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05/04/89 In Re Custody of Catrina Marie Bozarth (Cheryel Mckerr

May 4, 1989

IN RE CUSTODY OF CATRINA MARIE BOZARTH (CHERYEL MCKERR,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellant, v.

Elmer Bozarth, Respondent-Appellee)

538 N.E.2d 785, 182 Ill. App. 3d 345, 131 Ill. Dec. 410 1989.IL.671

Appeal from the Circuit Court of Lake County; the Hon. Jane D. Waller, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. DUNN and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The petitioner, Cheryel McKerr, appeals from the judgment of the trial court which dismissed her petition seeking custody of her granddaughter, Catrina Marie Bozarth, pursuant to the Uniform Child Custody Jurisdiction Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2102 et seq.). The petitioner asserts that the trial court erred in determining that the superior court of the State of Washington properly exercised jurisdiction in accordance with the Act. The petitioner further urges that the trial court erroneously deferred to the judgment of the Washington court and found that it was compelled to abide by such judgment pursuant to sections 7 and 14 of the Act (Ill. Rev. Stat. 1987, ch. 40, pars. 2107, 2114). We agree with the petitioner's contentions and reverse the judgment of the trial court and remand the cause.

The following review of the record is pertinent to our consideration of the petitioner's appeal. The respondent, Elmer Bozarth, is a resident of the State of Washington and is the father of the minor child, Catrina Marie Bozarth. Catrina was born to the respondent and Wendy Kay Government on February 6, 1984, in Tacoma, Washington. Overman, who was 16 at the time of Catrina's birth, and the respondent never married. Approximately five months after Catrina's birth, Overman abandoned the child and the respondent, and her whereabouts were and are unknown. The respondent voluntarily relinquished custody of Catrina to his mother, petitioner Cheryel McKerr, on October 4, 1984, when the child was approximately eight months old. The petitioner, an Illinois resident, returned to the State of Illinois with the child, where they have continuously resided through the date of the instant appeal. Thus, Catrina, now five years old, has resided with her paternal grandmother in the State of Illinois since infancy.

On October 6, 1987, respondent filed an amended petition to determine paternity accompanied by an affidavit and a motion for order to show cause in the superior court of Washington for Pierce County in the State of Washington. The affidavit, signed by the respondent's Washington counsel, stated:

"That Petitioner's [Elmer Bozarth's] mother, CHERYL [ sic ] McKERR, currently has custody of the minor child, CATRINA MARIE BOZARTH. That she has had custody for approximately three years. That she took the child from the Petitioner and proceeded to take the child out of the state. . . . That I believe that Petitioner's [respondent's] mother, CHERYL [ sic ] McKERR should be ordered to bring the child back into this state and turn the custody over to Petitioner [respondent] pending the outcome of this action."

The Washington court issued an order to show cause on October 6, 1987, ordering the petitioner to appear in court in Tacoma, Washington, on December 4, 1987, to show why temporary custody of Catrina should not be granted to the respondent.

On November 13, 1987, the petitioner filed a petition for custody pursuant to the Act, alleging that she was a "contestant" within the meaning of the Act and asserting that the circuit court for the Nineteenth Judicial Circuit, Lake County, had jurisdiction over her petition pursuant to section 4 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2104). The petitioner further alleged that Catrina had resided in the State of Illinois in excess of six months, that there was available in the State of Illinois substantial evidence concerning her present and future care, protection, custody, training, and personal relationships, and that the child had a significant connection with the State of Illinois. The petitioner further disclosed to the court the pendency of Bozarth's paternity action in the superior court of the State of Washington.

The petitioner appended to her petition a sheriff's return of service in which Ronald Rauch, a deputy sheriff in Pierce County, Washington, certified that he had effected personal service on the respondent on November 30, 1987.

On December 4, 1987, the Pierce County superior court issued a paternity decree declaring Elmer Bozarth the natural father of Catrina. In its findings of fact and Conclusions of law, the Pierce County superior court declared that jurisdiction was obtained over Catrina "by service of Summons and Petition on the Respondent [Catrina Marie Bozarth] by certified mail." The court found Bozarth and Wendy Kay Overman to be "fit and proper persons to have the care, custody and control of the minor child," and, from these findings, the court concluded that Bozarth and Government should be awarded joint custody of the child, with physical custody being awarded to Bozarth.

There is no indication in the Washington court's findings and Conclusions, nor anywhere else in the record before us, that the respondent in this action, Elmer Bozarth, informed the Washington court that there was a custody proceeding pending in the State of Illinois at the time it issued its decree. It is also apparent that although the Washington court appointed a guardian ad litem for Catrina on August 21, 1987, the guardian's report was not submitted to the court until December 23, 1987, some 19 days after it had issued its paternity decree and custody award.

The guardian's report reveals that it was based upon two interviews, one with Elmer Bozarth, and the other with Toni Pollock, who the guardian indicates is Bozarth's wife. (We note that a pleading Bozarth submitted to this court states "he was getting married.") Both of these interviews took place on October 5, 1987. The guardian's report includes in its findings that McKerr, the paternal grandmother of Catrina, had had temporary custody of the child for nearly three years, outside the State of Washington; that Wendy Kay Overman, Catrina's natural mother, was 16 years old at the time Catrina was born; that she never married Catrina's father; and that "[shortly] after Catrina's birth, [she] went to work for the Job Corps somewhere in Oregon and has had next to no interaction with Catrina . . . [and her] whereabouts are unknown." The guardian further reported that she was unable to interview McKerr "and has only hearsay information on which to base any opinion as to her appropriateness as a custodian of Catrina." The guardian's report concluded that, "In the best interest of this child, this Guardian ad litem [recommends that] custody be awarded to Elmer Bozarth, natural father and petitioner herein."

On December 18, 1987, the respondent filed his response to McKerr's petition in the Illinois circuit court. In his response, he admitted that the child was currently located in the State of Illinois and that he had voluntarily relinquished custody of Catrina to his mother on October 4, 1984. He asserted that until December 4, 1987, the date of the Pierce County superior court paternity decree, "I had [no] rights with regards to Catrina as there was nothing showing me to be the father." (We note that in a later pleading filed in the Illinois circuit court, Bozarth attached a photocopy of a "Certificate of Live Birth" for Catrina received by the registrar of the State of Washington Department of Social and Health Services, on February 28, 1984, naming him as the father of the child.) Finally, the respondent asserted that the Illinois court should give full faith and credit to the decree of the Washington court which awarded him physical custody of the child.

On February 2, 1988, the respondent filed a motion to contest the jurisdiction of the Illinois court, claiming that section 7 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2107) prohibited the court from exercising its jurisdiction. The respondent further asserted that the Illinois court was required to recognize the Washington court's order of December 4, 1987, pursuant to section 14 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2114). The circuit court for the Nineteenth Judicial Circuit, Lake County, permitted the respondent to ...


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