{ "id": 2622196, "name": "In re CUSTODY OF CATRINA MARIE BOZARTH (Cheryel McKerr, Petitioner-Appellant, v. Elmer Bozarth, Respondent-Appellee)", "name_abbreviation": "McKerr v. Bozarth", "decision_date": "1989-05-04", "docket_number": "No. 2\u201488\u20140776", "first_page": "345", "last_page": "357", "citations": [ { "type": "official", "cite": "182 Ill. App. 3d 345" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "145 Ill. App. 3d 379", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3537195 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0379-01" ] }, { "cite": "35 Wash. App. 830", "category": "reporters:state", "reporter": "Wash. App.", "opinion_index": 0 }, { "cite": "730 P.2d 1380", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "pin_cites": [ { "page": "1388" }, { "page": "1388" } ], "opinion_index": 0 }, { "cite": "46 Wash. App. 493", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1812048 ], "weight": 3, "pin_cites": [ { "page": "507" }, { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/wash-app/46/0493-01" ] }, { "cite": "22 Vand. L. Rev. 1207", "category": "journals:journal", "reporter": "Vand. L. Rev.", "year": 1969, "opinion_index": 0 }, { "cite": "670 P.2d 287", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 4, "pin_cites": [ { "page": "292" }, { "page": "292" }, { "page": "292" } ], "opinion_index": 0 }, { "cite": "35 Wash. App. 822", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1779532 ], "weight": 3, "pin_cites": [ { "page": "830" }, { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/wash-app/35/0822-01" ] }, { "cite": "671 P.2d 808", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "810" } ], "opinion_index": 0 }, { "cite": "36 Wash. App. 77", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1781975 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/wash-app/36/0077-01" ] }, { "cite": "105 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5469775 ], "weight": 2, "pin_cites": [ { "page": "362" }, { "page": "361-62" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0355-01" ] }, { "cite": "131 Ill. App. 3d 119", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3436621 ], "year": 1982, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0119-01" ] }, { "cite": "133 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529981 ], "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0753-01" ] }, { "cite": "131 Ill. App. 3d 1029", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3435034 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/1029-01" ] }, { "cite": "117 Ill. App. 3d 394", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481857 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0394-01" ] }, { "cite": "156 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505428 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0262-01" ] }, { "cite": "Wash. Rev. Code Ann. \u00a726.27.130", "category": "laws:leg_statute", "reporter": "Wash. Rev. Code Ann.", "year": 1986, "opinion_index": 0 }, { "cite": "Wash. Rev. Code Ann. \u00a726.27.070", "category": "laws:leg_statute", "reporter": "Wash. Rev. Code Ann.", "weight": 2, "year": 1986, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "Wash. Rev. Code Ann. \u00a726.27.030", "category": "laws:leg_statute", "reporter": "Wash. Rev. Code Ann.", "weight": 7, "year": 1986, "pin_cites": [ { "page": "(2)" }, { "parenthetical": "a" }, { "page": "(1)(a)" } ], "opinion_index": 0 }, { "cite": "Wash. Rev. Code Ann. \u00a7\u00a726.27.020", "category": "laws:leg_statute", "reporter": "Wash. Rev. Code Ann.", "opinion_index": 0 }, { "cite": "Wash. Rev. Code Ann. \u00a7\u00a726.27.060", "category": "laws:leg_statute", "reporter": "Wash. Rev. Code Ann.", "weight": 3, "pin_cites": [ { "page": "(1)" }, { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "Wash. Rev. Code Ann. \u00a726.27.010", "category": "laws:leg_statute", "reporter": "Wash. Rev. Code Ann.", "weight": 2, "year": 1986, "pin_cites": [ { "page": "et seq." }, { "page": "(1)(b)" } ], "opinion_index": 0 }, { "cite": "Wash. Rev. Code Ann. \u00a726.26.010", "category": "laws:leg_statute", "reporter": "Wash. Rev. Code Ann.", "year": 1986, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 877, "char_count": 29500, "ocr_confidence": 0.77, "pagerank": { "raw": 7.591356421208395e-08, "percentile": 0.449665791326058 }, "sha256": "c38585ec46d2753fb16a2dbf0c2f6d3020c816e61ee86c759b76fd0044c07020", "simhash": "1:9ca2e9de7a8359d9", "word_count": 4851 }, "last_updated": "2023-07-14T18:08:14.831486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re CUSTODY OF CATRINA MARIE BOZARTH (Cheryel McKerr, Petitioner-Appellant, v. Elmer Bozarth, Respondent-Appellee)." ], "opinions": [ { "text": "PRESIDING JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nThe petitioner, Cheryel McKerr, appeals from the judgment of the trial court which dismissed her petition seeking custody of her granddaughter, Catrina Marie Bozarth, pursuant to the Uniform Child Custody Jurisdiction Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2102 et seq.). The petitioner asserts that the trial court erred in determining that the superior court of the State of Washington properly exercised jurisdiction in accordance with the Act. The petitioner further urges that the trial court erroneously deferred to the judgment of the Washington court and found that it was compelled to abide by such judgment pursuant to sections 7 and 14 of the Act (Ill. Rev. Stat. 1987, ch. 40, pars. 2107, 2114). We agree with the petitioner\u2019s contentions and reverse the judgment of the trial court and remand the cause.\nThe following review of the record is pertinent to our consideration of the petitioner\u2019s appeal. The respondent, Elmer Bozarth, is a resident of the State of Washington and is the father of the minor child, Catrina Marie Bozarth. Catrina was born to the respondent and Wendy Kay Overman on February 6, 1984, in Tacoma, Washington. Overman, who was 16 at the time of Catrina\u2019s birth, and the respondent never married. Approximately five months after Catrina\u2019s birth, Overman abandoned the child and the respondent, and her whereabouts were and are unknown. The respondent voluntarily relinquished custody of Catrina to his mother, petitioner Cheryel McKerr, on October 4, 1984, when the child was approximately eight months old. The petitioner, an Illinois resident, returned to the State of Illinois with the child, where they have continuously resided through the date of the instant appeal. Thus, Catrina, now five years old, has resided with her paternal grandmother in the State of Illinois since infancy.\nOn October 6, 1987, respondent filed an amended petition to determine paternity accompanied by an affidavit and a motion for order to show cause in the superior court of Washington for Pierce County in the State of Washington. The affidavit, signed by the respondent\u2019s Washington counsel, stated:\n\u201cThat Petitioner\u2019s [Elmer Bozarth\u2019s] mother, CHERYL [sic] McKERR, currently has custody of the minor child, CATRINA MARIE BOZARTH. That she has had custody for approximately three years. That she took the child from the Petitioner and proceeded to take the child out of the state. *** That I believe that Petitioner\u2019s [respondent\u2019s] mother, CHERYL [sic] McKERR should be ordered to bring the child back into this state and turn the custody over to Petitioner [respondent] pending the outcome of this action.\u201d\nThe Washington court issued an order to show cause on October 6, 1987, ordering the petitioner to appear in court in Tacoma, Washington, on December 4, 1987, to show why temporary custody of Catrina should not be granted to the respondent.\nOn November 13, 1987, the petitioner filed a petition for custody pursuant to the Act, alleging that she was a \u201ccontestant\u201d within the meaning of the Act and asserting that the circuit court for the Nineteenth Judicial Circuit, Lake County, had jurisdiction over her petition pursuant to section 4 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2104). The petitioner further alleged that Catrina had resided in the State of Illinois in excess of six months, that there was available in the State of Illinois substantial evidence concerning her present and future care, protection, custody, training, and personal relationships, and that the child had a significant connection with the State of Illinois. The petitioner further disclosed to the court the pendency of Bozarth\u2019s paternity action in the superior court of the State of Washington.\nThe petitioner appended to her petition a sheriff\u2019s return of service in which Ronald Rauch, a deputy sheriff in Pierce County, Washington, certified that he had effected personal service on the respondent on November 30,1987.