Recent Appellate Court Ruling Clarifies Residency Requirements for International Custody Disputes

It is not uncommon for one or both parents to move from the state or country where their divorce judgment was originally entered. But what happens when parents maintain homes in both the United States and a foreign country?  What country has jurisdiction to hear future custody disputes? Most people assume that the state that entered the original judgment maintains continuing, exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and that is often the case. However, in the case of In re the Marriage of Akula, 2010 WL  3359660  (Ill.App. 1 Dist.), the Illinois Appellate Court recently clarified the issue.

In Akula, the parents of the minor child were divorced in 2002 in Illinois and the mother received sole custody.  Seven years later, the parents agreed that the child would travel to India with the Mother.  Later, the parents agreed that Mother and the child would remain in India, and she enrolled the child in an Indian school.  Mother also entered into a four-year lease in India and obtained a residential permit from the Indian government extending through 2013.  Mother still maintained an Illinois residence, and Father also had both an Illinois and an Indian residence. Thereafter, the parents disagreed about several issues regarding the raising of the child. Father filed a number of petitions in the Indian court seeking sole custody of the child, and Mother responded by filing a number of similar petitions in Illinois. Mother claimed that she considered Illinois to be her and the child’s permanent residence and asked the Illinois court to retain jurisdiction over the case.

In response to Father’s petitions, the Indian court ruled that both parents and the child were now ordinarily residing in India and that the child could not be removed from school in India until he completed at least 5th grade.  The Illinois court issued a contradictory ruling, holding that Illinois was still the residence of the child and the mother and that Illinois had continuing, exclusive jurisdiction over the parties and the subject matter.  Father appealed the Illinois court ruling.

The Illinois Appellate Court concluded that India was the proper place for the custody dispute to proceed. Under the UCCJEA, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of the UCCJEA must be recognized and enforced, unless the child custody law of the foreign country violates fundamental principles of human rights.  Continuing jurisdiction is lost when the child, the child’s parents, or any person acting as a parent no longer reside in the state where the original judgment was entered.  Because the Indian court found that the parents and child were “now ordinarily residing” in India, their presence in India was not temporary or transient, which implied that they did not presently reside in Illinois. Because India’s child custody laws did not violate fundamental principles of human rights and its ruling complied with the jurisdictional standards of the UCCJEA, Illinois no longer had exclusive and continuing jurisdiction over child custody.

Therefore, when contemplating a move from the state that issued the original custody judgment, parents must be aware that merely maintaining a home in the issuing state will not necessarily allow that state to continue to maintain exclusive jurisdiction over subsequent custody litigation. The true question is where are the children and the parents currently residing.

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