In re Parentage of Frost

                                             THIRD DIVISION
                                             June 4, 1997




No. 1-96-0769

IN RE: THE PARENTAGE OF            )
MICHAEL J. FROST,                  )
                                   )
MANUEL ZELAYA,                     )    APPEAL FROM THE CIRCUIT
                                   )    COURT OF COOK COUNTY.
          Petitioner-Appellant,    )
                                   )
     v.                            )    HONORABLE DAVID DELGADO,
                                   )    JUDGE PRESIDING.
DEBORAH L. FROST,                  )
                                   )
          Respondent-Appellee.     )


     JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

     Petitioner, Manuel Zelaya, brought the instant action to
establish paternity, custody, visitation, and child support for
the minor, Michael J. Frost.  The respondent and mother of the
child, Deborah L. Frost, filed a special and limited appearance
and moved to dismiss the petition for lack of subject matter
jurisdiction or, in the alternative, to defer to the state of
California, where she and the minor resided, on the basis of
forum non conveniens.  The trial court granted respondent's
motion and dismissed the petition on the basis of lack of subject
matter jurisdiction.  The petitioner appeals.
     On appeal, the petitioner raises several issues regarding
the court's personal jurisdiction over the respondent.  Those
issues are not controlling since petitioner's action was not
dismissed on the basis of lack of personal jurisdiction but on
the basis of lack of subject matter jurisdiction under the
Uniform Child Custody Jurisdiction Act (the UCCJA) (750 ILCS 35/1
et seq. (West 1994)).  See In re Marriage of Bueche, 193 Ill.
App. 3d 594, 550 N.E.2d 48 (1990) (distinguishing personal
jurisdiction from jurisdiction under UCCJA).  Therefore,
petitioner's contentions that the respondent waived her special
or limited appearance are of no consequence since no special or
limited appearance is required to preserve objections to subject
matter jurisdiction.  See, e.g., Currie v. Lao, 148 Ill. 2d 151,
592 N.E.2d 977 (1992); Malmberg v. Smith, 241 Ill. App. 3d 428,
607 N.E.2d 1370 (1993) (the issue of subject matter jurisdiction
cannot be waived and can be raised at any time).  Accordingly,
the only issue we will address in this appeal is whether the
trial court erroneously dismissed the petition for lack of
subject matter jurisdiction pursuant to the jurisdictional
provisions of the UCCJA.
     In his verified petition to establish paternity, custody,
visitation and child support, filed on January 9, 1995, the
petitioner alleged that he and respondent, Deborah Frost, resided
together in Chicago beginning in 1986 and that a child, Michael
J. Frost, born on September 28, 1988, resulted from that
relationship.  He further alleged that in May 1994 the respondent
travelled to California with Michael to spend the summer with her
mother and brother.  The petitioner alleged that he visited
Michael and the respondent in California in June, September and
December of that year.  He also alleged that, in September 1994,
the respondent became undecided as to whether she would return to
Chicago and that the respondent enrolled Michael in a California
school.  He alleged that, on December 27, 1994, he first became
aware that the respondent intended not to return to Chicago.  The
petitioner further alleged that since May 1994 he had been the
sole source of support of Michael and the respondent; that the
respondent maintained a personal checking account in Chicago
through which she obtained funds from the petitioner; and that
Michael was covered by petitioner's medical insurance policy.  
     In her motion to dismiss for lack of subject matter
jurisdiction, the respondent argued that California and not
Illinois was Michael's home state.  In support of that
contention, she alleged that in May 1994 she and Michael took all
of their personal possessions and moved to California; that in
May 1994 the petitioner had actual knowledge of her intent not to
return; and that in July 1994 she enrolled Michael in a
California school.  The respondent also alleged that the
petitioner had visited Michael and her in California on four
occasions and that on those occasions the petitioner knew of the
permanency of their California residency.  The respondent alleged
that on January 13, 1995, prior to her being served in
petitioner's action, she filed a parentage action in the state of
California.
     In his verified response to the respondent's motion to
dismiss, the petitioner alleged that he took no legal action to
prevent the "relocation" of Michael and the respondent from
Chicago to California because the respondent had indicated that
she would return to Chicago in September 1994.  As proof of
respondent's intent to return, the petitioner attached copies of
electric and gas bills in respondent's name for the months of
December 1994 and January 1995 for utility usage at the Chicago
apartment where the petitioner and respondent had resided;
respondent's voter's registration card, dated September 1994,
showing the Chicago apartment as her residence; petitioner's
affidavit; and the affidavit of the landlord of the Chicago
apartment.  The landlord averred that the respondent never
discussed with him the termination of her lease; that she told
him in May 1994 that she was going to live with her brother in
California on a temporary basis; and that she told him that she
was going to return to Illinois.  In his affidavit, the
petitioner reiterated the allegations made in his petition and
response to respondent's motion to dismiss.
