Jurisdiction and Unborn Children

by Wes Cowell; updated 28 January 2016

Illinois law allows married and unmarried parents to file for parental responsibility before the child is born. Divorce cases involving pregnant wives are not rare. The divorce or parentage issue may be decided by the Illinois court, but the parental responsibility jurisdiction goes to the child's birth state unless declined. A husband (but not a same sex, married partner) may obtain an injunction preventing his wife from aborting their unborn child. Need Advice? Call, leave your info, or schedule a consultation.

I sometimes run into the situation where a pregnant wife (or girlfriend) in a failing relationship flees Illinois. The divorce (or parentage) case is filed and then she gives birth in the foreign state. Illinois law prohibits a parent from removing a living child from Illinois once Respondent has been served with court papers or has filed his or her appearance. That law, however, only applies to children already born. Beyond that, Illinois' custody law tells us to determine custody jurisdiction under the UCCJEA (750 ILCS 36/101, et seq.).

Remember that subject matter jurisdiction is conferred upon the court by the Illinois Constitution -- not the UCCJEA. The circuit court is to assume subject matter jurisdiction over any "justiciable issue." For custody cases, however, once a case is presented to the court, the court must then look to the UCCJEA to determine whether it should keep the case or decline to exercise jurisdiction. McCormick v. Robertson, 2015 IL 118230 (Ill., 2015).

Flekles v. Diamond: James Fleckles and Danielle Diamond met in 2001 at NIU's Law School. Yes, this is a case coming out of DuPage County between two lawyers. In 2009, Danielle took a job as the southwest regional coordinator with the Socially Responsible Agriculture Project where her area included Arizona, New Mexico, Utah, and Colorado. When she was hired, she was required to move to her area. She moved to Tucson and rented a condo with James who was already living there, working with American Express.

They got engaged in 2011 but never married. They lived together in Arizona, worked in Arizona, paid taxes in Arizona, and James had a driver's license from, and was registered to vote in, Arizona. In September, 2011, they moved to Elmhurst, Illinois so James could look after his mother. Danielle went to live in Utah for a bit, then they moved back to Arizona, then back to Illinois. They couldn't agree on where to live: James wanted to stay in Illinois, but Danielle's career was in the southwest. In February 2014, Danielle left Illinois and went to Colorado for work. She stayed with her sister a few weeks and then went to Tucson where she discovered she was pregnant. Danielle wanted to stay in Tucson and had found a house where she and James could start their family, but James wanted her to return to Illinois.

Danielle went to Colorado and began working on her Plan B -- to live in Colorado and raise her baby, there, where she would have support from her two sisters, and where her mother planned to soon retire. Eventually Danielle travelled to Illinois where she gave James an ultimatum: she would return to Illinois for one year if and only if he obtained full-time employment with benefits. Danielle's parents hosted a baby shower for Danielle (James did not attend) and the next day Danielle went back to Colorado, leaving most of her possessions back in Elmhurst, Illinois. In August, she obtained a Colorado driver's license and registered her car there. Here's the chronology of what happened next:

30 July 2014: James filed in Illinois his parentage case seeking to establish himself as the child's father, an award of joint custody, and a parenting schedule.

2 September 2014: Danielle files in Colorado her parentage action.

11 September 2014: James is served process in Danielle's Colorado case.

15 September 2014: Danielle's gives birth to a son (congratulations, Danielle!) in Denver, Colorado.

24 September 2014: Danielle asked the Illinois court to dismiss James's parentage case, arguing that Illinois lacked subject matter jurisdiction because Danielle lived in Colorado and that the court could not exercise jurisdiction over an unborn child. She alleged in her motion that she intended to live in Colorado and argued that under the UCCJEA, "a child's 'home state' is the state in which the child has lived with a parent since birth; accordingly, because her child was born in Colorado and still resided there with her, Illinois did not have jurisdiction over him."

James responded to Danielle's Motion to Dismiss. He claimed:

that Danielle was an Illinois resident,
the Illinois' Parentage Act allows a case to be commenced prior to a child's birth,
both his Illinois case and Danielle's Colorado case were filed prior to the child's birth and, therefore, there was no "home state," so the court must turn to the UCCJEA's "significant connection" standard (750 ILCS 36/201(a)(2)) and neither party had a significant connection to Colorado.

