The Journal of The DuPage County Bar Association

Back Issues > Vol. 29 (2016-17)

If the (International) Shoe Fits – Jurisdiction Issues in Family Law Cases
By Christine Olson McTigue

Introduction. We live in a mobile society. People move from state to state, and even from country to country. What happens in a case when a party does not live in the forum state or has moved from the state where the original order was entered? Jurisdiction issues often arise. These issues can be governed by the common law or statute. While a discussion of all possible jurisdiction issues is beyond the scope of any one article, this article will address some issues involving personal and subject matter jurisdiction that routinely arise in family law cases.

Principles of Personal Jurisdiction. In a dissolution of marriage action, the circuit court has in rem jurisdiction over the parties’ marital status pursuant to the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”).2 In personam jurisdiction, or jurisdiction over the person, is required to determine property and financial issues, including child support and maintenance.3 A determination of personal jurisdiction involves an analysis of the due process safeguards set forth by the United States Supreme Court in International Shoe Co. v. State of Washington,4 that a defendant must have certain minimum contacts with the state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Minimum contacts must be based on some act by which the defendant purposefully avails himself of the privilege of conducting activities in the state, thus invoking the benefits and protections of its laws.5 Federal due process analysis considers whether: (1) the nonresident defendant had minimum contacts with the forum state such that there was fair warning that he may be hailed into court there; (2) the action arose from, or is related to, the defendant’s contacts with that state; and (3) it is reasonable to require the defendant to litigate there.6 In Kulko v. Superior Court of California,7 the Supreme Court addressed due process in the context of a family law case. The Kulkos were married in New York. They had two children. Sharon Kulko obtained a divorce in Haiti and then moved to California. The children remained with their father, Ezra, in New York, until the daughter asked to move to California. Ezra agreed. The son later joined his mother and sister in California. Sharon filed an action in California to recognize the Haitian divorce, obtain custody, and increase child support. Ezra was served and moved to quash summons on the grounds that he was not a resident of California and lacked sufficient minimum contacts with that state.

The Supreme Court agreed. The Court stated that the unilateral act of a person who claims some relationship with the nonresident defendant cannot satisfy jurisdiction requirements since it is essential that there is some act by which the defendant availed himself of the privilege of conducting activities in the forum state. Ezra’s consent to his daughter moving to California did not establish minimum contacts because he did not purposefully avail himself of the benefits and protections of California law. In addition, the Court concluded that basic considerations of fairness pointed to New York as being the proper state to adjudicate the dispute since Ezra merely acquiesced in his daughter’s wish to move.

Methods to Acquire Personal Jurisdiction. Jurisdiction over a nonresident can generally be acquired two ways. The first way is to personally serve the nonresident with process in this state.8 In Burnham v. Superior Court of California,9 the Supreme Court upheld this basis to obtain jurisdiction over a nonresident as it comports with traditional notions of fair play and substantial justice, noting that it was firmly established in our jurisprudence that state courts have personal jurisdiction over nonresidents physically present in the state. The second way to obtain jurisdiction if service is made out of state is under the Illinois long-arm statute, found in the Code of Civil Procedure.10 Relevant to a dissolution of marriage case, section 2-209(a)(5) of the long-arm statue provides:

With respect to actions of dissolution of marriage, declaration of invalidity of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action.11 The terms of the long-arm statute must be considered in light of the federal due process requirement of minimum contacts.12 Due process requirements are the outer boundaries of a state’s authority to proceed against a defendant.13

Support Obligations. The Uniform Interstate Family Support Act (“UIFSA”) governs both child support and spousal support orders.14 Section 201(a) of the UIFSA provides for jurisdiction as follows:

(a) In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:

(1) the individual is personally served with notice within this State;

(2) the individual submits to the jurisdiction of this State by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

(3) the individual resided with the child in this State; 

(4) the individual resided in this State and provided prenatal expenses or support for the child;

(5) the child resides in this State as a result of the acts or directives of the individual;

(6) the individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse;

(7) the individual asserted parentage of a child in the putative father registry maintained in this State by the Illinois Department of Children and Family Services; or

