Baldwin's Kentucky Revised Statutes Annotated Title XXXV. Domestic Relations SuperBrowse Chapter 403. Dissolution of Marriage; Child Custody (Refs & Annos) SuperBrowse Custody 1. Proposed Legislation Effective: July 14, 2018 KRS § 403.270 403.270 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 Currentness (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 has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a 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. (b) 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. (2) 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: (a) The wishes of the child's parent or parents, and any de facto custodian, as to his or her custody; (b) 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; (c) 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; (d) The motivation of the adults participating in the custody proceeding; (e) The child's adjustment and continuing proximity to his or her home, school, and community; (f) The mental and physical health of all in.

1. Baldwin's Kentucky Revised Statutes Annotated
Title XXXV. Domestic Relations
SuperBrowse Chapter 403. Dissolution of Marriage; Child
Custody (Refs & Annos)
SuperBrowse Custody
1. Proposed Legislation
Effective: July 14, 2018
KRS § 403.270
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
Currentness
(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 has resided with the person for a period of six (6)
months or more if the child is under three (3) years of age and
for a 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.
(b) 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

2. 403.280, 403.340, 403.350, 403.822, and 405.020.
(2) 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:
(a) The wishes of the child's parent or parents, and any de facto
custodian, as to his or her custody;
(b) 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;
(c) 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;
(d) The motivation of the adults participating in the custody
proceeding;
(e) The child's adjustment and continuing proximity to his or
her home, school, and community;
(f) The mental and physical health of all individuals involved;
(g) 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;
(h) The extent to which the child has been cared for, nurtured,
and supported by any de facto custodian;
(i) The intent of the parent or parents in placing the child with a

3. de facto custodian;
(j) 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
(k) 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..
(3) 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.
(4) If the court grants custody to a de facto custodian, the de
facto custodian shall have legal custody under the laws of the
Commonwealth.
Credits
HISTORY: 2018 c 198, § 1, eff. 7-14-18; 2004 c 133, § 42, eff.
7-13-04; 2000 c 14, § 51, eff. 7-14-00; 1998 c 250, § 1, eff. 7-
15-98; 1992 c 169, § 2, eff. 7-14-92; 1980 c 158, § 1; 1978 c
369, § 1, c 86, § 1; 1972 c 182, § 17
Notes of Decisions (295)
KRS § 403.270, KY ST § 403.270
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session
KRS § 403.290
403.290 Child; court may interview, court may seek advice of

4. professional personnel
Currentness
(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.Credits
HISTORY: 1972 c 182, § 19, eff. 6-16-72
KRS § 403.212
403.212 Child support guidelines; terms to be applied in
calculations; table
Currentness
(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:
(a) “Income” means actual gross income of the parent if
employed to full capacity or potential income if unemployed or
underemployed.
(b) “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 Act1, and food

5. stamps.
(c) 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.
(d) If a parent is voluntarily unemployed or underemployed,
child support shall be calculated based on a determination of
potential income, except that a determination of potential
income shall not be made for a parent who is 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. Potential income shall be determined based upon
employment potential and probable earnings level based on the
obligor's or obligee's recent work history, occupational
qualifications, and prevailing job opportunities and earnings
levels in the community. A court may find a parent to be

6. voluntarily unemployed or underemployed without finding that
the parent intended to avoid or reduce the child support
obligation.
(e) “Imputed child support obligation” means the amount of
child support the parent would be required to pay from
application of the child support guidelines.
(f) 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.
(g) “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.
(h) “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.
(3) 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.
(4) The child support obligation shall be the appropriate amount

7. 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.
(5) 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.
(6) The child support obligation in a split custody arrangement
shall be calculated in the following manner:
(a) 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.
(b) The nonresidential custodian with the greater monthly
obligation amount shall pay the difference between the
obligation amounts, as determined by the worksheets, to the
other parent.
(7) The child support guidelines table is as follows:
COMBINED
MONTHLY
ADJUSTED
PARENTAL
GROSS
INCOME
ONE CHILD
TWO
CHILDREN
THREE
FOUR
FIVE
SIX OR MORE

8. $ 0
$ 60
$ 60
$ 60
$ 60
$ 60
$ 60
100
60
60
60
60
60
60
200
70
70
70
70
70
70
300
80
80
80
80
80
80
400
90
90
90

9. 90
90
90
500
100
105
110
115
120
125
600
120
125
130
135
140
145
700
140
156
161
166
171
176
800
160
203
208
213
218
223
900
180
261
266
271

10. 276
281
1,000
195
303
325
330
335
340
1,100
212
324
384
389
394
399
1,200
229
346
433
446
451
456
1,300
246
367
460
504
510
515
1,400
262
392
491
554
576

11. 582
1,500
277
417
522
588
642
650
1,600
293
437
548
618
674
717
1,700
308
458
574
647
706
755
1,800
322
478
599
675
736
788
1,900
336
495
620
699
763
816

12. 2,000
350
512
642
723
789
844
2,100
364
529
663
747
815
872
2,200
376
546
684
771
841
900
2,300
389
563
706
795
868
928
2,400
401
580
727
819
894
956
2,500

13. 413
597
749
843
920
984
2,600
424
614
770
867
946
1,012
2,700
435
630
790
889
970
1,038
2,800
445
646
809
911
994
1,064
2,900
455
662
829
934
1,019
1,090
3,000
465

14. 677
849
956
1,043
1,116
3,100
475
693
868
978
1,067
1,142
3,200
485
709
888
1,001
1,092
1,168
3,300
495
725
908
1,023
1,116
1,194
3,400
506
741
928
1,045
1,140
1,220
3,500
516
757

15. 947
1,067
1,164
1,246
3,600
526
773
967
1,090
1,189
1,272
3,700
536
790
988
1,113
1,215
1,299
3,800
548
808
1,011
1,139
1,243
1,329
3,900
559
826
1,033
1,164
1,270
1,359
4,000
571
844
1,056

16. 1,190
1,298
1,388
4,100
580
862
1,078
1,215
1,326
1,418
4,200
592
880
1,101
1,240
1,353
1,448
4,300
603
898
1,123
1,266
1,381
1,477
4,400
615
916
1,146
1,291
1,409
1,507
4,500
626
933
1,161
1,316

17. 1,435
1,535
4,600
636
949
1,181
1,338
1,459
1,561
4,700
647
964
1,200
1,360
1,483
1,586
4,800
657
980
1,220
1,381
1,507
1,612
4,900
667
995
1,239
1,403
1,531
1,637
5,000
676
1,010
1,257
1,424
1,554

18. 1,661
5,100
686
1,025
1,275
1,444
1,576
1,685
5,200
695
1,039
1,294
1,465
1,599
1,709
5,300
705
1,054
1,312
1,486
1,621
1,733
5,400
714
1,069
1,330
1,506
1,644
1,757
5,500
724
1,083
1,348
1,527
1,666
1,781

19. 5,600
733
1,098
1,367
1,548
1,689
1,805
5,700
743
1,113
1,385
1,568
1,712
1,829
5,800
753
1,127
1,403
1,589
1,734
1,853
5,900
762
1,142
1,421
1,610
1,757
1,877
6,000
772
1,157
1,440
1,630
1,779
1,901
6,100

20. 781
1,171
1,458
1,651
1,802
1,926
6,200
791
1,186
1,476
1,672
1,824
1,950
6,300
800
1,198
1,498
1,690
1,844
1,970
6,400
808
1,209
1,511
1,705
1,860
1,988
6,500
816
1,219
1,524
1,720
1,876
2,005
6,600
823

21. 1,230
1,538
1,735
1,893
2,023
6,700
830
1,240
1,551
1,750
1,909
2,040
6,800
837
1,251
1,564
1,764
1,925
2,058
6,900
844
1,261
1,577
1,779
1,942
2,075
7,000
851
1,272
1,591
1,794
1,958
2,093
7,100
858
1,282

22. 1,604
1,809
1,975
2,110
7,200
865
1,293
1,617
1,824
1,991
2,127
7,300
872
1,303
1,630
1,839
2,007
2,145
7,400
879
1,313
1,644
1,854
2,024
2,162
7,500
885
1,324
1,657
1,869
2,040
2,179
7,600
891
1,333
1,668

