Effective January 1, 2004,1 the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)2 will supplant the Uniform Child Custody Jurisdiction Act (UCCJA)3 and become the law of the land in Illinois, as it already has become in approximately thirty other states.4 The adoption of the UCCJEA marks a significant departure from existing law, and, as its name implies, it goes beyond the concept of "jurisdiction" to include new vehicles for the enforcement of custody determinations.5 It also eliminates the so-called "Marovitz Amendment" to the old UCCJA, thereby removing from Illinois courts the sort of "super-jurisdiction" afforded to them under Section 4(b) of the old Act. The impact of this new law on the family law practitioner is as significant as it is obvious.
The UCCJA, was promoted and adopted at a time when this country was just beginning to deal with some of the practical aspects of the mobile society we had become, and their impact on the relationships between former spouses and their children. That Act attempted to clarify and bring some uniformity to jurisdictional issues involved in custody disputes between parties living in different states. In 1981, this goal to achieve uniformity was addressed at the federal level by the enactment of the Parental Kidnapping Prevention Act, 28 U.S.C 1738A (PKPA). However, significant differences in the definitional and jurisdictional provisions of the two acts existed, muddying further resolution of jurisdictional disputes between states.
Under PKPA, once a state had exercised jurisdiction over a child custody determination, it retained jurisdiction over that determination until no basis for the exercise of jurisdiction existed. Under UCCJA, the child’s "home state" became the primary factor in determining whether or not a court could, or would, exercise jurisdiction over that custody determination. In Illinois, this difference between federal and state law was exacerbated by the so-called "Marovitz Amendment" to the UCCJA adopted by Illinois. This amendment to the uniform act was contained in Section 4(b) of the UCCJA which provided as follows:
"A Court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois." 750 ILCS 35/4(b).
This provision vested Illinois courts with "super-jurisdiction" over child custody determinations made here, giving Illinois courts’ custody determinations enhanced deference vis-à-vis other states. In combination with the provisions of Section 15(a)(2) of the UCCJA, which granted authority to modify a foreign state’s custody determination if the court had jurisdiction (rather than only if the foreign state had lost or declined jurisdiction as required by PKPA), Illinois courts effectively had concurrent jurisdiction with the original state in custody determination modification proceedings.6 These provisions encouraged, rather than diminished jurisdictional competition between Illinois and other states and, effectively, limited Illinois courts’ deference to foreign states’ custody determinations while enhancing the deference Illinois expected from foreign states for its own custody determinations.
The UCCJEA rectifies these differences, and also fills a void left by the UCCJA, and to a lesser extent by the PKPA, by providing new procedures for the civil, interstate enforcement of custody determinations of other states. These include new enabling provisions that grant State’s Attorneys and law enforcement officials the ability to bring civil actions and expedite enforcement of foreign state’s custody determinations.7 The National Conference of Commissioners on Uniform State Laws believe that the uniformity provided by the UCCJEA accomplishes for custody determinations the uniformity (they claim) has occurred in interstate child support disputes under the Uniform Interstate Family Support Act.8 What do we, as practitioners, need to do to prepare for the UCCJEA?
The first thing the family law practitioner will no doubt notice about the UCCJEA is the definitions in Section 102 which expand the types of proceedings to which the Act applies. A "child custody proceeding" now includes just about any proceeding where a child is involved except "a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Article 3."9 Additionally, the new definitions incorporate the Uniform Commissioners’ use of "issuing state" and "issuing court" concepts found in the Uniform Interstate Family Support Act.10
The UCCJEA also contains many new procedural provisions. Worthy of mention is new section 109(a), which affords a person who is a party limited immunity from personal jurisdiction in Illinois for "another proceeding or purpose solely by reason of having participated, or of having been physically present for the purposes of participating, in the proceeding." This immunity does not extend to a person who is otherwise subject to the jurisdiction of this state11, or to civil litigation which is based upon acts unrelated to participation in the proceeding.12
Also new is the provision set forth in section 110 which requires that a "record" must be made of communications between courts in different states.13 This record must be "inscribed on a tangible medium" or "stored in an electronic or other medium (that) is retrievable in perceivable form."14 Perhaps of the greatest significance to practitioners (and their clients) is that under section 110(d), the parties must not only be informed of the communication between courts but granted access to the record.
