Family Law FLASHPOINTS June 2024

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’s Refusal To Conduct in Camera Interview of Minor Child Affirmed

In a postjudgment matter, the ex-husband appealed the trial court’s ruling that granted the ex-wife’s petition to modify the parenting plan for their minor child, who was a ten-year-old boy at the time of the trial. In re Marriage of Jessica F., 2024 IL App (4th) 231264. The ex-husband had filed a motion for in camera interview of the minor child in order for the court to ascertain his wishes as to the allocation of parental responsibilities. The court reserved ruling on the motion until all of the evidence had come in. However, the court did not conduct the interview and issued its order modifying the parenting plan, which included modifying the parenting schedule and allowing for a change of school due to the ex-wife’s move to a different town and school district. The appellate court affirmed the trial court’s decision not to conduct an in camera interview. There is no absolute right to present a child’s testimony during a custody hearing, but rather the decision is left to the court’s sound discretion. Further, it was not an abuse of discretion for the court to reserve ruling on the motion until all of the evidence came in. While the ex-husband argued that he wanted the court to interview the child to ascertain his wishes, he also argued that he wanted the trial court to interview him about alleged problems the child was having at school and potential inappropriate conduct by a stepsibling. Section 604.10(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., does not give the trial court authority to conduct interviews on unlimited subjects, but only to determine the wishes of the child. 2024 IL App (4th) 231264 at ¶43. The appellate court noted that the ex-husband’s motives for requesting the interview may have been to put the child in the position of being a factual informant rather than simply relaying his wishes, and if the trial court detected this, it rightly exercised its discretion to decline the interview. In its opinion, the appellate court noted that the superior method for learning of a child’s preference would be to appoint a guardian ad litem, and it would have been best practice for the trial court to have outwardly denied the ex-husband’s motion rather than just reserving ruling and then subsequently issuing its order.

Trial Court’s Postjudgment Modification of Parenting Time Affirmed

In Jessica F., supra, the trial court modified the parenting schedule from a schedule in which the ex-husband had three out of four weekends per month to an every-other-weekend schedule with opportunities for additional time and a larger block of time during the summer. One of the primary reasons for the change in schedule was that the ex-wife had moved towns and school districts, and the trial court found that it was in the child’s best interests that the ex-wife remain the primary caregiver. The ex-husband appealed, arguing that the trial court misapplied the IMDMA §602.7(b) factors, five specific ones in particular, and the appellate court affirmed. 2024 IL App (4th) 231264 at ¶¶50, 63. The court noted that the ex-husband did not challenge the trial court’s finding that the ex-wife’s move constituted a changed circumstance necessitating modification, but rather argued that the trial court misapplied §602.7. The ex-husband did not carry his burden of showing that the trial court’s ruling was against the manifest weight of the evidence. Essentially, the ex-husband asked the appellate court to reweigh the evidence, which the court could not do. Based on the totality of the evidence presented, it was not apparent that the trial court should have reached an opposite conclusion. While there was evidence favorable to the ex-husband’s position, the appellate court could not set aside the trial court’s order because a different conclusion may have been drawn from the evidence.

Second District Addresses Putative Spouse Statute

In a procedurally complex probate action, which had been addressed once in the Illinois Supreme Court, following the death of the purported husband over whom guardianship had been established, the purported wife lost the argument that the validity of the marriage had been established. In re Estate of McDonald, 2024 IL App (2d) 230195, ¶1, citing In re Estate of McDonald, 2022 IL 126956, 201 N.E.3d 1125, 460 Ill.Dec. 652. Thereafter, the purported wife sought to assert her rights as putative spouse by filing a “motion to amend objections” and a “Motion to Amend Heirship Order” in the trial court. 2022 IL 126956 at ¶¶20, 22. The trial court denied the motions, and she appealed. The appellate court affirmed. Her putative spouse claim, which was a claim against the estate, was barred by the two-year statute of limitations of §§18-12(a) and 18-12(b) of the Probate Act of 1975, 755 ILCS 5/1-1, et seq., since she filed her claim nearly three years after the decedent’s death. The purported wife also challenged the trial court’s finding that she did not have a good-faith belief that she was married to the decedent under the putative spouse statute of the IMDMA, 750 ILCS 5/305. A “putative spouse” is defined in relevant part as “[a]ny person, having gone through a marriage ceremony, who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse.” 2024 IL App (2d) 230195 at ¶24, quoting 750 ILCS 5/305. The Second District noted that there was no Illinois case that examines what constitutes a good-faith belief under the putative spouse statute, and it therefore relied on several other states’ opinions, including Williams v. Williams, 120 Nev. 559, 97 P.3d 1124, 1128 (2004). 2024 IL App (2d) 230195 at ¶47. The Williams court opined that “[g]ood faith is presumed” and “[t]he party asserting lack of good faith has the burden of proving bad faith”; “[h]owever, when a person receives reliable information that an impediment [to marriage] exists, the individual cannot ignore the information, but instead has a duty to investigate further.” Id. Because the purported wife knew prior to the marriage ceremony that the purported husband had been declared a ward of the court and appointed a guardian and an attorney and she had been advised that the guardian could seek to invalidate the marriage, the purported wife did not establish a good-faith belief that she was married to the purported husband.

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