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In re Marriage of McGuire

January 02, 2001

IN RE MARRIAGE OF GIOVANNA D. MCGUIRE,
PETITIONER-APPELLEE,
AND
BENJAMIN F. MCGUIRE,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 98--D--1701 Honorable Thomas E. Mueller, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

The respondent, Benjamin Franklin McGuire, appeals the circuit court's dismissal of his petitions to, inter alia, modify visitation and establish supervised visitation between the petitioner, Giovanna Dionne McGuire, and the parties' son. We vacate the circuit court's order and remand for further proceedings.

On February 8, 1996, a judgment of dissolution was entered in the district court of Ector County, Texas, dissolving the parties' marriage. The parties had one child, a son born September 4, 1991. The court appointed the mother and father as joint managing conservators of their son, but it gave the father the exclusive right to establish the legal residence and domicile of the boy.

In December 1996, the father and son moved from Texas to Naperville, Illinois. Subsequently, the father and son moved to Aurora, Illinois.

On December 3, 1998, the mother filed a "First Amended Petition to Modify the Parent-Child Relationship" in Texas. This petition sought to change certain travel arrangements regarding the boy and the allocation of the travel costs. The petition did not, however, seek to change the length of visitation or custody. This petition was not served on the father until April 1999.

On December 4, 1998, the father filed in the Kane County circuit court petitions to enroll the Texas decree, for rule to show cause and to increase child support, and to modify visitation and establish supervised visitation. The father asserted that these petitions were personally served on the mother by the Ector County sheriff in Texas on December 9, 1998.

On January 8, 1999, the mother filed a special and limited appearance in Kane County circuit court and filed a motion to dismiss the father's petition for lack of jurisdiction. The mother also sought a judicial conference between the Kane County, Illinois, court and the Ector County, Texas, court, pursuant to section 7 of the Uniform Child Custody Jurisdiction Act (750 ILCS 35/7 (West 1998)). On March 3, 1999, the Kane County circuit court took the matter under advisement.

On April 27, 1999, the mother filed a petition in Texas, seeking appointment as the sole managing conservator (sole custody) of the boy. The mother alleged in the petition that the father had denied the mother visitation and contact with their son.

On June 25, 1999, the father filed petitions in the Kane County circuit court seeking a temporary restraining order to prevent the boy from being removed from Illinois to visit his mother in Texas. The father also sought the appointment of a guardian ad litem and an in camera conference with the boy. The Kane County circuit court found that the matter was not an emergency and set the matter over for a hearing. Two days later, the boy went to Texas to visit his mother.

On July 6, 1999, while the boy was in Texas with his mother, the Ector County, Texas, district court entered a default judgment against the father and in favor of the mother, awarding sole managing conservatorship (custody) of their son to the mother, with the right to, inter alia, establish the primary residence of the child.

On July 29, 1999, the Kane County, Illinois, circuit court indicated that it had attempted to contact the Ector County, Texas, district court for a judicial conference, but the Texas court had not returned its phone call. On October 19, 1999, the Illinois court held that, because it was unsuccessful in conducting a judicial conference with the Texas court, it must defer to the Texas court regarding custody and visitation and dismissed the case. The Kane County, Illinois, court then denied the father's motion to reconsider on January 31, 2000.

On February 25, 2000, the father appealed the Texas court's default order, which granted sole managing conservatorship to the mother. On March 30, 2000, the Texas Court of Appeals reversed the Texas district court's default judgment, holding that the Texas court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act (750 ILCS 35/et seq. (West 1998)) to modify the joint managing conservatorship. McGuire v. McGuire, 18 S.W.3d 801, 806 (Tex. App. 2000). In the opinion, the Texas appellate court stated that Illinois, not Texas, was the boy's home state. McGuire, 18 S.W.3d at 806.

On May 26, 2000, the mother filed an "Amended Petition to Modify Parent-Child relationship" in the Ector County district court. In the petition the mother sought, inter alia, the right to establish the domicile of her son and a "Standard Possession" visitation order for the father's visitation. The mother also sought a temporary order granting her the right to establish the domicile of her son, ordering the father to pay child support to the mother while the case was pending, granting the mother temporary managing conservatorship, and enjoining the father from, inter alia, removing the boy from Ector County, Texas, hiding the boy from the mother, changing the boy's current place of abode from the mother's Texas home, or "disturbing the peace of the child or of another party."

On June 1, 2000, the Ector County, Texas, district court granted the mother's request for a temporary restraining order enjoining the father from, inter alia, removing the boy from Ector County, Texas, hiding the boy from the mother, changing the boy's current place of abode from the mother's Texas home, or "disturbing the peace of the child or of another party." The Ector County district court ordered the father to appear for a hearing 10 days after the service of the temporary order. The court granted the mother's request for the appointment of a ...


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