In re Marriage of Francisco

Overview

In re Marriage of Reyes, 2026 IL App (2d) 250333-U, reversed the trial court's involuntary dismissal of a dissolution petition, holding that a genuine issue of material fact existed as to whether the parties' children's absence from Illinois was temporary or permanent for purposes of "home state" jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA). The appellate court found the trial court erred by failing to hold an evidentiary hearing and by overlooking key affidavit evidence.

Key Facts

• Parties married in 2010 with two minor children (born 2017 and 2020); both resided in Illinois
• In August 2023, mother traveled to Mexico with the children on one-way tickets with father's written authorization, including authority for medical and financial decisions
• Father's position: the trip was a temporary cultural visit lasting only a few months, with return expected by December 2023
• Mother's position: she permanently relocated, leasing a home, enrolling children in school, and obtaining employment in Mexico
• Father's sister and brother-in-law submitted affidavits stating mother told them the trip was temporary ("only about six months," "back by Christmas")
• Mother and children visited Illinois in March 2024 for spring break; father filed his dissolution petition on April 3, 2024—one day before mother was to return to Mexico
• Father retained one child in Illinois; mother returned to Mexico with the other

Procedural History

Circuit Court of Kane County (No. 24-DC-181, Judge DiGiovanni). Father filed a petition for dissolution; mother moved to dismiss under §§ 2-615 and 2-619(a)(9), arguing Mexico was the children's home state. The trial court denied father's request for an evidentiary hearing, rejected the § 2-615 argument, but granted dismissal under § 2-619(a)(9). Father appealed to the Second District Appellate Court. Mother filed no appellee's brief; the court reviewed under First Capitol Mortgage Corp. v. Talandis Construction Corp. guidelines.

Holdings

1. Primary holding (de novo review): The trial court erred in granting the § 2-619(a)(9) motion to dismiss because a genuine issue of material fact existed regarding whether the children's absence from Illinois was temporary or permanent, precluding dismissal without an evidentiary hearing.
2. The trial court misapprehended the record by overlooking corroborating affidavits from father's relatives indicating mother herself described the trip as temporary.

Legal Principles

• 750 ILCS 36/201(a)(1) — Illinois has authority to make an initial child-custody determination if it is the child's "home state" at commencement or within six months prior
• 750 ILCS 36/102(7) — "Home state" defined as state where child lived with a parent for six consecutive months; periods of temporary absence are included
• Temporary vs. permanent absence is determined by the totality of the circumstances, including intent, duration, and objective indicia of residence (Camberos v. Palacios, 2021 IL App (2d) 210078)
• On § 2-619 motions, disputed facts require an evidentiary hearing (Rehfield v. Diocese of Joliet, 2021 IL 125656; In re D.S., 2021 IL App (1st) 192257)
• Important footnote (dicta): The court clarified that "jurisdiction" in § 201 is a misnomer—home-state requirements are a non-jurisdictional statutory defense, not a limitation on subject matter jurisdiction under the Illinois Constitution (Belleville Toyota, 199 Ill. 2d 325)

Practical Implications

• Gather evidence of intent early: Secure affidavits from third parties about statements regarding the purpose and expected duration of a child's absence from Illinois
• Demand evidentiary hearings: When opposing a § 2-619 motion on home-state grounds, insist on an evidentiary hearing if any factual dispute exists—the court confirmed this is mandatory
• Objective factors are not dispositive: School enrollment, leases, and employment abroad do not conclusively establish permanent relocation if contradicted by evidence of temporary intent
• Home-state defense is non-jurisdictional: The footnote discussion supports arguments that UCCJEA home-state requirements can be waived or forfeited, unlike true subject matter jurisdiction
• Counterargument: Opposing counsel may argue that objective actions (one-way tickets, apostilled documents, lease) outweigh subjective statements of intent after a full evidentiary hearing

Limitations/Caveats

This is a Rule 23(b) order with no precedential value except under the limited circumstances of Rule 23(e)(1). The characterization of UCCJEA "jurisdiction" as a misnomer and non-jurisdictional statutory defense appears in a footnote and constitutes dicta, not a binding holding. The case was decided without an appellee's brief, which may limit the depth of adversarial testing of the legal issues. The merits of the home-state determination remain unresolved pending remand.