Legal Memorandum

Date: April 16, 2019

Re: Smith v. Smith

It is an impending divorce, regarding arrangements for three children custody and child support and argument for maintenance.

ISSUES

Issue I: Under Kentucky law In Determining custody, what factors does the court use to make that Determination, if one child is still breastfeeding with medical needs and the other two teens want a particular high school that offers Volleyball scholarship located where the father lives, How Guardians Ad Litem perform a significant role in the best interests of the child Who would be the primary custodian?

Brief Answer 1: Under Kentucky Revised Statues Title XXV. Domestic relations, Chapter 403 states that the best interest of the child shall be used to determine custody. With this statute, the primary caregiver, or “de facto custodian,” must be an individual who can act as the primary caregiver and financial supporter of the child. The individual must meet the requirements of KRS 405.020 to be granted custody of the child. The court considers the wishes of the parent(s), the wish of the child, the interrelationship between child and parent, the child’s adjustment at home and their mental health. A “guardian ad litem,” or GAL, is a person that is appointed by the court to investigate what solutions would be in the best interest of the child. The GAL investigates the family and advises the court. This will include: where the children should live most of the time; if a child is being harmed by a parent’s substance abuse; and what kind of contact the child should have with the parent.

Issue II Under the Kentucky family law, does the court to establish or enforce child support for minor children when one of spouse unemployed?

Brief Answer 2: Under Kentucky Family law, if a parent is unemployed or underemployed, then the parent’s “potential income” is used. Potential income includes the parent’s employment potential, probable earning, occupational qualification, and job opportunities in the community. There are three situations where potential income is not used for unemployment. This includes if the parent is physically or mentally incapacitated or if the parent is caring for a child that is three-years-old or younger to which the parents owe a joint legal responsibility.

Issue III Under the Kentucky law, if one spouse is unemployed, but will earn 50,000 annually once she completes 4 classes earning a Bachelor’s of Science Nursing degree, meanwhile the other spouse is employed with an annual income of $120,000 and offered a mortgage-free marital home for the spouse. What are the criterions the court will use determine maintenance?

Brief Answer 3: The potential income will be used. It is expected that the partner will make $50,000 once the four classes are finished. The court will consider this factor (the $50,000 the individual would earn) and take into account the individual’s potential for employment, occupational qualification, and job opportunities. This will be used to determine maintenance.

Statement of Facts

Jennifer Smith and Jonny have decided to obtain a divorce (dissolution of marriage) thirteen years. For approximately five months, they have been living apart. Johnny is now living in a three-bedroom condo in Lexington, Kentucky, while Jennifer is living in the marital home. Jonny and Jennifer Smith have already had several quarrels and arguments concerning arrangements of child support and custody for their three children Joe, age thirteen months, Jessica, age twelve years, and Julie, age sixteen years. Jessica and Julie are both "father's daughter" and want to live with the dad. They blame their mother for the divorce. Jennifer still breastfeeds Joel. Joel is a particular need child. Therefore, the medical backgrounds of Jennifer are necessary for Joel's needs. Jonny has challenges meeting the medical needs of Joel and has no medical knowledge. Currently, Jonny is dating Dr. Sizemore Sandy Nevertheless, Dr. Alex Miller, the Pediatrician of Joel, would be ready to testify that Jennifer is better placed to achieve the needs of the toddler.

Analysis Issue I

The issue I: Joint Custody Will Be the Default under New Kentucky Law

In the case of Jonny and Jennifer, the court may allow Jennifer to have full custody of Joel because of his special needs. However, the court can still recognize the father to access him at will. Kentucky is the original state in the nation to establish "legal assumptions" for joint custody in the proceedings of divorce. The law argues that joint custody supports a more stable rearing of the children. In Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) The court granted joint custody to both spouses since it was a no-fault divorce scheme. Both parties had joint custody, with the mother having primary custody and the father liberal visitation. The court is likely to allow for joint custody because, under Kentucky laws, single parenting deprives the children meaningful connections with both of their parents. The family juries were granting all of the parenting time and one parent custody essentially. This excluded otherwise fit parent from being involved in the upbringing of their children and essentially relegating them to being a visitor in the lives of their children. The law, therefore, advocates for equals rights for custody of the children where both parents must be involved in the rearing of their kids. Jonny and Jennifer should try to solve the custody cases before they get to court to avoid confrontations and antagonism between them.

Counter analysis

a) Jess and Julie

In Johnny’s situation, the court will make several considerations while granting custody in the case of Julie and Jess. According to Statue KRS 403.290. A child who is above 11 years and is capable of making her own decisions has the freedom to choose who they want to live with. Both Jess and Julie are above 11 years and are willing to live with Johnny. The court can therefore grant John full custody from this point of view.

Secondly, according to the KRS 403.270; the best interests of the kids should be put into consideration when making decisions on child custody. In addition to the fact that they want to live with Johnny, Julie and Jess play volleyball and have been accepted to a school that play volleyball exceptionally which is near where Johnny is currently living. The court can therefore grant Johnny custody on the basis of Guardian Ad Litem since his conditions better support the wellbeing of Jess and Julie.

b) Joel

Joel is still breastfeeding and has a disability. With reference to KRS 403.290; best interests of the child and Guardian Ad Litem, Jennifer is the best caregiver to john. Being a nurse, Jennifer is more likely to offer better care to Joel compared to John. In addition, the fact that Joel is still breastfeeding makes Jennifer his Guardian Ad Litem.

Summary of Possible Outcomes: Johnny to be Julie’s and Jess’ primary custodian. Jennifer is more likely to be Joel’s primary custodian.

Analysis Issue II

The court may allow the children to live with the unemployed parent but compel the employed parent to provide the necessary support the children need. Alternatively, the court may allow the children to live with an employed parent and let the other parent just to be visiting them to know their well-being. Under the Kentucky child support guidelines, if one of the spouses is unemployed but has the ability to seek for employment; then the employed spouse has the responsibility of providing temporary child support; an amount, which is decided, by the court for the minor child. However, if the spouse is not capable of getting a job due to health or mental issues, then the employed spouse has an obligation to provide full child support.

Analysis Issue III

Jennifer’s Maintenance Despite being currently unemployed, Jennifer has the potential of finding a job that will give her a salary of approximately $50, 000 once she completes her four classes in nursing. According to the Kentucky’s guideline on maintenance and with reference to GOSSET v. GOSSET case law; Jennifer is entitled to receiving temporary maintenance from Johnny until she completes her classes, gets a job and gets up on her feet. In GOSSET, v. GOSSET, 32 S.W.3d 109 (2000) the court ruled that the defendant (ex-wife); who was at the time of separation unemployed had the capacity to find employment. Therefore, the court ruled that the defendant could receive a temporary maintenance of $50 per month for a period of two years; according to KRS 403.212 before getting back to her feet. This maintenance was mainly dedicated to healthcare.