Divorce Law Journal

Published family law opinion from Ky Court of Appeals today - change of primary residence

A.G. v. T.B.

A custody determination is separate from parenting time. A modification of parenting time, even one that changes the child's primary residence, does not alter joint custody. Two affidavits are not required for a motion to change primary residence. Trial court did not abuse its discretion in prohibiting mother from relocating the children and granting father primary residence of the children.

Samson v. Samson, Ky COA, Child Relocation

Samson v. Samson, 2011-CA-002181-ME

Published:   Affirming  

County:  Fayette

Father appeals order granting Mother leave to relocate with Child to Washington State, contending such an Order is not in Child’s best interests.

FACTS:

After marrying in Texas in May 2009, Couple moved to Kentucky and had their only Child there.  Both Mother and Father have substance abuse issues and bipolar disorder.  Multiple EPO’s were taken out, 2 with Dad as Petitioner and 1 with Mom as Petitioner.  In May 2011, Father’s time-sharing with Child was terminated due to positive drug test, but it was re-established in September 2011.  In November 2011, they divorced and Mother was granted sole custody of Child.  FC ordered a time-sharing evaluation from social worker and the report was incorporated with FC’s order allowing Mother to relocate with Child. 

ANALYSIS:

Father argued that social worker’s opinions must be limited because they cannot be related to psychological analysis or credibility of the witnesses and that she acted only as a conduit for the introduction of hearsay testimony.  CA held first that the social worker was qualified to give the testimony she did, but that, more importantly, her opinion was only a fraction of the evidence relied upon by FC in granting the relocation request.  FC relied upon the testimony of family and friends that, among other things, Mother has no connections to Fayette County; that during their time together, Mother and Father moved repeatedly and there was no real connection to Fayette County for Father either; that neither party has an income; and that both parties have ongoing mental and emotional health issues.  CA also held that these facts demonstrated it was in Child’s best interests to relocate with Mother. 

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

N.B. v. C.H., Ky COA, Child Related Orders, Finality, Relocation, Burden of Proof

N.B. v. C.H.

No. 2010-CA-002257-ME

Published: Opinion Affirming in Part, Vacating in Part, and Remanding

County: Fayette

N.B., (Mother) appealed November 22, 2010 order of Fayette Family Court which addressed issues regarding N.H. (Daughter) the minor child born of Mother’s marriage to C.H. (Father).

The parties were divorced in August, 2002.  They agreed to share joint custody with Father the primary residential parent and Mother to have liberal timesharing.  Shortly   after the divorce, Mother moved to California, but returned to Kentucky in October, 2003.  Father and Daughter resisted her efforts to resume regular visitation and Family Court ordered the entire family – Mother and Father and their new spouses – and all the children to counseling.

Mother’s timesharing resumed, but in late 2009, Daughter expressed her desire to stop spending time with Mother.  Mother filed for additional counseling and the parties agreed to consult a different counselor, who recommended reconciliation counseling.  Mother requested Family Court to enter a counseling order, which Father opposed.  Prior to hearing on the motion for counseling, Father filed a notice of intent to relocate Daughter’s residence, but failed to file a motion for permission to relocate or to modify custody or timesharing.  After a hearing on Mother’s motion, Mother and Daughter attended one unsuccessful counseling session.  Father refused to force Daughter to attend another session, and Mother filed a motion to compliance with the counseling order.

The therapist testified at the hearing on Mother’s motion for compliance and cautioned against forcing the Daughter into unwanted counseling.  In two in camera interviews, Daughter expressed distrust of Mother.  Mother’s motion was eventually denied and counseling discontinued.

When Mother subsequently learned that Father and Daughter had moved to Texas, she asked Family Court to require return of Daughter to Kentucky and compliance with order to reconciliation counseling.  Father responded that he and Daughter had dual residences in Kentucky and Texas and that his contacts with Kentucky were insufficient to trigger requirements of Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008).  After a hearing, the Family Court denied Mother’s motion for return of child to Kentucky, denied her motion for compliance with order of joint custody and denied her request for continued reconciliation counseling. This appeal followed.

First, the Court disposed of Father’s contention that the Order was not final and appealable.  Citing several cases supporting continuing jurisdiction in custody matter, the Court concluded there is ample authority to allow review of this order because it relates to Daughter’s care and custody.

Next the Court addressed Mother’s claim that the Family Court abused its discretion in denying her motion to enforce its order for reconciliation counseling.  Finding that the court’s decision was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles, termination of counseling was not an abuse of discretion because evidence supported the conclusion that reconciliation counseling would be unsuccessful and possibly counterproductive.

