Illinois Case Law in Interstate Cases invovling Custody (the UCCJA and PKPA)

A Comprehensive Analysis of Illinois Case Law Addressing the UCCJA (and PKPA)

By: Gunnar J. Gitlin
The Gitlin Law Firm, Woodstock, Illinois
© 2005
www.gitlinlawfirm.com

Below, I will review virtually all of the Illinois appellate court case law since 1990 addressing the issues of custody jurisdiction under the Uniform Child Custody Jurisdiction Act (750 ILCS 35/1, et seq., (UCCJA) and the PKPA ((Full Faith and Credit Given to Child Custody Determinations). As can be seen from the discussion of law below, much of Illinois case law is confusing because of the apparent concern by many Illinois trial lawyers, judges, etc., only with the UCCJA and not with the PKPA. It must always be remembered that the PKPA since it is Federal law preempts toe UCCJA to the extent that there are differences. Finally, keep in mind that if Illinois adopts the UCCJEA, then much of the confusion created by inconsistency between the UCCJA and the PKPA will be resolved.

Even assuming that the UCCJEA passed in the Illinois Senate, it is important to understand the deficits with the UCCJA as well as the background to have a fuller understanding of the UCCJEA. HB 1157 should be effective January 1, 2004. On May 6, 2003, this bill passed both houses. It is anticipated that it will be signed into law.

Recent Illinois Appellate Court Decision Properly Addresses Continuing Exclusive Jurisdiction (CEJ) But Only Referring to the UCCJA: IRMO Ludwinski, (4th Dist filed May 17, 2002), held that Illinois court does not lose jurisdiction over a child custody proceeding by the custodial parent and children moving from Illinois to Utah (under a court order allowing the removal). The "mere movement of a party or the children cannot serve to divest a court of its jurisdiction once acquired during modification proceedings.”

The father-custodial parent, in Ludwinski II, appealed from the terms of the trial court's order granting the mother visitation. The appellate court affirmed the trial court. The proceedings before the trial court were on remand directions from the appellate court in regards to the mother's visitation. For a more complete understanding of the Ludwinski II case some of the facts from the original appellate court proceedings which involved removal, IRMO Ludwinski, 312 Ill.App.3d 495, 245 Ill.Dec. 166, 727 N.E.2d 419 (4th Dist. 2000), are stated below.

In December 1991 a judgment of dissolution of marriage was entered as to grounds. In July 1993, after a trial, the court entered a judgment awarding custody of the children to the father and granting the mother visitation, which included eight weeks during the summer. In 1998 the father filed a petition to remove the children to Utah. The trial court denied the father's petition for removal and the appellate court reversed, ruling that the trial court's denial of the father's removal petition was against the manifest weight of the evidence and the case was remanded to the circuit court "for the purpose of setting a visitation schedule in light of our ruling." (Ludwinski I).

After the remand hearing the trial court entered a permanent visitation order which, in pertinent part, provided that the children should have frequent telephone access to the mother, that the father is to encourage the children to correspond with the mother, to tape record messages to her and communicate with her by e-mail etc. The visitation order also stated: "That until final orders on all pending matters, this Court retains jurisdiction over all child related matters." Though not stated in the opinion, the father and the children were residing in Utah at the time of the remanded visitation proceedings.

On appeal, in Ludwinski II, the father urged that the above quoted portion of the trial court's order which stated the Illinois trial court would retain jurisdiction over all child-related matters until "final orders on all pending matters" in the case, violated section 4(b) of the Uniform Child Custody Jurisdiction Act. That statute states: "A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois." The opinion notes that in September 2001 the mother filed a "motion to modify custody" (probably to transfer custody), which remained pending. It is presumed that since the children had been in Utah for more than six months, the father wished to establish “homestate” jurisdiction under the UCCJA in that he likely sought to have Illinois concede jurisdiction to Utah. It is further likely that the father's arguments generally ignored the provisions of the PKPA.

Ludwinski II stated that section 4(b) of the UCCJA provisions "are intended to operate as limitations on a course continuing jurisdiction in custody matters." Ludwinski II went on to state:

We do not find, however, that section 4(b) was intended to divest a court of jurisdiction in the midst of a custody modification proceeding based on a change in circumstances occurring after the proceeding had commenced but prior to a final determination * * * [O]nce jurisdiction has been vested, it cannot automatically be divested by subsequent events. * * * [T]he mere movement of a party or the children cannot serve to divest a court of its jurisdiction once acquired during modification proceedings which are underway but unconcluded..

What is not clear from the opinion is whether the mother's pending petition for modification (transfer of custody) was subject to the Illinois court's jurisdiction. The permanent visitation order, the order appealed form in Ludwinski II, was entered in August, 2001. It was this order which stated that the trial court would retain jurisdiction over all child-related matters until final orders on all now pending matters. Since the September 2001 motion to modify custody was not pending in August 2001, the UCCJA issue regarding the petition for removal seems unresolved. The September 2001 motion to modify was a second amended petition, so it is also possible that the trial court intended to retain jurisdiction of the subject of the mother's application for custody transfer.

Always consider the UCCJA in connection with the PKPA. That is because the PKPA should be the starting place for any jurisdictional disputes over custody because of the preemption of Federal Law.

Under the UCCJA/PKPA, Illinois would have continuing exclusive jurisdiction (CEJ) provided the mother continued to reside in Illinois. Assuming the mother resided in Illinois, I see no reason that this aspect of the decision should have been published (other than the fact that it is contrary to other published opinions appellate court decisions discussed below). If the mother continued to reside in the forum state (Illinois), the father's residence in Utah would be irrelevant.

Second District Illinois Appellate Court Decision Failing to Address Fact of Continuing Exclusive Jurisdiction in Forum State for Modification Purposes and Improperly Focusing on Home State: IRMO McGuire, 318 Ill. App. 3d 94, 252 Ill.Dec. 332, 742 N.E.2d 870 (2d Dist. 2001), is another of a line of cases which appear to create “bad” law in terms of only focusing upon the UCCJA and failing to address the fact that to the extent of conflicts the UCCJA is preempted by the PKPA, especially with regard to the continuing exclusive jurisdiction provisions in the forum state as provided in the PKPA for the purpose of modification of custody judgments. The McGuire decision held that Illinois had subject matter jurisdiction over the child and could enroll and modify the Texas decree because Illinois had become home state of the child under the UCCJA based on child's residence in Illinois with his father since December 1996.

In McGuire the father and mother were divorced in February 1996 by a decree entered in Texas. The parties were awarded joint custody of their son and the father was awarded physical custody. In December 1996 the father and son moved to Naperville, Illinois. On December 3, 1998 the mother filed a petition in Texas seeking to modify travel arrangements and reallocate travel costs. On December 4, 1998 the father filed petitions in Kane County, Illinois circuit court seeking to enroll the Texas decree and seeking a rule to show cause and other post judgment relief.

The mother filed a special appearance (at a time when this was the proper vehicle to object to jurisdiction) and contested jurisdiction in the Illinois court. She sought a UCCJA conference between the Texas and Illinois courts. The conference never occurred. In April 1999, the mother filed another petition in Texas seeking a modification of custody, alleging that the father had denied her visitation.

In June 1999, the father petitioned the Illinois court for a temporary restraining order to prevent the mother from taking the child to Texas. The Illinois court held the matter was not an emergency and continued the case for further hearing. Two days after the court's ruling, the child went to Texas to visit the mother. On July 6, 1999, the Texas court defaulted the father as to mother's petition for change of custody previously filed with the Texas court.