\nOn December 4, 1987, the Pierce County superior court issued a paternity decree declaring Elmer Bozarth the natural father of Catrina. In its findings of fact and conclusions of law, the Pierce County superior court declared that jurisdiction was obtained over Catrina \u201cby service of Summons and Petition on the Respondent [Catrina Marie Bozarth] by certified mail.\u201d The court found Bozarth and Wendy Kay Overman to be \u201cfit and proper persons to have the care, custody and control of the minor child,\u201d and, from these findings, the court concluded that Bozarth and Overman should be awarded joint custody of the child, with physical custody being awarded to Bozarth.\nThere is no indication in the Washington court\u2019s findings and conclusions, nor anywhere else in the record before us, that the respondent in this action, Elmer Bozarth, informed the Washington court that there was a custody proceeding pending in the State of Illinois at the time it issued its decree. It is also apparent that although the Washington court appointed a guardian ad litem for Catrina on August 21, 1987, the guardian\u2019s report was not submitted to the court until December 23, 1987, some 19 days after it had issued its paternity decree and custody award.\nThe guardian\u2019s report reveals that it was based upon two interviews, one with Elmer Bozarth, and the other with Toni Pollock, who the guardian indicates is Bozarth\u2019s wife. (We note that a pleading Bozarth submitted to this court states \u201che was getting married.\u201d) Both of these interviews took place on October 5, 1987. The guardian\u2019s report includes in its findings that McKerr, the paternal grandmother of Catrina, had had temporary custody of the child for nearly three years, outside the State of Washington; that Wendy Kay Overman, Catrina\u2019s natural mother, was 16 years old at the time Catrina was bom; that she never married Catrina\u2019s father; and that \u201c[s]hortly after Catrina\u2019s birth, [she] went to work for the Job Corps somewhere in Oregon and has had next to no interaction with Catrina *** [and her] whereabouts are unknown.\u201d The guardian further reported that she was unable to interview McKerr \u201cand has only hearsay information on which to base any opinion as to her appropriateness as a custodian of Catrina.\u201d The guardian\u2019s report concluded that, \u201cIn the best interest of this child, this Guardian ad litem [recommends that] custody be awarded to Elmer Bozarth, natural father and petitioner herein.\u201d\nOn December 18, 1987, the respondent filed his response to McKern\u2019s petition in the Illinois circuit court. In his response, he admitted that the child was currently located in the State of Illinois and that he had voluntarily relinquished custody of Catrina to his mother on October 4, 1984. He asserted that until December 4, 1987, the date of the Pierce County superior court paternity decree, \u201cI had [no] rights with regards to Catrina as there was nothing showing me to be the father.\u201d (We note that in a later pleading filed in the Illinois circuit court, Bozarth attached a photocopy of a \u201cCertificate of Live Birth\u201d for Catrina received by the registrar of the State of Washington Department of Social and Health Services, on February 28, 1984, naming him as the father of the child.) Finally, the respondent asserted that the Illinois court should give full faith and credit to the decree of the Washington court which awarded him physical custody of the child.\nOn February 2, 1988, the respondent filed a motion to contest the jurisdiction of the Illinois court, claiming that section 7 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2107) prohibited the court from exercising its jurisdiction. The respondent further asserted that the Illinois court was required to recognize the Washington court\u2019s order of December 4, 1987, pursuant to section 14 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2114). The circuit court for the Nineteenth Judicial Circuit, Lake County, permitted the respondent to file his motion contesting jurisdiction on February 2, 1988, and allowed the petitioner to file a response, which she did on March 8,1988.