POST-DIVORCE MODIFICATION OF CUSTODY

It is possible to obtain modification of a prior custody decree if a child is in genuine risk of serious physical, mental, moral or emotional injury.  But, there are several specific hurdles which must be cleared to accomplish such a change.

First, the change in custody cannot be sought for the first two (2) years after a custody decree or order is put into effect . . . with certain exceptions:

KRS 403.340 (Modification of custody decree) requires that a party cannot seek to modify a custody decree for at least two (2) years unless the motion is accompanied by at least two (2) affidavits stating that the child's present environment seriously endangers his or her physical, mental, moral, or emotional health.

Another exception to this 2-year requirement is if the custodial parent has placed the child with a de facto custodian.

Per KRS 403.270, "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.

Upon such a motion being made, the court must find, based upon the facts presented, that a change has occurred in the circumstances of the child or his custodian, and that modification of custody is necessary to serve the best interests of the child.  That finding by the court must include:

• A determination as to whether or not the custodian agrees to the modification;

• A determination as to whether the child has been integrated into the family of the moving party with the consent of the custodian;

• Evaluation of the factors set forth in KRS 403.270(2) to determine the best interests of the child;

• A determination as to whether the child's present environment endangers seriously his physical, mental, moral, or emotional health;

• A determination as to whether the harm likely to be caused by a change of environment is outweighed by its advantages to him; and

• A determination as to whether the custodian has placed the child with a de facto custodian.

Other factors which the court must consider in determining whether a child's present environment may endanger seriously his physical, mental, moral, or emotional health, include:

• 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;

• The mental and physical health of all individuals involved;

• 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;

• 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.

Attorney fees and costs may be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.