’s objections because the mother had lost legal and physical custody of the child through dependency, neglect, and abuse proceedings, the grandmother’s rights under Kentucky’s grandparent visitation statute were legally separate and apart from any fundamental liberty interest that the mother might still have, and the requested visitation was not in the child’s best interests. Doane v. Gordon, 421 S.W.3d 407, 2014 Ky. App. LEXIS 18 (Ky. Ct. App. 2014).

Order granting the grandparents additional visitation was reversed where the circuit court failed to address any of the Walker factors or determine whether there was clear and convincing proof to establish that it was in the child’s best interests to expand visitation. Hartlage v. Hartlage, 601 S.W.3d 495, 2020 Ky. App. LEXIS 43 (Ky. Ct. App. 2020).

11.Custodians.

In a grandparent visitation case, a trial court erred in applying the heightened clear and convincing standard because the child at issue was in the custody of his aunt and uncle by marriage; they did not have the same fundamental liberty interests as parents simply due to the fact that they received custody. A rehearing was necessary on the best interest standard alone, with no presumptions or preferences given as to the nonparental custodians. Navy v. Massie, 2015 Ky. App. LEXIS 120 (Ky. Ct. App. Aug. 14, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 860 (Ky. Ct. App. Aug. 14, 2015).

12.Burden of Proof.

Statute has not been interpreted to require a grandparent to clearly show that visitation is in a child's best interest against anyone besides a parent; the text of the statute does not contain an express requirement that the clear and convincing standard always applies when a grandparent petitions for custody. Moreover, a lesser preponderance of the evidence standard has been acknowledged. Navy v. Massie, 2015 Ky. App. LEXIS 120 (Ky. Ct. App. Aug. 14, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 860 (Ky. Ct. App. Aug. 14, 2015).

Trial court did err by terminating the grandmother's petition for custody and visitation without determining whether she, as a non-de facto custodian, could have demonstrated that the parents were unfit custodians, or whether they waived their superior right to custodial status. Moreover, the grandmother was required to rebut by clear and convincing evidence the presumption that the parents were acting in the child's best interests, and she had to prove that visitation with the grandmother was in the child's best interests. Chadwick v. Flora, 488 S.W.3d 640, 2016 Ky. App. LEXIS 67 (Ky. Ct. App. 2016).

Where a grandparent seeks the intervention of the courts to compel visitation, the decision of the parent must prevail absent a clear and convincing showing by the grandparent in favor of such visitation; anything less would elevate the grandparent to equal status with a custodial parent. Goodlett v. Brittain, 544 S.W.3d 656, 2018 Ky. App. LEXIS 92 (Ky. Ct. App. 2018).

Without a fundamental constitutional right at issue, there is no authority for imposing the clear and convincing standard on the best interest of the child analysis. Unless the legislature provides otherwise, the nonparent custodian and a grandparent are on equal footing under Ky. Rev. Stat. Ann. § 405.021(1)(a) and the preponderance of the evidence standard for determining whether grandparent visitation is in the child’s best interest is fundamentally fair and proper. Morton v. Tipton, 569 S.W.3d 388, 2019 Ky. LEXIS 81 ( Ky. 2019 ).

Going forward, trial courts must use the preponderance of the evidence standard when considering grandparent visitation if someone other than a parent, including another grandparent, is the grandchild’s custodian. Morton v. Tipton, 569 S.W.3d 388, 2019 Ky. LEXIS 81 ( Ky. 2019 ).

Although a trial court did not explicitly identify the standard of proof, its statement about the parents’ rights, whose whereabouts were unknown, strongly suggested that it correctly employed the typical preponderance of the evidence standard. Morton v. Tipton, 569 S.W.3d 388, 2019 Ky. LEXIS 81 ( Ky. 2019 ).

Cited:

Davis v. Collinsworth, 771 S.W.2d 329, 1989 Ky. LEXIS 42 ( Ky. 1989 ); Fedders v. Vogt-Kilmer, 292 S.W.3d 905, 2009 Ky. App. LEXIS 121 (Ky. Ct. App. 2009).

Research References and Practice Aids

Kentucky Bench & Bar.

Keller, Beware: Major Changes in Private Independent Adoptions, Vol. 42, No. 3, Summer 1996 Ky. Bench & B. 38.

Kentucky Law Journal.

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Note, King v. King: The Best Interest of the Child: A Judicial Determination for Grandparent Visitation, 20 N. Ky. L. Rev. 815 (1993).

Dowell and Baluchi, Kentucky Law Survey: A Survey of Recent Decisions Regarding Custody and Visitation Rights, 30 N. Ky. L. Rev. 1 (2003).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, § 26.14.

405.023. Centralized statewide information and referral program for grandparents and other caregivers caring for minors who are not their biological children.

  1. The Cabinet for Health and Family Services shall create a centralized statewide service program that provides information and referrals through a statewide toll-free telephone number to grandparents and other caregivers who are caring for minors who are not their biological children.
  2. The program shall provide information on a wide variety of services, including but not limited to:
    1. Kentucky Transitional Assistance Program;
    2. Health care and services, including the Kentucky Children’s Health Insurance Program;
    3. Educational services;
    4. Child care;
    5. Child support;
    6. Support groups;
    7. Housing assistance;
    8. Legal services; and
    9. Respite care for low-income kinship or fictive kin caregivers. As used in this paragraph, “fictive kin” has the same meaning as in KRS 600.020 .
  3. The cabinet may coordinate this program with the KyCARES Program.
  4. This program shall be known as the KinCare Support Program.

History. Enact. Acts 2006, ch. 198, § 1, effective July 12, 2006; 2014, ch. 69, § 1, effective July 15, 2014; 2019 ch. 73, § 2, effective June 27, 2019.

405.024. Adult caregiver with whom minor resides may, by affidavit, establish authority to make health care treatment and school-related decisions for minor — Conditions — Authority may be revoked or superseded — Obligations and liability of health care provider — Penalty.

  1. As used in this section:
    1. “Cabinet” means the Cabinet for Health and Family Services;
    2. “Caregiver” means an adult person with whom a minor resides, including a grandparent, stepgrandparent, stepparent, aunt, uncle, or any other adult relative of the minor;
    3. “De facto custodian” has the same meaning as defined in KRS 403.270 ;
    4. “Department” means the Department of Education;
    5. “Health care provider” means any licensed medical, surgical, dental, psychological, or osteopathic practitioner; nurse practitioner; occupational, physical, or speech therapist; hospital; public or private health clinic; or their agents or employees; and
    6. “Health care treatment”:
      1. Means any necessary medical and dental examination, diagnostic procedure, and treatment, including but not limited to hospitalization, developmental screening, mental health screening and treatment, preventive care, immunizations recommended by the federal Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices, well-child care, blood testing, and occupational, physical, and speech and language therapies; and
      2. Does not mean any procedure to terminate a pregnancy, pregnancy determination testing, HIV or AIDS testing, controlled substance testing, or any other testing for which a separate court order or informed consent is required under other applicable law.
  2. The caregiver shall create an affidavit establishing the caregiver’s ability to authorize health care treatment for a minor and to make school-related decisions for a minor. The affidavit shall include but not be limited to the following information:
    1. The name and address of the caregiver;
    2. The caregiver’s relationship to the minor to whom the affidavit applies;
    3. A statement that the caregiver is over the age of eighteen (18);
    4. The name and date of birth of the minor to whom the affidavit applies;
    5. A statement that the minor resides in the caregiver’s home;
    6. A statement that the caregiver shall be allowed to authorize the provision of health care treatment to the minor, or to withhold such authorization;
    7. A statement that the caregiver shall be the person responsible for enrolling the minor in school and acting as the minor’s legal contact with the school for the purposes of making decisions on enrollment, attendance, extracurricular activities, discipline, and all other school-related activities;
    8. A statement identifying the minor’s parents, de facto custodian, guardian, or legal custodian and describing the caregiver’s relationship to the parents, de facto custodian, guardian, or legal custodian;
    9. A statement that no other party has legal standing in custody issues for the minor other than those parties identified in paragraph (h) of this subsection;
    10. The dated signatures of the minor’s parents, de facto custodian, guardian, or legal custodian indicating their approval of the caregiver’s ability to authorize the provision of health care treatment to the minor and to make school-related decisions for the minor. If a parent or parents, de facto custodian, guardian, or legal custodian are unavailable to sign the affidavit, the affidavit shall include a statement describing the circumstances of their unavailability and a statement of the caregiver’s reasonable efforts to locate them;
    11. The dated signature of the caregiver;
    12. A statement that acknowledges that a person making false statements in the affidavit shall be subject to criminal penalties;
    13. A statement that acknowledges that execution of the affidavit does not confer upon the caregiver the status of a de facto custodian, guardian, or legal custodian of the minor; and
    14. A statement that acknowledges the requirement for the caregiver to notify any health care provider or school to which the affidavit was presented if the minor ceases to reside with the caregiver or the affidavit is revoked by the minor’s parent or parents, de facto custodian, guardian, legal custodian, or caregiver.
  3. The health care authorization portion of the affidavit described in subsection (2) of this section shall be valid for one (1) year and may be renewed annually thereafter unless it is revoked by the minor’s parent or parents, de facto custodian, guardian, legal custodian, or caregiver, or if the minor no longer resides with the caregiver. Execution or revocation of the health care authorization portion of the affidavit shall not operate as a complete execution or revocation of the entire affidavit.
  4. The education authorization portion of the affidavit described in subsection (2) of this section shall be valid for one (1) year and may be renewed annually thereafter unless it is revoked by the minor’s parent or parents, de facto custodian, guardian, legal custodian, or caregiver, or if the minor no longer resides with the caregiver. Execution or revocation of the education authorization portion of the affidavit shall not operate as a complete execution or revocation of the entire affidavit.
  5. A caregiver may authorize the provision of health care treatment or may refuse the provision of health care treatment to a minor residing with the caregiver if the caregiver presents to a health care provider a duly executed affidavit as described in subsection (2) of this section.
  6. The decision of a caregiver to authorize or refuse health care treatment for a minor shall be superseded by a decision of a parent, de facto custodian, guardian, or legal custodian of the minor.
  7. A health care provider shall honor a caregiver’s authorization to provide health care treatment to a minor, or the caregiver’s decision to withhold such authorization, if the caregiver presents to the provider a duly executed affidavit described in subsection (2) of this section. A health care provider shall refuse to honor the caregiver’s decision to seek or refuse health care treatment if the provider has actual knowledge that a parent, de facto custodian, legal custodian, or guardian has made a superseding decision to authorize or refuse health care treatment for the minor. The provisions of this subsection shall not be construed to prohibit a health care provider from providing health care treatment for a condition that, left untreated, could reasonably be expected to substantially threaten the health or life of the minor.
  8. A person who relies in good faith on a duly executed affidavit as described in subsection (2) of this section in providing or refusing health care treatment shall:
    1. Be under no obligation to undertake further investigation into the circumstances forming the basis of the caregiver’s authorization to the provision or refusal of health care treatment; and
    2. Not be subject to criminal or civil liability or professional disciplinary action because of that reliance.
  9. The provisions of this section shall not be construed to relieve any health care provider from liability for negligence in the provision of health care treatment.
  10. An affidavit described in subsection (2) of this section may be revoked by the minor’s parent, de facto custodian, guardian, legal custodian, or caregiver, and shall be revoked if the minor to whom it applies ceases to reside with the caregiver. If an affidavit is revoked, the caregiver shall give written notice of revocation to any health care provider to which the affidavit was presented for the purpose of obtaining health care for the minor.
  11. A person who knowingly makes a false statement in an affidavit described in subsection (2) of this section shall be guilty of a Class A misdemeanor.

History. Enact. Acts 2014, ch. 69, § 2, effective July 15, 2014.

405.025. Parent or guardian liable for willful damage to property caused by minor.

  1. The parent or guardian of any unemancipated minor, in his care and custody, against whom judgment has been rendered for the willful marking upon, defacing or damaging of any property, shall be liable for the payment of that judgment up to an amount not to exceed twenty-five hundred dollars ($2500), if the parent or guardian has been joined as a party defendant in the original action. The judgment provided herein to be paid shall be paid to the owner of the property damaged but such payment shall not be a bar to any criminal action or any proceeding against the unemancipated minor committing such damage for the balance of the judgment not paid by the parent or guardian. No parent or guardian shall be liable under the provisions of this subsection in a cumulative amount in excess of ten thousand dollars ($10,000) for the willful marking upon, defacing or damaging of any property by any child.
  2. Nothing in this section is intended to or shall limit to twenty-five hundred dollars ($2500) the liability of a person to whom the negligence of a minor is imputed by KRS 186.590 , nor shall this section limit the liability set forth in any other statute to the contrary.

History. Enact. Acts 1968, ch. 44, §§ 1, 2; 1976, ch. 235, § 1.

Opinions of Attorney General.

This section contemplates a civil action for damages and is not applicable to juvenile court proceedings. OAG 69-251 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Minors, § 30.16.

405.027. Court may require parent or guardian of minor defendant to pay attorney’s fees and costs.

In any proceeding within this Commonwealth wherein a minor child is a party defendant, it shall be within the sound discretion of the court to direct that the parents or guardian of such minor child pay all attorney’s fees and costs, including but not limited to amounts repayable under KRS 31.120 , of said action as may be reasonable. This section shall not be construed as repealing any of the laws of the Commonwealth relating to parents’ liability for the acts of their minor children, but shall be held and construed as ancillary and supplemental thereto.

History. Enact. Acts 1980, ch. 334, § 2, effective July 15, 1980.

405.028. Custody, visitation, and inheritance rights denied parent convicted of a felony sexual offense from which victim delivered a child — Waiver — Child support obligation.

  1. Except as provided in subsection (2) of this section, any person who has been convicted of a felony offense under KRS Chapter 510, or a comparable offense from another jurisdiction, in which the victim of that offense has conceived and delivered a child, shall not have custody or visitation rights, or the right of inheritance under KRS Chapter 391 with respect to that child.
  2. The adult mother of the child may waive the protection afforded under subsection (1) of this section regarding visitation and request that the court grant reasonable visitation rights with the child if paternity has been acknowledged.
  3. Unless waived by the mother, or a guardian of a minor mother or a de facto custodian of the child in the case of a minor mother, and, if applicable, the public agency substantially contributing to the support of the child, a court shall establish a child support obligation against the father of the child pursuant to KRS 403.211 . As used in this subsection, “de facto custodian” has the same meaning as in KRS 403.270 .

History. Enact. Acts 2014, ch. 130, § 2, effective July 15, 2014; 2020 ch. 30, § 2, effective July 15, 2020.

405.030. Neglect of child under fourteen. [Repealed.]

Compiler’s Notes.

This section (328) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

405.035. Court ordered assignment to county officer of parent’s child-support payment — Assignment binding upon employer — Priority. [Renumbered.]

Compiler’s Notes.

This section was renumbered by the Reviser of Statutes as KRS 405.465 , pursuant to KRS 7.136 .

405.040. Abandonment of child under six. [Repealed.]

Compiler’s Notes.

This section (329) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 530.040 .

405.050. Power of societies to enforce law. [Repealed.]

Compiler’s Notes.

This section (330, 331) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 530.040 .

405.060. Sale or conveyance in fraud of wife or child — Transfer of income or property to avoid payment to child support creditor.

  1. Any sale or conveyance made to a purchaser with notice or for the benefit of any religious society, if made in fraud or hindrance of the right of wife or child to maintenance, shall be void as against the wife or child.
  2. In any case where an obligor transfers income or property to avoid payment to a child support creditor, the transfer shall be indicia of fraud. Indicia of fraud creates a prima facie case that the transfer of income or property was to avoid payment of child support. Indicia of fraud shall be set forth by administrative regulation.
  3. In any case in which the cabinet knows of a transfer by a child support obligor with respect to which a prima facie case is established, the cabinet shall:
    1. Seek to void the transfer; or
    2. Obtain a settlement in the best interests of the child support creditor.

History. 2126; 1998, ch. 255, § 23, effective July 15, 1998.

NOTES TO DECISIONS

1.Fraudulent Conveyance.

This section covers fraudulent mortgages with notice. Muir v. Muir, 133 Ky. 125 , 92 S.W. 314, 28 Ky. L. Rptr. 1355 , 1906 Ky. LEXIS 274 ( Ky. 1906 ). See Ellison v. Davis, 159 Ky. 818 , 169 S.W. 552, 1914 Ky. LEXIS 901 ( Ky. 1914 ).

Sales made in violation of this section are void only as to the wife or child. Hall v. Hall, 230 Ky. 351 , 19 S.W.2d 988, 1929 Ky. LEXIS 85 ( Ky. 1929 ).

Before a person is entitled to attack a conveyance under this section, it is necessary first to allege that the right to maintenance had accrued, and, in some way, that right had been defeated by the fraudulent conveyance. Hollon v. Banks, 258 S.W.2d 511, 1953 Ky. LEXIS 856 ( Ky. 1953 ).

In order for a conveyance to be void under this section, the individual purchaser must have had notice. Hollon v. Banks, 258 S.W.2d 511, 1953 Ky. LEXIS 856 ( Ky. 1953 ).

Where a man accepted a deed for real property from his brother with the knowledge that an oral lien for the support of the brother’s child had been imposed on that property by an Indiana court, the transfer was made with intent to defraud the brother’s ex-wife within the meaning of this section. Arthur v. Arthur, 625 S.W.2d 592, 1981 Ky. App. LEXIS 305 (Ky. Ct. App. 1981).

2.— Maintenance.

The word “maintenance,” as used in this section, means that maintenance which might be adjudged in a suit for divorce, and pertains to that money or property a husband might be required to pay in discharge of his duty to support his wife and children during his lifetime. Hollon v. Banks, 258 S.W.2d 511, 1953 Ky. LEXIS 856 ( Ky. 1953 ).

3.— Liens.

Where a fraudulent vendee does not plead a prior mortgage paid off by him as part of the consideration, he is not entitled to a prior lien to that extent. Campbell v. Trosper, 108 Ky. 602 , 57 S.W. 245, 22 Ky. L. Rptr. 277 , 1900 Ky. LEXIS 84 ( Ky. 1900 ).

A plaintiff hereunder is entitled to be adjudged a lien under KRS 378.010 and 378.030 . Hall v. Hall, 230 Ky. 351 , 19 S.W.2d 988, 1929 Ky. LEXIS 85 ( Ky. 1929 ).

When the fraudulent vendee properly pleads a prior mortgage paid off by him as a part of the consideration, he is entitled to a prior lien to that extent. Hall v. Hall, 230 Ky. 351 , 19 S.W.2d 988, 1929 Ky. LEXIS 85 ( Ky. 1929 ).

4.— Prior to Divorce or Separation.

A conveyance pending divorce suit but prior to judgment therein is subject to attack hereunder. Zumbiel v. Zumbiel, 96 S.W. 542, 29 Ky. L. Rptr. 791 (1906). See Muir v. Muir, 133 Ky. 125 , 92 S.W. 314, 28 Ky. L. Rptr. 1355 , 1906 Ky. LEXIS 274 ( Ky. 1906 ); Ellison v. Davis, 159 Ky. 818 , 169 S.W. 552, 1914 Ky. LEXIS 901 ( Ky. 1914 ).

Cancellation may be had of a fraudulent conveyance made prior to separation as well as subsequent thereto. Wooldridge v. Wooldridge, 229 Ky. 406 , 17 S.W.2d 220, 1929 Ky. LEXIS 753 ( Ky. 1929 ).

5.— After Divorce.

An action cannot be instituted under this section by a divorced wife to secure payment of alimony where the conveyance was made after the divorce. Her remedy is under KRS 378.030 . Campbell v. Trosper, 108 Ky. 602 , 57 S.W. 245, 22 Ky. L. Rptr. 277 , 1900 Ky. LEXIS 84 ( Ky. 1900 ).

6.Procedure.

Conveyances to different parties should not be attacked in the same suit. Hall v. Hall, 230 Ky. 351 , 19 S.W.2d 988, 1929 Ky. LEXIS 85 ( Ky. 1929 ).

Plaintiff’s petition need not refer to this section. Hall v. Hall, 230 Ky. 351 , 19 S.W.2d 988, 1929 Ky. LEXIS 85 ( Ky. 1929 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.13.

405.070. Provision for children of parent joining certain religious societies.

When a parent of a child joins any religious society whose faith is similar to that of the Shakers without having made adequate provision for his children, the Circuit Court of the county where he resides, or of the county in which any part of his property is situated, if he does not reside in this state, may, upon petition of any next friend, appoint a committee to any infant child, or child of unsound mind, of the father or mother, and make out of the father’s or mother’s estate a provision for the maintenance of the child, and take the child from the father, mother or society, and provide for its custody.

History. 2125: amend. Acts 1974, ch. 386, § 96.

405.075. Anonymity of parent who places newborn infant with emergency provider, police station, fire station, hospital, or participating place of worship — Newborn safety device — Transport to emergency room — Implied consent to treatment — Waiver by parent — Signed posted at facility — Immunity of provider, officer, firefighter, or staff member from liability — Short title.

  1. As used in this section:
    1. “Newborn infant” means an infant who is medically determined to be less than thirty (30) days old;
    2. “Newborn safety device” means a device:
      1. Designed to permit a parent to anonymously place a newborn infant in the device with the intent to leave the newborn and for an emergency medical services provider to remove the newborn from the device and take custody of the newborn infant;
      2. Installed with an adequate dual alarm system connected to the physical location where the device is physically installed. The dual alarm system shall be:
        1. Tested at least one (1) time per month to ensure the alarm system is in working order; and
        2. Visually checked at least two (2) times per day to ensure the alarm system is in working order;
      3. Approved by and physically located inside a participating staffed police station, staffed fire station, or staffed hospital that:
        1. Is licensed or otherwise legally operating in this state; and
        2. Is staffed continuously on a twenty-four (24) hour basis every day by a licensed emergency medical services provider; and
      4. Located in an area that is conspicuous and visible to police station, fire station, or hospital staff; and
    3. “Participating place of worship” means a recognized place of religious worship that has voluntarily agreed to perform the duty granted in this section and display signage prominently on its premises regarding its participation in this section and its operating hours during which staff will be present.
  2. A parent shall have the right to remain anonymous, shall not be pursued, and shall not be considered to have abandoned or endangered a newborn infant under KRS Chapters 508 and 530 if the parent:
    1. Places a newborn infant:
      1. With an emergency medical services provider;
      2. At a staffed police station, fire station, or hospital;
      3. At a participating place of worship; or
      4. Inside a newborn safety device that meets the requirements of subsection (1) of this section; and
    2. Expresses no intent to return for the newborn infant.
    1. Any emergency medical services provider, police officer, or firefighter who accepts physical custody of a newborn infant, or who physically retrieves a newborn infant from a newborn safety device that meets the requirements of subsection (1) of this section, in accordance with this section shall immediately arrange for the infant to be taken to the nearest hospital emergency room and shall have implied consent to any and all appropriate medical treatment. (3) (a) Any emergency medical services provider, police officer, or firefighter who accepts physical custody of a newborn infant, or who physically retrieves a newborn infant from a newborn safety device that meets the requirements of subsection (1) of this section, in accordance with this section shall immediately arrange for the infant to be taken to the nearest hospital emergency room and shall have implied consent to any and all appropriate medical treatment.
    2. Any staff member at a participating place of worship who accepts physical custody of a newborn infant in accordance with this section shall immediately contact the 911 emergency telephone service as set forth in KRS 65.750 to 65.760 , wireless enhanced 911 system as set forth in KRS 65.7621 to 65.7643 , or emergency medical services as set forth in KRS Chapter 311A for transportation to the nearest hospital emergency room.
  3. By placing a newborn infant in the manner described in this section, the parent:
    1. Waives the right to notification required by subsequent court proceedings conducted under KRS Chapter 620 until such time as a claim of parental rights is made; and
    2. Waives legal standing to make a claim of action against any person who accepts physical custody of the newborn infant.
  4. A staffed police station, fire station, hospital, emergency medical facility, or participating place of worship may post a sign easily seen by the public stating that: “This facility is a safe and legal place to surrender a newborn infant who is less than 30 days old. A parent who places a newborn infant at this facility and expresses no intent to return for the infant shall have the right to remain anonymous and not be pursued and shall not be considered to have abandoned or endangered their newborn infant under KRS Chapters 508 and 530.”
  5. Actions taken by an emergency medical services provider, police officer, firefighter, or staff member at a participating place of worship in conformity with the duty granted in this section shall be immune from criminal or civil liability. Nothing in this subsection shall limit liability for negligence.
  6. The provisions of subsection (2) of this section shall not apply when indicators of child physical abuse or child neglect are present.
  7. KRS 211.951 , 216B.190 , 405.075 , 620.350 , and 620.355 shall be known as “The Representative Thomas J. Burch Safe Infants Act.”

History. Enact. Acts 2002, ch. 303, § 4, effective April 9, 2002; 2016 ch. 122, § 3, effective July 15, 2016; 2018 ch. 152, § 1, effective July 14, 2018; 2021 ch. 117, § 1, effective June 29, 2021.

Research References and Practice Aids

Kentucky Law Journal.

Note: Remembering the Endangered “Child”: Limiting the Definition of “Safe Haven” and Looking Beyond the Safe Haven Law Framework, 98 Ky. L.J. 833 (2009/2010).

405.075. Anonymity of parent who places newborn infant with emergency provider, police station, fire station, hospital, or participating place of worship — Newborn safety device — Transport to emergency room — Implied consent to treatment — Waiver by parent — Signed posted at facility — Immunity of provider, officer, firefighter, or staff member from liability — Short title.

  1. As used in this section:
    1. “Newborn infant” means an infant who is medically determined to be less than thirty (30) days old;
    2. “Newborn safety device” means a device:
      1. Designed to permit a parent to anonymously place a newborn infant in the device with the intent to leave the newborn and for an emergency medical services provider to remove the newborn from the device and take custody of the newborn infant;
      2. Installed with an adequate dual alarm system connected to the physical location where the device is physically installed. The dual alarm system shall be:
        1. Tested at least one (1) time per month to ensure the alarm system is in working order; and
        2. Visually checked at least two (2) times per day to ensure the alarm system is in working order;
      3. Approved by and physically located inside a participating staffed Class I, Class II, Class III, or Class IV ground ambulance provider, staffed police station, staffed fire station, or staffed hospital that:
        1. Is licensed or otherwise legally operating in this state; and
        2. Is staffed continuously on a twenty-four (24) hour basis every day by a licensed emergency medical services provider; and
      4. Located in an area that is conspicuous and visible to Class I, Class II, Class III, or Class IV ground ambulance provider, police station, fire station, or hospital staff; and
    3. “Participating place of worship” means a recognized place of religious worship that has voluntarily agreed to perform the duty granted in this section and display signage prominently on its premises regarding its participation in this section and its operating hours during which staff will be present.
  2. A parent shall have the right to remain anonymous, shall not be pursued, and shall not be considered to have abandoned or endangered a newborn infant under KRS Chapters 508 and 530 if the parent:
    1. Places a newborn infant:
      1. With an emergency medical services provider;
      2. At a staffed police station, fire station, or hospital;
      3. At a participating place of worship; or
      4. Inside a newborn safety device that meets the requirements of subsection (1) of this section; and
    2. Expresses no intent to return for the newborn infant.
    1. Any emergency medical services provider, police officer, or firefighter who accepts physical custody of a newborn infant, or who physically retrieves a newborn infant from a newborn safety device that meets the requirements of subsection (1) of this section, in accordance with this section shall immediately arrange for the infant to be taken to the nearest hospital emergency room and shall have implied consent to any and all appropriate medical treatment. (3) (a) Any emergency medical services provider, police officer, or firefighter who accepts physical custody of a newborn infant, or who physically retrieves a newborn infant from a newborn safety device that meets the requirements of subsection (1) of this section, in accordance with this section shall immediately arrange for the infant to be taken to the nearest hospital emergency room and shall have implied consent to any and all appropriate medical treatment.
    2. Any staff member at a participating place of worship who accepts physical custody of a newborn infant in accordance with this section shall immediately contact the 911 emergency telephone service as set forth in KRS 65.750 to 65.760 , wireless enhanced 911 system as set forth in KRS 65.7621 to 65.7643 , or emergency medical services as set forth in KRS Chapter 311A for transportation to the nearest hospital emergency room.
  3. By placing a newborn infant in the manner described in this section, the parent:
    1. Waives the right to notification required by subsequent court proceedings conducted under KRS Chapter 620 until such time as a claim of parental rights is made; and
    2. Waives legal standing to make a claim of action against any person who accepts physical custody of the newborn infant.
  4. A staffed police station, fire station, hospital, emergency medical facility, or participating place of worship may post a sign easily seen by the public stating that: “This facility is a safe and legal place to surrender a newborn infant who is less than 30 days old. A parent who places a newborn infant at this facility and expresses no intent to return for the infant shall have the right to remain anonymous and not be pursued and shall not be considered to have abandoned or endangered their newborn infant under KRS Chapters 508 and 530.”
  5. Actions taken by an emergency medical services provider, police officer, firefighter, or staff member at a participating place of worship in conformity with the duty granted in this section shall be immune from criminal or civil liability. Nothing in this subsection shall limit liability for negligence.
  6. The provisions of subsection (2) of this section shall not apply when indicators of child physical abuse or child neglect are present.
  7. KRS 211.951 , 216B.190 , 405.075 , 620.350 , and 620.355 shall be known as “The Representative Thomas J. Burch Safe Infants Act.”

