                               No. 2--08--0544    Filed: 12-10-08
______________________________________________________________________________

                                                IN THE

                                APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re BABY GIRL F., a Minor                    ) Appeal from the Circuit Court
                                               ) of Boone County.
                                               )
                                               ) No. 08--AD--4
(Mark B. and Mary Karl B., Petitioners-        )
Appellees and Cross-Appellants, v. Krystal F., ) Honorable
Respondent-Appellant and Cross-Appellee        ) J. Todd Kennedy,
(Ralph L., Jr., Respondent)).                  ) Judge, Presiding.
______________________________________________________________________________

        JUSTICE BOWMAN delivered the opinion of the court:

        This case involves an interstate custody dispute between the Illinois birth mother of Baby

Girl F., Krystal F. (respondent-appellant and cross-appellee), and the South Carolina adoptive

parents, Mark B. and Mary Karl B. (petitioners-appellees and cross-appellants). The critical issue

is whether a decision by the South Carolina Supreme Court awarding custody to the adoptive parents

is entitled to full faith and credit in Illinois. We determine that the decision is entitled to full faith

and credit, and we thus affirm.

                                         I. BACKGROUND

        In April 2006, 20-year-old Krystal, who was seven months pregnant, contacted an Illinois

adoption agency called A Baby to Love. The adoptive parents retained an attorney in South

Carolina, Ray Godwin, to help them adopt a baby. Attorney Godwin worked with A Baby to Love,

which matched Krystal with the adoptive parents. The adoptive parents retained an Illinois attorney,
No. 2--08--0544


Denise Patton, to handle the adoption paperwork in Illinois and to appear with Krystal in court.

Attorney Patton testified that, even though the adoptive parents paid for her services, she acted in

the interest of Krystal, not the adoptive parents.

        Prior to the baby's birth, attorney Patton met with Krystal to discuss the various documents

that she would need to sign. Attorney Patton went over approximately 11 forms with Krystal,

explaining each one. The documents allowed Baby Girl to cross state lines.

       With respect to the baby's father, Krystal told A Baby to Love and attorney Patton that she

had been raped. Krystal testified that attorney Patton advised her that if the child was the result of

a rape, there was no need to notify the father. According to Krystal, she told attorney Patton that the

father's name was Ralph, but she did not provide Ralph's last name or address because she did not

want him to know about the baby or the adoption. Contrary to Krystal's testimony, attorney Patton

testified that Krystal would not tell her the father's first name. According to attorney Patton, Krystal

knew the father's first name through friends of friends, but she did not know his last name or his

address. Krystal refused to share the father's first name because she was raped, and she wanted to

get on with her life and make an adoption plan.

       Krystal gave birth to Baby Girl in Rockford, Illinois, on June 16, 2006. At the hospital,

Krystal met the adoptive parents and then left the hospital without Baby Girl. The adoptive parents

were present at the hospital to provide care for Baby Girl. Attorney Patton did not contact Krystal

at the hospital, but she contacted her prior to their scheduled court hearing on June 19, 2006.




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       On June 19, Krystal and attorney Patton appeared in an Illinois circuit court.1 At the hearing,

Krystal stated that she intended to place Baby Girl up for adoption and that the prospective parents

resided in South Carolina. Krystal signed a "Consent to Guardianship," and, after questioning

Krystal, the Illinois court waived the appointment of a guardian ad litem and appointed attorney

Patton guardian of Baby Girl (June Illinois Guardianship Order) for the purpose of facilitating her

transfer to South Carolina.      That day, Krystal signed four more documents, including a

relinquishment of parental rights, a consent to jurisdiction under South Carolina law, an affidavit of

identification, and a consent to adoption. In the consent to jurisdiction document, Krystal

acknowledged that the adoptive parents would be filing a South Carolina petition to adopt Baby Girl.

The document stated the following:

       "Having been informed about the law in both South Carolina and Illinois, I hereby submit

       to the jurisdiction of the state of South Carolina. I agree that all matters relating to the

       adoption of my child, including, but not limited to the right to revoke my Relinquishment,

       to notice of further proceedings in the adoption and termination of my parental rights, shall

       be determined in accordance with the laws of the state of South Carolina."




       1
        Two documents that appear in Krystal's appendix, attorney Patton's petition for guardianship

and the transcripts of the June 19, 2006, proceedings, do not appear in the record on appeal.

Therefore, we cannot consider them. See Walczak v. Onyx Acceptance Corp., 365 Ill. App. 3d 664,

672 (2006) (generally, materials not taken from the record may not be placed before the reviewing

court by way of an appendix). As a result, we derive the following facts from the South Carolina

Supreme Court's published decision, issued on January 28, 2008, which is a part of the record.

