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
