DISSENTING:
I respectfully dissent from my colleagues’ conclusion that it is necessary and proper to grant the Writ of Prohibition filed by the Father. Kentucky law has consistently held that before an extraordinary writ of prohibition may be issued, it must be shown either that:
(1) The lower court is proceeding or is about to proceed outside its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about *784to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004).
Certainly there-cannot be any dispute that the Campbell Family Court was acting within its jurisdiction. The focus, therefore, has to be on whether the lower court was acting erroneously, whether there exists no adequate remedy by appeal, and whether irreparable injury will result if the petition is not granted. The facts of this case do not support any of these findings.
It is important to remember how this matter arrived before this Court and what legal hearing the Petitioner (Father) was trying to prevent. The Father is a member of the military who was deployed in October of 2014. He and the Real Party in Interest, (the Mother), enjoyed joint custody of them son with the Father having custodial responsibility during the school year. Prior to father’s deployment he unilaterally designated his father, the child’s paternal grandfather, as the child’s caretaker during his deployment. Two months after his deployment, Mother filed a motion for custody. In response, father, through counsel, filed a motion to stay the custody proceedings citing the Service-members Civil Relief Act contained in 50 App. U.S.C.A. § 501, et seq.
The Family Court denied the motion to stay the proceedings and set a hearing for January 5, 2015. On the date of the custodial hearing, Father filed this present petition for Writ of Prohibition in this Court. The trial court was aware of the filing, but conducted the hearing in the absence of any contrary order from this Court. It should be noted that, at the custodial hearing, the Father’s attorney and the paternal Grandfather were also present and were given an opportunity to defend.
On January 6, 2015, Father filed an emergency motion in'this Court to prohibit the Family Court from entering an order following the hearing. But again, with no forthcoming order, the Family Court entered its order on January 6, 2015, granting temporary primary custody to Mother. Father filed a notice of appeal on February 3, 2015, from the order granting temporary custody to the Mother:
As an initial matter, the Father has not clearly shown that the Family Court was acting erroneously by denying a stay of proceedings under the Servicemembers Civil Relief Act. The applicable stay provisions of the Act are set out in 50 App. U.S.C.A. § 522(b) as follows:
(b) Stay of proceedings
(1) Authority for stay
At any stage before final judgment in a civil action or proceeding in which a servieemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servieemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.
(2) Conditions for stay
An application for a stay under paragraph (1) shall include the following:
(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemem-ber’s ability to appear and stating a date when the servieemember will be available to appear.
(B) A letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military, leave is not au*785thorized for the servicemember at the time of the letter.
The majority takes the position that the stay is mandatory once the servicemember properly invokes the Act. But in interpreting the predecessor version of the Act, the United States Supreme Court reached a contrary conclusion, holding that the Act cannot be construed to require a continuance on a mere showing that the applicant was in military service at the time of the proceeding. Boone v. Lightner, 319 U.S. 561, 568, 63 S.Ct. 1223, 1226, 87 L.Ed. 1587 (1943). Rather, a trial court has the discretion to require the applicant to prove prejudice if the stay is not granted.
The Act makes no express provision as to who must carry the burden of showing that a party will or will not be prejudiced, in pursuance no doubt of its policy of making the law flexible to meet the great variety of situations no legislator and no court is wise enough to foresee. We, too, refrain from declaring any rigid doctrine of burden of proof in this matter, believing that courts called upon to use discretion will usually have enough sound sense to know from what direction their information should be expected to come. One case may turn on an issue of fact as to which the party is an important witness, where it only appears that he is in service at a remote place or at a place unknown. The next may involve an accident caused by one of his family using his car with his permission, which he did not witness, and as to which he is fully covered by insurance. Such a nominal defendant’s absence in military service in Washington might be urged by the insurance company, the real defendant, as ground for deferring trial until after the war. To say that the mere fact of a party’s military service has the same significance on burden of persuasion in the two contexts would be to put into the Act through a burden of proof theory the rigidity and lack of discriminating application which Congress sought to remove by making stays discretionary. We think the ultimate discretion includes a discretion as to whom the court may ask to come forward with facts needful to a fair judgment. ■
Id. at 569-70, 63 S.Ct. at 1228-29.
