Indiana, not Canada, has jurisdiction over child custody dispute

An Indiana court retains jurisdiction over matters involving a child conceived in Indiana but born in Canada after her mother returned to Canada following the breakup of her one-month marriage to the child’s father, the Indiana Court of Appeals ruled Monday. It affirmed the award by the Indiana court that father have custody of the girl.

Jennifer Barwick moved to Fort Wayne in March 2013 to be with Joseph Ceruti. She became pregnant six weeks later, and the two wed in May 2013 in Florida. By June 2013, the couple had separated and filed for divorce. Barwick returned to Windsor, Canada, but consented before the birth of her child to the Indiana court retaining jurisdiction over the divorce and child custody matters.

The trial court awarded father full and co-equal parenting time rights on Dec. 2, 2013, and ordered mother to let father know when the child was born and to put his name of the birth certificate. She did not do as ordered and instead gave the baby a different last name and petitioned the local Canadian court to determine custody and child support. That court ruled it had jurisdiction over the case and awarded mother custody.

The Indiana court in July 2014 dissolved the marriage and ruled that Ceruti should have full custody of the child based on several factors, including father is a business owner who can provide for the child, the child has no strong ties to Canada, and mother was involved in a relationship with a man who had threatened her.

In Jennifer L. Barwick v. Joseph A. Ceruti, 02A05-1407-DR-350, Barwick appealed the trial court’s ruling that it had jurisdiction over the case and the award of custody to Ceruti. The appeals court affirmed, noting that mother initially consented to the court’s continued jurisdiction over the matter. And because the child wasn’t born when the divorce proceedings began, the girl did not have a home state and no other state had custody jurisdiction over her.

Because Indiana issued the visitation order before the child’s birth, it obtained continuing and exclusive jurisdiction.

“We further note that the two primary purposes of the UCCJA are to discourage forum shopping and to protect the best interests of the child. Both of these purposes would be served by the Indiana court continuing to exercise jurisdiction over the case. The trial court did not abuse its discretion in concluding that Indiana is a convenient forum for the resolution of this case,” Chief Judge Nancy Vaidik wrote.