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In Re Marriage of Pavelcik

OPINION FILED NOVEMBER 26, 1985.

IN RE MARRIAGE OF JANET PAVELCIK, PETITIONER-APPELLEE, AND JOSEPH PAVELCIK, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Bernard Wolfe, Judge, presiding.

JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:

The instant case involves a child custody modification action between Janet Pavelcik, the petitioner-mother, and Joseph Pavelcik, the respondent-father. The circuit court, on motion of the petitioner, entered a finding of forum non conveniens and transferred the matter to the courts of Missouri, where the petitioner and the children have resided since shortly after the September 1979 dissolution of the parties' marriage. Respondent appeals, contending that: (1) the trial court retained continuing jurisdiction over custody in the dissolution decree, which jurisdiction he validly invoked; (2) that once the trial court commenced hearings on his motion to modify visitation, it was obligated to see that matter through to completion, and that petitioner's motion for a finding of forum non conveniens was accordingly untimely; and (3) that the court's action, deferring to the courts of Missouri, was contrary to the purposes of the Uniform Child Custody Jurisdiction Act (UCCJA). Ill. Rev. Stat. 1983, ch. 40, par. 2101 et seq.

The facts of the case are not substantially in dispute. The parties' marriage was dissolved on September 17, 1979. As part of the dissolution decree, the court granted custody of the parties' three minor children to the petitioner. The children's names and ages at that time were: Ellen, age 12; Noelle, age 10; and Anthony, age 5. Respondent was denied any visitation with his two daughters, the trial court finding that "visitation would be exceedingly traumatic to said minor daughters"; respondent was granted only limited, supervised visitation with his son. As part of the dissolution decree, the trial court explicitly retained continuing jurisdiction over the parties and the subject matter.

In December 1979, with the permission of the trial court, petitioner and the children moved to the St. Louis, Missouri, area, where they have since resided. On June 28, 1982, respondent initiated proceedings to modify his visitation rights. That motion, as well as numerous other motions, were still pending in December 1983, when petitioner filed her motion for a finding of forum non conveniens, asking that the matter be moved to the Missouri courts. That motion was granted on January 24, 1984.

Prior to transferring the cause to Missouri, the trial court had entered several orders regarding the litigation. The trial court had ordered that petitioner bring her son to court, that respondent be allowed supervised visitation with him in accord with the original dissolution decree, that petitioner bring all three children to court and that the children then be interviewed by a doctor. The record on appeal does not reflect that any evidence was heard regarding these orders; the implication of the record supplied by appellant is that only argument was offered prior to the above orders. In any event, however, the court had taken no action concerning modification of the original custody determination. The court merely transferred the matter to Missouri.

In reaching its decision, the trial court noted that the children had been living in Missouri for over four years, that their school records, medical records, institutional records, friends, acquaintances and maternal grandparents were all in Missouri, and that based on this, Missouri was the most appropriate forum to litigate any alteration in visitation. The court also noted that the UCCJA permitted an Illinois court to decline to exercise jurisdiction under such circumstances. (Ill. Rev. Stat. 1983, ch. 40, par. 2108.) The court denied respondent's motion to reconsider this ruling on June 12, 1984, and respondent thereafter appealed.

The instant case is governed by the UCCJA, a fact which both parties rely on as part of their respective arguments. It is clear that this is a child custody matter, as defined by the UCCJA. (Ill. Rev. Stat. 1983, ch. 40, pars. 2103.02, 2103.03.) As such, the key question before this court is whether the trial court complied with the statute when it entered its finding of forum non conveniens.

• 1, 2 Any analysis of the propriety of the finding of forum non conveniens must logically begin with an appreciation of the purposes and policies which the UCCJA was designed to implement. Those guidelines were codified in section 2 of the UCCJA. (Ill. Rev. Stat. 1983, ch. 40, par. 210-2.) That section enumerates a variety of objectives contemplated by the legislature for providing a cogent, effective and intelligent forum for dealing with child custody problems. The overriding objective, which pervades the entire statute, is that the trial court should accord primary, if not dispositive, weight to the best interests of the child. (Siegel v. Siegel (1981), 84 Ill.2d 212, 225, 417 N.E.2d 1312; In re Marriage of Thompson (1981), 96 Ill.2d 67, 77, 449 N.E.2d 88, cert. denied (1983), 464 U.S. 895, 78 L.Ed.2d 232, 104 S.Ct. 242.) Thus, the statute directs that courts should:

"1. Avoid jurisdictional competition and conflict with courts of other states * * * which in the past has resulted in the shifting of children * * * with harmful effects on their well-being;

2. promote cooperation with the courts of other states to the end that a custody judgment is rendered in that state which can best decide the case in the interest of the child;

3. assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state." (Ill. Rev. Stat. 1983, ch. 40, pars. 2102(a)(1 through 3).)

The touchstone consideration of the trial court must therefore be a determination of what court is most able to act in the best interests of the child. Accord, Siegel v. Siegel (1981), 84 Ill.2d 212, 225, 417 N.E.2d 1312.

• 3 The "inconvenient forum" section of the UCCJA was plainly designed to effectuate these policy objectives by granting authority to the trial court to yield jurisdiction to another court which is in a superior position to determine the merits of the dispute. That portion of the UCCJA provides:

"(a) A court which has jurisdiction under this Act to make an initial or modification judgment may decline to exercise its jurisdiction any time before making a judgment if it finds that it is an inconvenient forum to make a custody determination under the circumstances of ...


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