The most significant changes brought about by the UCCJEA are in the areas of jurisdiction and enforcement. The UCCJEA retains the "home state" concept15 that has dominated jurisdictional issues, but substantially reduces, and altogether eliminates other jurisdictional criteria currently contained in the UCCJA. The new Act also sets forth different criteria for initial custody determinations and modifications and introduces the concept of temporary emergency jurisdiction.16 These changes are sweeping in their scope, and will dramatically reduce the opportunities for Illinois courts to act where a foreign state has been the home state of the child or has previously rendered an initial custody determination. This is accomplished in part, through the introduction of the concept of "exclusive, continuing jurisdiction," which also mitigates the former contradictions between the UCCJA and the PKPA, thereby bringing Illinois’ jurisdictional law into conformity with federal law.
Under UCCJA, both initial custody determinations and modifications were subject to the same jurisdictional criteria.17 UCCJEA treats these different types of proceedings in vastly different ways. Section 201(a)(1) of the UCCJEA provides that Illinois has the jurisdiction to make an initial child custody determination if Illinois is the home state at the time of the commencement of the proceeding, or it was the home state within six months of the commencement and the child is absent from the state but a parent (or person acting as a parent) continues to live in Illinois.18 The UCCJA requirement that the reasons for the child’s absence from Illinois be due to his removal or retention by a person claiming custody "or for other reasons"19 has been eliminated, further evidencing the UCCJEA’s shift in jurisdictional focus from why the child left the state being asked to adjudicate custody to who, including the child, remain in the state being asked to adjudicate custody.
The UCCJEA also eliminates the "best interests" requirements for assumption of jurisdiction which were available under UCCJA sections 4(a)(2) and 4(a)(4)(ii). In cases of initial custody determinations, there is a simpler focus on whether or not the child and at least one parent have a significant connection with Illinois other than mere physical presence and there exists in Illinois "substantial evidence" concerning the child’s care, protection, training and personal relationships, a standard similar to that of UCCJA section 4(a)(2) but without the requirement that it is in the best interests of the child that Illinois assume jurisdiction.20 Also, for initial custody determinations, the concept of UCCJA Section 4(a)(4)(i), without the "best interests" requirement of section 4(a)(4)(ii), has been retained to afford Illinois jurisdiction where another state’s court has declined to exercise jurisdiction it would have in preference to Illinois, or where it has been determined that Illinois is a more "convenient" forum.21
The UCCJEA completely eliminates in initial custody determinations the jurisdictional criteria formerly set forth in UCCJA section 4(a)(3) which allowed Illinois to make an initial custody determination if the child was present in the Illinois and had been either abandoned or subjected to mistreatment, abuse or neglect. These jurisdictional criteria have been modified and moved to UCCJEA section 204, which deals with the court’s newly created "temporary emergency jurisdiction." This change is more than just cosmetic; it is in keeping with the new Act’s emphasis on the "continuing, exclusive jurisdiction" of the state which has made the initial custody determination, and the clear legislative preference to return custody contestants to that state, so long as the child or one of the parents continues to reside there.22
Section 202 of the UCCJEA establishes the concept of "exclusive, continuing jurisdiction" which will likely replace the phrase "home state" as the most frequently uttered in the custody jurisdiction lexicon. Although "home state" will remain a vibrant issue in initial custody determinations, once a court has entered an initial custody determination, it retains continuing, exclusive jurisdiction over that determination until that court determines that the child and the child’s parents have no significant connection with the state and that "substantial evidence" concerning the child’s care, protection, training and personal relationships is no longer available in the state.23 Alternatively, that court, or a court of another state could determine that the child and the child’s parents do not presently reside in the initial determination state, thereby causing it to lose its continuing, exclusive jurisdiction,24 and opening the door for another state to assume jurisdiction.
