What is Necessary for the Power to Make A Decision?

By Gary L. Schlesinger

The Docket
A Publication of the Lake County Bar Association
June 1999 Vol. VI, No. 6

Special Family Law Issue

JURISDICTION

In order for a Court to do anything, it needs two kinds of jurisdiction. "Subject Matter Jurisdiction" is the power of the Court to adjudicate. "Personal Jurisdiction" is the ability of the Court to exercise that power as to particular individuals. Lack of personal jurisdiction does not deprive the court of subject matter jurisdiction, but only the ability to exercise the power of the court upon those who have not been brought into court by summons or otherwise. In the Interest of LED, 115 Ill.App.3d 993, 451 N.E. 289, 71 Ill.Dec.574.

1. Personal Jurisdiction
   1. A court has personal jurisdiction over a person who has been served with a summons anywhere in the State of Illinois. 735 ILCS 5/2-209(b)(1).
   2. A Court may have jurisdiction over someone who has been served outside the State of Illinois if that person committed an act that submits him to the jurisdiction of the Illinois Court. 735 ILCS 5/2-208 and 209. This is commonly called the Long Arm Statute.
      1. The United States Supreme Court decided Kulko vs. The Superior Court of California (1978). 98 S.Ct. 1690, 436 US 84. Couple divorced in New York. Wife and child moved to California. Father acquiesced to move. Mother sought to set child support in California against father. U. S. Supreme Court held that the due process clause of the 14^th Amendment to the United States Constitution operates as a limitation on the jurisdiction of state courts to enter judgements affecting rights or interests of non-resident defendants. A valid judgment imposing a personal obligation may only be entered by a court having personal jurisdiction over the defendant. The existence of personal jurisdiction depends upon the presence of reasonable notice to the defendant that an action has been brought and a sufficient connection between the defendant and the forum state to make it fair to require the defense of the action in the forum state. There was not a sufficient connection in this case and the California court did not have jurisdiction over Mr. Kulko.
      2. Similar Illinois Appellate Court decisions are:
         1. Duncan vs. Duncan, 94 Ill.App.3d 868, 419 N.E.2d 700, 50 Ill.Dec.592 (3^rd Dist. 1981).
         2. In Re: The Marriage of Cody, 636 N.E.2d 1114, 201 Ill.Dec.682 (5^th Dist. 1994).
      3. Sections of 5/2-209 applicable to family practitioners are:

         (5) With respect to actions for dissolution of marriage, declaration of invalidity or legal separation, maintaining a matrimonial domicile in Illinois at the time the cause of action arose or committing in Illinois an act giving rise to the cause of action..

         (6) for an action under the Parentage Act, the performance of an act of sexual intercourse within the State of Illinois.

         (8) the performance of sexual intercourse within the state which is claimed to have resulted in the conception of a child who resides in this state.

         (9) the failure to support a child, spouse or former spouse who has continued to reside in this sate since the person either formerly resided with them in this state or directed them to reside in this state.

   3. There are slightly different rules for personal jurisdiction under the Uniform Interstate Family Support Act. 750 ILCS 22/201. Long Arm jurisdiction can be obtained if the defendant resided with the child in Illinois, the defendant resided in Illinois and provided pre-natal expenses or support for the child, the child resides in Illinois as a result of the acts or directives of the defendant, the defendant engaged in sexual intercourse in Illinois and the child may have been conceived by that act, or of any other basis consistent with the constitutions of Illinois or the United States.
   4. How to object to personal jurisdiction.
      1. 735 ILCS 5/1-301. Before filing any other pleading, file a Special and Limited Appearance. WARNING: Any Appearance that is not a Special Appearance is a general Appearance.
      2. If the reason for your objection to the personal jurisdiction is not apparent from the papers already in the court file, the Special and Limited Appearance must be supported by an Affidavit setting out the reasons.
      3. Make certain you only pray that the Court determines it has no personal jurisdiction. If you request any other relief, you are submitting your client to the jurisdiction of the court and yourself to a possible malpractice claim. Do not pray for attorney’s fees. Do not pray for such further or different relief as the court deems appropriate. Do not pray for a substitution of judge.
      4. If you win this motion, the case is over as far as your client is concerned.
      5. If you lose this motion, you have a horrible choice to make. Do you convert your Special and Limited Appearance to a general Appearance and participate in the case? (If you do, and a judgment is entered against your client, you can no longer appeal the jurisdictional issue).
      6. The other alternative is to not participate in the rest of the case, have a default judgment entered against your client and then appeal the jurisdictional issue at the conclusion of the case.
2. Subject Matter Jurisdiction
   1. Custody and Visitation.
      1. The Dissolution Act, 750 ILCS 5/601 and 5/607.
      2. Guardianship pursuant to the Probate Act, 755 ILCS 5/11-7. If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and a fit person, he is similarly entitled. The parents have equal powers, rights and duties concerning the minor. If the parents live apart, the Court for good reason may award the custody and education of the minor to either parent or to some other person.
      3. 755 ILCS 5/11-7.1 gives the Court power to award visitation to grandparents whenever both the natural or adoptive parents of a minor are deceased. The Court has discretion to give reasonable visitation rights to any other relative of the minor "or other person having an interest in the welfare of the child."
      4. The Uniform Child Custody Jurisdiction Act, 750 ILCS 35/4, h..h confers subject matter jurisdiction on the courts of this state if this state is the home state of the child or had been the home state within 6 months prior to commencing the proceedings.

         If neither of those circumstances exist, Illinois can assume jurisdiction if it is in the best interest of the child, if there is a significant connection between this state and the child and at least one parent and there is available in Illinois substantial evidence concerning the child’s present or future care, protection, training and personal relationships.

         If these circumstances do not exist and the child is physically present in Illinois, has been abandoned or it is necessary to protect the child in an emergency, then Illinois can assume jurisdiction.

         If neither of the above exists, and if no other state would have jurisdiction under the paragraphs above, or if another state has declined jurisdiction on the ground that Illinois is the more appropriate forum, and if it is in the best interest of the child that Illinois assume jurisdiction, then Illinois has jurisdiction.

         Once Illinois has jurisdiction over a child, it keeps it unless it concedes jurisdiction to another sate or if none of the parties nor the child reside in Illinois.

         "Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody." 750 ILCS 35/4(d).

      5. The Adoption Act. Once an adoption is filed, the Court is to hold a hearing to determine "whether there is available suitable temporary custodial care for a child sought to be adopted." 750 ILCS 50/13A(b).

         "In the event a judgment order for adoption is vacated or a petition for adoption is denied, the Court shall promptly conduct a hearing as to the temporary and permanent custody of the minor child who is the subject of the proceedings, pursuant to Part VI of the Illinois Marriage and Dissolution of Marriage Act. The parties to said proceedings shall be the petitioners to the adoption proceedings, the minor child, any biological parents whose parental rights have not been terminated and other parties who have been granted leave to intervene in the proceedings." 750 ILCS 50/20. This is the reaction of the Illinois Legislature to the decision of the Illinois Supreme Court that is commonly known as the Baby Richard case.

      6. The Illinois Parentage Act of 1984. 750 ILCS 45/14(A)(1). The parentage judgment shall contain or reserve provisions concerning "the custody and guardianship of the child, visitation privileges with the child…In determining custody, joint custody, or visitation, the Court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act".
      7. The Juvenile Court Act. 705 ILCS 405/1, et. seq. Minors who have been determined to be neglected or abused or dependent may have their custody and guardianship determined pursuant to 705 ILCS 405/2-23. The Court has the power to place the child with parents, a suitable relative, another person as legal guardian or custodian under the guardianship of a probation officer, commit the child for placement to an institution under the Department of Corrections or commit the child to the Department of Children and Family Services for care and service. (Which is worse?)

         The Court has the power to deal with the custody of a minor who is truant or requires authoritative intervention (a child who is absent from home without consent of parent, guardian or custodian, or a child who is beyond the control of the parent, guardian or custodian, in circumstances constituting a substantial or immediate danger to the minor’s physical safety). 705 ILCS 405/3-3.

         Custody and guardianship may be determined for these children pursuant to 705 ILCS 405/3-24.

         Custody of addicted minors may be determined pursuant to 705 ILCS 405/4-21.

         The custody of delinquent minors may be determined pursuant to 705 ILCS 405/5-23, 5-29.

      8. The Illinois Domestic Violence Act gives the Court power to award the physical care and possession of a minor child in order to protect the minor from abuse, neglect or unwarranted separation from a person who has been the child’s primary caretaker or to otherwise protect the well-being of the child. 750 ILCS 60/214(b)(5). Pursuant to (6), the Court has the power to award temporary legal custody. Pursuant to (7), the Court has the power to award, restrict or deny visitation. "The Court shall not be limited by the standards set forth in Section 607.1 of the Illinois Marriage and Dissolution of Marriage Act."
   2. Child Support
      1. 750 ILCS 5/505 (Illinois Marriage and Dissolution of Marriage Act.) The Court also has the power to order health insurance pursuant to 5/505.2 and a contribution to day care pursuant to In Re. The Marriage of Serna, 172 Ill.App3d 1051, 527 N.E.2d 627.
      2. 750 ILCS 15/1(a) (Non-Support of Spouse and Children Act). Failure to pay support is a Class A misdemeanor. State’s Attorney or the Attorney General prosecutes the support obligor. The Court has the power to set temporary support using the 505 guidelines. 750 ILCS 15/3. Permanent support is set pursuant to 15/4.
      3. 750 ILCS 22/100, et seq. Uniform Interstate Family Support Act.

         The Court in this State has subject matter jurisdiction to enforce support orders of other states and to modify them in certain circumstances. The most important and perhaps confusing section of this statues is 750 ILCS 22/205. Only one court at any time can have continuing exclusive jurisdiction over a child support order. Illinois may not modify the support order of another state which has continuing exclusive jurisdiction over a child support order.

      4. 750 ILCS 45/14. The Illinois Parentage Act of 1984 gives the Court power to set child support in parentage cases. The Court is to refer to the Section 505 guidelines.
      5. The Illinois Domestic Violence Act gives the Court the power to set child support. 750 ILCS 60/214(b)(12). The standards of the Illinois Marriage and Dissolution of Marriage Act shall govern.
      6. The Juvenile Act gives the Court power to set support. However, the Court is not bound by the standards of the Dissolution Act, but the standards of the Children and Family Services Act. 20ILCS 505/9.1. There are rules in Title 89 of the Illinois Administrative Code, Part 352 and Section 352.4.

         The Juvenile Court section is 705 ILCS 405-23(5) for neglected, abused or dependent minors. Identical language relating to minors requiring authoritative intervention is also found in 705 ILCS 405/3-24(5). For addicted minors an identical section is in 405/4-21(5). An identical section for delinquent minors is in 705 ILCS 405/5-23(5).

      7. There is no provision for child support in guardian of a minor estate case under the Probate Act, 755 ILCS 5/11-1.0 et seq., because it is the duty of the guardian of a person to provide custody, nurture, tuition and education of the ward and of the ward’s children. If the estate of the ward is insufficient to provide for the education, and the guardian of the person fails to provide for the education, the Court may award custody of the ward to some other person for purposes of providing education. Therefore, it appears that the guardian of the person of a minor is responsible for supporting the minor without help from anybody else. However, what about all the other statutes that say that both parents have a duty to support the child?
   3. Maintenance.
      1. Dissolution 750 ILCS 5/504.
      2. Legal Separations 750 ILCS 5/402(a).
   4. Division of Property
      1. 750 ICLS 5/503.
      2. In a legal separation case, the Court does not have the power to determine ownership of property, but merely to award the parties the use of property, unless they agree to give the Court that power. In Re: The Marriage of Leff, 148 Ill.App3d 792, 499 N.E.2d 1042, 102 Ill.Dec.262 (2^nd Dist. 1986).
   5. Injunctive Relief.
      1. 750 ILCS 5/50(a)(2).
      2. 735 ILCS 5/11-101 and 11-102.
   
   
   

   WHY ARE ALL OF THESE STATUTORY SECTIONS NECESSARY? BECAUSE…

3. Applicable Local Court Rules.
   1. Found in Volume II of the West Illinois Court Rules and Procedure handbook and in Sullivan’s Presumably available in the Lake County Law Library.
   2. According to Local Court Rule 1.20, the Chief Judge may appoint judges to various standing committees. The standing committees may include a local court rules committee. The local court rules committee prepares proposed rules which the judges adopt.
   3. Rule 2.01 deals with motions and notice. Each motion must be in writing, the notice appended to the motion and the attorney registration number of the attorney must be on the document filed.
   4. Rule 2.01(d), "Each motion shall be captioned with the case name and number and shall include the Supreme Court Rule Code of Civil Procedure section or other statutory section upon which it is based."
   5. Rule 2.01(m), "The burden of calling for hearing any motion previously filed is on the party making the motion. If any such motion is not called for hearing within sixty (60) days from the date it is filed, the Court may consider the motion denied by reason of delay."
   6. Rule 3.02(a), "If a pleading contains multiple courts or affirmative defenses, each count or defense shall bear a short title concisely stating the theory of liability or defense."
   7. Local Rule 2.02 (c) requires that courtesy copies of a motion, any challenged pleading and any writing in support or in opposition to the motion shall be delivered to the chambers of the assigned judge not less than 5 court days prior to the hearing if the motion is pursuant to Supreme Court Rule 219, Rule 137, Sections 2-615, 2-619, 2-619.1 or 2-1005 of the Code of Civil Procedure. You are also to include a complete citation to any case, or other authority, which you will rely on in oral argument and a full copy of any decision of a state court outside the State of Illinois. The cover letter transmitting these materials is to be copied to all counsel of record.
   8. Local Rule 11.02 requires more than the 1-page form affidavit. "In all proceedings involving application for attorney’s fees, costs, maintenance, child support or any modification of the aforesaid orders, the applicant for such relief shall serve notice pursuant to Supreme Court Rule 11 of the hearing on the application. The applicant shall serve on all parties entitled to notice a financial affidavit in the form approved by the Court. Proof of serving the affidavit shall be filed on the date set for the hearing on the application."
   
   

   Gary L. Schlesinger practices family law with offices in Libertyville, IL.

   Gary L. Schlesinger
   Suite 300
   1512 Artaius Parkway
   P.O. Box 6229
   Libertyville, Illinois 60048
   Phone: (847) 680-4970
   Fax: (847) 680-5459
   E-mail: glschles@aol.com