With respect to relocation, custody, and timesharing issues, the Court noted that Family Court equated a jurisdictional question (whether there was sufficient connection with Texas to divest Fayette Court of jurisdiction) with the factual question actually before the court (whether Father and Daughter had relocated to Texas, interfering with Mother’s joint custody and timesharing rights).  It was error for the Court to use the UCCJEA to resolve substantive factual questions, and no jurisdictional issue was before the court.  The Family Court’s failure to enforce the custody and timesharing order opened the door for Father to engage in the forum shopping the Act seeks to avoid.

The Court of Appeals agreed with Mother’s argument that Family Court should have applied Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). Pennington defines “custody,” “visitation” and “timesharing.”  In addition, Pennington clarifies that a relocation is not simply a quantitative, but a qualitative, assessment, and examines whether the facts and circumstances impact the custodial or visitation/timesharing rights of the parent who is not moving.  A cross-country relocation such as this must not occur unless it is in the child’s best interest.  Such a decision, absent court approval, must be made by both joint custodians.  Because the joint custodians failed to agree, the trial court should have conducted a hearing and decided the issue according to the child’s best interest.  Family Court failed to do so.

Finally, the Court of Appeals discusses procedural issues at great length, particularly which party bears the burden of proving what is in Daughter’s best interest; In the case at bar, Father filed no motion to modify custody or timesharing, and Mother objected to the relocation and sought enforcement of the existing order.  The Family Court did not address Father’s unilateral decision-making, nor did it address the best interest question.  Therefore, the case is reversed and remanded for a hearing in accordance with Pennington.

Upon remand, if Father desires a change with sole custody vested in him, he must bear the burden of persuading the Family Court that Daughter’s best interests require such a change.  If Family Court agrees, Father may relocate without Mother’s approval.  If Father fails to meet his burden that relocation is in child’s best interests, the original custody and timesharing order must be enforced.

After a long discussion of the burden of proof, the Court interpreted Pennington as holding that, between joint custodians, and absent the non-primary residential parent’s motion to modify timesharing, the relocating parent always bears the burden of providing relocation is in the best interests of the child.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Carpenter-Moore v. Carpenter, Ky COA, Relocation, Law in Effect at Time of Decision

Carpenter-Moore v. Carpenter, et al, 2010-CA-000164-ME

Published:  Affirming

County:  Kenton

 

    Mother appealed from FC’s denial of her motion to relocate with the parties’ three minor children.

 

    Divorce proceedings were initiated in June, 2004.  In December, 2004 FC entered an order that the parties would share joint legal custody of their children.  A bifurcated divorce decree entered in August, 2005 dissolved the marriage but reserved all other issues, including custody, with all temporary orders to remain in effect pending resolution.  An agreed order entered March 21, 2007 stated that the parties would have joint legal custody, with mother the primary residential custodian.

 

    On November 1, 2007 mother filed a motion to relocate to Virginia with the children.  Father’s counsel stated his objection at the hearing on November 13, 2007.  The court set a hearing date for February 7, 2008 and appointed a guardian ad litem.

 

    Father filed a motion on January 30, 2008 for review of parenting time which was set to be heard the same date as the hearing on relocation.  The GAL filed her report on February 4, 2008 stating that she did not believe the relocation was in the best interest of the children.  On February 6, 2008 mother filed a motion for court to summarily grant her relocation because father had not complied with Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003) and KRS 403.340 and 403.350.  This was also set to be heard on February 7, 2008.

 

    On February 7, 2008, father filed a motion for a change of custody with two affidavits.  At the hearing, the judge requested briefs on the legal issues and gave mother an opportunity to file a response to father’s motion for change of custody.

 

    Each party filed a memorandum and on June 2, 2008, the court held an unrecorded hearing in chambers.  On August 11, 2008, the judge issued findings of fact and conclusions of law that father had submitted sufficient evidence of emotional harm to the children, requiring a full evidentiary hearing under KRS 403.340(2).

 

    On October 23, 2008, the Kentucky Supreme Court rendered Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) which specifically addressed relocation issues and changing motion procedures previously mandated by Fenwick.

 

    Before the hearing on October 31, 2008 father filed a motion to plead in the alternative for modification of visitation/timesharing to name him the residential parent, citing Pennington.  The FC decided Pennington applied and that the best interests of the child standard applied to motions for relocation.  On November 13, 2008, mother filed a motion for sole custody with no affidavits.

