Primary Residential Custodian: A misnomer
Divorcing parents, attorneys, and even judges often use certain terms regarding custodial arrangements in ways that lead to mistaken understandings of those arrangements. “Joint Custody” has become the most common child custody designation in Kentucky divorces. In the vast majority of those situations, there is also a “primary residential parent” designated. Many consider this synonymous with the “primary residential custodian” or “primary custodian” phrases. Often, the decree establishing custody will use the “custodian” terminology. Case law, well summarized in Aton v. Aton, 911 S.W.2d 612 (Ky.App. 1995), reveals that the designations of “joint custody” and “primary custodian” are incompatible.
The problem arises with the perception that a “primary custodian” has a superior right to make decisions on how their child is to be raised. In reality, “joint custody” gives both parents equal footing to make major decisions regarding the child. A “primary custodian” designation evokes the notion that the “primary” parent has more authority than the “non-custodial” parent (using a common term used in child support situations). The designation of “primary residential parent” refers to whom the child spends most of their time. Equating it with “primary custody” creates the problem.
What the “primary residential parent” does enjoy is the ability to make the day to day decisions for the child. When a major decision is involved, then the other parent should be involved. The upside to this custody arrangement is that it can foster co-parenting, which is usually best for the child. Unfortunately, since joint custody has become the norm but cooperative parenting remains elusive, the courts must step in all too often to resolve the disputes of these conflicting co-parents. This usually just drains the financial resources available to the child and increases the rift between the parents.
Joint custody appears to be here to stay, even in situations where it is not viable long-term solution. So, the best approach to make the most of this arrangement is to define the terms and much as possible in any settlement agreement. Spell out what types of decisions are “major” ones requiring joint decisions and which ones are “minor” or “day to day”. One could easily conclude that whether to have a non-emergency surgery is a major decision, but is which pediatrician to use major or minor? Resolving these conflicts in advance is always best. Attorneys are adept as spelling out specifics about property division in settlement agreements, but too often rely on the vaguely defined terms of “joint custody” and “primary residential parent” on the far more important topic of how the child is raised.
Now, moving out of the pragmatic and into the esoteric, “joint custody” creates a conundrum in the law. If, as case law indicates, joint custody creates an equal co-parenting scenario and “primary” designations only refer to where the most time is spent, how can the custody modification statutes of KRS 403.340 & 350 apply to conflicts over which parent has the child the most? Wouldn’t the easier met time-sharing modification standards of KRS 403.320(3) apply? For example, John and Jane divorce and Jane has baby Joan most of the time. Jane wants to move away from all sides of the family with whom Joan is attached within two years of the divorce. John wants to shift time sharing so he has Joan most of the time - or even half-time. If this is joint custody, he should not have to show a change of circumstances and serious endangerment to achieve this. However, the courts unanimously (or nearly so) treat John’s attempts as a modification of custody.
So, in pure theory joint custody exists and there is no primary custodian. But, in the messy world of family law, “primary” has real bite. Because of this, pure joint custody is an ideal that is rarely attained and never maintained. Reality requires the designation of a “primary” and that is the parent with whom the child will physically spend their time, even if they move away. The only way to resolve this conundrum is to create the legal fiction that the decision of where the child grows up is a minor one; that the community and daily environ of the child is a day to day decision. This is exactly what the appellate courts of Kentucky have done. They consistently rule in these “move away” cases that moving with a child out of state is not a “change of circumstances” that would allow for jurisdiction to modify custody.
