In re Sophia G.L.

Opinion

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

- 2 - 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

- 3 - 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

- 4 - 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-

- 5 - 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

- 6 - 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

- 7 - 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

- 8 - 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];

- 9 - (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-

- 10 - 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

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.

- 11 - 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

- 12 - 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.

- 13 - 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

- 14 - 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).

- 15 - 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.

- 16 -