 

    On January 6, 2009, the FC heard the remainder of the evidence and granted father’s oral motion to deny mother’s change of custody motion.  Both parties filed position statements at the request of the court.

 

    On March 30, 2009, FC issued an order denying mother’s motion to relocate and reserved all issues for future rulings.

 

    Mother filed an appeal of the March 30 decision which was dismissed as premature because of unresolved reserved issues.  The FC then entered an amended opinion and order on December 22, 2009, denying all other motions, maintaining the status quo, making no custody changes and stating the order was final and appealable.  Mother appealed from the March 30, 2009 and December 22, 2008 orders.

 

    CA did not find the three month period an unreasonable time in which to file father’s motion and cited Fowler v. Sowders, 151 S.W.3d 357 (Ky. App. 2004) which held that allegations of serious physical or emotional endangerment to a child were not required to support a  motion for a change of custody.

 

    The CA found no error in failing to follow Fenwick’s procedural mandates because Fenwick is not applicable to this case.

 

    Mother further argued that FC retroactively applied Pennington and erred by the retroactive application of new law to substantive rights.  CA disagreed distinguishing between statutes and regulations and Pennington, a judicial decision.  In cases involving new judicial precedent, the CA said “a court is to apply the law in effect at the time it renders its decision.”  Commonwealth v. Alexander, 5 S.W.3d 104, 106 (Ky. 1999).  Pennington did not affect mother’s substantive rights; it merely clarified statutory procedure for challenging a motion for relocation.  Furthermore, no decision or event had occurred to which Pennington could have been applied retroactively.  CA found that FC did not err in determining that Pennington was applicable.

 

    Mother argued that the FC did not find give appropriate weight to GAL’s report.  CA did not find that FC clearly erred when it found relocation was not in the best interest of the children.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

 

 

U.S. Supreme Court Decides Hague Convention Case of Abbott v. Abbott

If a custodial parent violates an order not to remove a child from the country, the non-custodial parent may use the Hague Convention to have the child returned. Abbott v. Abbott, decided May 17, 2010 and online here

John Crouch at The Family Law News Blog says in this post, "This result is good policy, it’s good for international families, it’s good for the rule of law. It’s consistent with how people use and rely on the Hague Convention today, and how most courts in the U.S. and abroad interpret it. I’m not sure it reflects the treaty’s original intent or text, but the treaty leaves room for interpretation in that area.

What is especially significant is what it says about our current understanding of child custody. The majority reads “rights of custody” as implying “a bundle of rights”, in which some rights may be exclusive to one parent and others will often be shared by both, and both parents will ordinarily remain parents, and exercise some parental authority after divorce. The dissent takes an older view of custody as something that is (at least ordinarily) unitary, held by one parent after divorce. This view is declining but is still very strong in the more tradition-minded parts of our culture. These two views coexist, in different proportions, in other countries as well, as divorce and unwed parenthood become more common and society’s other institutions strain to adapt to them. They drive a lot of the drama in child abduction, alienation, and other contentious custody situations."

Pennington V. Marcum, Ky S. Ct., Modification Of Custody, Timesharing/Visitation, Primary Residence

PENNINGTON V. MARCUM
2006-SC-000642-DG
PUBLISHED: AFFIRMING
NOBLE PRESIDING
COUNTY: BOYD
DATE RENDERED: 10/23/2008

In this relocation case, SC addressed the nature of child custody, the effects of relocations, and when and how motions relating to relocation after a custody award should be brought.

Custody Defined
SC recognized that, as a consequence of Kentucky’s no fault divorce scheme, joint custody has emerged as Kentucky’s most prevalent custodial arrangement. Joint custody gives both parents full responsibility for and authority over the children at all times, and the parents have a flexible division of physical custody. Shared custody is a subset of joint custody in which the parents’ legal custody might be delineated by court order, parenting time may be scheduled with specificity, and one parent may be designated the “primary residential parent,” or the parent who provides the child’s primary home. Split custody refers to an arrangement in which each parent has sole custody of the child while the child is in his/her care.

