FOX (DENISE MARIE) VS. MINA (THOMAS C.)
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RENDERED: JANUARY 28, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000458-ME
DENISE MARIE FOX
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA L. DELAHANTY, JUDGE
CONSOLIDATED ACTION NOS. 05-CI-504431 & 09-CI-504206
THOMAS C. MINA
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
MOORE, JUDGE: Denise Marie Fox appeals the Jefferson Family Court’s order
declining to exercise jurisdiction in favor of another forum, New York, with regard
to custody proceedings. She also appeals the court’s order denying her motion to
alter, amend, or vacate its initial order. Denise claims that the court erred by
1
Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
failing to apply and make specific findings with respect to each of the factors
enumerated in KRS2 403.834.
Denise Marie Fox and Thomas Mina’s relationship commenced in
New York. The parties never married, and their relationship ended shortly after
Denise became pregnant with the parties’ child, Pasqualina. Denise moved to
Kentucky after finding out that she was pregnant. Thomas remained in New York,
where he still resides. Pursuant to a court order dated April 8, 2001, Denise
retained custody of Pasqualina until October 24, 2005, at which time the court
awarded temporary custody to Denise’s sister. The court then awarded custody of
Pasqualina to Thomas on September 1, 2006.3 Pasqualina thereafter left Kentucky
and began residing with Thomas in New York.
Thomas later filed, in Jefferson Family Court, a petition for sole
custody of Pasqualina and a motion requesting the court to decline jurisdiction in
favor of the State of New York. Thomas submitted an affidavit along with his
petition to the court indicating that Thomas and Pasqualina have “significant
connection with [New York], that all of the teachers of the minor child are in the
State of New York, that all mental and physical health professionals are in the
State of New York, and the majority of the witnesses concerning the child’s
present and future care, protection, training, and personal relationships are
2
Kentucky Revised Statutes.
3
Denise appealed the award of custody to Thomas. On appeal, the Kentucky Supreme Court and
Court of Appeals remanded the case finding that reversal was necessary because Thomas had
failed to file an affidavit, as required by KRS 403.350. The case was remanded to the Jefferson
Family Court for the court to fashion an appropriate arrangement. From the record, Thomas was
awarded temporary custody, and this was the status of custody at the time proceedings were
brought which resulted in this appeal.
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available in the State of New York.” The affidavit also stated that Pasqualina has
resided with Thomas since July 2007,4 is “doing well in school, and is thriving in a
nurturing environment.”
The court determined that Kentucky was an inconvenient forum and
that New York was a more appropriate forum. Therefore, the court granted
Thomas’s motion and declined jurisdiction in favor of New York. Denise filed a
motion to amend, alter, or vacate this order, which the court denied. Denise
thereafter filed a timely notice of appeal.
After she filed her notice of appeal, Denise filed a motion with this
Court for intermediate relief; a motion panel of this Court denied same. Attached
to Denise’s motion were orders from the New York court, evidencing that an
action is currently pending in New York regarding custody of Pasqualina. As of
March 12, 2010, the New York court had ordered that Thomas shall continue to
exercise temporary sole custody of Pasqualina.
On the merits of her appeal, Denise argues that the family court erred
by failing to apply and make factual findings regarding the factors enumerated in
KRS 402.834(2) when it determined that Kentucky was an inconvenient forum for
deciding issues of custody. Finding that the family court did not err in declining
jurisdiction, we affirm.
4
The order granting custody to Thomas was entered on September 1, 2006. His affidavit
accompanying his motion for custody filed on November 23, 2009, indicates that the order was
not effectuated until on or about July 2007. Thus, it is unclear exactly when Pasqualina went to
live with Thomas in New York, but it is apparent that she has been there for at least three to four
years.
-3-
In Kentucky, interstate child custody jurisdiction disputes are
governed by the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA). This Act was codified in KRS 403.800 et seq. KRS 403.834(1)
provides that “a court . . . may decline to exercise its jurisdiction at any time if it
determines that it is an inconvenient forum under the circumstances and that a
court of another state is a more appropriate forum.” In making such a
determination, the court must consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely
to continue in the future and which state could best
protect the parties and the child;
(b) The length of time the child has resided outside this
state;
(c) The distance between the court in this state and the
court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should
assume jurisdiction;
(f) The nature and location of the evidence required to
resolve the pending litigation, including testimony of the
child;
(g) The ability of the court of each state to decide the
issue expeditiously and the procedures necessary to
present the evidence; and
(h) The familiarity of the court of each state with the
facts and issues in the pending litigation.
KRS 403.834(2).
-4-
In this case, Denise relies upon Biggs v. Biggs, 301 S.W.3d 32 (Ky.
App. 2009) for the proposition that the family court must consider these factors
when determining whether Kentucky is an inconvenient forum. In addition to
indicating that it had considered Biggs in making its determination, the court listed
several of the factors in KRS 403.834(2) as a basis for its determination. The court
considered the fact that Pasqualina had been residing in New York for at least three
years and that all of the information regarding the child’s welfare is now located in
New York. The court also noted that Denise had exercised very little parenting
time and that any visits must be supervised pursuant to court order. In addition to
considering these factors, the court had for its review Thomas’s affidavit stating
that Pasqualina’s significant contacts were in the State of New York.
As noted earlier, the court may also consider any other factors it
deems relevant to its determination. KRS 403.834(2). The court had the record in
prior proceedings of this case at its disposal. We agree with language in this
Court’s order denying Denise’s appellant motion for intermediate relief, wherein
our Court stated that “the family court specifically referenced its review of the
extensive record in this case, including the appellate record, in deciding that the
State of New York is the more appropriate forum to resolve the issues of custody
and visitation.”
It is apparent that the family court weighed heavily the fact that the
child has resided in New York for at least three years and has much extracurricular
and family involvement there. This alone would indicate that several of the factors
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lean heavily toward declining jurisdiction in favor of New York. Additionally,
Pasqualina has had very little contact with her mother, which appears to have been
her only contact with Kentucky for several years.
Denise also argues that the family court erred by evaluating the facts
of this case in light of KRS 403.824, instead of focusing on the factors delineated
in KRS 403.834. We find that an analysis under this statute also favors declining
jurisdiction in favor of New York.
KRS 403.824(1)(a) provides that a state will have continuing
exclusive jurisdiction until:
A court of this state determines that neither the
child, nor the child and one (1) parent . . . have
significant connection with this state and that substantial
evidence is no longer available in this state concerning
the child’s care, protection, training, and personal
relationships . . . .
Here, the family court determined that, based upon Pasqualina’s
having resided in New York for at least three years, all the while having very little
contact with her mother in Kentucky, that she no longer had any significant
connection with Kentucky. The court also determined that all of the evidence
regarding the “child’s care, protection, training and personal relationships” exists
in the state in which she has resided for a number of years. Additionally, New
York has since exercised its jurisdiction regarding the custody and visitation issues
involving Pasqualina.
As such, the family court did not err in declining to exercise
jurisdiction. Accordingly, the orders of the Jefferson Family Court are affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert C. Bishop
Elizabethtown, Kentucky
R. Dale Warren
Louisville, Kentucky
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