The father's appeal to the Texas appellate court was granted. The Texas appellate court held that Illinois was the child's home state. The Texas appellate court stated that under the UCCJA, Illinois had jurisdiction over the child, not Texas. While this is correct in terms of referring to the UCCJA it does not relate to the fact that Texas was first bound by Federal law, i.e., the PKPA and that the home state issue was irrelevant so long as one of the parties (the mother) continued to reside in the original forum state.

Before the Texas appellate court's ruling, the Illinois trial court correctly dismissed the father's petitions due to lack of subject matter jurisdiction. The Illinois trial court did not receive a return phone call from the Texas court to set up a UCCJA conference. The Illinois court held that because it was unsuccessful in conducting a judicial conference it appeared that the Texas trial court was exercising jurisdiction over the child and therefore Illinois "must defer to the Texas court regarding custody and visitation."

The father's appeal to the Illinois appellate court was granted. It was held that Illinois had jurisdiction over the child under the UCCJA (again not referring to the PKPA) and the trial court erred when it dismissed father's petitions. The Illinois appellate court stated that dismissal based on lack of subject matter jurisdiction is subject to de novo review. In conducting a de novo review the court cited the following relevant portions of the Illinois version of the UCCJA.

Section 7. Simultaneous Proceedings in Other States.

(A) A court of this State shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons. (Emphasis added) (750 ILCS 35/7(a).

Section 15 Modification of Custody Judgment of Another State.

(a) If a court of another state has made a custody judgment, a court of this State shall not modify that judgment unless: ...

2. The court of this State has jurisdiction. 750 ILCS 35/15.

Section 4. Jurisdiction,

(a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:

1. This State

(I) is the home state of the child at the time of commencement of the proceeding. 750 ILCS 35/4(a)(1)(I).

Applying the above law to the facts of the case, the Illinois appellate court reversed the trial court for several reasons. First, the Illinois appellate court mistakenly emphasized the fact that Illinois was the home state of the child because the child resided in Illinois for with the father for the past two years. Second, after the father won the appeal in the Texas appellate court, the mother conceded jurisdiction in Illinois and filed a general appearance in Illinois. Third, the Texas appellate court previously held Illinois was home state of the child. Fourth, and most significant in the court's holding concerns the language of UCCJA Section 7 "exercising jurisdiction in substantial conformity with the act." The Illinois trial court deferred to the Texas trial court because the Texas court refused to participate in a UCCJA conference and continued to enter orders concerning the child. The Illinois trial court erred in this deference. According to the McGuire court, because Illinois was the home state of the child, not Texas, the orders entered by the Texas trial court were not in "substantial conformity with the act" and were not entitled to deference by the Illinois trial court. The McGuire court stated that the Illinois trial court should have made a finding that Illinois was the home state of the child, entered orders concerning the child and “disregarded any orders” entered in the Texas trial court.

Remember, the PKPA provides, “A court of a State may modify a determination of the custody of the same child made by a court of another State, if -

the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination

The PKPA also provides:

A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination

The best argument for Illinois court's jurisdiction was that Texas no longer had jurisdiction because the Texas appellate court mistakenly ruled that it did not have jurisdiction. Therefore, in this case, we find the misguided opinion of a Texas appellate court impacting the decision by the Illinois appellate court. It is remarkable that as recently as 2001 we find decisions by appellate courts in two large states (Texas and Illinois) which fail to properly address the impact of the PKPA.

Second District Appellate Court Decision Properly Noting Preemption of PKPA to UCCJA: IRMO Wiseman, 316 Ill.App.3d 631, 249 Ill.Dec. 935, 737 N.E.2d 325 (2d Dist. 2000), held that pursuant to the supremacy clause of the United States Constitution, federal law preempts conflicting state law and state law is nullified to the extent it actually conflicts with federal law. Thus, the PKPA preempted Illinois version of the UCCJA where the Wisconsin court initially had jurisdiction, continued to exercise jurisdiction, and refused to decline jurisdiction.

The parties in Wiseman were married in Wisconsin in 1993. They divorced in Wisconsin and pursuant to a joint custody agreement the mother had primary physical "placement" of the parties' two children and the father had placement of the children on alternating weekends, holidays and for six weeks in the summer. In June 1997, the mother petitioned the Wisconsin court requesting permission to move with the children to the Chicago, Illinois suburbs. The father countered with a petition to prohibit removal. In August 1997, the mother and children moved to Lisle, Illinois. In October 1997, the Wisconsin court entered an agreed order permitting the mother to move to Illinois with the children. Visitation was also modified with the children to be transferred for visitation at a certain time in Belvidere, Illinois. In June 1999, the mother filed a motion in DuPage County, Illinois to modify visitation. The mother alleged that the transfer schedule was too burdensome because of her work schedule and that the arrangement prevented the children from participating in their activities. The father filed a special and limited appearance in DuPage County, Illinois contesting jurisdiction. He then filed a motion in the Wisconsin court requesting modification as to placement and child support. In August 1999, the DuPage County court registered the Wisconsin divorce as modified.

In September 1999, the father filed a motion in DuPage County to dismiss the mother's petition to modify for lack of jurisdiction. The DuPage County judge conversed with the Wisconsin judge regarding jurisdiction. The Wisconsin court refused to decline jurisdiction and asserted that it continued to exercise jurisdiction. On the father's motion pursuant to the PKPA, the DuPage County court properly dismissed the mother's petition and declined to exercise jurisdiction. The DuPage County Court also denied the mother's request for a “best interest” hearing under the provisions of the UCCJA. The mother appealed. The appellate court affirmed on the basis of lack of jurisdiction in Illinois.

On appeal the mother misguidedly contended that the PKPA did not apply because the case did not involve child custody or abduction and that under the UCCJA (750 ILCS 35/15(a)), as adopted by Illinois, conceded jurisdiction upon the DuPage County court. The Illinois Appellate court distinguished the two statutes. Under the UCCJA, "an Illinois court has jurisdiction to modify a custody order if Illinois was the home state of the child or had been the home state within six months before the commencement of the proceeding and a parent continued to live in Illinois." On the other hand, under the PKPA, a federal statute, the appellate court explained that "once a foreign state makes a custody or visitation judgment, another state may modify that judgment only if it has jurisdiction and the foreign state `no longer' has jurisdiction, or has declined to exercise jurisdiction***." In joining with sister states, the appellate court determined that because there was a conflict between the federal PKPA and the Illinois UCCJA, the federal statute preempts the state statute. As if unsure about their decision the, the appellate court opined that the children still had significant ties with Wisconsin, such as their church attendance, swimming lessons, Girl Scouts, and residence of their pediatrician, which reinforced its continuing jurisdiction.

Significant Jurisdictional Issue as to Removal Petition Brought after Removal Allowed:

IRMO Lange, 307 Ill.App.3d 303, 240 Ill.Dec. 414, 717 N.E.2d 507 (4th Dist. 1999), is the removal case which may support the proposition that once a custodial parent is given leave to remove the children from Illinois, that party can then move anywhere in the United States with the children. However, the more specific ruling in Lange was that the trial court was free to deny a petition for removal (even though this petition was not needed) not necessarily on ly because the mother revested the court with subject matter jurisdiction but primarily based upon its reading of the UCCJA. Specifically, Section 601(a) of the IMDMA refers to Section 4(b) of the Illinois' version of the UCCJA which provides, “A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois." 750 ILCS 35/4(b)” Section 4(b) quoted is unique to Illinois. (See Bueche). The appellate court commented that the divorce judgment expressly stated that Illinois court retained jurisdiction for enforcement of the judgment and that the judgment did not concede jurisdiction to another state. Further, the father continued to live in Illinois. The court stated that, “if all else fails” the parties have revested the court with jurisdiction. See Demond, 491 N.E.2d 501, 504. There the court discussed the revestment issue and held that:

[L]itigants may revest a court which has general jurisdiction over the matter with both personal and subject[-]matter jurisdiction over the particular cause after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed. (People v. Kaeding (1983), 98 Ill. 2d 237, 240, 456 N.E.2d 11, 14.) 'In order for the rule to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment.' 98 Ill. 2d 237, 241, 456 N.E.2d 11, 14.

