***So, Father's argument fails because even though he lives with the mother and child in the same home as a family that does not mean that he had physical custody of Sophia.***
Sometimes it is difficult to understand why reviewing courts make some of the statements they do. It would seem to be a no-brainer that unmarried parents living together with their child each have physical custody of the child. Not so. If this is the weekend that you do not have your children then sit back, relax and spend some time reading this.
This is a rather complex case that involves two courts in different states holding hearings on the same date concerning the same child. The maternal grandparents had sought custody of the child in an Indiana court on the same day that the putative father sought to establish parentage in Illinois. The question became which court had jurisdiction over the child and the parties.
Under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) the Illinois Court contacted the Indiana Court in an effort to establish who would assume jurisdiction. However, the Indiana Court ignored repeated request by the Illinois Court to cooperate in determining jurisdiction. The Illinois Court then assumed jurisdiction and vacated the Indiana orders.
The maternal grandparents (Indiana) appealed to the Illinois Court of Appeals which reversed the trial court and returned jurisdiction to the Indiana Court. The Court reasoned that Indiana had jurisdiction because the maternal grandparents were declared to be de facto custodians who had cared for the child for six consecutive months prior to the recent relocation of the mother and child to father's home in Illinois. see I.C. 31-17-2-8.5
The father sought rehearing by the Illinois Supreme Court. The Court granted rehearing and found that under UCCJEA the Indiana orders were void because the father had not been properly served and was denied due process. The Court laid harsh criticism upon the Indiana Court for not cooperating with the Illinois Court.
Following is an analysis of the case and opinion of the Illinois Supreme Court. This case provides a few important lessons which include making proper service upon the parties, establishing paternity, knowing the law and having counsel. An outline of the characters involved is provided preceding the background and analysis.
CHARACTERS
Child: Sophia Grace Lindeman who was age seven months at the time of the initial proceedings. I note that generally minors are not named in court records but for some reason, in this case, the child was identified.
Mother: Alexis Ann Lindeman - 22 years of age -
Alexis went to school through the twelfth grade, but did not graduate from high school because she was unable to pass her classes. She did not get her driver’s license until she was 22 years old because she could not pass the written test. Alexis had considered seeking child support payments from Andrew, but was reluctant to do so because she felt if Andrew paid support he would be awarded visitation. Despite this she went to live with him in Illinois prior to any legal actions.
Alexis' father: John Lindeman [Sophia's maternal grandfather]
Alexis' father's wife: Yvonne Lindeman [Sophia's maternal grandfather's wife]
Alexis' mother: Kathy Engle
Father: Andrew Cochran - 21 years of age
Attorney Goetten - Representative for Alexis.
Bruce Mindrup, Ph.D., of Mediation Services of Mid-Illinois -
A report by Mindrup was submitted at a hearing in Judge Bell's court on 24 April 2006. Mindrup opined that Andrew and Alexis interacted appropriately with Sophia and were attentive to her needs.
Thomas Piper, the Illinois Guardian Ad Litem -
He was “very much opposed” to the child being removed to Indiana. He urged the court
to take steps to ensure that a “full evidentiary hearing with both parties being present” occurred in Illinois.
Joyce Lowry, the Indiana Guardian Ad Litem
Jeannie McCartney, a child protection investigator in Illinois -
She testified at paternity hearing in Judge Bell's court on 24 April 2006. Her preliminary assessment was that Alexis and Andrew were “very stable.”
James W. Day - Judge, Greene County Circuit Court, Illinois -
Conducted initial paternity hearing on 11 April 2006 and then recused.
Lois A. Bell - Judge, Greene County Circuit Court, Illinois -
Accepted paternity action
Karen M. Love - Judge, Hendricks Superior Court, Indiana -
Heard Lindeman's Emergency Custody Petition and issued subsequent Indiana orders.
TIMELINE
On 04 April 2006, the Lindemans filed a verified emergency petition for custody of Sophia in the Circuit Court of Hendricks County, Indiana.
