Mark B. v. Krystal F. , 402 Ill. App. 3d 127 ( 2008 )

No. 2--08--0544 Filed: 12-10-08
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re BABY GIRL F., a Minor ) Appeal from the Circuit Court
) of Boone County.
)
) No. 08--AD--4
(Mark B. and Mary Karl B., Petitioners- )
Appellees and Cross-Appellants, v. Krystal F., ) Honorable
Respondent-Appellant and Cross-Appellee ) J. Todd Kennedy,
(Ralph L., Jr., Respondent)). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
This case involves an interstate custody dispute between the Illinois birth mother of Baby
Girl F., Krystal F. (respondent-appellant and cross-appellee), and the South Carolina adoptive
parents, Mark B. and Mary Karl B. (petitioners-appellees and cross-appellants). The critical issue
is whether a decision by the South Carolina Supreme Court awarding custody to the adoptive parents
is entitled to full faith and credit in Illinois. We determine that the decision is entitled to full faith
and credit, and we thus affirm.
I. BACKGROUND
In April 2006, 20-year-old Krystal, who was seven months pregnant, contacted an Illinois
adoption agency called A Baby to Love. The adoptive parents retained an attorney in South
Carolina, Ray Godwin, to help them adopt a baby. Attorney Godwin worked with A Baby to Love,
which matched Krystal with the adoptive parents. The adoptive parents retained an Illinois attorney,
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Denise Patton, to handle the adoption paperwork in Illinois and to appear with Krystal in court.
Attorney Patton testified that, even though the adoptive parents paid for her services, she acted in
the interest of Krystal, not the adoptive parents.
Prior to the baby's birth, attorney Patton met with Krystal to discuss the various documents
that she would need to sign. Attorney Patton went over approximately 11 forms with Krystal,
explaining each one. The documents allowed Baby Girl to cross state lines.
With respect to the baby's father, Krystal told A Baby to Love and attorney Patton that she
had been raped. Krystal testified that attorney Patton advised her that if the child was the result of
a rape, there was no need to notify the father. According to Krystal, she told attorney Patton that the
father's name was Ralph, but she did not provide Ralph's last name or address because she did not
want him to know about the baby or the adoption. Contrary to Krystal's testimony, attorney Patton
testified that Krystal would not tell her the father's first name. According to attorney Patton, Krystal
knew the father's first name through friends of friends, but she did not know his last name or his
address. Krystal refused to share the father's first name because she was raped, and she wanted to
get on with her life and make an adoption plan.
Krystal gave birth to Baby Girl in Rockford, Illinois, on June 16, 2006. At the hospital,
Krystal met the adoptive parents and then left the hospital without Baby Girl. The adoptive parents
were present at the hospital to provide care for Baby Girl. Attorney Patton did not contact Krystal
at the hospital, but she contacted her prior to their scheduled court hearing on June 19, 2006.
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On June 19, Krystal and attorney Patton appeared in an Illinois circuit court.1 At the hearing,
Krystal stated that she intended to place Baby Girl up for adoption and that the prospective parents
resided in South Carolina. Krystal signed a "Consent to Guardianship," and, after questioning
Krystal, the Illinois court waived the appointment of a guardian ad litem and appointed attorney
Patton guardian of Baby Girl (June Illinois Guardianship Order) for the purpose of facilitating her
transfer to South Carolina. That day, Krystal signed four more documents, including a
relinquishment of parental rights, a consent to jurisdiction under South Carolina law, an affidavit of
identification, and a consent to adoption. In the consent to jurisdiction document, Krystal
acknowledged that the adoptive parents would be filing a South Carolina petition to adopt Baby Girl.
The document stated the following:
"Having been informed about the law in both South Carolina and Illinois, I hereby submit
to the jurisdiction of the state of South Carolina. I agree that all matters relating to the
adoption of my child, including, but not limited to the right to revoke my Relinquishment,
to notice of further proceedings in the adoption and termination of my parental rights, shall
be determined in accordance with the laws of the state of South Carolina."
1
Two documents that appear in Krystal's appendix, attorney Patton's petition for guardianship
and the transcripts of the June 19, 2006, proceedings, do not appear in the record on appeal.
Therefore, we cannot consider them. See Walczak v. Onyx Acceptance Corp., 365 Ill. App. 3d 664,
672 (2006) (generally, materials not taken from the record may not be placed before the reviewing
court by way of an appendix). As a result, we derive the following facts from the South Carolina
Supreme Court's published decision, issued on January 28, 2008, which is a part of the record.
