dissenting in part and concurring in part.
The majority opinion's disposition is not inappropriate insofar as it requires reinstatement of the property distribution and marital status aspects of the dissolution action. I dissent, however, from the mandate that the Marion Superior Court resolve the contested issues of custody and child support.
In the past, this court has sanctioned bifurcation between jurisdictions with regard to child custody vis a vis dissolution of the marriage and property distribution. See, e.g., In Re Marriage of Cline (1982) 1st Dist. Ind.App., 433 N.E.2d 51. Other than an inconvenience and a certain amount of duplication which are inherent in any bifurcation of proceedings, there is nothing questionable about such procedure. In my view, it is appropriate in this case and I discern no procedural impediment to affirmance of that portion of the trial court's judgment which declined to exercise jurisdiction of the custody issue and which deferred to the French court.
Without question, the Marion Superior Court had initial jurisdiction over the matter pursuant to I.C. 81-1-11.6-8. Indiana had been the "home state" of the children within six months preceding November 3, 1989, the date of the filing of Karl's petition for emergency or temporary custody. Had it desired to do so, it may have chosen to exercise that jurisdiction. The court did not choose to do so, however. The court made no determination with regard to custody or jurisdiction over the subject until June 15, 1990, when it granted Elisabeth's Motion to Dismiss. In so ruling, the court clearly and properly held that it had jurisdiction but that in light of the proceeding pending in France since September 20, 1989, France "was the more convenient forum". Record at 215.
It should be noted that as of that date, June 15, 1990, the children had resided in France for longer than ten months and that therefore France had achieved a "home state" status with reference to the intendment and purposes of 1.C. 81-1~11.6-7.. As a corollary proposition, it may be suggested that Indiana arguably lost "home state" status six months after the children went to France with their mother. The latter proposition, however, is not a necessary factor in assessing the propriety of the *100ruling which declined to exercise custody jurisdiction.
To be sure, at the time Karl filed his petition in Indiana, the French proceeding was pending but was not a "simultaneous proceeding" within the meaning of I.C. 81-1-11.6-6 because the children had not yet resided in France for the requisite six months. Therefore the French court could not be said to be "exercising jurisdiction substantially in conformity with [the TUCCJA]." IC. 81-1-11.6-6(a). Nevertheless, before the Indiana court made the determination whether or not to exercise jurisdiction, it was aware of the pendency of the proceeding in France and therefore had the duty to communicate with the French tribunal so that, in the words of subsection (c) of the provision, "the issue may be litigated in the more appropriate forum".
In addition to the duty to communicate, the Indiana court was obligated to implement the considerations and procedures of 1.C. 31-1-11.6-7 without regard to the determination of initial jurisdiction under § 8, or to the existence vel non of a simultaneous proceeding under § 6. Hepner v. Hepner (1984) 3d Dist. Ind.App., 469 N.E.2d 780.
The Marion Superior Court did precisely that. Thus, the case before us is wholly unlike Clark v. Clark (1980) 1st Dist. Ind.App., 404 N.E.2d 23, which involved rela tionships between the parties and Indiana on the one hand and Kentucky on the other. No "jurisdictional conflict or confusion", which the UCCJA is designed to avoid, was threatened in Clark because at no time was a proceeding brought, or even contemplated in Kentucky.
It is the purpose of § 7 that jurisdiction be vested in only one forum at any given time. Campbell v. Campbell (1979) 1st Dist., 180 Ind.App. 351, 388 N.E.2d 607. It was, therefore, within the prerogative of the court, in June of 1990, not yet having exercised jurisdiction, to determine that France was a more convenient forum for the determination of the custody issue. The determination that France met the criteria set forth in I.C. 381-1-11.6-7(c) was wholly reasonable. France was, as of that date, the present "home state" as contemplated under (c)(1). France had a closer connection than Indiana with the children and their mother as contemplated under (c)(2), and substantial evidence of the children's present and future care, protection, training and personal relationships was certainly more readily available in France, as specified in (c)(8).