(8) there is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.15

The official comment to section 201 provides that a determination of jurisdiction over a nonresident must be examined in a case by case, fact based manner, taking into account due process considerations.16 Under section 201(b), the above bases for personal jurisdiction may not be used to acquire personal jurisdiction to modify another state’s child support order, unless the requirements of section 611 are met, or in the case of a foreign support order, the requirements of section 615 are met.17

As discussed above, personal service on a nonresident is usually sufficient to confer jurisdiction. Such is not the case, however, in an action to modify a child support obligation from another state. In Vailas v. Vailas,18 Anastasia and George Vailas obtained a divorce in Texas. The divorce decree included a child support order. Anastasia and her son moved to Illinois. George remained in Texas. Anastia filed a petition in Cook County to modify the child support order; she personally served George with her petition while he was in Illinois. George moved to dismiss the petition on the basis of lack of jurisdiction.

The appellate court held that even though personal service was obtained and met the requirement of section 201(a)(1), the requirements of section 611 still had to be met. Under section 611, a support order may be modified only if, after notice and hearing, the circuit court finds that one of two sets of conditions are met. First, the order may be modified if: (a) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state; (b) a petitioner who is a nonresident of this state seeks modification; and (c) the respondent is subject to the personal jurisdiction of the tribunal of this state. Alternatively, the order may be modified if Illinois is the state of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.19

The Vailas court noted that the drafters of the UIFSA were aware of the reach of the decision in Burnham, codifying its holding as one of the bases for jurisdiction when establishing or enforcing an order of support, as found at 750 ILCS 22/201(a) (1). However, the drafters specifically elected to limit personal and subject matter jurisdiction in modification cases to something less than what is allowed under the due process clause. One further point is worth noting. The Illinois Appellate Court, Second District, recently addressed the trial court’s powers under the UIFSA in The Department of Healthcare and Family Services v. Arevalo.20 The court noted the distinction between the trial court’s subject matter jurisdiction under the Illinois Constitution, which grants circuit courts the power to hear and determine issues pertaining to the UIFSA, versus the trial court’s lack of authority to decide certain issues under the UIFSA, such as custody.

Child Custody Matters. The Uniform Child-Custody Jurisdiction and Enforcement Act (“UCCJEA”)21 has its own provisions regarding both subject matter and personal jurisdiction. Considerations of personal jurisdiction are not at issue under the UCCJEA since physical presence of, or personal jurisdiction over a party or a child, is not necessary or sufficient to make a child custody determination.22

The jurisdictional issue that arises under the UCCJEA, therefore, is that of subject matter jurisdiction, whether the circuit court had the power to decide the dispute. Pursuant to Article VI, Section 9 of the Illinois Constitution, the jurisdiction of the circuit courts extends to all “justiciable matters except when the Supreme Court has original and exclusive jurisdiction relating to redistricting of the General Assembly and to the ability of the Governor to serve or resume office.”23

The UCCJEA provides a method to resolve jurisdictional questions that arise in interstate child custody disputes; the statute gives priority to the child’s “home state.”24 Section 201 of the UCCJEA provides for initial child custody jurisdiction in Illinois if this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.25

The Illinois Supreme Court addressed subject matter jurisdiction under the UCCJEA in McCormick v. Robertson.26 Josh McCormick resided in Champaign; Alexus Robertson lived in Missouri. Their child, L.M., was born in Missouri in 2009. Josh filed a complaint in Champaign County pursuant to the Parentage Act of 1984 to establish a parent child relationship and obtain joint custody over L.M. Josh and Alexus signed a joint parenting agreement and in 2010, the trial court entered its judgment of parentage, custody and related matters.

In 2012, Alexus moved with L.M. to Nevada. Josh filed a motion in Champaign County to terminate Alexus’ parental rights and obtain sole custody over L.M. Alexus filed an action in Nevada, asserting that the 2010 Champaign County judgment was void due to lack of UCCJA jurisdiction. She also filed a motion in Champaign County seeking the same relief. The courts in both Nevada and Illinois held that the 2010 judgment was void due to lack of subject matter jurisdiction under the UCCJEA.

