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1) Are there particular problems in interstate and international custody disputes?

International and interstate marriage and divorce are common, and it is not unusual for parents who are citizens of different countries to live and work, own property and bear children in a series of locations. If there is a divorce, the situation becomes extremely complex. As might be expected, the international situation is even more complicated than the interstate. Historically, family law and divorce were strictly state law issues. In recent times, a federal family law is emerging. Where federal and state law overlap, federal law generally supervenes.

2) What law governs the jurisdiction in which an interstate or international custody dispute will be adjudicated?

Where a child is brought into Illinois from another state, even where the requirements of UCCJEA are met, an Illinois court may decline to exercise jurisdiction if it finds that this is an inconvenient forum for custody determination under the circumstances of the case, and that a court of another state is a more appropriate forum. For example, if the petitioner for an initial custody judgment or modification of a previous judgment has wrongfully taken the child from another state, or has engaged in "similar reprehensible conduct," the Illinois court will decline to exercise jurisdiction. Further, where the court finds that the petitioner has improperly removed the child from the proper custodian or has improperly retained the child after a visit or other temporary relinquishment of physical custody, the court must notify the person entitled to custody as to the location of the child as soon as is practicable. If the court dismisses a custody petition, it may charge the petitioner with necessary travel and other expenses, including attorneys' fees, incurred by other parties or their witnesses.

3) Can an Illinois court exercise temporary emergency jurisdiction to protect a child who is in Illinois but not subject to Illinois custody jurisdiction?

There is a provision for temporary emergency jurisdiction to protect a child physically present in this state who has been abandoned, neglected or dependent or has been subjected to or threatened with mistreatment or abuse. This emergency jurisdiction is for immediate child protection purposes only and does not result in Illinois assuming full custody jurisdiction. Once the protection of the child has been secured, if another state is the appropriate one to make a custody determination, the case will be referred to that state for adjudication.

4) Is there federal child custody jurisdiction law?

In addition to state legislation governing child custody jurisdiction, the federal Parental Kidnaping Prevention Act (PKPA) was enacted to prevent jurisdictional conflicts and competition over child custody and, in particular, to deter parents from abducting children for purpose of obtaining custody awards. Both PKPA and UCCJEA protect the right of the state issuing a custody decree to exercise continuing jurisdiction over the child and promote interstate cooperation and enforcement of custody decrees. If there is a conflict between the federal PKPA and the state UCCJEA, PKPA supervenes. Both statutes are aimed at resolving the conflicts arising out of interstate custody disputes: initial custody proceedings, children not returned after out of state visits, conflicting custody awards in two states, child abductions and concealment by fugitive parents, and denials of visitation rights in a distant state. UCCJEA governs both initial custody jurisdiction and modifications. PKPA does not grant or deny initial jurisdiction to a state but, rather, governs only enforcement and modification of decrees of other states and treatment of concurrent proceedings. Both provide that custody proceedings take place in the child's "home state" -- the state which has the closest connections and ties to the child.

5) What is a child's "home state" for custody jurisdiction purposes?

"Home state" is defined as the state in which the child lived with a parent or person acting as a parent for at least six consecutive months immediately preceding the filing of a petition for custody and, if a child is less than six months old, the state in which child lived from birth with any one of them. Temporary absences from the home state will not divest it of jurisdiction, nor will an overnight stay with a non-parent or a vacation with a relative or friend. Removal of a child from his or her home state without the court's knowledge or consent will not result in transferring custody jurisdiction to the second state because this would condone behavior contrary to the purpose of both statutes. The courts will not permit a parent to subvert the clear intention of the law or profit from his or her own misbehavior.

6) Are there laws regulating international child custody disputes?

Child snatching to gain jurisdictional advantage has become widespread, with parents taking children from their "country of habitual residence" to another nation, opening or re-opening litigation, and being awarded custody to the exclusion of the "left-behind parent." The dreadful harm resulting to children is recognized, and the Hague Convention on the Civil Aspects of International Child Abduction has been adopted by the United States and many other countries. Congress implemented the Convention with the International Child Abduction Remedies Act (ICARA). The Convention has two stated objectives: "to secure the prompt return of children wrongfully removed or retained in any Contracting state; and to ensure that the rights of custody and access under the laws of one Contracting state are effectively respected in the other Contracting states." Its goal is the prompt return of the abducted child to the country of his or her "habitual residence" for custody adjudication. Under the Convention, the court of the country of habitual residence is the only court with jurisdiction to decide the merits of a custody case; the country to which a child has been taken is specifically precluded from doing so.

The Hague Child Abduction Convention has adopted many of the principles of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and parallels it in many respects. The idea is that the "home state" (country of habitual residence) should have continuing jurisdiction over child custody, and a parent should not be permitted to abduct a child to gain a custody advantage. Federal law mandates that state courts recognize the judgments of courts of all countries which have adopted the Convention as to child custody and access.

7) What is international child abduction?

Convention defines "abduction," not as the criminal act of kidnaping, but as the wrongful removal or retention of a child from his or her country of habitual residence. The remedies of the Convention do not include criminal prosecution or punishment. They are purely civil in nature: speedy return of the wrongfully removed or retained child, and reimbursement of fees and expenses to the petitioner, if successful.

8) If the country to which the child has been taken has not adopted the Hague Convention, what can be done?

The Hague Convention only works when both countries involved have adopted it. Where the country to which a child has been removed is not a Hague signatory, the left-behind parent must rely on the alien country law, often to no avail.

9) What is the best approach to international child abduction?

The best approach to international child abduction is prevention. Couples contemplating international marriages should take legal advice prior to the marriage to arrange for pre-nuptial agreements in the event that the marriage does not succeed. Where an international couple contemplates divorce, early legal consultation should be obtained on the international child custody and support issues.

10) Can an American parent prevent removal of a child from the country?

Many countries require written permission of both parents before a child can be removed abroad. In the United States, where there is a threat of abduction, the passport office should be notified, and steps should be taken to protect the child's passport. Not uncommonly, a child of an international marriage will have dual citizenship and may have two passports, which is a greater complication. Because of the prevalence of international abduction, it is becoming more difficult for one parent to remove a child abroad from Illinois. Needless to say, it is not impossible.

  The Law Offices of Nye and Assoc., Ltd.

(This document is considered "advertising" under Illinois State Court Rules) )

The material presented here is for informational use only. It is intended to provide an in-depth review of Illinois marriage, divorce and custody law for use by non-lawyers in understanding the issues involved. Under no circumstances should this be considered legal advice, nor does it substitute for legal consultation. A lawyer should be consulted when legal advice is indicated.

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