Family Law

John W. Dennis, Jr., Esquire

Child custody choice of jurisdiction between original state (Illinois) and Missouri where Illinois was the “home state” of the children when competing actions over custody were begun – Illinois wins. Al-Hawarey v. Al-Hawarey, No. 97993 (Mo. App. E.D., November 6, 2012), Wald, J.

The parties were divorced in the State of Illinois in 2007. The Father moved to the State of Missouri in 2009, the Illinois Court modified the custody provisions to leave the children with the Mother in Illinois, but with a requirement that by June of 2010, she would relocate “to whatever metropolitan area Father was then residing.” If she didn’t do so then the children would go live with the Father until she did move. In June or July, 2010, the children moved in with the Father in Missouri.

In December, 2010, the Father sought a modification in the Illinois Court in which he won physical custody of the children. In July, 2011, the Mother sought a transfer of venue to Missouri from the court in Illinois. This motion was denied.

The Mother then filed a modification action in Missouri in July, 2011. The Father filed a motion to dismiss.

In summary, there is the Illinois court with the original jurisdiction, an action to modify in Illinois less than six months after the children had relocated to Missouri and a consistent refusal of the Illinois court to relinquish jurisdiction. The Mother’s stated residence continued to be in Illinois.

The court granted the Father’s motion to dismiss the Mother’s modification action in Missouri in deference to the continuing jurisdiction of the Illinois court. The Mother appealed.

Held: Affirmed

“Under Section 452.750, a Missouri court shall not modify a child custody determination made by a court of another state unless, first, the Missouri court has jurisdiction to make an initial determination of custody under subdivision (1) or (2) of Section 452.740.1 and either (1) the court of the other state determines it no longer has exclusive, continuing jurisdiction or Missouri would be a more convenient forum, or (2) a court of this state or a court of the other state determines that neither the child nor a parent resides in the other state Section 452.750.”

“The Illinois trial court found that the children had lived in Missouri for less than six months at the time Father filed his petition for permanent physical custody, meaning Missouri was not the children’s home state under Section 452.740(1). Prior to moving to Missouri in June or July, 2010, the children’s permanent residence had been with Mother in Illinois since September 4, 2009. Although the children were absent from the State of Illinois, Mother’s permanent residence remained in Illinois, making Illinois the home state of the children within six months prior to the commencement of Father’s petition for permanent custody under the requirements of Sec. 452.740(1). Illinois had not declined jurisdiction forum under Section 452.740(2).” Thus, Missouri lacked authority to enter an initial child custody determination.

“Important to our analysis is recognizing the purpose of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), which is ‘not to confer or deprive either state of jurisdiction but to provide a uniform statutory framework so that courts with jurisdiction may determine who shall go forward with a particular case. Ketteman v. Ketteman, 347 S.W.3d 647, at 653 (Mo. App. W.D., 2011).”

The opinion notes that under the UCCJEA, as opposed to the Uniform Child Custody Jurisdiction Act (UCCJA), the problem of simultaneous proceedings is no longer as significant an issue as it had been under the former UCCJA. “The revised UCCJEA eliminates the ‘best interest of the child’ analysis and prioritizes home state jurisdiction. See UCCJEA, Section 201; comments to UCCJEA, if there is a home state or a state that had been a home state within six months prior to the commencement of the proceeding, and the home state has not declined to exercise its jurisdiction, there can be no other state with the authority to exercise jurisdiction and, therefore, no simultaneous proceedings.” Judgment dismissing Mother’s action was affirmed.