The Lange court then addressed the related question of whether the trial court had authority to deny the mother's removal petition based upon the language of Section 609(a) (the removal statute) of the IMDMA. The appellate court stated that Section 609(a) requires only that a custodial parent petition to remove the child “from Illinois.” The appellate court stated:

In this case, the child was already permitted to be removed from Illinois, and the trial court's approval was implicit in the original decision of dissolution. In this case, Susanna's motion purported to be a petition for removal, but it was also in the nature of a petition to modify visitation to facilitate Susanna's move to Texas with the children. The trial court had jurisdiction to consider the removal and visitation issues. The order denying Susanna's request to move the children from Indiana to Texas was within the authority of the trial court to enforce the custody and visitation provisions of the judgment of dissolution. ... It is clear from the legislature's placement of section 609 within "Part VI-Custody" of the Marriage Act that the legislature recognized that moving children impacts the visitation rights of the noncustodial parent and the best interests of the children. Moreover, one of the stated purposes of the Illinois Act is to deter the unilateral removal of children. 750 ILCS 35/2(a)(5) (West 1996); In re Marriage of Breyley, 247 Ill. App. 3d 486, 494, 617 N.E.2d 423, 429 (1993). In this case, the trial court's authority to deny Susanna's request to move the children to Texas was an inherent part of the trial court's authority to enforce the custody and visitation provisions of the judgment of dissolution.

The dissent in this case was well-reasoned and instructional. The dissent commented that the sole granting of statutory authority as to interstate removal cases is contained in Section 609(a) of the IMDMA. The dissent correctly points out that the issue of subject matter jurisdiction cannot be waived by the parties (see Currie v. Lao, 148 Il.2d 151, 157, 592 N.E.2d 977 (1992). The dissent reasons:

To illustrate the limitations of this language, assume a custodial mother has received leave of court to remove her children from Illinois to North Carolina. Several years later, she decides to move to South Carolina. Nothing in section 609(a), or elsewhere in the Marriage Act, would require the mother to seek an Illinois court's permission before making such a move. More important, nothing in the Marriage Act would give an Illinois court the authority to determine whether the mother may move her children from North Carolina to South Carolina. A move from Indiana to Texas involves different geographic locations, but the same legal principles.

Statutory authority was important to Justice Myerscough because "the specific grant of statutory authority must be identified in dissolution actions. Dissolution of marriage and collateral matters are entirely statutory in origin and nature. (Citations omitted.) The circuit court's jurisdiction in dissolution matters is conferred only by statute. The court may not rely on general equity powers."

Mattmuller Decision As to Jurisdiction of Court Over All Justiciable Matters as Rationale for Strained Construction of Interplay between UIFSA and FFCCSOA: This discussion contrasts nicely with the very recent Mattmuller decision where the issue was the court's subject matter jurisdiction in interstate child support disputes. Keep in mind that this is a case involving the UIFSA (not the UCCJA) but deals with very similar issues as in the McGuire decision involving the issue of a another state court's incorrect appellate court ruling as to the continuing exclusive jurisdictional issue. This case will be addressed in this outline because the CEJ concept is generally consistent in terms of the UCCJA and the PKPA.

In Mattmuller, the Illinois Fifth District appellate court went to great lengths to try to explain how it had subject matter jurisdiction over the matter where according to the UIFSA and the federal Full Faith and Credit for Child Supports Orders Act the original forum state had “CEJ.” This case, after stating that the circuit courts are courts or general jurisdiction, then stated, “Thus, their subject matter jurisdiction is nearly plenary” quoting from Article VI, Section 9 of the Illinois Constitution which provides that the circuit courts have jurisdiction over all “justiciable matters” except when the Supreme Court has original and exclusive jurisdiction. There the court reasoned that the point of the FFCA was to “tell state courts when to decline jurisdiction and defer to the courts of other states.” The contrast in the language in these two decisions — Mattmuller and Lange — is remarkable.

Blanchard Decision Re Necessity that Matter be Pending Before Conceding Jurisdiction: IRMO Blanchard, 305 Ill.App.3d 348, 238 Ill.Dec. 652, 712 N.E.2d 374 (2d Dist. 1999), held that it is not necessary that a proceeding be pending in another jurisdiction for an Illinois court to concede jurisdiction to the other jurisdiction under the UCCJA.

The parties' Illinois divorce judgment allowed the mother and child to relocate from Illinois to Virginia and provided for visitation with the father in contemplation of the relocation. The mother and child moved to Virginia, but moved back to Illinois and then, without leave of court, moved to Georgia. Four years after the move to Georgia, the father filed a petition for rule to show cause alleging that the Georgia move was in violation of the judgment, and requesting an order for the child to be returned to Illinois. The mother moved to dismiss the petition for lack of jurisdiction under the UCCJA. The father argued that the UCCJA did not apply to the case because custody was not at issue. The trial judge, Sharon Prather (in front of whom I practices), properly held that the UCCJA applied and that Illinois had jurisdiction. However, the trial judge incorrectly relied only upon the UCCJA in determining that Illinois was an “inconvenient forum.” The Illinois trial court conceded jurisdiction to Georgia. The father appealed. The Second District affirmed.

The appellate court stated that the UCCJA governs custody determinations, which include determinations concerning visitation rights. 750 ILCS 35/3.02. The father argued that his petition concerned neither custody nor visitation, but simply requested the court to exercise its contempt powers. The appellate court denied the father's contention, and held that because the judgment did not require the child to live in Illinois, and the father's petition requested the child's return to Illinois, the father's petition was actually for a modification of the judgment, regardless of what he titled the petition. Because a requirement for the child to live in Illinois would affect the father's visitation rights, the proceeding was a custody determination under the UCCJA.

The father argued that the trial court abused its discretion in conceding jurisdiction to Georgia because there was no proof that a proceeding to concede jurisdiction was pending in Georgia. The reviewing court held that there is no requirement that a proceeding be pending in another state before an Illinois court may concede jurisdiction to that state. Rather, the UCCJA allows dismissal of the proceedings "upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper..." 750 ILCS 35/8(e).

The Temporary Absence Provision and its Effect on Home State: IRMO Arulpragasam and Eisele, 304 Ill.App.3d 139, 237 Ill.Dec. 470, 709 N.E.2d 725 (4th Dist. 1999), ruled that where the children were not born in a state, have no family there, and never attended school there, but simply lived there for a few months, the children's connection to that state does not amount to a significant connection under the UCCJA.

Shortly after moving to Massachusetts, the parents divorced. The divorce decree incorporated an agreement that gave the parties joint custody of the children but in variance from Massachusetts law required court permission to remove the children from Massachusetts. The father later moved to Pennsylvania and filed a petition in Massachusetts for sole custody. The mother, in turn, filed a petition in Massachusetts for permission to remove the children to Illinois.

