Case Update (7 February 2024): Gregory v. Gregory; Belarus was the child’s home state, and Indiana was correct to decline jurisdiction in custody suit

The parties are parents to a child born in Belarus in 2016. Between 2020 and 2022, the Father concerned with the political and military situation in Belarus, expressed a desire to relocate their child to the United States, to which the Mother disagreed. During this timeframe, the U.S. closed its embassy in Belarus and encouraged all U.S. citizens to leave the country. In March 2022, after the Father was posting to social media in support of Ukraine, six masked individuals in an unmarked van took him to a government building for questioning. On March 30, 2022, Father took the child, without notifying the Mother, and flew to Miami. Between late March and May 2022, the Father traveled through various U.S. states to visit family and friends and then settled in Indiana. During the winter of 2022, Mother visited the child in the U.S. for five weeks, and otherwise had communicated with their child remotely. In June 2022 (just over 2 months after the child’s removal from Belarus), the Mother attempted to file a lawsuit for the child’s custody in Belarus, but it was declined because of a lack of jurisdiction over the parties in the U.S. In November 2022, the Father filed for divorce in Belarus, and the Mother counter-petitioned for custody. This resulted in a Belarusian custody order giving Mother physical custody and Father having no parenting time. In April 2023, Father filed the Indiana custody lawsuit, and, in May 2023, Mother filed for emergency registration and enforcement of the Belarusian custody order.

The Indiana trial court concluded that the Belarusian order was entered in substantial conformity with the UCCJEA’s jurisdictional standard because it was the child’s home state, but separately invoked emergency jurisdiction because of the escalating events in Belarus, ordering that the child temporarily remain in the U.S. while the U.S. judge could schedule a case conference with the Belarusian court.

In a non-binding opinion, the Indiana Court of Appeals agreed with the trial court that the Belarusian court had jurisdiction in substantial conformity with the UCCJEA and was the child’s home state. The Father chose to file a divorce action in Belarus. In Belarus, apparently the court which grants a marriage dissolution has continuing jurisdiction to address and modify custody of the child. The Father never objected to the custody lawsuit in Belarus on jurisdictional grounds, and the Belarusian court’s “jurisdiction over the child custody matter cannot be bifurcated and challenged independently.” Ultimately, the Court of Appeals concluded that Indiana was not the child’s home state because the Father was deceptive when he removed the child from Belarus and he actively concealed the child in the U.S.

There are a few interesting gaps in the Court of Appeals decision. Typically a child’s home state drags on for six months after a child’s removal from that home state, so long as a parent remains there. Of course, if the time away from the home state is otherwise deemed a “temporary absence”, then it could be longer than six months away from the home state. Typically, parents rush to the home state court in the first six months to pin down jurisdiction. But, in this case, ultimately the Belarusian custody case was filed some 8 to 9 months after the child’s removal from Belarus. Since the court concluded that Belarus was the child’s home state (despite being beyond the six month drag time), one might anticipate it was viewing the time the child spent in the U.S. to be a “temporary absence” from the child’s home state of Belarus, but that was never stated in the actual opinion. Further, a court that has jurisdiction (so, for example, if Indiana found it had jurisdiction because it was the child’s new home state when the custody suit was filed in Belarus), could decline jurisdiction based on the petitioning parent’s unjustifiable conduct. The court did focus a bit on the father’s deception and concealment of the child. But, it didn’t say it was declining jurisdiction that it otherwise had on this basis. It concluded, outright, that Belarus was the home state. This may be true, but the very brief opinion really doesn’t flesh out why. The appellate decision also did not reference any argument that Belarusian child-custody laws violate fundamental principles of human rights, which would seem to indicate this was not raised on appeal. A finding that the child-custody laws of the foreign country violate human rights would have meant Indiana need not recognize Belarus as being equal to another U.S. state, and could have concluded that Indiana had jurisdiction to render a child custody order. It’s a very high threshold to prove.

Finally, Belarus has acceded to the Hague Abduction Convention. Of course, the United States has not accepted their accession, meaning that legal pathway was unavailable to the Mother to secure the child’s return. If it had been, there are typically additional arguments not available in a UCCJEA registration and enforcement proceeding (such as arguing a grave risk of harm to return a child).