Divorce Law Journal

Atheist Father Who Objected To Son Attending Catholic High School Appeals Ruling

We briefly mentioned Andrew Wolfson's article in the Courier-Journal here. As an update here is his follow up piece reporting that Judge Timothy Feeley permitted the teenager's mother to make his school decision. An appeal to the Kentucky Court of Appeals has been filed.

Time Magazine Reports Ky Bio-Dad Decision And Putative Father's Plan To Go To U.S. Supreme Court

The story is online here. Some quotes: Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

The report continues, But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child's life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.

What's next? Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California's explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. "Well, obviously I am not going to give up and say, 'Oh well I lost,'" Rhoades says. "I believe I have a fundamental right to be in my son's life." The trouble is: nature's law isn't the law of the land.

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court
and JRG, Real Party in Interest, ___ S.W.3d ___ (Ky. 2008)
2007-SC-000175-MR

JGR (James) filed a custody and support petition, alleging DNA confirmed him to be the biological father of a child who lived with his mother, JNR (Julia), who was married to JFR (Jonathan). After the family court refused to dismiss the petition, Julia and Jonathan were denied a writ of prohibition in the Court of Appeals and appealed to the Kentucky Supreme Court. The Supreme Court ruled 4 to 3 in favor of Julia and Jonathan in five separate opinions.

The opinion of the Court by Justice Minton in which Chief Justice Lambert concurred held that the family court was without subject matter jurisdiction to determine paternity claims brought by a biological father where there is no evidence or allegation that the marital relationship ceased ten months before the child’s birth. Because a showing of irreparable injury and lack of adequate remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction, the Court of Appeals erred in denying the writ of prohibition. Although the parties debated the due process and equal protection rights of the unmarried biological father, the constitutional claim was not perfected by serving a challenge on Kentucky’s Attorney General.

Justices Cunningham and Scott concurred in the result only, and each wrote separate opinions in which the other joined. Justice Scott opined that only the parties to a marriage can challenge the presumption of legitimacy under KRS 406.011 and there is no constitutional right of a “stranger to the marriage” to assert paternity under such circumstances. Justice Cunningham wrote that this case is squarely about the legal status of marriage and about a married couple’s right to be left alone from the allegations of an interloper asserting the claim of fatherhood.

Justice Abramson dissented by an opinion in which Justice Schroder joined and wrote that the Supreme Court erred grievously in its holding. She distinguishes “marital relations,” the sexual aspects of marriage with the “marital relationship,” the broader aspect of emotional, physical, social, and moral dimensions characterized by a monogamous bond. She believed the “marital relationship between the husband and wife” referenced in KRS 406.011 can certainly be said to “cease” when the wife is having sexual intercourse with another man. While the marriage may still exist as a matter of law and sex may still occur between the spouses on occasion, the monogamous “marital relationship” ceases when the third party enters the picture. She focuses on the words actually used by the legislature as the operative concern and notes that it also makes common sense. A child born to a married woman and a lover who is not her husband is indeed born out of wedlock. The evidence which would show a cessation of the marital relations would need to be assessed on a case by case basis but would encompass the situation, as here, where the putative father has had a visitation with the child through the mother’s cooperation and has secured DNA testing establishing biological fatherhood.

Justice Abramson challenges the majority belief that its holding protects the integrity of the family. If a mother alone can harbor the secret of paternity so long as it serves her purposes, there is no societal disincentive to conceiving a child outside the bounds of marriage. Secondly, she notes that there are tens of thousands of blended families in Kentucky who cope with shared parenting. The only variable in this case is that the only child who has a parent outside the home is the younger as opposed to the older child or children. Finally, she notes the medical and psychological consequences to a child who should have a right to know his parentage.

Justice Noble dissented by separate opinion writing that the majority confused a statutory element of proof as a requirement for standing. One does not have to prove an element in order to have the right to plead it. She believes the majority jumped over the hurdles of proper pleading and procedure to the evidentiary merits of the case, noting that even on writ procedures from the Court of Appeals, the Kentucky Supreme Court is not the fact finder. She wrote that this case is one example of evolving legal questions that arise when a new type of court is instituted. Under KRS 406.021, a putative father has standing. Once a party has standing, then certain elements of proof must be established to rebut the presumption that a child born during the marriage is the child of the husband. One does not have to prove an element of a claim to have the right to plead it. She opined that James clearly has a due process right to at least be heard, because he does have standing.

Putative Father Lacks Standing To Assert Paternity Of Child Born During Marriage In Kentucky

The Kentucky Supreme Court decided J.N.R and J.S.R v. Joseph O’Reilly and J.G.R, Real Party in Interest, commonly known as the “Rhoades v. Ricketts” case today, online here), an unprecedented 4-3 decision with two concurring opinions and two dissenting opinions. 47 pages in all. The opinion of the Court by Justice Minton in which Chief Justice Lambert joined held that the paternity court lacked subject-matter jurisdiction to hear the biological father’s claim for custody and visitation because KRS Chapter 406 limits its applicability to cases of children “born out of wedlock” and that term is defined by statute, when the child is born to a married woman, to paternity claims by a man other than her husband “where evidence shows that the marital relationship between the husband and wife ceased ten months prior to the birth of the child.” Since there was no allegation or proof that the marital relationship had ceased within ten months prior to the child, the Court lacked subject-matter jurisdiction. Interestingly, the Court seemed to invite constitutional challenges to the paternity statute. Although the parties to that case debated an unmarried biological father’s due process and equal protection rights, the constitutionality of the statute was not challenged nor served on Kentucky’s Attorney General. I suspect that we have not seen the end of this case.

Two concurring Justices, Scott and Cunningham, believe that the biological father’s status as a “stranger to the marriage” is the fundamental reason for the legislative language and there is no Constitutional right of a “stranger to the marriage” to assert paternity. Justice Cunningham in his separate opinion went so far as to say the “severely wounded institution of marriage in Kentucky surely protects the parties from unwanted interlopers claiming parenthood of a child conceived and born during their coverture.”

Justice Abramson wrote a brilliant opinion, but unfortunately it was a dissenting one. A full digest of the case will follow.