23. 1,881
2,053
2,194
7,700
896
1,342
1,679
1,893
2,066
2,208
7,800
901
1,350
1,691
1,905
2,079
2,223
7,900
907
1,359
1,702
1,917
2,093
2,238
8,000
912
1,368
1,713
1,929
2,106
2,252
8,100
917
1,377
1,724
1,941

24. 2,119
2,267
8,200
922
1,386
1,736
1,953
2,133
2,281
8,300
928
1,395
1,747
1,965
2,146
2,296
8,400
933
1,404
1,758
1,977
2,159
2,311
8,500
938
1,413
1,769
1,989
2,173
2,325
8,600
944
1,421
1,780
2,002
2,186

25. 2,340
8,700
949
1,430
1,792
2,014
2,199
2,354
8,800
954
1,437
1,800
2,024
2,210
2,366
8,900
958
1,444
1,809
2,033
2,220
2,376
9,000
962
1,450
1,817
2,042
2,230
2,387
9,100
966
1,457
1,825
2,052
2,241
2,398

26. 9,200
971
1,463
1,833
2,061
2,251
2,408
9,300
975
1,470
1,842
2,070
2,261
2,419
9,400
979
1,476
1,850
2,079
2,271
2,430
9,500
983
1,483
1,858
2,089
2,281
2,440
9,600
988
1,489
1,866
2,098
2,291
2,451
9,700

27. 992
1,496
1,874
2,107
2,301
2,461
9,800
996
1,502
1,883
2,117
2,311
2,472
9,900
1,000
1,508
1,891
2,126
2,321
2,483
10,000
1,005
1,515
1,899
2,165
2,331
2,493
10,400
1,022
1,541
1,932
2,202
2,372
2,536
10,500
1,027

28. 1,548
1,940
2,212
2,382
2,546
10,600
1,032
1,554
1,948
2,221
2,392
2,557
10,700
1,036
1,561
1,956
2,230
2,402
2,567
10,800
1,040
1,567
1,965
2,240
2,412
2,578
10,900
1,044
1,573
1,973
2,249
2,422
2,589
11,000
1,049
1,580

29. 1,981
2,258
2,432
2,599
11,100
1,053
1,587
1,989
2,268
2,443
2,610
11,200
1,058
1,593
1,997
2,277
2,453
2,620
11,300
1,062
1,600
2,005
2,286
2,463
2,631
11,400
1,066
1,606
2,013
2,295
2,473
2,642
11,500
1,070
1,613
2,021

30. 2,305
2,483
2,652
11,600
1,075
1,619
2,029
2,314
2,493
2,663
11,700
1,079
1,626
2,037
2,323
2,503
2,673
11,800
1,084
1,633
2,046
2,333
2,513
2,684
11,900
1,088
1,639
2,054
2,342
2,523
2,695
12,000
1,093
1,646
2,062
2,351

31. 2,533
2,705
12,100
1,097
1,653
2,070
2,361
2,544
2,716
12,200
1,102
1,659
2,078
2,370
2,554
2,726
12,300
1,106
1,666
2,086
2,379
2,564
2,737
12,400
1,110
1,672
2,094
2,388
2,574
2,748
12,500
1,114
1,679
2,102
2,398
2,584

32. 2,758
12,600
1,119
1,685
2,110
2,407
2,594
2,769
12,700
1,123
1,692
2,118
2,416
2,604
2,779
12,800
1,128
1,699
2,127
2,426
2,614
2,790
12,900
1,132
1,705
2,135
2,435
2,624
2,801
13,000
1,137
1,712
2,143
2,444
2,634
2,811

33. 13,100
1,141
1,719
2,151
2,454
2,645
2,822
13,200
1,146
1,725
2,159
2,463
2,665
2,832
13,300
1,150
1,732
2,167
2,472
2,665
2,843
13,400
1,154
1,738
2,175
2,481
2,675
2,854
13,500
1,158
1,745
2,183
2,491
2,685
2,864
13,600

34. 1,163
1,751
2,191
2,500
2,695
2,875
13,700
1,167
1,758
2,199
2,509
2,705
2,885
13,800
1,172
1,765
2,208
2,519
2,715
2,896
13,900
1,176
1,771
2,216
2,528
2,725
2,907
14,000
1,181
1,778
2,224
2,537
2,735
2,917
14,100
1,185

35. 1,785
2,232
2,547
2,746
2,928
14,200
1,190
1,791
2,240
2,556
2,756
2,938
14,300
1,194
1,798
2,248
2,565
2,766
2,949
14,400
1,198
1,804
2,256
2,574
2,776
2,960
14,500
1,202
1,811
2,264
2,584
2,786
2,970
14,600
1,207
1,817

36. 2,272
2,593
2,796
2,981
14,700
1,211
1,824
2,280
2,602
2,806
2,991
14,800
1,216
1,831
2,289
2,612
2,816
3,002
14,900
1,220
1,837
2,297
2,621
2,826
3,013
15,000
1,225
1,844
2,305
2,630
2,836
3,023
Credits
HISTORY: 2000 c 430, § 9, eff. 7-14-00; 1998 c 255, § 20,
c 100, § 8, eff. 7-15-98; 1996 c 365, § 6, eff. 7-15-96; 1994 c
330, § 11, eff. 7-15-94; 1990 c 418, § 3, eff. 7-13-90

37. Notes of Decisions (118)
Footnotes
1
42 U.S.C.A. § 601 et seq.
KRS § 403.212, KY ST § 403.212
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session
Effective: July 14, 2018
KRS § 403.211
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
Currentness
(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:
(a) A child's extraordinary medical or dental needs;
(b) A child's extraordinary educational, job training, or special

38. needs;
(c) Either parent's own extraordinary needs, such as medical
expenses;
(d) The independent financial resources, if any, of the child or
children;
(e) Combined monthly adjusted parental gross income in excess
of the Kentucky child support guidelines;
(f) 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 Act1; and
(g) 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.

39. (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.
(b) 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.
(c) 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

40. parent for maintenance and support shall be covered.
(d) 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.
(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.
(b) 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.
(9) 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 one
hundred dollars ($100) 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.
(10) The court order shall include the Social Security numbers,
provided in accordance with KRS 403.135, of all parties subject
to a support order.
(11) In any case administered by the Cabinet for Health and

41. 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.
(12) 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.
(13) 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.
(14) 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.
(15) 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.Credits
HISTORY: 2018 c 68, § 1, eff. 7-14-18; 2009 c 82, § 1, eff. 6-
25-09; 2006 c 126, § 4, eff. 7-12-06; 2005 c 99, § 624, eff. 6-

42. 20-05; 2000 c 430, § 18, eff. 7-14-00; 1998 c 255, § 19, c 426, §
579, eff. 7-15-98; 1996 c 328, § 3, eff. 7-15-96; 1994 c 330, §
10, eff. 7-15-94; 1990 c 418, § 2, eff. 7-13-90
Notes of Decisions (70)Footnotes
1
42 U.S.C.A. § 651 to 669b.
KRS § 403.211, KY ST § 403.211
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session
KRS § 403.200
403.200 Maintenance; court may grant order for either spouse
Currentness
(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;

43. (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.Credits
HISTORY: 1972 c 182, § 10, eff. 6-16-72
Notes of Decisions (237)
KRS § 403.200, KY ST § 403.200
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session
Effective: July 12, 2006
KRS § 403.160
403.160 Temporary orders; maintenance, child support,
injunction; disclosure of information on domestic violence or
child abuse
Currentness
(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.
(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)(g), 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

44. 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.
(b) 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.
(3) 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.
(4) 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.
(5) 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.
(6) A temporary order or temporary injunction:

45. (a) Does not prejudice the rights of the parties or the child
which are to be adjudicated at subsequent hearings in the
proceeding;
(b) May be revoked or modified before final decree on a
showing of the facts necessary to revocation or modification
under the circumstances; and
(c) Terminates when the final decree is entered or when the
petition for dissolution or legal separation is voluntarily
dismissed.Credits
HISTORY: 2006 c 126, § 3, eff. 7-12-06; 2000 c 430, § 15, eff.
7-14-00; 1998 c 255, § 18, eff. 7-15-98; 1996 c 365, § 5, eff. 7-
15-96; 1994 c 330, § 9, eff. 7-15-94; 1990 c 418, § 7, eff. 7-13-
90; 1972 c 182, § 6
LRC NOTES
Legislative Research Commission Note (7-14-00): 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 of Decisions (17)
KRS § 403.160, KY ST § 403.160
Current with emergency effective legislation through Chapter
181 of the 2019 Regular Session
32 S.W.3d 109
Court of Appeals of Kentucky.

