dissenting.
Although I join in Judge Miller’s dissenting opinion, I believe it is appropriate to make certain additional comments.
Sections 402 and 409 of the Uniform Marriage and Divorce Act (UMDA) originally provided the basis for KRS 403.270 and KRS 403.340, respectively. Neither Section 402, pertaining to custody determinations, nor Section 409, pertaining to custody modifications, addresses the issue of joint custody. Similarly, when enacted in 1972, neither KRS 403.270 nor KRS 403.340 addressed the issue of joint custody. KRS 403.270 was amended in 1980 by the addition of subsection (3) (now subsection (5)), which provides that “[t]he court may grant joint custody to the child’s parents if it is in the best interest of the child.” However, KRS 403.340 has never been amended to address issues regarding the modification of joint custody.
Although KRS 403.270 permits a joint custody award which the court believes is in the child’s best interest, as a practical matter many joint custody arrangements are reached by agreement of the parties. Certainly, this process should be encouraged, as the resolution of custody issues by agreement promotes the laudable goals of reducing conflict between the parties and the subsequent harm to their children, reducing costs to the parties, and promoting judicial economy. However, it is clear that in uncontested joint custody situations, courts generally do not devote the same degree of attention to considering the “relevant factors” set out in KRS 403.270(l)(a) through (e) as would occur in contested custody situations. Instead, courts understandably tend to rely on the judgment of the parties that joint custody would best serve their own children’s interests. These facts led to the statement in Benas-si v. Havens, Ky.App., 710 S.W.2d 867, 869 (1986), that modification in joint custody cases “should be made anew under KRS 403.270 as if there had been no prior custody determination. As a practical matter, joint custody is no award at all when considering modification of the arrangement.”
It is my view that, in overruling Benas-si, the majority opinion overlooks the fact that awards of joint custody are frequently based on parties’ agreements, and are made without the type of intensive judicial scrutiny afforded to contested custody cases. Currently, existing case law provides that if joint custody fails and the parties seek judicial intervention, the court *817should first consider its ability to modify the existing joint custody in light of Mennemeyer v. Mennemeyer, Ky.App., 887 S.W.2d 555 (1994), and its progeny. Those cases establish
a threshold procedural requirement, regarding the existence of an inability or bad faith refusal of the parties to cooperate, which must be met before a trial court may consider whether to modify an award of joint custody. Similar to the threshold procedural requirement set out in KRS 403.340(1) regarding the modification of a sole custody decree within two years of its inception, the Mennemeyer threshold requirement simply is a first step which must be satisfied before a party may proceed in his or her attempt to modify a joint custody decree. Once this threshold requirement is met, the trial court may then make a de novo determination of custody in accordance with the child’s best interest, utilizing the factors set forth in KRS 403.270.
Jacobs v. Edelstein, Ky.App., 959 S.W.2d 781, 784 (1998).
The majority opinion, by overruling Be-nassi and Mennemeyer, and by limiting the modification of joint custody to those situations which satisfy the threshold requirements of KRS 403 .340(1), in essence dictates that no motion may be made to modify joint custody prior to the passage of two years from the joint custody decree unless accompanying affidavits show that “there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.” Id. Even after that two-year period, KRS 403.340(2) provides in pertinent part that
the court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior decree unless:
(a)The custodian agrees to the modification;
(b)The child has been integrated into the family of the petitioner with consent of the custodian; or
(c)The child’s present environment endangers seriously his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment is outweighed by its advantages to him[.]
Thus, absent some agreement between joint custodians, the application of KRS 403.340(2) will require the parties to show the presence of serious endangerment before there may be a modification of joint custody. It is my opinion that such a requirement is inconsistent with the realities of how joint custody is awarded by courts.
Joint custody by its very nature requires parents to exercise certain levels of cooperation, perhaps particularly when young children are involved. Obviously, cooperation between divorced parents benefits the children, the parents, and society in many ways and should be encouraged by the courts. Unfortunately, however, even despite good intentions and efforts by one if not both parties, the necessary level of cooperation is not always achieved by divorced parents, and judicial intervention may then become necessary. However, since often the circumstances pertaining to the inability or bad faith refusal of the parents to cooperate and the failure of joint custody could not be described as ones which “seriously endanger” the children), the majority’s opinion will leave such parents with no way to judicially resolve their inabilities or bad faith refusal to cooperate in sharing joint custody. I fear that as a result, attorneys may well discourage their clients from pursuing joint custody due to concerns that problems *818may arise between the parties which could not easily be remedied by the courts. Instead, it seems likely that attorneys will encourage their clients to pursue greater custodial control through sole custody, resulting in increased costs to the parties, to the courts, and to society as a whole.
Finally, it should be noted that the language of KRS 403.340(2) itself is inconsistent with the majority’s opinion that the statute is intended to apply to the modification of joint custody decrees. As quoted above, the statute repeatedly refers to one but not both of the child’s parents as “the custodian.” However, as there is no determined single “custodian” in a joint custody situation, it would be illogical to apply that terminology to either party in a joint custody situation such as the one now before us. Contrary to the majority’s opinion, therefore, the Mennemeyer threshold requirement does not invade the province of the legislature by addressing an issue as to which the legislature has already spoken.
I would affirm the trial court’s opinion.
DYCHE, COMBS, and MILLER, Judges, Join in this dissenting opinion.