Modification of Custody or Visitation on Parental Relocation
The effect of relocation must be viewed either pre- or post-decree. Any orders prior to entry of a decree are temporary orders and may be entered pursuant to KRS 403.280 for custody and KRS 403.320 for time-sharing, and may be modified at any time it is in the child’s best interests to do so. Any decisions made in the decree as to custody are made pursuant to KRS 403.270.
If a decree has been entered, and a relocation motion is filed, the motion is for modification of either custody or timesharing/visitation. If the parent is seeking a change of custody, then KRS 403.340 governs. If the motion requests modification of the timesharing schedule, then KRS 403.320 either applies directly or may be construed to do so. The distinction between modifications for custody versus modifications of timesharing is important, because the court must apply a stricter standard (endangerment to the child) for modifications of custody sought within two years of a prior custody determination. Thus, an important question to be resolved is whether a custodian’s relocation with the child changes the inherent nature of the custody the parties have or merely affects timesharing/visitation. SC held that “Custody is either sole or joint (or the subsets of each) and to modify it is to change it from one to the other. On the other hand, changing how much time a child spends with each parent does not change the legal nature of the custody ordered in the decree. This is true whether the parent has sole or joint custody: decision-making is either vested in one parent or both, and how often the child’s physical residence changes or the amount of time spent with each parent does not change this.” SC recognized that this concept may be too legalistic in a reality-based world, as many parents incorrectly designate “primary residential parent” in their agreements to address the physical possession of the child.
In looking at the most recent SC relocation case, Fenwick v. Fenwick, SC found that much of that opinion must be disregarded as the wrong statute was applied—as the issue was pre-decree, KRS 403.270 (best interests of child) should have been the standard applied, but SC instead focused on who was primary residential parent. Even if the case had been post-decree, the focus should not have been on who provided the primary residence, but on whether an actual change in custody was sought. A parent opposed to relocation but not seeking a change of joint custody should be making a motion for modification of timesharing. “While there is no statute that specifically addresses modification of time-sharing in a joint custody setting, it is reasonable to infer that modifying it does not alter the nature of joint custody. Also, since the nature of the custody does not change, TC is not bound by the statutory requirements that must be met for a change of custody, but can modify timesharing based on best interests of the child as is done in modifying visitation. Looking at Fenwick, SC noted that a modification motion due to relocation by a parent opposed to relocation that does not want a change of custody should probably be a motion for change of primary residential parent, which is a component of timesharing, not custody. This motion would be sought under the standard of KRS 403.320.
The parent seeking modification has the burden of bringing the motion before the court. “A residential parent who wishes only to change the timesharing due to his relocating with the child may bring the motion to modify timesharing under KRS 403.320. If that parent believes the relocation will make a joint custody arrangement unworkable, then the motion should be made for a change of custody from joint to sole under KRS 403.340. The other parent could also file a motion upon learning of the intent to relocate for modification of timesharing, including a requested change of designation of primary residential parent, or he could file a motion for a change of custody. Both parents could file motions requesting modification if their wishes differ.

Application to Parties
Though TC may not have used the correct terminology, TC appropriately modified timesharing schedule by allowing relocation. No abuse of discretion. CA affirmed.

Dissent by Cunningham
Majority opinion failed to provide guidance to lower courts as to standards to apply when one parent relocates. Advocated lower courts to evaluate (11) factors proposed by the American Academy of Matrimonial Lawyers’ Model Relocation Act when considering the best interests of child in relocation matters. “When a custodial parent decides to move a great distance, the non-custodial parent may no longer be deeply involved in the child’s life. The custodial parent has a choice—the choice not to move. The non-custodial parent has no choice and is not only helpless, but essentially stripped of his or her child. The child is also at the mercy of the custodial parent’s choice."

Dissent by Venters
“[TC] took the unilateral relocation of the child as a fait accompli without adequate consideration of impact of the relocation on the child and on the child’s other family relationships. Doing so… encourages such unannounced relocations when [SC] should adopt, or at least promote, a policy that requires the joint custodians to discuss the relocation before it occurs.”
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Frances v. Frances, Ky S.Ct., Modification Of Custody, Timesharing, Primary Residence

FRANCES V. FRANCES
2007-SC-000076-DGE
PUBLISHED: AFFIRMING
NOBLE PRESIDING
COUNTY: TRIGG
DATE RENDERED: 10/23/2008

TC awarded primary physical custody of Child to Dad. Mom claimed that TC's findings of fact were clearly erroneous and that TC improperly considered her relocations as a factor in its decision.
1. Background
The parties were married thirteen years when Mom filed for divorce in May 2004 and Dad moved to the next town a month later. A dissolution decree was entered on June 8, 2005 but custody, visitation, and child support were reserved. A few months after the parties filed for divorce but before entry of the decree parties entered an agreed order on child support Custody and parenting time was never formalized, but the parties shared almost equal time but Mom functioned as the primary residential parent. Both parties adhered to the informal custody agreement until April 2005, when Mom removed Child from school and relocated to Iowa without notifying Dad or TC. Dad filed an emergency motion for temporary custody shortly thereafter, at which time the parties were awarded temporary joint custody. The order provided for nearly equal time sharing and reasonable telephonic communication between the parties and Child. On June 28, 2005, TC awarded joint custody with primary physical custody to Dad, concluding that Mom's unilateral decision to remove Child from school and relocate to Iowa without notifying Dad disregarded the child's best interests. CA affirmed TC, holding that TC was in the best position to make a custody determination and the decision was neither clearly erroneous nor an abuse of discretion.