46. Stephanie Kay GOSSETT, Appellant,
v.
Donald Steven GOSSETT, Appellee.
No. 1998–CA–001720–MR.
Oct. 20, 2000.
Synopsis
Ex-wife appealed from an order of the Barren Circuit
Court, Benjamin L. Dickinson, J., which concluded that ex-
husband was entitled to a reduction of his child support
obligation as a matter of law. The Court of Appeals, Johnson,
J., held that whether it was appropriate, for child support
purposes, to impute additional income to ex-husband already
working a full 40 hour week was not an issue of law, but,
rather, was an issue of fact.
Vacated and remanded.
West Headnotes (9)Collapse West Headnotes
Change View
1Child Support
Whether a child support obligor is voluntarily underemployed is
a factual question for the trial court to resolve.
25 Cases that cite this headnote
76EChild Support
76EVProceedings
76EV(C)Hearing
76Ek212Questions of law or fact
(Formerly 285k3.3(6))
2Appeal and Error
Findings of a trial court cannot be disturbed by appellate court
if they are supported by substantial evidence. Rules Civ.Proc.,
Rule 52.01.
12 Cases that cite this headnote
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review

47. 30XVI(D)10Sufficiency of Evidence
30k3459Substantial Evidence
30k3460In general
(Formerly 30k1010.1(6))
3Child Support
Purpose of the statutes and the guidelines relating to child
support is to secure the support needed by the children
commensurate with the ability of the parents to meet those
needs.
4 Cases that cite this headnote
76EChild Support
76EIIn General
76Ek2Constitutional and Statutory Provisions
76Ek5Purpose
(Formerly 285k3.1(1))
76EChild Support
76EIVAmount and Incidents of Award
76Ek146Construction, operation, and effect of guidelines
(Formerly 285k3.3(7))
4Child Support
Whether it was appropriate, for child support modification
purposes, to impute additional income to ex-husband already
working a full 40 hour week based on his history of overtime
and working two jobs was not an issue of law, but, rather, was
an issue of fact.
3 Cases that cite this headnote
76EChild Support
76EVIModification
76EVI(C)Proceedings
76Ek340Hearing
(Formerly 134k309.6)
5Child Support
Parent may not voluntarily impoverish himself in order to avoid

48. his child support obligation.
3 Cases that cite this headnote
76EChild Support
76EIIIFactors Considered
76EIII(B)Factors Relating to Custodians and Obligors
76Ek76Misconduct
76Ek79Squandering resources
(Formerly 285k3.1(5))
6Child Support
Even some involuntary changes in circumstances are not
sufficient grounds for modification of parent's child support
obligation if the change is the result of parent's voluntary
action. KRS 402.213.
76EChild Support
76EVIModification
76EVI(A)In General
76Ek234Materiality of change
(Formerly 285k3.3(8))
7Child Support
Fact that ex-husband's reduction in hours was voluntary did not,
as a matter of law, preclude entitlement to reduction in his child
support obligation, where he continued to work full-time after
reduction in hours.
12 Cases that cite this headnote
76EChild Support
76EVIModification
76EVI(B)Particular Factors and Grounds
76EVI(B)2Factors Relating to Obligors
76Ek257Income
76Ek259Voluntary unemployment or underemployment
(Formerly 134k309.2(3))
8Child Support
“Change in circumstances” does not include voluntary changes

49. made for the primary purpose to reduce the support owed for
purposes of statute providing that child support decree may be
modified only upon a showing of a material change in
circumstances that is substantial and continuing. KRS
403.213(1).
76EChild Support
76EVIModification
76EVI(A)In General
76Ek234Materiality of change
(Formerly 285k3.3(8))
9Child Support
Courts should not-and do not-view the freedom to deprive
family members of child support because of personal animosity
or miserliness as one that deserves consideration or protection.
76EChild Support
76EIIIFactors Considered
76EIII(B)Factors Relating to Custodians and Obligors
76Ek70In general
(Formerly 285k3.1(5))
Attorneys and Law Firms
*110William Thomas Klapheke, III Glasgow, KY, for
Appellant.
Robert M. Alexander Glasgow, KY, for Appellee.
Before COMBS, JOHNSON and KNOPF, Judges.
OPINION
JOHNSON, Judge.
Stephanie Kay Gossett has appealed from an order of the Barren
Circuit Court entered on June 12, 1998, which concluded that
Donald Steven Gossett is entitled to a reduction of his child
support obligation as a matter of law. We vacate the order as
entered and remand with directions that the trial court resolve
the factual issues bearing on the issue of Donald's motion for a
reduction in child support.

50. The Gossetts were married in 1984. The union produced two
children: Whitney was born November 17, 1987; Derek was
born January 13, 1995. The parties separated in late 1995, and
their marriage was dissolved on August 12, 1996. The parties
agreed on the resolution of all the issues arising from their
twelve-year marital relationship with the exception of the
appropriate amount of Donald's child support obligation. For a
considerable period prior to the parties' separation, Donald
worked full-time at R.R. Donnelley & Sons and he also worked
part-time at a second job for Barren–Metcalfe Ambulance
Service. Donald would not agree to pay child support calculated
by using both of his incomes, and as a result the issue of the
amount of his child support obligation was litigated before the
domestic relations commissioner. On August 23, 1996, an order
was entered setting child support at $200.13 per week ($867.24
monthly), which amount reflected Donald's total monthly
income from both jobs of $3,555.
In April 1998, Donald moved for a reduction of his child
support obligation. At the hearing conducted on May 11, 1998,
Donald testified that his income had decreased over 40% since
the 1996 hearing, to $2,121 per month. He attributed the
decrease in his income to the fact that he had voluntarily quit
his job with the ambulance service and because he was not
working as much overtime as before at his primary job. He
justified quitting his part-time job in order to have more time
with his family, although he acknowledged, and the record
clearly demonstrates, that he was not having regular visitation
with his children.
*111 In its order, the trial court found and concluded as
follows:
1. The parties were divorced on or about August 13, 1996 in
Barren Circuit Court. The parties have two children under the
age of eighteen. At the time of the divorce [Donald] was
employed at R.R. Donnelley & Sons, Co., and was working all
the overtime that he could and was also working on a part-time
basis with the Barren Metcalfe Ambulance Service and was also

51. doing some other work of a self-employment nature.
2. [Donald's] income at the present time is $2,121.43 per month
and his only source of income is through his employment at
R.R. Donnelley & Sons, Co. This is full-time employment and
[Donald] could not reasonably find work with greater income
potential considering his education, work experience, and the
community in which he lives. The Court finds that [Donald] is
not required by law to maintain more than one job or to work to
the exclusion of any other activities of life.
3. [Donald's] income is $2,121.43 per month. [Stephanie's]
income is $1,278.71 per month. Statutory guidelines provide
that child support should be set at $588.38 per month....
...
2. KRS1 403.212 provides “income” is actual gross income of a
parent if employed to full capacity. This Court concludes that a
full-time job at R.R. Donnelley and Sons, Co., constitutes full
employment. The statutes do not require a person to work at a
second job.
In this appeal, Stephanie argues that considering Donald's
history of working at two jobs and all the overtime he could get
to support his family, the trial court erred in failing to
determine that he was voluntarily underemployed as
contemplated by the statutes relating to child support for
purposes of addressing his motion for modification. She further
insists that the trial court abused its discretion in reducing
Donald's support obligation where the evidence is
uncontradicted that Donald willfully and voluntarily reduced his
ability to earn income.
Donald argues that the trial court was “able to judge for itself
[his] credibility and sincerity [ ], as well as the reasonableness
of his actions, and found that [he] was not voluntarily
underemployed.” Elsewhere in his brief, Donald states that
whether he is voluntarily underemployed is a “factual
determination” which the trial court resolved in his favor.
12We agree that whether a child support obligor is voluntarily
underemployed is a factual question for the trial court to

