PHILLIP STUART FENWICK V. BENJAMIN F . HUCK, JR .
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MODIFIED : OCTOBER 8, 2003
RENDERED : SEPTEMBER 18, 2003
TO BE PUBLISHED
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1999-SC-1055-DG
PHILLIP STUART FENWICK
V.
APPEAL FROM NELSON CIRCUIT CO
HONORABLE THOMAS L. WALLER, SPECIAL JUDGE
97-CI-00062
SUSAN S . FENWICK
APPELLEE
AND
2000-SC-0697-DG
JENNIFER L. HUCK
V.
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DENNIS A. FRITZ, JUDGE
95-CI-00203
BENJAMIN F. HUCK, JR .
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING IN 1999-SC-1055-DG
REVERSING AND REMANDING IN 2000-SC-0697-DG
1 . ISSUE
In each of the present appeals, a primary residential custodian in a joint custody
arrangement seeks to relocate with the parties' children over the other parent's
objection . Our resolution of the issues presented requires us to determine both : (1)
whether a primary residential custodian's desire to relocate requires modification of the
previous joint custody award ; and (2) whether the relocation, standing alone, permits a
trial court to modify the joint custody award by changing the primary residential
custodian designation . More fundamentally, we must determine the circumstances
under which a trial court may modify an award of joint custody, and, in so doing, resolve
lingering questions as to the proper standard for modification in joint custody cases.
In Fenwick v. Fenwick, 1999-SC-1055-DG, the primary residential custodian,
Susan Fenwick, wishes to relocate thirty-five (35) miles to a nearby county. The trial
court, applying the best interest standard, denied Susan Fenwick's relocation request,
and held that, if she chose to relocate, it would modify the joint custody award by
designating Phillip Fenwick as primary residential custodian . The Court of Appeals
concluded that Susan Fenwick's proposed relocation did not require modification of the
joint custody award and, moreover, held that the trial court had no authority to
reconsider the joint custody award because there was insufficient threshold evidence of
bad faith or an inability to cooperate. Accordingly, it reversed the trial court and
permitted Susan Fenwick to relocate with the children .
In Huck v. Huck, 2000-SC-
0697-DG, the primary residential custodian, Jennifer Huck, wishes to relocate to an
adjoining state. The trial court refused her request because its original order prohibited
her from moving the children outside the state without the approval of either her exhusband or the court, and the court denied its approval after finding that she had failed
to advance sufficient and compelling reasons for the relocation . The Court of Appeals
held that the trial court could prohibit the primary residential custodian from relocating
with the children because the prospect of an out-of-state move may qualify as a
sufficient change in circumstances to warrant modification of custody under KRS
403.340, the general modification statute .
Was a failure to show lack of cooperation by the parents in Fenwick v. Fenwick a
sufficient basis to deny custody modification? Was the proposed relocation out-of-state
in Huck v. Huck a circumstance that would justify custody modification under KRS
403.340? Because we hold that modification of joint custody must meet the
requirements of KRS 403.340 and that the primary residential custodian's relocation, by
itself, is insufficient to require modification of a joint custody award, we hold that
modification of the joint custody award was neither required nor permitted in either
case. Accordingly, we hold that the primary residential custodians may relocate as they
propose and we therefore affirm the Court of Appeals in Fenwick v. Fenwick and
reverse the Court of Appeals in Huck v. Huck.
II . BACKGROUND
A. FENWICK v. FENWICK
Susan and Phillip Fenwick were married in 1986. Their marriage produced two
daughters, Stephanie and Paige . The Fenwicks lived together as a family until Susan
and Phillip separated in February 1997. Their marriage was dissolved in May 1997;
however, at that time, the trial court reserved for future adjudication child custody and
other issues .
In an orders entered June 27, 1997, the trial court awarded the parties temporary
joint custody of their two children, designated Susan Fenwick as the primary residential
custodian '2 and established a time-sharing 3 schedule that set forth when Phillip
1 The trial court's decision was set forth in a document captioned, "Findings of
Fact, Conclusions of Law and Supplemental Judgment," but which provided, "This is a
pendente lite order." See CR 54 .02 .
2 The trial court did not use the term "primary residential custodian" but its order
provided, "The children shall primarily reside with Susan . . . ." See infra Part III(B) for
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Fenwick would have the children . Under the court's time-sharing order, Phillip spends
time with his daughters daily during the week from 3:00 p .m . to 6:00 p .m. In addition,
the children stay with him each Tuesday afternoon after work through 6 :00 p.m . on
Wednesday as well as every other weekend . Under this time-sharing arrangement, the
children spend almost equal time with both parents .
At Phillip Fenwick's request, the marital residence was sold, and Susan Fenwick
was thus required to seek a new residence for herself and the children . As a result, she
filed a motion requesting the court's approval to relocate with the children to a three
bedroom home owned by her brother in Jefferson County, a distance of thirty-five (35)
miles from her present residence .
Susan Fenwick is employed by Louisville Gas & Electric, and she commutes
from Bardstown to Louisville each day. A move to Jefferson County, she asserts, would
eliminate her daily commute and confer additional benefits upon her and the children .
She states that relocation to Jefferson County will allow her to be closer to her place of
employment and thereby give her more time to spend with Stephanie and Paige .
Moreover, she suggests that, after relocating to Louisville, she will be in a better
position to respond promptly to any emergency needs her daughters may have. She
also points out that after the move she and the children will continue to live close to
family because her brother resides with his family in a home nearby and her brother's
wife, along with his daughter, will help care for the children .
discussion of the significance of the primary residential custodian label.
The term "time-sharing" or "shared time" is frequently used by family
practitioners and trial courts in lieu of "visitation" "in recognition that a parent's
relationship with a child deserves a label somewhat different from that attached to a
weekend guest ." 16 L. Graham & J . Keller, Kentucky Practice, Domestic Relations Law
§ 22 .1 (2~ ed . West Group 1997) (hereafter "Graham & Kelley").
3
Phillip Fenwick objected to the motion, arguing that relocation is contrary to the
children's best interests . He maintained that the established time-sharing schedule
better serves the children's needs because: (1) the schedule allows the children to see,
on a regular basis, him and other people with whom the children are close, and (2)
Jefferson County is a crime-ridden, traffic-jammed, and pollution-filled area, which is
unsafe for raising young children .
In an interlocutory order entered August 14, 1997, the trial court, applying the
best interest standard, found "that moving the children from an area where they have
significant interrelationships with family members and adjustment to the community
would serve to exacerbate the ill effects of this divorce" and therefore overruled Susan
Fenwick's motion to relocate . Phillip asked the trial court to designate him as primary
residential custodian if Susan insisted upon relocating to Jefferson County, and the trial
court's order provided Susan with that alternative :
. . . Susan's motion to relocate the children is hereby
overruled . Susan, however, is granted the option to
relinquish her role as primary caregiver to Phillip and
propose to the court a new schedule of time sharing should
this move to Jefferson County be of such significance to so
warrant a change.
By an order entered December 8, 1997,4 the trial court made final and
appealable its prior rulings that had awarded the parties joint custody, designated
4 This order adopted "Findings of Fact, Conclusions of Law and Supplemental
Judgment" ("Supplemental Judgment") that were apparently prepared by the court's
domestic relations commissioner and that the record reflects were tendered on October
2, 1997. The Supplemental Judgment was signed, however, by the trial judge, stamped
entered by the clerk on both December 8, 1997 and December 16, 1997, and provided,
"This is a final and appealable judgment and there is no just cause for delay." Both the
December 8, 1997 order and the December 8/16, 1997 Supplemental Judgment
referenced the June 27, 1997 order awarding joint custody to the parties. The
December 8, 1997 order noted that the adoption of the December 8/16 Supplemental
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Susan Fenwick as the primary residential custodian, and denied Susan Fenwick's
motion to relocate to Jefferson County with the parties' children . In its order, the trial
court distinguished Wilson v. Messinger,S as applicable only to sole custody
arrangements . The court also reiterated that the best interest of the children would not
be served by the children's relocation with Susan from Nelson County to Jefferson
County because "Stephanie (age 6) and Paige (age 3) have resided in Nelson County
since birth[,) and "[thheir grandparents reside in Nelson County as do most of their close
relatives ."
Susan Fenwick successfully appealed the trial court's ruling that, in effect, had
forced her to choose between her proposed move and retaining her status as primary
residential custodian . In reversing the trial court's decision, the Court of Appeals
reasoned that the evidence was insufficient to find the necessary bad faith or inability to
cooperate required by Mennemeyer v. Mennemeyer,6 and thus held that the trial court
lacked the authority to dictate a custody modification triggered solely by Susan
Fenwick's move to Louisville . Phillip Fenwick challenges that decision in this Court.
