In re Marriage of Francisco

Summary

Case Summary: In re Marriage of Francisco - Understanding the interplay between temporary absence and home-state jurisdiction under the UCCJEA directly empowers divorcing clients to protect their parental rights when a spouse relocates children across state or international borders, ensuring that Illinois courts retain the authority to hear their case rather than forcing them to litigate in a foreign jurisdiction where they may face significant legal and practical disadvantages. By securing third-party affidavits, preserving digital evidence of the departing spouse's true intent, and filing strategically before the six-month clock expires, divorcing clients gain the procedural leverage needed to force an evidentiary hearing — the courtroom setting where disputed facts are actually tested — rather than watching their case get dismissed on the papers before they ever have a chance to be heard.

The opposing counsel is already on the back foot — they just don't know it yet. If you're litigating a custody dispute where one parent took the children out of Illinois and the other side is screaming "home state jurisdiction belongs to Mexico," you need to understand what the Second District just did in In re Marriage of Reyes, 2026 IL App (2d) 250333-U. The trial court got it wrong. The appellate court corrected it. And the roadmap it laid out is exactly the kind of weapon a prepared litigator deploys before the other side even files their motion.

The Setup: One-Way Tickets, Apostilled Documents, and a Father Left Holding the Bag

Here's the fact pattern that should make every high-net-worth parent's blood run cold. Married in 2010. Two minor children. Both parties residing in Illinois. Then, in August 2023, the mother travels to Mexico with the children on one-way tickets, carrying the father's written authorization for medical and financial decisions. The father's position: this was a temporary cultural visit — a few months, back by December 2023. The mother's position: permanent relocation, complete with a leased home, school enrollment, and employment in Mexico.

The mother and children visited Illinois in March 2024 for spring break. The father filed his dissolution petition on April 3, 2024 — one day before the mother was scheduled to return to Mexico. He retained one child in Illinois. She returned to Mexico with the other. That's not just a custody dispute. That's a chess match played across international borders, and the clock was already ticking.

The Trial Court's Error: Dismissing Without a Hearing

The mother moved to dismiss(a)(9), arguing that Mexico — not Illinois — was the children's home state under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), 750 ILCS 36/201(a)(1). The trial court agreed. It denied the father's request for an evidentiary hearing, rejected his § 2-615 argument, and granted the dismissal.

The Second District reversed. And the reasoning matters more than the result.

Under 750 ILCS 36/102(7), "home state" means the state where the child lived with a parent for six consecutive months immediately before commencement of the proceeding. But here's the critical statutory language the trial court overlooked: periods of temporary absence are included in that calculation. If the children's absence from Illinois was temporary — not permanent — then Illinois remained the home state, and the father's petition was properly filed.

The Factual Dispute the Trial Court Ignored

The father didn't just assert that the trip was temporary. He submitted affidavits from his sister and brother-in-law stating that the mother herself described the trip as temporary — "only about six months," "back by Christmas." The trial court either overlooked or disregarded this evidence. The appellate court found that was reversible error.

This is the critical takeaway: on a § 2-619 motion, when there is a genuine issue of material fact, the trial court must hold an evidentiary hearing before granting dismissal. The court cited Rehfield v. Diocese of Joliet, 2021 IL 125656, and In re D.S., 2021 IL App (1st) 192257, for the proposition that disputed facts cannot be resolved on the papers alone. The trial court shortcut the process, and the appellate court sent it back.

Temporary vs. Permanent: The Totality of the Circumstances Test

The distinction between a temporary absence and a permanent relocation is determined by the totality of the circumstances, following the framework established in Camberos v. Palacios, 2021 IL App (2d) 210078. The relevant factors include:

• Intent: What did the relocating parent communicate about the purpose and expected duration of the trip? The mother's own statements to family members — documented in sworn affidavits — cut directly against her claim of permanent relocation.
• Duration: How long were the children actually absent? The timeline matters, but it's not dispositive standing alone.
• Objective indicia of residence: School enrollment, leases, employment. The mother had all three in Mexico. But the appellate court made clear that these objective factors do not automatically establish permanent relocation when contradicted by evidence of temporary intent.

Read that last point again. Objective actions — one-way tickets, apostilled documents, a signed lease — do not conclusively establish permanent relocation if contradicted by evidence of temporary intent. That's the holding that changes the calculus for every parent facing an international custody dispute in Illinois.

The Footnote That Could Reshape UCCJEA Litigation

Buried in a footnote, the court addressed something practitioners have debated for years: whether the "jurisdiction" referenced in § 201 of the UCCJEA is actually jurisdiction in the constitutional sense. The court's answer: it's a misnomer. Home-state requirements under the UCCJEA are a non-jurisdictional statutory defense, not a limitation on subject matter jurisdiction under the Illinois Constitution. The court cited Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, for the distinction.

