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Jurisdiction Issues in Child Custody and Support Cases

Both Illinois and Federal Law give clear guidelines on where cases involving child support or custody may be brought initially. Under Illinois law, the place where these actions must be brought is in the child's "home state," which is defined 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." Put simply, the question to ask is where has the child been living for the 6 months immediately before the case has been filed.

Keep in mind that the home state question for jurisdiction is only for when a case first starts. Thus, if a case has already been filed and had some rulings made in a different state, that state will retain jurisdiction over the matter until the court determines that none of the parties retain a connection to the state or that none of the parties live in the state any longer.

There are some exceptions to the general home state rule. For instance, if a child is under 6 months old, the home state becomes "the state in which the child lived from birth" with at least one parent or person acting as a parent.

Additionally, if Illinois is an inconvenient forum for the action, then the court may decline to exercise its jurisdiction in favor of a more convenient court. In deciding whether a forum is inconvenient, the principal question the court must ask is "which court can most capably act in the best interest of the child?" which is basically an assessment of evidence and testimony available to the court. Other factors considered are the location of evidence and how many significant relationships the child has to the state, in addition to the court determining if Illinois is the child's home state. This means that sometimes Illinois will retain jurisdiction, even when it's extremely inconvenient for one of the parents, and that other times Illinois will concede jurisdiction to another state, even when it's extremely inconvenient for one of the parents.

The court in Illinois may also decline jurisdiction if the party bringing the action has engaged in "unjustifiable conduct," though what this means isn't entirely clear. Its likely application would be something like kidnapping or domestic violence.

Illinois may only accept jurisdiction when another state has declined it and there is a showing that 1) one of the parties to the case has a significant connection to the state that is more than just being present, and 2) there is substantial evidence for the case in Illinois.

So how does this actually work in practice? If parties were married and filed their divorce in Illinois, then Illinois will retain jurisdiction over the custody proceedings unless all parties move away from the state. Thus, if Peter and Alicia file for divorce in Cook County, then Cook County will also make custody determinations for their children, Grace and Zach.

Things get more complicated when the parties were never married and live in separate states. For example, Bella and Edward were never married, but had a child named Renee. They lived together for the first two years of Renee's life in Washington until Edward and Bella broke up in October 2013. Bella then moved to her mother's house in Illinois in November 2013, leaving Renee in Washington with Edward. Bella has flown Renee out to visit her in Illinois three separate times for a period of two weeks each time, but Renee has never lived in Illinois. If Bella filed a custody action in Illinois, would it be proper? Probably not, since Bella's home state is clearly Washington, not Illinois. Thus, Edward would need to file a motion to dismiss, and the case would be dismissed by the judge due to a lack of jurisdiction.

There are many things that can make jurisdiction an issue in child custody cases. If you have had a custody action filed against you in Illinois, or are considering filing one in Illinois, having a lawyer ensures your greatest chance of success. The Law Offices of Van A. Schwab can help. Contact our office at (312) 372-4569 today.

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