Kentucky Family Law

  1. Overview

    The following sections are included because it may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, or is considering a divorce or possibly a separation. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of sexual photos/videos may well be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining issues relating to spousal support.

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  2. Divorce

    1. Introduction

      Kentucky is a purely no-fault divorce state, and most divorces are based on the grounds that the parties have irreconcilable differences that have led to the breakdown of the marriage. However, fault can be considered as a factor by the court when it divides property or awards alimony. Kentucky is an equitable division state, so each spouse owns the income he or she earned during the marriage and also has a right to manage any property in his or her name alone, but the judge has discretion to divide property “fairly.” Because Kentucky is a no-fault state, it’s unlikely that the parties to a divorce being carried out in a Kentucky court will try to offer evidence of salacious photographs of their former spouse, and/or inappropriate communications in an effort to sway the court in their favor.

    2. Text of the Statute(s)

      1. KY. REV. STAT. § 403.140 (Marriage – Court may enter decree of dissolution or separation)

        (1) The Circuit Court shall enter a decree of dissolution of marriage if:

        (a) The court finds that one (1) of the parties, at the time the action was commenced, resided in this state, or was stationed in this state while a member of the armed services, and that the residence or military presence has been maintained for 180 days next preceding the filing of the petition;

        (b) The court finds that the conciliation provisions of KRS 403.170 either do not apply or have been met;

        (c) The court finds that the marriage is irretrievably broken; and

        (d) To the extent it has jurisdiction to do so, the court has considered, approved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse, and the disposition of property.

        (2) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects, in which latter event the other provisions of this chapter shall apply.

      2. KY. REV. STAT. § 403.170 (Marriage – Irretrievable breakdown)

        (1) If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after hearing, shall make a finding whether the marriage is irretrievably broken. No decree shall be entered until the parties have lived apart for 60 days. Living apart shall include living under the same roof without sexual cohabitation. The court may order a conciliation conference as a part of the hearing.

        (2) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that give rise to filing the petition and the prospect of reconciliation, and shall:

        (a) Make a finding whether the marriage is irretrievably broken; or

        (b) Continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon thereafter as the matter may be reached on the court’s calendar, and may suggest to the parties that they seek counseling. The court, at the request of either party shall, or on its own motion may, order a conciliation conference. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken.

        (3) A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.

      3. KY. REV. STAT. § 403.230 (Legal separation – Court may convert, to a decree of dissolution – Restoration of former name)

        (1) No earlier than one year after entry of a decree of legal separation, the court on motion of either party shall convert the decree to a decree of dissolution of marriage.

        (2) Upon request by a wife whose marriage is dissolved or declared invalid, the court may, and if there are no children of the parties shall, order her maiden name or a former name restored.

      4. KY. REV. STAT. § 403.036 (Mediation not to be ordered unless conditions are met)

        In any court proceeding conducted pursuant to KRS 403.010 to 403.360, if there is a finding of domestic violence and abuse, as defined in KRS 403.720, the court shall not order mediation unless requested by the victim of the alleged domestic violence and abuse, and the court finds that:

        (1) The victim’s request is voluntary and not the result of coercion; and

        (2) Mediation is a realistic and viable alternative to or adjunct to the issuance of an order sought by the victim of the alleged domestic violence and abuse.

      5. KY. REV. STAT. § 403.120 (Marriage – Court may declare invalid)

        (1) The Circuit Court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:

        (a) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or deformity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage;

        (b) A party lacks the physical capacity to consummate the marriage by sexual intercourse, and the other party did not at the time the marriage was solemnized know of the incapacity;

        (c) The marriage is prohibited.

        (2) A declaration of invalidity under paragraph (a), (b) or (c) of subsection (1) may be sought by any of the following persons and must be commenced within the times specified, but only for the causes set out in paragraph (a) may a declaration of invalidity be sought after the death of either party to the marriage:

        (a) For a reason set forth in paragraphs (a) and (b) of subsection (1), by party or by the legal representative of the party who lacked capacity to consent, who was the offended party or did not know of the incapacity, no later than 90 days after the petitioner obtained knowledge of the described condition;

        (b) For the reason set forth in paragraph (c) of subsection (1), by either party, no later than one (1) year after the petitioner obtained knowledge of the described condition.

