Covid-19 Custody Update!

The Kentucky Supreme Court issued Custody and Parenting Time Orders on March 24, 2020. Click link above for court text. In summary, the order provides:

To avoid confusion and provide guidance and assistance to parties to a custody or parenting time order, the Supreme Court, under Section 116 of the Kentucky Constitution and Supreme Court Rule 1.010, hereby ORDERS as follows:
For purposes of determining a person’s right to possession of and access to a child under a court-ordered custody or parenting time schedule, the existing court order shall control. However, reasonable accommodations shall be made to account for extenuating circumstances related to the COVID-19 emergency and to give full effect to Executive Order 2020-215 and any other Executive Order intended to protect the overall public health and welfare.
Specifically, the existing court order shall be considered temporarily modified to suspend parenting time for a period of 14 days for any person who:

  1. Tests positive for COVID-19 or shares a household with someone who tests positive for COVID-19;
  2. Has been advised that he or she, or someone with whom he or she shares a household, has possibly been exposed to COVID-19; or
  3. Has, within the last 14 days, traveled to any area with a CDC Level 2 or 3 Travel Health Notice.

Any person experiencing the above-listed circumstances shall, upon discovery, immediately notify the other party(ies).
Any person whose parenting time is suspended pursuant to this order shall be granted liberal communication with the child(ren) subject to any restrictions specifically stated in the existing order(s).
Nothing in this Order prevents parties from altering a custody or parenting time schedule by agreement if allowed by their court order(s), or courts from modifying their orders on an emergency basis or otherwise.
The Supreme Court acknowledges that this is a rapidly evolving situation and respectfully asks all parties with a custody or parenting time order for patience and cooperation as we work to balance court access with public health.

if you have ongoing questions, first call your attorney. If you are in need of an attorney, please contact Michael Bouldin for consultation and representation. Contact email mwbouldin2@gmail.com or call 859-581-6453.

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How to Handle Child Exchange During Quarantine

With an ever-changing code of conduct and various quarantines during the Covid-19 crisis have led to a number of questions to most family law attorneys.

Generally, parties should continue to follow all court Orders regarding custody, visitation and parenting time. This includes exchanges and update of information. There is currently nothing preventing parents from continuing their current custody, despite the relative lockdown of many businesses.

I, like most of my colleagues, are advising clients to continue unless there is a specific concern. For example, if someone has been exposed and the child has a history of respiratory problems, caution should be used to not expose the child. Additionally, parties should try to work together to avoid unnecessary exposure that may risk elderly or other persons living in either household. Additionally, i should not have to say this but parents do terrible things to each other and ultimately to the children: If you or your child is exposed, share the information. If your child is sick, whether with Covid-19 or any other illness, DO share that information with the other parent. The parents should jointly make the decision on whether exchange is prudent or if one household is already sick, to potentially remain in self quarantine.

While courts may be more lenient with allegations of contempt following a nationwide crisis, my belief is that Judges will not be compassionate with those parents that use this crisis as a way to alienate or prevent the other parent from exercising their parenting time.

If you have questions, you should first contact your attorney. If you do not have an attorney, you may comment below or contact Mike@bouldinlawfirm.com. You may also call 859-581-6453 (581-MIKE) to schedule consultation or discuss your specific concerns.

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Co-Parenting Apps

Our Family Wizard, coParenter, AppClose and talkingParents are all personal cell phone apps today assist divorced parents in communications.

The apps cam also track and monitor communication, exchanged of shared expenses, child and shared calendars and even resolution or parenting disputes. These apps also have communication monitoring which suggest alternative language if a message is abusive, vulgar or insulting.

Many times use of these apps are court ordered if the parties have a history of trouble communicating or repeated need for court resolution of issues. As a divorce attorney for over 20 years, I can attest that even the best judges are seldom the best at making parenting decisions for others. Parents need to parent.

If you are divorcing or need advice about parenting disputes, contact a local family law attorney. For consultation in Northern Kentucky, contact Michael Bouldin at mike@bouldinlawfirm.com or call 581-MIKE (859-581-6453)

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Is Spousal Support Affected by Fault in Kentucky?

Kentucky statutes do not provide fault as a basis to award or modify spousal maintenance, commonly referred to as spousal support, in Kentucky. That said, appeals decisions do allow for use of fault to be considered by the trial courts.

Statutory Concerns: An affair may be considered by a court to be a “fault” in a divorce proceeding. Kentucky is notoriously considered as a no-fault divorce state, hence why all divorces are legally termed DISSOLUTION. KRS 403.200,. the statute that governs spousal maintenance, does not provide for fault to be considered by a trial court in establishing maintenance. (Maintenance is also commonly referred to as spousal support or alimony.) KRS 403.200 states: 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: (a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (b) 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: (a) 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; (b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) The standard of living established during the marriage; (d) The duration of the marriage; (e) The age, and the physical and emotional condition of the spouse seeking maintenance; and (f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. As you can see, nowhere in the statutes does FAULT to be considered.

Case Law: According to a landmark case, Chapman v. Chapman, 498 S.W.2d 134 (Ky. 1973), the judge can only consider adultery when deciding how much alimony to award. The judge can’t, however, prevent a guilty spouse from receiving alimony just because that spouse committed adultery. The only effect of fault (like adultery) on alimony in the Kentucky courts is on the amount awarded. Moreover, Chapman made a finding based on the lack of some suggested language instead of what was actually included in the statutes. As a practical matter, Chapman is an older decision, and the practice of Kentucky’s courts and lawyers has generally been not to raise the issue of fault at all, even in alimony cases. The majority of legal experts agree that “fault, insofar as who caused the breakup of the marriage, has virtually been eliminated in Kentucky.” A more recent decision in Plat v. Platt, 728 S.W.2d 542 (1987) states, “While we accept the holding of Chapman, noting our prior criticism, here is where we draw the line limiting when fault may be considered to the disregard of KRS 403.200. We believe if considering fault in determining the amount of maintenance has any redeeming quality, it is that it may prevent a windfall to the faulty party seeking maintenance.”

For more information or to consult a divorce attorney with 25 years of experience in Northern Kentucky, call Michael Bouldin at 859-581-6453 or email mike@bouldinlawfirm.com.

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Not All Custody Is Equal

Equal Parenting Time In Kentucky

Presumption

In previous article I spoke of the Kentucky law that presumes shared custody and equal parenting time in Kentucky.   This law, KRS 403.270, remains perfectly valid and in effect, however recent case law underscores the importance of representation and knowing your rights.

New Kentucky Case Law

Barnett v. White

See above link for full case content.  Barnett v. White is the first case interpreting how 403.270 should be applied.  It states, “While the new version of KRS 403.270(2) puts a finger on the scale in favor of joint custody and equal time sharing by requiring only a preponderance of evidence to overcome, such a preference is a slight burden and the trial court continues to possess broad discretion in determining the best interest of the child as to who should have custody and where the child shall live.

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