Kentucky Court of Appeals
On Appeal From
Henderson Family Court
Civil Action No. 12-CI-00207
Appellant, in Propria Persona
Mishal Nicole Preston
minor child, CLF,
Real Party in Interest
Prehearing Statement under Rule, 76.03.
(a) The style of the case and circuit court docket number;
COMMONWEALTH OF KENTUCKY
Henderson Family court
Civil Action No. 12-CI-00207
MISHAL NICOLE PRESTON PETITIONER
GREGORY FERGUSON RESPONDENT
REQUEST TO REGISTER CHILD CUSTODY
DETERMINATION PURSUANT TO KRS 403.850, VERIFIED MOTION TO MODIFY
PARENTING TIME AND NOTICE
1. Appellant appeals the Jurisdictional order of 6/12/12; and,
2. Appellant appeals The Judgment Order filed on or about February 4, 2013; and,
3. Appellant appeals the Domestic Violence Orders arising from 09-D00074-002 as they are intertwined to the point they are indistinguishable with the above custody case, and were misused and abused by the court in the above case. For example, the first call from Judge Farris to the Judge in Michigan regarding custody jurisdiction came during a hearing on the Domestic Violence Order of Protection.
4. The case # 2010-CI-00558, designated record on appeal resulted from the mother abducting the child in 2010, and then attempting to file a custody case in Kentucky in violation of the father’s Missouri Order. The mother has abducted this child 3 times.
Kentucky adopted the Uniform Child Custody Jurisdiction Act (UCCJA) in 1968 to govern Kentucky’s jurisdiction over interstate custody disputes. Williams v. Bittel, 299 S.W.3d 284, 288 (Ky.App. 2009). The Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), codified in KRS 403.822 et seq., was adopted in 2004 to replace the UCCJA and bring Kentucky law into conformity with the federal Parental Kidnapping Act. Id. Broadly speaking, the UCCJEA was designed “to avoid jurisdictional conflict and competition in custody matters.” Id.
(b) The name, mailing address, and telephone number of each attorney whose appearance is entered in the case, together with the name of the party represented by the attorney;
Appellant, in Propria Persona
503 Thoreau Ln.
South Lyon, Michigan 48178
117 West Second Street
Owensboro, Kentucky 42303
Attorney for Appellee
(c) The name of the judge who presided over the matter being appealed;
The Honorable Sheila N. Farris
(d) The date on which the notice of appeal was filed:
The Notice of Appeal was filed with the Family Court on March 1, 2013. The court did not, however, send me the form for this pleading as is required. I have no knowledge if this was inadvertent or on purpose.
(e) This matter has not been before the Court of Appeals Previously.
(f) The type of litigation; Inter-State Child Custody Jurisdiction Dispute
This was a child custody modification of an order of Michigan, which still has continuing exclusive jurisdiction. It has not stayed its proceedings. It has not vacated its custody order. It has not dismissed its action. The father still resides there. The Michigan Court of Appeals has recently found that significant connection exists if “one parent resides in the state and exercises at least some parenting time in the state.” White v. Harrison-White, 760 N.W. 2d 691,697.
The child was in Kentucky only as a result of the mother’s parental child abduction in direct violation of the Michigan Order.
(g) A brief description of the claims, defenses, and issues litigated;
1. Case was started in the trial court by the mother registering a prior Missouri Custody Order, which had already been modified by the Michigan Court. The mother conveniently did not divulge this information to the court, in violation of the law requiring her to divulge any modification of the Missouri Order, because the Michigan Order stated:
The Michigan Court in it’s order of 9/21/2011, Judicial Notice of which is hereby respectfully requested, stated, “In November, 2010, Mishal Preston took the parties minor child, CLF, D/O/B10/13/04, a blonde hair and blue eyed child to Kentucky and has refused to return the minor child as required pursuant to a Missouri Custody Order Dated 1/9/10 which is attached. The State of Michigan now has jurisdiction and has ordered the following: It is hereby ordered that the minor child, CLF, be immediately returned to his father, Greg Ferguson, and that the local or state police in Kentucky will be brought this order by Mr. Ferguson and will assist in retrieving the minor child or that the Mishal Preston shall turn the child over immediately to Gregory Ferguson. It is further ordered that Gregory Ferguson shall have sole physical and sole legal custody of the child and Mishal Preston may have reasonable visitation. It is further ordered that the minor child shall not leave the state of Michigan again unless Gregory Ferguson provides written notarized permission. IT IS SO ORDERED.
