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In Re Custody of Ehr

OPINION FILED OCTOBER 19, 1979.

IN RE CUSTODY OF TODD EHR. — (ALLEN B. EHR, PETITIONER-APPELLEE,

v.

JACKIE M. EHR, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Kane County; the Hon. BARRY E. PUKLIN, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The respondent, Jackie M. Ehr, appeals from an order which modified a decree of divorce by transferring custody of Todd Ehr, the minor child of the parties, from her to the petitioner, Allen B. Ehr. She raises questions of the jurisdiction of the trial court and alternatively contends that the judgment is against the manifest weight of the evidence.

The parties were married in 1973. Todd, the only child of the marriage, was born November 15, 1974. On November 5, 1975, the marriage was dissolved by a decree in the Circuit Court of Kane County and the custody of Todd was awarded to the respondent-mother. The child lived with her in Kane County until they moved to Texas; and on the mother's petition an agreed order was entered in Kane County on September 17, 1976, permitting respondent to remove the child to Texas with visitation rights being granted to the father. The father filed a motion on December 17, 1976, seeking, among other things, a change in custody. The motion alleged that respondent had "not cooperated in or permitted visitation," had "placed the minor child in an immoral climate" and had "permitted the child to remain unattended and unsupervised." The only evidence presented at the hearing, however, concerned petitioner's plans and capacity to care for the child and his unsuccessful efforts to contact respondent. The trial judge found this insufficient to justify a modification and denied the motion on February 9, 1977.

The petitioner filed another motion for change of custody on October 28, 1977, alleging that respondent led a "vagabond life with no stable residence," resided in a "crowded environment * * * not conducive to early child development", and openly lived with a man in a relationship that is "adulterous and deleterious to the moral education of the child." In support of the allegation of promiscuity, Susan Reichardt testified that she lived with respondent and the child in a mobile home in Aurora from September 19, 1975, until March 1976. She testified that a number of men visited respondent during this time and that respondent had sexual relations with at least two of them on several occasions when the child was present. She also testified that she observed respondent smoking marijuana about six times in the presence of Todd. Respondent admitted to living with her present husband, Kenneth Bufkin, from June 22, 1976, until their marriage in October of 1977.

As to the allegations of a "crowded environment," respondent testified that she and her child shared a two-bedroom, one-bath apartment with four other adults from May 1976 until July 1977. Respondent, her husband and Todd shared one bedroom, while her brother and his wife shared the other bedroom. Respondent's mother slept on the couch. Respondent moved out of the apartment and into a three-bedroom, two-bath home in July 1977. She lived in this home at the time of the hearing with Todd, Kenneth Bufkin and an infant Holly to whom she gave birth in September 1977.

At the conclusion of the hearing, the trial judge found that there had been a change in circumstances and that modification of the original decree was in the child's best interests. An order was entered on October 28, 1977, transferring custody to petitioner from which this appeal has been taken.

Since the petition for modification was filed and heard after October 1, 1977, the case is governed by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 801(a), (b)). We therefore consider the question of jurisdiction pursuant to that act. Section 601(a) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 601(a)) provides that Illinois courts> have "jurisdiction to make a child custody determination by initial or modification judgment" if:

"(1) this State is the home state of the child at the time of commencement of the proceedings, or had been the child's home state within 6 months before the commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reason and a parent or person acting as parent continues to live in this State; or

(2) it is the best interest of the child that a court of this State assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this State, and there is available in this State substantial evidence concerning the child's present or future care, protection, training and personal relationships; or

(3) the child is physically present in this State and has been abandoned, or is neglected or dependent, or it is necessary in an emergency to protect him because he has been subject to or threatened with mistreatment or abuse; or

(4) no other state has jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2) or (3), or another state has declined to exercise jurisdiction on its determination that this State is the more appropriate forum to determine custody of the child; and it is in the child's best interest that the court assume jurisdiction."

Section 601(a) is virtually identical to the Uniform Child Custody Jurisdiction Act (UCCJA) provisions on jurisdiction. (Sec. 3(a)), 9 Unif. Laws Annot. 122 (1979).) Decisions in other States which have adopted the Uniform Act have supported the view that jurisdictional requirements should be met at the time a modification petition is filed even if the same court rendered the original decree. (In re Marriage of Settle (1976), 276 Ore. 759, 556 P.2d 962; Clark v. Superior Court (1977), 73 Cal.App.3d 298, 140 Cal.Rptr. 709; Bosse v. Superior Court (1979), 89 Cal.App.3d 440, 152 Cal.Rptr. 665.) While prior legislation in Illinois has been interpreted by Illinois courts> to provide continuing jurisdiction with regard to child custody in the court initially entering the custody decree (see, e.g., Wells v. Wells (1976), 36 Ill. App.3d 91, 94), the new act appears to require that jurisdiction must be separately tested in connection with the modification petition by the reference in section 601 to "initial or modification judgment." It would therefore appear that a legislative intention similar to that described in the cases under the Uniform Act would apply.

The intention of the framers of the Uniform Act has been stated:

"That question was resolved by Professor Bodenheimer, the reporter for the committee which prepared the uniform law, as follows: `A typical example is the case of the couple who are divorced in state A, their matrimonial home state, and whose children are awarded to the wife, subject to visitation rights of the husband. Wife and children move to state B, with or without permission of the court to remove the children. State A has continuing jurisdiction and the courts> in state B may not hear the wife's petition to make her the sole custodian, eliminate visitation rights, or make any other modification of the decree, even though state B has in the meantime become the "home state" under section 3. The jurisdiction of state A continues and is exclusive as long as the husband lives in state A unless he loses contact with the children, for example, by not using his ...


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