The Massachusetts court granted the mother permission to remove the children temporarily to Illinois, and later dismissed the mother's petition, finding it did not have subject matter jurisdiction under Massachusetts law over the removal petition (the decision in this regard was somewhat analogous to the Lange decision.) The Massachusetts trial court then found it had home state jurisdiction under the UCCJA to hear the father's petition for custody, but it was an inconvenient forum and the children's new residence of Illinois would provide a more appropriate forum. As will be seen below, the father essentially “dropped the ball” and did not appeal from the Massachusetts decision.

After the children lived in Illinois for two years, the mother filed a petition in Illinois for modification of custody. The father filed, pro se, a series of petitions and motions in Massachusetts, Illinois and Pennsylvania state and federal courts. Among these was a motion to dismiss the Illinois proceedings pursuant to the UCCJA, on the ground that it was an inconvenient forum and a court in another state was a more appropriate forum.

The Illinois trial court granted the father's motion to dismiss on the ground that Massachusetts was the home state under the UCCJA. It based its holding on the precedent of Richardson v. Richardson, 255 Ill.App.3d 1099, 193 Ill.Dec. 1, 625 N.E.2d 1122, 1124 (3d Dist. 1993), which ruled that the "home state" test requires an examination of both the state in which the children were physically present for the past six months, as well as the circumstances under which the children were in the state. Richardson relied on the UCCJA's provision that "periods of temporary absence . . . are counted as part of the 6-month . . . period" to hold that a stay of 11 months in Illinois had been temporary, and thus prevented the clock from beginning to run in Illinois for the purpose of home state jurisdiction. See 750 ILCS 35/3.04. The Arulpragasam trial court applied the Richardson reasoning to hold that the children's stay in Illinois was only temporary, since it was pursuant to a temporary order of the court of another state.

The trial court went on to hold the Massachusetts court denied the father his due process rights when it bootstrapped the temporary order into a de facto permanent order by way of dismissing the removal petition. It then refused to grant full faith and credit to the temporary order on the ground that the order denied the father due process. The trial court further held Massachusetts still had jurisdiction of the case.(750 ILCS 35/15).

The Fourth District reversed the trial court and reinstated the mother's petition. It held the trial court had not been asked to enforce the temporary removal order, and therefore there was no issue as to whether to accord that order full faith and credit. It also (correctly) agreed with the father that Massachusetts was the home state at the time the Massachusetts court dismissed the removal petition, but stated the father's remedy was to appeal the dismissal, rather than challenge it in an Illinois forum. Accordingly, this is one more example of Illinois case law which makes “bad law” due to what was a failure to appeal the incorrect decision of another state as to continuing exclusive jurisdiction.

Next, the appellate court held Illinois was the home state at the time the mother filed her custody petition in Illinois. It stated that in IRMO Schoeffel, 268 Ill.App.3d 839, 206 Ill.Dec. 59, 644 N.E.2d 827 (4th Dist. 1994), GDR 95-7, it rejected the Richardson holding. It further held the statute's provision regarding temporary absences from the state was "designed merely to prevent lapses in the six-month period cause by brief interstate visits by the child," and that the mother and children's move to Illinois was not a temporary visit. Because they had lived in Illinois for two years when the petition was filed, Illinois was the home state.

The reviewing court further held Illinois had jurisdiction under the UCCJA under an alternative basis, in that it would be in the best interest of the children for an Illinois court to hear the matter because at least one contestant has a significant connection with this state and there is substantial evidence in this state. It also held because the children were not born in Massachusetts, have no family there, and never attended school there, the children's connection to that state was "purely historical," and as such, did not amount to a significant connection under the statute.

The appellate court acknowledged the trial court's concern that this case would encourage forum shopping by allowing future litigants to obtain temporary removal orders and then stay in the other jurisdiction long enough to obtain home state jurisdiction there. However, the appellate court stated the mother did not engage in forum shopping or other reprehensible conduct, but followed the requirements of the divorce decree in petitioning for removal, and she was not obliged to appeal the Massachusetts court's dismissal of her removal petition. Therefore, the trial court's concerns were unfounded.

Another Temporary Absence Case as to the Definition of Home State — Temporary Absence Does Not Connote a Particular Length of Time but Can Apply to a Period of Many Months — Boarding School is Not a Conduit for UCCJA Jurisdiction: IRMO Howard, 291 Ill.App.3d 675, 225 Ill.Dec. 703, 684 N.E.2d 178 (5th Dist. 1997) addressed the issue of the child's home state. It ruled that in determining "home state," the court must examine the circumstances under which the child came to reside in the state and that a temporary absence does not connote a particular length of time. It can apply to a period of many months. Additionally, the case held that a Florida resident placing child in Illinois boarding school does not make the school administrators custodians of the child so as to give Illinois UCCJA jurisdiction.

In the initial divorce decree, entered in Georgia in 1988, the father was granted sole custody of the parties' son. Visitation was to occur in the father's home -- the former marital home -- but the mother failed to exercise visitation because a restraining order was entered excluding the mother from the marital home. After being excluded from the marital residence, the mother moved to Madison County, Illinois. She testified that she attempted to reach the father in Georgia, but his telephone was disconnected. For a period she lost contact with the child. She visited with the child for a week in Georgia in 1989, but in 1990 the father relocated to Florida and the mother lost contact for two years. When the mother located the child, she maintained contact but did not visit the child.

In 1994, the father sent the child to a private school near Aurora, Illinois, Mooseheart. The mother resumed contact with the child, visiting him once at school and once for three weeks in her home in Granite City, Illinois. In November 1994, the mother moved to register the Georgia judgment in Illinois, petitioned to modify the decree, and applied for an ex parte order of protection that was denied. She did not provide notice to the father until almost a year later. In November 1995, the father filed a special and limited appearance to object to personal jurisdiction. The trial court found the father, by voluntarily placing the child in Illinois, had consented to jurisdiction.

Personal Jurisdiction: The Howard court made two interrelated holdings relating to personal jurisdiction: (a) the principles of due process were not met when the Illinois court assumed jurisdiction, so (b) the Illinois long-arm statute did not apply.

In order for Illinois courts to assume jurisdiction over a non-resident there must be sufficient contacts with Illinois to make it fair for the person to defend in Illinois. These "minimum contacts" satisfy federal constitutional due process protections. One basis for determining whether minimum contacts exist is Illinois' long-arm statute, 735 ILCS 5/2-209(9). Under the long-arm statute, failure to support a child who has continued to reside in Illinois and who resides here at the direction of the obligor is a basis for asserting long-arm jurisdiction. The trial court found that the father failed to pay child support, but the appellate court held that there was no evidence in the record to support this conclusion. The appellate court also ruled that simply placing the child in a private boarding facility was insufficient for a finding that the father relinquished custody.

Even if the long-arm statute requirements are met, due process may not be satisfied because there are still insufficient contacts with Illinois. "In determining whether the exercise of in personam jurisdiction violates due process, each case must be considered on its own facts, and the 'quality and nature' of a [respondent's] activities must be reviewed to see if the exercise of the jurisdiction is fair and reasonable," the Fifth District opinion states. "[I]t has been held that if a nonresident had insufficient contacts with the forum State, the exercise of in personam jurisdiction violates due process and the nonresident party cannot reasonably be held to defend the action in the forum State." Sending the child to Illinois for school did not require the use of public funds, so the father took no act to purposefully avail himself of the privilege of conducting business in Illinois, or to invoke the benefits and protections of Illinois law.

Justice Chapman specially concurred, stating since there was no failure to support, the elements of the long-arm statute were not met and therefore the due process inquiry was unnecessary.

Subject Matter Jurisdiction (UCCJA): Under the UCCJA the court examined the circumstances under which the child came to reside in the state. Pursuant to the UCCJA and the PKPA, the court noted that a temporary absence does not connote a particular length of time, and can apply to a period of many months. The clear intent of the father in sending the child to Illinois, the Bailey opinion states, was not for the child to remain in Illinois. The fact that the child returned to Florida for school vacations showed that the placement of the child in Illinois was temporary in nature and the Florida court was not divested of home state jurisdiction.

Carlsten Case Limited to Analysis of UCCJA Despite CEJ in Original Forum State, Virginia: Carlsten v. Robertson, 295 Ill.App.3d 369, 230 Ill.Dec. 177, 692 N.E.2d 1343 (3d Dist. 1998) ruled that the Illinois trial court properly denied wife's custody petition for lack of jurisdiction; prior custody orders were entered in Virginia, the children had more significant connections to Virginia than Illinois, and Virginia did not concede jurisdiction to another state.

The parties' divorce judgment, entered in Virginia in 1990, awarded physical custody of the two children (Spencer and Jessica) to the mother. The mother and children lived in Illinois from 1990 to 1995. In 1995 the parties agreed to amend their divorce judgment to give the father custody of Jessica and Jessica moved to Virginia to live with her father. Spencer moved to Virginia in June 1996 to live with the father, and in August 1996 a Virginia trial court awarded the father legal custody of Spencer. After the children traveled to Illinois in summer 1997, the mother filed an emergency petition in Illinois seeking temporary and permanent custody of the children. The trial court dismissed the mother's petition for lack of jurisdiction and the appellate court affirmed.

The mother claimed that Illinois should assert jurisdiction over the custody matter under §4(a) of the UCCJA (750 ILCS 35/4) because it was in the best interests of the children. Under §4(a)2, Illinois courts can hear interstate child custody cases if it is in the best interest of the child for the Illinois court to assume jurisdiction because the children and at least one parent have a significant connection with Illinois, and there is available within Illinois substantial evidence concerning the child's present and future care, protection, training and personal relationships. The mother's argument failed this "significant connections" test:

Although the children have connections with both Illinois and Virginia, they have more significant connections in Virginia. All prior court proceedings in this matter occurred in Virginia. Significantly, the parties' judgment of dissolution was recently modified in Virginia, awarding custody of both children to [the father]. Illinois courts are required to give that modification order full faith and credit. 750 ILCS 35/14 (West 1996). Therefore, the best interests of the children indicate that Virginia is the proper forum to contest the modification of custody order.

The appellate court also disputed the mother's claim that no other state had jurisdiction or that another state declined to exercise jurisdiction because Illinois was a more appropriate forum. The Illinois appellate court noted, "There is no indication in the record that Virginia has declined to assert jurisdiction." The review court concluded that once the Virginia court obtained jurisdiction over a child, it retained that jurisdiction until conceding the jurisdiction to another state. [citing Richardson v. Richardson, 255 Ill.App.3d 1099, 193 Ill.Dec. 1, 625 N.E.2d 1122 (3d Dist. 1993), GDR 94-20].

IRMO Tatham Case Involving Move by Custodial Parent Away from Home State and Issues of Continuing Exclusive Jurisdiction: IRMO Tatham, 293 Ill.App. 3d 471, 228 Ill.Dec. 166, 688 N.E.2d 864 (5th Dist. 1997) held that the Illinois trial court had proper jurisdiction even though the mother moved to Kentucky, because the mother submitted to Illinois jurisdiction by filing motions in Illinois where the father still lived and Illinois was not an inconvenient forum. In Tatham, the mother alleged the Illinois trial court did not have proper jurisdiction, so its contempt orders were void.

The parties were married in 1977 and in 1981 had a daughter, Kathryn. The case was complicated by concurrent actions in Illinois and Kentucky. In September 1990, a Illinois trial court order was entered setting visitation. The mother and daughter moved to Kentucky in 1991. In December of 1994 in the Illinois court, the mother filed a petition for rule to show cause, alleging the father failed to pay child support and medical expenses. The father countered with a motion to modify the support provisions of the divorce decree. In 1995 the Illinois trial court entered an order as to the support and health expense issues. The father then sought to hold the mother in contempt of court for violating the court's visitation order. The father alleged the mother conditioned visitation upon payment of support. The mother responded pro se, special appearance "without admitting to the personal or subject matter jurisdiction" of the Illinois court. Attached to the special appearance was an affidavit from the mother's Kentucky attorney stating that on April 6, 1995 a verified petition was filed in Kentucky alleging Kentucky as the proper jurisdiction. The affidavit also alleged Illinois lacked subject matter jurisdiction under the UCCJA §7.

On June 30, 1995, the Kentucky court entered an order finding it had subject matter jurisdiction under the UCCJA (without referring to whether Illinois has continuing exclusive jurisdiction — CEJ — pursuant to the PKPA). The Kentucky order noted proceedings were under way in Illinois, but ruled these proceedings did not prevent the Kentucky court from proceeding on the mother's petition because she and the child had lived in Kentucky since 1991. The Kentucky court entered a visitation schedule.

The father appeared in Illinois on July 13, 1995 but the mother did not. The trial court found the mother in contempt. On July 31, 1995 the trial court entered an order finding the mother, in her April 6 Kentucky petition, sought relief on matters pending in Illinois after she had submitted to Illinois' jurisdiction with her December 7, 1994 petition for rule. It further found the mother in contempt for failing to abide by the September 1990 visitation order.

The Illinois court properly met the mother's arguments, citing the UCCJA — but without mentioning the PKPA. Section 4(b) of the UCCJA provides that once a court obtains jurisdiction over a child, it shall retain jurisdiction unless it concedes jurisdiction to another state or if none of the parties or the child remain in Illinois.

Section 7(a) of the UCCJA states:

A court of this State shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.

After noting the mother and child moved to Kentucky in 1991, the review court stated: “However, Illinois obviously had jurisdiction over this case when on December 7, 1994, [the mother] filed a motion for order to show cause, alleging that [the father] failed to pay one-half month of child support and refused to pay for Kathryn's medical expenses. Since December 1994, [the father] has continued to reside in Illinois; thus, Illinois continues to retain jurisdiction over custody and support issues.”

The appellate court then noted that Section 8 of the UCCJA allows an Illinois trial court to decline jurisdiction on grounds of inconvenient forum. However, by filing her 1994 petition in Illinois and not Kentucky, the mother implicitly agreed Illinois was a proper forum. Therefore, the trial court did not abuse its discretion by retaining jurisdiction.

Walker and Choice of Law Provision as Opposed to Choice of Forum Decision: In my discussion as to UIFSA and the requirement to “play and away game,” I stated that one option is to have a choice of forum provision (which would be respected by both the UCCJA as well as the UIFSA (in order to avoid having to have the support recipient litigate in the payor's new state where the custodial and the child leave Illinois. IRMO Walker, 287 Ill.App.3d 634, 222 Ill.Dec. 833, 678 N.E.2d 705 (1st Dist., 4th Div. 1997), addressed the issue of a “choice of law agreement” as opposed to a choice of forum agreement. The Walker court held that the parties' agreement constituted a choice of law agreement rather than a choice of forum agreement, since the provisions did not prohibit a party from asking the court to concede jurisdiction and contemplated that proceedings may be had in another state.

