The Illinois Marriage and Dissolution of Marriage Act sets parental

BRIEF IN SUPPORT OF MAXIMUM POSSIBLE INVOLVEMENT/ VISITATION
The Illinois Marriage and Dissolution of Marriage Act sets parental involvement standards as to the award or modification of custody and visitation.

The 1985 amendments to the IMDMA and the Illinois Supreme Court's Eckert decision, In re Marriage of Eckert (1988), 119 ILL. 2d 316 at 327, represented a changed approach to custody and visitation determination in Illinois.
Prior practices of awarding custody, visitation, supervised visitation and removal of children from the state or area should be re-evaluated in light of these amendments and subsequent case law.

The amendments included among the purposes of the IMDMA securing the maximum involvement and cooperation of both parents in the child's welfare. See: 750 ILCS 5/102 (7):
Purpose:
(7) secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being during and after litigation.
The amendments further re-defined best interests of the child to include a presumption for the maximum involvement and cooperation of both parents in the child's ongoing welfare.
Best Interest Defined:
(c) The Court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. 750 ILCS 5/602(8)(c).
The Statute was later amended to add a new test for custody, the ability of the custodial parent to foster a relationship between the child and the non custodial parent. See: 750 ILCS 5/602(a)

(8).The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. 750 ILCS 5/602(a)(8)
Eventually in January 1994 denial of Court Ordered visitation was deemed a criminal offense. See: 720 ILCS 5/10-5.5(b).

Every person who, in violation of the visitation provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation shall be guilty of unlawful visitation interference. 720 ILCS 5/10-5.5(b).

The above changes were precipitated by studies showing the child's need for significant and continuing contact with both parents after divorce. See, e.g.,
Wallerstein & Kelly, Surviving the Breakup, (1980) (study points to the undesirability of routinely designating one parent as "psychological parent" and of lodging sole legal and physical custody in that one parent).

There were also doubts raised about the constitutionality of presumptively denying custody to one of two admittedly fit parents: See, King vs. Vancil, 34 Ill. App. 3d 831, 341, N.E. 2d 65 (5th Dist. 1975).

Recent case law declares a duty of the custodial parent to foster the relationship between the non-custodial parent or face a change of custody.
The trial court should enforce this obligation by explicitly telling the custodial parent about it and further informing the custodial parent that if he or she is unwilling or unable to meet it, then the court stands fully prepared to change the custody order and grant custody of the children to the non-custodial parent to see if that parent could do a better job of meeting this obligation. In re Dobey 629 N E 2d 812 (Feb. 1994)

In this case the mother seeks to lower the amount of visitation she already agreed to in negotiations and which was entered as a court order. This alone evidences her unwillingness to foster the relationship between the father and his children, and puts into question her ability to serve as a custodial parent under the above Dobey standard.... .....

THE COMPLETE ,RECENTLY UPDATED, REMAINDER OF THIS BRIEF (SEVERAL PAGES) PLUS THE TACTICS AND DOCUMENTS TO USE WITH THE COMPLETE BRIEF FOR MAXIMUM EFFECTIVENESS, IS IN THE:

MULTI STATE GUIDE TO FATHERS RIGHTS
INTRODUCTION

In 1968, the Uniform Law Commissioners promulgated the Uniform Child Custody Jurisdiction Act (UCCJA). By 1981, every state had adopted the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJA was designed to discourage interstate kidnapping of children by their non-custodial parents. Before the UCCJA, it was a common practice for non-custodial parents to take children across state lines. They hoped to find sympathetic courts willing to reverse unfavorable custody orders. In too many cases, they were successful.

The UCCJA operates on the principles that (1) establish jurisdiction over a child custody case in one state; and, (2) protect the order of that state from modification in any other state, so long as the original state retains jurisdiction over the case. If a non-custodial parent cannot take a child to another state and petition the court of that state for a favorable modification of an existing custody order, the incentive to run with the child is greatly diminished.

