Biggs v. Biggs, __ S.W.3d __ (Ky. App. 2009)
The parties divorced in 1999. The parties shared joint custody when mother and child moved to Colorado in 2007. In 2008 father filed a motion to modify custody in Kentucky. The trial court dismissed the motion for lack of jurisdiction, finding that Kentucky was no longer the child’s home state under the UCCJEA and that the child and a parent no longer had significant connections with Kentucky. Father appealed.
COA found that the trial court erred in declining to exercise jurisdiction. Pursuant to KRS 403.824(1), Kentucky, the state that made the initial custody determination, retains jurisdiction unless:
(a) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships[.]
The child and his father still had significant connections to Kentucky. The father was a Kentucky resident, the child had lengthy visits with his father, and the child’s younger half-sister, grandparents and other relatives also resided in Kentucky. Therefore, Kentucky retained jurisdiction. However, the trial court could have declined to exercise its jurisdiction pursuant to KRS 403.834. In order to do so, the court should have applied the factors set out in KRS 403.834(2) and stayed the proceedings so that an action could be promptly commenced in the other state to ensure that the child did not slip through the cracks between jurisdictions. The trial court did not do either. The COA remanded the case for further proceedings consistent with the analysis and procedures required by the UCCJEA.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates