Monday, October 8, 2007

From another state? Got a custody problem?

Last month, the Indiana Court of Appeals decided In Re: The Marriage of Barbara K and B P (PDF format). The case does not have the usual sort of facts for an Indiana case as the opening paragraph shows:

Mother and Father, both citizens of Slovenia, are the parents of A.P.K., who is now six years old. Mother and Father were married in Rome in 2000. At the time of their divorce on May 17, 2002, the parties resided in the District of Columbia. The District of Columbia Superior Court (“D.C. Court”) ordered that Mother would have sole physical custody and that the parties have joint legal custody of A.P.K. The D.C. Court’s order also granted Father parenting time, not to exceed seventy days per year.
The legal question revolved around the Uniform Child Custody Jurisdiction Act (UCCJA), but even for a UCCJA case these facts are not typical. Mother moved to South Bend from Washingotn, D.C. and then to London (the one in England, not Indiana). In addition to the Disrtict of Columbia Court, the wife also filed cases in Saint Joseph Superior Court (South Bend) and the English High Court of Justice. Mother argued on appeal that the St. Joseph County court lacked jurisdiction to give father custody of the parties' child. The Indiana Court of Appeals demolished her argument in these paragraphs:
One purpose of the UCCJA is to prevent parents from seeking custody in different jurisdictions in an attempt to obtain a favorable result. Ind. Code Ann. § 31-17-3-1 (West 2004). Mother’s backpedaling argument seeks to convolute the provisions of the UCCJA by asking this Court to invalidate the trial court’s ruling so that she may forum shop in the hope of obtaining her desired result. She has waived the issue in selecting Indiana as the state in which to litigate her dispute. She is not entitled to a reversal based on jurisdiction so that she may shop for a more favorable forum.

Waiver notwithstanding, the trial court did have the authority to modify the custody arrangement under the UCCJA. At the time Mother filed her petition, Indiana was the home state of A.P.K., because he resided in Indiana with Mother for more than six months prior to the filing. See Ind. Code Ann. § 31-17-3-3(a) (West 2004).6 Therefore, the trial court had the power to modify the original custody order.
Once a trial court determines that it has jurisdiction over an interstate custody case, the next question is about the custody order itself. I think the following cuts to the main point on custody made by the Court of Appeals:
Although Mother contends that the trial court failed to find a substantial change in one of the statutory factors, the trial court’s order reads that a “substantial change in the relationship among the parties has occurred since the entry of the [Divorce] Decree.” Appellant’s App. at 25. The findings of fact support this conclusion. It is true that Mother’s willful rebellion against the trial court’s prior orders did play a significant part in the reasons for modifying custody of A.P.K. However, it is not the mere violation but Mother’s purpose in her actions and their effect: She desired to prohibit Father from exercising parenting time that was not supervised by her, which resulted in Father being completely cut off from having a relationship with his son.
Still, reading pages 14-48 provides a good education about how not to handle one's self during a custody case.

Please feel free to contact me if you have an Indiana case involving interstate custody issues.

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