Will my husband committing adultry have any impact on the custody case?
Full Question:
If a spouse has committed adultery, can this be brought up during the proceedings and is it relevant since KY is a no fault state? Also, will adultery, even if ended by the spouse who committed the adultery, have an impact on child custody?
06/10/2007 |
Category: Divorce |
State: Kentucky |
#6299
Answer:
The applicable Kentucky statutes are as follows:
403.160. Temporary orders — Maintenance, child support,
injunction — Disclosure of information on domestic
violence or child abuse.
(1) In a proceeding for dissolution of marriage or for legal
separation, or in a proceeding for disposition of property or
for maintenance or support following dissolution of the
marriage by a court which lacked personal jurisdiction over
the absent spouse, either party may move for temporary
maintenance. The motion shall be accompanied by an affidavit
setting forth the factual basis for the motion and the amounts
requested.
(2) (a) In a proceeding for dissolution of marriage, legal
separation, or child support, either party, with notice to the
opposing party, may move for temporary child support. The
motion shall be accompanied by an affidavit setting forth the
number of children of the marriage and the information
required to calculate the combined adjusted parental gross
income set forth in KRS 403.212(2)(g), and the Social Security
numbers, provided in accordance with KRS 403.135, of all
parties subject to the motion. The court shall, within
fourteen (14) days from the filing of said motion, order an
amount of temporary child support based upon the child support
guidelines as provided by law, and the ordered child support
shall be retroactive to the date of the filing of the motion
unless otherwise ordered by the court.
(b) Upon a showing of good cause, either party may move
the court to enter an order for temporary child support
without written or oral notice to the adverse party. After
reviewing the affidavit required by paragraph (a) of this
subsection, the court may issue a temporary child support
order based upon the child support guidelines. The order
shall provide that the order becomes effective seven (7) days
following service of the order and movant's affidavit upon
the adverse party unless the adverse party, within the
seven (7) day period, files a motion for a hearing before the
court. The motion for hearing shall be accompanied by the
affidavit required by paragraph (a) of this subsection.
Pending the hearing, the adverse party shall pay child support
in an amount based upon the guidelines and the adverse party's
affidavit. The child support order entered following the
hearing shall be retroactive to the date of the filing of the
motion for temporary support unless otherwise ordered by the
court.
(3) As part of a motion for temporary maintenance or support
or by independent motion accompanied by affidavit, either
party may request the court to issue a temporary injunction
or restraining order pursuant to the Rules of Civil Procedure.
(4) If the court or agent of the court is made aware that
there is reasonable evidence of domestic violence or child
abuse, the court shall determine whether disclosure to any
other person of the information could be harmful to the parent
or child, and if the court determines that disclosure to any
person could be harmful, the court and its agents shall not
make the disclosure.
(5) On the basis of the showing made and in conformity
with KRS 403.200, the court may issue a temporary injunction
or restraining order and an order for temporary maintenance
in amounts and on terms just and proper in the circumstances.
(6) A temporary order or temporary injunction:
(a) Does not prejudice the rights of the parties or the
child which are to be adjudicated at subsequent hearings in
the proceeding;
(b) May be revoked or modified before final decree on a
showing of the facts necessary to revocation or modification
under the circumstances; and
(c) Terminates when the final decree is entered or when the
petition for dissolution or legal separation is voluntarily
dismissed.
403.200. Maintenance — Court may grant order for either spouse.
(1) In a proceeding for dissolution of marriage or legal
separation, or a proceeding for maintenance following
dissolution of a marriage by a court which lacked personal
jurisdiction over the absent spouse, the court may grant a
maintenance order for either spouse only if it finds that the
spouse seeking maintenance:
(a) Lacks sufficient property, including marital property
apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate
employment or is the custodian of a child whose condition or
circumstances make it appropriate that the custodian not be
required to seek employment outside the home.
(2) The maintenance order shall be in such amounts and for
such periods of time as the court deems just, and after
considering all relevant factors including:
(a) The financial resources of the party seeking maintenance,
including marital property apportioned to him, and his ability
to meet his needs independently, including the extent to which
a provision for support of a child living with the party
includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or
training to enable the party seeking maintenance to find
appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the
spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought
to meet his needs while meeting those of the spouse seeking
maintenance.
403.270. Custody 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 for
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 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.