2. The registration procedure of KRS 403.850 is a ministerial function. The Order is registered when the file stamp hits the paper, not at a later time, after a hearing, with the Judge ruling whether or not to register the order. There is no judicial discretion involved.
“On receipt of the documents required by subsection (1) of this section, the
registering court shall (a)Cause the determination to be filed as a foreign judgment, together with one (1) copy of any accompanying documents and information, regardless of their form; and (b)Serve notice upon the persons named pursuant to subsection (1)(c) of this section and provide them with an opportunity to contest the registration in accordance with this section 3)
The notice required by subsection (2)(b) of this section shall state that:
(a)A registered determination is enforceable as of the date of the registration in
the same manner as a determination issued by a court of this state;
(b)A hearing to contest the validity of the registered determination shall be requested within twenty (20) days after service of notice; and
c)Failure to contest the registration shall result in confirmation of the child
custody determination and preclude further contest of that determination with
respect to any matter that could have been asserted.”
From the date of the Registration, on or about 3/12/12, until the court issued its custody order on 2/4/13 the custody order in full effect and subject to enforcement in Kentucky was this: “Plaintiff (father) and defendant (Mother) shall have the joint legal and joint physical and legal custody of the Minor Child, Cameron Lee Ferguson with Plaintiff’s address used for educational and mailing purposes subject to reasonable parenting time by Defendant, as set out in …..Parenting Plan.”
The father was the primary physical custodian, and the mother had visitation. The mother never objected to the registered order, and was thereby instantly barred from any objection that could have been asserted in (her own!) registration process
3. There is no provision under KRS 403.850 for the modification of custody.
4.. The mother’s attorney and the court worked together to utilize Orders of Protection and or Domestic Violence Orders, wherein the child was not a petitioner by his next best friend mother, and the mother was the only petitioner. On the same date as the Michigan Order, the mother applied for a EPO in Kentucky in case #09-D-00074-002. This case is inter-twined with the custody case No. 12-CI-00207 as if one case
403.740 Emergency protective order.
(1)If, upon review of the petition, as provided for in KRS 403.735, the court
determines that the allegations contained therein indicate the presence of an
immediate and present danger of domestic violence and abuse, the court shall issue, upon proper motion, ex parte, an emergency protective order:
Despite that there were no allegations of domestic violence, no stalking, no threatening behavior, and no harassment by the father in or out of Kentucky, and not a scintilla of evidence in these proceedings that such occurred the judge checked the box that states “for the Petitioner against the above-named Respondent in that it was established, by a preponderance of the evidence, that an act(s) of domestic violence had occurred and may again occur;” This is not due process of law. A reversal of a finding of fact is justified when the family court’s determination was clearly erroneous. CR 52.01.
The only evidence later offered at hearing was that the minor was waking with nightmares. The cause of these nightmares was never attributed to the father, and may well have been the proximate result of the mother’s parental child abduction. The child cries every time he sees his father and begs to be taken home. Maybe the child had bad dreams because he missed his father and his 3 brothers and sisters.
Of course, the court also awarded temporary custody of the minor to the mother, which was the entire purpose of the matter, not domestic violence. At hearing the mother admitted under oath that she had no basis for a Domestic Violence Order, and that she filed it for the sole purpose to get temporary custody to thwart the jurisdiction of the Michigan Court. The court extended this order to keep the father away from his son. The court found that the child had lived in Kentucky for over 6 months, and on that basis found “home state” jurisdiction. This finding was only due to the parental abduction of the child, and that the father was under a protective order for 9 months. Succinctly put, whole process of the Kentucky Court is a perversion of the law. All the while the father was being kept from his son by the Kentucky Order of Protection, by the court’s registration of the Missouri Custody Order, HE WAS THE PRIMARY PHYSICAL CUSTODIAN OF THE CHILD. It would be a comedy of errors, were it not a tragic abuse of discretion of the part of The Honorable Sheila Farris, who seems to discriminate against and seems to punish fathers apparently because they are men. Even soldiers deploying to foreign wars in service of their country. A complaint against Judge Farris is being prepared.
