May 16, 2022

IICLE Family Law Flash Points - May 2022

Petition for Maintenance Allowed Despite Filing After Deadline Set for Review PeriodThe Second District reversed a trial court’s order granting the husband’s motion to dismiss the wife’s petition for maintenance under the principle that adherence to arbitrary filing deadlines, which would bar maintenance for a disabled former spouse, was inequitable.In re Marriage of Watson,2022 IL App (2d) 210137, the court noted the case was “particularly extreme” given the wife’s severe mental health and substance abuse issues, her inability to support herself, and her level of need. 2022 IL App (2d) 210137 at ¶44. At issue was approximately eight days between the maintenance termination date and the date the petition to extend maintenance was filed. The trial court found the petition was untimely, but it granted the wife leave to file a new maintenance petition because reviewable maintenance is “always reviewable” on terms that the court deems just. 2022 IL App (2d) 210137 at ¶27. The trial judge who issued this ruling was then transferred, and a successor judge eventually granted the husband’s motion to dismiss the petition for maintenance on the grounds that the petition for maintenance was untimely. In addition to citing to the extreme inequity in barring the wife from continuing to receive maintenance, the appellate court also stated the original judge’s orders should have received more careful consideration and that it is incumbent on the successor judge to carefully scrutinize the prior proceedings to determine the court’s previous directives.Grandparent Visitation Denied Under Grandparent Visitation Statute When Child Has Subsequently Been AdoptedIn re V.S.,2022 IL App (2d) 210667, the grandmother appealed a trial court’s order granting the adoptive parents’ motion to dismiss her petition for grandparent visitation pursuant to §602.9 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101,et seq.The minor child had been adopted by her biological mother’s cousin and the cousin’s husband after the biological mother’s parental rights were terminated and the father never established parentage. The trial court dismissed the grandmother’s petition because she did not satisfy the necessary conditions of §602.9(c)(1) to seek grandparent visitation. The grandmother appealed, arguing that she satisfied subsection (c)(1)(E), which requires that (1) the child is born to parents who are not married to each other; (2) the parents are not living together; (3) the petitioner is a grandparent, great-grandparent, stepparent, or sibling of the child; and (4) the parent-child relationship has been legally established. The court held that subsection (c)(1)(E) has no application when a child has been adopted and that this subsection applies only when a biological parent has unreasonably denied visitation so as to cause harm to the child. The court also cited constitutional concerns that renders the subsection inapplicable in an adoption context since it is well-settled law that parents have a fundamental right to made decisions regarding the care, custody, and control of their children.Motion for Directed Finding Upheld on Parenting Time Modification PetitionIn re Marriage of Vickers,2022 IL App (5th) 200164, the appellate court affirmed the granting of a motion for directed finding made by the mother’s counsel at the end of the father’s case-in-chief on the basis that the father had not produced sufficient evidence to support a finding of a substantial change in circumstances or that a modification was in the best interests of the children. The only possible substantial change in circumstances was the mother’s move into a new residence only ten miles away, which resulted in a change of school districts. The evidence at the hearing did not show how this change negatively impacted the children or how it prevented the parties from being able to abide by their current allocation judgment. The trial court’s ruling was not against the manifest weight of the evidence based on the evidence presented. The appellate court vacated the trial court’s imposition of sanctions against the father under 750 ILCS 5/610.5(f), which permits the trial court to bar a parent from filing a motion to modify for a period of time if the parent has repeatedly filed frivolous motions for modification. In this case, the father filed an initial petition as a pro se litigant and then hired counsel, who put two amended petitions on file. The sanctions were improper because when an amendment merely attempts to bring the pleading up to date with available evidence, but the relief sought is generally the same, the amendment does not constitute a new cause of action and should not be deemed frivolous.Trial Court Reversed for Sua Sponte Modifying Parenting Schedule After Granting Motion for Directed FindingAfter an evidentiary postjudgment hearing on the modification of parenting time filed by the father, the trial court granted the mother’s motion for a directed finding on the basis that the father had not produced sufficient evidence that warranted a substantial change of circumstances or that a modification was in the best interests of the children.Vickers, supra.Thereafter, the court modified the parenting time, which resulted in giving the father some additional time under §610.5(e)(2) of the IMDMA, which permits a court to make minor modifications to a parenting plan without the showing of a substantial change in circumstances. The court’s minor modification order resulted in the father having an additional 13 days of parenting time. Pursuant to §2-1110 of the Illinois Code of Civil Procedure, 735 ILCS 5/1-101,et seq.,if a motion for directed finding is granted, a judgment dismissing the action shall be entered. The trial court erred in entering an order that granted 13 additional days of parenting time, which was not a minor modification, and deprived the mother the right to present any evidence to defend against the request for additional parenting time since her motion for directed finding was granted.

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