Question Presented: Whether our client, Melissa Porter, has any recourse to regain custody of her son after the child’s father filed a second paternity case in another state from which the first was filed and he had unofficial, temporary custody of the child for over 6 months. Brief Answer Yes. …
Brief Answer Yes. The fact that the child’s father filed a paternity action in Illinois when paternity had already been established by court order in Florida, thus the Florida court had continuing custody jurisdiction, following the Uniform Custody Jurisdiction and Enforcement Act (750 ILCS 36/101 et seq. (West 2004)). In order to obtain any custodial rights, the correct filing would be in Florida for a temporary change of custody or a petition requesting a change of jurisdiction to reflect the parties’ new home state. In addition, due to Ms. Porter’s active duty status in the military, the action falls under the Service Members Civil Relief Act of 1997 and contains several, reversible errors under that law and its adoption by Florida statute 61.13002, et seq.. Statement of Facts Our new client, Melissa Porter, has a five- year old son with former partner, John Straub. Paternity, custody and child support were established in Florida in 2008, where the child and the parents resided for approximately four years. The Florida courts have not relinquished jurisdiction, nor is there any pending action to do so. All parties relocated to Illinois a year ago. There were no filings, motions or correspondence between courts to change home state jurisdiction. At that time Ms. Porter had custody of her son, David. Ms. Porter joined the U.S. Army Reserves in August 2010. There was a verbal agreement between mother and father that Mr. Straub would provide a home for his son during six weeks of Basic Training, at which time Melissa would resume care and custody of their David. During active duty in the Reserves, Ms. Porter suffered a serious training accident and spent six months recovering. She was recently re-settled in Chicago and attempted to arrange the return of her son to her care. Mr. Straub and his new wife refused and filed a paternity action in Illinois, the conclusion of which he was awarded custody of the son. Our client wants to understand what rights she has to the return of her son under applicable State and Federal statutes, as well as any other issues or concerns that arise from her service and subsequent injury. Discussion It is likely that the Illinois Appellate Court will overturn the lower court decision on custody jurisdiction and vacate the custody order because it occurred while Ms. Porter was covered by the Service Members Civil Relief Act (50 U.S.C. §520, et sec) and the Florida courts had continuing custody jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act of 1997 (750 ILCS 36/101 et seq. (West 2004)) (UCCJEA). The original Florida custody order of November 3, 2008 takes precedence over the Illinois custody order obtained in error in 2011. The Uniform Child Custody Jurisdiction and Enforcement Act presents the States with more transparent principles to use in deciding which States have original jurisdiction with regard to paternity and custody determinations. Article 2, Section 202(a) states: Except as otherwise provided in Section 204, a court of this State which has made a child-custody determination consistent with Section 201 or 203 has exclusive, continuing jurisdiction over the determination until: (1) a court of this State determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or (2) a court of this State or a court of another State determines ...
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