\nThe respondent filed a reply March 30, 1988, in which he alleged that Catrina had lived in the State of Washington the first year of her life and that her mother had always resided in the State of Washington. He further alleged that he and Overman never relinquished their rights as parents and that McKerr had no legal rights to the child nor standing to bring any action. He claimed that \u201cthe Court of the State of Washington has already litigated the issue of custody of the minor child having obtained personal jurisdiction over CHERYEL McKERR and other parties through service of process.\u201d He further claimed that through the Washington Parentage Act (Wash. Rev. Code Ann. \u00a726.26.010 et seq. (1986)), the State acquired the jurisdiction over the parties over the issue of custody of the minor child.\nIn a letter dated May 2, 1988, the trial court informed the parties that it was granting the respondent\u2019s motion contesting jurisdiction as it found that the Washington court\u2019s custody order was entered pursuant to the Act. The trial court thus concluded that section 14 of the Act compelled it to recognize the Washington decree. The court further noted that the petitioner had notice of the Washington proceedings and failed to object to that court\u2019s exercise of jurisdiction.\nThe petitioner filed a timely motion to reconsider, contending that the Illinois court had the right and obligation to assume jurisdiction over her petition for custody of Catrina. The trial court denied the motion. It found that although both States could assert jurisdiction, it was \u201ctoo late, however, for Ms. McKerr to argue that Illinois is the more appropriate forum in light of the fact that Washington has already made a custody determination.\u201d The petitioner\u2019s timely appeal ensued.\nThe record before us clearly establishes the interstate nature of the custody actions concerning Catrina Marie Bozarth as filed by the parties in the courts of the States of Illinois and Washington. Thus, the matter must be resolved by either court according to the provisions of Uniform Child Custody Jurisdiction Act, which has been enacted in both States (Ill. Rev. Stat. 1987, ch. 40, par. 2101 et seq; Wash. Rev. Code Ann. \u00a726.27.010 et seq. (1986)). A review of both States\u2019 enactments reveals each has adopted the Act as drafted by the National Conference of Commissioners on Uniform State Laws with essentially no substantive changes. See generally 9 U.L.A. 123 et seq. (1988).\nAmong the stated purposes of the Act are the promotion of cooperation with courts of other States so that custody judgments may be rendered in the State which may best decide the case in the interest of the child and the assurance that litigation concerning the custody of the child will take place ordinarily in the State where the child and his family have the closest connection (Ill. Rev. Stat. 1987, ch. 40, pars. 2102(2), (3); see also Wash. Rev. Code Ann. \u00a7\u00a726.27.010(1)(b), (1)(c)). The Act further encourages Illinois courts to decline jurisdiction in matters where a child and his family have a closer connection -with another State and to exchange information and other mutual assistance with the courts of other States concerning matters about the same child (Ill. Rev. Stat. 1987, ch. 40, pars. 2107, 2108; see also Wash. Rev. Code Ann. \u00a7\u00a726.27.060, 26.27.070).\nThe Act provides the following definitions which are relevant to the dispute before us:\n\u201c\u00a73.01. \u2018Contestant\u2019 means a person, including a parent, who claims a right to custody or visitation rights with respect to a child.\u201d Ill. Rev. Stat. 1987, ch. 40, par. 2103.01.\n\u201c\u00a73.04. \u2018Home state\u2019 means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months ***.\u201d Ill. Rev. Stat. 1987, ch. 40, par. 2103.4.\n\u201c\u00a73.08. \u2018Physical custody\u2019 means actual possession and control of a child.\u201d Ill. Rev. Stat. 1987, ch. 40, par. 2103.08.\n\u201c\u00a73.09 \u2018Person acting as parent\u2019 means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.\u201d Ill. Rev. Stat. 1987, ch. 40, par. 2103.09.\nSee also Wash. Rev. Code Ann. \u00a7\u00a726.27.020 (1), (5), (8), (9) (1986).