II. Analysis
Mom argued that it was unreasonable and unfair in light of the evidence for TC to name Dad primary residential custodian when she functioned as Child's primary caregiver throughout her life. Additionally, she argued that it was erroneous for TC to conclude the relocation to Iowa was not motivated by a desire to improve living conditions. Though Mom attempts to characterize TC’s determinations as two distinct errors, CA found that the bottom line is that the finding regarding her relocation to Iowa was simply part of the consideration in determining that it was in Child’s best interest for Dad to be her primary residential custodian.
As TC in this case properly noted, its custody ruling was not entered in response to a motion to modify a permanent order of custody; rather, it was actually the custody determination. As such, TC properly considered the standard required by KRS 403.270, the custody determination statute, which states that custody shall be determined in accordance with the best interests of the child giving each parent equal consideration . The statutory guidelines of KRS 403.270 do not include a definition of the best interests of the child standard; however, KRS 403.270(2) requires TC to consider all relevant factors and provides a list of non-exclusive, demonstrative factors to be considered in custodial determinations. Citing Fenwick as authority, Mom argued that as the primary caregiver in Child's life up until the final custody decree, she was entitled to relocate with her child and that Dad was required to show that the move seriously endangered the child, and that the harm from change of custody to him would be outweighed by the good. However, SC in Fenwick did not consider that relocation had been raised prior to entry of the final custody decree, and thus applied KRS 403.340, the modification of custody statute. In so doing, SC erred because it did not distinguish between a temporary custody order and a custody decree. The effect of relocation by a parent with the child on custody and visitation must be viewed in light of whether relocation occurs pre- or post-decree.
KRS 403.340, the modification of custody statute, speaks to modification of a custody decree. Though Kentucky's child custody statutes include no express definition of custody decree, the statutes distinguish between interlocutory child custody orders and decrees, with the latter meaning a final decision that ends the custody proceeding, is immediately appealable, and is subject to modification at a later date. The decree is the "judgment" (as defined in CR 54.01) in a custody case. Any order entered pursuant to KRS 403.208 is a temporary custody
order; such decisions are "pendente lite," "interlocutory," or "non-final." The trial judge's "final" decision about custody is the custody decree. Finality in this context is different than in most others, however, as the decision, while immediately appealable, is subject to modification at a later time under KRS 403.340.
I n making the final custody decree, TC must apply KRS 403.270, which has a best interests standard. Consequently, most of the discussion in Fenwick about the standard to be applied to modification of custody must be disregarded in this case, as must any rule that appears to give a preference on relocation to a primary residential parent. Here, TC correctly applied the best interests standard, and while Mom obviously disagrees with its findings, this Court cannot depart from them unless the factual findings are clearly erroneous or TC abused its discretion in applying the law.
Though TC stated the relocation of Mom was a substantial factor in the custodial determination, the record also indicates that TC placed significant weight on Child's strong relationship with her father, frequent interaction with the father's extended family, and adjustment within the community. Mom's unilateral decision to disregard these substantial components of Child's life supports the conclusion that it is in Child's best interests that the Dad function as primary residential custodian.
Although Mom did relocate with the child, this case is not about the typical relocation questions of whether the relocation warrants a change of custody or of timesharing. Since this was the actual custody determination, TC had a clear directive to make its decision based on the best interests standard set forth in KRS 403.270. After reviewing the record, it is clear TC's decision was supported by substantial evidence. While some of the evidence conflicted with TC's conclusions, and a different trial court or a reviewing appellate court might disagree with TC, the standard on appellate review requires a great deal of deference both to its findings of fact and discretionary decisions. CA affirmed .
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Ding Dong Fenwick Is Dead (Almost)

Frances v. Frances involves relocation issues arising prior to the entry of a final custody decree. These were also the facts in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003). The Kentucky Supreme Court now recognizes that the effect of relocation must be viewed in light of whether it occurs pre- or post-decree. In making a final custody decree, the trial court must apply a best interest standard and there is no rule giving a preference on relocation to a primary residential parent.