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           In the affidavit of identification, Krystal checked a box indicating that she did not know the

identity of the father. However, she also inconsistently stated, " 'I was raped and I only knew the

birth father through friends of friends. I do not know his full name and will not say his first name.'

" In the consent to adoption, she refused to name the father, stating that he had not supported her

and had not paid any pre-birth expenses.

           On June 20, 2006, the adoptive parents returned to South Carolina with Baby Girl and filed

an action for adoption in the family court.

           On July 14, 2006, the father, Ralph L., Jr., filed a petition in Illinois, requesting that the court

void ab initio the June Illinois Guardianship Order. Ralph's petition alleged that Krystal knew his

identity and whereabouts at all times. It also alleged that Krystal had said the baby was born dead.

Ralph argued that the Illinois court was without jurisdiction to enter the June Illinois Guardianship

Order because he never received notice. Ralph's petition failed to name the adoptive parents as

parties.

           Upon learning Ralph's identity, the adoptive parents filed an amended adoption petition in

the South Carolina family court on July 21, 2006. The adoptive parents requested an emergency

hearing, which took place on July 31, 2006. Although Ralph had notice of this emergency hearing,

his South Carolina counsel arrived too late to participate. On August 2, 2006, the court issued a

temporary order (August South Carolina Order) that (1) granted temporary legal custody of Baby

Girl to the adoptive parents; (2) vested jurisdiction in the South Carolina family court; and (3)

directed Ralph to take a paternity test. The court additionally ruled that South Carolina was Baby

Girl's home state.




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       On August 4, 2006, Krystal filed a petition in Illinois to vacate her consent to adoption and

have Baby Girl returned to her. In an affidavit, Krystal stated that she and Ralph began dating in

January 2005 and were living together in September 2005. In October 2005, Krystal filed assault

charges against Ralph, and he was arrested. Krystal then found out she was pregnant and contacted

an adoption agency, which put her in contact with the adoptive parents. Attorney Patton contacted

Krystal to assist with the adoption and told her that the adoptive parents would pay for attorney

Patton's services. According to Krystal's affidavit, attorney Patton advised her that Ralph would not

need to be notified if she did not list him on the adoption papers. Krystal alleged that attorney Patton

had a conflict of interest representing her. The adoptive parents were not named as parties or

provided notice of the pleadings. Apparently, however, they received "indirect notice," and Illinois

counsel entered a special appearance on their behalf.

       On September 8, 2006, the Illinois court vacated ab initio the June Illinois Guardianship

Order (September Illinois Order). The court determined that Krystal intentionally failed to disclose

Ralph's identity and that the failure to provide him notice deprived the court of jurisdiction to grant

the guardianship. As a result, the court ordered that Baby Girl be returned to Krystal in Illinois.



       Ralph then filed a motion in South Carolina to vacate the August South Carolina Order

awarding the adoptive parents temporary custody of Baby Girl. The court held a hearing on Ralph's

motion on October 20, 2006, and made a ruling on December 15, 2006. According to the court,

Illinois first exercised jurisdiction over Baby Girl when it issued the June Illinois Guardianship

Order, and Illinois exercised continuing jurisdiction when it vacated that order in its September

Illinois Order. After conducting a telephone conference with the presiding Illinois judge, the South



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Carolina court determined that Illinois was the home state of Baby Girl. The court granted Ralph's

motion to vacate based on its lack of subject matter jurisdiction (December South Carolina Order).



       In the meantime, Krystal filed a custody action in South Carolina on December 7, 2006,

requesting the court to enforce the September Illinois Order that awarded Krystal custody of Baby

Girl. Krystal did not name Ralph as a party in this action. The adoptive parents answered and filed

a counterclaim and a cross-claim, and they named Ralph as a party. Following a hearing, the court

issued a ruling on February 13, 2007 (February South Carolina Order). The court granted Krystal's

request to enforce the September Illinois Order and dismissed the adoptive parents' counterclaim and

cross-claim. In addition, the court ordered the adoptive parents to deliver Baby Girl to Krystal's

counsel no later than February 23, 2007.

       The adoptive parents appealed both orders and petitioned the South Carolina Court of

Appeals for a writ of supersedeas for leave to enforce the August South Carolina Order granting

them temporary custody of Baby Girl. The appeal and the petition were denied, and the adoptive

parents surrendered Baby Girl on February 23, 2007. At that time, Baby Girl was over eight months

old. The adoptive parents appealed to the South Carolina Supreme Court.

