BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES. CLAYTON, JUDGE: This case concerns child custody modification. We are presented with multiple, alternative issues, with the principal issue being whether Kentucky is a child's home state for child custody modification. A factual background illuminates this issue.

The Andersons were married and had two children, a boy and a girl, before they obtained a dissolution decree in Ohio many years ago. The father moved to Kentucky, and the mother moved to South Carolina. Pursuant to the Ohio decree, the mother was granted sole legal custody of the parties' children, and the father was granted visitation. Both children lived in South Carolina with their mother for nearly half a decade. At the request of his mother, on December 27, 2015, the parties' son came to live with the father and attend school in Kentucky. The father asserts that this was to be a permanent relocation "if the child liked the school and arrangement." (Father's Affidavit, ¶13).

The son lived with his father in Kentucky, excepting only a week during spring break when he was at his mother's house in South Carolina. In May of 2016, the mother made known to the father that she wanted the son to return to South Carolina to live with her. Because the Ohio decree permitted the father to have summer visitation with both children, the mother brought the daughter to father's residence for the summer and planned on picking up both children at the end of the summer. However, on June 27, 2016, just over 180 days after the son moved to Kentucky, the father filed a petition to transfer the case to Kentucky and change custody, support, and visitation regarding the son.

The father filed an emergency motion on June 29, 2016, moving the trial court to grant him temporary custody, find that Kentucky is the home state under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), and abate his child support obligation because one of the children was living with him and the other was living with her mother. Mother did not appear at the August 1, 2016 hearing, at which the trial court granted father's motion and requested relief.

Kentucky Revised Statutes ("KRS") 403.800, et seq.

Two days later, mother filed a special appearance and challenged that Kentucky had jurisdiction because she alleged the parties only intended the son's stay in Kentucky to be temporary - a trial to see if Kentucky was a good fit for the son. Indeed, in a series of text messages between the father and mother that were attached to the father's response to mother's motion to dismiss, the mother stated prior to the son coming to live with the father, "I want to do a trial first." She also agreed that she would sign legal papers to make the stay permanent only after the son had been given a chance to see if he wanted to stay in Kentucky.

Mother claims she informed father in May of 2016 of her desire to have the son return to South Carolina. She stated she would permit the son to remain with the father for his usual parenting time in June, but she wanted the son to return to South Carolina when the visitation was completed. Because the son's residence in Kentucky was a temporary absence from his home state of South Carolina, the mother moved to set aside the trial court's order granting father custody and abating his child support, arguing that the trial court did not obtain jurisdiction to modify the Ohio decree.

A hearing was held on September 20, 2016. At the hearing, the parties stipulated the facts as follows, with only a few disagreements as noted:

1. The mother contacted the father in September of 2015 regarding having the son come to live in Kentucky to try

out the schools there to see if he wanted to live in Kentucky.

2. The father deferred bringing the son to Kentucky until the beginning of the Winter/Spring semester (the parties disputed why the father deferred bringing the son to Kentucky, but that dispute is not material to the jurisdictional question).

3. The son came to live with the father on December 27, 2015, with the intent to attend school during the following semester on a trial basis.

4. The mother maintains that the entire period was a trial period to see if the son desired to permanently move to Kentucky, whereas the father maintains that the move was to be permanent if the son decided he liked the Kentucky schools and wanted to stay permanently.

5. The son returned to South Carolina for spring break between April 2, and April 9, 2016.

6. The son returned to Kentucky after spring break to finish out the school year.

7. Mother and father had discussions and exchanged e-mails in May about mother's desire to have the son return to South Carolina at the end of the school year (which was either the end of May or early June).

8. According to the Ohio decree, the father was entitled to summer visitation with both children from June 14 through August 7.

9. The mother brought the daughter to Kentucky so both children could spend the summer with their father.

10. The father filed the action on June 27 to obtain custody of the son.

The parties called no witnesses, and they elected to put on no additional proof. They discussed with the judge that an action had been filed in South Carolina by the mother. The trial court noted it had already contacted the South Carolina courts and discovered that what had been filed down there was a foreign judgment, but no judge had yet been assigned to the case. Mother's counsel informed the trial court that a motion for contempt for failing to abide by the foreign judgment was filed on August 31, 2016, and a judge was now assigned to the case. The parties gave the trial court the South Carolina case number and the assigned judge's name so the trial court could contact the South Carolina courts about the matter. The parties then argued their respective positions regarding the jurisdictional question.

