09 Sep The Awful Changes in Family Law & Policy: What Kentucky’s New Custody Law Means for Families

By John H. Helmers, Jr., and Melina Hettiaratchi

Kentucky has enacted a sweeping new law affecting domestic violence and child custody. Its supporters will undoubtedly describe the changes as protecting survivors and children. Those are goals everyone can support. 

But good intentions do not necessarily produce good family court policy.

At Helmers + Associates, we are concerned that Senate Bill 122 will make already difficult custody cases longer, more expensive, and considerably more adversarial. Worse, some provisions may unintentionally discourage genuine survivors of domestic violence from seeking help.

Family Court is not criminal court. Its central question is not supposed to be which parent wins or loses. The question is what arrangement best serves a particular child in a particular family. SB 122 moves Kentucky away from that individualized approach and toward something more mechanical: findings trigger presumptions; presumptions trigger mandatory programs; programs trigger hearings; and hearings determine whether a parent can begin climbing back up a statutory ladder.

That may sound orderly in Frankfort. It will look considerably different in an actual courthouse. Here are four major changes Kentucky families should understand.

1. Domestic-violence allegations now move to the front of the custody case.

Kentucky law has long required judges to consider domestic violence when determining a child’s best interests. SB 122 goes further. Before considering the other statutory custody factors, the judge must first consider allegations of domestic violence, abuse, or child abuse or neglect and make written findings concerning their impact, if any, on the child. Protecting children from violence is unquestionably important. But the word “allegations” matters.

Family Court judges routinely encounter allegations ranging from serious physical violence to disputed arguments, threats, text messages, unwanted communications, contested discipline, and events the parties describe very differently. The new law gives those allegations even greater strategic importance at the beginning of the custody analysis.

The downside: It creates another incentive to make the custody case about misconduct rather than parenting.

Once an allegation of domestic violence can alter the legal framework governing custody, lawyers have little choice but to litigate it thoroughly. That means witnesses, records, text messages, photographs, medical evidence, police reports, experts, continuances and longer hearings. And there is an unavoidable consequence: the higher the legal stakes attached to an accusation, the greater the incentive to fight the accusation. Cases that might once have been resolved by compromise can become winner-take-all contests.

2. Two acts of domestic violence can flip the custody presumption.

Kentucky has a rebuttable presumption favoring joint custody and equal parenting time. SB 122 creates a powerful counter-presumption.

If a judge finds that a parent committed two or more acts of domestic violence and abuse, the presumption flips: joint custody and equal parenting time are presumed not to be in the child’s best interests.

Notice what the statute does not say. It does not say two convictions. It does not say two Domestic Violence Orders. It does not say two acts causing physical injury. It says two acts of domestic violence and abuse as defined by Kentucky law.

Certainly, some cases involve terrible and repeated violence. Those cases require decisive judicial intervention. But Family Court also deals in shades of gray, conflicting testimony, relationships spanning decades and conduct of dramatically different severity.

A statutory trigger does not always capture those differences.

The downside: The number “two” can become more important than the family itself. 

The litigation incentive is obvious. If proving a second qualifying act changes the custody presumption, the second incident becomes enormously valuable. Conversely, the accused parent has every reason to contest every alleged act with everything available. That means more litigation, not less. And it moves Kentucky closer to binary Family Court: victim or perpetrator, winner or loser. Real families are much more complicated.

3. Two findings also trigger a mandatory road back to ordinary parenting.

The consequences become much more substantial after two findings.

A parent found to have committed two or more acts of domestic violence cannot receive custody or even unsupervised visitation until completing a certified batterer’s intervention program, parenting classes, substance-use and mental-health assessments and any recommended treatment, along with a period of supervised visitation.

Even then, the parent does not simply return to normal parenting time. The statute requires an evidentiary hearing before unsupervised visitation can begin — and a second or subsequent hearing before custodial rights can be awarded.

Think about that from the perspective of an ordinary Kentucky family: Programs take time. Assessments take time. Treatment takes time. Supervised visitation costs money. Lawyers cost money. Evidentiary hearings require preparation, witnesses and scarce court time. And getting a significant hearing on an already crowded Family Court docket may take months.

The downside: Delay itself becomes a custody decision.

A child may spend many months seeing a parent only under supervision while the parent completes programs and waits for hearings. Not because a judge has independently concluded that supervision should continue that long, but because the statutory machinery has not finished operating. 

For wealthy families, this will be expensive. For middle-class families, it may be financially punishing. For poor families, some of these hurdles may become practically insurmountable. Children experience those months differently than statutes do. Six months to a seven-year-old is not a procedural interval. It is a meaningful part of childhood.

