specially concurring:
I agree that the trial court’s result should be affirmed, but I cannot subscribe to my colleagues’ reasoning. The majority correctly notes that jurisdiction over custody matters is to be determined not by traditional concepts of subject matter jurisdiction, but by consideration of section 4(a) of the Uniform Child Custody Jurisdiction Act. In rejecting the mother’s argument that Illinois was not Brandi’s “home state,” however, I believe that my colleagues have misconstrued the language of the statute and seriously undermined the legislative intent of the UCCJA.
In my opinion Illinois qualified as Brandi’s “home state” six months after Brandi joined her mother for her fifth-grade school year. Pursuant to section 3.04, a “home state” is
“the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned, however, periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.” Ill. Rev. Stat. 1991, ch. 40, par. 2103.04.
This State may assume jurisdiction over custody matters pursuant to section 4(aXl)(ü) if
“this State
* * *
had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State.” Ill. Rev. Stat. 1991, ch. 40, par. 2104(a)(l)(ii).
I do not agree with the majority that this State’s jurisdiction is defeated under section 4(aXl)(ii) by Brandi’s “temporary absence” from California. The majority concludes that the absence was temporary and seems to suggest that by establishing jurisdiction in Illinois on the basis of “home state” California necessarily would lose jurisdiction. Such is not the case. (See, e.g., Wilcox v. Wilcox (Tenn. App. 1993), 862 S.W.2d 533, 540, appeal denied (“Under the *** UCCJA, jurisdiction may exist in more than one jurisdiction at a time. To avoid conflict, competition, and relitigation, the UCCJA encourages courts with simultaneous jurisdiction to communicate and cooperate with each other and, when appropriate, to defer to one another”).) Moreover, the majority’s strained analysis allows an out-of-State parent always to make the argument that the child’s presence in this State was temporary (for 11 months, as in this case, or possibly two years or more in the next?) and thereby to defeat this State’s jurisdiction.
As I see it, the six-month requirement becomes virtually meaningless if the majority’s open-ended definition of “temporary absence” is accepted. “Temporary absence” is not statutorily defined. But, the statute requires that the six-month period be six consecutive months. This leads me to believe that the legislature meant that only “absences” less than six months within the relevant six-month period may be “temporary.” (See, e.g., Milner v. Kilgore (Tex. App. 1986), 718 S.W.2d 759 (Child moved from Texas to Missouri with mother on November 22, 1984. Child’s visit to grandparents in Texas from May 4, 1985, to June 23, 1985, was “temporary absence” from Missouri on these facts. On appeal, court ruled that child’s home State was established in Missouri six months after the move).) Obviously, it would be illogical for the legislature to have intended that an absence greater than six months would be considered “temporary.”
In my view, the legislative intent of section 3.04 is straightforward and clearly permits this State’s courts to assume jurisdiction of custody matters upon proof that, inter alia, notwithstanding a temporary absence by the child or “parents, parent or person acting as a parent,” the “parents, parent or person acting as a parent” lived with the child since birth or satisfied the six-month requirement. In this case “temporary absence” is not in issue since it is not disputed that Brandi lived with her mother in this State continuously for more than six consecutive months.
The majority suggests that adoption of Donni Lee’s position with respect to section 4(aXl)(ii) could violate this State’s public policy of encouraging agreements for extended out-of-State visitations. I disagree. As argued by John, a court may decline the exercise of subject matter jurisdiction under the UCCJA. John’s position is ignored by the majority, but in my opinion merits our consideration.
In his argument to this court, John suggests that since the determination of “jurisdiction” under the UCCJA is predicated on the best interests of the child, not the parent, the trial court’s decision in this case to decline jurisdiction should be sustained on the ground of forum non conveniens. John refers this court to section 8 of the UCCJA and argues that California and Arizona qualify as more convenient fora under subsections (cXl), (cX2) and (c)(3).
Section 8(c) provides in pertinent part:
“(c) In determining if it is an inconvenient 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.” (Ill. Rev. Stat. 1991, ch. 40, par. 2108.)
Given Brandi’s life history and the history of custody litigation in this case, John suggests that all three States, Illinois, California and Arizona, would qualify under subsection (1); California most clearly qualifies under subsection (2); and California and Arizona qualify to a greater degree than Illinois under subsection (3) at the present time.
Obviously, the determination of a court’s jurisdiction over child custody matters is not subject to a bright-line test. As we stated in In re Marriage of Kitchen (1984), 126 Ill. App. 3d 192, 196, 467 N.E.2d 344, 348, “the [UCCJA] permits some discretion in the trial court’s determination of its ‘jurisdiction’ to ensure that litigation concerning the child’s custody takes place in the forum where the ties between the State and child and [her] family are the closest.” John correctly states that the ultimate decision of jurisdiction is predicated on the best interest of the child. In fact, the primary legislative purposes of the UCCJA are to promote the best interest of the child:
“The general purposes of this Act are to:
1. avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
2. promote co-operation with the courts of other states to the end that a custody judgment is rendered in that state which can best decide the case in the interest of the child.” (Ill. Rev. Stat. 1991, ch. 40, pars. 2102(a)(1), (a)(2).)
A cursory review of the four jurisdictional bases enumerated in section 4(a) of the UCCJA establishes that, consistent with the foregoing purposes and but for the “home state” provision in subparagraph 1, there is substantial room for the exercise of judicial discretion in determining jurisdiction in the child’s best interests. Moreover, once the threshold determination of “jurisdiction” is made, the court has broad discretion to determine whether to accept or decline jurisdiction. (In re Marriage of Doehner (1991), 215 Ill. App. 3d 570, 574 N.E.2d 1380.) Again, the court’s primary objective is to serve the best interests of the child. In re Marriage of Elblkasy (1993), 241 Ill. App. 3d 662, 665, 610 N.E.2d 139, 141.
In this case, California has substantial evidence of prior contested custody litigation involving Brandi. Brandi spent most of her life in California. She spent only 11 months in Illinois, and although there was some significant evidence of her current life and well-being in Illinois, she had already been returned to the home of her primary residential parent in Arizona at the time of the filing of Donni Lee’s petition. Thus, the most current evidence of her life and well-being must be found in Arizona.
The trial court, after reviewing the pleadings and the UCCJA and hearing the parties’ arguments, determined that “the State of Hlinois does not have jurisdiction of custody issues in this case.” Accordingly, the court dismissed Donni Lee’s petition to enroll the California decree. In my opinion, the trial court in this case exercised its discretion in dismissing Donni Lee’s petition on the ground of “jurisdiction.”
I am not unmindful of Donni Lee’s argument that ordinarily a court may not “decline” to exercise jurisdiction unless it makes a preliminary finding that it has jurisdiction. (In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 434 N.E.2d 400.) However, the purposes of the UCCJA are not advanced by formalistic jurisprudential rituals where it can be readily determined that the child’s best interests are served by declining jurisdiction pursuant to section 8 of the Act. See, e.g., In re McDonald (1977), 74 Mich. App. 119, 126 n.7, 253 N.W.2d 678, 681 n.7 (trial court failed to rule expressly on whether Michigan had jurisdiction, but court on appeals observed that “[b]y declining to exercise jurisdiction *** the circuit court implicitly held that it had jurisdiction to resolve the dispute”).
Based on the record and undisputed facts before us, I do not find it necessary or appropriate to reverse and remand this cause to the circuit court merely because I find that Illinois technically qualified as Brandi’s “home state” under section 4(aXlXü) at the time Donni Lee filed her pleadings in Illinois. Also I find that the court’s rejection of Donni Lee’s claims of jurisdiction in the alternative under subsections 4(aX2) and (aX4) was clearly within the court’s discretion and should be sustained. In my opinion the record provides ample support for the conclusion that, as among the three States where jurisdiction could be claimed, Hlinois is the least convenient forum. Thus, even though I find as a matter of law that the trial court had jurisdiction of the custody dispute under section 4(aXlXü), I would affirm the trial court’s dismissal of Donni Lee’s petition on the ground of forum non conveniens. See Ziman v. Village of Glencoe (1971), 1 Ill. App. 3d 912, 915, 275 N.E.2d 168, 171 (“[E]ven though the reasoning of the [trial] court may have been wrong, if the record demonstrates that substantial justice on the whole has been done, we will affirm”) citing Ferraro v. Augustine (1964), 45 Ill. App. 2d 295, 196 N.E.2d 16, and Fitzgibbons v. Rue (1951), 342 Ill. App. 712, 97 N.E.2d 584).
Accordingly, I would hold that the trial court’s ruling dismissing Donni Lee’s petition complies with the dictates of the UCCJA, and on that basis, I would affirm the court’s judgment.