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Ky Family Law Blog

Posts tagged Best Kentucky Divorce Attorney
Family Law Questions

I often get questions, from all over the country, that can be helpful for people who are looking for quick answers and if they should be seeking legal advice. Always consult a lawyer in your jurisdiction for specific advice:

QUESTION: 

My wife left our state for a supposed vacation recently. When I arrived to join her on vacation, she told me she would not be moving back home and that she wanted a divorce.

Blindsided! We have not yet filed for divorce, but I want to know what rights I have? I do not want my child to be 3,000 miles away and have to go live across the country in the mother’s new state

Answer:

While I am not licensed to practice law in your state, I can give some general guidance on this issue. 

You should immediately consult an attorney in your jurisdiction as the jurisdiction clock is running against you and the more time that you allow to pass, the closer that other state gets to assuming jurisdiction over the issues in your case.

Most states have a residency requirement in order to file for divorce. The timing of this residency requirement varies by state, but usually it is about 180 days. This is the time frame for establishing jurisdiction to get a divorce entered. 

When we are talking about children, jurisdiction is usually established by the Uniform Child Custody Jurisdiction and Enforcement Act that nearly every state has adopted as its own law.

The jurisdiction requirement under that act is that the home state of the child will control jurisdiction. The home state of the child is usually defined as where the child has resided for the past six months. For every day you delay, your wife’s new state may be getting closer to assuming jurisdiction over that issue of the case.

 

Displacing Divorce Myths Part 1: When does the child decide?

In all my years of practice I have heard from numerous clients the age in Kentucky that children get to choose who they want to live with. I have heard 10, 13, 16 and 17 as ages thrown out there. In my own personal experience, it was 11, when my parents sat me down and told me I got to pick who I wanted to live with. The state of Kentucky says that there isn’t an age that children get to pick who they want to live with. In reality, when they are adults is the only time they actually get to decide anything and in Kentucky that is 18.

 

The preferences of a child is one factor that Courts are allowed to consider, however, the child’s preference may not be that persuasive to the Court depending on your situation. In Kentucky, custody or visitation/parenting time is to be determined in accordance with the child’s best interests.  In determining a child’s best interests, the Court is required to consider all relevant factors. One of the many specific factor listed for the Court’s consideration if “…the wishes of a child as to his custodian.” 

 

 

Most mental health professionals caution against ever putting a child in this situation, from personal experience, I can say that many years later, this is still fresh in my mind. The Courts are reluctant to put a child in a position to voice a choice of one parent over the other.  It may be more appropriate to avoid asking a child directly as to preferences and putting that child in the middle of the parents’ divorce. This will shift the focus ofgathering  information from the child indirectly and from third parties as to a child’s preference and focus truly what is in the best interest of the child.

 

The focus of the Courts should be, if a child has a preference, what is the basis for the preference-is the basis of this preferenceThe issues that commonly arise are: whether the parents are manipulating a child to obtain a desired preference; or whether the child is manipulating the parents to get whatever he or she wants or perceives he or she needs.  In addition, there is the possibility of parental manipulation.  Teenagers are good at leaning towards the parent who will be more liberal in their parental supervision. This results in the teenager using one parent against the other. This isn’t because the teenager doesn’t like a parent, but probably because they are more interested in their friends, school or activities In reality  a child’s preferences may not be in the child’s best interests.  The eventual Court determination may indeed be contrary to any such preference.

Parties to a divorce need to understand that a preference of “well let’s just let the child decide, can be highly problematic. Children should never be empowered to make decisions that their parents cannot or refuse to make. Every case is different so the factors for a family are different as well. If a parent places too much emphasis on one factor (what the child wants) this may not be in the best interests of the child. It may create controversy, create further divides in the family structure and at the end of the day be costly for everyone involved.