In 1981, Congress adopted the Parental Kidnapping Prevention Act (PKPA) for much the same purpose. The peculiarities of prior law, allowing easy modification of custody orders, were largely in the interpretation of the Full Faith and Credit Clause of the Constitution of the United States. The Parental Kidnapping Prevention Act was an effort to put the weight of full faith and credit behind the principles of the Uniform Child Custody Jurisdiction Act. However, there are two main differences between the UCCJA and PKPA.

The UCCJA does not give first priority to the home state of the child in determining which state may exercise jurisdiction over a child custody dispute. The PKPA does. The PKPA also provides that once a state has exercised jurisdiction, that jurisdiction remains the continuing, exclusive jurisdiction until every party to the dispute has exited that state. This is a similar continuing exclusive jurisdiction (CEJ) provision found in UIFSA.

The UCCJA simply states that a legitimate exercise of jurisdiction must be honored by any other state until the basis for that exercise of jurisdiction no longer exists. In practice, the two acts (the UCCJA and PKPA) tend to work together for the most part, but the differences do confuse the adjudication and settlement of child custody disputes in certain cases. More specifically, so long as the court and divorce lawyers look first to the PKPA and then realize that to the extent of differences the provisions of the PKPA control (due to the concept of the preemption of Federal law), then the statutes will generally work together.

Neither the UCCJA nor the PKPA address another important issue, interstate enforcement of child custody orders (including visitation provisions). There have been provisions in the law of the states to permit interstate enforcement of child support orders since the 1950's, leading ultimately to the UIFSA as is currently amended. Because of Federal law mandating the adoption of the UIFSA as amended, consider the UIFSA a significantly more modern interstate statutory scheme as compared to the patch-work of the PKPA and the UCCJA. (See my separate article discussing the UIFSA). Interstate enforcement of child custody orders, therefore, remains a last frontier that needs to be crossed in order to make the law pertaining to children's needs complete.

In 1997, the Uniform Law Commissioners promulgated a new Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It does two important things. First, it reconciles UCCJA principles with the PKPA. Second, it adds interstate civil enforcement for child custody orders. The UCCJEA replaces the UCCJA. The UCCJEA, however, has proven to be more controversial as compared to the adoption of UIFSA as amended. It is important to note in this regard that the UCCJEA stemmed from the goal of passing a law addressing enforcement of visitation rights nationwide — that is, the creation of a nationwide uniform visitation law.

The UCCJEA became the law in Illinois effective January 1, 2004.
See HB 1157 and Public Act 93-108.
For an excellent discussion (drafted in 1998) of the Act is the UCCJEA with Commentary.

There is a transitional provision which states: "A motion or other request for relief made in a child-custody proceeding or to enforce a child-custody determination which was commenced before the effective date of this Act is governed by the law in effect at the time the motion or other request was made."

THE OBJECTIVE OF THE UCCJEA

HOME STATE PRIORITY

In the UCCJA, there are four principles, or bases, for taking jurisdiction over a child custody dispute. These are:
· The child's home state;
· Significant connection between state and parties to a child custody dispute;
· Emergency jurisdiction when the child is present and the child's welfare is threatened;
Presence of the child if there is no other state with another sound basis for taking
jurisdiction.

(The term taking jurisdiction simply means that a state's courts have a good reason for summoning the contestants to come before them to adjudicate the dispute no matter where they reside. If there is jurisdiction, the court's orders are valid and enforceable. )
The original drafters of the UCCJA always thought that the home state of the child was the best state within which to find the information for making a custody decision in the best interests of the child. However, it was also assumed that once a court took jurisdiction on any other acceptable basis, that state should be able to proceed without delaying to determine if some other state has home state status.

The drafters of the PKPA took the opposite position. The home state was deemed so much better than any other jurisdictional ground, that it should always be the priority ground. Under the PKPA the home state always has the first opportunity to take jurisdiction.

The UCCJEA now supports the PKPA position (which was the de facto law in each state because of Federal preemption — in spite of numerous misguided state court opinions on the issue). Any state that is not the home state of the child will defer to the home state, if there is one, in taking jurisdiction over a child custody dispute. Temporary emergency jurisdiction may be taken, but only long enough to secure the safety of the threatened person and to transfer the proceeding to the home state, or if none, to a state with another ground for jurisdiction.