On 11 April 2006, a hearing was held in the Indiana court by
Judge Karen M. Love.
On 11 April 2006 the Illinois Court found that Andrew Cochran is the biological father of the Sophia.
On 17 April 2006, Alexis filed a motion in the Indiana Court to dismiss the custody action filed by the Lindemans for lack of personal jurisdiction and insufficiency of process. The court was informed that Andrew had established paternity in the Illinois Court.
On 18 April 2006, the Indiana Court held a hearing “to provide Alexis Lindeman with another opportunity to be heard” on the Lindeman's custody petition.
On 21 April 2006 the Indiana Court entered an additional order acknowledging Andrew’s parentage, declaring Andrew an indispensable party to the cause of action, and ordering Andrew to personally appear at a hearing set for April 26, 2006, in Indiana.
On 24 April 2006, a hearing on Andrew’s emergency petition for joint custody was held in Illinois by Judge Bell.
On 26 April 2006 a hearing on the issue of custody was scheduled to be heard in the Indiana court. However, there is no indication in the record that any such hearing took place.
On 28 April 2006, the Lindemans filed two motions: an emergency limited petition to intervene in the Illinois proceedings and an emergency motion to dismiss Andrew’s petition to determine existence of a father and child relationship for lack of jurisdiction.
On 03 May 2006 Judge Bell called Judge Love
On 04 May 2006 Judge Bell called Judge Love
On 05 May 2006 Judge Bell called Judge Love
On 08 May 2006 Judge Bell called Judge Love
On 12 May 2006 Judge Bell called Judge Love
On 19 May 2006 Judge Bell called Judge Love
On 26 May 2006 Judge Bell called Judge Love
On 02 June 2006 Judge Bell called Judge Love -
A member of Judge Love’s staff returned this call and stated that Judge Love would contact Judge Bell on 16 June 2006.
On 13 June 2006, the Lindemans filed an emergency petition in Indiana asking the court to make a decision to retain jurisdiction. There is no indication that Andrew or his counsel received notice of the filing of this petition, although Alexis did receive notice.
On 15 June 2006, the Indiana Court entered an “Order Retaining Jurisdiction”, without a hearing, essentially reaffirming its judgment of 18 April 2006.
On 16 June 2006 the record shows that Judge Love failed to call Judge Bell as promised.
On 16 June 2006 Judge Bell sent a letter to Judge Love, via fax respectfully requesting that Judge Love decline jurisdiction.
On 16 June 2006 Judge Bell sent a letter to Judge Love via fax with attached documentation of her repeated attempts to reach Judge Love by phone and reiterated her desire to discuss the matter with Judge Love “as the UCCJEA suggests.” The letters went unanswered.
On 19 June 2006, the Lindemans filed, in the Illinois court, an emergency petition to register the Indiana court’s orders of 11 April 2006 (order awarding the Lindemans emergency temporary custody of Sophia)
On 23 June 2006 Judge Bell sent a letter to Judge Love asking her to decline jurisdiction in this matter. Judge Love did not respond.
On 25 July 2006 the Indiana Court had a hearing scheduled “to determine preliminary issues of custody, parenting time, support, etc.”
On 21 August 2006 Judge Bell sent a letter to Judge Love asking her to decline jurisdiction in this matter. Judge Love did not respond.
On 20 September 2006 a hearing was held on the Lindemans petition for expedited enforcement of the Indiana child-custody determination and for determination of whether the foreign judgment should be registered. Judge Bell stated, "I attempted to contact Judge Love for, between 4 and 6 weeks by telephone. I have had multiple correspondences to her asking her to decline jurisdiction. Not one single other letter has she ever responded to. She never returned a telephone call. I find that bordering on unethical, certainly unprofessional."