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In the affidavit of identification, Krystal checked a box indicating that she did not know the
identity of the father. However, she also inconsistently stated, " 'I was raped and I only knew the
birth father through friends of friends. I do not know his full name and will not say his first name.'
" In the consent to adoption, she refused to name the father, stating that he had not supported her
and had not paid any pre-birth expenses.
On June 20, 2006, the adoptive parents returned to South Carolina with Baby Girl and filed
an action for adoption in the family court.
On July 14, 2006, the father, Ralph L., Jr., filed a petition in Illinois, requesting that the court
void ab initio the June Illinois Guardianship Order. Ralph's petition alleged that Krystal knew his
identity and whereabouts at all times. It also alleged that Krystal had said the baby was born dead.
Ralph argued that the Illinois court was without jurisdiction to enter the June Illinois Guardianship
Order because he never received notice. Ralph's petition failed to name the adoptive parents as
parties.
Upon learning Ralph's identity, the adoptive parents filed an amended adoption petition in
the South Carolina family court on July 21, 2006. The adoptive parents requested an emergency
hearing, which took place on July 31, 2006. Although Ralph had notice of this emergency hearing,
his South Carolina counsel arrived too late to participate. On August 2, 2006, the court issued a
temporary order (August South Carolina Order) that (1) granted temporary legal custody of Baby
Girl to the adoptive parents; (2) vested jurisdiction in the South Carolina family court; and (3)
directed Ralph to take a paternity test. The court additionally ruled that South Carolina was Baby
Girl's home state.
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On August 4, 2006, Krystal filed a petition in Illinois to vacate her consent to adoption and
have Baby Girl returned to her. In an affidavit, Krystal stated that she and Ralph began dating in
January 2005 and were living together in September 2005. In October 2005, Krystal filed assault
charges against Ralph, and he was arrested. Krystal then found out she was pregnant and contacted
an adoption agency, which put her in contact with the adoptive parents. Attorney Patton contacted
Krystal to assist with the adoption and told her that the adoptive parents would pay for attorney
Patton's services. According to Krystal's affidavit, attorney Patton advised her that Ralph would not
need to be notified if she did not list him on the adoption papers. Krystal alleged that attorney Patton
had a conflict of interest representing her. The adoptive parents were not named as parties or
provided notice of the pleadings. Apparently, however, they received "indirect notice," and Illinois
counsel entered a special appearance on their behalf.
On September 8, 2006, the Illinois court vacated ab initio the June Illinois Guardianship
Order (September Illinois Order). The court determined that Krystal intentionally failed to disclose
Ralph's identity and that the failure to provide him notice deprived the court of jurisdiction to grant
the guardianship. As a result, the court ordered that Baby Girl be returned to Krystal in Illinois.
Ralph then filed a motion in South Carolina to vacate the August South Carolina Order
awarding the adoptive parents temporary custody of Baby Girl. The court held a hearing on Ralph's
motion on October 20, 2006, and made a ruling on December 15, 2006. According to the court,
Illinois first exercised jurisdiction over Baby Girl when it issued the June Illinois Guardianship
Order, and Illinois exercised continuing jurisdiction when it vacated that order in its September
Illinois Order. After conducting a telephone conference with the presiding Illinois judge, the South
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Carolina court determined that Illinois was the home state of Baby Girl. The court granted Ralph's
motion to vacate based on its lack of subject matter jurisdiction (December South Carolina Order).
In the meantime, Krystal filed a custody action in South Carolina on December 7, 2006,
requesting the court to enforce the September Illinois Order that awarded Krystal custody of Baby
Girl. Krystal did not name Ralph as a party in this action. The adoptive parents answered and filed
a counterclaim and a cross-claim, and they named Ralph as a party. Following a hearing, the court
issued a ruling on February 13, 2007 (February South Carolina Order). The court granted Krystal's
request to enforce the September Illinois Order and dismissed the adoptive parents' counterclaim and
cross-claim. In addition, the court ordered the adoptive parents to deliver Baby Girl to Krystal's
counsel no later than February 23, 2007.
The adoptive parents appealed both orders and petitioned the South Carolina Court of
Appeals for a writ of supersedeas for leave to enforce the August South Carolina Order granting
them temporary custody of Baby Girl. The appeal and the petition were denied, and the adoptive
parents surrendered Baby Girl on February 23, 2007. At that time, Baby Girl was over eight months
old. The adoptive parents appealed to the South Carolina Supreme Court.
