Jurisdiction of Illinois Courts Over Unborn Children
Illinois law allows parents to seek a determination on parental responsibility before the child is born, whether or not the individuals are married. If the issue of parental responsibility arises out of a divorce case, the court would first apply the legal presumption that the child is a product of the marriage. Where the issue is presented in the case of unmarried parents, a court must first determine parentage.
Either situation introduces interesting questions about jurisdiction over an unborn child under state law, as courts must have the authority to hear the case before making any determination on parental responsibility in Illinois.
General Jurisdiction Rules
Under Illinois law, a parent cannot take a child out of the state once the other parent has been served with parentage or divorce papers. Once all the parties are before the court in this way, the court has jurisdiction. However, this rule only applies to living people; it is necessary to turn to Illinois law on parental responsibility matters to determine jurisdiction in cases where the child is not yet born.
Illinois Law on Parental Responsibilities
The Illinois statute on divorce provides that jurisdiction is proper in a parental responsibilities matter when it would be allowable under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which the state has enacted into law. If there is a dispute about jurisdiction of an unborn child between Illinois and another state, the UCCJEA says that Illinois courts only have jurisdiction where:
- Illinois is the home state at the commencement of proceedings; or,
- Illinois was the home state within six months before initiation of proceedings and the child is absent, but a parent continues to live in the Illinois.
In addition, the UCCJEA states that Illinois is the appropriate forum where courts in another state do not have jurisdiction according to the above rules, or have declined to exercise jurisdiction on the grounds that Illinois is proper for jurisdiction purposes and:
- The child and at least one party has a connection to Illinois beyond mere physical presence; and,
- There is considerable evidence establishing that the child’s care, protection, personal relationships, and education are present in Illinois.
An Attorney Can Help with Complex Parentage and Divorce Issues
Parental responsibilities cases can involve complicated questions about jurisdiction, so it is important to consult with a skilled attorney with experience in such matters. The best interests of the child will always be the priority, but there are many different factors involved with making a determination of parental responsibilities and parenting time. A dedicated DuPage County family lawyer will protect your interests as a parent and offer advice on your options, both in and out of court. If you have questions about parentage and minor children in a divorce, please contact the Davi Law Group, LLC. We’re happy to discuss your situation in more detail.