Judgment would effectively overrule Susan Fenwick's motion to relocate . Regardless,
the net effect of the December 8, 1997 order and the December 8/16, 1997
Supplemental Judgment was to finally award joint custody to the parties, denominate
Susan Fenwick as the primary residential custodian, and deny her motion to relocate
with the children to Jefferson County .
5 Ky., 840 S .W .2d 203 (1992). Wilson was decided in the context of sole
custody, and in the present case, the trial court indicated it would be inclined to follow
its holding if the arrangement here were one of sole custody . See infra Part III(D) for a
discussion of Wilson.
6 Ky.App., 887 S .W .2d 555 (1994), overruled by Scheer v. Zeigler, Ky.App ., 21
S .W .3d 807 (2000).
B . HUCK v. HUCK
Jennifer L . Huck and Benjamin F . Huck, Jr. were married on January 10, 1987.
Two daughters, Nicole and Jessica, were born of the marriage . The parties separated
in 1993, and Jennifer Huck filed a petition for dissolution of the marriage in the Oldham
Circuit Court on April 27, 1995 . On June 5, 1995 an agreed order was entered
awarding Jennifer temporary custody of the children, "subject to reasonable visitation by
[Benjamin Huck] ." The next year, on March 14, 1996, the trial court dissolved the
parties' marriage but reserved its decision as to permanent custody and other issues for
later consideration.
In an interlocutory order,? entered December 18, 1997, the trial court awarded
the parties joint custody of the children, designated Jennifer Huck as primary residential
custodian, and provided, "[Jennifer Huck] is to determine the residency of the children
and their education." The order further provided, however, that the children's residency
could not be changed from Kentucky absent the parties' agreement or the court's
approval :
No . 4. The Court finds that Kentucky is the home state of
the children and directs that neither parent is to remove the
7 Although not designated as interlocutory, other matters remained for the trial
court's consideration . CR 54 .02(1) .
8 The trial court employed the term "primary custodian ." This is undoubtedly a
misnomer because the trial court awarded joint custody. Aton v. Aton, Ky.App ., 911
S .W.2d 612, 615 (1995) ("There can be no "primary custodian" in the joint custody
context. Joint custody prohibits a court from selecting a primary custodian from two
joint custodians. Such an act annihilates shared decision-making, a fundamental
principle of joint custody. Although the statement quoted above is a distortion of the
law, the Chalupa [v. Chalupa , Ky., 830 S .W .2d 391 (1992)] opinion reiterates that
although one parent may have primary physical possession, the major decision-making
is shared ."). Accordingly, it is apparent that the trial court intended to designate
Jennifer Huck as the primary residential custodian .
children from the State of Kentucky with the intent to
establish a separate residence, absent an agreement
between the parties or as otherwise Ordered by the Court.
This finding by the Court will avoid one party and/or the
children being detrimentally impacted by a possible change
of residency without prior agreement as to how contacts are
to be handled .
Benjamin Huck's parents owned the parties' marital residence, and Jennifer
continued to reside there with the children until Benjamin's parents required them to
move. They then moved to Jennifer's parents' residence, which was also in Oldham
County . Jennifer's father, however, had recently retired, and her parents were in the
process of moving to Collegedale, Tennessee.
For a variety of reasons - including (1) the fact that Jennifer Huck and her
children could live rent-free in a house that Jennifer's parents had purchased for her in
Collegedale, (2) Jennifer's desire to have her children instructed in a Seventh Day
Adventist school located in Collegedale, 9 (3) improved employment opportunities, 10
and (4) the support of her family - Jennifer wished to move to Collegedale with the
children and filed a motion with the trial court on June 1, 199811 for leave to do so. In
her motion, she offered to share the transportation expenses for the children to visit
with Benjamin in Oldham County and to amend the present time-sharing schedule so
that the children would spend additional time with their father during their visits with him.
9 Apparently, a Seventh Day Adventist school was also available in Oldham
County .
10 Jennifer Huck had worked for her father at a medical clinic in Oldham County,
and apparently, a job was still available to her there even after her father left. While in
Collegedale, Jennifer Huck, apparently, secured a job and enrolled in Southern
Adventist University, with the hope of improving her employment opportunities with a
college degree .
11 This motion is later referred to by Jennifer as being filed on May 29, 1998 .
Jennifer Huck's relocation motion was noticed for a hearing on June 12, 1998,
but, due to the trial judge's illness, the hearing was postponed until September 16,
1998. However, on July 15, 1998, Jennifer filed a notice to advise the trial court that
the children's school in Tennessee was to begin on August 11, 1998 . The notice stated
that it "supplements the Notice-Motion-Order filed on her behalf [on] May 29, 1998, in
which the Court was advised that [she] would be moving from Oldham County to
Chattanooga[.]" 12 Thus, Jennifer contends that both the trial court and Benjamin
became aware that she and the children would be moving to Collegedale in time for the
children to begin attending school on August 11, 1998.
Following Jennifer's arrival in Tennessee with the children, Benjamin filed a
motion to hold Jennifer in contempt for violating the December 1997 order by removing
the children from Kentucky without his agreement or the trial court's approval . After a
show-cause hearing held on August 28 and September 2, 1998, the trial court found
that Jennifer had moved "not as a result of a job reassignment, a remarriage and
transfer, or other factors that were beyond [her] control[.]" The trial court found Jennifer
in contempt after determining "that [she] has not advanced sufficient compelling and
necessary reasons for the relocation to the state of Tennessee" and that "there is no
agreement by [Benjamin Huck] nor a Court Order in place allowing her to do so[.]" The
court provided, however, that Jennifer could purge herself of contempt by returning the
children to Oldham County and enrolling them "in their previous schools not later than
Monday, September 28, 1998." By order entered September 18, 1998, all prior
1 2 Collegedale is located in the Chattanooga area .
interlocutory orders, including those relating to custody of the children and to Jennifer's
motion to relocate, were made final and appealable .
Jennifer was unsuccessful in her appeal of the trial court's denial of her request
to relocate . While appropriately acknowledging that the trial court could not prevent
Jennifer from "seeking employment, marrying, or becoming involved in other
circumstances which would result in a move from the Commonwealth of Kentucky," the
Court of Appeals affirmed the trial court's ruling denying Jennifer's motion to relocate
with the children . The Court of Appeals reasoned that the trial court continued to retain
jurisdiction to review custody and, "the prospect of a move out of state may qualify as a
change in circumstance which could result in a modification of custody, provided that
the statutory guidelines in KRS 403 .340 are followed ." Accordingly, the Court of
Appeals held that the trial court did not err in restricting Jennifer's ability to move the
children out of state and thus affirmed the trial court's ruling .13 Jennifer now appeals to
this Court.
III. ANALYSIS
A. JOINT CUSTODY
The legislature has authorized Kentucky trial courts to make an award of joint
custody "if it is in the best interest of the child ." 4 This Court has declined to enunciate
By order entered August 14, 2000, the trial court "reaffirm[ed] the imposition of
joint custody" and its "designation of primary care custodian and secondary custodian,"
and denied Jennifer Huck's request that the children be returned to her primary care
and also her request for leave to take the children and return to Tennessee . Jennifer
Huck had been granted intermediate relief by the Court of Appeals; however, she
purged herself of contempt by returning the children to Oldham County.
13
14
KRS 403.270(5).
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a preference for joint custody, 15 but, instead, has held that 'joint custody must be
accorded the same dignity as sole custody and trial courts must determine which form
would serve the best interest of the child ." 16 And, to ensure meaningful application of
the best-interest standard in individual cases, the legislature has set forth numerous
factors for a trial court to consider in its determination of what type of custody
arrangement will best serve the child's interests . 17 In addition to these statutory
15 Squires v. Squires, Ky., 854 S.W.2d 765, 769 (1993) ("[W]e stop short of
endorsing the Chalupa preference for joint custody, i .e. "consider joint custody first[ ].").
We would note, however, that by statute the court is required to give "equal
consideration" to each parent, KRS 403.270(2), and therefore, arguably, the legislature
intended for the trial court, at least, to begin with a preference for joint custody when it
authorized the granting of joint custody.
