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The Indiana Court of Appeals ruled today Indiana courts have jurisdiction to modify custody agreements originally made in another state, as long as Indiana is considered the "home state" of the subject child.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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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