       Prior to the November 15, 2007, oral argument before the South Carolina Supreme Court,

Ralph's counsel requested to be relieved based on his failure to pay her. Ralph submitted an affidavit

in which he stated that he understood that, if he did not hire replacement counsel, the court could

presume that it was his intention to waive his rights. Ralph did not retain replacement counsel and

did not appear pro se at the oral argument.




                                                 -6-
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         On January 28, 2008, the South Carolina Supreme Court issued a decision (January South

Carolina Supreme Court Decision) reversing the February South Carolina Order. It reasoned that

the June Illinois Guardianship Order was not a "custody determination" within the meaning of a

federal act, the Parental Kidnapping Prevention Act of 1980 (PKPA) (28 U.S.C. §1738A (2000)),

and thus it was not first in time. The court noted that there were no "pleadings" for the guardianship

proceeding; there was no written order in the record; and Baby Girl never lived with attorney Patton,

meaning that she never had physical custody of the child and was not named guardian for the

purpose of becoming a parent. Rather, the purpose of the guardianship proceeding was a limited

one; namely, making attorney Patton a temporary guardian in order to facilitate the transfer of Baby

Girl from Illinois to South Carolina for the subsequent adoption.

         The South Carolina Supreme Court stated that, because the June Illinois Guardianship Order

was not a custody determination, Illinois did not have jurisdiction over the custody of Baby Girl prior

to South Carolina's exercise of jurisdiction in August, and therefore the August South Carolina Order

granting temporary legal custody to the adoptive parents was first in time. Without initial

jurisdiction, it logically followed, Illinois did not have continuing jurisdiction to issue its September

Illinois Order vacating the June Illinois Guardianship Order. In addition, the September Illinois

proceedings were flawed in that the adoptive parents were not given notice or an opportunity to be

heard.

         The South Carolina Supreme Court further found that neither South Carolina nor Illinois

qualified as the home state of Baby Girl. Nevertheless, Baby Girl had a significant connection to

South Carolina in that she had been living there since she was four days old, and South Carolina was

the only state in which there was evidence concerning her care and personal relationships.



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       The South Carolina Supreme Court concluded that the February South Carolina Order

incorrectly afforded full faith and credit to the Illinois September Order. The South Carolina

Supreme Court thus reinstated the August South Carolina Order awarding custody of Baby Girl to

the adoptive parents, and Krystal was given 15 days to return Baby Girl.

       On February 15, 2008, the adoptive parents moved in South Carolina for a rule to show cause

as to why Krystal should not be held in contempt for failing to return Baby Girl by February 12,

2008. On March 5, 2008, the court found Krystal in willful contempt of the January South Carolina

Supreme Court Decision (March South Carolina Contempt Order).

       On March 7, 2008, the adoptive parents moved in Illinois to register the January South

Carolina Supreme Court Decision and the March South Carolina Contempt Order. The court

registered the judgments in Illinois but stayed execution of the March South Carolina Contempt

Order until March 11, 2008.

       On March 11, 2008, Krystal and her counsel appeared at the hearing. The court ordered that

the March South Carolina Contempt Order was stayed until further court order. The matter was

continued to April 18, 2008.

       On March 31, 2008, Krystal filed various motions contesting the registration of the foreign

judgments under the provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act

(UCCJEA) (750 ILCS 36/101 et seq. (West 2004)). Krystal also filed a motion to vacate the orders

and a motion to appoint a guardian ad litem.

       At the April 18, 2008, hearing, Krystal orally moved for a substitution of judge. The court

denied this motion, and it also denied Krystal's motion to appoint a guardian ad litem. The court

noted that the majority of Krystal's motions concerned whether the South Carolina Supreme Court



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No. 2--08--0544


had jurisdiction to make a custody determination. The matter was continued to May 16, 2008, for

a hearing. Because Ralph had not received notice of the March 11, 2008, hearing, the adoptive

parents were ordered to notify Ralph of the May 16, 2008, hearing. In response to the adoptive

parents' concerns that Krystal was delaying the case and attempting to relitigate issues other than

jurisdiction, the court advised Krystal that testimony at the next hearing would be limited to

jurisdictional issues.

        Ralph received notice of the May 16, 2008, hearing on April 23, 2008. At the hearing, Ralph

appeared pro se, and he filed a motion requesting more time to hire an attorney. The court denied

this request, noting that Ralph had not presented any valid reason for a continuance. Krystal filed

several motions, including a motion to dismiss and/or transfer due to improper venue; a motion for

discovery seeking to depose several individuals; and a motion for DNA testing and fingerprinting,

based on a letter that the adoptive parents allegedly sent to Krystal nearly one year after Baby Girl

was born. (The adoptive parents denied sending the unsigned letter, which offered money to

Krystal.) Krystal argued that the South Carolina Supreme Court lacked jurisdiction and that there

was fraud in the procurement of the judgment in that Krystal's consent was invalid. The adoptive

parents responded with a motion to strike Krystal's motions.

