Cochran v. Lindeman , 321 Ill. Dec. 748 ( 2008 )

Docket No. 104603.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re SOPHIA G.L., a Minor (Andrew Cochran et al., Appellants, v.
John Lindeman et al., Appellees).
Opinion filed May 22, 2008.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
This case involves a custody dispute between the parents and
grandparents of a minor, Sophia G.L. It also involves a dispute over
jurisdiction of the custody matter between two states, Illinois and
Indiana. The question before this court is whether, under the
provisions of the Uniform Child-Custody Jurisdiction and
Enforcement Act (UCCJEA) (750 ILCS 36/101 through 403 (West
2004)), Illinois should register the Indiana child-custody
determination awarding Sophia’s grandparents temporary custody.
The circuit court of Greene County denied the petition to register. The
appellate court reversed and remanded. 371 Ill. App. 3d 833. For the
reasons that follow, we reverse the judgment of the appellate court.
BACKGROUND
Sophia G.L. was born in Indiana on September 14, 2005, to then
22-year-old Alexis Lindeman. Alexis was unmarried. When Sophia
was 10 days old, she and Alexis moved into the Indiana home of the
appellees, Alexis’ father, John Lindeman, and stepmother, Yvonne
Lindeman. Alexis and Sophia remained in the Lindemans’ home for
six months. On March 30, 2006, Alexis and Sophia moved to Illinois
to live with Andrew Cochran, Sophia’s father. Shortly thereafter, on
April 4, 2006, the Lindemans filed a verified emergency petition for
custody of Sophia in the Circuit Court of Hendricks County, Indiana.
In that petition, the Lindemans alleged that Alexis was incapable of
caring for Sophia and that they were Sophia’s de facto custodians
under Indiana law (Ind. Code Ann. §31–9–2–35.5 (LexisNexis 2007))
as her financial providers and primary caregivers. The petition
referred to Andrew as Sophia’s “alleged father” and asserted that
Andrew had never established paternity and had not participated in
Sophia’s life, other than visiting her twice since her birth.
On April 11, 2006, a hearing was held in the Indiana court by
Judge Karen M. Love. The Lindemans were present, along with
Alexis’ mother, Kathy Engle. Neither Alexis nor Andrew appeared;
however, the Lindemans represented to the court that Alexis was
served with notice, as they hand-delivered notice to her in Illinois and
verbally advised her of the date of the hearing. Andrew was not
served. The record demonstrates that an attorney telephoned the court
on Alexis’ behalf and asked for a continuance, which the court
ultimately denied. The court indicated that it would “ordinarily” grant
a continuance, but “because of the allegations in the petition–I want
to hear evidence on whether or not there is an emergency such that I
should act even for a brief period of time.” Before the hearing
commenced, the trial court stated that it would “need to have ***
testimony that shows I have jurisdiction, that we have notice.”
With respect to the issue of notice, John testified that he and
Yvonne went to Illinois the previous day and took papers to Alexis
notifying her of the emergency petition and court proceeding. John
stated that he handed the documents to Alexis and specifically
advised her of the date and time. He even offered to bring her back to
Indiana so she could attend. Alexis declined this offer and opted to
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arrange her own transportation. John explained that Andrew was not
present when he gave Alexis the notice documents.
John also testified about Alexis’ care of Sophia since Sophia’s
birth. He stated that he and Yvonne took Alexis and Sophia in when
Sophia was 10 days old. They wanted Alexis to finish her education
and have a place to live with Sophia “worry free.” As a result, the
Lindemans assumed all financial responsibility for Sophia, and
purchased everything she needed with the exception of formula,
which was provided by the government. John stated that he and
Yvonne “took care” of the baby and “basically raised” her. John
explained, by way of example, that Alexis only bathed the baby two
to three times while living in the Lindemans’ home. Alexis would
care for Sophia when John and Yvonne were at work, but they would
care for the baby when they were at home. John summarized the
situation by stating: “[w]hen we were there, we were it” in terms of
Sophia’s care. John stated that Alexis could not take care of the baby
without help. John added that Alexis made poor life decisions, which
he feared would jeopardize Sophia.
John testified that Andrew was not present when Sophia was born
and had only seen Sophia twice since her birth. Andrew made no
effort to establish paternity of Sophia. Alexis had considered seeking
child support from Andrew, but was reluctant to do so because she
had concerns about a member of Andrew’s family having access to
Sophia if Andrew paid support and was awarded visitation. Despite
these concerns, Alexis moved to Illinois and now lives in the same
house as the family member in question. John expressed concern over
the living conditions in Andrew’s home. Specifically, John pointed
out that there were several adults in the home, including Andrew’s
grandparents, father, and sister, in addition to Andrew and Alexis,
and none of them were employed.
Kathy Engle, Alexis’ mother, testified that Alexis is emotionally
“troubled” and “unstable,” and is not equipped to care for a child.
Kathy explained that Alexis was in special education classes as a
child. Alexis went to school through the twelfth grade, but did not
graduate from high school because she was unable to pass her classes.
She did not get her driver’s license until she was 22 years old because
she could not pass the written test. Kathy feared that Alexis would
hurt herself or the baby, and at times when Alexis and Sophia stayed
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with her, Kathy was apprehensive about going to work and leaving
Alexis alone with Sophia. Kathy did not provide a specific reason for
her fears. Kathy questioned Alexis’ desire to care for Sophia, stating
that Alexis just wants to watch television and play video games.
Kathy recounted a time at her home when she suggested that Alexis
give Sophia a bath. Alexis replied: “I don’t do baths.” Kathy
explained that she did not believe Alexis had a bond with Sophia. It
seemed as though Alexis resented having to care for Sophia and was
not inclined to meet Sophia’s needs.
