Indiana Supreme Court Weighs in on Jurisdiction issue Involving Child Support

The Indiana Supreme Court affirmed a decision by Hamilton Superior Court to relinquish its jurisdiction over child support matters to a California trial court. In its opinion, the high court addressed differences between the Full Faith and Credit for Child Support Orders Act (“FFCCSOA”) and the Uniform Interstate Family Support Act (“UIFSA”).

In Mahmoud M. Basileh v. Arwa G. Alghusain, No. 29S02-0810-CV-584, father Mahmoud Basileh appealed the trial court’s transfer of visitation, custody, and child support matters to Superior Court of Monterey County, California. The mother, Arwa Alghusain, had relocated with the parties’ children shortly after the couple divorced in 2002, with father’s knowledge and consent, as it the parenting time scheduled was adjusted for the relocation. Basileh himself also subsequently relocated, having moved overseas to take care of his mother and no longer lived in Hamilton County, Indiana. Despite prior cooperation between the parties, communication apparently broke down and Alghusain filed a petition for modification and requested jurisdiction be transferred to California. In February 2005, Alghusain registered the parties’ Indiana decree and the agreements concerning child custody, parenting time, and child support with the Monterey County, California trial court. She also filed with the California court an “Application for Order and Support Declaration.” The California trial court entered a temporary order pertaining to visitation and custody, but not child support. In the meantime Basileh filed with the Hamilton Superior Court objecting to Alghusain’s petition to transfer jurisdiction to California. However, on May 6, 2005, the Indiana court granted Alghusain’s motion and relinquished jurisdiction over “all matters” to the Monterey County, California court. Apparently there was some confusion as the California court accepted jurisdiction over child custody and visitation matters, but indicated that child support matters had not been transferred from Indiana. In August 2007, the Monterey County court sent a “Memorandum” to Hamilton County inquiring ‘”whether Hamilton County [Indiana] will cede jurisdiction to Monterey County [California].”‘ Id. The judge of the Hamilton Superior Court issued an order ceding jurisdiction ‘”in all matters pertaining to visitation, custody, and child support matters”‘ noting that this is what he intended to do in the 2005 order.

Basileh appealed the transfer of jurisdiction and the Court of Appeals affirmed the judgment of the Hamilton Superior Court in 2008. The Court of Appeals specifically reviewed Indiana’s version of the Uniform Interstate Family Support Act and the federal Full Faith and Credit for Child Support Orders Act. In its decision, the ICA found that “Father was not a resident of Indiana within the meaning of the Federal Act,” and the Federal Act preempts the Uniform Act because of a conflict between the two statutes. The Indiana Supreme Court granted transfer to address the Court of Appeals’ determination regarding preemption. In its decision, the Supreme Court summarily affirmed the Court of Appeals’ determination concerning residency, but clarified an apparent discrepancy between the Court of Appeals’ decision and legislative intent in federal act.

In reaching a decision, the justices of the Indiana Supreme Court reviewed the history behind the acts and Indiana’s adoption of its version of UIFSA. Justice Robert Rucker wrote that the court concluded that “Congress didn’t intend for the FFCCSOA to preempt the UIFSA and that it appeared the FFCCSOA was intended to follow the contours of UIFSA.” Additionally, the court found that Indiana’s version of the UIFSA is closely modeled after the federal version of the UIFSA.

In its decision, the Court of Appeals had interpreted Indiana’s statute, asserting that for Indiana to relinquish jurisdiction, both the nonresidency requirement and the written consent requirement under UIFSA must be met. However, the Supreme Court found the statute to be ambiguous and looked to legislative intent. The Supreme Court noted that the UIFSA contains a consent requirement from both parties that the FFCCSOA does not. The justices found the language in the federal act to be a strong indicator of the legislative intent when it enacted the Indiana statute in that the nonresidency requirement and the consent requirement of the statute are separate and alternative methods by which an Indiana court may maintain “its continuing, exclusive jurisdiction over a child support order.” (emphasis added). The court found that it isn’t necessary for both requirements to be met (nonresidency and consent) before a court loses jurisdiction. Justice Rucker clarified in the opinion, “…that the parties did not file a written consent with the Indiana court for the California court to modify the Indiana support order. Rather, the Indiana court lost its jurisdiction because Father, like Mother and the children, is no longer an Indiana resident.”

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