Pennington v. Marcum concerns post-decree relocation of a child. Justice Noble gives us an excellent primer on modification of custody as opposed to modification of parenting time. Fenwick required a parent opposing relocation to move for a change of custody when the father in Fenwick really only wanted to become the primary residential parent, which is merely a modification of timesharing under joint custody. Pennington v. Marcum holds that a motion for change of custody is not required and a motion to modify visitation/timesharing under KRS 402.320 is sufficient. From the Opinion:

The party seeking modification of custody or visitation/timesharing is the party who has the burden of bringing the motion before the court. A residential parent who wishes only to change the visitation/timesharing due to his relocating with the child may bring the motion to modify visitation/timesharing under KRS 403.320. If that parent believes that the relocation will make a joint custody arrangement unworkable, then the motion should be made for a change of custody from joint to sole under KRS 403.340.
Likewise, when one parent indicates an interest in relocating with the child, the parent opposed need not wait, but could file his own motion. A parent who has equal or nearly equal visitation/timesharing and who wants to prevent a child’s relocation with the other parent, but does not want to change custody from joint to sole, could bring a motion for a change of visitation/timesharing under KRS 403.320. This could result in a designation of that parent as primary residential parent if the child is not allowed to relocate because it is not in his best interest to do so. If that same parent wants to change custody from joint to sole custody to him, he must being the motion for a change of custody and proceed under KRS 403.340.
Both parents may need to bring motions if their wishes differ. For example, if the residential mother makes a motion to modify visitation/timesharing to allow her to relocate with the child, the father may need to make a motion for modification of visitation/timesharing to name him as the residential parent, which would prevent relocation of the child. Or, the father could make a motion to be named sole custodian, and if he could meet his statutory burden, there would be a change of custody which would also defeat the relocation. If neither party wishes to change the nature of the custody, and the court determines that it is in the best interest of the child to relocate with the mother, the father’s visitation/timesharing would be modified to an accommodation as reasonable as possible given the distance of the relocation and the means of the parties.
To the extent this Court’s prior decision in Fenwick and its progeny is inconsistent with this Opinion, it is overruled.

It appears we could sing “Ding Dong Fenwick’s Dead!” but both Opinions talk about overruling Fenwick to the extent it is inconsistent. It will take some digging to determine what part of Fenwick is still alive. Nonetheless, it is a case we no longer have to worry about.

Justice Noble was joined by Justices Abramson, Schroder, and Scott. Justices Cunningham and Venters agree with most of the majority Opinion, but dissent because the trial court gave insufficient analysis to the effect of relocation on the child, a deficiency in large part due to the Court’s failure to provide guidance to trial judges. Factors a trial court should consider include: (1) the age of the child; (2) the purpose of the move; (3) the distance of the move; (4) the worthiness of the move for the child when balanced with any negative effects; (5) the improvement of the child’s standard of living; (6) the physical hardship of travel for the child on visitation with the non-custodial parent; (7) the presence or absence of extended family for the child at the new location versus the existing location; (8) the motivation of the non-custodial parent for objecting to the move (i.e., is it genuine concern for the child or simply a way of punishing the former spouse?); (9) whether the non-custodial parent has turned down career advancement opportunities by not moving away in order to stay close to the child; (10) the possibility and plausibility of the non-custodial parent following the child; and (11) the number of times the custodial parent has moved.
Justice Venters' separate dissent espoused the belief that the court should have adopted or promoted a requirement that joint custodians discuss a proposed relocation in advance.

It's a rare day when one can agree with both majority opinions and both dissenting opinions. Our high court tackled the thorny issue of relocation very well.

Full digests of both cases to follow.

Ky. Supreme Court Also Decides Pre-Judgment Relocation Case Today

Frances v. Frances, but the real discussion of the law is in Pennington v. Marcum. Digest to follow.

Fenwick Gutted By Ky. Supreme Court Today In Post-Decree Relocation Case

Pennington v. Marcum, decided today by the Kentucky Supreme Court. Congratulations to Martha Rosenberg! I dreaded reading Justice Cunningham’s dissent, only to find him cite the “prestigious” AAML and our model relocation act as guidelines that could have given courts greater guidance than best interests. A good day! We will post more on the case shortly and thereafter post a full digest.

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.

