Parents involved in an interstate child custody dispute face critical issues. One immediate concern is the judicial teleconference mandated by the Illinos Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA. What happens there can completely alter the course of an Illinois child custody case.
The Illinois UCCJEA (750 ILCS 36/101 et seq.) is used by the courts to determine which of two states has jurisdiction to decide a child custody case. As such, if both parents want their child custody case heard in Illinois, the Illinois UCCJEA does not come into play. Please note, the UCCJEA is a “uniform law” that has been adopted by 49 states (all but Massachusetts), the District of Columbia, and the US Virgin Islands; it has not been adopted by Puerto Rico. States and territories that have adopted the UCCJEA are supposed to apply it in a similar fashion.
This posting is a fairly technical analysis of the Illinois UCCJEA, and specifically focusses on Section 110 of the Illinois UCCJEA and its guidelines for interstate judicial communication. If you have an interstate child custody dispute, contact me, Illionois UCCJEA attorney David Wolkowitz – I may be able to help.
UCCJEA cases are somewhat unique from other family law cases. Normally, only one state is involved in a child custody determine. But in UCCJEA cases, courts of two different states are supposed to communicate and coordinate with each other. However, when a child custody case involves the Illinois UCCJEA, an Illinois judge must communicate with the judge of a foreign state in order to make certain substantive and logistical decisions. Because many judges have little experience with complicated UCCJEA cases (because they are somewhat rare), it is wise for parents involves in UCCJEA and their Illinois family law attorneys to be familiar with the UCCJEA rules regarding interstate judicial communication.
Below is an overview of some of the major aspects of the Illinois UCCJEA provision on judicial communication.
When does the UCCJEA guarantee the right to be heard?
The Illinois UCCJEA guarantees parties the right to “present facts and legal arguments before a decision on jurisdiction is made.”
The problem is that the courts will make at least one major decision prior to a “decision on jurisdiction” – and the decision could alter the entire course of the UCCJEA case. The decision: Which court will decide which state has jurisdiction over the child custody case?
For example, an Illinois court could hold a jurisdictional hearing and determine that Michigan has jurisdiction, or vice versa. In theory, the state that holds the jurisdictional hearing should do so in an unbiased manner and apply the UCCJEA accordingly. However, in practice, a foreign judge might make a jurisdictional ruling that is meant to favor the local parent. Illinois parents can substantially benefit from having their child custody cases heard in Illinois, instead of any other state.
Courts are only obligated to allow parties to prevent facts and argument before a “decision on jurisdiction” is made. But what about the decision – such as the one described above – proceeding the ultimate jurisdictional decision? Apparently, one interpretation of the the poorly-drafted UCCJEA is that court may determine which state should make the jurisdictional decision without hearing facts and argument from either party.
Participating in a UCCJEA teleconference
Courts “may allow the parties to participate in the communication.” In other words, it’s the judge’s choice whether or not a party participates in a UCCJEA judicial teleconference. For instance, an Illinois judge might not let the Illinois parent participate, and the Michigan judge might allow the Michigan parent to participate. That doesn’t seem fair, does it? But the UCCJEA does not address this scenario.
Further, the problem is exacerbated by the fact that some Illinois attorneys are so unfamiliar with the UCCJEA that they are under the severely mistaken belief that UCCJEA judicial teleconference are only for judges and attorneys – and that parents may not participate. In such a situation, an Illinois attorney may advise an Illinois parent not to show up for a UCCJEA judicial teleconference – handing a significant advantage to the foreign parent who does participate.
If an Illinois parent does not participate in a judicial teleconference, but the foreign parent does, the foreign parent could possibly influence both judges and make statements that would not be appropriate if they were made during a formal hearing.
As an Illinois family law attorney dealing with the Illinois UCCJEA, I try to protect my client’s right to be heard during a UCCJEA teleconference, particularly when the other parent will participate.
UCCJEA teleconferences must be recorded
Each state of a UCCJEA dispute is critical. The UCCJEA requires that all interstate judicial communication be transcribed or recorded, with the exception of the discussion of logistical matters (such as scheduling). The Illinois UCCJEA states “a record must be made of [interstate judicial] communication. The parties must be informed promptly of the communication and granted access to the record.”
One problem with the provision is that it does not specify who has the burden of recording the communication. Is it the Illinois judge’s responsibility? The foreign judge’s responsibility? Must one of the parents pay for a court reporter to transcribe the communication?
Because the UCCJEA is essentially identical in every state, the foreign court will not have any more guidance than an Illinois court.
If an interstate judicial communication that was not recorded results in a substantive (not logistical) court order, parents who disagree with the order may benefit from having that order vacated (retracted) on the grounds that it was a product of a non-UCCJEA-complaint interstate judicial communication.
Be aware: UCCJEA teleconference pitfalls
Below are some pitfalls a parent in an Illinois UCCJEA dispute might encounter.
- Courts ignore the law: I spoke with several domestic relations judges about Illinois UCCJEA cases. And what I learned was shocking. According to one very respected Cook County domestic relations judge, approximately 50 percent of foreign judges refuse to conduct a UCCJEA teleconference as required by the UCCJEA – and in doing so, they refuse to apply the UCCJEA. This can be devastating for an Illinois parent whose child is wrongfully taken from Illinois and who seeks to use the UCCJEA to procure the child’s return.
- Representation in both states: Understandably, parents involved in a UCCJEA disupte don’t want to spend more than necessary on attorneys’ fees. However, because with any UCCJEA disputer there will be some level of legal activity in at least two states, it may be wise for parents to obtain legal counsel in both Illinois, and the other state.
- Improper testimony by the foreign parent: A parent may try to make statements which would be objectionable or improper if they were to be made during an official hearing.
Illinois UCCJEA attorneys
If you have an Illinois UCCJEA case, your future with your child hangs in the balance from the very outset of the case. You need legal advice, and you should contact an attorney licensed in Illinois. In fact, you might consider asking that attorney questions you develop based on reading this article; if the attorney gives uniformed, inaccurate or totally evasive answers, then you might consider finding someone else.
I am intimately familiar with the UCCJEA. If you have an interstate child custody dispute, contact me, Illionois UCCJEA attorney David Wolkowitz – I may be able to help.