HISTORY: Enact. Acts 2002, ch. 303, § 4, effective April 9, 2002; 2016 ch. 122, § 3, effective July 15, 2016; 2018 ch. 152, § 1, effective July 14, 2018; 2021 ch. 117, § 1, effective June 29, 2021; 2022 ch. 45, § 1.

405.080. Support of indigent parent. [Repealed.]

Compiler’s Notes.

This section (331f: amend. Acts 1968, ch. 100, § 20) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

405.090. Supervisor of parents in certain counties. [Repealed.]

Compiler’s Notes.

This section (331k-1; Acts 1966, ch. 255, § 269) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

405.100. Duties of supervisor. [Repealed.]

Compiler’s Notes.

This section (331k-2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

405.110. Powers of supervisor. [Repealed.]

Compiler’s Notes.

This section (331k-3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

405.120. Bond of supervisor. [Repealed.]

Compiler’s Notes.

This section (331k-4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

405.130. Salary of supervisor. [Repealed.]

Compiler’s Notes.

This section (331k-5: amend. Acts 1946, ch. 223) was repealed by Acts 1966, ch. 255, § 283.

Adoption of Adult

405.140. Definitions for KRS 405.140 to 405.240. [Repealed.]

Compiler’s Notes.

This section (331b-9, 336-14) was repealed by Acts 1946, ch. 245, § 14.

405.150. Adoption, when authorized; petition for adoption; parties defendant. [Repealed.]

Compiler’s Notes.

This section (331b-3, 336-9) was repealed by Acts 1946, ch. 245, § 14.

405.160. Filing petition; investigation by Department of Welfare; hearing. [Repealed.]

Compiler’s Notes.

This section (331b-4) was repealed by Acts 1946, ch. 245, § 14.

405.170. Consent required for adoption. [Repealed.]

Compiler’s Notes.

This section (331b-5) was repealed by Acts 1946, ch. 245, § 14.

405.180. Order of adoption. [Repealed.]

Compiler’s Notes.

This section (331b-6) was repealed by Acts 1946, ch. 245, § 14.

405.190. Report of county clerk in Division of Vital Statistics; new record of birth. [Repealed.]

Compiler’s Notes.

This section (331b-7) was repealed by Acts 1946, ch. 245, § 14.

405.200. Descent and distribution; relation of child to natural and adopted parents. [Repealed.]

Compiler’s Notes.

This section (331b-8) was repealed by Acts 1946, ch. 245, § 14.

405.210. Adoption records confidential. [Repealed.]

Compiler’s Notes.

This section (331b-10) was repealed by Acts 1946, ch. 245, § 14.

405.220. Appeal to circuit court. [Repealed.]

Compiler’s Notes.

This section (331b-11) was repealed by Acts 1946, ch. 245, § 14.

405.230. Appeal bond; no costs against child appealing. [Repealed.]

Compiler’s Notes.

This section (331b-12) was repealed by Acts 1946, ch. 245, § 14.

405.240. Unlawful to advertise for adoption. [Repealed.]

Compiler’s Notes.

This section (331b-13) was repealed by Acts 1946, ch. 245, § 14.

405.250. Definitions for KRS 405.260 to 405.380. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 1) was repealed by Acts 1950, ch. 125, § 33.

405.260. Petition for adoption; who may file; where filed; joinder of husband and wife; who may be adopted; successive adoptions; child must live with petitioners. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 2) was repealed by Acts 1950, ch. 125, § 33.

405.270. Parties defendant; process; relinquishment of parental rights. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 2) was repealed by Acts 1950, ch. 125, § 33.

405.280. Verification of petition; what petition to allege; what to be filed with petition. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 3) was repealed by Acts 1950, ch. 125, § 33.

405.290. Department of Welfare to be given copy of petition and notice of hearing; investigation and report by department. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 4) was repealed by Acts 1950, ch. 125, § 33.

405.300. Consent, who must give; guardian ad litem; when required. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 5) was repealed by Acts 1950, ch. 125, § 33.

405.310. Personal attendance at hearing, in chambers. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 6) was repealed by Acts 1950, ch. 125, § 33.

405.320. Judgment of adoption; disposition of child if adoption not adjudged. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 7) was repealed by Acts 1950, ch. 125, § 33.

405.330. Appeal. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 8) was repealed by Acts 1950, ch. 125, § 33.

405.340. Legal status of adopted child; relation to natural parents. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 9) was repealed by Acts 1950, ch. 125, § 33.

405.350. Adoption records to be confidential; changes in records. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 12) was repealed by Acts 1950, ch. 125, § 33.

405.360. Completion of proceedings begun under former statutes. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 13) was repealed by Acts 1950, ch. 125, § 33.

405.370. Placing of child for adoption without consent of Department of Welfare forbidden. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 10) was repealed by Acts 1950, ch. 125, § 33.

405.380. Advertisements soliciting children for adoption forbidden. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 245, § 11) was repealed by Acts 1950, ch. 125, § 33.

405.390. Adoption of an adult.

An adult person over eighteen (18) years of age may be adopted in the same manner as provided by law for the adoption of a child and with the same legal effect, except that his consent alone to such adoption shall be required.

History. Enact. Acts 1950, ch. 120; 1964, ch. 21, § 6.

NOTES TO DECISIONS

1.Adoption of Adults.

Where will directed distribution of estate to the children of testatrix’s son, such term did not include adults adopted by the testatrix’s son. Wilson v. Johnson, 389 S.W.2d 634, 1965 Ky. LEXIS 390 ( Ky. 1965 ).

Where a childless wife adopted her husband during her lifetime, he is not entitled to take under a provision of her mother’s will which devised the remainder in an estate to the “child or children of any daughter Annie, if any.” Pennington v. Citizens Fidelity Bank & Trust Co., 390 S.W.2d 671, 1965 Ky. LEXIS 370 ( Ky. 1965 ).

Adoption of an adult for the purpose of bringing that person under the provisions of a pre-existing testamentary instrument when he clearly was not intended to be so covered should not be permitted. Minary v. Citizens Fidelity Bank & Trust Co., 419 S.W.2d 340, 1967 Ky. LEXIS 149 ( Ky. 1967 ), limited, Harper v. Martin, 552 S.W.2d 690, 1977 Ky. App. LEXIS 735 (Ky. Ct. App. 1977).

Opinions of Attorney General.

A name change by adoption is a special procedure in the Circuit Court and has no connection with name changing under KRS 401.010 . OAG 65-650 .

KRS 2.015 does not lower the age change eligibility to 18. OAG 65-651 .

The parents of an over-18-year-old adult, as defined in this section, are not required to be made parties to a suit of adoption wherein the over-18-year-old is sought to be adopted. OAG 69-259 .

Research References and Practice Aids

Cross-References.

Adoption of child, KRS 199.011 , 199.470 to 199.590 .

Kentucky Law Journal.

Greene and Schmitt, The Dilemma of Adoptees in the Class Gift Structure — The Kentucky Approach: A Rule Without Reason, 59 Ky. L.J. 921 (1971).

Bratt, Material Participation and the Valuation of Farm Land for Estate Tax Purposes Under the Tax Reform Act of 1976, 66 Ky. L.J. 848 (1977-78).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Petrilli, Kentucky Family Law, Termination of Parental Rights and Adoption, §§ 29.9, 29.10.

Administrative Process for Child Support

405.400. Short title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 144, § 17, effective July 13, 1984) was repealed by Acts 1988, ch. 411, § 35, effective May 1, 1988.

405.405. Application of definitions.

The definitions provided in KRS 205.710 shall be applicable to KRS 405.430 to 405.530 , unless the context requires otherwise.

History. Enact. Acts 1988, ch. 411, § 19, effective July 15, 1988.

Compiler’s Notes.

KRS 405.530 referred to in this section has been renumbered as KRS 405.991(2).

Research References and Practice Aids

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

405.410. Purpose. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 144, § 1, effective July 13, 1984) was repealed by Acts 1988, ch. 411, § 35, effective May 1, 1988.

405.411. Newspaper publication of names of persons with child support arrearages or who fail to appear in child support cases.

  1. The Cabinet for Health and Family Services’ designee under KRS 205.712(7) for the administration of child support may compile a list of the names of persons under its jurisdiction who have a child support arrearage that equals or exceeds six (6) months without payment, or fail, after receiving appropriate notice, to comply with subpoenas or warrants relating to paternity or child support proceedings as provided by 42 U.S.C. sec. 666(a)(16) . The cabinet may furnish this list to the newspaper of general circulation in that county for publication.
  2. The Department for Income Support, Child Support Enforcement, in the Cabinet for Health and Family Services shall determine uniform standards for publication. The cabinet is authorized to promulgate the necessary administrative regulations under KRS Chapter 13A to implement the provisions of this section.
  3. For purposes of this section, “newspaper of general circulation” means a publication bearing a title or name, regularly issued at least as frequently as once a week for a definite price, having a second-class mailing privilege, being not less than four (4) pages, published continuously during the immediately preceding one (1) year period, which is published for the dissemination of news of general interest, and is circulated generally in the political subdivision in which it is published and in which notice is to be given. In any county where a publication fully complying with this definition does not exist, the Cabinet for Health and Family Services may publish this list in the publication utilized by the Circuit Court Clerk of the county for publication of other legal notices in the county. A newspaper that is not engaged in the distribution of news of general interest to the public, but that is primarily engaged in the distribution of news of interest to a particular group of citizens, is not a newspaper of general circulation.

HISTORY: Enact. Acts 2000, ch. 430, § 11, effective July 14, 2000; 2005, ch. 99, § 630, effective June 20, 2005; 2012, ch. 158, § 70, effective July 12, 2012; 2018 ch. 112, § 16, effective July 14, 2018.

405.420. Definitions for KRS 405.400 to 405.530. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 144, § 4, effective July 13, 1984) was repealed by Acts 1988, ch. 411, § 35, effective May 1, 1988.

405.430. Genetic testing to establish paternity — Cabinet may determine child support or child care obligation — Adjustment of child support or child support obligation — Order requiring parent to work or continue educational or training activities — Disclosure of financial records — Voluntary acknowledgment of paternity as basis — Administrative subpoenas to enforce child support obligation — Prohibition — Employment assistance.

  1. When a parent presents himself to the cabinet for the voluntary establishment of paternity and clear evidence of parentage is not present, the cabinet shall pay when administratively ordered the cost of genetic testing to establish paternity, subject to recoupment from the alleged father when paternity is established.
  2. The cabinet shall obtain additional testing in any case if an original test is contested, upon request and advance payment by the contestant.
  3. In a contested paternity case, the child, the mother, and the putative father shall submit to genetic testing upon a request of any of the parties, unless the person or guardian of the person who is requested to submit to genetic testing shows good cause, taking into account the best interests of the child, why the genetic tests cannot be performed. The request shall be supported by a sworn statement of the party, requesting that the test be performed, which shall include the information required by 42 U.S.C. sec. 666(a)(5) (B)(i) or (ii).
  4. When a parent who fails to support a child is not obligated to provide child support by court order, the cabinet may administratively establish a child support obligation based upon a voluntary acknowledgment of paternity as set forth in KRS Chapter 406, the parent’s minimum monthly child support obligation and proportionate share of child care costs incurred due to employment or job search of either parent, or incurred while receiving elementary or secondary education, or higher education or vocational training which will lead to employment. The monthly child support obligation shall be determined pursuant to the Kentucky child support guidelines set forth in KRS 403.212 . The actual cost of child care shall be reasonable and shall be allocated between the parents in the same proportion as each parent’s gross income, as determined under the guidelines, bears to the total family gross income.
  5. The cabinet shall recognize a voluntary acknowledgment of paternity as a basis for seeking a support order, irrespective of the alleged father’s willingness to consent to a support order.
  6. When in the best interest of the child, the cabinet may review and adjust a parent’s child support obligation or child care obligation as established by the cabinet, upon a request of the cabinet when an assignment has been made, or upon either parent’s petition if the amount of the child support awarded under the order differs from the amount that would be awarded in accordance with KRS 403.212 . The cabinet shall notify parents at least once every three (3) years of the right to a review.
  7. In establishing or modifying a parent’s monthly child support obligation, the cabinet may use automated methods to identify orders eligible for review, conduct the review, identify orders eligible for adjustment, and apply the adjustment to eligible orders in accordance with KRS 403.212 . The cabinet shall utilize information, including financial records, about the parent and child which it has good reason to believe is reliable and may require the parents to provide income verification.
  8. In cases in which past-due support is owed for a child receiving public assistance under Title IV-A of the Federal Social Security Act, the cabinet shall issue an administrative order, or seek a judicial order, requiring the obligated parent to participate in work activities, or educational or vocational training activities for at least twenty (20) hours per week, unless the parent is incapacitated as defined by 42 U.S.C. sec. 607 .
  9. The cabinet may disclose financial records only for the purpose of establishing, modifying, or enforcing a child support obligation of an individual. A financial institution shall not be liable to any individual for disclosing any financial record of the individual to the cabinet attempting to establish, modify, or enforce a child support obligation.
  10. The cabinet may issue both intrastate and interstate administrative subpoenas to any individual or entity for financial or other information or documents which are needed to establish, modify, or enforce a child support obligation pursuant to Title IV-D of the Social Security Act, 42 U.S.C. secs. 651 et seq. An administrative subpoena lawfully issued in another state to an individual or entity residing in this state shall be honored and enforced in the Circuit Court of the county in which the individual or entity resides.
  11. In any case where a person or entity fails to respond to a subpoena within the specified time frame, the cabinet shall impose a penalty.
  12. No person shall knowingly make, present, or cause to be made or presented to an employee or officer of the cabinet any false, fictitious, or fraudulent statement, representation, or entry in any application, report, document, or financial record used in determining child support or child care obligations.
  13. If a person knowingly or by reason of negligence discloses a financial record of an individual, that individual may pursue civil action for damages in a federal District Court or appropriate state court. No liability shall arise with respect to any disclosure which results from a good faith, but erroneous, interpretation. In any civil action brought for reason of negligence of disclosure of financial records, upon finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to:
    1. The sum of the greater of one thousand dollars ($1,000) for each act of unauthorized disclosure of financial records; or
    2. The sum of the actual damages sustained by the plaintiff resulting from the unauthorized disclosure; plus
    3. If willful disclosure or disclosure was a result of gross negligence, punitive damages, plus the costs, including attorney fees, of the action.
  14. The cabinet shall issue an administrative order or seek a judicial order requiring a parent with a delinquent child support obligation, as defined by administrative regulation promulgated under KRS 15.055 , to participate in the program described in KRS 205.732 to help low-income, noncustodial parents find and keep employment unless the parent is incapacitated as defined by 42 U.S.C. sec. 607 .

History. Enact. Acts 1984, ch. 144, § 5, effective July 13, 1984; 1988, ch. 411, § 20, effective July 15, 1988; 1990, ch. 418, § 9, effective July 13, 1990; 1994, ch. 330, § 13, effective July 15, 1994; 1996, ch. 365, § 7, effective July 15, 1996; 1998, ch. 255, § 22, effective July 15, 1998; 2000, ch. 430, § 13, effective July 14, 2000.

Compiler’s Notes.

Title IV-A of the Federal Social Security Act, referred to in subsection (8), is codified as 42 USCS § 601 et seq.

NOTES TO DECISIONS

1.Child Support Arrearage.

Where DNA testing proved appellant was not the child’s father, and since appellant could not be held as the father on equitable grounds, the trial court erred by holding him in contempt for failing to pay child support arrearages without holding an evidentiary hearing to determine whether the mother was guilty of misrepresentation or fraud; in a case of fraud, even child support obligations that had already accrued could be set aside under CR 60.02. Wheat v. Commonwealth, 217 S.W.3d 266, 2007 Ky. App. LEXIS 49 (Ky. Ct. App. 2007).

2.Equitable Estoppel.

Where appellant stipulated he was a child’s father, but 12 years later, DNA testing proved he was not the father, the fact that appellant had remained silent on the issue of paternity for 12 years did not equitably estop him from denying paternity because he was never married to the mother, so there was no presumption of paternity, and he never had a relationship with the child. Wheat v. Commonwealth, 217 S.W.3d 266, 2007 Ky. App. LEXIS 49 (Ky. Ct. App. 2007).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

405.430. Genetic testing to establish paternity — Cabinet may determine child support or child care obligation — Adjustment of child support or child support obligation — Order requiring parent to work or continue educational or training activities — Disclosure of financial records — Voluntary acknowledgment of paternity as basis — Administrative subpoenas to enforce child support obligation — Prohibition — Employment assistance.

  1. When a parent presents himself to the cabinet for the voluntary establishment of paternity and clear evidence of parentage is not present, the cabinet shall pay when administratively ordered the cost of genetic testing to establish paternity, subject to recoupment from the alleged father when paternity is established.
  2. The cabinet shall obtain additional testing in any case if an original test is contested, upon request and advance payment by the contestant.
  3. In a contested paternity case, the child, the mother, and the putative father shall submit to genetic testing upon a request of any of the parties, unless the person or guardian of the person who is requested to submit to genetic testing shows good cause, taking into account the best interests of the child, why the genetic tests cannot be performed. The request shall be supported by a sworn statement of the party, requesting that the test be performed, which shall include the information required by 42 U.S.C. sec. 666(a)(5) (B)(i) or (ii).
  4. When a parent who fails to support a child is not obligated to provide child support by court order, the cabinet may administratively establish a child support obligation based upon a voluntary acknowledgment of paternity as set forth in KRS Chapter 406, the parent’s minimum monthly child support obligation and proportionate share of child care costs incurred due to employment or job search of either parent, or incurred while receiving elementary or secondary education, or higher education or vocational training which will lead to employment. The monthly child support obligation shall be determined pursuant to the Kentucky child support guidelines set forth in KRS 403.212 or Section 2 of this Act. The actual cost of child care shall be reasonable and shall be allocated between the parents in the same proportion as each parent’s gross income, as determined under the guidelines, bears to the total family gross income.
  5. The cabinet shall recognize a voluntary acknowledgment of paternity as a basis for seeking a support order, irrespective of the alleged father’s willingness to consent to a support order.
  6. When in the best interest of the child, the cabinet may review and adjust a parent’s child support obligation or child care obligation as established by the cabinet, upon a request of the cabinet when an assignment has been made, or upon either parent’s petition if the amount of the child support awarded under the order differs from the amount that would be awarded in accordance with KRS 403.212 or Section 2 of this Act. The cabinet shall notify parents at least once every three (3) years of the right to a review.
  7. In establishing or modifying a parent’s monthly child support obligation, the cabinet may use automated methods to identify orders eligible for review, conduct the review, identify orders eligible for adjustment, and apply the adjustment to eligible orders in accordance with KRS 403.212 or Section 2 of this Act. The cabinet shall utilize information, including financial records, about the parent and child which it has good reason to believe is reliable and may require the parents to provide income verification.
  8. In cases in which past-due support is owed for a child receiving public assistance under Title IV-A of the Federal Social Security Act, the cabinet shall issue an administrative order, or seek a judicial order, requiring the obligated parent to participate in work activities, or educational or vocational training activities for at least twenty (20) hours per week, unless the parent is incapacitated as defined by 42 U.S.C. sec. 607 .
  9. The cabinet may disclose financial records only for the purpose of establishing, modifying, or enforcing a child support obligation of an individual. A financial institution shall not be liable to any individual for disclosing any financial record of the individual to the cabinet attempting to establish, modify, or enforce a child support obligation.
  10. The cabinet may issue both intrastate and interstate administrative subpoenas to any individual or entity for financial or other information or documents which are needed to establish, modify, or enforce a child support obligation pursuant to Title IV-D of the Social Security Act, 42 U.S.C. secs. 651 et seq. An administrative subpoena lawfully issued in another state to an individual or entity residing in this state shall be honored and enforced in the Circuit Court of the county in which the individual or entity resides.
  11. In any case where a person or entity fails to respond to a subpoena within the specified time frame, the cabinet shall impose a penalty.
  12. No person shall knowingly make, present, or cause to be made or presented to an employee or officer of the cabinet any false, fictitious, or fraudulent statement, representation, or entry in any application, report, document, or financial record used in determining child support or child care obligations.
  13. If a person knowingly or by reason of negligence discloses a financial record of an individual, that individual may pursue civil action for damages in a federal District Court or appropriate state court. No liability shall arise with respect to any disclosure which results from a good faith, but erroneous, interpretation. In any civil action brought for reason of negligence of disclosure of financial records, upon finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to:
    1. The sum of the greater of one thousand dollars ($1,000) for each act of unauthorized disclosure of financial records; or
    2. The sum of the actual damages sustained by the plaintiff resulting from the unauthorized disclosure; plus
    3. If willful disclosure or disclosure was a result of gross negligence, punitive damages, plus the costs, including attorney fees, of the action.
  14. The cabinet shall issue an administrative order or seek a judicial order requiring a parent with a delinquent child support obligation, as defined by administrative regulation promulgated under KRS 15.055 , to participate in the program described in KRS 205.732 to help low-income, noncustodial parents find and keep employment unless the parent is incapacitated as defined by 42 U.S.C. sec. 607 .

HISTORY: Enact. Acts 1984, ch. 144, § 5, effective July 13, 1984; 1988, ch. 411, § 20, effective July 15, 1988; 1990, ch. 418, § 9, effective July 13, 1990; 1994, ch. 330, § 13, effective July 15, 1994; 1996, ch. 365, § 7, effective July 15, 1996; 1998, ch. 255, § 22, effective July 15, 1998; 2000, ch. 430, § 13, effective July 14, 2000; 2022 ch. 122, § 8.

405.435. Information from employers and labor organizations upon hiring of Kentucky residents — Use of information by cabinet in matters of paternity and child support — Fine for noncompliance — Hearing.

  1. An employer or labor organization in the Commonwealth of Kentucky shall provide information to the Cabinet for Health and Family Services when that employer or labor organization hires an employee who resides or works in the Commonwealth, or rehires or permits the return to work of an employee who has been laid-off, furloughed, separated, granted a leave without pay, or terminated from employment, unless the reporting could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission as determined by the secretary of health and family services.
  2. The employer shall provide the information within twenty (20) days of the hiring or return to work of the employee. The information shall include:
    1. The employee’s name, address, and Social Security number;
    2. The employer’s name, address, and, if the employer has been assigned one, federal and state employer identification numbers; and
    3. The date services for remuneration were first performed by the employee.
  3. An employer shall report the required information by submitting a copy of the employee’s W-4 form or, at the option of the employer, an equivalent form provided by the Cabinet for Health and Family Services as prescribed by administrative regulation promulgated by the Cabinet for Health and Family Services in accordance with KRS Chapter 13A.
  4. The Cabinet for Health and Family Services shall enter all new hire information into the database of the cabinet within five (5) business days.
  5. The Cabinet for Health and Family Services may promulgate administrative regulations in accordance with KRS Chapter 13A if the Cabinet for Health and Family Services determines exceptions are needed to reduce unnecessary or burdensome reporting or are needed to facilitate cost-effective operation of the cabinet under this section.
  6. The Cabinet for Health and Family Services shall use the information collected pursuant to this section for the location of noncustodial parents, establishment, modification, and enforcement of child support and any other matter related to paternity or child support.
  7. If the employer fails to report as required by this section, the Cabinet for Health and Family Services shall give the employer written notice of the provisions of this section, including the penalty for failure to report.
  8. If the employer has not filed a report within twenty (20) days from the date that the written notice is sent to him, the Cabinet for Health and Family Services shall send a second written notice.
  9. If the employer fails to file a W-4 or equivalent form within twenty (20) days from the date that the second written notice is sent, or supplies a false or incomplete report, and the failure is a result of a conspiracy between the employee and the employer to prevent the proper information from being filed within twenty (20) days from the date that the second written notice is sent, the Cabinet for Health and Family Services shall send the employer by certified mail, return receipt request, notice of an administrative fine. The fine shall be two hundred fifty dollars ($250) per calendar month per person for any violation occurring after the second notice has been given, and continuing until a W-4 or equivalent form is received by the Cabinet for Health and Family Services. No fine shall be imposed for any period of less than one (1) full calendar month.
  10. The employer shall have ten (10) days after receipt of the administrative fine notice to request a hearing before the Cabinet for Health and Family Services on whether the administrative fine was properly assessed. If a timely request for a hearing is received, the Cabinet for Health and Family Services shall schedule and conduct a hearing in accordance with administrative regulations promulgated by the cabinet in accordance with KRS Chapter 13A.

History. Enact. Acts 1998, ch. 255, § 41, effective July 15, 1998; 2000, ch. 55, § 1, effective July 14, 2000; 2005, ch. 99, § 631, effective June 20, 2005; 2012, ch. 158, § 71, effective July 12, 2012.

405.440. Notice of, and hearing on, determination of obligation.

The notice of a minimum monthly support obligation shall be served in person or by certified mail, return receipt requested, and shall include at least the following:

  1. The name of the child for whom the support obligation is owed;
  2. The amount of the support debt accrued or accruing;
  3. A statement that the parent’s earnings and property, both real and personal, are subject to judicial and administrative enforcement;
  4. That he may dispute the obligation amount or any other matter contained in the notice by requesting a dispute hearing within twenty (20) days;
  5. That, unless there is good cause as determined by the secretary for his failure to request a hearing, if he does not request a hearing, his agreement will be presumed and the first payment will be due twenty (20) days after receipt of the notice; and
  6. That if he requests a hearing and fails to appear, the hearing officer shall affirm the determination of minimum monthly support obligation.

History. Enact. Acts 1984, ch. 144, § 6, effective July 13, 1984.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

405.450. Dispute hearings — Appeal — Payment during pendency of appeal — Contested obligation amount during modification review.

  1. A hearing officer appointed by the secretary shall conduct dispute hearings in the county of the child or parent’s residence or any other location acceptable to the parent, which shall be scheduled within sixty (60) days of the parent’s request for a hearing. The dispute hearing proceedings shall be conducted in accordance with KRS Chapter 13B.
  2. The parent’s obligation to pay minimum monthly support shall be stayed until his receipt of the final order.
  3. The parent or the cabinet may file an appeal in the Circuit Court in the county of the parent’s or the child’s residence in accordance with KRS Chapter 13B.
  4. The parent shall, during the pendency of his appeal from the final order, absent a showing of indigency or need exceeding the child’s need, pay the minimum monthly support obligation to the cabinet, which shall, if the parent’s appeal is successful, return his money together with interest at the legal rate for judgments.
  5. If the cabinet elects to conduct the modification review as specified in KRS 405.430(6), either party may contest the adjustment to the obligation amount within thirty (30) days after the date of the notice of the adjustment by requesting a review under subsection (1) of this section and, if appropriate, a request for adjustment of the order as permitted by this chapter.

History. Enact. Acts 1984, ch. 144, § 7, effective July 13, 1984; 1986, ch. 487, § 12, effective July 15, 1986; 1996, ch. 318, § 354, effective July 15, 1996; 1998, ch. 255, § 24, effective July 15, 1998.

405.460. Enforcement of support obligation without action of hearing officer — Action to collect debt.

  1. When an arrearage has accrued that is equal to the amount of support payable for one (1) month on court-ordered or administratively-determined child support, which was set prior to July 15, 1988, the cabinet may use judicial or administrative remedies to enforce the support obligation without the necessity of any action by a hearing officer.
  2. In cases where the obligor has not requested a dispute hearing, action to collect the debt may be taken twenty (20) days after the obligor’s receipt of the notice of support obligation or his refusal to accept the notice.

History. Enact. Acts 1984, ch. 144, § 8, effective July 13, 1984; 1986, ch. 487, § 13, effective July 15, 1986; 1988, ch. 411, § 21, effective July 15, 1988.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

405.463. Withholding of state lottery winnings of delinquent child support obligors.

The Kentucky Lottery Corporation and the Cabinet for Health and Family Services shall develop a system to allow the Kentucky Lottery Corporation to receive a list of delinquent child support obligors from the Cabinet for Health and Family Services on a monthly basis. The Kentucky Lottery Corporation shall withhold delinquent amounts from prizes of winners that appear on the list. This system shall be timely and shall not create an unavoidable delay in the payment of a lottery prize.

History. Enact. Acts 2000, ch. 430, § 12, effective July 14, 2000; 2005, ch. 99, § 632, effective June 20, 2005.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Rule, § 263.24.

405.465. Income withholding or wage assignments for child support, medical support, maintenance, and medical support insurance orders.

