Divorce Lawyers New York - Recent Family Law Decisons (6)
Recent Family Law Decisons (6)
Legislative Intent Regarding Best Interest of the Child
This Act is written to protect the child’s best interest; any hardships faced by the parents mist give way to what is in the best interest of the child. Doehner v. Jessup.
Construction of Jurisdiction
As long as jurisdiction is established under this section, the trial court may enter an order of protection even though it might have been required to decline to exercise its jurisdiction under section 7 of the Child Custody Act (750 ILCS 35/7) if it had instead been faced only with a petition to modify an out-of-state custody judgment. Gasaway v. Gasaway.
When read in the context of the remaining portions of this Act, it is clear that subsection (b) is intended to determine jurisdiction as between Illinois and another state, not among the circuit courts of Illinois; further, it would be inconsistent to construe the statue governing jurisdiction as vesting exclusive jurisdiction in the circuit court first acquiring jurisdiction where the venue statue plainly provides that actions for modification may be brought in other circuits. Bashwiner v. Bashwiner.
Home State Shown
Illinois was the home state of the children at the time the mother’s petition for modification of custody was filed, since they had lived with the mother for the prior two years in Illinois, even though this was under a temporary order of the court of another state. Arulpragasam v. Eisele.
Test for a Home State
The test for a “home state” is where has a child lived with a person acting as a parent for the last six months; the “temporary absence” provision is designed to prevent lapses in the six consecutive months required of a “home state,” caused by brief interstate visits by the child, and does not incorporate all the nuances of domicile into the definition of “home state.” In re Schoeffel.
Emergency Provision of Authority of Court
A trial court may nor issue a permanent custody order when its jurisdiction is based solely upon the emergency provision in subdivision (a)(3)(ii). In re Alenander.