In Walker, jurisdiction over a child custody modification proceeding was conceded by the Illinois court in favor of the Minnesota court. The First District Court of Appeals affirmed. The parties were divorced in Illinois in 1991. A joint physical and legal custody order was entered, which split the residential time equally between the parents; but beginning in summer 1992, the child was to reside with the father during Easter and alternating Christmas vacations, and the mother was granted leave to remove the child to Minnesota. The agreement also included sections stating that nothing in the agreement should prohibit a party from seeking modification, that disputes would be submitted to a court of competent jurisdiction, and that the agreement would be construed in accordance with Illinois law. In December 1994, the husband sought a transfer of custody and mental health examination of the child, alleging behavioral difficulties with the child. The trial court granted the mental health examination pursuant to Supreme Court Rule 215(a).

The mother responded in April 1995 with her motion to concede jurisdiction to Minnesota, stating Illinois was an inconvenient forum and Minnesota was a more appropriate forum. Under the UCCJA, a court making an initial determination may decline to exercise jurisdiction under an inconvenient forum analysis. In determining whether Illinois is an inconvenient forum, the court is to consider factors such as whether another state was the child's home state, or recently was the child's home state; if another state has a closer connection with the child and his family, or with the child and a contestant; and whether substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state. 750 ILCS 35/8(c). The trial court granted jurisdiction to Minnesota on the motion to concede, finding there was far more significant evidence in Minnesota than Illinois, so that the case could not be decided properly without extensive Minnesota evidence. Most important, the trial court found "the agreement of the parties on the forum should not be allowed to govern the choice of forum in a custody contest when the court is significantly handicapped in making the proper decision and in determining the best interest of the child."

The husband relied on three paragraphs in the settlement agreement:

2.11 . . . nothing in this agreement shall prohibit a party from filing a Petition for Modification of Residence or Visitation, all in accordance with Chap. 40, Ill.Rev.Stat.

2.17 . . . any dispute shall be submitted to a court of competent jurisdiction . . .

14.5(G) This agreement shall be construed under the general laws of the State of Illinois, irrespective of the later domicile or residence of the HUSBAND or WIFE.

The appeals court held that the language of the agreement did not constitute a forum selection clause that would limit the forum to Illinois. Forum selection clauses must be clear and specific, and are to be given effect unless enforcement would contravene strong public policy. The agreement did not state that the parties would file all post-decree proceedings in Illinois only. The trial court erred in finding that the parties made an agreement as to choice of forum. The provision that the agreement would be construed under Illinois law was rather a choice-of-law provision.

The appeals court reviewed the language of the settlement agreement. The agreement did not specifically preclude one party from requesting a jurisdiction concession, and the agreement contemplated that one party may seek a transfer to another state. The appellate court's holding, therefore, was that the trial court should have given effect to the terms of the settlement agreement, since it did not preclude a jurisdiction transfer.

The trial court properly granted the transfer of jurisdiction. The appellate court pointed to evidence that: 1) the child's home state was Minnesota; 2) Minnesota had a closer connection to the child than Illinois; and 3) there was substantial evidence in Minnesota. The appeals court understood the child's behavioral problems, but noted that much of the evidence relating to the behavioral problem was found in Minnesota, where the child was in school.

Stack — Filing Custody Petition Waives Personal Jurisdictional Argument / Interesting Case Involving No “Home State:” In IRMO Stack, 281 Ill.App.3d 423, 217 Ill.Dec. 290, 666 N.E.2d 1228 (2d Dist. 1996), the appellate court held that the trial court acted properly in considering that no alternate forum had exercised jurisdiction and in finding that Illinois was a proper forum under the UCCJA. The husband argued that, because he had no contacts with Illinois, the Illinois court lacked personal jurisdiction over him. The husband relied on IRMO Schuham,120 Ill. App. 3d 339, 76 Ill. Dec. 159, 458 N.E.2d 559 (1st Dist., 2d Div. 1983), in which it was held that proceedings as to custody and visitation under the UCCJA are quasi in rem. Schuham went on to state that if custody and visitation are quasi in rem proceedings, personal jurisdiction is unnecessary. The Second District appeals court rejected, as being too broad, the husband's reading of in rem jurisdiction, holding:

[Husband] was free to defend [wife's] petition for custody. However, [husband] additionally filed his own petition for custody. Such an action constitutes submission to the court's general jurisdiction. By bringing his own petition for custody, the husband was not merely exercising his right to be heard on the issue of custody; he was seeking the protection of Illinois law.

The appellate court further concluded that the husband's due process rights were not violated. His argument was that in order to establish custody rights to the child, he would have to submit to the jurisdiction of Illinois courts. The appeals court held, however, that if the husband successfully defended against the custody petition, the husband would, by default, have rights to the child, absent a finding of unfitness, since the husband was a parent.

The husband further attacked UCCJA jurisdiction. Under the UCCJA, a basis for jurisdiction is that Illinois is the "home state" of the child. The husband argued that since Illinois was not the home state of the child, Illinois could not exercise UCCJA jurisdiction. The appeals court held that the provisions of UCCJA are not to be applied mechanically, and pointed to the fact that Japan had not yet exercised jurisdiction. The trial court could properly take into account the fact that no venue had exercised jurisdiction in determining that Illinois was a proper jurisdiction under the UCCJA. It also noted that all evidence of the son's then-present life was in Illinois. The husband could not attack Illinois' UCCJA jurisdiction yet still file his own petition for custody in Illinois.

Finally, in dictum, the Second District opined that the trial court erred when it sua sponte prompted the husband to withdraw his counter-petition for custody, because the trial court does not have the power to "undo" a submission to general jurisdiction.

Service of Notice of UCCJA Proceedings — Service by Certified Mail, Return Receipt Requested are Sufficient Notice to Give Court Jurisdiction Per UCCJA: McGuane v. McGuane, 268 Ill.App.3d 751, 206 Ill.Dec. 570, 645 N.E.2d 575 (2d Dist. 1995), addressed service of notice of the UCCJA proceedings. It ruled that proceedings under the UCCJA for custody of a child are in rem; that service of notice of UCCJA proceedings by certified mail, return receipt requested, per section 6 of the UCCJA, are adequate to give the court jurisdiction; and that notice short of the 10 days required by section 6 is not a jurisdictional defect.

The parties were married in 1984 in Illinois. In December 1991 the father, a lawyer, accepted a commission in the United States Army, conditioned that he be stationed in Germany near the mother's family. The parties lived together in Germany until August 1992 when the mother and the children moved from the marital residence to the residence of the mother's parents in Germany. On January 15, 1993 the father filed a petition for dissolution of marriage and motion for temporary custody of the children in DuPage County. In support of his pleadings he filed an affidavit stating that all of the parties were residents of Illinois, that they were temporarily absent from Illinois pursuant to government orders, that they intended to return to Illinois and that the parties and the children all had substantial contact with Illinois. The father sent notice of his DuPage County petition to the mother by certified mail, return receipt requested. The mother's return receipt shows that she received the notice on January 21, 1993. Four days after the father filed his petition in DuPage County, the mother filed for divorce and temporary custody in Germany. On March 5, 1993 the German court refused to take jurisdiction over the divorce action, but then found that it had jurisdiction over the issue of temporary custody of the children based on the Hague Convention. The German court awarded "preliminary" custody of the children to the mother. On March 16, 1993 the father gave the mother notice of motion for a default judgment in the DuPage County case. Two days later, in the DuPage County case, the mother filed a special and limited appearance contesting personal and subject-matter jurisdiction in Illinois. On March 23, 1993 the DuPage court found it had jurisdiction because Illinois was the children's home state. The DuPage county court entered a default judgment and ordered that temporary custody of the oldest child be granted to the father and that the mother not leave Germany with the youngest child until the German court concluded a subsequent hearing. On April 1, 1993, before the second hearing in Germany, the mother took the children to North Carolina. On June 8 the mother registered the German judgment in North Carolina. In July 1993 the North Carolina court conferred with the other judges involved and the North Carolina court stated that it wanted jurisdiction transferred from Germany to North Carolina. The North Carolina court then entered an order granting the father 24 hours of visitation and ordering him not to remove the children from North Carolina. The father removed the children from North Carolina to Illinois. On August 23, 1994 the North Carolina court entered an order enforcing the German custody order granting the mother temporary custody of the children. The next day the DuPage County court entered an order finding that it continued to retain jurisdiction over the case and ordered the children to remain in the father's temporary custody.

