Posted by: euser
December 27, 2010
Topic: Custody and Parenting Time

Effective January 1, 2011, attorneys and pro se litigants will be subject to new rules in Family Courts around Kentucky. Pursuant to KRS 403.130, the new rules are a separate section of the Rules of Civil Procedure known as the Kentucky Family Court Rules of Procedure and Practice. These Rules are applicable to the procedure and practice in all actions pertaining to dissolution of marriage; custody and support; visitation and timesharing; property division; maintenance; domestic violence; paternity; dependence; neglect or abuse; termination of parental rights; adoption; and status offenses, or any other matter exclusively within family law jurisdiction, except for any special statutory proceedings. FCRPP 1(2). Self represented (pro se) litigants will be held to knowledge of these rules the same as parties represented by counsel. FCRPP 1(3).

One of the major changes these rules bring is to the nature of relocation with a child. FCRPP 7(2) states that "If either parent intends to move with the child(ren) from the Commonwealth of Kentucky to another state, or more than 100 miles from the present residence of the child(ren), he or she shall give notice to the other parents at least sixty (60) days prior to such move. Either parent may file a motion for change of custody or time sharing if the other parent is not in agreement with the move, or an agreed order if they are in agreement. No relocation of the children shall occur unless the court enters an order modifying the status quo."

It is very important to note this rule change because all parents who relocate must obtain a court order permitting the relocation, even if the parents are in agreement about the move. If the parties agree about the relocation, an Agreed Order could be tendered to the Court. If the parties do not agree, the Court will likely hold a hearing on the relocation.

The necessity of a court order for relocation complicates what some parents could see as a very simple move. A parent living in downtown Louisville who wishes to move two miles away to Jeffersonville, Indiana, will now need a court order to do so since the parent will be moving to another state. This will be an issue in areas around the state where metropolitan regions stretch across the state border, such as Ashland, Paducah, Owensboro, Northern Kentucky, and Fort Campbell. This new rule will make these moves, that could be just a mile apart, more costly since a party will have to spend the attorney fees to bring a motion (or Agreed Order) before the Court to get permission for the relocation.

This new requirement for relocation is supposed to be based on Pennington v. Marcum. The Kentucky Supreme Court decided this case in 2008. The Court considered whether a parent's desire to relocate brought about a change in custody or parenting time. Different statutes govern the standard the Court must apply when custody versus parenting time are modified, and the standard for custody modification is different based on whether the motion for modification is brought more or less than two years after the initial custody determination is made. The Court held that changing how much time a child spends with each parent does not change the legal nature of the custody ordered in the previous child custody order or decree. Pennington replaced the previous case on point, Fenwick v. Fenwick.

Louis and I have some doubts about whether this new rule accurately applies the Court's holding in Pennington. The Rule may have been motivated by Venters' dissent. This dissent stated that the trial court "took the unilateral relocation of the child as a fait accompli without adequate consideration of impact of the relocation on the child and on the child's other family relationships." Venters argued that a parent's unilateral relocation with a child encourages the parent to undertake unannounced relocations, and that the state should adopt or promote a policy that requires joint custodians to discuss relocation before it occurs.

FCRPP 7(2) certainly makes parents discuss relocation before it occurs. Whether this rule is entirely proper remains to be seen. FCRPP 7(2) will add to the congestion in the Court and the cost of relocation since relocations across the Ohio River or Big Sandy River will now require a Court Order even if the relocation is a stone's throw from one side of the river to the other.

If you are considering relocation with your child, please contact Louis and me to set up a free consultation. We can help you file the right pleadings with the Court to comply with the new FCRPP 7(2). Use the form on our homepage, or click "Contact Us" in the buttons on the left side of this page. We spend all our time on family law cases like yours, and we've worked hard to stay abreast of all the changes that will be coming to the courts in 2011. --Stacy Anne Hoehle

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