52. resolve. Certainly, the findings of a trial court cannot be
disturbed by this Court if they are supported by substantial
evidence.2 However, as we view the order from which this
appeal has been taken, the trial court did not make a factual
determination, but rather held, as a matter of law, that a child
support obligor could not be required to work at two jobs and,
for that reason alone, refused to impute to Donald any income
other than his salary of R.R. Donnelley.
The statutory provisions relevant to this appeal provide as
follows:
“Income” means actual gross income of the parent if employed
to full capacity or potential income if unemployed or
underemployed.3
If a parent is voluntarily unemployed or underemployed, child
support shall be calculated based on a determination of potential
income, except that a determination of potential income shall
not be made for a parent who is 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. Potential income *112 shall be determined based
upon employment potential and probable earnings level based
on the obligor's or obligee's recent work history, occupational
qualifications, and prevailing job opportunities and earnings
levels in the community. A court may find a parent to be
voluntarily unemployed or underemployed without finding that
the parent intended to avoid or reduce the child support
obligation.4
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.5

53. 34The purpose of the statutes and the guidelines relating to
child support is to secure the support needed by the children
commensurate with the ability of the parents to meet those
needs. “Both our statutory scheme and our case law demand that
whenever possible the children of a marriage should be
supported in such a way as to maintain the standard of living
they would have enjoyed had the marriage not been
dissolved.”6KRS 403.212
mandates that earnings and income from all sources be
considered when setting child support. While we agree that it is
generally not appropriate to impute additional income to a
parent already working a full 40 hour week, we disagree with
the trial court's resolution of the issue as one of law. Rather, we
believe that the issue is one of fact as reflected in the following
reasoning employed by the Virginia Court of Appeals when
confronted with the issue:
[A]s a general rule a court should not impute to a person income
from more than one job. However, this is not a rule to be
applied in all cases as a matter of law. Depending upon the
circumstances peculiar to each case, particularly where there is
a history of a spouse having had two jobs, the trial court may
find it appropriate to consider imputing to a spouse income
from more than one job. The court should consider the previous
history of employment, the occupational qualifications, the
extent to which the parent may be under employed in the
primary job, the health of the individual, the needs of the
family, the rigors of the primary job and the second job, and all
other circumstances.7
567Cochran, supra concerned the initial setting of child support.
In the case sub judice, Donald was seeking a modification based
on his voluntary reduction in income. It is incumbent upon the
trial court, before addressing the issue in the context of the
above factors, to make findings with respect to Donald's
entitlement to a modification in the first instance. Stephanie

54. argues that a support obligor who voluntarily reduces his
income is not entitled to seek modification. Certainly a parent
may not “voluntarily impoverish himself in order to avoid his
support obligation.”8 Indeed, even some involuntary changes in
circumstances are not sufficient grounds for modification if the
change is the result of the obligor's voluntary
action. *1139 However, in the case sub judice, the trial court
found that Donald continues to work full-time despite his
voluntary reduction in hours. Thus, we are unwilling to hold, as
Stephanie suggests, that Donald is not entitled to a reduction in
his child support as a matter of law.
89The trial court could find from the evidence that Donald quit
his second job and reduced his overtime primarily to reduce his
child support obligation. A “change in circumstances”
contemplated by KRS 403.213(1) does not include voluntary
changes made for the primary purpose to reduce the support
owed. “Courts should not-and do not-view the freedom to
deprive family members of support because of personal
animosity or miserliness as one that deserves consideration or
protection.”10 Thus, on remand the trial court should make
explicit findings concerning the circumstances surrounding
Donald's reduction in his income. On remand, the trial court
should determine whether Donald is entitled to a modification
by using factors similar to those outlined in Cochran, supra.11
Accordingly, the judgment is vacated and the matter is
remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
All Citations
32 S.W.3d 109
Footnotes
1
Kentucky Revised Statutes.
2
Kentucky Rules of Civil Procedure 52.01.
3
KRS 403.212(2)(a).

55. 4
KRS 403.212(2)(d).
5
KRS 403.213(1)6Stewart v. Madera, Ky.App., 744 S.W.2d 437,
439 (1988).
7Cochran v. Cochran, 14 Va.App. 827, 419 S.E.2d 419, (1992).
8
Commonwealth, ex. rel. Marshall v. Marshall, Ky.App.,
15 S.W.3d 396, 401 (2000). See also Downey v.
Rogers, Ky.App., 847 S.W.2d 63, 65 (1993) (support obligor's
inability both to meet his own needs and pay child support
because of consumer debt is not a basis for a reduction in child
support).
9
Marshall, supra (incarcerated support obligor held to be
voluntarily unemployed despite inability to obtain employment).
10
Becker, Spousal and Child Support and the “Voluntary
Reduction of Income” Doctrine, 29 Conn.L.Rev. 647, 658
(1997).
11
The test is similar to the one set forth in Barbarine v.
Barbarine, Ky.App., 925 S.W.2d 831 (1996), which concerns a
motion to reduce maintenance predicated upon the early
retirement of the obligor.
266 S.W.3d 759
Supreme Court of Kentucky.
Christopher M. PENNINGTON, Appellant,
v.
Heather M. MARCUM (f/k/a Miles), Appellee.
No. 2006–SC–000642–DG.
Oct. 23, 2008.As Modified Oct. 24, 2008.
Synopsis
Background: Father brought motion to modify custody or in
alternative to expand visitation/timesharing, in response to

56. mother's attempt to relocate with child to Virginia. The Circuit
Court, Boyd County, Marc I. Rosen, J., overruled motion, and
father appealed. The Court of Appeals affirmed.
Holdings: On review, the Supreme Court, Noble, J., held that:
1 father's motion to modify custody in which he sought to
prevent mother's relocation with child was governed by best
interests of child standard, overruling Fenwick v. Fenwick, 114
S.W.3d 767;
2 trial court had discretion to accept, reject or modify any of
domestic relations commissioner's findings of fact and
recommendations; and
3 trial court had no obligation to conduct second evidentiary
hearing following receipt of domestic relations commissioner's
report and recommendation on father's motion.
Affirmed.
Cunningham, J., filed dissenting opinion in which Venters, J.,
joined.
Venters, J., filed dissenting opinion.
West Headnotes (20)Collapse West Headnotes
Change View
1Child Custody
Natural parents have the superior right to custody above all
others, if they are fit for the charge and have not given up the
right.
76DChild Custody
76DIIGrounds and Factors in General
76DII(B)Factors Relating to Parties Seeking Custody
76Dk42Right of biological parent as to third persons in general
2Child Custody
Under joint custody, both parents have responsibility for and
authority over their children at all times; equal time residing
with each parent is not required, but a flexible division of
physical custody of the children is necessary.
17 Cases that cite this headnote

57. 76DChild Custody
76DIVJoint Custody
76Dk147Physical custody arrangements
76DChild Custody
76DIVJoint Custody
76Dk151Control by and Authority of Parties
76Dk152In general
3Child Custody
A significant and unique aspect of full joint custody is that both
parents possess the rights, privileges, and responsibilities
associated with parenting and are expected to consult and
participate equally in the child's upbringing.
16 Cases that cite this headnote
76DChild Custody
76DIVJoint Custody
76Dk127Ability of parents to cooperate
76DChild Custody
76DIVJoint Custody
76Dk151Control by and Authority of Parties
76Dk152In general
4Child Custody
Prior to entry of a decree, a court may enter temporary custody
orders and may determine timesharing/visitation, which may be
modified whenever it is in the child's best interests to do so;
any such decisions are “pendente lite,” “interlocutory” or “non-
final”. KRS 403.280, 403.320.
16 Cases that cite this headnote
76DChild Custody
76DVIIParticular Status or Relationship
76DVII(D)Termination of Parents' Marriage
76Dk321Pending Proceedings
76Dk323Power and authority of court

58. 76DChild Custody
76DVIIParticular Status or Relationship
76DVII(D)Termination of Parents' Marriage
76Dk321Pending Proceedings
76Dk325Visitation
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk578Particular status or relationship
5Child Custody
When the court is making its final and appealable custody
decree, it must do so based on the “best interests of the child”
standard. KRS 403.270.
7 Cases that cite this headnote
76DChild Custody
76DIIGrounds and Factors in General
76DII(C)Factors Relating to Child
76Dk76Welfare and best interest of child
76DChild Custody
76DXIIIAppeal or Judicial Review
76Dk902Decisions reviewable
6Child Custody
When a final custody decree has been entered, and a relocation
motion arises within two years of the decree, any post-decree
determination made by the court is a modification, either of
custody or timesharing/visitation; if a change in custody is
sought within two years of the decree, then the court must apply
statutory standard requiring either serious endangerment or
abandonment to a de facto custodian, but visitation can be
modified upon proper showing, at any time, having no two-year
restriction, and, after two years from the date of the custody
decree, the standard reverts to review of the best interests of the