        After the court heard testimony from the adoptive parents, Krystal's mother, and Krystal, the

case was continued to June 9, 2008. On June 9, 2008, Ralph again appeared pro se, although

Krystal's attorneys filed a motion for appointment of counsel for an indigent party. The court denied

this motion for two reasons. First, the attorneys did not have standing to bring a motion on Ralph's

behalf without entering an appearance for him. Second, the hearing did not involve a termination

of parental rights; instead, it was a hearing to contest the registration of a foreign judgment, which



                                                 -9-
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meant he was not entitled to counsel. The court heard more testimony, including that of attorney

Patton, and rendered its decision the next day.

       The court found as follows. First, in registering the foreign judgment, the adoptive parents

substantially complied with the notice requirement in section 305(b) of the UCCJEA (750 ILCS

36/305(b) (West 2004)). Although notice was not sent out by the clerk when the adoptive parents

orally moved to register the foreign judgment, the court ordered that notice be sent to Krystal so that

she would have the opportunity to object. Four days later, Krystal did contest the registration and,

ultimately, she received an evidentiary hearing. In addition, at the April 18, 2008, hearing, the court

ordered that Ralph receive notice of the hearing to contest the registration of the foreign judgment.

Because of the nature of the hearing, Ralph was not entitled to free counsel, so there was no due

process violation.

       The court also noted the ways in which the adoptive parents had failed to comply with the

statute. Under section 305(a)(2), orders sought to be registered need to be certified. While the

March South Carolina Contempt Order had been certified, the January South Carolina Supreme

Court Order had not. Also, contrary to that section, there was no proof that the orders had not been

modified. Finally, the names and addresses of the adoptive parents and Krystal were required by

section 305(a)(3). While these were not jurisdictional or constitutional requirements, they needed

to be satisfied to register the foreign judgment.

       The court reiterated that the hearing did not involve termination of parental rights, it was to

contest the registration of a foreign judgment. The court noted that, under section 305(d),

jurisdiction is a basis for challenging registration, and Krystal had argued that South Carolina lacked

jurisdiction because it was not Baby Girl's home state. On this point, the court agreed with the South



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Carolina Supreme Court that neither Illinois nor South Carolina was Baby Girl's home state. The

next inquiry under the statute was which state had the most significant connection. The court noted

that, when the August South Carolina Order was issued, Baby Girl was living in and had adequate

contacts with South Carolina, allowing that court to assume jurisdiction. The court agreed with the

South Carolina Supreme Court that, after South Carolina made the initial custody determination, it

had exclusive, continuing jurisdiction, and the Illinois court did not have jurisdiction to modify that

order.

         With respect to notice, the trial court found that Ralph had notice of the South Carolina

proceedings, and specifically of the hearing at which the August South Carolina Order was entered.

The court was unclear whether Krystal had notice of that hearing but, even if she did not, it did not

matter, because she had already consented to the adoption. Also, there was no evidence that

Krystal's consent was fraudulently obtained. On the contrary, Krystal had confirmed with A Baby

to Love and attorney Patton that she wished to place Baby Girl up for adoption. The court

determined that the January South Carolina Supreme Court Decision was entitled to full faith and

credit and would be enforced as soon as the adoptive parents complied with the statutory

requirements highlighted above.

         The parties next appeared in court on June 12, 2008. The court confirmed the registration

of the January South Carolina Supreme Court Decision and the March South Carolina Contempt

Order, finding that they were entitled to full faith and credit in Illinois. The adoptive parents did not

seek to enforce the portion of the contempt order requiring Krystal to serve jail time. They requested

enforcement of only the January South Carolina Supreme Court Decision, which ordered Krystal to

return Baby Girl to the adoptive parents.



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       Krystal moved to reconsider and presented an alternative argument. As the court noted,

Krystal's argument all along had been that the June Illinois Guardianship Order was void ab initio,

meaning that there was no legal authority to transfer Baby Girl to South Carolina and that South

Carolina did not have jurisdiction and thus could not have made the initial child custody

determination. Now, Krystal argued that the June Illinois Guardianship Order was the initial child

custody determination, or first in time, which meant that Illinois had continuing and exclusive

jurisdiction. The court stated that Krystal could not have it both ways: arguing on the one hand that

the June Illinois Guardianship Order was void ab initio and invalid for the purpose of transferring

Baby Girl to South Carolina, and arguing on the other hand that it was valid for the purpose of being

the first child custody determination. In any event, the court agreed with the South Carolina

Supreme Court that attorney Patton's guardianship was not a traditional custody order because she

"was not asking for her own custody," the guardianship being an administrative or procedural matter

to help transfer Baby Girl over state lines. Moreover, if the June Illinois Guardianship Order was

void ab initio, then the order did not exist, and it could not be first in time. For both of those

reasons, the court maintained its position that the August South Carolina Order was first in time.

