Divorce Law Journal

Herald v. Herald, UCCJEA (Child Custody Jurisdiction)

HERALD V. HERALD CHILD CUSTODY JURISDICTION (UCCJEA) 2008-CA-000601 PUBLISHED: VACATING AND REMANDING PANEL: THOMPSON PRESIDING; STUMBO AND GUIDUGLI CONCUR COUNTY: KENTON DATE RENDERED: 2/13/2009

Dad appealed KY TC’s ruling awarding custody of 3 children to Mom, contending that KY TC lacked jurisdiction to make such an order under UCCJEA.

FACTS: Family lived in NC for several years before parties separated and Wife and children moved to KY in April 2007. Dad, a marine, stayed in NC awaiting deployment. In June 2007, parties entered into a separation agreement giving Dad custody of kids, and kids returned to NC where they stayed until Mom removed them again in October. Mom then filed Petition for Dissolution of Marriage in KY in January 2008. A few weeks later, Dad then removed the kids back to NC, refusing to tell Mom of kids’ location or to allow her to speak with him and informing her that he was soon to be deployed to Iraq.

Mom subsequently filed Motion for custody in KY. TC issued order scheduling status hearing for February 19th. On February 15th, Mom filed and was granted an ex parte motion for emergency custody. Dad’s NC counsel corresponded with KY court on February 18, advising that Dad was deployed, kids had lived in KY only 2 ½ months, and providing copy of his motion for custody filed in NC court on February 15. KY TC nonetheless conducted hearing on February 19. Mom testified, but Dad did not appear. KY TC indicated at end of hearing that it would communicate with NC court re proper jurisdiction under UCCJEA, but this never occurred. KY TC gave Mom custody a week later. Dad entered special appearance a month later to move to dismiss case due to KY TC’s lack of subject matter jurisdiction and in personam jurisdiction over him. KY TC declined to dismiss Mom’s custody petition but did stay action under Soldiers’ and Sailors’ Civil Relief Act.

ANALYSIS: Parties conceded that KY was not home state of children for six months, nor that NC had declined to exercise jurisdiction; therefore, KRS 403.822 did not apply. Mom alleged that KY had jurisdiction under KRS 403.828, the temporary emergency jurisdiction provision of the UCCJEA. This statute allows KY jurisdiction where a child in KY has been abandoned or needs emergency protection to prevent or escape from mistreatment or abuse. CA found no allegations of mistreatment or abuse by Mom in refusal to inform her of location of children. Although Dad was due to be deployed to Iraq, TC cannot use this fact against Dad because those serving in military should not be automatically deprived custody of their kids. Furthermore, to allow such justification for exercise of “emergency” jurisdiction would allow a parent seeking custody to file such a petition in any state moment before deployment.
KY TC’s order vacated and remanded for order dismissing petition for custody.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Ky UCCJEA COA Decision February 13, 2009

A digest of Hearld v. Hearld, custody jurisdiction under UCCJEA, will be posted soon

Koerner v. Koerner, Ky COA, Child Support Modification Jurisdiction

KOERNER V. KOERNER
CHILD SUPPORT JURISDICTION
2008-CA-000080
PUBLISHED: VACATING
THOMPSON PRESIDING
COUNTY: OLDHAM
DATE RENDERED: 10/17/2008

Mom alleged that TC lacked subject matter jurisdiction over child support modification.

FACTS:
At the time of the dissolution, Mom and Dad and their two minor children resided in GA. Their divorce decree gave Mom and Dad joint custody of the children with Mom having primary physical custody, and Dad was ordered to pay child support to Mom. In 2003, Mom and the children moved to KY. In 2006, Dad, who remained a GA resident, registered the GA decree in KY and filed a motion in KY TC requesting primary physical custody of oldest child. TC denied immediate modification of custody but ordered that oldest child reside with Dad during that summer, subject to further modification at the end of the summer. In August of that summer, primary residential custody was transferred to Dad. Mom timely filed a CR 59 motion to alter, amend or vacate the order. One week after the order modifying the custody decree and, before Mom’s CR 59 motion was ruled upon, Dad filed a motion to modify the child support paid to Mom on the basis that the GA decree was premised on both children being in Mom’s custody, so that the transfer of residential custody of the oldest child to him was a change in circumstances that justified modification. Subsequently, TC granted Mom’s CR 59 motion and returned the oldest child to Mom’s primary residential custodianship. In memoranda to TC addressing Dad’s motion for modification of child support, Dad argued that pursuant to the KY child support guidelines his child support should be reduced. Mom opposed the modification on the basis that the family court lacked jurisdiction under KRS Chapter 407 et. seq. TC reduced Dad’s child support based on the parties’ incomes and the corresponding child support amount in the guidelines.