     In her reply to petitioner's response, respondent denied
that she told the petitioner that she was going to California on
a temporary basis.  She denied that her failure to make address
changes with her creditors and bank evidenced an intent to
return.  She argued that her intent not to return was evidenced
by her transfer of all of her possessions to California and by
her leaving a "longtime good paying job."  She further stated
that the landlord of the Chicago apartment was petitioner's "good
friend"; that there was no written lease to necessitate her
obtaining a release; and that the petitioner remained in the
apartment thus obviating the need to terminate the lease.  She
denied telling the landlord that her move was temporary.
     Section 4(a) of the UCCJA lists four possible jurisdictional
bases for determining the forum in which to litigate child
custody issues.  It provides in pertinent part as follows:
     "The circuit courts have jurisdiction to make a child
     custody determination by initial or modification
     judgment if:
          1.  this State
          (i) is the home state of the child at the time of
     commencement of the proceeding, or
          (ii) had been the child's home state within 6
     months before commencement of the proceeding and the
     child is absent from this State because of his removal
     or retention by a person claiming his custody or for
     other reasons, and a parent or person acting as parent
     continues to live in this State; or
          2.  it is in the best interest of the child that a
     court of this State assume jurisdiction because
          (i) the child and his parents, or the child and at
     least one contestant, have a significant connection
     with this State and
          (ii) there is available in this State substantial
     evidence concerning the child's present or future care,
     protection, training, and personal relationships ***." 
     750 ILCS 35/4(a) (West 1994).
     Two additional jurisdictional bases, not here relevant, include
situations where an emergency arises and the child is present in
Illinois (750 ILCS 35/4(a)(3) (West 1994)) and where no other
state has jurisdiction or another state has declined to exercise
jurisdiction on the basis that Illinois is the more appropriate
forum (750 ILCS 35/4(a)(4) (West 1994)).  For purposes of the
home state jurisdictional basis set forth in section 4(a)(1),
section 3.04 of the UCCJA defines "home state" as:
     "the state in which the child immediately preceding the
     time involved lived with his parents, a parent, or a
     person acting as a parent, for at least 6 consecutive
     months, ***, however, periods of temporary absence of
     any of the named persons are counted as part of the 6-
     month or other period."  750 ILCS 35/3.04 (West 1994).
          Based upon the pleadings and the arguments of the parties'
counsel, the trial court found that Illinois was not the home
state of the child and granted respondent's motion to dismiss for
lack of subject matter jurisdiction.
     Under the home state provisions of section 4(a)(1) of the
UCCJA, an Illinois court has jurisdiction over a child custody
proceeding if at the time of commencement of the proceeding the
child has resided in Illinois with a parent or person acting as a
parent for six consecutive months.  If at the time of
commencement of the proceeding the child is not present in
Illinois, home state status exists in Illinois if the child had
resided with a parent or a person acting as a parent in Illinois
for at least six consecutive months within six months before the
proceeding was initiated.  750 ILCS 35/4(a)(1) (West 1994).  In
re Marriage of Schoeffel, 268 Ill. App. 3d 839, 644 N.E.2d 827
(1994).  Periods of temporary absence are counted as part of the
six-month residency period.  750 ILCS 35/3.04 (West 1994).
     A conflict exists within the districts of this court as to
what constitutes a temporary absence.  The Third District of the
Illinois Appellate Court held that a temporary absence can occur,
regardless of the length of time involved, where the absence is
intended to last a limited time as opposed to a perpetual or
indefinite period of time.  Richardson v. Richardson, 255 Ill.
App. 3d 1099, 625 N.E.2d 1122 (1993).  In that case the child's
father, who was the primary physical custodian and a resident of
California, agreed to let the child live in Illinois with her
mother during the child's fifth grade school year.  The child
resided in Illinois from July 1991 to June 1992 and then returned
to live with her father.  In August 1992, the mother filed a
petition in Illinois to modify custody.  The trial court
dismissed the petition finding that Illinois was not the home
state.  Affirming the dismissal, the appellate court rejected the
mother's "strict 'physical presence' analysis" noting that, under
that analysis, agreements for extended out-of-state visitations
would be discouraged because any extended visit beyond six months
"would automatically vest another state with jurisdiction over
the custody issue."  Richardson, 255 Ill. App. 3d at 1102, 625 N.E.2d  at 1124-25.  As a result, the court found that the child's
eleven-month presence in Illinois was a temporary absence from
California since "at the time [the child] came to Illinois, and
throughout her entire stay, it was the clear understanding of all
parties that [the child] would not remain in [Illinois]." 