  1. This section shall apply only to those child support, medical support, maintenance, and medical support insurance orders that are established, modified, or enforced by the Cabinet for Health and Family Services or those court orders obtained in administering Part D, Title IV of the Federal Social Security Act.
  2. All child support orders and medical support insurance orders being established, modified, or enforced by the Cabinet for Health and Family Services, or those orders obtained pursuant to the administration of Part D, Title IV of the Federal Social Security Act, shall provide for income withholding which shall begin immediately.
  3. The court shall order either or both parents who are obligated to pay child support, medical support, or maintenance under this section to assign to the Cabinet for Health and Family Services that portion of salary or wages of the parent due and to be due in the future as will be sufficient to pay the child support amount ordered by the court.
  4. The order shall be binding upon the employer or any subsequent employer upon the service by certified mail of a copy of the order upon the employer and until further order of the court. The employer may deduct the sum of one dollar ($1) for each payment made pursuant to the order.
  5. The employer shall notify the cabinet when an employee, for whom a wage withholding is in effect, terminates employment and provide the terminated employee’s last known address and the name and address of the terminated employee’s new employer, if known.
    1. An employer with twenty (20) or more employees shall notify in writing the cabinet, or its designee administering the support order, of any lump-sum payment of any kind of one hundred fifty dollars ($150) or more to be made to an employee under a wage withholding order. An employer with twenty (20) or more employees shall notify in writing the cabinet or its designee no later than forty-five (45) days before the lump-sum payment is to be made or, if the employee’s right to the lump-sum payment is determined less than forty-five (45) days before it is to be made, the date on which that determination is made. After notification, the employer shall hold each lump-sum payment of one hundred fifty dollars ($150) or more for thirty (30) days after the date on which it would otherwise be paid to the employee and, on order of the court, pay all or a specified amount of the lump-sum payment to the Department for Income Support, Child Support Enforcement. The employer may deduct the sum of one dollar ($1) for each payment. (6) (a) An employer with twenty (20) or more employees shall notify in writing the cabinet, or its designee administering the support order, of any lump-sum payment of any kind of one hundred fifty dollars ($150) or more to be made to an employee under a wage withholding order. An employer with twenty (20) or more employees shall notify in writing the cabinet or its designee no later than forty-five (45) days before the lump-sum payment is to be made or, if the employee’s right to the lump-sum payment is determined less than forty-five (45) days before it is to be made, the date on which that determination is made. After notification, the employer shall hold each lump-sum payment of one hundred fifty dollars ($150) or more for thirty (30) days after the date on which it would otherwise be paid to the employee and, on order of the court, pay all or a specified amount of the lump-sum payment to the Department for Income Support, Child Support Enforcement. The employer may deduct the sum of one dollar ($1) for each payment.
    2. As used in this subsection, “lump-sum payment of any kind” means a lump-sum payment of earnings as defined in KRS 427.005 .
  6. Any assignment made pursuant to court order shall have priority as against any attachment, execution, or other assignment, unless otherwise ordered by the court.
  7. No assignment under this section by an employee shall constitute grounds for dismissal of the obligor, refusal to employ, or taking disciplinary action against any obligor subject to withholding required by this section.

History. Enact. Acts 1972, ch. 109, § 1; 1976 (Ex. Sess.), ch. 14, § 409, effective January 2, 1978; 1984, ch. 144, § 9, effective July 13, 1984; 1986, ch. 487, § 14, effective July 15, 1986; 1988, ch. 411, § 22, effective July 15, 1988; 1990, ch. 418, § 10, effective July 13, 1990; 1994, ch. 330, § 14, effective July 15, 1994; 1996, ch. 365, § 8, effective July 15, 1996; 1998, ch. 255, § 21, effective July 15, 1998; 1998, ch. 426, § 584, effective July 15, 1998; 2005, ch. 99, § 633, effective June 20, 2005; 2005, ch. 149, § 1, effective January 1, 2006; 2012, ch. 158, § 72, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 405.035 .

Part D of Title IV of the Social Security Act referred to in subsections (1) and (2) of this section is compiled as 42 USCS §§ 651 to 667.

NOTES TO DECISIONS

1.Wage Assignment Proper.

The trial court erred in failing to order a wage assignment of the father pursuant to this section, where the mother had previously been forced to institute garnishment proceedings to collect more than $2300. Stewart v. Madera, 744 S.W.2d 437, 1988 Ky. App. LEXIS 21 (Ky. Ct. App. 1988).

2.Support.

Order for reimbursement of a marital debt paid was not child “support” under Kentucky’s Uniform Interstate Family Support Act (UIFSA), KRS 407.5101 , and could not be enforced as such by an Income Withholding Order; the award of $40,000 could only be interpreted as the mother’s share of the medical practice, a marital asset, reduced to dollars, and this amount could not be garnished via support order, as the UIFSA did not provide for the collection of money awarded on collateral matters during a divorce. Lichtenstein v. Barbanel, 322 S.W.3d 27, 2010 Ky. LEXIS 121 ( Ky. 2010 ).

Opinions of Attorney General.

A wage assignment order may not be used as a ground for disciplinary action resulting in dismissal of an employee. OAG 83-373 .

KRS 205.741 (now repealed) and this section require immediate and automatic wage assignment in all child support orders issued after July 15, 1988, unless the court has found in its judicial discretion that the basis exists for a good cause exception. In addition, KRS 403.215 requires the inclusion within every order or decree of dissolution containing provisions for child support issued after July 15, 1988, the notice that a wage assignment may issue if an arrearage accrues equal to one month. OAG 88-84 .

Research References and Practice Aids

Kentucky Law Journal.

Miller, Kentucky’s New Dissolution of Marriage Law, 61 Ky. L.J. 980 (1973).

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Rule, Form 263.24.

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Wage Assignment, Form 263.11.

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Rights to Assert Exemption to Child Support Wage Assignment, Form 263.15.

Caldwell’s Kentucky Form Book, 5th Ed., Summary Judgment and Order of Support, Form 255.09.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.13.

405.467. Withholding order issued by cabinet — Notice — Hearing — Combining orders and allocating amounts — Duty and liability of employer — Priority — Interstate requests.

  1. All support orders issued by the Cabinet for Health and Family Services, including those issued pursuant to Part D, Title IV of the Federal Social Security Act, shall provide for immediate withholding of earnings of the parent or parents obligated to pay child support and medical support as is necessary to pay the child support obligation, except where one (1) of the parties demonstrates, and the court or administrative order finds that there is good cause not to require immediate income withholding, or a written agreement is reached by both parties which provides for an alternative arrangement.
  2. In any case in which a support order was issued in the state and in which a parent is required to pay court-ordered or administratively determined child support, medical support, maintenance, and medical support insurance, and wage withholding is not in effect, and an arrearage accrues that is equal to the amount of support payment for one (1) month, upon request of the absent parent, request of the custodial parent, or upon administrative determination, the secretary shall issue an order for withholding of earnings of the parent as is necessary to comply with the order plus interest at the legal rate on the arrearage, if any, without the need for a judicial or administrative hearing.
  3. If a court-ordered arrearage repayment amount does not exist and an arrearage accrues that is equal to the amount of support payable for one (1) month, an arrearage repayment amount may be determined administratively. The cabinet shall promulgate administrative regulations establishing the guidelines for arrearage payments.
  4. In any case in which a parent is required either by court order or administrative order to provide medical insurance coverage for the child and the parent has failed to make application to obtain coverage for the child, the secretary shall issue an order for withholding of the employee’s share, if any, of premiums for health coverage and to pay the share of premiums to the insurer, without the need for a judicial or administrative hearing.
  5. The cabinet shall advise the obligated parent that a wage withholding has commenced by sending a copy of the order to withhold at the same time that the order is sent to the employer. The only basis for contesting the withholding shall be a mistake of fact or law. If the parent contests the withholding, the cabinet shall give the obligor an opportunity to present his or her case at an administrative hearing conducted in accordance with KRS Chapter 13B and decide if the withholding will continue.
  6. The cabinet shall combine any administrative or judicial wage withholding order, or multiple administrative or judicial orders for child support and medical support into a single wage withholding order when payable through the cabinet to a single family or to multiple family units.
  7. The cabinet shall serve the order to withhold earnings or notice of multiple wage withholding orders specifying wage withholding requirements on the employer of an obligor by certified mail, return receipt requested. The order shall state the amount to be withheld, or the requirement to enroll the child under the health insurance coverage, including amounts to be applied to arrearages, plus interest at the legal rate on the arrearage, if any, and the date the withholding is to begin. The total amount to be withheld, including current support and payment on arrearages plus interest, and medical insurance coverage may not exceed the limit permitted under the federal Consumer Credit Protection Act at 15 U.S.C. sec. 1673(b) .
  8. If there is more than one (1) notice for child support withholding against a single absent parent, the cabinet shall allocate amounts available for withholding, giving priority to current child support, up to the limits imposed under Section 303(b) of the Consumer Credit Protection Act at 15 U.S.C. sec. 1673(b) . The allocation by the cabinet shall not result in a withholding for one (1) of the support obligations not being implemented. Amounts resulting from wage withholding shall be allocated on a proportionate basis between multiple family units. Any custodial parent adversely affected by the provisions of this subsection shall have standing to challenge any proportionate allocations and, for good cause shown, a District Court, Circuit Court, or family court of competent jurisdiction may set aside the cabinet’s proportional allocations as to the custodial parent.
  9. If the amounts to be withheld preclude collection of the total amount of combined child support and medical support due to the limits of the federal Consumer Credit Protection Act at 15 U.S.C. sec. 1673(b) , the actual amount received shall be applied first to the current monthly child support obligation amount. Any payment exceeding the current monthly child support obligation shall then be applied by the cabinet to the administratively ordered or judicially ordered medical support obligation.
  10. The employer shall forward to the Cabinet for Health and Family Services that portion of salary or wages of the parent due and to be due in the future as will be sufficient to pay the child support amount ordered.
  11. The employer shall be held liable to the cabinet for any amount which the employer fails to withhold from earnings due an obligor following receipt of an order to withhold earnings.
  12. Any order to withhold earnings under this section shall have priority as against any attachment, execution, or other assignment, notwithstanding any state statute or administrative regulation to the contrary.
  13. No withholding under this section shall be grounds for discharging from employment, refusing to employ, or taking disciplinary action against any obligor subject to withholding required by this section.
  14. The remedies provided for in this section shall also be available for applicable support orders issued in other states.
  15. Interstate requests for withholding of earnings shall be processed by the cabinet.

History. Enact. Acts 1986, ch. 487, § 16, effective July 15, 1986; 1988, ch. 411, § 23, effective July 15, 1988; 1990, ch. 418, § 11, effective July 13, 1990; 1994, ch. 330, § 15, effective July 15, 1994; 1996, ch. 318, § 355, effective July 15, 1996; 1996, ch. 365, § 9, effective July 15, 1996; 1998, ch. 255, § 25, effective July 15, 1998; 1998, ch. 426, § 585, effective July 15, 1998; 2000, ch. 44, § 1, effective July 14, 2000; 2005, ch. 99, § 634, effective June 20, 2005; 2019 ch. 162, § 4, effective June 27, 2019.

Compiler’s Notes.

Part D of Title IV of the Social Security Act referred to in subsection (1) of this section is compiled as 42 USCS § 651 to 667.

Research References and Practice Aids

Kentucky Bench & Bar.

Griesmann, One Hit for Garnishment! The New Garnishment Laws, Volume 53, No. 1, Winter 1989 Ky. Bench & B. 20.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

405.470. Order to withhold and deliver property.

  1. The secretary may collect delinquent child support by issuing an order to withhold and deliver earnings or property of any kind, real and personal, including booting of vehicle in accordance with administrative regulations promulgated under KRS 205.745 , which the secretary has reason to believe are due, owing or belonging to the parent.
  2. Fifty percent (50%) of the disposable earnings against which a support debt is asserted shall be exempt and may be delivered to the obligor. The only other exemptions allowed shall be those provided in KRS 427.060 .
  3. The order shall continue to operate until the child support debt is paid in full and shall take priority over all other debts and creditors of such debtor.

History. Enact. Acts 1984, ch. 144, § 10, effective July 13, 1984; 1988, ch. 411, § 24, effective July 15, 1988; 1996, ch. 365, § 10, effective July 15, 1996; 2000, ch. 430, § 14, effective July 14, 2000.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

405.480. Order to withhold — Service — Contents.

  1. An order to withhold and deliver shall be personally served or mailed by certified mail, return receipt requested, on the person in possession or control of the property and the obligor.
  2. The order shall state the basis for and the amount of the support debt and that the obligor may offer a bond satisfactory to the cabinet to avoid losing possession of the property.

History. Enact. Acts 1984, ch. 144, § 11, effective July 13, 1984; 1988, ch. 411, § 25, effective July 15, 1988.

405.490. Answer to order to withhold — Procedure for obligor to contest amount of delinquent support withheld.

  1. Any person, including the obligor, who has been served with an order to withhold and deliver the obligor’s property shall answer the order within twenty (20) days.
  2. The person in possession of any obligor’s property shall withhold it and deliver it to the cabinet in accordance with the secretary’s directions; or the obligor may offer a bond which is satisfactory to the cabinet.
  3. The person in possession of obligor’s property shall have no liability or further responsibility after fulfilling the duties under this section.
  4. The obligor may dispute the amount of delinquent support by requesting a dispute hearing with twenty (20) days.
  5. If the obligor does not request a hearing, acknowledgment of the obligation is presumed and the secretary may apply the withheld property to the delinquent child support obligation.
  6. If a hearing is requested, when property or a bond is released to the secretary pursuant to an order to withhold and deliver property, the secretary shall hold the property or bond, pending determination of the obligor’s liability by a hearing officer, pursuant to KRS 405.450 .
  7. Upon a decision adverse to the Cabinet for Health and Family Services by a hearing officer, of the Circuit Court on appeal, the cabinet shall return the property together with interest at the legal rate for judgments.

History. Enact. Acts 1984, ch. 144, § 12, effective July 13, 1984; 1986, ch. 487, § 15, effective July 15, 1986; 1988, ch. 411, § 26, effective July 15, 1988; 1990, ch. 418, § 8, effective July 13, 1990; 1998, ch. 426, § 586, effective July 15, 1998; 2005, ch. 99, § 635, effective June 20, 2005.

405.500. Rebuttable presumption of receipt of notice.

  1. Whenever KRS 205.715 to 205.800 , 403.215 , 405.405 to 405.520 , 405.991(2), and 530.050 require delivery of a notice or other communication in person or by certified mail, return receipt requested, receipt shall be rebuttably presumed if the obligor or any other adult with apparent authority at the obligor’s address signs a receipt or if the obligor or other adult refuses to accept the notice or communication.
  2. In the case of a notice to withhold and deliver property served on a person in possession or control of property, receipt shall be rebuttably presumed if the person to whom the order is directed signs or refuses to sign a receipt or if his employee, agent or other adult with apparent authority signs or refuses to sign a receipt.

History. Enact. Acts 1984, ch. 144, § 13, effective July 13, 1984; 1988, ch. 411, § 27, effective July 15, 1988.

405.510. Reciprocity.

Persons holding earnings or real or personal property in Kentucky of obligors who owe child support shall honor valid orders of other states’ courts to enforce child support obligations.

History. Enact. Acts 1984, ch. 144, § 14, effective July 13, 1984; 1988, ch. 411, § 28, effective July 15, 1988.

405.520. Administrative regulations.

The cabinet may promulgate administrative regulations to implement the provisions of KRS 205.715 to 205.800 , 403.215 , 405.405 to 405.520 , 405.991(2), and 530.050 . The cabinet may adopt regulations necessary to prevent conflict with federal laws and regulations or the loss of federal funds and to establish procedures necessary to guarantee due process of law.

History. Enact. Acts 1984, ch. 144, § 15, effective July 13, 1984; 1988, ch. 411, § 29, effective July 15, 1988.

405.530. Penalty. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 144, § 16, effective July 13, 1984) has been renumbered as KRS 405.991(2).

Penalties

405.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (328 to 330, 331b-15, 331f) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

405.991. Penalties.

  1. Any person or corporation violating the provisions of KRS 405.465 or 405.467 shall be fined not more than five hundred dollars ($500) or be imprisoned in the county jail for not more than one (1) year, or both.
  2. A person who violates KRS 405.490(2) shall pay the cabinet the value of the property ordered to be held or the delinquent child support, whichever is lesser, plus interest thereon at the legal rate for judgments, court costs, and reasonable attorney’s fees.
  3. A person who violates KRS 405.430(12) shall be guilty of a Class A misdemeanor and, in addition to any other penalties provided by law, shall be responsible for payment of any difference between the amount of child support calculated using the correct information and the prior calculation using the false information.

History. Enact. Acts 1984, ch. 144, § 16, effective July 13, 1984; 1986, ch. 487, § 18, effective July 15, 1986; 1994, ch. 330, § 16, effective July 15, 1994; 1996, ch. 365, § 11, effective July 15, 1996; 1998, ch. 255, § 51, effective July 15, 1998.

Compiler’s Notes.

Subsection (2) of this section was formerly compiled as KRS 405.530 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

CHAPTER 406 Uniform Act on Paternity

406.005. Definitions for KRS 406.011 to 406.180.

As used in KRS 406.011 to 406.180 :

  1. “Genetic markers” means separate identifiable genes or complexes of genes generally isolated as a result of blood typing, at least seven (7) of which are normally tested in a paternity proceeding.
  2. “Genetic tests” means blood or tissue typing tests including, but not limited to, tests of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, electrofloresis, or deoxyribonucleic acid.
  3. “Paternity index” means the commonly accepted indicator used for denoting the existence of paternity. It represents the mathematically computed probability that the putative father is the true father of the child, as opposed to any other man of similar ethnic background. The paternity index, computed using results of various paternity tests following accepted statistical principles for the computation of probability, shall be in accordance with the method of expression accepted by the American Association of Blood Banks.

History. Enact. Acts 1992, ch. 434, § 6, effective July 14, 1992.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Summary Judgment and Order of Support, Form 255.08.

406.010. What children considered bastards. [Repealed.]

Compiler’s Notes.

This section (166) was repealed by Acts 1964, ch. 37, § 19.

406.011. Obligations of father — Presumption of paternity.

The father of a child which is or may be born out of wedlock is liable to the same extent as the father of a child born in wedlock, whether or not the child is born alive, for the reasonable expense of the mother’s pregnancy and confinement and for the education, necessary support and funeral expenses of the child. A child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife. However, a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.

History. Enact. Acts 1964, ch. 37, § 1; 1972, ch. 159, § 1.

NOTES TO DECISIONS

1.Purpose.

The Uniform Paternity Act is designed to give the mother a remedy to compel the putative father to contribute to the support of his illegitimate child. Sweat v. Turner, 547 S.W.2d 435, 1976 Ky. LEXIS 146 ( Ky. 1976 ).

2.Application.

Uniform Paternity Act had no application where man claiming to be natural father of child born out of wedlock brought custody action after mother’s death. Sweat v. Turner, 547 S.W.2d 435, 1976 Ky. LEXIS 146 ( Ky. 1976 ).

Trial court erred in finding there was no legal justification for ordering an ex-husband to pay half the funeral expenses for his only son as it would offend equity not to have the ex-husband pay half of the funeral expenses after collecting death benefits based upon his son’s death. Jewell v. Jewell, 255 S.W.3d 522, 2008 Ky. App. LEXIS 162 (Ky. Ct. App. 2008).

3.Construction.

KRS chapters 406 and 407 are not incompatible since chapter 406 provides a means for identifying the biological parents, while chapter 407 provides the locomotion operandi for enforcing an award of child support. Locke v. Zollicoffer, 608 S.W.2d 54, 1980 Ky. LEXIS 265 ( Ky. 1980 ).

4.Presumption of Legitimacy.

The legislature did not intend to bar an action to establish paternity within three years of birth of a child born with the presumption of legitimacy. Department of Economic Sec. v. Shanklin, 514 S.W.2d 682, 1974 Ky. LEXIS 325 ( Ky. 1974 ).

A 1972 action by the department of economic security to require the father of a child born in 1968, eight months after the parents were divorced, to contribute to the support of the child was not barred by the three year statute of limitations applicable to children born out of wedlock. Department of Economic Sec. v. Shanklin, 514 S.W.2d 682, 1974 Ky. LEXIS 325 ( Ky. 1974 ).

5.Duty of Support.

Agreement entered into by parents of illegitimate child by which father acknowledged paternity and agreed to pay set amount in support and mother agreed to “forbear continued proceedings” unless father failed to meet his support obligations did not prevent mother from bringing subsequent action to increase support payments. Mayfield v. Commonwealth, 546 S.W.2d 433, 1976 Ky. LEXIS 121 ( Ky. 1976 ), cert. denied, 434 U.S. 828, 98 S. Ct. 107, 54 L. Ed. 2d 87, 1977 U.S. LEXIS 2887 (U.S. 1977).

The father of a child born out of wedlock has the same duty of support as the father of a child born in wedlock. Mayfield v. Commonwealth, 546 S.W.2d 433, 1976 Ky. LEXIS 121 ( Ky. 1976 ), cert. denied, 434 U.S. 828, 98 S. Ct. 107, 54 L. Ed. 2d 87, 1977 U.S. LEXIS 2887 (U.S. 1977).

In a case where a legal father was equitably estopped from setting aside an agreed paternity order, it was an abuse of discretion to set aside the father's child support obligation based on the fact that he was not the biological father of two children who were born out of wedlock; the children were statutorily entitled to support, and the court was permitted to deviate from the child support guidelines where their application would have been unjust or inappropriate. K.W. v. J.S., 459 S.W.3d 399, 2015 Ky. App. LEXIS 21 (Ky. Ct. App. 2015).

6.Rebuttal of Presumption.

In a paternity action, the trial court could reasonably view the evidence as sufficient to remove the question from the realm of reasonable doubt and rebut the presumption of paternity of the husband under this section where the human leukocyte antigens test confirmed the paternity of the defendant, the wife’s lover, within a 99.93% degree of accuracy, there was evidence of access, the defendant contributed toward support, and he shared a similar genetic characteristic with the child. Bartlett v. Commonwealth, 705 S.W.2d 470, 1986 Ky. LEXIS 241 ( Ky. 1986 ), overruled in part, J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ).

Testimony by parents as to nonaccess is inadmissible to bastardize an innocent child presumed to have been born legitimate. Drake v. Drake, 721 S.W.2d 728, 1986 Ky. App. LEXIS 1480 (Ky. Ct. App. 1986).

The parties could not, with the trial court’s assistance, illegitimatize a child born during the marriage by means of the agreed order acknowledging that the husband was not the natural father of the wife’s young son. Drake v. Drake, 721 S.W.2d 728, 1986 Ky. App. LEXIS 1480 (Ky. Ct. App. 1986).

Although the spouses’ marital relationship did not fall into the category of having ceased ten months prior to child’s birth, it is uncontroverted that the husband was found in an earlier Circuit Court proceeding to not be the child’s father; that being so, the trial court certainly did not err by concluding that the presumption of legitimacy had been overcome by evidence so clear, distinct and convincing as to remove the question from the realm of reasonable doubt. Montgomery v. McCracken, 802 S.W.2d 943, 1990 Ky. App. LEXIS 181 (Ky. Ct. App. 1990), overruled in part, J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ).

Equitable estoppel required the denial of the CR 60.02 motion to set aside the parentage finding made at the time of the divorce, as the father was unable to overcome the presumption of legitimacy under KRS 406.011 ; although the mother told the father that the child might not have been the father’s, the father represented to the child that he was the child’s father, the child was unaware of the mother’s statement, the father intended for the child to consider the father as her father, and the child relied on this to the child’s detriment. S.R.D. v. T.L.B., 174 S.W.3d 502, 2005 Ky. App. LEXIS 220 (Ky. Ct. App. 2005).

Where the husband was listed on the birth certificate as the father and had supported the child, while the DNA results may have rebutted the presumption of paternity, such a determination did not mean that the husband was without custody rights in the divorce action. Hinshaw v. Hinshaw, 2006 Ky. App. LEXIS 275 (Ky. Ct. App. Sept. 1, 2006), aff'd, 237 S.W.3d 170, 2007 Ky. LEXIS 216 ( Ky. 2007 ).

Family court erred by equitably estopping the father from denying his paternity because the child was not born during the marriage so there existed no presumption of paternity under KRS 406.011 , the child knew that appellant was not her biological or natural father and, while he might have acted as the child’s natural father, the child, as well as he and the mother, knew that he was not, and, as such, he made no material misrepresentation to the child. J.R.A. v. G.D.A., 314 S.W.3d 764, 2010 Ky. App. LEXIS 103 (Ky. Ct. App. 2010).

KRS 406.011 set forth standing requirements for a third party to assert paternity of a child born during the lawful wedlock of a husband and wife; the mother did not challenge the biological father’s right to bring the action for nearly two years after he brought the paternity petition, and the mother waived any objection to the father’s standing to assert paternity. Draper v. Commonwealth ex rel. Heacock, 2011 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 21, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 1012 (Ky. Ct. App. Jan. 21, 2011).

Mother was estopped from arguing that KRS 406.180 limited jurisdiction to children born “out of wedlock.” The mother and her husband judicially admitted that another man was the father of a child born during the marriage, and diagnostic testing confirmed the other man’s paternity; the mother’s judicial admissions were sufficient to rebut the presumption that her husband was the father of the child. S.B. v. M.C., 352 S.W.3d 345, 2011 Ky. App. LEXIS 151 (Ky. Ct. App. 2011).

Trial court properly required genetic testing under KRS 406.081 , .091(2) because the man with whom the mother had an affair presented sufficient evidence of access to the mother to make him the child’s father under KRS 406.011 , .021; the court properly entered an order of contempt against the mother for refusing to submit to testing because the court gave the mother four opportunities to submit to testing. J. K. v. N.J.A., 397 S.W.3d 916, 2013 Ky. App. LEXIS 59 (Ky. Ct. App. 2013).

Circuit court properly dismissed an adult son’s complaint for determination of heirship following the death of his former stepfather because the blood tests taken in a prior child support action precluded the stepfather from being the son’s father, that conclusion was res judicata as to the son’s right to inherit from the stepfather’s estate based on being the stepfather’s natural child, and the stepfather did not seek a judgment of adoption. Tucker v. Tucker, 623 S.W.3d 142, 2021 Ky. App. LEXIS 60 (Ky. Ct. App. 2021).

7.Jurisdiction.

Where a child was found by the Circuit Court to have been born out of wedlock to a married woman and fathered by a man other than her husband, the District Court was clearly vested with subject matter jurisdiction to determine paternity. Montgomery v. McCracken, 802 S.W.2d 943, 1990 Ky. App. LEXIS 181 (Ky. Ct. App. 1990), overruled in part, J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ).

While KRS 406.051 provided a District Court with subject matter jurisdiction over an action to establish support for children born out of wedlock, that statutory provision did not apply in a case where the alleged father petitioned the Family Court for custody and support of child born to a wife of another. Kentucky paternity statutes did not apply and, thus, the Family Court did not have jurisdiction, because no evidence was presented to show that the child was born out of wedlock, which would have required a showing that the husband and wife’s marital relationship had ceased 10 months before the child’s birth, as set forth in KRS 406.011 . J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ), overruled in part, J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

Family court had jurisdiction over an action to establish paternity to a child that was conceived while the married couple was legally separated and pursuing a divorce; the presumption of paternity applied under KRS 406.011 , because the couple remarried the day before the child was born. Given the unusual facts of this case and the inherent rights of biological parents, the grant of joint custody to appellant former husband could not prevent appellee alleged biological father from pursuing his paternity action under the Uniform Act on Paternity, KRS ch. 406; the allegations and evidence of separation satisfied the jurisdictional requirements of KRS 406.011 . Smith v. Garber, 2010 Ky. LEXIS 142 (Ky. June 17, 2010, sub. op., 2010 Ky. Unpub. LEXIS 115 (Ky. June 17, 2010), modified, 2011 Ky. LEXIS 105 (Ky. June 16, 2011).

Trial court had subject matter jurisdiction over the putative father’s paternity action, not under KRS 406.011 because that statute did not define “child born out of wedlock,” but under KRS 406.051 and KRS 406.180 because the putative father’s action was one to determine the paternity of a child whose alleged biological parents were not married to each other as “marriage” was defined under Kentucky law. The putative father himself had standing to file the paternity action because the allegations contained in the putative father’s paternity complaint were sufficient to confer standing on the putative father under KRS 426.021, which allowed putative father’s to file a complaint to determine paternity. J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

8.Minor Father.

Father of an illegitimate child, although lacking the statutorily-defined capacity to consent to sexual relations on the date a child is conceived, may be adjudged liable in a civil paternity action for the years subsequent to the date upon which the father reaches the age of majority. Commonwealth ex rel. Rush v. Hatfield, 929 S.W.2d 200, 1996 Ky. App. LEXIS 148 (Ky. Ct. App. 1996).

Cited:

Boone v. Ballinger, 228 S.W.3d 1, 2007 Ky. App. LEXIS 133 (Ky. Ct. App. 2007).

Opinions of Attorney General.

Paternity cases cannot be maintained in Kentucky where the child was born out of the state after the effective date of the uniform act on paternity. OAG 64-516 .

Action for paternity of child may be maintained if the child was less than three at the commencement of the action and was born before the effective date of the uniform act on paternity. OAG 64-794 .

If a child was born after the effective date of the uniform act on paternity, a bastardy action may not be maintained in Kentucky unless the child was born in the state and was born out of wedlock to an unmarried woman. OAG 64-794 .