CONTINUING EXCLUSIVE JURISDICTION
The UCCJEA also provides for continuing exclusive jurisdiction. If a state once takes jurisdiction over a child custody dispute, it retains jurisdiction so long as that state, by its own determination, maintains a significant connection with the disputants or until all disputants have moved away from that state. In contrast, the UCCJA allows jurisdiction to shift if the initial ground for taking jurisdiction ceases to exist.

Thus, if a state takes jurisdiction over a child custody dispute because that state is the home state of the child, and the child subsequently establishes a new home state, jurisdiction can shift to the new home state, even if one parent remains in the child's original home state. The UCCJEA would not allow the jurisdiction to shift in this fashion, keeping it in the original home state so long as the parent remains there.

TEMPORARY EMERGENCY JURISDICTION

Under the UCCJA, grounds for taking emergency jurisdiction are on an equal footing with the other grounds for taking jurisdiction, including the home state ground. If the child is present in a state and there is evidence of abandonment or abuse to or mistreatment of the child, that state can take jurisdiction under the UCCJA.

The UCCJEA provides for temporary emergency jurisdiction, that can ripen into continuing jurisdiction only if no other state with grounds for continuing jurisdiction can be found or, if found, declines to take jurisdiction. The child's presence and its abandonment, mistreatment or abuse still trigger the taking of emergency jurisdiction, but threats to siblings or a parent also can trigger the taking of emergency jurisdiction. Because of the priority given to the home state of the child, the home state will most often be the state from which continuing jurisdiction is exercised.

The impact of these changes in the UCCJEA from the UCCJA is to reinforce the impact of the PKPA. Priority for home state jurisdiction, continuing exclusive jurisdiction and temporary emergency jurisdiction mean that orders made pursuant to the UCCJEA will have the full weight of the Full Faith and Credit Clause of the U.S. Constitution behind them.

ENFORCEMENT OF CUSTODY AND VISITATION ORDERS

The UCCJEA also would add enforcement provisions to the jurisdictional provisions. Interstate enforcement of custody and visitation decrees has proved frustrating to parents and to the courts. The UCCJEA requires a state to enforce a custody or visitation order from another state that conforms substantially with this Act. An order from a state that has continuing exclusive jurisdiction, therefore, will surely be enforced.

One enforcement procedure is reminiscent of procedures for enforcement under the Uniform Interstate Family Support Act for interstate spousal and child support orders and the Uniform Enforcement of Foreign Judgments Act, which governs the interstate enforcement of any civil judgment. The basic procedure is to register the out-of-state order. If the registration is not contested, the registered order may be enforced by any means available to enforce a domestic order. This would ordinarily mean using the contempt powers of the court to assure that the custody or visitation order is honored by the parent subject to it.

There is an expedited remedy, however, that also is available. Upon receiving a verified petition, the court orders the party with the child to submit to an immediate hearing (the next judicial day unless impossible) for enforcement. The court may rule with respect to enforcement at the hearing, although there are provisions to allow for extended hearing and standards to contest enforcement. This remedy operates much like habeas corpus, in which the body subject to the writ must be presented immediately to the court.

If there is danger to a child or if it appears that the child will be removed from the enforcing jurisdiction, a petition may also be filed for a warrant to take physical custody of the child along with a petition for an expedited proceeding. If the warrant issues, law enforcement officers will serve the warrant and obtain physical custody of the child.

As a last enforcement device, the UCCJEA would give prosecutors the power to enforce custody or visitation orders, and law enforcement officers the power to locate a child under instructions from prosecutors.

UCCJEA --
Home State: In December 2005, the Illinois Supreme Court addressed the question of the home state of a child less than six months old. See, In Re D.S. (2005).
In this regard, the UCCJEA then defines the home state as, " "the state in which the child lived from birth with [a parent or a person acting as a parent]." 750 ILCS 36/102(7)."