The change here is subtle, but significant. It is the state that made the initial custody determination which retains jurisdiction over that determination and any modification25 of that determination until that court says otherwise. Only that state is authorized to decide if it has continuing, exclusive jurisdiction, by virtue of the presence of the child and/or a parent, and substantial evidence concerning the child remains in the state. The provisions of section 202 (a)(2) which allow another state’s court to determine that the initial determination state no longer has continuing, exclusive jurisdiction are limited to the hardly disputable fact that neither the child or his parents currently reside in the initial determination state. This interesting procedural twist might not be terribly significant where Dad moves out of the initial determination state after Mom is awarded custody. But consider the myriad of litigation possibilities where Mom and the children move out of the initial determination state and Dad remains a resident there.
Noticeably absent from the statutory list of "substantial evidence" that must no longer be available in the initial determination state for an initial determination state to lose continuing, exclusive jurisdiction is any reference to educational26 records or performance, the child’s activities or interests, or any other child-focused information which customarily would be asserted under the UCCJA to convince a court to assume jurisdiction, or another court to decline. The criteria on which the UCCJEA focuses are decidedly nebulous, and therefore tend to, at least in the author’s opinion, favor the parent who continues to reside in the initial determination state, particularly when some, or all, of the parties’ family continues to reside there as well. Clearly, the somewhat amorphous factors set forth in the UCCJEA for the initial determination state to retain jurisdiction over modifications, tend to further the equally clear legislative preference to allow the initial determination state to retain jurisdiction over future modifications, notwithstanding the fact that the more concrete, or quantifiable factors might be more easily or readily accessible in Mom’s new "home state."
The recurrent theme in the UCCJEA is undeniably to favor the initial determination state in all matters involving custody once the initial determination is made. In order for another state to modify the custody order of a court having continuing, exclusive jurisdiction, the court apparently having continuing, exclusive jurisdiction (and only that court) must either determine it no longer has continuing, exclusive jurisdiction or determine that the other state would be a more convenient forum.27 Alternatively, if neither the child nor a parent resides in the state which apparently has continuing, exclusive jurisdiction, another state’s court can proceed with a modification hearing.28
This theme is carried through in the newly coined concept of "temporary emergency jurisdiction" established by UCCJEA section 204. This new section, incorporates in part UCCJA section 4(a)(3), but eliminates the language of that section which allowed a court to assume jurisdiction where "neglect" of the child was present. Section 204 of the UCCJEA, in conformity with the PKPA, allows a court to take temporary emergency jurisdiction if:
". . . the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse"29 (emphasis supplied).
Although this provision might seem rather broad and adaptable on its face, the possibilities for asserting jurisdiction are not only not limitless, they are severely restricted in practice by Section 204(c), which requires the court with temporary emergency jurisdiction to defer to a court with continuing exclusive jurisdiction, or jurisdiction to modify, once an action relating to custody has been commenced in such a state.30 Additionally, orders obtained from a court exercising temporary emergency jurisdiction must specify the period the court considers adequate to allow the petitioning party to secure relief from a court that does have jurisdiction under Sections 201-203, and only remain in effect until the court having jurisdiction acts or the period expires.31 In short, the concept of temporary emergency jurisdiction is just that, and doesn’t appear to avail a litigant engaged in forum shopping much relief.
