Helwig v. Kinney

ON PETITION TO TRANSFER

DeBRULER, Justice,

dissenting.

According to the findings of the Delaware Superior Court, the Wisconsin court made an explicit determination of its jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act in its order granting temporary custody of the children to the Wisconsin Welfare Department. When this Wisconsin order was filed in the Delaware Superior Court, it was to have the same effect and was to be enforced in like manner as a custody decree rendered by a court of this State. Ind.Code § 31-1-11.6-15. The order is regular on its face, and as such constitutes at least a prima facie showing that the Wisconsin court made a valid determination of its own jurisdiction in compliance with the Act. Accordingly, the burden in the Delaware Superior Court rested with the party who resisted enforcement of the order to prove that such determination of jurisdiction was invalid. Irons v. Irons, (1962) 242 Ind. 504, 180 N.E.2d 105. In order to carry that burden in this case the resisting party had two courses. It could show both that the Blackford Circuit Court which made the initial determination of custody has not declined jurisdiction, and that the Blackford Circuit Court still retains jurisdiction under the jurisdictional prerequisites of the Act, or it could show that the Wisconsin court did not have the *1043jurisdictional prerequisites of the Act. Ind. Code § 31-1-11.6-14. I would hold in this case that appellant did not successfully sustain his burden in resisting enforcement of the Wisconsin order before the Delaware Superior Court. The first of these alternative burdens was not met, because appellant showed only that the Blackford Circuit Court had not declined jurisdiction and did not address the issue of whether the Black-ford Court maintains the jurisdictional prerequisites of the Act. The second of these alternative burdens was likewise not addressed. It would appear plainly here that even though the mother absconded with the children to Massachusetts and then on to Wisconsin in contravention of the Indiana order, the interests of the children, when viewed at that point in time when the Wisconsin court was required to determine its jurisdiction, were such as to require that court to act. Ind.Code § 31-1-11.6-8.

I would affirm the enforcement judgment of the Delaware Superior Court as I see no impingement or invasion by it upon the Blackford Circuit Court’s legitimate authority as that is delineated in the Act.