Jun 01, 2014

IICLE Family Law Flash Points - June 2014

1. Mootness doctrine precludes Supreme Court from rendering an opinion on the constitutionality of Section 607(e) of the Illinois Marriage and Dissolution of Marriage Act.The case came before the Supreme Court as a direct appeal from the Circuit Court of Cook County for a finding of whether section 607(e) of the IMDMA is unconstitutional. A father who had pled guilty to a Class 4 felony of criminal sexual abuse with a minor challenged the constitutionality of the statute as applied to him. The statute prohibits a non-custodial parent who has been convicted of a sexual offense perpetrated on a victim less than 18 years of age from obtaining court-ordered visitation with his or her children while serving his sentence until he has “successfully completed a treatment program approved by the court.” The trial court held the statute unconstitutional and reinstated his visitation on the basis that the statute violated both procedural and substantive due process as well as the separation of powers clause of the Illinois constitution. The Supreme Court stayed the order at the request of the Public Guardian’s office. After the parties and the Attorney General’s office had submitted briefs on the constitutionality issue, the father filed a motion back in the trial court seeking reinstatement of visitation arguing he was now in compliance with the statute. The parties did not agree, however, that the father had “successfully completed a treatment program approved by the court” as required by the statute. The father argued that he was in compliance because he had been evaluated by an authorized sex offender treatment provider in accord with the guidelines promulgated by the Sex Offender Management Board and the provider concluded that no additional treatment was necessary. The Public Guardian argued that the statute required him to complete a treatment program regardless of any recommendation or determination made by the approved sex offender treatment provider. The Supreme Court agreed with the father that his participation in the evaluation and the evaluator’s assessment and recommendation that no further treatment was necessary was sufficient to show compliance with the statute. Therefore, because he had now complied with the statute, the issue of whether the statute is constitutional was now moot. In re the Marriage of Donald B., 2014 IL 115463.2. Premarital agreement’s attorney-fee-shifting ban as to child-related issues violates Illinois public policy and is unenforceable. The parties’ premarital agreement contained the following language: “Neither party shall make any claim upon the other for costs or attorneys’ fees whether pendente lite or final, incurred in seeking or obtaining any such order or decree, notwithstanding any right to costs or attorneys’ fees a party otherwise may have pursuant to any statute of any jurisdiction.” Husband argued that the broad wording of this section covers all fees incurred in a dissolution proceeding, including those related to child support, custody, and visitation issues. The Appellate Court relied on In re the Marriaege of Best II,387 Ill.App.3d 948 (2009), which held that the fee-shifting ban in that particular agreement was not enforceable as to child-related issues because it discouraged parents from pursuing litigation in their child’s best interests, and therefore violated public policy. As a result, this agreement’s fee-shifting ban as to child-related issues was also in violation of public policy and therefore unenforceable. The Court noted, however, that the remainder of the agreement, pursuant to the severability clause as it was drafted, was unaffected by the holding. In re the Marriage of Heinrich, 2014 IL App (2d) 121333.3. Denial of motion to reconsider validity of premarital agreement upheld for lack of any newly discovered evidence. Husband filed a motion to reconsider the trial court’s ruling that a premarital agreement was valid and enforceable. In his motion, he argued for the first time allegations surrounding the execution of the agreement, including that he signed it under duress and that wife did not fully disclose her assets. The Court held that evidence was available to him when he first filed his declaratory judgment action and in no way constituted newly discovered evidence. The standard for seeking reconsideration for newly discovered evidence is that the evidence existed before the initial hearing but had not yet been discovered or was otherwise unobtainable. With respect to the specific allegation of concealment of assets, the Court found that the issue over whether a certain real estate entity had been disclosed at the execution of the premarital agreement was revealed when wife filed her financial disclosure statement in 2010, well before the hearing in 2011, and thus, husband could have brought this argument to light in the original declaratory judgment hearing. In re the Marriage of Heinrich, 2014 IL App (2d) 121333.4. First District rules equitable adoption doctrine does not exist in the context of divorce and custody proceedings even in light of recent Supreme Court ruling. In 2012 we reported on the case of In re the Marriage of Mancine, 2012 IL App (1st) 111138, where the father was denied standing to seek custody of a child his ex-wife had adopted on her own because he had failed to file the adoption papers during the marriage to make the child legally his. After the decision in that case, the Supreme Court issued its decision in DeHart v. DeHart, 2013 IL 114137, wherein it recognized an equitable adoption doctrine in a probate case where an adult child sought an inheritance from the man he thought was his legal father for his entire life. The Supreme Court then issued a supervisory order directing the Appellate Court to reconsider its opinion in Mancine in light of the DeHart decision. The First District reconsidered and decided not to extend the equitable adoption doctrine in the context of divorce, parentage or custody proceedings. The Court ruled the two cases were vastly different factually. In the probate proceeding, the adult child and the deceased believed he had been legally adopted by the deceased when he was a child. The evidence showed that the father pursued a legal adoption, hired an attorney, received a birth certificate naming him as the child’s father, but for some reason the adoption was never formalized. Also, the probate proceeding was a common law action where adoption, parentage and divorce are statutory actions wherein the statutes are clear concerning who is a parent, how a personal may become a parent through adoption, and what a parent’s right are. The Court concluded that to apply the concept of equitable adoption in the context of our statutory proceedings of adoption, parentage and divorce would undermine the entire family law structure enacted by our legislature. In re the Marriage of Mancine and Ganser, 2014 IL App (1st) 111138-B.5. The Second District leaves the door open for equitable adoption argument in light of DeHart decision. In contrast to Mancine, (above), the Second District which revisited the decision of In re Scarlett Z-D (2012), did not hold as a matter of law that the equitable adoption doctrine could never be applied to a custody case. It held that DeHart may present a potentially viable theory of standing for the father to obtain custody of a child his ex-fiance adopted herself from Slovakia. In this particular parentage case, there were 17 days of testimony and the court found that both the mother and the father had planned and participated in the Slovakian adoption process but that only the mother could adopt the child because the father was not a Slovakian citizen and was not married to the mother. The record showed that the father had paid for the adoption and was involved all along the way. The reason that the father did not formalize the process in the United States was unknown except for the “falling out” that occurred between the parties. The Court held that because the DeHart matter might present a potentially viable theory on which the father could assert standing, it remanded to the trial court to make additional factual findings, pursuant to the equitable adoption doctrine, to determine whether there is a “need in justice for this extraordinary equitable intervention.” In the event that it found that the father did have standing, the Court directed the trial court to have a best interest hearing. In re Parentage Z-D, 2014 IL App (2d) 120266-B.

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