Sections 207 and 208 of the UCCJEA deal with declination of jurisdiction based upon inconvenient forum and by reason of conduct, respectively, and are worthy of brief mention for some notable changes. In keeping with the shifting focus away from the why the child is where he or she is, the new Act eliminates whether or not another state was the child’s home state and whether another state had a closer connection with the child, his family and the litigants as factors to be reviewed by the court in considering whether it is an inconvenient forum.32 The new Act also introduces domestic violence as a factor for the court to consider in connection with determining whether or not it is an inconvenient forum.33
Section 208 dealing with declination of jurisdiction by reason of conduct appears to have lowered the bar somewhat in connection with the type of conduct required to cause a court to decline jurisdiction. Under UCCJA, the court was authorized to decline jurisdiction where a petitioner had "wrongfully taken the child from another state or . . . engaged in similar reprehensible conduct."34 Under UCCJEA, a court may decline jurisdiction if the person seeking to invoke jurisdiction "has engaged in unjustifiable conduct."35 Another new feature of UCCJEA allows a court to decline to exercise jurisdiction under Section 208 but still "fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the conduct."36 However, perhaps the most significant change to this section of the statute is Section 208(c), which makes a fee award mandatory against a party whose petition is dismissed or stayed because the court declined to exercise jurisdiction by reason of that party’s conduct.37
The second most significant aspect of the UCCJEA is its new emphasis on the enforcement of a foreign state’s custody determinations. It is important here to remind the reader that "custody" includes visitation, not only definitionally under UCCJEA38 but under our caselaw39as well. It is, therefore, impossible to overstate the significance of the changes the UCCJEA makes in the enforcement of foreign states’ custody/visitation determinations. Section 303 of the UCCJEA imposes a legal duty on the courts of this state to recognize and enforce a child custody/visitation determination of a state which exercised jurisdiction in substantial conformity with the Act.40 In fact, even if the other state’s order does not provide a specific visitation schedule, Illinois is empowered to issue a temporary order (even if it has no jurisdiction to modify under the Act) enforcing visitation.41
Similar to the UCCJA, UCCJEA provides for the registration of foreign state’s custody judgments without the need for a concurrently filed request for enforcement.42 Unlike UCCJA, however, UCCJEA provides a new procedure for "expedited enforcement" of a foreign state’s custody determination.43 This new, and severe, form of relief requires the court, upon the filing of a proper petition, to issue an order to the respondent to appear in person, with or without the child, on the "next judicial day" after service of the order on the respondent.44 This order must also inform the respondent that the court will order that the petitioner take immediate physical custody of the child, and that respondent will pay the petitioner’s cost, fees and expenses,45 unless the respondent appears and establishes that the issuing court (of the order sought to be enforced) did not have jurisdiction, or that the order sought to be enforced has been vacated, stayed or modified.46
Obviously, this new provision provides a potent tool to the practitioner, and given the rather technical requirements set forth to invoke the court’s enforcement authority, a thorough review of the expedited enforcement provision of the statute is recommended. However, for the purposes of this article, some general observations can be made. First, it should be recommended by all practitioners, to clients either entering Illinois with foreign states’ orders, or leaving Illinois for a state which has adopted the UCCJEA, that immediate action be taken to register the custody determination as contemplated by Section 305. Once this has been done, temporary visitation orders can be obtained, and more detailed enforcement of the foreign state’s custody determination is available under Section 308.
Secondly, with the emphasis of UCCJEA on continuing, exclusive jurisdiction, and the enforcement of the constitutional guarantees of full faith and credit, the only real defenses to an action for expedited enforcement under Section 308 are mainly procedural ones, i.e., the issuing court did not have jurisdiction under the Act, or proper notice in those proceedings was not served upon the respondent. There do not appear to be a lot of opportunities to try to defend the proceeding on some factual basis, although Section 310 would appear to give the respondent the opportunity to seek a temporary emergency order under Section 204. However, being mindful of the relative short term nature of that relief, and being further mindful of the mandatory fee and expense award attendant to a Section 308 enforcement proceeding, one would be well advised to thoroughly, and carefully, consider dilatory tactics which quite probably only add to the client’s expenses of defense.
The UCCJEA, once effective, will no doubt be a fertile ground for trial and appellate litigation for a number of years to come, given its substantial departure from existing law, and implementation of new, and some might say, somewhat Draconian, forms of relief. No article of this nature can adequately analyze or address all of the obvious, or subtle, possibilities created by this type of sweeping statutory reform. However, the author hopes that some of the foregoing might be found useful, as the endlessly innovative family law practitioners attack, or embrace, this fascinating new law.
1 P.A. 93-108. The Act applies to cases filed after January 1, 2004.
2 750 ILCS 36/101, et.seq.
3 750 ILCS 35/1, et.seq.
4 Of particular interest to Illinois practitioners, these include California, Colorado, District of Columbia, Iowa, Kansas, Michigan, Minnesota, New York, Oklahoma, Tennessee and Texas.
5 "Custody determination" as used in this article also includes visitation determinations. The additional reference to "visitation determinations" is omitted in the interest of brevity. See, also, notes 38 and 39, infra.
