2006 Indiana Code - CHAPTER 3. UNIFORM CHILD CUSTODY JURISDICTION LAW
IC 31-17-3Chapter 3. Uniform Child Custody Jurisdiction Law
IC 31-17-3-1
Purposes and construction of law
31-17-3-1 Sec. 1. Purposes and Construction of Law. (a) The
general purposes of this law are to:
(1) avoid jurisdictional competition and conflict with courts of
other states in matters of child custody which have in the past
resulted in the shifting of children from state to state with
harmful effects on their well-being;
(2) promote cooperation with the courts of other states to the
end that a custody decree is rendered in that state which can
best decide the case in the interest of the child;
(3) assure that litigation concerning the custody of a child take
place ordinarily in the state with which the child and his family
have the closest connection and where significant evidence
concerning his care, protection, training, and personal
relationships is most readily available, and that the courts of
this state decline the exercise of jurisdiction when the child and
his family have a closer connection with another state;
(4) discourage continuing controversies over child custody in
the interest of greater stability of home environment and of
secure family relationships for the child;
(5) deter abductions and other unilateral removals of children
undertaken to obtain custody awards;
(6) avoid re-litigation of custody decisions of other states in this
state insofar as feasible;
(7) facilitate the enforcement of custody decrees of other states;
and
(8) promote and expand the exchange of information and other
forms of mutual assistance between the courts of this state and
those of other states concerned with the same child.
(b) This chapter shall be construed to promote the general
purposes stated in this section.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-2
Definitions
31-17-3-2 Sec. 2. As used in this chapter:
(1) "contestant" means a person, including a parent, who claims
a right to custody or parenting time rights with respect to a
child;
(2) "custody determination" means a court decision and court
orders and instructions providing for the custody of a child,
including parenting time rights; it does not include a decision
relating to child support or any other monetary obligation of any
person;
(3) "custody proceeding" includes proceedings in which a
custody determination is one of several issues, such as an action
for dissolution of marriage, but does not include child in need
of services proceedings;
(4) "decree" or "custody decree" means a custody determination
contained in a judicial decree or order made in a custody
proceeding, and includes an initial decree and a modification
decree;
(5) "home state" means the state in which the child,
immediately preceding the time involved, lived with the child's
parents, a parent, or a person acting as parent, for at least six (6)
consecutive months, and in the case of a child less than six (6)
months old the state in which the child lived from birth with any
of the persons mentioned. Periods of temporary absence of any
of the named persons are counted as part of the six (6) month or
other period;
(6) "initial decree" means the first custody decree concerning a
particular child;
(7) "modification decree" means a custody decree which
modifies or replaces a prior decree, whether made by the court
which rendered the prior decree or by another court;
(8) "physical custody" means actual possession and control of
a child;
(9) "person acting as parent" means a person, other than a
parent, who has physical custody of a child and who has either
been awarded custody by a court or claims a right to custody;
and
(10) "state" means any state, territory, or possession of the
United States, the Commonwealth of Puerto Rico, and the
District of Columbia.
As added by P.L.1-1997, SEC.9. Amended by P.L.68-2005, SEC.37.
IC 31-17-3-3
Jurisdiction
31-17-3-3 Sec. 3. Jurisdiction. (a) A court of this state which is
competent to decide child custody matters has jurisdiction to make
a child custody determination by initial or modification decree if:
(1) this state (A) is the home state of the child at the time of
commencement of the proceeding, or (B) had been the child's
home state within six (6) months before commencement of the
proceeding and the child is absent from this state because of his
removal or retention by a person claiming his custody or for
other reasons, and a parent or person acting as parent continues
to live in this state;
(2) it is in the best interest of the child that a court of this state
assume jurisdiction because (A) the child and his parents, or the
child and at least one (1) contestant, have a significant
connection with this state, and (B) there is available in this state
substantial evidence concerning the child's present or future
care, protection, training, and personal relationships;
(3) the child is physically present in this state and the child has
been abandoned; or
(4) (A) it appears that no other state would have jurisdiction
under prerequisites substantially in accordance with paragraphs
(1), (2), or (3), or another state has declined to exercise
jurisdiction on the ground that this state is the more appropriate
forum to determine the custody of the child, and (B) it is in the
best interest of the child that this court assume jurisdiction.
(b) Except under paragraphs (3) and (4) of subsection (a) physical
presence in this state of the child, or of the child and one (1) of the
contestants, is not alone sufficient to confer jurisdiction on a court of
this state to make a child custody determination.
(c) Physical presence of the child, while desirable, is not
prerequisite for jurisdiction to determine his custody.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-4
Notice and opportunity to be heard
31-17-3-4 Sec. 4. Notice and Opportunity to be Heard. Before
making a decree under this chapter, reasonable notice and
opportunity to be heard shall be given to the contestants, any parent
whose parental rights have not been previously terminated, and any
person who has physical custody of the child. If any of these persons
is outside this state, notice and opportunity to be heard shall be given
pursuant to section 5 of this chapter.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-5
Notice to persons outside this state
31-17-3-5 Sec. 5. Notice to Persons Outside this State;
Submission to Jurisdiction. (a) Notice required for the exercise of
jurisdiction over a person outside this state shall be given in a
manner reasonably calculated to give actual notice, and may be:
(1) by personal delivery outside this state in the manner
prescribed for service of process within this state;
(2) in the manner prescribed by the law of the place in which
the service is made for service of process in that place in an
action in any of its courts of general jurisdiction;
(3) by any form of mail addressed to the person to be served and
requesting a receipt; or
(4) as directed by the court.
(b) Notice under this section shall be served, mailed, or delivered,
at least twenty (20) days before any hearing in this state.
(c) Proof of service outside this state may be made by affidavit of
the individual who made the service, or in the manner prescribed by
the law of this state, the order pursuant to which the service is made,
or the law of the place in which the service is made. If service is
made by mail, proof may be a receipt signed by the addressee or
other evidence of delivery to the addressee.
(d) Notice is not required if a person submits to the jurisdiction of
the court.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-6
Simultaneous proceedings in other states
31-17-3-6 Sec. 6. Simultaneous Proceedings in Other States. (a)
A court of this state shall not exercise its jurisdiction under this
chapter if at the time of filing the petition a proceeding concerning
the custody of the child was pending in a court of another state
exercising jurisdiction substantially in conformity with this chapter,
unless the proceeding is stayed by the court of the other state because
this state is a more appropriate forum or for other reasons.
(b) Before hearing the petition in a custody proceeding the court
shall examine the pleadings and other information supplied by the
parties under section 9 of this chapter and shall consult the child
custody registry established under section 16 of this chapter
concerning the pendency of proceedings with respect to the child in
other states. If the court has reason to believe that proceedings may
be pending in another state it shall direct an inquiry to the state court
administrator or other appropriate official of the other state.
(c) If the court is informed during the course of the proceeding
that a proceeding concerning the custody of the child was pending in
another state before the court assumed jurisdiction it shall stay the
proceeding and communicate with the court in which the other
proceeding is pending to the end that the issue may be litigated in the
more appropriate forum and that information be exchanged in
accordance with sections 19 through 22 of this chapter. If a court of
this state has made a custody decree before being informed of a
pending proceeding in a court of another state it shall immediately
inform that court of the fact. If the court is informed that a
proceeding was commenced in another state after it assumed
jurisdiction it shall likewise inform the other court to the end that the
issues may be litigated in the more appropriate forum.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-7
Inconvenient forum
31-17-3-7 Sec. 7. Inconvenient Forum. (a) A court which has
jurisdiction under this chapter to make an initial or modification
decree may decline to exercise its jurisdiction any time before
making a decree if it finds that it is an inconvenient forum to make
a custody determination under the circumstances of the case and that
a court of another state is a more appropriate forum.
(b) A finding of inconvenient forum may be made upon the court's
own motion or upon motion of a party or a guardian ad litem or other
representative of the child.
(c) In determining if it is an inconvenient forum, the court shall
consider if it is in the interest of the child that another state assume
jurisdiction. For this purpose it may take into account the following
factors, among others:
(1) if another state is or recently was the child's home state;
(2) if another state has a closer connection with the child and
his family or with the child and one (1) or more of the
contestants;
(3) if substantial evidence concerning the child's present or
future care, protection, training, and personal relationships is
more readily available in another state;
(4) if the parties have agreed on another forum which is no less
appropriate; and
(5) if the exercise of jurisdiction by a court of this state would
contravene any of the purposes stated in section 1 of this
chapter.
(d) Before determining whether to decline or retain jurisdiction
the court may communicate with a court of another state and
exchange information pertinent to the assumption of jurisdiction by
either court with a view to assuring that jurisdiction will be exercised
by the more appropriate court and that a forum will be available to
the parties.