CUSTODY PETITION
On 04 April 2006, the Lindemans filed a verified emergency petition for custody of Sophia in the Circuit Court of Hendricks County, Indiana. In that petition, the Lindemans alleged that Alexis was incapable of caring for Sophia and that they were Sophia’s de facto custodians under Indiana law.
On April 11, 2006, a hearing was held in the Indiana court by Judge Karen M. Love. The Lindemans were present, along with Alexis’ mother, Kathy Engle. Neither Alexis nor Andrew appeared; however, the Lindemans represented to the court that Alexis was served with notice, as they hand-delivered notice to her in Illinois and verbally advised her of the date of the hearing. Andrew was not served.
Kathy recounted a time at her home when she suggested that Alexis give Sophia a bath. Alexis replied: “I don’t do baths.” Kathy explained that she did not believe Alexis had a bond with Sophia. It seemed as though Alexis resented having to care for Sophia and was not inclined to meet Sophia’s needs. Yvonne testified that Alexis never bonded with Sophia and did not perform basic tasks necessary for Sophia’s care. For example, Alexis would not feed Sophia her cereal because Alexis could not watch television while she fed Sophia. Instead, Alexis would call Yvonne at work and ask her when she was coming home, stating that Sophia needed her cereal.
The Indiana Court entered a typewritten order wherein it granted temporary custody of Sophia to the Lindemans; appointed a guardian ad litem for Sophia; ordered that Sophia be immediately brought to Indiana; created a schedule of supervised parenting time for Alexis; and set a hearing for April 18, 2006, “to provide Alexis Lindeman with another opportunity to be heard.” Copies of the court’s order were sent to Alexis and attorney Goetten. Andrew was not included in the distribution.
On 21 April 2006, the Indiana guardian ad litem, Joyce Lowry, sent a letter to Judge Love expressing her concern for Sophia’s well-being. In the letter, Lowry reported that Alexis did not appear for her scheduled appointment on April 20, 2006, and did not call to cancel. Lowry further reported that “according to the grandparents” Alexis has “limited knowledge of child rearing & has not been involved in [sic] a daily basis for the care of the child.”
The Court entered an order that day stating, in part, “Safety of the seven month old child is the only emergency issue. Once safety is established a determination as to which state has jurisdiction can be made after all interested parties have an opportunity to be heard.”
PATERNITY
On 11 April 2006 Andrew presented his petition to establish paternity in the circuit court of Greene County, Illinois. The matter proceeded before Judge James W. Day. Andrew’s counsel presented Judge Day with documents filed in Indiana, as well as Judge Love’s court order, entered earlier that day. After reviewing those documents and questioning Alexis and Andrew, Judge Day found that Andrew’s paternity had been established and entered an order to that effect finding that Andrew Cochran is the biological father of Sophia.
On 21 April 2006, Andrew filed a verified emergency petition for joint custody of Sophia in Illinois. In the petition, Andrew stated that he and Alexis and Sophia’s parents all reside in Illinois; that Sophia resides in Illinois; that he and Alexis were fit to have custody of Sophia; and that it was in Sophia’s best interests that they have custody. Andrew also stated that an order for custody of Sophia was “pending” in Indiana. The Illinois court entered a temporary custody order on that date, awarding Alexis and Andrew temporary joint custody of Sophia pending a hearing. The court then continued the matter until April 24, 2006, for a custody hearing.
On 16 June 2006 the Illinois Court received notice of the Indiana Court’s order and, on that same day, Judge Bell made a docket entry declining jurisdiction and vacating the prior temporary custody order “[b]ased upon the order of the Hendricks County Indiana Superior Court entered this date.” Thus, Andrew had established paternity but the previous rulings by the Illinois Court affirming his custody were vacated.
JURISDICTION
Turning to the issue of jurisdiction, the Indiana Court stated: “I have some reservation about the Court’s jurisdiction since she’s moved, although I think certainly Illinois with just a couple of weeks, couldn’t possibly have jurisdiction on a time frame here. So I think Indiana would have to be the logical place.”
