Family Law Case Review: Custody of M.B.

Case: In Re the Custody of M.B. B/N/F S.C. and D.C. v. S.B. and S.W.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: The Indiana Supreme Court holds that a third party who seeks to commence an independent child custody action may properly do so in circuit court but, if a CHINS case involving the child is already pending in juvenile court, the circuit court should generally stay its proceedings pending resolution of the CHINS proceeding.

In 2014, DCS initiated CHINS proceedings in Posey County Juvenile Court with respect to Child. Several months later, Child’s paternal Aunt and Uncle filed, in Posey County Circuit Court, an independent custody action pursuant to Ind. Code 31-17-2-3-(2). However, the Circuit Court dismissed Aunt and Uncle’s action after concluding that, because the CHINS matter was already pending, Aunt and Uncle lacked standing to file their action and, further, the Circuit Court lacked subject matter jurisdiction to entertain it.

The Indiana Supreme Court vacated a Court of Appeals decision that had affirmed the trial court’s dismissal. Instead, the Supreme Court determined that Indiana Code 31-17-2-3(2) unquestionably conferred standing upon Aunt and Uncle to file their action.

In addition, the Court concluded that the 2011 revisions to Ind. Code 33-28-1-2 provided that “All circuit courts have . . . original and concurrent jurisdiction in all civil cases and in all criminal cases.” (Emphasis supplied.) Thus, the Circuit Court was conferred concurrent subject matter jurisdiction by statute.

However, the Court added that having subject matter jurisdiction is different from it being appropriate for the circuit court to exercise that subject matter jurisdiction. Citing case law, the Court observed that “courts of concurrent jurisdiction cannot exercise jurisdiction over the same subject at the same time, and [] where one of the courts acquires jurisdiction of the subject matter and its parties, it is vested with such jurisdiction to exclusion of the other until the final disposition of the case.” The Court underscored that an abstention from the exercise of jurisdiction is different from being divested of jurisdiction. The exercise is merely postponed.

When a third party custody action is filed in circuit court, while a CHINS matter is already pending in juvenile court, the circuit has subject matter jurisdiction, but should generally stay proceedings pending the resolution of the CHINS matter.

This case was reversed and remanded.

To view the text of this opinion in its entirety, click here: In Re the Custody of M.B. B/N/F S.C. and D.C. v. S.B. and S.W.



James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at

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