The argument against jurisdiction in Illinois in this case was that the child was born in Indiana and lived in Indiana for the child's entire life before being brought to Illinois by the DCFS. The State countered by arguing that there was essentially no home state for the child and that therefore Illinois had jurisdiction under the provisions of Section 201(a)(2) and (4) which provide:
(2) a court of another state does not have jurisdiction under paragraph (1) *** 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; ***
(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3)." 750 ILCS 36/201(a)."

The Illinois Supreme Court then looked to the decisions of other states on the point of addressing the home state or lack thereof for a child under the age of six months under the UCCJEA in this case of first impression (in Illinois.)

The Illinois appellate court cited with approval the following cases:
In re R.P. , 966 S.W.2d 292 (Mo. App. 1998);
Adoption House, Inc. v. A.R. , 820 A.2d 402 (Del. Fam. Ct. 2003) and Joselit v. Joselit , 375 Pa. Super. 203, 544 A.2d 59 (1988).
The Court then stated, "We find these cases entirely persuasive. By itself, a temporary hospital stay incident to delivery is simply insufficient to confer "home state" jurisdiction under the UCCJEA."

D.S. then reasoned that, "allowing a temporary hospital stay to confer "home state" jurisdiction would undermine the public policy goals of the UCCJEA, which include ensuring that "a custody decree is rendered in that State which can best decide the case in the interest of the child." (Emphasis added.) 9 U.L.A. §101, Comment, at 657 (1999) The court explained:
Consider, again, a Galena mother who chooses to deliver her baby in a Dubuque hospital.

In addition to living in Illinois, this mother may work in Illinois, have a husband and other children in Illinois, pay taxes in Illinois, attend church in Illinois, and send her children to Illinois schools. Clearly, if the occasion arose, Illinois would be the state "which can best decide" a case involving the interest of this mother's children. Yet, if respondent is correct, and a mere hospital stay is sufficient to confer home state jurisdiction under the UCCJEA, Iowa would possess exclusive jurisdiction over this newborn, based solely on the location of the obstetrician' s practice. Such formalism turns the UCCJEA on its head, conferring jurisdiction on a state with a de minimis interest in the child, to the exclusion of the only state that could conceivably be called the child's "home." We refuse to endorse this interpretation. "

Objecting to Personal Jurisdiction Overview
1. 735 ILCS 5/1-301 — Objecting to Personal Jurisdiction Overview: The law regarding challenging personal jurisdiction was comprehensively changed effective January 1, 2000.
See Keith Beyler's article, "The Death of Special Appearances" in the January Illinois Bar Journal (Vol 88, p. 30) as well as Edward S. Margolis Practice Tips in the June 2001 Illinois Bar Journal (Vol. 89, p. 317).
In Beyer's IBJ article he concluded that the amended Section 2-301 made it less likely for lawyers to inadvertently waive their client's jurisdictional challenge.

2. Combined Motion Objecting to Venue and Other Matters: Subsection (a) allows the defendant to file a combined motion consisting of an objection to personal jurisdiction as well as other matters. The defendant must make an objection to personal jurisdiction via "a motion to dismiss" or a "motion to quash service of process." There is no limitation set forth in the amendment of the types of objections a defendant can raise in a combined motion, however, the combined motion "must be identified in the manner described in Section 2-619.1" of the Illinois Code of Civil Procedure.

3. Waiver of Right to Object to Venue: Subsection (a-5) sets forth the new rule regarding waiver. This amendment to Section 2-301 should help eliminate inadvertent waivers which sometime occurred when a party filed a motion or pleading simultaneously with a special appearance. Recently, I had a case where the opponent who was licensed to practice both in Illinois and Wisconsin filed a special and limited appearance and then a response to the petition for dissolution of marriage.
There was no formal objection to venue filed. I was successful in urging that there had been a waiver because according to (a-5), "If the objecting party files a responsive pleading or a motion (other than a motion for an extension of time to answer or otherwise appear) prior to the filing of a motion in compliance with subsection (a), that party waives all objections to the court's jurisdiction over the party's person."