(e) If the court finds that it is an inconvenient forum and that a
court of another state is a more appropriate forum, it may dismiss the
proceedings, or it may stay the proceedings upon condition that a
custody proceeding be promptly commenced in another named state
or upon any other conditions which may be just and proper,
including the condition that a moving party stipulate his consent and
submission to the jurisdiction of the other forum.
(f) The court may decline to exercise its jurisdiction under this
chapter if a custody determination is incidental to an action for
dissolution of marriage or another proceeding while retaining
jurisdiction over the dissolution of marriage or other proceeding.
(g) If it appears to the court that it is clearly an inappropriate
forum it may require the party who commenced the proceedings to
pay, in addition to the costs of the proceedings in this state, necessary
travel and other expenses, including attorneys' fees, incurred by other
parties or their witnesses. Payment is to be made to the clerk of the
court for remittance to the proper party.
(h) Upon dismissal or stay of proceedings under this section the
court shall inform the court found to be the more appropriate forum
of this fact, or if the court which would have jurisdiction in the other
state is not certainly known, shall transmit the information to the
court administrator or other appropriate official for forwarding to the
appropriate court.
(i) Any communication received from another state informing this
state of a finding of inconvenient forum because a court of this state
is the more appropriate forum shall be filed in the custody registry of
the appropriate court. Upon assuming jurisdiction the court of this
state shall inform the original court of this fact.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-8
Denial of jurisdiction
31-17-3-8 Sec. 8. Denial of Jurisdiction. (a) If the petitioner for an
initial decree has wrongfully taken the child from another state or has
engaged in similar reprehensible conduct the court may decline to
exercise jurisdiction if this is just and proper under the
circumstances.
(b) Unless required in the interest of the child, the court shall not
exercise its jurisdiction to modify a custody decree of another state
if the petitioner, without consent of the person entitled to custody,
has improperly removed the child from the physical custody of the
person entitled to custody or has improperly retained the child after
parenting time or other temporary relinquishment of physical
custody. If the petitioner has violated any other provision of a
custody decree of another state the court may decline to exercise its
jurisdiction if this is just and proper under the circumstances.
(c) In appropriate cases a court dismissing a petition under this
section may charge the petitioner with necessary travel and other
expenses, including attorney's fees, incurred by other parties or their
witnesses.
As added by P.L.1-1997, SEC.9. Amended by P.L.68-2005, SEC.38.
IC 31-17-3-9
Information to be submitted under oath
31-17-3-9 Sec. 9. (a) Every party in a custody proceeding, other
than an action for dissolution of marriage, in the first pleading or in
an affidavit attached to that pleading shall give information under
oath as to the child's present address, the places where the child has
lived within the last five (5) years, and the names and present
addresses of the persons with whom the child has lived during that
period. In this pleading or affidavit every party shall further declare
under oath whether the party:
(1) has participated (as a party, witness, or in any other
capacity) in any other litigation concerning the custody of the
same child in this or any other state;
(2) has information of any custody proceeding concerning the
child pending in a court of this or any other state; and
(3) knows of any person not a party to the proceedings who has
physical custody of the child or claims to have custody, or
parenting time rights with respect to the child.
(b) If the declaration as to any of the above items is in the
affirmative the declarant shall give additional information under oath
as required by the court. The court may examine the parties under
oath as to details of the information furnished and as to other matters
pertinent to the court's jurisdiction and the disposition of the case.
(c) Each party has a continuing duty to inform the court of any
custody proceeding concerning the child in this or any other state of
which the party obtained information during this proceeding.
As added by P.L.1-1997, SEC.9. Amended by P.L.68-2005, SEC.39.
IC 31-17-3-10
Additional parties
31-17-3-10 Sec. 10. Additional Parties. If the court learns from
information furnished by the parties pursuant to section 9 of this
chapter or from other sources that a person not a party to the custody
proceeding has physical custody of the child or claims to have
custody, or parenting time rights with respect to the child, it shall
order that person to be joined as a party and to be duly notified of the
pendency of the proceeding and of the person's joinder as a party. If
the person joined as a party is outside this state the person shall be
served with process or otherwise notified in accordance with section
5 of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.68-2005, SEC.40.
IC 31-17-3-11
Appearance of parties and child
31-17-3-11 Sec. 11. Appearance of the Parties and the Child. (a)
The court may order any party to the proceeding who is in this state
to appear personally before the court. If that party has physical
custody of the child the court may order that he appear personally
with the child.
(b) If a party to the proceeding whose presence is desired by the
court is outside this state with or without the child the court may
order that the notice given under section 5 of this chapter include a
statement directing that party to appear personally with or without
the child and declaring that failure to appear may result in a decision
adverse to that party.