16 Id . at 770
17 KRS 403 .270(2):
(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. 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 custody;
(b)
The wishes of the child as to his custodian ;
(c)
The interaction and interrelationship of the
child with his parent or parents, his siblings,
and any other person who may significantly
affect the child's best interests ;
(d)
The child's adjustment to his home, school,
and community;
(e)
The mental and physical health of all
individuals involved ;
(f)
Information, records, and evidence of domestic
violence as defined in KRS 403 .720 ;
(g)
The extent to which the child has been cared
for, nurtured, and supported by any de facto
custodian ;
(h)
The intent of the parent or parents in placing
the child with a de facto custodian; and
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considerations, this Court has noted that the likelihood of future cooperation between
the parents regarding decisions pertinent to raising the child is a relevant factor in
determining whether to award joint custody . 18
Our statutes do not define "joint custody." Thus, the parties' custody
agreement 19 will often define it, or the trial court's decree will explain in detail what the
court intends by its award of joint custody . As such, the parties' agreement or the
court's decree might well require joint decision-making on all major issues, but equal
decision-making power is not required for joint custody, and parties or trial courts are
free to vest greater authority in one parent even under a joint custody arrangement. In
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.
18 Squires v. Squires, supra note 15 at 769 ("By what standard then should a trial
court determine whether joint custody should be granted? Initially, the court must
consider those factors set forth in KRS 403.270([2]) . By application of these, the child
whose custody is being litigated is individualized and his or her unique circumstances
accounted for. In many cases, appropriate consideration of KRS 403 .270([2]) may
reveal the result which would be in the child's best interest. Thereafter, we believe a
trial court should look beyond the present and assess the likelihood of future
cooperation between the parents .").
19
KRS 403.180(1) ("To promote amicable settlement of disputes between
parties to a marriage attendant upon their separation or the dissolution of their
marriage, the parties may enter into a written separation agreement containing
provisions for maintenance of either of them, disposition of any property owned by
either of them, and custody, support and visitation of their children.").
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fact, it is not unusual for the parties or the court20 to assign the authority for certain
decisions solely to one party, e .-q ., one parent might be allocated the sole power to
determine issues regarding education - as occurred in Jennifer and Benjamin Huck's
case - and the other parent might have the final say on health care . 21 However, unlike
the decision to award joint custody, a trial court's decisions regarding the allocation of
decision-making authority between the parents cannot be based on the best interest of
the child because the trial court may assign a major child-rearing decision solely to one
party only if it finds, after a hearing, that the failure to assign the authority for a childrearing decision solely to one party will endanger the child's physical health or
significantly impair the child's emotional development. 22
Sometimes, astute, forward-thinking parents will recognize when drafting a jointcustody agreement that even parents with the best of intentions will, from time to time,
Squires v. Squires, supra note 15 at 769 (1993) ("The Chalupa decision made
a number of points worthy of repetition here . First, it noted that even when joint custody
is awarded, the court may designate where the child shall usually reside, and we
declare that the court may make such other orders as are necessary to properly
effectuate joint custody . Chalupa also recognized that joint custody envisions shared
decision-making and extensive parental involvement in the child's upbringing, and in
general serves the child's best interest." (emphasis added)) . Cf. KRS 430.330(1)
("Except as otherwise agreed by the parties in writing at the time of the custody decree,
the custodian may determine the child's upbringing, including his education, health
care, and religious training, unless the court after hearing, finds, upon motion by the
noncustodial parent, that in the absence of a specific limitation of the custodian's
authority, the child's physical health would be endangered or his emotional
development significantly impaired .").
20
21 See Shraberg v. Shraberg , Ky., 939 S.W.2d 330, 331 (1997) (the parties
agreed for the wife to have sole custody ; however, the trial court "granted joint custody
with [the wife] making decisions as if she were sole custodian") .
22
KRS 430.330(1).
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reach an impasse regarding a shared decision regarding their child .23 Thus, it is not
uncommon for parents to insert a "tie-breaker" provision in their agreement to resolve
such differences of opinion . One type of tie-breaker is referred to as "final decisionmaking authority," where final authority as to a child-rearing decision is vested in one
parent or a third-party in the event that the parents are unable to reach jointly an
agreement as to the appropriate decision . 24 Thus, when the parties reach an impasse
after making good faith efforts to resolve the matter, 25 the parent or third party vested
with final decision-making authority will make the decision, and judicial intervention is
unnecessary.
Where the parties or the trial court have not defined joint custody and have thus
left it open to interpretation by the court, Kentucky's appellate courts have generally
defined the term as an arrangement in which both parents jointly participate in major
23
Squires v. Squires, supra note 15 at 771 (Liebson, J . dissenting) ("Social
science data amassed since the advent of the joint custody experiment some 20 plus
years ago studying the effects of joint custody awards demonstrates overwhelmingly
that except for 'those few, exceptionally mature adults who are able to set aside
animosities in cooperating for the benefit of their children,' joint custody is not a problem
solver, but a pernicious problem causer.").
24 Other types of "tie-breakers" include submitting to mediation or simply going
back to court. Cf. Burchell v. Burchell , Ky.App ., 684 S .W.2d 296, 300 (1984) ("If, as in
the instant case, the parties to a joint custody agreement are unable to agree on a
major issue concerning their child's upbringing, the trial court, with its continuing
jurisdiction over custody matters, must conduct a hearing to evaluate the circumstances
and resolve the issue according to the child's best interest.") .
25 "[A] n
agreement granting 'final decision-making power' to one of the parents
would implicitly require that parent to exercise such power in good faith." Graham &
Keller, supra note 3 at § 21 .28 (2 nd ed . West Group 2003 Pocket Part).
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decision-making concerning their child .
health care, and religious training .
26
Major decisions include the child's education,
27
Although joint custody consists of both decision-making authority and actual
physical custody of the child, 28 joint custody, in its essence, contemplates shared
decision-making rather than delineating exactly equal physical time with each parent. 29
In other words, decision-making and actual physical custody are not coextensive . And
thus, in a joint custody arrangement, unless otherwise agreed to by the parties or
decreed by the court, 30 "both parents have equal rights and responsibilities for major
26
Squires v. Squires , supra note 15 at 769 ; Aton v. Aton , supra note 8 at 614
("Joint custody is an arrangement in which both parents e uall share decision-making
authority concerning major areas of their child's upbringing." (emphasis in original)) ;
Chalupa v. Chalupa , supra note 8 at 393 ("Joint custody recognizes that, although one
parent may have primary physical possession of the child, both parents share the
decision making in major areas concerning the child's upbringing, such as which school
to attend, etc ., a role traditionally enjoyed by both parents during the marriage .");
Burchell v. Burchell , supra note 24 at 299 ("Joint custody is an arrangement whereby
both parents share the decision making in major areas concerning their child's
upbringing, a role traditionally enjoyed by both parents during the marriage, but which is
usually reposed solely in one parent following dissolution ."); Graham & Keller, supra
note 3 at § 21 .28 (2d ed . 1997) ("At a minimum joint custody involves parental
consultation on significant choices to be made with regard to child rearing."); 24 Am Jur
2d, Divorce and Separation § 940 ("Joint custody allows parents to have an equal voice
in making decisions and recognizes the advantages of shared responsibility for raising
children.") .
27
Cf. KRS 403.330(1) ("The custodian may determine the child's upbringing,
including his education, health care, and religious training[.]").
Louise Graham, The Kentucky Law Survey. Family Law, 86 KY.L .J . 795, 826
(1997-98).
28
29 Squires v. Squires , supra note 15 at 769; Aton v. Aton , supra note 8 ; Chalupa
v. Chalupa , supra note 8.
30 Although the parties may do so by agreement, we additionally recognize that
the trial court may designate one parent the sole right to make certain major decisions
while granting both parents equal rights and responsibilities for other major decisions.
See supra notes 20-22 and accompanying text.
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decisions concerning their child including, but not limited to, education, health care, and
religious training, and the parents will consult with each other on these major
decisions ." 31 Understandably, however, minor day-to-day decisions concerning the
child will, as a matter of necessity, be made by the parent with whom the child is
residing at the time .
In awarding joint custody, the court must determine, based on the child's best
interest, how the parents will share physical custody of the child. And, we would again
note that an award of joint custody does not require an equal division of time with each
parent; 32 rather, it means that physical custody is shared by the parents in a way that
assures the child frequent and substantial contact with each parent under the
circumstances . If the parents continue to reside in close proximity to each other postdissolution, meaningful time-sharing should not be a problem . However, if one or both
parents relocate some distance from each other, e.g., 50 miles or more, 33 the distance
31
This language is taken from the report of the 1998-1999 Special Task Force
on Parenting and Child Custody, Research Memorandum (Legislative Research
Commission 2000) . In addition, other states use similar language in defining the
parameters of joint legal custody . See 1996 Ala . Acts § 30-3-151(2) (providing that joint
legal custody means both parents share equal authority to make decisions concerning
education, health care and religion) ; 23 PA. CONS . STAT. ANN . § 5302 (defining legal
custody as shared decision making in the arenas of medical care, religion and
education) (West 2001); VT. STAT. ANN . tit. 15, § 664(1)(A) (1989) (outlining the
parameters of legal responsibility as matters concerning education, medical and dental
care, religion and travel arrangements) .