Section 206(b) of the UCCJEA, entitled “Simultaneous Proceedings,” provides in relevant part: “If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this Act, the court of this State shall stay its proceeding and communicate with the court of the other state.”
Upon the 24 April 2006 hearing the Illinois court found that it had jurisdiction over the parties and ruled that Illinois was the appropriate jurisdiction for a custody determination. The court then found that it was in Sophia’s best interests for Andrew and Alexis to be granted temporary joint custody. The matter was continued for a permanent custody hearing.
Judge Bell in Illinois tried to contact Judge Love in Indiana since two actions were filed on the same day. Although Sophia had lived in Indiana for over six months, at the time of the hearing, she was a resident of Illinois as were both of her parents.
The Illinois trial court judge, Bell, stated:
“[F]ollowing the hearing that we held in June . . . I attempted to contact Judge Love for, between 4 and 6 weeks by telephone. I have had multiple correspondences to her asking her to decline jurisdiction. Not one single other letter has she ever responded to. She never returned a telephone call. I find that bordering on unethical, certainly unprofessional. It’s anticipated under the Uniform Child Custody Jurisdiction Act that Judges are supposed to talk to one another. She has absolutely refused to do that. I indicated to her in writing that if she had some way to assure me that she had jurisdiction, that I would decline jurisdiction. That’s what I did, according to what the statute tells me I am supposed to do. However, at this point she is [sic] failed to respond to me. . . . This child is in Illinois. This child’s mother is in Illinois. This child’s father is in Illinois. . . . [T]hose are the 3 parties that are the most important to this. I understand there is an order out in Indiana. That order was entered with no notice to the father. It was entered with only a notice handed by Mr. Lindeman to the mother. . . . [T]hat is not proper personal jurisdiction over either one of these parents. At the time that the order was entered, these parents were living in Greene County, Illinois, both of them. So, while Indiana may have had subject matter jurisdiction by being, by having been the residence of Sophia, I do not find that that order, whatsoever, is enforceable against either the father or the mother. That’s in short, I am going to deny the Petition to Register the Foreign Judgment. I informed Judge Love of that in writing several weeks ago. I asked her again if she would contact me to discuss it, if Indiana law was any different with respect to personal jurisdiction. She failed to do so. As far as I am concerned, the case stays here.”
The Lindemans appealed.
THE SUPREME COURT DECISION
The appellate court reversed the trial court’s decision.
On 11 April 2006 hearings were held in Indiana for Lindeman's custody petition and in Illinois for Andrews paternity petition. The Supreme Court reasoned that Andrew was not entitled to notice of the 11 April Indiana hearing but was for the 18 April 2006 hearing which he did not receive.
Andrew maintains that the Indiana court did not have jurisdiction over Sophia or her parents and he was a person entitled to notice of the custody proceeding, but he did not receive notice as was required by the UCCJEA. The Lindemans argue that Indiana was Sophia’s home state at the time the custody proceeding was initiated and, therefore, Indiana had jurisdiction over the matter. Further, the Lindemans argue that Andrew was not entitled to service at the commencement of the custody proceeding because, at that time, he had not established paternity.
Section 201 of the UCCJEA provides, in relevant part:
“(a) Except as otherwise provided in Section 204 [temporary emergency jurisdiction], a court of this State has jurisdiction to make an initial child-custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State[.]”
At the 11 April 2006 hearing the Indiana Court found that the Lindeman's were acting as de facto custodians of Sophia. Since Andrew had not established paternity at the time of that hearing he was not a party entitled to notice or to be heard. Thus, it was only necessary for the Supreme Court to determine two things; had Sophia lived in Indiana for six months and were the Lindemans acting as a parent.
In the ruling the Supreme Court stated "We accept the Indiana court’s factual assessments as they relate to those issues, and thus conclude that the jurisdictional requirements set forth in section 201 of the UCCJEA were met in this case and that the Indiana court did, in fact, have home state jurisdiction. Accordingly, Andrew’s contest of registration on this basis must fail."
