A DVO was entered by Fayette Family Court preventing father from exercising his parenting time as ordered by Whitley Circuit Court, the court with jurisdiction and venue over custody and visitation. Father filed a motion in the Whitley Court case requesting sole custody and for restoration of his visitation rights. Mother responded by filing an original action in the Court of Appeals asking for writs of prohibition pursuant to CR 76.36.
Mother asked for writs preventing the Whitley Court from enforcing its parenting time order, preventing the Whitley Court from “modifying, amending, vacating or reversing” the DVO, and mandating the Whitley Court honor the DVO.
The Court of Appeals first sets forth the standard for a writ of prohibition, holding a writ can only be granted when "(1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted." Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
The Court of Appeals declined to grant Mother's request for writs preventing the Whitley Court from enforcing its parenting time order and vacating, altering or amending the Fayette DVO. The Court of Appeals holds that there is no merit to Mother's argument as the Whitley Court has jurisdiction over custody and parenting time, and Mother has the right to an appeal should the Whitley Court act erroneously.
The Court of Appeals also declined to grant a writ mandating the Whitley Court honor the DVO, holding the DVO does not take precedence over the earlier custody and visitation order.
The Court of Appeals adds that the Fayette Court should have transferred the DVO case to Whitley, stating that "the best practice is for the court where the DVO was filed to transfer the DVO action to the court where the custody action is already pending."
Digested by Elizabeth M. Howell
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