32
Squires v. Squires, supra note 15 at 769.
33
The 1998-1999 Special Task Force on Parenting and Child Custody proposed
that "the court . . . shall include as a condition of any custody or visitation order a
requirement that sixty (60) days advance written notice be given to any other party by
any party intending to relocate more than fifty (50) miles away or outside the
Commonwealth ." Report of the 1998-1999 Special Task Force on Parenting and Child
Custody, Research Memorandum No . 490, Kentucky Legislative Research
Commission .
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itself complicates the arrangement, and the parties or the trial court, again focusing
upon the child's best interest, will need to devise a time-sharing schedule - e.g ., one
incorporating telephone or e-mail access, and longer periods of time-sharing - that will
assure frequent, continuing, and meaningful contact with both parents to the greatest
extent possible under the circumstances . We recognize that in most cases the
frequency of physical time-sharing will necessarily decrease as the distance between
the parents increases .
B. PRIMARY RESIDENTIAL CUSTODIAN
A child cannot simultaneously reside with both parents, and in most cases, the
child will spend more time with one parent than the other - a fact that, in many cases,
mirrors the family's situation prior to the parents' separation . Accordingly, in joint
custody arrangements, the parties will often agree, or the court will designate, that one
of the parents will act as the "primary residential custodian ." 34 Although this term - like
"joint custody" itself - has not been statutorily defined in Kentucky, it is generally
employed by attorneys and courts alike to refer to the party with whom the child will
primarily reside . In such situations, the other parent is awarded what is referred to as
'
, visitation," "time-sharing," or "parenting time" with the child .35 However, even when
34
Occasionally, the parties will agree that one parent shall be the primary
residential custodian for part of the year and the other parent shall be so designated for
the remainder of the year . This is more common when the child will actually reside with
each parent for one-half of the year.
Cf. Drury v. Drury, Ky.App., 32 S .W.3d 521, 523 (2000) ("The court found that
both parties should have joint custody of the children, and it designated Kimberly as the
residential custodian . The trial court awarded Kevin visitation with the children based
upon the visitation schedule adopted in that circuit .") ; Scheer v. Zeigler, supra note 6 at
808 ("The parties were awarded joint custody of their son, who was five years old at the
time . Donna was designated as the child's primary caretaker, although the child
apparently spent more time in the residence of his father than in the residence of his
- 1 735
joint custody involves essentially equal physical custody - as in Susan and Phillip
Fenwick's case - one party may nevertheless be designated the primary residential
custodian for other purposes. 36
While joint custodians, as previously stated, share major decision-making on all
child-rearing decisions unless the parties or the court elect otherwise, designating a
party as the primary residential custodian logically confers on that party: (1) the primary
role in minor day-to-day decisions concerning the child; (2) the responsibility for
providing a residence, i.e. , a "home base," for the child, and (3) the normal routine care
and control of the child .
Such designation may also carry with it additional legal
significance, ec .., a dependency tax deduction,37 residency for school purposes, 38 and
child support. 39 As such, a trial court must again consider the child's best interests in
mother ."); Stroud v. Stroud , Ky.App ., 9 S .W .3d 579 (1999) ("Beth and Irvin were
awarded joint legal custody of their children . . . . with Beth to have primary physical
custody ."); Gullett v. Gullett , Ky.App., 992 S.W.2d 866, 869 (1999) ("Under the
agreement, inter alia, the parties were to have joint custody of Jacob, with Tammie
being the primary residential custodian ; Michael was to have visitation rights pursuant to
the Greenup Circuit Court uniform visitation schedule ; and Michael was to pay child
support ."), Aton v. Aton , supra note 8 at 613-614 ("The parties agreed to share joint
custody of the child ; however, they contested who should be the primary residential
custodian . The commissioner awarded primary residential custody to the father.");
Chalupa v. Chalupa , supra note 8 at 393 ("[E]ven in joint custody cases, there is a
primary custodian and the issue is not where the child stays .").
36
Additionally, when the parties' joint custody agreement contains a "tie-breaker"
provision, the agreement will typically provide that the parent that the parties have
designated as the primary residential custodian shall have final decision-making
authority. This is yet another reason that parties in joint custody arrangements will
designate a primary residential custodian .
37
26 USCA § 152(e) .
38 KRS 158 .030 ; KRS 158.120(1); KRS 159.010(1).
39
KRS 403.211 & .212; Snow v. Snow , Ky.App ., 24 S .W .3d 668 (2000); Brown
v. Brown, Ky.App ., 952 S .W.2d 707, 708 (1997).
- 1 8-
connection with its decision to designate one of the parties as the primary residential
custodian .
C. MODIFICATION OF JOINT CUSTODY
Largely because of divergent decisions from Kentucky's appellate courts, the
issue of when and under what circumstances a joint custody arrangement may be
modified remains unsettled in Kentucky. The opportunity to address the issue was first
presented to this Court in Carnes v. Carnes .40 In that case, the parties were granted
joint custody of their children, the mother was granted "the actual physical custody of
the children for the greater part of the time, with the children to live with her," and the
father was granted "the right to have the children with him at reasonable times and for
reasonable periods of time." Subsequently, the father successfully sought to modify
joint custody and was awarded sole custody of the children. Although this Court, in
upholding the trial court's modification of custody, recognized that the modification
issue came within the purview of the general custody modification statute, KRS
403 .340, 41 Carnes possesses scant, if any, precedential value as to the standard for
40
Ky. , 704 S .W .2d 207 (1986).
41
In 1986, when Carnes was rendered and until its amendment in 1992, KRS
403.340 read, in pertinent part, as follows :
No motion to modify a custody decree may be made
earlier than 2 years after its date on the basis of
affidavits that there is reason to believe that the
child's present environment may endanger seriously
his physical, mental, moral, or emotional health .
If a court of this state has jurisdiction pursuant to the
Uniform Child Custody Jurisdiction Act, the court shall
not modify a prior custody decree unless it finds,
upon the basis of facts that have arisen since the
prior decree or that were unknown to the court at the
time of entry of the prior decree, that a change has
-19-
modification of joint custody because the Court characterized the custody joint award in
Carnes as being "[i]n actuality" an award of sole custody to the mother.42 Because of
this characterization, Carnes has been virtually ignored in subsequent cases addressing
the modification of joint custody issue.
With the ink barely dry on the Carnes decision, the Court of Appeals rendered
Benassi v. Havens43 a month later and squarely addressed the issue of modification in
the joint custody context. In Benassi , the Court held that when joint custodians
"subsequently disagree," 44 "modification should be made anew under [KRS 403.270] as
occurred in circumstances of the child or his
custodian, and that the modification is necessary to
serve the best interests of the child. In applying these
standards, the court shall retain the custodian
appointed pursuant to the prior decree unless :
(a)
The custodian agrees to the modification ;
(b)
The child has been integrated into the family of
the petitioner with the consent of the
custodian ; or
(c)
The child's present environment endangers
seriously his physical, mental, moral or
emotional health, and the harm likely to be
caused by a change of environment is
outweighed by its advantages to him .
42
As noted, this was the first case before this Court to address modification of
joint custody, and although joint custody had been authorized by the legislature six (6)
years before, 1980 Ky. Acts ch. 158, § 1, the concept of joint custody was still in its
infancy in Kentucky at the time of the Carnes decision . At that time, Kentucky appellate
courts had rendered just one decision that described, in general terms only, the
meaning of an award of joint custody . Burchell v . Burchell , supra note 24 . Accordingly,
the characterization by the Carnes Court of the custody award as not an award of joint
custody to the parents, but an award of custody to the mother only is likely incorrect because the essence of joint custody is shared decision-making, see supra Part III(A) but understandable . The limited facts set out in the Carnes opinion do not reveal
whether the parents shared in child rearing decision-making . If so, then the custody
award was mischaracterized by the Court .
43
Ky .App ., 710 S.W.2d 867 (1986), overruled in Scheer v. Zeigler, supra note 6 .
44
Id . at 869 .
-20-
if there had been no prior custody determination . 1145 In the view of the Benassi Court,
Kentucky's custody modification statutes, KRS 403 .340 and KRS 403 .350,46 are
applicable only to modifications of sole custody, and the Court held that a modification
of joint custody came within the purview of KRS 403.270 . The Court did not mention
Carnes or cite to any authority in support of its holding ; rather, the Court proclaimed that
"[a]s a practical matter, joint custody is no award at all when considering modification of
the arrangement."47 Benassi was followed three years later by Erdman v. Clements,48
in which the Court of Appeals, citing Benassi , again held that, upon disagreement of the
joint custodians, the trial court should conduct a de novo hearing to determine custody
as if it had made no prior custody determination .
