07 Aug Good Intentions, Bad Law: Why the New KRS 403.270 is a Disaster for Families in Kentucky

By Melina Hettiaratchi, Senior Associate

A new Kentucky law will create a nightmare for families, judges, and lawyers. Here’s the thing about the U.S. legislative process: good law can often be held hostage by the majority if they don’t get to tack their bad laws on too. That’s what happened with Kentucky Senate Bill 122. And it is full of really bad family law, so much so that this is just the first part of a series.

First, it is important to note that the original SB 122, titled Section 1 or the “Family Preservation and Accountability Act,” simply provided judges with a way to keep families together when considering sentencing in criminal court. Actual, realistic, procedurally-protected Family Preservation. Then it got to the Kentucky House, where Rep. Jason Nemes got his hands on it. He alone proposed an amendment identical to his House Bill 418, which had just died in the House Committee on Committees. That amendment creates a new statutory framework in family law that applies broad strokes to a specific area of law: domestic violence and custody.

SB 122, enacted on April 10, 2026, creates an entirely new section of KRS Chapter 403 (read 403.270 here), the legal backbone for Kentucky custody disputes. Out of the gate, this amendment will raise the already-high stakes of family law litigation and create even greater barriers to justice for those who can’t afford legal counsel. Just the first chunk of this amendment is ridiculous. Here’s what it says:

A prior finding of domestic violence and abuse for this family means the court shall not remove custody or reduce parenting time from the “nonoffending” parent to whom the child is “bonded or attached” if (1) the court also finds that the nonoffending parent is “competent and not abusive” and (2) the only reason for removal is improving the relationship between the child and the “offending” parent. Additionally, any order to “remediate resistance of a child” to having contact with the “violent or abusive” parent has to “address the behavior” of that parent.

This is clearly meant to prohibit family court judges from using an admittedly-sketchy family reunification strategy sought by parents who cry “Parental alienation!” when children don’t want to see them. However, the General Assembly failed to consider the race to the bottom they have created here. Family law is already incredibly adversarial and full of conflict. Now parents will be able to weaponize the emergency protective order (AKA “restraining order” to the average person) process to get this unending advantage in their custody case. In fact, the new statute encourages bad behavior and false accusations while doing very little to protect survivors.

This makes those underlying findings in domestic violence hearings even more important. Any family law practitioner will tell you that most people represent themselves in those hearings and would have no idea the long lasting consequences of the outcome of that hearing. Those involved in an emergency protective order (EPO) hearing don’t know the Kentucky Rules of Evidence or understand the burden of proof. In these fundamentally “he said/she said” (please excuse the heteronormative cliche) proceedings, the Court must observe some serious due process requirements which includes having a hearing within fourteen (14) days of filing, unless there is no service. It is already a tight turnaround for anyone, and this is a Constitutionally important hearing with consequences for a person’s liberty, right to bear arms, and fundamental right to custody of their child. This statute dangerously extends the consequences into a custody action by restricting judges from modifying parenting time even if it is the best interests of the child. 

Many family lawyers and judges encourage families to seek solutions outside of court to bring the temperature down, such as family or individual therapy or even just a cooling-off period. This new language requires practitioners to advise prospective and current clients that choosing not to seek an EPO would essentially waive immense long-term advantages in custody proceedings, especially the security of their parenting time. 

This is just the tip of the spur of active legislation that is a must-read for every family court practitioner. Full language of SB 122 as enacted can be found here: https://apps.legislature.ky.gov/law/acts/26RS/documents/0092.pdf