4. The system gets more professionals, more requirements—and more expensive.

SB 122 imposes new training requirements on paid visitation supervisors and parenting coordinators. They must complete sixteen hours of initial training in areas including child development, domestic-violence dynamics, effects on victims, lethality and risk, protocols and victim services, followed by eight hours every year.

Training is not a bad thing. Qualified professionals are important. But mandates have consequences.

There are already Kentucky communities where finding an appropriate parenting coordinator, therapist, evaluator or visitation supervisor is difficult. Adding qualification requirements may reduce the available pool, particularly in rural areas, while increasing the cost of providing those services. And remember: elsewhere in the same legislation, supervised visitation becomes mandatory for some parents before they can even request unsupervised contact.

The downside: We have increased demand for supervised visitation while making it harder or more expensive to supply it. Families will pay the price in both dollars and delay.

5. The law restricts how courts can address a child’s resistance to a parent.

SB 122 also enters one of the most difficult areas in modern custody litigation: a child’s resistance or refusal to have contact with a parent. We’ve covered this more in depth in our prior post: Good Intentions, Bad Law: Why the New KRS 403.270 is a Disaster for Families in Kentucky.

When domestic violence has been found, the law prohibits reducing custody or parenting time of a competent, nonabusive parent to whom the child is bonded when the purpose is solely to improve the child’s relationship with the offending parent. It further directs that an order intended to remedy a child’s resistance to contact with a violent or abusive parent must primarily address that parent’s behavior.

There is an understandable policy behind this provision. A survivor of domestic violence should not be punished simply because a child fears an abusive parent. But difficult custody cases rarely fit neatly into slogans.

A child can have legitimate fear of a parent. A child can also be influenced by another parent. Both things can sometimes be true at once. Children can love, fear, resent and miss the same parent. Family dynamics are complicated precisely because human beings are complicated.

The downside: The statute risks substituting a legislative theory about family dynamics for a judge’s assessment of the particular child sitting at the center of the case.

Judges hear the witnesses. Judges review the evidence. Judges see cases evolve over months or years. They should have broad discretion to distinguish actual danger from estrangement, manipulation, developmental problems, justified resistance—or some combination of them.

The General Assembly cannot possibly write a statute anticipating every troubled family.

That is why Kentucky has Family Court judges.

The unintended victim of the new law may be the survivors.

There is another consequence that deserves more attention.

Making a domestic-violence finding enormously consequential does not necessarily make it easier for survivors to obtain protection. It may do the opposite.

If losing a DVO hearing can affect custody, eliminate the equal-parenting presumption, require supervised visitation, mandate treatment and assessments, and set up multiple future evidentiary hearings, an accused parent has an enormous incentive to contest the domestic-violence case aggressively.

That means fewer agreed orders. More lawyers. More witnesses. More discovery. Longer hearings. More appeals.

And who must endure that process?

The alleged victim and legitimate survivors.

A person seeking protection may now understand that filing a domestic-violence petition could ignite not simply a protective-order proceeding but a much larger custody war. Some genuine survivors may decide that they do not have the money, emotional energy or time to start that fight.

That would be a tragic unintended consequence of legislation designed to protect them.

Family Court needs judgment, not algorithms.

The fundamental problem with SB 122 is not its concern about domestic violence. Domestic violence is real, destructive and sometimes deadly. Kentucky courts must take it seriously.

The problem is the increasing legislative tendency to replace judicial discretion with presumptions, mandatory steps and predetermined consequences.

Family Court is perhaps the worst place for one-size-fits-all legislation.

One family may involve years of coercive control and serious violence. Another may involve two incidents during a twenty-year marriage that bear little relationship to present parenting ability. Another may involve competing accusations. Another may involve a child who genuinely fears a parent. Another may involve a child caught in the middle of two adults who have forgotten how much damage warfare can cause.

Those cases should not necessarily travel down the same statutory conveyor belt.

Kentucky’s judges are elected to judge. Lawyers present evidence. Witnesses testify. Judges assess credibility and determine what arrangement protects a child while preserving healthy parent-child relationships whenever possible.

That process is imperfect. But replacing judgment with increasingly rigid statutory commands does not eliminate imperfection. It simply relocates the decision from the courthouse — where the evidence can actually be heard — to the legislature, where the particular family has never been seen.

Before making fundamental changes to how Kentucky families are governed, lawmakers should listen closely to the people who actually work in Family Court: judges, lawyers, mental-health professionals, domestic-violence advocates, parents and, where appropriate, children.

Campaign promises make good politics.

They do not necessarily make good family law.

And when family-law policy gets it wrong, legislators do not live with the consequences.

Kentucky families do.