ILNews

Child's 'home state' rules jurisdiction

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals ruled today Indiana courts have jurisdiction to modify custody agreements originally made in another state, as long as Indiana is considered the "home state" of the subject child.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."
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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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