Yvonne testified that Alexis never bonded with Sophia and did
not perform basic tasks necessary for Sophia’s care. For example,
Alexis would not feed Sophia her cereal because Alexis could not
watch television while she fed Sophia. Instead, Alexis would call
Yvonne at work and ask her when she was coming home, stating that
Sophia needed her cereal. Sometimes, Alexis would stand outside
with Sophia and wait for Yvonne to get home. Yvonne added that
Alexis did not always dress Sophia appropriately for the weather and
did not track when she fed or changed Sophia because Alexis had
difficulty telling time. Additionally, Yvonne pointed out that Alexis
once rented four movies to watch while the Lindemans were at work
and Alexis was supposed to be caring for Sophia. Yvonne expressed
concern over Alexis’ ability to make good decisions for Sophia. She
also stated that she was “afraid” that Sophia was in physical danger
because “these people [Andrew’s family] don’t work. *** There is no
money in this town. What happens when these people [Andrew’s
family] get tired of giving them [Alexis and Sophia] their last cent?
You know, *** [WIC] doesn’t provide cereal.”
After Yvonne’s testimony, the trial judge inquired to all the
parties about an allegation in the petition asserting that Alexis
suffered from panic attacks. Kathy responded to the question by
stating that Alexis had a panic attack when she was three months
pregnant and was taken to the hospital as a result. After Sophia’s
birth, Alexis was unable to attend a planned appointment with Kathy
because she had a panic attack. Yvonne testified that she believed
Alexis had a panic attack in the doctor’s office when she was being
treated for a spider bite. There was no indication that a medical
professional diagnosed that episode as a panic attack.
After hearing this evidence, the trial judge ruled as follows:
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“Petitioners have established that they, by their testimony,
that they served Alexis Lindeman with the notice of today’s
hearing. And that is somewhat confirmed by the telephone
call from attorney, [sic] Goetten, from Illinois. We had a
recorded message on our recorder, which one of my staff
typed up for me. Uh, the parties have also shown that they do
meet the statutory definition of De Facto Custodians, in that
they um, were the primary caretakers and providers for the
minor child, Sophia Alexis [sic] Lindeman. Uh, noting that
Alexis is absent and the general testimony indicating that she
is somewhat, I guess I was to say, challenged, I think the legal
proceeding probably would be a difficult situation for her. I
am going to grant you an emergency custody order today,
with provision for another hearing where Alexis would have
the opportunity to challenge that.”
The court added that “the testimony concerning the bonding with
the child and the very rapid changes, and what is obviously the stress
of both grandparents, and step-grandmother who, who are obviously
distressed here today *** I think *** you have established on an
emergency basis, clear, convincing evidence that the minor child,
Sophia Grace, needs someone appointed as her legal custody [sic].”1
Turning to the issue of jurisdiction, the court stated: “I have some
reservation about the Court’s jurisdiction since she’s moved, although
I think certainly Illinois with just a couple of weeks, couldn’t possibly
have jurisdiction on a time frame here. So I think Indiana would have
to be the logical place.”
The court entered a typewritten order wherein it granted
temporary custody of Sophia to the Lindemans; appointed a guardian
ad litem for Sophia; ordered that Sophia be immediately brought to
Indiana; created a schedule of supervised parenting time for Alexis;
and set a hearing for April 18, 2006, “to provide Alexis Lindeman
with another opportunity to be heard.” Copies of the court’s order
were sent to Alexis and attorney Goetten. Andrew was not included
in the distribution.
1
The record provided to the court is missing a page of the transcript
following this portion of the court’s comments.
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On the same date that the hearing was held on the Lindemans’
emergency petition in Indiana, Andrew presented his petition to
establish paternity in the circuit court of Greene County, Illinois. The
matter proceeded before Judge James W. Day. Andrew’s counsel
presented Judge Day with documents filed in Indiana, as well as
Judge Love’s court order, entered earlier that day. After reviewing
those documents and questioning Alexis and Andrew, Judge Day
found that Andrew’s paternity had been established and entered an
order to that effect. Judge Day, however, stated that he was not
willing to take any other action in the case because of the matters
pending in Indiana. He recused himself and reassigned the case to
Judge Lois A. Bell.
On April 17, 2006, Alexis filed a motion to dismiss the custody
action filed by the Lindemans for lack of personal jurisdiction and
insufficiency of process in the Indiana court. In that motion, Alexis
alleged that she was a resident of the State of Illinois prior to the
filing of the Lindemans’ petition and, therefore, was not subject to the
laws of Indiana. Alexis further alleged that she was not properly
served pursuant to Indiana service rules. Alexis added the following
information to the petition:
“6. On April 11, 2006, ANDREW COCHRAN, the
biological father of the Minor Child, filed a Petition to
Determine the Existence of the Father and Child Relationship
before the Circuit Court of the Seventh Judicial Circuit in
Greene County, Illinois. A copy of said pleading is attached
hereto as Respondent’s Exhibit A. Within the terms of said
petition, ANDREW COCHRAN sought to establish paternity
over the Minor Child.
7. Subsequent to ANDREW COCHRAN’S filing on April
11, 2006, the Illinois Court found that ANDREW COCHRAN
is the biological father of the Minor Child. A transcript of
these proceedings is attached hereto as Respondent’s Exhibit
B.”
Alexis appeared in the Indiana court on April 18, 2006, for the
scheduled hearing on the Lindemans’ emergency petition for
temporary custody. The record demonstrates that a hearing was
actually held on that date, but the record does not contain a transcript
of the proceeding. The record does demonstrate that the Indiana court
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entered a written order on April 18, 2006, which stated in relevant
part:
“ORDER OF HEARING HELD 4/18/06
On April 18, 2006 this case came before the Court for
further hearing on Verified Emergency Petition for Custody
of the Minor Child, Sophia [G.L.] filed by Petitioners. The
petitioners, John and Yvonne Lindeman were present in
person and by counsel. *** Respondent, Alexis Ann
Lindeman[,] was present in person and by counsel. *** The
court heard testimony from Alexis Lindeman.
