Biological Parent Notice and Best Interest Analysis Necessary to Enforce Marital Settlement Agreement Granting Nonparent Joint Custody

Question Presented: Whether a Kentucky Court has proper subject matter jurisdiction when paternity action established paternity in Ohio.

Whether a Marital Settlement Agreement granting nonparent joint custody and visitation is enforceable.

Husband and Wife shared joint custody of their two minor children and a minor child (hereinafter “Child”) that was not Husband’s biological child pursuant to a Marital Settlement Agreement (“MSA”) entered in 2017. Child’s paternity had been previously established in 2016 in an Ohio action between Wife and Biological Father. In 2023, Wife obtained sole custody of Child in an action against Biological Father in Ohio. Husband was not a participant in that action. After obtaining sole custody, Wife ceased all contact between Child and Husband, sought an adoption by her current husband, and moved to set aside the 2017 MSA. Husband sought to hold Wife in contempt for her violations of the MSA. After a hearing, the circuit court found that the MSA was valid and reinstated joint custody and parenting time.

Wife appealed arguing that the circuit court lacked subject-matter jurisdiction. The Court of Appeals holds that Kentucky had subject-matter jurisdiction pursuant to the UCCJEA as it was the home state of Child because Husband, Wife, and Child all lived in Kentucky for six months or longer prior to the 2017 action. The 2016 Ohio action was not an initial custody determination and therefore did not grant Ohio exclusive continuing jurisdiction under the UCCJEA.

Wife next argued that the circuit court failed to abide “by relevant statutory requirements regarding custody proceedings when it issued the decree of dissolution and approved the MSA awarding [Husband] joint custody of Child” in 2017. The Court of Appeals agrees vacating the order reinstating joint custody and parenting time and instructing the circuit court to grant Wife’s motion to set aside the MSA terms regarding Child’s custody. The Court of Appeal agrees with Wife because Biological Father never received notice of the 2017 action despite his fundamental constitutional right for care for and control of Child, nor did the circuit court make any findings regarding the best interests of Child.

The Court of Appeals is careful to note that its decision should not be seen as an endorsement of Wife’s litigation tactics and that Husband has alternate avenues for relief.   

Digested by Elizabeth M. Howell