In re: Marriage of Horgan

FOURTH DIVISION
May 18, 2006

Nos. 1-05-2858 and 1-05-2873 (Cons.)

In re MARRIAGE OF )
VIRGINIA HORGAN, f/k/a ) Appeal from
Virginia Romans, ) the Circuit Court
) of Cook County.
Petitioner-Appellee, )
)
)
v. )
) Honorable
VINCENT ROMANS, ) Mark Joseph Lopez,

)
Judge
Presid
ing.

Respo
ndent-
Appell
ant.

)

PRESIDING JUSTICE QUINN delivered the opinion of the

court:
 Respondent Vincent Romans petitioned this court for leave to appeal

pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)), from an

order of the circuit court declining jurisdiction over the issues regarding visitation

between the parties and their minor child, and electing to allow the State of New

York to exercise jurisdiction pursuant to the inconvenient forum provision of the

Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS

36/207)(West 2004)). We granted respondent's petition and, on appeal,

respondent contends that: (1) the State of Illinois must retain jurisdiction over

these issues pursuant to the "Exclusive, Continuing Jurisdiction" provision of the

UCCJEA (750 ILCS 36/202 (West 2004)); (2) the removal and visitation order,

agreed upon by the parties, contained a forum-selection clause, requiring that

jurisdiction remain with the State of Illinois; and (3) the circuit court improperly

applied a "best interests of the child" standard in reaching its decision. For the

reasons stated, we affirm the order of the circuit court.

I. BACKGROUND

The parties were married on October 15, 1991, and their only minor child,

Katherine, was born on April 13, 1994. The parties were divorced on May 3,

1999, by entry of a bifurcated judgment of dissolution of marriage, which granted

sole custody of the child to petitioner. On June 28, 2000, the circuit court entered

a supplement to the bifurcated judgment for dissolution of marriage, which

awarded respondent parenting time on alternate weekends, every Wednesday

evening, and alternate holidays.
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On July 16, 2001, the circuit court entered an agreed removal order, which

granted petitioner leave to permanently remove the child from Illinois to New

York. On January 29, 2003, the court entered a removal and visitation order,

which provided visitation time for respondent with the child in both New York and

Chicago. According to this order, respondent was to have parenting time on one

weekend per month in Chicago, one weekend per month in New York, alternate

holiday visitation, and extended summer vacation.

According to petitioner, in 2004, the child began exhibiting emotional

problems with respect to her visitation arrangement with respondent. After one

particularly serious instance in December 2004, in which petitioner alleges that

she had to physically compel the child to get ready for her flight to Chicago after

the child screamed, cried, and refused to leave her bed, petitioner took the child

to see Laura DeNofio, a clinical social worker in New York. The child saw Ms.

DeNofio three more times between December 2004 and February 2005.

On February 17, 2005, petitioner filed a motion to decline jurisdiction and

transfer adjudication of visitation issues to the State of New York (motion to

transfer). In addition to highlighting the child=s emotional issues, petitioner

alleged that Illinois was an inconvenient forum in which to determine the visitation

issues and that the circuit court should elect to decline jurisdiction over these

issues pursuant to the inconvenient forum provision of the UCCJEA (750 ILCS

36/207(West 2004)).

On February 18, 2005, after the child became upset upon being told she

had to go to Chicago to visit respondent, Ms. DeNofio sent the child to the

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emergency room of a hospital in New York. After the child was released, Ms.

DeNofio contacted respondent to request that he schedule a therapy session

with herself and the child in New York so that they could attempt to resolve the

child=s issues. On February 22, 2005, respondent filed an emergency petition for

an evaluation, arguing that, rather than he being required to travel to New York,

the child should be required to travel to Chicago for any evaluation. The circuit

court agreed, temporarily abated respondent=s visitation with the child, and

appointed Dr. Louis Kraus to perform the evaluation in Chicago.

On June 5, 2005, respondent filed a petition for visitation to resume. The

petition was based on Dr. Kraus=s report, which stated that there was no reason

that parenting time should not occur between respondent and the child. The

petition was granted by the circuit court, which ordered that respondent be

allowed his regularly scheduled parenting time during the child=s summer

vacation.