Considering this chapter as a whole and noting that KRS 406.051 provides in part that all remedies under KRS Ch. 407 are available for enforcement of duties of support under this chapter, the county court has a continuing jurisdiction over paternity actions for the purpose of the child’s support as well as the future education of the child and thus the court can modify the original judgment as it pertains to the education of the child. OAG 73-354 .

Where the husband has been in prison for two and one-half years without physical access to his wife and where the wife was pregnant on the filing of the divorce petition the court should continue the action and not terminate it as provided by subsection (7) of KRS 403.150 since the wife anticipated having a baby of a man extrinsic to the subject marital relationship while the husband is in prison goes a long way toward establishing the “irretrievable breakdown” proposition provided for in KRS 403.170 and since this section permits the court to make a determination of whether the evidence shows that the marital relationship between the husband and wife ceased at least ten months prior to the medically expected birth of the child. OAG 76-465 .

Since a paternity judgment of a county is a personal judgment, unless the defendant is personally served in Kentucky in the precise manner indicated in CR 4.04 or unless the defendant enters a voluntary appearance in the action, the judgment would be void for lack of jurisdiction. OAG 77-229 .

Essentially a bastardy proceeding is a civil proceeding, and the Kentucky Rules of Civil Procedure govern. OAG 79-635 .

The determination of whether the defendant is the actual father constitutes a condition precedent in judicially applying the remedy set out in KRS 406.011 et seq., i.e., in imposing a financial obligation on the alleged father, defendant. OAG 79-635 .

There is no explicit provision as relates to subject costs in this chapter. OAG 79-654 .

Although a surrogate parenting contract would be illegal and unenforceable in Kentucky, certain noncontractual remedies exist including a custody proceeding by the natural father under KRS 403.270 or, if the natural father and his wife decided that they did not want custody or to adopt the child, the surrogate mother could institute a paternity action under KRS 406.021 , and if the presumption under this section, that the child was born to the natural father and his wife, is overcome, the surrogate mother could have liability for certain expenses imposed upon the father. OAG 81-18 .

In the absence of contractual provisions between a natural father and a surrogate mother in a surrogate parenting contract providing that the surrogate and her husband agree to assume all risks, including death, incident to the pregnancy and the natural father provides term life insurance and medical insurance for the surrogate, a natural father would not be liable for injuries done to the surrogate mother because of her pregnancy, unless the surrogate establishes his paternity and he becomes liable for the reasonable expense of the surrogate’s pregnancy and confinement under this section. OAG 81-18 .

Research References and Practice Aids

Cross-References.

Children of illegal or void marriages, when legitimate, KRS 391.100 .

Uniform Interstate Family Support Act, KRS Ch. 407.

Kentucky Bench & Bar.

Davies, Children Born Out of Wedlock: Their Time Has Come, Volume 49, No. 2, April 1985 Ky. Bench & B. 10.

Kentucky Law Journal.

Comments, Pendleton v. Pendleton: An Equal Right of Inheritance for the Illegitimate?, 65 Ky. L.J. 712 (1976-77).

Notes, In Defense of Surrogate Parenting: A Critical Analysis of the Recent Kentucky Experience, 69 Ky. L.J. 877 (1980-81).

Notes, Fraud Between Sexual Partners Regarding the Use of Contraceptives, 71 Ky. L.J. 593 (1982-83).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Comment, Illegitimate Intestate Succession Rights in Kentucky: “Why Brands They Us With Base: With Baseness? Bastardy? Base, Base?” 3 N. Ky. L. Rev. 196 (1976).

Kentucky Survey Issue: Article: A Biological Father’s Rights Extinguished, 37 N. Ky. L. Rev. 343 (2010).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Paternity, § 255.00.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.2, 31.4, 31.9, 31.10, 31.20, 31.25.

Petrilli, Kentucky Family Law, Support of the Family, § 16.12.

406.020. Charge of bastardy; statement to county clerk. [Repealed.]

Compiler’s Notes.

This section (167) was repealed by Acts 1964, ch. 37, § 19.

406.021. Determination of paternity — Liability of noncustodial parent.

  1. Paternity may be determined upon the complaint of the mother, putative father, child, person, or agency substantially contributing to the support of the child. The action shall be brought by the county attorney or by the Cabinet for Health and Family Services or its designee upon the request of complainant authorized by this section.
  2. Paternity may be determined by the District Court when the mother and father of the child, either:
    1. Submit affidavits in which the mother states the name and Social Security number of the child’s father and the father admits paternity of the child; or
    2. Give testimony before the District Court in which the mother states the name and Social Security number of the child’s father and the father admits paternity of the child.
  3. If paternity has been determined or has been acknowledged according to the laws of this state, the liabilities of the noncustodial parent may be enforced in the same or other proceedings by the mother, child, person, or agency substantially contributing to the cost of pregnancy, confinement, education, necessary support, or funeral expenses. Bills for testing, pregnancy, and childbirth without requiring third party foundation testimony shall be regarded as prima facie evidence of the amount incurred. An action to enforce the liabilities of the noncustodial parent shall be brought by the county attorney upon the request of such complainant authorized by this section. An action to enforce the liabilities of the cost of pregnancy, birthing costs, child support, and medical support shall be brought by the county attorney or by the Cabinet for Health and Family Services or its designee.
  4. Voluntary acknowledgment of paternity pursuant to KRS 213.046 shall create a rebuttable presumption of paternity.
  5. Upon a showing of service of process on the defendant and if the defendant has made no pleading to the court or has not moved to enter evidence pursuant to KRS 406.091 , the court shall order paternity to be established by default.

History. Enact. Acts 1964, ch. 37, § 2; 1968, ch. 200, § 11; 1972, ch. 159, § 2; 1976 (Ex. Sess.), ch. 14, § 410, effective January 2, 1978; 1990, ch. 272, § 1, effective July 13, 1990; 1994, ch. 330, § 17, effective July 15, 1994; 1998, ch. 255, § 26, effective July 15, 1998; 1998, ch. 426, § 587, effective July 15, 1998; 2005, ch. 99, § 636, effective June 20, 2005; 2005, ch. 149, § 2, effective June 20, 2005.

Legislative Research Commission Note.

(6/20/2005). This section was amended by 2005 Ky. Acts chs. 99 and 149, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Jurisdiction.

The Uniform Paternity Act vests the county juvenile court with exclusive jurisdiction to determine paternity actions. Sweat v. Turner, 547 S.W.2d 435, 1976 Ky. LEXIS 146 ( Ky. 1976 ).

Because jurisdiction over paternity determinations was exclusively with the District Court, the Circuit Court lacked jurisdiction to render a paternity judgment. Boone v. Ballinger, 228 S.W.3d 1, 2007 Ky. App. LEXIS 133 (Ky. Ct. App. 2007).

Despite the fact that KRS 406.021 stated that a paternity complaint may be filed by a “putative father,” the Family Court did not obtain jurisdiction over the alleged father’s petition for custody and support in a case where the alleged father asserted bioloigical father status regarding a child born to a wife of another. Kentucky paternity statutes did not apply where no showing was made that the marital relationship ceased to exist 10 months before the child was born, as set forth in KRS 406.011 . J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ), overruled in part, J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

2.Parties.

Where the county attorney did not have the possibility of obtaining a child support order from the putative father’s estate, he lacked standing to bring a paternity action. Commonwealth ex rel. Walker v. Estate of Sullivan, 997 S.W.2d 499, 1999 Ky. App. LEXIS 92 (Ky. Ct. App. 1999).

Where the estate of a decedent filed a complaint for determination of paternity of a child allegedly fathered by the decedent, although the Family Court did not have jurisdiction over a paternity action under KRS 406.021 or KRS 406.180 , as the estate was not the proper party to file such a suit, and neither the child nor mother ever lived in the United States, the court had jurisdiction under KRS 418.040 to enter a declaratory judgment as to the child’s paternity. Uninsured Employers' Fund v. Bradley, 244 S.W.3d 741, 2007 Ky. App. LEXIS 403 (Ky. Ct. App. 2007).

When, in a divorce, a trial court entered an order determining a subject child’s paternity, based on an acknowledgment of paternity submitted by the person found to be the child’s father and the child’s mother, and DNA tests subsequently showed this person was not the child’s father, it was error to conclude that the father committed fraud by alleging paternity because (1) the father’s knowledge of a “remote possibility” that the father was not the child’s father was insufficient to show fraud, and (2) any concealment of non-paternity did not bar others involved in a neglect case concerning the child from fully presenting those parties’ sides of the case, since those parties were not parties to the divorce. Ipock v. Ipock, 403 S.W.3d 580, 2013 Ky. App. LEXIS 100 (Ky. Ct. App. 2013).

3.Prior Paternity Action.

Prior paternity action is not required to petition the circuit court for custody of a child where father can produce reliable evidence that he is the father and that the best interest of the child would result. Sweat v. Turner, 547 S.W.2d 435, 1976 Ky. LEXIS 146 ( Ky. 1976 ).

Trial court had subject matter jurisdiction over the putative father’s paternity action, not under KRS 406.011 because that statute did not define “child born out of wedlock,” but under KRS 406.051 and KRS 406.180 because the putative father’s action was one to determine the paternity of a child whose alleged biological parents were not married to each other as “marriage” was defined under Kentucky law. The putative father himself had standing to file the paternity action because the allegations contained in the putative father’s paternity complaint were sufficient to confer standing on the putative father under KRS 426.021, which allowed putative father’s to file a complaint to determine paternity. J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

When, in a divorce, a trial court entered an order determining a subject child’s paternity, based on an acknowledgment of paternity submitted by the person found to be the child’s father and the child’s mother, and DNA tests subsequently showed this person was not the child’s father, it was not error to amend the order because the conclusive paternity tests were a circumstance rendering the order subject to amendment. Ipock v. Ipock, 403 S.W.3d 580, 2013 Ky. App. LEXIS 100 (Ky. Ct. App. 2013).

4.Action by County Attorney.

A prosecutor from one county in a multi-county judicial district could bring an action pursuant to this section to determine the paternity of children from another county in the same judicial district, since paternity actions may be brought by and prosecuted by the mother, child, person or agency substantially contributing to the support of the child, through an attorney of their choosing, with the county attorney only entering the case when requested to do so by the complainant, and because, in this case, the Department for Human Resources contracted with the county attorney to represent the complainant pursuant to KRS 407.190 and subsection (3) of KRS 407.250 . Commonwealth ex rel. Stumbo v. Wilson, 622 S.W.2d 912, 1981 Ky. LEXIS 281 ( Ky. 1981 ).

5.Blood Tests.

The trial court’s failure to provide an indigent putative father blood tests at no expense to him violated that individual’s Fourteenth Amendment rights. Shaw v. Seward, 689 S.W.2d 37, 1985 Ky. App. LEXIS 573 (Ky. Ct. App. 1985).

6.Genetic Testing Required.

Trial court properly required genetic testing under KRS 406.081 , .091(2) because the man with whom the mother had an affair presented sufficient evidence of access to the mother to make him the child’s father under KRS 406.011 ; the court properly entered an order of contempt against the mother for refusing to submit to testing because the court gave the mother four opportunities to submit to testing. J. K. v. N.J.A., 397 S.W.3d 916, 2013 Ky. App. LEXIS 59 (Ky. Ct. App. 2013).

7.Standard of Proof.

In an action to establish paternity, the “preponderance of evidence” standard satisfies due process. Shaw v. Seward, 689 S.W.2d 37, 1985 Ky. App. LEXIS 573 (Ky. Ct. App. 1985).

8.Statute of Limitations.

KRS 406.031 , which formerly provided for a four-year statute of limitations in paternity actions pursuant to subsection (1) of this section, violated the Equal Protection Clause of the 14th Amendment of the United States Constitution and was therefore unconstitutional. Alexander v. Commonwealth, 708 S.W.2d 102, 1986 Ky. App. LEXIS 1111 (Ky. Ct. App. 1986) (decision prior to 1986 amendment of KRS 406.031 ).

The invalidation of KRS 406.031 leaves this commonwealth without a statute of limitations in paternity actions; therefore, as a paternity action is a cause of action created by statute, in the absence of any other time limit fixed by statute, the five-year time limit set out in subdivision (2) of KRS 413.120 shall apply to actions brought pursuant to subsection (1) of this section. Alexander v. Commonwealth, 708 S.W.2d 102, 1986 Ky. App. LEXIS 1111 (Ky. Ct. App. 1986) (decision prior to 1986 amendment of KRS 406.031 ).

The five-year time limit of subdivision (2) of KRS 413.120 does not run during the minority of any person entitled to bring an action pursuant to subsection (1) of this section. Alexander v. Commonwealth, 708 S.W.2d 102, 1986 Ky. App. LEXIS 1111 (Ky. Ct. App. 1986) (decision prior to 1986 amendment of KRS 406.031 ).

9.Res Judicata.

If an action has been brought under the Uniform Act on Paternity, and prosecuted to judgment on the merits, the outcome is conclusive on the issue of paternity since such determination is essential to an adjudication of a duty of support; if the issue of paternity is litigated and determined as an element of an action for support, the result is res judicata as to other legal rights which exist by virtue of paternity. Ellis v. Ellis, 752 S.W.2d 781, 1988 Ky. LEXIS 47 ( Ky. 1988 ).

10.Paternity and Custody Statutes Distinguished.

Putative grandparents have standing to pursue reasonable visitation rights under KRS 405.021 ; there is no requirement that they obtain a court order establishing father’s paternity prior to seeking visitation. Posey v. Powell, 965 S.W.2d 836, 1998 Ky. App. LEXIS 27 (Ky. Ct. App. 1998).

Family court erred by concluding that appellant was the legal father of the child because, although the affidavit of paternity under KRS 213.046 created a rebuttable presumption of paternity under KRS 406.021 , the father and the mother had acknowledged that his sworn affidavit of paternity was false and they admitted that he was not the child’s biological father; thus, the presumption of paternity was clearly rebutted. J.R.A. v. G.D.A., 314 S.W.3d 764, 2010 Ky. App. LEXIS 103 (Ky. Ct. App. 2010).

11.Void Judgment.

Agreed-upon paternity judgment, which established only non-paternity, was void and set aside because the family court did not follow the mandate of the applicable statute since it did not name the father, provide affidavits to prove his status as father, or order genetic testing. Commonwealth v. B.N.T., 2022 Ky. LEXIS 124 (Ky. Apr. 28, 2022).

Cited:

Department of Economic Sec. v. Shanklin, 514 S.W.2d 682, 1974 Ky. LEXIS 325 ( Ky. 1974 ); Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ); Commonwealth ex rel. Lepard v. Young, 666 S.W.2d 735, 1983 Ky. LEXIS 310 ( Ky. 1983 ); Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Opinions of Attorney General.

It is the county attorney’s duty to prepare the complaint, the clerk’s duty to prepare the summons, and the sheriff’s duty to serve same upon the alleged father, the defendant. OAG 65-472 .

A judgment by default may be entered in a proceeding under this chapter. OAG 66-762 .

A judgment for child support may be entered in a paternity action, even when a default has been entered against the putative father only after the court hears evidence on which to base an award. OAG 66-762 .

It is within the discretion of the court in which the paternity action is pending to decline to take the issue of paternity as admitted by default and to require proof on behalf of plaintiff on that issue. OAG 66-762 .

The court may, if the defendant in the paternity action is within the subpoena power of the court, subpoena him in as a witness at the hearing in spite of his failure to answer the complaint. OAG 66-762 .

There is no statutory basis for the county attorney’s getting any fee for his services in filing such an action either before or after the action is begun. OAG 71-90 .

The act of filing a paternity action is not discretionary with the county attorney. OAG 71-426 .

The county attorney may not refuse to file a paternity action on the grounds he thinks it is unfounded if the other conditions of this chapter are met. OAG 71-426 .

The county attorney is the proper person to initiate paternity actions upon the request of a proper party, but the county attorney is vested with the discretion to not prosecute such an action if he believes there is no chance of success. OAG 74-63 .

Since a paternity judgment of a county is a personal judgment, unless the defendant is personally served in Kentucky in the precise manner indicated in CR 4.04 or unless the defendant enters a voluntary appearance in the action, the judgment would be void for lack of jurisdiction. OAG 77-229 .

There is nothing in this section authorizing the county court to consider paternity cases in juvenile session of county court. OAG 78-104 .

Although a surrogate parenting contract would be illegal and unenforceable in Kentucky, certain noncontractual remedies exist including a custody proceeding by the natural father under KRS 403.270 or, if the natural father and his wife decided that they did not want custody or to adopt the child, the surrogate mother could institute a paternity action under this section, and if the presumption under KRS 406.011 , that the child was born to the natural father and his wife, is overcome, the surrogate mother could have liability for certain expenses imposed upon the father. OAG 81-18 .

Research References and Practice Aids

Kentucky Bench & Bar.

Davies, Children Born Out of Wedlock: Their Time Has Come, Volume 49, No. 2, April 1985 Ky. Bench & B. 10.

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

May, Social Reform for Kentucky’s Judicial System: The Creation of Unified Family Courts, 92 Ky. L.J. 571 (2003).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Acknowlegment of Paternity, Form 255.02.

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit, Form 255.01.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint, Form 255.03.

Caldwell’s Kentucky Form Book, 5th Ed., Default Judgment, Form 255.05.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Paternity, § 255.00.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.9, 31.11, 31.12.

Petrilli, Kentucky Family Law, Forms, Family Offenses, Form 4.3.

Petrilli, Kentucky Family Law, Forms, Paternity, Form 7.1, Form 7.4.

406.025. Rebuttable presumption of voluntary acknowledgment-of-paternity affidavit — Temporary support order if paternity is indicated — Continuation of child support until final determination of paternity.

  1. Upon completion of a signed, notarized, voluntary acknowledgment-of-paternity affidavit by the mother and alleged father, obtained through the hospital-based paternity program, and submitted to the state registrar of vital statistics, paternity shall be rebuttably presumed for the earlier of sixty (60) days or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a child support order.
  2. Upon completion of a signed, notarized, voluntary acknowledgment-of-paternity affidavit by the mother and alleged father obtained outside of the hospital and submitted to the state registrar of vital statistics, paternity shall be rebuttably presumed for the earlier of sixty (60) days or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a child support order following the date of signatures on the notarized affidavit.
  3. Pending an administrative or judicial determination of parentage, or upon a signed, notarized, voluntary acknowledgment-of-paternity form having been transmitted by the local registrar and received by the Vital Statistics Branch, a temporary support order shall be issued upon motion of any party if paternity is indicated by genetic testing or other clear and convincing evidence.
  4. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.
  5. The court shall, within fourteen (14) days from the filing of the motion, order an amount of temporary child support based upon the child support guidelines as provided by KRS 403.212 . The ordered child support shall be retroactive to the date of the filing of the motion to move the court to enter an order for temporary child support without written or oral notice to the adverse party. The order shall provide that the order becomes effective seven (7) days following service of the order and movant’s affidavit upon the adverse party unless the adverse party, within the seven (7) day period, files a motion for a hearing before the court. The motion for hearing shall be accompanied by the affidavit required by KRS 403.160(2)(a). Pending the hearing, the adverse party shall pay child support in an amount based upon the guidelines and the adverse party’s affidavit. The child support order entered following the hearing shall be retroactive to the date of the filing of the motion for temporary support unless otherwise ordered by the court.
  6. Unless good cause is shown, court or administratively ordered child support shall continue until final judicial or administrative determination of paternity.

History. Enact. Acts 1996, ch. 365, § 12, effective July 15, 1996; 1998, ch. 255, § 27, effective July 15, 1998; 2005, ch. 99, § 637, effective June 20, 2005.

NOTES TO DECISIONS

1.Applicability.

Pursuant to Ky. Rev. Stat. Ann. § 406.025(5), attorney's fees were allowed on remand where the judgment specifically invoked and utilized Ky. Rev. Stat. Ann. § 403.212 to resolve the child support claims. Seeger v. Lanham, 2016 Ky. App. LEXIS 188 (Ky. Ct. App. Nov. 18, 2016), aff'd in part and rev'd in part, 542 S.W.3d 286, 2018 Ky. LEXIS 132 ( Ky. 2018 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Acknowlegment of Paternity, Form 255.02.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context Parent and Child, § 256.00.

406.025. Rebuttable presumption of voluntary acknowledgment-of-paternity affidavit — Temporary support order if paternity is indicated — Continuation of child support until final determination of paternity.

  1. Upon completion of a signed, notarized, voluntary acknowledgment-of-paternity affidavit by the mother and alleged father, obtained through the hospital-based paternity program, and submitted to the state registrar of vital statistics, paternity shall be rebuttably presumed for the earlier of sixty (60) days or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a child support order.
  2. Upon completion of a signed, notarized, voluntary acknowledgment-of-paternity affidavit by the mother and alleged father obtained outside of the hospital and submitted to the state registrar of vital statistics, paternity shall be rebuttably presumed for the earlier of sixty (60) days or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a child support order following the date of signatures on the notarized affidavit.
  3. Pending an administrative or judicial determination of parentage, or upon a signed, notarized, voluntary acknowledgment-of-paternity form having been transmitted by the local registrar and received by the Vital Statistics Branch, a temporary support order shall be issued upon motion of any party if paternity is indicated by genetic testing or other clear and convincing evidence.
  4. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.
  5. The court shall, within fourteen (14) days from the filing of the motion, order an amount of temporary child support based upon the child support guidelines as provided by KRS 403.212 or Section 2 of this Act. The ordered child support shall be retroactive to the date of the filing of the motion to move the court to enter an order for temporary child support without written or oral notice to the adverse party. The order shall provide that the order becomes effective seven (7) days following service of the order and movant’s affidavit upon the adverse party unless the adverse party, within the seven (7) day period, files a motion for a hearing before the court. The motion for hearing shall be accompanied by the affidavit required by KRS 403.160(2)(a). Pending the hearing, the adverse party shall pay child support in an amount based upon the guidelines and the adverse party’s affidavit. The child support order entered following the hearing shall be retroactive to the date of the filing of the motion for temporary support unless otherwise ordered by the court.
  6. Unless good cause is shown, court or administratively ordered child support shall continue until final judicial or administrative determination of paternity.

HISTORY: Enact. Acts 1996, ch. 365, § 12, effective July 15, 1996; 1998, ch. 255, § 27, effective July 15, 1998; 2005, ch. 99, § 637, effective June 20, 2005; 2022 ch. 122, § 9.

406.030. Warrant; bond of accused for appearance; continuance. [Repealed.]

Compiler’s Notes.

This section (168, 170) was repealed by Acts 1964, ch. 37, § 19.

406.031. Limitation of action.

  1. The determination of paternity under the provisions of KRS 406.021 (1) shall be commenced within eighteen (18) years after the birth, miscarriage or stillbirth of a child. However, in such cases, liability for child support shall not predate the initiation of action taken to determine paternity as set forth in KRS 406.021 if the action is taken two (2) years or more from the date of birth.
  2. Any person for whom paternity has not yet been established and who had not reached eighteen (18) years of age as of August 16, 1984, including those persons for whom a paternity action was brought but dismissed because a statute of limitations of less than eighteen (18) years was then in effect, may bring an action to establish paternity.

History. Enact. Acts 1964, ch. 37, § 3; 1972, ch. 159, § 3; 1984, ch. 379, § 6, effective July 13, 1984; 1986, ch. 487, § 17, effective July 15, 1986; 1990, ch. 418, § 15, effective July 13, 1990; 2021 ch. 47, § 4, effective June 29, 2021.

NOTES TO DECISIONS

1.Constitutionality.

The three-year statute of limitations formerly set out in this section failed to afford equal protection to illegitimate children and was therefore unconstitutional. Commonwealth ex rel. Lepard v. Young, 666 S.W.2d 735, 1983 Ky. LEXIS 310 ( Ky. 1983 ) (Decision prior to 1984 amendment).

This section which formerly provided for a four-year statute of limitations in paternity actions pursuant to subsection (1) of KRS 406.021 violated the Equal Protection Clause of the 14th Amendment of the United States Constitution and was therefore unconstitutional. Alexander v. Commonwealth, 708 S.W.2d 102, 1986 Ky. App. LEXIS 1111 (Ky. Ct. App. 1986) (decision prior to 1986 amendment of this section).

2.Construction.

Court of Appeals of Kentucky holds that a trial court may, in its discretion, apply excess social security retirement dependent benefits as a credit against the pre-petition child support liabilities a father incurs when a paternity action is initiated before a child turns four years old. Seeger v. Lanham, 2016 Ky. App. LEXIS 188 (Ky. Ct. App. Nov. 18, 2016), aff'd in part and rev'd in part, 542 S.W.3d 286, 2018 Ky. LEXIS 132 ( Ky. 2018 ).

3.Application.

Where a district court’s opinion which awarded arrearages in child support in a paternity suit was entered in the interim after the prior version of this section was held unconstitutional and before the passage of the current version of this section, but the appeal to the circuit court was decided after the current version became effective, the circuit court properly ruled that current version could not be retroactively applied. See Wigginton v. Commonwealth, 760 S.W.2d 885, 1988 Ky. App. LEXIS 166 (Ky. Ct. App. 1988).

Trial court erred in holding that excess social security retirement benefits could only be applied as a credit toward the pre-petition child support liabilities from the date that the benefits began accruing where the father's pre-petition child support liability was not established until a judgment, and the child began receiving social security retirement dependent benefits before the judgment date. Seeger v. Lanham, 2016 Ky. App. LEXIS 188 (Ky. Ct. App. Nov. 18, 2016), aff'd in part and rev'd in part, 542 S.W.3d 286, 2018 Ky. LEXIS 132 ( Ky. 2018 ).

4.Action Barred.

Where infant was 10 years and 10 months old at the time an action to establish paternity was initially filed, the three-year (now four-year) statute of limitations provided for in this section served as a bar to the suit. Locke v. Zollicoffer, 608 S.W.2d 54, 1980 Ky. LEXIS 265 ( Ky. 1980 ). (Decision prior to 1984 amendment.).

5.Inheritance.

An illegitimate’s claim to the putative father’s estate was not barred by this section, which merely places a time limitation upon the bringing of paternity actions for the purpose of establishing a duty of support during the minority of a child. Ellis v. Ellis, 752 S.W.2d 781, 1988 Ky. LEXIS 47 ( Ky. 1988 ).

6.Time Limitation.

This section allows 18 years for the “person substantially contributing to the support” to bring an action to determine paternity; but it prohibits parties who unreasonably delay in bringing such actions from recovering large amounts in arrearages; in effect, this section codifies the common law doctrine of laches, and laches can be a valid defense in paternity actions which seek past support. Wigginton v. Commonwealth, 760 S.W.2d 885, 1988 Ky. App. LEXIS 166 (Ky. Ct. App. 1988).

A retroactive support award against an itinerant worker was appropriate where (1) the child at issue was born in September, 1990, (2) an action to establish paternity and for support was commenced in December, 1990, but service was not effectuated because the defendant had left the state and his whereabouts were unknown, and (3) in 1993, the mother learned that the defendant was working in Maryland and the case was referred to the State Parent Locator Service, but he was not located and served until 1997. Ramirez v. Commonwealth ex rel. Brooks, 44 S.W.3d 800, 2000 Ky. App. LEXIS 138 (Ky. Ct. App. 2000).

Cited:

Department of Economic Sec. v. Shanklin, 514 S.W.2d 682, 1974 Ky. LEXIS 325 ( Ky. 1974 ); Commonwealth ex rel. Floyd v. Mack, 764 S.W.2d 639, 1988 Ky. App. LEXIS 163 (Ky. Ct. App. 1988).

Research References and Practice Aids

Kentucky Bench & Bar.

Davies, Children Born Out of Wedlock: Their Time Has Come, Volume 49, No. 2, April 1985 Ky. Bench & B. 10.

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer, Form 255.06.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.9, 31.10; 1991 Supp., § 31.9.

Petrilli, Kentucky Family Law, Forms, Paternity, Form 7.1.

406.035. Written order of paternity — Limit on public inspection — Persons who may inspect.

  1. If paternity has been determined under the provisions of subsection (1) or (2) of KRS 406.021 , the court shall make a written order of paternity.
  2. Information concerning this action received or transmitted shall not be published or be open for public inspection, including where the cabinet determines reasonable evidence of domestic violence or child abuse, if the disclosure of the information could be harmful to the custodial parent or the child of the parent.
  3. Such orders are to be kept separately and shall not be open for public inspection except that they may be inspected by employees of governmental agencies in the performance of their duties, all law enforcement agencies including county attorneys, Commonwealth’s attorneys, District and Circuit Judges, and anyone else under order of the court expressly permitting inspection. Either party to an action under this chapter or attorneys of a party to an action under this chapter shall be permitted to inspect the order entered in the action to which he is a party.

History. Enact. Acts 1972, ch. 159, § 4; 1976 (Ex. Sess.), ch. 14, § 411, effective January 2, 1978; 1984, ch. 111, § 162, effective July 13, 1984; 1998, ch. 255, § 28, effective July 15, 1998.

Opinions of Attorney General.

It is up to the court and the court clerk to adhere to the policy of confidentiality. OAG 78-104 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, Access to Public Documents in Kentucky, 64 Ky. L.J. 165 (1975-76).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc., 5th Ed., Practice Context for Paternity, § 255.00.

406.040. Procedure if accused fails to give or renew bond. [Repealed.]

Compiler’s Notes.

