Posted by & filed under Child Custody.

 

 

A court can only review a case if it has the proper jurisdiction. Basically, “jurisdiction” is a court’s power to make legal decisions and judgments. This is true in all cases, including battles over child custody.

Determining whether an Illinois court has jurisdiction to review a particular child custody case depends on the facts at issue. Under the Uniform Child Custody Jurisdiction and Enforcement Act, Illinois courts must sometimes defer to custody judgments issued by, or proceedings initiated in, other states if that court is the more appropriate forum. For example, an Illinois court has jurisdiction if this is the child’s home state. But if one of the child’s parents lives in Illinois while the child lives elsewhere, jurisdiction is more likely proper in the other state.

The Case before the Illinois Supreme Court

A case currently before the Illinois Supreme Court further complicates matter. The case, McCormick v. Robertson, is a custody battle between an Illinois resident and an out-of-state resident. In 2010, the Illinois resident (the father) filed a petition in Illinois to establish paternity and child custody. The mother, who lived in another state with the child, appeared at the proceeding. Together the parties presented a joint parenting agreement. The court entered a final judgment establishing parentage and custody.

In 2013, the father filed a new petition in the same court, seeking sole custody of the child. Meanwhile, the mother initiated a separate proceeding in Nevada and responded to the Illinois petition by arguing that the original judgment was void because the Illinois court never had jurisdiction to review the case. The two courts discussed the matter and determined that Nevada, not Illinois, had jurisdiction. Subsequently, the Illinois court vacated its 2010 judgment establishing parentage and custody and dismissed the father’s case.

The Illinois appellate court reversed, holding that the lower court’s jurisdiction stems from the Illinois Constitution. The appellate court determined that the Uniform Child Custody Jurisdiction and Enforcement Act adds to, but does not subtract from, an Illinois court’s jurisdiction. Thus, the appellate court said, because jurisdiction exists under the state Constitution, the lower court should not have voided its 2010 order.

The mother appealed this decision to the Illinois Supreme Court, which heard oral arguments in the case last month. If the court upholds the lower court determination, then the father’s case cannot proceed in Illinois. If the court affirms the appellate court determination, then more jurisdictional questions will likely arise in the future, especially in cross-state custody disputes.

Jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act

Under the Uniform Child Custody Jurisdiction and Enforcement Act, an Illinois court only has jurisdiction to make an initial child custody determination if:

  • Illinois is the child’s home state or was the child’s home state within six months before the proceeding commenced and a parent continues to live in the state;
  • Another state does not have jurisdiction or the child’s home state has declined to exercise jurisdiction on the ground that Illinois is the more appropriate forum, and:
    • The child and at least one parent have a significant connection to Illinois other than physical presence; and
    • There is substantial evidence in Illinois concerning the child’s care and personal relationships;
  • All courts that have jurisdiction have declined to exercise that jurisdiction on the ground that Illinois is the more appropriate forum; or
  • No other court in any state would have jurisdiction.

Our family law attorneys at the Law Office of Elizabeth J. Chacko, P.C. stay up-to-date with the latest developments in family law, especially when the Illinois Supreme Court weighs in. We will be watching this jurisdictional issue very closely. Contact us today if you are involved in a child custody dispute. We can assist those in Wheaton, Naperville and Downers Grove.

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