The Illinois Supreme Court disagreed. The court began with a discussion of subject matter jurisdiction. So long as a matter brought before the circuit court is justiciable, and not within the original and exclusive jurisdiction of the supreme court, the circuit court has subject matter jurisdiction to consider the matter. Regarding section 201 of the UCCJEA, the court held that the word “jurisdiction” used in the statute is a procedural limit on when a court may hear initial custody matters, not a precondition to the exercise of the court’s inherent authority. The supreme court concluded that the court in Champaign County had subject matter jurisdiction to enter the 2010 judgment and erred when it vacated that judgment on the ground that it was void.

The Appellate Court, Second District followed up on subject matter jurisdiction in Fleckles v. Diamond.27 In that case, James Fleckles filed a petition in DuPage County under the Parentage Act of 1984 to establish paternity, joint custody and visitation of his unborn child. Danielle Diamond moved to dismiss. Danielle argued that DuPage County lacked subject matter jurisdiction under the UCCJEA because since she and the child lived in Colorado, Colorado was the child’s home state.

The appellate court held that the circuit court had subject matter jurisdiction since James’ petition contained justiciable claims. Even if a petition defectively states the claim, the trial court is not deprived of subject matter jurisdiction. However, the appellate court held that the claim should be bifurcated and the child custody determination (which was deferred until the child’s birth) should be made in Colorado, the child’s home state.

How is the concept of a child’s home state determined, and what if there is no home state? Section 201 provides for jurisdiction where the child does not have a home state when:

(2) a court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 207 or 208, and:

(A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

(B) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under Section 207 or 208; or

(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.28

In In re D.S.,29 Iva Hollis was a resident of Hoopeston, Illinois. Two of Iva’s children lived with their father in Tennessee; her remaining six children were wards of the State of Illinois. Iva was afraid that DCFS would take custody of her unborn child, so she took steps to move to Tennessee. Iva only made it to Indiana, where D.S. was born. The next day, the State of Illinois filed a petition for adjudication of wardship over D.S. Iva argued that Indiana was D.S.’s home state.

The supreme court disagreed and held that Indiana was not the home state of D.S., since a temporary hospital stay was insufficient to confer home state jurisdiction under the UCCJEA. Instead, the court held that Illinois had jurisdiction under section 201(a)(2) since D.S. had significant connections with Illinois and all evidence of D.S’s care, protection, training and personal relationships are in Illinois.

Foreign Decrees. The UIFSA contains provisions regarding enforcement and modification of foreign decrees. For example, a tribunal of this state may not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.30 Section 615 governs the situation where foreign country lacks or refuses to exercise jurisdiction to modify its child-support order pursuant to its laws.31

Under the common law, divorce decrees issued in foreign countries are not, in general, entitled to full faith and credit.32 However, parties often seek to enforce provisions of foreign decrees. What happens in the situation where the foreign country lacked jurisdiction over one of the parties? The answer is, it depends on the type of obligation and statute involved.

In In re Marriage of Lasota and Luterek,33 Janusz Luterek obtained a judgment of dissolution in Poland against Elzbieta Luterek. She was not served in the Polish action and did not enter a general appearance. The judgment was registered in Illinois and Elzbieta sought her share of the marital property. The appellate court held that the trial court had jurisdiction to hear the dispute pursuant to section 5/503(d) of the IMDMA, which allows the court to make a determination of property in a proceeding for disposition of property following dissolution of marriage by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property.

In cases involving enforcement of child support orders entered in foreign countries, courts in this state look to whether the foreign court had personal jurisdiction over the obligor. Section 607 of the UIFSA34 allows a party to contest the validity or registration of a registered support order on the basis that the issuing tribunal lacked personal jurisdiction over the contesting party. In Dept. of Healthcare and Family Services v. Heard,35 the Department sought to register a child support order, which was entered in Germany, against Kevin Heard. Kevin objected on the basis that the German court lacked personal jurisdiction over him. Kevin met Sandra when he was stationed in Germany. They married in Denmark. Their son was born in New York.

