Carlsten v. Robertson

No. 4--97--0810

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

MELISSA CARLSTEN, ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Plaintiff-Appellant, ) Peoria County, Illinois
)
v. ) No. 97--CF--209
)
JOHN ROBERTSON, ) Honorable
) Glenn Collier
Defendant-Appellee. ) Judge, Presiding
_________________________________________________________________

PRESIDING JUSTICE McCUSKEY delivered the Opinion of the Court:
_________________________________________________________________

The plaintiff, Melissa Carlsten, appeals from the trial
court's order granting the motion of the respondent, John
Robertson, to dismiss her child custody petition for lack of
jurisdiction. After a careful review of the record, we find that
Illinois does not have jurisdiction over this matter and there-
fore affirm.
FACTS
The parties were divorced in Virginia on July 10, 1990. The
Virginia judgment of dissolution awarded physical custody of the
two minor children, Spencer and Jessica, to Melissa. From 1990
until 1995, the children lived in Illinois with Melissa.
However, in September 1995, Jessica moved back to Virginia to
live with John. At that time, the parties agreed to amend the
judgment of dissolution and give John custody of Jessica. In
June 1996, Spencer also moved back to Virginia to live with John.
On August 16, 1996, the State of Virginia awarded legal custody
of Spencer to John.
The children traveled to Illinois on June 22, 1997. Accor-
ding to Melissa, the children moved back to Illinois on this
date. However, according to John, the children were only visit-
ing their mother.
On July 21, 1997, Melissa filed a petition for emergency
relief in Illinois requesting that the circuit court assume
jurisdiction over this matter and grant her temporary and perma-
nent custody of the children. In her petition, she claimed that
Illinois should assert jurisdiction because: (1) she never
received notice of the Virginia court order awarding John custody
of Spencer; (2) substantial evidence concerning the children's
present and future care, protection, training and personal
relationships was in Illinois; (3) no other state had jurisdic-
tion over the children; and (4) John recently relocated to North
Carolina, and the children had no contacts with that state.
On July 31, 1997, John filed a special and limited appear-
ance and requested that the court dismiss Melissa's emergency
petition because Illinois lacked jurisdiction. In his motion,
John alleged that Virginia was the proper forum to hear any
custody disputes. In support of his claim, he alleged: (1)
several court orders regarding the care, custody, and control of
the children had been entered in Virginia; (2) following the
original judgment of dissolution, he was awarded custody of the
children by a Virginia court; (3) Jessica resided outside of
Illinois since September 1995; and (4) Spencer resided outside of
Illinois since June 1996.
In a written order, the trial court dismissed Melissa's
petition for lack of jurisdiction.
ANALYSIS
On appeal, Melissa argues that the trial court abused its
discretion in granting John's motion to dismiss. Specifically,
she contends that Illinois should assert jurisdiction over this
matter because: (1) it is in the best interests of the children;
and (2) no other state has jurisdiction.
Section 4(a) of the Uniform Child Custody Jurisdiction Act
(Act) sets forth the circumstances under which Illinois courts
have jurisdiction to make a child custody determination. 750
ILCS 35/4 (West 1996). These circumstances are as follows:
(1) Illinois is the home state of the children; (2) it is in the
children's best interests to assert jurisdiction because the
children and at least one parent have a significant connection
with the state, and there is substantial evidence in Illinois
concerning the children's present or future care, protection,
training and personal relationships; (3) an emergency arises
while the child is present in Illinois; or (4) no other state has
jurisdiction, or another state has declined to exercise juris-
diction on the basis that Illinois is a more appropriate forum.
750 ILCS 35/4(a) (West 1996).
Here, in the instant case, Melissa argues that Illinois has
jurisdiction under the "best interests" prong of the Act.
However, a careful review of the record indicates that the trial
court could not have asserted jurisdiction on this basis.
Although the children have connections with both Illinois and
Virginia, they have more significant connections in Virginia.
All prior court proceedings in this matter occurred in Virginia.
Significantly, the parties' judgment of dissolution was recently
modified in Virginia, awarding custody of both children to John.
Illinois courts are required to give that modification order full
faith and credit. 750 ILCS 35/14 (West 1996). Therefore, the
best interests of the children indicate that Virginia is the
proper forum to contest the modification of custody order.
Next, Melissa argues that Illinois should assert juris-
diction under the fourth prong of the Act. Specifically, she
argues that since John moved to North Carolina, no other state
has jurisdiction over this matter. Again, we disagree. There is
no indication in the record that Virginia has declined to assert
jurisdiction. As noted previously, a Virginia court modified the
custody order as recently as 1996. Moreover, the fact that John
may have moved from Virginia does not affect its jurisdiction
over this matter. A court, once having obtained jurisdiction
over a child, retains that jurisdiction unless it concedes
jurisdiction to another state. See Richardson v. Richardson, 255
Ill. App. 3d 1099, 1105, 625 N.E.2d 1122, 1126 (1993).
For the reasons stated, we find that the trial court did not
abuse its discretion in granting John's motion to dismiss for
lack of jurisdiction. Accordingly, the judgment of the circuit
court of Peoria County is affirmed.
Affirmed.
SLATER and BRESLIN, JJ., concurring.