The Court orders the following:
***
2. Each party shall file a brief with the court by 4/24/06 at
4:00 p.m. regarding the issue of jurisdiction.
3. Court does not find Respondent, Alexis Lindeman[,] in
contempt of court for not following its Order of 4/11/06.
4. Alexis Lindeman shall return the minor child, Sophia
[G.L.,] to Petitioners within twenty-four (24) hours of this
Order.
5. Respondent is ordered to immediately schedule an
appointment with Joyce Lowry, Guardian Ad Litem.
6. Court reporter shall prepare a transcript of the 4/11/06
emergency hearing and provide copies to each party and
GAL.
7. Further hearing is set for 4/26/06 at 8:00 a.m. as first
choice with one full day allotted.
ALL OF WHICH IS ORDERED this 18th day of April,
2006.”
Alexis did not return Sophia to the Lindemans as ordered. On
April 19, 2006, the Lindemans filed a verified emergency petition in
the Indiana court asking that Alexis be held in contempt, that a bench
warrant be issued for Alexis’ arrest, and that an Amber alert be issued
for return of Sophia.
On April 21, 2006, Andrew filed a verified emergency petition for
joint custody of Sophia in Illinois. In the petition, Andrew stated that
he and Alexis, Sophia’s parents, reside in Illinois; that Sophia resides
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in Illinois; that he and Alexis were fit to have custody of Sophia; and
that it was in Sophia’s best interests that they have custody. Andrew
also stated that an order for custody of Sophia was “pending” in
Indiana. The Illinois court entered a temporary custody order on that
date, awarding Alexis and Andrew temporary joint custody of Sophia
pending a hearing. The court then continued the matter until April 24,
2006, for a custody hearing.
On that same day, April 21, 2006, the Indiana guardian ad litem,
Joyce Lowry, sent a letter to Judge Love expressing her concern for
Sophia’s well-being. In the letter, Lowry reported that Alexis did not
appear for her scheduled appointment on April 20, 2006, and did not
call to cancel. Lowry further reported that “according to the
grandparents” Alexis has “limited knowledge of child rearing & has
not been involved in [sic] a daily basis for the care of the child.”
Lowry discussed a report by the grandparents that, in the past, when
Alexis visited with Andrew, she contacted the grandparents and
advised them that she did not have formula or diapers and counted on
the grandparents to bring the items because “they” had no money.
Lowry also indicated that Alexis “admitted” that Andrew “does not
know how to take care of the baby” and that the baby was not eating
cereal. Lowry did not state when or under what circumstances this
admission was made. Finally, Lowry reminded the court that Alexis
has “some developmental issues which inhibit her decision making
of the welfare of the child” and stressed that Sophia needed to be
returned to her grandparents.
In light of Lowry’s report, the Indiana court contacted Judge Day,
who entered the paternity order in Illinois, and related the concerns of
the guardian ad litem and the court regarding Sophia’s safety. Judge
Day agreed to arrange for a safety check of Sophia to be conducted by
Illinois authorities and advised that the matter had been transferred to
Judge Bell. The Indiana court then entered a written order discussing
the history of the case and the steps taken by the court to ensure
Sophia’s safety. The court also stated:
“On April 17, 2006, attorney Jeremy Gooch entered an
appearance for Alexis Lindeman. In his motion, Mr. Gooch
notified this Court that on April 11, 2006 Andrew Cochran
filed a Petition to Determine the Existence of the Father And
Child Relationship before the Circuit Court of the Seventh
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Judicial District in Greene County, Illinois and on April 11,
2006 that Court determined that Andrew Cochran is the
biological father of Sophia [G.L.]”
Finally, the court stated:
“Safety of the seven month old child is the only
emergency issue. Once safety is established a determination
as to which state has jurisdiction can be made after all
interested parties have an opportunity to be heard.”
The court entered an additional order on April 21, 2006,
acknowledging Andrew’s parentage, declaring Andrew an
indispensable party to the cause of action, and ordering Andrew to
personally appear at a hearing set for April 26, 2006, in Indiana. The
court stated in the order that the court would grant a continuance
requested by any party “if this Court receives reassurance that Alexis
Lindeman and Andrew Cochran are cooperating with the Illinois
Court and that Sophia [G.L.] is safe.”
On April 24, 2006, a hearing on Andrew’s emergency petition for
joint custody was held in Illinois by Judge Bell. Andrew testified that
he is 21 years old and is Sophia’s father. He, Alexis, and Sophia live
with his grandparents in their home. The home is clean and a family
member is always present to take care of Sophia. Andrew explained
that he was unemployed and was supported by his father and
grandmother. They support Sophia as well. Andrew stated that Sophia
was healthy and well cared for. He added that Sophia had a doctor in
Illinois and that he would take Sophia to the doctor if she needed
care. Alexis testified that she is usually with Sophia and could assure
the court that Sophia was well cared for. She added that the Cochran
family provides financial support for her and Sophia, and she
believed that support would continue.
Jeannie McCartney, a child protection investigator, also testified.
She stated that she interviewed Alexis and Andrew just before the
court hearing, and her preliminary assessment was that Alexis and
Andrew were “very stable.” She added that she would be going to
their home later that day for further assessment and would offer them
any assistance necessary.
A report prepared by Bruce Mindrup, Ph.D., of Mediation
Services of Mid-Illinois was submitted to the court. Mindrup reported
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that he interviewed Andrew and Alexis at the request of Andrew’s
counsel and observed their interaction with Sophia. Sophia appeared
to be clean, neat, and appropriately dressed. Mindrup opined that
Andrew and Alexis interacted appropriately with Sophia and were
attentive to her needs.
The Illinois court found that it had jurisdiction over the parties
and ruled that Illinois was the appropriate jurisdiction for a custody
determination. The court then found that it was in Sophia’s best
interests for Andrew and Alexis to be granted temporary joint
custody. The matter was continued for a permanent custody hearing.
