Tuesday, October 3, 2017

Case of the Day: Kia W. v. H.M., 2017 Ill. App. Unpub. LEXIS 1684 (Ill. App. Ct. Aug. 14, 2017)


Appellant K.W. is a resident of Chicago, Illinois and paternal grandmother of E.S., a female infant. E.S. was born in prison in Bali, Indonesia, as her parents (both of whom are U.S. citizens) were incarcerated in Indonesia for murdering E.S.'s maternal grandmother. Pursuant to Indonesian prison regulations, E.S. was allowed to live with her mother until the age of two, after which the child's custody must be turned over a guardian. As E.S. turned two years old in March 2017, K.W. filed a petition to be appointed as E.S.'s guardian with the Illinois Circuit Court. The lower court denied the petition, citing lack of personal jurisdiction as there was no service of process effectuated to the parents who were imprisoned in Indonesia.

The Appellate Court affirmed. The court found that the service of process was inadequate, as there is no indication that the parents received notice. The court further found that E.S. did not have an estate in Illinois as E.S. was born in Indonesia and was never present in Illinois.


Holy cow, what a case. On one hand, I can see where the court is coming from. The entire case is being proceeded ex parte, with a pretty thin set of papers--essentially, no more than a FedEx receipt to an Indonesian city in the incarcerated parents' general vicinity. On the other hand, it is pretty hard to read with a straight face a sentence like this: "petitioner's allegation about the parent's continued incarceration for several more years fails to rebut the presumption that they are willing and able to make and carry out decisions about E.S.'s daily care." Seriously? Does the court really think a mother who would be in prison for eight more years and a father who would be in prison for 16 more years are able to carry out decisions about the daughter's daily care?

With a caveat that I am not an expert in family law--though I am one in international litigation--I don't necessarily see anything the court did that was wrong in the law. But this decision nonetheless is shocking in its heartlessness. A two-year-old U.S. citizen was born in a foreign prison and is about to taken out of the prison and put into a society with which (it appears) she has connection--and the court had nothing to say about that. As a matter of law, petitioner probably should have begun an action in Indonesia. But that's easy for me to say, since my clients are usually multi-billion dollar corporations doing business all around the world. In a case like this, the court should have done more to assist the petitioner and ultimately E.S.

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