4. Defending the Case After Losing the Objection to Personal Jurisdiction: Subsection (b) continues the principle that an objection to personal jurisdiction is not a determination of the merits of the case and states that a "decision adverse to the objector does not prelude the objector from making any motion or defense which he or she might otherwise have made."

5. Subsection (c) is similar to the special appearance statute. It states, "Error in ruling against the objecting party on the objection is waived by the party's taking part in further proceedings unless the objection is on the ground that the party is not amenable to process issued by a court of this State."

A recent case addressing the 2000 amendments is IRMO Schmitt, 321 Ill. App. 3d 360, 254 Ill. Dec. 484, 747 N.E.2d 524 (2nd Dist. 2001) (The filing of a substantive motion in the appellate court (motion to stay and order of the trial court) did not annul defendant's previously filed special and limited appearance. Under the amendment to special appearance statute a party may, after filing a special and limited appearance, file a motion or other responsive pleading without waiving the special appearance.)

II. Subject Matter Jurisdiction:
A. Custody and Visitation:
1. IMDMA: The Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/601 and 5/607. Section 601 refers to Section 4 of the UCCJA. Of course, once HB 1157 is passed, then this would refer to the UCCJEA. HB 1157 has now passed both houses and will be effective January 1, 2004. Section 601 provides for the commencement of commencement of child custody proceedings by a parent by filing a petition for divorce, legal separation or declaration for invalidity of marriage.

A little used vehicle is a petition for custody which may be filed by a parent without a petition for divorce, etc., if it is filed within the county where the child is "permanently resident or found." Illinois law provides for the filing of a custody petition by a person or than a parent by filing a petition for custody but only if the child is not in the physical custody of one of his parents (601(b)(2). The concept of physical custody pursuant to case law means more than just a temporary separation or a voluntary placement. The leading case is of course the Supreme Court Peterson case.

FPRIVATE "
See, In re Custody of Peterson, 112 Ill.2d 48, 491 N.E.2d 1150 (1986).
For older cases not referred to in this outline see: In re Custody of McCarthy, 157 Ill.App.3d 377, 510 N.E.2d 555 (2d Dist. 1987);
IRMO Carey, 188 Ill.App.3d 1040, 136 Ill.Dec. 518, 544 N.E.2d 1293 (2d Dist. 1989);
IRMO Nicholas, 170 Ill.App. 3d 171, 524 N.E.2d 728 (3d Dist. 1988); In re Lutgen, 177 Ill.App. 3d 954, 532 N.E.2d 976 (2d Dist. 1988);
IRMO Santa Cruz; 172 Ill.App. 3d 775, 527 N.E.2d 131 (2d Dist. 1988); In re Person and Estate of Newsome, 173 Ill.App. 3d 376, 527 N.E.2d 524 (4th Dist. 1988);
IRMO Gustafson, 181 Ill.App. 3d 472, 130 Ill.Dec. 148, 536 N.E.2d 1359 (4th Dist. 1989); Hanson v. McGowan, 197 Ill.App. 3d 708, 144 Ill.Dec. 183, 555 N.E.2d 80 (2d Dist. 1990); IRMO Lundak, 248 Ill.App. 3d 683, 188 Ill.Dec. 595, 618 N.E.2d 1165 (5th Dist. 1993); In re Custody of Butler, 192 Ill.App. 3d 135, 139 Ill.Dec. 197, 548 N.E.2d 582 (1st Dist., 5th Div. 1989); In re Person and Estate of Barnhart, a Minor, 232 Ill.App. 3d 317, 174 Ill.Dec. 26, 597 N.E.2d 1238 (2d Dist. 1992);
IRMO Haslett, 257 Ill.App. 3d 999, 195 Ill.Dec. 874, 629 N.E.2d 182 (5th Dist. 1994).

Appealing Motion Denying Motion to Dismiss due to Lack of Standing —
Request SCR 304(a) Finding: An interesting recent case In Re D.J.E., 319 Ill. App. 3d 489, 253 Ill. Dec. 222, 744 N.E.2d 1286 (2d Dist. 2001), held that when non-parent custody petition per §601(b)(2) is filed, order denying motion to dismiss for lack of standing is not final and appealable without Supreme Court 304(a) finding.