The family moved to Illinois when Sandra returned to Germany with their son. The court agreed that jurisdiction was lacking and following the holding in Kulko v. Superior Court of California, held that Kevin lacked minimum contacts with Germany.

Parentage Actions. The Illinois Parentage Act of 2015 provides that its provisions apply if parentage is at issue. The Parentage Act requires that an individual may not be adjudicated to be a parent unless the court has personal jurisdiction over the individual.36 The statute further provides:

(c) A court of this State having jurisdiction to adjudicate parentage may exercise personal jurisdiction over a nonresident individual, or the guardian or conservator of the individual, if the conditions prescribed in Section 201 of the Uniform Interstate Family Support Act are fulfilled.

(d) Lack of jurisdiction over one individual does not preclude the court from making an adjudication of parentage binding on another individual over whom the court has personal jurisdiction.37

Personal jurisdiction is also established for the Parentage Acts of 1984 and 2015 with the performance of an act of sexual intercourse within the state during the possible period of conception.38 This basis for jurisdiction was found sufficient under the 1984 Act to meet due process requirements.39

Conclusion. Issues of both personal and subject matter jurisdiction can arise in different types of family law disputes. It is important to check the applicable statute to determine if jurisdictional requirements have been met. In addition, in any analysis of whether the court has personal jurisdiction over a defendant, principles of due process must always be considered.

1. The author wishes to thank Elizabeth Krueger for the idea for this article, and William Scott for suggesting the title.
2. In re Marriage of Hoover, 314 Ill.App.3d 707, 709 (4th Dist. 2000).
3. Gleiser v. Gleiser, 402 Ill. 343, 345 (1949).
4. 326 U.S. 310 (1948).
5. Graver v. Pinecrest Volunteer Fire Department, 2014 IL App (1st) 123006 ¶ 14.
6. Graver at ¶15.
7. 436 U.S. 84 (1978).
8. 735 ILCS 5/2-209(b)(1).
9. 495 U.S. 604 (1990).
10. 735 ILCS 5/2-209.
11. The IMDMA incorporates the Code of Civil Procedure. 750 ILCS 5/105(a).
12. Russell v. SNFA, 2013 IL 113909 ¶34.
13. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011).
14. 750 ILCS 22/101, et seq.
15. 750 ILCS 22/201(a).
16. In re W.J.B., 2014 IL App (2d) 140361-U ¶30.
17. 750 ILCS 22/201(b).
18. 406 Ill.App.3d 32 (1st Dist. 2010).
19. 750 ILCS 22/611(a).
20. 2016 IL App (2d) 150504 (petition for rehearing filed on July 21, 2016)
21. 750 ILCS 36/101, et seq.
22. 750 ILCS 36/201; In re Marriage of Mobley, 210 Ill.App.3d 936 (5th Dist. 1991).
23. McCormick v. Robertson, 2015 IL 118230 ¶20.
24. Fleckles v. Diamond, 2015 IL App (2d) 141229 ¶32.
25. 750 ILCS 36/201(a).
26. 2015 IL 118230. 27. 2015 IL App (2d) 141229.
25. 750 ILCS 36/201(a).
26. 2015 IL 118230. 27. 2015 IL App (2d) 141229.
28. 750 ILCS 36/201.
29. 217 Ill.2d 306 (2005).
30. 750 ILCS 22/211(b).
31. 750 ILCS 22/615.
32. In re Marriage of Muragesh, 2013 IL App (3d) 110228 ¶23.
33. 2014 IL App (1st) 132009.
34. 750 ILCS 22/607.
35. 394 Ill.App.3d 740 (3d Dist. 2009).
36. 750 ILCS 46/603(b).
37. 750 ILCS 46/603(c), (d).
38. 735 ILCS 5/2-209(a)(6).
39. People ex rel. Black v. Neby, 265 Ill.App.3d 203, 204 (4th Dist. 1994).

Christine McTigue has her office in Wheaton, Illinois where she concentrates her practice in civil appellate law and insurance coverage matters. She is on the panel of neutral commercial arbitrators for the American Arbitration Association and is a court-certified mediator for DuPage and Cook Counties. She received her J.D. from Loyola University of Chicago.

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