\nThe Act sets forth the following jurisdictional requirements:\n\u201c\u00a74. Jurisdiction, (a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:\n1. this State\n(i) is the home state of the child at the time of commencement of the proceeding, or\n(ii) had been the child\u2019s home state \"within 6 months before commencement of the proceeding ***; or\n2. it is in the best interest of the child that a court of this State assume jurisdiction because\n(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and\n(ii) there is available in this State substantial evidence concerning the child\u2019s present or future care, protection, training, and personal relationships; or\n* * *\n4. (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs 1., 2., or 3., or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and\n(ii) it is in the best interest of the child that this court assume jurisdiction.\u201d (Ill. Rev. Stat. 1987, ch. 40, par. 2104.)\n(See also Wash. Rev. Code Ann. \u00a726.27.030 (1986).) This section of the Act provides that while the physical presence of the child in the State is desirable, it is not a prerequisite for jurisdiction; additionally, such presence is not sufficient without more to confer jurisdiction. Ill. Rev. Stat. 1987, ch. 40, par. 2104(c), (d); see also Wash. Rev. Code Ann. \u00a7\u00a726.27.030(2), (3) (1986).\nSection 7 of the Act proscribes the courts of this State from exercising jurisdiction if, at the time a petition is filed under the Act, a custody proceeding concerning the same child is pending in a court of another State exercising jurisdiction substantially in conformity with the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 2107(a); see also Wash. Rev. Code Ann. \u00a726.27.060(1) (1986).) This section directs a court of the State of Illinois to communicate with the courts of other States when it believes that proceedings are pending elsewhere \u201cto the end that the issue may be litigated in the more appropriate forum.\u201d Ill. Rev. Stat. 1987, ch. 40, par. 2107(c); see also Wash. Rev. Code Ann. \u00a726.27.060(3) (1986).\nIn the event that more than one State satisfies the jurisdictional requirements of the Act, section 8 provides authority whereby Illinois courts may decline jurisdiction on the ground of forum non conveniens. (Ill. Rev. Stat. 1987, ch. 40, par. 2108; see also Wash. Rev. Code Ann. \u00a726.27.070 (1986).) This section sets forth the factors the court should consider in determining whether it is an inconvenient forum and authorizes the court to communicate with the courts of other States and to exchange pertinent information regarding the assumption of jurisdiction by either court \u201cwith a view to assuring jurisdiction will be exercised by the most appropriate court.\u201d Ill. Rev. Stat. 1987, ch. 40, par. 2108(d); see also Wash. Rev. Code Ann. \u00a726.27.070(4) (1986).\nLastly, section 14 of the Act requires Illinois courts to recognize and enforce initial or modification custody judgments of courts of other States under certain conditions, namely, when a court of another State has \u201cassumed jurisdiction under statutory provisions substantially in accordance with this Act or [made its judgment] under factual circumstances meeting the jurisdictional standards of the Act.\u201d Ill. Rev. Stat. 1987, ch. 40, par. 2114; see also Wash. Rev. Code Ann. \u00a726.27.130 (1986).\nThe authority for the filing of a child custody petition is found in section 601 of the Illinois Marriage and Dissolution of Marriage Act, which provides that a nonparent may file such a petition only if the subject child is not in the physical custody of one of her parents. (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).) Thus the initial consideration faced by the trial court in the instant matter is whether the petitioner had standing to file her custody petition regarding Catrina. Given that Catrina\u2019s natural father voluntarily surrendered her care and custody to the petitioner while the child was still an infant, and the petitioner\u2019s care and custody continued uninterrupted for approximately three years, we conclude that Catrina was not in the physical custody of her natural father. Additionally, the record clearly establishes that Catrina\u2019s natural mother abandoned the child while she was an infant. Thus we determine that the petitioner, Cheryel McKerr, Catrina\u2019s paternal grandmother, has standing to initiate custody proceedings. See Montgomery v. Roudez (1987), 156 Ill. App. 3d 262; see also In re Custody ofMenconi (1983), 117 Ill. App. 3d 394.