IICLE Family Law Flash Points - January 2013

1.         Co-parent of a child born by artificial insemination has a common law claim to custody and visitation of the child.  The non-birth mother in a same-sex couple filed a petition for custody and visitation of two children born via artificial insemination after the birth-mother prohibited her from seeing them. The trial court dismissed the petition reasoning that the IMDMA did not give her standing to seek custody or visitation because she was not an adoptive or natural parent.  However, the Appellate Court reversed holding that under the facts of this case the non-birth mother had a common law action for child custody and visitation.  In its ruling, the Court relied heavily on the Supreme Court case of In re the Marriage of M.J., 203 Ill.2d 526 (2003), which held that public policy should be taken into consideration specifically in artificial insemination cases and that that Illinois recognizes the right of every child to the physical, mental, emotion, and monetary support of both parents.   In IRMO M.J., Supreme Court also analyzed the Illinois Parentage Act and held that nothing in the Act prohibited common law actions to establish parental responsibility under these specific circumstances.  In re T.P.S. and K.M.S. 2012 Il App (5th) 120, 176.

2.         Seventh Circuit Court of Appeals overturns District Court’s denial of father’s petition to return children to Australia under ICARA.  A father sought return of a couple’s three children from the United States back to Australia pursuant to the International Child Abduction Remedies Act (ICARA).  The District Court denied his petition finding that the children’s habitual state of residence had become the U.S. by the time father filed his petition; that he was not exercising his custody rights; and that he had consented to the children remaining in the U.S. permanently.  The Seventh Circuit found error with each of these findings and held that (1) there was not enough evidence in the record to support the conclusion that husband and wife arrived in the U.S. with the shared intention of abandoning Australia and establishing a new habitual residence here; (2) that father kept in regular contact with children while they were in the U.S. via Skype and that he requested physical custody for the children’s entire summer vacation and winter break as well as additional visits; and (3) a settlement letter outlining an overall proposal for the entire divorce case was not an unequivocal consent that the children remain in the U.S. Walker v. Walker 2012 WL 5668330.

3.         State court judgment granting custody does not render a federal cause of action involving the Hague Convention or International Child Abduction Remedies Act (ICARA) moot.  While a case involving an action brought by a father pursuant to ICARA and to enforce the provisions of the Hague Convention was pending in federal court, an Illinois state court granted mother sole custody of the children.  However, Article 17 of the Hague Convention expressly states that the “the sole fact that a decision relating to custody has been given or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention.”  Thus, the treaty qualifies the finality of any state court custody judgment and provides that there is still a live controversy before the federal court.  In this case, the mother was not entitled to have the pending federal case dismissed because an Illinois trial court had granted her sole custody. There remained an issue over the children’s habitual state of residence, and therefore it was not yet possible to say which country’s courts had the power to resolve the issue of custody.  Walker v. Walker 2012 WL 5668330.

4.         Trial court properly used Section 505(a) of the IMDMA to modify father’s child support obligations rather than Section 513(a)(2).  In a Marital Settlement Agreement (MSA), the parties agreed that father would pay child support until the children were emancipated which was defined as “the child’s reaching age 22, so long as the child is attending college, or completing college or terminating full-time attendance at college, whichever shall occur first”. Handwritten and initialed by both parties on the face of the MSA was the following language: The parties have agreed that the support provision below is in lieu of another other obligation by the father for education support.  The trial court correctly applied the guidelines of section 505(a) when granting the mother’s motion to modify child support, rather than Section 513(a)(2) because the unambiguous language of the MSA clearly indicates that child support was to be paid instead of support paid pursuant to Section 513 for post-secondary education expenses.  IRMO Razzano, 2012 IL App(3d) 110608.