When a parent travels with a child under the auspices of a “vacation” only to have announced that the parent and the children now live in another state. This scenario is sometimes characterized as parental abduction even when it begins as a seemingly innocent vacation. No matter which parents narrative of move vs. vacation, a custody dispute is sure to arise. The initial question, however, is where will that custody dispute take place? In the state the child moved from or the state that the child moved to?
UCCJEA Governs Custody Jurisdiction
The determination of what state decides custody is done through the Uniform Child Custody Jurisdiction and Enforcement Act that has been adopted by 49 states.
The UCCJEA was promulgated “’to end custody jurisdictional disputes between states, to promote cooperation between states in determining custody issues, and to enhance the ability of states to enforce custody orders expeditiously.’ ” Fleckles v. Diamond, 2015 IL App (2d) 141229, ¶ 32 (quoting In re Joseph V.D., 373 Ill. App. 3d 559, 561 (2007))
Each parent will have a “home court” advantage if they file in the respective state they currently live in. After all, judges are proud civic leaders with strong opinions about the superiority of their community to others. Whoever gets to the courthouse first will determine which court initially makes child custody determinations.
“Except as otherwise provided in Section 204, a court of this State which has made a child-custody determination consistent with Section 201 or 203 has exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, the child’s parents, and any person acting as a parent do not have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this State.” 750 ILCS 36/202(a)
The other parent must immediately invoke one of the clauses after the “until” in 750 ILCS 36/202(a) by saying “they don’t really live there.”
The parent who made the initial custody filing will retort by alleging to satisfy 750 ILCS 36/201(a)(1)
“(1) 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” 750 ILCS 36/201(a)
The question of “do they really live there” is determined by the child’s home state which is where the child lived the last 6 months.
“’Home state’ means 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.” 750 ILCS 36/102(7)
“State” is not limited to the 50 United States. “A court of this State shall treat a foreign country as if it were a state of the United States for the purpose of [custody jurisdiction]” 750 ILCS 36/105(a)
The savvy vacation-cum-resident parent will wait 6 months before filing their custody claim in the new state.
Illinois Home State Jurisdiction: The Six-Month Rule and the Temporary Absence Exception
If the children really have been in the new state for more than 6 months, all is not lost. 750 ILCS 36/102(7) provides that “[a] period of temporary absences of any of the mentioned persons is part of the period.”
So, the parent who remained in the old state can allege that their six month period of the children’s residence includes the temporary absence.
“The UCCJEA does not define “temporary absence” In re Marriage of Milne, 109 NE 3d 911 – Ill: Appellate Court, 2nd Dist. 2018
But the case of In re Marriage of Milne, 109 NE 3d 911 – Ill: Appellate Court, 2nd Dist. 2018 considers the split of authority in Illinois appellate districts over calculating what and how long a “temporary absence” is.
“Illinois cases that have addressed temporary absences under the UCCJA are split on the proper analysis. The First, Third, and Fifth Districts adopted a totality-of-the-circumstances approach. See Richardson v. Richardson, 255 Ill. App. 3d 1099, 1102-04, 193 Ill.Dec. 1, 625 N.E.2d 1122 (1993) (Third District case under prior uniform act; rejecting the strict physical-presence test because an agreement for extended out-of-state visits under that scenario “would be discouraged because of the potential legal consequences to the custodial parent” and “such agreements should be encouraged as a matter of public policy”; noting that absence intended to last a limited time can be temporary absence regardless of length of time; to determine whether a state is the home state, court must examine child’s physical presence in the state and “under what circumstances the child came to and remained in the State”; holding that 11-month consensual visit to Illinois did not establish home-state jurisdiction); see also In re Marriage of Howard, 291 Ill. App. 3d 675, 681, 225 Ill.Dec. 703, 684 N.E.2d 178 (1997) (Fifth District case under prior uniform act; following Richardson and holding that a temporary absence can be many months; court must examine circumstances under which the child came to reside in the state); In re Parentage of Frost, 289 Ill. App. 3d 95, 102-04, 224 Ill.Dec. 409, 681 N.E.2d 1030 (1997) (First District case under prior uniform act; adopting Richardson’s approach to allow a court to consider the parents’ agreement and intent in determining whether a child’s out-of-state absence was temporary; holding that trial court on remand may consider parties’ agreement and intent in determining whether out-of-state visit of greater than six months was sufficient to confer homestate jurisdiction in that state). The Fourth District, in contrast, adopted a strict physical-presence test. See In re Marriage of Schoeffel, 268 Ill. App. 3d 839, 842-43, 206 Ill.Dec. 59, 644 N.E.2d 827 (1994) (under prior uniform act, rejecting the relevance of a parent’s intent to the temporary-absence issue; noting error in incorporating nuances of the concept of “domicile” into the definition of home state; stating that “whether a State is a child’s `home state’ is primarily a question of time”: specifically, “where has the child lived with a person acting as a parent for the last six months?”; noting that it is “a mistake to allow parties to make agreements [that] control the operation of the Act”; only absences of less than six months within the relevant six-month period can be temporary; nine-month stay in New York was not temporary); see also In re Marriage of Arulpragasam, 304 Ill. App. 3d 139, 148-49, 237 Ill.Dec. 470, 709 N.E.2d 725 (1999) (Fourth District case under prior uniform act; following Schoeffel and applying strictphysical-presence test).
