Cochran v. Lindeman

JUSTICE MYERSCOUGH,

dissenting:

I respectfully dissent. The record clearly reflects the Illinois judge called the Indiana judge not once but eight times between May 3, 2006, and June 2, 2006. On June 2, 2006, a secretary or court reporter said the Indiana judge would call back on June 16, 2006, but the judge did not. Instead, the Indiana judge issued a decision. The Illinois judge also wrote the Indiana judge on four occasions between June 16, 2006, and August 21, 2006, requesting that the Indiana judge decline jurisdiction.

Judge Bell stated that she believed Indiana was the child’s home state under the Act. However, Judge Bell found that Illinois had jurisdiction and that all of the relevant evidence was located in Illinois. Judge Bell denied the grandparents’ petition to register the Indiana order in Illinois because respondent father was not provided notice of the original Indiana custody proceeding and there was not proper personal jurisdiction over either parent.

However, I question whether the Indiana court had jurisdiction over mother, father, or child. At the time of the Indiana emergency order, all three had resided in Illinois from at least March 30, 2006. Yet the Indiana court awarded temporary custody to the grandparents 12 days later without proper notice to the parents and opportunity to be heard as required by both the Act (750 ILCS 36/205 (West 2004)) and the Parental Kidnaping Prevention Act (PKPA) (28 U.S.C. §1738A (2000)). Both Acts clearly require parents and physical custodians receive notice and an opportunity to be heard before their child may be removed from their custody. The Act states:

“Before a child-custody determination is made under this Act, notice and an opportunity to be heard in accordance with the standards of [s]ection 108 must be given to all persons entitled to notice under the law of this State as in child-custody proceedings between residents of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.” 750 ILCS 36/205(a) (West 2004).

The PKPA states:

“Before a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated!,] and any person who has physical custody of a child.” 28 U.S.C. §1738A(e) (2000).

Clearly, these are the parents of the child and are the physical custodians of the child. Therefore, they are entitled to proper notice and opportunity to be heard as well as the right to establish the residence of their own child. For these reasons, the Indiana order is void, Illinois need not recognize that order, and I would affirm the trial court.