FAMILY LAW:  Child custody (affidavits and verified complaints); Jurisdiction not by consent
DATE RENDERED:  4/27/2007

In a 2-1 decision, the COA reversed  the Hardin Family Court order order modifying custody of the mother’s two children and its order denying her motion to alter, amend, or vacate its prior order.

Brad and Debra were divorced with mother having custody of minor children in Hardin County.  Debra was engaged to get married and move to Jefferson County taking the children with her.  Brad filed a motion for custody alleging that Debra had become unstable since the divorce, that the children now attended school in a district not associated with their actual place of residence, and that Debra’s forthcoming marriage to Dr. Rankin would be detrimental to the children. Brad also objected to the proposed move to Jefferson County.

The children attended and became active in their schools in Jefferson County and participated in some extracurricular activities which they had previously enjoyed in Hardin County.  The Hardin Family Court ultimately granted Brad’s motion for modification making him primary residential custodian of both children, granted Debra visitation in accordance with the local rules, recalculated the child support obligations of the parties, and dealt with the issue of health care expenses and insurance for the children.

Debra alleges that Brad failed to comply with the requirements of KRS 403.350, thus depriving the family court of subject matter jurisdiction by failing file a separate affidavit along with his petition.

COA found Debra’s jurisdictional argument to be both persuasive and dispositive. Subject matter jurisdiction cannot be obtained by consent nor can it be waived. The issue can be raised at any time and is reviewable by the appellate courts whenever it is raised.

Brad failed to file a separate affidavit along with his petition. Debra argues that this failure is fatal to his request. While we believe the better practice would be to file a separate document, the verified petition herein technically meets the requirements of being an “affidavit.”

While not holding that a verified complaint will always meet the legal requirements of being an affidavit, the COA did find in this case that Brad’s verified complaint technically fulfilled the requirements of CR 43.13.

The COA also rejected Debra’s argument that the family court erred by not making a specific finding of “adequate cause” on the record, and that such failure alone is sufficient to warrant reversal. While the statute specifically requires the courts to make this threshold finding, there is nothing to support Debra’s contention that such a finding must be specifically placed in the record. The trial court’s scheduling of a hearing on the matter is sufficient to reveal that such a determination has been made.

Without a sufficient factual basis to support a finding of adequate cause, the family court abused its discretion by setting the matter for a hearing rather than denying Brad’s motion outright, as the court had nothing further to consider.   Thus, the family court’s May 21, 2006, order making Brad the children’s primary residential custodian was invalid and must be reversed and remanded with instructions for the family court to return residential primary custody of the minor children to Debra, and to conduct such further proceedings as are necessary to recalculate child support obligations, health insurance issues, and any other matters affected by the earlier ruling.

The family court’s determination to modify custody was not based upon substantial evidence, but rather upon conjecture and speculation.

BTW: See the digest of Rankin v. Coffman at

Digested by Michael Stevens

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