Based on documents filed with the mother's emergency motion to set aside the August 4, 2016 order, and the parties' counsels' statements at the hearing, it appears the mother did institute some type of action in South Carolina prior to the September, 2016 hearing in Kentucky by filing to register the Ohio custody order.

The trial court took the matter under consideration and entered an order on September 27, 2016, finding that the trial court did not have jurisdiction to hear the case because Kentucky was not the child's home state. The trial court reasoned that the father's summer parenting time could not be counted toward the sixth-month period required for home-state jurisdiction, thus the pre-petition time spent in Kentucky did not equal at least six months. Alternatively, the trial court found that Kentucky was an inconvenient forum and that South Carolina was the more convenient forum. The trial court vacated its previous order. This appeal follows.

ANALYSIS

We ultimately hold that the trial court properly found it did not have jurisdiction because the son's home state was not Kentucky for the requisite six-month period, albeit for different reasoning than the trial court found. The evidence of record indicates that both the mother and the father understood the son was moving to Kentucky for a trial period to see if he liked living in Kentucky, thus his move here was a temporary absence from his home state of South Carolina. Being a temporary absence rather than a permanent placement, the six-month clock never began to run, thus Kentucky never acquired jurisdiction. We arrive at this conclusion by analyzing the father's first issue.

Father first argues that the trial court erred by allegedly utilizing an improper time computation when calculating whether Kentucky was the home state under Kentucky Revised Statutes (KRS) 403.826, which outlines when a Kentucky court may modify a child custody determination made by another state. Pursuant to that statute, when a Kentucky court determines that the child and the child's parents do not presently reside in the state that made the initial custody determination, the Kentucky court may have jurisdiction to modify the custody determination if the provisions of KRS 403.822(1)(a) or (b) apply. Those provisions read:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a person or person acting as a parent continues to live in this state; or

(b) A court of another state does not have jurisdiction under paragraph (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under KRS 403.834 or 403.836; and

1. The child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

2. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships[.]

KRS 403.822(1)(a)-(b).

"Home state" is further defined as:

. . .the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period.

KRS 403.800(7) (emphasis added). Reading the statutes together, for Kentucky to have jurisdiction to modify custody pursuant to KRS 403.822(1)(a), the child needed to live with the father in Kentucky for at least six consecutive months immediately before the filing of the petition, and that living arrangement needed to be a non-temporary absence from another state. See also Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 773 (Ky. 2015) (detailing statutory scheme for jurisdiction).

Alternatively, if South Carolina is the child's home state, then for Kentucky to acquire jurisdiction pursuant to KRS 403.822(1)(b), South Carolina must decline to exercise jurisdiction on the ground that Kentucky is the more appropriate forum, and the father must have a significant connection with Kentucky, and substantial evidence must be available in Kentucky "concerning the child's care, protection, training, and personal relationships[.]"

As the parties stipulated the material facts at the September 20, 2016 hearing, we need not perform clear error review of the factual findings. We do review the legal conclusions de novo because we are addressing a jurisdictional question. Ball v. McGowan, 497 S.W.3d 245, 249 (Ky. App. 2016) (citing Addison v. Addison, 463 S.W.3d 755, 764 (Ky. 2015)). Under de novo review "we afford no deference to the trial court's application of the law to the facts found." Laterza v. Commonwealth, 244 S.W.3d 754, 756 (Ky. App. 2008) (citing Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998)).

We begin our analysis with the KRS 403.826 criteria for jurisdiction to modify custody - namely that both the child and his parents no longer reside in Ohio. There is no dispute that the parties no longer reside in Ohio. Thus, we turn to KRS 403.822(1)(a) and (1)(b) to determine if Kentucky has jurisdiction.

Under KRS 403.822(1)(a), we must determine if Kentucky was the child's home state for at least six months prior to the petition's filing. It is undisputed that the son was physically in Kentucky for the six months prior to the petition's filing, excluding the week he spent in South Carolina for spring break. Given that the son resided in South Carolina for years, and given that the parents only sent the son to Kentucky to try out the schools, whether Kentucky has jurisdiction, then, turns on whether the son was temporarily or permanently absent from South Carolina while in Kentucky. If the child was only temporarily absent from South Carolina and never permanently in Kentucky, then South Carolina was the home state instead of Kentucky, and Kentucky courts did not acquire jurisdiction under KRS 403.822(1)(a). On the other hand, if Kentucky, not South Carolina, was the son's home state for the six months immediately preceding the June 27, 2016-filed petition, then Kentucky may have jurisdiction to modify child custody. Id.; KRS 403.826(2); Adams-Smyrchinsky, 467 S.W.3d at 774 (". . . if the prerequisites exist for a Kentucky court to exercise jurisdiction, it simply has jurisdiction.").