       Also that day, Krystal filed an emergency motion to stay enforcement of the order pending

appeal, pursuant to Supreme Court Rule 305(b) (210 Ill. 2d R. 305(b)). The court noted that there

was a conflict between Rule 305(b) and section 314 of the UCCJEA (750 ILCS 36/314 (West

2004)), which prohibits staying an order pending appeal unless the court enters a temporary

emergency order. Reasoning that the rule trumped the statute, the court stayed enforcement of the

June 12, 2008, order, which ordered Krystal to return Baby Girl to the adoptive parents.




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       On June 17, 2008, Krystal filed a notice of appeal. On June 19, 2008, the adoptive parents

cross-appealed and filed an emergency motion to vacate the stay. This court, with one justice

dissenting, denied the adoptive parents' motion to vacate the stay. We turn now to the issues raised

on appeal.

                                            II. ANALYSIS

       Krystal's three contentions of error are that: (1) Illinois made the initial child custody

determination and retained exclusive and continuing jurisdiction; (2) the trial court registered the

child custody determination of a South Carolina court that lacked jurisdiction; and (3) Ralph did not

receive proper notice of the registration proceedings. The problem with all of these arguments,

however, is that they are premised on the UCCJEA, which does not apply to adoption proceedings.

       Our legislature adopted the UCCJEA on January 1, 2004, thereby replacing the Uniform

Child Custody Jurisdiction Act (750 ILCS 35/1 et seq. (West 2002)) (UCCJA). One major

difference between the UCCJA and the UCCJEA is in their applicability to adoption proceedings.

Although the term "adoption" did not appear in the UCCJA's definitions of child custody

determinations, Illinois courts construed the UCCJA to apply to adoption proceedings. See Noga

v. Noga, 111 Ill. App. 3d 328, 332 (1982) (an adoption proceeding is considered to be a custody

proceeding within the scope of the UCCJA). However, unlike the UCCJA, section 103 of the

UCCJEA expressly states that the "Act does not govern an adoption proceeding." (Emphasis added.)

750 ILCS 36/103 (West 2004); see also People ex rel. A.J.C., 88 P.3d 599, 609 (Colo. 2004) (the

most important and ultimately dispositive provision of the UCCJEA for our purposes is that the

UCCJEA does not govern an adoption proceeding).2 While the issue in this case is whether Illinois



       2
           The UCCJEA's exclusion of adoptions creates an obvious gap in the jurisdictional legislation

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should give full faith and credit to a South Carolina Supreme Court decision, that decision is the

direct result of the adoption action that the adoptive parents filed in the South Carolina family court.

Therefore, the UCCJEA does not apply. Unfortunately, it appears that neither the parties nor the trial

court were aware of this exclusion in the UCCJEA, as much time and energy were devoted to

arguments based on that statute.        In any event, the South Carolina Supreme Court correctly based

its decision on a federal statute, the PKPA. Congress enacted the PKPA in 1980 to remedy the

weaknesses of the UCCJA, and it is a uniform federal statute governing child custody jurisdiction

disputes. In re Marriage of Michalik, 172 Wis. 2d 640, 648-49, 494 N.W.2d 391, 394 (1993). In

addition to kidnapping and child abduction, the PKPA applies generally to interstate custody disputes

(In re Marriage of Wiseman, 316 Ill. App. 3d 631, 638 (2000)) and specifically to adoptions. See

People ex rel. A.J.C., 88 P.3d at 611 (because the PKPA does not specifically exclude adoptions, it

is assumed that it applies to adoption proceedings); see also In re the Custody of K.R., 897 P.2d 896,

899-900 (Colo. App. 1995) (the majority of jurisdictions that have addressed the issue have

concluded that the PKPA applies to adoption proceedings). As noted by the South Carolina Supreme

Court, the primary purpose of the PKPA is to promote cooperation between state courts regarding

custody determinations; to facilitate the enforcement of custody and visitation decrees of sister states;

to discourage continuing interstate controversies over child custody, in the interest of a more stable

home environment and of secure family relationships for the child; and to avoid jurisdictional

competition and conflict between state courts in matters of child custody that have in the past




governing interstate adoptions. To fill this void, the drafters of the UCCJEA intended that state

legislatures also adopt the Uniform Adoption Act. People ex rel. A.J.C., 88 P.3d at 609.