In September 1993 the mother filed a habeas corpus petition in Kane County seeking to enforce the North Carolina judgment. The father moved to dismiss the habeas corpus petition on the basis that the Kane County proceedings was a collateral attack on the DuPage County judgment and therefore that the mother had the burden to show, from the face of the record of the DuPage County proceedings, that the DuPage County court lacked jurisdiction. The Kane County trial judge denied the father's motion to dismiss and eventually entered an order granting the mother's petition to enforce the North Carolina judgment. The Kane County court further ordered the father to deliver the children to the mother by 2:00 p.m. that day. The father appealed and filed a motion for stay of the transfer of custody order. The motion for stay was allowed. The appellate court reversed the Kane County court, ruling that the Kane County trial court erred in denying the father's motion to dismiss the mother's habeas corpus petition.

At the outset the second district opinion sides with the father's position that lack of jurisdiction must be shown to be shown on the face of the record. McGuane stated: "[W]here there is no jurisdictional defect apparent from the face of the record, a court of this State is not permitted to ignore a pending action in another court of this State."

McGuane notes that the Kane County court did not give any reason "for its implicit finding that the DuPage County court's order could be ignored for want of jurisdiction.” The mother, on appeal, suggested various reasons, including, first, that DuPage County lacked subject-matter jurisdiction under section 4 of the UCCJA since Illinois was not the children's home state and Illinois did not have the most significant connection with the children. The appellate court, however, pointed out that the only evidence contained in the DuPage County record on the issue of home state was the father's unrebutted affidavit that the parties' children continued to be Illinois residents and they were only temporarily absent from Illinois. Thus the court of review ruled that it is "unable to say that the court [DuPage County] lacked subject-matter jurisdiction in the case."

The mother also argued that the DuPage County orders were void because the service on her by certified mail, return receipt requested, did not give the court jurisdiction over her. The McGuane court points out that under section 6 of the UCCJA several methods of giving notice are provided, among which is "by any form of mail addressed to the person to be served and requesting receipt.” Section 6 also state that "notice is to be served, mailed, or delivered at least ten days before any hearing.” The mother also urged that the mail service on her did not comply with the ten day requirement. First, McGuane points out that personal jurisdiction over either parent is not required since "the court may proceed quasi in rem so long as the jurisdictional requirements of section 4 are met." The court of review also ruled that mail notice in this case was sufficient for the exercise of jurisdiction over a person outside of Illinois. As to lack of ten day notice, the appeals court ruled that this "was not a jurisdictional defect which could be attacked in this collateral proceedings."

Trial Court Errs in Granting Request for Injunction Against Bringing Action under UCCJA: IRMO James, 259 Ill.App.3d 29, 196 Ill.Dec. 783, 630 N.E.2d 948 (1st Dist., 3d Div. 1994) addressed the propriety of an injunction against bringing an action under UCCJA and ruled that the trial court erred in granting father's request for injunction against out-of-state physical-custodian mother, barring her, by preliminary injunction, "from filing any cause of action related to the custody or residency of the parties' minor child in any State other than Illinois.”

Other Case Law: IRMO Breyley, 247 Ill.App.3d 486, 187 Ill.Dec. 215, 617 N.E.2d 423 (3d Dist. 1993) ruled that the trial court's denial to transfer case to Texas on the basis of inconvenient forum was proper; although child had been in Illinois, husband had delivered child to wife in Texas where child was to be with the mother for several months until mother completed school. Father lived in Illinois, father had family and friends in Illinois who would be called as witnesses and there was an Illinois custody evaluator.

Section 8 of the UCCJA states that the court of Illinois may decline to exercise jurisdiction if the Illinois court is an inconvenient forum to make a custody determination under the circumstances of the case, and a court of another state is a more appropriate forum. The wife pointed out that the evidence showed the child has been residing in Texas since January 20, 1992 and she presented evidence that her family and friends reside in Texas and have knowledge concerning the child and her relationship with the child. The appellate court, however, noted that the child was removed from Illinois to Texas without the trial court's knowledge or consent, but the husband is present in Illinois and has visitation with the child in Illinois, that the husband has family and friends in Illinois who will be called as witnesses and that Dr. Sue Moriearty, who was conducting a custody evaluation, is located in Illinois.

IRMO Elblkasy, 241 Ill.App.3d 662, 182 Ill.Dec. 715, 610 N.E.2d 139 (3d Dist. 1993) addressed the forum non-conveniens issue in the UCCJA. It ruled that the decision of Illinois trial court to decline to exercise jurisdiction of child custody case found proper in close case applying UCCJA forums non conveniens provision after discussions between Illinois and New York trial court judges with pending custody petitions, when the Illinois mother was represented by counsel in the New York case but the New York father never appeared in the Illinois case; and where Illinois mother was not honest with Illinois court.

Emergency Jurisdiction Cases:

Court Cannot Bootstrap Emergency Jurisdiction under UCCJA to Award Permanent Custody Award: IRMO Alexander, 252 Ill.App.3d 70, 191 Ill.Dec. 331, 623 N.E.2d 921 (4th Dist. 1993) ruled that the decision of Illinois trial court to award permanent custody to father was improper as there was no UCCJA jurisdiction under the "substantial connection" portion of the statute, and exercising emergency jurisdiction under the UCCJA does not empower the court to enter a permanent custody order.

The parties in Alexander were married 1986 in Texas. Two children were born during the marriage. The parties separated in February 1991 and the mother and children moved to the mother's aunt's home in Texas. The children lived in Texas until their father moved them to Illinois in August of 1991.

The father filed a petition for divorce in Texas in March, 1991. His first Texas attorney drafted a final divorce decree which incorporated a marital settlement agreement. This draft provided joint custody with the mother being the residential parent. Both parents signed the draft final divorce decree. The mother also "signed a 'Waiver of Citation' (entry of appearance)" at the husband's attorney's office. On August 16, 1991, the husband "and his new attorney, without . . . [the mother's] knowledge but with her waiver of citation, appeared in the Texas Court and presented a final decree of divorce. . . . award[ing] . . . [the father] sole custody of the children and most of the marital property. That same day, . . . [the father] and the girls [moved] into the Toledo, Illinois, home of . . . [the father's] parents." On August 28, 1991 the mother retained a Texas attorney "who filed a motion for a new trial . . . . [O]n September 26, . . . [the father] filed a motion for nonsuit, without disclosing to the court that he now lived in Illinois with his two daughters."