It does not appear that Kentucky's published jurisprudence has fully defined "temporary absence" under KRS 403.800(7). Thus, where Kentucky law is sparse in construing the UCCJEA, we look to our sister states for guidance. Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky. App. 2009). Other states considering what constitutes a temporary absence have evaluated whether the parties intended the child to be temporarily or permanently absent from the home state. See In re Marriage of McDermott, 175 Wash. App. 467, 486-87, 307 P.3d 717, 726-27 (2013) (collecting cases). Courts utilize a number of factors to determine whether the absence was intended to be temporary or permanent, including: (1) "the parent's purpose in removing the child from the state, rather than the length of the absence[;]" (2) "whether the parent remaining in the claimed home state believed the absence to be merely temporary[;]" (3) "whether the absence was of indefinite duration[;]" and (4) "the totality of the circumstances surrounding the child's absence." Id. (quoting Sajjad v. Cheema, 428 N.J.Super. 160, 173, 51 A.3d 146 (2012) (citing Arnold v. Harari, 772 N.Y.S.2d 727, 729-30, 4 A.D.3d 644 (2004)); Consford v. Consford, 711 N.Y.S.2d 199, 205, 271 A.D.2d 106 (2000); Chick v. Chick, 164 N.C.App. 444, 449, 596 S.E.2d 303 (2004); Sullivan v. Sullivan, 2004 UT App. 485, 105 P.3d 963, 966).

To determine the metes and bounds of "temporary absence," the parties cite Luu v. Murphy, 2014-CA-000283-ME, an October 17, 2014-rendered, to-be-published Kentucky Court of Appeals opinion that was ordered not-to-be-published by the Kentucky Supreme Court on February 11, 2015. We have reviewed the opinion and decline to utilize it as persuasive authority because the Kentucky Supreme Court has ordered it de-published and because Biggs permits us to look to sister states for guidance.

Here, we need not explore the many circumstances a court may consider to determine if an absence is temporary. It is sufficient to note that the text messages attached to the father's brief, and also submitted to the trial court, show that the mother wanted the son to be at his father's on a trial basis. "I want to do a trial first . . . As far as legal papers I don't have a problem with that after he's been given the chance to see if he wants to definitely stay . . . ." Furthermore, the father's affidavit demonstrates that he understood the son's residency in Kentucky to be a trial run, "I was concern [sic] that the Mother would accuse me of stealing the child since this was to me a permanent arrangement if the child liked the school and arrangement." (Father's Affidavit, ¶13) (emphasis added). In other words, both the mother and the father understood the arrangement could become permanent only if the child wanted it to be permanent at the end of the trial period. Thus, the son's stay in Kentucky was a temporary trial that could become permanent in the future. Because it was a temporary trial, his presence in Kentucky constitutes a temporary absence from his home state of South Carolina.

The dissent, infra, views this trial period differently. It argues that the period's permanency hinges on the son's desires. It would remand the case back for the trial court to "gather[] . . . evidence" regarding whether the son desires to remain in Kentucky. It relies on KRS 403.270(2)(b) and (d) to make this holding. That statute is inapplicable here, though, as it concerns what factors a trial court should consider when determining custody under the best interests of the child standard. No one is determining custody at this threshold stage. We are determining jurisdiction. And if the son's wishes had been relevant, the parents had the opportunity to present that evidence at the hearing. Neither side presented any evidence of the son's wishes. Instead, they focused on their own wishes for the child and asked the trial court to determine jurisdiction based on their interactions and expressed desires. Analyzing the jurisdictional issue using the parent's desires is in accord with the above-cited foreign cases and with the dissent's cited cases. See, e.g., Baxter v. Baxter, 171 So.3d 1159, 1172-74 (La. App. 4th Cir. 2015) ("Any statements made by either party indicating the parties' agreement that the child's absence from the home state was intended to be temporary."); In re Marriage of McDermott, 175 Wash. App. at 486 ("In evaluating whether an absence was intended to be temporary or permanent, courts of this and other states consider the parents' intent.") (citations omitted); Masqudi v. Masqudi, 363 N.J. Super. 53, 830 A.2d 929, 937 (Ch. Div. 2002). We should not deviate from the evidence the parents chose to put forward at the hearing and remand to place the burden on the trial court to "gather[] . . . evidence."

