As a follow-up to last year’s post regarding KRS §403.270(2), ASWD Partner Stacey Graus provides insight into the impact of recent judicial interpretations of the Joint Parenting statute. Since the statute’s June 2018 amendment, Kentucky courts have issued several opinions discussing the revisions. However, despite the new presumption of joint custody and equal timesharing being in the best interest of the child, the Kentucky Supreme Court has done little to actually interpret KRS § 403.270(2) and its influence over a trial judge’s critical role of decision making. This past November, in May v. Harrison, the Supreme Court stated, “KRS § 403.270 gives the judge direction to make these critical determinations for the best interest of the child,” and highlighted the importance of the statute’s enumerated factors to be considered in the trial judge’s wide fact-finding responsibility.
Subsequently, in June of 2019, the Court of Appeals emphasized that despite the newly amended statute, judicial discretion is not altered once an appropriate ground is established in favor of deviation from 50/50 timesharing. In Barnett v. White, the Court stated, “the trial court is not limited to the 11 enumerated factors for best interest listed in KRS § 403.270(2)(a) through (k),” and that “[w]hile the new version of KRS § 403.270(2) puts a finger on the scale in favor of joint custody and equal timesharing 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.” (emphasis added).
Therefore, despite the favorable language of the amendment, the recent decisions highlight the continued deference given towards a trial court’s judgment on parenting. Following Barnett v. White, the presumption of equal parenting appears to be constrained, and instead strengthens the trial court’s discretion to divert from the presumption. Potentially, this decision could raise concern toward ensuring a completely impartial determination of custody and possibly curtailing the importance of the presumption altogether.