THIRD DI VISI ON August 25, 2010

1-10-1084

In re MARRIAGE OF ) APPEAL FROM THE VIKRAM AKUL

A, ) CIRCUIT COURT OF ) COOK COUNTY Petitioner -Appella nt, ) ) and ) No. 01 D 15700 ) MALI NI AKUL

A, n/k/a Malini Byanna , ) HON ORA BLE ) PAMELA E. L OZA, Respondent-Appellee. ) JUDGE PRESIDING.

JUSTICE STEELE deliver

ed the opi nion of the

court: Following a hearing in the circ uit court of Cook County, the trial court g ranted summary judgment to respondent Malini Akula on parts of a petition for declara tory and injunctive re lief agains t her ex-h

usband Vi

kram Aku

la. Subseq

uently , pursuan

t to Il linois Supr

eme Court

Rule 308 (155 Ill. 2d R. 308), the circuit court ce rtified the question of whether I llinois has exclusive and continuing jurisdiction over child custody determinations regarding their son, T.B .A., under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (750 I LCS 36/101 et seq . (West 2006)) for appeal to this court. For the following re asons, we answer the certified question in the negative. BACKGROUND The record discloses the following facts. Vikram and Malini were married in I llinois on December 18, 1999. Vikram is the chairman and founde r of an Indian microfina

nce company . Malini is an attorney. Their son, T.B .A., was born on February 16, 2001.1-10-1084

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On December 4, 2002, the circuit court of Cook County entered a judgment of dissolution of marriage that awarde d Malini sole custody of T.B.A . Subsequently, issues arose be tween Vikram and Malini regarding the r aising of T.B.A. On August 19, 2005, the circ uit court entered an agr eed par enting order re solving t

hose issue s and ack

nowledging that

Malini con

tinued to have sole custody of

T.B.A. On December 12, 2008, Malini filed a petition to modify child support, alleging increases in the cost of raising T.B.A. and larg e increases in Vikram's income. On De cember 16, 2008, Malini filed a petition for an adjudication of indirect civil contempt against Vikra m, regarding the production of his tax returns. On February 23, 2009, Vikram filed a response to the petition. As of this date, the circuit court has not ruled on Malini's petition, but it has entered an a greed order increasing child support without prejudice until the petition to modify child support was resolved. The petitions were set for a status hearing on October 13, 2009. On June 18, 2009, the circuit court entered an agre ed order memorializing plans for Vikram, Malini, and T.B.A. to travel to I ndia. After spending some time in I ndia, Vikram and Malini engaged in extensive negotiations contemplating Malini and T.B.A. stay

ing in Hyde

rabad, India. On August 13, 2009, T.B .A. was enrolled in the Inter national School of Hyder abad. T.B.A. c urrently attends that school . On Aug ust 17, 200 9, Malini e

ntered i nto a four -y ear lea se for a home in India from Vikr am's parent; the lease could be terminate d on three months' notice and good cause. On September 5, 2009, Malini obtained a r esidential permit from the Indian government, extending through April 22, 2013.1-10-1084

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Malini and

T.B.A. r eturned to the hous e in Hoff

man Estat es, I llinois, for a wee

k in Septembe r 2009. Ma

lini conte nds that sh e was mar

keting t he house in Hoffma

n Estates because Vikram agreed to purchase a house in Schaumburg, I llinois, for Malini and T.B.A.. The closing on the hou se in Scha

umburg was set for Octobe r 16, 2009 , but did not

occur. T he purchase contr act for the S chaum burg pr opert y listed an add ress f or Vik ram in Palat ine, Ill inoi s (Mal ini's December 12, 2008, petition alleged that Vikram re cently purcha sed a house in Palatine). On October 7, 2009, Malini returned to Chicago to underg o back surgery and attend a continuing legal education confer ence. T.B.A. remained in school in I ndia. Later on October

