CHILD CUSTODY JURISDICTION: WALLACE V. WALLACE (COA 5/11/2007)

WALLACE V. WALLACE
FAMILY LAW:  SUBJECT MATTER JURISDICTION, APPLICATION OF UCCJEA
2006-CA-001430
PUBLISHED: REVERSING AND REMANDING WITH DIRECTIONS;  THOMPSON PRESIDING JUDGE WITH VANMETER AND PAISLEY CONCURRING
DATE RENDERED: 5/11/2007

Issue:

Where parties’ initial custody determination and a subsequent custody modification occurred in Kentucky, but subsequently one parent and two of three children moved to Tennessee, does Kentucky have subject matter jurisdiction over current petition to modify visitation?

Answer:

Yes, Kentucky has subject matter jurisdiction over petition to modify custody, because per the terms of the UCCJEA, Kentucky’s “continuing jurisdiction” trumps Tennessee’s “home state jurisdiction.”

Facts:

In 2000, Mom and Dad, then both Kentucky residents, were divorced in the Meade Circuit Court and were granted joint custody of their three children with Mom being granted primary residential custody. Subsequently, an order modifying custody was entered, giving Dad primary residential custody of the older child. In 2004, Mom moved to Tennessee with the two younger children, while Dad and the oldest child remained in Kentucky. In 2006, Dad, a military police officer in the Army, received orders to relocate to Hawaii. He then petitioned a Kentucky family court to modify visitation. The TC held that it lacked subject matter jurisdiction, finding that neither Mom nor the two younger children had any contact with Kentucky since the move to Tennessee and that Kentucky could not be considered the two younger children’s home state.

Analysis:

The concept of continuing jurisdiction incorporated into the UCCJEA was adopted by Kentucky and is contained in KRS 403.824 which provides in its entirety:

(1) Except as otherwise provides in KRS 403.828, a court of this state which has made a child custody determination consistent with KRS 403.822 or 403.826 has exclusive, continuing jurisdiction over the determination until:

(a) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or

(b) A court of this state or a court of another state determines that the child, child’s parents, and any other person acting as a parent do not presently reside in this state.

(2) A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under KRS 403.822.

Thus, 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 the person remaining in the state with exclusive, continuing jurisdiction becomes so attenuated that a court could no longer find significant connections and substantial evidence.

Although the family court dismissed the petition in its entirety, clearly under the UCCJEA and even applying that court’s deference to the “home state” analysis, Kentucky has exclusive, continuing jurisdiction over custody matters pertaining to oldest child. At the time the petition to modify visitation was filed, he and his custodial parent were both Kentucky residents. If, as Mom suggested, Kentucky has jurisdiction to determine the visitation issue in regard to the oldest child but Tennessee has jurisdiction as it pertains to the two youngest children, the result is not reconcilable with either the UCCJEA or Kentucky’s expressed interest in expediting and efficiently determining child custody and visitation matters. The very purpose for the creation of the family courts is to consolidate litigation and controversies related to a family into one court. Splitting jurisdiction over custody matters involving children within the same family and, as a consequence, forcing the parties to litigate custody and visitation issues in two different jurisdictions, serves neither the reason for the UCCJEA nor for the creation of the family court system. As a general rule, courts should avoid such a result.

Dad is a Kentucky resident and visitation with the younger children has taken place in Kentucky. Just as important, the younger children’s older sibling is a resident of this state. Thus, information relevant to the issue of visitation with all three children would be found in Kentucky.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs & Associates, http://louisvilledivorce.com/dedicatedprofessionals/mapes/

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