Illinois Child Custody Jurisdiction
Kimberly Anderson

Our client Wayne, came to us seeking help having Illinois retain child custody jurisdiction in his case. Wayne is a Navy officer with a long history serving the country in the United States Navy.  He’s been doing that for the past 17 years.  While he was in the service, his wife decided she wanted a divorce, and they divorced amicably.  But while he was deployed, his wife moved from the State of Illinois with his daughter, all without the Court’s permission.  

It became a constant battle to see his little girl.

Removing the Child from Illinois Without Court Permission

In Illinois, you need to ask the Court’s permission in order to remove a child from the State of Illinois if you and the other parent have an Illinois court order dictating each parties’ parenting schedule.  That didn’t stop Wayne’s wife. 

I guess she figured that since he was deployed, there was really nothing he could do about it.  At that time, Wayne could have hired a family law attorney to fight her, but he had other things on his mind while deployed and at sea and did not timely object.  That was years ago. Now, he recently found himself in court again when his ex-wife wanted to move the child custody case from Illinois down to Texas.

Illinois Child Custody Jurisdiction Law

Wayne’s ex-wife looked to the Illinois statute 750 ILCS 36/202, which states that: 

 (a) Except as otherwise provided in Section 204, a court of this State which has made a child-custody determination consistent with Section 201 or 203 has exclusive, continuing jurisdiction over the determination until: (1) a court of this State determines that neither the child, the child’s parents, and any person acting as a parent do not have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships; or

(2) a court of this State or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this State.

Father Retained Residency in Illinois

 What Wayne’s ex-wife didn’t know, was that Wayne was still a resident of the State of Illinois.  He may not have lived here for years while he was in the Navy, but he still pays taxes to Illinois and files his yearly return here.  It is his intention to reside in Illinois when he retires from the Navy, which could be as soon as three years from now. 

Wayne could have agreed to let her move the case to Texas since he admittedly was residing in another state as well. However, he found it was troublesome how much his daughter had moved around in her short life.  His daughter had been relocated to over 5 different states in her 10 years and it was too much.  Wayne felt that the only way to keep his ex-wife accountable was through the court system and the system that knew their case was in Illinois.

Mother’s Attempt to Argue Inconvenient Forum

When Wayne’s ex failed to move the case under 750 ILCS 36/202, she attempted to move the case because it wasn’t convenient for her to hear it in Illinois. Under Illinois’ inconvenient forum law,  750 ILCS 36/207,  it provides as follows:

(a) A court of this State which has jurisdiction under this Act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.

(b) Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

    1. whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
    2. the length of time the child has resided outside this State;
    3. the distance between the court in this State and the court in the state that would assume jurisdiction;
    4. the relative financial circumstances of the parties;
    5. any agreement of the parties as to which state should assume jurisdiction;
    6. the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
    7.  the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
    8. the familiarity of the court of each state with the facts and issues in the pending litigation.

(c) If a court of this State determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child-custody proceeding is promptly commenced in another designated state and may impose any other condition the court considers just and proper.

(d) A court of this State may decline to exercise its jurisdiction under this Act if a child-custody determination is incidental to an action for divorce or another proceeding.  

Illinois Retains Jurisdiction

Although Wayne’s ex-wife lived in another jurisdiction, she had to have the Illinois court give up its jurisdiction and agree to let Texas take it.   After many hours in court and a lot of negotiation, Illinois decided to keep the case.  It felt good to defeat her and to demonstrate that just because Wayne had not fought her initially when she moved with their daughter, those days were over and he was not about to be pushed around by his ex anymore.  Illinois retains jurisdiction on this case and found that it was not inconvenient to litigate here, as Wayne would need to travel to Texas or Illinois, and based on all the evidence, Wayne’s domicile was Illinois.

 

 

 

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