(c) If a party to the proceeding who is outside this state is directed
to appear under subsection (b) or desires to appear personally before
the court with or without the child, the court may require another
party to pay to the clerk of the court travel and other necessary
expenses of the party so appearing and of the child if this is just and
proper under the circumstances.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-12
Binding force and res judicata effect of custody decree
31-17-3-12 Sec. 12. Binding Force and Res Judicata Effect of
Custody Decree. A custody decree rendered by a court of this state
which had jurisdiction under section 3 of this chapter binds all
parties who have been served in this state or notified in accordance
with section 5 of this chapter or who have submitted to the
jurisdiction of the court, and who have been given an opportunity to
be heard. As to these parties the custody decree is conclusive as to all
issues of law and fact decided and as to the custody determination
made unless and until that determination is modified pursuant to law,
including the provisions of this chapter.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-13
Recognition of out-of-state custody decrees
31-17-3-13 Sec. 13. Recognition of Out-of-State Custody Decrees.
The courts of this state shall recognize and enforce an initial or
modification decree of a court of another state which had assumed
jurisdiction under statutory provisions substantially in accordance
with this chapter or which was made under factual circumstances
meeting the jurisdictional standards of this chapter, so long as this
decree has not been modified in accordance with jurisdictional
standards substantially similar to those of this chapter.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-14
Modification of custody decree of another state
31-17-3-14 Sec. 14. Modification of Custody Decree of Another
State. (a) If a court of another state has made a custody decree, a
court of this state shall not modify that decree unless (1) it appears
to the court of this state that the court which rendered the decree does
not now have jurisdiction under jurisdictional prerequisites
substantially in accordance with this chapter or has declined to
assume jurisdiction to modify the decree and (2) the court of this
state has jurisdiction.
(b) If a court of this state is authorized under section 8(a) of this
chapter to modify a custody decree of another state it shall give due
consideration to the transcript of the record and other documents of
all previous proceedings submitted to it in accordance with section
22 of this chapter.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-15
Filing and enforcement of custody decree of another state
31-17-3-15 Sec. 15. Filing and Enforcement of Custody Decree of
Another State. (a) A certified copy of a custody decree of another
state may be filed in the office of the clerk of any circuit court of this
state. The clerk shall treat the decree in the same manner as a custody
decree of a circuit or superior court, or any court of this state which
is competent to decide child custody matters. A custody decree so
filed has the same effect and shall be enforced in like manner as a
custody decree rendered by a court of this state.
(b) A person violating a custody decree of another state which
makes it necessary to enforce the decree in this state may be required
to pay necessary travel and other expenses, including attorneys' fees,
incurred by the party entitled to the custody or his witnesses.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-16
Registry of out-of-state custody decrees and proceedings
31-17-3-16 Sec. 16. Registry of Out-of-State Custody Decrees and
Proceedings. The clerk of each circuit court shall maintain a registry
in which he shall enter the following:
(1) certified copies of custody decrees of other states received
for filing;
(2) communications as to the pendency of custody proceedings
in other states;
(3) communications concerning a finding of inconvenient forum
by a court of another state; and
(4) other communications or documents concerning custody
proceedings in another state which may affect the jurisdiction
of a court of this state or the disposition to be made by it in a
custody proceeding.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-17
Certified copies of custody decree
31-17-3-17 Sec. 17. Certified Copies of Custody Decree. The
clerk of the circuit court of this state, at the request of the court of
another state or at the request of any person who is affected by or has
a legitimate interest in a custody decree, shall certify and forward a
copy of the decree to that court or person.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-18
Taking testimony in another state
31-17-3-18 Sec. 18. Taking Testimony in Another State. In
addition to other procedural devices available to a party, any party to
the proceeding or a guardian ad litem or other representatives of the
child may adduce testimony of witnesses, including parties and the
child, by deposition or otherwise, in another state. The court on its
own motion may direct that the testimony of a person be taken in
another state and may prescribe the manner in which and the terms
upon which the testimony shall be taken.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-19
Hearings and studies in another state; orders to appear
31-17-3-19 Sec. 19. Hearings and Studies in Another State;
Orders to Appear. (a) A court of this state may request the
appropriate court of another state to hold a hearing to adduce
evidence, to order a party to produce or give evidence under other
procedures of that state, or to have social studies (an investigation
and report pursuant to IC 31-17-2-12) made with respect to the
custody of a child involved in proceedings pending in the court of
this state; and to forward to the court of this state certified copies of
the transcript of the record of the hearing, the evidence otherwise
adduced, or any social studies prepared in compliance with the
request. The cost of the services may be assessed against the parties,
or, if necessary, ordered paid by the county.
