If you are your spouse, or ex-spouse, is trying to remove your child from Illinois to live permanently in another state, you might become familiar with the the Illinois Uniform Child Custody Jurisdiction and Enforcement Act, or the Illinois UCCJEA. I’m an Illinois UCCJEA and family law attorney, so I’ve written this article to give parents a basic understanding of the UCCJEA. Even though I provide this link to the full text of the Illinois UCCJEA, I think most parents would be better-served by viewing some UCCJEA frequently asked questions, or FAQ, below. If you have an interstate child custody dispute involving Illinois, contact me, Illinois UCCJEA and family law attorney David Wolkowitz; I may be able to help you move on with life with the least pain possible.
What is the focus of the UCCJEA?
The focus of the UCCJEA is to provide a framework for determining which of multiple states has jurisdiction over a child custody case. Parents should understand that the state
What is the first major step in a UCCJEA dispute?
Clearly, a party in each state must file a petition with the court, or no interstate custody dispute exists. However, the first major involvement of the courts in an interstate custody dispute will likely be a UCCJEA judicial teleconference. In a case where jurisdiction is at issue, it’s when the judges in two states have a teleconference to discuss which of two states should hold the hearing mean to determine which of the two states has jurisdiction. As an Illinois UCCJEA lawyer, I wrote an article titled “Interestate Child custody jurisdiction: UCCJEA ‘judicial teleconference’ is critical.”
How does the Illinois UCCJEA determine which state has jurisdiction in a child custody case?
The UCCJEA vests “exclusive [and] continuing jurisdiction” for child custody litigation in the courts of the child’s “home state,” which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months).
If the child has not lived in any state for at least six months, then a court in a state may take jurisdiction if it has:
- “significant connections” with the child and at least one parent, and
- “substantial evidence concerning the child’s care, protection, training, and personal relationships” may assume child-custody jurisdiction. But, if more than one state has “significant connections” and “substantial evidence…”, the courts of those states must communicate and determine which state has the most significant connections to the child.
How can a state loose jurisdiction?
A court which has made a child-custody determination consistent with UCCJEA has exclusive, continuing jurisdiction over the determination until either:
- That court determines that neither the child, the child’s parents, nor any person acting as a parent has a significant connection with the State that made the original order and that substantial evidence is no longer available in the State concerning the child’s care, protection, training, and personal relationships, or
- That court 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 the State that initially made the child custody order. In other words: If the kids nor parents still live in the state that had jurisdiction, that state may lose jurisdiction to a new state.
What state can modify a child custody order?
Once a custody determination has been made, a court of another state does not have authority to modify the determination, unless the state with jurisdiction determines that it does not have jurisdiction as noted above, or any state court determines that the child, parents, and any acting parents do not reside in the state which currently has jurisdiction.
To continue with the example of an initial custody determination above, let us say that Chris’ father gets custody of Chris in the Iowa courts, and the mom moves to Arkansas. If Chris spends the summer with his mom in Arkansas, his mom cannot go to the Arkansas courts and attempt to modify custody – Iowa has continuing jurisdiction.
Emergency jurisdiction under the UCCJEA
As noted above, the point of the UCCJEA is to provide a framework for determining which state has jurisdiction over a child custody case. Also as noted above, only a state that has UCCJEA jurisdiction over a case may modify a child custody order. However, the UCCJEA has an “emergency jurisdiction” provision that can empower a different state to issue custody orders. Unfortunately, the emergency jurisdiction provision of the UCCJEA is often used by unethical parents and lawyers to legalize what is, in effect, a kidnapping. For example, suppose Illinois has jurisdiction over a child custody case. A mother who doesn’t like how the Illinois case is going decides to flee with the child to Michigan. Normally, she would be forced to return. However, she might also file a petition asking Michigan to take “emergency jurisdiction” over the case.
A state which does not otherwise have jurisdiction may enter a temporary emergency order, if the child is in danger and needs immediate protection. After issuing such order, the state court should determine if there is an existing custody order from another state in effect. If there is an existing order, the emergency court must allow a reasonable time period for the parties to return to the state having jurisdiction, and argue the issues to the court with jurisdiction.
If there is no previous child custody order in existence, the emergency court’s order will remain in effect until a determination is made in a court having “home state” jurisdiction over the child. If no determination is made, and the emergency court’s state becomes the home state of the child, the emergency order becomes a final determination of custody.
Do I need a lawyer in each state?
If you have an interstate custody dispute, it may be useful to have an attorney in both states. For example, if two parents are disputing whether Michigan or Illinois should have jurisdiction, there will likely be a judicial teleconference. If you are in Illinois, you hopefully have an Illinois family law attorney to appear in the Illinois judge’s chambers during the teleconference. However, unless you have a Michigan lawyer as well, you might find that you are at a disadvantage in influencing the Michigan judge.