45
Id.
Since its original enactment in 1972, except for an amendment in 1998 to add
the one sentence regarding de facto custodians, KRS 403.350 has read as follows :
46
A party seeking a temporary custody order or modification
of a custody decree shall submit together with his moving
papers an affidavit setting forth facts supporting the
requested order or modification and shall give notice,
together with a copy of his affidavit, to other parties to the
proceeding, who may file opposing affidavits . If a court
determines that a child is in the custody of a de facto
custodian, the court shall make the de facto custodian a
party to the proceeding . The court shall deny the motion
unless it finds that adequate cause for hearing the motion is
established by the affidavits, in which case it shall set a date
for hearing on an order to show cause why the requested
order or modification should not be granted .
47
Benassi v. Havens , supra note 43 at 869.
48 Ky.App ., 780 S .W.2d 635 (1989) .
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Next, in Chalupa v. Chalupa ,49 the Court of Appeals addressed modification of
joint custody in the context of an appeal from an award of sole custody and a denial of
joint custody. The Court stated that "[j]oint custody can be modified if a party is acting
in bad faith or is uncooperative[,]" and that "[t]he trial court at any time can review joint
custody and if a party is being unreasonable, modify the custody to sole custody in
favor of the reasonable parent ."50 Thus, Chalu a appeared to change the standard for
modification of joint custody from one of simple disagreement by the parties to one
requiring a finding by the trial court that one of the parties is acting in bad faith or being
uncooperative .
Subsequent to the Court of Appeals's decisions in Benassi. Erdman , and
Chalupa , this Court spoke to the modification issue in an appeal from a judgment
granting joint custody . In Squires v. Sguires, 51 we primarily addressed the appropriate
use of joint custody, but also spoke to the problem of uncooperative joint custodians. In
so doing, we indicated approval of Chalupa's statement that "[j]oint custody can be
modified if a party is acting in bad faith or is uncooperative[,]" 52 and added that "[i]t
should not be overlooked that to achieve such cooperation, the trial court may assist
the parties by means of its contempt power and its power to modify custody in the event
of a bad faith refusal of cooperation ."53 Notably, however, we rejected Benassi's
49 Supra note 8 .
50
Id . at 393.
51
Supra note 15 .
52
Id . at 769 (quoting Chalupa , supra note 8 at 393) .
53
Id . at 769.
-22-
description of an award of joint custody as "no award at all" by declaring that "joint
custody must be accorded the same dignity as sole custody ."54 We therefore
recognized that an award of joint custody is indeed a custody award just the same as
an award of sole custody because both are custody awards under the same statute KRS 403 .270.
Then, the year after Squires , the Court of Appeals once again addressed the
modification issue. In Mennemever v. Mennemeyer ,55 the husband sought to modify
joint custody because the wife, whom the parties had designated to have physical
custody of the parties' child, intended to relocate with the child to another state for
employment purposes . The trial court modified custody, but instead of awarding the
husband sole custody as he requested, continued the joint custody arrangement, but
modified it by transferring physical custody of the child from the wife to the husband .
On appeal, however, the Court of Appeals, citing both Chalu a and S uires, reasoned
that "the trial court may intervene to modify a previous joint custody award only if the
court first finds that there has been an inability or bad faith refusal of one or both parties
to cooperate ." 56 And, because the husband failed even to allege an inability or bad
faith refusal of the parties to cooperate," the Mennemever Court held, "that the trial
court erred by modifying its joint custody award by changing the physical custody of the
child from [wife] to [husband] ." 57 Thus, with Mennemever, it appeared that the appellate
54
Id . at 770.
55
Supra note 6 .
56
Id. at 558 .
57
Id. at 558 .
-23-
courts had finally settled on the modification standard for a joint custody arrangement,
i .e., first, a threshold finding of an inability or bad faith refusal of one or both parties to
cooperate, 58 and then, and only then, evaluation of the need for modification in
accordance with the best interest of the children upon consideration of the factors that
are enumerated in KRS 403.270 . 59
The issue's settlement appeared short lived, however. The following year, in
Aton v. Aton ,60 the Court of Appeals, relying on Benassi and Erdman , ignored the
threshold standard for modification only recently established by Chalupa , Squires and
Mennemeyer and held that "any time the joint custodians come before the trial court,
calling the joint custody arrangement into question, the court should review the custody
status as if no custody determination had been made, in accordance with the best
interests of the child ."61 But, then, in several cases rendered after Aton , etc . , Stinnett v.
Stinnett, 62 Jacobs v. Edelstein ,63 Briggs v. Clemons ,64 and Stroud v. Stroud ,65 the
58
"[C]ooperation" [means] "willingness to rationally participate in decisions
affecting the upbringing of the child ." _Id. at 769; Squires v. Squires , supra note 15 ;
Briggs v. Clemons , Ky.App ., 3 S .W .3d 760 (1999).
59 Mennemever v. Mennemever, supra note 6 at 558 .
60
Supra note 8.
61
Id . at 615 .
62
Ky.App ., 915 S.W.2d 323 (1996).
Ky .App ., 959 S .W .2d 781(1998) (although the Court ruled that the
Mennemever threshold did not have to be met in order to address all issues that may
arise in the framework of joint custody, the Court still adhered to the Mennemever
threshold requirement before allowing modification of the basic award of joint custody
and the physical possession of the child) .
63
64
Supra note 58 (Although reaffirming the Menemeyer threshold standard, the
Court held, however, that "if a party to joint custody can prove that the child's present
-24-
Court of Appeals returned to Mennemeyer's requirement of a threshold showing as a
precondition to modification .
However, after six years of faithful adherence to Mennemever , the Court of
Appeals, sitting en banc in Scheer v. Zei_gler,66 "conclude[d] that the approach of
Benassi to joint custody was flawed and that it led to the improper threshold
requirement of Mennemever."67 In support of its conclusion, the Court appropriately
recognized S uires's holding that joint custody is a form of custody :
When the Benassi court held that joint custody is not an
award of custody at all, that KRS 403 .340 and KRS 403.350
do not apply to joint custody modifications, and that joint
custody modification motions should be heard de novo in
accordance with KRS 403.270, it ignored the reality that joint
custody is, in fact, a form of custody . Not only has joint
custody been awarded by courts as a form of custody for a
number of years, but it has also been recognized and
authorized by the General Assembly as a form of custody
since 1980. . . . [T]he Kentucky Supreme Court's decision in
Squires . . . recognized that "so long as KRS 403 .270(4)
remains the law of Kentucky, joint custody must be accorded
the same dignity as sole custody and trial courts must
determine which form would serve the best interest of the
child ." Therefore, we conclude that Benassi was wrong in
not recognizing joint custody as a form of custody.68
environment in the custody of the other parent endangers his physical, mental, or
emotional health, that is sufficient to likewise modify joint custody, even if the evidence
establishes that the parties have been cooperating in good faith with one another .")
This adoption of the KRS 403 .340 standard for joint custody cases - a standard that
the Court had held in Benassi only applied to sole custody modification - was
necessary, the Court stated, "to fill the gap in the law as it applies to those situations
where the parents in a joint custody arrangement are cooperating with each other, but
the child is nevertheless endangered by his present environment with one of the
parents ." Id . at 762 .
65
Supra note 35.
66
Supra note 6.
67
Id . at 811 .
68
Id .
-2 5-
Accordingly, the Scheer Court explicitly overruled Benassi and Mennemever and held
that the standard utilized in connection with modifications in the sole custody context is
equally applicable to modification of awards of joint custody :
Rather than continue the flawed premise of Benassi and
the subsequent efforts of Mennemever and its progeny to
correct it, we overrule Benassi and Mennemever . We hold
that joint custody is an award of custody which is subject to
the custody modification statutes set forth in KRS 403.340
and KRS 403.350 and that there is no threshold requirement
for modifying joint custody other than such requirements as
may be imposed by the statutes .69
Because, in Squires, this Court recognized that joint custody is on par with sole
custody, we agree with Scheer's holding that joint custody is itself a custody award and
thus any modification must come within the purview of KRS 403 .340 and .350. When
the General Assembly amended KRS 403 .270 to authorize joint custody, the statutes
that governed the modification of custody were already on the books, and, because the
General Assembly took no steps to enact additional statutes governing modification of
joint custody awards, the legislature must have intended those prior provisions to apply
equally to joint custody .