But even if we assume that the son at some point decided he wanted to remain in Kentucky permanently, and that desire somehow related back to the date he left South Carolina, it is beyond dispute that the son's presence in Kentucky during the summer months was due to court-ordered visitation that should not be counted as part of the six-month period. Court-ordered visitations have been found to constitute temporary absences from a person's home state. Ex parte Siderius, 144 So.3d 319, 325 (Ala. 2013) (citing McDermott, supra). See also Baxter v. Baxter, 171 So.3d at 1172 (citing 1 Sandra Morgan Little, CHILD CUSTODY AND VISITATION LAW AND PRACTICE § 4.12[5][a] (2014) ("Child Custody and Vistiation")). There is no evidence in the instant case that disputes that the son was permitted to remain in Kentucky throughout the summer solely because the mother followed the court-ordered visitation schedule from the Ohio decree. Though the father complains that the decree was not registered in Kentucky, such failure does not change the fact that it exists and the fact that it contains a summer visitation period for the father. Most damaging to the father's argument, though, is that the summer visitation in the Ohio decree was part of the stipulated facts at the evidentiary hearing. Accordingly, it was proper for the trial court to find that the son was in Kentucky during the summer pursuant to the Ohio visitation schedule and exclude this period of time from the six-month calculation.

Thus, under both calculations, the trial court correctly held that it did not have jurisdiction because the son was not permanently residing in Kentucky for at least six months immediately preceding the filing of the petition. The trial court properly held that six months had not elapsed to confer jurisdiction in Kentucky pursuant to KRS 403.822(1)(a) and KRS 403.800(7).

Having determined that KRS 403.822(1)(a) does not confer jurisdiction to Kentucky, we turn to KRS 403.822(1)(b). Pursuant to that section, we first examine whether no other state has jurisdiction or, if another state has jurisdiction, whether that home state declined to exercise jurisdiction. The evidence supports that South Carolina is the child's home state under KRS 403.822(1)(b), as the parties both agree the child resided there for years before the temporary absence to Kentucky. Additionally, there is no evidence that South Carolina has declined jurisdiction on the ground that Kentucky is the more appropriate forum. Thus, Kentucky courts have not acquired jurisdiction under KRS 403.822(1)(b), though they could in the future if South Carolina declined to exercise jurisdiction and the other elements of KRS 403.822(1)(b)1-2 applied.

See also S.C. Code Ann. § 63-15-302(7) ("'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period."). --------

For the foregoing reasons, the trial court properly concluded that it did not have jurisdiction to modify the foreign child custody order. We thus affirm the trial court's order.

Alternatively, we would affirm the trial court's order because the trial court did not abuse its discretion by declining to exert jurisdiction, if it had any, because it found South Carolina was a more appropriate forum. KRS 403.834; Ellis v. Ellis, 420 S.W.3d 528 (Ky. App. 2014). The issue was squarely presented by the mother and discussed at the September 20, 2016 hearing. The trial court informed the parties that he would be contacting the judge handling the case in South Carolina. The parties submitted ample evidence for the trial court to consider regarding the inconvenient forum issue. And the trial court's order addresses the relevant factors from KRS 403.834(2)(a)-(h). Thus, even if the trial court had jurisdiction, its order should be affirmed for its alternative conclusion.

CONCLUSION

We AFFIRM the trial court's order because the son's home state was not Kentucky for the requisite six-month period, thus Kentucky did not acquire jurisdiction over the foreign child custody order. Alternatively, even if Kentucky had acquired jurisdiction, we find the trial court did not abuse its discretion by declining to exert jurisdiction because South Carolina is the more appropriate forum.

DIXON, JUDGE, CONCURS.

THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

THOMPSON, JUDGE, DISSENTING: I respectfully dissent and would reverse and remand for a hearing to more thoroughly explore whether Kentucky rather than South Carolina is son's home state.

Although Ohio was the state which entered the parents' dissolution decree in 2006, neither parent lives in the state. Father moved to Kentucky in 2005 and mother moved to South Carolina with the children in 2012. Accordingly, Ohio no longer has exclusive, continuing jurisdiction over custody modifications because neither the parents, nor the children have a significant connection with Ohio and substantial evidence is no longer available there. Kentucky Revised Statutes (KRS) 403.824(1)(a). Therefore, whichever state would now have jurisdiction to make an initial decree can now modify the custody decree. KRS 403.826. This would be either Kentucky or South Carolina, whichever constitutes son's home state. KRS 403.822.

"Home state" is defined as "the state in which a child lived with a parent . . . for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period[.]" KRS 403.800(7). Father claims son's home state is Kentucky because son lived there with him for more than six months prior to father filing for temporary custody. Mother claims that South Carolina remains son's home state because he was only temporarily absent while living with father.

