Fowler v. Sowers, 151 SW3d 357 (Ky.App., 2004)

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Fowler v. Sowers, 151 SW3d 357 (Ky.App., 2004)
Although Fenwick was decided after the 2001 changes
to KRS 403.340, the Court acknowledged its decision was
based on the older version because that version was in effect
at the time of the entry of the order under review. A contemplated
move to Alaska three years after a divorce is a change in
circumstances contemplated by KRS 403.340.A trial court should
conduct a full evidentiary hearing on the motion weighing all the
factors now encompassed by KRS 403.340.

Parties shared joint custody with wife awarded the primary physical care by agreement incorporated within 2000 divorce decree. In 2003, father filed motion to modify custody because mother had moved six times, given birth to another child out of wedlock, and after subsequent marriage to the father of the new baby, relocated to North Carolina. Child lived with father for two months while mother was in North Carolina. After mother and child moved back to Kentucky, father learned that mother was next planning to move to Alaska. It was at that point, he moved for a change of custody. Mother's motion to dismiss relying on Fenwick v. Fenwick was granted, finding only that father's pleadings were insufficient to establish adequate cause for a hearing.

The Court of Appeals reversed even though KRS 403.340 was significantly modified in 2001 after Fenwick. The previous standard required a showing that substantial harm would result to the child and that any harm caused by the change would be outweighed by the advantages. The statute now permits modification if a change occurred in the circumstances of the child or his custodian and if the modification is necessary to serve the best interests of the child.

Although Fenwick was decided after the 2001 change to KRS 403.340, the Court acknowledged that its decision was based on the pre-2001 version of KRS 403.340 because that was the version in effect at the time of the entry of the orders under review. Thus, Fenwick carried limited precedential weight.

The Court of Appeals held that no doubt a move to Alaska is a change of circumstance contemplated by the statute, and the removal of the child from one of his parents and from his entire extended family could create the potential of causing a negative impact on his best interest. Thus, the trial court should have conducted a full evidentiary hearing on the motion, weighing all the factors now encompassed by KRS 403.340.

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