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Day v. Day

Case No. 2022-CA-1250-MR

McCracken Family Court

Decided by J. Susanne M. Cetrulo, J. Audra Jean Eckerle, and J. Pamela R. Goodwine

Opinion by J. Susanne M. Cetrulo

Date Rendered: August 4, 2023

Issue: Whether a Kentucky court has jurisdiction to modify custody or parenting time pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act when neither the parents nor the child live in Kentucky.

Issue: Whether an agreed forum-selection clause prevents a Kentucky court from declining jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act.

Parents were married in Paducah, Kentucky, but lived for a time in California when Child was born. During the year Child was born, Mother moved with Child to Paducah and filed for divorce. Soon thereafter, Father purchased a home in Paducah, and Parents entered into a separation agreement, which provided for custody and parenting time. Father was traveling between Kentucky and California for his parenting time.

Subsequently, Mother filed a notice of relocation, intending to move with Child to Florida. Father, in response, moved to modify parenting time and objected to the move. This culminated in an agreed order, wherein Father consented to the move to Florida with some modifications to the parenting-time provisions. The agreed order also included a forum-selection provision:

  1. The parties agree that the McCracken Family Court will retain jurisdiction of this matter, and all future modifications of this agreement will be through the McCracken Family Court.

The agreed order was entered by the Court, and it also noted that Father was intending to relocate to Florida.

Two years later, Father filed another motion to modify parenting time in McCracken Family Court, seeking equally shared parenting time, confirming that he had moved to Florida to be with Child. Both Parents and Child had been living in Florida for two years. Mother moved to dismiss the motion, arguing that Kentucky no longer had jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. Family Court agreed and declined to rule on the motion to modify. Father appealed.

The Kentucky Court of Appeals affirmed Family Court, holding that Family Court no longer had particular-case jurisdiction. A trial court’s jurisdiction to modify custody or parenting time continues until it determines that the conditions of either KRS 403.824(1)(a) or (b) exist. KRS 403.824(1)(b) divests a trial court of modification jurisdiction when a court finds that both parties and the child have left the state. Because Family Court found that neither Parent nor Child live in Kentucky, Family Court correctly concluded that it no longer had particular-case jurisdiction.

The Kentucky Court of Appeals further held that a forum-selection clause is not binding upon a trial court in its determination of whether it has modification jurisdiction. Rather, a forum-selection clause is one of several factors for a trial court to consider under KRS 403.834 to determine whether Kentucky is a convenient forum, if the trial court has already determined that it has jurisdiction.

Digested by Nathan R. Hardymon