¶ 32 The Frost court addressed the conflict within the districts of the appellate court, noting that the strict physical-presence test was likely “propelled more as a matter of policy preference than as a matter of literal or contextual statutory compulsion.” Frost, 289 Ill. App. 3d at 101, 224 Ill.Dec. 409, 681 N.E.2d 1030. The statute does not define “temporary absence,” and the strict physical-presence test, the court noted, discourages agreements between parties and can result in certain inequities. Id. at 101-02, 224 Ill.Dec. 409, 681 N.E.2d 1030. “The freedom to reach such agreements should not be hampered by fear that jurisdiction would vest in another state if the out-of-state absence extends beyond six months. Any such fear would have a chilling effect on the formation of any such agreements, and family bonds would suffer.” Id. at 102, 224 Ill.Dec. 409, 681 N.E.2d 1030. The court adopted the Richardson analysis “because it encourages settlement of visitation issues and because it offers protection when the promise to return the child is breached either because it was falsely made at the outset or because the parent decides at a later time not to return the child.” Id.
¶ 33 We follow Richardson. We agree with Frost that agreements concerning custody should be encouraged and that a strict reading of the statutory six-month period can lead to harsh results, thereby discouraging family ties. We also agree with Richardson and the other cases that hold that a temporary absence is not limited to a period of six months or less. Such a limit, again, can lead to harsh results, most significantly in cases where a child temporarily moves to another state to attend school, which, in most cases, encompasses nine months. Richardson presented such a scenario and is otherwise factually analogous to this case. In Richardson, a California dissolution judgment awarded the parties joint custody of their daughter and further provided that her primary residence would be with her father in California. The mother then moved to Illinois, and, under a written agreement between the parties, the father allowed the daughter to go to Illinois to live with her mother in order to attend fifth grade the following school year. While the child lived in Illinois, the father moved to Arizona. Pursuant to the agreement, the child was returned to the father at the end of the school year and continued to reside with him. The mother then sought to enroll the California dissolution judgment in Illinois, and the father asserted that Illinois lacked jurisdiction. The trial court dismissed the case. On appeal, the Third District affirmed, holding that, when the child came to Illinois, the parties’ understanding was that she would not remain in Illinois; her 11-month stay here was a temporary absence from California. Richardson, 255 Ill. App. 3d at 1102-04, 193 Ill.Dec. 1, 625 N.E.2d 1122 (rejecting the strict physical-presence test and the concurring opinion’s position that a temporary absence cannot exceed six months).” In re Marriage of Milne, 109 NE 3d 911 – Ill: Appellate Court, 2nd Dist. 2018
I have included the entire analysis so that you can use the arguments which best suit your situation. The “too long didn’t read” of the In Re Marriage of Milne analysis is “In determining whether a parent and child have reached the six-month threshold, this court will not apply a strict physical-presence test but will instead consider the totality of the circumstances. To do otherwise would allow a parent to invoke this court’s jurisdiction through unjustifiable or reprehensible conduct…If a court of this State has jurisdiction under this Act because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction…the UCCJEA. was designed to prevent one from wrongfully taking physical custody of a child or similar reprehensible conduct.” Camberos v. Palacios, 187 NE 3d 1259 – Ill: Appellate Court, 2nd Dist. 2021 (quotations and citations omitted).
Permanent residency isn’t permanent until the other parent knows or should have known that it is permanent.
“While the child may have resided in the new state for a period of six months or longer, the six-month period within which the parent in the original state could file a custody action within that state would not begin to run until that parent had reason to recognize the permanency of the out-of-state absence.” In re Frost, 289 Ill. App. 3d 95, 102 (1997)
This “temporary absence” analysis can and should be brought to a court’s attention in either state to remove jurisdiction from the new state.
“[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; ” 750 ILCS 36/201(a)(2)
In Reality, The Two Judges Determine Jurisdiction Together
The parent in the old state will surely file a custody action in the old state and not simply a motion to dismiss the custody action in the new state. This requires the judges in the two states to communicate as to how best to determine jurisdiction.
