Case Update (11 April 2025): Gard-Holm v. Holm; Indiana court had no jurisdiction because the child’s home state was Germany when the custody proceeding was commenced

The parties are parents to a young child, who was born in Germany on July 12, 2023. In October 2023, the parties separated following allegations by the Mother that the Father had physically abused her and the issuance of a German court protective order restricting the Father to supervised visits. On November 15, 2023, the Mother met with a German legal aid lawyer “who spoke English” and signed custody paperwork. The attorney filed the paperwork in the German courts. On November 21, 2023, the Mother left Germany and traveled to Indiana with the Child, “without the Father’s knowledge, using an emergency passport that Mother obtained through the U.S. Embassy.” On December 15, 2023, “Mother filed in the Allen Superior Court (the Indiana Court) a verified petition for emergency jurisdiction and to established custody.” On January 8, 2024, the German court held a hearing on the Mother’s application for custody. The Father, his legal counsel, and Mother’s legal aid lawyer appeared. The “Mother did not appear.” “The German Court withdrew joint custody and granted temporary custody of Child to Father (the German Custody Order).” On April 23, 2024, the Father filed a verified motion in the Indiana Court to enforce the German Custody Order. A footnote states that the Father had filed an application for the return of the child with the U.S. Central Authority, but he did not commence proceedings under the Hague Abduction Convention (i.e., the implementing statute in the USA requires filing a lawsuit, not just an application with the Central Authority). He “explained he had not commenced proceedings thereunder, having decided to first pursue enforcement of the German Custody Order in the Indiana Court.” This is an underutilized alternative to seeking a child’s return under the Hague Abduction Convention, when there is a court order issued with due process and appropriate notice under factual circumstances in substantial conformity with the Uniform Child Custody Jurisdiction & Enforcement Act’s jurisdictional predicates.

In the trial court in Indiana, and again on appeal, the Mother argued that Indiana was the child’s home state as the child had not lived in Germany for six months before she moved the child to Indiana. She alternatively argued that Indiana had more significant connections to the child.

The Court of Appeals of Indiana noted that the Uniform Act in Indiana defines a child’s home state, at the time of the commencement of the proceeding, for a child under the age of 6 months, to be where the child lived from birth with a parent. It further referred to the portion of the Uniform Act that treats foreign countries as sister-states and mandates enforcement of those countries’ orders if made under factual circumstances in substantial conformity with the Act. Finally, it disposed of the remaining argument indicating that the Mother could not argue that the child had more significant connections to Indiana because that jurisdictional argument is only available if the child lacks a home state. This child had a home state at the time the German custody proceeding was commenced - Germany. The trial court was affirmed. The Indiana court has no jurisdiction. The German order must be enforced.