Voluntary Relinquishment Case Law: A case representative of the voluntary relinquishment line of cases is IRMO Feig, 296 Ill.App.3d 405, 230 Ill.Dec. 685, 694 N.E.2d 654 (3d Dist. 1998), where the appellate court held that grandparents had standing to intervene for custody of granddaughter when parents' actions evidenced voluntary relinquishment of physical custody: mother was often absent from the residence where she resided with the grandparents; father admitted he consented to grandparents having custody in mother's absence; and grandparents provided financial support, medical care, and physical care for grandchild for most of child's life.

For a recent case taking the somewhat opposite position on relatively close facts, see: IRMO Rrudsell, 291 Ill.App.3d 626, 225 Ill.Dec. 736, 684 N.E.2d 421 (4th Dist. 1997), holding that the determination that parent does not have physical custody of child does not turn on possession, but it requires that the parent has voluntarily and indefinitely relinquished custody of the child. Voluntary relinquishment of physical custody should be examined in light of: (1) who was responsible for the care and welfare of the child before the initiation of the custody proceedings; (2) manner in which physical possession of the child was acquired; (3) the nature and duration of the possession.

How Much Visitation is Sufficient to Defeat Non-Parent Custody Petition?: Keep in mind that both parents must voluntarily relinquish custody of a child for a nonparent to have standing to seek custody. See Franklin V. Devriendt, 288 Ill.App.3d 651, 224 Ill.Dec. 263, 681 N.E.2d 578 (1st Dist., 2d Div. 1997). Furthermore, exercising visitation rights is sufficient to defeat third party custody proceeding. Brumfield v. Yard, 284 Ill.App.3d 950, 220 Ill.Dec. 549, 673 N.E.2d 461 (4th Dist. 1996). For a contrary case see In Re Brownfield, 283 Ill.App.3d 728, 219 Ill.Dec. 310, 670 N.E.2d 1198 (4th Dist. 1996), holding that upon death of the custodial father, the child is not in the constructive custody of mother when the mother rarely visited the children and, as compared to the court's order, paid only token child support.

A fascinating case re custody jurisdiction which is likely not good law is IRMO Slayton, 292 Ill.App.3d 379, 226 Ill.Dec. 583, 685 N.E.2d 1038 (4th Dist. 1997). Slayton held that the parents of a child waived their constitutional objection to a presumed father's visitation with the child by failing to raise the objection until closing arguments at a custody hearing. It is dubious that this is good law in light of the Illinois Supreme Court case law re grandparent visitation but what is noteworthy is to keep in mind that this Constitutional objection was waived.

2. The Uniform Child Custody Jurisdiction Act: 750 ILCS 35/4, h..h confers subject matter jurisdiction on the courts of this state if this state is the home state of the child or had been the home state within 6 months prior to commencing the proceedings.

If neither of those circumstances exist, Illinois can assume jurisdiction if it is in the best interest of the child, if there is a significant connection between this state and the child and at least one parent and there is available in Illinois substantial evidence concerning the child's present or future care, protection, training and personal relationships. (But see the provisions of the PKPA giving absolute primacy to the home state provision. It is here that there is the primary conflict with the jurisdictional provisions of the UCCJA and the PKPA. The PKPA — of course — takes preemption.)

If these circumstances do not exist and the child is physically present in Illinois, has been abandoned or it is necessary to protect the child in an emergency, then Illinois can assume jurisdiction.
If neither of the above exists, and if no other state would have jurisdiction under the paragraphs above, or if another state has declined jurisdiction on the ground that Illinois is the more appropriate forum, and if it is in the best interest of the child that Illinois assume jurisdiction, then Illinois has jurisdiction.

Once Illinois has jurisdiction over a child, it keeps it unless it concedes jurisdiction to another sate or if none of the parties nor the child reside in Illinois.
"Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody." 750 ILCS 35/4(d).

