January 02, 2001

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JUSTICE McLAREN delivered the opinion of the court:

The respondent, Benjamin Franklin McGuire, appeals the circuitcourt's dismissal of his petitions to, inter alia, modifyvisitation and establish supervised visitation between thepetitioner, Giovanna Dionne McGuire, and the parties' son. Wevacate the circuit court's order and remand for furtherproceedings.

On February 8, 1996, a judgment of dissolution was entered inthe district court of Ector County, Texas, dissolving the parties'marriage. The parties had one child, a son born September 4, 1991. The court appointed the mother and father as joint managingconservators of their son, but it gave the father the exclusiveright to establish the legal residence and domicile of the boy.

In December 1996, the father and son moved from Texas toNaperville, Illinois. Subsequently, the father and son moved toAurora, Illinois.

On December 3, 1998, the mother filed a "First AmendedPetition to Modify the Parent-Child Relationship" in Texas. Thispetition sought to change certain travel arrangements regarding theboy and the allocation of the travel costs. The petition did not,however, seek to change the length of visitation or custody. Thispetition was not served on the father until April 1999.

On December 4, 1998, the father filed in the Kane Countycircuit court petitions to enroll the Texas decree, for rule toshow cause and to increase child support, and to modify visitationand establish supervised visitation. The father asserted thatthese petitions were personally served on the mother by the EctorCounty sheriff in Texas on December 9, 1998.

On January 8, 1999, the mother filed a special and limitedappearance in Kane County circuit court and filed a motion todismiss the father's petition for lack of jurisdiction. The motheralso sought a judicial conference between the Kane County,Illinois, court and the Ector County, Texas, court, pursuant tosection 7 of the Uniform Child Custody Jurisdiction Act (750 ILCS35/7 (West 1998)). On March 3, 1999, the Kane County circuit courttook the matter under advisement.

On April 27, 1999, the mother filed a petition in Texas,seeking appointment as the sole managing conservator (sole custody)of the boy. The mother alleged in the petition that the father haddenied the mother visitation and contact with their son.

On June 25, 1999, the father filed petitions in the KaneCounty circuit court seeking a temporary restraining order toprevent the boy from being removed from Illinois to visit hismother in Texas. The father also sought the appointment of aguardian ad litem and an in camera conference with the boy. TheKane County circuit court found that the matter was not anemergency and set the matter over for a hearing. Two days later,the boy went to Texas to visit his mother.

On July 6, 1999, while the boy was in Texas with his mother,the Ector County, Texas, district court entered a default judgmentagainst the father and in favor of the mother, awarding solemanaging conservatorship (custody) of their son to the mother, withthe right to, inter alia, establish the primary residence of thechild.

On July 29, 1999, the Kane County, Illinois, circuit courtindicated that it had attempted to contact the Ector County, Texas,district court for a judicial conference, but the Texas court hadnot returned its phone call. On October 19, 1999, the Illinoiscourt held that, because it was unsuccessful in conducting ajudicial conference with the Texas court, it must defer to theTexas court regarding custody and visitation and dismissed thecase. The Kane County, Illinois, court then denied the father'smotion to reconsider on January 31, 2000.

On February 25, 2000, the father appealed the Texas court'sdefault order, which granted sole managing conservatorship to themother. On March 30, 2000, the Texas Court of Appeals reversed theTexas district court's default judgment, holding that the Texascourt lacked subject matter jurisdiction under the Uniform ChildCustody Jurisdiction Act (750 ILCS 35/et seq. (West 1998)) tomodify the joint managing conservatorship. McGuire v. McGuire, 18S.W.3d 801, 806 (Tex. App. 2000). In the opinion, the Texasappellate court stated that Illinois, not Texas, was the boy's homestate. McGuire, 18 S.W.3d at 806.

On May 26, 2000, the mother filed an "Amended Petition toModify Parent-Child relationship" in the Ector County districtcourt. In the petition the mother sought, inter alia, the right toestablish the domicile of her son and a "Standard Possession"visitation order for the father's visitation. The mother alsosought a temporary order granting her the right to establish thedomicile of her son, ordering the father to pay child support tothe mother while the case was pending, granting the mothertemporary managing conservatorship, and enjoining the father from,inter alia, removing the boy from Ector County, Texas, hiding theboy from the mother, changing the boy's current place of abode fromthe mother's Texas home, or "disturbing the peace of the child orof another party."

On June 1, 2000, the Ector County, Texas, district courtgranted the mother's request for a temporary restraining order enjoining the father from, inter alia, removing the boy from EctorCounty, Texas, hiding the boy from the mother, changing the boy'scurrent place of abode from the mother's Texas home, or "disturbingthe peace of the child or of another party." The Ector Countydistrict court ordered the father to appear for a hearing 10 daysafter the service of the temporary order. The court granted themother's request for the appointment of a process server inIllinois. The following day, on June 2, 2000, the mother filed afull appearance in the Kane County, Illinois, circuit court.

On June 6, 2000, the mother filed a motion to dismiss thisappeal and a motion to supplement the record with evidence that themother had filed a full appearance in the Kane County, Illinois,circuit court on June 2, 2000. This court took the motions withthis case.

On June 6, 2000, the mother filed a motion to dismiss thefather's appeal of the Illinois court's October 19, 1999, order. The mother states in her motion that she "withdraws her objectionsto jurisdiction within the state of Illinois, and seeks dismissalor remand of this appeal to permit the parties to proceed in thetrial court as soon as possible." The mother also stated that herattorney representing her in Texas spoke with the father's attorneyand they both "agreed to dismiss all petitions pending in Texas topermit proceedings in Illinois to commence."

On June 13, 2000, the father filed his answer to the mother'smotion to dismiss this appeal. In his answer, the father explainedthat he did not agree to dismiss the appeal because, as of June 13,2000, petitions seeking the modification of the custody andvisitation order filed by the mother were still pending in theTexas district court and had not been withdrawn.

On appeal, the father argues that the trial court erred whenit dismissed his petitions, finding that it had to defer to theTexas district court and to decline jurisdiction over the matter. The mother now concedes that Illinois, not Texas, has jurisdictionover this matter.

It is well settled that dismissal based on the lack ofjurisdiction is subject to de novo review when the facts are not indispute. See Gaidar v. Tippecanoe Distribution Service, Inc., 299Ill. App. 3d 1034, 1039-40 (1998). Further, a trial court'sinterpretation of a statute is also reviewed de novo. County ofKnox ex rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546, 551(1999).

Interstate custody disputes are governed by the Uniform ChildCustody Jurisdiction Act (Act) (750 ILCS 35/1 et seq. (West 1998)). The Illinois version of the Act provides in pertinent part:

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