This section (169, 170) was repealed by Acts 1964, ch. 37, § 19.

406.041. Effect of death of father on liabilities.

The obligation of the estate of the father for liabilities under this chapter shall not be terminated by the death of the father obligated to support the child. If a father obligated to support the child dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances.

History. Enact. Acts 1964, ch. 37, § 4; 1992, ch. 434, § 7, effective July 14, 1992.

NOTES TO DECISIONS

1.Deceased Parent’s Child Support Obligation.

When the mother of a disabled child sued the estate of the child’s father regarding various statutory violations in the handling of the estate which allegedly resulted in denying the child the opportunity to present a child support claim against the estate, it was error to dismiss the complaint on summary judgment because the estate could potentially be held liable for such support. Thompson v. Porter, 2012 Ky. App. LEXIS 248 (Ky. Ct. App. Nov. 30, 2012), op. withdrawn, sub. op., 2013 Ky. App. Unpub. LEXIS 418 (Ky. Ct. App. May 24, 2013).

Research References and Practice Aids

Kentucky Law Journal.

Comments, Pendleton v. Pendleton: An Equal Right of Inheritance for the Illegitimate?, 65 Ky. L.J. 712 (1976-77).

406.050. Forfeiture of bond on failure to appear. [Repealed.]

Compiler’s Notes.

This section (170, 174) was repealed by Acts 1964, ch. 37, § 19.

406.051. Remedies — District Court’s concurrent jurisdiction for child custody and visitation in paternity cases.

  1. The District Court has jurisdiction of an action brought under this chapter and all remedies for the enforcement of judgments for expenses of pregnancy and confinement for a wife or for education, necessary support, or funeral expenses for children born out of wedlock. An appeal may be had to the Circuit Court if prosecuted within sixty (60) days from the date of judgment. The court has continuing jurisdiction to modify or revoke a judgment for future education. All remedies under the uniform reciprocal enforcement of support act are available for enforcement of duties of support under this chapter.
  2. The District Court may exercise jurisdiction, concurrent with that of the Circuit Court, to determine matters of child custody and visitation in cases where paternity is established as set forth in this chapter. The District Court, in making these determinations, shall utilize the provisions of KRS Chapter 403 relating to child custody and visitation. The District Court may decline jurisdiction if it finds the circumstances of any case require a level of proceedings more appropriate to the Circuit Court.

History. Enact. Acts 1964, ch. 37, § 5; 1976 (Ex. Sess.), ch. 14, § 412, effective January 2, 1978; 1984, ch. 16, § 9, effective July 13, 1984; 1996, ch. 314, § 1, effective July 15, 1996.

Compiler’s Notes.

The uniform reciprocal enforcement of support act referred to in this section is now the Uniform Interstate Family Support Act, compiled at KRS 407.5101 to 407.5902 .

NOTES TO DECISIONS

1.Appeal.

The trial court erroneously assumed that the appellant had only 30 days to appeal under CR 72.02, but the controlling bastardy statute allowed 60 days. Commonwealth ex rel. Hafley v. Hernandez, 434 S.W.2d 811, 1968 Ky. LEXIS 251 ( Ky. 1968 ).

The date of the county (now district) court judgment for appeal purposes was the date when the order book was actually signed by the judge. Blanton v. Castle, 450 S.W.2d 818, 1970 Ky. LEXIS 464 ( Ky. 1970 ).

A District Court could have exercised concurrent jurisdiction with that of the Circuit Court and adjudicated an action for sole custody, adjudication of paternity, award of child support, award of pregnancy and confinement expenses, attorney’s fees and costs and, therefore, an appeal from the District Court Order should have been taken to the Circuit Court, rather than to the Court of Appeals. Elery v. Martin, 4 S.W.3d 550, 1999 Ky. App. LEXIS 123 (Ky. Ct. App. 1999).

2.Standard of Proof.

In an action to determine paternity, where putative father has died intestate, the clear and convincing evidence standard of persuasion is to be applied by the trier of the fact in a trial setting; if applied to a summary judgment proceeding, “clear and convincing” evidence must demonstrate an impossibility under CR 56.03. Hibbs v. Chandler, 684 S.W.2d 310, 1985 Ky. App. LEXIS 509 (Ky. Ct. App. 1985).

3.Paternity Matters.

Where a child was found by the circuit court to have been born out of wedlock to a married woman and fathered by a man other than her husband, the district court was clearly vested with subject matter jurisdiction to determine paternity. Montgomery v. McCracken, 802 S.W.2d 943, 1990 Ky. App. LEXIS 181 (Ky. Ct. App. 1990), overruled in part, J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ).

While KRS 406.051 provided a District Court with subject matter jurisdiction over an action to establish support for children born out of wedlock, that statutory provision did not apply in a case where the alleged father petitioned the Family Court for custody and support of child born to a wife of another. Kentucky paternity statutes did not apply and, thus, the Family Court did not have jurisdiction, because no evidence was presented to show that the child was born out of wedlock, which would have required a showing that the husband and wife’s marital relationship had ceased 10 months before the child’s birth, as set forth in KRS 406.011 . J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ), overruled in part, J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

Trial court had subject matter jurisdiction over the putative father’s paternity action, not under KRS 406.011 because that statute did not define “child born out of wedlock,” but under KRS 406.051 and KRS 406.180 because the putative father’s action was one to determine the paternity of a child whose alleged biological parents were not married to each other as “marriage” was defined under Kentucky law. The putative father himself had standing to file the paternity action because the allegations contained in the putative father’s paternity complaint were sufficient to confer standing on the putative father under KRS 426.021, which allowed putative father’s to file a complaint to determine paternity. J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

4.Jurisdiction.

Mother was estopped from arguing that KRS 406.180 limited jurisdiction to children born “out of wedlock.” The mother and her husband judicially admitted that another man was the father of a child born during the marriage, and diagnostic testing confirmed the other man’s paternity; the mother’s judicial admissions were sufficient to rebut the presumption that her husband was the father of the child. S.B. v. M.C., 352 S.W.3d 345, 2011 Ky. App. LEXIS 151 (Ky. Ct. App. 2011).

Cited:

Commonwealth ex rel. Stumbo v. Wilson, 622 S.W.2d 912, 1981 Ky. LEXIS 281 ( Ky. 1981 ); Wood v. Wingfield, 816 S.W.2d 899, 1991 Ky. LEXIS 70 ( Ky. 1991 ).

Opinions of Attorney General.

Where the complainant in a paternity suit is allowed to proceed as a pauper, upon the establishment of paternity against the defendant, the filing fee or other court costs can be recovered from the defendant as part of the judgment. OAG 65-212 .

Where the complaining mother, under the uniform paternity act, is a pauper, she should file a pauper’s oath and move the court to be permitted to proceed without paying of filing fees or other court costs after which the court can permit her to proceed. OAG 65-212 .

Bastardy cases may be tried by juries consisting of six persons. OAG 71-425 .

Considering this chapter as a whole and noting that this section provides in part that all remedies under KRS Ch. 407 are available for enforcement of duties of support under this chapter, the county court has a continuing jurisdiction over paternity actions for the purposes of the child’s support as well as the future education of the child and thus the court can modify the original judgment as it pertains to the education of the child. OAG 73-354 .

The county court has jurisdiction to adjudicate the issue of the putative father’s visitation rights. OAG 76-47 .

Although this section does not expressly provide that the county attorney must represent the complainant on an appeal to the circuit court, if the complainant’s action is to mean anything ultimately the county attorney must be required to prosecute the appeal where the complainant wishes to avail herself of that remedy. OAG 77-52 .

Since the court in a paternity action is precluded from assessing the costs, including the blood tests, against the mother under this section and former KRS 407.220 (now repealed), and since the defendant is not responsible for such costs if he is a pauper under KRS 453.190 , and since there is no statute imposing the costs on some other person or a governmental unit, there is simply no statutory basis for imposing such costs on any person or governmental unit in such a case. OAG 79-654 .

The district court has jurisdiction to deal with issue of putative father’s visitation rights and child’s correlative right to see father. OAG 85-28 , modifying OAG 76-47 .

There are no restrictions or limitations found in KRS 509.070 as to its applicability to different classes of persons or orders of a court; instead, it is general in nature and provides a defense to custodial interference if the person is returned voluntarily and before an arrest or issuance of an arrest warrant. Therefore, if paternity has been established under this chapter and a custody and visitation order had been entered pursuant to that finding, a copy of which is received by the putative father, then KRS 509.070 should be applicable to a father who violates that visitation order. OAG 90-18 .

One who knowingly violates a properly established custody and visitation order entered pursuant to this chapter should be subject to prosecution under KRS 509.070 ; to differentiate between those visitation orders entered under this chapter from those entered under Chapter 403 or other chapters would establish an improper distinction between the children whom these orders cover. OAG 90-18 .

Any individual who knowingly violates a child custody and visitation order entered pursuant to this chapter may be prosecuted for violation of that order under KRS 509.070 , and OAG 76-147 is modified accordingly. OAG 90-18 .

An individual may be prosecuted under KRS 509.070 where a district court has entered a child custody and visitation order under this chapter and the father has notice of said order. OAG 90-18 .

Research References and Practice Aids

Kentucky Law Journal.

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Northern Kentucky Law Review.

Kentucky Survey Issue: Article: A Biological Father’s Rights Extinguished, 37 N. Ky. L. Rev. 343 (2010).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Appeals from Kentucky District Courts to Circuit Court, § 100.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 4th Ed., Paternity, General Note.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.10, 31.25, 31.26, 31.29, 31.30.

Petrilli, Kentucky Family Law, Forms, Paternity, Form 7.1.

406.060. Procedure in absence of accused. [Repealed.]

Compiler’s Notes.

This section (171) was repealed by Acts 1964, ch. 37, § 19.

406.061. Jury trial in paternity action.

To the extent necessary to conform to federal law, 42 U.S.C. sec. 666(a)(5) (l), except to the extent that it is required under Section 7 of the Constitution of Kentucky, no party shall be entitled to a trial by a jury in a paternity action.

History. Enact. Acts 1964, ch. 37, § 6; 1998, ch. 255, § 29, effective July 15, 1998.

Opinions of Attorney General.

If either party who has entered an appearance in a paternity suit demands a trial by jury on the issues presented, a jury must be empaneled; otherwise, in the absence of a demand by either party, the court may either determine the issues without a jury or empanel a jury on its own motion in its discretion. OAG 66-762 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. 5th Ed., Practice Context for Paternity, § 255.00.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.15, 31.22, 31.24.

Petrilli, Kentucky Family Law, Forms, Paternity, Form 7.3.

406.070. Who may testify; effect of child’s birth in another state. [Repealed.]

Compiler’s Notes.

This section (172) was repealed by Acts 1964, ch. 37, § 19.

406.071. Time of trial.

If the issue of paternity is raised in an action commenced during the pregnancy of the mother, the trial shall not, without the consent of the alleged father, be held until after the birth or miscarriage but during such delay testimony may be perpetuated in accordance with the Rules of Civil Procedure.

History. Enact. Acts 1964, ch. 37, § 7.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.15.

406.080. Discharge of accused; procedure on motion for new trial. [Repealed.]

Compiler’s Notes.

This section (173) was repealed by Acts 1964, ch. 37, § 19.

406.081. Authority for genetic tests — Failure of alleged father to submit to tests.

The court, upon request of a party or on its own motion, shall order the mother, child, and alleged father to submit to genetic tests. If the mother refuses for herself or on behalf of the child to submit to the tests, the court may resolve the question of paternity against her unless the action is brought by or is being prosecuted by an agency contributing to the support of the child. If the alleged father is ordered to submit to genetic tests and refuses or does not submit the results of the paternity test to the court within thirty (30) days of the court order, the court shall resolve the question of paternity against him.

HISTORY: Enact. Acts 1964, ch. 37, § 8; 1984, ch. 379, § 4, effective July 13, 1984; 1992, ch. 434, § 8, effective July 14, 1992; 2018 ch. 159, § 32, effective July 14, 2018.

NOTES TO DECISIONS

1.Constitutionality.

This section does not offend the Equal Protection Clause of 14th Amendment; in summary, it does for the defendant what CR 35.01 formerly did, and still does, for the mother, child and other complainant. When harmonized by being construed together with CR 35.01, this section avoids discrimination and does not create it; together they grant equal rights for the obtaining of blood test evidence to mother, child, and alleged father. Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ).

2.Alternative Method of Test.

In paternity actions the necessity for the blood test evidence and its unavailability from another source permit the showing of “good cause” to be routinely made and accordingly, an order under CR 35.01 is virtually as automatically obtainable as one under this section. Since the frequency of use of CR 35.01 is not limited (CR 26.01), additional examinations may be secured under it as under KRS 406.091 . Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ).

Since evidence of equal probative value cannot be obtained from another source and since in a paternity proceeding the characteristics of blood are a physical condition in controversy, the additional requirements of “good cause” and “physical condition . . . . . in controversy” found in CR 35.01 and not in this section do not make them inconsistent procedures” within the meaning of CR 1(2). In these respects this section places no additional burden upon mother and child than was on them before such statute was passed. Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ).

Instead of being “inconsistent procedures” within the meaning of CR 1(2), CR 35.01 and this section are consistent in that each provides a method for obtaining blood tests from mother, child and alleged father. Blood tests of all three are essential for this evidence in a paternity case to have value. Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ).

When the general assembly enacted this section in 1964, it had a reasonable basis for finding that existing law in the form of CR 35.01 was inadequate in itself to cover all of the blood-testing situations in paternity proceedings and that it therefore was desirable to supplement it in order to plug any possible gaps; in this section it insured to the defendant the same right to require blood tests of the mother and child as existing law (CR 35.01) granted to them through the county attorney to require of him. Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ).

This section in providing a method for obtaining blood tests by a defendant, does not purport to preclude mother, child, or other complainant from obtaining them of a defendant by using CR 35.01. To hold otherwise would subject this section to a charge of unlawful discrimination which cannot be assumed the general assembly intended. Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ).

3.Type of Test.

Neither this section nor CR 35.01 is locked into any particular type, method, or vintage of blood testing and tests may be sought and used which were not in existence when the statute or the rule was adopted. Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ).

4.Genetic Testing Required.

Trial court properly required genetic testing under KRS 406.081 , .091(2) because the man with whom the mother had an affair presented sufficient evidence of access to the mother to make him the child’s father under KRS 406.011 ; the court properly entered an order of contempt against the mother for refusing to submit to testing because the court gave the mother four opportunities to submit to testing. J. K. v. N.J.A., 397 S.W.3d 916, 2013 Ky. App. LEXIS 59 (Ky. Ct. App. 2013).

5.Sufficiency of Evidence.

Where a blood-grouping test, not objected to upon grounds of accuracy, reliability, or admissibility, showed nonpaternity of the alleged male parent, the chancellor was entitled to rely upon the test as evidence to rebut the presumption that a child born in wedlock was legitimate and since he was persuaded thereby, his judgment could not be classified as clearly erroneous. Simmons v. Simmons, 479 S.W.2d 585, 1972 Ky. LEXIS 295 ( Ky. 1972 ), overruled in part, J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ).

6.Dismissal Precluded.

This section specifically precludes dismissal of a paternity action brought by an agency contributing to the support of the child. Commonwealth ex rel. Floyd v. Mack, 764 S.W.2d 639, 1988 Ky. App. LEXIS 163 (Ky. Ct. App. 1988).

7.Lapse of Time.

The twelve years between a couple’s 1975 divorce and the husband’s 1987 CR 60.02 motion was not too great a lapse of time to justify reopening the divorce judgment to compel blood tests to determine if husband was actually the father of the couple’s youngest child, as husband did not learn or have any reason to suspect that he might not be the child’s father until 1985, ten years after the divorce. Cain v. Cain, 777 S.W.2d 238, 1989 Ky. App. LEXIS 122 (Ky. Ct. App. 1989).

Cited:

Turner v. Commonwealth, 767 S.W.2d 557, 1988 Ky. LEXIS 82 ( Ky. 1988 ), cert. denied, Kentucky v. Turner, 493 U.S. 901, 110 S. Ct. 260, 107 L. Ed. 2d 209, 1989 U.S. LEXIS 4806, 58 U.S.L.W. 3241 (1989).

Opinions of Attorney General.

Civil Rule 35.01 and this section must be read together in dealing equitably with the parties to a paternity suit. OAG 79-635 .

Whenever the defendant moves the court for a blood test under this section, the court must order the mother, child and alleged father to submit to blood tests, and where the plaintiff-mother moves the court for blood tests, pursuant to CR 35.01, the court, in its discretion, may order the blood tests of the mother, child and alleged father. OAG 79-635 .

Since the court in a paternity action is precluded from assessing the costs, including the blood tests, against the mother under KRS 406.051 and 407.220 , and since the defendant is not responsible for such costs if he is a pauper under KRS 453.190 , and since there is no statute imposing the costs on some other person or a governmental unit, there is simply no statutory basis for imposing such costs on any person or governmental unit in such a case. OAG 79-654 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Leathers, Civil Procedure, 71 Ky. L.J. 395 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Paternity, § 255.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Stipulation Regarding Blood Tests, Form 255.07.

Petrilli, Kentucky Family Law, 1991 Supp., Dissolution Decree, § 24.24.

406.090. Judgment; order for custody, support and education of child. [Repealed.]

Compiler’s Notes.

This section (174) was repealed by Acts 1964, ch. 37, § 19.

406.091. Ratification of unchallenged acknowledgment of paternity — Genetic tests to include tests for inherited characteristics — Appointment of examiner of genetic markers — Genetic testing in contested paternity case — Admissibility of test results — Additional tests — Costs.

  1. An unchallenged acknowledgment of paternity shall be ratified under KRS Chapter 213 without the requirement for judicial or administrative proceedings. If a genetic test is required, the court shall direct that inherited characteristics be determined by appropriate testing procedures, and shall appoint an expert qualified as an examiner of genetic markers to analyze and interpret results and to report to the court.
  2. In a contested paternity case, the child and all other parties shall submit to genetic testing upon a request of any such party which shall be supported by a sworn statement of the party, except for good cause.
  3. Genetic test results are admissible and shall be weighed along with other evidence of the alleged father’s paternity.
  4. Any objection to genetic testing results shall be made in writing to the court within twenty (20) days of receipt of genetic test results. If the results of genetic tests or the expert’s analysis of inherited characteristics is disputed, the court, upon reasonable request of a party, shall order that an additional test be made by the same laboratory or independent laboratory at the expense of the party requesting additional testing. If no objection is made, the test results are admissible as evidence of paternity without the need for foundation testimony or other proof of authenticity or accuracy.
  5. Verified documentation of the chain of custody in transmitting the blood specimens is competent evidence to establish the chain of custody.
  6. A verified expert’s report shall be admitted at trial unless the expert is called by a party or the court as a witness to testify to his findings.
  7. Except where the Cabinet for Health and Family Services administratively orders genetic testing, all costs associated with genetic testing shall be paid by the party who requested that the action be brought pursuant to KRS 406.021 .
  8. When administratively ordered, the cabinet shall pay the cost of genetic testing to establish paternity, subject to recoupment from the alleged father when paternity is established. The cabinet shall obtain additional testing in any case if an original test is contested, upon request and advance payment by the contestant.

HISTORY: Enact. Acts 1964, ch. 37, § 9; 1984, ch. 379, § 5, effective July 13, 1984; 1992, ch. 434, § 9, effective July 14, 1992; 1994, ch. 330, § 18, effective July 15, 1994; 1998, ch. 255, § 30, effective July 15, 1998; 2005, ch. 99, § 638, effective June 20, 2005; 2018 ch. 159, § 33, effective July 14, 2018.

NOTES TO DECISIONS

1.Right to a Hearing.

Where appellant argued he did not have sexual contact with the mother and should not be adjudged the father, the trial court erred by entering a judgment of paternity because it failed to grant appellant an evidentiary hearing under KRS 406.111 to rebut the presumption that he was the child’s father that was created by a genetic test. The implication of KRS 406.091(3) was that genetic testing alone was insufficient to establish paternity if the father raised a legally sufficient reason as to why paternity should not be entered against him. J.D.C. v. Cabinet for Health & Family Servs., 383 S.W.3d 463, 2012 Ky. App. LEXIS 227 (Ky. Ct. App. 2012).

2.Genetic Testing Required.

Trial court properly required genetic testing under KRS 406.081 , .091(2) because the man with whom the mother had an affair presented sufficient evidence of access to the mother to make him the child’s father under KRS 406.011 ; the court properly entered an order of contempt against the mother for refusing to submit to testing because the court gave the mother four opportunities to submit to testing. J. K. v. N.J.A., 397 S.W.3d 916, 2013 Ky. App. LEXIS 59 (Ky. Ct. App. 2013).

Cited:

Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ); Bartlett v. Commonwealth, 705 S.W.2d 470, 1986 Ky. LEXIS 241 ( Ky. 1986 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Paternity, § 255.00.

Caldwell’s Kentucky Form Book, 5th Ed., Stipulation Regarding Blood Tests, Form 255.07.

Caldwell’s Kentucky Form Book, 5th Ed., Summary Judgment and Order of Support, Form 255.09.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.20.

406.100. Bond of person convicted; procedure upon failure to make bond. [Repealed.]

Compiler’s Notes.

This section (175) was repealed by Acts 1964, ch. 37, § 19.

406.101. Compensation of expert witnesses.

The compensation of each expert witness appointed by the court shall be fixed at a reasonable amount. It shall be paid as the court shall order. The court may order that it be paid by the parties in such proportions and at such times as it shall prescribe. The fee of an expert witness called by a party but not appointed by the court shall be paid by the party calling him but shall not be taxed as costs in the action.

History. Enact. Acts 1964, ch. 37, § 10.

Opinions of Attorney General.

If both parties in a paternity suit are paupers and have been authorized to proceed as such, the court may in its discretion direct that the county shall pay the deposition expenses if depositions are ordered and the compensation of expert witnesses appointed by the court. OAG 65-391 .

If the parties in a paternity suit, or either of them, are not paupers qualified under KRS 453.190 , the compensation of the expert witness or witnesses shall be paid as the court orders. OAG 65-391 .

The commonwealth is not liable for the costs and expenses incurred in a paternity suit regardless of the decision reached on the paternity question. OAG 65-391 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.30.

406.110. Enforcement of bond; effect of child’s death. [Repealed.]

Compiler’s Notes.

This section (176) was repealed by Acts 1964, ch. 37, § 19.

406.111. Effect of test results — Rebuttable presumption.

If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%), as calculated by the experts qualified as examiners of genetic markers, and that the paternity index, as calculated by the experts qualified as examiners of genetic markers, is one hundred (100) to one (1) or greater, there is a rebuttable presumption, affecting the burden of proof, of paternity. This presumption shall only be rebutted by a preponderance of the evidence. If the presumption is not rebutted, the court may enter a summary judgment of paternity, pursuant to Rule 56 of the Rules of Civil Procedure.

History. Enact. Acts 1964, ch. 37, § 11; 1992, ch. 434, § 10, effective July 14, 1992.

NOTES TO DECISIONS

1.Type of Test.

The broad nature of this section implies that blood-test evidence presented by qualified experts will be considered for admission even though representing a recently discovered technology provided it has gained general acceptance in the relevant scientific community; the Human Leukocyte Antigen (HLA) blood test is one such technology that has been generally accepted as reliable. Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ).

2.Purpose of Test.

In a proper case this section in the discretion of the court permits blood test results to be admitted to show the possibility of the alleged father’s paternity. Perry v. Commonwealth, 652 S.W.2d 655, 1983 Ky. LEXIS 255 ( Ky. 1983 ).

3.Sufficiency of Evidence.

Trial court erred in resolving the paternity of a child on the basis of blood types without expert opinion or other substantial evidence establishing the fact. Tackett v. Tackett, 508 S.W.2d 790, 1974 Ky. LEXIS 634 ( Ky. 1974 ).

It was an abuse of discretion for the trial court not to set aside the judgment of paternity after the human leukocyte antigen tissue typing blood test results unequivocally excluded the putative father as the father of the child. Crowder v. Commonwealth, 745 S.W.2d 149, 1988 Ky. App. LEXIS 43 (Ky. Ct. App. 1988).

4.Child Custody Cases.

Although presumption of paternity was rebutted by DNA test results that showed that an ex-husband was not the father of a child, the doctrine of equitable estoppel precluded the mother from using that fact to challenge the ex-husband’s right to custody of the child where the mother had always represented to both the ex-husband and the world that the ex-husband was the child’s father and she had encouraged the development of a strong father-son relationship. Hinshaw v. Hinshaw, 237 S.W.3d 170, 2007 Ky. LEXIS 216 ( Ky. 2007 ).

5.Right to a Hearing.

Despite the presumption of paternity created by a genetic test, the inescapable conclusion of KRS 406.111 is that a prospective father has the right to an evidentiary hearing to proffer evidence as to why a judgment of paternity should not be entered against him. J.D.C. v. Cabinet for Health & Family Servs., 383 S.W.3d 463, 2012 Ky. App. LEXIS 227 (Ky. Ct. App. 2012).

In a paternity case, a genetic test confirmed there was a 99.99% probability that appellant was the biological father of the child. The trial court erred by entering a judgment of paternity because it failed to grant appellant an evidentiary hearing under KRS 406.111 to rebut the presumption that he was the child’s father. J.D.C. v. Cabinet for Health & Family Servs., 383 S.W.3d 463, 2012 Ky. App. LEXIS 227 (Ky. Ct. App. 2012).

Research References and Practice Aids

Kentucky Law Journal.

Blood Grouping Tests and the New Kentucky Solution, 53 Ky. L.J. 790 (1965).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Motion for Summary Judgment and Order of Support, Form 255.08.

Caldwell’s Kentucky Form Book, 5th Ed., Motion to Dismiss, Form 255.10.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.20, 31.22.

406.115. Costs of action and attorney’s fees.

The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney’s fees for private counsel, including sums for legal services rendered and costs incurred prior to commencement of the proceeding, or after entry of judgment. Upon determination that an action under this chapter was initiated in bad faith, the court may order the offending party to pay attorney’s fees to the opposing attorney for legal services rendered and costs incurred. The court may order that the amount be paid directly to the attorney, who may enforce the order in his or her name.

HISTORY: 2021 ch. 140, § 1, effective June 29, 2021.

406.120. Person convicted to pay costs; fee of county attorney. [Repealed.]

Compiler’s Notes.

This section (178) was repealed by Acts 1964, ch. 37, § 19.

406.121. Judgment, how enforced.

Judgments under this chapter may be for periodic payments which may vary in amount. The court may order payments to be made to the mother or to some person, corporation, or agency designated to administer them under the supervision of the court. Willful failure of the alleged father to perform the judgment of the court may be punished as a contempt of the court. The court may impose a punishment of not more than thirty (30) days imprisonment in the county jail without the intervention of a jury. This provision shall not be deemed to limit or abrogate any other remedies which exist for the enforcement of judgments.

History. Enact. Acts 1964, ch. 37, § 12.

Opinions of Attorney General.

Even after a default judgment has been entered, the usual provisions for an enforcement of the judgment by contempt proceedings and the requirement of a performance bond are available, but, before contempt proceedings may be had against a defendant, he must have notice of the judgment. OAG 66-762 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.25, 31.26.

Petrilli, Kentucky Family Law, Forms, Paternity, Form 7.4.

406.130. Appeal; liability of sureties on supersedeas bond. [Repealed.]

Compiler’s Notes.

This section (177) was repealed by Acts 1964, ch. 37, § 19.

406.131. Bond to secure payment of judgment.

The court at any time may require the alleged father to give bond or other security for the payment of the judgment. If the court requires that bond be given and if the alleged father is unwilling or unable to procure same, the alleged father may be confined to the county jail until same is procured provided, however, that after the alleged father has remained in jail for a period of thirty (30) days he shall be released provided he make oath in writing before the committing judge that he is unable to obtain the execution of the bond.

History. Enact. Acts 1964, ch. 37, § 13.

Opinions of Attorney General.

Even after a default judgment has been entered, the usual provisions for an enforcement of the judgment by contempt proceedings and the requirement of a performance bond are available, but, before contempt proceedings may be had against a defendant, he must have notice of the judgment. OAG 66-762 .

Where a woman obtained a paternity judgment, her basic remedial rights under former law (KRS 406.100 , repealed in 1964), providing for bond of person convicted, were not abrogated and such remedies can now be utilized except that this section should be used instead of the former section. OAG 69-390 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.9, 31.25, 31.26.

Petrilli, Kentucky Family Law, Forms, Paternity, Form 7.4.

406.140. Form of bonds. [Repealed.]

Compiler’s Notes.

This section (179) was repealed by Acts 1964, ch. 37, § 19.

406.141. Settlement agreements.

An agreement of settlement with the alleged father is binding only when approved by the court.

History. Enact. Acts 1964, ch. 37, § 14.

Opinions of Attorney General.

The court may approve of a settlement under the statute, within its discretion, even though the putative father may deny paternity and even though the case has not proceeded to a finding or judgment of paternity. OAG 67-116 .

Where the petitioner-mother in a paternity action is receiving Aid to Families with Dependent Children from the commonwealth of Kentucky, and the action is brought by the commonwealth on behalf of the mother against the alleged father in order to establish legal paternity for the present and future protection and benefit of the minor child, the mother may enter into an agreement with the alleged father providing for his support of the child under the following conditions: (1) The agreement must be approved by the Cabinet for Human Resources, through its representative, the county attorney. (2) The agreement must be one that is deemed to be in the best interest of the child. (3) The agreement must be one deemed to serve the best interests of the taxpayers, federal and Kentucky. (4) The agreement must be reasonable and conscionable. (5) The agreement must be approved by the district court of jurisdiction, if it is to be valid. OAG 83-181 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Forms, Paternity, Form 7.5.

406.150. Defect in bond. [Repealed.]

Compiler’s Notes.

This section (180) was repealed by Acts 1964, ch. 37, § 19.

406.151. Venue.

An action under this chapter may be brought in the county where the alleged father is present or has property or in the county where the mother resides.

History. Enact. Acts 1964, ch. 37, § 15.

NOTES TO DECISIONS

Cited:

Hibbs v. Chandler, 684 S.W.2d 310, 1985 Ky. App. LEXIS 509 (Ky. Ct. App. 1985).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Paternity, § 255.00.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.10.

Petrilli, Kentucky Family Law, Forms, Paternity, Form 7.1.

406.160. Interpreter for mother of child. [Repealed.]

Compiler’s Notes.

This section (181) was repealed by Acts 1964, ch. 37, § 19.

406.161. Uniformity of interpretation.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History. Enact. Acts 1964, ch. 37, § 16.

406.170. Short title.

This chapter may be cited as the Uniform Act on Paternity.

History. Enact. Acts 1964, ch. 37, § 17.

406.180. Applicability.

This chapter applies to all cases of birth out of wedlock:

  1. Where birth occurs within this state;
  2. When birth occurs out of this state at the time the mother is a resident of this state after June 18, 1964; or
  3. When birth occurs out of this state and at some time following the birth the mother becomes a resident of this state after June 18, 1964.

History. Enact. Acts 1964, ch. 37, § 18; 1970, ch. 210, § 1; 1972, ch. 159, § 5.

NOTES TO DECISIONS

1.Jurisdiction.

Where the estate of a decedent filed a complaint for determination of paternity of a child allegedly fathered by the decedent, although the family court did not have jurisdiction over a paternity action under KRS 406.021 or KRS 406.180 , as the estate was not the proper party to file such a suit, and neither the child nor mother ever lived in the United States, the court had jurisdiction under KRS 418.040 to enter a declaratory judgment as to the child’s paternity. Uninsured Employers' Fund v. Bradley, 244 S.W.3d 741, 2007 Ky. App. LEXIS 403 (Ky. Ct. App. 2007).

Although KRS 406.180 stated that the Kentucky chapter on paternity applied to all cases of birth out of wedlock where the birth occurred in Kentucky, the Family Court did not acquire jurisdiction over the alleged father’s petition for custody and support over the child born to a wife of another. The Kentucky paternity statutes did not apply where no evidence was presented that the child was born within 10 months of the marital relationship ceasing, as set forth in KRS 406.011 . J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ), overruled in part, J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

Family court had jurisdiction under KRS 23A.100(2)(b) over an action to establish paternity to a child that was conceived while a married couple was legally separated and pursuing a divorce; given the unusual facts of this case and the inherent rights of biological parents, the grant of joint custody to appellant former husband could not prevent appellee alleged biological father from pursuing his paternity action under the Uniform Act on Paternity, KRS ch. 406. The family court had jurisdiction to make the proper balancing of the parties’ rights and determine the best interests of the child. Smith v. Garber, 2010 Ky. LEXIS 142 (Ky. June 17, 2010, sub. op., 2010 Ky. Unpub. LEXIS 115 (Ky. June 17, 2010), modified, 2011 Ky. LEXIS 105 (Ky. June 16, 2011).

Trial court had subject matter jurisdiction over the putative father’s paternity action, not under KRS 406.011 because that statute did not define “child born out of wedlock,” but under KRS 406.051 and KRS 406.180 because the putative father’s action was one to determine the paternity of a child whose alleged biological parents were not married to each other as “marriage” was defined under Kentucky law. The putative father himself had standing to file the paternity action because the allegations contained in the putative father’s paternity complaint were sufficient to confer standing on the putative father under KRS 426.021, which allowed putative father’s to file a complaint to determine paternity. J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

Mother was estopped from arguing that KRS 406.180 limited jurisdiction to children born “out of wedlock.” The mother and her husband judicially admitted that another man was the father of a child born during the marriage, and diagnostic testing confirmed the other man’s paternity; the mother’s judicial admissions were sufficient to rebut the presumption that her husband was the father of the child. S.B. v. M.C., 352 S.W.3d 345, 2011 Ky. App. LEXIS 151 (Ky. Ct. App. 2011).

2.Genetic Testing Required.

Trial court properly required genetic testing under KRS 406.081 , .091(2) because the man with whom the mother had an affair presented sufficient evidence of access to the mother to make him the child’s father under KRS 406.011 ; the court properly entered an order of contempt against the mother for refusing to submit to testing because the court gave the mother four opportunities to submit to testing. J. K. v. N.J.A., 397 S.W.3d 916, 2013 Ky. App. LEXIS 59 (Ky. Ct. App. 2013).

Cited:

Department of Economic Sec. v. Shanklin, 514 S.W.2d 682, 1974 Ky. LEXIS 325 ( Ky. 1974 ).

Opinions of Attorney General.

Where as the result of an emergency a child was born in Kentucky to a nonresident mother, the mother could maintain a paternity action in Kentucky against the father who was a resident of Kentucky. OAG 70-468 .

Where baby was born in Illinois and mother was not, at the time of such birth, a resident of Kentucky and did not subsequently become a resident of Kentucky, the mother could not bring paternity action in Kentucky even though the alleged father lived in Kentucky. OAG 84-69 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.9, 31.10.

CHAPTER 407 Uniform Reciprocal Enforcement of Support Act

Preliminary Provisions

407.010. Short title — Purpose. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 66, § 1; 1954, ch. 190, § 1; 1972, ch. 158, § 1) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.020. Definitions. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 66, § 2) was repealed by Acts 1954, ch. 190, § 29.

407.030. Persons legally liable for support of dependents. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 66, § 3) was repealed by Acts 1954, ch. 190, § 29.

407.040. Jurisdiction and powers of court. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 66, § 4) was repealed by Acts 1954, ch. 190, § 29.

407.050. Cases in which proceedings are maintainable. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 66, § 5) was repealed by Acts 1954, ch. 190, § 29.

407.060. Procedure. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 66, § 6) was repealed by Acts 1954, ch. 190, § 29.

407.070. Duty of petitioner’s representatives. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 66, § 7) was repealed by Acts 1954, ch. 190, § 29.

407.080. Construction of chapter. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 66, § 8) was repealed by Acts 1954, ch. 190, § 29.

407.090. Uniformity of interpretation. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 66, § 9) was repealed by Acts 1954, ch. 190, § 29.

407.100. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 2; 1972, ch. 158, § 2; 1976 (Ex. Sess.), ch. 14, § 413, effective January 2, 1978; 1978, ch. 402, § 1, effective June 17, 1978) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.110. Remedies additional to others. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 3, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.120. Extent of duties of support. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 4, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.130. Interstate rendition.

The Governor of this state: (1) may demand from the Governor of any other state the surrender of any person found in such other state who is charged in this state with the crime of failing to provide for the support of any person in this state; and (2) may surrender on demand by the Governor of any other state any person found in this state who is charged in such other state with the crime of failing to provide for the support of a person in such other state. The provisions for extradition of criminals not inconsistent herewith shall apply to any such demand although the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and although he had not fled therefrom. Neither the demand, the oath nor any proceedings for extradition pursuant to this section need state or show that the person whose surrender is demanded has fled from justice, or at the time of the commission of the crime was in the demanding or other state.

History. Enact. Acts 1954, ch. 190, § 5, effective July 1, 1954.

407.140. Relief from extradition. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 190, § 6) was repealed by Acts 1972, ch. 158, § 21.

407.150. Choice of law. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 7, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.160. Remedies of a state or political subdivision furnishing support. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 8, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.170. Enforcement of duties — Jurisdiction of proceedings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 9; 1972, ch. 158, § 4; 1976 (Ex. Sess.), ch. 14, § 414, effective January 2, 1978) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

Enforcement Support Order

407.180. Verifications and contents of complaint for support — Location for filing complaint. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 10; 1972, ch. 158, § 5; 1976, ch. 365, § 1) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.190. Representation by county attorney — Refusal — Secretary for human resources may employ private counsel. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 11; 1972, ch. 158, § 6; 1974, ch. 74, Art. VI, § 107(19)) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

Legislative Research Commission Note.

(7/15/98). Under KRS 446.260 , the repeal of this section in 1996 Ky. Acts ch. 365 prevails over its amendment in 1998 Acts ch. 426.

407.200. Complaint for a minor. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 12, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.210. Duty of court of this state as initiating state. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 13; 1972, ch. 158, § 7) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.220. Costs and fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 14; 1972, ch. 158, § 8) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.230. Arrest of defendant. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 15; 1972, ch. 158, § 9) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.240. State information agency. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 16; 1972, ch. 158, § 10; 1974, ch. 74, Art. VI, § 107(19)) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

Legislative Research Commission Note.

(7/15/98). Under KRS 446.260 , the repeal of this section in 1996 Acts ch. 365 prevails over its amendment in 1998 Acts ch. 426.

407.250. Duty of court of this state as responding court — Secretary for human resources may employ counsel for obligee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 17; 1972, ch. 158, § 11; 1974, ch. 74, Art. VI, § 107(19)) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

Legislative Research Commission Note.

(7/15/98). Under KRS 446.260 , the repeal of this section in 1996 Acts ch. 365 prevails over its amendment in 1998 Acts ch. 426.

407.260. Duty when court unable to obtain jurisdiction. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 18, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.270. Conduct of proceedings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 19, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.280. Order of support. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 20, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.290. Initiating state to receive copies of order. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 21; 1972, ch. 158, § 12) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.300. Powers of court to assure compliance with its orders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 22, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.310. Duty of court when acting as responding state to transmit payments and furnish certified statements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 23, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.320. Court of this state as initiating state to receive and disburse payments. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 24, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

Procedural Provisions

407.330. Competency of evidence of husband and wife. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 25, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.340. Rules of evidence. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 190, § 26) was repealed by Acts 1972, ch. 158, § 21.

407.350. Application of payments. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 27, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.360. Effect of participation in proceedings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 190, § 28, effective July 1, 1954) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.370. Extradition — Governor may require Commonwealth’s attorney to investigate before demand. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 158, § 3) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.380. Continuance — By either party. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 158, § 12) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.390. Immunity from self-incrimination. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 158, § 13) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.400. Evidence — Civil rules to apply. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 158, § 14) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.410. Nonpaternity as a defense — Adjudication of paternity issue. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 158, § 16; 1978, ch. 402, § 6, effective June 17, 1978; 1984, ch. 111, § 163, effective July 13, 1984; 1994, ch. 330, § 19, effective July 15, 1994) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.420. Effect of pending or prior actions or proceedings on actions under this chapter. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 158, § 17) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.430. Jurisdiction — Both parties resident of this state — Different counties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 158, § 18) was repealed by Acts 1990, ch. 418, § 16. For current law, see KRS 407.5101 et seq.

407.440. Appeal by secretary for health and family services — When.

If the secretary for health and family services or his authorized representative is of the opinion that a support order is erroneous and presents a question of law warranting an appeal in the public interest, he may perfect an appeal to the proper appellate court if the support order was issued by a court of this state, or if the support order was issued in another state, cause the appeal to be taken in the other state. In either case, expenses of appeal may be paid on his order from funds appropriated for his office.

History. Enact. Acts 1972, ch. 158, § 19; 1974, ch. 74, Art. VI, § 107(19); 1998, ch. 426, § 591, effective July 15, 1998; 2005, ch. 99, § 639, effective June 20, 2005.

Registration of Foreign Support Order

407.450. Register of foreign support order. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 2, effective June 17, 1978) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.460. Circuit clerk to maintain registry. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 3, effective June 17, 1978) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.470. County attorney to represent obligee — Registration procedure — Confirmation after notice. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 4, effective June 17, 1978; 1980, ch. 114, § 104, effective July 15, 1980) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

407.480. Effect of registration. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 5, effective June 17, 1978) was contingently repealed by Acts 1996, ch. 365, § 64. Acts 1998, ch. 101, § 20 provided that “Section 64 of 1996 Kentucky Acts Chapter 365” shall take effect March 23, 1998. For current law, see KRS 407.5101 et seq.

Uniform Interstate Family Support Act

Article 1. General Provisions

407.5101. Definitions for KRS 407.5101 to 407.5902.

As used in KRS 407.5101 to 407.5902 :

  1. “Child” means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual’s parent or who is or is alleged to be the beneficiary of a support order directed to the parent;
  2. “Child support order” means a support order for a child, including a child who has attained the age of majority under the law of the issuing state or foreign country;
  3. “Convention” means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007;
  4. “Duty of support” means an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support;
  5. “Foreign country” means a country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and:
    1. Which has been declared under the law of the United States to be a foreign reciprocating country;
    2. Which has established a reciprocal arrangement for child support with this state as provided in KRS 407.5308 ;
    3. Which has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under KRS 407.5101 to 407.5902 ; or
    4. In which the Convention is in force with respect to the United States;
  6. “Foreign support order” means a support order of a foreign tribunal;
  7. “Foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child. The term includes a competent authority under the Convention;
  8. “Home state” means the state or foreign country in which a child lived with a parent or a person acting as parent for at least six (6) consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six (6) months old, the state or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six (6) month or other period;
  9. “Income” includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this state;
  10. “Income-withholding order” means an order or other legal process directed to an obligor’s employer as defined in KRS 205.710 or other debtor to withhold support from the income of the obligor;
  11. “Initiating tribunal” means the tribunal of a state or foreign country from which a petition or comparable pleading is forwarded or in which a petition or comparable pleading is filed for forwarding to another state or foreign country;
  12. “Issuing foreign country” means the foreign country in which a tribunal issues a support order or a judgment determining parentage of a child;
  13. “Issuing state” means the state in which a tribunal issues a support order or a judgment determining parentage of a child;
  14. “Issuing tribunal” means the tribunal of a state or foreign country that issues a support order or a judgment determining parentage of a child;
  15. “Law” includes decisional and statutory law and rules and regulations having the force of law;
  16. “Obligee” means:
    1. An individual to whom a duty of support is or is alleged to be owed or in whose favor a support order or a judgment determining parentage of a child has been issued;
    2. A foreign country, state, or political subdivision of a state to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee in place of child support;
    3. An individual seeking a judgment determining parentage of the individual’s child; or
    4. A person that is a creditor in a proceeding under Article 7 of this chapter;
  17. “Obligor” means an individual, or the estate of a decedent that:
    1. Owes or is alleged to owe a duty of support;
    2. Is alleged but has not been adjudicated to be a parent of a child;
    3. Is liable under a support order; or
    4. Is a debtor in a proceeding under Article 7 of this chapter;
  18. “Outside this state” means a location in another state or a country other than the United States, whether or not the country is a foreign country;
  19. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;
  20. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
  21. “Register” means to file in a tribunal of this state, a support order or judgment determining parentage of a child issued in another state or foreign country;
  22. “Registering tribunal” means a tribunal in which a support order or judgment determining parentage of a child is registered;
  23. “Responding state” means a state in which a petition or comparable pleading for support or to determine parentage of a child is filed or to which a petition or comparable pleading is forwarded for filing from another state or foreign country;
  24. “Responding tribunal” means the authorized tribunal in a responding state or foreign country;
  25. “Spousal-support order” means a support order for a spouse or former spouse of the obligor;
  26. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession under the jurisdiction of the United States. The term includes an Indian nation or tribe;
  27. “Support enforcement agency” means a public official, governmental entity, or private agency authorized to:
    1. Seek enforcement of support orders or laws relating to the duty of support;
    2. Seek establishment or modification of child support;
    3. Request determination of parentage;
    4. Attempt to locate obligors or their assets; or
    5. Request determination of the controlling child support order;
  28. “Support order” means a judgment, decree, decision, directive, or order, whether temporary, final, or subject to modification, issued in a state or foreign country for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, retroactive support, or reimbursement for financial assistance provided to an individual obligee in place of child support. The term may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney’s fees, and other relief; and
  29. “Tribunal” means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage of a child.

History. Enact. Acts 1996, ch. 365, § 13; 1998, ch. 101, §§ 1, 20, effective March 23, 1998; 1998, ch. 426, § 592, effective July 15, 1998; 2005, ch. 99, § 640, effective June 20, 2005; 2015 ch. 18, § 1, effective June 24, 2015; 2016 ch. 77, § 2, effective July 15, 2016.

NOTES TO DECISIONS

1.Home State.

Based upon the definitions in KRS 407.5101 and the facts of the case, KRS 407.5205(1)(a) did not apply; neither of the parents (obligor nor obligee) nor the children still resided in Kentucky at the relevant times. Further, KRS 407.5205(1)(b) did not apply because the parties did not file a written consent for another state to assume continuing, exclusive jurisdiction over the issue of child support. Gibson v. Gibson, 211 S.W.3d 601, 2006 Ky. App. LEXIS 390 (Ky. Ct. App. 2006).

2.Support.

Order for reimbursement of a marital debt paid was not child “support” under Kentucky’s Uniform Interstate Family Support Act (UIFSA), KRS 407.5101 , and could not be enforced as such by an Income Withholding Order; the award of $40,000 could only be interpreted as the mother’s share of the medical practice, a marital asset, reduced to dollars, and this amount could not be garnished via support order, as the UIFSA did not provide for the collection of money awarded on collateral matters during a divorce. Lichtenstein v. Barbanel, 322 S.W.3d 27, 2010 Ky. LEXIS 121 ( Ky. 2010 ).

Based on the definitions of child support order under the Uniform Interstate Family Support Act, the child support order referred to in the statute would include a temporary support order; there was no question that the decree in this case entered on June 11, 2018 changed child support as it was ordered in the temporary child support order, and thus, it would appear that the trial court’s entry of the supplemental decree on June 11, 2018 was a modification of a child support order. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Family Court, § 5.00.

407.5102. State tribunals and support enforcement agency.

The Circuit Court, District Court, family courts, and the Department for Income Support, Child Support Enforcement, within the Cabinet for Health and Family Services shall be the tribunals of this state. The Department for Income Support, Child Support Enforcement, within the Cabinet for Health and Family Services shall be the support enforcement agency of this state.

History. Enact. Acts 1996, ch. 365, § 14; 1998, ch. 101, § 20, effective March 23, 1998; 1998, ch. 426, § 593, effective July 15, 1998; 2000, ch. 14, § 54, effective July 14, 2000; 2005, ch. 99, § 641, effective June 20, 2005; 2012, ch. 158, § 73, effective July 12, 2012; 2016 ch. 77, § 3, effective July 15, 2016.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that the “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

Research References and Practice Aids

Kentucky Law Journal.

May, Social Reform for Kentucky’s Judicial System: The Creation of Unified Family Courts, 92 Ky. L.J. 571 (2003).

407.5103. Remedies under KRS 407.5101 to 407.5902 cumulative.

  1. Remedies provided by KRS 407.5101 to 407.5902 are cumulative and do not affect the availability of remedies under other law or the recognition of a foreign support order on the basis of comity.
  2. The provisions of KRS 407.5101 to 407.5902 do not:
    1. Provide the exclusive method of establishing or enforcing a support order under the law of this state; or
    2. Grant a tribunal of this state jurisdiction to render judgment or issue an order relating to child custody or visitation in a proceeding governed under the Uniform Interstate Family Support Act as provided in KRS 407.5101 to 407.5902 .

History. Enact. Acts 1996, ch. 365, § 15; 1998. ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 2, effective June 24, 2015; 2016 ch. 77, § 4, effective July 15, 2016.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

NOTES TO DECISIONS

1.Choice of Remedy.

Under former law providing for remedies that were additional to other remedies, the petitioning spouse was given a choice of remedies, not an accumulation of such; accordingly, the Uniform Reciprocal Enforcement of Support Act (URESA) (repealed) merely presented mother with the choice of whether she wished to proceed in Indiana, or Kentucky and, having chosen Indiana, she could not be heard to complain that the decision there was adverse to her claim and could not subsequently bring common-law action in Kentucky for same arrearages which were denied by Indiana court. Jaynes v. Black, 655 S.W.2d 493, 1983 Ky. App. LEXIS 341 (Ky. Ct. App. 1983) (decided under prior law).

407.5104. Application of Articles 1 to 6 and 7 to resident of foreign country and foreign support proceeding.

  1. A tribunal of this state shall apply Articles 1 to 6 of this chapter and, as applicable, Article 7 of this chapter, to a support proceeding involving:
    1. A foreign support order;
    2. A foreign tribunal; or
    3. An obligee, obligor, or child residing in a foreign country.
  2. A tribunal of this state that is requested to recognize and enforce a support order on the basis of comity may apply the procedural and substantive provisions of Articles 1 to 6 of this chapter.
  3. Article 7 of this chapter applies only to a support proceeding under the Convention. In such a proceeding, if a provision of Article 7 of this chapter is inconsistent with Articles 1 to 6 of this chapter, Article 7 of this chapter controls.

HISTORY: 2015 ch. 18, § 3, effective June 24, 2015.

Article 2. Jurisdiction

Part A. Extended Personal Jurisdiction

407.5201. Basis for jurisdiction over nonresident.

  1. In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:
    1. The individual is personally served with summons, or notice within this state;
    2. The individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive pleading having the effect of waiving any contest to personal jurisdiction;
    3. The individual resided with the child in this state;
    4. The individual resided in this state and provided prenatal expenses or support for the child;
    5. The child resides in this state as a result of the acts or directives of the individual;
    6. The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
    7. The individual asserted parentage of a child in the putative father registry maintained in this state by the Cabinet for Health and Family Services; or
    8. There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.
  2. The bases of personal jurisdiction set forth in subsection (1) of this section or in any other law of this state may not be used to acquire personal jurisdiction for a tribunal of this state to modify a child support order of another state unless the requirements of KRS 407.5611 are met, or, in the case of a foreign support order, unless the requirements of KRS 407.5615 are met.

HISTORY: Enact. Acts 1996, ch. 365, § 16; 1998. ch. 101, § 20, effective March 23, 1998; 1998, ch. 426, § 594, effective July 15, 1998; 2005, ch. 99, § 642, effective June 20, 2005; 2015 ch. 18, § 4, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

NOTES TO DECISIONS

1.Personal Jurisdiction Lacking.

CR 60.02(e) motion to set aside prior orders and judgments in a dissolution action was improperly denied because appellant former husband, who lived in Texas, was only constructively served and, thus, a personal judgment against him was void under KRS 454.165 . Personal jurisdiction was not obtained under KRS 454.210 , the long-arm statute, or KRS 407.5201(5) as any child support payments made by the father did not conform to the family court order and thus did not seem to be at the family court’s directive. Soileau v. Bowman, 382 S.W.3d 888, 2012 Ky. App. LEXIS 222 (Ky. Ct. App. 2012).

Cited in:

Nordike v. Nordike, 231 S.W.3d 733, 2007 Ky. LEXIS 165 ( Ky. 2007 ); Roberts v. Bedard, 357 S.W.3d 554, 2011 Ky. App. LEXIS 160 (Ky. Ct. App. 2011).

Research References and Practice Aids

Cross-References.

Personal service when marital domicile in Kentucky, KRS 454.275 .

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5202. Duration of personal jurisdiction.

Personal jurisdiction acquired by a tribunal of this state in a proceeding under KRS 407.5101 to 407.5902 or other law of this state relating to a support order continues as long as a tribunal of this state has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by KRS 407.5205 , 407.5206 , and 407.5211 .

HISTORY: Enact. Acts 1996, ch. 365, § 17; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 5, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

Part B. Proceedings Involving Two or More States

407.5203. Initiating and responding tribunal of this state.

Under KRS 407.5101 to 407.5902 , a tribunal of this state may serve as an initiating tribunal to forward proceedings to a tribunal of another state and as a responding tribunal for proceedings initiated in another state or a foreign country.

History. Enact. Acts 1996, ch. 365, § 18; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 6, effective June 24, 2015; 2016 ch. 77, § 5, effective July 15, 2016.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

NOTES TO DECISIONS

1.Methods of Enforcing Support Order.

Pursuant to the Uniform Reciprocal Enforcement of Support Act (repealed), the obligee had two options for seeking enforcement of a support order; one avenue of relief was to file a complaint in the initiating court in the obligee’s home state, and the initiating court, after finding the complaint set forth facts from which it might be determined that a duty of support existed, forwarded the complaint to the responding court in the obligor’s state of residence; a second method of enforcement was accomplished by registering the foreign support order in a court of this state. Commonwealth ex rel. Ball v. Musiak, 775 S.W.2d 524, 1989 Ky. App. LEXIS 107 (Ky. Ct. App. 1989) (decided under prior law).

407.5204. Simultaneous proceedings.

  1. A tribunal of this state may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a petition or comparable pleading is filed in another state or a foreign country only if:
    1. The petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state or the foreign country for filing a responsive pleading challenging the exercise of jurisdiction by the other state or the foreign country;
    2. The contesting party timely challenges the exercise of jurisdiction in the other state or the foreign country; and
    3. If relevant, this state is the home state of the child.
  2. A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state or a foreign country if:
    1. The petition or comparable pleading in the other state or foreign country is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state;
    2. The contesting party timely challenges the exercise of jurisdiction in this state; and
    3. If relevant, the other state or foreign country is the home state of the child.

HISTORY: Enact. Acts 1996, ch. 365, § 19; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 7, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5205. Continuing, exclusive jurisdiction to modify child support order.

  1. A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and:
    1. At the time of the filing of a request for modification this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
    2. Even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.
  2. A tribunal of this state that has issued a child support order consistent with the law of this state may not exercise continuing, exclusive jurisdiction to modify the order if:
    1. All of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one (1) of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
    2. Its order is not the controlling order.
  3. If a tribunal of another state has issued a child support order pursuant to the provisions of the Uniform Interstate Family Support Act as provided in KRS 407.5101 to 407.5902 or a law substantially similar to KRS 407.5101 to 407.5902 which modifies a child support order of a tribunal of this state, tribunals of this state shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state.
  4. A tribunal of this state that lacks continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state.
  5. A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.

History. Enact. Acts 1996, ch. 365, § 20; 1998, ch. 101, §§ 2, 20, effective March 23, 1998; 2015 ch. 18, § 8, effective June 24, 2015; 2016 ch. 77, § 6, effective July 15, 2016.

NOTES TO DECISIONS

1.Residence Outside of Kentucky.

Based upon the definitions in KRS 407.5101 and the facts of the case, KRS 407.5205(1)(a) did not apply; neither of the parents (obligor nor obligee) nor the children still resided in Kentucky at the relevant times. Further, KRS 407.5205(1)(b) did not apply because the parties did not file a written consent for another state to assume continuing, exclusive jurisdiction over the issue of child support. Gibson v. Gibson, 211 S.W.3d 601, 2006 Ky. App. LEXIS 390 (Ky. Ct. App. 2006).

KRS 407.5205(1)(b) cannot be read as the alternative to subsection (1)(a) when there is no continuing, exclusive jurisdiction of a state that issued a child support order under subsection (1)(a). Gibson v. Gibson, 211 S.W.3d 601, 2006 Ky. App. LEXIS 390 (Ky. Ct. App. 2006).

2.Consent.

Trial court had continuing exclusive jurisdiction to modify the child support order under Ky. Rev. Stat. § 407.5205(1)(b) because the parties consented, even if that consent was due to being misguided. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Findings and conclusions accompanying the initial decree of dissolution specifically indicated that the parties agree that the issues of property, spousal support, and child support were outstanding and reserved upon by the court; thus, the parties did consent, though perhaps as a result of being misguided, to the trial court’s retaining jurisdiction to modify child support and the trial court had continuing, exclusive jurisdiction to modify the child support order. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

3.Construction.

Based on the definitions of child support order under the Uniform Interstate Family Support Act, the child support order referred to in the statute would include a temporary support order; there was no question that the decree in this case entered on June 11, 2018 changed child support as it was ordered in the temporary child support order, and thus, it would appear that the trial court’s entry of the supplemental decree on June 11, 2018 was a modification of a child support order. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

407.5206. Continuing jurisdiction to enforce child support order.

  1. A tribunal of this state that has issued a child support order consistent with the law of this state may serve as an initiating tribunal to request a tribunal of another state to enforce:
    1. The order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction pursuant to the Uniform Interstate Family Support Act as provided in KRS 407.5101 to 407.5902 ; or
    2. A money judgment for arrears of support and interest on the order accrued before a determination that an order of a tribunal of another state is the controlling order.
  2. A tribunal of this state having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order.

History. Enact. Acts 1996, ch. 365, § 21; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 9, effective June 24, 2015; 2016 ch. 77, § 7, effective July 15, 2016.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

Part C. Reconciliation with Orders of Other States

407.5207. Determination of controlling child support order.

  1. If a proceeding is brought under this chapter and only one (1) tribunal has issued a child support order, the order of that tribunal controls and shall be recognized.
  2. If a proceeding is brought under KRS 407.5101 to 407.5902 and two (2) or more child support orders have been issued by tribunals of this state or another state or foreign country with regard to the same obligor and same child, a tribunal of this state having personal jurisdiction over both the obligor and the individual obligee shall apply the following rules and by order shall determine which order controls and shall be recognized:
    1. If only one (1) of the tribunals would have continuing, exclusive jurisdiction under KRS 407.5101 to 407.5902 , the order of that tribunal controls.
    2. If more than one (1) of the tribunals would have continuing, exclusive jurisdiction under KRS 407.5101 to 407.5902:
      1. An order issued by a tribunal in the current home state of the child controls; or
      2. If an order has not been issued in the current home state of the child, the order most recently issued controls.
    3. If none of the tribunals would have continuing, exclusive jurisdiction under KRS 407.5101 to 407.5902, the tribunal of this state shall issue a child support order, which controls.
  3. If two (2) or more child support orders have been issued for the same obligor and same child, upon request of a party who is an individual or that is a support enforcement agency, a tribunal of this state having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under subsection (2) of this section. The request may be filed with a registration for enforcement or registration for modification pursuant to Article 6 of this chapter, or may be filed as a separate proceeding.
  4. A request to determine which is the controlling order shall be accompanied by a copy of every child support order in effect and the applicable record of payments. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.
  5. The tribunal that issued the controlling order under subsection (1), (2), or (3) of this section has continuing jurisdiction to the extent provided in KRS 407.5205 and 407.5206 .
  6. A tribunal of this state that determines by order which is the controlling order under subsection (2)(a), (2)(b), or (3) of this section or that issues a new controlling order under subsection (2)(c) of this section shall state in that order:
    1. The basis upon which the tribunal made its determination;
    2. The amount of prospective support, if any; and
    3. The total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided in KRS 407.5209 .
  7. Within thirty (30) days after issuance of an order determining which is the controlling order, the party obtaining the order shall file a certified copy of it in each tribunal that issued or registered an earlier order of child support. A party or support enforcement agency obtaining the order that fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the controlling order.
  8. An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section shall be recognized in proceedings under KRS 407.5101 to 407.5902 .

History. Enact. Acts 1996, ch. 365, § 22; 1998, ch. 101, § 3, 20, effective March 23, 1998; 2015 ch. 18, § 10, effective June 24, 2015; 2016 ch. 77, § 8, effective July 15, 2016.

407.5208. Child support orders for two or more obligees.

In responding to registrations or petitions for enforcement of two (2) or more child support orders in effect at the same time with regard to the same obligor and different individual obligees, at least one (1) of which was issued by a tribunal of another state or a foreign country, a tribunal of this state shall enforce those orders in the same manner as if the orders had been issued by a tribunal of this state.

HISTORY: Enact. Acts 1996, ch. 365, § 23; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 11, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5209. Credit for payments.

A tribunal of this state shall credit amounts collected for a particular period pursuant to any child support order against the amounts owed for the same period under any other child support order for support of the same child issued by a tribunal of this state, another state, or a foreign country.

HISTORY: Enact. Acts 1996, ch. 365, § 24; 1998, ch. 101, § 20, effective March 23, 1998; repealed and reenacted by 2015 ch. 18, § 12, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5210. Application of KRS 407.5101 to 407.5902 to nonresident subject to personal jurisdiction.

A tribunal of this state exercising personal jurisdiction over a nonresident in a proceeding under KRS 407.5101 to 407.5902 , under other law of this state relating to a support order, or recognizing a foreign support order may receive evidence from outside this state pursuant to KRS 407.5316 , communicate with a tribunal outside this state pursuant to KRS 407.5320 , and obtain discovery through a tribunal outside this state pursuant to KRS 407.5318 . In all other respects, Articles 3 to 6 of this chapter do not apply, and the tribunal shall apply the procedural and substantive law of this state.

HISTORY: 2015 ch. 18, § 13, effective June 24, 2015.

407.5211. Continuing exclusive jurisdiction to modify spousal support order.

  1. A tribunal of this state issuing a spousal-support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal-support order throughout the existence of the support obligation.
  2. A tribunal of this state may not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.
  3. A tribunal of this state that has continuing, exclusive jurisdiction over a spousal-support order may serve as:
    1. An initiating tribunal to request a tribunal of another state to enforce the spousal support order issued in this state; or
    2. A responding tribunal to enforce or modify its own spousal support order.

HISTORY: 2015 ch. 18, § 14, effective June 24, 2015.

NOTES TO DECISIONS

1.Jurisdiction.

Family court erred in denying a husband's motion to modify his Tennessee-ordered support and maintenance obligations because, while the circuit court lacked authority or subject-matter jurisdiction to modify the Tennessee court's spousal maintenance order, the court was well within its jurisdiction to enforce the Tennessee spousal maintenance order, and in fact must do so. Giese v. Hamilton, 529 S.W.3d 791, 2017 Ky. App. LEXIS 471 (Ky. Ct. App. 2017).

Article 3. Civil Provisions of General Application

407.5301. Proceedings under KRS 407.5101 to 407.5902.

  1. Except as otherwise provided in KRS 407.5101 to 407.5902 , Article 3 of this chapter applies to all proceedings under KRS 407.5101 to 407.5902 .
  2. An individual petitioner or a support enforcement agency may initiate a proceeding authorized under KRS 407.5101 to 407.5902 by filing a petition in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state or a foreign country which has or can obtain personal jurisdiction over the respondent.

HISTORY: Enact. Acts 1996, ch. 365, § 25; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 15, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5302. Action by minor parent.

A minor parent, or a guardian or other legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor’s child.

History. Enact. Acts 1996, ch. 365, § 26; 1998, ch. 101, § 20, effective March 23, 1998.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5303. Application of law of this state.

Except as otherwise provided by KRS 407.5101 to 407.5902 , a responding tribunal of this state shall:

  1. Apply the procedural and substantive law generally applicable to similar proceedings originating in this state and may exercise all powers and provide all remedies available in those proceedings; and
  2. Determine the duty of support and the amount payable in accordance with the law and support guidelines of this state.

HISTORY: Enact. Acts 1996, ch. 365, § 27; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 16, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5304. Duties of initiating tribunal.

  1. Upon the filing of a petition authorized by KRS 407.5101 to 407.5902 , an initiating tribunal of this state shall forward the petition and its accompanying documents:
    1. To the responding tribunal or appropriate support enforcement agency in the responding state; or
    2. If the identity of the responding tribunal is unknown, to the state information agency of the responding state with a request that they be forwarded to the appropriate tribunal and that receipt be acknowledged.
  2. If requested by the responding tribunal, a tribunal of this state shall issue a certificate or other document and make findings required by law of the responding state. If the responding tribunal is in a foreign country, upon request the tribunal of this state shall specify the amount of support sought, convert that amount into the equivalent amount in the foreign currency under applicable official or market exchange rate as publicly reported,  and provide other documents necessary to satisfy the requirements of the responding foreign tribunal.

HISTORY: Enact. Acts 1996, ch. 365, § 28; 1998, ch. 101, § 4, 20, effective March 23, 1998; 2015 ch. 18, § 17, effective June 24, 2015.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5305. Duties and powers of responding tribunal.

  1. When a responding tribunal of this state receives a petition or comparable pleading from an initiating tribunal or directly pursuant to KRS 407.5301 , it shall cause the petition or pleading to be filed and notify the petitioner where and when it was filed.
  2. A responding tribunal of this state, to the extent not prohibited by other law, may do one (1) or more of the following:
    1. Establish or enforce a support order, modify a child support order, determine the controlling child support order, or determine parentage of a child;
    2. Order an obligor to comply with a support order, specifying the amount and the manner of compliance;
    3. Order income withholding;
    4. Determine the amount of any arrearages, and specify a method of payment;
    5. Enforce orders by civil or criminal contempt, or both;
    6. Set aside property for satisfaction of the support order;
    7. Place liens and order execution on the obligor’s property;
    8. Order an obligor to keep the tribunal informed of the obligor’s current residential address, electronic mail address, telephone number, employer, address of employment, and telephone number at the place of employment;
    9. Issue a bench warrant or writ of arrest for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the bench warrant or writ of arrest in any local and state computer systems for criminal warrants;
    10. Order the obligor to seek appropriate employment by specified methods;
    11. Award reasonable attorney’s fees and other fees and costs; and
    12. Grant any other available remedy.
  3. A responding tribunal of this state shall include in a support order issued under KRS 407.5101 to 407.5902 , or in the documents accompanying the order, the calculations on which the support order is based.
  4. A responding tribunal of this state may not condition the payment of a support order issued under KRS 407.5101 to 407.5902 upon compliance by a party with provisions for visitation.
  5. If a responding tribunal of this state issues an order under KRS 407.5101 to 407.5902 , the tribunal shall send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any.
  6. If requested to enforce a support order, arrears, or judgment or modify a support order stated in a foreign currency, a responding tribunal of this state shall convert the amount stated in the foreign currency to the equivalent amount in dollars under the applicable official or market exchange rate as publicly reported.

HISTORY: Enact. Acts 1996, ch. 365, § 29; 1998, ch. 101, § 5, 20, effective March 23, 1998; 2015 ch. 18, § 18, effective June 24, 2015.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5306. Inappropriate tribunal.

If a petition or comparable pleading is received by an inappropriate tribunal of this state, the tribunal shall forward the pleading and accompanying documents to an appropriate tribunal of this state or another state and notify the petitioner where and when the pleading was sent.

HISTORY: Enact. Acts 1996, ch. 365, § 30; 1998, ch. 101, § 6, 20, effective March 23, 1998; 2015 ch. 18, § 19, effective June 24, 2015.

407.5307. Duties of support enforcement agency.

  1. A support enforcement agency of this state, upon request, shall provide services to a petitioner in a proceeding under this chapter.
  2. A support enforcement agency of this state that is providing services to the petitioner shall:
    1. Take all steps necessary to enable an appropriate tribunal of this state, another state, or a foreign country to obtain jurisdiction over the respondent;
    2. Request an appropriate tribunal to set a date, time, and place for a hearing;
    3. Make a reasonable effort to obtain all relevant information, including information as to income and property of the parties;
    4. Within two (2) days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of notice in a record from initiating, responding, or registering tribunal, send a copy of the notice to the petitioner;
    5. Within two (2) days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of a communication in a record from the respondent or the respondent’s attorney, send a copy of the communication to the petitioner; and
    6. Notify the petitioner if jurisdiction over the respondent cannot be obtained.
  3. A support enforcement agency of this state that requests registration of a child support order in this state for enforcement or for modification shall make reasonable efforts:
    1. To ensure that the order to be registered is the controlling order; or
    2. If two (2) or more child support orders exist and the identity of the controlling order has not been determined, to ensure that a request for such a determination is made in a tribunal having jurisdiction to do so.
  4. A support enforcement agency of this state that requests registration and enforcement of a support order, arrears, or judgment stated in a foreign currency shall convert the amounts stated in the foreign currency into the equivalent amounts in dollars under the applicable official or market exchange rate as publicly reported.
  5. A support enforcement agency of this state shall issue or request a tribunal of this state to issue a child support order and an income-withholding order that redirect payment of current support, arrears, and interest if requested to do so by a support enforcement agency of another state pursuant to KRS 407.5319 .
  6. KRS 407.5101 to 407.5902 does not create or negate a relationship of attorney and client or other fiduciary relationship between a support enforcement agency or the attorney for the agency and the individual being assisted by the agency.

History. Enact. Acts 1996, ch. 365, § 31; 1998, ch. 101, § 7, effective March 23, 1998; 2015 ch. 18, § 20, effective June 24, 2015; 2016 ch. 77, § 9, effective July 15, 2016.

NOTES TO DECISIONS

1.Actions Prosecuted in Another County.

A prosecutor from one county in a multi-county judicial district could bring an action pursuant to KRS 406.021 to determine the paternity of children from another county in the same judicial district, since paternity actions may be brought by and prosecuted by the mother, child, person or agency substantially contributing to the support of the child, through an attorney of their choosing, with the county attorney only entering the case when requested to do so by the complainant, and because, in this case, the Department for Human Resources contracted with the county attorney to represent the complainant pursuant to former laws providing the location for filing complaints and the duty of the court of Kentucky as the responding court. Commonwealth ex rel. Stumbo v. Wilson, 622 S.W.2d 912, 1981 Ky. LEXIS 281 ( Ky. 1981 ) (decided under prior law).

407.5308. Duty of Cabinet for Health and Family Services in regard to contracting official and reciprocal arrangement with foreign country.

  1. If the Cabinet for Health and Family Services determines that a contracting official is neglecting or refusing to provide services to an individual, the Cabinet for Health and Family Services may order that official to perform his duties under KRS 407.5101 to 407.5902 or may provide those services directly to the individual.
  2. The Cabinet for Health and Family Services may determine that a foreign country has established a reciprocal arrangement for child support with this state and take appropriate action for notification of the determination.

HISTORY: Enact. Acts 1996, ch. 365, § 32; 1998, ch. 101, § 20, effective March 23, 1998; 1998, ch. 426, § 595, effective July 15, 1998; 2005, ch. 99, § 643, effective June 20, 2005; 2015 ch. 18, § 21, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5309. Private counsel.

An individual may employ private counsel to represent the individual in proceedings authorized by KRS 407.5101 to 407.5902 .

History. Enact. Acts 1996, ch. 365, § 33; 1998, ch. 101, § 20, effective March 23, 1998.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5310. Duties of Cabinet for Health and Family Services as state information agency.

  1. The Cabinet for Health and Family Services is the state information agency under KRS 407.5101 to 407.5902 .
  2. The state information agency shall:
    1. Compile and maintain a current list, including addresses, of the tribunals in this state which have jurisdiction under KRS 407.5101 to 407.5902 and any support enforcement agencies in this state and transmit a copy to the state information agency of every other state;
    2. Maintain a register of names and addresses of tribunals and support enforcement agencies received from other states;
    3. Forward to the appropriate tribunal in the county in this state in which the obligee who is an individual or the obligor resides, or in which the obligor’s property is believed to be located, all documents concerning a proceeding under KRS 407.5101 to 407.5902 received from another state or foreign country; and
    4. Obtain information concerning the location of the obligor and the obligor’s property within this state not exempt from execution, by such means as postal verification and federal or state locator services, examination of telephone directories, requests for the obligor’s address from employers, and examination of governmental records, including, to the extent not prohibited by other law, those relating to real property, vital statistics, law enforcement, taxation, motor vehicles, driver’s licenses, and Social Security.

HISTORY: Enact. Acts 1996, ch. 365, § 34; 1998, ch. 101, § 20, effective March 23, 1998; 1998, ch. 426, § 596, effective July 15, 1998; 2005, ch. 99, § 644, effective June 20, 2005; 2015 ch. 18, § 22, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5311. Pleadings and accompanying documents.

  1. In a proceeding under KRS 407.5101 to 407.5902 , a petitioner seeking to establish a support order, to determine parentage of a child, or to register and modify a support order of a tribunal of another state or a foreign country shall file a petition. Unless otherwise ordered under KRS 407.5312 , the petition or accompanying documents shall provide, so far as known, the name, residential address, and Social Security numbers of the obligor and the obligee or the parent and alleged parent, and the name, sex, residential address, Social Security number, and date of birth of each child for whose benefit support is sought or whose parentage is to be determined, with the obligor’s, obligee’s, parent’s, alleged parent’s, and children’s personal identifiers provided in accordance with KRS 403.135 . Unless filed at the time of registration, the petition shall be accompanied by a copy of any support order known to have been issued by another tribunal. The petition may include any other information that may assist in locating or identifying the respondent.
  2. The petition shall specify the relief sought. The petition and accompanying documents shall conform substantially with the requirements imposed by the forms mandated by federal law for use in cases filed by a support enforcement agency.

HISTORY: Enact. Acts 1996, ch. 365, § 35; 1998, ch. 101, § 20, effective March 23, 1998; 2006, ch. 126, § 5, effective July 12, 2006; 2015 ch. 18, § 23, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5312. Nondisclosure of information in exceptional circumstances.

If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of specific identifying information, that information shall be sealed and may not be disclosed to the other party or the public. After a hearing in which a tribunal takes into consideration the health, safety, or liberty of the party or child, the tribunal may order disclosure of information that the tribunal determines to be in the interest of justice.

HISTORY: Enact. Acts 1996, ch. 365, § 36; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 24, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5313. Costs and fees.

  1. The petitioner may not be required to pay a filing fee or other costs.
  2. If the obligee prevails, a responding tribunal of this state may assess against an obligor filing fees, reasonable attorney’s fees, other costs, and necessary travel and other reasonable expenses incurred by the obligee and the obligee’s witnesses. The tribunal may not assess fees, costs, or expenses against the obligee or the support enforcement agency of either the initiating or responding state or foreign country, except as provided by other law. Attorney’s fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order in the attorney’s own name. Payment of support owed to the obligee has priority over fees, costs and expenses.
  3. The tribunal shall order the payment of costs and reasonable attorney’s fees if it determines that the hearing was requested primarily for delay. In a proceeding under Article 6 of this chapter, a hearing is presumed to have been requested primarily for a delay if a registered support order is confirmed or enforced without change.

HISTORY: Enact. Acts 1996, ch. 365, § 37; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 25, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5314. Limited immunity of petitioner.

  1. Participation by a petitioner in a proceeding under KRS 407.5101 to 407.5902 before a responding tribunal, whether in person, by private attorney, or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.
  2. A petitioner is not amenable to service of civil process while physically present in this state to participate in a proceeding under KRS 407.5101 to 407.5902 .
  3. The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under KRS 407.5101 to 407.5902 committed by a party while physically present in this state to participate in the proceeding.

HISTORY: Enact. Acts 1996, ch. 365, § 38; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 26, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

NOTES TO DECISIONS

1.Subject Matter Jurisdiction.

The Circuit Court in Kentucky properly refused to recognize the action of the Pennsylvania court, which purported to modify an earlier Kentucky support order to eliminate support for the younger son for periods when he was living in Pennsylvania with his father, where it was clear from the mother’s petition to the Pennsylvania court and the accompanying documents that she was seeking enforcement of the Kentucky support order as to their older handicapped son; she did not subject herself to the jurisdiction of the Pennsylvania court for an independent action by her former husband relating to his support obligation for his younger son. Abbott v. Abbott, 673 S.W.2d 723, 1983 Ky. App. LEXIS 407 (Ky. Ct. App. 1983) (decided under prior law).

407.5315. Nonparentage as defense.

A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under KRS 407.5101 to 407.5902 .

History. Enact. Acts 1996, ch. 365, § 39; 1998, ch. 101, § 20, effective March 23, 1998.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

NOTES TO DECISIONS

1.In General.

Under the Uniform Reciprocal Enforcement of Support Act (repealed), the issue of paternity may be raised by the defendant unless it has been previously judicially determined. Department of Economic Sec. v. Shanklin, 514 S.W.2d 682, 1974 Ky. LEXIS 325 ( Ky. 1974 ) (decided under prior law).

407.5316. Special rules of evidence and procedure.

  1. The physical presence of a nonresident party who is an individual in a tribunal of this state is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage of a child.
  2. An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this state.
  3. A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it, and is admissible to show whether payments were made.
  4. Copies of bills for testing for parentage of a child, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten (10) days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.
  5. Documentary evidence transmitted from outside this state to a tribunal of this state by telephone, telecopier, or other electronic means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission.
  6. In a proceeding under KRS 407.5101 to 407.5902 , a tribunal of this state shall permit a party or witness residing outside this state to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location. A tribunal of this state shall cooperate with other tribunals in designating an appropriate location for the deposition or testimony.
  7. If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.
  8. A privilege against disclosure of communications between spouses does not apply in a proceeding under KRS 407.5101 to 407.5902 .
  9. The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under KRS 407.5101 to 407.5902 .
  10. A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.

HISTORY: Enact. Acts 1996, ch. 365, § 40; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 27, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5318. Assistance with discovery.

A tribunal of this state may:

  1. Request a tribunal outside this state to assist in obtaining discovery; and
  2. Upon request, compel a person over which it has jurisdiction to respond to a discovery order issued by a tribunal outside this state.

HISTORY: Enact. Acts 1996, ch. 365, § 41; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 29, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5319. Receipt and disbursement of payments.

  1. A support enforcement agency or tribunal of this state shall disburse promptly any amounts received pursuant to a support order, as directed by the order. The agency or tribunal shall furnish to a requesting party or tribunal of another state a certified statement by the custodian of the record of the amounts and dates of all payments received.
  2. If neither the obligor, nor the obligee who is an individual, nor the child resides in this state, upon request from the support enforcement agency of this state or another state, the child support enforcement agency of this state or a tribunal of this state shall:
    1. Direct that the support payment be made to the support enforcement agency in the state in which the obligee is receiving services; and
    2. Issue and send to the obligors employer a conforming income-withholding order or an administrative notice of change of payee, reflecting the redirected payments.
  3. The support enforcement agency of this state receiving redirected payments from another state pursuant to a law similar to subsection (2) of this section shall furnish to a requesting party or tribunal of the other state a certified statement by the custodian of the record of the amount and dates of all payments received

HISTORY: Enact. Acts 1996, ch. 365, § 42; 1998, ch. 101, § 20, effective March 23, 1998; repealed and reenacted by 2015 ch. 18, § 30, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5320. Communications between tribunals.

A tribunal of this state may communicate with a tribunal outside this state in a record or by telephone, electronic mail, or other means, to obtain information concerning the laws, the legal effect of a judgment, decree, or order of that tribunal, and the status of a proceeding. A tribunal of this state may furnish similar information by similar means to a tribunal outside this state.

HISTORY: 2015 ch. 18, § 28, effective June 24, 2015.

Article 4. Establishment of Support Order

407.5401. Petition to establish support order.

  1. If a support order entitled to recognition under KRS 407.5101 to 407.5902 has not been issued, a responding tribunal of this state with personal jurisdiction over the parties may issue a support order if:
    1. The individual seeking the order resides outside this state; or
    2. The support enforcement agency seeking the order is located outside this state.
  2. The tribunal may issue a temporary child support order if the tribunal determines that such an order is appropriate and the individual ordered to pay is:
    1. A presumed father of the child;
    2. Petitioning to have his paternity adjudicated;
    3. Identified as the father of the child through genetic testing;
    4. An alleged father who has declined to submit to genetic testing;
    5. Shown by clear and convincing evidence to be the father of the child;
    6. An acknowledged father as provided by KRS 213.046 ;
    7. The mother of the child; or
    8. An individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated.
  3. Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to KRS 407.5305 .

HISTORY: Enact. Acts 1996, ch. 365, § 43; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 31, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5402. Proceeding to determine parentage.

A tribunal of this state authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought under KRS 407.5101 to 407.5902 or a law or procedure substantially similar to KRS 407.5101 to 407.5902 .

HISTORY: 2015 ch. 18, § 32, effective June 24, 2015.

Article 5. Direct Enforcement of Order of Another State Without Registration

407.5501. Employer’s receipt of income-withholding order of another state.

An income-withholding order issued in another state may be sent by or on behalf of the obligee, or by the support enforcement agency, to the person defined as the obligor’s employer under the income-withholding law of this state without first filing a petition or comparable pleading or registering the order with a tribunal of this state.

HISTORY: Enact. Acts 1996, ch. 365, § 44; 1998, ch. 101, § 8, 20, effective March 23, 1998; 2015 ch. 18, § 33, effective June 24, 2015.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5502. Employer’s compliance with income-withholding order of another state.

  1. Upon receipt of an income-withholding order, the obligor’s employer shall immediately provide a copy of an order to the obligor.
  2. The employer shall treat an income-withholding order that has been issued in another state and that appears regular on its face as if it had been issued by a tribunal of this state.
  3. Except as otherwise provided in subsection (4) of this section and KRS 407.5503 , the employer shall withhold and distribute the funds as directed in the withholding order by complying with terms of the order terms that specify:
    1. The duration and amount of periodic payments of current child support, stated as a sum certain;
    2. The person designated to receive payments and the address to which the payments are to be forwarded;
    3. Medical support, whether in the form of periodic cash payment, stated as a sum certain, or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor’s employment;
    4. The amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal, and the obligee’s attorney, stated as sums certain; and
    5. The amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.
  4. An employer shall comply with the law of the state of the obligor’s principal place of employment for withholding from income with respect to:
    1. The employer’s fee for processing an income-withholding order;
    2. The maximum amount permitted to be withheld from the obligor’s income; and
    3. The times within which the employer must implement the withholding order and forward the child support payment.

History. Enact. Acts 1998, ch. 101, § 9, effective March 23, 1998; 2015 ch. 18, § 34, effective June 24, 2015; 2016 ch. 77, § 10, effective July 15, 2016.

407.5503. Employer’s compliance with multiple income-withholding orders.

If an obligor’s employer receives two (2) or more income-withholding orders with respect to the earnings of the same obligor, the employer satisfies the terms of the two (2) or more orders if the employer complies with the law of the state of the obligor’s principal place of employment to establish the priorities for withholding and allocating income withheld for two (2) or more child support obligees.

HISTORY: Enact. Acts 1998, ch. 101, § 10, effective March 23, 1998; 2015 ch. 18, § 35, effective June 24, 2015.

407.5504. Immunity from civil liability.

An employer that complies with an income-withholding order issued in another state in accordance with this article is not subject to civil liability to an individual or agency with regard to the employer’s withholding of child support from the obligor’s income.

HISTORY: Enact. Acts 1998, ch. 101, § 11, effective March 23, 1998; 2015 ch. 18, § 36, effective June 24, 2015.

407.5505. Penalties for noncompliance.

An employer that willfully fails to comply with an income-withholding order issued in another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state.

HISTORY: Enact. Acts 1998, ch. 101, § 12, effective March 23, 1998; 2015 ch. 18, § 37, effective June 24, 2015.

407.5506. Contest by obligor.

  1. An obligor may contest the validity or enforcement of an income-withholding order issued in another state and received directly by an employer in this state by registering the order in a tribunal of this state and filing a contest to that order as provided in Article 6 of this chapter, or otherwise contesting the order in the same manner as if the order had been issued by a tribunal of this state.
  2. The obligor shall give notice of the contest to:
    1. A support enforcement agency providing services to the obligee;
    2. Each employer that has directly received an income-withholding order relating to the obligor; and
    3. The person designated to receive payments in the income-withholding order, or, if no person is designated, the obligee.

HISTORY: Enact. Acts 1998, ch. 101, § 13, effective March 23, 1998; 2015 ch. 18, § 38, effective June 24, 2015.

407.5507. Administrative enforcement of orders.

  1. A party or support enforcement agency seeking to enforce a support order or an income-withholding order, or both, issued in another state or a foreign support order may send the documents required for registering the order to a support enforcement agency of this state.
  2. Upon receipt of the documents, the support enforcement agency, without initially seeking to register the order, shall consider and, if appropriate, use any administrative procedure authorized by the law of this state to enforce a support order or an income-withholding order, or both. If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests the validity or administrative enforcement of the order, the support enforcement agency shall register the order pursuant to KRS 407.5101 to 407.5902 .

HISTORY: Repealed, reenact., and amend. Acts 1998, ch. 101, § 14, effective March 23, 1998; 2015 ch. 18, § 39, effective June 24, 2015.

Compiler’s Notes.

This section was formerly compiled as KRS 407.5502 and was repealed, reenacted and renumbered as this section by Acts 1998, ch. 101, § 14.

Article 6. Enforcement and Modification of Support Order After Registration

Part A. Registration for Enforcement of Support Order

407.5601. Registration of order of enforcement.

A support order or an income-withholding order issued in another state or a foreign support order may be registered in this state for enforcement.

History. Enact. Acts 1996, ch. 365, § 46; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 40, effective June 24, 2015; 2016 ch. 77, § 11, effective July 15, 2016.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

NOTES TO DECISIONS

1.Purpose.

Requiring registration to seek a modification of a prior support order comported with the purposes of the Uniform Reciprocal Enforcement of Support Act (repealed), that is, to provide an efficient method of enforcing support duties between jurisdictions. Commonwealth ex rel. Ball v. Musiak, 775 S.W.2d 524, 1989 Ky. App. LEXIS 107 (Ky. Ct. App. 1989) (decided under prior law).

2.Methods of Enforcing Support Order.

Pursuant to the Uniform Reciprocal Enforcement of Support Act (repealed), the obligee had two options for seeking enforcement of a support order; one avenue of relief was to file a complaint in the initiating court in the obligee’s home state, and the initiating court, after finding the complaint sets forth facts from which it may be determined that a duty of support exists, forwards the complaint to the responding court in the obligor’s state of residence; a second method of enforcement was accomplished by registering the foreign support order in a court of this state. Commonwealth ex rel. Ball v. Musiak, 775 S.W.2d 524, 1989 Ky. App. LEXIS 107 (Ky. Ct. App. 1989) (decided under prior law).

3.Procedure for Seeking Modification.

