Child is not born yet. Man files a petition under the Parentage Act. He wants to establish paternity. He wants to obtain joint custody and visitation.

Mom is now living in Colorado. She says that she intends to permanently reside in Colorado. The child was born after Dad filed in Illinois. And shortly after Mom filed in Colorado.

She argues that the home state of the child is Colorado. It is the state where the child will have lived with a parent since birth. She alleges that the child was born in Colorado and still resided there with her. So, Illinois did not have jurisdiction over the child. Therefore, Dad’s Illinois filing must be dismissed.

Dad argues that Illinois does have jurisdiction to hear the case. Mom had resided in Illinois until very recently when she moved to Colorado. She had not lived in Colorado long enough for Colorado to be called the home state of the child. Mom had not lived in Colorado long enough to even obtain a driver’s license there.

Dad moved for the child’s return to Illinois. The Illinois court agrees that Dad filed first. Illinois has jurisdiction to hear the case. Mom appeals.

The Appellate Court looked at the issue of the unborn child. Which state may make the initial child-custody determination? Both petitions were started before the child’s birth.

The Court stated that a home-state determination must be deferred until the child’s birth. Upon the child’s birth, the birth state–here, Colorado–becomes the home state. The trial court was wrong in considering the Mom’s intent as to her residence. The home state for a child less than six months old is where the child was born.

Dad’s Illinois petition may proceed to name him as the father. However, any custody determinations take place in Colorado. That is the home state of the child.

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

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