Case No. 2023-SC-0251-MR
Jefferson Family Court
Opinion by Chief Justice VanMeter
Date Rendered: March 14, 2024
Issue: Whether Kentucky or Texas had jurisdiction over child custody action, and whether child living for months in a third state for the father’s job constituted a “temporary absence” under UCCJEA for jurisdiction purposes.
Child was born in Texas in June 2019 to Father and Mother. After some time in Texas, Mother and Child moves to Kentucky in December 2019. Father argued this move was intended to be temporary, while Mother argued she intended to stay in Kentucky permanently. Mother later returned to Texas with Child in March 2020.
The family then relocated to Yelm, Washington in May 2020 due to Father’s job. They signed a lease and received mail there, but the duration of their stay was uncertain. Mother and Child returned to Texas in October 2020. Shortly after, Father left for work again, and Mother moved back to Kentucky with Child. Mother obtained an EPO in Kentucky in November 2020, granting her temporary custody of child.
Father filed for custody in Texas in December 2020, claiming no court has continuing jurisdiction over the case. The Texas court issued a temporary custody order in January 2021, stating Texas was Child’s home state without discussing the UCCJEA.
Mother initiated a custody action in Kentucky in March 2021, requesting a UCCJEA conference between the Kentucky and Texas courts. The conference occurred more than a year later, and both courts agreed Kentucky should retain jurisdiction.
Father appealed, arguing Texas should have jurisdiction. After the Court of Appeals affirmed Kentucky’s jurisdiction, Father returned to the Texas court, which then ruled in July 2023 that Texas had jurisdiction from the start of the case in December 2020.
The Supreme Court stated that it first needed to determine which state, if any, possessed initial custody jurisdiction. In doing so, it considered whether Kentucky would follow the subjective or objective approach to determining whether an absence from a state is temporary. It held that Kentucky would follow the objective method, as determining where a child lives, as opposed to where a child resides or is domiciled, is a bright-line rule, which is in line with the purpose of the UCCJEA—to simplify custody jurisdiction disputes.
Determining the method that Kentucky would follow, it then determined that no state had initial custody jurisdiction, because Child never lived in any state long enough to establish a home state. At Child’s birth, his home state was Texas, but Texas was divested of home-state status when Child began living in Kentucky. Thus, there must be another basis for jurisdiction.
The Supreme Court held that Kentucky had temporary emergency jurisdiction by virtue of the EPO. KRS 403.828 provides emergency custody jurisdiction, but it does not provide a time limit. It continues until another state with another basis for jurisdiction enters a custody order. If no other state can assert a basis for jurisdiction, “a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.” KRS 403.828(2). In this case, no other state could assert a basis for jurisdiction, and Kentucky has become Child’s home state. Thus, Kentucky has custody jurisdiction.
Digested by Nathan R. Hardymon