Kyle J. Wilkinson, Appellant-Petitioner,
Danielle A. Assante, Appellee-Respondent, And Paul Assante and Jennifer Assante, Appellees-Intervenors.
from the Gibson Circuit Court The Honorable Jeffrey F. Meade,
Judge, Trial Court Cause No. 26C01-1602-DR-273
Attorney for Appellant Jared Michel Thomas Evansville,
Attorney for Appellees Jason M. Spindler Princeton, Indiana.
OF THE CASE
Appellant-Petitioner, Kyle Wilkinson (Father), appeals the
trial court's Order, granting Appellee-Respondent's,
Danielle Assante (Mother), motion to dismiss Father's
petition to modify custody of their minor children, A.W &
Ai.W. (Children), pursuant to the Indiana Uniform Child
Custody Jurisdiction Act.
Father raises one issue for our review, which we restate as:
Whether the trial court abused its discretion when it
declined to continue its jurisdiction over the Children based
on the application of the Indiana Uniform Child Custody
Jurisdiction Act (UCCJA).
AND PROCEDURAL HISTORY
Father and Mother are the biological parents of A.W., born
July 2, 2009, and Ai.W., born May 16, 2010-both Children were
born in New Jersey. The Parents were never married, but
resided together and Father executed a paternity affidavit
for both Children. During 2010 and 2011, the New Jersey
Division of Youth and Family Services became involved with
the family. On May 20, 2010, the Superior Court of Sussex
County in New Jersey (Sussex County trial court) awarded
temporary legal and physical custody of Ai.W. to Maternal
Grandmother. On August 31, 2010, the Sussex County trial
court continued Maternal Grandmother's temporary legal
and physical custody of Ai.W. but awarded Parents supervised
visitation. On February 15, 2011, the Sussex County trial
court ordered physical and legal custody of Ai.W. to be
transferred to Parents and on June 17, 2011, the State of New
Jersey terminated its involvement with the family because the
Children had been returned home and all of the conditions
causing the removal of the Children had been remedied. In its
Order terminating the court's involvement, the Sussex
County trial court awarded primary physical custody of the
Children to Mother, with joint legal custody to the Parents.
In March of 2014, Parents and Children moved to Gibson
County, Indiana, where they continually resided until
February 2016. On February 6, 2016, Mother and the Children
moved back to New Jersey, while Father continued to reside in
Gibson County, Indiana. The Children have been enrolled in
school in New Jersey ever since.
On February 29, 2016, Father filed an emergency petition to
modify custody with the Gibson County circuit court (trial
court). After a hearing and by order of March 16, 2016, the
trial court issued an emergency custody order, awarding
emergency custody of the Children to Father. On March 18,
2016, the Sussex County trial court entered a handwritten
order in docket No. FD-19-287-11, stating that the Children
were to be returned to the custody of Father, and afforded
Father the right to utilize law enforcement officers to
enforce the trial court's order. Thereafter, Paul and
Jennifer Assante (Maternal Grandparents) intervened by
filing an order to show cause under a new cause number with
the Sussex County trial court requesting it to temporarily
restrain Father from removing the Children from the State of
New Jersey. On March 21, 2016, the Sussex County trial court
temporarily restrained Father from removing the Children and
ruled that Maternal Grandparents had thirty days "to
file in Indiana, the home state, to obtain an order as to
custody issues." (Appellant's App. Vol. II, p. 83).
On April 20, 2016, Mother moved the trial court to set aside
the emergency custody order and, by agreement of the parties,
the trial court granted Maternal Grandparents' request to
intervene in the cause pending before the Indiana court. Over
the next eighteen months, the parties were involved in
discovery efforts "to get discovery from [Father] and
[Father's] drug treatment program" from the
treatment facility. (Appellant's App. Vol. II, p. 50).
Ultimately, the Maternal ...