THIRD DIVISION

August 25, 2010

1-10-1084

In re MARRIAGE OF ) APPEAL FROM THE

VIKRAM AKULA, ) CIRCUIT COURT OF

) COOK COUNTY

Petitioner-Appellant, )

)

and ) No. 01 D 15700

)

MALINI AKULA, n/k/a Malini Byanna, ) HONORABLE

) PAMELA E. LOZA,

Respondent-Appellee. ) JUDGE PRESIDING.

JUSTICE STEELE delivered the opinion of the court:

Following a hearing in the circuit court of Cook County, the trial court granted summary

judgment to respondent Malini Akula on parts of a petition for declaratory and injunctive relief

against her ex-husband Vikram Akula. Subsequently, pursuant to Illinois Supreme Court Rule

308 (155 Ill. 2d R. 308), the circuit court certified the question of whether Illinois 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 ILCS 36/101 et

seq. (West 2006)) for appeal to this court. For the following reasons, we answer the certified

question in the negative.

BACKGROUND

The record discloses the following facts. Vikram and Malini were married in Illinois on

December 18, 1999. Vikram is the chairman and founder of an Indian microfinance company. 

Malini is an attorney. Their son, T.B.A., was born on February 16, 2001.
1-10-1084

-2-

On December 4, 2002, the circuit court of Cook County entered a judgment of dissolution

of marriage that awarded Malini sole custody of T.B.A. Subsequently, issues arose between

Vikram and Malini regarding the raising of T.B.A. On August 19, 2005, the circuit court entered

an agreed parenting order resolving those issues and acknowledging that Malini continued 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 large increases in Vikram's income. On December 16, 2008,

Malini filed a petition for an adjudication of indirect civil contempt against Vikram, 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 agreed

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 agreed order memorializing plans for

Vikram, Malini, and T.B.A. to travel to India. After spending some time in India, Vikram and

Malini engaged in extensive negotiations contemplating Malini and T.B.A. staying in Hyderabad,

India. On August 13, 2009, T.B.A. was enrolled in the International School of Hyderabad. 

T.B.A. currently attends that school. On August 17, 2009, Malini entered into a four-year lease

for a home in India from Vikram's parent; the lease could be terminated on three months' notice

and good cause. On September 5, 2009, Malini obtained a residential permit from the Indian

government, extending through April 22, 2013.
1-10-1084

-3-

Malini and T.B.A. returned to the house in Hoffman Estates, Illinois, for a week in

September 2009. Malini contends that she was marketing the house in Hoffman Estates because

Vikram agreed to purchase a house in Schaumburg, Illinois, for Malini and T.B.A.. The closing

on the house in Schaumburg was set for October 16, 2009, but did not occur. The purchase

contract for the Schaumburg property listed an address for Vikram in Palatine, Illinois (Malini's

December 12, 2008, petition alleged that Vikram recently purchased a house in Palatine).

On October 7, 2009, Malini returned to Chicago to undergo back surgery and attend a

continuing legal education conference. T.B.A. remained in school in India. Later on October 7,

2009, Vikram and Malini had an argument concerning 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 and T.B.A.'s permanent residence.

On October 12, 2009, Vikram, without notice to Malini, filed two petitions in the family

court in Hyderabad, India. The original petition (OP) sought sole custody of T.B.A. The second

petition was an interlocutory application (IA) seeking interim injunctive relief. Later on October

12, 2009, the Indian family court entered an ex parte interim order, restraining anyone from

disturbing the custody of T.B.A. in any manner, pending a disposition of the OP. Malini was

later served with process in India with the Indian family court's order, as well as Vikram's

petitions.

On October 13, 2009, Malini and Vikram's counsel appeared in circuit court for the

previously set status hearing on Malini's petition to modify child support. The issue of the Indian

family court order was first raised in the circuit court during this hearing.
1-10-1084

-4-

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 emergency petition for a temporary

restraining order, preliminary injunction and other relief, as well as a motion for the return of

T.B.A. and an adjudication of indirect civil contempt in the circuit court. Malini sought 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 order stating: T.B.A. would not be withdrawn from

school in Hyderabad, India and the circuit court would not be modifying the custody of T.B.A. or

placing physical possession of T.B.A. with Malini. However, the circuit court ordered that

Malini could be with T.B.A. three hours daily after school and have unsupervised visitation with

T.B.A. overnight on Saturdays.

On October 20, 2009, Vikram filed an emergency motion to partially vacate the circuit

court's order of October 15, 2009, and emergency petitions for a rule to show cause and

adjudications of indirect civil and criminal contempt. Following a hearing 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 orders entered on

October 15 and 20, 2009. On November 3, 2009, this court entered an order continuing Malini'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 February 1, 2010.

On October 26, 2009, Malini filed two affidavits in the Indian family court in response to

Vikram's petitions there. On October 31, 2009, Vikram and Malini appeared with T.B.A. in the
1-10-1084

-5-

Indian family court. The Indian judge conducted an in camera interview with T.B.A. and spoke

to counsel for both sides. The Indian family court entered an agreed order concerning child

visitation, providing in part that neither side could cite the order as precedent.

On November 2, 2009, Vikram filed an emergency petition 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 child representative filed a motion for

presentment of T.B.A. in Illinois. On November 10, 2009, both parties responded to the

representative's motion. On November 19, 2009, the circuit court granted the representative's

motion. On November 23, 2009, Vikram filed an emergency motion to reconsider the order

requiring the presentment of T.B.A., which the circuit court denied the following day.

On November 13, 2009, the circuit court attempted to hold a telephone conference with

the Indian family court in Hyderabad, but there was no meaningful communication between the

judges. The circuit court requested another telephone conference, but was unsuccessful in

completing one. Vikram's counsel claimed there were ethical issues regarding the parties' Indian

counsel being present for the conference.

On November 19, 2009, Vikram and Malini appeared in the Indian family court for a

hearing on Vikram's IA.

On November 23, 2009, Malini moved for summary judgment in the circuit court on

Vikram's November 2, 2009, petition. Malini argued the circuit court had continuing exclusive

jurisdiction over custody of T.B.A. under the UCCJEA (750 ILCS 36/101 et seq. (West 2006)).
1-10-1084

-6-

On November 24, 2009, the Indian family court issued a 62-page order finding that

Vikram, Malini and T.B.A. "are now ordinarily residing in Hyderabad which is within the

territorial jurisdiction of the Family court, Hyderabad." The Indian family court order converted

the interim order of October 12, 2009, into an injunction enjoining Malini or anyone else from

disturbing the custody of T.B.A. The Indian family court also ordered that T.B.A., who was in

the equivalent of the third grade, may not be removed from school in Hyderabad until he

completes at least the fifth grade.

On December 2, 2009, Vikram moved for summary judgment from the circuit court or, in

the alternative, registration of the Indian court orders and the dismissal of Malini's emergency

petition. Vikram argued the Indian family court order was dispositive of the jurisdictional issue.

On December 14, 2009, Vikram filed two additional petitions in the Indian 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 Indian family court in Hyderabad.

On December 15, 2009, Malini filed a petition for declaratory and injunctive relief in the

circuit court. Malini sought a declaration that the Indian 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 sought to enjoin Vikram from proceeding in the Indian courts.

On December 22, 2009, Vikram filed an amended petition for declaratory relief or

registration of the Indian family court orders and the dismissal of Malini's emergency petition.
1-10-1084

-7-

On December 29, 2009, Malini filed three petitions in the High Court of Adjudicature for

the State of Andhra Pradesh (the High Court), which has jurisdiction over the orders entered by

the Indian family court in Hyderabad. The same day, the High Court stayed all further

proceedings at the trial court level.

On January 5, 2010, Vikram filed a petition for leave to appeal and an application for a

stay of the High Court's order in the Indian Supreme Court. The Indian Supreme Court granted a

stay of the High Court's habeas corpus order. Malini also filed a special application for leave to

appeal the family court's November 24, 2009, order directly to the Indian Supreme Court.

On February 23, 2010, Vikram moved for summary judgment on his amended petition in

the circuit court. On February 24, 2010, Malini moved for summary judgment on her petition for

declaratory and injunctive relief. On March 2, 2010, both parties filed responses to each other's

motions.

On March 30, 2010, the circuit court entered an order granting Malini summary judgment

on the issue of jurisdiction, concluding that: (1) Illinois was the residence of Malini and T.B.A.;

(2) Illinois has continuing, exclusive jurisdiction over the parties and subject matter under the

UCCJEA; and (3) the Indian family court in Hyderabad failed to find that Malini and T.B.A. no

longer resided in Illinois. The circuit court also ruled that the proceedings in the Indian family

court in Hyderabad were not being conducted in substantial conformity with the jurisdictional

standards of the UCCJEA, rendering the Indian court's orders unrecognizable and unenforceable

under section 105 of the UCCJEA (750 ILCS 36/105 (West 2006)). The circuit court denied

Malini's motion for a declaration that the proceedings in the Indian family court in Hyderabad
1-10-1084

-8-

violate fundamental principles of human rights under section 105(c) of the UCCJEA (750 ILCS

36/105(c) (West 2006)). The circuit court further denied Vikram's amended petition for

declaratory relief or registration of the Indian court orders and the dismissal of Malini's

emergency petition.

On April 5, 2010, Vikram moved for a finding of no just reason to delay enforcement or

appeal of the March 30, 2010, order, pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R.

304(a)), or for a certification of the question of the propriety of the order pursuant to Supreme

Court Rule 308 (155 Ill. 2d R. 308). On April 14, 2010, the circuit court granted the motion,

certifying the following question for appeal to this court:

"Did the Circuit Court properly rule that Illinois has exclusive and continuing jurisdiction

because the Indian family court did not make a judicial determination in substantial

conformity with subsection 202(a)(2) of the UCCJEA?"

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 granted Vikram's petition for leave to appeal and placed the appeal

on an accelerated docket.

DISCUSSION

The circuit court's certified question raises the sole issue for review in this interlocutory

appeal. To qualify for an interlocutory appeal under Supreme Court Rule 308 (155 Ill. 2d R.

308), a certified question must present an issue of law that is reviewable de novo. Solon v.

Midwest Medical Records Ass'n, 236 Ill. 2d 433, 439, 925 N.E.2d 1113, 1117 (2010). The
1-10-1084

-9-

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 determination made in a foreign country under

factual circumstances in substantial conformity with the jurisdictional standards of this Act must

be recognized and enforced, unless the child custody law of the foreign country violates

fundamental principles of human rights. 750 ILCS 36/105 (West 2006). In this case, the circuit

court determined that Indian child custody law did not violate fundamental principles of human

rights; that determination is not before this court in this appeal. The sole issue on appeal is the

circuit court's interpretation of section 202(a)(2) of the UCCJEA, which provides in relevant part: 

"(a) Except as otherwise provided in Section 204, a court of this State which has

made a child-custody determination consistent with Section 201 or 203 has exclusive,

continuing jurisdiction over the determination until:

***

(2) a court of this State or a court of another state determines that the child,

the child's parents, and any person acting as a parent do not presently reside in this

State." 750 ILCS 36/202(a)(2) (West 2006).

Our primary objective 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 given its plain and ordinary meaning. 

Solon, 236 Ill. 2d at 440, 925 N.E.2d at 1117. In determining the plain meaning of the statute,

we consider the statute it its entirety, the subject it addresses, and the apparent intent of the
1-10-1084

-10-

legislature in enacting it. Solon, 236 Ill. 2d at 440, 925 N.E.2d at 1117. When the statutory

language is clear and unambiguous, it must be applied as written and without resort to extrinsic

aids of statutory construction. Solon, 236 Ill. 2d at 440, 925 N.E.2d at 1117. "However, if a

statute is capable of being understood by reasonably well-informed persons in two or more

different ways, the statute will be deemed ambiguous." Solon, 236 Ill. 2d at 440, 925 N.E.2d at

1117. If the statute is ambiguous, the court may consider extrinsic aids of construction in order

to discern the legislative intent. Solon, 236 Ill. 2d at 440, 925 N.E.2d at 1117.

In this case, the issue is whether the Indian family court's order substantially conforms to

the UCCJEA. The relevant paragraph of the Indian 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 years, i.e., up to the year

2013 it can be safely held that they are now ordinarily residing in Hyderabad which is

within the territorial jurisdiction of the Family court, Hyderabad. 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 facts of the

above decision are squarely applicable to the facts of the case on hand."

The circuit court, while acknowledging there is no requirement that the Indian court make its

finding in the exact phrasing of section 202(a)(2) of the UCCJEA (750 ILCS 36/202(a)(2) (West

2006)), concluded that the finding that the parties are "now ordinarily residing" in Hyderabad did
1-10-1084

-11-

not substantially conform to finding that the child, the child's parents, and any person acting as a

parent "do not presently reside" in Illinois.

In reaching this conclusion, the circuit court relied on a definition of "residence" taken

from Miller v. Police Board, 38 Ill. App. 3d 894, 898, 349 N.E.2d 544, 548 (1976), as applied in

Connelly v. Gibbs, 112 Ill. App. 3d 257, 262-64, 445 N.E.2d 477, 480-82 (1983), a case holding

that parents were residents of Chicago, 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 definition of "residence" in general:

"It is true, as was pointed out in Reese & Green, That Elusive Word, 'Residence',

6 Vand. L. Rev. 561 (1953), which the plaintiffs 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 meaning of which

courts must ascertain from the purposes of the statute or ordinance, although in most

cases it has been construed to be synonymous with domicile (6 Vand. L. Rev. 561,

561-62.) The authors provide examples of the term's being interpreted differently in

various contexts, such as in statutes concerning divorce jurisdiction and income taxation." 

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 to be synonymous with "domicile." Fagiano, 98 Ill. 2d at 283, 456 N.E.2d at 29.
1-10-1084

-12-

Given that the concept of residence does not have a fixed and constant meaning, the

question is whether the circuit court correctly used a definition synonymous with "domicile" in

the context of jurisdiction under the UCCJEA. The official comment to section 202 of the

UCCJEA states in part:

"2. Continuing jurisdiction is lost when the child, the child's parents, and any

person acting as a parent no longer reside in the original decree State. The exact language

of subparagraph (a)(2) was the subject of considerable debate. Ultimately the Conference

settled on the phrase that 'a court of this State or a court of another State determines that

the child, the child's parents, and any person acting as a parent do not presently 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 language of the PKPA [the federal

Parental Kidnapping Prevention Act] which provides that full faith and credit is to be

given to custody determinations made by a State in the exercise 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 UIFSA [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 paragraph (a)(2) of this section means that the named persons no longer continue to

actually live within the State. Thus, unless a modification proceeding has been
1-10-1084

-13-

commenced, when the child, the parents, and all persons acting as parents physically

leave the State to live elsewhere, the exclusive, continuing jurisdiction ceases.

The phrase 'do not presently reside' is not used in the sense of a technical

domicile. The fact that the original determination State still considers one parent a

domiciliary does not prevent it from losing exclusive, continuing jurisdiction after the

child, the parents, and all persons acting as parents have moved from the State.

If the child, the parents, and all persons acting as parents have all 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 well 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

comparable provisions of the PKPA. That statute authorizes continuing jurisdiction so

long as any 'contestant' remains in the original decree State and that State continues to

have jurisdiction under its own law. This Act eliminates the contestant classification." 

Uniform Child Custody Jurisdiction and Enforcement Act, 9 U.L.A. §202, Comment, at

674-75 (1999).

Thus, it is clear that the drafters of the UCCJEA did not intend that "residence" be equated with

"domicile" in this context. See, e.g., In re Marriage of Nurie, 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 no
1-10-1084

-14-

longer reside in the decree state is required to divest that state of continuing, exclusive

jurisdiction," and that it is only "when a 'court *** determines' that all parties have ceased

residing there that jurisdiction is lost." Nurie, 176 Cal. App. 4th at 500-01, 98 Cal. Rptr. 3d at

220, quoting Cal. Fam. Code §3422(a)(2). These aspects of Nurie merely restate the

requirements of section 202(a)(2) of the UCCJEA, but offer no additional guidance on the issue

of whether the Indian family court's finding substantially conformed to those requirements.

Malini relies on stronger language from Nurie that was not adopted by the circuit court:

"It is well established that a party may have more than one residence. ( In re

Marriage of Amezquita & Archuleta, [101 Cal. App. 4th 1415, 1419, 124 Cal. Rptr. 2d

887, 889 (2002)].) Thus, Husband could have 'presently resided' in Pakistan for some

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 from the state, we

hold that if he maintains a functioning residence in the decree state, available for his own

use at all times, he continues to 'presently reside' in that state." Nurie, 176 Cal. App. 4th

at 500, 98 Cal. Rptr. 3d at 219-20.

In Amezquita, the California court addressed the difference between domicile and residence:

" 'Courts and legal writers usually distinguish "domicile" and "residence," so that

"domicile" is the one location with which for legal purposes a person is considered to

have the most settled and permanent connection, the place where he intends to remain
1-10-1084

-15-

and to which, whenever he is absent, he has the intention of returning, but which the law

may also assign to him constructively; whereas "residence" connotes any factual place of

abode of some permanency, more than a mere temporary sojourn. "Domicile" normally is

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 at a given time, but he may have more

than one physical residence separate from his domicile, and at the same time. [Citations.]

But statutes do not always make 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 residence or in still other

shades of meaning. [Citations.]' " (Emphasis in original.) Amezquita, 101 Cal. App. 4th

at 1419, 124 Cal. Rptr. 2d at 889, quoting Smith v. Smith, 45 Cal. 2d 235, 239, 288 P.2d

497, 499 (1955).

The Nurie court does not explain how the fact that a person may own, lease or otherwise

maintain more than one physical residence compels the conclusion that a person "presently

resides" in all of them simultaneously. The drafters of the UCCJEA intended that a parent could

be considered a domiciliary of the decree state and yet not presently reside in the decree state. 

The drafters of the UCCJEA intended that exclusive, continuing jurisdiction ceases when a court

determines that the child, the parents, and all persons acting as parents physically left the decree

state to live elsewhere. Accordingly, we are not persuaded by this aspect of Nurie.

Malini suggests that a literal interpretation of the phrase "presently reside" would allow

for parties to engage in mischievious forum-shopping, leading to unjust results. She gives the
1-10-1084

-16-

hypothetical example of two divorced parents living in Illinois, but with summer homes in

Wisconsin. Malini suggests that "[a]fter only one or two days' residency in their summer homes,

a parent could ask a Wisconsin court to assume jurisdiction over custody merely because the

parents and the child are now presently in Wisconsin." However, as our earlier discussion

demonstrates, residing connotes some degree of permanency beyond a temporary sojourn. 

Conversely, Malini's hypothetical illustrates the flaw in assuming that a person "presently

resides" in any jurisdiction where that person owns a home.

The circuit court also looked to section 26 of the Restatement (Second) Conflict of Laws,

for the principle that if a state obtains judicial jurisdiction over a party to an action, jurisdiction

continues throughout all subsequent proceedings which arise out of the original cause of action. 

Restatement (Second) of Conflict of Laws §26 (1971). Neither the circuit court nor the parties

cite any authority for the proposition that this general 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 proceeding. If State A had

jurisdiction under this section at the time a modification proceeding was commenced

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 under 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 circuit 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 proceeding under section 102(4) of

the UCCJEA. 750 ILCS 36/102(3), (4) (West 2006). Accordingly, the argument for continuing

jurisdiction in Illinois fails.