In addition, we would also observe that the 2001 General
Assembly amended KRS 403.340 to expressly encompass joint custody
modifications, 70 and this subsequent enactment further supports the conclusion that
joint custody modification is to be governed by the custody modification statutes .71
69 Id . at 814.
70
2001 Ky. Acts ch 161, § 2, codified at KRS 403 .340(1) ("As used in this
section, "custody" means sole or joint custody, whether ordered by a court or agreed to
by the parties.").
71
See Kotila v. Commonwealth , Ky.,
S .W .3d
enactment clarified legislative intent as to prior enactment) .
-26-
(2003) (subsequent
To summarize, joint custody modification falls exclusively within the purview of
KRS 403.340 and .350, and the previous judicially-created "gateways" to joint custody
modification are inapplicable . Thus, joint custody is not subject to modification at the
mere whim of a party or simply because the parties disagree as to a child-rearing
decision . Nor is the lack of cooperation by one or both parties grounds for modification
of joint custody unless it rises to the statutory level required for modification of custody
under KRS 403 .340.
D. RELOCATION BY PRIMARY RESIDENTIAL CUSTODIAN
Although, [n]ationally, "relocation of a custodial parent is a difficult and divisive
issue[,]" 72 the relocation issue, at least in the context of sole custody, has been
addressed and settled in Kentucky for more than a decade. In Wilson v. Messinger,73
the mother was awarded sole custody of the parties' child and the father was granted
visitation . Because both of the child's parents resided in the Raceland, Kentucky area,
the child continued to maintain close contact with both parents . Later, however, the
mother proposed a move to West Virginia with the child, and both the child and her
father objected to the proposed relocation . The father asked the trial court to modify its
prior decree by designating him as the child's custodian, and he produced evidence of
a certified social worker's assertions that the child suffered signs of stress attributable
to the pending relocation of her custodial parent . At that time, KRS 403.340(2) read as
follows:
If a court of this state has jurisdiction pursuant to the
Uniform Child Custody Jurisdiction Act, the court shall not
72
Graham & Keller, supra note 3 at § 21 .24 .
73
Supra note 5 .
-27-
modify a prior custody decree unless it finds, upon the basis
of facts that have arisen since the prior decree or that were
unknown to the court at the time of entry of the prior decree,
that a change has occurred in circumstances of the child or
his custodian, and that the modification is necessary to
serve the best interests of the child . In applying these
standards, the court shall retain the custodian appointed
pursuant to the prior decree unless :
(a)
The custodian agrees to the modification ;
(b)
The child has been integrated into the family of the
petitioner with the consent of the custodian ;
(c)
The child's present environment endangers seriously
his physical, mental, moral, or emotional health, and
the harm likely to be caused by a change of
environment is outweighed by its advantages to
him . 74
The trial court denied the father's modification motion after finding that the case did not
come within the ambit of either subsections (a) or (b), and that the father failed to meet
the burden of proof required by subsection (c). The Court of Appeals upheld the trial
court's ruling, and, on discretionary review, we affirmed the decision of the Court of
Appeals . We observed that the Court of Appeals had cited Quisenberry v.
QuisenberrV75 for the principle that KRS 403.340(2) "intend[ed] to inhibit further
litigation initiated simply because the noncustodial parent, or the child, or both, believe
that a change in custody would be in the child's best interest."76 We also referenced,
approvingly, the Court of Appeals's statement that, "a custodial parent cannot, in
today's mobile society, be forced to remain in one location in order to retain custody." 77
Like the trial court, we held that the father had failed to meet the burden imposed on
74
KRS 403.340(2) (as originally enacted, 1972 Ky. Acts ch . 182, § 24).
75
Ky . , 785 S .W.2d 485 (1990).
76
Id . at 487.
77
Wilson v. Messinger, supra note 5 at 204.
-28-
him under KRS 403 .340(2)(c) "for he has not proven the likelihood of harm to the child if
custody is not modified," 78 and we held that "the record fails to establish that the child's
present environment endangers seriously [the child's] physical, mental, or emotional
health ." 79
In relocation cases decided prior to the enactment of KRS 403 .340, custodial
mothers were allowed to relocate with the parties' child or children (1) because of their
remarriage to men who worked outside of Kentucky, 80 or (2) they "offer[ed] some
plausible reason ." 81 Remarriage itself was viewed as a "compelling" reason to relocate
to the new husband's residence .82 These earlier cases placed the burden on the
relocating custodial parent to justify the move . However, after Wilson and the
enactment of KRS 403.340, a custodial parent's decision to relocate with the children is
78
Id . at 204.
79
Id .
80
Eversole v . Eversole , Ky ., 474 S .W .2d 685 (1971) (custodial mother moved to
Guam where her new husband was stationed) ; Alcorn v. Alcorn , Ky., 388 S .W .2d 578
(1965) (custodial mother's two-year trip to Okinawa with her new husband did not
amount to a change of condition justifying modification of custody) ; Byers v. Byers, Ky.,
370 S .W .2d 193 (1963) (custodial mother planned to take children to South Africa
where she was to remarry) ; Bowman v. Bowman , 313 Ky. 806, 233 S .W.2d 1020
(1950) (remarriage of custodial mother and move to Ohio insufficient to change
custody) .
81
Brumleve v. Brumleve , Ky., 416 S.W.2d 345, 346 (1967) (the court stating,
"[m]ere whim is not enough .").
82
Id . at 346 ("When a divorced mother remarries, it becomes necessary that she
assume the residence of her husband, and the court is left with only the alternative of
permitting the removal of the children to the new husband's residence or denying the
mother custody . Here Appellee can show no such force compelling her to leave the
jurisdiction .").
-29-
presumptively permissible, and a custodial parent may relocate with the children without
prior approval or modification of the joint custody award :
. . . [A] custodial parent - whether joint or sole - is not
required to seek court approval prior to moving to another
location . If one party opposes the move, then the issue
becomes whether the joint custody decree can be
modified .83
Although the relocation will, as a practical matter, impact a non-primary residential
custodian's ability to share physical custody of the children, the relocation does not
extinguish the non-primary residential custodial parent's rights with regard to shared
physical custody, nor would the relocation affect the essential nature of the joint
custody - i.e., the parents' shared decision-making authority. Thus, a non-primary
residential custodian parent who objects to the relocation can only prevent the
relocation by being named the sole or primary residential custodian, and to accomplish
this re-designation would require a modification of the prior custody award . He or she
must therefore show that "[t]he child's present environment endangers seriously his
physical, mental, moral, or emotional health, and the harm likely to be caused by a
change of environment is outweighed by its advantages[ .]"84
Admittedly, Wilson addressed relocation only in the context of sole custody.
However, the Court of Appeals's en banc decision in Scheer addressed relocation in
the context of joint custody . Although Wilson was not cited, the Scheer Court - like the
Wilson Court - held that a request to modify custody because of a proposed relocation
83 Stroud v. Stroud , supra note 35 at 581 .
84 KRS 403 .340(2) (as originally enacted, 1972 Ky. Acts ch. 182, § 24)
(emphasis added) . See also CR 43.01 ("(1) The party holding the affirmative of an
issue must produce the evidence to prove it. (2) The burden of proof in the whole action
lies on the party who would be defeated if no evidence were given on either side.").
-30-
by the parent designated by the trial court as the "primary caretaker' came within the
purview of the general custody modification statute, KRS 403.340, and therefore, the
objecting party was required to meet the more difficult standard thereunder . We agree .
To sum up, when a primary residential custodian gives notice of his or her intent
to relocate with the parties' child, the burden is then upon any party objecting to file a
custody modification motion within a reasonable time and after that, to satisfy the
modification standard of KRS 403 .340 in order to change the designation of primary
residential custodian . If no motion is filed within a reasonable time, the primary
residential custodian may relocate with the parties' child .
E. APPLICATION TO PRESENT CASES
1 . FENWICK v. FENWICK
During the time period relevant to this case, KRS 403.340 provided, in pertinent
pa rt:
If a court of this state has jurisdiction pursuant to the
Uniform Child Custody Jurisdiction Act, the court shall
not modify a prior custody decree unless it finds,
upon the basis of facts that have arisen since the
prior decree or that were unknown to the court at the
time of entry of the prior decree, that a change has
occurred in circumstances of the child or his
custodian, and that the modification is necessary to
serve the best interests of the child . In applying these
standards, the court shall retain the custodian
appointed pursuant to the prior decree unless:
(a)
The custodian agrees to the
modification ;
(b)
The child has been integrated into the
family of the petitioner with the consent
of the custodian ;
(c)
The child's present environment
endangers seriously his physical,
mental, moral or emotional health, and
the harm likely to be caused by a
change of environment is outweighed by
its advantages to him .
