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The Indiana Court of Appeals ruled today Indiana courts have jurisdiction to modify custody agreements originally made in another state, as long as Indiana is considered the "home state" of the subject child.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. 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!!!

  2. 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.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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