(b) A court of this state may request the appropriate court of
another state to order a party to custody proceedings pending in the
court of this state to appear in the proceedings, and if that party has
physical custody of the child, to appear with the child. The request
may state that travel and other necessary expenses of the party and
of the child whose appearance is desired will be assessed against
another party or will otherwise be paid.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-20
Assistance to courts of other states
31-17-3-20 Sec. 20. Assistance to Courts of Other States. (a)
Upon request of the court of another state, the courts of this state
which are competent to hear custody matters may order a person in
this state to appear at a hearing to adduce evidence or to produce or
give evidence under other procedures available in this state or may
order social studies to be made for use in a custody proceeding in
another state. A certified copy of the transcript of the record of the
hearing or the evidence otherwise adduced and any social studies
prepared shall be forwarded by the clerk of the court to the
requesting court.
(b) A person within this state may voluntarily give his testimony
or statement in this state for use in a custody proceeding outside this
state.
(c) Upon request of the court of another state a competent court
of this state may order a person in this state to appear alone or with
the child in a custody proceeding in another state. The court may
condition compliance with the request upon assurance by the other
state that travel and other necessary expenses will be advanced or
reimbursed.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-21
Preservation of documents for use in other states
31-17-3-21 Sec. 21. Preservation of Documents for Use in Other
States. In any custody proceeding in this state the court shall preserve
the pleadings, orders and decrees, any record that has been made of
its hearings, social studies, and other pertinent documents until the
child becomes twenty-one (21) years of age. Upon appropriate
request of the court of another state the court shall forward to the
other court certified copies of any or all of such documents.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-22
Request for court records of another state
31-17-3-22 Sec. 22. Request for Court Records of Another State.
If a custody decree has been rendered in another state concerning a
child involved in a custody proceeding pending in a court of this
state, the court of this state upon taking jurisdiction of the case shall
request of the court of the other state a certified copy of the transcript
of any court record and other documents mentioned in section 21 of
this chapter.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-23
International application
31-17-3-23 Sec. 23. The general policies of this chapter extend to
the international area. Except as provided in section 25 of this
chapter, the provisions of this chapter relating to the recognition and
enforcement of custody decrees of other states apply to custody
decrees and decrees involving legal institutions similar in nature to
custody rendered by appropriate authorities of other nations if
reasonable notice and opportunity to be heard were given to all
affected persons.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-24
Priority
31-17-3-24 Sec. 24. Priority. Upon the request of a party to a
custody proceeding which raises a question of existence or exercise
of jurisdiction under this chapter the case shall be given calendar
priority and handled expeditiously.
As added by P.L.1-1997, SEC.9.
IC 31-17-3-25
Foreign decrees; modification; jurisdiction; procedure
31-17-3-25 Sec. 25. (a) Notwithstanding sections 3, 7, and 8 of
this chapter, a court of this state has jurisdiction to make a child
custody and support determination by modification decree if:
(1) the child is a citizen of the United States;
(2) a determination concerning the custody of the child has been
made by a court in another nation;
(3) the child is physically present in this state; and
(4) there is a reasonable probability that the child will be moved
outside of the United States if a determination concerning the
custody of the child made by a court in another nation is given
effect in the United States.
(b) If a court has jurisdiction to make a child custody and support
determination under subsection (a), a parent or guardian of a child,
may file a petition seeking a modification decree concerning the
custody and support of the child. The petition must be entitled "In re
the modification of a determination concerning the custody and
support of ___________". The petition shall be verified and must set
forth:
(1) the relationship of the parties;
(2) the present residence of each party;
(3) the name, age, and address of each child who will be
affected by the modification decree sought under this
subsection;
(4) a statement that the court has jurisdiction to make a child
custody and support determination under subsection (a); and
(5) the relief sought.
A responsive pleading or a counter petition may be filed under this
subsection. Proceedings provided for in this subsection must comply
with the Indiana Rules of Trial Procedure.
(c) The court shall hold a hearing on the petition filed under
subsection (b). At the hearing, the court shall hear evidence to
determine whether the child custody and support determination
should be modified. In making this determination, the court shall
base its decision upon the best interests of the child, considering all
relevant factors, including the factors set out in IC 31-16-6-1.
As added by P.L.1-1997, SEC.9.
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