Under this reasoning Andrew loses his challenge and the Lindemans have custody of Sophia. The court then addresses Andrew’s assertion that his contest to registration of the Indiana order should have been sustained because he was not served with notice of the proceedings even though he was entitled to
such notice under section 305(d)(3) of the UCCJEA.
Section 305(d) of the UCCJEA provides:
“(d) A person seeking to contest the validity of a registered order must request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
(1) the issuing court did not have jurisdiction under Article 2;
(2) the child-custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2; or
(3) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Section 108, in the proceedings before the court that issued the order for which registration is sought.” [emphasis added]
Section 205 of the UCCJEA provides guidelines for determining whether a person is entitled to notice of the child-custody proceeding. Section 205(a) states: “Before a child-custody determination is made under this Act, notice and an opportunity to be heard must be given to all persons entitled to notice under the law of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.” Thus, if Andrew was the physical custodian of Sophia then he was entitled to notice.
If Andrew was the physical custodian which entitled him to notice and he did not receive notice then the court would have grounds to reverse. The Supreme Court managed to shoot down this argument. The court explained that the term “physical custody” is defined in the UCCJEA as “physical care and supervision of a child.” It is undisputed that Sophia was living with Andrew when the Indiana child-custody proceeding was commenced. However, there is no evidence in the record that Andrew was responsible for Sophia’s physical care and supervision. The evidence presented simply established that Andrew and Sophia lived under the same roof and that Sophia was being financially provided for by Andrew’s family. The fact that Andrew and Sophia were living in the same home is insufficient to establish that Andrew was entitled to notice under section 205 of the UCCJEA as a person having physical custody of Sophia. So, Andrew's argument fails because even though they live in the same home as a family that does not mean that he had physical custody of Sophia. This logic seems spurious at best.
Andrew also contended that he was entitled to notice of all of the Indiana child-custody proceedings as Sophia’s presumed father. But, the Supreme Court saw it otherwise by stating, "The fact that the interested parties presumed that Andrew was Sophia’s father is not a basis upon which Andrew can establish that he was entitled to notice. The Illinois Parentage Act of 1984 states that a man is only presumed to be the natural father of a child if: (1) he and child’s natural mother have ever been married to each other and the child was born or conceived during the marriage; (2) if he marries the natural mother after the child’s birth and he consents to be named as the child’s father on the birth certificate; or (3) he and the natural mother signed an acknowledgment of paternity."
Andrew had taken none of those steps prior to the 11 April 2006 hearing. So, the court reasoned that, again, he was not entitled to notice. His argument fails and the Lindemans remain the custodians of Sophia. But wait, the court goes further. "We nevertheless conclude that Andrew was a person entitled to notice, which he did not receive, under section 205 of the UCCJEA. The facts demonstrate that the Lindemans filed their verified emergency petition for temporary guardianship on April 4, 2006. They did not serve Andrew and were not required to, as Andrew had not yet established paternity."
To this point the Supreme Court has said that Andrew had not established paternity or met any requirement that he be served with notice of the hearing but that "We nevertheless conclude that Andrew was a person entitled to notice". If you are confused at this point then you are in good company.
On 11 April 2006 the Indiana Court made clear that it was granting the Lindemans’ petition without hearing from Alexis on an emergency basis, but Judge Love noted that she needed to hear from Alexis and reassess whether the award of temporary custody to the Lindemans was appropriate. The hearing was continued for one week. This, the Supreme Court has reasoned, saved Andrew's notice requirement argument.
On April 18, 2006, Alexis appeared in the Indiana court. The court heard testimony from Alexis which was not made part of the instant record. After hearing this evidence, the court concluded that temporary custody should remain with the Lindemans and ordered Alexis to return Sophia within 24 hours. When the April 18, 2006, hearing commenced in the Indiana court, the court was well aware that Andrew was an indispensable party to the proceedings, and that Andrew did not receive proper notice.