Prior to the November 15, 2007, oral argument before the South Carolina Supreme Court,
Ralph's counsel requested to be relieved based on his failure to pay her. Ralph submitted an affidavit
in which he stated that he understood that, if he did not hire replacement counsel, the court could
presume that it was his intention to waive his rights. Ralph did not retain replacement counsel and
did not appear pro se at the oral argument.
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On January 28, 2008, the South Carolina Supreme Court issued a decision (January South
Carolina Supreme Court Decision) reversing the February South Carolina Order. It reasoned that
the June Illinois Guardianship Order was not a "custody determination" within the meaning of a
federal act, the Parental Kidnapping Prevention Act of 1980 (PKPA) (28 U.S.C. §1738A (2000)),
and thus it was not first in time. The court noted that there were no "pleadings" for the guardianship
proceeding; there was no written order in the record; and Baby Girl never lived with attorney Patton,
meaning that she never had physical custody of the child and was not named guardian for the
purpose of becoming a parent. Rather, the purpose of the guardianship proceeding was a limited
one; namely, making attorney Patton a temporary guardian in order to facilitate the transfer of Baby
Girl from Illinois to South Carolina for the subsequent adoption.
The South Carolina Supreme Court stated that, because the June Illinois Guardianship Order
was not a custody determination, Illinois did not have jurisdiction over the custody of Baby Girl prior
to South Carolina's exercise of jurisdiction in August, and therefore the August South Carolina Order
granting temporary legal custody to the adoptive parents was first in time. Without initial
jurisdiction, it logically followed, Illinois did not have continuing jurisdiction to issue its September
Illinois Order vacating the June Illinois Guardianship Order. In addition, the September Illinois
proceedings were flawed in that the adoptive parents were not given notice or an opportunity to be
heard.
The South Carolina Supreme Court further found that neither South Carolina nor Illinois
qualified as the home state of Baby Girl. Nevertheless, Baby Girl had a significant connection to
South Carolina in that she had been living there since she was four days old, and South Carolina was
the only state in which there was evidence concerning her care and personal relationships.
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The South Carolina Supreme Court concluded that the February South Carolina Order
incorrectly afforded full faith and credit to the Illinois September Order. The South Carolina
Supreme Court thus reinstated the August South Carolina Order awarding custody of Baby Girl to
the adoptive parents, and Krystal was given 15 days to return Baby Girl.
On February 15, 2008, the adoptive parents moved in South Carolina for a rule to show cause
as to why Krystal should not be held in contempt for failing to return Baby Girl by February 12,
2008. On March 5, 2008, the court found Krystal in willful contempt of the January South Carolina
Supreme Court Decision (March South Carolina Contempt Order).
On March 7, 2008, the adoptive parents moved in Illinois to register the January South
Carolina Supreme Court Decision and the March South Carolina Contempt Order. The court
registered the judgments in Illinois but stayed execution of the March South Carolina Contempt
Order until March 11, 2008.
On March 11, 2008, Krystal and her counsel appeared at the hearing. The court ordered that
the March South Carolina Contempt Order was stayed until further court order. The matter was
continued to April 18, 2008.
On March 31, 2008, Krystal filed various motions contesting the registration of the foreign
judgments under the provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act
(UCCJEA) (750 ILCS 36/101 et seq. (West 2004)). Krystal also filed a motion to vacate the orders
and a motion to appoint a guardian ad litem.
At the April 18, 2008, hearing, Krystal orally moved for a substitution of judge. The court
denied this motion, and it also denied Krystal's motion to appoint a guardian ad litem. The court
noted that the majority of Krystal's motions concerned whether the South Carolina Supreme Court
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had jurisdiction to make a custody determination. The matter was continued to May 16, 2008, for
a hearing. Because Ralph had not received notice of the March 11, 2008, hearing, the adoptive
parents were ordered to notify Ralph of the May 16, 2008, hearing. In response to the adoptive
parents' concerns that Krystal was delaying the case and attempting to relitigate issues other than
jurisdiction, the court advised Krystal that testimony at the next hearing would be limited to
jurisdictional issues.
Ralph received notice of the May 16, 2008, hearing on April 23, 2008. At the hearing, Ralph
appeared pro se, and he filed a motion requesting more time to hire an attorney. The court denied
this request, noting that Ralph had not presented any valid reason for a continuance. Krystal filed
several motions, including a motion to dismiss and/or transfer due to improper venue; a motion for
discovery seeking to depose several individuals; and a motion for DNA testing and fingerprinting,
based on a letter that the adoptive parents allegedly sent to Krystal nearly one year after Baby Girl
was born. (The adoptive parents denied sending the unsigned letter, which offered money to
Krystal.) Krystal argued that the South Carolina Supreme Court lacked jurisdiction and that there
was fraud in the procurement of the judgment in that Krystal's consent was invalid. The adoptive
parents responded with a motion to strike Krystal's motions.