Picklesimer v. Mullins (Ky)

Picklesimer v. Mullins, __ S.W.3d. __ (Ky. App. 2008)
2007-CA-000086-ME and 2007-CA-000101-ME

Picklesimer and Mullins were engaged in a 5 year lesbian relationship, during which time they lived together and decided to parent a child together. The parties agreed that Picklesimer would be artificially inseminated. Their child was born in 2005, and their relationship ended in 2006. Before the parties broke up, they entered an agreed order and judgment that established Mullins as a de facto custodian of the child and provided that the parties would share joint custody. The order was entered in a neighboring county to avoid publicity in their own community. The TC entered the order without taking any evidence. No summons was issued, but neither party challenged the lack of notice. After the parties separated in February 2006 and until their relationship disintegrated even further in September 2006, the parties shared equal parenting time with the child.

Picklesimer appealed a TC judgment that awarded joint custody of her minor son to Mullins. Picklesimer argued that the TC lacked jurisdiction and venue to enter custody orders, that Mullins lacked standing, and the TC erred in holding Picklesimer waived her superior right to custody. On cross appeal, Mullins argued that the TC erred in invalidating the agreed judgment of joint custody entered by the two parties.

TC’s jurisdiction and venue to enter custody orders: CA held that Picklesimer had notice of the proceedings since she filed an entry of appearance and never challenged the agreed order establishing Mullins as a de facto custodian. CA also held that venue was waived when both parties filed pleadings with no objection to venue.

Mullins’ standing to pursue joint custody/ Picklesimer’s waiver of her superior right to cusody: A nonparent, who does not qualify as a de facto custodian, may seek custody of a child if the nonparent shows that 1) the parent is unfit by clear and convincing evidence, or 2) the parent has waived his/her superior right to custody. A finding of waiver requires a voluntary and intentional surrender or relinquishment of a known right. A court order granting a nonparent visitation does not constitute a waiver of the parent’s superior right to custody. As Picklesimer did not waive her superior right to custody of the child, Mullins had no standing to pursue custody.

TC error in invalidating the agreed judgment of joint custody: The judgment establishing Mullins as a de facto custodian was entered based on incorrect evidence. Mullins was never the primary caregiver and the primary financial provider for the child, as the statute requires. The pleadings were drafted to convince the TC that a hearing was not necessary on the matter. CA held that the pleadings and conduct constituted a fraud upon the court. The CA found that had the TC held a hearing, the TC would not have signed the order. The judgment declaring Mullins a de facto custodian is invalid.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Father Who Claims To Be Atheist Sues To Keep Son Out Of St. Xavier High School

Front page news in the Courier-Journal today, Atheist father sues to keep son out of St. Xavier High School. As Sandra Ragland represents mom, I'll stay mum on this blog.

Skinner v. Skinner, KY, Child Custody Jurisdiction

SKINNER V. SKINNER
CHILD CUSTODY JURISDICTION
2006-CA-002523
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: STUMBO PRESIDING; ACREE, GRAVES CONCUR
COUNTY: WAYNE

Dad appealed from TC’s order sustaining Mom’s motion asking TC to take jurisdiction of child custody matters stemming from a prior dissolution of marriage proceeding in Tennessee. Dad maintained that TC improperly assumed jurisdiction, improperly based its findings on facts not in the record, and erred in failing to maintain a record of its communications with the Tennessee court.

Dad and Mom were divorced in 1998 by TC in the state of Tennessee (“TN TC”). Mom received custody of the parties’ minor child, with Dad being granted visitation. In 1999, Mom and Child moved to KY and established residency. In 2003, Dad filed a motion to for Mom to show cause why she should not be held in contempt for her failure to permit Dad to exercise visitation with Child. In 2004, on the same day that Dad’s TN attorney was granted leave to withdraw in TN case, Mom filed a petition in KY TC to alter visitation schedule. Dad moved to dismiss KY motion for lack of jurisdiction which was subsequently denied for Dad’s failure to prosecute, but TN TC issued order setting a trial date for all pending issues and the order was mailed to Mom’s last known address. DRC conferred with TN TC on the jurisdictional issue. TN TC opined to DRC that jurisdiction should remain with TN TC. KY DRC found that Mom’s KY action, having been filed the same day that Dad’s TN attorney was granted leave to withdraw, represented Mom’s attempt to change jurisdictions, and that as Dad initially sought to enforce the existing TN Order in 2003, Kentucky could not exercise jurisdiction as a TN action was pending. Mom filed exceptions to KY DRC order. KY TC’s order (rendered in 2004) acknowledged that TN retained jurisdiction over a related contempt proceeding, but held that KY had jurisdiction over Child because Child resided in KY since 1999. In 2006, Dad moved KY TC to decline jurisdiction over Child and give full faith and credit to TN TC’s orders. Mom then sought an emergency order from KY TC to suspend visitation based on Child’s allegation that Dad tried to touch her inappropriately. KY TC then rendered an order declining jurisdiction as to the modification of visitation and giving full faith and credit to TN child custody orders, which Mom moved to alter, amend or vacate. KY TC then ruled that the UCCJA and KRS Chapter 403 operated to vest KY with jurisdiction over child custody and visitation matters, finding that KY was Child’s home state and that it was in Child’s best interest for KY to exercise jurisdiction. KY TC also determined that Dad had sexually abused the child, stating that “[t]his court cannot in good conscience place a child in the custody of a person who has been abusive to the same child. Therefore without question this court should assume jurisdiction of the child under this section.”

Dad moved for KY TC to disclose its record of communications with TN TC. KY TC overruled Dad’s motion for disclosures due to the fact that no record of communication between KY TC and TN TC existed. Dad then filed this appeal.

Dad contended that KRS 403.420 (now supplanted by KRS 403.822) allows for jurisdiction to be determined based either upon whether KY is the child’s home state, or whether another state has continued to maintain jurisdiction in the matter, arguing that TN continued to maintain jurisdiction over the action, and that KY TC so acknowledged in 2006, when it stated that TN would have jurisdiction of modification and child custody orders in the case. Dad argued that by reversing this order with the entry of a new order, KY TC placed itself in the position of a review court by attempting to reassert jurisdiction over an issue which it had previously ruled that it did not maintain. CA found no error. Because Mom’s petition to alter visitation was filed before the enactment of KRS 403.822 and KRS 403.826, the law in effect at the time of filing, KRS 403.420 is controlling. KY had jurisdiction to adjudicate Mom’s petition since Child resided with Mom in KY for at least six months prior to the filing of the petition, which is one of the scenarios allowing KY to have jurisdiction per KRS 403.420.