Here, the Supreme Court finds in Andrew's favour. "We hold that Andrew’s contest to the registration of the Indiana court’s orders was properly sustained by the [Illinois] trial court because Andrew was not given notice and an opportunity to be heard, as section 205 of the UCCJEA requires, even though he was a parent whose parental rights had not been terminated." The Indiana Court should have continued the matter for a short time to give Andrew notice and an opportunity to be heard, as it did for Alexis.
The Court also upheld Andrew's challenge to the Indiana Court's 15 June 2006 which effectively reaffirmed the 11 April 2006 temporary order. The Court went further, stating, "We will not construe the UCCJEA to require an Illinois court to recognize any judgment that would effectively deprive a father, who has properly established paternity, of his parental rights without notice or hearing. To do so would violate the explicit language of the UCCJEA, which states: “[t]his Act does not govern the enforceability of a child-custody determination made without notice or an opportunity to be heard.”. It would also violate the principle, embedded in our jurisprudence, that parents possess the fundamental right “to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion.” Wickham v. Byrne, 199 Ill. 2d 309, 316 (2002).
The Supreme Court then took an opportunity to make scathing remarks to Judge Bell and emphasized the importance of the communication provisions of the UCCJEA. See In re Joseph V.D., 373 Ill. App. 3d 559, 562 (2007) (where an Illinois child support order was vacated due to noncompliance with the UCCJEA communication provisions). Section 206(b) of the UCCJEA, entitled “Simultaneous Proceedings,” provides in relevant part: “If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this Act, the court of this State shall stay its proceeding and communicate with the court of the other state.”. Judge Bell adhered to that statute when she called Judge Love eight times and wrote four letters. We acknowledge that Judge Love was not required to initiate communications with Judge Bell under the provisions of the UCCJEA that applied based on Indiana’s position as the court with initial custody jurisdiction in this case. However, we believe that she was required to participate when Judge Bell initiated communication pursuant to the UCCJEA’s mandate, and we are disturbed by her unwillingness to do so. The Indiana court’s order would have had Sophia taken from her mother and father and brought to Indiana by law enforcement personnel. A decision of such magnitude certainly warrants a telephone conversation between the courts involved in the matter."
CONCLUSION
The Illinois Supreme Court reversed the ruling of the Illinois Appelate Court which reversed the ruling of the Illinois trial court which had declined to accept the rulings of the Indiana Court under UCCJEA. The Indiana Court's order could not be registered in Illinois because Andrew was not properly served. When the Indiana Court became aware on 17 April 2006 that Andrew had established paternity on 11 April 2006 the court should have continued the hearing for a few days to give Andrew an opportunity to be heard. That is where due process failed.
Due process is simply the opportunity to be heard. Since Andrew was not afforded that right then the Indiana order could not be registered in Illinois. As Sophia and her parents, Andrew and Alexis, were all residents of Illinois the Indiana order granting custody of Sophia to the Lindemans could not be enforced.
The case emphasizes a few points. Primarily that proper notice must be made on all interested parties. In this case with overlapping hearings in adjoining states research must be done to determine who the interested parties are. The Rules of Trial Procedure should be consulted as to proper notice. Simply telling someone about a hearing is not proper notice. Personal service can be made but must be through the delivery of documentation.
For fathers establishing paternity at the earliest possible time is a must. Has paternity been established prior to the 11 April 2006 hearing on the Lindemans' petition then this case would likely have not proceeded through the procedural web that it did.
I am not going to hold back in my scorn for Judge Karen M. Love. She has not previously made rulings that I found to be overtly harmful to children but with this she is clearly a disgrace to the judiciary. Judge Love has no business sitting in judgment of any mater that concerns the well-being of a child as she has no concern for childrens' well-being. This was not an oversite. She didn't just lose track of this. She absolutely ignored numerous requests from another judge to discuss an issue related to the safety of a child. This is deplorable and should not be tolerated.
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