After the court heard testimony from the adoptive parents, Krystal's mother, and Krystal, the
case was continued to June 9, 2008. On June 9, 2008, Ralph again appeared pro se, although
Krystal's attorneys filed a motion for appointment of counsel for an indigent party. The court denied
this motion for two reasons. First, the attorneys did not have standing to bring a motion on Ralph's
behalf without entering an appearance for him. Second, the hearing did not involve a termination
of parental rights; instead, it was a hearing to contest the registration of a foreign judgment, which
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meant he was not entitled to counsel. The court heard more testimony, including that of attorney
Patton, and rendered its decision the next day.
The court found as follows. First, in registering the foreign judgment, the adoptive parents
substantially complied with the notice requirement in section 305(b) of the UCCJEA (750 ILCS
36/305(b) (West 2004)). Although notice was not sent out by the clerk when the adoptive parents
orally moved to register the foreign judgment, the court ordered that notice be sent to Krystal so that
she would have the opportunity to object. Four days later, Krystal did contest the registration and,
ultimately, she received an evidentiary hearing. In addition, at the April 18, 2008, hearing, the court
ordered that Ralph receive notice of the hearing to contest the registration of the foreign judgment.
Because of the nature of the hearing, Ralph was not entitled to free counsel, so there was no due
process violation.
The court also noted the ways in which the adoptive parents had failed to comply with the
statute. Under section 305(a)(2), orders sought to be registered need to be certified. While the
March South Carolina Contempt Order had been certified, the January South Carolina Supreme
Court Order had not. Also, contrary to that section, there was no proof that the orders had not been
modified. Finally, the names and addresses of the adoptive parents and Krystal were required by
section 305(a)(3). While these were not jurisdictional or constitutional requirements, they needed
to be satisfied to register the foreign judgment.
The court reiterated that the hearing did not involve termination of parental rights, it was to
contest the registration of a foreign judgment. The court noted that, under section 305(d),
jurisdiction is a basis for challenging registration, and Krystal had argued that South Carolina lacked
jurisdiction because it was not Baby Girl's home state. On this point, the court agreed with the South
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Carolina Supreme Court that neither Illinois nor South Carolina was Baby Girl's home state. The
next inquiry under the statute was which state had the most significant connection. The court noted
that, when the August South Carolina Order was issued, Baby Girl was living in and had adequate
contacts with South Carolina, allowing that court to assume jurisdiction. The court agreed with the
South Carolina Supreme Court that, after South Carolina made the initial custody determination, it
had exclusive, continuing jurisdiction, and the Illinois court did not have jurisdiction to modify that
order.
With respect to notice, the trial court found that Ralph had notice of the South Carolina
proceedings, and specifically of the hearing at which the August South Carolina Order was entered.
The court was unclear whether Krystal had notice of that hearing but, even if she did not, it did not
matter, because she had already consented to the adoption. Also, there was no evidence that
Krystal's consent was fraudulently obtained. On the contrary, Krystal had confirmed with A Baby
to Love and attorney Patton that she wished to place Baby Girl up for adoption. The court
determined that the January South Carolina Supreme Court Decision was entitled to full faith and
credit and would be enforced as soon as the adoptive parents complied with the statutory
requirements highlighted above.
The parties next appeared in court on June 12, 2008. The court confirmed the registration
of the January South Carolina Supreme Court Decision and the March South Carolina Contempt
Order, finding that they were entitled to full faith and credit in Illinois. The adoptive parents did not
seek to enforce the portion of the contempt order requiring Krystal to serve jail time. They requested
enforcement of only the January South Carolina Supreme Court Decision, which ordered Krystal to
return Baby Girl to the adoptive parents.
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Krystal moved to reconsider and presented an alternative argument. As the court noted,
Krystal's argument all along had been that the June Illinois Guardianship Order was void ab initio,
meaning that there was no legal authority to transfer Baby Girl to South Carolina and that South
Carolina did not have jurisdiction and thus could not have made the initial child custody
determination. Now, Krystal argued that the June Illinois Guardianship Order was the initial child
custody determination, or first in time, which meant that Illinois had continuing and exclusive
jurisdiction. The court stated that Krystal could not have it both ways: arguing on the one hand that
the June Illinois Guardianship Order was void ab initio and invalid for the purpose of transferring
Baby Girl to South Carolina, and arguing on the other hand that it was valid for the purpose of being
the first child custody determination. In any event, the court agreed with the South Carolina
Supreme Court that attorney Patton's guardianship was not a traditional custody order because she
"was not asking for her own custody," the guardianship being an administrative or procedural matter
to help transfer Baby Girl over state lines. Moreover, if the June Illinois Guardianship Order was
void ab initio, then the order did not exist, and it could not be first in time. For both of those
reasons, the court maintained its position that the August South Carolina Order was first in time.
