There is a common misconception that, in Kentucky, there is a magical age when the child can decide for himself or herself which parent he or she is going to live with.  I am here to clarify for you that such an age, other than the age of majority/adulthood, does not exist.  There is no law that allow a child to unilaterally make that determination.  I get asked this question all the time and the answer is always the same.  I usually respond in the form of a question, "Would you have wanted fifteen year old you to have this kind of power?"

Think about if there were such a magical age and law.  Son gets mad at dad one night, "I'M out.  I am going to live with mom."  The next week, he is mad at mom.  "Nuts to this.  I am going back to live with dad."  I do not care how well-behaved, intelligent and "good," your teenager is.  Giving them this sort of power would be like giving a dog access to a meat packing plant and expecting it to not eat itself into oblivion.

Also, please think about how manipulative adults can try and be when going through a divorce/custody issues.  I believe that we here in Lexington, Kentucky and the Central Kentucky area are some of the most decent people on the planet.  However, after doing this for twenty years, I can tell you that honesty, decency and kindness are often flat-out ignored in a divorce or custody matter.  It would be so easy for a parent to manipulate a child with gifts or promises into "choosing" them if they were at this magical age.

I do understand where the confusion comes from, though.  As part of this article, I have provided a helpful link to KRS 403.270.  When you look at Section 2, you will see a list of factors a court will use to consider the best interests of the child, which is the legal standard they are to employ.  One of these is KRS 403.270(2)(b) which does list as a factor the wishes of the child.  However, this list is not exhaustive and this is only a factor, not an absolute right given to the child to choose. 

Please also note in the main body of Section 2 that there is a presumption for joint custody and equal timesharing.  This means that this is where the court is inclined to favor, unless there is some proof to rebut this presumption.  So you understand, custody and timesharing are two different things.  Custody simply means who is making major life decisions for the child, such as doctor choice, religion preference, school to attend.  In joint custody situations (which are the presumption), both parents have an equal say.  In sole custody scenarios, the sole custodian does.  A vast majority of custody cases are joint custody matters.  Unless there is some significant issue on a parent's part, such as addiction, mental health issues, abandonment, the custody decision will be for joint custody. 

Timesharing is where the child is physically from one day to the next, where he or she will spend the holidays and how summer will be split up.  Once again, the presumption is that this timesharing will be equal.  This is also a rebuttable presumption if there is evidence to demonstrate why equal timesharing will not work.   common example would be physical distance between the parents being too great to allow for a workable equal timesharing arrangement.

Could you imagine, for example, if mom lived in Louisville and dad lived in Lexington and the child could decide where he or she would live?  He or she could theoretically flip-flop between homes and schools so often that it would be impossible for him/her to ever receive an education or any semblance of normalcy and stability.

I hope this helps explain the logic behind there being no such magical age and dispels the notion that there is.  Here is the link for the statute: https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48320

As always, for any divorce/custody/family law needs, feel free to contact me.

--Jason Rapp