6 A constitutional challenge to this provision based upon the Supremacy Cause was upheld the Second District Appellate Court on the basis that Section 15(a)(2) of the UCCJA was preempted by the PKPA. IRMO: Wismean & Dorshorst, 316 Ill.App.3d 631; 737 N.E.2d 325 (2nd.Dist., 2000).
7 See sections 315 and 316.
8 Prefatory Notes and comments to the Uniform Child Custody Jurisdiction and Enforcement Act (1997), National Conference of Commissioners on Uniform State Laws, delivered at the Annual Conference, July 25-August 1, 1997.
9 750 ILCS 36/102(4). Under Article 3, section 303(a), a court shall recognize and enforce a custody determination of another state rendered in conformity with the Act. Therefore, by definition, an action seeking enforcement of a foreign state’s custody order does not vest the enforcing court with jurisdiction beyond enforcement of the foreign state’s order.
10 750 ILCS 36/102(8) & (9).
11 750 ILCS 36/109(b).
12 750 ILCS 36/109(c).
13 750 ILCS 36/110(c). Communications about "schedules, calendars, court records and similar matters" are exempt.
14 750 ILCS 36/110(e).
15 The definition of "home state" in the UCCJEA is virtually identical to the UCCJA definition found in 750 ILCS 36/102(7).
16 750 ILCS 36/204.
17 750 ILCS 35/4.
18 750 ILCS 36/201(a)(1).
19 750 ILCS 35/4(a)(1)(ii).
20 750 ILCS 36/201(a)(2).
21 750 ILCS 36/201(a)(3).
22 This preference even applies to temporary emergency initial custody determinations, where there is no initial custody determination in place. The Act provides that these types of orders remain in effect only until a court that does have jurisdiction under section 201 has acted or until Illinois becomes the home state. If Illinois becomes the home state, then the issuing court’s order should provide that the order entered pursuant to the court’s temporary emergency jurisdiction is now a final, initial determination, based upon home state status. 750 ILCS 36/204(b).
23 750 ILCS 36/202(a)(1).
24 750 ILCS 36/202(a)(2).
25 750 ILCS 36/203.
26 Some might argue that the word "training" includes education. However, if you look up "train" in the dictionary, you won’t find the word "education" or any of its forms referred to at all in the definition. Webster’s II New College Dictionary (2001).
27 750 ILCS 36/203(1).
28 750 ILCS 36/203(2).
29 750 ILCS 36/204(a).
30 Section 204(c) also requires the court with temporary emergency jurisdiction to defer to a state having initial determination jurisdiction under Section 201. See note 22, supra.
31 750 ILCS 36/204(c).
32 750 ILCS 36/207(b).
33 750 ILCS 36/207(b)(1).
34 750 ILCS 35/9(a).
35 750 ILCS 36/208(a).
36 750 ILCS 36/208(b).
37 750 ILCS 36/208(c). Under UCCJA section 9(c), the award of "travel and other expenses, including attorney’s fees" was discretionary. 750 ILCS 35/9(c).
38 750 ILCS 36/102(3)&(4).
39 See, e.g., IRMO: Mitchell, 319 Ill.App.3d 17; 745 N.E.2d 167 (2nd Dist., 2001).
40 750 ILCS 36/303(a).
41 750 ILCS 36/304(a)(2). Perhaps obviously, Illinois would have the same authority, under Section 304(a)(1) to enforce a specific schedule of visitation were one to exist.
42 750 ILCS 36/305(a).
43 750 ILCS 36/308.
44 750 ILCS 36/308(c).
45 750 ILCS 308(d).
46 750 ILCS 36/308(d).
Rory T. Weiler is in private practice as a partner in Weiler & Noble, P.C., located in Geneva, Illinois. His practice is limited to family law litigation. He received a Bachelor of Science degree in Journalism from Northern Illinois University in 1975, and graduated from the John Marshall Law School in 1979, where he was a staff member of the John Marshall Journal of Practice and Procedure. He has previously served as chair of the Kane County Bar Association’s Family Law Committee, and is currently a member of the Illinois State Bar Association Family Law Section Council. He was recently appointed to the Illinois Supreme Court Character and Fitness Committee. In 2001, he received the Kane County Bar Association’s Pro Bono Award, for his service to indigent clients.