Horgan v. Romans

851 N.E.2d 209, 366 Ill. App. 3d 180
CourtAppellate Court of Illinois
DecidedMay 18, 2006
Docket1-05-2858, 1-05-2873
StatusPublished
Cited by8 cases

This text of 851 N.E.2d 209 (Horgan v. Romans) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horgan v. Romans, 851 N.E.2d 209, 366 Ill. App. 3d 180 (Ill. Ct. App. 2006).

Opinion

851 N.E.2d 209 (2006)

In re Marriage of Virginia HORGAN, f/k/a Virginia Romans, Petitioner-Appellee,
v.
Vincent ROMANS, Respondent-Appellant.

Nos. 1-05-2858, 1-05-2873.

Appellate Court of Illinois, First District, Fourth Division.

May 18, 2006.

Colky & Kirsh, Ltd., Chicago (Joshua J. Beyer, Alison G. Turoff, of counsel), for Appellant.

Berger/Schatz, Chicago (Barry A. Schatz, Dina Warner, Margaret E. Keane, of counsel), for Appellee.

Presiding Justice QUINN delivered the opinion of the court:

Respondent Vincent Romans petitioned this court for leave to appeal pursuant to Supreme Court Rule 306(a)(2) (166 Ill.2d R. 306(a)(2)), from an order of the circuit court declining jurisdiction over the issues regarding visitation between the parties and their minor child, and electing to allow the State of New York to exercise jurisdiction pursuant to the inconvenient forum provision of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/207 (West 2004)). *210 We granted respondent's petition and, on appeal, respondent contends that: (1) the State of Illinois must retain jurisdiction over these issues pursuant to the "Exclusive, Continuing Jurisdiction" provision of the UCCJEA (750 ILCS 36/202 (West 2004)); (2) the removal and visitation order, agreed upon by the parties, contained a forum-selection clause, requiring that jurisdiction remain with the State of Illinois; and (3) the circuit court improperly applied a "best interests of the child" standard in reaching its decision. For the reasons stated, we affirm the order of the circuit court.

I. BACKGROUND

The parties were married on October 15, 1991, and their only minor child, Katherine, was born on April 13, 1994. The parties were divorced on May 3, 1999, by entry of a bifurcated judgment of dissolution of marriage, which granted sole custody of the child to petitioner. On June 28, 2000, the circuit court entered a supplement to the bifurcated judgment for dissolution of marriage, which awarded respondent parenting time on alternate weekends, every Wednesday evening, and alternate holidays.

On July 16, 2001, the circuit court entered an agreed removal order, which granted petitioner leave to permanently remove the child from Illinois to New York. On January 29, 2003, the court entered a removal and visitation order, which provided visitation time for respondent with the child in both New York and Chicago. According to this order, respondent was to have parenting time on one weekend per month in Chicago, one weekend per month in New York, alternate holiday visitation, and extended summer vacation.

According to petitioner, in 2004, the child began exhibiting emotional problems with respect to her visitation arrangement with respondent. After one particularly serious instance in December 2004, in which petitioner alleges that she had to physically compel the child to get ready for her flight to Chicago after the child screamed, cried, and refused to leave her bed, petitioner took the child to see Laura DeNofio, a clinical social worker in New York. The child saw Ms. DeNofio three more times between December 2004 and February 2005.

On February 17, 2005, petitioner filed a motion to decline jurisdiction and transfer adjudication of visitation issues to the State of New York (motion to transfer). In addition to highlighting the child's emotional issues, petitioner alleged that Illinois was an inconvenient forum in which to determine the visitation issues and that the circuit court should elect to decline jurisdiction over these issues pursuant to the inconvenient forum provision of the UCCJEA (750 ILCS 36/207(West 2004)).

On February 18, 2005, after the child became upset upon being told she had to go to Chicago to visit respondent, Ms. DeNofio sent the child to the emergency room of a hospital in New York. After the child was released, Ms. DeNofio contacted respondent to request that he schedule a therapy session with herself and the child in New York so that they could attempt to resolve the child's issues. On February 22, 2005, respondent filed an emergency petition for an evaluation, arguing that, rather than he being required to travel to New York, the child should be required to travel to Chicago for any evaluation. The circuit court agreed, temporarily abated respondent's visitation with the child, and appointed Dr. Louis Kraus to perform the evaluation in Chicago.

On June 5, 2005, respondent filed a petition for visitation to resume. The petition was based on Dr. Kraus's report, which *211 stated that there was no reason that parenting time should not occur between respondent and the child. The petition was granted by the circuit court, which ordered that respondent be allowed his regularly scheduled parenting time during the child's summer vacation.

On July 20; 2005, respondent filed an answer to petitioner's motion to transfer, arguing that the State of Illinois was the appropriate forum, and alleging that petitioner was actively interfering with his visitation with the child and not properly discouraging the child's emotional outbursts. The circuit court heard arguments on the motion on August 3, 2005, and rendered its decision on August 12, 2005. The court found that the balance of factors enumerated in the inconvenient forum provision of the UCCJEA weighed in favor of New York as a more appropriate forum for determining the visitation issues. After the circuit court denied respondent's motion to stay the court's August 12 order, respondent filed a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(2) (166 Ill.2d R. 306(a)(2)). On September 9, 2005, we granted respondent's petition for leave to appeal.

II. ANALYSIS

A. The UCCJEA and the UCCJA

As an initial matter, we note that the cases relied upon by both parties, and indeed all of the present cases involving inconvenient forum determinations in this area, were decided under the predecessor to the UCCJEA, the Uniform Child Custody Jurisdiction Act (UCCJA) (750 ILCS 35/1 et seq. (West 1996)), which was repealed by operation of the UCCJEA on January 1, 2004.

The inconvenient forum provision under the now-repealed UCCJA provided:

"(a) A court which has jurisdiction under this Act to make an initial or modification judgment may decline to exercise its jurisdiction any time before making a judgment if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
* * *
"(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) if another state is or recently was the child's home state;
(2) if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(3) if substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state;

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Bluebook (online)
851 N.E.2d 209, 366 Ill. App. 3d 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horgan-v-romans-illappct-2006.