Law of Child Custody Jurisdiction
Illinois statute (720 ILCS 5/10-5) defines child abduction in a number of ways. Generally, child abduction involves concealing or detaining a child, or removing a child from the jurisdiction, in derogation of the rights of the lawful custodian, and/or in violation of judicial process. According to Federal law, the police are obligated to take a missing persons report and enter the information into the NCIC without a waiting period.
Uniform Child Custody Jurisdiction Act (UCCJA) (9 ULA at 123): Determines when a state has jurisdiction to make a custody order and provides procedures for interstate enforcement of orders in custody conflicts. (9 ULA at 115 (Part 1): Enhances the UCCJA by awarding priority to child�s home state, clarifies limits of emergency jurisdiction, and grants exclusive jurisdiction to the state making the original custody determination.
(750 ILCS 36/102) - Sec. 102. Definitions. In this Act:
(13) "Person acting as a parent" means a person, other than a parent, who:
(A) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child?custody proceeding; and
(B) has been awarded legal custody by a court or claims a right to legal custody under the law of this State.
(750 ILCS 36/107) - Sec. 107. Priority:
If a question of existence or exercise of jurisdiction under this Act is raised in a child?custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously. (Source: P.A. 93-108, eff. 1-1-04.)
(750 ILCS 36/302) - Sec. 302. Enforcement Under Hague Convention:
Under this Article a court of this State may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child?custody determination. (Source: P.A. 93-108, eff. 1-1-04.)
(750 ILCS 36/315) - Sec. 315. Role Of State's Attorney:
(a) In a case arising under this Act or involving the Hague Convention on the Civil Aspects of International Child Abduction, the State's Attorney or other appropriate public official may take any lawful action, including resort to a proceeding under this Article or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child-custody determination if there is: (1) an existing child?custody determination; (2) a request to do so from a court in a pending child-custody proceeding; (3) a reasonable belief that a criminal statute hasbeen violated; or (4) a reasonable belief that the child has beenwrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.(b) A State's Attorney or appropriate public official acting under this Section acts on behalf of the court and may not represent any party. (Source: P.A. 93-108, eff. 1-1-04.)
(750 ILCS 36/316) - Sec. 316. Role Of Law Enforcement. At the request of a State's Attorney or other appropriate public official acting under Section 315, a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist a State's Attorney or appropriate public official with responsibilities under Section 315. (Source: P.A. 93-108, eff. 1-1-04.)
(750 ILCS 36/402) - Sec. 402. Severability Clause. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. (Source: P.A. 93-108, eff. 1-1-04.)
(750 ILCS 36/405) - Sec. 405. Transitional Provision. A motion or other request for relief made in a child-custody proceeding or to enforce a child-custody determination which was commenced before the effective date of this Act is governed by the law in effect at the time the motion or other request was made. (Source: P.A. 93-108, eff. 1-1-04.)
MISSING CHILDREN ACT (28 USC 534): Requires law enforcement to enter complete descriptions of missing children into the NCIC�s Missing Person File, even if the abductor has not been charged with a crime and directs the FBI to make theses entries if local law enforcement fails to do so.
NATIONAL CHILD SEARCH ASSISTANCE ACT (42 USC 5779 & 5780): Mandates elimination of waiting periods before law enforcement takes a missing child report, including family abduction cases; Requires immediate entry of information into the NCIC Missing Person file; Requires close liaison with the National Center for Missing and Exploited Children (NCMEC).
INTERNATIONAL CHILD ABDUCTION REMEDIES ACT (42 USC 11601 et seq.): Establishes procedures to implement Hague Convention. Empowers state and federal courts to hear cases under Convention allow Central Authority information regarding location of a child and abducting parent.
PARENTAL KIDNAPPING PREVENTION ACT (28 USC 1738A) requires authorities of every state to enforce not modify orders made by state court exercising proper jurisdiction. Authorizes use of Unlawful Flight to Avoid Prosecution warrant and Federal Parent Locator Service in family abductions.
FUGITIVE FELON ACT (18 USC 1073): Enhances the ability of states to pursue abductors beyond state and national borders; Permits the FBI to investigate cases that would otherwise be under state jurisdiction and authorizes use of UFAP warrants in parental kidnapping cases.