Dad also argued that KY TC erred when it rendered 2006 order based on facts not found in the record, in which KY TC acknowledged relying upon written letters from counselors addressing the child abuse allegation, and that KY TC improperly failed to maintain a record of its communication with TN TC as required by statute, thus preventing him from defending, explaining or rebutting any information contained therein. CA agreed. Given the parties’ right to have the matter adjudicated from the evidence of record, as well as their statutory entitlement to examine a record of KY TC’s communication with TN TC, CA found that KY TC clearly erred by impairing or eliminating Dad’s ability to examine and rebut the evidence relied upon. CA affirmed KY TC’s order as to that portion reflecting KY TC assuming jurisdiction based on its finding that KY is Child’s home state, but reversed and remanded as to that portion of the Order addressing matters not contained in the circuit court record.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Hoppe v. Tallent, KY, Child Visitation, Allegations of Child Sexual Abuse

Hoppe v. Tallent, __ S.W.3d __ (Ky. App. 2008), 2007-CA-000104-MR

Father appealed the TC’s denial of his motion for immediate reinstatement of visitation with his daughter, K.H.
During the parties’ divorce settlement negotiations in 1997, the mother alleged that the father sexually abused K.H. The record is silent as to the nature of the allegations and whether the allegations were substantiated. The separation agreement granted joint custody to the parties, with the mother being appointed primary residential custodian. The father then had visitation with K.H. every other weekend and two hours on every other Wednesday until 2004.
Without the father’s knowledge, the mother had K.H. see therapists, the Sensings, in 1998. The Sensings noted that K.H. may have been traumatized by a male. They did not observe any obvious signs of sexual abuse, but could not rule out the possibility. Their recommendation was for K.H. to continue visitation with her father, but suggested that a female relative be present and that the visits increase as K.H. grew more comfortable with her father.
In 2003 the mother alleged that K.H. became anxious before visits with her father. Her pediatrician found no physical explanation for the anxiety. In 2004, Sally Sensing met with K.H. again. K.H., eight years old at this time, told the therapist that her father made her uncomfortable and she became physically ill before each visit. K.H. also alleged that her father embarrassed her, slept in bed with her, and took pictures of her naked in the shower (court noted that child was standing in the shower behind the curtain, modeling a shower cap, with a wide smile on her face), washed her inappropriately during baths, would drink and drive with her in the car, and left her in the car alone for 25 minutes while he shopped for a television. Sensing recommended that the visitation continue, but with professional supervision until the causes of K.H.’s anxiety could be fully assessed. Sensing did not report any abuse to authorities.
That same month, the mother motioned for the court to suspend or alter the father’s visitation. The father objected, and the mother stopped the visitation on her own. As a result, the father asked that the mother he held in contempt of court.
The DRC held a hearing in February 2004. After hearing testimony from the Sensings, Dr. Fane, a clinical psychologist who evaluated the father, both parties, maternal and paternal grandmothers, K.H.’s teacher, and the father’s ex-wife, the DRC recommended that visitation be suspended until the mother, father, and K.H. could be evaluated by one professional.
The evaluation by Feinberg & Associates revealed assets and deficits in the parenting of both parties. No allegations of sexual abuse were revealed, and Feinberg recommended that the visitation resume. As a result the TC ordered both parents and K.H. to begin counseling with Ruth Sutton, another therapist. When K.H. learned that she was to see Sutton to facilitate visitation with her father she became upset and claimed that her father had sexually abused her. Sutton reported the allegations of abuse to authorities.
K.H. told the CPS worker, Guffy, of the incidents of sexual abuse. The mother confirmed to Guffy that K.H. had told her of the incidents. The maternal grandparents also confirmed that K.H. had told them of incidents of abuse by her father. Since the father was living in Tennessee and that is where the abuse allegedly took place, Guffy filed a report with the police in TN.
In December of 2004, K.H. underwent a medical exam, however during the exam neither K.H. or her mother alleged that any inappropriate physical contact had occurred. The results of the exam revealed no abnormalities, but could not rule out the possibility of abuse.
Sutton continued to see K.H. until January 2006. The father had not heard from Sutton by December 2004, so he moved the court to reinstate visitation. The court set a hearing for January 2005, and planned on interviewing the child. In January 2005, the TN authorities wrote the TC a letter informing the judge of their open investigation and stated that if the father was granted access to the child, the authorities would take the child into state custody. The TC cancelled the interview of the child as to not become a witness in the TN criminal investigation. The record is silent as to whether criminal charges were ever filed or pursued against the father in KY or TN.
In December 2006, a hearing was held at which the father testified and denied the abuse allegations. Sutton also testified. She stated that she believed K.H. and adamantly opposed any contact between K.H. and her father. The TC concluded that it was not in K.H.’s best interests to see her father, since it would endanger her physical, mental, and emotional health.
COA affirmed. TC’s findings were supported by substantial evidence and did not abuse its discretion. However, COA noted that six mental health professionals reviewed the case, and only one of them, Sutton, testified at the hearing. Sutton, who stumbled on cross-examination regarding her own qualifications, was the only one of the six that thought visitation should be stopped. COA also noted that its opinion does not prohibit the father from pursuing future visitation with his daughter.

Graves, Senior Judge, Concurring Opinion: Judge Graves would have preferred if the TC had interviewed the child.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Untangling the Knots of Child Custody Relocation Litigation

By Michelle Eisenmenger Mapes, Published in Louisville Bar Briefs, March 2008, Volume 08, No. 3

Your client asks you, “What does it mean to be a primary residential custodian? What effect does it have? After our divorce is final, can my spouse move and take my children away?”

Good questions. Unfortunately, the family law attorney has been unable, in recent years, to give a satisfactory answer, as the law on parental relocation in Kentucky seems to be forever in a state of flux. However, the odds of having concrete answers to those questions by the end of the year have improved on both the legislative and judiciary front, for legislation has been introduced to Kentucky’s House of Representatives that would provide family courts with much-needed guidance to resolve parental relocation disputes; and the Kentucky Supreme Court recently accepted discretionary review of three parental relocation cases: Pennington v. Marcum, 2006 WL 2194903 (Ky. App. 2006); Frances v. Frances, 2006 WL 3759659 (Ky. App. 2006); and Rankin v. Coffman, 2007 WL 1229022 (Ky. App. 2007).

Within four years of separation and divorce, about one fourth of mothers with custody move to a new location. Whether caused by a high divorce rate, remarriages, shifting job market, an increase of joint custody arrangements or simply the mobility of our society, more and more cases are presented to courts regarding relocation of children. It is probable that the number of cases litigated on this issue would decrease if there was clear statutory or case law on the subject, so that the family law attorney can properly advise her client. Relocation disputes pose great dilemmas for family courts. In a case where both parties are acting in good faith, the court must balance the relocating parent’s understandable desire of seeking a better life by moving away with her child against the non-relocating parent’s understandable desire to maintain frequent and continuing contact with his minor child.