“A court of this State which has been asked to make a child-custody determination under this Section, upon being informed that a child-custody proceeding has been commenced in, or a child-custody determination has been made by, a court of a state having jurisdiction under Sections 201 through 203, shall immediately communicate with the other court. A court of this State which is exercising jurisdiction pursuant to Sections 201 through 203, upon being informed that a child-custody proceeding has been commenced in, or a child-custody determination has been made by, a court of another state under a statute similar to this Section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.” 750 ILCS 36/204(d)(emphasis mine)
“A court of this State may communicate with a court in another state concerning a proceeding arising under this Act.
(b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
(c) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.
(d) Except as otherwise provided in subsection (c), a record must be made of a communication under this Section. The parties must be informed promptly of the communication and granted access to the record.” 750 ILCS 36/110
The two judges will calmly discuss the appropriate jurisdiction and, hopefully, reach an agreement based on the mutual UCCJEA statutes that they are both bound by.
Making Decisions About The Children While The UCCJEA Jurisdiction Is Pending
Determining the state where the custody decisions will occur is so consequential that the courts will likely take months to arrive at that final decision.
In the meantime, one of the courts can make decisions in the best interests of the child that is temporary.
“If there is no previous child-custody determination that is entitled to be enforced under this Act and a child-custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 201 through 203, a child-custody determination made under this Section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 201 through 203.” 750 ILCS 36/204(b)
Be careful, if a temporary order is entered in a state and there is not a petition to determine jurisdiction under the UCCJEA in that state or another, the temporary order will grant home state jurisdiction to the state which entered it.
“If a child-custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 201 through 203, a child-custody determination made under this Section becomes a final determination, if it so provides and this State becomes the home state of the child.” 750 ILCS 36/204(b)
To avoid this characterization of a temporary order granting a state “home state of the child”, ask that any temporary order be made under 750 ILCS 36/204(a) NOT 750 ILCS 36/204(b)
“A court of this State has 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.” 750 ILCS 36/204(a)
When You Don’t Need To Worry About UCCJEA Jurisdiction
All of the above only applies to parties who do not have an existing court order regarding parenting time.
“A parent intending a relocation, as that term is defined in paragraph (1), (2), or (3) of subsection (g) of Section 600 of this Act, must provide written notice of the relocation to the other parent under the parenting plan or allocation judgment.” 750 ILCS 5/609.2(c)
““Relocation” means:
(1) a change of residence from the child’s current primary residence located in the county of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child’s current residence, as measured by an Internet mapping service using surface roads;
(2) a change of residence from the child’s current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from the child’s current primary residence, as measured by an Internet mapping service using surface roads; or
(3) a change of residence from the child’s current primary residence to a residence outside the borders of this State that is more than 25 miles from the current primary residence, as measured by an Internet mapping service using surface roads.
If the Internet mapping service offers alternative routes, the alternative route that is the shortest distance shall be used.” 750 ILCS 5/600(g)
If there’s an existing parenting time order and the other parent objects to relocation. The relocating parent must petition the court in order to relocate and cannot move with the children until the court grants them permission.
“If the non-relocating parent objects to the relocation, fails to sign the notice provided under subsection (c), or the parents cannot agree on modification of the parenting plan or allocation judgment, the parent seeking relocation must file a petition seeking permission to relocate.” 750 ILCS 5/609.2(f)
Take caution, you still must enforceIf there is a previous order and the parent files new custody petitions in the new state, the filing in the new state will be put on pause for a specified period of time to allow the parent in the old state to enforce or modify the old order in the old state.
“If there is a previous child-custody determination that is entitled to be enforced under this Act, or a child-custody proceeding has been commenced in a court of a state having jurisdiction under Sections 201 through 203, any order issued by a court of this State under this Section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 201 through 203. The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.” 750 ILCS 36/204(c)
Failure to file anything in the old state effectively rescinds custody issues to the new state’s jurisdiction.
UCCJEA jurisdiction battles are among the hardest divorce litigation issues because there is no compromise. The children’s future will either be determined in one state or the other with massive cascading effects on the family based on that jurisdiction. If your spouse has taken a vacation with the children or you believe your child has been taken out of state, Illinois law gives you tools to fight back but timing is everything. So, contact an experienced divorce attorney immediately.
Russell Knight is an Illinois and Florida child custody lawyer with over 19 years of experience in multi-state custody disputes.
Frequently Asked Questions About When A Vacation With A Child Becomes A Move
Can an Illinois court lose jurisdiction if my child has lived in another state for six months?Yes. Unless you file something immediately in Illinois to allege the time spent in the other state was supposed to be only a temporary stay.
What is the UCCJEA temporary absence exception? Alleging that the child’s presence in another state was understood to be only temporary will stop the 6 month custody jurisdiction clock.
What should I do if my spouse took my child on vacation and won’t return to Illinois? Hire an Illinois divorce lawyer to immediately file a motion to establish custody in Illinois and to return the children to Illinois.
