In this article, we explain how to determine which court has jurisdiction in child custody cases and explain the law with respect to Illinois child custody jurisdiction. We answer the questions: what is jurisdiction in a child custody case?, how is child custody jurisdiction determined?, which state is the home state of the child for child custody?, and what is “forum non conveniens” in child custody cases? We also explain temporary emergency jurisdiction in child custody cases and how to determine in which county to file a child custody case in Illinois.
First, let’s discuss terminology. In 2016, the terminology in custody cases changed from “custody” and “visitation” to “allocation of parenting time and responsibility.” For simplicity’s sake we will continue to use the term “custody” in our conversation. To learn more about the recent changes to Illinois child custody laws, you can read: : Recent Changes to Illinois Family Law. For an overview of the current state of Illinois custody laws, check out: Illinois Parenting Laws 2019
“Jurisdiction” is the court’s right to decide a particular case. This is the threshold issue that a court must decide before it takes any steps toward deciding the merits of the case. Jurisdiction is the reason that if you, your child and the other parent live in Illinois and have always lived in Illinois, you cannot file you child custody case in Wisconsin just because you prefer the way Wisconsin law handles custody issues.
Only one state at a time can have jurisdiction over a child custody cases, meaning that you cannot have multiple child custody cases regarding the same child active in different states. This is known as “exclusive jurisdiction.”
All of the states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). This means that all of the states are playing by the same rules in determining which state has exclusive jurisdiction over a child custody case.
Generally, determining child custody jurisdiction is fairly straightforward. If both parents and the child have lived in a particular state for at least 6 months, then that state has jurisdiction over the child custody case. However, in some cases the situation becomes more complicated.
The “home state” of a child has exclusive jurisdiction over custody cases for that child. The baseline rule is that if a child has lived with a parent in a particular state for six consecutive months (or since birth if the child is less than 6 months old), that state has jurisdiction over child custody issues. This is known as the “six month rule."
But what if over the past six months a child has lived in multiple states? In these cases, the court will make a case-by-case determination as to which state has the most direct relationship with the child.
A second consideration the court must make in determining whether it has jurisdiction is known as “forum non conveniens.” This is basically a fancy way of saying that the court is not in the most convenient location to investigate and protect the best interests of the child in the particular case. If two courts could potentially lay claim to being the home state of the child, one of the courts may decline to accept jurisdiction over the case because the other court makes more sense on a common sense level based on the child and parents’ geographic situations.
Even if a court would not otherwise have jurisdiction, the court may issue orders on an emergency basis when the child is threatened with abuse or mistreatment. This court’s order will only remain in effect until a court with proper jurisdiction takes over the case and enters an order. If no other court enters an order with the respect to the child, the emergency order may remain binding.
Now that you have determined that Illinois has jurisdiction over your child custody case, how do you know which county you should file your case in? This is known as filing in the proper “venue” (county) as opposed to jurisdiction (state). If your child custody issues are part of a divorce, you will follow the rules for divorce venues. For more on this, check out our article Illinois Divorce Jurisdiction Explained. If your child custody case is not part of a divorce, the proper venue is generally the county where the child resides.