Relocation In Michigan And Edmund Fitzgerald Update (updated)

Just as the Kentucky Supreme Court has three relocation related cases pending, Michigan has been struggling with the issue. Here is Jeanne Hannah's post Mom's relocation of 91 miles causes change in custody in Updates In Michicgan Family Law.
Nearly a year ago I wrote about a missed opportunity to meet Jeanne at this post. Marcia Oddi dubbed it the adventure of the Edmund Fitzgerald and I promptly forwarded the haunting score to my hosts, who were not very amused. But, ha! They invited me back and we're planning to cruise up Jeanne's way again this summer. The one lesson I learned, though, is that you really can't plan when traveling by water. So, Jeanne, if I'm nearby I'll give you a call, but no advance dinner plans. :)
UPDATE: Marcia Oddi writes, Actually it is "The Wreck of the Edmund Fitzgerald."
See this excellent video, accompanied by the Gordon Lightfoot vocal.
http://www.youtube.com/watch?v=ZEwEfti7gRk. Thanks!

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

Oral Arguments And Briefs In Two KY Relocation Cases

Kentucky Court Report has collated and posted the following which includes links to briefs in which oral arguments are set December 13, 2007 before the Kentucky Supreme Court in two relocation cases:

9:00 a.m. FRANCES V. FRANCES (2007-SC-76-DGE)
"Child Custody. Issues in this marriage dissolution proceeding relate to the trial court's award of primary physical custody of the child to the father, and the effect of the mother's relocation out-of-state on the determination of the child's best interest."
Discretionary review granted 3/14/2007
Trigg Circuit Court, Judge Bill Cunningham
For Movant: Julia T. Crenshaw
For Respondent: Sands Morris Chewning
(Note: Justice Cunningham is recused)

Briefs:
Appellant’s Brief
Appellee’s Brief
Appellant’s Reply Brief
COA Decision: 2005CA002235

10:00 a.m. PENNINGTON V. MARCUM, F/K/A MILES (2006-SC-642-DG)
"Child Custody. Issues relate to the denial of a motion to modify a custody agreement based upon the residential custodian's relocation out of state with the child."
Discretionary review granted 1/18/2007
Boyd Circuit Court, Judge Marc I. Rosen
For Movant: Rhonda M. Copley
For Respondent: Martha A. Rosenberg
(Note: Justice Minton is recused)

Briefs:

Appellant's Brief
Appellee's Brief
Appellant’s Reply Brief
COA Decision: 2005CA002349

Here's the link where the oral arguments will be online.

Kentucky Supreme Court Grants Discretionary Review In Another Relocation Case

Last month we reported here on a "not to be published" relocation case in which the Kentucky Supreme Court granted discretionary review. Now there is another. While we still fret about whether to digest "not to be published' decisions, it certainly seems worthwhile to do so for those which are being entertained on discretionary review.
Frances v. Frances, 2005-CA-002235.
Here's the digest:
Issue and Holding:
Whether the trial court’s findings were clearly erroneous or the trial judge abused his discretion in a child custody dispute. The Court held no, the trial judge’s findings were supported by the evidence and he did not abuse his discretion.

Facts:
One child was born during the marriage of the parties. The wife filed for divorce, and the parties entered an agreed order regarding child support obligations and custody schedule. After learning that the wife had removed the child from school and moved to Iowa, with her boyfriend, the husband filed an emergency motion for temporary custody. After a hearing was held, the trial court granted primary physical custody to the husband. The wife filed a motion to amend, alter, or vacate the judgment, which was denied. The wife appealed.

Analysis:
Under CR 52.01, the trial court’s findings of fact cannot be set aside unless clearly erroneous or the trial judge abused his discretion. KRS 403.270 requires that the best interests of the child standard for determining custody. The record demonstrates that the lower court fully considered the best interests of the child. The wife separated the child from everything that was familiar and stable in her life, especially the on-going and consistent relationship with her father. While the wife offered excuses for her abrupt departure, she failed to use any of the readily available resources in Kentucky to protect women from threatening and potentially harmful situations with a disgruntled former spouse. The trial court was in the best position to determine what is best for the child. Accordingly, the Court found no abuse of discretion.
Affirmed.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com

Kentucky Supreme Court Accepts Discretionary Review In Another Relocation Case

It is difficult enough to keep track of the "to be published" decisions. Yet here is the digest of this "not to be published" decision as the Kentucky Supreme Court has accepted discretionary review.
Pennington v. Marcum, 2006 WL 2194903 (Ky. App.)

