Divorcing Parents Disagree on Jurisdiction in International Case

 Posted on August 03, 2018 in Child Custody

Determining which state’s court has jurisdiction in a divorce case is tricky when the spouses reside in separate states. State jurisdiction is particularly important when deciding the allocation of parental responsibilities because the parent living in that state has an advantage in receiving a majority share of parenting time. Courts use the Uniform Child Custody Jurisdiction and Enforcement Act to determine state jurisdiction, which favors the child’s home state. However, parents often debate which state is a child’s home.

Recent Case

The home state in a child custody case can also include states or provinces in other countries. In the case of In re Marriage of Milne, a divorcing father residing in Canada argued that Ontario should have jurisdiction in their case instead of Illinois. The spouses had met and married while living in Illinois. The husband adopted the wife’s child from a previous marriage, and the couple later had their own child. The family relocated to Canada in August 2015, after which:

• The wife became a permanent resident;
• The wife gave birth to their shared child;
• The wife and newborn child received health care cards and social insurance numbers; and
• The family moved all of their assets with them.

During a visit to Illinois in July 2016, the wife said she intended to stay with the children in Illinois and file for divorce. The wife filed in August, but the case was dismissed with prejudice after the spouses agreed to return the children to Canada on a temporary basis until July 2018. During another visit to Illinois in July 2017, the wife again filed a petition to divorce. The husband filed his own petition in Ontario and requested that the court strike the Illinois petition because it is not the children’s home state.

Result

Illinois trial and appellate courts have both ruled that Illinois does have jurisdiction as the children’s home state because their Canada residency was temporary. The husband cited the family’s relocation to Canada in 2015 as establishing jurisdiction in Ontario. His argument would have been stronger if the case started with the August 2016 petition for divorce. However, the consent order that the parties agreed to in November 2016 stated that Canada would be a temporary residence, after which the children would return to the U.S. with the mother. Thus, Illinois has jurisdiction because it is the state in the U.S. where the children reside.

Establishing Jurisdiction

Each state has its own divorce and family laws that can affect decisions in your case. A Kane County divorce attorney at Goostree Law Group can help you establish why your case should be heard in Illinois. Schedule a free consultation by calling 630-584-4800.

Source:

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/2ndDistrict/2180091.pdf