FARGO -- The custody of the 3-year-old daughter of slain Fargo dentist Philip Gattuso will be at issue in an Oklahoma court Monday, in a hearing to determine which state has the authority to decide who will care for the girl.
Roy Gattuso, the brother of Philip, said that lawyers for the Gattuso family will argue that North Dakota should settle the dispute over Kennedy Gattuso and take protective custody of her in the meantime.
Oklahoma courts granted an aunt on her mother's side emergency custody of Kennedy, which worries the Gattuso family because the girl's maternal grandfather has been charged in the murder of her father.
"I'll be as clear as I can be," Roy Gattuso said. "We are very concerned about Kennedy's safety, and we're very concerned about her well-being."
Regan Williams, the maternal aunt who has temporary custody of Kennedy, could not be reached and has not talked about the case publicly. Her attorney didn't return a phone message seeking comment.
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Kennedy was orphaned Oct. 26, when her father died after being hit in the head nine to 11 times with a hammer. Her mother, Valerie, died in March after an 18-month struggle to recover from heart surgery.
Police think Gattuso was murdered by Michael Allen Nakvinda, who worked for Gene Kirkpatrick, Valerie's father. Nakvinda has been charged with murder and Kirkpatrick with conspiracy to commit murder.
Kirkpatrick has admitted he paid Nakvinda $3,000 to murder Gattuso because he didn't like how the girl was being raised, police say.
Williams lives about a half-mile from Kirkpatrick and urged supporters in a Nov. 6 e-mail to ask prosecutors to try his criminal case in Oklahoma instead of Cass County.
Roy Gattuso said that he thinks that North Dakota should govern the custody dispute because it's where Kennedy has lived her entire life.
"This is where the child was born; this is where the child has been the last six months; this is where the child was enrolled in school," he said. "It's ludicrous for any other court to not see that."
Little public information is available about custody cases. Hearings and filings are private. It's not even known if attorneys for Cass County Social Services will be represented in Monday's hearing. Roy Gattuso said he couldn't say, and social services attorney Connie Cleveland didn't return a phone message.
But lawyers who handle custody cases say that the determination will be made using a law that's passed in all 50 states, the Uniform Child Custody Jurisdiction and Enforcement Act.
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One of the main factors the UCCJEA uses to figure which is the "home state" is where the child has lived the last six months, North Dakota in Kennedy's case.
That's why Fargo family law attorney Jason McLean thinks North Dakota will get jurisdiction.
"I still see it being North Dakota," he said.
However, there are other factors, said Mitchell Karpf, a Florida attorney who chairs the family law section of the American Bar Association.
While her mother stayed in Oklahoma while she was dying, Williams took care of Kennedy, family friends have said. That connection, plus the fact that the girl is already in the custody of Williams and has no other relatives in North Dakota, could mean that Oklahoma will get jurisdiction.
"For the time being, it just seems to make a lot more sense," Karpf said.
The jurisdiction hearing on Monday probably comes after judges from both states discussed the case and decided a hearing was needed to determine jurisdiction, Karpf said. In this sort of situation, a state-appointed guardian ad litem -- an attorney or a psychologist -- would most likely be responsible for representing the best interests of Kennedy, he said.
The custody issue would be clearer if Gattuso had named a guardian in his will, which his brother said he didn't. McLean said the uncommon case of having both parents deceased also makes the case difficult to predict.
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"That's very rare. This is the first one like this that I've seen," McLean said.
The family connection that worries the Gattusos will matter, though a judge could address the concerns with court-ordered restrictions on who can contact Kennedy, Karpf said.
"I think for sure a judge has to be cognizant of that and look at that," he said of the murder charges against Kirkpatrick.
No matter which state has jurisdiction, Karpf said a "full-blown custody battle" would likely play out -- which can mean a barrage of discovery, including the testimony of psychologists.
"It would take awhile," he said.
Dave Roepke is a reporter at The Forum of Fargo-Moorhead, which is owned by Forum Communications Co.