Now — and this matters — that discussion is dicta in a footnote of a Rule 23(b) order. It has no precedential value except under the narrow circumstances of Rule 23(e)(1). But the implications are significant. If UCCJEA home-state requirements are truly non-jurisdictional, they can potentially be waived or forfeited. That's a fundamentally different litigation posture than treating them as an absolute bar that can be raised at any time. Watch this space. A published opinion on this issue would reshape UCCJEA motion practice in Illinois.

Strategic Directives for Illinois Practitioners

1. Secure Third-Party Affidavits Immediately

The father's case survived because his sister and brother-in-law provided sworn statements about what the mother told them. If your client's spouse has taken the children out of state or out of the country, lock down every witness who heard the departing parent describe the trip as temporary. Text messages, voicemails, emails, social media posts — all of it. Get it into affidavit form before memories fade and before the other side starts coaching witnesses.

2. Demand the Evidentiary Hearing

If the opposing party moves to dismiss on home-state grounds and you have any evidence creating a factual dispute about whether the absence was temporary, demand an evidentiary hearing on the record. Cite Rehfield. Cite In re D.S. Cite Reyes (with the Rule 23 caveat). The trial court cannot resolve disputed facts on a § 2-619 motion without one. If the court denies your request, you've preserved the issue for appeal — exactly as the father did here.

3. Don't Let Objective Factors Paralyze Your Strategy

Opposing counsel will wave the lease, the school enrollment, and the employment records and argue that permanent relocation is established as a matter of law. The Second District just told us that's not enough when contradicted by evidence of temporary intent. Objective factors are relevant — they're not dispositive. Build the counter-narrative with evidence of what the departing parent said and what the parties agreed to before the departure.

4. The Digital Trail Is Your Discovery Goldmine

This is where the cyber-law lens becomes indispensable. In international relocation cases, the digital footprint is often the most reliable evidence of intent. Flight booking confirmations showing return dates that were later canceled. GPS data from shared family apps. Cloud-synced calendar entries showing Illinois-based appointments scheduled after the purported "permanent" departure. Metadata on documents. If your opposing party claims permanent relocation but their digital life tells a different story, that's your evidentiary hearing exhibit list. And if the other side has been sloppy with device security or shared account access, their own negligence hands you the evidence on a platter.

5. File Fast and File Smart

The father in Reyes filed his dissolution petition on April 3, 2024 — one day before the mother was scheduled to return to Mexico after a spring break visit. That timing wasn't accidental. Under the UCCJEA, "home state" is measured at the commencement of the proceeding. Every day you wait is a day the six-month clock ticks against you. If the children have been out of Illinois and you have a viable argument that the absence is temporary, the filing date is a strategic weapon. Use it.

The Counterargument You Need to Prepare For

Sophisticated opposing counsel will argue — and they won't be wrong — that after a full evidentiary hearing, the objective evidence of permanent relocation may overwhelm the subjective statements of temporary intent. One-way tickets. Apostilled documents prepared for use in Mexican legal and educational systems. A signed lease. Gainful employment. School enrollment. These aren't trivial facts. A trial court could reasonably weigh them more heavily than a few statements to relatives about being "back by Christmas."

That's exactly why the evidentiary hearing matters. The father in Reyes won the right to have the facts tested — not resolved on the papers. The merits remain unresolved pending remand. The fight isn't over. It's just moved to the arena where it belongs: a courtroom with live testimony, cross-examination, and a judge who has to look at the totality of the evidence before making the call.

The Bottom Line

The Second District's decision in Reyes is a Rule 23(b) order. It carries no precedential weight except under limited circumstances. But it is a clear signal of how the appellate court views the interplay between temporary absence, home-state jurisdiction, and the procedural requirements of § 2-619 motions. If you're on the petitioner's side of an international custody dispute in Illinois, this case gives you the framework to survive a motion to dismiss and force the fight into an evidentiary hearing where your evidence actually gets heard.

If you're on the respondent's side, you need to understand that school enrollment and a lease aren't going to end this case on the pleadings anymore. Not when the other side has affidavits. Not when the appellate court has made clear that disputed facts require a hearing.

Either way, the power belongs to the side that prepares first and moves decisively.

If you're facing an interstate or international custody dispute and need a strategy built for the courtroom — not a template pulled from a form bank — book a consultation with Steele Family Law now. Your opposition is already behind. Let's make sure they stay there.

Full Opinion (PDF): Download the full opinion

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, ISC2 CC, Google Cybersecurity Professional Certificate). Illinois Super Lawyers Rising Star 2016-2025.

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