Choosing the Right Court for Your Child Custody Lawsuit

 Posted on September 02, 2014 in Divorce

One of the most basic principles in law is that a court must have jurisdiction before it can hear a case. Jurisdiction is a fancy way for saying that a court must have the authority to make legal judgments about an issue. If a court does not have that authority, then it cannot decide the issue. For example, when the issue is a federal law, that issue must usually be resolved by a federal – and not a state – court.

Jurisdiction Matters in Child Custody Cases

Another example involves child custody lawsuits. You cannot walk into just any courtroom and demand sole custody of your child. The court must have jurisdiction to make that decision. In Illinois, a court has jurisdiction to make an initial child custody determination only if:

•  The child lives in Illinois when the legal proceeding begins;
• If the child is absent from Illinois but a parent or a person acting as a parent lives here, and the child lived in Illinois within six months of the commencement of the proceeding;
• Another state does not have jurisdiction or the home state has declined jurisdiction because Illinois is a more appropriate forum;
• The child and/or parents have a significant connection to Illinois (other than physical presence);
• Illinois houses substantial evidence regarding the child’s care and personal relationships;
• All states that otherwise would have jurisdiction have declined on the ground that Illinois is the more appropriate forum; or
• No court of any state would have jurisdiction under the above criteria.

Illinois law also allows courts to have temporary jurisdiction in emergency situations. For example, if the child has been abandoned in Illinois, or if the child is being mistreated or abused, then the court may waive the jurisdictional requirements.

Here are a few other points you should know about child custody jurisdiction:

1. If a child custody proceeding has commenced in another state that has jurisdiction, then Illinois may not exercise its jurisdiction.
2. If your parental rights have not been terminated in some way, then the court must notify you. The court cannot make a child custody determination without giving the parents or guardians the right to be heard.
3. Just like another state can decline jurisdiction in favor of Illinois having jurisdiction, so too can an Illinois court decline jurisdiction if it determines that another state would be a more appropriate forum.
4. Before an Illinois court declines jurisdiction, it will allow the parties to present evidence arguing for one jurisdiction or another.
5. The court may order Illinois residents to appear in court. It may also send notice to out-of-state residents requesting their appearance and warn them that a failure to appear may result in an adverse judgment.

While jurisdiction is simple in theory, it can be complicated in practice. That is why you need an experienced Kane County family law attorney to guide you through your child custody battle. From choosing the correct jurisdiction to arguing for your child’s best interests, our attorneys are here to help. Contact us today for a consultation. We can assist those in the St. Charles area.