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resulted in shifting children from state to state with harmful effects on their well-being. 28 U.S.C.

§1738A (1982).

       While Krystal argues that the federal PKPA is irrelevant, and that we should not give the

South Carolina Supreme Court Decision deference because it relied on that federal statute, this view

is plainly wrong. It is clear that Illinois, South Carolina, and other states apply the PKPA (as well

as their versions of the UCCJA) to interstate custody disputes. See In re Marriage of Kneitz, 341

Ill. App. 3d 299, 305 (2003) (under the PKPA and the UCCJA, Illinois rendered the initial custody

decision and continued to have exclusive jurisdiction); Arnal v. Fraser, 371 S.C. 512, 518, 641

S.E.2d 419, 422 (2007) (both the PKPA and the UCCJA govern when multiple states claim

jurisdiction over a child custody dispute); see also Clay v. Burckle, 369 S.C. 651, 655, 633 S.E.2d

173, 176 (App. 2006) (the PKPA and the UCCJA govern the subject matter jurisdiction of state

courts to rule in interstate custody disputes). Moreover, although Krystal contends that the Illinois

trial court did not rely on the PKPA in reaching its decision, we may affirm on any basis in the

record. See Burton v. Airborne Express, Inc., 367 Ill. App. 3d 1026, 1033 (2006) (the trial court may

be affirmed on any basis in the record, without regard to whether the trial court relied upon that

ground or whether the trial court's rationale was correct).

       The effect of the January South Carolina Supreme Court Decision was to reinstate the August

South Carolina Order awarding custody of Baby Girl to the adoptive parents.3 If the August South

Carolina Order was consistent with the provisions of the PKPA, Illinois must enforce it. People ex



       3
           When the August South Carolina Order was entered, in 2006, South Carolina was governed

by the UCCJA. Eventually, on June 8, 2007, South Carolina enacted the UCCJEA. For the

proceedings relevant to this appeal, however, the UCCJA was in effect.

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rel. A.J.C., 88 P.3d at 611 (the PKPA imposes a duty on a state to enforce a child custody

determination entered by a court of a sister state if the determination is consistent with the federal

statute's provisions). Once a state exercises jurisdiction consistently with the PKPA, no other state

may concurrently exercise jurisdiction over the custody dispute, even if it would have been

empowered to take jurisdiction in the first instance, and all states must accord full faith and credit

to the first state's ensuing custody decree. In re Marriage of Michalik, 172 Wis. 2d at 649-50, 494

N.W.2d at 394-95. The South Carolina Supreme Court found that, under both the PKPA and the

UCCJA, South Carolina had jurisdiction when it issued the August South Carolina Order. In

reviewing the factual history of this case, we agree. As we discuss, the issue turns on whether

Illinois or South Carolina issued the first custody determination.

       Three days after Baby Girl was born, attorney Patton and Krystal appeared in court in Illinois.

Attorney Patton was appointed guardian of Baby Girl, and Krystal signed a consent to guardianship,

a relinquishment of parental rights, a consent to jurisdiction under South Carolina law, an affidavit

of identification, and a consent to adoption. According to the court, there was no evidence that

Krystal's consent was fraudulently obtained. The next day, the adoptive parents returned to South

Carolina with Baby Girl and filed an action for adoption there.

       Approximately one month later, the adoptive parents filed an amended adoption petition after

learning of Ralph's identity. Ralph was provided notice of an emergency hearing on the matter, but

his counsel arrived too late to participate. On August 2, 2006, the court issued an order granting

temporary legal custody of Baby Girl to the adoptive parents, vesting jurisdiction in South Carolina,

and directing Ralph to take a paternity test.




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        In the meantime, Ralph had filed a petition in Illinois, requesting that the court void ab initio

the June Illinois Guardianship Order, and Krystal had filed a petition in Illinois to vacate her consent.

On September 8, 2006, the Illinois court vacated ab initio the June Illinois Guardianship Order.

        As the South Carolina Supreme Court recognized, it is necessary to determine which state

issued the first custody determination. After looking at the June Illinois Guardianship Order, the

August South Carolina Order, and the September Illinois Order, the court determined that the August

South Carolina Order was first in time. In reaching this conclusion, it rejected the notion that the

June Illinois Guardianship Order, entered at what was undisputedly the first court proceeding,

constituted a "custody determination" within the meaning of the PKPA.

