Gossett f. Kelley, et al, Ky COA, Subject Matter Jurisdiction for Custody Modification

Jessica Gossett v. Brian Scott Kelley, et al.

No. 2011-CA-001536-ME

Published:  Opinion Vacating

County:  Hopkins

Jessica Gossett appealed an order entered by the Hopkins Family Court naming Shannon and Brian Kelley de facto custodians of the minor child of Jessica and Kenneth Gossett and awarding custody to the Kelleys.  The appeal was based on matters of venue and adequacy of evidence, but the Court of Appeals was required to vacate the order because the Hopkins Family Court lacked subject matter jurisdiction.

The Gossetts were divorced by a decree entered in Christian Family Court on January 11, 2011.  Jessica was awarded sole custody.  Ten days later, the Kelleys filed a petition for custody of the minor child claiming standing as de facto custodians and asserting that the Gossetts had waived their superior right to custody.  No affidavits were attached to their petition.

On February 21, 2011, there was a venue hearing in Hopkins County, and another hearing in that court on the standing issue on April 27, 2011.  Jessica’s venue challenge was rejected and the family court ruled the Kelleys had standing and they were awarded custody.

The Court of Appeals began its analysis by considering subject matter jurisdiction.  The Kelleys were aware of the proceedings in Christian Family Court and could have sought standing as de facto custodians, but they did not participate in that action.  Sole custody was awarded to Jessica.

Once the Christian Family Court order was entered, any subsequent action affecting custody was a modification.  The Kelleys and the Hopkins Family Court relied on KRS 403.270 for subject matter jurisdiction, but only KRS 403.340 provides the court SMJ to modify custody decrees.  A motion to modify custody must be accompanied by the requisite affidavit or affidavits.  No affidavits were submitted and therefore the Hopkins Family Court never had SMJ.  The affidavit(s) must support a change of circumstances of the child or his custodian and modification must serve the best interests of the child.  In addition to the failure to file supporting affidavits, the Hopkins Family Court order makes it clear there was no change in circumstances.

Because the Hopkins Family Court lacked subject matter jurisdiction to modify the final custody decree entered in Christian Family Court, the order granting the Kelleys de facto custodian status and awarding them custody is vacated.

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