Posted by Article Authored By: Jason Pica
Survivors of domestic violence may flee the State of Illinois with the child to protect him or herself and the child. However, according to the relocation statute of the Illinois Marriage and Dissolution of Marriage Act, a parent cannot relocate more than 25 miles from his or her current residence with the child without prior approval of the other parent or a court order. While survivors may resort to self-help and relocate in violation of the relocation statute to seek immediate relief from an abuser, the abusive parent may request the immediate return of the child to Illinois, oftentimes on an emergency basis.
Oftentimes as practitioners, it is easy to forget to utilize the foundations of law such as civil procedure and jurisdictional arguments. In the scenario above, remember to utilize the UCCJEA, or the Uniform Child Custody Jurisdiction and Enforcement Act to help protect survivors. The UCCJEA was adopted by 49 states in 2004 and governs which state has jurisdiction to decide a custody or enforcement proceeding.
Section 201(a) of the UCCJEA provides that Illinois has jurisdiction to make an initial custody determination if Illinois is the home state of the child for 6 months prior to the date of commencement of the court proceeding. The 6 month home state statute is relatively straightforward; however, it can be complex depending on the facts of the case. However, for the purposes of the scenario above, when a survivor protects him or herself and the child my moving outside of Illinois, the Illinois’ Courts also have the discretion to decline to exercise jurisdiction.
Once jurisdiction is established, a court may decline to exercise jurisdiction in light of certain circumstances. In re Marriage of Rickett, 2020 IL App (3d) 180657. Section 207 of the UCCJEA states that “[a] court of [Illinois] which has jurisdiction under this Act to make a child-custody determination may decline to exercise its jurisdiction at nay time if it determines that it is a inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” In making this determination, the Court’s primary objective is to determine which court can most capably act in the best interests of the child. In re Marriage of Blanchard, 305 Ill. App. 3d 348 at 353 (1999). The Court is also required to allow parties to submit information related to the following factors provided by statute to determine whether to decline jurisdiction, including:
(1) whether domestic violence occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside of [Illinois];
(3) the distance between the court in [Illinois] and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues in the pending litigation.
It is quite evident that the legislature thought it most important for Illinois courts to first consider whether domestic violence has occurred and is likely to continue in the future. The legislature has placed a consideration of domestic violence as the first factor to consider in whether to decline jurisdiction. The Court in Illinois may very well not be able to protect the survivor and the child as they are out of state. A court in the state where the survivor and the child resides may indeed be better able to protect the survivors with legal remedies such as an order of protection and subsequent contempt or arrest if the abuser violates the order of protection. If the Court decides to decline jurisdiction and dismiss the case in Illinois, the proceeding must be opened within the state where the child resides.
Protecting a survivor of domestic violence may not always include “go-to” protections such as a Stalking No Contact Order or Order of Protection, but may also include asserting jurisdictional arguments that if won essentially closes the case in the State where abuse occurred (and likely where the abuser lives) and opens a case where the survivor and the child resides. Ultimately, the UCCJEA is an important statute to consider in protecting survivors of domestic violence.
About the Author:
Jason is a senior associate attorney with Chicago Family & Immigration Services, LLC as well as a Staff Attorney and the Vice President on the Board of Directors of Chicago Advocate Legal, NFP. Jason founded J. Pica Mediation, LLC, where he is perfecting a mediation model specifically for families of color. He focuses his practice primarily on divorce and family law as well as adoptions, guardianship of minors in probate, and DCFS appeals. Jason received his Bachelor of Arts and Master of Social Work from Loyola University Chicago and his Juris Doctor from the University of Illinois-Chicago School of Law.