Although the Indiana court scheduled a hearing on the issue of
custody for April 26, 2006, and ordered all indispensable parties
appear, there is no indication in the record that any such hearing took
place. Based on Judge Love’s April 21, 2006, order, it can be
presumed that the Indiana court obtained assurances of Sophia’s
safety and continued the matter.
On April 28, 2006, the Lindemans filed two motions: an
emergency limited petition to intervene in the Illinois proceedings and
an emergency motion to dismiss Andrew’s petition to determine
existence of a father and child relationship for lack of jurisdiction. In
their motion to dismiss, the Lindemans alleged that Illinois did not
have jurisdiction over any proceedings concerning custody of Sophia
under the provisions of the UCCJEA. After hearing arguments on the
motions, the trial court granted the Lindemans’ petition to intervene.
The court reserved ruling on the Lindemans’ motion to dismiss. In
doing so, the court stated:
“I believe under the UCCJEA that Indiana does, in fact, have
jurisdiction as home state. However, I think also under the
UCCJEA this Court has the discretion to contact the Indiana
Court and ask them to decline jurisdiction. *** Mr. Cochran
lives here and has lived here. Ms. Lindeman now lives here
and the baby, in fact, lives here. Seems to me, the best
evidence is going to be here. *** At the prior hearing this
Court did take testimony from Ms. McCartney, a worker at
the Illinois Department of Children and Family Services[,]
and I made a specific finding that I found Sophia to be in a
safe environment. I also heard testimony from both the father
and the mother and, in fact, Sophia was in open court that
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day, appeared to be healthy, happy, appropriately dressed. So,
what the Court intends to do is contact Judge Love in
Hendricks County, Indiana and request that she decline
jurisdiction over this child.”
The record demonstrates that Judge Bell called Judge Love on
May 3, May 4, May 5, May 8, May 12, May 19, and May 26, 2006.
None of these calls were returned. Judge Bell also called Judge Love
on June 2, 2006. A member of Judge Love’s staff returned this call
and stated that Judge Love would contact Judge Bell on June 16,
2006.
On June 13, 2006, the Lindemans filed an emergency petition in
Indiana asking the court to make a decision to retain jurisdiction.
There is no indication that Andrew or his counsel received notice of
the filing of this petition, although Alexis did receive notice. In that
petition, the Lindemans alleged that Alexis contacted them and stated
that she wanted to return to Indiana because Andrew was not helping
her with the care of Sophia; that Andrew would not purchase needed
medicine for Sophia; and that Andrew’s sister had threatened Alexis
with bodily harm if she left with Sophia.2 On June 15, 2006, the
Indiana court entered an “Order Retaining Jurisdiction.” The order
was not entered pursuant to a hearing. Rather, “[t]he Court, after
reviewing the motions, briefs and law” found that Indiana possessed
jurisdiction to determine custody of Sophia and expressly stated that
the court intended to retain jurisdiction. The Indiana court specifically
requested that the Illinois court “recognize the authority” of the
Indiana court and “give full faith and credit” to the Indiana court’s
order. The Indiana court then ordered the immediate return of Sophia
to the Lindemans and further ordered that the Hendricks County,
Indiana, sheriff contact the appropriate Illinois law enforcement
agency to effectuate Sophia’s return. Finally, the Indiana court
scheduled a hearing “to determine preliminary issues of custody,
parenting time, support, etc.” for July 25, 2006.
2
Alexis and her attorney filed affidavits prior to the hearing indicating
that Alexis was remaining in Illinois by choice and that it was her desire to
live with Andrew and raise Sophia with him.
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The Illinois court received notice of the Indiana court’s order, and
on that same day, June 16, 2006, Judge Bell made a docket entry
declining jurisdiction and vacating the prior temporary custody order
“[b]ased upon the order of the Hendricks County Indiana Superior
Court entered this date.”
The record shows that Judge Love failed to call Judge Bell on
June 16, 2006, as promised. Nevertheless, Judge Bell still continued
her attempts to discuss the case with Judge Love. On June 16, 2006,
Judge Bell sent two letters to Judge Love, via fax. In the first letter,
Judge Bell respectfully requested that Judge Love decline jurisdiction.
In the second letter, Judge Bell attached documentation of her
repeated attempts to reach Judge Love by phone, and reiterated her
desire to discuss the matter with Judge Love “as the UCCJEA
suggests.” The letters went unanswered.
On June 19, 2006, the Lindemans filed, in the Illinois court, an
emergency petition to register the Indiana court’s orders of April 11,
2006 (order awarding the Lindemans emergency temporary custody
of Sophia); April 18, 2006 (order entered after hearing testimony
from Alexis requiring Alexis to return Sophia within 24 hours); April
21, 2006 (orders declaring Andrew an indispensable party and
detailing communication with Illinois court to ensure Sophia’s
safety); and June 15, 2006 (order finding that Indiana had jurisdiction,
intended to retain jurisdiction and required the return of Sophia the
Lindemans within 24 hours). The Lindemans also filed a petition for
expedited enforcement of the Indiana child-custody determination.
The matter was ultimately set for hearing on September 20, 2006.
Prior to the hearing, the Lindemans moved for an emergency writ of
prohibition, mandamus, or supervisory relief in this court. We denied
their requests for relief.
Judge Bell sent letters to Judge Love on June 23, 2006, and
August 21, 2006, asking Judge Love to decline jurisdiction in this
matter. Judge Love did not respond.
On September 13, 2006, Andrew filed a contest to registration of
the Indiana child custody determination. Andrew asserted that the
order awarding custody to the Lindemans was flawed because the
Lindemans lacked standing; the emergency petition for temporary
guardianship included fraudulent allegations; if Alexis was unfit,
custody of Sophia rested with Andrew under the superior-rights
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doctrine; and Indiana lacked jurisdiction. Andrew also argued that
Illinois was a more convenient forum for the custody determination
because the evidence was located in Illinois.
A hearing to determine whether the foreign judgment should be
registered was commenced on September 20, 2006. The Illinois court
heard arguments from the parties and heard from the Illinois guardian
ad litem, Thomas Piper. Piper stated that he was “very much
opposed” to the child being removed to Indiana. He urged the court
to take steps to ensure that a “full evidentiary hearing with both
parties being present” occurred in Illinois. The trial court judge stated:
“[F]ollowing the hearing that we held in June *** I attempted
to contact Judge Love for, between 4 and 6 weeks by
telephone. I have had multiple correspondences to her asking
her to decline jurisdiction. Not one single other letter has she
ever responded to. She never returned a telephone call. I find
that bordering on unethical, certainly unprofessional. It’s
anticipated under the Uniform Child Custody Jurisdiction Act
that Judges are supposed to talk to one another. She has
absolutely refused to do that. I indicated to her in writing that
if she had some way to assure me that she had jurisdiction,
that I would decline jurisdiction. That’s what I did, according
to what the statute tells me I am supposed to do. However, at
this point she is [sic] failed to respond to me. *** This child
is in Illinois. This child’s mother is in Illinois. This child’s
father is in Illinois. ***[T]hose are the 3 parties that are the
most important to this. I understand there is an order out in
Indiana. That order was entered with no notice to the father.
It was entered with only a notice handed by Mr. Lindeman to
the mother. ***[T]hat is not proper personal jurisdiction over
either one of these parents. At the time that the order was
entered, these parents were living in Greene County, Illinois,
both of them. So, while Indiana may have had subject matter
jurisdiction by being, by having been the residence of Sophia,
I do not find that that order, whatsoever, is enforceable
against either the father or the mother. That’s in short, I am
going to deny the Petition to Register the Foreign Judgment.
I informed Judge Love of that in writing several weeks ago.
I asked her again if she would contact me to discuss it, if
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Indiana law was any different with respect to personal
jurisdiction. She failed to do so. As far as I am concerned, the
case stays here.”
The Lindemans appealed.
The appellate court reversed the trial court’s decision with one
justice dissenting. 371 Ill. App. 3d 833. The appellate court looked to
the provisions of the UCCJEA, which set forth three circumstances
in which a contest to registration will be successful. 371 Ill. App. 3d
at 838. The appellate court concluded that Andrew failed to meet his
burden of proving that any of these circumstances existed in this case.
371 Ill. App. 3d at 838.
The dissent pointed out that the Indiana judge ignored the dictates
of the UCCJEA when she refused to communicate with the Illinois
judge. The dissent also questioned whether Indiana had jurisdiction
over Alexis, Andrew, or Sophia when the temporary custody order
was entered, as none of them resided in Indiana at that time. Finally,
the dissent concluded that the Indiana temporary custody order was
void because Andrew and Alexis were not given proper notice.
Because the Illinois court was not required to recognize a void order,
the dissent concluded that the trial court’s decision should be
affirmed. 371 Ill. App. 3d at 840-41 (Myerscough, J., dissenting).
We granted Andrew’s petition for leave to appeal. 210 Ill. 2d R.
315.
ANALYSIS
The parties agree that the sole issue before this court is whether
Illinois is bound to register the orders of the Indiana court. The parties
agree that our consideration of the registration issue is governed by
the UCCJEA (750 ILCS 36/101 et seq. (West 2004)). This issue
presents a question of law which we review de novo. People v.
Johnson, 206 Ill. 2d 348, 359 (2002).
Section 305 of the UCCJEA sets forth the procedure for
registering a child-custody determination issued by another state. 750
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ILCS 36/305(a), (b), (c) (West 2004).3 The statute also provides a
mechanism by which another state’s child-custody judgment can be
contested in Illinois. 750 ILCS 36/305(d) (West 2004). Section
305(d) of the UCCJEA provides:
“(d) A person seeking to contest the validity of a
registered order must request a hearing within 20 days after
service of the notice. At that hearing, the court shall confirm
the registered order unless the person contesting registration
establishes that:
(1) the issuing court did not have jurisdiction under
Article 2;
(2) the child-custody determination sought to be
registered has been vacated, stayed, or modified by a court
having jurisdiction to do so under Article 2; or
(3) the person contesting registration was entitled to
notice, but notice was not given in accordance with the
standards of Section 108 [750 ILCS 36/108], in the
3
The statute provides that a child-custody determination issued by a
court of another state may be registered in this state if certain documents
are presented to the Illinois court. 750 ILCS 36/305(a) (West 2004). The
statute then provides that, on receipt of the documents, the registering court
“shall” file the foreign judgment and provide notice to the necessary
parties. See 750 ILCS 36/305(b) (West 2004). The parties are then provided
20 days to contest the confirmation of the registered judgment. 750 ILCS
36/305(d) (West 2004). In this case, the trial court declined registration of
the judgment, even though the relevant documents were filed, and
Andrew’s contest was a contest to registration, rather than a contest to
confirmation of a registered judgment, as the UCCJEA contemplates. See
750 ILCS 36/305(d) (West 2004). The parties do not allege that the trial
court’s decision to decline registration was erroneous on the procedural
ground just discussed. The parties’ arguments are entirely substantive, and
focus only on whether Andrew’s contest has merit under section 305(d)(1)
or (d)(3) of the UCCJEA. 750 ILCS 36/305(d)(1), (d)(3) (West 2004). We
note this procedural issue for purposes of clarity only, and proceed by
considering the substantive issues raised by the parties.
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proceedings before the court that issued the order for
which registration is sought.”
Andrew contends that the trial court had two bases for sustaining
his contest to registration of the Indiana court’s orders in this case
under section 305(d) of the UCCJEA. First, Andrew maintains that
the Indiana court did not have jurisdiction over Sophia or her parents.
See 750 ILCS 36/305(d)(1) (West 2004). Next, Andrew asserts he
was a person entitled to notice of the custody proceeding, but he did
not receive notice as was required by the UCCJEA. See 750 ILCS
36/305(d)(3) (West 2004). The Lindemans respond that Indiana was
Sophia’s home state at the time the custody proceeding was initiated
and, therefore, Indiana had jurisdiction over the matter. Further, the
Lindemans argue that Andrew was not entitled to service at the
commencement of the custody proceeding because, at that time, he
had not established paternity. The parties agree that the Indiana
custody determination was not vacated, stayed, or modified by a court
having jurisdiction and, therefore, section 305(d)(2) is not an issue in
this case. See 750 ILCS 36/305(d)(2) (West 2004). We consider the
issues raised by the parties in turn.
Section 201 of the UCCJEA provides, in relevant part:
“(a) Except as otherwise provided in Section 204
[temporary emergency jurisdiction4], a court of this State has
jurisdiction to make an initial child-custody determination
only if:
(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
4
Section 204 of the UCCJEA, the temporary emergency jurisdiction
portion of the statute, does not apply in this cause of action even though the
Indiana custody determination was initially made on a temporary
emergency basis. Section 204 only applies when the child is present in the
state where the petition for temporary emergency jurisdiction was filed. See
750 ILCS 36/204 (West 2004). There is no dispute that Sophia was living
in Illinois, not Indiana, when the custody proceeding in question was
commenced.
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continues to live in this State[.]” 750 ILCS 36/201(a)
(West 2004).
Andrew asserts that Indiana was not Sophia’s home state when
the Indiana proceedings were commenced because it is undisputed
that Sophia was living in Illinois at that time; therefore, Indiana could
not exercise home state jurisdiction. The Lindemans do not contest
that Sophia was living in Illinois when they commenced the instant
action. Instead, the Lindemans assert that Indiana had jurisdiction
because Indiana was Sophia’s home state for six months immediately
prior to the commencement of the proceeding and persons acting as
Sophia’s parents continued to the live in that state. Andrew admits
that Sophia lived in Indiana for six months prior to the
commencement of the custody proceeding, but asserts that Indiana
still did not have jurisdiction because no parent, or person acting as
a parent, remained in Indiana.
The facts of this case show that the Lindemans were declared de
facto custodians of Sophia by the Indiana court on April 11, 2006,
based on evidence presented by the Lindemans and Kathy Engle
indicating that the Lindemans were Sophia’s primary caretakers and
financial providers. Under Indiana law, de facto custodian “means a
person who has been the primary caregiver for, and financial support
of, a child who has resided with the person for at least: (1) six (6)
months if the child is less than three (3) years of age.” Ind. Code Ann.
§31–9–2–35.5 (LexisNexis 2007). Section 102 of the UCCJEA does
not use the term “de facto custodian,” as Illinois law does not
recognize de facto custodian status. Instead, the UCCJEA uses the
term “person acting as a parent”and defines that term to mean:
“a person, other than a parent, who:
(A) has physical custody of the child or has had
physical custody for a period of six consecutive months,
including any temporary absence, within one year
immediately before the commencement of the child-
custody proceeding; and
(B) has been awarded legal custody by a court or
claims a right to legal custody under the law of this State.”
750 ILCS 36/102(13) (West 2004).
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The UCCJEA defines “physical custody” as “the physical care and
supervision of a child.” 750 ILCS 36/102(14) (West 2004).
The Indiana court found, based on the evidence it heard at the
April 11, 2006, hearing on the Lindemans’ emergency petition for
temporary custody, that the Lindemans were persons other than a
parent who had physical custody of Sophia for six consecutive
months within one year of the child-custody proceeding, and that the
Lindemans were claiming a right to custody as de facto parents.
Andrew asserts that the Indiana court’s factual determination was
incorrect. He maintains that Alexis was responsible for Sophia’s
physical care and supervision since Sophia’s birth and that the
evidence presented to the Indiana court demonstrated that she never
relinquished those duties. Andrew points to testimony from the
Lindemans explaining that Alexis took care of Sophia while they
worked as support for this position. The Lindemans argue that the
Indiana court’s judgment was proper based on the evidence presented.
It is not within the purview of this court to review the credibility
assessments of the court of another state for purposes of assessing
error, and the UCCJEA does not instruct us to undertake such an
endeavor. The UCCJEA is narrowly drafted to provide a mechanism
by which courts can review legal determinations, such as jurisdiction
and service, when deciding whether another state’s custody order
should be registered in Illinois. See 750 ILCS 36/305(d) (West 2004).
However, the UCCJEA does not provide a mechanism for relitigation
or review of another state court’s fact determinations. See 9 U.L.A.
§ 101, Comment, at 657 (1999). At oral argument, Andrew’s counsel
invited this court to review the Indiana court’s factual determination
that the Lindemans were persons acting as Sophia’s parents for
purposes of section 201 of the UCCJEA under a manifest weight
standard, and urged us to find that the Indiana court’s judgment was
erroneous. We decline this invitation. We note, however, that even if
we were to consider the evidence for this purpose, we would still be
bound by the Indiana court’s factual findings because the evidence in
the record available to us consists of testimony from the Lindemans
and Kathy Engle, and is favorable to their position. Any testimony
heard by the Indiana court which would present a contrary position,
such as testimony given by Alexis, was not made part of the record.
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Thus, in determining whether Indiana had home state jurisdiction
over this matter pursuant to section 201 of the UCCJEA, we only
consider whether Sophia resided in Indiana for six consecutive
months prior to the commencement of the custody proceeding and
whether a parent or person acting as a parent continued to reside in
the state. See 750 ILCS 36/201(a) (West 2004). We accept the
Indiana court’s factual assessments as they relate to those issues, and
thus conclude that the jurisdictional requirements set forth in section
201 of the UCCJEA were met in this case and that the Indiana court
did, in fact, have home state jurisdiction. Accordingly, Andrew’s
contest of registration on this basis must fail.
We turn to Andrew’s assertion that his contest to registration of
the Indiana order should have been sustained because he was not
served with notice of the proceedings even though he was entitled to
such notice. As previously stated, under section 305(d)(3) of the
UCCJEA, Illinois can sustain a contest to registration of the Indiana
court’s custody determination if “the person contesting registration
was entitled to notice, but notice was not given in accordance with the
standards of Section 108 [750 ILCS 36/108], in the proceedings
before the court that issued the order for which registration is sought.”
750 ILCS 36/305(d)(3) (West 2004). Section 205 of the UCCJEA
provides guidelines for determining whether a person is entitled to
notice of the child-custody proceeding. Section 205(a) states:
“Before a child-custody determination is made under this
Act, notice and an opportunity to be heard *** must be given
to all persons entitled to notice under the law of this State, any
parent whose parental rights have not been previously
terminated, and any person having physical custody of the
child.” 750 ILCS 36/205(a) (West 2004).
With this provision in mind, we address Andrew’s notice arguments.
Andrew asserts that he was entitled to notice under section 205(a)
of the UCCJEA because he had physical custody of Sophia. As
previously stated, the term “physical custody” is defined in the
UCCJEA as “physical care and supervision of a child.” 750 ILCS
36/102(14) (West 2004). It is undisputed that Sophia was living with
Andrew when the Indiana child-custody proceeding was commenced.
However, there is no evidence in the record that Andrew was
responsible for Sophia’s physical care and supervision. The evidence
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presented simply established that Andrew and Sophia lived under the
same roof and that Sophia was being financially provided for by
Andrew’s family. The fact that Andrew and Sophia were living in the
same home is insufficient to establish that Andrew was entitled to
notice under section 205 of the UCCJEA as a person having physical
custody of Sophia. See 750 ILCS 36/205(a) (West 2004). If we
concluded otherwise, then every person living in the Cochran
household would have likewise been entitled to notice.
Andrew next contends that he was entitled to notice of all of the
Indiana child-custody proceedings as Sophia’s presumed father
because all of the parties involved in the proceedings knew that he
was Sophia’s father. Andrew points out that the Lindemans stated that
he was the alleged father in their emergency petition for temporary
custody, and the record shows that the Lindemans acknowledged that
he was Sophia’s father when they testified in the hearing on that
petition in the Indiana court. The fact that the interested parties
presumed that Andrew was Sophia’s father is not a basis upon which
Andrew can establish that he was entitled to notice. The Illinois
Parentage Act of 1984 states that a man is only presumed to be the
natural father of a child if: (1) he and child’s natural mother have ever
been married to each other and the child was born or conceived
during the marriage; (2) if he marries the natural mother after the
child’s birth and he consents to be named as the child’s father on the
birth certificate; or (3) he and the natural mother signed an
acknowledgment of paternity. See 750 ILCS 45/5(a) (West 2004).
Andrew does not assert that he complied with any of these
requirements, nor does he claim that he took any steps prior to April
11, 2006, to establish paternity. Thus, we reject his contention that he
was entitled to notice of the Indiana proceedings occurring on or
before April 11, 2006, the date he legally established that he was
Sophia’s father.
We nevertheless conclude that Andrew was a person entitled to
notice, which he did not receive, under section 205 of the UCCJEA.
See 750 ILCS 36/205(a) (West 2004). The facts demonstrate that the
Lindemans filed their verified emergency petition for temporary
guardianship on April 4, 2006. They did not serve Andrew and were
not required to, as Andrew had not yet established paternity. The
Indiana court granted the Lindemans’ emergency petition on April 11,
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2006, without hearing from the Alexis. However, the court made
clear that it was granting temporary custody on an emergency basis
until the court could hear from Alexis and reassess the situation with
more information: “I am going to grant you an emergency custody
order today, with provision for another hearing where Alexis would
have the opportunity to challenge that.” The matter was continued for
one week, until April 18, 2006. On April 18, 2006, Alexis appeared
in the Indiana court. The court heard testimony from Alexis which
was not made part of the instant record. After hearing this evidence,
the court concluded that temporary custody should remain with the
Lindemans and ordered Alexis to return Sophia within 24 hours.
Section 205 of the UCCJEA provides that a parent whose parental
rights have not been terminated is entitled to notice and an
opportunity to be heard in a custody proceeding involving that
parent’s child. 750 ILCS 36/205(a) (West 2004). Alexis was given
that opportunity in this case, as the court continued the matter from
April 11 to April 18, 2006, for her to appear. In doing so, the court
made clear that it was granting the Lindemans’ petition without
hearing from Alexis on an emergency basis, but noted that it needed
to hear from Alexis and reassess whether the award of temporary
custody to the Lindemans was appropriate. The court did not afford
the same right to Andrew. The record demonstrates that Andrew
established his parentage of Sophia in the Illinois court on April 11,
2006. On April 17, 2006, the Indiana court was apprised of this fact
when Alexis filed her motion to dismiss the action for lack of
jurisdiction and insufficiency of process. Alexis advised that
Andrew’s paternity was declared in the Illinois court in the body of
the motion and attached the Illinois court’s order and the proceeding
transcripts. When the April 18, 2006, hearing commenced in the
Indiana court, the court was well aware that Andrew was an
indispensable party to the proceedings, and that Andrew did not
receive proper notice. The court should have continued the matter for
a short time to give Andrew notice and an opportunity to be heard, as
it did for Alexis. See 750 ILCS 36/205(b) (West 2004). Instead, the
court entered an order that same day reaffirming its April 11, 2006,
emergency temporary custody determination by requiring Alexis to
return Sophia to the Lindemans within 24 hours. No consideration
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was given to the fact that Andrew was about to be deprived of his
parental rights without notice.
We hold that Andrew’s contest to the registration of the Indiana
court’s orders was properly sustained by the trial court because
Andrew was not given notice and an opportunity to be heard, as
section 205 of the UCCJEA requires, even though he was a parent
whose parental rights had not been terminated. See 750 ILCS
36/205(a) (West 2004). We acknowledge that the April 18, 2006,
order is not the only Indiana court order which the Lindemans sought
to register in this state.5 The Lindemans also sought registration of the
June 15, 2006, order wherein the Indiana court declared that it had
jurisdiction over this matter, intended to retain jurisdiction, and
ordered the return of Sophia to the Lindemans within 24 hours. We
conclude that Andrew’s contest to registration should be sustained
with regard to the June 15, 2006, order as well. That order was
entered after the Lindemans filed a petition urging the Indiana court
to assert jurisdiction and order law enforcement to remove Sophia
from Illinois and return her to Indiana. Andrew was not given notice
of the filing of that petition, despite the fact that Indiana had
acknowledged Andrew’s parentage on April 21, 2006, and ordered
that he be notified at all further proceedings. Further, the Indiana
court entered its June 15, 2006, order without a hearing, essentially
reaffirming its judgment of April 18, 2006. More importantly, the
court entered its June 15, 2006, order, which reaffirmed its prior
temporary custody determination, without giving Andrew, a known
parent, an opportunity to be heard in violation of section 205 of the
UCCJEA (750 ILCS 36/205 (West 2004)).
Finally, although Andrew was not entitled to notice of the April
11 hearing, we note that the order for temporary guardianship entered
on that date was entered on an emergency basis and the Indiana court
5
The Lindemans sought to register the Indiana court’s April 21, 2006,
order requiring that Andrew be notified of all further proceedings, as well
as a second order entered that day which outlined the steps taken by the
Indiana court to assure Sophia’s safety. Those orders are not referenced in
the parties’ briefs, and we note that those orders do not contain a child-
custody determination as contemplated by section 305 of the UCCJEA. See
750 ILCS 36/305 (West 2004).
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specifically articulated its intention to continue the matter to give
Alexis an opportunity to challenge the judgment. We reiterate that
Andrew should have been given the same opportunity. The April 18,
2006, order entered after Alexis had the opportunity to challenge the
custody determination effectively supercedes the April 11, 2006,
emergency judgment. Accordingly, Andrew’s contest to registration
of the April 11, 2006, judgment should likewise be sustained.
We will not construe the UCCJEA to require an Illinois court to
recognize any judgment that would effectively deprive a father, who
has properly established paternity, of his parental rights without
notice or hearing. To do so would violate the explicit language of the
UCCJEA, which states: “[t]his Act does not govern the enforceability
of a child-custody determination made without notice or an
opportunity to be heard.” 750 ILCS 36/205(b) (West 2004). It would
also violate the principle, embedded in our jurisprudence, that parents
possess the fundamental right “to make decisions concerning the care,
custody, and control of their children without unwarranted state
intrusion.” Wickham v. Byrne, 199 Ill. 2d 309, 316 (2002).
Having concluded that the trial court properly sustained Andrew’s
contest to the registration of the Indiana judgment, we need not
address Andrew’s additional claims of error regarding the Indiana
court’s failure to decline jurisdiction and the court’s failure to
communicate with the Illinois court. We take this opportunity,
however, to emphasize the importance of the communication
provisions of the UCCJEA. See In re Joseph V.D., 373 Ill. App. 3d
559, 562 (2007) (where an Illinois child support order was vacated
due to noncompliance with the UCCJEA communication provisions).
The comments to the UCCJEA state: “[T]his Act should be
interpreted according to its purposes which are to: *** (2) Promote
cooperation with the courts of other States to the end that a custody
decree is rendered in that State which can best decide the case in the
interest of the child.” 9 U.L.A. §101, Comment, at 657 (1999); see
also In re D.S., 217 Ill. 2d 306, 317-18 (2005). To that end, the
UCCJEA is replete with provisions which either encourage or require
courts to communicate with each other. See 750 ILCS 36/110, 204,
206, 307 (West 2004); see also 750 ILCS 36/112 (West 2004) (setting
forth provisions for “Cooperation Between Courts”).
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Section 206(b) of the UCCJEA, entitled “Simultaneous
Proceedings,” provides in relevant part: “If the court determines that
a child-custody proceeding has been commenced in a court in another
state having jurisdiction substantially in accordance with this Act, the
court of this State shall stay its proceeding and communicate with the
court of the other state.” 750 ILCS 36/206(b) (West 2004). Judge Bell
adhered to that statute when she called Judge Love eight times and
wrote four letters. We acknowledge that Judge Love was not required
to initiate communications with Judge Bell under the provisions of
the UCCJEA that applied based on Indiana’s position as the court
with initial custody jurisdiction in this case. See 750 ILCS 36/110
(West 2004) (stating that courts “may” communicate). However, we
believe that she was required to participate when Judge Bell initiated
communication pursuant to the UCCJEA’s mandate, and we are
disturbed by her unwillingness to do so. See 750 ILCS 36/206(b)
(West 2004) (mandating that the court “shall” communicate with the
other court exercising simultaneous jurisdiction). The Indiana court’s
order would have had Sophia taken from her mother and father and
brought to Indiana by law enforcement personnel. A decision of such
magnitude certainly warrants a telephone conversation between the
courts involved in the matter.
CONCLUSION
For the reasons above, we reverse the judgment of appellate court,
which reversed the trial court’s decision to decline registration of the
Indiana court’s child-custody judgment. We note that our judgment
does not preclude further custody proceedings in this case which
comport with the requirements of the UCCJEA.
Reversed.
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