497 S.W.3d 245
Ky. Ct. App.2016Background
- Dustin Ball and Lucille McGowan entered a Nevada parenting plan (2007) giving Ball primary physical custody; Ball and their daughter Alexus moved to Kentucky thereafter.
- McGowan stayed in Nevada; the parties’ relationship and visitation between McGowan and Alexus reportedly deteriorated, with conflicting factual accounts about contact since 2007.
- McGowan filed a Nevada motion to modify custody in 2013; Ball says he was not properly served and did not participate; Nevada granted modification and later entered a contempt order authorizing pickup of Alexus.
- Ball filed a custody/modification petition in Boyd Circuit Court (Kentucky) and obtained a temporary status-quo order keeping Alexus in Kentucky; McGowan moved to dismiss for lack of jurisdiction under the UCCJEA.
- The Boyd Circuit Court contacted the Nevada court; Nevada replied it retained exclusive, continuing jurisdiction. The Kentucky court dismissed Ball’s petition; Ball appealed.
- Kentucky Court of Appeals affirmed that Nevada retained continuing jurisdiction but reversed the dismissal because Kentucky should have requested Nevada to consider declining jurisdiction as an inconvenient forum under the UCCJEA before dismissing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kentucky had authority to modify Nevada’s custody order under the UCCJEA | Ball: Kentucky was Alexus’s home state (child lived in KY since 2007) so KY had initial jurisdiction and Nevada no longer had continuing jurisdiction | McGowan/Nevada: Nevada retained exclusive, continuing jurisdiction because McGowan still resided in Nevada | Court: Kentucky had initial-jurisdiction facts, but under KRS 403.826 KY could only modify if Nevada relinquished jurisdiction or a party resided nowhere in the decree state; Nevada retained jurisdiction absent its own determination otherwise |
| Meaning of "significant connection" for continuing jurisdiction when child no longer resides in decree state | Ball: The child has had no connection with Nevada since 2007; McGowan’s mere residence is insufficient to preserve jurisdiction | McGowan/Nevada: Presence of a parent in Nevada supports continued exclusive jurisdiction | Court: Significant connections require more than a parent’s mere residence; child and a parent must retain meaningful ties; Nevada should make the determination, but its letter relied solely on residence which is insufficient in principle |
| Whether Kentucky could decide that Nevada lost jurisdiction | Ball: KY can determine that NV lost exclusive jurisdiction | McGowan/Nevada: Only the decree state may determine whether it retains jurisdiction | Court: Only the decree state may determine loss of exclusive jurisdiction; a modifying state cannot override the decree state’s determination |
| Proper remedy when decree state retains jurisdiction | Ball: KY should proceed because Nevada lacks contacts/evidence | McGowan/Nevada: KY must dismiss | Court: KY erred by dismissing without requesting that Nevada consider declining jurisdiction as an inconvenient forum under KRS 403.834(1); remanded for KY to request NV to consider declining; if NV declines, KY may proceed; if NV retains, KY must dismiss |
Key Cases Cited
- Addison v. Addison, 463 S.W.3d 755 (Ky. 2015) (standard of review for UCCJEA jurisdictional questions)
- Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767 (Ky. 2015) (explaining KRS 403.826 and modification limits under UCCJEA)
- Friedman v. Eighth Judicial Dist. Court of State, ex rel. County of Clark, 127 Nev. 842 (Nev. 2011) (parental forum-selection clause ineffective to confer UCCJEA jurisdiction)
- Walsh-Stender v. Walsh, 307 S.W.3d 127 (Ky. Ct. App. 2009) (decree state retains jurisdiction when child and at least one parent maintain substantial connections)
- Biggs v. Biggs, 301 S.W.3d 32 (Ky. Ct. App. 2009) (significant connection exists where a parent resides and exercises some parenting time in the decree state)
- Graham v. Superior Court, 132 Cal.App.4th 1193 (Cal. Ct. App. 2005) (original state retains jurisdiction while parent exercising visitation still lives there unless relationship is attenuated)
- Wahlke v. Pierce, 392 S.W.3d 426 (Ky. Ct. App. 2013) (jurisdiction under UCCJEA assessed at commencement of proceeding)
- Williams v. Bittel, 299 S.W.3d 284 (Ky. Ct. App. 2009) (UCCJEA’s purpose to avoid interstate jurisdictional conflict)