7, 2009, Vikram and Malini had an argument conce rning T.B.A. On October 7 and 8, 2009, Malini sent several e-mail messages to Vikram, stating that she wanted T.B.A. returned to Illinois and that she considered the house in Hoffman Estates to be her a nd T.B.A.'s permanent residenc e. On Octobe

r 12, 2009 , Vikram, without not ice to Ma lini, file d two petit

ions in the

family court in Hyder

abad, India. The orig

inal petition (OP) sought sole custody of T.B.A. The second petition was an interlocutory a pplication (IA) seeking

interim injunctive relief. Later on Oc tober 12, 2009, the Indian family court entered an ex parte interim order, restraining any one from disturbing the custody of

T.B.A. in any

manner, pending a disposition of the OP. Malini was later served with proces s in Indi a with the Indi an fami ly court's order, as wel l as Vi kram's petitions. On October 13, 2009, Malini and Vikram's counsel appea red in circuit court for the previously set status hear ing on Malini's petition to modify child support. The issue of the Indian famil y court or der was first raise d in t he circ uit co urt du ring th is hea ring.1-10-1084

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On October 14, 2009, Malini filed a petition for an adjudication of indirect civil contempt in the circuit court. On October 15, 2009, Malini filed an emerg ency pe tition for a temporary restraining order, preliminary injunction and other relief, as well as a motion for the return of T.B.A. a nd an adju

dication of indire ct civil c ontempt in t he circ uit court. Malini soug

ht to enjoin Vikram from obtaining or enforcing any order

from a court other than the circuit court. On October 15, 2009, the circuit court entered an or der stating: T.B.A. would not be withdrawn from school in Hydera

bad, India and the circ

uit court would not be modifying the custody of T.B .A. or placing phy sical possession of T.B.A. with Malini. However, the circuit court orde red that Malini cou

ld be with T .B.A. th

ree hour s daily after sc hool and h ave unsu

pervise d visitation with T.B.A. overnig

ht on Satur

day s. On Octobe

r 20, 2009 , Vikram f

iled an e merge ncy motion to pa

rtially vacate the circ uit court's order of October 15, 2009, a nd emergency

petitions for a rule to show cause and adjudications of indirect civil and criminal contempt. Following a hea ring on the motions, the circuit court entered an order providing that Malini's visitation with T.B.A. would be supervised. On October 21, 2009, Malini filed a notice of appeal to this court from the orde rs entered on Octob er 15 an d 20, 2 009. O n Nove mber 3 , 2009 , thi s cour t ente red an o rder co ntin uing M alini 's appeal pending a circuit court ruling then expected on November 23, 2009, and directing the parties to file a status report no later than November 30, 2009. The parties filed status reports on November 30, 2009, December 18, 2009, and Fe bruary 1, 2010. On Octobe

r 26, 2009 , Malini fi led two af fidavits i n the I ndian fa mily court in r esponse t o Vikram's petitions there. On October 31, 2009, Vikram and Ma lini appeared with T.B.A. in the1-10-1084

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Indian family

court. The Indian judg e conducted an in camera interview with T.B.A. and spoke to counse l for both

sides. The

India n family court en tered a n agre ed order

concer ning ch ild visitation , providin

g in par t that neit her side could cit e the ord er as pr eceden t. On November 2, 2009, Vikram filed an emerg ency pe tition in the circuit court for a declaratory

judgment and a motion to dismiss Malini's emergency petition. On November 17, 2009, Malini filed her response to Vikram's petition. On November 3, 2009, the circuit court's appointed c hild representative filed a motion for presentment of T.B.A. in I llinois. On November 10, 2009, both parties responded to the repres entat ive's m otio n. On N ovemb er 19, 2009, the ci rcuit court granted the rep resent ative 's motion. On November 23, 2009, Vikram filed an emerge ncy motion to reconsider the order

re qu ir in g t he pr es en tm en t o f T .B .A ., wh ic h t he ci rc ui t c ou rt de ni ed th e f ol lo wi ng da y. On Novemb er 13, 20 09, the ci rcuit co urt attem pted to hol d a telephone con ferenc e with the Indian family

court in Hyder

abad, but there was no meaningful communication betwe en the judges. The circ

uit court r equeste d another

telephone confe

rence, but was un success ful in completing one. Vikram's counsel claimed ther e were ethical issues rega rding the parties' I

ndian counsel being present for the confe rence. On November 19, 2009, Vikram and Malini appeared in the I ndian family court for

a hearing on Vikram's I

A. On November 23, 2009, Malini moved for summary judgment in the circuit court on Vikram's November 2, 2009, petition. Malini argued the c ircuit court had continuing exclusive jurisdiction over custody of T.B .A. under the UCCJEA (750 IL CS 36/101 et seq . (West 2006)).1-10-1084