Most state legislatures have addressed the issue, but ours has not. In the absence of legislation requiring notice and determining the factors to be considered when a parent desires to relocate a child, courts are struggling. In 2006, in Robinson v. Robinson, the Kentucky Court of Appeals noted that the arrival of the 21st century brought “an accelerated evolution” in child custody relocation litigation. The court then went on to lament the absence of legislation addressing the issue: “Unfortunately, despite Kentucky’s recent legislative efforts, Chapter 403 of the Kentucky Revised Statutes fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce… [U]ntil our legislature aligns with the majority of states [with relocation statutes], we are compelled to address relocation/custody issues by applying the general custodial modification statutes, KRS 403.340 and KRS 403.350.”

In 1998, in recognition of the issue and dilemmas faced by the courts, the General Assembly passed a bill establishing a task force to study custody and visitation in Kentucky and to submit findings to the Legislative Research Commission. That report was submitted January 6, 2000 and included recommendations regarding the relocation of children as well as a bill draft. Sadly, no legislation regarding child relocation was passed.
In 2008, the relocation issue may finally be addressed by our statutes. House Bill 383 has been introduced this session in the Kentucky Legislature and was referred to the House Judiciary Committee. House Bill 383 would add a new section to KRS Chapter 403 that would provide a framework to family courts for proper adjudication of parental relocation disputes. A parent who provides the principal residence for a child will be required to provide notice of his or her proposed relocation and a proposed revised parenting time schedule to any other person with custody or visitation rights. Furthermore, if the parent who does not provide the child’s principal residence intends to move, he or she will also be required to notify the parent who provides the child’s principal residence of his or her intent to relocate as well as a proposed revised parenting time schedule. In both instances, notice must be provided no less than sixty days prior to the planned relocation, unless the parent does not become aware of the need for the move during that time frame, in which case he or she will have ten days from the date the information was received. The non-relocating parent will have thirty days after receiving the notice to object to the move, or the move will be permitted. Failure to provide notice can be considered by the court in its determinations regarding relocation or change of custody or visitation, as well as a basis for ordering the return of the child, an award of attorney’s fees to the non-relocating parent, or a finding of contempt against the relocating parent. The court may grant temporary orders allowing or disallowing the relocation. The court is to determine whether the relocation of the child should take place in accordance with the best interests of the child. The court would be prohibited from considering the relocating parent’s intention that he or she will not relocate if the relocation is denied. Lastly, the relocating parent will have the burden of proof that the proposed relocation is made in good faith and in the best interests of the child. The court may sanction either party if it finds that the party’s proposal or objection was made to harass the other party or delay the proceedings or was unsupported by the law or the evidence.

Should this legislation not pass, though that would truly be to the detriment of the courts, there is still hope for clarification of relocation law in the guise of the above-mentioned Kentucky Supreme Court cases. Our last Kentucky Supreme Court case on the issue, Fenwick v. Fenwick, left many Kentucky family law attorneys shaking their heads, as the Court declared that “a custodial parent’s decision to relocate with the children is presumptively permissible, and a custodial parent may relocate with the children without prior approval or modification of the joint custody award.” The Court further declared that “a non-primary residential custodian parent who objects to the relocation can only prevent the relocation by being named the sole or primary residential custodian, and to accomplish this designation would require a modification of the prior custody award.” At the time, this meant that he or she must show that “the child’s present environment seriously endangers his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment is outweighed by its advantages.” The custodial modification statutes have since been amended, but the Court of Appeals stated in Robinson that “The Supreme Court’s holding in Fenwick remains sound law under KRS 403.340(2) where the modification is sought within two (2) years of the original award of permanent custody.”

In Fenwick, the Court provided that it was following the trend of allowing the residential parent to move away with the child, if the move is made in good faith and a satisfactory revised parenting schedule can be achieved, based on “a prioritizing of the ‘new family unit’ constituted by the post-divorce relationship between the primary care-taker parent and the child.” Since that time, new evidence has been obtained to suggest that this is not the right approach. A new study suggests that, as compared with divorced families in which neither parent moved, students from families in which one parent moved had weaker relationships with their parents, as a whole, and fared worse overall as adults than their counterparts. While this should not suggest that relocation is not in a child’s best interests in every case, it will hopefully influence the Kentucky Supreme Court’s upcoming relocation decisions so that there is no longer a preference for the primary residential parent to be able to move with the child.

1. Sanford L. Braver et al., Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations, 17 J. Family Psychology 206, 206 (2003).
2. 211 S.W.3d 63, 67-68 (Ky. App. 2006).
3. 114 S.W.3d 767, 785 (Ky. 2003).
4. Id. at 786.
5. Id.
6. Robinson, 211 S.W.3d at 71.
7. Fenwick, 114 S.W.3d at 789.
8. Braver, supra at 214.

Michelle Eisenmenger Mapes is Chair of the Louisville Bar Association Family Law Section and is an associate with Diana L. Skaggs + Associates.

Baker v. Combs, Child Custody, De Facto Custodian

BAKER V. COMBS
CUSTODY: DE FACTO CUSTODIAN
2007-CA-001013
PUBLISHED: VACATING AND REMANDING
PANEL: KELLER, PRESIDING; THOMPSON AND WINE CONCUR
COUNTY: KNOX
DATE RENDERED: 02/29/2008

Mother appealed from TC’s order denying her motion for custody of her natural child and awarding continued permanent custody to Paternal Grandmother and Step-Grandfather (“Paternal Grandparents”). Mother and Father were never married, and Father never participated in the action or otherwise sought custody of Child. Mother is now married and has another child.

Child was first removed from Mother and placed in the temporary custody of CFC in January 2004 by Whitley District Court (“Whitley DC”) on the basis of Mother’s drug use and the fact that she left Child with Paternal Grandparents for the preceding two months; CFC placed Child with Paternal Grandparents. After adjudication hearing but before disposition hearing, Whitley DC transferred the case to the Laurel District Court (“Laurel DC”). Laurel DC, after permanency hearing, subsequently ordered that the permanency plan was placement with a permanent custodian pursuant to CFC’s recommendation and named Paternal Grandparents as the permanent custodians. Laurel DC entered a permanent custody order the same day, presumably naming Paternal Grandparents as Child’s permanent custodians, although the order portion of the preprinted AOC-DNA-9 form was not completed.