If there were an emergency to the child, and the child were in Kentucky, the court could have rightfully assumed emergency jurisdiction. Contrary to the bogus Domestic Violence Orders, there was NO EMERGENCY. And, too, under Emergency Jurisdiction the child would have to be returned to the father in Michigan
Domestic Violence orders are the most misused and abused proceedings in the United States. These orders are often issued with little, or as in this case, NO EVIDENCE, NOR EVEN ALLEGATIONS, and absent Constitutional due process, willy-nilly parents lose custody of children and men lose constitutional rights to bear arms. Courts should not play fast and loose with these laws. On the contrary the utmost care must be exercised. Few judges use care requisite to protect constitutional rights.
(h) A brief statement of the facts and issues proposed to be raised on appeal, including jurisdictional challenges;
1. The mandatory pleading requirement of 403.838, Information to be submitted to court is required for every type of child custody proceedings, including a Domestic Violence Order which grants temporary custody. Other Courts in the US, which have examined this section under the UCCJEA and UCCJA have found this to be jurisdictional. The Petitioner, Mother never filed this in either the protective order case, nor the Registration and (supposed) modification case and therefore all custody orders arising there from are null and void ab initio, rendered absent jurisdiction. “Whether a trial court acts within its jurisdiction is a question of law; therefore, the review is de novo.’” Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky.App. 2009)(citing GrangeMut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004)).
In the instant case, the mother has made numerous false statements to the court as to where the child lived, when and with whom. Had she properly executed such declaration under penalty of perjury, chances are the proper, truthful and complete info would have been provided the court. And the court would never have proceeded with this case.
2. The Kentucky trial court did not stay its proceedings prior to communicating with the Michigan Court. The court did communicate with the Michigan Court, first in a Order of Protection hearing, and then again later. The Michigan Court knew as little about the Inter-State Child Custody Law law as the Kentucky Court. What was said by and between the Courts is a matter of confusion on the face of the Order herein appealed., thus: “The Court referred to its hearing with the court in Michigan and at the conclusion of said conference, it was determined that kentucky had jurisdiction, initially to issue a domest violence order for and on behalf of the minor child and again at a later time to determine;”
The only memorialization in the Michigan file is this in a pleading by the father for Michigan to exercise its continuing jurisdiction, “ The Defendant (Mishal) attempted to file (in Michigan) an Emergency Ex Parte Motion to Set Aside Custody on October 4, 2011 to which this Court and the Kentucky Court conferred and ordered that Kentucky will have jurisdiction of the EPO and upon expiration of same Michigan will continue custody enforcement. This can be viewed on Disc of the hearing.”
What is clear is this. If the Michigan court having jurisdiction, meant to decline, to exercise its jurisdiction (which is questionable), the law is clear, the law is settled, IT MUST BE FORMAL. In the instant case, the Michigan Court has not stayed it’s custody order, it has not vacated it’s custody order, as of March 15, 2013, and it retains jurisdiction by the fact that the father still resides there and has excercises some parenting time there. Appellant will be filing an Appellate Court Petition in Mandamus in Michigan within days to force the court to exercise its own clear jurisdiction, or, in the alternative dismiss, thereby given Appellant an order to therein appeal.
Even if the Michigan Court vacated and dismissed now or in the future, it would not remedy the lack of jurisdiction. it would remain that that the within custody orders were rendered absent jurisdiction.
The father has demonstrated the patience of Job. He has steadfastly resisted the simple matter of signing the complaint papers in the prosecutors office in Michigan, because he did not want his son to see his mother arrested and sent to prison. His patience wanes. He is now much more willing to effect the return of his son and a modification of the Kentucky child custody by felony arrest warrant for the mother. In this regard there is no statute of limitations on custodial interference. The crime continues until the child is returned.
Congress created the PKPA specifically to address the issue of full faith a credit as applied to child custody determinations. 28 U.S.C. section1738A . The United States Supreme Court summarized the effect of PKPA in Thompson v. Thompson , 484 U.S.174, 177 (1988)
“Once a State exercises jurisdiction consistently with the provisions of the Act, no other State may exercise concurrent jurisdiction over the custody dispute, even if it would have been empowered to take jurisdiction in the first instance, and all State must accord full faith and credit to the first State’s ensuing custody.”
