concurring in result only.'
I agree with the majority’s holding that joint custody is a form of custody and would overrule Benassi v. Havens, Ky. App., 710 S.W.2d 867 (1986). It follows that if joint custody is a form of custody, that modifications must follow the requirements of KRS 403.340. This would also require that Mennemeyer v. Mennemeyer, Ky.App., 887 S.W.2d 555 (1994) be overruled because Mennemeyer begins with the premise that joint custody is no award at all when considering modification. However, I agree with Judge Miller’s dissent wherein he opines that the Carnes v. Carnes, Ky., 704 S.W.2d 207 (1986) case is not a joint custody case but a sole custody situation with liberal visitation.
I would also omit all references to the violation of the separation of powers argument in overruling Mennemeyer. When Benassi held joint custody was not an award of custody, that left us unthout statutory modification requirements. The Mennemeyer Court was not trying to *815usurp the functions of the Legislature, but was filling in some gaps in the form of due process, much like Briggs v. Clemons, Ky. App., 3 S.W.3d 760 (1999). We were wrong in the Benassi case and everything that follows from that holding is wrong. However, it does not follow that the Men-nemeyer Court was substituting its judgment for that of the Legislature.
In the case sub judice, I would agree that KRS 403.340 (Modification of Custody Decree) applies to joint custody cases, but I would stop there. The majority feels the child has been integrated into the family of the father with the mother’s consent since he spent four nights a week with the father and three nights a week with the mother. Why? Was he not still integrated into the mother’s family? Does the aggregate number of hours translate into integration? I believe the majority is creating a legal fiction if it believes the child was not still integrated into the mother’s family. Hopefully, in all joint custody situations, the child will be an integral part of each parent’s family. Joint custody is different from sole custody with liberal visitation. Let us not forget the distinctions so soon after overruling Benassi and Men-nemeyer.
EMBERTON, Judge, concurs in this opinion.