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Noga v. Noga

OPINION FILED DECEMBER 28, 1982.

BETTYE NOGA, PETITIONER-APPELLANT,

v.

JOANNE NOGA, A/K/A JOANNE SCHOPP, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Lake County; the Hon. John Kaufman, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Petitioner, Bettye Noga, appeals from an order of the trial court which dismissed her petition for visitation rights with her grandchildren on the grounds the court lacked jurisdiction.

From the record it appears that petitioner's son, Joseph Noga, and Joanne Noga, now Joanne Schopp, were married in 1970 in Lake County, Illinois, and had two children. They were thereafter divorced in Lake County in 1976; the decree provided that Joanne have custody of the children and Joseph the right of reasonable visitation with them and to pay $50 each week as child support. In 1978, Joanne married her present husband, Patrick Schopp, and in January 1979, they and the two children moved from Illinois to the State of Arkansas; Joanne did not request leave to remove the children from this State as is required by section 609 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 609).

In February 1980, Joanne and Patrick Schopp initiated proceedings in Arkansas in which he sought to adopt the two minor children. The children's natural father, Joseph Noga, appeared in the Arkansas court and contested the adoptions. On May 8, 1980, however, the Chancery Court in Arkansas terminated Joseph's parental rights and entered a judgment of adoption. Joseph Noga was in the process of appealing the adoption judgment to a higher Arkansas court at the time of the proceedings below.

In September 1981, Joseph's mother, Bettye Noga, filed a petition for visitation with her grandchildren in the circuit court of Lake County. The children's mother, Joanne Schopp, specially appeared and moved to dismiss the petition on the jurisdictional grounds the children were not Illinois residents and that the trial court must give full faith and credit to the Arkansas judgment terminating Joseph Noga's parental rights. After a hearing the trial court dismissed the petition for visitation for lack of jurisdiction.

In her appeal the children's grandmother, Bettye Noga, contends the Illinois court has jurisdiction to grant visitation with her grandchildren pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 607(b)). She also asserts that the judgment of adoption of the children, which terminated Joseph Noga's parental rights, does not affect her visitation rights as a grandparent.

Joanne Schopp has not responded with a brief in this court; however, we will consider the appeal under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

We note initially that as Bettye Noga's petition for visitation rights was filed after October 1, 1977, the provisions of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) are applicable. (See Ill. Rev. Stat. 1979, ch. 40, par. 801(a), (c); In re Custody of Ehr (1979), 77 Ill. App.3d 540, 542, 396 N.E.2d 87, 89.) Under section 601(a) of the IMDMA, an Illinois court has jurisdiction to make child custody determinations as is provided in section 4 of the Uniform Child Custody Jurisdiction Act (UCCJA) (Ill. Rev. Stat. 1979, ch. 40, par. 2101 et seq.). (Ill. Rev. Stat. 1979, ch. 40, par. 601(a).) We consider that a petition for visitation rights is a child custody determination for the purposes of the UCCJA (see Ill. Rev. Stat. 1979, ch. 40, par. 2103.02) and, since the present visitation proceeding was filed after September 11, 1979, the provisions of the UCCJA are applicable. See Ill. Ann. Stat., ch. 40, par. 2101, Historical Note, at 517 (Smith-Hurd 1980).

Under prior law, a court which had entered a decree for divorce retained continuing jurisdiction over the parties with respect to child custody and visitation even though one of the parties may have moved out of the court's geographical jurisdiction. (Crawley v. Bauchens (1973), 13 Ill. App.3d 791, 794-95, 300 N.E.2d 603, 606, aff'd (1974), 57 Ill.2d 360, 312 N.E.2d 236; McClellan v. McClellan (1970), 125 Ill. App.2d 477, 481-82, 261 N.E.2d 216, 218.) However, under the UCCJA, the trial court may lose such jurisdiction unless it continues to meet certain jurisdictional criteria, regardless of whether it entered the original decree or specifically retained jurisdiction for enforcement of the decree. (Siegel v. Siegel (1981), 84 Ill.2d 212, 218, 417 N.E.2d 1312, 1318-19; In re Custody of Ehr (1979), 77 Ill. App.3d 540, 542-43, 396 N.E.2d 87, 89-90.) In the context of the UCCJA, "jurisdiction" refers not to the due process limits of potential subject matter or personal jurisdiction (International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154), but rather to the legislature's discretionary limitation upon the exercise of existing jurisdiction. Siegel v. Siegel (1981), 84 Ill.2d 212, 221, 417 N.E.2d 1312, 1316.

The criteria to be considered in determining whether a continuing jurisdiction has been retained by the trial court are set forth in section 4 of the UCCJA, which provides:

"(a) The circuit courts> have jurisdiction to make a child custody determination by initial or modification judgment if:

1. this State

(i) is the home state of the child at the time of commencement of the proceeding, or

(ii) had been the child's home state within 6 months before 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 reasons, and a parent ...


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