L.C. 31-1-11.6-7(c)(5) makes it clear that the purposes of the Act are the paramount consideration in any decision whether or not to exercise custody jurisdiction. The purposes set forth in I.C. 81-1-11.6-1 are as follows:
"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;
*101(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 Acts 1977, PL. 305, SEC. 1." ~
To override the deliberative discretion exercised by the Marion Superior Court in the matter of custody is to substitute our assessment of the criteria set forth in 1.C. 81-1-11.6-7(c). It carries with it a possible implication of suspicion or distrust as to the ability or willingness of a foreign jurisdiction, whether a different state or a different nation,1 to render justice as between an Indiana resident or an American citizen on the one hand, and a resident of the forum state or nation on the other. Such fears, even if they exist in some quarters, should never be implicated in a judicial setting and decisional process which, as here, specifically involves a spirit of comity and cooperation. It is unseemly for one or the other of two forums to engage in a "turf battle". As stated in Plas v. Superior Court of San Joaquin County (1984) 155 Cal.App.3d 1008, 202 Cal.Rptr. 490 (quoting Bowden v. Bowden (1982) 182 N.J.Super. 307, 440 A.2d 1160) "There is no interjurisdictional contest to be won or lost".
The spirit of comity and cooperation and the decisions and results which flow from it are required by the unambiguous language of the above-quoted "purposes" clause of the UCCJA. They are particularly vital because the issues in a custody dispute focus upon the best interests of the third party-the child-and only secondarily upon the immediate combatants, the father and the mother.
The case before us does not suggest a vindictive or surreptitious kidnapping in an effort to make a race for the courthouse. To the contrary, Karl's own testimony attributes Elisabeth's departure for France to a desire or need for rest and recuperation from post-partum depression. The record also reflects that Elisabeth had been subjected to psychological and verbal, if not physical, abuse. The scenario described permits a reasonable inference, at least for the purposes of a determination to decline to exercise jurisdiction, that Elisabeth sought the peace and safety of familiar and familial surroundings in the country of her origin and upbringing.
Our case is not dissimilar from In Re Marriage of Cline,; supra, in this regard. The court there said:
"[Laurie] asserts, however, that the trial court did not abuse its discretion in declining jurisdiction.
William alleges that the trial court failed to consider that Laurie unilaterally removed the child from Indiana and ignored the provisions of Ind.Code 81-1-11.6-8. The language of that section is limited to a petitioner who has wrongful ly taken the child from another state. In this action, Laurie was not the petitioner and the statute is limited to wrongful removal, not unilateral removal.
After examining the relevant portions of the UCCJA and the method of analysis contained in Clark v. Clark, supra, *102we remain unpersuaded that the trial court abused its discretion. The trial court became aware of the California proceedings after William had filed his petition but prior to any determination of its jurisdiction.
u * * a * #
After communicating with the California court, the trial court declined to exercise jurisdiction. The provisions of TUCCJA allow a trial court to communicate with a court of another state and exchange information prior to determining whether to retain or decline jurisdiction. IC 81-1-11.6-7(d). The UCCJA also provides that if the trial court determines that it is an inconvenient forum, the trial court may dismiss or stay the proceedings. IC 31-1-11.6-7(e) There were ample reasons for the trial court to determine that California was the more appropriate forum." 4883 N.E.2d at 58-54.
Our case is truly no different than other cases involving appellate review of trial court discretion. It is well-established that we are precluded from reversing such decisions unless there has been a manifest abuse of that discretion. In the context of 1.C. 81-1-11.6-7, the proposition was accurately stated in Dennis v. Dennis (1986) N.D., 387 N.W.2d 234, 235:
"It is well settled that the decision whether to decline to exercise jurisdiction on inconvenient forum grounds lies entirely within the trial court's discretion, and its decision will be reversed on appeal only for an abuse of discretion. (Citations omitted.) An abuse of discretion, which implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court, never is assumed and must be affirmatively established."
In this light, the North Dakota Supreme Court affirmed the decision of its trial court in declining to exercise custody jurisdiction and in deferring to Iowa. We should rule similarly.
. LC. 31-1-11.6-23 recites; "The general policies of this chapter extend to the international area." The Uniform Commission Comments to that provision state:
"Not all the provisions of the Act lend themselves to direct application in international custody disputes; but the basic policies of avoiding jurisdictional conflict and multiple litigation are as strong if not stronger when children are moved back and forth from one country to another by feuding relatives. Compare Application of Lang, 9 App.Div.2d 401, 193 N.Y.S.2d 763 (1959) and Swindle v. Bradley, 240 Ark. 903, 403 S.W.2d 63 (1966).
The first sentence makes the general policies of the Act applicable to international cases. This means that the substance of section 1 and the principles underlying provisions like sections 6, 7, 8, and 14(a), are to be followed when some of the persons involved are in a foreign country or a foreign custody proceeding is pending." (Emphasis supplied.) 9 Uniform Laws Annotated § 23 at 326-327 (Master Ed.1988).