16 October 2014: James asked the Illinois Court to compel Danielle to "return" their son to Illinois.

17 October 2014: James filed with the Colorado court a Motion to Dismiss Danielle's parentage case.

1 December 2014: The Illinois Court denied Danielle's Motion to Dismiss James's case and made the following findings:

Danielle was an Illinois resident -- she had an Illinois driver's license up until August 2014, she had family in Illinois, her law license was from Illinois, and she owned property in Illinois.
Her only contacts with Colorado were that she had been there since July, 2014 and she delivered her child there
The fact that her son was born in Colorado "did not mean that that every other component and requirement under the UCCJEA is required to fall away."
Illinois should retain jurisdiction of the custody determination under the UCCJEA's "significant connection" analysis which reads:

(2) a court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 207 or 208, and:

(A) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

(B) substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;

2 December 2014: The Colorado court dismissed Danielle's petition and declined to exercise jurisdiction based on the Illinois court's exercise of jurisdiction. Before doing so, the Colorado magistrate phoned the Illinois judge and they discussed the matter as per the UCCJEA protocol.

Danielle appealed the Illinois case to the Second District Appellate Court.

21 February 2015: Danielle's Colorado appeal was denied.

The Illinois Appellate Court said that Illinois' Constitution conferred jurisdiction on the Illinois court in James's case. The UCCJEA, in turn, assigns jurisdiction between competing states by giving priority to the child's "home state." For infants, that term is defined as the state in which the child lived from birth with either parent but the UCCJEA does not authorize jurisdiction over a child custody proceeding concerning an unborn child.

Illinois' Parentage Act, however, does contemplate actions being filed prior to a child's birth and, in such cases, all proceedings are stayed until the child's birth. The Appellate Court said "Here, the first issue the trial court will likely address is paternity and, depending on its resolution, it might not need to reach the custody and visitation issues." It noted that in making custody determinations, the Illinois Parentage Act (750 ILCS 45/14(a)(1)) looks to the Illinois Marriage and Dissolution of Marriage Act's "factors and any other applicable law." The IMDMA, in turn, says custody jurisdiction shall be determined by the UCCJEA.

The court concluded that

"a home state determination (under the UCCJEA) must be deferred until the child's birth and that, upon the child's birth, the birth state becomes the home state. The trial court erred in assessing the case under section 201(a)(2)'s significant connection analysis . . . . UCCJEA "jurisdiction" does not exist prior to a child's birth and . . . the issues in cases such as this [should] be bifurcated and decided by different states' courts.

Fleckles v. Diamond, 2015 IL App (2d) 141229 (Ill. App. 2015).

Warning About IRMO Skelton: If you're doing research in this area you'll come across In re: Marriage of Skelton, No. 5-04-0262, 5th Dist., Sept. 1, 2004. A pregnant woman left Illinois prior to the birth of the child and the Illinois court exercised jurisdiction after the child was born outside of Illinois. That case was decided under the old UCCJA. The same result could not be reached under the new UCCJEA.

Married, In Opposition to Abortion Injunctions: Illinois law allows husbands (but not same-sex partners nor men not married to the expecting mother) to seek an injunction to stop an abortion in certain circumstances. The law, (735 ILCS 5/11-107.1) states:

Sec. 11-107.1. Injunctive relief for the father of an unborn child in an abortion related decision by the mother. In any case when a married woman wishes to have an abortion performed upon her, and her spouse, who is the father of the unborn child, is opposed to the performance of that abortion, a court may hear testimony from both parties and balance the rights and interests of those parties.
When the interests of the husband in preventing the abortion outweigh those of the wife in having an abortion performed after the unborn child is viable, the court may issue an injunction against the performance of the abortion but only where the court makes a finding that the mother's life or physical health are not in danger.

735 ILCS 5/11-107.1

To my knowledge the law has never been used and, if it ever were it would almost certainly be held unconstitutional. This isn't really my bailiwick, so let me leave you with this link to a good article with resources on fathers' rights and abortion.