Separating parents will get joint custody of their children as a default under a bill signed into law by Gov. Matt Bevin last week.
A judge can still deny joint custody if one parent has committed domestic violence against the child or other parent, but critics of the measure argue that it unravels protections against abusive parents and makes it much harder for a judge to give one parent more time with children than the other.
Kentucky is the first state in the country to create a “legal presumption” for joint custody in divorce proceedings.
Supporters say that joint custody encourages a more stable upbringing of children.
Matt Hale, chair of the National Parents Organization in Kentucky, says that current law deprives children of meaningful relationships with their parents.
“Family courts were awarding one parent primary custody and basically all of the parenting time except every other weekend and Wednesday — excluding an otherwise fit parent, basically relegating them to being a visitor in the child’s life,” Hale said.
The National Parents Organization used to be called Fathers and Families — a fathers’ rights group that advocated for equal rights for fathers in custody proceedings but has now broadened its focus.
Most custody cases are settled between parents before they get to court.
The new law, which goes into effect in July, requires judges to use joint legal custody as a starting point and then consider factors like proximity of a child to their school and current home and likelihood a parent will allow a child to have “frequent, meaningful, and continuing contact” with the other parent.
The law precludes joint custody if one of the parents has filed a domestic violence protective order against the other at some point during the relationship.
But Mary Savage, general counsel of the Kentucky Coalition Against Domestic Violence, says there are several instances in which an abusive parent could be granted joint custody under the new law — for example, if a domestic violence order was never filed or granted at the time of the custody proceeding, or if a violent act was committed against someone besides their spouse or child.
Savage says the measure takes away discretion from judges tasked with determining a child’s best interest.
“These type of laws are problematic because they take that careful screening that a judge is going to give to each individual family and each individual child that’s involved, they take that out of the judge’s hands,” Savage says.
The law states that courts shall have a “presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child.”
Kentucky is the only state in the country to pass the legal presumption language into law, though more than 25 states have considered similar legislation this year.
The final version of the measure passed out of the state legislature with only two lawmakers voting against it.
Last year, Bevin signed a presumption of shared parenting in temporary custody cases.
This story has been corrected. It previously stated that joint custody could be denied if a parent had committed domestic violence within the last three years. Late in the legislative session, the bill was amended to require a parent alleging domestic violence to have obtained a domestic violence order at any point in the past.
The story was also updated to note that judges will still consider other factors in joint custody cases, such as a child’s proximity to his or her current home and school.