Since Boone v. Lightner, the overwhelming weight of authority has consistently recognized the broad discretion vested in trial courts to determine whether to grant a stay under the Act. See, e.g., In re Burrell, Bkrtcy., 230 B.R. 309 (Bankr.E.D.Tex.1999); Shelor v. Shelor, 259 Ga. 462, 383 S.E.2d 895 (1989); Bond v. Bond, 547 S.W.2d 43 (Tex.Civ.App.1976); Tabor v. Miller, 389 F.2d 645 (3d Cir.1968); Slove v. Strohm, 94 Ill.App.2d 129, 236 N.E.2d 326 (Ill.App.1968); Runge v. Fleming, 181 F.Supp. 224 (N.D.Iowa 1960); Cadieux v. Cadieux, 75 So.2d 700 (Fla.1954); Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952); State ex rel. Stenstrom v. Wilson, 234 Minn. 570, 48 N.W.2d 513 (1951); Huckaby v. Oklahoma Office Bldg. Co., 201 Okla. 141, 202 P.2d 996 (1949); Rauer’s Law & Collection Co. v. Higgins, 76 Cal.App.2d 854, 174 P.2d 450 (1946); State v. Goldberg, 161 Kan. 174, 166 P.2d 664 (1946); People ex rel. Flanders v. Neary, 113 Colo. 12, 154 P.2d 48 (1944); Van Doeren v. Pelt, 184 S.W.2d 744 (Mo.App.1945); Gross v. Williams, 149 F.2d 84 (8th Cir.1945); and Konstantino v. Curtiss-Wright Corporation, 52 F.Supp. 684 (W.D.N.Y.1943). Even prior to Boone v. Lightner, Kentucky’s highest court also recognized the extent of the trial court’s discretion in granting a stay. Fennell v. Frisch’s Adm’r, 192 Ky. 535, 234 S.W. 198 (1921).
In the present case, the trial court held a hearing and denied the motion for a stay. *786The trial court found that the Father’s interests were adequately protected by counsel and by his power of attorney (Grandfather). Both were present at the January 5, 2015 hearing, presented evidence for Father and cross-examined witnesses. There is no suggestion in the motion that' Father was prevented from defending the proceeding. Under the circumstances, the trial court had the discretion to deny the Father’s motion for a stay. And given the limited record before us, I do not believe it is appropriate to disturb that finding when ruling on a writ.
But even if we were to find an abuse of discretion at this point, I disagree with the majority that the Father lacks an adequate remedy by appeal. The trial court conducted a temporary custody hearing and entered an order granting temporary primary residential custody to the Real Party in Interest. It is my understanding that post-decree orders that modify child custody are final and appealable. Gates v. Gates, 412 S.W.2d 223 (Ky.1967).
The Family Court made two significant findings in its January 6, 2014 order: (1) The Father’s unilateral designation of the paternal grandfather as caretaker of the child cannot defeat the Mother’s joint custodial status and (2) the Father simply cannot be the physical custodian of the child while he is deployed. I also note that the trial court’s order provided that the change of joint custody would only be temporary and residential custody would revert back to the Father on his return. These findings are on appeal before this very Court. Under Kentucky law, a writ cannot be used as a substitute for an appeal. National Gypsum Co. v. Corns, 736 S.W.2d 325, 326 (Ky.1987). Therefore, I am of the opinion that the Father has failed to demonstrate the lack of an adequate remedy by appeal.
And most importantly, I disagree with the majority that a disputed child custody determination amounts to irreparable injury. In Lee v. George, 369 S.W.3d 29 (Ky.2012), our Supreme Court stated:
This injury is no different from the result in every custody case in which a parent does not get what he or she requested. While the Court recognizes Appellant’s desire to spend more time with his children and to have more control over important decisions about their lives, his claimed injuries are simply not the kind of injuries that justify issuing an extraordinary writ. Indeed, if they were, the appellate courts would be awash with writ petitions in domestic cases. Yet, as we have noted time and again, the extraordinary writs are no substitute for the ordinary appellate process, and the interference with the lower courts required by such a remedy is to be avoided whenever possible.
Id. at 34.
I fully agree with the trial court that the Servicemembers Civil Relief Act does not alter the custodial rights of parents. In this case, Father and Mother each have joint custody of the child. There is no dispute that the Mother is a fit and proper person to have custody. And in the Father’s absence, the Mother’s rights as a joint custodian must take precedence over any non-parent. Pennington v. Marcum, 266 S.W.3d 759, 763 (Ky.2008).
The majority suggests that that the trial court’s order causes irreparable injury due to the disruptive effect on this child’s life. I have no doubt that even a temporary move to Montana may cause significant distress to this child, who has difficulty adapting to new situations. However, the trial court noted that the Mother has access to support services in Montana to assist in the child’s adjustment during the period while Father is deployed overseas.
*787And more to the point, any disruption to the child has already occurred. By granting this writ, this Court is directing that the child be returned immediately to Kentucky and placed in the physical custody of a non-parent. We are not correcting a wrong - we are simply making a difficult situation even harder for the young man who is the subject of this dispute. I am unwilling to be a part of such a result.
Accordingly, I dissent.