ILLINOIS DIVORCE LAW BLOG

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I have a number of clients who express concern about their divorce and the impact on their children. Are there any guidleines for parents to follow? Below are some thoughts and guidelines for parents anticipating divorce or in a divorce process. Be mindful that there are alternatives to traditional litigated divorce, such as a collaborative divorce. Lowering the temperature on a contested divorce and custody case also has benefits where the children are concerned.

1. Never disparage your former spouse in front of your children. Because children know they are “part mom” and “part dad”, the criticism can batter the child’s self-esteem.

2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.

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Custody Terminology and the Effect on Divorce Outcomes
Terminology in divorce carries weight: Which sounds better: Custody Decision, or Parenting Plan?

Senate Bill 2003, approved by the West Virginia Legislature during a special session in June 1999, started an overhaul of the state’s domestic relations system. The bill made changes in the divorce and child custody laws, changing terminology and adding steps to the process.

Michael Roe asks: In cases where Dads ask for custody, many times they are granted primary residential custody. Can you think of reasons why this maybe true?
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One of the best ways that divorcing parents can faciliate a good joint parenting agreement is to live within reasonable proximity of each other. When both parents live within minutes and miles of each other, the parents and kids benefit. Even the best and broadest parenting agreement can be difficult to endure if the parents live at great distance from each other. Conversely, even if the non-residential parent gets a standard “boilerplate” visitation schedule, the parent’s life with the kids is enhanced if he/she lives in the same school district as the kids.

The Illinois case of Samardzija illustrates a diffiuclt part of Illinois’ removal and relocation law. In this case, Mom moved from (for example) Gurnee, Illinois to Carbondale. The move then caused non-residential parent, Dad (a Gurnee resident), to drive hours to see his kids, when previously the drive had been only minutes. The move to Carbondale, in effect, stripped Dad of his parenting role with the kids. In Illiniois, the mother’s move to Carbondale was legal, and required no permission from the court. Mom moved, the kids said goodbye, and that was the end of Dad’s parenting life, as he knew it.

The Samardzija court reasoned that while parties in divorce can agree to geographical limitations when there is a specific need to do so, absent such agreement, Illinois imposes no restraints on a custodial parent from moving to the opposite end of the state, if he/she so chooses.
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In Sutherlin the trial court was in error when to refused to address the issue of temporary custody of the children, in an action initiated by the wife to obtain an order of protection for herself against her husband.

The court should have found that the wife’s petition for the order of protection was not designed to interfere with the husband’s visitation with the children, and the record should have supported a finding that there was abuse committed by the husband against the wife sufficient to allow for an Order of Protection.

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It was not an abuse of discretion by the trial court, the Illinois Appellate Court held, to refuse to order Grandparent visitation when the parents of the children had not agreed to it. IRMO Ross

The court held that in view of the Wickham decision ( holding that the grandparent visitation pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act to be uncomstitutional), there was no basis to permit the grandparents a right to petition fo rvisitation.

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In re Custody of T.W. is an interesting analysis of the superior rights doctrine, and how this doctrine, that substantiates the rights of biological parents, can be trumped by a best interests test.

What do I mean by this? In this case, a child’s mother voluntarily surrendered custody of her child to her parents. The grandparents raised the child, and later, when the grandparents went to court toget cusotdy of the child formally (with the mother’s consent) the father objected. The superior rights doctrine establishes a presumption that a biological parent is the best person to raise a child. However, as in this case, this presumption can be overridden by a finding by the court that the child’s best interest is paramount to the, less than absolute, doctrine of superior rights.

Thus, the superior rights doctrine is not so superior, after all. Should the court find that the child’s best interest is met by being raised by someone other than the biological parent, the court can override the parent’s claim and award to the party meeting the best interests test.

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Beautiful, wealthy and bright, but subject to the viscissitudes of life:

Two months after television reports circulated about her husband Peter Cook’s alleged infidelity with an 18-year-old employee, Christie Brinkley has made it official: she’s seeking a divorce. Cook’s written apology to Brinkley ran in a newspaper column shortly after his alleged dalliance became public, but the apology failed to deter the former model and actress and Uptown Girl’s from filing for a dissolution of marriage.

According to Cook’s attorney, Brinkley filed for divorce on September 14, 2006 and the case is pending.

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In Hartman v. Hartman, there was an action by the former husband to lower his child support payments from $1500 per month, to $500 per month, while providing $500 in maintenance. Mr. Hartman may have wished to do this to allow for some tax benefits for part of his monthly payments, as well as to lower his monthly support payout in total.

In any event, the court determined that the parents were litigating this issue in pursuit of their own pecuniary interests, and were not attentive to the best interest of their child. THe parents frmaed the issues around money, whereas the court saw the issue affecting the well-being of the parties’ child.

What did the court do? The court appointed a guardian ad litem to determine, within the context of the child support modification proceeding, what result would be in the best interest of the child. The court’s concern over the child’s interest being neglected trumped the parents’ interest in sorting out their finances.

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Hearsay is permitted in some contested custody cases. Guardians ad litem can consider hearsay in making recommendations to the court concerning the best interest of a child. In fact, in Illinois a guardian ad litem can even rely on inadmissible evidence that may have been wrongfully obtained, such as by an alleged violation of an eavesdropping statute. In re Marriage of Karonis, 693 N.E.2d 1282 (Ill. App. Ct. 1998).

Is it legal to tape a telephone conversation with a party who has not consented to the taping? The answer is NO. If a child is talking on the phone to a parent, and the other parent believes the conversation should be taped, does this make it legal? NO. A violation of the Illinois eavesdropping statute is arguably a prosecutable offense, and the contents of the wrongfully taped conversation are not admissible. However, the Karonis court allowed the the guardians ad litem in the case to review the illegally taped conversations in formulating their custody recommendations.

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When should a GAL or Child’s Rep be appointed? In all cases?

When it is clear that the parents are looking after only their own interests and the interests of the child may be seriously neglected, it is recommended to the trial court that an attorney for the child or a GAL be appointed. Hartman v. Hartman, 89 Ill.App.3d 969, 412 N.E.2d 711, 45 Ill. Dec. 360 (4th Dist. 1980).

The appointment of an attorney to represent a child is a matter left to the sound discretion of the trial court. The failure of the trial court to appoint a GAL was not an abuse of discretion, where there was ample evidence before the court through other witnesses, including evidence as to the child’s best interest through the testimony of psychologists, therapists, neighbors and othjer competent witnesses. In re Marriage of Ricketts, 329 Ill. App.3d 173, 768 N.E.2d 834, 263 Ill. Dec. 753 (5th Dist. 2002).

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