The case of Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), drastically changed the way that litigants should approach modifications of timesharing and custody. However, litigants continue to request modifications of custody, which have increased procedural requirements as well and often a higher burden of proof, with the much more simple motion to modify timesharing. This was again outlined in the recent case of Caskey v. Caskey, 2010-CA-000667-ME, out of the Wolfe County Circuit Court. In Caskey, a father sought a modification of custody after his daughter was injured in her mother’s care by her friend’s husband. The Caskeys had joint custody with equal timesharing, yet the mother was designated as the “primary residential parent.” Mr. Caskey requested that the court instead make him the “primary residential parent” and order that the child live primarily with him, while limiting her timesharing with her mother. He did not request a change in legal custody status from joint custody to sole custody. The Court of Appeals was very clear in holding that this was not a modification of custody case, but was instead simply a modification of timesharing, to which the lower best interests of the child standard was to apply. This marks a continued attempt by the Commonwealth of Kentucky’s higher courts to clarify the difference between legal and physical custody, though it seems attorneys and litigants likewise continue to be slow to catch onto the difference between the two.

 

Hon. Nicole S. Bearse, Esq.

Michael L. Hawkins & Associates, P.L.L.C.