Custody

You can fill out a power of attorney form to give all or part of your custodial responsibility to another adult while you are gone. However, a power of attorney is only an option when one of the following two things is true:

• no other parent has custodial responsibility under Kentucky law; or
• there is a court order currently in effect that prevents your child’s other parent from having contact with your child.¹

You can end (“revoke”) the power of attorney at any time by signing a document that specifically says you are terminating it.¹ Go to Does a temporary custody agreement or power of attorney entered into while one parent is deployed have to be filed in court? to read about the next steps.

¹ Ky. Rev. Stat. § 403A.204

If both parents agree on a temporary custody arrangement while one parent is deployed, Kentucky law provides a way to document your agreement without having to go through court proceedings.

The agreement must be written down and signed by both parents and any other person who is going to have responsibility for the child during the deployment, such as a grandparent.¹ Think carefully about the details of your agreement, and make sure that everything you want to have happen with your child is included. If the court ever needs to get involved, it’s likely that the judge will only consider the written document - not any verbal agreements you and the other parent may have made.

Ideally, your agreement should contain the following information:

1. If you can, explain where the military parent will be deploying, how long s/he will be gone, and what the conditions of his/her deployment are;
2. Explain who will be taking care of the child, whether that is the deploying parent, the other parent, or any other person;
3. Explain who will have the right to make decisions about the child while the agreement is in effect. This could mean the parent remaining at home makes some types of decisions, while the military parent must be consulted for other types of decisions. If a nonparent is going to be helping care for the child, such as a grandparent or a trusted friend, state what the limits of his/her authority will be;
4. If you are agreeing to any kind of limited contact for a nonparent, explain clearly what you are intending to allow;
5. If the child is going to be living both with a parent and a nonparent, explain how you intend to solve any disagreements that may come up;
6. Explain what contact the deploying parent will have with the child. You must include how often, how long, and what form the contact will take; for example, Zoom, phone calls, texts, emails, etc. If the parent at home needs to do something to make that contact happen, state exactly what the parent at home needs to do and who will pay for any costs that are associated with the contact;
7. Explain what contact the deploying parent will have with the child while that parent is on leave or is otherwise available;
8. State that both parents are aware that this agreement cannot modify any child support payments that have already been ordered, and that if the child support needs to be changed during the deployment, the parties must contact the court that issued the child support order;
9. State that the temporary agreement will end after the deploying parent returns from the deployment; and
10. If the agreement must be filed with the court, state which parent will be responsible for filing it. See Does a temporary custody agreement or power of attorney entered into while one parent is deployed have to be filed in court? for more information.²

It’s important to include as many of these things in your agreement as you can, but your agreement won’t be invalid just because you leave a few things out.³ However, you often can avoid a lot of problems down the road if you can make your agreement as complete as possible.

¹ Ky. Rev. Stat. § 403A.201(1), (2)
² Ky. Rev. Stat. § 403A.201(3)
³ Ky. Rev. Stat. § 403A.201(4)

If you and the other parent agree on the change (“mutual consent”), the temporary custody agreement you made to cover the time period during either parent’s deployment can be changed.¹

If you make the change before the deploying parent leaves, your changes must be made in writing and signed by both parents. If there is anyone else who will be responsible for your child under your new arrangement, s/he needs to sign the agreement too.²

If you make the change after the deployment begins, your changes must be clearly documented in some way (“in a record”). You will need the consent of both parents, along with anyone else who will be responsible for your child under your new agreement.³ Often, this type of “record” may happen via email or text.

If you and the other parent do not agree about the change, you may want to talk to a Kentucky lawyer to find out what your options are. Go to our Kentucky Finding a Lawyer page for referrals.

¹ Ky. Rev. Stat. § 403A.203(1)
² Ky. Rev. Stat. § 403A.203(2)
³ Ky. Rev. Stat. § 403A.203(3)