Jefferson Circuit Court

Biological Father and Mother were in a relationship for approximately ten years but never married. They had two children. The relationship was tumultuous, as Biological Father abused alcohol and was often intoxicated, during which time he was often abusive to Mother, which the Children witnessed. In a custody case in Indiana, the court suspended Biological Father’s previously awarded supervised visitation after he failed to obtain someone to supervise his visitation, noted that Biological Father’s visitation had been suspended for a year, and granted sole custody to Mother.

Mother met Stepfather, and she and the Children moved to Kentucky to live with him in 2016. Mother and Stepfather married in October of 2017. Several months later, Stepfather petitioned for adoption of the Children to which Biological Father did not consent. Biological Father moved to dismiss the action, arguing Indiana had exclusive, continuing jurisdiction from the custody case, which Family Court overruled.

Family Court held a hearing on the petition. Stepfather testified that he was a part of the Children’s lives, provided for them financially, and wanted to adopt them as his own children. Mother testified regarding Biological Father’s alcohol abuse and physical abuse to her, both of which the Children witnessed. As of the time of the hearing, Biological Father had not seen the children in over three years. The Children testified that they considered Stepfather a parent and wished to be adopted by him. They had negative memories of Biological Father, and neither desired to visit with Biological Father. Biological Father testified that he did not abuse alcohol but admitted to having several DUIs. He testified that despite his absence, he had financially supported the Children but later clarified that he did not directly make child support payments but gave his mother access to his bank account for her to assist the Children. He admitted that his absence was because of his failure to follow the Indiana court’s order and had no justifiable excuse for that failure. Finally, Biological Father’s mother testified that Biological Father did not provide her money to pay child support but that she made payments to Mother from her own funds. After the hearing, Family Court, analyzing the involuntary termination of parental rights statute, granted Stepfather’s petition for adoption. Biological Father appealed.

Biological Father argued that Family Court lacked jurisdiction over the petition based on the UCCJEA. The Kentucky Court of Appeals held that the UCCJEA does not apply to adoption proceedings. The UCCJEA applies to child custody determinations, which are orders concerning the “legal custody, physical custody, or visitation with respect to a child”. It expressly excepts adoption proceedings in KRS 403.802. Although adoptions do in effect terminate a parent’s rights, which proceedings are covered by the UCCJEA, that fact does not convert the proceeding into a termination proceeding.

Biological Father argued that Family Court abused its discretion in finding that all the prerequisites to adoption were satisfied. The Court of Appeals disagreed. An adoption without consent involves four distinct considerations: (1) whether the petitioner complied with the jurisdictional requirements for adoptions; (2) whether any of the conditions outlined in KRS 199.502(1) had been established; (3) whether the petitioner is of good moral character, of reputable standing in the community, and of ability to properly maintain and educate the children as required by KRS 199.520(1); and (4) whether the best interest of the children would be promoted by the adoption, and whether the child is suitable for adoption.

Regarding the first consideration, the petitioner must be eighteen and a resident of Kentucky or have resided in Kentucky for 12 months next before filing. The petition must be filed in the county in which the petitioner resides. Stepfather pleaded he was a resident of Kentucky, and he filed the petition in Jefferson County where he lived with Mother and the Children. The children must have resided with the petitioner for at least 90 days prior to the petition. The Children lived continuously with Stepfather and Mother since 2016, well over 90 days.

Regarding the second consideration, KRS 199.502(1) requires a finding of the existence of one of the conditions therein, including, inter alia, that the parent has abandoned the child for a period of not less than 90 days, KRS 199.502(1)(a), and that the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm, KRS 199.502(1)(c). Family Court concluded that Biological Father abandoned the Children for a period well exceeding 90 days, finding that Biological Father had not seen, cared for, or provided support for the Children in several years. Family Court also found that Biological Father emotionally harmed the children by abusing Mother in front of them.

Family Court properly found that Stepfather was of good moral character, of reputable standing in the community, and of ability to properly maintain and educate the children, satisfying the third consideration. Finally, Family Court properly found that adoption was in the Children’s best interest.

Digested by Nathan R. Hardymon

The post UCCJEA Does Not Apply to Adoption Proceedings; Granting of Adoption Petition Affirmed – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

Questions Presented: Family Law. Writ of Prohibition. Uniform Child-Custody Jurisdiction and Enforcement Act. A circuit court’s decision that it continues to have jurisdiction over a child custody matter under the UCCJEA is an exercise of a court’s subject-matter jurisdiction. A circuit court’s determination that it has “exclusive, continuing jurisdiction” over a child custody matter pursuant to KRS 403.824(1)(a) is a decision of particular-case jurisdiction by the court. First-class writ relief is not appropriate where a party is challenging a circuit court’s determination that it has subject-matter jurisdiction under UCCJEA. Second-class writ relief is also not appropriate where appellant has adequate remedy through pending appeal on the merits.

Campbell Circuit Court

Mother and Father were initially divorced in Indiana with an agreement for joint custody. Mother moved to Kentucky with children by agreement and father followed. Mother then moved to Mississippi without any agreement or court approval. The custody agreement was registered in Kentucky and mother, after moving, filed a motion in a Kentucky family court to relocate. Mother’s motion was initially granted and the children primarily resided with Mother in Mississippi. Father exercised parenting time over summer and holidays in Kentucky. The conflict between the parties continued resulting in Father filing a motion to be the primary residential custodian. The Kentucky family court ultimately granted Father’s motion entering an order for the children to be returned to Kentucky by a date certain. Mother filed a writ in the Court of Appeals asking the Court of Appeals to stay the relocation order pending an appeal on the merits.

Mother made conflicting arguments to the Court of Appeals. She first argued that the family court was acting erroneously but within its jurisdiction – a second class writ. The Court of Appeals denied her motion for relief. She then argued that the family court lacked subject-matter jurisdiction under the UCCJEA – a first class writ. Again, her motion for relief was denied. The Supreme Court examined both arguments.

The Supreme Court turns to the first class writ argument first. A first class writ does not require a showing of irreparable injury, but must demonstrate the lower court had no subject-matter jurisdiction at all. Mother argued the family court lacked subject matter jurisdiction under the UCCJEA KRS 403.824(1)(a) because the substantial evidence regarding the children was in Mississippi, not Kentucky. Therefore, mother believed the Kentucky court lost continuing exclusive jurisdiction. The Supreme Court clarifies the distinction between subject-matter jurisdiction, the court’s power to rule on a certain classes of controversy, and particular case jurisdiction, the court’s power to rule in a specific case given jurisdictional facts as opposed to a class of cases. The UCCJEA is not “self executing.” The lower court cannot properly exercise subject-matter jurisdiction over a custody agreement and then have that jurisdiction disappear. In evaluating the KRS 403.824(a) factors, the Court was simply making a determination of particular-case jurisdiction given the facts. A first class writ fails here because the family court clearly had subject-matter jurisdiction.

Turning to the second class writ argument, the Supreme Court affirms the Court of Appeals as there is no need for a writ when Mother has an existing remedy by appeal. She cannot use the write process to “circumvent normal appellate process.” A second class writ fails here because there is an adequate remedy by appeal.

Digested by Elizabeth M. Howell

The post Affirming Denial of Writ of Prohibition and the UCCJEA – Published Opinion from Ky. Supreme Court appeared first on Goldberg Simpson - Family Law Group.

Mother and Father were divorced in 2011, incorporating a marital settlement agreement into their decree whereby the parties had joint custody of the minor children, Father was designated as the primary residential custodian, Mother received reasonable parenting time, and Father was allowed to relocate with the children. Afterward, Father relocated with the children to New Jersey, residing with Father’s parents. The children attended school and had the same doctor in New Jersey since the move. Mother exercised parenting time with the children in Kentucky.

In 2012, Mother moved to modify parenting time and her child support obligation, which motion was referred to mediation and settled. In July of 2013, Mother moved to hold Father in contempt, to modify parenting time, and to modify child support. Father responded by moving to transfer the case to New Jersey as the more convenient forum. All of these motions were denied.

The case then became dormant until 2017 when Mother moved for modification of parenting time and to reduce her child support obligation. After mediation, Mother moved for appointment of a friend of the court, to restrain Father from relocating from New Jersey, and to modify summer parenting time. Father filed a notice that he did not intend to move from New Jersey and a motion to transfer jurisdiction to New Jersey. Father also filed an action in New Jersey asking the family court there to accept jurisdiction. Family Court issued an order modifying parenting time, setting a holiday schedule, and directing the parties to select a qualified mental health provider for the children.

In March of 2018, Mother moved Family Court to enjoin transfer of jurisdiction to New Jersey Family Court. On April 11, 2018, New Jersey Family Court entered an order that it would accept jurisdiction. On May 8, 2018, Family Court issued an order temporarily granting Mother’s motion to enjoin transfer of jurisdiction to New Jersey pending a hearing on the issue of the more convenient forum.

On July 14, 2018, after a hearing, Family Court entered an order declining to relinquish jurisdiction on the basis that no proof on the issue of jurisdiction has been presented and invited Father to refile his motion in the future if he chooses. Father then refiled his motion to transfer jurisdiction. On December 7, 2018, Family Court, after a hearing, entered an order declining to relinquish jurisdiction, addressing the length of time the children had resided in New Jersey; the distance between Family Court and New Jersey Family Court; the relative financial circumstances of Mother and Father; the fact that the children had always attended school in New Jersey; that their pediatrician and the oldest child’s orthodontist and the youngest child’s therapist were in New Jersey; that the children had extended family in New Jersey; that Mother regularly exercised parenting time with the children in Kentucky; that a friend of the court in Kentucky had frequently met and spoken with the parents and children; that Family Court accommodated Father by allowing him to participate in hearings and motion hour telephonically; that the majority of the issues which arise concern enforcement of prior orders; and that Family Court is familiar with the family, family dynamics, and issues arising therefrom. Family Court then concluded that the totality of the circumstances, the enforcement nature of the proceedings, Family Court’s familiarity with the family, and Father’s ability to participate in proceedings with minimal inconvenience make Kentucky the most convenient forum. Father appealed.

The Court of Appeals held that there can be no dispute that Kentucky retains continuing, exclusive jurisdiction in the case, because Biggs v. Biggs, 301 S.W.3d 32 (Ky. Ct. App. 2009), held that if the parent remaining in the original decree state exercises at least some visitation with the child in that state, significant connection exists.

The Court of Appeals also held that Family Court did not abuse its discretion in determining that Kentucky is the most convenient forum. It reasoned that to determine the most convenient forum, courts must consider those factors in KRS 403.834(2), which, the Court of Appeals found, Family Court did in its December 7, 2018 order. Furthermore, it reasoned that in Addison v. Addison, 463 S.W.3d 755 (Ky. 2015), the Supreme Court rejected a similar complaint that Father raised by reasoning that “[t]he trial court specifically stated it was retaining jurisdiction based on the length of time the case was pending before it and its familiarity with the issues of the case.”

Finally, the Court of Appeals held that the December 7, 2018 order was final and appealable and not interlocutory. It reasoned that the enforcement stage of custody proceedings does not naturally lend itself to finality with regard to the application of jurisdictional issues, and that “[w]hile prior to the entry of an initial custody order, it may be prudent to delay appeal of jurisdictional issues until after a final custody order is entered, . . . [w]hen jurisdictional issues arise in the enforcement stage of the proceedings, there seems to be no reason to require the losing party to wait to seek appellate review of the decision until it can be tied to resolution of another claim, nor a logical point at which to do so.

Digested by Nathan R. Hardymon

The post Kentucky Family Court Retained Jurisdiction Under the UCCJEA; Order on Jurisdictional Issue Was Final and Appealable in Enforcement Stage of Custody Case – Published Opinion from Kentucky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

Family Court declined to recognize three legal documents from courts in Dubai, United Arab Emirates. The three documents are as follows: (1) a divorce certificate, (2) a document memorializing an agreement between the parties whereby “[t]he custody of the children…shall be proved for the second party [Qaisi]” (the document did not explain the precise meaning of custody being “proved for” Qaisi nor did the parties cite Dubai authority to explain the phrase) and (3) an amended agreement between the parties whereby the children were designated to live with Qaisi while Alaeddin “shall not claim custody until the sons reach the legal age.” (the document did not define “legal age” nor did the parties cite to Dubai authority).

The Court of Appeals affirmed the Family Court’s decision finding that the Dubai court rendered some form of a “child custody determination,” but that the Petitioner failed to offer any evidence as to how the Dubai court reached its custody determination and was thus in substantial conformity with the UCCJEA (i.e. that Dubai utilized a best interest standard similar to or consistent with Kentucky law regarding child custody).

Digested by: Emily T. Cecconi

The post Foreign proceedings not proved to be in substantial conformity to the UCCJEA not entitled to be registered – published opinion from Ky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

Trial Court granted joint custody of Daughter to Mother and a Couple that lived next door to Mother. When Daughter was born, Mother and Daughter moved in with the Couple for a very brief period of time. Mother eventually obtained an apartment, but visited the Couple’s house every other day. The couple helped Mother care for daughter and Mother considered the Couple to be babysitters.

An attorney hired by the Couple filed a petition for joint custody naming Mother and the Couple as joint petitioners and Father as the respondent. The petition did not explain why the Couple had standing to claim custody. The Court entered a temporary order awarding joint custody to Mother and the Couple. Once granted joint custody of Daughter, the Couple began exercising increased control over Daughter.

Mother filed a pro se “Motion for Review of Child Custody.” In response, the Couple filed a motion to enter a permanent custody order. Mother subsequently obtained counsel and filed response to the Couple’s motion, which stated that the Couple did not have standing to seek custody, that the Couple did not qualify as de facto custodians, and that Mother did not waive her superior right to custody. The Trial Court again ordered Mother and the Couple to have joint custody of Daughter.

The Court of Appeals held that Mother did not waive her right to contest the Couple’s standing. Neither the joint petition nor any of the subsequent motions filed by the Couple stated the grounds on which the Couple had to seek custody and Mother voiced her objection to the Couple’s standing in her pro se motion.

The Court of Appeals also found that the Couple did not qualify as de facto custodians. Although the couple was providing care and financial support for Daughter, Mother also provided care and financial support for Daughter. While the Couple had standing to seek custody under the UCCJEA, they did not qualify as de facto custodians.

Finally, the Court held that Mother did not waive her superior right to custody of Daughter. The Court of Appeals interpreted Mullins v Picklesimer, 317 S.W.3d 569 (Ky. 2010) as recognizing that a waiver of superior custodial rights outside the context of adoptions to be limited to “nonparents who participated with the biological parent in a plan and agreement to: conceive (albeit artificially), bring into the world, and raise a child together.”

The Court of appeals vacated the judgment of the Trial Court with instructions to award custody of Daughter to Mother.

Digested by: Emily T. Cecconi

The post Mother did not waive superior custodial rights – published opinion from Ky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

Trial Court granted Father temporary custody of minor child after Mother had been arrested for driving under the influence while minor child had been left unattended in their residence. After a full hearing, Trial Court later rescinded the order granting Father temporary custody. Unbeknownst to the Kentucky Trial Court, a prior temporary custody order had been entered in Tennessee. Father argued that, while Kentucky had jurisdiction to enter the original emergency order, it had lost jurisdiction to rescind that order because Tennessee was the Home State for child custody. The Trial Court found that once an emergency custody order was necessary, Kentucky retained jurisdiction until the Home State made a subsequent custody determination.

The Court of Appeals held that the Kentucky Order rescinding the prior emergency order was proper stating that “the plain language of KRS 403.828(3) evidences the legislature’s intent that emergency orders should not continue in perpetuity where another jurisdiction has issued a child custody determination, or, is in the process thereof.”

Digested by: Emily T. Cecconi

The post Amendment of emergency custody order where Ky not the home state of the child – published opinion from Ky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

A Kentucky Trial Court exercised jurisdiction over a custody case pursuant to KRS 403.822(1)(d) when it found that neither Kentucky nor Colorado were the “home state” of the Children as defined by KRS 403.822(a). Father resided in Kentucky and Mother moved to Colorado with Children in April 2015. In June 2015, just three months later, Mother sent children to stay with Father in Kentucky for the summer. It was the Mother’s intent that the children return to Colorado at the start of the school year. Despite not returning to the Children until December 2015, Mother argued that the return to Kentucky was only a “temporary absence” from Colorado, and thus, Colorado had “home state” jurisdiction over the custody matter pursuant to KRS 403.800(7).

The Court of Appeals found that a “temporary absence” may be found after considering the following factors:  “(1) the parent’s purpose in removing the child from the state, rather than the length of the absence; (2) whether the parent remaining in the claimed home state believed the absence to be merely temporary; (3) whether the absence was of indefinite duration; and (4) the totality of the circumstances surrounding the child’s absence.”

The Court of Appeals held the children’s absence from Colorado was only temporary because it was Mother’s intent that the children return to Colorado. The court of appeals vacated and remanded the trail court’s decision.

Digested by Emily T. Cecconi

The post Temporary Absense from a state under UCCJEA – Ky Court of Appeals published opinion appeared first on Goldberg Simpson - Family Law Group.

Mother and Father were divorced in Kentucky. Mother subsequently relocated with minor child to North Carolina. The North Carolina court heard several custody and parenting time issues, after which Father challenged the Court’s jurisdiction. Pursuant to the UCCJEA, Kentucky found that it would be “an inconvenient forum and relinquished jurisdiction to the North Carolina courts.” Father appealed.

ROBINSON V. ROBINSON

Mother and Father were divorced in Kentucky. Mother subsequently relocated with minor child to North Carolina. The North Carolina court heard several custody and parenting time issues, after which Father challenged the Court’s jurisdiction. Pursuant to the UCCJEA, Kentucky found that it would be “an inconvenient forum and relinquished jurisdiction to the North Carolina courts.” Father appealed.

The Court of Appeals reviewed under the abuse of discretion standard holding that the Kentucky family court did not abuse its “broad discretion” by concluding that Kentucky was an inconvenient forum when the child had not lived in Kentucky since the age of 2, the child’s school and residence are in North Carolina, and no significant visitation had occurred in Kentucky.

Digested by Elizabeth M. Howell

The post Inconvenient forum under UCCJEA – published opinion from Ky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

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

The post UCCJEA jurisdiction cannot be waived – published opinion from Ky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

A Nevada court entered a custody order, after which child and Father moved to Kentucky. Child did not return to Nevada after moving to Kentucky. Several years later, Mother filed an action for custody in Nevada, while Father filed an action for custody in Kentucky. Pursuant to the UCCJEA, the Kentucky trial court contacted the Nevada trial court to determine whether or not Nevada retained exclusive, continuing jurisdiction over the custodial matter. Nevada, as the state that made the initial custody determination, claimed exclusive continuing jurisdiction over the matter. Thus, the Kentucky trial court dismissed the Kentucky case. Father appealed arguing the Kentucky trial court erred.

The Court of Appeals conducts a detailed UCCJEA analysis utilizing KRS 403.822 and the corresponding Nevada statute. The court concludes Nevada erred in claims exclusive, continuing jurisdiction as only one parent, and not the child, remained significantly connected to Nevada. However, as the UCCJEA makes the original state “the sole determinant of whether jurisdiction continues”, the Court of Appeals holds it is without the authority to disturb the Nevada court’s decision that it retained exclusive, continuing jurisdiction.

The Court of Appeals continues its analysis, finding that under the UCCJEA, as set forth in KRS 403.834(1), the Kentucky court can request the Nevada court decline jurisdiction because it is an “inconvenient forum.” As the Kentucky trial court failed to request the Nevada court decline jurisdiction, the Court of Appeals affirms the trial court’s ruling that Nevada has continuing, exclusive jurisdiction, but reverses the dismissal of the petition to allow the trial court to contact the Nevada court and request it decline jurisdiction.

Digested by Elizabeth M. Howell

The post UCCJEA: What to do when original state erroneously retains continuing jurisdicition? Ky Court of Appeals Published Opinion appeared first on Goldberg Simpson - Family Law Group.