Shafizadeh v. Bowles
2011 Ky. LEXIS 127
| Ky. | 2011Background
- Saeid Shafízadeh and Denise Shafízadeh (now Dugas) married in 1982 in Louisiana and moved to Kentucky in 1983.
- They had four children, two of whom are minors named as real-parties-in-interest; joint custody was agreed and incorporated into the 2008 divorce decree.
- The couple separated in 2006; in 2009 Denise, pro se, sought a change in visitation/parenting schedule.
- Saeid sought disqualification of the trial judge and appointment of a special judge, which the court denied; Denise relocated with the children in 2010 to Lafayette, Louisiana area with an order modifying parenting schedule issued.
- In 2010 Saeid sought a writ of prohibition; the Court of Appeals denied, and Saeid appealed to the Kentucky Supreme Court.
- The issue is whether the Jefferson Circuit Family Court had jurisdiction to consider Denise’s motion and whether the motion constituted a modification of timesharing rather than custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the family court had jurisdiction over Denise's motion | Saeid contends lack of jurisdiction because it sought custody modification. | Denise's motion was a modification of timesharing, not custody, and thus within court’s jurisdiction. | Court held jurisdiction existed; motion construed as timesharing modification. |
| Whether Denise's motion was a custody modification under Brockman | Brockman requires affidavits as custody modification; thus no jurisdiction without affidavits. | Pennington controls, replacing Brockman; motion is timesharing modification, not custody. | Brockman overruled to the extent inconsistent with Pennington; motion not custody modification. |
| Application of Pennington v. Marcum to classify the motion | Pennington supports treating primary residential parent label as custody modification. | Pennington clarifies that seeking primacy in joint custody is a timesharing change, not custody. | Denise sought timesharing change, not custody modification; jurisdiction valid. |
Key Cases Cited
- Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004) (threshold writ of prohibition standards)
- Crouch v. Crouch, 201 S.W.3d 463 (Ky. 2006) (affidavits required to modify custody)
- Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) (control over classification of custody vs timesharing; overrules Brockman)
- Brockman v. Craig, 205 S.W.3d 244 (Ky. App. 2006) (primary residential designation; change in custody if interpreted as such)
- Crossfield v. Crossfield, 155 S.W.3d 743 (Ky. App. 2005) (change in primary custodian equates to modification of custody)
- Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003) (primary residential designation as custody modification precursor (overruled))
- Frances v. Frances, 266 S.W.3d 754 (Ky. 2008) (overruled Fenwick; governs primary residential designation)
- Rehm v. Clayton, 132 S.W.3d 864 (Ky. 2004) (standard for reviewing writs de novo)
- Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803 (Ky. 2004) (de novo review framework for questions of law)