On September 30, 1991, the father "filed a petition for dissolution of marriage in Illinois and a petition for emergency order of protection . . . . on an ex parte basis." Based on the father's testimony about inappropriate discipline of the children by the mother and the testimony of a therapist of the daughters that she believed (on the basis of play therapy) that the mother had abused the children, the Illinois trial court "issued an emergency order of protection which awarded temporary custody to . . . [the father] and prohibited the children's removal from Illinois."

On October 2, 1991, in Texas, the mother filed a petition for dissolution of marriage requesting custody of the girls. On February 18, 1992 the mother filed a "special appearance [in Illinois] for the purpose of vacating the ex parte order of protection and dismissing all other petitions filed. She alleged the [Illinois] trial court did not have subject-matter jurisdiction under the UCCJA [hereafter "UCCJA"] . . . ." On May 4, 1992, the Illinois trial court found that the mother's appearance was a general appearance because it included other relief beyond objecting to jurisdiction, and, thus, that the Illinois trial court had personal jurisdiction over the mother. On February 11, 1993 after a full evidentiary hearing on permanent custody, the Illinois trial "court entered a memorandum of opinion finding it had subject-matter jurisdiction over the two children . . . [based] upon the fact that the cause had a significant connection with the State of Illinois, and that there existed in Illinois substantial evidence of the children's present and future care, protection, training and personal relationships. An order was filed on March 2, [1993,] granting permanent custody of the children to . . . [the father] and allotting . . . [the mother] three weeks'[sic] visitation per year." The appellate court reversed and remanded.

The appellate court found that under the UCCJA, home state jurisdiction did not exist "because the children had not lived in Illinois for six months prior to the time this action was filed." In fact, the father "moved to Illinois a mere 45 days before he filed suit [for dissolution of marriage] here." The appellate court overturned the trial court's determination that Illinois had significant connections bases jurisdiction under the UCCJA.

The court commented the case did not meet the significant connection test in the UCCJA (without referring to the PKPA) Facts relative to the Illinois connection were the father's "parents were reared in Illinois . . . and . . . had lived in Illinois . . . 2 ½ years before . . . [the father's dissolution of marriage] suit was commenced. . . . [;] unidentified other relatives reside in Illinois . . . . [; the father residing in] Illinois . . . 45 days before he filed suit here. . . . [; and t]he girls have spent . . . two vacation periods in Illinois, both during the summer of 1991, when their parents were separated." The appellate court found that the evidentiary contacts of these children with Illinois was "some evidence" not "substantial evidence.” The court states that:

(T)he term 'substantial evidence' . . . was . . . intended to require a high degree of connection and access to evidence. . . .[, and based on t]he Commissioners' Note . . . was intended 'to limit jurisdiction rather than proliferate it' and '(t)he interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the State.' (Citations omitted.)

Although the trial court did originally find that it had emergency bases UCCJA jurisdiction, the appellate court noted that the trial court's permanent custody decision could not be based on emergency UCCJA jurisdiction.

Gainey v. Gainey, 237 Ill.App.3d 868, 178 Ill.Dec. 427, 604 N.E.2d 950 (3d Dist. 1992) also addressed the emergency jurisdiction exception in the UCCJA. The parties had been divorced in Florida in October, 1989. Custody of the three children was awarded to the mother. In March of 1991 she contacted the father, who resided in Illinois, and asked him to take the children back to Illinois so that she could seek mental health treatment in Florida. No modification was made of the Florida judgment and it was the mother's understanding that the father would return the children to her at the end of the 1990-91 school year. When, at the end of the 1991 school year, the father did not return the children, the mother instituted contempt proceedings against him in Florida. The father reacted by filing, in Illinois, a petition for assumption of custody jurisdiction, a motion for custody under the UCCJA and a motion for an ex parte temporary restraining order. The Illinois court granted the temporary restraining order and entered an order assuming jurisdiction of the children under the UCCJA. The mother entered a special appearance challenging subject matter jurisdiction in Illinois. Her motion to vacate the order assuming custody jurisdiction was denied. The mother appealed. The appellate court reversed, holding that the Florida court had jurisdiction.

It stated that the father argued that the Illinois court had jurisdiction on an emergency basis under section 4(a)(3)(ii) of the UCCJA. He urged that the mother's mental stability jeopardized the safety of the children because she was recovering from suicidal depression. To this the appellate court responded:

This emergency jurisdiction provision is meant solely to prevent irreparable and immediate harm to children, and absent other jurisdictional prerequisites, does not confer on the State exercising emergency jurisdiction the authority to make a permanent custody determination.

Los — Since Custody Jurisdiction under IDVA is pursuant to the UCCJA, Personal Jurisdiction is not relevant as to Award of Temporary Custody Under the IDVA — Without Addressing Substantive Due Process Issue: IRMO Los, 229 Ill.App.3d 357, 170 Ill.Dec. 584, 593 N.E.2d 126 (2d Dist. 1992) ruled that since child custody jurisdiction under the Illinois Domestic Violence Act is determined by the UCCJA, personal jurisdiction over a respondent is irrelevant under the latter and also irrelevant for purposes of issuing an order of protection granting child custody on a temporary basis.

Substantive Due Process Issue Not Addressed: Even though the reviewing court noted that personal jurisdiction over a respondent was an irrelevant issue under the UCCJA, it recognized that this act's jurisdictional requirements arguably infringed upon a respondent's substantive due process rights. While acknowledging that a substantive due process argument had some merit, the appellate court elected to follow "established precedent" and left "the question of personal jurisdiction under the custody Act for the legislature to ponder."

Jurisdiction Per UCCJA / PKPA: With respect to respondent's argument that Illinois did not have jurisdiction pursuant to the PKPA, the reviewing court ruled as follows: the PKPA provides that a state court may modify a custody order entered by the court of another state provided the modifying court has jurisdiction to make its determination AND the other court either no longer has jurisdiction or has declined to exercise jurisdiction to modify its determination. The appellate court noted that it had already determined that Illinois had jurisdiction to issue its orders under the UCCJA and found that the letter from the Delaware court noting that there was no pending action before it satisfied the requirement that the Delaware court was no longer exercising its jurisdiction.

Procedural Due Process Problems: Notwithstanding its rulings on jurisdiction, the reviewing court found that the protective orders issued by the Illinois trier were improper on procedural due process grounds. The appellate court noted that father was not given notice of the hearing for the emergency order of protection and mother's petition for that relief did not recite what exigent circumstances existed to justify issuance of the protective order without prior notice to father. The reviewing court characterized the basis of the emergency order of protection as follows:

The emergency order of protection was based on a false accusation by [the father] had abducted the children. [The Father] had custody in July and August pursuant to a valid Delaware judgment that was unmodified at the time his visitation began.

Since the plenary order of protection was based on the defective emergency order of protection, the mother's other petitions all violated father's procedural due process rights for lack of proper notice. Thus, the Los court vacated all of trial court's orders and remanded with directions that the trial court schedule a hearing on mother's petitions for a rule to show cause and attorney's fees as well as for a modification of the Delaware judgment. The appellate court concluded its opinion with the following statement:

We do not appreciate the way in which the judicial system was manipulated in this situation. Catherine should have petitioned for modification of the judgment at a time when her children's visitation with their father would not be disrupted. Instead, she created an inconvenient and frustrating situation for Simon by seeking an emergency order of protection and modification of the judgment at the exact time that his visitation was to begin. The court system would best serve the community if these adolescent tactics were avoided.

This is language that I have used in other cases whether the opponent has tried to “bootstrap” a claimed emergency under the IDVA in order to gain an advantage relative to jurisdictional issues involving custody.

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April 25, 2003