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The Indiana Court of Appeals ruled today Indiana courts have jurisdiction to modify custody agreements originally made in another state, as long as Indiana is considered the "home state" of the subject child.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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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