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On November 24, 2009, the Indian f amily court issued a 62-pa ge order finding that Vikram, Malini and T.B.A. "are now ordina rily residing in Hy

derabad which is within the territorial jurisdiction of the Family court, Hyder

abad." The I

ndian family court orde

r converted the interim order of October 12, 2009, into an injunction enjoining Malini or any one else from disturbing

the custo dy o f T.B.A . The I ndian fa mily court al so order

ed that T. B.A., wh

o was in the equivalent of the third grade, may not be removed from school in Hy derabad until he completes at least the fifth grade. On Dece mber 2, 20 09, Vikra

m moved for summary

judgmen t from the circuit c ourt or, i

n the alternative, registration of the I ndian court orders and the dismissal of Malini's emerg ency petition. Vikram argued the I ndian family court orde

r was dispositive of the jurisdictional issue. On December 14, 2009, Vikram filed two additional petitions in the I ndian family court. The first petition concerned allegedly inappropriate communications between Malini and T.B.A. The second petition sought to enjoin Malini from filing or pursuing any child custody or visitation petitions in any court other than the I ndian family court in Hy

derabad. On December 15, 2009, Malini filed a petition for declara tory and injunctive re lief in the circuit court. Malini sought a declaration that the I ndian family court did not act in substantial conformity with the UCCJEA and failed to comply with the jurisdictional standards of the UCCJEA, and its proceedings violated fundamental human rights under the UCCJEA. Malini also soug ht to enjoin

Vikram f rom proc eeding

in the I ndian cou rts. On December 22, 2009, Vikram filed an amende d petition for declaratory relief or registration of the I

ndian family court orde

rs and the dismissal of Malini's emergency petition.1-10-1084

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On December 29, 2009, Malini filed three petitions in the High Court of Adjudica ture for the State of Andhra Pradesh (the High Court), which ha s jurisdiction over the orders entered by the Indian family

court in Hyder

abad. The same day , the High Court staye d all further procee dings at

the trial court le vel. On January 5, 2010, Vikram filed a petition for leave to appeal and an application for a stay of the Hig

h Court's order in the India n Supreme Court. The Indian Supreme Court g ranted a stay of the Hig

h Court' s habeas corpus order. M alini also filed a sp ecial a

pplication for lea

ve to appeal t he family court' s Novembe

r 24, 2009 , order d

irectly to the I ndian Supr

eme Court

. On Febr uary 23, 2010, V

ikram move d for summa

ry judgmen t on his ame

nded peti tion in the circuit court. On February 24, 2010, Malini moved for summary judg ment on her petition for declar atory and i njun ctive relie f. On M arch 2, 2010, both parti es fil ed resp onses to each other 's motions. On March 30, 2010, the circuit court entered an or der granting Malini summary judgment on the issue of jurisdiction, concluding that: (1) I llinois was the residence of Malini and T.B.A.; (2) Illinois has continuing, exclusive jurisdiction over the parties a nd subject matter under the UCCJEA ; and (3) the Indian fa mily court in Hy

derabad failed to find that Malini and T.B.A. no longer resided in Ill inois. The

circuit c ourt also

ruled tha t the proc eeding s in the I

ndian fa mily court in Hyder

abad were not being conducted in substantial conf ormity with the jurisdictional standar ds of the U CCJEA, rend

ering t he I ndian cou rt's or ders unr ecogn izable and unenforceabl e under section 105 of the UCCJEA (750 IL CS 36/105 (West 2006)). The circuit court denied Malini's motion for a declaration that the proceeding s in the Indian family court in Hyder

abad1-10-1084

-8-

violate f undament al princ iples of h

uman rig hts under section 1 05(c) of

the UCCJEA ( 750 I LCS 36/105(c) (West 2006)). The circuit court further de nied Vikram's amended petition for declar atory reli ef or re gistr ation of the Indian co urt or ders an d the d ismi ssal o f Mali ni's emergency