Richardson, 255 Ill. App. 3d at 1103, 625 N.E.2d  at 1125.
     In a special concurrence to the Richardson opinion, Justice
Barry rejected the court's reasoning with respect to temporary
absence stating that,
          "'Temporary absence' is not statutorily defined. 
     But, the statute requires that the six-month period be
     six consecutive months.  This leads me to believe that
     the legislature meant that only 'absences' less than
     six months within the relevant six-month period may be
     'temporary.'"  (Emphasis in original.)  See Richardson,
     255 Ill. App. 3d at 1107, 625 N.E.2d  at 1127 (Barry,
     J., specially concurring).
     That concurrence was adopted by the Fourth District of the
Illinois Appellate Court in In re Marriage of Schoeffel, 268 Ill.
App. 3d 839, 644 N.E.2d 827 (1994).  The Schoeffel court also
rejected the notion that intent is relevant to the query of
whether an absence is temporary.  In that regard the court
stated:
     "The holding in Richardson that the 11 months in
     Illinois were only a 'temporary absence' from
     California unnecessarily complicates what was intended
     to be a simple 'home State' test:  where has the 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,' lapses caused by brief
     interstate visits by the child.  It is a mistake to
     incorporate all the nuances of domicile into the Act's
     definition of 'home State.'  It is also a mistake to
     allow parties to make agreements which control the
     operation of the Act."  268 Ill. App. 3d at 843, 644 N.E.2d  at 830.
          In Schoeffel, the mother and children moved from Illinois to
New York in February 1992.  Thereafter, they spent one week in
Florida in March 1992, one week in Illinois in April 1992, and
two weeks in Illinois in August 1992.  After the mother's
attempted reconciliation with the father failed in August of that
year, the mother returned to New York and filed a custody action
there in September 1992.  The father filed a custody action in
Illinois in November 1992.  The Illinois court found that New
York, not Illinois, was the home state of the children because
they had resided in New York for seven months and 19 days before
the custody action was commenced.  Refusing to consider the
intent of the parties, the court rejected the father's argument
that the time the mother and children spent in New York was a
temporary absence from Illinois and that the children's permanent
residence in New York did not begin until August 1992 after the
attempted reconciliation in Illinois failed.
     As can be gleaned from the above-cited quotations from
Schoeffel and from the special concurrence in Richardson upon
which Schoeffel relies, the "strict 'physical presence' analysis"
espoused therein is propelled more as a matter of policy
preference than as a matter of literal or contextual statutory
compulsion.  As noted above, the special concurrence in
Richardson conceded that "'[t]emporary absence' is not
statutorily defined."  Richardson, 255 Ill. App. 3d at 1107, 625 N.E.2d  at 1127.  As pointed out by the Richardson majority, the
term "temporary absence" does not connote a particular length of
time.  Under appropriate circumstances, the term can be applied
to a period of many months.  As further pointed out by the
Richardson majority, 
          "The concurring opinion incorrectly asserts that
     temporary absences must be less than six months since
     the UCCJA requires that a child live in a State for six
     consecutive months to establish it as a new home State. 
     The concurring opinion confuses two provisions which
     pertain to distinct concerns.  Indeed, as demonstrated
     in this case, these provisions are directed toward
     different States.  The 'temporary absence' provision
     applies to a State already possessing jurisdiction
     (here, California), while the 'home state' provision
     applies to States in which a party is attempting to
     establish jurisdiction (here, Illinois).  As the
     concurring opinion correctly notes, more than one State
     may possess jurisdiction at the same time, and
     therefore, the establishment of jurisdiction in
     Illinois is unrelated to the divesting of jurisdiction
     in California.  Thus, the concurring opinion erred in
     concluding that the six-month requirement in the 'home
     state' provision served as a limitation on the
     'temporary absence' provision."  Richardson, 255 Ill.
     App. 3d at 1103-04, 625 N.E.2d  at 1125.