    3. Cases

      Research is ongoing.

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  3. Child Custody

    1. Introduction

      If the victim of the nonconsensual online publication of intimate photos is involved in a child custody dispute, he or she may use evidence of this type of misconduct to establish abuse or harassment by his or her former spouse or lover. When determining child custody, the court’s primary consideration is to decide what is in the “best interest(s) of the child.”1

    2. Text of the Statute(s)

      • KY. REV. STAT. § 403.270 (Custodial issues – Best interests of child shall determine – Joint custody permitted – De facto custodian)

        (1)

        (a) As used in this chapter and KRS 405.020, unless the context requires otherwise, “de facto custodian” means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department of Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.

        (b) A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian established in paragraph (a) of this subsection. Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section and KRS 403.280, 403.340, 403.350, 403.822, and 405.020.

        (2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors, including:

        (a) The wishes of the child’s parent or parents, and any de facto custodian, as to his custody;

        (b) The wishes of the child as to his custodian;

        (c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;

        (d) The child’s adjustment to his home, school, and community;

        (e) The mental and physical health of all individuals involved;

        (f) Information, records, and evidence of domestic violence as defined in KRS 403.720;

        (g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;

        (h) The intent of the parent or parents in placing the child with a de facto custodian; and

        (i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of the domestic violence as defined in KRS 403.720, and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

        (3) The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child. If domestic violence and abuse is alleged, the court shall determine the extent to which the domestic violence and abuse has affected the child and the child’s relationship to both parents.

        (4) The abandonment of the family residence by a custodial party shall not be considered where said party was physically harmed or was seriously threatened with physical harm by his or her spouse, when such harm or threat of harm was causally related to the abandonment.

        (5) The court may grant joint custody to the child’s parents, or to the child’s parents and a de facto custodian, if it is in the best interest of the child.

        (6) If the court grants custody to a de facto custodian, the de facto custodian shall have legal custody under the laws of the Commonwealth.

      • KY. REV. STAT. § 403.290 (Child: court may interview, court may seek advice of professional personnel)

        (1) The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case.

        (2) The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available to the court to counsel upon request. Counsel may examine as a witness any professional personnel consulted by the court.

    3. Cases

      1. LaLonde v. LaLonde, No. 2009-CA-002279, 2011 WL 832465 (Ky. Ct. App. Feb. 25, 2011)

        • Procedural Posture: Ex-wife appealed from the portion of the decree of dissolution of marriage confirming the report of the domestic relations commissioner and awarding her joint custody of the couple’s child, but awarding physical custody to ex-husband.

        • Law: Child custody laws

        • Relevant Facts: The couple married, had a child, and divorced. The commissioner’s report recommended ex-husband as the primary physical custody-holder. Ex-wife appealed. Ex-wife argued that the decision was partially based on the improper admission of evidence, including several Facebook photographs of ex-wife partying as evidence that she had been drinking against the advice of care providers. Ex-wife asserted that the photos had not been properly authenticated.

        • Outcome: The court affirmed, finding that because it was ex-wife herself who acknowledged that she had been drinking alcohol, the testimony sufficiently authenticated the photographs and they were properly admitted into evidence. Ex-wife also argued that she had not given permission to have the photographs “tagged” to identify her. The court rejected ex-wife’s argument explaining that “[t]here is nothing that requires her permission when she was ‘tagged’ or identified as a person in those pictures. Similarly, although we acknowledge that modern digital photography techniques may allow for the alteration of a photograph, [ex-wife] did not suggest such techniques were employed,” and rather, “acknowledged the photographs were accurate.”2

    4. Practice Pointers

      Given the advent of modern technology and the ready accessibility of social networking sites, individuals included in any family dispute should ensure that they carefully monitor their own behavior to avoid having inappropriate photos affect their case.

    1. KY. REV. STAT. § 403.270(5). 

    2. LaLonde v. LaLonde, No. 2009-CA-002279-MR, 2011 WL 832465, at *2 (Ky. Ct. App. Feb. 25, 2011). 

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