A DVO was entered by Fayette Family Court preventing father from exercising his parenting time as ordered by Whitley Circuit Court, the court with jurisdiction and venue over custody and visitation. Father filed a motion in the Whitley Court case requesting sole custody and for restoration of his visitation rights. Mother responded by filing an original action in the Court of Appeals asking for writs of prohibition pursuant to CR 76.36.

Mother asked for writs preventing the Whitley Court from enforcing its parenting time order, preventing the Whitley Court from “modifying, amending, vacating or reversing” the DVO, and mandating the Whitley Court honor the DVO.

The Court of Appeals first sets forth the standard for a writ of prohibition, holding a writ can only be granted when “(1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.” Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

The Court of Appeals declined to grant Mother’s request for writs preventing the Whitley Court from enforcing its parenting time order and  vacating, altering or amending the Fayette DVO. The Court of Appeals holds that there is no merit to Mother’s argument as the Whitley Court has jurisdiction over custody and parenting time, and Mother has the right to an appeal should the Whitley Court act erroneously.

The Court of Appeals also declined to grant a writ mandating the Whitley Court honor the DVO, holding the DVO does not take precedence over the earlier custody and visitation order.

The Court of Appeals adds that the Fayette Court should have transferred the DVO case to Whitley, stating that “the best practice is for the court where the DVO was filed to transfer the DVO action to the court where the custody action is already pending.”

Digested by Elizabeth M. Howell

The post Published Family Law Opinion from Ky Court of Appeals: DVO, Parenting Time, Writs,and Transfer of DVO to Court Where Custody Action Pending appeared first on Goldberg Simpson - Family Law Group.

The appellant appealed a Bullitt County DVO, arguing the court lacked jurisdiction to enter a DVO. The petition for a DVO was originally filed in Nelson County. It was transferred to Bullitt County after the Nelson District Court determined Bullitt County would be more appropriate, as the court was already familiar with the parties. The Appellant Court first addresses subject matter jurisdiction holding that the Kentucky Family Courts all have jurisdiction to preside of matters involving domestic violence. The Court then turns to venue and finds that both the county where the victim resides, in this case Nelson, and the county where there are on-going dissolution proceedings, in this case Bullitt, are proper venues. Thus, the Appellate Court found no error with either jurisdiction or venue.

Additionally, appellant argued there was insufficient evidence to enter a DVO and no meaningful hearing. The Appellate Court affirms the entry of the DVO holding that testimony Appellant was harassing and stalking Appellee, unlawfully entered his home, had angry outbursts, frequent drive-bys, prior acts of violence, and harassing communications was sufficient evidence to support the entry of a DVO. The Court further held there was a meaningful hearing, as each party was represented by counsel, gave testimony, and had an opportunity for cross-examination.

Judge Thompson wrote separately noting the role of clerk is ministerial, and a clerk should not make a determination about the legal sufficiency or forum when a complaint is properly filed. The clerk in this case incorrectly prevented Appellee from filing in Bullitt County and instructed him to file in Nelson County.

Digested by Elizabeth M. Howell

The post Published Domestic Violence Opinion from Ky Court of Appeals March 13, 2015 appeared first on Goldberg Simpson - Family Law Group.