Also that day, Krystal filed an emergency motion to stay enforcement of the order pending
appeal, pursuant to Supreme Court Rule 305(b) (210 Ill. 2d R. 305(b)). The court noted that there
was a conflict between Rule 305(b) and section 314 of the UCCJEA (750 ILCS 36/314 (West
2004)), which prohibits staying an order pending appeal unless the court enters a temporary
emergency order. Reasoning that the rule trumped the statute, the court stayed enforcement of the
June 12, 2008, order, which ordered Krystal to return Baby Girl to the adoptive parents.
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On June 17, 2008, Krystal filed a notice of appeal. On June 19, 2008, the adoptive parents
cross-appealed and filed an emergency motion to vacate the stay. This court, with one justice
dissenting, denied the adoptive parents' motion to vacate the stay. We turn now to the issues raised
on appeal.
II. ANALYSIS
Krystal's three contentions of error are that: (1) Illinois made the initial child custody
determination and retained exclusive and continuing jurisdiction; (2) the trial court registered the
child custody determination of a South Carolina court that lacked jurisdiction; and (3) Ralph did not
receive proper notice of the registration proceedings. The problem with all of these arguments,
however, is that they are premised on the UCCJEA, which does not apply to adoption proceedings.
Our legislature adopted the UCCJEA on January 1, 2004, thereby replacing the Uniform
Child Custody Jurisdiction Act (750 ILCS 35/1 et seq. (West 2002)) (UCCJA). One major
difference between the UCCJA and the UCCJEA is in their applicability to adoption proceedings.
Although the term "adoption" did not appear in the UCCJA's definitions of child custody
determinations, Illinois courts construed the UCCJA to apply to adoption proceedings. See Noga
v. Noga, 111 Ill. App. 3d 328, 332 (1982) (an adoption proceeding is considered to be a custody
proceeding within the scope of the UCCJA). However, unlike the UCCJA, section 103 of the
UCCJEA expressly states that the "Act does not govern an adoption proceeding." (Emphasis added.)
750 ILCS 36/103 (West 2004); see also People ex rel. A.J.C., 88 P.3d 599, 609 (Colo. 2004) (the
most important and ultimately dispositive provision of the UCCJEA for our purposes is that the
UCCJEA does not govern an adoption proceeding).2 While the issue in this case is whether Illinois
2
The UCCJEA's exclusion of adoptions creates an obvious gap in the jurisdictional legislation
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should give full faith and credit to a South Carolina Supreme Court decision, that decision is the
direct result of the adoption action that the adoptive parents filed in the South Carolina family court.
Therefore, the UCCJEA does not apply. Unfortunately, it appears that neither the parties nor the trial
court were aware of this exclusion in the UCCJEA, as much time and energy were devoted to
arguments based on that statute. In any event, the South Carolina Supreme Court correctly based
its decision on a federal statute, the PKPA. Congress enacted the PKPA in 1980 to remedy the
weaknesses of the UCCJA, and it is a uniform federal statute governing child custody jurisdiction
disputes. In re Marriage of Michalik, 172 Wis. 2d 640, 648-49, 494 N.W.2d 391, 394 (1993). In
addition to kidnapping and child abduction, the PKPA applies generally to interstate custody disputes
(In re Marriage of Wiseman, 316 Ill. App. 3d 631, 638 (2000)) and specifically to adoptions. See
People ex rel. A.J.C., 88 P.3d at 611 (because the PKPA does not specifically exclude adoptions, it
is assumed that it applies to adoption proceedings); see also In re the Custody of K.R., 897 P.2d 896,
899-900 (Colo. App. 1995) (the majority of jurisdictions that have addressed the issue have
concluded that the PKPA applies to adoption proceedings). As noted by the South Carolina Supreme
Court, the primary purpose of the PKPA is to promote cooperation between state courts regarding
custody determinations; to facilitate the enforcement of custody and visitation decrees of sister states;
to discourage continuing interstate controversies over child custody, in the interest of a more stable
home environment and of secure family relationships for the child; and to avoid jurisdictional
competition and conflict between state courts in matters of child custody that have in the past
governing interstate adoptions. To fill this void, the drafters of the UCCJEA intended that state
legislatures also adopt the Uniform Adoption Act. People ex rel. A.J.C., 88 P.3d at 609.
