Goff v. Goff, 172 SW3d 352(Ky.,2005)

Goff v. Goff, 172 SW3d 352 (Ky., 2005)
Applying the UCCJA, Kentucky had subject matter jurisdiction
to enter the initial custody decree, but was without continuing
jurisdiction to modify it because Tennessee was unquestionably
the home state of the child.

Parties were married in Tennessee (June 1996) and purchased a home in Nashville. Less than a month after the wedding, Mr. Goff filed a petition for annulment in Warren County, Kentucky, where he had moved. Wife remained in Tennessee.

On October 3, 1996, Mrs. Goff filed for divorce in Tennessee. Ten days later she gave birth in Tennessee. Two days later Mr. Goff amended his petition, seeking dissolution of the marriage in Kentucky. On December 6, 1996, the Kentucky court entered an order striking Mrs. Goff's motion to stay due to her non-appearance.

On January 17, 1997, the Tennessee court dismissed Mrs. Goff's action on the grounds there was an earlier pending action in Kentucky. The parties' child, 3 months old, had lived exclusively in Tennessee. On January 27,1997, Mr. Goff filed a motion in the Kentucky action to set child support, acknowledging that Mrs. Goff was the fit and proper custodian of the child, and conceded Kentucky had jurisdiction to set child support under Gaines v. Gaines. On February 18, 1997, the parties reached an Agreement, and the marriage was dissolved on March 3, 1997. Thereafter, the parties returned to the Kentucky court on a number of occasions to litigate issues regarding child support, arrearages, and visitation.

In August of 2000 Mr. Goff filed a motion seeking joint custody of the child; Mrs. Goff responded with a motion to terminate Mr. Goff's visitation. On November 29, 2000 Mrs. Goff filed a petition in Tennessee to register a foreign decree, asserting that Tennessee now had jurisdiction regarding custody matters. She claimed Kentucky never had jurisdiction to determine custody originally and that Kentucky did not have jurisdiction to determine modification, as the child has never resided in Kentucky.

The trial court agreed with Mrs. Goff on both issues, holding Kentucky did not have original jurisdiction and did not have jurisdiction over the motion to modify child custody, as the child has never resided in Kentucky.

The Court of Appeals held that under the UCCJA and the PKPA, the assumption by Kentucky of jurisdiction originally was correct, because the child had not resided in either state for six months (the child was was only 90 days old), and Tennessee declined jurisdiction.

The second issue was whether Kentucky had continuing jurisdiction to modify a custody decree, having acted originally. The trial court held held Kentucky did not, as the child had never lived in Kentucky. The Court of Appeals affirmed on this issue.

Discretionary Review was granted. The Supreme Court of Kentucky affirmed the Court of Appeals on both issues. 1) Kentucky had original jurisdiction because no other state would accept jurisdiction. Some state must accept jurisdiction. 2) Kentucky did not have jurisdiction to modify custody, as the child never resided in Kentucky, and more than 6 months had gone by, thus, Kentucky lost jurisdiction.

COMMENT: Kentucky has now adopted the UCCJEA