Kentucky passed a new child custody law FOR EQUAL PARENTING.
Separating parents will get joint custody and equal parenting of their children as a default under a new bill, HB 528, signed into law by Gov. Matt Bevin last week, on April 26, 2018. According to 89.3 WFPL the new law, “goes into effect in July, requires judges to use joint legal custody as a starting point and then consider factors like proximity of a child to their school and current home and likelihood a parent will allow a child to have “frequent, meaningful, and continuing contact” with the other parent.”
Matt Hale did a brilliant job selling the bill to the Representatives. One House Representative, Hatton, asked why the rush to get another bill signed when they just signed the rebuttable presumption of equal parenting last year for temporary orders that went into effect in July of 2017. Matt Hale assured her by stating that the media was reporting favorably and that equal parenting was being received by the courts favorably. Then she asked how equal parenting was effecting child support and how that was affecting the children. Rep. Nemus said that he does not know how it is effecting child support and just said that it is not something that is new because they passed the same thing in temporary orders. He played it down and just said that it is not a great expansion. And when they spoke of the clause they referred to it as shared parenting or as half the time. Then Matt Hale said that when one parent is a full-time caregiver it is difficult for them to progress their life and advance themselves and perhaps their education and that this “is a real win for kids.”
Representative Patton then said that she didn’t feel that there has been time to see what the effects of this will be and she said that the judges are still adjusting to this change. Matt also didn’t take the bait when she alluded to her suspicion that perhaps they were rushing this bill because there had been judges changing the equal custody to less than equal because it hadn’t worked after they had tried it during temporary orders. That didn’t deter Matt at all from his positive message. Matt did not get defensive or present excuses or justify why the bill was being presented so quickly after the passage of the temporary orders rebuttable equal parenting bill. He quickly but patiently, easily transitioned the attention of the Senators to the trend of the nation. He stated that 3 other states the same week had passed shared parenting bills and that this is the trend and what other states are moving towards. Matt didn’t waste the silence after that statement and smartly transitioned into telling the House Judiciary Committee that this bill allowed parents the time to both improve their education and to work more. When each parent has the child half the time, the other half of the time allows the parents to work, and that he said is good for the children.
Representative Jason Nemus co-sponsored the bill and Representative Petrie is the main sponsor of the bill. The bill passed unanimously with one female Rep. Jenkins opting to pass on her vote until she could see the amendments for domestic violence in the bill. Matt hale and Representative Nemus and the Schroeder from the University were all extremely professional and did a fantastic job. We agree with National Parents Organization (NPO) that these three are heroes for many fathers and mothers going through the family courts right now. This is definitely a light in the tunnel and a step in the right direction for protecting the future of the children.
Bottom line, the courts will have to start with the presumption that the parents are fit and equal. However, there are a few things we need to make you aware of here. We don’t mean to rain on anyone’s parade, but we kind of have to, after all we are Fix Family Courts and we are here to make sure that your goal is not thwarted. Your goal of ending the expensive and abusive process and having your rights and time with your child protected and the final outcome to be fair and just.
So we must point out that parents are going to think that they are going to walk away with equal parenting and that it cannot be removed unless they are proven unfit. This is not the case. This Bill does not change the process, or the judge’s discretion much. The judge still applies best interest factors. The judge still makes the parents qualify beyond the constitutional qualifiers.
Matt Hale states in the video testimony that the proximity of where the parents live is a factor and just one of many factors that the judge could apply. Keep in mind that he said “could,” again indicating that parents still will not know what each judge will and won’t decide to apply, so the process will still be very arbitrary and random and according to the judge they get and that judge’s preferences. That is now how our rights were meant to be handled in the courts. The courts are supposed to protect your rights like a fortress.
So our concern is that parents will go into this process with their guard down again and think that now they will get equal custody and equal parenting time 50/50 without having to put any effort into it. This Bill created a rebuttable presumption that it is in the best interest of the child for joint custody and both parents to have equal parenting time at the discretion of the judge for applying the factors. While this is huge and it incorporates some of Troxel, it does not integrate the full protection of your constitutional rights and still leaves the parents open to vague and arbitrary standards.
Kentucky is the first state to pass an equal parenting presumption with equal parenting time and modifies best interest of the child. The bill reads that there is “a presumption that joint custody and equally shared parenting time is in the best interest of the child.” Of course, the bill has added a provision where anyone with a domestic violence order against them has to overcome the presumption.
Ryan Schroeder from the Department of Sociology at the University of Vogel assisted with the passage of this bill by providing expert testimony supporting that equal parenting time or nearly equal produced better outcomes for children, with the exception of cases where there was domestic violence. He testified that it was his understanding that the presumption was overcome if there was domestic violence. He did not however need to go into these outcomes or share any statistics.
Parents in modification Also benefit from this bill.
A parent modifying their custody time gets the presumption applied to them as well! The bill reads that they are amending KRS 403.340 “to specify that if a court modifies a custody decree there is a rebuttable presumption that it is in the best interest of the child for the parents to have joint custody and equally shared parenting time.”
