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Family Law FLASHPOINTS August 2019

August 15, 2019Print This Post Print This Post

Donald C. Schiller & Michelle A. Lawless
Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton
312-641-5560 | E-mail Donald Schiller | E-mail Michelle Lawless

Motion for Substitution of Judge Ruling Not Appealable

In In re Marriage of Morgan, 2019 IL App (3d) 180560, the husband appealed the denial of a motion for substitution of judge for cause. The exchange between the court and husband’s counsel that was the basis for “cause” involved a statement by the court that he “tends” to keep mutually agreed on allocation judgments in place if “it only inconveniences one party.” 2019 IL App (3d) 180560 at ¶8. The exchange took place after the court had ordered the parties to mediation on various post-decree parenting issues. The judge who heard the motion for substitution of judge for cause entered an order denying the motion with the following language: “[t]his ruling is appealable pursuant to Supreme Court Rule 304 and other applicable rules.” 2019 IL App (3d) 180560 at ¶1. The appellate court observed that the court did not include the specific language of Rule 304(a), which provides that there is no just reason for delaying enforcement or appeal or both, and it was not clear from the record that the court intended to invoke Rule 304(a) because the court referenced a “Rule 308” in the transcript. Simply mentioning appealability while improperly referencing Rule 304 does not confer appellate jurisdiction. The precise language of the rule should be utilized in an order. Further, the denial of a motion for substitution of judge is interlocutory and would not have been a final, appealable order just because the proper Rule 304(a) language was included.

Trial Court’s Order Denying Petition for Name Change for Minor Child Reversed

In In re M.E., 2019 IL App (3d) 170759, after a lengthy evidentiary hearing on whether a minor child’s last name should be changed from her biological father’s to her stepfather’s pursuant to 735 ILCS 5/21-101, the trial court ruled that mother had not met her burden that the name change was in the best interests of the child. The mother appealed, and the appellate court reversed because nearly all the evidence presented supported the granting of the petition. The biological father was in prison for 50 years as a result of a violent crime in which he held the mother hostage at gunpoint in front of the minor child. He had not acted proactively to continue a relationship with the daughter when he was in prison. The child’s stepfather cared for her on a daily basis, and the child thought of him as her dad and called him “dad.” 2019 IL App (3d) 170759 at ¶10. Although the mother and stepfather enrolled the child in school with the stepfather’s last name without the biological father’s consent, the school allowed that to happen and the child was now known in the community as having the last name of her stepfather. The court reasoned that the mother was forced into making such decisions based on the father’s conduct and the fact that he had been in prison since the child was 3½ years old.

Plenary Order of Protection Reversed for Failure To Include Specific Findings

In Landmann v. Landmann, 2019 IL App (5th) 180137, at issue at hearing on a plenary order of protection was whether a father had spanked his daughter in excess of 20 times because she was not applying herself when doing her math homework. The court allowed the mother to testify as to what her daughter told her when she returned home. The father disputed the facts on the record and said he only spanked her 3 times. The trial court granted the order of protection, and the father appealed. He argued that the hearsay statements from the daughter should not have been let into evidence and that the adverse-inference rule should have been applied to the mother because she failed to bring alleged photographs she had of her daughter after the incident in question. The appellate court reversed, but on different grounds. The order that the trial court entered did not make findings consistent with §214(c)(1) of the Domestic Violence Act, 750 ILCS 60/101, et seq., which requires findings that the court has considered the nature, frequency, severity, pattern, and consequences of the respondent’s past abuse; the likelihood of danger of future abuse; and the danger that any minor child will be abused. The failure to make such findings was fatal to the validity of the order of protection.

Plenary Order of Protection Reversed Due to Children’s Hearsay Statements

In Arika M. v. Christopher M., 2019 IL App (4th) 190125, the Fourth District has held that admissibility of out-of-court statements made by minor children against a parent who is an alleged abuser in an order of protection hearing are governed by §8-2601 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq. Section 8-2601 requires the child to either testify at the proceeding or be unavailable as a witness as long as there is corroborative evidence of the act that is the subject of the statement. The court opined on the differences between §606.5 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq.; §8-2601 of the Code of Civil Procedure, 735 ILCS 5/8-2601; and §205(a) of the Domestic Violence Act, 750 ILCS 60/205(a), all of which deal with children’s hearsay statements in alleged abuse matters in different ways. The Third District joined with the Second District case In re Marriage of Flannery, 328 Ill.App.3d 602, 768 N.E.2d 34, 263 Ill.Dec. 274 (2d Dist. 2002), which applied §8-2601 and noted that Flannery stated that §205(a) of the Domestic Violence Act mandated the application of the Code of Civil Procedure and did not mention the IMDMA. The Fourth District declined to follow the Third District case Daria W. v. Bradley W., 317 Ill.App.3d 194, 738 N.E.2d 974, 250 Ill.Dec. 505 (3d Dist. 2000), which concluded the IMDMA controlled the admission of the child’s hearsay statement.

For more information about family law, see FAMILY LAW: CHILD-RELATED ISSUES IN DISSOLUTION ACTIONS — 2018 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions. facebooktwittergoogle_pluslinkedinrssyoutube

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