ILNews

Child's 'home state' rules jurisdiction

Jennifer Nelson
January 1, 2007
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The Indiana Court of Appeals ruled today Indiana courts have jurisdiction to modify custody agreements originally made in another state, as long as Indiana is considered the "home state" of the subject child.

In the case, In Re: The Marriage of Barbara Kenda and Boris Pleskovic, 71A03-0701-CV-34, Kenda, the mother of A.P.K., appealed a custody modification order awarding Pleskovic, the child's father, custody of A.P.K. Kenda contends the trial court in Indiana did not have jurisdiction to modify and abused its discretion in modifying the custody agreement when it awarded sole legal and primary physical custody of A.P.K. to Pleskovic.

The parents of A.P.K. were divorced in 2002, while residing in the District of Columbia. The D.C. court ordered the mother to have sole physical custody and the parties to have joint legal custody of A.P.K.; the court also granted the father parenting time.

During the next few years, Kenda relocated several times, including to South Bend in August 2002 to become a professor at the University of Notre Dame. Until the summer of 2005, Pleskovic made arrangements to visit the child and often would take care of A.P.K. when Kenda was busy with work or sick. In the summer of 2005, after Pleskovic returned from a trip with A.P.K. to Slovenia, the mother refused to allow Pleskovic to have unsupervised parenting time because of the child's behavioral changes. Pleskovic received a letter from Kenda's attorney in Washington, D.C., informing him to hire an attorney and he was not to speak with Kenda about visitation.

In October 2005, Kenda filed a motion in St. Joseph Superior Court to modify non-custodial parenting time. The motion also noted the court had jurisdiction to modify the custody agreement pursuant to the Uniform Child Custody Jurisdiction Act and Indiana Code 31-17-3 because Indiana is the child's "home state" and the child and his mother have a significant connection to Indiana and there is available evidence in the state concerning the child's present and future care, protection, and relationships.

The father filed a petition for modification of custody, parenting time, and child support and request for custody evaluation. The doctor who conducted the evaluation recommended the mother have physical custody of A.P.K.

The mother filed a notice of intent to move to London, England, in May 2006 with A.P.K. On May 5, 2006, the trial court granted father's petition to prohibit the child from leaving St. Joseph County without a court order, so the mother left the child with a family friend while she relocated to London to begin a new job.

During a visit with the mother in London, she enrolled the child in school and tried to prevent the child from going back to the U.S., which spawned numerous court filings in Indiana and England. The father filed an emergency petition for change of custody, which the Indiana trial court granted.

The Court of Appeals cites the Uniform Child Custody Jurisdiction Act and Indiana Code 31-17-3, in upholding the jurisdiction of Indiana courts to modify the custody order. Both parties have actively participated in proceedings in the court regarding the custody of the child and at the time the mother filed her original petition to modify the agreement, Indiana was her home state. The point of the UCCJA is to prevent parents from seeking favorable custody agreements in different jurisdictions. The Court of Appeals wrote the mother was not entitled to a reversal based on jurisdiction simply to "shop" for a more favorable forum.

In terms of the mother's appeal on the custody modification, a court may not modify a custody order unless it's in the child's best interest and there is a substantial change in one of several factors, such as the wishes of the child's parent or parents, the mental or physical health of all individuals involved, and evidence of domestic or family violence by either parent. The trial court noted a "substantial change in the relationship among the parties has occurred since the entry of the [Divorce] Decree", and that the mother's willful rebellion against the trial court's orders did play a significant part in the reasons for modifying custody. Judge L. Mark Bailey wrote in the 18-page opinion, "Fostering a child's relationship with the noncustodial parent is an important factor bearing on the child's best interest, and ideally, a child should have a well-founded relationship with each parent. When the custodial parent denies visitation rights to the other parent without evidence that the noncustodial parent is a threat to the child, it may be proper based upon these circumstances for the trial court to modify custody."
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

ADVERTISEMENT