Mom appealed from TC’s order denying her motion to set aside TC's judgment awarding permanent custody of Daughter to Paternal Grandparents. Mom further appealed from TC’s order denying her motion for visitation, where TC found that it lacked jurisdiction to consider visitation.

Paternal Grandparents filed a petition for custody and an emergency motion for temporary custody of Daughter four days after birth of Daughter due to the abuse of alcohol by and mutual domestic violence between Mom and Dad. TC entered temporary custody order that day and referred the matter to CFC for investigation. CFC subsequently filed DNA action a few days later, and the following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. TC awarded temporary custody to Paternal Grandparents in the custody action and reaffirmed that decision in the dependency action. Mom and Dad were allowed supervised visitation and were ordered to participate in a course of rehabilitative treatment and testing.

Paternal Grandparents filed an amended petition for custody seeking permanent custody of Daughter, which was served on Mom and Dad. Neither filed a response, and Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed anything to object to the entry of the order granting permanent custody of Daughter to Paternal Grandparents. TC entered an order granting Paternal Grandparents permanent custody. Paternal Grandparents then initiated proceedings in Alabama, their home state, to formally adopt Daughter. Those proceedings were still pending when this Opinion was rendered.

Almost one year after the default hearing, Mom filed a motion to set aside the default custody decree entered against her pursuant to CR 60.02(d) and (f). In support of her motion, Mom filed affidavits signed by herself and Dad. Dad's affidavit indicated that he told Mom if she intervened in the custody case, she would suffer further bodily harm, including death. Dad also stated that he had access to the only vehicle and telephone and that he prevented Mom from using either during this period. Further, Dad explained that Paternal Grandparents colluded with him to prevent Mom from protecting herself in any way during the custody case. Mom's affidavit listed the same facts but also admitted that she and Dad were alcoholics but that she was presently clean and sober.

TC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents and had not documented collusion occurring between Dad and Paternal Grandparents to prevent her from attending or participating in the custody proceedings. TC further found that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents.

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02. TC denied Mom's motion to alter, amend or vacate, but stated no grounds for the denial, and declined to exercise jurisdiction concerning the visitation issue, finding that Kentucky was no longer the home state of the child. This appeal followed.

Mom argued that TC improperly denied her 60.02 motion without an evidentiary hearing. CA held that a 60.02 movant is entitled to an evidentiary hearing if she affirmatively alleges facts, which if true, justify vacating the judgment and further alleges special circumstances that justify 60.02 relief. CA found that the contents of the affidavits in support of Mom’s motion are clear examples of Mom's allegations of fraud on the proceedings and collusion on the part of Dad and Paternal Grandparents and thus are allegations of facts, which if true, would justify vacating the judgment under CR 60.02(f) and possibly (d). CA recognized that affidavits can be a useful tool in the service of judicial economy, but on such a critical matter as fraud and collusion involving the custody of a child they are simply insufficient to form the basis of a decision. CA found that TC should have held an evidentiary hearing to allow Mom to present her claims through testimony rather than basing its decision on the affidavits presented by Mom.

Mom also argued that TC improperly found that it lacked jurisdiction to modify her visitation rights. Paternal Grandparents argued that TC properly declined to exercise jurisdiction over the issue of modification of Mom’s visitation rights pursuant to KRS 403.824. CA stated that under KRS 403.824, the state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met, and that since Kentucky’s adoption of the UCCJEA, continuing jurisdiction trumps home state jurisdiction. In the instant case, Kentucky had original jurisdiction over custody. Despite the fact that Daughter had acquired a new home state, Kentucky is still the home state of Daughter’s mother, Mom, who is alleging that Paternal Grandparents obtained custody by fraud and then transported Daughter to their home state, which subsequently asserted jurisdiction. Accordingly, despite the Alabama court’s finding that Kentucky was no longer the home state of Daughter, Mom, a contestant, still resided in Kentucky and Kentucky was the initial state to make the custody determination. CA found that Kentucky therefore has continuing jurisdiction under the UCCJEA to determine visitation.

Vacated and remanded TC’s order denying CR 60.02 motion with instruction that TC conduct an evidentiary hearing, and reversed the portion of TC’s order indicating that it does not have exclusive and continuing jurisdiction and remand for proceedings consistent with Mom’s motion for visitation.
Digested by Michelle Eisenmenger Mapes, DIana L. Skaggs + Associates.