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 failed to find that the parties and the child are not

presently residing in Illinois. In conclusion, the Indian order was not entered 'under

factual circumstances in substantial conformity' with the UCCJEA and thus, this court is

not required to recognize and enforce the November 24, 2009 Indian court order."

We disagree. The Indian family court did not merely find that the parties were "ordinarily

residing" in Hyderabad. Rather, the Indian family court, after reviewing the record, found that

they are "now ordinarily residing" in Hyderabad. (Emphasis added.) The plain meaning of the

finding is that the parties are presently in Hyderabad, with the modifier "ordinarily" reflecting

that their presence was not temporary or transient. Although section 202(a)(2) of the statute

refers to a determination that the parties and child "do not presently reside" in Illinois, the

drafters of the UCCJEA meant this to be identical in meaning to the language 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 language "continues to reside" as used in section

205(a)(1) of the UIFSA. 9 U.L.A. §202, Comment, at 674 (1999). Thus, the negative phrasing

of section 202(a) does not have the determinative effect 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 are "now ordinarily residing" in Hyderabad

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 fact not required to satisfy

section 203 of the UCCJEA where the evidence showed that the parents and child lived in North

Carolina and that they had left South Carolina at the time of the commencement of the

proceeding). The Indian family court thus acted in substantial conformity with the jurisdictional

requirements of the UCCJEA as enacted in Illinois. The reference to "factual circumstances" in

section 105 of the UCCJEA merely means that "[c]ustody determinations of other countries will

be enforced if the facts of the case indicate that jurisdiction was in substantial compliance with

the requirements of this Act." 9 U.L.A. §105, Comment, at 662 (1999). It is not a mechanism

for relitigation or review of another court's fact determinations. See In re Sophia G.L., 229 Ill. 2d

143, 165, 890 N.E.2d 470, 483 (2008), citing 9 U.L.A. §101, Comment, at 657 (1999).

CONCLUSION

For all of the aforementioned reasons, we answer the certified question in the negative. 

The circuit court erred in ruling that Illinois has exclusive and continuing jurisdiction over child
1-10-1084

-19-

custody in this case. We remand the cause to the circuit court for further proceedings consistent

with this opinion.

Certified question answered; cause remanded.

MURPHY, P.J., and QUINN, J., concur.
1-10-1084

-20-

REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT

(Front Sheet to be Attached to Each Case)

In re Marriage of 

VIKRAM AKULA,

Petitioner-Appellant,

v.

MALINI AKULA, n/k/a Malini Byanna, 

Respondent-Appellee.

 No. 1-10-1084

Appellate Court of Illinois

First District, THIRD Division

August 25, 2010

(Give month, day and year)

JUSTICE STEELE delivered the opinion of the court:

Murphy, P.J., and Quinn, J., concur 

 

 dissent[s]

Lower Court and Trial Judge(s) in form indicated in the margin:

Circuit Ct. of Cook County, Domestic Relations Div.

The Honorable Pamela E. Loza , Judge Presiding.

Indicate if attorney represents APPELLANTS or APPELLEES and include

attorneys of counsel. Indicate the word NONE if not represented.

Attorneys for Petitioner-Appellant: Lake Toback, of Chicago, IL

(Michael G. DiDomenico, of Counsel)

Attorneys for Respondent-Appellee: Grund & Leavitt, P.C., of Chicago, IL

(Marvin J. Leavitt, David C. Adams, Richard A. Wilson,

and Jamie R. Roman, of Counsel) 

Please Use

Following

Form:

Complete

TITLE

of Case

Docket No.

COURT

Opinion

Filed

JUSTICES

APPEAL from

the Circuit Ct. of

Cook County,

Chancery Div.

For

APPELLANTS,

John Doe, of

Chicago.

For

APPELLEES,

Smith and Smith

of Chicago,

Joseph Brown,

(of Counsel)

Also add

attorneys for

third-party

appellants or

appellees.