Custody Jurisdiction: Barwick v. Ceruti, 31 N.E.3d 1008 (Ind. Ct. App. 2015)

Barwick v. Ceruti, 31 N.E.3d 1008 (Ind. Ct. App. 2015)[1]

In Barwick, the Court of Appeals addressed whether an Indiana trial court had jurisdiction over a child custody proceeding that awarded custody to Father when a concurrent custody proceeding was pending in Canada.

In Barwick, Mother arrived in Indiana from Canada in March 2013 and moved in with Father. Six weeks later, Mother was pregnant and Father and Mother were married in May 2013. On June 18, 2013, Father filed for divorce in Indiana. Mother returned to Canada shortly thereafter. On December 2, 2013, the Indiana court issued an Order finding that the child was not yet born, that there was no case pending in Canada, that Father had never been to Canada, that the child was conceived in Indiana, and Father had a business in Indiana. The Indiana court found that based upon the Uniform Child Custody Jurisdiction Act (UCCJA), it had jurisdiction over the issue of custody and awarded Father "full and co-equal parenting time rights with regard to the child when born." The child was born on December 11, 2013.

On December 20, 2013, the Canadian court issued an ex parte order that the child was to reside with Mother and not be removed from Canada. On March 19, 2014, the Canadian court found that it had jurisdiction over the custody of the child and that although there was a custody order from Indiana, the order was issued prior to the child being born and was "of no force or effect" in Canada. This Order was affirmed on appeal in Canada.

On July 10, 2014, the Indiana court dissolved the parties' marriage and determined custody. The Indiana court found that Indiana was the appropriate forum to hear the case and awarded custody to the Father. Mother appealed in Indiana, claiming that the Indiana court had no jurisdiction and, even if it did, should have declined to exercise jurisdiction, pursuant to the UCCJA.

The Court of Appeals affirmed the Indiana custody order in favor of the Father. First, it concluded that Mother waived appellate review by conceding, in a filing before the Indiana court, that the Indiana court had "ongoing jurisdiction over the subject matter and parties in this cause of action" after Father raised the issue of custody.

Waiver notwithstanding, the Indiana Court of Appeals concluded that the Indiana court properly exercised jurisdiction under the UCCJA. The Indiana court's December 2013 order addressing "parenting time", filed before any proceeding was initiated in Canada, was a "custody order" under the UCCJA and the Indiana court obtained exclusive and continuing jurisdiction at that time.

Further, the Indiana court appropriately considered the statutory factors set forth in Indiana Code § 31-21-5-8 in determining that it was the appropriate forum. The Court of Appeals concluded that the Indiana court's decision was consistent with the two primary purposes of the UCCJA; discouraging forum shopping and protecting the best interests of the child.

[1] In the interest of full disclosure, the author represented the Father in the proceedings before the Indiana Court of Appeals.  

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