petition. On April 5, 2010, Vikram moved for a finding of no just reason to delay enforcement or appeal o f the Mar

ch 30, 201 0, order , pursuan t to Suprem e Court Rul e 304(a) (210 I ll. 2d R. 304(a)) , or for a

certifi cation of

the quest ion of the propriety o f the ord

er pursu ant to Supr

eme Court Rule 308 (155 Ill. 2d R. 308). On April 14, 2010, the circuit court g ranted the motion, certify ing the f ollowing question f

or appea l to this cou

rt: "Did the Circuit Court properly rule that Illinois has exclusive and continuing jurisdiction because the India

n family court did not make a judicial determination in substantial

co nf or mit y wit h su bse ct ion 202 (a )( 2) of the UCC JEA ?" On April 23, 2010, Vikram filed his Rule 308 petition for leave to appeal and a motion for a stay

. On April 30, 2010, this court granted Vikram's motion to stay proceedings in the circuit court. On May 13, 2010, this court g ranted Vikram's petition for leave to appea l and placed the appeal

on an ac celera

ted docke t. DISCUSSION The circuit court's certified question ra ises the sole issue for review in this interlocutory appeal. To qualif

y f or an inte rlocutor y a ppeal und er Supre me Court Ru

le 308 (15 5 Ill. 2d R. 308), a certified question must present an issue of law that is reviewa ble de novo

. Solon v. Midwe st Med ical R ecords Ass'n , 236 Ill. 2d 433, 439, 925 N.E.2d 1113, 1117 (2010). The1-10-1084

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certified question here is one of statutory construction, which is a question of law subject to de

novo review. Solon , 236 Ill. 2d at 439, 925 N.E.2d at 1117. Under the UCCJEA, a child custody deter mination made in a foreign country under factua l circums tances i

n substant

ial conf ormity with the ju

risdictional stand

ards of t his Act mus t be recognized and enforce d, unless the child custody law of the foreign country

violates fundame ntal princ iples of h

uman rig hts. 750 I LCS 36/ 105 (West 2 006). I n this cas e, the ci

rcuit court determined that Indian c hild custody law did not violate fundamental princ iples of human rights; that determination is not before this court in this appeal. The sole issue on appeal is the circuit c ourt's i

nterpre tation of s ection 20 2(a)(2 ) of the U CCJEA, which provides in relev ant part : "(a) Except as otherwise provided in Section 204, a court of this State which ha s made a child-custody

determination consistent with Section 201 or 203 has exclusive, continuin g jurisd iction ove r the det erminati on until:

*** (2) a court of this State or a court of another state de termines that the child, the child's pare

nts, and a ny p erson ac

ting as a parent d o not pres ently

reside in this State." 750 IL CS 36/202(a)(2) (West 2006). Our primary obje ctive in interpreting a statute is to ascertain and give effect to the intent of the legislature. Solon , 236 Ill. 2d at 440, 925 N.E.2d at 1117. The most reliable indicator of such intent is the language of the statute, which is to be g iven its plain and ordinary mea ning. Solon , 236 Ill. 2d at 440, 925 N.E.2d at 1117. I n determining the plain meaning of the statute, we consider the statute it its entirety , the subject it addresses, and the apparent intent of the1-10-1084

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legislature in enacting it. Solon , 236 Ill. 2d at 440, 925 N.E.2d at 1117. When the statutory langua ge is cl ear and

unambig uous, it mus t be appli ed as wr itten and without re sort to extr

insic aids of statutory construction. Solon , 236 Ill. 2d at 440, 925 N.E.2d at 1117. "Howe ver, if a statute is capable of being understood by reasonably

well-informed persons in two or more different ways, the st atute will be deemed ambi guous." Solon , 236 Ill. 2d at 440, 925 N.E.2d at 1117. If the statute is ambiguous, the cour t may consider e

xtrinsic aids of construction in order to discern the legislative intent. Solon , 236 Ill. 2d at 440, 925 N.E.2d at 1117. In thi s case, t

he issue i s whethe

r the I ndian fa mily court' s order s

ubstantia lly c onforms to the UCCJEA. The relevant paragraph of the I ndian family court' s November 24, 2009, order provides : "As already mentioned supra, the residence and stay of the petitioner and respondent and their plan for future stay for a period of four y