        At oral arguments, we instructed the parties to argue whether the June Illinois Guardianship

Order constituted a "custody determination" under the PKPA. In analyzing this issue, we begin by

setting forth the relevant terms under the federal statute.           The PKPA defines a "custody

determination" as a "judgment, decree, or other order of a court providing for the custody of a child,

and includes permanent and temporary orders, and initial orders and modifications." 28 U.S.C.

§1738A(b)(3) (1982). It then defines "physical custody" as "actual possession and control of a

child." 28 U.S.C. §1738A(b)(7) (1982). Finally, a "person acting as a parent" under the PKPA

means a "person, other than a parent, who has physical custody of a child and who has either been

awarded custody by a court or claims a right to custody." 28 U.S.C. §1738A(b)(6) (1982).

        According to the South Carolina Supreme Court, the June Illinois Guardianship Order was

not a "custody determination" because there were no pleadings filed in connection with the

proceeding; 4 attorney Patton never had physical custody of Baby Girl; she was not named guardian



        4
            It is unclear whether the South Carolina Supreme Court considered attorney Patton's petition

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for the purpose of acting as a parent; she never claimed a right to Baby Girl's custody; and Baby Girl

never lived with her. Rather, attorney Patton was named a temporary guardian for the limited

purpose of facilitating both the interstate transport of Baby Girl from Illinois to South Carolina and

the subsequent South Carolina adoption. In contrast to the limited purpose of the guardianship in

this case, the court reasoned that the PKPA clearly envisions physical custody determinations.



       To support her position that the June Illinois Guardianship Order constituted a custody

determination, Krystal points to the "Letters of Office" in the record stating that attorney Patton was

"authorized to have under the direction of the court the custody of the minor and to do all acts

required of her by law." However, we agree with the South Carolina Supreme Court and the Illinois

trial court that the guardianship in this case is distinct from a guardianship that awards custody. We

note that a "guardian may be appointed either for all purposes or for specific purposes." (Emphasis

added.) Black's Law Dictionary 712 (7th ed. 1999). Here, the guardianship had the specific and

limited purpose of facilitating the transfer of the child; it was not for the purpose of awarding

physical custody. The Illinois trial court specifically found that attorney Patton took on this role as

an "administrative matter to help transfer," as opposed to seeking custody of Baby Girl. The Illinois

trial court stated that attorney Patton "was not seeking custody, was not seeking any parental rights,

was not seeking control over upbringing, leave to do any medical treatment, leave to enroll the

child," or "any of the things that would normally be" done when seeking custody of a child.

       While it is true that the "Letters of Office" gave attorney Patton "custody" of Baby Girl, the

guardianship order must be viewed contextually given the purpose of the proceeding. As stated, the



for guardianship.

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purpose of the proceeding was to file the necessary paperwork in Illinois to allow the adoptive

parents to transfer Baby Girl and to file adoption proceedings in South Carolina. In serving as the

child's guardian, attorney Patton was not a "person acting as a parent" or a person seeking "physical

custody" as defined by the PKPA. Thus, the limited guardianship in this case did not constitute a

"custody determination" under the PKPA. It seems nonsensical that the very proceeding intended

to elicit Krystal's consent to the adoption and give South Carolina jurisdiction be interpreted as the

initial "custody determination" entitling Illinois to continuing jurisdiction. See 28 U.S.C. §1738A(d)

(1982) (providing continuing jurisdiction to the state that has made a child custody determination

consistent with the provisions of the PKPA).

       Krystal cites no authority for the proposition that a guardian who was appointed merely to

facilitate the transfer of a child, and who never retained physical custody of the child, amounts to a

custody determination as contemplated by the PKPA. In fact, this case is easily distinguished from

other cases in which the guardianship conferred physical custody of the child to the named guardian.

See Murphy v. Danforth, 323 Ark. 482, 488, 915 S.W.2d 697, 700-01 (1996) (where the case

involved a petition for guardianship, rather than the more usual chancery court determination of child

custody, the PKPA was applicable because the temporary appointment was to be made permanent,

thus having the effect of permanently determining custody and interfering with other State's custody

orders); see also Ray v. Ray, 494 So. 2d 634, 637 (Ala. Civ. App.1986) (guardianship appointment

of paternal aunt who had physical custody of the child for two years was a custody determination

within the meaning of the PKPA).

       Therefore, the first custody determination under the PKPA is the August South Carolina

Order giving temporary legal custody to the adoptive parents. After South Carolina made the initial



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custody determination, it follows that Illinois did not have jurisdiction to issue the September Illinois

Order that voided the June Illinois Guardianship Order. A state shall not modify another state's

custody determination made consistently with the PKPA. 28 U.S.C. §1738A(a) (1982). Thus, the

South Carolina Supreme Court correctly determined that the September Illinois Order violated the

PKPA.

