Donald C. Schiller, Schiller DuCanto & Fleck LLP, Chicago, Lake Forest, & Wheaton
Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago
312-641-5560 | E-mail Donald Schiller | 312-741-1092 | E-mail Michelle Lawless
Trial Court Reversed on Postjudgment Modification of Parenting Time Where It Failed To Engage in a Best-Interests Analysis About Children’s Change of Residence From Illinois to Indiana
In a postjudgment parenting action where the parties had joint decision-making of their two grade school aged children and the father had the majority of the parenting time, the father filed a petition to modify parenting time, and the mother filed a counterpetition. In re Marriage of Gualandi, 2024 IL App (5th) 240238. Both petitions sought primary physical custody of the children. The trial court held a lengthy hearing with multiple witnesses, including the guardian ad litem (GAL), who switched their recommendation mid-hearing. The allegations and testimony at trial included questionable environments at both parents’ homes, with the father’s home allegedly being dangerously close to having DCFS called for uncleanliness and the mother’s home being unstable due to alleged fights between her and her then-boyfriend. At the conclusion of the hearing, the trial court entered a document entitled “Agreed Parenting Plan and Judgment,” which was submitted as the mother’s proposed judgment, thereby granting her counterpetition and giving her primary physical possession of the children in Indiana. The appellate court reversed. The trial court abdicated its duties by signing a form judgment that indicated the parties had agreed to modify the parenting plan, when, in fact, there had been a contested hearing. 2024 IL App (5th) 240238 at ¶67. Further, the trial court needed to find that a substantial change of circumstances had occurred and to make a determination that it was in the best interests of the children to modify the parenting plan. The mother also failed to follow the Illinois Marriage and Dissolution of Marriage Act’s requirements before relocating out of state to Indiana, thereby preventing the father from objecting to her out-of-state move. By bypassing this requirement and ordering that the children reside primarily with the mother, the trial court failed to consider the reason for the mother’s relocation from Illinois, as well as the mother’s alleged history of not exercising her parenting time as provided for under the original judgment. Because she was the parent relocating, she had the burden of demonstrating that the relocation was in the best interest of the children. The appellate court vacated and remanded.
Trial Court’s Judgment Modifying Parenting Time Reversed, and Appellate Court Suggested GAL Might Need To Be Replaced
In a highly litigious and contentious postjudgment parenting case (see above), which included multiple cross-allegations of each parent’s home being a questionable living environment for the parties’ two children, a GAL was appointed to investigate the facts of the case. Gualandi, supra. The GAL filed a report and testified to that underlying report, but facts that they were previously unaware of came to light during the hearing, which caused them to change their recommendation mid-hearing. The appellate court noted in its decision that, at the time of the hearing, the parties lived over three hours away from each other and in different states, and it was concerning that the GAL’s report focused solely on the living conditions at the father’s home and not the mother’s. The GAL did not contact DCFS or complete a case history search regarding any claims of domestic violence regarding the mother and her boyfriend. The court further found that the GAL’s report did not adequately address the best interest factors in 750 ILCS 5/602.7, did not address the home environment in Indiana the children would be living in, and did not address the school environment the children would be relocated to with a move to Indiana, among other items. The court stated that the trial court on remand should consider whether a new GAL should be appointed, and, if the current GAL remained, an updated report should be presented that contained a complete investigation of the facts.
Trial Court Affirmed on Extension of Plenary Order of Protection as Facts Established There Was Good Reason To Extend Original Order of Protection
Two married parties (a husband and wife) obtained separate plenary orders of protection against the respondent (the wife’s mother and children’s grandmother). Graham v. Van Rengen, 2024 IL App (2d) 230611. The allegations included that the respondent was mentally unstable and that the petitioners had gone to great lengths to eliminate all contact between the respondent and their family. As the two-year plenary was set to expire, both petitioners sought extensions and alleged that the harassment had not stopped, citing supporting instances of continued harassment. At the hearing, the respondent’s counsel moved for a directed finding, arguing that good cause was required to support an extension but that the petitioners had only shown unchanged circumstances. The trial court denied the motion. At the conclusion of the hearing, the trial court found good cause for the extension and extended the plenary order for another two years. On appeal, the respondent argued that §220(e) of the Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq., distinguishes a motion for an extension that is uncontested and for which a petitioner does not seek a modification from any other motion for an extension. Under the respondent’s theory, if the petition to extend a plenary order of protection is contested, the petitioner must show “good cause” for the extension. The appellate court engaged in an extensive statutory construction review of the language of §220(e) and held that while the terms of the second sentence of the statute clearly apply to only those situations where the motion for an extension of an order of protection is uncontested and for which the petitioner does not seek a modification, the court did not agree with the respondent’s argument that the distinction contained varying standards of proof from “no material change in relevant circumstances” to “good cause shown.” 2024 IL App (2d) 230611 at ¶45. Rather, the second sentence of the statute allows a relaxed method of proof where the motion is uncontested and seeks no modification. The court also engaged in an extensive analysis of the third sentence of the statute and its impact on the facts, ultimately concluding that §220(e)’s language was ambiguous and that parties seeking an extension of an order of protection could interpret the statute in different ways depending on the duration and circumstances. Therefore, the court looked to the legislative history of the statute and concluded that the legislature intended to treat contested extensions of plenary orders of protection differently depending on the duration of the extension. If the extension is contested and is to remain in effect until vacated or modified, i.e., of an unspecified duration, the petitioner must establish “good cause” for the extension, in addition to meeting the requirements set forth in §219. 2024 IL App (2d) 230611 at ¶50. Because the plenary orders of protection in the case at bar were of fixed duration not to exceed two years, the petitioners needed to only satisfy the requirements under §219, and nothing within such section prohibited the trial court from extending a plenary order of protection for two years based on the conduct that formed the basis for the initial order. Since the evidence at the hearing showed that the respondent engaged in abuse as defined by the Act and many of the allegations went unrefuted by respondent, the trial court’s order was affirmed.
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