ears, i.e., up to the year 2013 it ca n be safe ly h eld that they

are now ordinar ily r esiding in Hy deraba d which is within the territorial jurisdiction of the Family c ourt, Hydera bad. On this ground it can be said that both petitioner and respondent as well as the minor child are residing within the jurisdiction of this Court with the consent of both the petitioner and respondent, that too, in respect of the education of their minor son Master [T.B.A.] Thus, the fac ts of the above decision are squarely applicable to the facts of the case on hand." The circ uit court, while acknowledg ing ther e is no re quireme

nt that the India n court ma

ke its finding in the exact phrasin

g of sec tion 202(a

)(2) of the UCCJEA ( 750 I LCS 36/ 202(a)(2) (West 2006)), c oncluded

that the f inding that the pa

rties ar e "now ordinaril

y r esiding " in Hy

deraba d did1-10-1084

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not substa

ntially conform to finding

that the c hild, the c hild's pa rents, a nd any person a cting a s a parent " do not pre sently

reside" in Ill inois. In reaching

this conclusion, the circuit court relied on a definition of "residenc e" taken from Miller v. Police Board , 38 I ll. App. 3d 894, 898, 3 49 N.E.2d

544, 548 ( 1976), a s applied in Connelly v. Gibbs , 112 Ill. App. 3d 257, 262-64, 445 N.E.2d 477, 480-82 (1983), a c ase holding that parents were residents of Chicag o, rather than Skokie, for purposes of their child's school registration. However, in Fagiano v. Police Board , 98 Ill. 2d 277, 456 N.E.2d 27 (1983), the Illinois Supreme Court discussed Miller and the de finition of

"resid ence" in gene

ral: "It is true, as was pointed out in Reese & Green, That Elusive Word, 'Residence' , 6 Vand. L. Rev. 561 (1953), which the pla intiffs have cited, that 'residence' as a legal term, while commonly used in statutes, does not, unlike ' domicile,' have a fixed and constant meaning. The authors show that it is a variable term, the me aning of which courts mu st ascer

tain from the purpo ses of the

statute or ordinanc e, althou

gh in most cases it has been construed to be sy nonymous with domicile (6 Vand. L . Rev. 561, 561-62.)The authors provi de example s of the te rm's be ing inte

rprete d differ

ently in various con texts, s uch as in st atutes concer ning divorce j urisdicti on and incom e taxatio n." Fagiano , 98 Ill. 2d at 282-83, 456 N.E.2d at 29. The residence requirement in Fagiano was identical to that at issue in Miller

. Fagiano , 98 Ill. 2d at 285, 456 N.E.2d at 30. The Fagiano court ruled that in the context there, "residence" was intended t o be synonymous with "domi cile." Fagiano , 98 Ill. 2d at 283, 456 N.E.2d at 29.1-10-1084

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Given that the concept of residence does not have a fixed and constant meaning, the question i s whethe

r the cir cuit cour t corre ctly

used a de finition sy

nony mous with " domicile" in the context of jurisdiction under the UCCJEA. The official comment to section 202 of the UCCJEA state s in part:

"2. Continuing jurisdiction is lost when the child, the child's parents, and any perso n acti ng as a p arent n o lon ger resi de in t he ori ginal d ecree S tate. The ex act la nguage of subparagraph (a)(2) was the subject of considerable debate. U ltimately the Conferenc e settled on the phrase that 'a court of this State or a cour t of another State determines that the child , the chil d's par

ents, and any person a cting a s a pare

nt do not pr

esently reside in this State' to determine when the exclusive, continuing jurisdiction of a State ended. The phrase is meant to be identical in meaning to the langua ge of the PKPA [the federal Parental Kidnapping Prevention Act] which provides that full faith and cre dit is to be given to custody de

terminations made by a State in the e xercise of its continuing jurisdiction when that 'State remains the residence of.... ' The phrase is also the equivalent of the language ' continues to reside' which occurs in UI FSA [Uniform Interstate Family

