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Decision upheld in Oklahoma-Indiana custody dispute

January 25, 2018

An Oklahoma couple seeking custody of a child with ties to both the western state and Indiana have lost their Hoosier appeal, with the Indiana Court of Appeals determining an Indiana trial court properly exercised jurisdiction and awarded custody of the child to his mother.

After Amanda Fisher and Brandon Hockett moved to Oklahoma with their son, B.H., Hockett’s mother and stepfather, Michael and Caryn Hays, began to regularly watch and care for the child. The couple returned to Indiana in 2015, but the Hayses periodically kept B.H. so the parents could work on their marriage.

By the end of 2015, Hockett had returned to Oklahoma and the couple had had filed for divorce. An Oklahoma court determined that neither Oklahoma nor Indiana qualified as B.H.’s home state for jurisdictional purposes, but the Perry Circuit Court chose to exercise jurisdiction because Fisher had filed for divorce in Indiana first.

The Hayses were permitted to intervene in the case to seek custody of B.H., which they were preliminarily granted. But when it entered the final dissolution decree, the trial court granted legal custody to Fisher. The Hayses then filed a series of motions requesting that Fisher provide them with an all-purpose consent-to-treat form so B.H. could receive medical treatment while in their care. One of those motions was a motion to compel and a request for attorney fees related to that motion.

An Indiana Court of Appeals motions panel ordered Fisher to provide the requested form and remanded for attorney fees, which the trial court awarded the Hayses in the amount of $1,365. The couple, however, had requested more than $6,000 in fees.

The Hayses appealed the attorney fees award and the custody decision, but the Indiana Court of Appeals upheld the trial court’s rulings on Thursday, with Judge Paul Mathias determining the Perry Circuit Court had subject matter jurisdiction to hear the custody action. Mathias noted Indiana Supreme Court precedent has declined to refer to jurisdiction under Uniform Child Custody Jurisdiction Act as a question of subject matter jurisdiction, as the Hayses did in their appellate argument.

Because the Hayses framed their argument as one of jurisdiction rather than procedural error, Mathias said they waived that argument on appeal. But waiver notwithstanding, there was no error in the trial court’s decision to hear the case under Indiana Code section 31-21-5-1(2), he said.

The appellate court then upheld the trial court’s custody decision, with Mathias pointing to Fisher’s gainful employment, benefits, successful drug screens and other positive developments in her life at the time of the dispositional order. Finally, the judges upheld the Hayses’ attorney fee award, finding that much of the work their counsel had billed involved correspondence, reviewing case law related to attorney fees and correcting the motion to compel.

Those tasks were not included in the appellate court’s remand order regarding fees, Mathias said, and nothing in the order allowed for such tasks to be included.

The case is Michael Hays and Caryn Hays v. Amanda Hockett, 62A01-1612-DR-2910.

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