Shafizadeh v. Bowles and Shafizadeh, Ky. S. Ct., Writs of Prohibition, Modification of Parenting Time v. Modification of Custody

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Shafizadeh v. Bowles and Shafizadeh

2010-SC-000747-MR

Published:  Affirming

County: Jefferson

Dad appealed CA’s denial of his writ of prohibition, which sought to prevent Mom’s relocation with Children.

FACTUAL AND PROCEDURAL BACKGROUND:

Mom and Dad divorced, agreeing to joint custody of their two minor children in 2008.  In 2009, Mom moved FC for a change in parenting schedule based on her relocation to Louisiana, and FC granted the motion on August 12, 2010.  On September 24, 2010, Dad moved CA for a writ of prohibition and for emergency relief under CR 76.36, claiming that FC was acting outside of its jurisdiction, but that even if it did have jurisdiction, there was not adequate remedy by appeal.  CA denied writ, summarily dismissing the claim of lack of jurisdiction, but going into much greater detail regarding why Dad had failed to satisfy the adequate remedy by appeal requirement.  Dad appealed to SC, arguing only that FC was acting outside it jurisdiction.  He contended that Mom’s motion should have been construed as a motion to modify custody, not parenting time.  Motions to modify custody require supporting affidavits before FC acquires jurisdiction over them; since there were no affidavits filed in support of Mom’s motion, Dad argued FC lacked jurisdiction to consider it. 

ANALYSIS:

Relying on Brockman v. Craig, Dad argued to CA that whenever there is a joint custody arrangement that is silent as to designation of primary residential custodian (“PRC”), any attempt by one parent to relocate would amount to an attempt to acquire, and therefore, change the PRC designation, and this, in turn, is a modification of custody.  SC noted that CA in Brockman relied on the holding in Crossfield v. Crossfield that a change in PRC was a modification of custody, but that the Crossfield holding is overruled by Pennington v. Marcum.  Per Pennington, a parent seeking to become PRC in a joint custody arrangement is seeking a modification of timesharing, not custody, as a designation of PRC does not alter the decision-making authority of joint custody.  As Mom’s motion sought only to change time-sharing, it was not a modification of custody, and she needed not have provided FC with supporting affidavits in order for FC to acquire jurisdiction over the motion. 

CA affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

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