Interstate custody concerns and absence from the state:

The Supreme Court of Kentucky recently reviewed, as a discretionary opinion, an appeal of a dissolution action from the Washington County KY Circuit Court. The court reviewed several specific key areas:

  • How long must a party reside in KY prior to filing a petition for dissolution AND what does it mean for a party to be “temporarily absent” from the state?
      • The husband in this case argued that the Kentucky courts were obligated to dismiss the wife’s action seeking a dissolution and custody of their child. 
        • Husband asserted that the court lacked jurisdiction because neither party resided in Kentucky for 180 days prior to the filing of the petition for dissolution as required by Kentucky law under KRS 403.140(1)(a). The current statute broadens the language, which permits jurisdiction to one of the parties who “resided in this state . . . for 180 days next preceding the filing of the petition.” However, there is an exception to the general rule “when the divorcing parties’ absence from the state is temporary in nature.” McGowan v. McGowan, 663 S.W.2d 219, 222 (Ky. App. 1983).
        • The husband also argued that the Kentucky court lacked jurisdiction to make decisions regarding the marriage and custody because neither party had resided in Kentucky for 180 days prior to the filing of the petition for dissolution as required by Kentucky law under KRS 403.140(1)(a). 
        • The court discussed that normally, actual residence in the state for the for the 180-day period is required before a Kentucky court could allow a dissolution case to proceed. However, there is an exception to that rule when the divorcing parties’ absence from the state is temporary in nature
        • In this particular recent case, the parties left Kentucky so that the husband could receive advanced training in oral surgery, but the parties used the wife’s parents’ Daviess County address as their permanent address, registered and insured their car in Kentucky, and kept Kentucky drivers’ licenses. The husband and wife also indicated that they hoped to return to Kentucky when appellant completed his training if he could find work in the state. The critical inquiry appears to be (which the wife was able to present evidence to support her arguments): 

 

  • At the time the parties left, they only intended to be temporarily absent from this jurisdiction. The Supreme Court determined finding that the trial court was correct when it found that the 180 day residence requirement had been met.  
    • Passage of time spent in another state alone does not eliminate absence from being defined as a “temporary absence”. Military service qualifies as a temporary absence. Weintraub v. Murphy, 244 S.W.2d 454, 455 (Ky. 1951) (citing Radford v. Radford, 26 Ky. L. Rptr. 652, 82 S.W. 391, 392 (1904)). 
      • This general concept had already been previously determined and reiterated over the course of nearly 100 years of applicable Kentucky law.
      • As applied to the specifics of this case, however, the husband introduced no evidence whatsoever showing that the wife relinquished legal residency from Kentucky. The husband fought, unsuccessfully, by arguing the wife could not rely on or maintain her temporary residency status for six years. The court disagreed and said “A change in legal residence or domicile requires a physical act coupled with the intent to abandon the domicile previously established.” Hunter v. Mena, 302 S.W.3d 93, 96 (Ky. App. 2010). The husband argued that long after their separation, the wife lived in three different states and at the time of the final hearing was residing back in North Carolina, albeit, not with him, and was not in Kentucky.
      • At the final hearing, the wife testified that she wished to return to Kentucky. It was undisputed that the parties possessed current Kentucky drivers’ licenses and filed Kentucky state income taxes. The couple also frequently returned to Kentucky with the minor child to visit both sets of grandparents. The wife’s intent to stay in Kentucky, supported by her evidence, convinced the court that Kentucky was, indeed, her legal residence. Therefore, based on our review of the law, the trial court properly exercised jurisdiction over the parties’ divorce proceedings.

 

  • What is the Home State of a child?
    • Husband argued Kentucky courts could not make a final custody determination. In 2004, the General Assembly adopted the UCCJEA, KRS 403.800, which has been adopted in most states and, the fundamental purpose of the UCCJEA remains the avoidance of jurisdictional competition and conflict with other states in child custody matters. Wallace v. Wallace, 224 S.W.3d 587, 589 (Ky. App. 2007).
    • Kentucky law defines the home state of the minor child as the state in which the child lived with a parent, or a person acting as a parent, for at least six months immediately prior to the filing of the action. KRS 403.800(7). Here, the minor child resided in three different states, including Kentucky, during the 180 days prior to the commencement of this divorce action.
    • Under Kentucky law unless otherwise provided, KRS 403.828, a Kentucky courts can make an initial child custody determination only if:
      • Kentucky is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. KRS 403.822(1)(a). 
      • In this specific case, Kentucky could not be asserted as the home state under the first section. Having established that no state has jurisdiction under subsection (a), the court had to look to subsection (b). KRS 403.822(1)(b) states: A court of another state does not have jurisdiction under paragraph (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under KRS 403.834 or 403.836. Neither Pennsylvania nor North Carolina can be the home state under Section (1)(b).
      • The court them determined that Kentucky was the home state under Section (1)(b) because “the child and at least one (1) parent . . . have a significant connection with this state other than mere physical presence.” Both parents in this case clearly had significant connections to Kentucky, beyond physical presence, as Kentucky was the legal residence for both parents. The child made frequent trips to visit both sets of grandparents in Kentucky. Thus, substantial evidence is available in Kentucky “concerning the child’s care, protection, training, and personal relationships.” KRS 403.822(1)(b)(2). No other state met the UCCJEA jurisdictional requirements. Kentucky was therefore the proper place for custody to be determined. 

 

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Maria Ante

Maria Ante

I am a practicing attorney, licensed in KY and OH. I'm a solo practicing attorney, with a general practice and focus on small business law, family law/domestic relations, criminal defense, estate planning, and personal injury. I currently live in Hebron, KY with my husband, Tim, our son, Beau, our daughter, Rory, and our two Siberian Huskies, Truman and Sprocket. Reading and exercising are my passions. I love running and basketball, I practice yoga, and I enjoy many other fun physical activities!

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