In the Findings of Fact portion of the form, Laurel DC indicated that it considered factors relating to a prior independent finding that a de facto custodian existed. However, CA found that the record did not contain any document reflecting a prior independent finding that a de facto custodian situation existed in this case.

Eight months later, Maternal Grandparents and Mother filed a Verified Petition for Custody in the Knox Family Court (“Knox FC”), as this was the home county of Paternal Grandparents and Child, requesting custody to Maternal Grandparents or to Mother. Knox FC permitted Mother supervised visitation with Child and ordered that she submit to random drug tests, each of which revealed a negative result. A year and a half later, Mother moved Knox FC for custody of Child, stating that she had complied with the court’s order that she rehabilitate herself, that she was married, and that she was leading a stable life. After hearing in which Mother’s witnesses testified that she had overcome her past problems with drug abuse, that she was currently a different person, and that she was capable of raising Child, and testimony regarding Mother’s past drug use and her past actions in leaving Child with Paternal Grandparents for extended periods of time, Knox FC denied Mother’s motion on the record, noting that Child had been in Paternal Grandparents’ home for more than 3 years and that the benefits of changing custody would not outweigh the harm in doing so. Knox FC entered an order to this effect, finding that it would not be in Child’s best interest to remove him from the Paternal Grandparents’ home and awarding Mother standard, unsupervised visitation.

Mother argued to CA that Knox FC erred in awarding custody to Paternal Grandparents, because they were not de facto custodians and she was not unfit. Paternal Grandparents asserted that Laurel DC decided the issue of de facto custodians, so that any further adjudication on this issue would be barred by res judicata, and that they are de facto custodians.

CA noted that a de facto custodian is defined in KRS 403.270(1)(a) as: :[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services.” CA stated that once it determines that such a person is a de facto custodian, TC shall give the person the same standing in custody matters that is given to each parent under this section, and determine custody in accordance with the best interests of the child.

CA found that there was no prior finding that Paternal Grandparents were de facto custodians, nor were there any findings that Paternal Grandparents were the primary caregivers and financial supporters of Child for the required statutory period, despite the fact that the form AOC-DNA-9 had some boxes checked in this regard. Therefore, before Knox FC may determine custody as between Mother and Paternal Grandparents using a best interests standard, CA held it must first independently decide that Paternal Grandparents are de facto custodians. As such a finding had never been made, CA vacated Knox FC’s order and remanded for a determination of whether Paternal Grandparents meet the requirements to be de facto custodians.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Parents Have Constitutional Right to Cross-Examine Guardian Ad Litem

The Oklahoma Family Law Blog reports Parents Have Constitutional Right to Cross-Examine Guardian Ad Litem and discusses a recent Oklahoma Supreme Court decision. Makes sense. Of course, there is still the unsettled issue in Kentucky of the court's authority to appoint a guardian ad litem in child custody cases.

Relocation Act, Ky (Post Updated)

HB383 was filed today with posting waived. It should be online tomorrow and we'll link to it when available. It will be heard in the house judiciary committee in Frankfort on Wednesday, January 30, 2008. It mirrors with few exceptions the AAML Model Relocation Act, available here.
Update: HB383 is online here.
UPDATE: Still in house judiciary committee 3/24/08

Simcox v. Simcox (6th Circuit) Hague Abduction, Grave Risk Of Harm

Digest from the 6th Circuit Blog: Simcox v. Simcox, Northern District of Ohio at Cleveland
BOGGS, Chief Judge. Claire Simcox appeals from the decision of the district court ordering her to return to Mexico with two of the four children currently residing with her in Ohio, which return the district court found was required under the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”) and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Because of evidence of serious abuse to both Mrs. Simcox and the children at the hands of Mr. Simcox, the district court conditioned return of the children on certain “undertakings” designed to ameliorate the risk of harm to them upon their return to Mexico. Although we agree with much of the district court’s legal analysis of the Hague Convention, its ordered undertakings are problematic on the facts of this case, particularly its command that Mrs. Simcox herself return to Mexico. We therefore REVERSE and REMAND to allow the court to reconsider what conditions, if any, could ensure the safety of the children in Mexico during the pendency of custody proceedings.
Jeffery Morley at International Family Law calls this case a highly significant ruling on the grave risk of harm defense to a Hague Convention international child abduction petition.

Lane v. Caudill-Lane (KY) Custody, Supervised Visitation, and Attorney Fees

UPDATE: We were late getting this digest posted. The Kentucky Supreme Court, however, denied discretionary review and ordered that the Court of Appeals decision not be published.
Lane v. Caudill-Lane, 2007 WL 2459269

Dad appealed TC order awarding sole custody to Mom and requiring Dad’s visits to be supervised. Additionally, Dad appealed TC’s order awarding Mom attorney’s fees.
CA upheld the award of custody and attorney’s fees but overturned the supervised visitation.
CA opined, on the issue of custody, that there was sufficient evidence presented for the trial court to award sole custody. CA went on to state that an award of joint custody presumes that the parties can rise above their petty issues and do what is in the best interest of the child. A TC should not assume that because parties are antagonistic during a divorce that they will not be able to rise above it in the future. However, in the instant case, the CA reasoned that it did not appear from the record that the parties possessed the necessary emotional maturity to ensure joint custody would be in the child’s best interest.
Regarding the issue of visitation, CA held that there was not substantial evidence to warrant limiting Dad’s visitation and TC used the wrong standard in making its decision. The appropriate standard for restricting visitation is whether the visitation would “seriously endanger the child”. There was testimony presented that, among other things, Dad had called a phone sex line, that he had visited pornography websites, and that he had watched pornographic movies. However, none of this occurred in the presence of the child. There was no evidence presented that such activity would harm the child. CA stated that there may be situations in which this type of behavior would endanger a child but there was no evidence presented that Dad’s behavior would “seriously endanger the child”.
On the issue of attorney’s fees, CA held that the decision to award attorney’s fees is completely in the discretion of the TC. The only requirement is that the court consider the financial resources of the parties.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Heartbroken Holidays: Help for a Child Divided

The first holidays after a divorce or separation can be a heartbreaking nightmare as estranged parents negotiate access to their children. There are ten things parents can do to help their children enjoy the holidays and to serve their best interests in the future.

“Divorce is never an easy experience,” said Gaetano “Guy” Ferro, immediate past president of the American Academy of Matrimonial Lawyers (AAML). “Children can make it more difficult for the parties to reach reasonable agreements. Disagreements about financial issues may cause the parents to act emotionally or irrationally when it comes to the children. The primary goal of both parents and their attorneys should be to avoid conduct which would be detrimental to the children’s best interest.”