Last April, Matt Hale reported in the Lexington Herald that Kentucky passed House Bill 492 that approved joint custody and equal parenting time in temporary orders.
Once this Bill hit the floor it flew through the House and Senate within two weeks and passed unanimously.* The Governor of Kentucky, Matt Bevin, signed the Bill into law on April 26, 2018. Matt Hale is a key person who contributed to the passage of these bills and is the Kentucky Chairman of the National Parents Organization.
The Bill had 11 sponsors.
Many parenting advocates are hoping that this will nudge the other states along. When the state of Texas and the state of California passed their joint custody provisions, that was groundbreaking back in 1975. However, there were still some states that did not have joint custody until that last several years. Change is slow and each state has its own politics. However, all of the states know that this really is overdue, and they do look to see what the other states are doing. We believe that most states are going to adopt equal parenting provisions now fairly quickly. But we think that its because they really don’t want to integrate the constitutional protections fully. We believe that the legislator and the trial courts are hoping that the parents will remain naive and will be satisfied after the magic words, equal parenting time, is in the family codes, and they hope that this will kill the drive and momentum and the pressure parents have put on them for child custody justice and fairness.
Constitutionally, starting with equal is the required presumption. So whether you have equal parenting in black and white in your family code or not, you are entitled to it. Do not let them trick you out of it. it just might be a little more difficult to get it if your state legislators or your Governor has not agreed to put it in your laws. Floridians have passed equal parenting and modifications to alimony twice and the Governor refused to sign it twice. Your rights are not depend on the Governor or the legislators agreeing that you have these fundamental civil rights. Your rights actually depend on you knowing how to use them.
Passing an equal parenting bill like Kentucky did will make it less difficult to convince a judge that you are entitled to equal parenting and that this is the default starting point; with the way this bill is written and the Kentucky Family Code however, you don’t know how the judge is going to interpret it, and it just doesn’t necessarily produce equal parenting when all of the best interest factors are applied. In other words, you are only part of the way there. You are still going to have to fight for it and justify way more than you should have to.
A judge in Kentucky, for instance, even with this new equal parenting law, can decide that the two parents do not live close enough to have equal parenting, the judge can also decide according to any one of their other best interest factors that the other parent has overcome the presumption based on a sole government official’s personal bias regarding the child’s living arrangements, relationships with other siblings, the physical and mental health of all individuals, the wishes of the child, and any of your parenting decisions with the child even though they were perfectly legal. They may sound reasonable and innocuous at first, but these all cost money, and they allow the court to invade your privacy. Our position is that if there is no proper cause of action, the court and the other parent has no business in your personal private business. But your equal parenting is still dependent on this, and any inquiries by a court are going to cost you money. They could still opt to force you into expensive child custody evaluations and psychological evaluations, even though there are no illegal activities.
One of the ways you can prevent your court from making errors in their rulings, and to help them filter out their personal bias and prejudice is to use Constitutional balancing tests. Regardless of whether you have equal shared parenting in your laws or not use balancing tests to protect you from the costly errors that are made when judges apply arbitrary standards and infringe your legal rights. Without using these procedures, the courts will continue to violate your legal rights in separation based on that judge’s subjective opinion / bias of the judge and continue to use your hard-earned life savings, use up the college funds for your child, and continue to harm your child by stripping you of the parental authority that your child depends on. (Need help figuring out how to argue you are entitled to equal parenting now and learn how to get the protections of your rights and argue for using a balancing test, you can get all of that in these motions here.)
Bottomline, Kentucky judges must presume equal shared parenting time in child custody battles, and judges must presume “that joint custody and equally shared parenting time is in the best interest of the child” in almost all divorce cases.
Don’t have equal parenting in your laws yet?
There is another way that other states are being creative about making equal parenting available to parents and bypassing the legislative process, and avoiding affecting the discretion of the judges (even though the constitution already does).
The Ohio Supreme Court published an parenting guide with samples of parenting plans that include equal parenting plans. One county in Ohio decided that they would use their state supreme court’s acknowledgment and approval of equal parenting plans and decided that they would issue a standing order for equal parenting plans as a default when parents couldn’t agree. (See our blog on parallel parenting to overcome the idea that there has to be co-parenting in order to have equal parenting here.) So if you need to give your trial court a little boost of confidence for issuing equal parenting before it is actually passed through the legislators you can show your judge Ohio’s equal parenting default standing order in Tuscarawas County. And if you want to give your state a little boost with getting to equal parenting in their laws you could show them this law in Kentucky.
But if you need equal parenting now and do not have time to wait for your legislators or your state supreme court to figure out that you already have the legal right to equal, you can read more about how you can present your equal parenting argument to your trial court here.
Why was an Equal Shared Parenting Bill Necessary?
“Family courts were awarding one parent primary custody and basically all of the parenting time except every other weekend and Wednesday — excluding an otherwise fit parent, basically relegating them to being a visitor in the child’s life,” Hale said.”*** Texas has the same parenting time scheme but they call this the standard possession order. When your state does not have an equal parenting presumption in your family code statute, the judge can violate your constitutional rights by placing limits on your parent-child relationship more than what the constitution might have allowed. Parents are hoping that by passing an equal parenting presumption that they will not have to learn how to sue a family court judge.