\nWe next consider whether the courts of Illinois have jurisdiction pursuant to the Act. The facts alleged by both parties establish that the child has resided with the petitioner in this State since approximately October 4, 1984. Having previously concluded that the child is not in the physical custody of either of her parents, we believe it logical to find that the child is in the physical custody of the petitioner, who is clearly a \u201cperson acting as parent\u201d within the meaning of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2103.09). Thus, we determine that Illinois is Catrina\u2019s \u201chome state\u201d as she has resided in this State for at least six months immediately preceding the initiation of McKerr\u2019s petition, with the petitioner, who is a \u201cperson acting as parent,\u201d thus satisfying the requirements of section 3.04 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2103.04).\nThe determination that Illinois is Catrina\u2019s home State dictates that the courts of Illinois have jurisdiction to make a child custody determination concerning her pursuant to section 4 (a)(1)(i) of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 2104 (a)(1)(i).) Even though it is manifest that the State of Illinois is Catrina\u2019s home State (see In re Marriage of Miche (1985), 131 Ill. App. 3d 1029), the courts of Illinois would likewise be eligible to assume jurisdiction pursuant to the \u201cbest interest\u201d test set forth in section 4(a)(2) of the Act, which requires a two-part showing that (1) the child and a parent or contestant have a significant connection with the State; and (2) substantial evidence concerning the child\u2019s present or future care, protection, training and personal relationships is readily available in the State (Ill. Rev. Stat. 1987, ch. 40, pars. 2104(a)(2)(i), (a)(2)(ii)). Catrina has resided in Illinois over three years with her paternal grandmother, a contestant in the instant action; these two individuals undeniably have a significant connection with the State (see Jennings v. Jennings (1985), 133 Ill. App. 3d 753, 756). We think it clear that, under these circumstances, there is available in this State substantial evidence concerning Catrina\u2019s present and future care, etc. (See Hollo v. Hollo (1985), 131 Ill. App. 3d 119, 125; see also In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 362.) Thus, with regard to Catrina, the courts of Illinois have jurisdiction to make a child custody determination pursuant to both major bases set forth in section 4 of the Act. Ill. Rev. Stat. 1987, ch. 40, pars. 2104(a)(1), (a)(2)). See generally 9 U.L.A. Comment, at 144-45 (1988).\nAlthough the Illinois court\u2019s jurisdiction regarding Catrina\u2019s custody determination is unquestioned, such jurisdiction may not be exercised if, at the time the petitioner filed her petition, a similar custody proceeding was pending in another State, as provided in section 7 of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 2107.) The trial court in the instant matter made such a determination and found that it was prohibited from exercising jurisdiction as a similar proceeding was already pending in the superior court of the State of Washington in Pierce County. We believe that the trial court\u2019s finding that the Washington court was operating under the provisions of the Act when it entered its paternity decree and custody award on December 4, 1987, was in error. There is no indication in the Washington pleadings contained in the record on appeal that the Washington court ever considered the jurisdictional requirements set forth in section 4 of the Act (see Wash. Rev. Code Ann. \u00a726.27.030 (1986)). It is further made apparent by these pleadings that the Pierce County court was fully informed that the child in question was not a Washington resident and had not been for some time. Plainly Washington was and is not Catrina\u2019s \u201chome state.\u201d (Wash. Rev. Code Ann. \u00a726.27.030 (1)(a) (1986).) The Washington court was made aware of the interstate nature of the case as of October 6, 1987; yet in its findings dated December 4, 1987, it declared that it had obtained jurisdiction over Cheryel McKerr, the petitioner in the instant matter, \u201cby service of Summons and Petition *** by certified mail.