Rebuttable presumption of joint custody only applies in a modification case after the court first finds that a modification of custody is in child's best interests

Berzansky v. Parrish

Trial Court denied Father’s motion to modify custody of the parties’ minor child, which was registered as a foreign judgment in the Jefferson County Family Court. The Trial Court considered Father’s motion for modification of a custody decree pursuant to KRS 403.340(3), which states “If a Court in this state has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act, the Court shall not modify a prior custody decree unless after a hearing  it finds…upon the basis of facts that were unknown to the court at the time of entry of the prior decree…a change has occurred…and modification is necessary to serve the best interests of the child…”. The Trial Court found that a modification of custody was not in the child’s best interest.

On appeal, Father argued that the trial court failed to presume joint custody would be in the best interest of the child under KRS 403.340(6) and that it erred by relying upon the custodial evaluation report, which was “riddled with error” when making its decision.

In relevant part, KRS 403.340(6) states “if the Court orders a modification of a child custody decree, there shall be a presumption, rebuttable by a preponderance of the evidence, that it is in the best interest of the child for the parents to have joint custody.” Thus, the Court of Appeals held that the statute creates a rebuttable presumption only after the Court determines that a modification of an existing custody decree is in the child’s best interest. Because the Trial Court did not modify the existing custody decree, it did not err in rejecting Father’s assertion that it should have presumed joint custody to be in the Child’s best interest before it determined that custody modification was proper.

Father also argued that the custodial evaluator’s report was “riddled with error” because the evaluator’s use of the PORT test was inappropriate and lacked a scientific basis. After considering testimony from both the Father’s expert witness and the custodial evaluator, the Trial Court found that the Custodial evaluator’s use of the PORT test did not significantly impact her recommendations. The Court of Appeals upheld the Trial Courts decision.

Digested by: Emily T. Cecconi