An obligee may register a foreign support order with the circuit clerk, and after a foreign support order is registered, the obligee may seek modification in the Circuit Court pursuant to the standards of KRS 403.250 . Commonwealth ex rel. Ball v. Musiak, 775 S.W.2d 524, 1989 Ky. App. LEXIS 107 (Ky. Ct. App. 1989) (decided under prior law).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5602. Procedure to register order for enforcement.

  1. Except as otherwise provided in KRS 407.5706 a support order or income-withholding order of another state or a foreign support order may be registered in this state by sending the following to the Cabinet for Health and Family Services:
    1. A letter of transmittal to the tribunal requesting registration and enforcement;
    2. Two (2) copies, including one (1) certified copy, of the order to be registered, including any modification of the order;
    3. A sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage;
    4. The name of the obligor and, if known;
      1. The obligor’s address and the obligor’s Social Security number provided in accordance with KRS 403.135 ;
      2. The name and address of the obligor’s employer and any other source of income of the obligor; and
      3. A description and the location of property of the obligor in this state not exempt from execution; and
    5. Except as otherwise provided in KRS 407.5312 , the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.
  2. On receipt of a request for registration, the registering tribunal shall cause the order to be filed as an order of a tribunal of another state or a foreign support order, together with one (1) copy of the documents and information, regardless of their form.
  3. A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later. The pleading shall specify the grounds for the remedy sought.
  4. If two (2) or more orders are in effect, the person requesting registration shall:
    1. Furnish to the tribunal a copy of every support order asserted to be in effect in addition to the documents specified in this section;
    2. Specify the order alleged to be the controlling order, if any; and
    3. Specify the amount of consolidated arrears, if any.
  5. A request for a determination of which is the controlling order may be filed separately or with a request for registration and enforcement or for registration and modification. The person requesting registration shall give notice of the request to each party whose rights may be affected by the determination.

HISTORY: Enact. Acts 1996, ch. 365, § 47; 1998, ch. 101, § 20, effective March 23, 1998; 1998, ch. 426, § 597, effective July 15, 1998; 2005, ch. 99, § 645, effective June 20, 2005; 2006, ch. 126, § 6, effective July 12, 2006; 2015 ch. 18, § 41, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

NOTES TO DECISIONS

1.Waiver

Mother had waived any complaint about the father's failure to follow Ky. Rev. Stat. Ann. § 407.5602 by failing to register any objection. Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 2015 Ky. LEXIS 1758 ( Ky. 2015 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5603. Effect of registration for enforcement.

  1. A support order or income-withholding order issued in another state or a foreign support order is registered when the order is filed in the registering tribunal of this state.
  2. A registered support order issued in another state or foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.
  3. Except as otherwise provided in KRS 407.5101 to 407.5902 of this chapter, a tribunal of this state shall recognize and enforce, but may not modify, a registered support order if the issuing tribunal had jurisdiction.

History. Enact. Acts 1996, ch. 365, § 48; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 42, effective June 24, 2015; 2016 ch. 77, § 12, effective July 15, 2016.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5604. Choice of law.

  1. Except as otherwise provided in subsection (4) of this section, the law of the issuing state or foreign country governs:
    1. The nature, extent, amount, and duration of current payments under a registered support order;
    2. The computation and payment of arrearages and accrual of interest on the arrearages under the support order; and
    3. The existence and satisfaction of other obligations under the support order.
  2. In a proceeding for arrears under a registered support order, the statute of limitation of this state, or of the issuing state or foreign country, whichever is longer, applies.
  3. A responding tribunal of this state shall apply the procedures and remedies of this state to enforce current support and collect arrears and interest due on a support order of another state or a foreign country registered in this state.
  4. After a tribunal of this state or another state determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of this state shall prospectively apply the law of the state or foreign country issuing the controlling order, including its law on interest on arrears, on current and future support, and on consolidated arrears.

HISTORY: Enact. Acts 1996, ch. 365, § 49; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 43, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

Part B. Contents of Validity or Enforcement

407.5605. Notice of registration of order.

  1. When a support order or income-withholding order issued in another state or a foreign support order is registered, the registering tribunal of this state shall notify the nonregistering party. The notice shall be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.
  2. A notice shall inform the nonregistering party:
    1. That a registered support order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this state;
    2. That a hearing to contest the validity or enforcement of the registered order shall be requested within twenty (20) days of the notice unless the registered order is under KRS 407.5707 ;
    3. That failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages; and
    4. Of the amount of any alleged arrearages.
  3. If the registering party asserts that two (2) or more orders are in effect, a notice shall also:
    1. Identify the two (2) or more orders and the order alleged by the registering party to be the controlling order and the consolidated arrears, if any;
    2. Notify the nonregistering party of the right to a determination of which is the controlling order;
    3. State that the procedures provided in subsection (2) of this section apply to the determination of which is the controlling order; and
    4. State that failure to contest the validity or enforcement of the order alleged to be the controlling order in a timely manner may result in confirmation that the order is the controlling order.
  4. Upon registration of an income-withholding order for enforcement, the support enforcement agency or the registering tribunal shall notify the obligor’s employer pursuant to KRS 403.215 or 405.465 .

History. Enact. Acts 1996, ch. 365, § 50; 1998, ch. 101, § 15, 20, effective March 23, 1998; 2015 ch. 18, § 44, effective June 24, 2015; 2016 ch. 77, § 13, effective July 15, 2016.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5606. Procedure to contest validity or enforcement of registered order.

  1. A nonregistering party seeking to contest the validity or enforcement of a registered support order in this state shall request a hearing within the time required by KRS 407.5605 . The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to KRS 407.5607 .
  2. If the nonregistering party fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.
  3. If a nonregistering party requests a hearing to contest the validity or enforcement of the registered support order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing.

HISTORY: Enact. Acts 1996, ch. 365, § 51; 1998, ch. 101, § 16, 20, effective March 23, 1998; 2015 ch. 18, § 45, effective June 24, 2015.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Child Support, § 263.00.

407.5607. Contest of registration or enforcement.

  1. A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one (1) or more of the following defenses:
    1. The issuing tribunal lacked personal jurisdiction over the contesting party;
    2. The order was obtained by fraud;
    3. The order has been vacated, suspended, or modified by a later order;
    4. The issuing tribunal has stayed the order pending appeal;
    5. There is a defense under the law of this state to the remedy sought;
    6. Full or partial payment has been made;
    7. The statute of limitation under KRS 407.5604 precludes enforcement of some or all of the alleged arrearages; or
    8. The alleged controlling order is not the controlling order.
  2. If a party presents evidence establishing a full or partial defense under subsection (1) of this section, a tribunal may stay enforcement of a registered support order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered support order may be enforced by all remedies available under the law of this state.
  3. If the contesting party does not establish a defense under subsection (1) of this section to the validity or enforcement of a registered support order, the registering tribunal shall issue an order confirming the order.

History. Enact. Acts 1996, ch. 365, § 52; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 46, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5608. Confirmed order.

Confirmation of a registered support order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

HISTORY: Enact. Acts 1996, ch. 365, § 53; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 47, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

Part C. Registration and Modification of Child Support Order of Another State

407.5609. Procedure to register child support order of another state for modification.

A party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in this state in the same manner provided in KRS 407.5601 , 407.5602 , 407.5603 , 407.5604 , 407.5605 , 407.5606 , 407.5607 , and 407.5608 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or later. The pleading shall specify the grounds for modification.

HISTORY: Enact. Acts 1996, ch. 365, § 54; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 48, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

NOTES TO DECISIONS

1.In General.

Where a Kansas child support decree was never registered in Kentucky under the Kentucky Uniform Interstate Family Support Act, and no motion to modify child support was ever filed, a mother’s motion in a Kentucky court to transfer jurisdiction over child support issues to Kentucky was not justiciable under Ky. Const. § 112(5) because it made no substantive request for relief. Nordike v. Nordike, 231 S.W.3d 733, 2007 Ky. LEXIS 165 ( Ky. 2007 ).

2.Justiciable Claims.

Since a motion filed in a Kentucky court to transfer jurisdiction over child support issues from Kansas to Kentucky did not request any substantive relief such as modification of child support, it was not analogous to a declaratory judgment action, and there was no actual controversy respecting justiciable questions as required by KRS 418.040 . Nordike v. Nordike, 231 S.W.3d 733, 2007 Ky. LEXIS 165 ( Ky. 2007 ).

407.5610. Effect of registration for modification.

A tribunal of this state may enforce a child support order of another state registered for purposes of modification, in the same manner as if the order had been issued by a tribunal of this state, but the registered support order may be modified only if the requirements of KRS 407.5611 or 407.5613 have been met.

History. Enact. Acts 1996, ch. 365, § 55; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 49, effective June 24, 2015; 2016 ch. 77, § 14, effective July 15, 2016.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5611. Modification of child support order of another state.

  1. If KRS 407.5613 does not apply, upon petition a tribunal of this state may modify a child support order issued in another state which is registered in this state if, after notice and hearing, the tribunal finds that:
    1. The following requirements are met:
      1. Neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;
      2. A petitioner who is a nonresident of this state seeks modification; and
      3. The respondent is subject to the personal jurisdiction of the tribunal of this state; or
    2. This state is the residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.
  2. Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.
  3. A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support. If two (2) or more tribunals have issued child support orders for the same obligor and same child, the order that controls and shall be so recognized under KRS 407.5207 establishes the aspects of the support order which are nonmodifiable.
  4. In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor’s fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.
  5. On the issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal having continuing, exclusive jurisdiction.
  6. Notwithstanding subsections (1) to (5) of this section and KRS 407.5201(2), a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if:
    1. One (1) party resides in another state; and
    2. The other party resides outside the United States.

HISTORY: Enact. Acts 1996, ch. 365, § 56; 1998, ch. 101, § 17, 20, effective March 23, 1998; 2015 ch. 18, § 50, effective June 24, 2015.

NOTES TO DECISIONS

1.Interference of Visitation.

Trial court was precluded from reducing father’s child support arrearages to nothing, even though the mother never demanded the child support payments and the mother never made her whereabouts known to the father, thus making it impossible for him to exercise his visitation rights. Gera v. Gera, 796 S.W.2d 13, 1990 Ky. App. LEXIS 129 (Ky. Ct. App. 1990) (decided under prior law).

2.Modification of Judgment.

Where two states had adopted the uniform support of dependents act, the responding state had no authority to change or alter the original judgment. Hamilton v. Hamilton, 476 S.W.2d 197, 1972 Ky. LEXIS 384 ( Ky. 1972 ) (decided under prior law).

According to the Full Faith and Credit for Child Support Orders Act, registration of the parties’ Florida support order would only have been effective in Kentucky if Kentucky had personal jurisdiction over the father at the time of registration, and under Kentucky’s Uniform Interstate Family Support Act statutes, the family court would only have had subject-matter jurisdiction if the mother had been a nonresident of Kentucky when she filed her motion to modify; thus, the family court found that it did not have subject-matter jurisdiction because, contrary to both federal and state law, Kentucky did not have the requisite subject-matter jurisdiction. Roberts v. Bedard, 357 S.W.3d 554, 2011 Ky. App. LEXIS 160 (Ky. Ct. App. 2011).

407.5612. Recognition of order modified in another state.

If a child support order issued by a tribunal of this state is modified by a tribunal of another state which assumed jurisdiction pursuant to the Uniform Interstate Family Support Act as provided in KRS 407.5101 to 407.5902 , a tribunal of this state:

  1. May enforce its order that was modified only as to arrears and interest accruing before the modification;
  2. May provide appropriate relief for violations of its order which occurred before the effective date of the modification; and
  3. Shall recognize the modifying order of the other state, upon registration, for the purpose of enforcement.

History. Enact. Acts 1996, ch. 365, § 57; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 51, effective June 24, 2015; 2016 ch. 77, § 15, effective July 15, 2016.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5613. Jurisdiction to modify child support order of another state when individual parties reside in this state.

  1. If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state’s child support order in a proceeding to register that order.
  2. A tribunal of this state exercising jurisdiction under this section shall apply the provisions of Articles 1 and 2 of this chapter, this Article, and the procedural and substantive law of the state to the proceeding for enforcement or modification. Articles 3, 4, 5, 7, and 8 do not apply.

HISTORY: Enact. Acts 1998, ch. 101, § 18, effective March 23, 1998; 2015 ch. 18, § 52, effective June 24, 2015.

NOTES TO DECISIONS

1.Choice of Law.

Family court did not abuse its discretion in reducing a father’s child support obligation and granting tax deductions because it was entirely appropriate for the family court to base its decisions on the laws of Kentucky after Indiana transferred its jurisdiction over all child custody, visitation, and support matters, the mother’s failure to object sooner constituted a waiver, and she provided no evidence to support her argument that the trial court did not equitably assign the tax exemptions. Adams-Smyrichinsky v. Smyrichinsky, 2013 Ky. App. LEXIS 158 (Ky. Ct. App. Nov. 15, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 989 (Ky. Ct. App. Nov. 15, 2013).

407.5614. Notice of modification to issuing tribunal.

Within thirty (30) days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order, and in each tribunal in which the party knows that the earlier order has been registered. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the modified order of the new tribunal having continuing, exclusive jurisdiction.

History. Enact. Acts 1998, ch. 101, § 19, effective March 23, 1998.

407.5615. Jurisdiction to modify child support order of foreign country.

  1. Except as otherwise provided in KRS 407.5711 , if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order pursuant to its laws, a tribunal of this state may assume jurisdiction to modify the child support order and bind all individuals subject to the personal jurisdiction of the tribunal whether the consent to modification of a child support order otherwise required of the individual pursuant to KRS 407.5611 has been given or whether the individual seeking modification is a resident of this state or of the foreign country.
  2. An order issued by a tribunal of this state modifying a foreign child support order pursuant to this section is the controlling order.

HISTORY: 2015 ch. 18, § 53, effective June 24, 2015.

Part D. Registration and Modification of Foreign Child Support Order

407.5616. Procedure to register child support order of foreign country for modification.

A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child support order not under the Convention may register that order in this state under KRS 407.5601 , 407.5602 , 407.5603 , 407.5604 , 407.5605 , 407.5606 , 407.5607 , and 407.5608 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or at another time. The petition shall specify the grounds for modification.

HISTORY: 2015 ch. 18, § 54, effective June 24, 2015.

Article 7. Determination of Parentage

407.5701. Definitions for Article 7.

In this Article:

  1. “Application” means a request under the Convention by an obligee or obligor, or on behalf of a child, made through a central authority for assistance from another central authority;
  2. “Central authority” means the entity designated by the United States or a foreign country described in KRS 407.5101(5)(d) to perform the functions specified in the Convention;
  3. “Convention support order” means a support order of a tribunal of a foreign country described in KRS 407.5101(5)(d);
  4. “Direct request” means a petition filed by an individual in a tribunal of this state in a proceeding involving an obligee, obligor, or child residing outside the United States;
  5. “Foreign central authority” means the entity designated by a foreign country described in KRS 407.5101(5)(d) to perform the functions specified in the Convention;
  6. “Foreign support agreement”:
    1. Means an agreement for support in a record that:
      1. Is enforceable as a support order in the country of origin;
      2. Has been:
        1. Formally drawn up or registered as an authentic instrument by a foreign tribunal; or
        2. Authenticated by, or concluded, registered, or filed with a foreign tribunal; and
      3. May be reviewed and modified by a foreign tribunal; and
    2. Includes a maintenance arrangement or authentic instrument under the Convention; and
  7. “United States central authority” means the Secretary of the United States Department of Health and Human Services.

HISTORY: Enact. Acts 1996, ch. 365, § 58; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 55, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5702. Applicability.

This Article applies only to a support proceeding under the Convention. In such a proceeding, if a provision of this Article is inconsistent with Articles 1 to 6 of this chapter, this Article controls.

HISTORY: 2015 ch. 18, § 56, effective June 24, 2015.

407.5703. Relationship of Department for Income Support to United States central authority.

Under KRS 205.712 , the Department for Income Support, Child Support Enforcement, within the Cabinet for Health and Family Services is recognized as the agency designated by the United States central authority to perform specific functions under the Convention.

HISTORY: 2015 ch. 18, § 57, effective June 24, 2015.

407.5704. Initiation by Cabinet for Health and Family Services of support proceeding under Convention.

  1. In a support proceeding under this Article, the Cabinet for Health and Family Services shall:
    1. Transmit and receive applications; and
    2. Initiate or facilitate the institution of a proceeding regarding an application in a tribunal of this state.
  2. The following support proceedings are available to an obligee under the Convention:
    1. Recognition or recognition and enforcement of a foreign support order;
    2. Enforcement of a support order issued or recognized in this state;
    3. Establishment of a support order if there is no existing order, including, if necessary, determination of parentage of a child;
    4. Establishment of a support order if recognition of a foreign support order is refused under KRS 407.5708(2)(b), (d), or (i);
    5. Modification of a support order of a tribunal of this state; and
    6. Modification of a support order of a tribunal of another state or a foreign country.
  3. The following support proceedings are available under the Convention to an obligor against which there is an existing support order:
    1. Recognition of an order suspending or limiting enforcement of an existing support order of a tribunal of this state;
    2. Modification of a support order of a tribunal of this state; and
    3. Modification of a support order of a tribunal of another state or a foreign country.
  4. A tribunal of this state may not require security, bond, or deposit, however described, to guarantee the payment of costs and expenses in proceedings under the Convention.

HISTORY: 2015 ch. 18, § 58, effective June 24, 2015.

407.5705. Direct request.

  1. A petitioner may file a direct request seeking establishment or modification of a support order or determination of parentage of a child. In the proceeding, the law of this state applies.
  2. A petitioner may file a direct request seeking recognition and enforcement of a support order or support agreement. In the proceeding, KRS 407.5706 , 407.5707 , 407.5708 , 407.5709 , 407.5710 , 407.5711 , 407.5712 , and 407.5713 apply.
  3. In a direct request for recognition and enforcement of a Convention support order or foreign support agreement:
    1. A security, bond, or deposit is not required to guarantee the payment of costs and expenses; and
    2. An obligee or obligor that in the issuing country has benefited from free legal assistance is entitled to benefit, at least to the same extent, from any free legal assistance provided for by the law of this state under the same circumstances.
  4. A petitioner filing a direct request is not entitled to assistance from the Cabinet for Health and Family Services.
  5. This Article does not prevent the application of laws of this state that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement.

HISTORY: 2015 ch. 18, § 59, effective June 24, 2015.

407.5706. Registration of Convention support order.

  1. Except as otherwise provided in this Article, a party who is an individual or a support enforcement agency seeking recognition of a Convention support order shall register the order in this state as provided in Article 6 of this chapter.
  2. Notwithstanding KRS 407.5311 and 407.5602(1), a request for registration of a Convention support order shall be accompanied by:
    1. A complete text of the support order or an abstract or extract of the support order drawn up by the issuing foreign tribunal, which may be in the form recommended by the Hague Conference on Private International Law;
    2. A record stating that the support order is enforceable in the issuing country;
    3. If the respondent did not appear and was not represented in the proceedings in the issuing country, a record attesting, as appropriate, either that the respondent had proper notice of the proceedings and an opportunity to be heard or that the respondent had proper notice of the support order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal;
    4. A record showing the amount of arrears, if any, and the date the amount was calculated;
    5. A record showing a requirement for automatic adjustment of the amount of support, if any, and the information necessary to make the appropriate calculations; and
    6. If necessary, a record showing the extent to which the applicant received free legal assistance in the issuing country.
  3. A request for registration of a Convention support order may seek recognition and partial enforcement of the order.
  4. A tribunal of this state may vacate the registration of a Convention support order without the filing of a contest under KRS 407.5707 only if, acting on its own motion, the tribunal finds that recognition and enforcement of the order would be manifestly incompatible with public policy.
  5. The tribunal shall promptly notify the parties of the registration or the order vacating the registration of a Convention support order.

HISTORY: 2015 ch. 18, § 60, effective June 24, 2015.

407.5707. Contest of registered Convention support order.

  1. Except as otherwise provided in this Article, KRS 407.5605 , 407.5606 , 407.5607 , and 407.5608 apply to a contest of a registered Convention support order.
  2. A party contesting a registered Convention support order shall file a contest not later than thirty (30) days after notice of the registration, but if the contesting party does not reside in the United States, the contest shall be filed not later than sixty (60) days after notice of the registration.
  3. If the nonregistering party fails to contest the registered Convention support order by the time specified in subsection (2) of this section, the order is enforceable.
  4. A contest of a registered Convention support order may be based only on grounds set forth in KRS 407.5708 . The contesting party bears the burden of proof.
  5. In a contest of a registered Convention support order, a tribunal of this state:
    1. Is bound by the findings of fact on which the foreign tribunal based its jurisdiction; and
    2. May not review the merits of the order.
  6. A tribunal of this state deciding a contest of a registered Convention support order shall promptly notify the parties of its decision.
  7. A challenge or appeal, if any, does not stay the enforcement of a Convention support order unless there are exceptional circumstances.

HISTORY: 2015 ch. 18, § 61, effective June 24, 2015.

407.5708. Recognition and enforcement of registered Convention support order.

  1. Except as otherwise provided in subsection (2) of this section, a tribunal of this state shall recognize and enforce a registered Convention support order.
  2. The following grounds are the only grounds on which a tribunal of this state may refuse recognition and enforcement of a registered Convention support order:
    1. Recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard;
    2. The issuing tribunal lacked personal jurisdiction consistent with KRS 407.5201 ;
    3. The order is not enforceable in the issuing country;
    4. The order was obtained by fraud in connection with a matter of procedure;
    5. A record transmitted in accordance with KRS 407.5706 lacks authenticity or integrity;
    6. A proceeding between the same parties and having the same purpose is pending before a tribunal of this state and that proceeding was the first to be filed;
    7. The order is incompatible with a more recent support order involving the same parties and having the same purpose if the more recent support order is entitled to recognition and enforcement under KRS 407.5101 to 407.5902 ;
    8. Payment, to the extent alleged arrears have been paid in whole or in part;
    9. In a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country:
      1. If the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or
      2. If the law of that country does not provide for prior notice of the proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal; or
    10. The order was made in violation of KRS 407.5711 .
  3. If a tribunal of this state does not recognize a Convention support order under paragraph (b), (d), or (i) of subsection (2) of this section:
    1. The tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order; and
    2. The Cabinet for Health and Family Services shall take all appropriate measures to request a child support order for the obligee if the application for recognition and enforcement was received under KRS 407.5704 .

HISTORY: 2015 ch. 18, § 62, effective June 24, 2015.

407.5709. Partial enforcement.

If a tribunal of this state does not recognize and enforce a Convention support order in its entirety, it shall enforce any severable part of the order. An application or direct request may seek recognition and partial enforcement of a Convention support order.

HISTORY: 2015 ch. 18, § 63, effective June 24, 2015.

407.5710. Foreign support agreement.

  1. Except as otherwise provided in subsections (3) and (4) of this section, a tribunal of this state shall recognize and enforce a foreign support agreement registered in this state.
  2. An application or direct request for recognition and enforcement of a foreign support agreement shall be accompanied by:
    1. A complete text of the foreign support agreement; and
    2. A record stating that the foreign support agreement is enforceable as an order of support in the issuing country.
  3. A tribunal of this state may vacate the registration of a foreign support agreement only if, acting on its own motion, the tribunal finds that recognition and enforcement would be manifestly incompatible with public policy.
  4. In a contest of a foreign support agreement, a tribunal of this state may refuse recognition and enforcement of the agreement if it finds:
    1. Recognition and enforcement of the agreement is manifestly incompatible with public policy;
    2. The agreement was obtained by fraud or falsification;
    3. The agreement is incompatible with a support order involving the same parties and having the same purpose in this state, another state, or a foreign country if the support order is entitled to recognition and enforcement under KRS 407.5101 to 407.5902 in this state; or
    4. The record submitted under subsection (2) of this section lacks authenticity or integrity.
  5. A proceeding for recognition and enforcement of a foreign support agreement shall be suspended during the pendency of a challenge to or appeal of the agreement before a tribunal of another state or a foreign country.

HISTORY: 2015 ch. 18, § 64, effective June 24, 2015.

407.5711. Modification of Convention child support order.

  1. A tribunal of this state may not modify a Convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless:
    1. The obligee submits to the jurisdiction of a tribunal of this state, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity; or
    2. The foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order.
  2. If a tribunal of this state does not modify a Convention child support order because the order is not recognized in this state, KRS 407.5708(3) applies.

HISTORY: 2015 ch. 18, § 65, effective June 24, 2015.

407.5712. Personal information — Limit on use.

Personal information gathered or transmitted under this Article may be used only for the purposes for which it was gathered or transmitted.

HISTORY: 2015 ch. 18, § 66, effective June 24, 2015.

407.5713. Record in original language — English translation.

A record filed with a tribunal of this state under this Article shall be in the original language and, if not in English, shall be accompanied by an English translation.

HISTORY: 2015 ch. 18, § 67, effective June 24, 2015.

Article 8. Interstate Rendition

407.5801. Grounds for rendition.

  1. For purposes of this section and KRS 407.5802 , “governor” includes an individual performing the functions of governor or the executive authority of a state covered by KRS 407.5101 to 407.5902 .
  2. The governor of this state may:
    1. Demand that the governor of another state surrender an individual found in the other state who is charged criminally in this state with having failed to provide for the support of an obligee; or
    2. On the demand of the governor of another state, surrender an individual found in this state who is charged criminally in the other state with having failed to provide for the support of an obligee.
  3. A provision for extradition of individuals not inconsistent with KRS 407.5101 to 407.5902 applies to the demand even if the individual whose surrender is demanded was not in the demanding state when the crime was allegedly committed and has not fled from the demanding state.

HISTORY: Enact. Acts 1996, ch. 365, § 59; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 68, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5802. Conditions of rendition.

  1. Before making a demand that the governor of another state surrender an individual charged criminally in this state with having failed to provide for the support of an obligee, the governor of this state may require a prosecutor of this state to demonstrate that at least sixty (60) days previously the obligee had initiated proceedings for support pursuant to KRS 407.5101 to 407.5902 or that the proceedings would be of no avail.
  2. If, under KRS 407.5101 to 407.5902 , or a law substantially similar to KRS 407.5101 to 407.5902 , the governor of another state makes a demand that the governor of this state surrender an individual charged criminally in that state with having failed to provide for the support of a child or other individual to whom a duty of support is owed, the governor may require a prosecutor to investigate the demand and report whether a proceeding for support has been initiated or would be effective. If it appears that a proceeding would be effective but has not been initiated, the governor may delay honoring the demand for a reasonable time to permit the initiation of a proceeding.
  3. If a proceeding for support has been initiated and the individual whose rendition is demanded prevails, the governor may decline to honor the demand. If the petitioner prevails and the individual whose rendition is demanded is subject to a support order, the governor may decline to honor the demand if the individual is complying with the support order.

HISTORY: Enact. Acts 1996, ch. 365, § 60; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 69, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

Article 9. Miscellaneous Provisions

407.5901. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

HISTORY: Enact. Acts 1996, ch. 365, § 61; 1998, ch 101, § 20, effective March 23, 1998; 2015 ch. 18, § 70, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.59015. Application of KRS 407.5101 to 407.5902.

KRS 407.5101 to 407.5902 applies to proceedings begun on or after June 24, 2015, to establish a support order or determine parentage of a child or to register, recognize, enforce, or modify a prior support order, determination, or agreement, whenever issued or entered.

HISTORY: Enact. Acts 1996, ch. 365, § 62; 1998, ch. 101, § 20, effective March 23, 1998; 2015 ch. 18, § 71, effective June 24, 2015.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

407.5902. Short title.

KRS 407.5101 to 407.5902 shall be cited as the Uniform Interstate Family Support Act.

History. Enact. Acts 1996, ch. 365, § 63; 1998, ch. 101, § 20, effective March 23, 1998.

Compiler’s Notes.

Acts 1998, ch. 101, § 20 provided that “sections of Sections 13 to 63 of 1996 Kentucky Acts Chapter 365 not amended or not repealed and reenacted by this Act” take effect March 23, 1998.

NOTES TO DECISIONS

1.Construction.

Former KRS Chapters 406 and 407 were not incompatible since Chapter 406 provided a means for identifying the biological parents, while Chapter 407 provided the locomotion operandi for enforcing an award of child support. Locke v. Zollicoffer, 608 S.W.2d 54, 1980 Ky. LEXIS 265 ( Ky. 1980 ) (decided under prior law).

Research References and Practice Aids

Comparative Legislation.

Uniform Interstate Family Support Act:

Ark Code Ann. §§ 9-17-101 — 9-17-902.

Ill Compiled Stat. 750, 2011-20142.

Mo Rev. Stat. §§ 454.850 — 454.980.

Ohio Rev. Code Ann. §§ 3115.01 — 3115.34 (Baldwins).

Tenn Code Ann. §§ 36-5-2001 to 36-5-2902.

Va Code §§ 20-88.32 — 20-88.82.

W. Va Code §§ 48B-1-101 — 48B-9-903.

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Family Court, § 5.00.

407.5903. Severability.

If any provision of KRS 407.5101 to 407.5902 or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of KRS 407.5101 to 407.5902 which can be given effect without the invalid provision or application, and to this end provisions of KRS 407.5101 to 407.5902 are severable.

HISTORY: 2015 ch. 18, § 72, effective June 24, 2015.