New Family Court Rules to Make Domestic Practice Uniform Throughout Ky.

By Allison Russell and John Helmers

The Family Court Rules of Practice & Procedure (“FCRPP”) went into effect on January 1, 2011.  Prior to that date, attorneys practicing in Family Court primarily adhered to each individual judicial circuit’s local rules, which varied widely from county to county.  The FCRPP was enacted to provide some consistency across the state and streamline the procedures for the many different kinds of cases overseen by Family Court.  It is important to note that, under FCRPP 1(4), pro se litigants are held to have knowledge of these rules the same as parties represented by counsel.  That is just one reason why it is best to retain an attorney to represent your interests in Family Court.  The most significant changes are as follows:

Financial Disclosures

The single most drastic change the FCRPP made pertains to the disclosure of financial information in divorce proceedings.  Before the FCRPP, attorneys provided the opposing party with a Mandatory Case Disclosure (“MCD”), which set out, in detail, their client’s assets, debts, income, and nonmarital claims.  However, under FCRPP 2(2), attorneys must now file a Preliminary Verified Mandatory Disclosure (“PVFD”), which is substantially different from the MCD in that it is shorter and does not require the parties to attach as much supporting documentation to it.  The new form may be obtained online via the Kentucky Courts of Justice webpage.  The deadlines for providing this information have also changed.  The new rules also require both parties to simultaneously exchange PVFDs within 45 days of service of the Petition for Dissolution of Marriage upon the Respondent.   

Motions for Maintenance & Child Support

The FCRPP sets out strict guidelines for filing both Motions for temporary support and Motions to modify support.  FCRPP 5(1) states: “A motion for temporary maintenance shall be accompanied by copies of the movant’s last three paystubs […], an affidavit setting forth movant’s monthly expenses and income and the monthly income of the party from whom maintenance is sought.”  The same documentation must be attached to a Motion to Modify Maintenance pursuant to FCRPP 5(3)(a).  Many Courts will reject Motions if they are not accompanied by the requisite supporting documentation.

The rule pertaining to Motions for temporary child support or the modification of child support must be accompanied by a completed child support guidelines worksheet or, if modifying child support, the amount of the current child support obligation, and the movant’s last three pay stubs pursuant to FCRPP 9(4).  Motions for modification of child support must also include documentation of year to date income from all sources, the most recently filed tax returns, verification of the cost of health insurance exclusively for the children, and verification of child care expenses per FCRPP 9(6). 

Custody, Timesharing & Visitation

FCRPP 6 simply provides a non-exhaustive list of tools the Court may use in disputes concerning custody; custody evaluations, psychological evaluations, family counseling, mediation, guardian ad litems, etc. In addition, it provides that the Court shall conduct a hearing on any Motion for Temporary Custody, Time Sharing, Visitation and/or Support 30 days of filing of the motion.  Appendix A to the rules sets out a Model Time-Sharing/Visitation Guidelines, which is fairly comprehensive.  It breaks down holiday visitation, transportation, exchanging contact information, weekday parenting time, cancellations, etc. 

Adoption

In cases of involuntary termination of parental rights, under FCRPP 34(1), immediately upon filing the petition, the party seeking adoption shall obtain a pretrial date.  In the event the biological parents are not served prior to the pretrial date, the pretrial date shall be used as a case status review to expedite the proceedings.  Furthermore, under FCRPP 33(1), no request for final hearing shall be made prior to the filing of the state protective service agency report and the Guardian ad Litem report. FCRPP 36 states that, after an order terminating parental rights is entered, the court shall hold a review hearing “90 days from the date of the entry of the order of terminations and at least annually thereafter” for the purpose of reviewing whether there has been any progress toward finalization of placement or adoption. 

 Dependency, Neglect, & Abuse cases

The new Uniform Family Court rules mandate notice of new Petitions to Terminate Parental Rights to counsel of record and to the Guardian ad Litem within one day of the filing of the Petition.  In addition, the Cabinet for Health and Family Services is required to file case plans, visitation plans, and prevention plans in the court record.  Currently, Family Courts have been very lax about enforcing these rules.

In addition to the procedural changes, there were at least two substantive changes.  In FCRPP 24, the Rules state that a Petition may only be dismissed by court order.  Formerly, the decision to dismiss was that of the prosecutor alone.  The new rule seems to drastically change the balance of power, although it is uncertain as to how the Court would exercise informed judgment on a case that had not been presented.    Additionally, the Rules seem to add to the grounds for extending the deadline to hear cases promptly.  Under current law, the case must have both an adjudication and a disposition within 45 days when a minor child is removed from a parent and placed in the temporary custody of the Cabinet.  The statute permits this to be waived by the parties or extended by the Court for good cause shown.  In FCRPP 23, the Court permits continuance for good cause, including a finding that it is in the best interest of the child, for accumulation of evidence, for presentation of evidence or to protect the rights of the party.

|