DuPage County Divorce Lawyer Blog
In general, the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is to resolve custody disputes by directing the court with “continuing and exclusive jurisdiction” the jurisdiction to modify and enforce custody disputes that may arise between two different states. While each state has its own child custody statutes, the UCCJEA governs which state’s child custody laws will control in the event of a conflict involving a custody or enforcement proceeding where more than one state’s laws might apply. In 2004, Illinois adopted the UCCJEA, along with 48 other states. Massachusetts is the only state that has not adopted the it.
Probably most importantly, the UCCJEA indicates that the child’s “home state” should resolve all custody conflicts. The Act defines the child’s “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period” (emphasis added).
For purposes of an example, let’s say that a mother and father are married and have two children together in Florida. The children are seven and five years old. Throughout the marriage, the father has become increasingly physically and verbally abusive to the mother and the children, and he is a severe alcoholic. The mother has no support system in Florida, because she moved there primarily for the father’s employment position before they were married. All of the mother’s family resides in the state of Illinois. The mother decides that she can no longer place herself and the minor children in danger by continuing to live with the father, but she does not have the financial resources to move out of the home and obtain her own place without financial assistance from the father. The mother calls her family members in Illinois who are more than willing to take her and the children in for an extended period of time until she can get on her feet. Additionally, the mother’s parents are willing to pay for her to go back to school in Illinois to obtain her bachelor’s degree. After speaking with her parents, the mother decides it is in the children’s best interest to make the permanent move to Illinois. The night before mother plans to leave, the father comes home intoxicated and becomes physically abusive to the mother. The next day while the father is at work, the mother takes the car and makes the move to Illinois with the minor children.
Once the mother gets to Illinois, she decides she wants to ask an Illinois court to give her permanent custody of the minor children and prohibit the father from having any contact with the children. Under the UCCJEA, Illinois is not the home state of the children since the children have not lived in Illinois for six months prior to a custody proceeding. Having said that, if the father didn’t take any action to get the children back to Florida for six months after the mother’s move, Illinois would become the children’s home state.
Luckily for the Mother, the UCCJEA has an exception for exercising temporary, emergency jurisdiction. This means that a non-home state court can assert jurisdiction in certain emergencies, including domestic violence. Under Section 204 of the UCCJEA, a court has “temporary jurisdiction if the child is present in this State and it is necessary in an emergency to protect the child because the child is subjected to or threatened with mistreatment or abuse.” Section 204 of the UCCJEA was specifically enacted to protect victims fleeing from domestic violence. In this situation, the Mother’s best scenario is to file an emergency petition for order of protection in Illinois for her and on behalf of the minor children. If the Court enters an emergency order of protection, it can grant certain relief such as giving temporary custody of the children to the mother, prohibiting the father from contacting the minor children, prohibiting the father from showing up at the children’s schools, etc. The father must be personally served with the emergency order of protection, and he will have a chance to be present at the plenary hearing that occurs just before the emergency order of protection expires (maximum 21 days, unless extended). A plenary order of protection can extend for a length of two years. Obviously, if the mother is granted a plenary order of protection for two years, Illinois would become the children’s home state.
Let’s change the fact pattern slightly. The mother and father’s relationship has broken down and there is no chance of reconciliation, but there is no domestic abuse in the home. The mother tells the father that she’s going to Illinois with the children for the summer so that they can spend time with her family. She tells him that they will be back in Florida before school begins. The third week of August rolls around, and the mother and children are not home. Growing increasingly worried, the father gets a hold of the mother who tells him that she has changed her mind and enrolled the children in Illinois schools for the upcoming year. She also tells him that she will be filing for divorce in Illinois and asking for sole decision-making (“custody”) in Illinois. In this situation, Illinois does not have jurisdiction to hear any custody disputes pursuant to the UCCJEA, because it is not the home state of the children, and there is no threat of mistreatment or abuse by the father. However, the actual divorce can go forward in Illinois, but the Illinois court must defer to Florida to determine all custody issues since it is the home state, unless Florida declines to exercise jurisdiction over the matter. The judges in Illinois and Florida must hold a conference call to determine which state will exercise jurisdiction.
In short, UCCJEA issues are highly complicated and should be handled by an attorney. If you have questions about the UCCJEA and interstate custody issues, please contact our firm for a consultation.