59. child. KRS 403.340.
29 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk568Parent or custodian's relocation of home
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
7Child Custody
If a parent opposing relocation files a motion to modify custody
within two years of the date of the custody decree, then the
moving party must establish that the move or other reason
seriously endangers the child or that the child has been
abandoned to a de facto custodian in order to modify custody; if
the standard is met, and custody is changed, then that parent as
sole custodian could prevent relocation of the child, but if the
only interest of the opposing party is to object to relocating the
child, but not to alter joint decision-making, then he is seeking
to have the existing visitation/timesharing arrangement
changed, and need only establish that it is in the child's best
interests not to relocate. KRS 403.320(3).
26 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk568Parent or custodian's relocation of home
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation

60. 8Statutes
As a matter of statutory construction, the more specific statute
controls.
361Statutes
361IIIConstruction
361III(G)Other Law, Construction with Reference to
361k1210Other Statutes
361k1217General and specific statutes
(Formerly 361k223.4)
9Child Custody
If a motion for change of custody challenging a parent
relocation with the child is made more than two years after the
date of the custody decree, the court must evaluate custody
based on the best interests of the child, and determine whether a
change of custody from joint to sole should occur on that basis;
if so, relocation of the child will be prevented, but if not, the
question converts itself to whether the change in
visitation/timesharing, either due to allowing relocation or
denying it, is in the best interest of the child. KRS
403.320, 403.340.
39 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk576Joint custody
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
10Child Custody
The change of custody motion or modification of
visitation/timesharing must be decided in the sound discretion
of the trial court. KRS 403.320, 403.340.

61. 46 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(A)In General
76Dk551Discretion
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
11Child Custody
Since neither the “serious endangerment” or “best interests”
standards with respect to child custody is defined, it is left to
the sound discretion of the trial court whether the party
opposing relocation has met his burden on either a modification
of custody or visitation/timesharing. KRS 403.320, 403.340.
21 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk568Parent or custodian's relocation of home
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
12Child Custody
The party seeking modification of custody or
visitation/timesharing is the party who has the burden of
bringing the motion before the court. KRS 403.320, 403.340.
18 Cases that cite this headnote
76DChild Custody
76DIXModification

62. 76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
13Child Custody
A residential parent who wishes only to change the
visitation/timesharing due to his relocating with the child may
bring the motion to modify visitation/timesharing, but if that
parent believes that the relocation will make a joint custody
arrangement unworkable, then the motion should be made for a
change of custody from joint to sole custody. KRS
403.320, 403.340.
66 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
14Child Custody
When one parent indicates an interest in relocating with the
child, the parent opposed need not wait, but could file his own
motion to modify custody or for change of
visitation/timesharing. KRS 403.320, 403.340.
11 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
15Child Custody
If neither party wishes to change the nature of the custody of
the child, and the court determines that it is in the best interest

63. of the child to relocate with one parent, the other parent's
visitation/timesharing would be modified to an accommodation
as reasonable as possible given the distance of the relocation
and the means of the parties. KRS 403.320.
22 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
16Child Custody
Post-judgment motion to modify custody brought by father in
opposition to mother's relocation with child to Virginia, or in
alternative to give him extended visitation or timesharing with
child, was essentially request for modification of
visitation/timesharing, and thus, was governed by best interests
of child standard. KRS 403.320.
15 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
17Child Custody
The trial court has the right to reevaluate the evidence presented
before a domestic relations commissioner in child custody
modification proceeding and reach a differing conclusion from
the commissioner.
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)3Hearing and Determination
76Dk652Reference
18Court Commissioners
The trial commissioner acts only to further judicial economy by

64. assisting the trial court; the commissioner's report is a
recommendation and is not binding. Rules Civ.Proc., Rule
53.06(2).
2 Cases that cite this headnote
105Court Commissioners
105k3Powers, functions, and liabilities in general
105Court Commissioners
105k5Procedure
19Child Custody
Trial court had discretion to accept, reject or modify any of
domestic relations commissioner's findings of fact and
recommendations on father's motion to modify custody.
2 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)3Hearing and Determination
76Dk652Reference
20Child Custody
Trial court had no obligation to conduct second evidentiary
hearing following receipt of domestic relations commissioner's
report and recommendation on father's motion to modify
custody.
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)3Hearing and Determination
76Dk652Reference
Attorneys and Law Firms
*761Rhonda M. Copley Ashland, KY, Counsel for Appellant.
Martha Alice Rosenberg, Lexington, KY, Counsel for Appellee.
Opinion

65. Opinion of the Court by Justice NOBLE.
The Appellant, Christopher M. Pennington, appeals the order
from the Boyd Circuit Court dated October 31, 2005. The
Appellant argues that the trial court abused its discretion by
setting forth findings of fact contrary to the recommendation of
the domestic relations commissioner without conducting an
evidentiary hearing or considering the testimony presented.
Additionally, the Appellant argues that the Boyd Circuit Court
erred when it overruled a motion to modify custody pursuant to
the best interests of the child and submits that relocation with a
minor child is sufficient to trigger a modification hearing
pursuant to KRS 403.340. After reviewing the record, the
applicable statutes, and relevant case law, this Court finds no
abuse of discretion by the trial *762 court, there being
substantial evidence to support the trial court's findings in favor
of the Appellee, Heather M. Marcum. The Court of Appeals is
affirmed for the reasons stated herein.
I. Background
On May 17, 1999, Mikayla L. Pennington was born to the
Appellant, Christopher M. Pennington, and the Appellee,
Heather M. Miles. The couple was never married but resided
together for approximately one year after the birth of Mikayla.
By Agreed Order entered February 7, 2001, which was the final
custody decree, the parties received joint custody of Mikayla
with the Appellee designated as having “joint physical custody
(residential parent)” and the Appellant receiving “liberal
visitation” of at least two days per week.
In 2002, the Appellee married Jeremy Marcum and moved to
West Virginia. The Appellant remained in Boyd County where
he married and was employed at Kings Daughters Medical
Center though he continued to spend his agreed-upon time with
Mikayla. Various motions were filed concerning visitation and
support from time to time. However, it was not until after the
Appellee and her husband subsequently relocated to
Appomattox, Virginia (approximately six hours from the
Appellant's home), that the Appellant filed a motion asking the

66. court to “award custody of the minor child” to him, on or about
July 28, 2004, more than two years after entry of the custody
decree. However, in his supporting affidavit he asked that he be
granted “primary custody” or in the alternative, that the court
“modify visitation” to give him extended contact “of at least
every weekend.” No modification motion had been filed when
Appellee initially moved to West Virginia.
On referral from Boyd Circuit Court, the domestic relations
commissioner held an evidentiary hearing and recommended
that the parties continue to have joint custody, but changed
“primary physical custody” to Appellant, with Appellee to have
“secondary physical custody with liberal visitation.” The
commissioner emphasized that the Appellant was actively
involved in his daughter's life, he and his wife arranged their
work schedules so that one adult would be at home with
Mikayla and the couple's other children at all times, that the
Appellee provided no advance notice to the Appellant of her
move to Appomattox, Virginia, and that the Appellee generally
did not consult with the Appellant when making decisions
regarding Mikayla.
The Appellee filed exceptions to the report and the circuit judge
conducted a hearing on August 22, 2005. On October 31, 2005,
the court sustained the Appellee's exception to the award of
primary physical custody to the Appellant. The Boyd Circuit
Court specifically noted in its October 31, 2005 Order that it
was “not inclined to end a 6–year relationship with a parent
merely because the parent remarries and moves to a different
location.” Additionally, the Boyd Circuit Court found Mikayla
to be well-adjusted in her new environment, including school,
and involved with several extracurricular activities. Most
importantly, the court ruled “that it would be in the best interest
of the minor child for the parties to continue to have joint
custody, but for the Respondent [mother] to have primary
physical custody and the Petitioner [father] to have secondary
custody with liberal visitation as the parties have been
exercising.”

