Apr 01, 2014

IICLE Family Law Flash Points - April 2014

1. Post-judgment sole custody award to father upheld even though he did not petition for it. In a post-judgment custody trial where mother brought a petition for modification of a joint custody arrangement and sought sole custody of the parties’ 10-year old daughter, the trial court heard evidence from a 604(b) custody evaluator, the child’s school social worker, teacher, and other fact witnesses and ultimately grated father sole custody. Father did not seek sole custody himself, but brought a petition to be named the child’s residential parent and for the joint custody arrangement to continue. The 604(b) recommended that the mother be awarded sole custody. The trial court found that the mother’s testimony lacked credibility and that her actions could potentially alienate the daughter from a healthy relationship with her father. The court found that the factor regarding “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child” weighed heavily in favor of the father. The Appellate Court affirmed the decision noting that a 604(b) report is expert advice and the court is not bound to abide by such opinions. And although the father did not specifically request sole custody, once the issue was placed before the court, the court possessed broad discretion to alter custody or visitation rights to the extent required by the child’s best interests. In re Marriage of Debra N., 2013 IL App (1st) 122145.2. Invoking fifth amendment privilege against self-incrimination does not shift the burden back to the petitioner in a rule to show cause hearing. At a hearing on a Petition for Rule to Show Cause after the rule had issued and the Respondent was ordered back in court to testify as to why he had failed to pay temporary support pursuant to a prior order, the Respondent took the fifth amendment. He represented that he was under investigation for the nonpayment of taxes and any evidence on his current inability to pay could incriminate himself. The trial court subsequently found him in contempt of court and set the purge at approximately 20% of the amount owed on the arrearage. Respondent appealed the contempt order. The Appellate Court noted that at the hearing the burden had already shifted to him to show why he should not be held in contempt and that instead of presenting evidence to that effect he chose to assert his fifth amendment rights. In that case, the burden did not shift back to the Petitioner to show that the Respondent had the ability to pay. Instead, Respondent was attempting to use the fifth-amendment as a sword to defeat allegations of contempt, not a shield against self-incrimination, as it was intended. The trial court’s order was upheld. In re the Marriage of Ray, 2014 IL App (4th) 130326.3. Judge who recused herself from case could not enter subsequent orders, including an emergency order of protection. In a case involving a plethora of pro se motions and appeals by the Respondent, the Appellate Court held that the same principle should apply to a judge who has recused himself or herself as would happen if a judge had been substituted for cause – namely, he or she is no longer able to enter any further orders in the case. In this particular case, which was wrought with numerous petitions by ex-husband to contest the validity of an underlying divorce action and multiple extensions of a post-judgment order of protection, a trial judge who had initially recused herself from the case had the matter transferred back to her for hearing on an emergency ex parte petition for order of protection, which the judge granted. The Appellate Court was forced to overturn the order because the ex-husband had a right to a hearing before a judge who had not been disqualified, but ruled that the ex-wife should not be put in jeopardy of the order of protection being invalidated. The Court ordered that the order of protection was to remain in effect until the case could be heard on remand. Brzowski v. Brzowksi., 2014 IL App (3d) 130404.4. Trial court’s order denying mother’s petition to relocate to California was not a final, appealable order nor a “custody judgment” under SCR 304(b)(6). In a Parentage action, mother filed a petition to relocate to California with the parties’ minor child due to not being able to find employment in Chicago and having reason to believe an offer was imminent in California. The trial court denied her petition. Prior to mother filing a Notice of Appeal, the father filed a Petition for Custody, a Petition to Set Parenting Schedule and a Petition to Reduce Support. Mother also requested a Modification of Child Support by father and filed a Petition for Attorneys’ Fees and Costs. The Appellate Court held that it did not have jurisdiction to hear mother’s appeal because the order denying her removal petition was not a final, appealable order since father’s custody petition remained pending. The Court distinguished its ruling in In re Marriage of Demaret, 2012 IL App (1st) 111916 where it found it had jurisdiction to hear the appeal of a removal order when the only pleading pending before the trial court was a petition for fees. The Court also did not have jurisdiction to hear the appeal under SCR 304(b)(6) which provides for an immediate appeal of a custody judgment because the issue of removal, while related to custody, is not custody for purposes of vesting the Appellate Court with jurisdiction. In re the Parentage of Rogan, 2014 IL App (1st) 132765.

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