-31-
In determining whether a child's present environment
may endanger seriously his physical, mental, moral,
or emotional health, the court shall consider all
relevant factors, including but not limited to :
(a)
The interaction and interrelationship of
the child with his parent or parents, his
siblings, and any other person who may
significantly affect the child's best
interests ;
(b)
The mental and physical health of all
individuals involved ;
(c)
Repeated or substantial failure, without
good cause as specified in KRS
403.240, of either parent to observe
visitation, child support, or other
provisions of the decree which affect the
child, except that modification of
custody orders shall not be made solely
on the basis of failure to comply with
visitation or child support provisions, or
on the basis of which parent is more
likely to allow visitation or pay child
support;
(d)
If domestic violence and abuse, as
defined by KRS 403.720, is found by the
court to exist, the extent to which the
domestic violence abuse has affected
the child and the child's relationship to
both parents.85
Phillip Fenwick objected to Susan Fenwick's motion to relocate on the ground
that relocation does not serve the children's best interests, and the trial court denied her
motion for that reason. This rationale, however, fails to address the standard
necessary for a custody modification . The proposed relocation itself does not implicate
the grounds set forth in KRS 403.340(2)(a)&(b), and thus, Phillip Fenwick was required
to meet the burden imposed under KRS 403.340(2)(c) as it then existed.86 Accordingly,
85
1992 Ky. Acts, ch . 414 § 3. KRS 403 .340 was not amended again until 1998 .
See infra note 93.
86
KRS 403 .340 was amended by the 2001 General Assembly and now reads, in
-32-
pertinent part, as follows :
(3)
(4)
If a court of this state has jurisdiction pursuant to the
Uniform Child Custody Jurisdiction Act, the court shall
not modify a prior custody decree unless after hearing
it finds, upon the basis of facts that have arisen since
the prior decree or that were unknown to the court at
the time of entry of the prior decree, that a change
has occurred in the circumstances of the child or his
custodian, and that the modification is necessary to
serve the best interests of the child . When
determining if a change has occurred and whether a
modification of custody is in the best interests of the
child, the court shall consider the following :
(a)
Whether the custodian agrees to the
modification ;
(b)
Whether the child has been integrated into the
family of the petitioner with consent of the
custodian ;
(c)
The factors set forth in KRS 403 .270(2) to
determine the best interests of the child ;
(d)
Whether the child's present environment
endangers seriously his physical, mental,
moral, or emotional health;
(e)
Whether the harm likely to be caused by a
change of environment is outweighed by its
advantages to him ; and
(f)
Whether the custodian has placed the child
with a de facto custodian .
In determining whether a child's present environment
may endanger seriously his physical, mental, moral,
or emotional health, the court shall consider all
relevant factors, including, but not limited to:
(a)
The interaction and interrelationship of the
child with his parent or parents, his de facto
custodian, his siblings, and any other person
who may significantly affect the child's best
interests ;
(b)
The mental and physical health of all
individuals involved ;
(c)
Repeated or substantial failure, without good
cause as specified in KRS 403.240, of either
parent to observe visitation, child support, or
other provisions of the decree which affect the
child, except that modification of custody
orders shall not be made solely on the basis of
failure to comply with visitation or child support
-33-
Phillip was required to show not only that "[t]he child[ren's] present environment i .e.,
the proposed relocation] endangers seriously [their] physical, mental, moral or
emotional health, but also that the harm likely to be caused by a change of
environment i .e., change of custody to Phillip Fenwick] is outweighed by its advantages
to [them .]"87 Phillip Fenwick failed to meet this burden .
We will not attempt to set forth the evidence in detail because we find it sufficient
to state that Phillip Fenwick's stated and primary reason for objecting to Susan
Fenwick's proposed relocation was that the present time-sharing schedule, which would
be altered to some extent by the proposed relocation, allows the children to see him
and other people with whom the children are close on a regular basis.$$ Although the
"interaction and interrelationship" of the children with their father and other persons
where they now live is a relevant factor in determining the likelihood of harm by the
proposed relocation,s 9 the mere fact that relocation may affect the frequency of Phillip
(d)
provisions, or on the basis of which parent is
more likely to allow visitation or pay child
support;
If domestic violence and abuse, as defined in
KRS 403.720, is found by the court to exist, the
extent to which the domestic violence and
abuse has affected the child and the child's
relationship to both parents.
2001 Ky. Acts, ch . 161 § 2 . Although the 2001 amendment appears to change the
modification standard, that is not an issue in the present cases.
87 Wilson v. Messinger, supra note 5 at 203. . See also Quisenberry, supra note
75 ; Graham & Keller, supra note 3 at § 21 .24.
8 8 Additionally, Phillip Fenwick asserted that Jefferson County is a crime-ridden,
traffic-jammed and pollution-filled area, unsafe for raising young children. As expected,
no evidence was introduced at trial to support this claim.
89 KRS 403.340(3)(a) .
-34-
Fenwick's time-sharing with his children and the children's contact with other persons
does not, standing alone, support a finding that the proposed relocation creates a
likelihood of serious harm to the children . 90 Any move by a custodial parent, even one
of only a short distance in the same community, has the potential to impact the noncustodial parent's personal time with his or her children . To hold that this inherent
effect of relocation constitutes grounds for modification, however, would result in a
blanket denial of relocation whenever the noncustodial parent objected to a proposed
move . We recognize that tradeoffs are inevitable, and further observe that if Susan
Fenwick were forced to relinquish her primary residential custodian designation in order
to move closer to her employment, her time with the children would necessarily likewise
be reduced .
We realize that relocation often causes a hardship or inconvenience on the
noncustodial parent's ability to exercise time-sharing with his or her child, but that fact,
in itself, does not constitute a valid reason to prohibit relocation. Modern American
society is increasingly mobile, 91 and therefore, as the Wilson Court stated, "a custodial
90 Alcorn v. Alcorn , supra note 80 at 580 ("The fact that visitation is made more
difficult for one of the parents does not amount to a change of condition under our
cases.") ; Bowman v . Bowman , supra note 80 at 1022 ("As to the hardship or
inconvenience on the father in exercising his right of visitation with his child living with
her mother in Ohio, that question is answered in Duncan v. Duncan, 293 Ky. [762], 170
S.W .2d 22, 154 A .L .R. 549, where we said that the court must look to the welfare of the
child in awarding custody and not to the inconvenience worked on the father in visiting
his child .").
91
For an excellent discussion that illustrates our increased mobility by statistical
analysis, see Janet M . Bowermaster, Sympathizing with Solomon : Choosing Between
Parents in a Mobile Society, 31 U . of Louisville J. of Fam . L. 791, 795-96 (1992)
(indicating, inter alia, that within four years nearly 75% of custodial mothers relocate) ;
See also William G . Austin, Relocation Law and The Threshold of Harm: Integrating
Legal and Behavioral Perspectives, 34 Fam . L .Q. 63, 65 (Spring 2000). The author
notes :
-35-
parent cannot, in today's mobile society, be forced to remain in one location in order to
retain custody." 92 We agree with this observation in Wilson and would add that the
realities of today's mobile society should also militate against de facto limitations - such
as tying the primary residential custodian designation to willingness to remain in a
particular location - on primary residential custodians' ability to relocate .
Finally, we observe that Susan Fenwick presented valid reasons for moving to
Jefferson County. Her proposed relocation is not motivated by mere whim or for the
purpose of denying Phillip Fenwick time-sharing or curtailing his participation in child
rearing decisions . As we previously noted, the essence of joint custody is shared
decision-making, and there is no reason that Phillip Fenwick cannot still be an active
participant in child-rearing decisions affecting his children. And even though the
frequency of his personal contact with his children will necessarily diminish, the joint
custody itself will remain unaffected by Susan's relocation because he will still be able
to continue sharing substantial time with his children through personal contact and other
means, e .g ., telephone calls, e-mails, and letters .
The strong pattern in family law is to generally allow the
residential parent to move away with the child so long as
satisfactory alternative parenting time arrangements with the
nonresidential parent can be achieved and there are no bad
faith motives for the geographical move . The basis for this
new development of `permissive' relocation law in favor of
the residential parent is a prioritizing of the `new family unit'
constituted by the post-divorce relationship between the
primary care-taker parent and child . It is assumed that the
child's welfare and healthy development are dependent on
continuity in this relationship . (citations omitted) .
92
Wilson v. Messinger, supra note 5 at 204.