Attorneys have been reluctant to protect the constitutional rights of biological parents and parents have been resorting to desperate measures and exploring whether they can file a parental rights class action law suit and some have even resorted to unconventional methods to protect their family rights association. Parental rights advocates are joining together all over the United States to raise awareness and to educate parents before they become the next victim driven into bankruptcy because they had to fight harder than they should have had to fight to protect their constitutional associations with their child.
If you live in a state that does not have equal parenting and you are having to fight the old barbaric ways, and need case law to help you understand how to argue and win child custody equal parenting time regardless of whether your state has this in their statute or not, you will find the information you need to argue this effectively by becoming a member and gaining access to the information and education you will need to help you keep the courts and attorneys from stealing more of your money and your child’s future. Become a member** and get access to our books, online education, member’s only posts that go into more depth regarding your rights and our research, and also access to some of our research notes, annotated cases, and a whole lot more. Get access to new stuff before the general public. Get more information about this membership here. We look forward to helping you protect your rights and fight for what is already yours!
example of translating kentucky bill into texas family code
We took the relevant sections of the Texas Family Code and interpreted what Kentucky did to Texas. We left Texas best interest statute alone (Sec. 153.002) since Texas had a Rebuttable Presumption section. And then we removed any sections that said that equal parenting was not required, as now it would be a rebuttable presumption. NOTE: We, at Fix Family Courts, do not endorse anything less than constitutionally compliant laws and do not believe that these are constitutionally compliant. These amendments to the code do not prevent the courts from acting unconstitutionally.
The lined through text is how the Texas Family Code reads now. The all caps words within the code are what you would add to the code to mirror Kentucky’s. The underlined and all cap word in the title in Sec. 153.253 was added.
Sec. 153.135. EQUAL POSSESSION NOT REQUIRED. Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators.
Sec. 153.252. REBUTTABLE PRESUMPTION. In a suit, there is a rebuttable presumption that EQUAL PHYSICAL POSSESSIONthe standard possession order in Subchapter F:
(1) provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and
(2) is in the best interest of the child AS LONG AS THE PARENT DOES NOT HAVE A DOMESTIC VIOLENCE CONVICTION WITHIN THE LAST THREE YEARS INVOLVING THE CHILD.
Sec. 153.253. STANDARD EQUAL POSSESSION ORDER INAPPROPRIATE OR UNWORKABLE. The court shall render an order that grants periods of possession of the child as similar as possible to those provided by the standard EQUAL possession order if the PROXMITY OF THE PARENTS, THE work schedule or other special circumstances of the managing conservator, the possessory conservator, or the child, or the year-round school schedule of the child, make the standard EQUAL order unworkable or inappropriate.
What Rights Do Parents Have in Temporary Orders in Kentucky?
Temporary orders also require a presumption of joint custody and equal parenting time while a divorce is pending.
According to a law that went into effect in September 2017, from HB492, Section KRS 403.280(2)(a), “In making an order for temporary custody, there shall be a presumption that the parents or a de facto custodian joined under subsection (7) of this section shall have temporary joint custody and shall share equally in parenting time.” You can download the Kentucky legislative Bill that led to the equal custody, rebuttable presumption of equal parenting time legislative bill.
Kentucky parental rights advocates started with the temporary orders bill for getting equal parenting passed, and then followed that up with the bill that passed this year for permanent orders and modification.
A Shift in Policy
Some are saying “father’s rights win in Kentucky” when they should be saying that children’s rights win in Kentucky. When parents divorce in Kentucky now children don’t have to wonder which parent they will lose anymore, except for in a select few cases where domestic violence is proven and where it has harmed the children. As Reason points out it is believed judges are are still allowed to use their discretion to deny equal parenting time if it is impractical or not in the child’s best interest.
Become a member and find out what limits a judges discretion and how you can exercise equal parenting in your state even if it does not have an equal parenting statute yet.
You can read more about what this bill means to parents all over the United States and about the people who were key in getting it passed on The Father’s Rights Movement page, written by the founder, Thomas Fidler as well. He will be at Capitol for Kids in D.C. this month if you would like to meet him with Mark Ludwig of Americans for Equal Shared Parenting (AFESP).
*The final version passed out of the legislature with only two members voting against it — one in the House and one in the Senate.
**Membership is not free. It is less than a dollar a day, there are no contracts, and you can be a member as long as you want or cancel any time. If you are in such financial difficulty that you cannot afford even $20 a month, which by the way helps to pay to keep the lights on while we continue developing more tools for you to fight back as well as write and publish more books. You get access to the books before the general public does when you are a member and get to read the books online. You will have the books and information and videos at your fingertips from anywhere that has an internet connection at any time.
***http://wkms.org/post/joint-custody-will-be-default-under-new-kentucky-law by Ryland Barton of 93.1 WKMS, an NPR station