\u201d Such a finding of jurisdiction is not authorized by the Act. See generally Wash. Rev. Code Ann. \u00a726.27.030 (1986); see also Ill. Rev. Stat. 1987, ch. 40, par. 2104.\nThe Washington appellate court has considered child custody matters which are initiated in other than the child\u2019s home State and has relied upon the principles for determining jurisdiction as set forth in the \u201cbest interest\u201d test contained in section 26.27.030(1)(b) of the Washington Revised Code Annotated (compare Ill. Rev. Stat. 1987, ch. 40, pars. 2104(a)(2)(i), (a)(2)(h)) in In re Marriage of Steadman (1983), 36 Wash. App. 77, 671 P.2d 808, and Hudson v. Hudson (1983), 35 Wash. App. 822, 670 P.2d 287. In Steadman, the Washington court concluded that it, rather than the Maine court, had jurisdiction to decide a custody dispute over an infant where neither State was the child\u2019s \u201chome state.\u201d It held that the presence of the mother\u2019s family members in Washington established a \u201csignificant connection\u201d for her and upheld the trial court\u2019s finding that the infant had a significant connection with the State, and it determined that substantial evidence existed within the State concerning his best interests. The court concluded:\n\u201cThus, the requirements of RCW 26.27.030(1)(b) have been met: both [mother and child] have a \u2018significant connection\u2019 with Washington, and the evidence necessary to determine the elements of custody is available to the court. Jurisdiction was properly accepted.\u201d 36 Wash. App. at 80, 671 P.2d at 810.\nIn Hudson, decided the same year as Steadman, the Washington appellate court interpreted the \u201cbest interest\u201d test as found in section 3 of the Uniform Child Custody Jurisdiction Act as enacted in Indiana and stated, \u201cUnder this test, the state with jurisdiction is the one which has maximum access to relevant evidence regarding the child\u2019s \u2018present or future care, protection, training, and personal relationships.\u2019 \u201d (Emphasis added.) 35 Wash. App. at 830, 670 P.2d at 292.) The Hudson court recognized that the most significant evidence concerning these facts \u201cwill have to come from the parents themselves, [or] from other persons who might be entrusted with the care of the child.\u201d (Hudson, 35 Wash. App. at 830, 670 P.2d at 292, quoting the commentator, Bridgitte M. Bodenheimer, in The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand. L. Rev. 1207 (1969).) The Hudson court concluded that as the facts established the child had a significant connection with the State of Indiana, the court was mandated to recognize the Indiana custody award.\nAs in Steadman and Hudson, Washington was clearly not the \u201chome state\u201d at the time Elmer Bozarth initiated his paternity action and sought custody of Catrina. Therefore, the superior court in Pierce County was required to apply the \u201cbest interest\u201d principles set forth in section 26.27.030(1)(b) of the Washington Revised Code Annotated in order to determine whether it could properly assume jurisdiction. It is apparent on the face of the pleadings from the Washington court that no such findings of significant connections and availability of substantial evidence were ever made.\nMore recently, the Washington appellate court has again applied the \u201cbest interest\u201d test as well as the \u201chome state\u201d test provided in section 3 of the Uniform Act (see also Wash. Rev. Code Ann. \u00a7\u00a726.27.030(1)(a), (b) (1986)) in In re Custody of Thorensen (1987), 46 Wash. App. 493, 730 P.2d 1380. There the Washington court held that it had jurisdiction flowing from both criteria to modify a Florida decree, and it was not precluded from assuming such jurisdiction by the already pending action in Florida because the Florida action was not in compliance with the Uniform Act\u2019s jurisdictional requirements. The court stated:\n\u201c[W]e find that the exercise of jurisdiction by the Washington court serves one of the major purposes of the UCCJA of assuring that litigation take place in the state with the closest connection with the child and where the most significant evidence concerning the child\u2019s care, protection, training, and personal relationships is available. RCW 26.27.010(1)(c). *** [T]he best interest of the child is served if the forum for the litigation is the state having the best access to relevant evidence.