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resulted in shifting children from state to state with harmful effects on their well-being. 28 U.S.C.
§1738A (1982).
While Krystal argues that the federal PKPA is irrelevant, and that we should not give the
South Carolina Supreme Court Decision deference because it relied on that federal statute, this view
is plainly wrong. It is clear that Illinois, South Carolina, and other states apply the PKPA (as well
as their versions of the UCCJA) to interstate custody disputes. See In re Marriage of Kneitz, 341
Ill. App. 3d 299, 305 (2003) (under the PKPA and the UCCJA, Illinois rendered the initial custody
decision and continued to have exclusive jurisdiction); Arnal v. Fraser, 371 S.C. 512, 518, 641
S.E.2d 419, 422 (2007) (both the PKPA and the UCCJA govern when multiple states claim
jurisdiction over a child custody dispute); see also Clay v. Burckle, 369 S.C. 651, 655, 633 S.E.2d
173, 176 (App. 2006) (the PKPA and the UCCJA govern the subject matter jurisdiction of state
courts to rule in interstate custody disputes). Moreover, although Krystal contends that the Illinois
trial court did not rely on the PKPA in reaching its decision, we may affirm on any basis in the
record. See Burton v. Airborne Express, Inc., 367 Ill. App. 3d 1026, 1033 (2006) (the trial court may
be affirmed on any basis in the record, without regard to whether the trial court relied upon that
ground or whether the trial court's rationale was correct).
The effect of the January South Carolina Supreme Court Decision was to reinstate the August
South Carolina Order awarding custody of Baby Girl to the adoptive parents.3 If the August South
Carolina Order was consistent with the provisions of the PKPA, Illinois must enforce it. People ex
3
When the August South Carolina Order was entered, in 2006, South Carolina was governed
by the UCCJA. Eventually, on June 8, 2007, South Carolina enacted the UCCJEA. For the
proceedings relevant to this appeal, however, the UCCJA was in effect.
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rel. A.J.C., 88 P.3d at 611 (the PKPA imposes a duty on a state to enforce a child custody
determination entered by a court of a sister state if the determination is consistent with the federal
statute's provisions). Once a state exercises jurisdiction consistently with the PKPA, no other state
may concurrently exercise jurisdiction over the custody dispute, even if it would have been
empowered to take jurisdiction in the first instance, and all states must accord full faith and credit
to the first state's ensuing custody decree. In re Marriage of Michalik, 172 Wis. 2d at 649-50, 494
N.W.2d at 394-95. The South Carolina Supreme Court found that, under both the PKPA and the
UCCJA, South Carolina had jurisdiction when it issued the August South Carolina Order. In
reviewing the factual history of this case, we agree. As we discuss, the issue turns on whether
Illinois or South Carolina issued the first custody determination.
Three days after Baby Girl was born, attorney Patton and Krystal appeared in court in Illinois.
Attorney Patton was appointed guardian of Baby Girl, and Krystal signed a consent to guardianship,
a relinquishment of parental rights, a consent to jurisdiction under South Carolina law, an affidavit
of identification, and a consent to adoption. According to the court, there was no evidence that
Krystal's consent was fraudulently obtained. The next day, the adoptive parents returned to South
Carolina with Baby Girl and filed an action for adoption there.
Approximately one month later, the adoptive parents filed an amended adoption petition after
learning of Ralph's identity. Ralph was provided notice of an emergency hearing on the matter, but
his counsel arrived too late to participate. On August 2, 2006, the court issued an order granting
temporary legal custody of Baby Girl to the adoptive parents, vesting jurisdiction in South Carolina,
and directing Ralph to take a paternity test.
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In the meantime, Ralph had filed a petition in Illinois, requesting that the court void ab initio
the June Illinois Guardianship Order, and Krystal had filed a petition in Illinois to vacate her consent.
On September 8, 2006, the Illinois court vacated ab initio the June Illinois Guardianship Order.
As the South Carolina Supreme Court recognized, it is necessary to determine which state
issued the first custody determination. After looking at the June Illinois Guardianship Order, the
August South Carolina Order, and the September Illinois Order, the court determined that the August
South Carolina Order was first in time. In reaching this conclusion, it rejected the notion that the
June Illinois Guardianship Order, entered at what was undisputedly the first court proceeding,
constituted a "custody determination" within the meaning of the PKPA.
