Wallace v. Wallace, --S.W.3d –(Ky. App. 2007)
Issues and Holdings:
1. Whether under the UCCJEA Kentucky has jurisdiction to modify the visitation order as to all, none, or only the oldest child, who has resided in Kentucky for a period exceeding six months. The Court held that the trial court had continuing jurisdiction to modify custody as to all three children, even though two of the children resided in TN.
2. Whether Hardin County was the proper venue. The Court held yes.
The parties, both Kentucky residents, divorced in 2000 and were granted joint custody of their three children, with the mother being designated primary residential custodian. In 2002, the father was granted primary custody of the oldest child, Cody. In 2004, the mother and two younger children moved to TN. Subsequently, the father, a military police office with the U.S. Army, received orders to relocate to Hawaii. The father then filed a Petition to Modify Visitation.
The family court found that it lacked subject matter jurisdiction and dismissed the entire petition. The father appealed.
The concept of continuing jurisdiction incorporated into the UCCJEA was adopted by Kentucky and is contained in KRS 403.824. The state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met. Exclusive, continuing jurisdiction prevails under the UCCJEA until the relationship between the child and person remaining in the state with continuing jurisdiction diminishes to the point that a court cannot find significant ties and substantial evidence.
Kentucky has exclusive, continuing jurisdiction over custody issues relating to Cody, as both he and the father were Kentucky residents at the time the petition was filed. Kentucky also has exclusive, continuing jurisdiction over custody matters relating to the other two children, as the father is a Kentucky resident and visitation with those two children has taken place in Kentucky. In addition, the Court noted that fractionalization of custody issues within a family would lead to conflicts between state courts and would not serve the purpose of the UCCJEA or Kentucky’s family court system.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates