dissenting:
In this case, no permission had been granted by the Cook County court for the removal of the minor child to Florida. According to respondent, his former wife indicated that he would have to incur additional expenses and legal fees knowing that she had removed herself and the child to Florida.
At the hearing on petitioner’s preliminary injunction, Reinhold testified that Mary had told him to "plan on spending a lot of time and money in Florida because she was going to file a suit there.” Reinhold further testified that he did not have the funds to defend a lawsuit in Florida and that his relationship with his son would be affected because he would not be able to visit him in Florida. Counsel for Mary argued that both the temporary restraining order and a preliminary injunction would be improper since she had not yet filed any action in Florida.
Respondent posits that this matter is governed by the Federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (1988), which provides guidelines for avoiding "jurisdictional competition and conflict between State courts.” (Pub. L. No. 96 — 611, 94 Stat. 3569, § 7(c)(5).) The PKPA provides as follows:
"(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.” 28 U.S.C. §§ 1738A(f), (g) (1988).
Reinhold argues that, under the PKPA, only the State of Illinois can have jurisdiction over a custody proceeding of his son, since he filed a petition for modification of custody in Illinois, which is still pending in the trial court. I agree. Although the PKPA itself confers no power upon this court to enjoin other proceedings, this court has an inherent equitable power to enjoin parties over whom it has proper jurisdiction from participating in parallel proceedings in other courts. Clearly, the PKPA was intended to prevent the very actions taken by petitioner in moving custody of the minor child to another State, in direct violation of the Illinois court. Petitioner concedes in her brief that the custody of the minor is governed by the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1989, ch. 40, par. 2101 et seq.) (UCCJA), which provides a specific means of resolving conflicts between competing custody suits in multiple forums with arguable jurisdiction. (Ill. Rev. Stat. 1989, ch. 40, par. 2104(a).) Possible qualifying jurisdictions include: (1) the child’s home State; (2) the State with the most significant connection with the child in which substantial evidence is available concerning the child; or (3) certain emergency choices. Section 4(b) provides that Illinois retains previously acquired jurisdiction and also contains a transfer procedure to be used if the child is removed from the State.
It is undisputed by the parties that Mary failed to utilize proper transfer procedures in obtaining the permission of the Illinois courts to transfer the custody of her son to Florida. It is the position of this court that since there was a joint custody arrangement made by the parties, and since that joint custody encompassed a dissolution of marriage settlement and agreement for specific visitation, namely, one afternoon or evening a week and alternate weekends with the father, that the rights to visitation now have been effectively obliterated by the move to Florida. It is also to be noted that under the Illinois Child Custody Jurisdiction Act, Reinhold has a right to a court hearing in Illinois, regarding the removal of the child to Florida. It could be a generalized, nonspecific type of permission which does not identify the locale where the child would reside. However, in this case, the order indicated that Mary was given permission as one of the joint custodial parents to remove the child to Texas subject to the reasonable visitation provisions that were given to the father.
Providing for a child’s general welfare has been found to be a protectional interest for the purpose of determining if a clearly ascertainable right exists. (In re Marriage of Stamberg (1991), 218 Ill. App. 3d 333, 578 N.E.2d 261.) Tampering or interfering with the income that would otherwise possibly be available for the support of the child, by virtue of removal of the child, creates an additional burden or detriment upon the noncustodial or, in this case, the joint custodial parent who is supporting the child. This works to the detriment of the best interests of the child.
Illinois courts have held that one parent residing in Illinois constitutes a sufficient, significant contact with the State to retain jurisdiction. (In re Marriage of Bass (1988), 176 Ill. App. 3d 249, 530 N.E.2d 717.) In fact, where a husband retains joint custody and the children are to spend substantial visitation with their father, Illinois may retain jurisdiction over the custody matters because there is substantial evidence concerning the children’s care, protection and relationships in Illinois. (In re Marriage of Hilliard (1989), 178 Ill. App. 3d 620, 533 N.E.2d 543; see also In re Marriage of Kehres (1987), 164 Ill. App. 3d 148, 517 N.E.2d 617.) In In re Marriage of Godwin (1982), 104 Ill. App. 3d 790, 433 N.E.2d 310, the mother objected to the jurisdiction of the Illinois courts over a custody modification proceeding. The record indicated that the mother removed herself and the child from Illinois to Florida without the court’s permission. The court found that "[o]ne of the stated purposes of the Act is to deter such unilateral action by a parent.” Godwin, 104 Ill. App. 3d at 792, 433 N.E.2d at 312.
We conclude that any custody matter in this case should be heard in Illinois for the following reasons: (1) there was a joint custody situation; (2) there was a specific order given, granting petitioner permission to remove the child to Texas; and (3) petitioner should not be allowed to take advantage of a specific court order by circumventing it with the move to Florida. We should not reward people who are violating court orders, which would be the case in this instance, if we dissolve the preliminary injunction entered by the trial court.
Finally, there are enough contacts in Illinois, since this marriage emanated from Illinois and it ended in Illinois. Moreover, the father resides in Illinois and he is the joint custodial parent in this matter along with his ex-wife. He has been visiting his child and there are family and friends and various matters that pertain to the best interest of the child in Illinois. There are people who have known these individuals their entire lives in Illinois who can testify as to the best interests of the child and as to which parent should eventually have physical custody of the child. There is a suit currently pending in Illinois for the modification of custody. It should be heard in Illinois rather than the opportunity being afforded to a sister State to hear the litigation, because in this instance, the suit was first filed in Illinois. There were no suits pending in any other jurisdiction. Moreover, petitioner, by removing herself and the minor child from Texas to Florida, without obtaining permission from an Illinois court, attempted to circumvent the child custody laws and the jurisdiction of this State. The joint custody situation created by the State legislature was designed to protect both parents and to make the dissolution of marriage a little more palatable to the people involved.
For all of the aforesaid reasons, I must respectfully dissent from the majority view.