67. This appeal followed. The Court of Appeals found there was
substantial evidence to support the Boyd Circuit Court's finding
in favor of the Appellee and affirmed the custody order. We
now affirm, but for the reasons stated herein. Further,
because *763 questions regarding relocation and its effect on
custody continue to be problematic, the Court will address the
nature of child custody, the effects of relocations, and when and
how motions relating to relocation after a custody award should
be brought, in an effort to establish clear precedent.
II. Analysis
A. General Discussion
1At the heart of all relationships between parents and children
is the legal concept of custody. Custody of children is
traditionally described as the care, control and maintenance of
the children, Black's Law Dictionary 725 (8th ed.2004), with
natural parents having the superior right to custody above all
others, if they are fit for the charge and have not given up the
right. Welsh v. Young, 240 S.W.2d 584, 586 (Ky.1951).
Historically, the guardian by nature of the child was the father,
and on his death, the mother. For children born out-of-wedlock,
the guardian was the mother. Black's Law Dictionary 725 (8th
ed.2004). Today, both parents are recognized as having the right
to custody, KRS 403.270; putative fathers may seek and obtain
custody, KRS 405.051; and de facto custodians have the same
right to seek custody as the father and mother, KRS 403.270.
While there are a larger number of children born out-of-wedlock
today than ever before, the majority of children are still born to
a married couple, consisting of a mother and a father, with
custody questions arising in relation to a divorce.1
As a consequence of the fault-based divorce scheme, sole
custody was the rule for most of the 20th century. As a marital
couple, both parents enjoyed full parenting rights and
responsibilities; however, the dissolution of the marital bond
not only altered the relationship of the parties but also altered
the relationship between the parties and any children they might
share. The “innocent” spouse who obtained divorce on

68. appropriate grounds (adultery, insanity, indignities,
imprisonment, bigamy, cruel treatment, or desertion) was
generally deemed the fit parent. The sole custodian possessed
full control and singular decision-making responsibility for his
or her children to the exclusion of the other parent who received
a limited period of access to the children through visitation, a
term which denoted the right to see the children, but not to
control them legally. During this time, custodial preference
under the law evolved from father first, then to the mother first
under the tender years presumption, and finally to equal
consideration of both parents seeking sole custody. See
generally Mary Kate Kearney, The New Paradigm in Custody
Law: Looking at the Parents with a Loving Eye, 28 Ariz. State
L.J. 543, 546–50 (1996).
In 1972, the Kentucky General Assembly enacted KRS 403.110
et seq. following a national trend to permit no-fault divorces.
With the passage of the no-fault divorce statutes, the
Commonwealth's role changed from restricting access to divorce
to permitting either spouse to unilaterally sever the marital
bond. Still, the goal of the Commonwealth remained
unchanged—to preserve family relationships. An explicitly
stated purpose of the chapter is to promote the integrity of
marriage and safeguard family relationships. KRS 403.110(1).
At its inception, the no-fault *764 divorce scheme showcased
the state's emerging role as maintaining the indissolubility of
parenthood after the dissolution of the marital relationship by
permitting joint custody of the couple's children.
During the 1970s and 1980s, American society was making
rapid changes. Women of child-bearing and -rearing age were
increasingly joining the civilian labor force, so that by 1980,
over half of that group were working outside the home.2 In part
because the “stay-at-home Mom” was an increasingly less
conventional parenting role, fathers began taking more active
roles in the day-to-day lives of their children. Consequently, at
the dissolution of the marriage both parties began seeking a
custody arrangement that allowed them to pursue livelihoods to

69. maintain households and provide for their families, but also
permitted them to function as available, responsible decision-
makers for their children.
In 1992, the Kentucky Court of Appeals decided Chalupa v.
Chalupa, 830 S.W.2d 391 (Ky.App.1992), which included an
open endorsement of joint custody over sole custody. The Court
of Appeals concluded that it was in the best interests of children
for both their parents to be regularly involved in their lives. The
court recognized the dynamic nature of family law and stated:
Joint custody is also a natural progression of our no fault
divorce concept, recognizing that both parties may be fit parents
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. Joint custody can benefit the
children, the divorced parents, and society in general by having
both parents involved in the children's upbringing.
Id. at 393 (citation omitted). Though the Kentucky Supreme
Court declined to adopt the Chalupa preference for joint custody
over sole custody in Squires v. Squires, 854 S.W.2d 765, 769
(Ky.1993), and KRS 403.270 mandates that custodial
determinations are to be made individually in light of the child's
best interests, joint custody has emerged as the most prevalent
custodial arrangement.
23Joint custody as a legal concept has several defining
characteristics. Both parents have responsibility for and
authority over their children at all times. Equal time residing
with each parent is not required, but a flexible division of
physical custody of the children is necessary. A significant and
unique aspect of full joint custody is that both parents possess
the rights, privileges, and responsibilities associated with
parenting and are expected to consult and participate equally in
the child's upbringing.
However, since Kentucky became a no-fault divorce state and
joint custody was deemed an arrangement on equal footing with
sole custody, custodial arrangements have become increasingly
amorphous. Though it is often stated that there are two

70. categories of custody, sole custody and joint custody, there is in
practice a subset of joint custody that combines the concept of
joint custody with some of the patterns of sole custody—often
called “shared custody.” In shared custody, both parents have
legal custody that is subject to some limitations delineated by
agreement or court order. Unlike full joint custody, time sharing
is not necessarily flexible and frequently mirrors a typical sole
custody *765 pattern where the child may live with one parent
during the week and reside with the other on alternate
weekends. The weekend parent does not have “visitation,” a
sole-custody term which is frequently misused in this context,
but rather has “time-sharing,” as he or she is also a legal
custodian. However, in practice, the terms visitation and
timesharing are used interchangeably. Additionally, one parent
may be designated the “primary residential parent,” a term that
is commonly used to denote that the child primarily lives in one
parent's home and identifies it as his home versus “Dad's/Mom's
house.” This concept is frequently misnamed “primary
residential custody.”
A less frequently seen category found in practice is a subset of
sole custody—split custody. In this arrangement, each parent
has sole custody and decision-making authority while the child
is in residence with him or her, and only visitation when the
child is in residence with the other parent. The term “primary
residential custody” may be more appropriate here, depending
on how much time the child spends in residence with each
parent.
Shared and split custody have developed as common-sense
approaches to the realities of modern day life, even though they
are not explicitly expressed in our statutes. Better technical
ability to communicate, employment mobility, a given parent's
ability to meet certain obligations and other such factors lead to
a need for an approach to parenting after divorce that is flexible
and can be customized to the needs of each family involved
with the children. These broad approaches recognize that every
family is unique, and that it is generally in the best interests of

71. the child and parents to maximize contact with both parents.
The “designer” approach of these concepts asks the question,
“What is best for this family? ” This diversity, however, makes
it difficult to apply standardized provisions of the law,
especially when the existing statutes do not fully address all the
permutations that can occur.
B. Modification of Custody or Visitation on Parental Relocation
45At the outset, it should be noted that the effect of relocation
by a parent with the child on custody and visitation must be
viewed as either pre-or post-decree. KRS 403.340, the
modification of custody statute, speaks to modification of a
custody decree. By definition, a decree is a final
judgment, Black's Law Dictionary 440 (8th ed.2004), denoted in
Kentucky law as being “final or appealable.” CR 54.01. Prior to
entry of a decree, a court may enter temporary custody orders
pursuant to KRS 403.280, and may determine
timesharing/visitation pursuant to KRS 403.320, which may be
modified whenever it is in the child's best interests to do so.
Any such decisions are “pendente lite,” “interlocutory” or “non-
final.” As we have determined in a case that was argued with
this one and is being rendered at the same time, Frances v.
Frances, 266 S.W.3d 754, (Ky.2008), when the court is making
its final and appealable custody decree, it must do so based
on KRS 403.270, the best interests standard.
6However, when a final custody decree has been entered, as in
this case, 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, KRS 403.340governs. 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.
This pre- or post-decree designation is important when
modification of custody is *766 sought, because of the standard
the trial court must apply when a change is sought within two
years of issuance of the custody decree, the serious
endangerment or abandonment to a de facto custodian standard.