ANALYSIS:
Whether TC had the authority to modify the GA decree requires an interpretation of the applicable provisions of the UIFSA as incorporated into KRS Chapter 407. CA held that the state that issued the child support decree or order retains “continuing, exclusive jurisdiction” unless KRS 407.5613 applies or conditions for modification established in KRS 407.5611(1)(a) are met. Although enforcement of a child support decree and modification both require that the decree be registered in the foreign state, there are additional requirements to be met before the court has authority to modify an existing child support decree. Thus, Dad’s proper registration of the child support decree in KY did not confer jurisdiction in KY TC to modify the decree.
KRS 407.5613 provides that jurisdiction to modify a child support order of another state exists if “all of the parties who are individuals reside in this state and the child does not reside in the issuing state . . . .” Because Dad remained a GA resident, KRS 407.5613 has no application. KRS 407.5611 provides that a KY TC will have jurisdiction to modify if it finds that the child, the individual obligee, and the obligor do not reside in the issuing state, that the petitioner is a nonresident of KY, and that KY would have personal jurisdiction of respondent; or, that the child or one of the parties is subject to KY’s personal jurisdiction and that the parties have filed written consent for KY TC to assume continuing, exclusive jurisdiction over the order. If the obligor or obligee remains a resident of the issuing state and no written consent is filed, the issuing state retains continuing, exclusive jurisdiction to modify its child support decree. Although arguably not a desired result, one state may retain jurisdiction to modify child support while another obtains subject matter jurisdiction over child custody and visitation. Thus, KY TC had no jurisdiction to modify the GA child support decree, although KY has jurisdiction over custody matters in this case.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Fehr v. Fehr, KY COA, Jurisdiction, Restoration Of Nonmarital Property

FEHR V. FEHR
2007-CA-001495
PUBLISHED: AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
THOMPSON PRESIDING
COUNTY: OLDHAM
DATE RENDERED: 10/3/2008

ISSUES PRESENTED:
Ex-Husband appealed TC’s decision awarding Ex-Wife a villa and a one-half marital interest in a mini-storage warehouse located in the Netherlands Antilles, alleging that he should have received his nonmarital interest in those properties. Ex-Wife contended that TC lacked subject matter jurisdiction over the property located in the Netherlands Antilles, or alternatively, that the law of that country should apply to the division of the property. She also challenged the admission of appraisals performed by an unlicensed real estate agent.

FACTS:
The parties were married on August 7, 2000, in the Netherland Antilles. Both were KY residents at the time and Ex-Husband continued to reside in KY throughout the marriage. During the marriage, Ex-Wife primarily resided in St. Maarten but did not change her United States citizenship. In June 2004, Ex-Husband filed a petition for dissolution in KY, asserting his KY residence. Ex-Wife admitted in her Response that she had been a KY resident for several years, and subsequently filed documents in the record demonstrating that her domicile was within the U.S. Ex-Wife did not object to the jurisdiction of the Oldham TC until two years after the petition was filed. The parties were equal shareholders a mini-warehouse storage company, incorporated pursuant to the laws of the Netherlands Antilles. The corporation was formed prior to the marriage. Ex-Husband made a total pre-marital investment of $110,693 to this property, while Ex-Wife invested $60,000 in the purchase of the property prior to the marriage and managed the property since the purchase. The parties also owned a villa in St. Maarten, titled in a company organized under the laws of the country of Anguilla and of which Ex-Wife was the sole director. Ex-Wife invested $101,000 from the sale proceeds of her pre-marital home towards the purchase of the villa, while Ex-Husband contributed $217, 000 of non-marital funds to the purchase. A St. Maarten real estate broker appraised the villa at $705,000 and the warehouse business at $585,000. He was not a licensed appraiser but testified that licensure is not customary in the Netherland Antilles.
TC found that the warehouse was a joint business venture, declared it to be marital property, and equally divided the parties’ interests. Despite the evidence that both parties contributed nonmarital funds toward the purchase of the villa, TC made an “equitable decision to award the entirety of the property to Ex-Wife, stating that such a decision was made in consideration of several factors, including the contribution of each party to the home, the difficulties in enforcing a Kentucky judgment as it relates to the St. Maarten property; and that TC ordered no maintenance paid from Ex-Husband to Ex-Wife.

