When one parent lives in Illinois and the other lives in another state, Illinois courts use the Uniform Child-Custody Jurisdiction and Enforcement Act to determine which state’s court should have jurisdiction to handle the child custody dispute. The law is a federal one that has been adopted by 49 states, including Illinois. It is used to determine initial jurisdiction as well as modification cases and emergency situations. While UCCJEA cases are rare in Illinois, custody lawyers do handle them occasionally.
Initial Jurisdiction Determinations
There are four tests that courts use to determine initial jurisdiction in newly filed child custody cases when one parent has raised an objection to jurisdiction in a child custody proceeding. The tests include the following:
- Home state jurisdiction
- Significant connection and substantial evidence jurisdiction
- Convenient forum jurisdiction
- Child’s location if no state has jurisdiction
A child’s home state is one in which the child is currently living and has been present for at least six months or one from which a child lived within the last six months before the filing. Custody lawyers ask how long children have lived in each state when parents have moved frequently and when they did. If neither Illinois nor the other state is the child’s home state, then the court may next look at the significant connection and substantial evidence jurisdiction test. When child custody cases have been filed in both Illinois and in another state when there is no home state, the judges will participate in a teleconference in order to determine which state will take jurisdiction. They will consider whether there is substantial evidence of the child’s connection to either state, and the state in which the case was filed first will get to determine jurisdiction.
If no substantial evidence exists, then the court will next determine which state is a convenient forum. Finally, if a jurisdiction does not exist under the first three tests, the jurisdiction where the child is currently located will have jurisdiction over the child custody matter.
When a motion to modify a previously issued order is filed in Illinois for an order originating in another state, the original state must first decline jurisdiction or the parents and the child must no longer live in the original state. The originating state may also find that Illinois is a more convenient forum or that the issuing state does not have continuing and exclusive jurisdiction. If a parent or the child still live in the originating state, the issuing state must decline jurisdiction. If none of the parties still remain there, then the courts conduct the analysis in the same way that it is done in initial jurisdiction cases. Custody lawyers may provide analyses to their clients.
The UCCJEA allows a parent to request that an Illinois court takes emergency jurisdiction over a case. The same can be requested by the other parent who resides outside of the state in that state. This is used in cases involving abandonment or when a child has been abused or threatened with abuse in order to protect the child. If another state holds jurisdiction, but Illinois assumes temporary emergency jurisdiction over the case, the judge will provide a time period within the temporary order within which a parent must get an order from the state that holds jurisdiction. The temporary emergency jurisdiction will end when the parent gets the order or when the time period ends.
Enforcing Child Custody and Visitation Orders
The UCCJEA also provides that Illinois must enforce the child custody and visitation orders that originate in other states. A parent may do this by registering the out-of-state order in Illinois, and if doing so is not contested by the other parent, then Illinois must enforce the order. Courts may also follow an expedited process by ordering a parent to appear with the child the next available judicial day after they receive verified petitions.
If a parent believes that the child is in danger or that the other parent may remove the child from Illinois, then the parent may also file a petition asking the court to issue a warrant for the immediate physical custody of the child. If the judge issues the warrant, then law enforcement officers will serve it and take custody of the child.
The UCCJEA has additional remedies that allow prosecutors to have law enforcement officers locate children. This lets parents and others who are victims of parental kidnapping to seek redress through the criminal justice system. Together, the set of enforcement provisions provides a robust package of enforcement capabilities in order to enforce out-of-state child custody and visitation orders in Illinois.
Custody lawyers understand that jurisdiction battles are both rare and complex. They work to help their clients navigate the complexities of the UCCJEA in determining jurisdiction to hear custody matters.