Wahlke v. Pierce, No. 2012-000022-ME
Published: Reversing and Remanding
Mother and Father were married in 2000 and filed for dissolution of the marriage in 2008. When the petition was filed, Mother, Father and Child born of the marriage lived in Campbell County, Kentucky. After the dissolution was filed, Mother, with Child, and Father moved separately to Ohio. Neither the child nor the parents lived in Kentucky when the divorce decree was entered in 2009. Mother was awarded sole custody of Child, and Father was awarded visitation and ordered to pay child support. The parties’ continued to litigate post-decree issues related to child support, visitation and attorneys’ fees in the Family Court. In June 2010, Mother filed a motion to relocate and notified the family court that she wanted to move with Child to Abilene, Texas. Mother also filed a motion to modify Father’s visitation schedule to reflect the distance between the parties. The Family Court entered an order granting the motion to relocate and amending the visitation schedule.
Father filed a motion to reconsider the court’s ruling based on a lack of jurisdiction, arguing that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Family Court denied the motion, stating that there was substantial information available in Kentucky regarding the child’s care, protection, training and personal relationships, and Father waived the issue by not raising it until the motion to reconsider.
Father appealed, arguing that the Family Court lacked subject matter jurisdiction to modify the original child custody determination under the UCCJEA because there was no exclusive, continuing jurisdiction because neither the parents nor the child lived in Kentucky.
The UCCJEA, codified in Kentucky law, governs disputes concerning the state’s jurisdiction to decide child custody and visitation matters. The Family Court’s jurisdiction to modify a custody arrangement is determined at the time the motion to modify is filed. The Family Court misinterpreted KRS 403.824(1) because the court no longer had exclusive, continuing jurisdiction over the custody matter. A family court’s jurisdiction is exclusive and continuing until one of two circumstances has occurred: neither the child nor a parent of the child has a significant connection with the state and substantial evidence regarding the child is lacking or neither the child nor the parents of the child reside in that state. Therefore, unless a modification of custody has been filed, the state loses exclusive, continuing jurisdiction when the parents, persons acting as parents (if applicable), and child have all physically left the state to live elsewhere. Even if a significant connection existed and if certain evidence was available about the child in Kentucky, the relocation of both parents and the child outside of Kentucky before the filing of the modification divested the Family Court of exclusive, continuing jurisdiction.
Reversed and remanded.