Legal Memorandum: Jurisdiction in Child Custody Determinations

Issue: Under Illinois law, will an action for child custody be dismissed because an action was pending in another state when the action was filed?

With respect to simultaneous proceedings in other states the Illinois UCCJA (Uniform Child Custody Jurisdiction Act) provides:

A court of this State shall not exercise its jurisdiction under this Act if at the time of the filing of the petition a proceeding concerning custody of the child was pending in the court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reason.

750 ILCS 35/7(a) (emphasis added).

In Gainey v. Gainey, 237 Ill. App. 3d 868, 604 N.E.2d 950 (3d Dist. 1993), the parties were divorced in Florida, with custody of the couple’s three minor children awarded to the wife.  Upon the mother’s request about eighteen months later, the father took the children to Illinois where he then lived.  The mother understood that he would return them several months later, and when he did not, she commenced contempt proceedings in Florida.  The father responded by filing for custody in Illinois and for a TRO.  The Illinois court granted the TRO and entered an order assuming jurisdiction of the minor children under the UCCJA.  237 Ill. App. 3d at 869-70, 604 N.E.2d at 951.  The denial of the mother’s motion challenging the subject matter of the Illinois court was reversed on appeal.  According to the appellate court, she correctly relied on Section 7(a) of the Act: