                       Illinois Official Reports

                              Appellate Court



                  Fleckles v. Diamond, 2015 IL App (2d) 141229



Appellate Court   JAMES S. FLECKLES, Plaintiff-Appellee, v. DANIELLE J.
Caption           DIAMOND, Defendant-Appellant.




District & No.    Second District
                  Docket No. 2-14-1229




Filed             June 23, 2015




Decision Under    Appeal from the Circuit Court of Du Page County, No. 14-F-571; the
Review            Hon. Linda E. Davenport, Judge, presiding.




Judgment          Affirmed in part and reversed in part; cause remanded with directions.




Counsel on        Phyllis J. Perko, of Law Offices of Harlovic & Perko, of West
Appeal            Dundee, for appellant.

                  Robert G. Black, of Law Offices of Robert G. Black, of Naperville, for
                  appellee.
     Panel                    JUSTICE JORGENSEN delivered the judgment of the court, with
                              opinion.
                              Justices Zenoff and Birkett concurred in the judgment and opinion.




                                               OPINION


¶1         In this permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 306(a)(5)
       (eff. July 1, 2014) (appeals from interlocutory orders “affecting the care and custody of
       unemancipated minors”), plaintiff, James S. Fleckles, petitioned pursuant to the Illinois
       Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 2014)) to establish paternity and obtain
       joint custody and visitation with his yet-unborn child. 750 ILCS 45/7 (West 2014); see also
       750 ILCS 5/601 (West 2014). Defendant, Danielle J. Diamond, moved to strike and dismiss
       the petition (735 ILCS 5/2-619(a)(1) (West 2014)), arguing that the trial court did not have
       subject matter jurisdiction pursuant to the Uniform Child-Custody Jurisdiction and
       Enforcement Act (UCCJEA) (750 ILCS 36/101 et seq. (West 2014)), because, under that
       statute, Colorado, where the child was ultimately born and where defendant lived with the
       child, was his “home state” (750 ILCS 36/201 (West 2014); see also 750 ILCS 36/102(7)
       (West 2014)). The trial court denied Danielle’s motion, and we granted her petition for leave to
       appeal. We affirm in part, reverse in part, and remand the cause with directions for the trial
       court to dismiss the custody portion of James’s petition.

¶2                                         I. BACKGROUND
¶3         On July 30, 2014, James petitioned under the Parentage Act to establish paternity and
       obtain joint custody and visitation. He alleged that he and Danielle had engaged in a
       continuous sexual relationship since December 2001, that Danielle became pregnant in
       December 2013 with an anticipated due date of September 21, 2014, and that he was the
       unborn child’s father. He also alleged that the couple had resided together in Elmhurst since
       September 2011.
¶4         On September 24, 2014, Danielle moved to strike and dismiss James’s petition (735 ILCS
       5/2-619(a)(1) (West 2014)), arguing that the court did not have “subject matter jurisdiction”
       over the matter because: Danielle resided in Colorado, the court did not have jurisdiction over
       an unborn child (as of the date James filed his petition), and the child was born (on September
       15, 2014) in Colorado. Danielle further alleged that, on September 2, 2014, she had filed a
       paternity petition in Colorado (which she attached to her motion) and served James with the
       petition on September 11, 2014. She also alleged that it was her intention to permanently reside
       in Colorado. Danielle argued that, pursuant to the UCCJEA, a child’s “home state” is the state
       in which the child has lived with a parent since birth; accordingly, because her child was born
       in Colorado and still resided there with her, Illinois did not have jurisdiction over him.
¶5         In his response, James argued that the trial court did have subject matter jurisdiction
       because: (1) Danielle resided in Illinois, not Colorado (as she had lived there only since July
       27, 2014, and would not have been considered a resident for purposes of obtaining a driver’s

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       license there until she had resided there for 90 days); (2) the Parentage Act allows an action to
       be brought to determine paternity before the birth of the child (750 ILCS 45/7(e) (West 2014)
       (“If an action under this Section is brought before the birth of the child, all proceedings shall be
       stayed until after the birth, except for service or process, the taking of depositions to perpetuate
       testimony, and the ordering of blood tests under appropriate circumstances.”)); and (3)
       paternity did not hinge on the UCCJEA, because, when the proceedings commenced, there was
       no “home state” of the child, because both actions commenced before his birth and, thus, the
       court must look to the “significant connection” standard to determine jurisdiction, and under
       that standard neither party had a significant connection to Colorado (750 ILCS 36/201(a)(2)
       (West 2014) (UCCJEA significant-connection provision)).
¶6          As to Danielle’s Colorado pleading, James moved to strike and dismiss it or, alternatively,
       requested a judicial conference. On October 16, 2014, James moved for the child’s return to
       Illinois.

¶7                                             A. Hearing
¶8         On December 1, 2014, a hearing was held on Danielle’s motion to dismiss James’s
       petition.
¶9         Danielle, who appeared telephonically, testified that she has lived in Arvada, Colorado,
       since August 2014. She rents a townhouse and lives there with her son, and she signed a
       one-year lease on it in August 2014. Danielle has a Colorado driver’s license, her vehicle is
       registered in Colorado, and she is registered to vote in Colorado. She moved to Colorado
       because that is where her work is and where she has a family support system–two sisters, a
       brother-in-law, two nephews, and a niece, all of whom live in Arvada within two miles of
       Danielle’s residence.
¶ 10       Danielle’s son was born in Denver, Colorado, on September 15, 2014. His doctors are in
       Arvada, and he has never “dealt with” any Illinois doctors. Danielle learned that she was
       pregnant in March 2014, while she lived in Tucson, Arizona (since February 2014). She saw
       doctors in Arizona.
¶ 11       Danielle has worked for the Socially Responsible Agriculture Project (SRAP) since the fall
       of 2009 as the southwest regional coordinator, addressing agricultural aspects of
       environmental issues, including policy and community advocate work. Her area includes
       Arizona, New Mexico, Utah, and Colorado. When she was hired, she was required to move to
       her area. Initially, she moved to Tucson, renting a condominium from James’s father with
       James, who was already living there due to his employment with American Express. Both
       James and Danielle furnished the condo.
¶ 12       Danielle met James in 2000 or 2001 while they were in law school at Northern Illinois
       University. Danielle graduated in 2003 and became licensed in 2004. James became licensed
       in 2013.
¶ 13       In early 2011, the couple got engaged. Danielle lived in Arizona and paid taxes there (and
       James had a driver’s license and was registered to vote there) until September 2011, when she
       and James moved to Illinois because James wanted to take care of his ill grandmother. The
       couple left their belongings in Arizona and continued paying association dues and utilities on
       the condo. They intended to return to Arizona because that is where their jobs were. While in



                                                    -3-
       Illinois, James took a leave of absence from American Express. Danielle transitioned so she
       could work her job from Illinois, but she traveled back to the southwest “continually.”
¶ 14        Danielle stayed in Illinois from September 2011 to December 2012. She went to Utah to be
       with her sister and to work from there. James did not join her. Danielle stayed in Utah, renting
       a room from a friend, until June 2013, when “we” went to Arizona and then Illinois. After she
       was back in Illinois, Danielle and James had disagreements about where they would live.
       James wanted to stay in Illinois, but Danielle’s work was in the southwest. They agreed that,
       once James obtained his law license, he would start a law practice with his father in Arizona.
       (However, he never opened the law practice.)
¶ 15        In February 2014, Danielle left Illinois and went to Colorado for work. She stayed with her
       sister from February 8 to 22, 2014. Afterward, she went to Tucson for work and stayed there
       until May 24 or 25, 2014. In March 2014, while in Tucson, she was surprised to find out that
       she was pregnant. Danielle stayed at the condo, and James joined her there in April for one
       week. The couple fought “quite a lot.” Danielle wanted to stay in Tucson and had found a
       house that she showed James. James wanted her to return to Illinois.
¶ 16        In late May 2014, Danielle returned to Colorado to stay with her sister for about one week,
       until June 4, 2014. She contemplated moving there because she was fighting with James in
       Tucson and she and her son would have a support system in Colorado.
¶ 17        On June 4, 2014, Danielle returned to Illinois to try to work things out with James. They
       did not reach an agreement. James wanted to stay in Illinois. Danielle, whose work was still in
       the southwest (and who was the primary breadwinner and had insurance through her work),
       presented to James a written proposal that, if he obtained full-time employment with benefits,
       she would stay in Illinois for one year; otherwise, they would move to the southwest.
¶ 18        On July 26, 2014, Danielle’s parents hosted a baby shower. James did not attend, but his
       family attended. One day after the shower, even though she and James spoke the evening
       before and had made plans to meet the following day, Danielle left for Colorado. She testified
       that before leaving she had not decided to move to Colorado, even though she had already
       purchased a plane ticket. Danielle did not take her belongings from the Elmhurst residence the
       couple shared.
¶ 19        Addressing her job, Danielle testified that she was hired to work in the southwest. A letter
       from SRAP dated October 30, 2014, stated that it was “expected” that Danielle would relocate
       for her job, although another version stated that it was “requested.” Danielle offered no
       explanation for the discrepancy. Danielle was able to work for SRAP while residing in Illinois,
       including from 2012 through 2014. Danielle also currently works quarter-time for Northern
       Illinois University, performing her duties remotely from Colorado for about 10 hours per
       week. In 2012 and 2013, she filed tax returns in Arizona and Illinois; in 2014, she would file in
       Arizona and Colorado.
¶ 20        On August 12, 2014, Danielle obtained a Colorado driver’s license and registered her car
       there. Before that, she had an Illinois driver’s license. Her mother and father currently live in
       Illinois, but her mother plans to retire in Colorado with her husband. In addition, two of
       Danielle’s sisters live in Colorado; another sister lives in Wisconsin, and her brother lives in
       Illinois. Danielle testified that she owned property in Woodstock but sold it to her brother
       before she moved to Arizona. However, she also testified that the mortgage might still be in her
       name, although her brother makes the payments.


                                                   -4-
¶ 21       Addressing medical care, Danielle testified that she had two pregnancy-related visits in
       Arizona, and three in Illinois. She also received seven weeks of medical care in Colorado
       before her child’s birth. She testified that she spent the majority of her pregnancy in Arizona
       and Colorado.
¶ 22       James testified that, when he learned that Danielle was pregnant in early March 2014, he
       went to Tucson. He remained there until May and attended Danielle’s doctor’s appointments
       with her. Danielle went to Colorado for one week in May, and James met her there to drive her
       back to Elmhurst, where they returned on June 4, 2014. James testified that he attended at least
       four of Danielle’s medical appointments in Illinois.
¶ 23       In November 2013, James became a licensed Illinois attorney. He works for his father’s
       firm in Lombard. He has resided at the same address in Elmhurst since September 2011. He
       does not have any connection with Colorado.
¶ 24       The trial court denied Danielle’s motion to strike and dismiss for lack of subject matter
       jurisdiction, finding that Danielle was a permanent Illinois resident (from September 2011 to
       July 27, 2014). The trial court noted that, even though she took trips to Utah, Colorado, and
       Arizona, Danielle kept coming back to Illinois. The court also noted that she held an Illinois
       driver’s license before she left for Colorado, she had family in Illinois, her law license was
       from Illinois, and she still owned property in Illinois. Her only contacts with Colorado, the
       court noted, were that she has been there since July 27, 2014, and she happened to deliver her
       child there. The court stated that the fact that her child was born in Colorado does not mean that
       “every other component and requirement under the UCCJEA is required to fall away.” Also,
       the court noted that, from a “clean hands” perspective, the fact that Danielle left Illinois the day
       after the baby shower did not reflect well on her in the jurisdictional analysis. The court
       determined that James filed his action first and did so in Illinois before the child’s birth.
       Therefore, Illinois courts had jurisdiction over the matter. Danielle appeals from this ruling.

¶ 25                                       B. Colorado Proceedings
¶ 26        On December 2, 2014, one day after the Illinois court denied Danielle’s motion to strike
       and dismiss, a Colorado magistrate dismissed Danielle’s paternity petition and declined to
       exercise jurisdiction over the matter, based on the Illinois court’s exercise of jurisdiction.
       (James had filed, on October 17, 2014, a motion to dismiss Danielle’s petition, based on his
       filing the paternity petition in Illinois. Also, on November 21, 2014, the magistrate had held a
       phone conference with the Illinois judge over the pending petitions; no significant decisions
       were made.)
¶ 27        Danielle sought review of the magistrate’s order, and, on February 21, 2015, the Colorado
       district court denied Danielle’s petition for review. The district court found that the magistrate
       did not err in dismissing the petition without a hearing on “home state” jurisdiction and
       without making additional findings that Danielle alleged were necessary. The district court
       determined that the magistrate properly: communicated with the Illinois judge; declined to
       exercise jurisdiction after learning that the Illinois court had exercised jurisdiction over the
       initial custody determination; and, since no state had explicitly exercised “home state”
       jurisdiction, followed the first-in-time rule. The district court further found that the magistrate
       did not err in failing to make a finding as to whether Illinois had jurisdiction under the
       UCCJEA, as Colorado law did not require such a finding. The Illinois court’s action prevented
       the Colorado court from exercising jurisdiction over the initial custody determination, because,

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       under the statute, the court that has made the initial custody determination generally retains
       exclusive, continuing jurisdiction until the child and both parents leave the state or no longer
       have significant connections with it. Colo. Rev. Stat. Ann. § 14-13-202(1) (West 2014).
       Finally, the court found that the magistrate did not err in failing to find that Colorado was an
       inconvenient forum, as that concept was inapplicable because Colorado was not the state with
       exclusive, continuing jurisdiction.

¶ 28                                            II. ANALYSIS
¶ 29       Danielle argues that the trial court erred in denying her motion to strike and dismiss for
       lack of subject matter jurisdiction. Unlike her position in the trial court, wherein she argued
       that James’s entire petition should be dismissed, Danielle prays on appeal that we reverse and
       remand with directions that only the portion of James’s petition pertaining to custody be
       dismissed, because the trial court lacked jurisdiction to determine custody or because, as she
       asserts elsewhere in her brief, the court’s order was “erroneous for lack of compliance with the
       requirements of the UCCJEA.”) For the following reasons, we agree that the trial court erred in
       denying her motion with respect to custody.
¶ 30       Danielle’s motion was brought pursuant to section 2-619(a)(1) of the Code of Civil
       Procedure (735 ILCS 5/2-619(a)(1) (West 2014)). A motion to dismiss pursuant to section
       2-619 admits the legal sufficiency of the complaint, but asserts certain defects, defenses, or
       other affirmative matters that act to defeat the claim. Relf v. Shatayeva, 2013 IL 114925, ¶ 20.
       In ruling on a section 2-619 motion, all pleadings and supporting documents must be construed
       in the light most favorable to the nonmoving party, and the motion should be granted only
       where no material facts are in dispute and the defendant is entitled to dismissal as a matter of
       law. Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. “The purpose of a section 2-619 motion to
       dismiss is to dispose of a case on the basis of issues of law or easily proved issues of fact.”
       Hertel v. Sullivan, 261 Ill. App. 3d 156, 160 (1994). We review de novo a trial court’s ruling on
       a motion to dismiss based on section 2-619. In re Marriage of Diaz, 363 Ill. App. 3d 1091,
       1094 (2006). Similarly, we review de novo questions of statutory construction (Price v. Philip
       Morris, Inc., 219 Ill. 2d 182, 235 (2005)) and subject matter jurisdiction (McCormick v.
       Robertson, 2015 IL 118230, ¶ 18).
¶ 31       James filed his petition pursuant to the Parentage Act. He sought to establish paternity and
       obtain joint custody and visitation. The purpose of the Parentage Act is to “further the public
       policy of Illinois to ‘recognize[ ] the right of every child to the physical, mental, emotional and
       monetary support of his or her parents,’ without regard to the parents’ marital status.”
       In re Parentage of John M., 212 Ill. 2d 253, 263 (2004) (quoting 750 ILCS 45/1.1 (West
       2002), and citing 750 ILCS 45/3 (West 2002)). An action to determine the existence of a
       father-child relationship may be brought by “a man presumed or alleging himself to be the
       father of the child or expected child.” (Emphasis added.) 750 ILCS 45/7(a) (West 2014).
       However, “[i]f an action under this Section is brought before the birth of the child, all
       proceedings shall be stayed until after the birth, except for service or process, the taking of
       depositions to perpetuate testimony, and the ordering of blood tests under appropriate
       circumstances.” (Emphasis added.) 750 ILCS 45/7(e) (West 2014). The Parentage Act also
       provides that custody and visitation shall be determined “in accordance with the relevant
       factors set forth in the Illinois Marriage and Dissolution of Marriage Act [(750 ILCS 5/101
       et seq. (West 2014))] and any other applicable law of Illinois.” 750 ILCS 45/14(a)(1) (West

                                                    -6-
       2014). The Illinois Marriage and Dissolution of Marriage Act, in turn, provides that a “court of
       this State competent to decide child custody matters has jurisdiction to make a child custody
       determination in original or modification proceedings as provided in Section 201 of” the
       UCCJEA. 750 ILCS 5/601(a) (West 2014). The Parentage Act’s jurisdictional provision states
       that a “circuit court[ ] shall have jurisdiction of an action brought under this Act. In any civil
       action not brought under this Act, the provisions of this Act shall apply if parentage is at issue.
       The Court may join any action under this Act with any other civil action where applicable.”
       (Emphases added.) 750 ILCS 45/9(a) (West 2014). As to venue, the statute provides, in
       relevant part, that a parentage action “may be brought in the county in which any party resides
       or is found.” 750 ILCS 45/9(b) (West 2014).
¶ 32       We turn next to the UCCJEA. The UCCJEA, which became effective in Illinois on January
       1, 2004, “was promulgated to end custody jurisdictional disputes between states, to promote
       cooperation between states in determining custody issues, and to enhance the ability of states
       to enforce custody orders expeditiously.” In re Joseph V.D., 373 Ill. App. 3d 559, 561 (2007).
       To end forum shopping by parents, the statute gives a state exclusive continuing jurisdiction
       once a state makes an initial child custody determination. Crouch v. Smick, 2014 IL App (5th)
       140382, ¶ 19. Thus, the UCCJEA provides state trial courts with a method to resolve
       jurisdictional questions that arise in interstate child custody disputes, and the statute gives
       priority to the state that is the child’s “home state.” Diaz, 363 Ill. App. 3d at 1096.
¶ 33       Sections 201(a), (b), and (c) of the UCCJEA provide:
                    “(a) Except as otherwise provided in Section 204[, i.e., 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;
                        (2) a court of another state does not have jurisdiction under paragraph (1), or a
                    court of the home state of the child has declined to exercise jurisdiction on the
                    ground that this State is the more appropriate forum under Section 207 or 208, and:
                            (A) the child and the child’s parents, or the child and at least one parent or a
                        person acting as a parent, have a significant connection with this State other
                        than mere physical presence; and
                            (B) substantial evidence is available in this State concerning the child’s
                        care, protection, training, and personal relationships;
                        (3) all courts having jurisdiction under paragraph (1) or (2) have declined to
                    exercise jurisdiction on the ground that a court of this State is the more appropriate
                    forum to determine the custody of the child under Section 207 or 208; or
                        (4) no court of any other state would have jurisdiction under the criteria
                    specified in paragraph (1), (2), or (3).
                    (b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody
               determination by a court of this State.




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                   (c) Physical presence of, or personal jurisdiction over, a party or a child is not
               necessary or sufficient to make a child-custody determination.” 750 ILCS 36/201(a),
               (b), (c) (West 2014).
¶ 34       The definition of “home state” is provided in section 102(7) of the UCCJEA:
               “ ‘Home state’ means the state in which a child lived with a parent or a person acting as
               a parent for at least six consecutive months immediately before the commencement of a
               child-custody proceeding. In the case of a child less than six months of age, the term
               means the state in which the child lived from birth with any of the persons mentioned.
               A period of temporary absence of any of the mentioned persons is part of the period.”
               (Emphasis added.) 750 ILCS 36/102(7) (West 2014).
¶ 35       This provision’s reference to “lived from birth” has been construed to mean the place
       where the child occupies a home. In re D.S., 217 Ill. 2d 306, 317 (2005). The statute does not
       define the term “commenced.”
¶ 36       The statute defines a “child” as “an individual who has not attained 18 years of age.” 750
       ILCS 36/102(2) (West 2014). The UCCJEA, however, does not “authorize jurisdiction over a
       child custody proceeding concerning an unborn child.” Waltenburg v. Waltenburg, 270
       S.W.3d 308, 316 (Tex. App. 2008); see also In re Marriage of Skelton, 352 Ill. App. 3d 348,
       352 (2004) (under prior statute–Uniform Child Custody Jurisdiction Act (750 ILCS 35/4
       (West 2002))–definition of “child” did not include fetuses).
¶ 37       Again, the UCCJEA’s jurisdictional provision states that section 201(a) therein “is the
       exclusive jurisdictional basis for making a child-custody determination by a court of this
       State.” (Emphasis added.) 750 ILCS 36/201(b) (West 2014). The statute defines a
       “child-custody determination” as “a judgment, decree, or other order of a court providing for
       the legal custody, physical custody, or visitation with respect to a child. The term includes a
       permanent, temporary, initial, and modification order. The term does not include an order
       relating to child support or other monetary obligation of an individual.” 750 ILCS 36/102(3)
       (West 2014).1

¶ 38                                   A. Subject Matter Jurisdiction
¶ 39       We turn first to subject matter jurisdiction. Although on appeal Danielle now concedes that
       subject matter jurisdiction, strictly speaking, is not at issue, we briefly address it to avoid
       confusion and because Danielle’s motion to dismiss was brought pursuant to section
       2-619(a)(1) of the Code of Civil Procedure, the provision under which a party may raise a lack
       of subject matter jurisdiction. We agree that the trial court has constitutionally-derived subject
       matter jurisdiction over James’s petition.
¶ 40       In McCormick, our supreme court recently reiterated several longstanding principles. The
       court noted that, with the exception of circuit courts’ power to review administrative decisions,

           1
            It defines a “child-custody proceeding,” in contrast, as “a proceeding in which legal custody,
       physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for
       divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights,
       and protection from domestic violence, in which the issue may appear. The term does not include a
       proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Article 3.”
       (Emphases added.) 750 ILCS 36/102(4) (West 2014). Again, section 201 does not contain the term
       “child-custody proceeding.”

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       which is conferred by statute, circuit courts’ subject matter jurisdiction is conferred by our
       state constitution. McCormick, 2015 IL 118230, ¶ 19. Pursuant to section 9 of article VI of the
       Illinois Constitution, the jurisdiction of circuit courts extends to all “justiciable matters except
       when the Supreme Court has original and exclusive jurisdiction relating to redistricting of the
       General Assembly and to the ability of the Governor to serve or resume office.” Ill. Const.
       1970, art. VI, § 9. “[A] matter is considered justiciable when it presents ‘a controversy
       appropriate for review by the court, in that it is definite and concrete, as opposed to
       hypothetical or moot, touching upon the legal relations of parties having adverse legal
       interests.’ ” McCormick, 2015 IL 118230, ¶ 21 (quoting Belleville Toyota, Inc. v. Toyota
       Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335 (2002)).
¶ 41        Addressing compliance with statutory requirements, the court stated that this “involves an
       altogether different set of values. *** [H]owever, the fact that the litigants or the court may
       have deviated from requirements established by the legislature does not operate to divest the
       court of jurisdiction.” (Emphasis added.) Id. ¶ 22. The court added:
                    “Similarly, while the General Assembly may create new justiciable matters through
                legislation that create rights or duties that have no counterpart in common law or at
                equity, our court has made clear that the establishment of a new justiciable matter
                neither extends nor constrains the court’s jurisdiction. It could not, for except in the
                area of administrative review, the jurisdiction of the circuit court flows from the
                constitution. [Citation.] So long as a claim meets the requirements for justiciability, it
                will be sufficient to invoke the court’s subject matter jurisdiction, even if the claim is
                defectively stated. [Citation.] The only consideration is whether it falls within the
                general class of cases that the court has the inherent power to hear and determine. If it
                does, then subject matter jurisdiction is present.” (Emphasis added and omitted.)
                Id. ¶ 23.
¶ 42        Addressing section 201 of the UCCJEA, which speaks of jurisdiction, the supreme court
       explained that, as used therein, “jurisdiction” means “a procedural limit on when the court may
       hear initial custody matters, not a precondition to the exercise of the court’s inherent
       authority. It could not be more, for as we have held, that authority emanates solely from article
       VI, section 9, of our constitution.” (Emphasis added.) Id. ¶ 27. “Once a court has subject
       matter jurisdiction over a matter, its judgment will not be rendered void nor will it lose
       jurisdiction merely because of an error or impropriety in its determination of the facts or the
       application of the law.” (Emphases added.) Id. ¶ 28.2
¶ 43        Strictly construing Danielle’s motion as one asserting a lack of subject matter jurisdiction,
       we conclude that the trial court had subject matter jurisdiction over James’s petition. James’s
       petition presented claims for paternity, custody, and visitation under the Parentage Act and the

           2
            In McCormick, the parties entered into a joint parenting agreement after the father filed an action
       under the Parentage Act. Two years later, the father, who lived in Illinois, sought sole custody, and the
       mother, who had moved with the child from Missouri to Nevada, moved to vacate the prior judgment
       and dismiss the Illinois proceedings, arguing that, under the UCCJEA, the Illinois court lacked subject
       matter jurisdiction. The trial court found its prior order void for lack of subject matter jurisdiction. The
       supreme court held that the trial court erred in invalidating its initial parentage determination, as the
       child-custody action was a justiciable matter within the court’s jurisdiction (as conferred by the
       constitution). Id.

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       UCCJEA. These are justiciable matters, to which the trial court’s constitutionally granted
       jurisdiction extends. Id. Further, even if James’s petition defectively stated his claims, the trial
       court would not have been deprived of subject matter jurisdiction. Id. ¶ 22; see Belleville
       Toyota, 199 Ill. 2d at 340.
¶ 44       Thus, we agree that the trial court had constitutionally derived subject matter jurisdiction
       over James’s petition.

¶ 45                               B. The Parentage Act and the UCCJEA
¶ 46        Next, turning to the dispositive issue in this case, Danielle asserts that her motion to strike
       and dismiss is clearly based on the UCCJEA: custody determinations in Parentage Act cases,
       she asserts, are subject to the UCCJEA, which requires that courts exercise their jurisdiction
       consistently with that statute. Here, she argues, the trial court did not follow the UCCJEA’s
       requirements and, thereby, erred in denying her motion to strike and dismiss with respect to
       custody matters. She requests that we reverse that portion of the trial court’s order and remand
       for the court to dismiss that portion.
¶ 47        Construing Danielle’s motion to strike and dismiss as brought pursuant to section
       2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2014) (claim
       asserted “is barred by other affirmative matter avoiding the legal effect of or defeating the
       claim”)), we conclude that the trial court erred in denying that portion related to custody.
¶ 48        When James filed his petition, the child was not yet born. His petition was brought
       pursuant to the Parentage Act, which, unlike the UCCJEA, contemplates unborn children and
       provides that, in such a case, the proceedings are stayed until after the child’s birth, “except for
       service or process, the taking of depositions to perpetuate testimony, and the ordering of blood
       tests under appropriate circumstances.” 750 ILCS 45/7(e) (West 2014). Here, the first issue the
       trial court will likely address is paternity and, depending on its resolution, it might not need to
       reach the custody and visitation issues. 3 Nevertheless, the Parentage Act’s jurisdictional
       provision states that “circuit courts shall have jurisdiction of an action brought under this Act.
       In any civil action not brought under this Act, the provisions of this Act shall apply if parentage
       is at issue. The Court may join any action under this Act with any other civil action where
       applicable.” (Emphasis added.) 750 ILCS 45/9(a) (West 2014). The Parentage Act also
       provides that custody and visitation shall be determined pursuant to the factors in the Illinois
       Marriage and Dissolution of Marriage Act and any other applicable law. 750 ILCS 45/14(a)(1)
       (West 2014). The Illinois Marriage and Dissolution of Marriage Act, in turn, provides that a
       “court of this State competent to decide child custody matters has jurisdiction to make a child
       custody determination in original or modification proceedings as provided in Section 201 of”
       the UCCJEA. 750 ILCS 5/601(a) (West 2014). Thus, clearly, a Parentage Act proceeding may
       have joined with it a claim for custody pursuant to the UCCJEA. The question here is which
       state may make the initial child-custody determination where an action requesting, inter alia,
       custody is initiated before the child’s birth.
¶ 49        Here, James notes that the UCCJEA (in section 201, its jurisdictional provision) does not
       identify a paternity ruling as constituting an “initial child-custody determination” within its
       purview. It encompasses only: “a judgment, decree, or other order of a court providing for the
           3
           It does not appear that paternity is greatly disputed here, but we recognize that, if James is not
       found to be the biological father, our UCCJEA analysis will be rendered advisory.

