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December 30, 1994


Appeal from Circuit Court of Champaign County. No. 92C1526. Honorable Ann A. Einhorn, Judge Presiding.

As Corrected February 1, 1995.

The Honorable Justice Cook delivered the opinion of the court: Honorable Robert W. Cook, J., Honorable James A. Knecht, P.j., Honorable Robert J. Steigmann, J. Concurring.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

This appeal raises the issue whether Illinois courts have jurisdiction to determine the custody of the parties' children pursuant to the Uniform Child Custody Jurisdiction Act (Act) (750 ILCS 35/1 et seq. (West 1992)).

Petitioner Matthew C. Schoeffel and respondent Jeanne Schoeffel were married on November 15, 1988, in a civil ceremony in Queens County, New York. Two sons were born of the marriage: Justin Ryan, born March 24, 1989, and Jordan Alexander, born November 7, 1991. After the marriage, Matthew and Jeanne lived together at their marital residence in Queens County, New York. The parties then moved to Champaign County, Illinois, on approximately August 10, 1991.

Jeanne did not change her New York driver's license, bank accounts, or voting eligibility. Jeanne took the children and moved back to Queens County on February 10, 1992, exactly six months after her move to Champaign County. Jeanne and the children stayed with Jeanne's parents until April 1993, at which time Jeanne obtained her own apartment in Queens County.

Matthew attempted to contact Jeanne by telephone soon after her return to Queens County but was rebuffed by Jeanne's parents. Nevertheless, Jeanne, Matthew and the children managed to reunite for a vacation in Florida during the last week of March 1992. The family drove to Champaign County in early April 1992, where Jeanne stayed a week, collected some belongings and then returned with the children to Queens County.

In August 1992, Jeanne and the children returned to Champaign County for approximately two weeks. Jeanne had hoped that this visit would lead to a reconciliation with Matthew. Jeanne took a leave of absence from her job in New York in order to attempt reconciliation. The attempt failed, and Jeanne and the children returned to their residence in Queens County, bringing some children's furniture from Champaign County with them. Jeanne resumed work at her job. Since the August 1992 visit, the children have had no contact with Matthew or Champaign County.

On September 29, 1992, Jeanne filed an action for divorce in the Supreme Court of the State of New York, County of Queens, which in part seeks custody of the children (case No. 022452/92). Matthew subsequently filed a petition for dissolution and for injunction in the circuit court of Champaign County, Illinois, on November 12, 1992 (case No. 92-C-1526). Jeanne filed no answer or other pleading to the Illinois case. A judgment of dissolution of marriage was entered by default in Illinois on March 22, 1993.

On April 12, 1993, Jeanne filed with the trial court a special and limited appearance for the purpose of objecting to jurisdiction. The trial court found that New York was the home State of the children, and that the children had more significant connections with New York than with Illinois. The trial court therefore sustained Jeanne's objection to jurisdiction and ordered that the question of custody be resolved within Jeanne's divorce action filed in the State of New York. Matthew appeals. We affirm.

Section 4 of the Act lists four possible jurisdictional bases for determining child custody. (750 ILCS 35/4 (West 1992).) "Although the [Act] appears to confer subject[-]matter jurisdiction of child custody determinations, the term 'jurisdiction' is not used in its traditional sense but as a limitation on the existing jurisdiction conferred on the courts by the Illinois Constitution." ( In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 360, 434 N.E.2d 400, 403, 61 Ill. Dec. 247; Ill. Const. 1970, art. VI, ยง 9.) This limitation on jurisdiction is consistent with the avowed purposes of the Act to avoid jurisdictional competition between courts of different States and to assure that litigation concerning child custody will take place ordinarily in the State with which the child has the closest relation. 750 ILCS 35/2(1),(2) (West 1992).

The four bases are (1) Illinois is the home State of the child; (2) the child has significant connections to Illinois; (3) an emergency arises while the child is present in Illinois; or (4) no other State has jurisdiction, or another State has declined to exercise jurisdiction on the basis that Illinois is a more appropriate forum. (750 ILCS 35/4 (West 1992).) Nothing in the record suggests that the children were in any danger of abandonment or abuse, and thus the trial court could not have exercised "emergency jurisdiction" pursuant to section 4(a)(3) of the Act. Nor could the trial court exercise jurisdiction under any of the remaining three bases.

Under section 4(a)(1) of the Act, an Illinois court has jurisdiction over a child custody proceeding if Illinois was the "home State" of the child at the time of the proceeding, or had been the home State of the child within six months before the ...

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