• Give your children permission to love the other parent. Help your child make a card for Dad or buy a gift for Mom. Encourage them to call the other parent.
• Set realistic expectations. To divide or share a holiday, each parent will have only half as much time with the child. While children may enjoy multiple celebrations, most do not care that the festivities are actually on “the” day. Holidays can be alternated by year and if Mom does not have Thanksgiving with the child this year, bake a turkey the preceding weekend.
• Coordinate gift giving. If a child has a wish list, split it with the other parent. Resist the temptation to over-indulge the child with gifts. Do not give the child a gift you know the other parent is planning to give. If the other parent will not cooperate, do not complain to the child.
• Do not use your children as messengers. The decision of where to go and when should be decided by the parents. Permitting the child to choose time with one parent is a burden and vests the child with inappropriate power.
• Do what you say you are going to do. Pick up and drop off the children on time. Do not request last minute changes.

Other tips for divorcing parents include never letting a child hear you disparage the other parent. Resist the temptation to permit your child to act as your caretaker. Do not uproot your children if at all possible. Reassure your children that the divorce or separation is not their fault and encourage and permit your child to see and love grandparents, aunts, uncles, and cousins on the other parent’s side of the family.

Over the coming holidays, please let your children be children. They shouldn’t have to worry
about adult problems. For more helpful tips you can access the “Children’s Bill of Rights” and “Stepping Back From Anger” on the AAML website, www.aaml.org.

Many parents contemplate divorce as holidays and New Year approach. Holiday filings can increase the trauma; your children will always associate their parents’ divorce with the holidays. Please resist the urge. Divorce lasts a long time. There’s rarely a reason to rush. At a time of year that resonates family and joy, please put your children’s well-being ahead of your own.

Solving Custody Disputes Outside The Legal Arena

From Rachel Levy's report in Expatica, some quotes:

Three years ago, Dutch national Hans's life was one of turmoil as he, his children and ex-wife living in Canada were entangled in a messy child custody wrangle.

Following a tough international legal battle, he had won custody over his children and brought them back to the Netherlands.

There he discovered they resented him for fighting their mother. Bringing them up alone was another factor he found himself unable to cope with.

Communication had all but broken down. But then he found a solution - mediation.

A conference of 50 professionals in Apeldoorn is now discussing this new approach - mediation instead of litigation - as a way of resolving serious cases like that faced by Hans.

"After beating my ex-wife in court in the 1980 Hague Convention procedures that helped me return the children to the Netherlands, I discovered I had won a legal battle but lost my family," Hans told Deutsche Presse-Agentur dpa.

"Communication with my ex-wife had reached an absolute low following the legal proceedings. The children resented me for taking them out of their environment just when they finally felt settled in Canada. They also had a difficult time living without their mother."

Their mother, working part-time, had always been the children's primary caregiver. Now, Hans had to replace her while working full-time. It proved impossible.

Mediation resolved the problem.

"We negotiated a new settlement for more than eight months and drafted a parenting plan for custody and visitation. The two youngest children returned to their mother in Canada. Our eldest son stayed with me," he said.

His story marks a change in the way professionals today deal with the 1980 Hague Convention on Child Abduction.

This agreement helps prevent abductions, but in the process throws parents into new legal proceedings. This does not contribute long- term parental cooperation.

"Particularly common law countries are known for creating maximum adversity between divorcing parents," says Denise Carter, director of Reunite.

Reunite is a British non-governmental organisation that helps parents who deal with international abduction, travel or relocation.

Reunite was also present at the Apeldoorn conference, organised by the independent non-governmental Centre for International Child Abduction (IKO).

Contrary to many countries nowadays, the Dutch do not automatically offer mediation in Hague Convention proceedings.

"This is surprising, considering the strong Dutch mediation tradition," says Eberhard Carl, a German liaison judge who deals with international legal proceedings and mediators.

"I always tell parents any mediated settlement will make them happier than a court ruling. With mediation people regain control over their lives," he added.

International mediation works with two mediators: one for each of the parent's gender and culture.

German attorney and mediator Christoph Paul says: "It is crucial that both parents feel recognised during mediation. And they need recognise their children's binational identity."

Judge Carl notes that in western Germany, "mothers looked after young children themselves. French mothers send their babies to daycare. So you often see a French father claiming his German wife "is isolating" their 2-year-old daughter by keeping her at home.

"Vice-versa, German mothers don't understand why a French father involves his parents so much in family issues," he added.

Paul notes the cultural aspects involved in such cases: "Family members play different roles in different cultures. That is why cross-cultural mediation requires mediators from both cultures."

Whether mediation will be integrated in all 1980 Hague Convention proceedings, remains uncertain.

"Mediation can only be successful if both parties have an open mind and are willing to consider different, original, solutions," Paul asserts.

"A pragmatic mind-set is key to conflict-resolution. It is however important to remember that pragmatism is primarily a feature of north-west European culture," he added.

London v. Collins (KY) Modification Of Child Custody

London v. Collins, ___S.W.3d___(Ky. App. 2007)

Child resided primarily with Mom until she was removed in a dependency action. At the temporary removal hearing Dad agreed that it would be best that the child temporarily reside with a member of Mom’s family. Shortly thereafter Mom died. At what was supposed to be a pre-trial conference a social worker incorrectly informed the TC that Dad had agreed that permanent custody should be awarded to the temporary custodian (custodian). Dad was not represented by counsel, his custodial rights were not explained to him, and the TC did not question him about his wishes regarding custody. Approximately a year later dad filed a petition for custody. The TC held that the custodian was a de facto custodian, that she had equal standing with Dad, and that Dad had failed to meet the statutory requirements to modify custody. The trial court also held that because Dad did not object when the permanency order was entered he waived his custody.