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       legal custody, physical custody, or visitation with respect to a child. The term includes a
       permanent, temporary, initial, and modification order. The term does not include an order
       relating to child support or other monetary obligation of an individual.” 750 ILCS 36/102(3)
       (West 2014). However, James fails to note that the statute provides, with respect to custody
       determinations, that it contains the exclusive provisions to make such determinations.
¶ 50       We find persuasive the foreign case law upon which Danielle relies, which supports her
       position that James’s claims be bifurcated and the child-custody determination be made in
       Colorado because that is the child’s home state due to his birth there. In Gray v. Gray, 139 So.
       3d 802 (Ala. Civ. App. 2013), for example, the couple had lived in Alabama. The mother then
       relocated to Michigan while she was pregnant. The father filed a divorce action in Alabama,
       and the mother subsequently delivered the couple’s child in Michigan. The mother moved to
       dismiss the father’s action, alleging that the Alabama court lacked jurisdiction to make a
       child-custody determination under the UCCJEA. The trial court denied her motion, and the
       action proceeded to trial. On appeal, the court chose to address subject matter jurisdiction,
       framing the first inquiry as whether Alabama was the child’s home state under the UCCJEA. It
       noted that, when the father commenced the divorce action, the child had not yet been born.
       Reviewing the statutory definition of “home state,” the court first held that “an unborn child
       cannot have a home state” and, thus, the UCCJEA does not provide a basis for jurisdiction over
       a child-custody proceeding involving an unborn child. Id. at 806. The court further concluded
       that, because the father had commenced the divorce action before the child’s birth, the
       home-state determination “was necessarily deferred until its birth,” and, because the child had
       lived since birth only in Michigan, Michigan was the child’s home state and the Alabama court
       lacked subject matter jurisdiction to make an initial child-custody determination. (Emphasis
       added.) Id. at 808. Furthermore, there was no other statutory basis for the exercise of subject
       matter jurisdiction. Id.
¶ 51       In a similar case, Waltenburg, 270 S.W.3d 308, a Texas reviewing court noted that the
       commencement date is the date of the filing of the first pleading, but it held that a court cannot
       have UCCJEA jurisdiction over a pre-birth custody claim in a state where the child had never
       lived, because it would be contrary to the UCCJEA’s provisions prioritizing home-state
       jurisdiction. Id. at 318. In Waltenburg, an Arizona couple separated while the mother was
       pregnant, and she moved to Texas before their child’s birth. The father then filed for divorce in
       Arizona, seeking custody of their unborn child. (Paternity was not at issue.) The child was born
       in Texas and never lived in Arizona. After the child was born, the mother filed her own divorce
       suit in Texas, also seeking custody. The Texas trial court dismissed the mother’s divorce action
       in deference to the father’s pending Arizona action. The reviewing court first noted that
       jurisdiction was determined as of the date on which the suit was filed in Texas and that the
       child’s home state was determined as of the date of the commencement of the child-custody
       proceeding, which was statutorily defined as the date of the filing of the first pleading in a
       proceeding. Id. at 314. In that case, in which the child was less than six months old, the home
       state was the state in which the child lived from birth with a parent. Id. The reviewing court
       then held that the trial court erred in dismissing the Texas suit, because the “text of the
       UCCJEA precludes its application to unborn children” and, thus, the Arizona court never
       properly obtained jurisdiction over the father’s custody claim in his divorce action, which was
       filed before the child was born. Id. at 317. Texas was the child’s home state on the date the
       mother filed the Texas suit. Id. at 315. When the father filed his suit in Arizona, Arizona did