        Moreover, even if we were to hold otherwise, our result would not change. If the June

Illinois Guardianship Order was a custody determination, and thus first in time, South Carolina was

still entitled to modify the Illinois order under the PKPA. The PKPA allows a court to modify a

custody determination of another state if that court has jurisdiction and the other court no longer has

jurisdiction. See 28 U.S.C. §1738A(f) (1982); see also In re Marriage of Kneitz, 341 Ill. App. 3d

at 305 (under the PKPA, a State court may modify the custody decision of another state court only

if the second state court has jurisdiction and the first State court no longer has jurisdiction). In this

case, both of those requirements were satisfied. First, while Krystal argues that South Carolina

lacked jurisdiction to enter the August South Carolina Order, we reject that argument, as we discuss

below. Second, Illinois no longer had jurisdiction based on Krystal's consent to South Carolina

jurisdiction. It is undisputed that, at the June Illinois guardianship proceeding, Krystal signed a

consent to jurisdiction under South Carolina law in which she acknowledged that the adoptive

parents would be filing a South Carolina petition to adopt Baby Girl. Thus, even if we were to

accept Krystal's argument that the June Illinois Guardianship Order was the first custody

determination, the effect of that proceeding was not to give Illinois the exclusive right to proceed.

Rather, it was to give South Carolina jurisdiction to proceed with the adoption.




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       As stated, Krystal's next argument is that South Carolina lacked jurisdiction to enter the

August South Carolina Order, because Baby Girl did not have a significant connection with that

state. Because Baby Girl was born in Illinois, but within four days of birth was transported to South

Carolina, the South Carolina Supreme Court found that Baby Girl had no home state. The Illinois

trial court agreed. When a child has no home state, the PKPA and the UCCJA in South Carolina

allow jurisdiction if it is in the best interest of the child. See 28 U.S.C. §1738A(c)(2)(B) (1982) (a

court has jurisdiction if it is in the best interest of the child that a court of such state assume

jurisdiction because the child and his parents have a significant connection with such state other than

mere physical presence and if substantial evidence is available concerning the child's present or

future care, protection, training, and personal relationships); S.C. Code Ann. §20--7--788(a)(2) (West

1976) (same).

       Again, we agree with the South Carolina Supreme Court that Baby Girl had a significant

connection with South Carolina. When the August South Carolina Order was issued, Baby Girl had

been living with the adoptive parents since she was four days old, and the adoptive parents had filed

an adoption action in the South Carolina family court. It was in Baby Girl's best interest to have

South Carolina assume jurisdiction because South Carolina was the only state in which there was

evidence concerning her care and personal relationships. Under both the PKPA and South Carolina's

UCCJA, therefore, South Carolina had jurisdiction when it entered the August South Carolina Order.

       Krystal's final arguments regarding improper notice of the registration of the foreign custody

order fail for two reasons. First, they are premised on the UCCJEA, which we have already stated

is inapplicable to this case. Second, they seek redress on behalf of Ralph, who is not a party to this

appeal. See South Park Commissioners v. Livingston, 344 Ill. 368, 372 (1931) (a party in a

reviewing court will not be permitted to take advantage of an error that does not injuriously affect

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himself or his interests). Although it is not necessary to consider Krystal's arguments regarding

notice, we do note that the trial court found that Ralph had notice of the South Carolina proceedings,

specifically the hearing at which the August South Carolina Order was entered.

       As a final matter, the adoptive parents cross-appealed regarding the trial court's decision to

stay enforcement of its order pending appeal. According to the adoptive parents, the trial court's

decision to stay the order pursuant to Supreme Court Rule 305(b) violated section 314 of the

UCCJEA (750 ILCS 36/314 (West 2004)). We do not consider this issue, because the UCCJEA

does not apply in this case and because the issue is rendered moot by the resolution of this appeal.

See Chicorp, Inc. v. Bower, 336 Ill. App. 3d 132, 137 (2002) (an issue is moot if there remains no

live controversy between the parties or the resolution of the issue will have no practical effect on the

existing controversy).

                                         III. CONCLUSION

       For the reasons stated, the January South Carolina Supreme Court Decision and the March

South Carolina Contempt Order are entitled to full faith and credit in Illinois. Therefore, we affirm

the judgment of the Boone County circuit court and remand the cause with directions to lift the stay

and set a date for the expeditious turnover of Baby Girl to the adoptive parents.

       Affirmed and remanded.

       HUTCHINSON and BURKE, JJ., concur.




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