The Thompson Court also held that we have a protected liberty interest in maintaining the integrity of our families and the custody of our children, absent the unwarranted intrusion of the state. Longsuffering, indigent Appellant respectfully submits that the lengths the Honorable Sheila Farris has gone to deprive him of the comfort, society and custody of his son, after having been found fit and loving and the primary physical custodian of his son by Courts of two prior states is unwarranted intrusion by the state. See also; Miller-Jenkins v. Miller-Jenkins, 49 VA. APP. 88, 95
3. The purpose of the UCCJEA, and the federal PKPA are to deter parental child abductions, deter forum shopping, and the relitigation of child custody. The child was in Kentucky ONLY as a result of his abduction by his mother. That the trial court did not refuse to open these cases on the unclean hands of the mother is not just abuse of discretion. It is unconscionable. It violates every principle of the very acts which govern these proceedings. It violates public policy, and it violates the sensibilities of reasonable men and woman. It renders the law a travesty. Simply put: it is an outrage.
Child abduction is the grossest form of child abuse.
Not 1 day the child was in Kentucky as a result of parental child abduction can count toward “home state jurisdiction”. Not 1 day the child spent in Kentucky as a result of parental child abduction can be taken away from his lawful residence with his father, “step-mom” and 3 siblings. IT DEFIES COMMON SENSE and all we believe in as Americans.
4. With cavalier disregard for the best interest of the child, and gross abuse of its discretion, this trial court gave custody of a child to an ADMITTED child abuser. In her general appearance in the Michigan child custody case on or about October 4, 2011, the mother states:
“Per MCL 722.27©, the Court shall not issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.
- The child has now been with the mother for 10 months, which is an appreciable time during which the childnow naturally looks to the Defendant mother in that environment for guidance, discipline, the necessities of life, and parental comfort.
- ii. Although the beginning of this new environment occurred only because of the mothers actions in not returning the child………….”
It is the highest duty and responsibility of every court in the land to protect children. The fact is I supported my child and my family. The Honorable Sheila Farris gave custody of this abducted child putting another child on the welfare and food stamp roll.
(i) I believe the appeal involves a question of first impression in Kentucky: the jurisdictional nature of the “mandatory” child custody declaration, absent which, in sworn form the court does not have the information to open the case to determine if it even has threshold jurisdiction.
(j) Important to the case is KRS 403.838. The case law on this point is being researched currently. The case does not turn on such statute, for the Court could rule such is not jurisdictional (contrary to 40 years case law), and still rule the court acted absent jurisdiction by virtue that Michigan never vacated or dismissed.
The Kentucky Appellate Court in Mark Owen Biggs V Biggs, On appeal from and reversing the Honorable Sheila N. Farris found that “As Kentucky law is sparse in construing our counterpart of the UCCSEA, we have looked to our sister states for guidance. Michigan has also adopted the UCCJEA and its Court of Appeals recently found that a significant connection exists if “one parent resides in the state and exercises at least some parenting time in the state.” White v. Harrison-White, 760 N.W. 2d 691, 697. The court should note that the mother is now trying to prevent father from taking the minor to Michigan, though he has in the past, already having met the Michigan requirement. It remains to be seen if the Honorable Sheila Farris, unwarranted, further attempts to intrude into Appellant’s family life, and violate his constitutional rights absent due process of law.
(k) I have no knowledge of a case substantially the same, or involving an issue which is substantially the same, or similar or related to an issue in this appeal.
It is a hard pill to swallow having your child abducted………..and then for it appear that the abductor mother got away with it with the sanction and congratulations of the court! Father prepares now to effect custody modification by felony arrest warrant.
I apologize to the court. I will try in the future to generate light, not heat, in the hopes this court renders a decision which will prevent another abducted child to end up in Kentucky “The secret of change is to focus all your energy not into fighting the old, but in building the new.” Socrates
No prehearing conference is needed or requested. If such is required, permission to appear telephonically is hereby respectfully requested. Appellant requests the matter be submitted on briefs.
Respectfully Submitted this 15th day of March in Portland, Oregon
Certificate of service: On __________, 2013, I, _____________________ mailed by first class mail postage prepaid to
Kentucky Court of Appeals
360 Democrat Drive
Frankfort, KY 40601
Clerk of Family Court
5 N. Main St.
PO. Box 675
Henderson, Ky 42419-0675
117 West Second Street
Owensboro, Kentucky 42303
Attorney for Petitioner