The majority opinion characterizes son's more than six-month stay in Kentucky with father as temporary based on the parents' text exchanges, which stated this was a trial period for son to decide whether he wanted to live with father permanently. I believe their exchanges demonstrated parents' intent to let the nature of son's stay be determined by son's wishes and, thus, whether the six-month period for home state status is satisfied depends upon son's ultimate desire and other indicators about whether his stay was to be indefinite. Therefore, the family court erred by determining the matter of jurisdiction and home state status in a summary manner without hearing from son about his wishes, and the majority compounds this error by relying solely on the parents' statements regarding the arrangement at its inception and not considering how it developed over time.

In interpreting KRS 403.800(7) to determine a child's home state, our Courts have focused simply on whether or not a child lived in that state for at least six months, not subtracting time for brief forays elsewhere as those would be only temporary absences. Danaher v. Hopkins, 449 S.W.3d 765, 770 (Ky.App. 2014); Bissell v. Baumgardner, 236 S.W.3d 24, 30 (Ky.App. 2007). While certain circumstances are easily categorized as temporary absences, such as court-ordered visitation, vacations, business trips, family emergencies or trips to seek medical care, other absences are more difficult to categorize. Baxter v. Baxter, 2015-0085 (La. App. 4 Cir. 6/24/15), 171 So.3d 1159, 1172-73.

Courts which have analyzed in-depth how to distinguish between temporary absences and time that can be counted toward the establishment of a new home state have suggested consideration of a variety of factors. See In re Marriage of McDermott, 175 Wash.App. 467, 486-87, 307 P.3d 717, 726-27 (2013); Maqsudi v. Maqsudi, 363 N.J.Super. 53, 67, 830 A.2d 929, 937 (Ch.Div.2002). However, the most comprehensive list of factors was adopted in Baxter, 171 So.3d at 1172-74, as follows: the stated purpose for the child's removal from the home state, whether statements were made that the removal was to be temporary and whether the remaining parent considered the absence temporary or permanent, whether the absence was for an indefinite duration or for a specific fixed purpose of limited duration (such as vacation, visitation with the other parent, a short term work assignment or caring for a sick relative), the actual purpose of the removal, if the removing parent moved, what evidence there was that the removing parent was establishing a permanent presence in the new state, whether the child attended or was enrolled in school in the new state, whether the children engaged in extracurricular activities in the new state and whether the children obtained medical insurance in the new state and visited doctors and dentists while there.

In applying these factors, I disagree that we should only consider the parents' discussion before son went to live with father and in doing so completely ignore what was at the heart of the exchange, that the arrangement would be permanent if that was son's wish. By deferring to son's wishes in this matter, son's stay with father was not part of a set "trial period" but instead was to be indefinite. By evaluating the home state issue solely through the parents' stipulations, the family court neglected to gather any evidence on son's wishes, which were certainly appropriate to take into consideration given his age and that his wishes were paramount to determining which state constituted his home state. See KRS 403.270(2)(b), (d) (requiring courts determining custody to consider "[t]he wishes of the child as to his custodian" and "the child's adjustment to his home, school, and community[.]")

Moreover, there are several indicators that father, mother and son planned for son to remain in Kentucky permanently. Father obtained health insurance for son and established health care providers for him, including initiating ongoing orthodontic treatment. Orthodontic treatment commonly spans at least two years and requires frequent visits. Mother exercised visitation with son over spring break but allowed son to return to Kentucky afterward rather than retaining custody. Even if mother's purpose in returning son was solely for him to complete the semester, mother did not ask for son to return after the semester ended and before father's official visitation period was to commence. Son enrolled in advanced placement classes for the current school year and participates in a number of ongoing school activities, such as band, cross-country and after school clubs.

I do not agree that father's visitation time should be deducted from the requisite six-month period when mother allowed son to remain in the continued temporary custody of father after the school year ended but before father's official visitation time commenced. Because father's custody over son continued for an uninterrupted period for more than six months before father filed to make the arrangement official (as mother's spring break visitation with son is just the type of temporary visit whose time is included in calculating the six month period), father was not merely exercising visitation at the end of this time but was continuing to exercise the temporary sole custody that mother previously granted to him.

Accordingly, I dissent. BRIEF FOR APPELLANT: Colleen M. Hegge
Union, Kentucky BRIEF FOR APPELLEE: Mark A. Ogle
Fort Mitchell, Kentucky

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