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       not have jurisdiction over the custody claim. Id. at 318. Alternatively, the Waltenburg court
       held that, “[e]ven if we determined the Arizona court’s jurisdiction as of the date [the child]
       was born–instead of the date Father filed suit–our conclusion that the Arizona court lacked
       jurisdiction over Father’s custody claim does not change,” because Texas immediately became
       the child’s home state when the child was born. Id. The UCCJEA, the court noted, does not
       authorize jurisdiction over a custody claim before a child’s birth. Id. Because the UCCJEA
       does not apply to unborn children and because the statute is the exclusive jurisdictional basis
       for making a child-custody decision, “a court in a state that has adopted the UCCJEA cannot
       exercise jurisdiction over a custody claim asserted regarding an unborn child” and, thus,
       comity did not require that Texas recognize any Arizona custody determination not made in
       conformity with the UCCJEA. Id.; see also In re Custody of Kalbes, 2007 WI App 136, ¶ 10,
       302 Wis. 2d 215, 733 N.W.2d 648 (the husband filed for divorce in Idaho before the child’s
       birth; the wife, who had moved to Wisconsin, gave birth to their child in Wisconsin and filed
       for custody afterward; the father then moved for custody in the Idaho action; the reviewing
       court held that Wisconsin was the child’s home state because the child was born there and lived
       there from birth; Wisconsin had jurisdiction over the custody proceeding); cf. Berwick v.
       Wagner, 336 S.W.3d 805, 815-16 (Tex. App. 2011) (limiting Waltenburg to its facts and
       holding that, where a “pre-birth suit and the ‘home state’ of the child are one and the same, ***
       UCCJEA petitions can be filed pre-birth with the jurisdictional analysis reserved for
       post-birth”). But see Barwick v. Ceruti, 31 N.E.3d 1008 1014 (Ind. Ct. App. 2015) (pregnant
       wife moved to Canada from Indiana, and husband filed for divorce in Indiana and moved to
       preserve jurisdiction over parentage and custody issues; child was born in Canada; reviewing
       court held that, waiver aside, trial court did not abuse its discretion in finding that Indiana had
       jurisdiction over unborn child’s custody; where the petition was filed pre-birth, the child did
       not have a home state when proceedings commenced and no other state had jurisdiction;
       further, although Canada later became the child’s “home state,” Indiana did not lose
       jurisdiction but could have either continued jurisdiction or deferred it to Canada).
¶ 52       The foregoing cases are persuasive, and we agree with their reasoning that a home-state
       determination must be deferred until the child’s birth and that, upon the child’s birth, the birth
       state–here, Colorado–becomes the home state. The trial court erred in assessing the case under
       section 201(a)(2)’s significant-connection analysis and the factors thereunder, such as
       Danielle’s residence and intent. As Danielle notes, foreign cases recognize that UCCJEA
       “jurisdiction” does not exist prior to a child’s birth and conclude that the issues in cases such as
       this be bifurcated and decided by different states’ courts. See In re Sara Ashton McK., 974
       N.Y.S.2d 434, 435 (N.Y. App. Div. 2013) (citing Waltenburg, 270 S.W.3d at 316-17); Gray,
       139 So. 3d at 808 (determination must be deferred until child’s birth); see also In re Dean, 393
       S.W.3d 741, 747 (Tex. 2013) (whether a Texas divorce action is filed is not relevant in
       determining jurisdiction over child custody because the two proceedings involve different
       issues; “one state may have jurisdiction over custody even if the divorce is decided by another
       state’s court”); DeWitt v. Lechuga, 393 S.W.3d 113, 118 (Mo. Ct. App. 2013) (“analysis may
       well result in bifurcated adjudications, where one state adjudicates paternity and child support
       and another state adjudicates custody and parenting time”). The UCCJEA was enacted by most
       states pursuant to a federal kidnapping-prevention act, which, in turn, sought to “avoid
       jurisdictional competition and conflict between State courts” by extending full faith and credit
       to custody decrees entered by sister state courts. (Internal quotation marks omitted.) Thompson


                                                    - 12 -
       v. Thompson, 484 U.S. 174, 177 (1988). To hold here that Illinois may make an initial
       child-custody determination, we believe, would ignore this goal and ignore that the UCCJEA
       gives priority to the jurisdiction of the child’s “home state” (Diaz, 363 Ill. App. 3d at 1096),
       which for a child less than six months old is defined as the birth state.

¶ 53                                        III. CONCLUSION
¶ 54       For the reasons stated, the judgment of the circuit court of Du Page County is affirmed in
       part and reversed in part, and the cause is remanded with directions that the custody portion of
       James’s petition be dismissed.

¶ 55      Affirmed in part and reversed in part; cause remanded with directions.




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