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October 4, 2013
At the invitation of the Illinois Supreme Court Rules Committee, Attorney Gary Schlesinger will be one of the speakers at a public hearing in Chicago, Illinois on Friday, October 4. The hearing is on the proposed Illinois Supreme Court rule 138, dealing with privacy of information in court papers.
September 24, 2013
On September 24, Gary Schlesinger was a speaker at a Continuing Legal Education seminar. The subject was Legal Ethics and Trust Account Management.
By Gary L. Schlesinger
What is Jurisdiction and does the Court need it in a custody case?
Jurisdiction is power. In order for a court to do something, it needs to have the power to do so. The court needs power over the subject matter. A court cannot make rain even though some judges may feel they are omnipotent. Statute, rule or constitution confer subject matter jurisdiction. It cannot be conferred by agreement of the parties.
The statute that permits the court to adjudicate custody matters is the Uniform Child Custody Jurisdiction Act, 750 ILCS 35/1, et. Seq. This is the statute that 750 ILCS 5/601 refers to as the one giving courts power to decide custody matters. So the IMDMA does not determine custody jurisdiction, the UCCJA does. That statute creates a concept called the home state, which is where the child has lived for the last six months. Generally, that is the state with subject matter jurisdiction. 750 ILCS 35/4.
There are other ways that a court may acquire subject matter jurisdiction that are listed in that section, if the six-month residency in Illinois does not exist. When reading this section, be mindful of the words "or" and "and." If this had been the home state within six months of the commencement of the action and the child is absent by a person claiming custody and a parent or person acting as parent is in Illinois, Illinois has jurisdiction. If one parent and the child are here and there are significant connections with Illinois, there is jurisdiction if there is substantial evidence about the child's present or future care here.
Regardless of the six months, if the child is here and abandoned or it is an emergency to protect the child or no other state would have jurisdiction or another state has declined jurisdiction there to Illinois and it is in the child's best interest for Illinois to assume jurisdiction, Illinois has jurisdiction.
Just because Illinois has jurisdiction under the statute, it need not exercise it. If there is a simultaneous proceeding in another state pending when the one here is filed, the court shall not exercise jurisdiction. This means that there is jurisdiction but we do not proceed here. That is different than failing to proceed because there is no jurisdiction. 750 ILCS 35/7. (Being raised in the Talmudic tradition and having a Jesuit education sure helps here!).
Lastly, a court here may chose not to proceed with the case even if it has jurisdiction if this court is an inconvenient forum as defined in 750 ILCS 35/8.
In order for the court to be able to make the determination as to subject matter jurisdiction, the statute requires that in the initial pleading of each party or in an affidavit attached to it, the pleader shall give under oath the present address of the child, the addresses for the last five years, the names and addresses of the persons with whom the child has lived for the last five years. Also, in the first pleading, declare whether he has been a litigant concerning custody of this child in Illinois, or elsewhere, if the pleader knows of a custody proceeding about this child in any other state or court, if a non-party to this action has physical custody of the child or claims to have custody or visitation rights. 750 ILCS 35/10. (All that do this please raise your hands.)
In addition to subject matter jurisdiction, Courts often need jurisdiction over the person to do certain things. Personal jurisdiction is achieved in the ways specified in the Illinois Code of Civil Procedure, 735 ILCS 5/2-203, 208 and 209. If a court is to impose an affirmative obligation on a party, such as to pay money, it must have personal jurisdiction first. International Shoe Co. v. Washington, (1945) 326 U.S. 30, 66 S.Ct. 154; Kuklo v. Superior Court (1978) 436 U.S. 84, 98 S.Ct. 1690.
However, the UCCJA does not require personal jurisdiction, since a custody determination does not include child support or other money matters. The custody status of a child may be decided quasi in rem. IRMO Schuham, 120 Ill.App.3d 339, 458 N.E.2d 559 (1st Dist. 1983). According to Black's Law Dictionary, /th Ed., quasi in rem is Latin, meaning "as if against a thing." The definition of the phrase is involving or determining the rights of a person having an interest in property located within the court's jurisdiction. Thus in Schuham, without personal service or a general appearance, the court could make decisions about custody and visitation, but not about child support.
Schuham and two other cases deal with enrolling and attempting to modify out of state custody judgments in Illinois in this situation: divorce in another state, custody to mom, visitation to dad, mom and kids move to Illinois, mom wants to modify visitation. All three say the same thing: custody and visitation are a status that the court can modify if it has subject matter jurisdiction under the UCCJA, 750 ILCS 35/4, regardless of personal jurisdiction over the out of state dad.
In one case, IRMO Bueche, 193 Ill.App.3d 594, 550 N.E.2d 48 (2nd Dist. 1990) the trial court dismissed mom's petition since dad still lived in Michigan, where the parties were divorced, and the judgment said that Michigan retained jurisdiction. The Second District held that the retention clause was not binding and did not mandate the Michigan venue when Illinois was the home state. Illinois has a retention clause in its statute that is not in any other state's version of the UCCJA. Since the Michigan statute does not have such a clause, the retention clause in the judgment is not binding on the court in Michigan if the Michigan court lost subject matter jurisdiction under the UCCJA.