Support Act] § 205(a)(1) to determine the exclusive, continuing jurisdiction of the State that made a support order. The phrase 'remains the residence of' in the PKPA has been the subject of conflicting case law . It is the intention of this Act that par agrap h (a)(2 ) of this se ction mea ns that the

named pe

rsons no longer c ontinue to actually live within the State. Thus, unless a modifica tion proceeding has been1-10-1084

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commenc ed, when

the child , the par

ents, and all persons acting

as pare nts physically leave th e State to

live else where, the exclus ive, cont inuing ju risdiction cease s. The phrase 'do not presently reside' is not used in the sense of a technical domicile. The fact that the origina l determi nation Sta

te still co nsiders one pare nt a domiciliary does not preve nt it from losing exclusive, continuing jurisdiction after the child, the parents, and all persons acting as par ents have moved from the State. If th e child, t

he pare nts, and a ll person s acting

as pare nts have a

ll left the State which made the custody

determination prior to the commencement of the modification proceeding, considerations of waste of resources dictate that a court in State B, as we ll as a court in State A, can decide that State A has lost exclusive, continuing jurisdiction. The continuing jurisdiction provisions of this section are narrower than the compara ble provi sions of th e PKPA. Tha t statute a uthorizes c ontinuing

jurisdict ion so long as a ny ' contesta

nt' remains in the

origina l decre e State a

nd that Sta

te contin ues to have jurisd iction un der its own l aw. This Act eliminat es the contes tant classi fication." Uniform Child Custody Jurisdiction and Enforcement Act, 9 U.L .A. §202, Comment, at 674-75 (1999). Thus, it is c lear tha

t the dra fters of

the UCCJEA di d not inten d that "r esidenc e" be e quated with "domicile" in this context. See, e.g. , In re Marriag e of Nur

ie , 176 Cal. App. 4th 478, 500 n.23, 98 Cal. Rptr. 3d 200, 219 n.23 (2009). The circuit court reasoned that its conclusion was consistent with the holding in Nurie , where the California Court of Appeal stated that "a judicial determination that all parties no1-10-1084

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longer reside in the decree state is required to divest that state of continuing, exclusive jurisdiction," and that it is only "whe n a 'court *** determines' that all par ties have ceased residing ther e that juri sdiction is lost. " Nurie , 176 Cal. App. 4th at 500-01, 98 Cal. Rptr. 3d at 220, quoting Cal. Fam. Code §3422(a)(2). These a spects of Nuriemerely re state the requirements of section 202(a)(2) of the UCCJEA, but offer no additional g uidance on the issue of wheth er the I

ndian fa mily court' s finding

substantia

lly c onforme d to those r

equirem ents. Malini re lies on str

onger langua ge from Nuriethat was n

ot adopte d by

the circ uit court: "It is well established that a par ty may have more than one residence. ( In re Marriag e of Amezq

uita & Ar chuleta , [101 Cal. App. 4th 1415, 1419, 124 Cal. Rptr. 2d 887, 889 ( 2002)].) T

hus, Husba

nd could h ave 'presently

resided ' in Pakis tan for s ome time while still maintaining a 'present residence' in California. Under section 3422, subdivision (a)(2), the decree state retains jurisdiction until all residential ties of the parties are abandoned. While a parent' s bare intent to return to the decree state may not be sufficient for retention of jurisdiction if he has otherwise moved f rom the state, we hold that if he maintains a functioning residence in the decr ee state, available for his own use at all t imes, he con tinues to 'presently reside' in th at state." Nurie , 176 Cal. A pp. 4th at 500, 98 Cal. Rptr. 3d at 219-20. In Amezquita , the California court addressed the differe nce between domicile and residence: " 'Courts and legal writers usua lly distinguish "domicile" and "residence," so that "domicil e" is the

one loca tion with wh

ich for le gal pur

poses a pe

rson is considere d to have the most settle d and per

manent c onnection, the pla ce wher e he inte nds to remain1-10-1084

-15-

and to which, whenever he is absent, he has the intention of re turning, but which the law may also assig

n to him constructively; wherea s "residence" connotes any factual place of abode of some per manency , more tha n a mere tempora ry sojourn. " Domicile " norma lly i s the more comprehensive term, in that it includes both the act of residence and an intention to remain; a person may

have only one domicile a t a given time, but he may have more than one physical r

esidence separate from his domicile, and at the same time. [Citations.] But statutes do not always ma ke this distinction in the employment of those words. They frequently use

"residence" and " resident" in the legal meaning of "domicile" and "domiciliary," and at other times in the meaning of factual re sidence or in still other shades of meaning. [Citations.]' " (Emphasis in original.) Amezquita , 101 Cal. A pp. 4th at 141 9, 124 Cal. R ptr. 2 d at 88 9, quo ting Smith v. Smith , 45 Cal. 2d 235, 239, 288 P.2d 497, 499 (1955). The Nuriecourt doe s not explain how the f

act that a person ma

y ow n, lease or other wise maintain m

ore than one phy sical re sidence

compels the conclu sion that a person " present

ly resides " in all of

them simulta

neously . The dra

fters of the UCCJEA in

tended that a par

ent could be considered a domiciliary of the decree state and y

et not presently re side in the decree state. The drafters of the UCCJEA intended that exclusive, continuing jurisdiction ceases when a c ourt determines that the child, the parents, and all persons acting as parents physic ally left the dec ree state to live elsewhere. Accordingly , we are not persuaded by this aspect of Nurie

. Malini suggests that a literal interpretation of the phra se "presently reside" would allow for parties to engage

in mischievious forum-shopping, leading to unjust results. She gives the1-10-1084

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hyp othetica

l example of

two divorc ed pare

nts living in Ill inois, but w

ith summer

homes in Wisconsin. Malini suggests th at "[a]fte r only one or tw o day s' resi dency in their su

mmer home s, a parent could ask a Wisconsin court to assume jurisdiction over custody merely bec ause the parents and the child are now presently in Wisconsin." However, as our earlier discussion demonstrates, residing connotes some degr ee of permanency

beyond a tempora

ry sojourn. Converse ly, Malini' s hy

pothetic al illustra

tes the fl aw in assu

ming tha t a person "pres ently resides" in any

jurisdiction where that person owns a home. The circ uit court a

lso looked

to section

26 of the R

estateme nt (Secon d) Conflict of L aws, for the principle that if a state obtains judicial jurisdiction over a party to an action, jurisdiction continues throughout all subsequent proceedings whic h arise out of the original cause of ac tion. Restatement (Second) of Conflict of La ws §26 (1971). Neither the circuit court nor the parties cite any a uthority for the proposition that this gene ral principle overrides the operation of the UCCJEA as enacted in Illinois. The drafters of the UCCJEA state in the comment to section 202: "Jurisdiction attaches at the commencement of a procee ding. If State A had jurisdiction under this section at the time a modification proceeding was commenc ed there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding. State B would not have jurisdiction to hear a modification unless State A decided that State B was more appropriate unde r Section 207." 9 U.L.A. §202, Comment, at 675 (1999).1-10-1084

-17-

The circuit court correctly noted that Malini's petitions to increase child support and for a finding of indirect civil contempt were pending in the circ uit court when Vikram filed his action in the Indian family

court. However, neither petition involves a child custody determination under section 102(3) of the UCCJEA nor constitutes a child custody proc eeding under section 102(4) of the UCCJEA. 750 ILCS 36/102(3), (4) (West 2006). Ac cordingly , the argument for continuing jurisdict ion in I llinois fa

ils. On March 30, 2010, the circuit court ultimately ruled: "[T]he Indian court did not make the requisite finding under Section 202(a) because[:] (1) 'ordinarily

residing' under the totality of the factual circumstances does not meet the requirements[;] and (2) the Indian court fa iled to find that the parties and the child are not presently re siding in Illinois. In c onclusion, the Indian order wa s not entered 'under factua l circums tances i

n substant

ial conf ormity ' with the UCCJEA and th

us, this co

urt is not required to recognize and enforc e the November 24, 2009 India n court order." We disag ree. Th e Indian fam

ily c ourt did no t merely

find that t

he parti es were

"ordina rily residing" in Hy

derabad. Rather, the I

ndian family court, a

fter reviewing the recor

d, found that they are " now ordinarily residing " in Hyde rabad. (Emphasis added.) The plain meaning of the finding is that the parties are presently in Hyderaba

d, with the modifier "ordinarily " reflecting that their presenc e was not

tempora ry or trans ient. Although se ction 202( a)(2) o f the stat ute refers to a determination that the parties and child " do not presently reside " in Illinois, the drafte rs of the UCCJEA mean

t this to be i dentica

l in meanin

g to the l angua

ge of the PKPA giving full faith and credit to custody determinations when that state "remains the residence of"1-10-1084