\u201d Thoren son, 46 Wash. App. at 507, 730 P.2d at 1388.\nThe Thorenson court recognized, as had the Hudson court, that the Act requires maximum rather than minimum contact in order to satisfy the mandate of \u201csignificant connections.\u201d (Thorenson, 46 Wash. App. at 507, 730 P.2d at 1388; Hudson, 35 Wash. App. 830, 670 P.2d at 292.) This requirement has been similarly interpreted and applied by the courts in Illinois, where it has been further stated that the \u201csubstantial evidence\u201d requirement is not intended to be used as a substitute for \u201csome evidence\u201d but clearly requires a high degree of connection and access to evidence. See In re Marriage of Miche (1985), 131 Ill. App. 3d at 1032; In re Marriage of Levy (1982), 105 Ill. App. 3d at 361-62.\nWe think it clear on the face of the record before us that no facts supporting a finding, of significant connections exist between Catrina, the petitioner, and the State of Washington. Likewise, the facts fail to support a finding that substantial evidence concerning Catrina\u2019s present or future care, protection, training, and personal relationships is readily available in the State of Washington. Thus we conclude the superior court of the State of Washington in Pierce County did not properly assume jurisdiction, and when it issued its decree of paternity and custody award December 4, 1987, it failed to exercise jurisdiction substantially in conformity with the Act.\nIn view of our conclusions above, we hold that the trial court was not compelled to recognize and enforce the custody order of the Washington court pursuant to section 14 of the Act, as it is plain that that court had not properly assumed jurisdiction under the Act, nor was its order made under factual circumstances meeting the jurisdictional standards of the Act. But see In re Marriaqe of Dagher (1986), 145 Ill. App. 3d 379.\nAt the risk of belaboring the jurisdictional requirements set forth in the Act, we note that the trial court erroneously concluded that the Washington court had jurisdiction regarding the instant custody dispute because the petitioner herein received notice and failed to object to that court exercising jurisdiction. In its later order denying the petitioner\u2019s motion to reconsider, the trial court found that Washington had a basis for asserting jurisdiction concurrent with the State of Illinois, but concluded that it was too late for the petitioner to argue that Illinois was the more appropriate forum as the Washington court had already made a custody determination. These findings of the trial court are patently in violation of the jurisdictional requirements set forth in section 4 of the Act as it is enacted in both the States of Illinois and Washington. (See Ill. Rev. Stat. 1987, ch. 40, par. 2104; Wash. Rev. Code Ann. \u00a726.27.030 (1986)). A contestant\u2019s failure to act does not vest an inappropriate court with jurisdiction, nor does the fact that one court has succeeded in issuing a custody order sooner than another court endow it with jurisdiction if it does not meet the requirements of the Act. In short, McKerr\u2019s failure to object to the paternity action in Washington and that court\u2019s haste in issuing an unsupported custody order do not satisfy either the \u201chome state\u201d or \u201cbest interest\u201d criteria essential for the establishment of jurisdiction under the Act.\nThe judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nDUNN and McLAREN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE UNVERZAGT" } ], "attorneys": [ "Robert W. Brown, of Dunlap & Brown, Ltd., of Libertyville, for appellant.", "Charles E. Rapin, of Law Offices of Howard M. Lang, of Libertyville, for appellee." ], "corrections": "", "head_matter": "In re CUSTODY OF CATRINA MARIE BOZARTH (Cheryel McKerr, Petitioner-Appellant, v. Elmer Bozarth, Respondent-Appellee).\nSecond District\nNo. 2\u201488\u20140776\nOpinion filed May 4, 1989.\nRobert W. Brown, of Dunlap & Brown, Ltd., of Libertyville, for appellant.\nCharles E. Rapin, of Law Offices of Howard M. Lang, of Libertyville, for appellee." }, "file_name": "0345-01", "first_page_order": 367, "last_page_order": 379 }