UCCJEA Divests Family Court of Jurisdiction when Parents and Child have Left Kentucky, Ky Case Digest, Wahlke v. Pierce

Wahlke v. Pierce, No. 2012-000022-ME

Published: Reversing and Remanding

County: Campbell

FACTS:

Mother and Father were married in 2000 and filed for
dissolution of the marriage in 2008. When the petition was filed, Mother,
Father and Child born of the marriage lived in Campbell County, Kentucky. After
the dissolution was filed, Mother, with Child, and Father moved separately to
Ohio. Neither the child nor the parents lived in Kentucky when the divorce
decree was entered in 2009. Mother was awarded sole custody of Child, and
Father was awarded visitation and ordered to pay child support. The parties’
continued to litigate post-decree issues related to child support, visitation
and attorneys’ fees in the Family Court. In June 2010, Mother filed a motion to
relocate and notified the family court that she wanted to move with Child to
Abilene, Texas. Mother also filed a motion to modify Father’s visitation
schedule to reflect the distance between the parties. The Family Court entered
an order granting the motion to relocate and amending the visitation schedule.

Father filed a motion to reconsider the court’s
ruling based on a lack of jurisdiction, arguing that the court lacked
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA). The Family Court denied the motion, stating that there was substantial
information available in Kentucky regarding the child’s care, protection,
training and personal relationships, and Father waived the issue by not raising
it until the motion to reconsider.

Father appealed, arguing that the Family Court
lacked subject matter jurisdiction to modify the original child custody
determination under the UCCJEA because there was no exclusive, continuing
jurisdiction because neither the parents nor the child lived in Kentucky.

ANALYSIS:

The UCCJEA, codified in Kentucky law, governs
disputes concerning the state’s jurisdiction to decide child custody and
visitation matters. The Family Court’s jurisdiction to modify a custody
arrangement is determined at the time the motion to modify is filed. The Family
Court misinterpreted KRS 403.824(1) because the court no longer had exclusive,
continuing jurisdiction over the custody matter. A family court’s jurisdiction
is exclusive and continuing until one of two circumstances has occurred:
neither the child nor a parent of the child has a significant connection with
the state and substantial evidence regarding the child is lacking or neither the child nor the parents of
the child reside in that state. Therefore, unless a modification of custody has
been filed, the state loses exclusive, continuing jurisdiction when the
parents, persons acting as parents (if applicable), and child have all
physically left the state to live elsewhere. Even if a significant connection
existed and if certain evidence was available about the child in Kentucky, the
relocation of both parents and the child outside of Kentucky before the filing
of the modification divested the Family Court of exclusive, continuing
jurisdiction.

Reversed and remanded. 

Digested by McKenzie Cantrell, Of
Counsel
, Diana L. Skaggs + Associates