At oral arguments, we instructed the parties to argue whether the June Illinois Guardianship
Order constituted a "custody determination" under the PKPA. In analyzing this issue, we begin by
setting forth the relevant terms under the federal statute. The PKPA defines a "custody
determination" as a "judgment, decree, or other order of a court providing for the custody of a child,
and includes permanent and temporary orders, and initial orders and modifications." 28 U.S.C.
§1738A(b)(3) (1982). It then defines "physical custody" as "actual possession and control of a
child." 28 U.S.C. §1738A(b)(7) (1982). Finally, a "person acting as a parent" under the PKPA
means a "person, other than a parent, who has physical custody of a child and who has either been
awarded custody by a court or claims a right to custody." 28 U.S.C. §1738A(b)(6) (1982).
According to the South Carolina Supreme Court, the June Illinois Guardianship Order was
not a "custody determination" because there were no pleadings filed in connection with the
proceeding; 4 attorney Patton never had physical custody of Baby Girl; she was not named guardian
4
It is unclear whether the South Carolina Supreme Court considered attorney Patton's petition
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for the purpose of acting as a parent; she never claimed a right to Baby Girl's custody; and Baby Girl
never lived with her. Rather, attorney Patton was named a temporary guardian for the limited
purpose of facilitating both the interstate transport of Baby Girl from Illinois to South Carolina and
the subsequent South Carolina adoption. In contrast to the limited purpose of the guardianship in
this case, the court reasoned that the PKPA clearly envisions physical custody determinations.
To support her position that the June Illinois Guardianship Order constituted a custody
determination, Krystal points to the "Letters of Office" in the record stating that attorney Patton was
"authorized to have under the direction of the court the custody of the minor and to do all acts
required of her by law." However, we agree with the South Carolina Supreme Court and the Illinois
trial court that the guardianship in this case is distinct from a guardianship that awards custody. We
note that a "guardian may be appointed either for all purposes or for specific purposes." (Emphasis
added.) Black's Law Dictionary 712 (7th ed. 1999). Here, the guardianship had the specific and
limited purpose of facilitating the transfer of the child; it was not for the purpose of awarding
physical custody. The Illinois trial court specifically found that attorney Patton took on this role as
an "administrative matter to help transfer," as opposed to seeking custody of Baby Girl. The Illinois
trial court stated that attorney Patton "was not seeking custody, was not seeking any parental rights,
was not seeking control over upbringing, leave to do any medical treatment, leave to enroll the
child," or "any of the things that would normally be" done when seeking custody of a child.
While it is true that the "Letters of Office" gave attorney Patton "custody" of Baby Girl, the
guardianship order must be viewed contextually given the purpose of the proceeding. As stated, the
for guardianship.
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purpose of the proceeding was to file the necessary paperwork in Illinois to allow the adoptive
parents to transfer Baby Girl and to file adoption proceedings in South Carolina. In serving as the
child's guardian, attorney Patton was not a "person acting as a parent" or a person seeking "physical
custody" as defined by the PKPA. Thus, the limited guardianship in this case did not constitute a
"custody determination" under the PKPA. It seems nonsensical that the very proceeding intended
to elicit Krystal's consent to the adoption and give South Carolina jurisdiction be interpreted as the
initial "custody determination" entitling Illinois to continuing jurisdiction. See 28 U.S.C. §1738A(d)
(1982) (providing continuing jurisdiction to the state that has made a child custody determination
consistent with the provisions of the PKPA).
Krystal cites no authority for the proposition that a guardian who was appointed merely to
facilitate the transfer of a child, and who never retained physical custody of the child, amounts to a
custody determination as contemplated by the PKPA. In fact, this case is easily distinguished from
other cases in which the guardianship conferred physical custody of the child to the named guardian.
See Murphy v. Danforth, 323 Ark. 482, 488, 915 S.W.2d 697, 700-01 (1996) (where the case
involved a petition for guardianship, rather than the more usual chancery court determination of child
custody, the PKPA was applicable because the temporary appointment was to be made permanent,
thus having the effect of permanently determining custody and interfering with other State's custody
orders); see also Ray v. Ray, 494 So. 2d 634, 637 (Ala. Civ. App.1986) (guardianship appointment
of paternal aunt who had physical custody of the child for two years was a custody determination
within the meaning of the PKPA).
Therefore, the first custody determination under the PKPA is the August South Carolina
Order giving temporary legal custody to the adoptive parents. After South Carolina made the initial
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custody determination, it follows that Illinois did not have jurisdiction to issue the September Illinois
Order that voided the June Illinois Guardianship Order. A state shall not modify another state's
custody determination made consistently with the PKPA. 28 U.S.C. §1738A(a) (1982). Thus, the
South Carolina Supreme Court correctly determined that the September Illinois Order violated the
PKPA.