CA held that while Dad was present when custody was awarded to the custodian it was likely he did not understand what was occurring. The CA opined that while a parent can waive his parental rights that waiver should not occur by accident because a party does not understand the proceedings. Dad’s silence at the pre-trial conference did not constitute a waiver of his parental rights. Additionally, the CA held that since no evidence was taken at the hearing on Dad’s petition for custody there could be no finding that the custodian was a de facto custodian. Regarding the permanency order, the CA held that a permanency order in a dependency action may qualify as a custody decree. However, to be considered a valid custody decree it must be based on the standards set forth in KRS 403.279(2). The TC took no evidence upon which it could have found that the custody placement was in the child’s best interest and therefore did not meet the elements of KRS 403.279(2). Because the order in the dependency action was not a custody decree, as envisioned by KRS Chapter 403, it was not necessary that the requirements of KRS 403.340(2) be met in order to modify custody.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Child Custody Evaluation Discussion Continues

An interesting comment was posted by John H. Helmers, Jr. in response to the post Evaluators in Child-Custody Cases Scrutinized:

Thanks for this important link. I think that it is important for us all to rethink the way that custody evaluations are used. While the field of psychology may yield some information regarding a mental health diagnosis, and perhaps parenting ability, it is not a substitute for the Court's decision based on the legal standard of best interests. Additionally, the evaluators are not trained in the rules of evidence or civil procedure which provide necessary and important safeguards in the process.

Pursley v. Pursley (KY) Custody Modification; Exceptions to Commissioner's Report

Pursley v. Pursley, —S.W.3d—, 2007 WL 4126464 (Ky. App. 2007).

Dad appealed Family Court’s order modifying joint custody of Daughter to sole custody with Mom, and restricting Dad’s visitation to weekly supervised visitation. Dad alleged that Circuit Court erred by treating the Exceptions he filed as a Motion to Alter, Amend or Vacate and by transferring the case to Family Court.

When Daughter was ten, Mom and Dad divorced and agreed upon joint custody with equal time sharing of Daughter. Two years later, Mom alleged that Dad had engage in inappropriate sexual relations with Daughter and moved for sole custody. The matter was heard by a Domestic Relations Commissioner (“DRC”), who recommended sole custody to Mom with weekly supervised visitation by Dad. Dad timely filed Exceptions to the DRC’s recommendations. Circuit Court entered an Order that it would treat the Exceptions as a Motion to Alter, Amend or Vacate pursuant to CR 59.05 DRC’s recommendation and transfer the case to Family Court. DRC had been elected as Family Court Judge, and in that capacity, he subsequently denied the Motion to Alter, Amend or Vacate. Dad appealed.

CA agreed with Dad. Regarding the Motion to Alter, Amend or Vacate, CA noted that a CR 59.05 motion may only be utilized to seek reconsideration of a “final judgment.” The recommended order of a DRC is not a final judgment, but, rather, a recommendation utilized by the circuit court in reaching a final decision, thus the Motion to Alter, Amend or Vacate was not available at that stage of the proceedings. Considering the procedural posture of this case, CA believed the circuit court should have simply reviewed the exceptions, conducted a hearing, and entered a final judgment adjudicating the child custody issue.

As to Dad’s contention that the case should not have been transferred to Family Court, CA noted that while the family court was vested with jurisdiction over domestic issues by Ky. Const., § 112(6) and KRS 23A.100, such jurisdiction was not intended to be exclusive. Rather, the circuit court may, in some circumstances, retain jurisdiction to rule on domestic issues already before it, such as child custody. CA found that this case presented a unique circumstance where the circuit court should have retained jurisdiction and not referred it to Family Court since DRC conducted the proceedings, including an evidentiary hearing pursuant to CR 53.

Mom argued that Dad did not preserve issues for appeal, but CA stated that the gravity of errors claimed was one of substantial proportions, and pursuant to CR 61.02 this error may be considered by CA and the appropriate relief may be granted upon a determination that manifest injustice resulted from the error. CA noted that such an injustice had occurred, because “in a child custody proceeding, there can be no greater injustice to a party than a court failing to comply with applicable statutes and civil rules.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Evaluators in Child-Custody Cases Scrutinized

A National Public Radio program by Alix Spiegel, All Things Considered, November 21, 2007 is online. From the NPR site:

Psychologists and other mental health professionals are increasingly playing a role in child custody disputes.

Using a battery of psychological tests and expert judgment, psychologists make recommendations about which parent should have custody.

Those decisions are accepted by judges more than 90 percent of the time, but critics say the tests are flawed and the decisions are often more personal than professional.

One To Be Published Family Law Case Today (KY)

The Kentucky Court of Appeals directed one family law opinion today to be published, Pursley v. Pursley, out of Marshall County. Digest to follow soon, but the commissioner recommended a change of custody to mom based apparently on allegations of sexual abuse. Then the commissioner who heard the case was elected to the newly created family court in that county. The court of appeals held that a hearing under CR53.06(2) should have been held following the commissioner's recommendation in circuit court.

10 Myths About Custody And Domestic Violence And How To Counter Them

From the American Bar Association, Lawyers who represent victims of domestic violence in custody matters often encounter these common myths. This one-page tip sheet provides facts and recent statistics for use in litigation.Download custody_myths.pdf

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National Center for Missing & Exploited Children Announces Creation of an Attorney Manual for Litigating Hague Convention Cases

The National Center for Missing and Exploited Children announces:

The International Missing Children’s Division of the National Center for Missing & Exploited Children is very pleased to announce the creation of a practitioner’s guide to litigating Hague Convention cases. The manual, “Litigating International Child Abduction Cases Under the Hague Convention,” was prepared by the law firm of Kilpatrick Stockton LLP and is a valuable resource for all attorneys litigating Hague Convention cases in U.S. federal or state courts. The manual provides guidelines and relevant case law relating to litigating a Hague Convention case for the return of or access to a child.

The manual is online.

Discretionary Review Granted By Kentucky Supreme Court In Another Relocation Case; It Makes Three Move Away Cases Pending

When we link to a case (usually by simply highlighting the case in red, although that may change soon to make it more obvious) if the status of the case has changed, the link will be to the newest online version. That's how we discovered discretionary review was granted August !5, 2007 in Rankin v. Coffman, digested here. Unless the parties have the same last name or the case involves initials or the case name rings a bell, it is difficult to quickly note of the grants of discretionary review which involve family law. While the case indicates it is about jurisdiction, it really is about relocation of a child. The child was moved from Hardin County to Louisville when the relocation was granted and then forced by the court to return to Hardin County. We hope this case gets expedited and heard with Frances v. Frances, digested here and Pennington v. Marcum, digested here. Post Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003), a real mistake if there ever was one, relocation law has been a nightmare, evidenced by the large number of appeals on this issue. What could be so difficult about articulating a standard that if a parent wants to move a child, he/she must give a certain amount of notice and that the standard to be applied will be the best interests of the child? Um, well, our statutes have caused havoc.
In Robinson v. Robinson, 211 S.W.3d 63,68 (Ky. App. 2006) the court noted:

Child custody relocation litigation is not a new phenomenon in Kentucky. See, e.g., Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549 (1943)( “[S]ole question presented ... is whether the chancellor erred in modifying the judgment so as to permit [the custodial parent] to move to Pennsylvania and take the children with her.”). The arrival of the 21st century, however, heralded an accelerated evolution in this area of the law. This is true nationally as well as in Kentucky where our courts continue to address increasing numbers of such cases. Unfortunately, despite Kentucky's recent legislative efforts, Chapter 403 of the Kentucky Revised Statutes (Dissolution of Marriage Child Custody) fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce.
The vast majority of state legislatures has passed a wide variety of laws directly addressing the relocation issue; nearly half require a relocating custodial parent to give advance notice of the move to the other parent, the court, or both. Kentucky is among the minority of states that have no specific statute. Therefore, until our legislature aligns with the majority of states, we are compelled to address relocation/custody issues by applying the general custodial modification statutes, KRS 403.340 and KRS 403.350.
KRS 403.340(2) states:

No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:

(a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health; or
(b) The custodian appointed under the prior decree has placed the child with a de facto custodian.

KRS 403.340(2). The companion statute, KRS 403.350, states, in pertinent part:
A party seeking ... modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested ... modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits.... The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.

[1] Taken together, these statutes establish certain clear prerequisites to the modification of a prior custody decree where the modification is sought earlier than two years after its entry. Specifically, the motion to modify “must be accompanied by at least two affidavits. [Citation omitted]. If the applicable requirement is not met, the circuit court is without authority to entertain the motion.” Petrey v. Cain, 987 S.W.2d 786, 788 (Ky.1999). The filing of affidavits, therefore, is a jurisdictional requirement. Crouch v. Crouch, 201 S.W.3d 463, 465 (Ky.2006)(“[T]rial court had no jurisdiction to modify the [permanent custody] order unless a motion to modify, along with a supporting affidavit, was filed in the case.”).

The court also foot-noted the following:

FN4. Linda D. Elrod, Feature, States Differ on Relocation, 28 Fam. Advoc. 8, 8 (Spring 2006)(“Lawyers and judges have noticed the increase in the number of custody disputes in which relocation is an issue. The reasons are many: the steady high-divorce rate; the number of joint-custody and shared-residency arrangements; the shifting job market; remarriages; and the mobility of today's society.”).

FN5. Despite the Supreme Court's comment in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003) that “the relocation issue, at least in the context of sole custody, has been addressed and settled in Kentucky for more than a decade,” Id. at 784, Kentucky law in this area continues to evolve at a fast pace. Since 2000, the Kentucky appellate courts have addressed relocation/custody issues in some form in the following cases: Crouch v. Crouch, 201 S.W.3d 463 (Ky.2006); Brockman v. Craig, 205 S.W.3d 2444 (Ky.App.2006), mot. for disc. rev. filed, (Ky. Aug. 15, 2006) (No. 2006-SC-587-D); Bowman v. Bowman, --- S.W.3d ----, 2006 WL 658938 (Ky.App.2006)(Opinion Final, May 5, 2006); Allen v. Devine, 178 S.W.3d 517 (Ky.App.2005); Cox v. Cox, 170 S.W.3d 389 (Ky.2005); Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004); Fenwick v. Fenwick, 114 S.W.3d 767, 779 (Ky.2003); Scheer v. Zeigler, 21 S.W.3d 807 (Ky.App.2000). We could add to that list a fair number of unpublished opinions.

FN6. In 2001, child custody litigation in Kentucky was significantly affected when the state legislature amended KRS 403.340. The effect of the amendment was to soften custody modification requirements when a motion for modification is filed more than two years after the decree is entered. Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004). For modification within two (2) years of the award of permanent custody, the standard remains as strict now as prior to the amendment.

FN7. The following states require 30 days' notice prior to relocation: Florida (Fla. Stat. § 61.13001(3)(2006)), Georgia (Ga.Code Ann. § 19-9-1 (2006)), Kansas (Kan. Stat. Ann. § 60-1620 (2006)), Maine (Me.Rev.Stat.Ann. tit.19-A, §§ 1653(14) & 1657 (2006)), Montana (Mont.Code Ann. § 40-4-217 (2006)), New Mexico (N.M. Stat. § 40-4-9.1 (2006)), and Virginia (Va.Code Ann. § 20-124.5 (2006)). These states require 45 days' notice: Alabama (Ala.Code § 30-3-163 to 167 (2006)), California (Cal. Fam.Code § 3024 (2006)) and Maryland (Md.Code Ann., Fam. Law § 9-106 (2006)). States requiring 60 days' notice are: Arizona (Ariz.Rev.Stat. § 25-408 (2006)), Louisiana (La.Rev.Stat. Ann. § 9:355.4 (2006)), Missouri (Mo.Rev.Stat. § 452.377 (2006)), New Hampshire (N.H.Rev.Stat. Ann. § 458:23-a (2006)), Tennessee (Tenn.Code Ann. § 36-6-108 (2006)), Utah (Utah Code Ann. § 30-3-37 (2006)), Washington (Wash. Rev.Code §§ 26.09.405, et seq. (2006)), West Virginia (W.Va.Code § 48-9-403 (2006)) and Wisconsin (Wis. Stat. § 767.481 (2006)). The 2006 session of the Indiana legislature recently enacted a 90-day notice requirement (Ind.Code Ann. § 31-17-2.2-3 (2006)). “Reasonable” notice is required in Colorado (Colo.Rev.Stat. Ann. § 14-10-129 (2006)) and Oregon (Or.Rev.Stat. Ann. § 107.159 (2006)). Finally, the following states specifically address the relocation issue without implementing a notice requirement: Illinois (750 Ill. Comp. Stat. Ann. § 5/609 (2006)), Iowa (Iowa Code Ann. § 598.21D (2006)), Massachusetts (Mass. Gen. Laws ch. 208, § 30 (2006)), Michigan (Mich. Comp. Laws § 722.31 (2006)), Minnesota (Minn.Stat. § 518.195, Subd. 7 (2006)), Nevada (Nev.Rev.Stat. § 125C.200 (2006)), New Jersey (N.J. Stat. Ann. § 9:2-2 (2006)) and North Dakota (N.D. Cent.Code § 14-09-07 (2006)).

It's clearly time for our legislature to address the problem. (The AMML Model Relocation Act, anyone?) Meanwhile, we'll see if our Supremes have a magic wand.