72. Prior to 1972, trial courts in Kentucky could modify custody
decrees upon proof that the conditions under which the original
decree was entered were changed. See Skidmore v.
Skidmore, 261 Ky. 327, 87 S.W.2d 631, 634 (1935); Williams v.
Williams, 290 S.W.2d 788, 789 (Ky.1956); Hatfield v.
Derossett, 339 S.W.2d 631, 632–33 (Ky.1960); Ward v.
Ward, 407 S.W.2d 709, 710 (Ky.1966). Though the “change of
conditions” standard still plays a role in the consideration of
custody modifications, modification must now be evaluated
under the terms of KRS 403.340, originally enacted in 1972,
which contains a two-year limitation period on modification of
custody from the date of the custody decree.3 In 1973, this
Court applied the statute when it first held that a custody decree
cannot be modified within the two-year limit unless one of the
two that a custody decree cannot be modified within the two-
year limit unless one of the two statutory exceptions, serious
endangerment or abandonment to a de facto custodian, is
established. *767Day v. Day, 490 S.W.2d 483 (Ky. 1973). This
was reaffirmed in 1976 when the Court held that a trial court's
sua sponte review and modification of a custody order within
the two year period was in error. Chandler v. Chandler, 535
S.W.2d 71 (Ky. 1976). Visitation, on the other hand, can be
modified upon proper showing, at any time, having no two-year
restriction pursuant to KRS 403.320.4 And, after two years from
the date of the custody decree, the standard reverts to review of
the best interests of the child, either under KRS 403.270 or KRS
403.30(3).
Since Kentucky accepted joint custody as a custodial
arrangement equally tenable and commensurate with sole
custody, and given that very individualized time-sharing
arrangements have developed under shared joint custody or split
sole custody, whether a custodian's relocation with the minor
child changes the inherent nature of the custody the parties have
or merely affects timesharing/visitation has become a frequent
and pertinent question. This issue has been commonly
approached in two ways. Litigants have characterized the

73. motion as one to modify visitation pursuant to KRS 403.320 or
one to modify custody pursuant to KRS 403.340.
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.
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.5 However, a modification
of custody means more than who has physical possession of the
child. Custody is either sole or joint (or the subsets of each) and
to modify it is to change it from one to the other. On the other
hand, changing how much time a child spends with each parent
does not change the legal nature of the custody ordered in the
decree. This is true whether the parent has sole or joint custody:
decision-making is either vested in one parent or in both, and
how often the child's physical residence changes or the amount
of time spent with each parent does not change this.
This is perhaps too legalistic in a reality-based world. To most
people, having custody means having possession of the child.
Parties have addressed this understanding by applying terms
such as “primary residence” or “residential parent,” in their
agreements. This type of thinking is often inconsistent with the
legal meaning of joint custody, wherein both parents are equal
legal custodians, but is nonetheless prevalent.
*768 In 2003, this Court did an extensive review of custody and
relocation issues in Fenwick v. Fenwick, 114 S.W.3d 767
(Ky.2003), a case that arose when the mother and father, who
had temporary joint custody and nearly equal timesharing,
disputed whether the mother could relocate with their two
daughters a distance of some thirty-five miles to Jefferson
County, Kentucky. The mother filed a motion requesting the
court's approval to relocate with the children. The father
objected, claiming that the move was contrary to the children's
best interests, and asked that if the mother did move, he be
named “primary residential custodian.” In a pendente lite order,
the court found that it was not in the children's best interests to

74. relocate, continued temporary joint custody, and left the mother
designated “primary caregiver,” with the option of relinquishing
that designation if she decided to relocate. This order was later
made the final custody decree on December 8, 1997.
Fenwick has an extensive, learned discussion on the confusion
that surrounds relocation, custody and timesharing/visitation.
However, much of what this Court discussed in Fenwick must
henceforth be disregarded, because this Court applied the wrong
statute. Like the Frances case also rendered today, the
relocation in Fenwick was raised prior to entry of the final
custody decree, and consequently KRS 403.270, with its best
interests standard should have been applied by this Court as it
was by the trial court. Instead, the Fenwick Court focused its
relocation determination on who was the primary residential
parent, which alone is not the proper basis for a modification of
custody.
Rather, had the relocation motion been made post-decree, as it
was in this case, the focus should have been on whether an
actual change in custody was being sought. Fenwick directs the
parent opposing relocation of the children to file a motion for
change of custody pursuant to KRS 403.340, yet subsequently
acknowledges that “the essence of joint custody is shared
decision-making,” and that “the joint custody itself will remain
unaffected by [the mother's] relocation because [the father] will
still be able to continue sharing substantial time with his
children through personal contact and other means....” 114
S.W.3d at 789. If the latter is correct, and it is, then clearly a
parent opposed to relocation, but not seeking a change in joint
custody, does not need to make a motion for a change of
custody, but rather a motion for modification of timesharing.
In a sole custody arrangement, KRS 403.320 speaks clearly to
visitation granted to a “parent not granted custody” and
modification of that visitation based on the best interests of the
child. Modification of the visitation schedule does not alter the
sole nature of the custody. While there is no statute that
specifically addresses modification of timesharing in a joint

75. custody setting, it is reasonable to infer that modifying it does
not alter the nature of joint custody. Also, since the nature of
the custody does not change, the trial court is not bound by the
statutory requirements that must be met for a change of custody,
but can modify timesharing based on the best interests of the
child as is done in modifying visitation.
Thus, the first question on a custody modification or relocation
motion is, “Is the motion actually seeking modification of
custody or visitation/timesharing?” In Fenwick, the mother's
motion to relocate ended up resulting in a modification of
timesharing due to relocation. To oppose it, the father, who did
not want the child to relocate, was directed by this Court to ask
for a modification of custody. However, this would necessitate
that he ask for a change from joint custody to sole
custody, *769 vested in him. What the father in Fenwick really
wanted was to become the primary residential parent, which
would be a modification of timesharing under joint custody. He
was asking the court to consider what is in the best interests of
the child as to where and to what extent the child spends time,
not that he become the sole decision-maker.
However, when the party opposing relocation is truly seeking a
change in custody, from joint to sole (or vice-versa), the second
pertinent question regarding modification of custody is, “When
was the custody decree issued?” This will determine the
standard of review for modification.
78If a parent opposing relocation files a motion to modify
custody within two years of the date of the custody decree, then
the moving party must establish that the move or other reason
seriously endangers the child or that the child has been
abandoned to a de facto custodian in order to modify custody. If
the standard is met, and custody is changed, then that parent as
sole custodian could prevent relocation of the child. But, if the
only interest of the opposing party is to object to relocating the
child, but not to alter joint decision-making, then he is seeking
to have the existing visitation/timesharing arrangement
changed, and need only establish that it is in the child's best

76. interests not to relocate, which would thereby change the
existing visitation/timesharing situation. While this may appear
to undercut the purpose of the two-year limitation in KRS
403.340 on modification of the custody decree, when only
visitation/timesharing modification is sought, the specific
language of KRS 403.320(3) controls, which allows
modification of visitation/timesharing “whenever modification
would serve the best interests of the child,” and specifically
directs that a court “shall not restrict a parent's visitation
rights” unless allowing visitation would seriously endanger the
child. As a matter of statutory construction, the more specific
statute controls.
9If a motion for change of custody is made more than two years
after the date of the custody decree, the court must then
evaluate custody based on the best interests of the child, and
determine whether a change of custody from joint to sole should
occur on that basis. If so, relocation of the child will be
prevented. If not, the question converts itself to whether the
change in visitation/timesharing, either due to allowing
relocation or denying it, is in the best interest of the child.
Obviously, if a parent who has been the primary residential
parent relocates and the child does not, the primary residential
parent will change.
1011Every case will present its own unique facts, and the
change of custody motion or modification of
visitation/timesharing must be decided in the sound discretion
of the trial court. This is true whether the child lives with one
parent in an arrangement like a sole custody arrangement or
whether there is equal timesharing or something in between.
Since “serious endangerment” or “best interests” is not defined,
it is left to the sound discretion of the trial court whether the
party opposing relocation has met his burden on either a
modification of custody or visitation/timesharing.
1213The party seeking modification of custody or
visitation/timesharing is the party who has the burden of
bringing the motion before the court. A residential parent who

