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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.

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August 16, 2007 - Posted by | Family Law

11 Comments »

  1. “[T]he legal fiction that the decision of where the child grows up is a minor one” is just a thin legal excuse to deprive one of two equal joint custody parents’ of the right to the care, custody, and control of their child, without a finding of serious endangerment based on clear and convincing evidence. As the phrase “joint custodial parents” suggests, these parents’ share custody of their children. “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?” Development of the concept of joint custody has raised some questions about the policies of KRS 403.320(3), and how joint custody orders should be modified or terminated. Visitation is a right or permission granted to a noncustodial parent to visit with his or her child. The welfare of a child usually requires that a parent who does not have custody of their child be given liberal visitation rights in order to assure that the child will not be estranged from that parent.Thus, in Kentucky, the only valid legal standard for joint custody “visitation” modification is KRS 403.340 and .350, not KRS 403.320(3). Noncustodial parent visitation modification as opposed to joint custody modifcation is a separate and distinct issue. Unexplainably, Kentucky lawyers do not appear to have ever challenged the constitutionality of the practice of modifying only joint custody and noncustodial parent visitation orders under KRS 403.320(3); for example, one cannot take a substantial amount of time away from a sole custodian as a mere modification of the visitation terms without first modifying sole custody. Due process and equal protection is the guarantee that similar people will be dealt with in a similar manner and that people of different circumstances will not be treated as if they were the same.

    Comment by Barry McCarthy | August 17, 2007 | Reply

    • This guy?

      Comment by David | February 11, 2011 | Reply

  2. I CURRENTLY HAVE BEFORE ME A PETITION FOR JOINT CUSTODY OF MY TWO DAUGHTERS. THE PETITIONER IS THE MOTHER OF MY TWO DAUGHTERS. THE AGREEMENT IS LESS THAN 1/3RD OF A 8.5X11 PAGE. IN WHICH, BY PART I DISAGREE WITH. FROM MY READING OF YOUR WEBSITE, I BELIEVE I WOULD BENEFIT FROM A CONVERSATION WITH YOU OR A DESIGNATED RESPONDENT OF YOUR LAW FIRM. AT THIS TIME I WOULD LIKE TO THANK YOU FOR YOUR CONSIDERATION OF MY COMMENTS. CLINTON GOINS JR.

    Comment by CLINTON GOINS JR | May 14, 2008 | Reply

  3. I AM WANTING TO SEE IF YOU WOULD EMAIL ME THE STANDARD VISITATION SCHEDULE OF CHILDREN OF JOINT CUSTODY IN THE STATE Of Kentucky. Also what the standard child support would be on 2 kids me making $13.99 an hour 49 hour week. i already pay $118.00 every 2 weeks on one daughter already. i dont know if they take that in considiration. my mailing address in po box 3185 mount vernon, ky 40456.

    Comment by JAMES SAVAGE | June 17, 2008 | Reply

  4. My ex-wife gave me primary residential custodianship of both of our 2 boys at seperate times and now is trying to take 1 of them back by filing a motion saying it is his decision to move back with his mother. Can he being 13 yrs old legally make the decision on which parent he lives with?

    Comment by Thomas J. Mitchell | August 2, 2008 | Reply

  5. if i agree to joint custody of our three daughters and give her primary residential parent dosent that mean that she will have the right to move away or even out of state if she wishes? and if so what will i have to do keep my children close to me?

    Comment by greg adcock | May 3, 2009 | Reply

  6. My wife and I are divorcing. We have agreed that the children will spend equal time with us. We have a parenting agreement which is very specific and operate according to it. We have also agreed to joint legal custody. My wife and I make the same amount of money.

    My wife now wants to be designated primary residential parent. Why? If we are joint legal and share time with the children 50/50, why do we need someone designated as primary residential parent?

    Neither of us have attorneys at this point for financial reasons.

    Thanks in advance.

    Comment by Johnson | July 28, 2009 | Reply

  7. I have been divorced for seven years to the day from my children’ mother.
    Over the past seven years, she has continued to harass me throught the Court System due to her inability to let go.
    This type of childish activity is due partly to the dysfunction that plagues her gene pool.
    Incest in her family and multiple marriages concerning her mother has caused her to be a sour woman consumed by hatred.
    My ex-wife, is bitter, and attempts to keep the kids from me and my wife. Shes mentally unstable and finds stability in chaos, in court.
    Money has always been the driving factor with her. Sad as it seems, she never grew up. Her mindset is, “If I buy you something you have to love me”. What escapes her is that the kids love her because she is their mother.
    The practical part of life would be for her to get on with her life and stop spinning her wheels because I have moved on.
    Stop clogging up the court system with scattered thought and empty arguments. She has cost,she and I thousands of dollars by standing in front of the Bench. She is not capable of understanding that travel to and from the Court room is an added expense as well.
    No one ever wins in custody cases as far s I am concerned. One thing is for sure, the past seven years of walking into the Court Room with her hair brained schemes has never won her any respect from the Judicial System.
    I have gone to court and I have walked out with my head held high,while she has gone out stunned and slightly confused because she “lost again”.
    She is a small miserable person not worthy of my time.

    Comment by Charles Kincaid | November 1, 2009 | Reply

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    Comment by florida hard money loans | May 6, 2013 | Reply

  10. my son and his babys mother has joint custody of the minor child with the court papers stating that neither parties has residential custody of minor child. what does that mean and can my son be required to pay child support?

    Comment by kim murphy k | August 21, 2013 | Reply


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