3. The Adoption Act: Once an adoption is filed, the court is to hold a hearing to determine "whether there is available suitable temporary custodial care for a child sought to be adopted." 750 ILCS 50/13A(b).

"In the event a judgment order for adoption is vacated or a petition for adoption is denied, the Court shall promptly conduct a hearing as to the temporary and permanent custody of the minor child who is the subject of the proceedings, pursuant to Part VI of the Illinois Marriage and Dissolution of Marriage Act. The parties to said proceedings shall be the petitioners to the adoption proceedings, the minor child, any biological parents whose parental rights have not been terminated and other parties who have been granted leave to intervene in the proceedings. " 750 ILCS 50/20. This is the reaction of the Illinois Legislature to the decision of the Illinois Supreme Court that is commonly known as the Baby Richard case.

4. The Illinois Parentage Act of 1984: 750 ILCS 45/14(A)(1). The parentage judgment shall contain or reserve provisions concerning "the custody and guardianship of the child, visitation privileges with the child…In determining custody, joint custody, or visitation, the Court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act".

There are a host of what I consider jurisdictional issues involving the Illinois Parentage Act of 1984 (Parentage Act). These include whether the court has the authority pursuant to the IPA of 1984 to bar removal of the children. The significant body of Illinois law provides that there is no such jurisdiction because the statutory provisions of the Parentage Act do not incorporate Section 609 of the IMDMA.
The challenge per the case law was that if the legislature intended the IMDMA law re removal to apply it should so state. If HB 1382 is enacted, it would so provided. This legislation which has passed the House includes a new section — Section 13.5 which would give the court power to enter an injunctive order prohibiting removal pending adjudication on the issues of custody and visitation. Sections 14 (initial judgments) and 16 (modifications) of the Parentage Act would specifically allow for provisions governing removal to be governed under Section 609 of the IMDMA.

5. The Illinois Domestic Violence Act: The IDVA gives the Court power to award the physical care and possession of a minor child in order to protect the minor from abuse, neglect or unwarranted separation from a person who has been the child's primary caretaker or to otherwise protect the well-being of the child. 750 ILCS 60/214(b)(5) . Pursuant to (6), the Court has the power to award temporary legal custody. Pursuant to (7), the Court has the power to award, restrict or deny visitation. "The Court shall not be limited by the standards set forth in Section 607.1 of the Illinois Marriage and Dissolution of Marriage Act." Keep in mind that the court under the IDVA does not have jurisdiction to award temporary legal custody under an emergency order of protection.

Child Support:
1. 750 ILCS 5/505 (Illinois Marriage and Dissolution of Marriage Act.) — Day Care Expenses: The court also has the power to order health insurance pursuant to 5/505.2 and a contribution to day care pursuant to In Re. The Marriage of Serna, 172 Ill.App3d 1051, 527 N.E.2d 627.

2. 750 ILCS 16 (Non-Support Punishment Act): The offense of failure to support is set forth in 750 ILCS 16/15. As to jurisdiction, there is the provision within this Act to provide for support where there has been no prior support order. See 750 ILCS 16/20. It provides that the court is to use the standards of Section 505 and Section 505.2 of the IMDMA.

3. 750 ILCS 22/100, et seq. Uniform Interstate Family Support Act: The Court in this State has subject matter jurisdiction to enforce support orders of other states and to modify them in certain circumstances. The most important and perhaps confusing section of this statues is 750 ILCS 22/205. Only one court at any time can have continuing exclusive jurisdiction over a child support order. Illinois may not modify the support order of another state which has continuing exclusive jurisdiction over a child support order.

4. 750 ILCS 45/14 Parentage Act Provisions as to Support: The Illinois Parentage Act of 1984 gives the Court power to set child support in parentage cases. The Court is to refer to the Section 505 guidelines.

5. IDVA: The Illinois Domestic Violence Act gives the Court the power to set child support. 750 ILCS 60/214(b)(12) . The standards of the Illinois Marriage and Dissolution of Marriage Act shall govern.