Issues and Holdings:

1. Whether lower court erred by disregarding the findings of the Domestic Relations Commissioner and by making a decision contrary to the DRC’s recommendations without holding an evidentiary hearing. The Court held no, the court did not err.
2. Whether the lower court erred in failing to consider the best interests of the child standard. The Court held no, the lower court did not err.

Facts:

In January 2001 the parties agreed to share joint custody of their one child, with the mother having physical custody. In 2002 the mother married and moved to West Virginia, but the father continued his weekly visits. In July 2004 the mother moved to Virginia, six hours away from the father’s home. The father then filed a motion to modify custody, seeking physical custody of the child.
The Domestic Relations Commissioner held a full hearing and recommended that the father have physical custody. The mother filed exceptions to the DRC’s recommendations. The circuit court considered the recommendations and heard oral arguments, and then sustained the mother’s exceptions and restored physical custody to her. The father appealed.

Analysis:

First, CR 53.06(2) does not mandate a full evidentiary hearing by the circuit court, it only requires an opportunity for oral argument. Therefore, the court properly reviewed the DRC’s report and considered arguments of counsel.
Second, KRS 403.340 (3) outlines the factors that the court must consider prior to modifying custody. Said statute also refers to the best interests of the child analysis set out in KRS 403.270 (2). The circuit court noted in its order that the child flourished in her new setting in Virginia. The court also noted that it would not deprive the mother of custody just because she moved farther away from the father. The Court found that there was substantial evidence to support a finding in favor of the mother.
Accordingly, the Court affirmed the lower court’s order.

Online Resources In Move Away Cases

Ben Stevens at The South Carolina Family Law Blog, posts a nice online link for a useful resource in move away cases.

One of the (many) issues that the Court considers in such cases is the quality of the schools in each location.

Fortunately, it is now easier than ever to find out necessary information about educational institutions located far away, thanks to Yahoo Real Estate. This free service allows you to research both public and private schools in any state by city name or even by zip code.

The information provided includes contact information, enrollment, student to teacher ratio, and location on an interactive map. There are also reports available on the school's test scores, students, and teachers. This resource can prove extremely helpful as a starting point when a child's education is at issue, and I urge you to check it out.

Still Another KY Move Away Case

Editor's note: This case is now final, and we will update post with SW3d cite when available.
Robinson v. Robinson, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3460123 (Ky. App.)
Issue and Holding:
Whether the trial court had the jurisdiction to modify the custody decree regarding one parent’s wish to relocate with the children. The Court held no, the trial court lacked jurisdiction.

Facts:

The court entered its first custodial ruling in the divorce decree in June 2005. The Court awarded the parties joint custody of the children and designated the mother as the primary custodian. The decree also stated that if either party relocated more than 150 miles from the county that the time

Brockman v. Craig

Brockman v. Craig, 205 S.W.3d 244 (Ky. App. 2006)

Issues and Holdings:

1) Whether a parent, who spends more time with child than the other parent, can claim the status of primary residential parent for purposes of determining the standard to apply to a motion to relocate. The Court held no, the parent cannot claim such status.
2) What standard is to be applied to motions to relocate, if the motion is filed less than two years since the original custody agreement. The Court held that the parent wanting to relocate must show that the present environment endangered the child’s physical and emotional well-being.
The Circuit Court ordered that the motion for modification of custody did not meet the requirements for the court to hold a hearing under KRS 403.340, and denied the motion. Brockman appealed.
COMMENT: The Court of Appeals is almost begging the Kentucky legislature to address relocation. We have promoted consideration of the AAML's model relocation act here.

Relocation

Chief Judge Stephen George gave an excellent presentation on relocation at the AAML/LBA seminar last week," Fenwick, Dead or Alive?" We have made an editorial decision, though, not to report on judges' comments on this blog. The ABA Family Law Advocate features relocation as the subject of its most recent edition and contains a good bibliography. Bill Hoge pointed out that you don't have to be an ABA member to subscribe to the Advocate. Having no respect for Derby, the ABA Family Law Section at their Spring meeting next week in Washington, DC, will have a 2 1/2 hour plenary presentation on relocation on Thursday May 4, 2006 at 9:45 am. The speakers will include Judge Sundt of Rockville, Maryland, Professor Jeff Atkinson of Chicago, Attorneys Mary Jo Curley and Kathryn Murphy, both from Texas, Mary Connell, EdD. of Fort Worth and Jan DeLipsey from Dallas, Texas. It remains a hot issue in family law.