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Parental Relocation - Current Standards

Parental relocation in Kentucky is generally predictable, and set forth according to a couple of readily ascertainable rules.

The standards employed for are those set forth in Pennington vs.Marcum, Ky., 266 S.W.3d 759 (2008), which modified and distinguished the prior standards for relocation. Prior to Pennington, a non-primary custodian parent who objected to a primary residential custodian's relocation with a child could only prevent the relocation by being named the sole or primary residential custodian; to do so, that litigant was obligated to therefore show that the child's present environment serious endangered the child's physical, mental, moral, or emotional health, and that the harm would likely be caused by a change in the environment. Fenwick vs Fenwick, Ky., 114 S.W.3d 767 (2003). Pennington modified this by describing the fluidity of the notion of what constitutes "joint custody", and setting forth some new standards for relocations. According to the case, the following principles are paramount:

1. The first question on a custody modification or relocation motion is, "is the motion actually seeking modification of custody or visitation/timesharing?"

2. When the party opposing relocation is truly seeking a change in custody, from joint to sole (or vice-versa), the second pertinent question regarding modification of custody is, "When was the custody decree issued?" This will determine the standard of review for modification.

3. If a parent opposing relocation files a motion to modify custody within two years of the date of the custody decree, then the moving party must establish that the move or other reason seriously endangers the child or that the child has been abandoned to a de facto custodian in order to modify custody. If the standard is met, and custody is changed, then that parent as sole custodian could prevent relocation of the child. But, if the only interest of the opposing party is to object to relocating the child, but not to alter joint decision-making, then he is seeking to have the existing visitation/timesharing arrangement changed, and need only establish that it is in the child's best interests not to relocate, which would thereby change the existing visitation/timesharing situation.

As I review current litigation I recently participated in, courts are generally VERY interested in 1) compliance with procedure on parental relocation (ie no moving until the order is granted) and 2) continuity and stability for the child.  So long as those factors are met, results are predictable.

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