The third case is IRMO Bueche, 262 Ill.App.3d 910, 653 N.E.2d 980 (1st Dist. (1994). In this case, dad filed a general appearance and court thus also had power to modify child support and hold him in contempt for failing to pay medical expenses as ordered.
There is a horrible convoluted and confusing fact situation in another Second District Opinion in which the court agreed with Schuham and Bueche. IRMO Mc Guane, 268 Ill.App.3d 751 645 N.E.2d 575 (1995).
"Before making a judgment under this Act, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. If any of these persons is outside this State, notice and opportunity to be heard shall be given pursuant to 750 ILCS 35/6." 750 ILCS 35/5.
Section 35/6 says notice to a person in initial custody proceedings is governed by the civil practice act. Section H says that notice to a person outside the state in all custody proceedings may be given by personal service or mail or another manner directed by the court. So, which is it, notice pursuant to the CPA or pursuant to Section b? There are no cases that say which. The CPA permits service by publication is one of the listed methods. Perhaps it is "as directed by the court if other means of notice are ineffective." How effective is publication?
What notice is required in a modification case to a person in Illinois? The statute does not say.
The court may order a person in Illinois or over whom it has personal jurisdiction to appear in courts personally and bring the child to court. 735 ILCS 35/12. So how do you notify a person in this state to come to court? You have to give notice pursuant to the Civil Practice Act per Section 35/6. That act requires personal or abode service, 735 ILCS 5/2 - 203, or by publication if the person cannot be found, 5/205. So the person is in Illinois, cannot be found for personal service, is served by publication and the court orders him or her to appear. How effective is that?
Who write this stuff? The National Conference of Commissioners on Uniform State Laws, as expanded by the Legislature of the sovereign state of Illinois, is who.
The conclusion is that custody determinations do not require personal jurisdictions but do require the best notice possible.
The Federal Parental Kidnapping Prevention Act is 28 USCA 1738A. Its purpose is to "deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards." Sec. (c) 6 of Sec 7 of Pub. I. 96-611. A cursory or even a thorough reading will reveal that it is amazingly similar to the UCCJA Section 35/4 and the definitions sections. Prior to the enactment of this statute, almost every state failed to give full faith and credit to custody and visitation orders of sister states. The states took the position that they stood in loco parentis for children within their borders and had to make their own determinations about custody and visitation. This resulted in parents jumping from one state to another to attempt to get a favorable determination. This statute and the UCCJA were adopted to prevent that.
"The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f) (g) and (h) of this section, any custody determination or visitation determination made consistently with the provisions of this section by a court of another State." Clause (f) permits modifications if this state has jurisdiction and no other state does or another state declined it. Clause (g) says do nothing if another state is currently litigating the issues. Clause (h) says do not modify visitation unless no other state has jurisdiction to or another state has declined jurisdiction.
The discussion of this action would be almost identical to the discussion of the jurisdiction provisions of the UCCJA, so I will spare you that, supported by citations to Federal opinions. However, if the UCCJA and the FPKPA conflict, under the Federal supremacy doctrine, the FPKPA controls. U.S. Const. Art. 6., Clause 2.
Moving upward, the next law governing custody jurisdiction is the International Child Abduction Remedies Act (The Hague Convention) 42 USCA 11601-11610. This statute adopts the Convention. The statute and the Convention can be found in the Muller Davis book in which it takes up 18 whole pages so I am not attaching it here. Also in the Davis book is a small print copy of the State Department analysis of the Convention. That takes 13 pages. Happy reading.
The role of the Convention is to prevent parents from taking children to another country wrongfully, which may be a violation of a custody order or the law of the forum state. Signatories agree to give full faith and credit to custody determinations of courts of other signatories. The Convention also has a mechanism for the return of a child wrongfully taken from a county even though there is no custody order. It is beyond the scope of this presentation to give a detailed analysis of the Convention and the procedure to be followed.
In addition to the civil remedies, there are criminal ones. Proscriptions of 18 USCA 1204 make it a federal crime to remove a child from the U.S. "with intent to obstruct the lawful exercise of parental rights." Likewise, 720 ILCS 5/10-5 makes child abduction a crime. One who "intentionally violates any terms of a valid court order granting sole or joint custody, care or possession to another, by concealing or detaining the child or removing the child from the jurisdiction of the court" commits this offense. Also, "intentionally conceals or removes a child from a parent after filing a petition or being served with process in an action affecting marriage or paternity but prior to the issuance of a temporary or final order determining custody." There are many other sub paragraphs to this statute that define the crime. Please read it.
Gary Schlesinger is in sole practice, concentrating in family law, with offices in Libertyville.