JURISDICTION:
Because both parties were Kentucky domiciliaries, CA concluded that TC had subject matter jurisdiction and personal jurisdiction over the parties to grant the dissolution. Ex-Wife objected to the assertion of TC’s jurisdiction, due to TC’s lack of power to decide the parties’ interest in the St. Maarten property, thus claiming TC’s lack of subject matter jurisdiction. Subject matter jurisdiction cannot be waived or otherwise conferred by the parties. It either exists or it is absent. Although it is well established law that KY courts are without jurisdiction to settle title or possessory rights to land outside the Commonwealth, it is equally accepted that a court may, through an in personam decree, affect title to land in another state. CA held that by virtue of TC’s personal jurisdiction over the parties, it had the authority and power to indirectly affect the property by compelling the conveyance of the interest, though an action to enforce a foreign decree so as to transfer title in accordance with the decree generally requires a separate action in the jurisdiction in which it is located.

REAL ESTATE EXPERT QUALIFICATIONS:
Ex-Wife contended that the testimony of the real estate broker was inadmissible because he was not licensed in accordance with Kentucky law. CA held that KY statutory regulation of real estate appraisers does not supersede the Rule of Civil Procedure placing qualification of expert witnesses within the discretion of TC based on the witnesses’ knowledge, skill, experience, training, and education. Although a statutory license requirement is relevant to TC’s determination, the lack of a license does not render the testimony inadmissible.

ALLOCATION OF NONMARITAL PROPERTY
A proper inquiry into the division of property begins with a three-step process: (1) TC first characterizes each item of property as marital or nonmarital; (2) then assigns each party's nonmarital property to that party; and (3) finally, equitably divides the marital property between the parties. When property consists of both marital and nonmarital contributions and has increased in value during the marriage, the reason for the increase in nonmarital property value must be determined. If attributable solely to economic conditions, the increase is nonmarital. If the increase is the result of the joint efforts of the parties it is considered marital property subject to division in equitable proportions.
With regard to the division of the warehouse business, CA held that while Ex-Husband contributed more than Ex-Wife financially, she contributed a corresponding amount in her effort as manager of the business both before and during the marriage so that her nonmarital contribution as manager of the property was equal to the monetary contribution of non-marital funds contributed by Ex-Husband. Thus, TC did not err in awarding each party a one-half interest in that asset.
With regard to the villa, CA held that TC’s award of the villa to Ex-Wife is inconsistent with KRS 403.190 and the three-step process required to be applied. Because TC found that Ex-Husband and Ex-Wife made nonmarital contributions to the purchase of the villa, it was required to award each their respective nonmarital interests in the property. Only after it has restored each party their nonmarital interest are the factors delineated in KRS
403.200 and an award of maintenance, if any, appropriate. CA stated that TC is not permitted to circumvent KRS 403.190 in lieu of a maintenance award.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Murphy v. Murphy, Ky COA, Modification Of Custody, Notice

Murphy v. Murphy, --S.W.3d – (Ky. App. 2008), 2007-CA-002298-ME

The parties shared joint custody and equal parenting time of their three children. More than a year after the parties’ last interaction with the court, the father moved to modify custody. He mailed the motion/notice to the mother’s attorney of record. The mother’s attorney of record then filed a Notice of Nonrepresentation, stating that she no longer represented the mother, but had mailed a copy of the motion to her last known address.

The court held the modification hearing without the mother, or any legal representative, present, since the mother had an attorney of record. The father even told the court that the mother’s current address was different than the one her attorney of record had mailed the motion to. The court saw no need to take any proof regarding the change of custody in the mother’s absence, and sustained the motion to grant the father sole custody of the children. The mother only learned of the hearing and order afterwards, when the father contacted her to pick up the children.

About a week after the hearing, the mother finally received the motion/notice that her attorney of record had sent. The next day, the mother filed a pro se motion to alter, amend or vacate the judgment, which the court denied. The parties subsequently entered an agreed order regarding parenting time, allowing the mother weekend and Wednesday night visitation. The mother then renewed her motion to alter, amend, or vacate and asked the court to appoint her a GAL. The court denied both motions. The mother appealed.

The mother’s first claim of error was the court failed to find that the father’s motion for change of custody warranted a hearing. The COA found that the father alleged sufficient grounds to justify a hearing.

The mother’s second claim of error was the court, knowing that notice was highly questionable, erroneously allowed the hearing to go forward without her presence. The COA reversed for lack of notice. Conclusion of the divorce action terminated the attorney-client relationship, therefore service of notice on the mother’s attorney of record did not effectuate service on the mother. In addition, once the attorney filed the Notice of Nonrepresentation, a new hearing date should have been set and service made directly on the mother.

The mother’s final claim of error was the court modified custody without finding a change in circumstances or best interests of the children as required by KRS 403.340(3). As there were no affidavits, no testimony, and no findings by the court, the COA reversed and remanded for a hearing and the statutorily required findings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR A HEARING AND FINDINGS.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Coffman v. Rankin, Ky Child Custody Modification, Standard To Be Applied; Jurisdiction

Coffman v. Rankin, --S.W.3d-- (Ky. 2008), 2007-SC-000348-DGE

The parties divorced in 2001 and were granted joint custody of their two minor children. The mother was named primary residential custodian. In 2004, the father filed a motion to modify the custody decree due to his concerns regarding the mother’s intention to move with the children and her engagement to an individual with past mental and addiction problems. During the pendency of the action, the mother was granted permission to relocate from Hardin County to Jefferson County with the children and her, now, new husband. An evidentiary hearing was held in 2006 and the Family Court named the father the primary residential custodian based on the best interests of the child standard. After the mother’s motion to alter, amend, or vacate was overruled, she appealed. The COA held that the Family Court abused its discretion and proceeded without subject matter jurisdiction, and therefore reversed the Family Court’s ruling.
The SC granted discretionary review. The SC found that the Family Court did have subject matter jurisdiction, since the Family Court determined that the moving papers were sufficient. It also found that the Family Court did not abuse its discretion, as the Family Court issued a thorough findings of fact and conclusions of law in excess of 16 pages.

Dissenting Opinion: It was an abuse of discretion in the trial court’s finding that there was substantial evidence to justify a change of custody. The evidence showed that the children are doing well with their mother. The majority of the fact finding concerned the new husband’s past instability. However, there was no evidence that the new husband had suffered any problems during his relationship with the mother or in the last five years. The trial court based its findings on speculation of what might occur in the future. Also, KRS 403.270(3) was completely ignored, as there was no evidence that the mother’s new relationship has affected her relationship with the children. More proof was needed to justify uprooting the children from their mother’s care.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

The Relocation Case That Wasn’t

The Kentucky Supreme Court decided Coffman v. Rankin today, a 4 – 3 decision reversing the Court of Appeals and reinstating the trial court change in the primary residence of the parties’ two children, now 13 and 10 years old.
The Opinion of the Court by Chief Justice Lambert, joined by Justices Abramson, Minton and Noble, held that a verified petition to modify custody is sufficient to confer subject matter jurisdiction on the trial court. It ruled that the Court of Appeals, in going on to address the merits of the change in primary residence, inappropriately applied a serious endangerment standard rather than the “best interest” standard. The majority opinion found that the Family Court applied the correct standard and there was no abuse of discretion.
The dissent by Justice Cunningham, joined by Justices Schroeder and Scott, agrees that the trial court had subject matter jurisdiction and agreed that the appropriate standard was “best interest” rather than serious endangerment. They dissented, however, because almost all of the fact finding had to do with mental and emotional instability of the children’s stepfather that had occurred five years in the past and which did not affect the minor children. Little of the testimony involved the children, who clearly wanted their mother to remain their primary custodial parent. The dissent passionately argued “To find that this evidence is sufficient to change custody away from a mother, who has had the children all of their lives, will set a precedent that will create justifiable apprehension for all custodial parents throughout the state and will undermine the much needed stability for children of broken homes.” A digest will follow shortly.

The court chose not to use this case as part of a trio on relocation. We have numerous posts on the other relocation cases under submission at the Kentucky Supreme Court, Pennington v. Marcum and Frances v. Frances here, here, here, etc. No decisions will be released in July so it will be at least two months before we hear where we are headed on relocation and possible revisiting of Fenwick v. Fenwick.

Gomez v. Gomez, KY COA, Domestic Violence Jurisdiction

Gomez v. Gomez, __ S.W.3d __ (Ky. App. 2008), 2007-CA-001919-ME, May 9, 2008

Appellee filed a domestic violence petition in district court requesting an emergency protective order against the Appellant. The district court did not issue an emergency protective order, but did issue a summons and set the matter for a hearing. After the family court held a full evidentiary hearing, it issued a domestic violence order. Appellant appealed the order alleging that 1) since the district court failed to issue an emergency protective order, the family court lacked jurisdiction to either hold a hearing or enter a domestic violence order and 2) insufficiency of the evidence. COA found that the family court did have proper jurisdiction. Family courts are the primary forum for matters concerning domestic violence and abuse, although the district courts have concurrent jurisdiction to enter emergency protective orders under KRS 403.725. The Court found no statutory language to support Appellant’s position that district courts retain exclusive jurisdiction unless an emergency protective order is issued. Of special significance in the instant case was the fact that the parties also had a pending divorce action, which gave the family court jurisdiction under KRS 403.725(4) as well. COA also found that the family court’s issuance of the domestic violence order was supported by the evidence and was not clearly erroneous.
AFFIRMED.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates

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.

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.