UCCJEA jurisdiction cannot be waived – published opinion from Ky Court of Appeals

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Husband and Wife entered into a Marital Settlement Agreement (“MSA”) which provided “Kentucky is considered the ‘home state’ of the children for all custody and time-sharing issues. Likewise, the parties understand that Kentucky shall continue to have ongoing, exclusive jurisdiction of all custody and co-parenting issues, unless the Court of another state assumes jurisdiction,” although Kentucky did not qualify as the children’s home state at the time the parties entered into their agreement. The Kentucky court entered a decree incorporating the MSA by reference.

Subsequently, during ongoing litigation regarding custody and parenting time, Wife file an action in Oregon and challenged Kentucky’s UCCJEA jurisdiction. Pursuant to the UCCJEA, the Kentucky and Oregon courts conferred and determined Oregon would take jurisdiction over custody and parenting time issues. The Kentucky court entered an order relinquishing judication which Husband challenged arguing Wife waived any opportunity to challenge jurisdiction. The Kentucky Court ultimately agreed retaining jurisdiction and denying Wife’s motion to set aside the dissolution decree to the extent it resolved custody issues.

Wife appealed. The Court of Appeals reiterates its prior holdings that “jurisdiction under the UCCJEA is ‘subject matter jurisdiction,’ and that a court either has it or it does not.” Unlike particular case jurisdiction, “general subject matter jurisdiction cannot be conferred on a court by agreement of the parties. Likewise, it cannot be waived.” In this case, Kentucky was never the home state of the children. As general subject matter jurisdiction cannot be created by agreement, the order of the Kentucky Court relating to custody and parenting time were void.

Digested by Elizabeth M. Howell

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