-18-

the parties and child, and the equivalent of the langua ge "continues to reside" a s used in section 205(a)(1) of the UI

FSA. 9 U.L.A. §202, Comment, at 674 (1999). Thus, the neg ative phrasing of section 202(a) does not have the determinative ef fect given it by

the circuit court. Based on the text of section 202(a) and the intent of its drafters, we conclude that the Indian family

court's finding that the parties and child ar e "now ordinarily

residing" in Hy

derabad necessarily

implied that they did not presently reside in Illinois. Cf

. In re T. J.D.W. , 182 N.C. App. 394, 396-97, 642 S.E.2d 471, 473 (2007) (specific finding of fac t not required to satisfy section 2 03 of the U CCJEA where the evide nce show ed that th e paren ts and chi ld lived in N orth Carolina and that they ha d left South Carolina at the time of the commencement of the proceeding). The I

ndian family court thus acted in substantial conformity with the jurisdictional require ments of the UCCJEA as e nacted i n Illi nois. The refer ence to " factua

l circums tances" in section 1 05 of the U CCJEA merel y me ans that " [c]ustody

determinations of

other co untries w ill be enfor ced if th e facts

of the ca se indica

te that jur isdiction was in subst

antial compliance

with the requ irements of this Ac t." 9 U.L .A. §105, Comment, a t 662 (1999 ). It

is not a mec

hanism for relitigation or review of another c ourt's fact determinations. See In re So phi a G. L. , 229 Ill. 2d 143, 165, 890 N.E.2d 470, 483 (2008), citing 9 U.L.A . §101, Comment, at 657 (1999). CONCLUSIO

N For all of the aforementioned reasons, we answer the certified question in the nega tive. The circ uit court e

rred in r uling tha t Illin ois has exc lusive an

d continui

ng juris diction ov er child1-10-1084

-19-

custody in this case. We rema nd the cause to the circuit court for further pr oceedings consistent with this opinion. Certified question answered; cause remande d. MURPHY, P.J., and QUINN, J., concur.1-10-1084

-20- REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) In re Marriage of VIKRAM AKUL

A, Petitioner -Appella nt, v. MALI NI AKUL

A, n/k/a Malini Byanna ,

Respondent-Appellee. No. 1-10-1084 Appella te Cour t of I llinois First District, THIR

D Division August 25, 2 010 (Give month, day

and yea r)

JUSTIC E STEELE deliv ered the opinio n of the

court: Murphy, P.J., and Quinn, J., concur dissent[s] Lower Court and T rial Judge(s) i n form indicated in t he margin: Circuit Ct. of Cook Co unty, Domestic Relati ons Div. Th e H ono rable Pamela E. Loza , Judge Presiding.

Indi cate if

att orney repre sent s APPELLANTS or APPELLEE S and i nclu de att orney s of

couns el. Indi cate the word NONE if n ot re prese nted. Attorne ys for Petitioner-Appellant : Lake T obac k, of C hic ago, IL (Michael G. Di Dome

nico, o f Couns el)

Attorne ys for Respondent-Appellee: Grun d & Lea vitt , P.C. , of Ch ica go, IL (Marvin J. Leavitt, D avid C. Adam s, Richard A. Wilson, and Jam ie R. R oman , of Co

unsel) Please U se Fol low ing Form: Co mple te TITLE of Case

Docket No. COURT Opini on Filed

JUSTI CES

APPEAL f

rom the Circuit

Ct. of Coo k Co unt y, Chancery Div.

For APPELLA

NTS, John Doe, of Chicago. For APPELLEES, Smith and S mith of Chica go, Joseph Brow

n, (of Counse l) Also add attorney s for third-party appellants or appellees.