77. wishes only to change the visitation/timesharing due to his
relocating with the child may bring the motion to modify
visitation/timesharing under KRS 403.320. If that parent
believes that the relocation will make a joint custody
arrangement unworkable, then the motion *770 should be made
for a change of custody from joint to sole under KRS 403.340.
14Likewise, when one parent indicates an interest in relocating
with the child, the parent opposed need not wait, but could file
his own motion. A parent who has equal or nearly equal
visitation/timesharing and who wants to prevent a child's
relocation with the other parent, but does not want to change
custody from joint to sole, could bring a motion for a change of
visitation/timesharing under KRS 403.320. This could result in
a designation of that parent as primary residential parent if the
child is not allowed to relocate because it is not in his best
interests to do so. If that same parent wants to change custody
from joint to sole custody to him, he must bring the motion for
a change of custody and proceed under KRS 403.340.
15Both parents may need to bring motions if their wishes differ.
For example, if the residential mother makes a motion to modify
visitation/timesharing to allow her to relocate with the child,
the father may need to make a motion for modification of
visitation/timesharing to name him as the residential parent,
which would prevent relocation of the child. Or, the father
could make a motion to be named sole custodian, and if he
could meet his statutory burden, there would be a change of
custody which would also defeat the relocation. If neither party
wishes to change the nature of the custody, and the court
determines that it is in the best interest of the child to relocate
with the mother, the father's visitation/timesharing would be
modified to an accommodation as reasonable as possible given
the distance of the relocation and the means of the parties.
To the extent that this Court's prior decision in Fenwick and its
progeny is inconsistent with this Opinion, it is overruled.
C. Application to this Case
16In this case, the Appellant brought his motion for “custody of

78. the minor child” or, in the alternative, to modify visitation to
give him extended visitation/timesharing of “at least every
weekend,” on or about July 28, 2004, more than two years after
the Order granting joint custody on February 7, 2001. If
Appellant was actually seeking a change of custody from joint
to sole, KRS 403.340(2) which imposes a two-year limitation,
does not apply, and the court was free to look at a custody
modification based on the best interests of the child. Likewise,
if the Appellant was actually seeking only a modification of
visitation/timesharing, the standard the court had to apply is
what is in the best interests of the child. The trial court
specifically stated that its findings were based on “the best
interests” of Mikayla, specifically citing her relationship with
her mother's new family, a new sibling she had been with for
some time, her adjustment to her present home and school, the
fact that Appellee was acknowledged to be a good mother, and
that the parties had been able to work out visitation/timesharing
for a significant period of time. The court determined that the
best interest of the child required retaining the current custody
status. This effectively denied Appellant's motion for a change
of custody. Despite mixing terminology of sole and joint
custody, and awarding an unknown status of “secondary
custody” to Appellant, the trial court actually modified
visitation/timesharing by allowing the relocation which
inevitably altered the when and how of Appellant's time with
his child, but did not alter the nature of the parents' joint
custody. This effectively denied Appellant's alternative motion
for “visitation” every weekend. It *771 is clear that the trial
court had an ample factual basis for its decision and did not
abuse its discretion.
It was appropriate for the Appellant to file the alternative
motions, as he objected to the changes relocation would bring to
his current visitation/timesharing arrangement with his child,
and presumably he also wished to be named sole custodian.
However, Appellee could have also brought a motion to modify
the current visitation/timesharing arrangement due to the

79. changes brought about by her new relocation with the child.
Both parties have an interest, and it is appropriate for either to
seek a modification of visitation/timesharing or custody.
Nonetheless, the issues could be resolved on the Appellant's
motion alone, and the trial court appropriately did so.
17As to whether the trial court erred in relying on the hearing
conducted by the domestic relations commissioner and the
argument of counsel, the circuit court has complete discretion
regarding the use of a commissioner's report. Haley v.
Haley, 573 S.W.2d 354, 356 (Ky.App.1978). Further, the trial
court has the right to reevaluate the evidence and reach a
differing conclusion from the commissioner. Basham v.
Wilkins, 851 S.W.2d 491 (Ky.App.1993). In Eiland v.
Ferrell, 937 S.W.2d 713 (Ky.1997), this Court conclusively
stated that the trial court has broad discretion in actions relying
on commissioner's reports, constrained only by the pertinent
Rules of Civil Procedure.
18Additionally, pursuant to CR 53.06(2), “[t]he court after
hearing may adopt the report, may modify it, or may reject it in
whole or in part, or may receive further evidence, or may
recommit it with instructions.” The trial commissioner acts only
to further judicial economy by assisting the trial court; the
commissioner's report is a recommendation and is not binding.
It is the trial court itself that makes findings of fact, either by
adopting those recommended by the commissioner or by acting
anew. When actions are tried upon facts without a jury, the trial
court's findings will not be set aside unless they are clearly
erroneous and, therefore, require the support of sufficient
evidence. CR 52.01.
1920The Appellant asserts that the findings of the trial court
included in the October 31, 2005 order are in direct
contradiction to the commissioner's findings. That is clearly
within the trial court's discretion. The distinctions between the
findings of the commissioner and the Boyd Circuit Court are
more appropriately characterized as varying constructions of the
same testimony. The commissioner and the Boyd Circuit Court

80. came to similar, yet dissimilarly worded factual findings
agreeing that Mikayla was born to the parties out-of-wedlock,
the Appellant was an active participant in Mikayla's life but she
primarily resided with the Appellee, and that Mikayla was well-
adjusted in her new home in Appomattox, Virginia. It is the
court's legal conclusions that are dramatically different from
those of the commissioner, which is certainly within the court's
authority. As to the claim that the court was required to conduct
a second evidentiary hearing, it is clear that it was not required
to do so. The Boyd Circuit Court appropriately reviewed the
report of the Domestic Relations Commissioner, allowed
arguments by counsel and gave thoughtful consideration to
both. There is no clear factual error and no abuse of discretion.
III. Conclusion
The trial court did not make clearly erroneous findings of fact,
nor did it abuse its sound discretion in relying on the
Domestic *772 Relations Commissioner's report and the
arguments of counsel. Further, the trial court correctly
determined the best interests of the child on the alternative
modification motion made more than two years after the date of
the custody order. The Court of Appeals is affirmed.
ABRAMSON, SCHRODER and SCOTT, JJ., concur.
CUNNINGHAM, J., dissents by separate opinion in
which VENTERS, J., joins.
VENTERS, J., dissents by separate opinion.
MINTON, C.J., not sitting.
Dissenting Opinion by Justice CUNNINGHAM.
I respectfully dissent from the result of the majority while at the
same time applaud much of what Justice Noble says in her
opinion. Her narrative history is much needed in bringing to
light a growing concern in child custody and visitation issues in
our ever increasingly mobile society. I also agree with her
analysis of the proper standard of proof in these kinds of cases.
However, I part ways with the majority because of the lack of
analysis given by the trial court to the issue of relocating a
child who has long had a close relationship with both her

81. mother and her father. This deficiency is in large part caused by
our own failure to provide guidance to trial judges in addressing
this daunting problem. Therefore, I would vacate and remand
for further proceedings consistent with this dissenting opinion.
We can no longer afford the simplistic approach to arbitrarily
allow parents to relocate to distant places simply because the
child is doing fine in the primary physical custody of that
parent. There is a tremendous amount of evidence which
connects frequent residential moves of children of separated
parents to major problems in child adjustment. The effects upon
children being frequently relocated include lower academic
performance and higher rates of problems with depression,
conduct, and peer relationships.1 We are not talking about
moves by intact families where children usually cope and
sometimes even thrive. Relocation by a divorced parent where
the child is torn away from the mother or father is uniquely
different.
In 1998, the prestigious American Academy of Matrimonial
Lawyers took on the difficult problem of parental relocation and
proposed a Model Relocation Act. The Act itself lists several
factors that the trial court should consider before allowing the
relocation of a child.2 While many states have dealt with the
relocation issue through legislation, others have given—as we
should do here—guideposts to trial courts through their highest
courts.3
Of course, each jurisdiction is unique, but there are common
factors running through all. The following are but a few of these
common factors: (1) the age of the child; (2) the purpose of the
move; (3) *773 the distance of the move; (4) the worthiness of
the move for the child when balanced with any negative effects;
(5) the improvement of the child's standard of living; (6) the
physical hardship of travel for the child on visitation with the
non-custodial parent; (7) the presence or absence of extended
family for the child at the new location versus the existing
location; (8) the motivation of the noncustodial parent for
objecting to the move (i.e., is it genuine concern for the child or