Moreover, even if we were to hold otherwise, our result would not change. If the June
Illinois Guardianship Order was a custody determination, and thus first in time, South Carolina was
still entitled to modify the Illinois order under the PKPA. The PKPA allows a court to modify a
custody determination of another state if that court has jurisdiction and the other court no longer has
jurisdiction. See 28 U.S.C. §1738A(f) (1982); see also In re Marriage of Kneitz, 341 Ill. App. 3d
at 305 (under the PKPA, a State court may modify the custody decision of another state court only
if the second state court has jurisdiction and the first State court no longer has jurisdiction). In this
case, both of those requirements were satisfied. First, while Krystal argues that South Carolina
lacked jurisdiction to enter the August South Carolina Order, we reject that argument, as we discuss
below. Second, Illinois no longer had jurisdiction based on Krystal's consent to South Carolina
jurisdiction. It is undisputed that, at the June Illinois guardianship proceeding, Krystal signed a
consent to jurisdiction under South Carolina law in which she acknowledged that the adoptive
parents would be filing a South Carolina petition to adopt Baby Girl. Thus, even if we were to
accept Krystal's argument that the June Illinois Guardianship Order was the first custody
determination, the effect of that proceeding was not to give Illinois the exclusive right to proceed.
Rather, it was to give South Carolina jurisdiction to proceed with the adoption.
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As stated, Krystal's next argument is that South Carolina lacked jurisdiction to enter the
August South Carolina Order, because Baby Girl did not have a significant connection with that
state. Because Baby Girl was born in Illinois, but within four days of birth was transported to South
Carolina, the South Carolina Supreme Court found that Baby Girl had no home state. The Illinois
trial court agreed. When a child has no home state, the PKPA and the UCCJA in South Carolina
allow jurisdiction if it is in the best interest of the child. See 28 U.S.C. §1738A(c)(2)(B) (1982) (a
court has jurisdiction if it is in the best interest of the child that a court of such state assume
jurisdiction because the child and his parents have a significant connection with such state other than
mere physical presence and if substantial evidence is available concerning the child's present or
future care, protection, training, and personal relationships); S.C. Code Ann. §20--7--788(a)(2) (West
1976) (same).
Again, we agree with the South Carolina Supreme Court that Baby Girl had a significant
connection with South Carolina. When the August South Carolina Order was issued, Baby Girl had
been living with the adoptive parents since she was four days old, and the adoptive parents had filed
an adoption action in the South Carolina family court. It was in Baby Girl's best interest to have
South Carolina assume jurisdiction because South Carolina was the only state in which there was
evidence concerning her care and personal relationships. Under both the PKPA and South Carolina's
UCCJA, therefore, South Carolina had jurisdiction when it entered the August South Carolina Order.
Krystal's final arguments regarding improper notice of the registration of the foreign custody
order fail for two reasons. First, they are premised on the UCCJEA, which we have already stated
is inapplicable to this case. Second, they seek redress on behalf of Ralph, who is not a party to this
appeal. See South Park Commissioners v. Livingston, 344 Ill. 368, 372 (1931) (a party in a
reviewing court will not be permitted to take advantage of an error that does not injuriously affect
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himself or his interests). Although it is not necessary to consider Krystal's arguments regarding
notice, we do note that the trial court found that Ralph had notice of the South Carolina proceedings,
specifically the hearing at which the August South Carolina Order was entered.
As a final matter, the adoptive parents cross-appealed regarding the trial court's decision to
stay enforcement of its order pending appeal. According to the adoptive parents, the trial court's
decision to stay the order pursuant to Supreme Court Rule 305(b) violated section 314 of the
UCCJEA (750 ILCS 36/314 (West 2004)). We do not consider this issue, because the UCCJEA
does not apply in this case and because the issue is rendered moot by the resolution of this appeal.
See Chicorp, Inc. v. Bower, 336 Ill. App. 3d 132, 137 (2002) (an issue is moot if there remains no
live controversy between the parties or the resolution of the issue will have no practical effect on the
existing controversy).
III. CONCLUSION
For the reasons stated, the January South Carolina Supreme Court Decision and the March
South Carolina Contempt Order are entitled to full faith and credit in Illinois. Therefore, we affirm
the judgment of the Boone County circuit court and remand the cause with directions to lift the stay
and set a date for the expeditious turnover of Baby Girl to the adoptive parents.
Affirmed and remanded.
HUTCHINSON and BURKE, JJ., concur.
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