CHICAGOLAWBULLETIN.COM MONDAY, MARCH 20, 2017 ® Volume 163, No. 54 Serving Chicago’s legal community for 162 years Unwed fathers should be wary of custody rights, take necessary steps I n the absence of an allocation Child Abduction in the Northern “confers upon the acknowledged judgment, an unwed father District of Illinois seeking to re- MODERN FAMILY father all of the rights and duties lacks standing to sue for the turn the child to Mexico, upon the of a parent.” return of his child under the basis that Mexico was the child’s The 7th Circuit did not sub- Hague Convention on Civil habitual residence pursuant to the stantively analyze the effect of Aspects of International Child Ab- Hague Convention. this statutory amendment, as it duction. Such is the holding of the The U.S. District Court found in was not in effect during the 2013- 7th U.S. Circuit Court of Appeals favor of the father, holding Illinois JAY P. 2014 events. Nonetheless, the in Martinez v. Cahue, 2016 WL to be the habitual residence of the DAHLIN court indicated that the amend- 3457617 (2016). An appeal of this child based on an “absence of ment would not be sufficient to decision is currently pending on shared parental intent”in that the protect unwed and judgment-less petition for writ of certiorari be- parties “did not jointly intend that Jay P. Dahlin is a partner at Schiller, fathers, as a judgment of pater- fore the U.S. Supreme Court. [the child] should move to Mexico DuCanto & Fleck LLP whose practice nity is essentially a right of access The case involves a child born in the first place.” concentrates on financially complex which does not trigger the rem- out of wedlock to parents who However the matter was over- divorce matters and contested custody edy of return under the Hague litigation. He has tried numerous cases, resided in Illinois for the first sev- turned on appeal by the 7th U.S. C o nve n t i o n . winning custody and support for both en years of the child’s life. Al- Circuit Court of Appeals, pred- fathers and mothers in Cook, Lake, If the Ma r t i n e z decision with- though the parties never married, icated on the finding that in the DuPage and McHenry counties. He can be stands Supreme Court scrutiny, the father had signed a voluntary absence of a custody judgment reached at jdahlin@sdflaw.com. attorneys will be wise to advise acknowledgment of paternity and Illinois law presumes that the unmarried fathers that it is un- the parties had entered into a pri- mother of a child born out of wed- questionably in their interests to vate arrangement for custody and lock has sole custody and there- that the right of a biological father seek allocation judgments and parenting time which had never fore sole decision-making author- to establish paternity does not au- parenting plans through the legal been formalized in a court order. ity to determine the minor child’s tomatically confer the legal rights p ro ce s s . In the spring of 2013, the child’s habitual residence pursuant to the flowing from the parent-child re- Even an allocation judgment mother, Jaded Martinez, began Hague Convention. lationship, including custody. which grants sole decision-making contemplating a move back to The 7th Circuit found that the Further, the court gave no authority to the mother will, by its Mexico. The trial record reflects mother’s removal of the child to weight to the parties’p r i vat e entry, vest the father with the that mother told the father, Peter Mexico under somewhat false pre- agreement on custody and visi- statutory removal and relocation Cahue, that she and the child tenses was inconsequential be- tation, noting that Illinois courts protections codified in the Illinois were going to Mexico on vacation. cause the father had no standing generally do not respect private Marriage and Dissolution of Mar- Cahue signed a notarized letter to determine the child’s habitual agreements effecting custody. The riage Act. authorizing the child to travel to residence without his rights to cus- court found that as of July 2013 Moreover, in cases where the Mexico. However, upon arriving in tody being vested in a judgment. when mother moved to Mexico removal or retention is imminent, Mexico, it became clear that this the mere filing of an action is was not a temporary vacation, but sufficient to vest the father’s instead a permanent removal and If the Ma rt i n ez decision withstands Supreme rights. A custodial parent may be relocation. The child enrolled in enjoined “upon application by a Court scrutiny, attorneys will be wise to advise school, joined a soccer club and p a r ty ”from relocating with a began establishing roots in the unmarried fathers that it is unquestionably in child outside of Illinois “pending co m m u n i ty. the adjudication of the issues of their interests to seek allocation judgments and The child remained in Mexico custody and visitation.”750 ILCS for a year. In summer 2014, upon parenting plans through the legal process. 4 5 /1 3. 5 ( a ) . the pretense of spending summer By filing an action or otherwise vacation with his father, the child submitting an allocation judgment returned to Illinois. The father re- As noted by the court, “s h a re d and August 2014 when the father for court approval, the parties tained the child in Illinois and intent ‘has less salience when only retained the child in Illinois, the vest their respective rights to es- filed a petition for custody and one parent has the legal right’to father had no custody rights un- tablish a habitual residence for a immediate custody with the state determine residence.” der Illinois law to decide the minor child pursuant to the co u r t . The fact that the father had child’s habitual residence and the Hague Convention. The father was granted tempo- executed a voluntary acknowledg- mother had an unrestricted right Further, any unwed mother rary custody of the child and the ment of paternity did not vest any to do so. seeking to relocate must comply court ordered the surrender of the custodial rights or otherwise pro- Since the events which tran- with the statutory provisions on child’s passports to prevent fur- vide him standing to seek relief spired in the Ma r t i n e z matter, the relocation. In the absence of such ther escapades. The mother, there- under the Hague Convention. The Illinois Paternity Act has been compliance, the standing of the after, filed a wrongful retention ac- court noted that a judgment of amended at 750 ILCS 46/305(a) father to seek return of a child tion under the Hague Convention paternity does not confer any to recognize that a voluntary wrongfully abducted is vested un- on Civil Aspects of In t e r n at i o n a l rights of custody or visitation, and acknowledgment of paternity der the Hague Convention. Copyright © 2017 Law Bulletin Publishing Company. All rights reserved. Reprinted with permission from Law Bulletin Publishing Company.