31 N.E.3d 1008
Ind. Ct. App.2015Background
- Mother moved from Ontario to Fort Wayne, Indiana (Mar 2013), lived with Father, became pregnant, and they married in May 2013; Mother returned to Canada three months after arriving in Indiana.
- Father filed for dissolution (June 2013) and a motion to preserve/retain jurisdiction over custody of the unborn child; Mother participated by counsel and telephonically at an October 21, 2013 hearing.
- On December 2, 2013 the Indiana trial court, relying on the UCCJA and Stewart v. Vulliet, issued an order addressing the unborn child and awarded Father “full and co-equal parenting time” when the child was born, ordered Mother to list Father on the birth certificate, and to share medical information.
- Child K.M. was born December 11, 2013; Mother did not notify Father or list him on the birth certificate. On December 20, 2013 an Ontario court issued an ex parte order that K.M. reside with Mother and not be removed from Ontario; Canadian proceedings later found Ontario had jurisdiction.
- Indiana trial court (July 10, 2014) dissolved the marriage and awarded custody to Father, concluding Indiana had exclusive and continuing jurisdiction and was the appropriate forum. Mother appealed.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether Indiana obtained exclusive and continuing jurisdiction over custody | Indiana never issued a custody order before Canada’s December 20 order, so it lacked exclusive/continuing jurisdiction | Indiana issued a December 2 order granting parenting time (a custody determination), which vested exclusive/continuing jurisdiction | Held for Father: December 2 parenting-time order is a child-custody determination (visitational order), so Indiana acquired exclusive and continuing jurisdiction |
| Whether Indiana should have deferred to the Canadian court once Canada became involved | Trial court should have deferred because Canada issued ex parte order and later determined it had jurisdiction | Indiana could continue jurisdiction because it had previously made a custody determination and Indiana remained an appropriate forum | Held for Father: Court did not abuse discretion in retaining jurisdiction under UCCJA factors |
| Whether Mother waived jurisdictional objections | Mother contends jurisdictional challenge is valid despite prior participation | Father points to Mother’s express concession of ongoing jurisdiction and her telephonic participation | Held for Father: Mother waived appellate review by expressly conceding ongoing jurisdiction and participating in hearings |
| Whether Indiana was an appropriate (convenient) forum under UCCJA factors | Canada is the child’s home state and closer to the child’s residence, so Canada is more appropriate | Indiana is appropriate given conception/residence history, Father’s ties/resources, Mother’s noncompliance with orders, and limited bonds of the infant to Canada | Held for Father: Trial court did not abuse discretion; Indiana was a convenient forum and UCCJA goals (avoid forum shopping; protect child) supported retaining jurisdiction |
Key Cases Cited
- Stewart v. Vulliet, 888 N.E.2d 761 (Ind. 2008) (pre-birth filings can give a state custody jurisdiction; child-custody determination may be exclusive and continuing)
- Williams v. Williams, 555 N.E.2d 142 (Ind. 1990) (party’s express consent to court’s authority waives jurisdictional challenge)
- Bowles v. Bowles, 721 N.E.2d 1247 (Ind. Ct. App. 1999) (UCCJA interstate custody analysis: jurisdiction, pending proceedings elsewhere, and convenient forum)
- J.M. v. N.M., 844 N.E.2d 590 (Ind. Ct. App. 2006) (use of term “parenting time” as substitute for visitation)
- Ruppen v. Ruppen, 614 N.E.2d 577 (Ind. Ct. App. 1993) (broadly treating foreign countries as “states” under UCCJA jurisprudence)