On July 20, 2005, respondent filed an answer to petitioner=s motion to

transfer, arguing that the State of Illinois was the appropriate forum, and alleging

that petitioner was actively interfering with his visitation with the child and not

properly discouraging the child=s emotional outbursts. The circuit court heard

arguments on the motion on August 3, 2005, and rendered its decision on August

12, 2005. The court found that the balance of factors enumerated in the

inconvenient forum provision of the UCCJEA weighed in favor of New York as a

more appropriate forum for determining the visitation issues. After the circuit

court denied respondent=s motion to stay the court=s August 12 order, respondent

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filed a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(2)

(166 Ill. 2d R. 306(a)(2)). On September 9, 2005, we granted respondent's

petition for leave to appeal.

II. ANALYSIS

A. The UCCJEA and the UCCJA

As an initial matter, we note that the cases relied upon by both parties,

and indeed all of the present cases involving inconvenient forum determinations

in this area, were decided under the predecessor to the UCCJEA, the Uniform

Child Custody Jurisdiction Act (UCCJA) (750 ILCS 35/1 et seq.)(West 1996)),

which was repealed by operation of the UCCJEA on January 1, 2004.

The inconvenient forum provision under the now-repealed UCCJA

provided:

"(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 the case and that a court of another state is a more

appropriate forum.

***

"(c) In determining if it is an inconvenient

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forum, the court shall consider if it is in the interest of the child that

another state assume jurisdiction. For this purpose it may take into

account the following factors, among others:

(1) if another state is or recently was the

child=s home state;

(2) if another state has a closer connection

with the child and his family or with the child and one or more of the

contestants;

(3) if substantial evidence concerning the

child=s present or future care, protection, training, and personal

relationships is more readily available in another state;

(4) if the parties have agreed on another

forum which is no less appropriate; and

(5) if the exercise of jurisdiction by a

court of this State would contravene any of the purposes stated in

Section 2 of this Act." 750 ILCS 35/8(a) (West 1996) (repealed by Pub.

Act. 93-108 '404, eff. January 1, 2004).

The UCCJEA inconvenient forum provision, effective January 1, 2004,

abrogated the foregoing provision in the UCCJA. Section 207 of the UCCJEA

provides:

"(a) A court of this State which has

jurisdiction under this Act to make a child-

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custody determination may decline to exercise

its jurisdiction at any time if it determines

that it is an inconvenient forum under the circumstances and that a

court of another state

is a more appropriate forum. The issue of

inconvenient forum may be raised upon motion of

a party, the court=s own motion, or request of

another court.

(b) Before determining whether it is an

inconvenient forum, a court of this State shall consider whether it is

appropriate for a court of

another state to exercise jurisdiction. For this purpose, the court shall

allow the parties to

submit information and shall consider all relevant factors, including:

(1) whether domestic violence

has occurred and is likely to continue

in the future and which state could best

protect the parties and the child;

(2) the length of time the child

has resided outside this State;

(3) the distance between the court

in this State and the court in the state

that would assume jurisdiction;

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(4) the relative financial circumstances

of the parties;

(5) any agreement of the parties as to

which state should assume jurisdiction;

(6) the nature and location of the

evidence required to resolve the pending litigation, including

testimony of the child;

(7) the ability of the court of each

state to decide the issue expeditiously and

the procedures necessary to present the

evidence; and

(8) the familiarity of the court of

each state with the facts and issues in

the pending litigation." 750 ILCS 36/207

(West 2004).

B. Exclusive, Continuing Jurisdiction

As a threshold matter, respondent argues, and petitioner agrees, that

Illinois has exclusive and continuing jurisdiction over this matter pursuant to

section 202 of the UCCJEA. 1 However this assertion does not resolve the issue

1
This section of the UCCJEA states:

"Exclusive, Continuing Jurisdiction. (a) Except as otherwise provided in Section 204, a

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of whether Illinois is an inconvenient forum. Section 207(a) of the UCCJEA

allows any "court of this State which has jurisdiction" to decline to exercise that

jurisdiction if it determines that it is an inconvenient forum and that a court of

another state is a more appropriate forum. (Emphasis added.) 750 ILCS

36/207(a)(West 2004). Thus, even assuming the circuit court has exclusive and

continuing jurisdiction over the visitation issue in this case, it may nonetheless

decline to exercise that jurisdiction upon a finding that it is an inconvenient forum

under section 207 of the UCCJEA.

C. Forum Selection Clause and Inconvenient Forum Determination

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, the child's parents, and any person acting as

a parent do not 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 that the child, the child's parents, and

any person acting as a parent do not presently reside in

this State.(b) A court of this State which has made a child-custody

determination and does not have exclusive, continuing jurisdiction under this

Section may modify that determination only if it has jurisdiction to make an

initial determination under Section 201." 750 ILCS 36/202 (West 2004).

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Respondent next argues that the removal and visitation order contained a

binding forum-selection clause that precludes judicial determination of the

appropriate forum for the underlying visitation issues in this case. To support this

argument, respondent relies primarily on In re Marriage of Hilliard, 178 Ill. App.

3d 620 (1989), a case decided under the UCCJA. The appellate court in Hilliard

applied the five-factor balancing test articulated in the inconvenient forum

provision of the UCCJA, and, finding the fourth factor, an agreement of the

parties, to be overriding, upheld the circuit court=s denial of the petitioner=s motion

to transfer. Hilliard, 178 Ill. App. 3d at 623.

Respondent would have us apply the holding in Hilliard to find that, any

time the parties have agreed to a forum for subsequent proceedings, such a

forum selection should trump the other factors to be balanced by the circuit court

pursuant to the UCCJEA inconvenient forum provision. To do so would

contradict the statutory language of section 207. On its face, section 207

bestows on the trial court the discretion to receive all the relevant information,

examine the totality of the circumstances, and balance the enumerated factors to

arrive at a determination of whether another forum would be more convenient to

the parties. The fifth factor in section 207 specifically allows the circuit court to

consider "any agreement of the parties as to which state should assume

jurisdiction" alongside and with equal importance as the other seven factors.

(Emphasis added.) 750 ILCS 36/207(b)(5) (West 2004).

Because a finding of inconvenient forum is the product of an exercise of

the circuit court=s discretion, it will be affirmed unless the reviewing court finds an

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abuse of discretion. In re Marriage of Blanchard, 305 Ill. App. 3d 348, 353

(1999). The circuit court in this case outlined in the order of August 12, 2005, its

findings with respect to each of the eight enumerated factors in section 207 of the

UCCJEA. The order stated that no domestic violence has occurred between the

parties; the child has resided in New York in excess of four years; there is a great

distance between New York and Chicago; both parties have the necessary

means to finance litigation in either forum; the parties agreed that Illinois would

be considered the child=s home state; evidence relevant to the proceeding

existed in both Illinois and New York; New York would be better situated to

decide the issues expeditiously because allowing a New York court to address

these issues would present the least amount of disruption to the child=s daily life,

her clinical social worker is in New York, and, should the court need to appoint a

representative for the child, it would be best if that representative was a resident

of New York; and the State of Illinois currently has jurisdiction and more

familiarity with the pending issues. The record shows that the circuit court

balanced the requisite factors and determined that Illinois was an inconvenient

forum and that New York was a more appropriate forum.

Respondent argues that the circuit court impermissibly applied a "best

interests of the child" standard in determining whether Illinois is an inconvenient

forum. However, respondent's assertion is not reflected in the circuit court=s

order. The court followed the mandate of section 207 of the UCCJEA, analyzing

the entire matrix of enumerated factors and attaching varying importance to each

as is within the court's discretion. The mere fact that the circuit court gave

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greater weight to some of the factors, that, in addition to bearing on the

convenience of the forum, may also as an ancillary matter bear on the best

interests of the child, does not constitute an abuse of discretion in this case. We

further note that the best

interests of the child are always paramount in such proceedings. See

Fisher v. Waldrop, No. 100443, slip op. at

12 (April 20, 2006).

III. CONCLUSION

For the above reasons, we affirm the order of the

circuit court declining to exercise jurisdiction and allowing the State of New York

to exercise jurisdiction over the issue of visitation.

Affirmed.

CAMPBELL and GREIMAN, JJ., concur.

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