          While there is some attraction to the mathematical certainty
propounded under Schoeffel and the special concurrence in
Richardson which would strictly limit the duration of a
"temporary absence," such an analysis could bring about
inequitable results especially in situations such as those
alleged in the instant case.  It is our belief, as expressed by
the Richardson majority, that parents who live in separate
jurisdictional forums should be encouraged to negotiate extended
out-of-state visitation agreements for their children.  The
freedom to reach such agreements should not be hampered by fear
that jurisdiction would vest in another state if the out-of-state
absence extends beyond six months.  Any such fear would have a
chilling effect on the formation of any such agreements; and
family bonds would suffer.  Moreover, if the Schoeffel analysis
were applied, the parent, who is unaware of the other parent's
breach of the promise to return the child, would lose the right
to bring that petition in his state after six months even though
he was lulled into believing that the child would be returned at
the conclusion of the agreed upon out-of-state visit.  The
child's out-of-state absence for any period over six months would
automatically shift the child's home state to the state of
visitation and the parent in the original state would have lost
any right to initiate action in that state.  See Schoeffel, 268
Ill. App. 3d at 842, 644 N.E.2d  at 829 (stating "intent of the
parties is not controlling for purposes of the Act"); Richardson,
255 Ill. App. 3d 1099, 625 N.E.2d 1122 (Barry J., specially
concurring).
     Thus, we adopt the Richardson analysis because it encourages
settlement of visitation issues and because it offers protection
when the promise to return the child is breached either because
it was falsely made at the outset or because the parent decides
at a later time not to return the child.  Under the Richardson
analysis, the court could consider the parents' agreement and
their intent regarding the temporary or permanent status of the
child's out-of-state absence.  While the child may have resided
in the new state for a period of six months or longer, the six-
month period within which the parent in the original state could
file a custody action within that state would not begin to run
until that parent had reason to recognize the permanency of the
out-of-state absence.  In addition to being more pliable and more
equitable, such a result would discourage the premature filing of
custody actions by the local parent in order to preserve
jurisdiction which would be lost under the strict six-month rule
espoused in Schoeffel.
     In view of our adoption of Richardson, we find that an
evidentiary hearing must be held in order to determine whether
Michael's absence from Illinois qualified as a temporary absence,
based upon an agreement between his parents that Michael would
return to Illinois, such that Illinois was Michael's home state
at the time the petitioner filed his action.  In the proceedings
below, the petitioner alleged the existence of a mutual agreement
between the respondent and himself to allow the respondent to
take Michael to California for the summer of 1994.  He alleged
that the agreement included a promise by the respondent that she
would return with Michael to Illinois in September 1994.  The
petitioner also alleged that he did not become aware until
December 27, 1994 of the respondent's decision to take up
permanent residence with Michael in California.  The respondent,
on the other hand, denied the existence of an agreement between
the petitioner and herself and contended that the petitioner knew
in May 1994 that she and Michael were not returning to Illinois. 
Given these conflicting contentions, an evidentiary hearing must
be held to determine whether the parties had agreed that Michael
would return to Illinois at the conclusion of his visit to
California and whether the petitioner knew more than six months
before he filed his petition that Michael's residence in
California was permanent.
     We also note that on remand, even if the court finds that
Illinois was not the home state because the petitioner did not
file his action within six months of acquiring knowledge that
Michael would not be returning to Illinois, the court should also
examine whether jurisdiction may exist under section 4(a)(2) of
the UCCJA, that is, whether Michael has significant contact with
Illinois.  Under the significant connection test set forth in
section 4(a)(2), subject matter jurisdiction exists where the
child and at least one parent or contestant has at least one
significant connection with Illinois and where substantial
evidence exists in this state concerning the child's present or
future care, protection, training, and personal relationships. 
750 ILCS 35/4(a)(2) (West 1994).  Maximum rather than minimum
contacts with Illinois are required in order for jurisdiction to
exist under section 4(a)(2).  See Levy v. Levy, 105 Ill. App. 3d
355, 434 N.E.2d 400 (1982).
     In the instant case, Manuel alleged in his petition that
jurisdiction existed under the home state provision of section
4(a)(1) as well as under the significant contact provision of
section 4(a)(2).  He alleged certain contacts between Michael and
the state of Illinois in that Michael was born here and had lived
in this state for the first five and one-half years of his life. 
The trial court made no findings with respect to this contention.
     Moreover, should the court find that jurisdiction exists
under either section 4(a)(1) or 4(a)(2), it must then determine
whether jurisdiction should be declined, as the respondent
contends, on the grounds that Illinois is an inconvenient forum
pursuant to section 8 of the UCCJA (750 ILCS 35/8 (West 1994)). 
See Levy, 105 Ill. App. 3d 355, 364, 434 N.E.2d 400, 406 quoting
9 Unif. Laws Ann. 139 (1979) (case remanded for finding as to
whether court should decline to exercise jurisdiction; section 8
"'serves as a second check on jurisdiction' once the tests of
section 4 have been met").
     For the foregoing reasons, the judgment of the Circuit Court
is reversed and remanded for further proceedings consistent with
this order.
     Reversed and remanded.
     CAHILL AND LEAVITT, JJ., concur.