Legal Question in Family Law in Kentucky

Re: custody

When you say that a judge won't hear the case, then I have to assume some facts in order to answer. I am assuming that you filed a motion for custody modification along with the affidavit required by KRS 403.350.

Since the original decree was entered more than 2 years ago, the affidavit must state factual ground that show two things: 1) a change has occurred in the circumstances of the child or the residential parent, and 2) that a modification is necessary to serve the bests interests of the child.

Case law in Kentucky has made it clear that a move out of state, alone, is not sufficient reason to modify custody.

I am assuming that the judge has ruled on your motion. If that is true, then your only option is to go to the Court of Appeals.

Here's where I would need further facts. Two possibilities exist: 1) either the judge failed to make specific findings regarding the sufficiency of the affidavit, or 2) he or she made specific findings that the affidavit was insufficient. If the former is the case, then the Court of Appeals will remand the case to that judge to have a hearing on the sufficiency of the affidavits.

If the latter is the case, then you would have a very high burden of proof. You would have to demonstrate that the judges findings were clearly erroneous (abuse of discretion). The facts of the case would dictate whether you have a strong case or not.

Look up KRS 403.340 and examine the factors laid out in it.

If the judge has not even ruled on the motion for modification and affidavits at all and refuses to have a hearing on the sufficiency of the affidavit, you may have to file a Writ of Mandamus with the Court of Appeals. This is a mechanism to force a judge to do something required of him or her by statute.