In re Sophia G.L. ( 2007 )

NO. 4-06-0864 Filed 3/1/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: SOPHIA G.L., a Minor, ) Appeal from
ANDREW COCHRAN, ) Circuit Court of
Petitioner-Appellee, ) Greene County
v. ) No. 06F18
ALEXIS A. LINDEMAN, )
Respondent-Appellee, )
and ) Honorable
JOHN LINDEMAN and YVONNE LINDEMAN, ) Lois A. Bell,
Intervenors-Appellants. ) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
On September 20, 2006, the circuit court of Greene
County, Illinois, denied intervenors John and Yvonne Lindemans'
(the Lindemans) petition to register a child-custody determina-
tion from the superior court of Hendricks County, Indiana. The
Lindemans appeal, arguing the court erred by denying their
petition to register. We reverse and remand for further proceed-
ings.
The record reflects that on September 14, 2005, respon-
dent, Alexis A. Lindeman, gave birth to Sophia G.L. in Indiana.
For a short time, Alexis and Sophia lived with Alexis's mother,
Kathy Engle. However, from September 24, 2005, until March 30,
2006, Alexis and Sophia resided with the Lindemans, Alexis's
father and stepmother. On March 30, 2006, Alexis took Sophia to
live in Illinois. It is undisputed that from the date of her
birth until March 30, 2006, Sophia continuously resided in the
State of Indiana.
On April 4, 2006, the Lindemans filed a verified
emergency petition for custody of Sophia in the superior court of
Hendricks County, Indiana, alleging that, under Indiana law, they
were Sophia's de facto custodians, Alexis was unfit to care for
Sophia, and Sophia's best interests would be substantially and
significantly served by placement with them. Although the
petition identified Andrew Cochran, petitioner in this case, as
Sophia's alleged father, the Lindemans asserted that paternity of
Sophia had never been established, Andrew was not present at
Sophia's birth, Andrew visited Sophia on only two occasions, and
Andrew never signed a paternity affidavit. The Lindemans did not
name Andrew as a party in their action. They also alleged that
Alexis and Sophia left Indiana on March 30, 2006, and went to
live with Andrew and his family in Illinois.
On April 11, 2006, the Indiana trial court conducted a
hearing on the Lindemans' petition. The court's order reflects
the Lindemans were present and represented by counsel but Alexis
was not. John Lindeman testified that he personally served
Alexis with the papers that had been filed and that she had
personal knowledge of the hearing date. Further, the court noted
that it had received a telephone message from an attorney,
requesting a continuance on Alexis's behalf. That request was
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denied because the court did not grant oral motions.
During the hearing, the trial court heard testimony
from the Lindemans and Engle. It found the Lindemans to be
Sophia's de facto custodians and that it was in Sophia's best
interests that temporary legal and physical custody be granted to
them. The court further appointed a guardian ad litem (GAL) for
Sophia, ordered Sophia to be brought immediately to Indiana, and
scheduled a hearing for April 18, 2006, so that Alexis would have
an opportunity to be heard.
Also on April 11, 2006, Andrew filed a petition in the
circuit court of Greene County, Illinois, to determine the
existence of a father and child relationship and seeking custody
of Sophia. On that same day, a hearing on Andrew's petition was
conducted before Judge James W. Day. Andrew's counsel presented
the trial court with copies of all of the documents filed in
Indiana, and Judge Day expressed concern about hearing the case.
After initially stating that he would take no action due to on-
going proceedings in another state, Judge Day questioned Andrew
and Alexis as to whether Andrew was Sophia's father. He then
found Andrew to be Sophia's father but reserved further ruling
due to pending matters in Indiana. Judge Day then recused
himself from the case and assigned it to Judge Lois A. Bell.
On April 17, 2006, Alexis filed a motion to dismiss the
action filed by the Lindemans in Indiana for lack of personal
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jurisdiction and insufficiency of process. On April 18, 2006,
the Indiana trial court conducted a further hearing on the
Lindemans' emergency petition for custody. The court noted that
the Lindemans and Alexis were present and represented by counsel
and that it heard testimony from Alexis. Further, it ordered
each party to file a brief regarding jurisdiction, Alexis to
return Sophia to the Lindemans within 24 hours and schedule an
appointment with the GAL, and further hearing on the matter to be
held on April 26, 2006. Alexis did not return Sophia to the
Lindemans and, on April 19, 2006, they filed a verified emergency
petition for contempt and for a bench warrant to be issued for
Alexis's arrest.
On April 21, 2006, Judge Bell entered an emergency
order placing joint custody of Sophia with Andrew and Alexis and
set the matter for further hearing. On the same date, the
Indiana trial court entered an order, noting that Judge Day found
Andrew to be Sophia's biological father and finding him to be an
indispensable party. The trial court ordered that Andrew be
notified of all further pleadings, orders, or motions.
On April 24, 2006, Judge Bell conducted a hearing at
which Andrew and Alexis both testified. The trial court also
heard testimony from Jeannie McCartney, a child protection
investigator. Judge Bell determined that Illinois was the
appropriate jurisdiction to make a child-custody determination in
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the matter. She then found that it was in Sophia's best interest
that temporary joint custody be given to Alexis and Andrew and
set the matter for a hearing on permanent custody on May 3, 2006.
On April 28, 2006, the Lindemans filed an emergency
limited petition to intervene in the Illinois proceedings and an
emergency motion to dismiss Andrew's petition to determine the
existence of a father and child relationship for lack of juris-
diction. On May 3, 2006, a hearing was conducted before Judge
Bell. She granted the Lindemans' petition to intervene and,
after hearing arguments on their motion to dismiss, stated her
belief that Indiana was Sophia's "home state" under the Uniform
Child-Custody Jurisdiction and Enforcement Act (Act) (750 ILCS
36/101 through 403 (West 2004)). However, Judge Bell also
believed that Illinois had jurisdiction and that all of the
relevant evidence would be located in Illinois. She stated her
intention to contact the Indiana trial court and request that it
decline jurisdiction.
On June 15, 2006, the Indiana trial court entered an
order retaining jurisdiction of the case. On June 16, 2006,
Judge Bell declined further jurisdiction and vacated her prior
temporary custody order. On June 20, 2006, the Lindemans filed a
petition to register the Indiana court's child-custody determina-
tion and a petition for expedited enforcement of that determina-
tion. On June 22, 2006, Judge Bell denied the Lindemans' peti-
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tion for expedited enforcement and set their petition to register
the child-custody determination for hearing.
On July 3, 2006, the Lindemans filed an emergency
motion for leave to file a complaint for writ of prohibition,
mandamus, or entry of a supervisory order with the Illinois
Supreme Court. They sought to compel Judge Bell "to give full
faith and credit to [the Indiana trial court's custody order] by
issuance of a writ of mandamus and prohibition or issuance of a
supervisory order." On August 18, 2006, the supreme court denied
the Lindemans' motion.
On September 13, 2006, Andrew filed a contest to
registration of the Indiana trial court's child-custody determi-
nation. He alleged (1) the order of the Indiana court was flawed
because the Lindemans lacked standing, (2) the court's order was
based on fraudulent allegations of an emergency, (3) the
Lindemans' petition incorrectly and fraudulently labeled them as
de facto custodians, (4) custody of Sophia should have rested
with Andrew pursuant to the superior-rights doctrine, and (5) the
Indiana court either ignored or overlooked the factors set forth
in the Act to be used by a court to determine whether jurisdic-
tion should be accepted or declined.
On September 20, 2006, a hearing was conducted on the
Lindemans' petition to register. Following arguments by the
parties, Judge Bell noted Andrew was not provided with notice of
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the original Indiana custody proceeding and notice was handed to
Alexis by her father. She determined that there was not proper
personal jurisdiction over either parent and denied the petition
to register.
This appeal followed.
On appeal, the Lindemans argue the trial court erred by
denying their petition to register the Indiana trial court's
child-custody determination. Because we are reviewing the legal
effect of undisputed facts, review is de novo. Rohrback v.
Department of Employment Security, 361 Ill. App. 3d 298, 307, 835
N.E.2d 955, 963 (2005).
Section 201(a) of the Act (750 ILCS 36/201(a) (West
2004)) provides that a court has jurisdiction to make an initial
child-custody determination only if:
"(1) th[e] State [in which the court is
located] is the home state of the child on
the date of the commencement of the proceed-
ing, or was the home state of the child
within six months before the commencement of
the proceeding and the child is absent from
th[e] State but a parent or person acting as
a parent continues to live in th[e] State;
(2) a court of another state does not
have jurisdiction under paragraph (1), or a
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court of the home state of the child has
declined to exercise jurisdiction on the
ground that th[e] State is the more appropri-
ate forum under [s]ection 207 or 208 [(750
ILCS 36/207, 208 (West 2004))], 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 connec-
tion with th[e] State other than
mere physical presence; and
(B) substantial evidence is
available in th[e] State concerning
the child's care, protection,
training, and personal relation-
ships;
(3) all courts having jurisdiction under
paragraph (1) or (2) have declined to exer-
cise jurisdiction on the ground that a court
of th[e] State is the more appropriate forum
to determine the custody of the child under
[s]ection 207 or 208 [(750 ILCS 36/207, 208
(West 2004))]; or
(4) no court of any other state would
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have jurisdiction under the criteria speci-
fied in paragraph (1), (2), or (3)."
Under the Act, "home state" is defined as follows:
"[T]he state in which a child lived with
a parent or a person acting as a parent for
at least six consecutive months immediately
before the commencement of a child-custody
proceeding. In the case of a child less than
six months of age, the term means the state
in which the child lived from birth with any
of the persons mentioned. A period of tempo-
rary absence of any of the mentioned persons
is part of the period." 750 ILCS 36/102(7)
(West 2004).
Further, section 305(a) of the Act (750 ILCS 36/305(a)
(West 2004)) provides that "[a] child-custody determination
issued by a court of another state may be registered in this
State." However, a person may request a hearing to contest
registration. 750 ILCS 36/305(d) (West 2004). Following the
hearing, a circuit court will confirm a registered order, unless
the person contesting registration establishes one of the follow-
ing:
"(1) the issuing court did not have
jurisdiction under [a]rticle 2 [of the Act];
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(2) the child-custody determination
sought to be registered has been vacated,
stayed, or modified by a court having juris-
diction to do so under [a]rticle 2 [of the
Act]; or
(3) the person contesting registration
was entitled to notice, but notice was not
given in accordance with the standards of
[s]ection 108 [(750 ILCS 36/108 (West
2004))], in the proceedings before the court
that issued the order for which registration
is sought." (Emphasis added.) 750 ILCS
36/305(d) (West 2004).
The Act clearly sets forth three instances in which a
contest to registration will be successful and provides that the
burden of proof is with the contesting individual. In this
instance, Andrew was the person contesting registration and had
the burden of establishing that (1) Indiana did not have juris-
diction under article 2 of the Act, (2) a court with jurisdiction
under article 2 of the Act vacated, stayed, or modified the
Indiana trial court's custody determination, or (3) he was
entitled to receive notice of the Indiana custody proceedings but
notice was not given as provided in the Act. A review of the
record reflects Andrew failed to prove any of these three occur-
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rences. Thus, the trial court erred by denying the Lindemans'
petition to register.
In his contest to registration, Andrew alleged (1) the
Lindemans lacked standing to file their emergency petition for
custody, (2) the Indiana trial court's custody determination was
based on fraudulent allegations of an emergency, (3) the
Lindemans' petition incorrectly and fraudulently labeled them as
de facto custodians, (4) custody of Sophia should have rested
with Andrew pursuant to the superior rights doctrine, and (5) the
Indiana court either ignored or overlooked the factors set forth
in the Act to be used by a court to determine whether jurisdic-
tion should be accepted or declined. Andrew did not argue that
one of the three bases for denying registration was present.
Further, Andrew's arguments at the hearing on the
petition to register were similarly deficient. He did not argue
or establish that Indiana did not have jurisdiction to enter an
initial child-custody determination under article 2 of the Act,
particularly section 201 (750 ILCS 36/201 (West 2004)), regarding
initial child-custody determinations. Although he asserted the
Illinois trial court modified the Indiana trial court's child-
custody determination, he failed to establish that the Illinois
court had jurisdiction to take that action under the Act.
Moreover, the record reflects that the Illinois court later
vacated that modification.
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Finally, although Andrew correctly asserted that he was
not given notice of the original Indiana proceedings, he failed
to establish that he was entitled to notice. The undisputed
facts show paternity of Sophia was not established when the
Lindemans filed their emergency custody petition. More specifi-
cally, Andrew and Alexis were never married and were not living
together at the time of Sophia's birth, Andrew was not present at
Sophia's birth, Andrew visited Sophia on only two occasions, and
Andrew never signed a paternity affidavit. At no time during the
pendency of this case, including on appeal, has Andrew set forth
any facts or law establishing his entitlement to notice of the
initial child-custody proceedings in Indiana.
The trial court denied the Lindemans' petition to
register, finding the Indiana court did not have personal juris-
diction over either Andrew or Alexis. As stated, however, Andrew
had the burden of proving that he was entitled to notice of the
proceedings but failed to do so. Additionally, the Act clearly
states that a contest to registration will be successful if the
person contesting registration establishes that he or she was
entitled to notice and it was not given. Alexis did not contest
registration; therefore, whether she was properly notified of the
proceedings was irrelevant.
The Act sets forth three reasons why registration of
another state's child-custody determination may be denied and
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placed the burden of proof on the party contesting registration.
Here, Andrew, as the contesting party, failed to meet his burden
and the trial court erred by denying registration.
For the reasons stated, we reverse the trial court's
judgment and remand for further proceedings.
Reversed and remanded.
COOK, J., concurs.
MYERSCOUGH, J., dissents.
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JUSTICE MYERSCOUGH, dissenting:
I respectfully dissent. The record clearly reflects
the Illinois judge called the Indiana judge not once but eight
times between May 3, 2006, and June 2, 2006. On June 2, 2006, a
secretary or court reporter said the Indiana judge would call
back on June 16, 2006, but the judge did not. Instead, the
Indiana judge issued a decision. The Illinois judge also wrote
the Indiana judge on four occasions between June 16, 2006, and
August 21, 2006, requesting that the Indiana judge decline
jurisdiction.
Judge Bell stated that she believed Indiana was the
child's home state under the Act. However, Judge Bell found that
Illinois had jurisdiction and that all of the relevant evidence
was located in Illinois. Judge Bell denied the grandparents'
petition to register the Indiana order in Illinois because
respondent father was not provided notice of the original Indiana
custody proceeding and there was not proper personal jurisdiction
over either parent.
However, I question whether the Indiana court had
jurisdiction over mother, father, or child. At the time of the
Indiana emergency order, all three had resided in Illinois from
at least March 30, 2006. Yet the Indiana court awarded temporary
custody to the grandparents 12 days later without proper notice
to the parents and opportunity to be heard as required by both
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the Act (750 ILCS 36/205 (West 2004)) and the Parental Kidnaping
Prevention Act (PKPA) (28 U.S.C. §1738A (2000)). Both Acts
clearly require parents and physical custodians receive notice
and an opportunity to be heard before their child may be removed
from their custody. The Act states:
"Before a child-custody determination is
made under this Act, notice and an opportu-
nity to be heard in accordance with the stan-
dards of [s]ection 108 must be given to all
persons entitled to notice under the law of
this State as in child-custody proceedings
between residents of this State, any parent
whose parental rights have not been previ-
ously terminated, and any person having phys-
ical custody of the child." 750 ILCS
36/205(a) (West 2004).
The PKPA states:
"Before a child custody or visitation deter-
mination is made, reasonable notice and op-
portunity to be heard shall be given to the
contestants, any parent whose parental rights
have not been previously terminated [,] and
any person who has physical custody of a
child." 28 U.S.C. §1738A(e) (2000).
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Clearly, these are the parents of the child and are the physical
custodians of the child. Therefore, they are entitled to proper
notice and opportunity to be heard as well as the right to
establish the residence of their own child. For these reasons,
the Indiana order is void, Illinois need not recognize that
order, and I would affirm the trial court.
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