-36-
Phillip Fenwick failed to show emotional harm to the children beyond the general
adjustment normally associated with a move . Clearly, he did not prove that the
relocation would seriously endanger them . Accordingly, we hold that the change in the
children's circumstances occasioned by Susan Fenwick's relocation does not rise to the
level required under the statute for a change of custody, and the trial court thus erred
by denying Susan Fenwick's request for relocation approval . We therefore affirm the
Court of Appeals's decision reversing the trial court's denial of Susan Fenwick's
relocation motion .
2. HUCK v. HUCK
KRS 403.340 was amended in 1998 to incorporate provisions relating to de facto
custodians, 93 but the amendment did not otherwise change the statute,94 and did not
affect the disposition of this case because the pertinent parts of KRS 403 .340 set out
above remained the same during the time period relevant to this case .
The trial court prohibited Jennifer Huck from relocating with the children to
Tennessee and held her in contempt because it found that her stated reasons for
moving were not plausible, that the relocation would disrupt the present situation, and
that she was not compelled to relocate by reasons beyond her control:
The Court finds that the reasons advanced by [Jennifer
Huck] for the establishment of new residence and relocation
to the state of Tennessee were solely [her] elective desire
93 "'[D]e 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 ." KRS 403.270(1)(a).
94 1998 Ky. Acts, ch . 250 § 3.
-3 7-
with all factors being within her control and that the reasons
advanced were not those that would be accepted as being
plausible or such a set of circumstances that she was
compelled for reasons beyond her control to relocate .
The Court finds that the relocation to the state of
Tennessee disrupts the previously established joint custody
and the frequency of contact with the parents . . . . The
disruption in the educational process is obvious concerning
established recognition and familiarity with schools and the
extended school supporting network of friends, classmates,
and teachers has been disrupted .
The Court will find based upon all the evidence presented
that [Jennifer Huck] has not advanced sufficient compelling
and necessary reasons for the relocation to the state of
Tennessee and accordingly, in that there is no agreement by
[Benjamin Huck] nor a Court Order in place allowing her to
do so that she is in contempt of Court.
As we have decided today, 95 these findings are not germane to the inquiry in which a
trial court must engage when addressing an objection to a primary residential
custodian's intention to relocate with the parties' children. In order to prevent the
relocation of his children, Benjamin Huck - not Jennifer Huck - had to demonstrate that
a change in the joint custody decree was warranted by showing not only that "[t]he
child[ren's] present environment endangers seriously [their] physical, mental, moral or
emotional health, [but also that] the harm likely to be caused by a change of
environment is outweighed by its advantages to [them][.]"96 His evidence falls far short
of meeting this burden .
Benjamin Huck's basis for objecting to Jennifer Huck's relocation was two-fold :
one, the move would "effectively cut-off meaningful parent-children relations between
95 See Part III(D), supra .
96 Wilson v . Messinger, supra note 5 at 203 .
-38-
my children and [him]," and two, the trial court's judgment prohibited removal of the
children from Kentucky absent an agreement of the parties or approval by the trial
court. Neither of these objections is valid . First, although the children's relationship
with their father is a relevant factor in determining the likelihood of harm by a proposed
relocation, 97 for reasons explained in more depth above in Part III(E)(1), a reduction in
the frequency of the non-custodial parent's time-sharing with the children, standing
alone, did not permit a modification of custody under KRS 403 .340 . Granted, Benjamin
Huck's time-sharing with the children will be altered simply due to the distance between
him and the children after the proposed relocation . 98 But, this does not mean that he
cannot still participate in major child-rearing decisions with Jennifer Huck via telephone
or other means . Although the frequency of his personal contact with the children will
necessarily be reduced, the length of periods when the children are with him may even
be increased - as Jennifer Huck has suggested . Admittedly, Benjamin Huck
understandably would prefer personal contact over telephone communication with his
children ; nevertheless, telephone communications will allow him to maintain frequent
contact with them .
For the children, the best of all possible worlds would have been for their parents
to remain married, but that was not possible . The next best scenario would have been
for their parents to continue to reside close to each other so that the children could
maintain frequent personal contact with each parent and other persons close to the
children, but again, that was also not workable . Now, the parties must make the best of
97
KRS 403.340(3)(a).
98 Testimony in the record indicates that it is a five (5) hour drive between
Oldham County and Collegedale .
-39-
a situation that is becoming more and more common to divorcing couples in our highly
mobile society.
Even though an alleged "lack of plausible reasons" is not germane to the KRS
403 .340 inquiry, we would add that the record does not support a finding that Jennifer
Huck's reasons for relocating to Tennessee lacked merit. Her request to relocate was
not motivated by mere whim or for the purpose of denying Benjamin Huck time-sharing
or of curtailing his participation in child-rearing decisions . She wanted to be closer to
her parents with their attendant support, to enroll in classes to improve her prospects
for better employment, to improve her financial situation 99 by living in a home
purchased by her parents, and to enroll the children in a Seventh Day Adventist school
in Collegedale . As we have noted throughout this opinion, shared decision-making is
the essence of joint custody, and as we have pointed out, there is no reason that
Benjamin Huck cannot remain an active participant in child-rearing decisions affecting
his children . Accordingly, we hold that the change in the children's circumstances does
not rise to the level required under the statute .
The trial court's order included a provision that prohibited Jennifer Huck from
relocating with the parties' children absent an agreement of the parties or the trial
court's approval . This constraint was inappropriate because it not only placed the
burden on Jennifer Huck to seek leave for the proposed relocation contrary to KRS
403.340(2)(c), which places the burden on Benjamin Huck to take action to prohibit the
relocation if he objects, but also required her to justify the proposed relocation despite
KRS 403 .340's requirement that Benjamin Huck must show that the relocation to
99 Apparently, Benjamin Huck has not always been timely with child support and
at times, an arrearage has occurred in child support .
-40-
Collegedale "endangers seriously [the children's] physical, mental, moral, or emotional
health, and the harm likely to be caused by a change of [custody to him] is outweighed
by its advantages to [them] ."goo Although we recognize that a trial court may require a
primary residential custodian to give timely notice of his or her intention to relocate with
the children, we hold that the trial court exceeded its authority by prospectively ruling
out the possibility of Jennifer's relocation .
With the exception of general adjustment problems normally associated with a
move, Benjamin Huck failed to prove the likelihood of any harm to the children from the
move to Tennessee, and, in any event, failed to prove a likelihood of serious
endangerment . Therefore, we reverse the Court of Appeals's decision affirming the trial
court's denial of Jennifer Huck's relocation motion and holding her in contempt. We
remand to the trial court with directions to enter an order allowing her to relocate to
Collegedale with the children .
IV. CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals in Fenwick v. Fenwick
and, in Huck v. Huck, we reverse the Court of Appeals and remand the case to the
Oldham Circuit Court for entry of an order permitting Jennifer Huck to relocate with her
children .
All concur.
100 KRS 403 .340(2)(c).
-4 1-
COUNSEL FOR APPELLANT, PHILLIP STUART FENWICK :
Dwight Preston
Lewis and Preston
102 West Dixie Avenue
Elizabethtown, Kentucky 42701
COUNSEL FOR APPELLEE, SUSAN S. FENWICK :
Regina Rapier Beckman
Fulton, Hubbard and Hubbard
117 East Stephen Foster Avenue
PO Box 88
Bardstown, Kentucky 40004
Jason P. Floyd
Fulton, Hubbard and Hubbard
117 East Stephen Foster Avenue
PO Box 88
Bardstown, Kentucky 40004
COUNSEL FOR APPELLANT, JENNIFER L. HUCK:
Robert S . Silverthorn, Jr.
1200 Starks Building
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE, BENJAMIN F. HUCK, JR. :
James L. Theiss
101 West Main Street
LaGrange, Kentucky 40031
,Sixprmnr (ifourf of ~rttfurkg
1999-SC-1055-DG
PHILLIP STUART FENWICK
V.
APPELLANT
APPEAL FROM NELSON CIRCUIT COURT
HONORABLE THOMAS L. WALLER, SPECIAL JUDGE
97-CI-00062
SUSAN S . FENWICK
APPELLEE
AND
2000-SC-0697-DG
JENNIFER L . HUCK
V.
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DENNIS A . FRITZ, JUDGE
95-CI-00203
BENJAMIN F . HUCK, JR.
APPELLEE
ORDER
On the Court's own motion, the Opinion of the Court by Justice Keller rendered
September 18, 2003 shall be modified on page 29, footnote 80, line 6, by changing the
citation to Bowman and on page 35, footnote 90, lines 5 and 6, by changing the citation
to Duncan . Said modification does not affect the holding.
Entered : October 8, 2003 .
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