Court Procedures
GENERAL ORDER NO. 1.3 - Assignment or Transfer of Actions - (a) Assignment of Actions - Subject to Rule 295 of Illinois Supreme Court, any action may be assigned to any judge or associate judge of Circuit Court of Cook County for hearing or trial, regardless of dept., div. or dist. which case was filed or which the judge is regularly assigned. Any action or proceeding may be heard or tried in any courtroom in Circuit Court of Cook County regardless of dept., div. or dist. which case was filed or which the courtroom is regularly used. (b) Filing or Trial in Wrong Branch - No action shall be dismissed and no judgment order or decree shall be vacated, set aside or invalidated because action was filed, tried or adjudicated in wrong dept., div. or dist. (c) Transfer of Actions Improperly Filed - Any action assigned to a judge that is determined by that judge, whether by suggestion of parties or otherwise, to have been filed or to be pending in wrong dept., div. or dist. or section of Circuit Court of Cook County, shall be transferred to Presiding Judge of the div. or dist. in which it is pending for purpose of transferring action to the Presiding Judge of the proper div. or dist., or for reassignment to proper section. (d) Transfer of Actions Properly Filed - For convenience of parties and witnesses and for more efficient disposition of litigation, a judge, upon motion of any party may transfer any action pending before that judge to the Presiding Judge of the div. or dist. for purpose of transferring the action to any other dept., div. or dist. (e) Transfer Orders - Transfer orders shall be in writing, signed by the judge transferring the case and by the Presiding Judge of the div. or dist., and shall be in substantially the following form. (f) Fees in Actions Transferred - When the action is transferred from 1 dept., div. or dist. to another dept., div. or dist. and the fee required in dept., div. or dist. to which the action is transferred is greater than the fee required in the dept., div. or dist. where the action was originally filed, plaintiff shall pay a fee in amount equal to the amount plaintiff would have been required to pay had plaintiff filed action in the dept., div. or dist. to which action is transferred, less the amount of original filing fee paid, and defendant and each defendant, if separate appearances filed, shall pay a fee amount equal to amount defendant would have been required to pay had defendant filed appearance in the dept., div. or dist. to which action is transferred, less amount of original appearance fee paid. [Amended, effective August 1, 1996.]
GENERAL ORDER NO.10 - Matters Assignable to Associate Judges - The Presiding Judge of each Div. or Dist. of Circuit Court of Cook County may assign to Associate Judges within his Div. or Dist., severally or by designation of office, by class or category of case, or in specific instances, any matter except trial of criminal cases in which defendant is charged with offense punishable by imprisonment for more than 1 year, unless such Associate Judge is authorized by Illinois Supreme Court to hear felony trials. [Amended, effective January 7, 1982.]
GENERAL ORDER NO. 13 - Transfer of Previously Assigned Case -The Presiding Judge of each Div. of County Dept. and each Dist. of Municipal Dept. of Circuit Court of Cook County is authorized to transfer to any judge previously assigned to said Div. or Dist. any matter previously assigned to that judge for purpose (1) Terminating such matter (2) Hearing all post-trial motions and proceedings concerning such matter. [Dated October 20, 1964.]
GENERAL ORDER NO. 16.1 - Duties of Presiding Judge of Juvenile Justice Div. - The Presiding Judge of the Juvenile Justice Div. or any Judge of the Juvenile Justice Div. designated by the Presiding Judge shall hear/determine all motions and may enter orders permitting prosecution of a minor 13 years or over under criminal laws in accordance with provisions of 705 ILCS 405/5-4(3)(a) of Juvenile Court Act. [Amended, effective March 1, 1995.]
2.2 JUVENILE JUSTICE & CHILD PROTECTION DEPT. - Juvenile Justice & Child Protection Dept. is composed of the following div. (b) Child Protection Div. - Child Protection Div. hears actions/proceedings arising under Articles I, II, III & IV of Juvenile Court Act 1987, and related matters arising under Parentage Act 1984 (750 ILCS 45/1 et seq.) Mental Health & Developmental Disabilities Code (405 ILCS 5/1-100 et seq.) School Code 1961 (105 ILCS 5/1-1 et seq.) Probate Act 1975 (755 ILCS 5/11-1 et seq.)[Amended, effective Aug. 1, 1996.] (c) Presiding Judges - Presiding Judges of Municipal Dist. in which actions of other div. are filed/heard shall be deemed supervising judges in such other div. to facilitate case flow management