6. Juvenile Court Act: The Juvenile Act gives the Court power to set support. However, the Court is not bound by the standards of IMDMA but the standards of the Children and Family Services Act. 20ILCS 505/9.1. There are rules in Title 89 of the Illinois Administrative Code, Part 352 and Section 352.4.

The Juvenile Court section is 705 ILCS 405-23(5) for neglected, abused or dependent minors. Identical language relating to minors requiring authoritative intervention is also found in 705 ILCS 405/3-24(5). For addicted minors an identical section is in 405/4-21(5). An identical section for delinquent minors is in 705 ILCS 405/5-23(5).

7. $100 Per Day Penalties For Failure to Withhold: There will be new legislation providing for $100 per day penalties for the failure of an employer to withhold income for support. The legislation was drafted by me and is HB 2523. Previously, the court only had power to enforce $100 per day penalties for a failure to withhold if the employer failed to pay over amounts previously withheld. Now there will be penalties of $100 per day either for a failure to withhold or failure to pay over amounts withhold. The employer will have to maintain his burden of proof in this regard. See my separate article in this regard which is attached.

C. Maintenance:
1. Dissolution of Marriage: 750 ILCS 5/504.
Power of Divorce Court as to Third Party Actions Involving Other Parties Re UCC Claimed Violations: An interesting recent case in this regard is IRMO Devick, 315 Ill. App. 3d 908, 248 Ill. Dec. 833, 735 N.E.2d 153, (2d Dist. 2000), holding that subject matter jurisdiction exists for trial court's authority in domestic relations case to order stock to be issued without restriction to one spouse even though the cause of action refers to Uniform Commercial Code violations.

A significant quote as to jurisdiction states: "t]he allocation of judicial responsibilities to various divisions of a circuit court does not impose barriers to jurisdiction but rather reflects a concern for administrative convenience. " The opinion explains that the trial court may hear any matter that is justiciable in nature. Although the IMDMA does not contain a provision for third party claims, the appellate court emphasized that the Code of Civil Procedure does. Thus, the trial court's equity power extends to third-party actions (joining the corporation that issued stock as a third party beneficiary) . The appellate court held that because the stock interest was acquired during marriage, it was subject to disposition by the domestic relations court.
E. Injunctive Relief:
1. 750 ILCS 5/50(a)(2).
2. 735 ILCS 5/11-101 and 11-102.

Illinois Law Re Objections to Personal Jurisdiction
Part 3. Appearance
(735 ILCS 5/2-301)
Sec. 2-301. Objections to jurisdiction over the person.
(a) Prior to the filing of any other pleading or motion other than a motion for an extension of time to answer or otherwise appear, a party may object to the court's jurisdiction over the party's person, either on the ground that the party is not amenable to process of a court of this State or on the ground of insufficiency of process or insufficiency of service of process, by filing a motion to dismiss the entire proceeding or any cause of action involved in the proceeding or by filing a motion to quash service of process.

Such a motion may be made singly or included with others in a combined motion, but the parts of a combined motion must be identified in the manner described in Section 2-619.1. Unless the facts that constitute the basis for the objection are apparent from papers already on file in the case, the motion must be supported by an affidavit setting forth those facts.

(a-5) If the objecting party files a responsive pleading or a motion (other than a motion for an extension of time to answer or otherwise appear) prior to the filing of a motion in compliance with subsection (a), that party waives all objections to the court's jurisdiction over the party's person.

(b) In disposing of a motion objecting to the court's jurisdiction over the person of the objecting party, the court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon contested issues of fact. The court shall enter an appropriate order sustaining or overruling the objection. No determination of any issue of fact in connection with the objection is a determination of the merits of the case or any aspect thereof. A decision adverse to the objector does not preclude the objector from making any motion or defense which he or she might otherwise have made.

(c) Error in ruling against the objecting party on the objection is waived by the party's taking part in further proceedings unless the objection is on the ground that the party is not amenable to process issued by a court of this State.
Source: Public Act 91-145 (effective January 1, 2000).