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The Forgotten Writ

Most common law writs were abolished by the enactment of the Code of Civil Procedure in 1982 (735 ILCS 5/2-1501). However, hiding in the Code of Civil Procedure is a wonderful tool in the form of the writ of ne exeat or ne exeat republica. Section 16-101 of the Illinois Code of Civil Procedure provides this remedy which prevents a debtor, a potential debtor, or a potential kidnapper from leaving the state (735 ILCS 5/16-101 et seq.). In cases where a parent threatens to flee the jurisdiction with a child, this writ may be a very effective weapon.

Although unfamiliar to the majority of practitioners and judges, a proceeding for a writ of ne exeat is not particularly complicated. It is held on an ex-parte basis, just as if one were seeking a temporary restraining order. The complaint or petition requires a supporting affidavit as to the truth of the allegations contained in the pleading (735 ILCS 5/16-104). If the court grants the requested relief, the writ cannot issue unless and until the plaintiff has posted a penalty bond and security with the Clerk of the Court. A bond and factual verified pleadings are required, since the Writ of Ne Exeat carries with it the possibility of jail time for the debtor or child snatcher. The court also sets bond for the defendant or the respondent, providing the keys so that he or she does not have to be incarcerated. As a practical matter, the arrangements for posting a penalty bond should be made as soon as possible after determining that a writ will be sought and before requesting the relief from the court, since this is a novel proceeding and surety providers may unwilling to underwrite a penalty bond in such an unfamiliar proceeding.

The writ of ne exeat will be served by a sheriff as if it were a warrant for the arrest of the defendant. The defendant must post bond with surety in the sum specified by the court, and conditioned on the fact that he or she will not depart the state without leave of the court, and that he or she will answer any judgment entered against him or her. In the absence of such a bond the defendant may be committed to a penal institution other than a penitentiary (750 ILCS 5/16-107). In the event the defendant flees after posting bond, the surety may surrender the defendant before the bond is forfeited, and receive a discharge from the surety bond (750 ILCS 5/16-108).

The Illinois Supreme Court reviewed a case where a writ of ne exeat had been issued in Feingold v. Feingold, 345 Ill. 203, 177 N.E. 881 (1931), and determined that the writ had been issued based upon a fraudulent complaint in a divorce proceeding. The plaintiff in Feingold alleged that her husband was the owner of property in Ohio and that he had threatened to transfer or encumber his businesses and leave her unsupported. She also alleged that he had threatened to leave Illinois and conceal himself. On the plaintiff's complaint, the trial court issued a writ of ne exeat, and conditioned the defendant's release on the posting of a $1,000 bond. The court subsequently increased the defendant's bond to $10,000, and the defendant spent over a month in jail before the court had a hearing and determined the petition for writ of ne exeat was fraudulent. Feingold is informative as it gives an over view of both the severity of this writ, and the implications of its abuse.

The appellate court considered whether a court had the authority to issue a writ of ne exeat without requiring plaintiff to first obtain a bond in Sweasy v. Snyder, 192 Ill.App.3d 749, 549 N.E.2d 613, 139 Ill.Dec.887 (3 Dist. 1989). The appellate court stated that "the ne exeat statute does not give the court discretion to waive the petitioner's obligation to post bond and sufficient surety."

Because it is an extraordinary remedy, a writ of ne exeat should only be granted in serious cases. In 1951 the appellate court in a separate maintenance case stated that a writ of ne exeat "is an extraordinary writ, which should never be issued except upon the clearest showing that would justify depriving one of his liberty." Earles v. Earles, 343 Ill. App. 447, 99 NE.2d 359 (l Dist.).

The writ of ne exeat was originally a high prerogative writ used by the King to prevent, for reasons of state, some person from availing himself of the privilege granted freemen by Magna Carta of going beyond seas without interference, and was afterward used to aid equitable claims by a process similar to that of capias ad respondendum in legal claims, was, by our statute, originally enacted in 1827, made to apply to legal as well as equitable demands, and to both in cases where the debt or demand was not due but existed fairly and in expectancy at the time of making application for the writ.

Earles at 343.

Twenty-eight years later, the appellate court had the opportunity to discuss the writ of ne exeat in the context of dissolution of marriage proceedings. In In re the Marriage of Gurda, 711 N.E.2d 339, 238 Ill.Dec. 236 (1 Dist. 1999) there were contested property issues. The trial court ordered the husband to pay the wife the sum of $218,927.80 in satisfaction of her property interests in the marital estate. The trial court also ordered the respondent to surrender his passport. The appellate court, citing Lowe v. Norfolk & Western Ry Co. , 96 Ill.App.3d 637, 644, 52 Ill.Dec. 108, 421 N.E.2d 971 (1981) in dicta stated that "a court has a duty, as well as power, to protect its jurisdiction over a controversy in order to decree complete and final justice between the parties."

Section 16-101 et seq. of the Illinois Code of Civil Procedure provides that a writ of ne exeat republica may be granted in cases where a judgment debtor may leave the jurisdiction and take his property with him (735 ILCS 5/16-101). To warrant the issuance of such a writ there must be a probable or threatened departure of the defendant from the state or the country, with intent to evade jurisdiction. See Andersen v. Andersen, 315 Ill.App.380, 387, 43 N.E.2d 176 (1942).

The appellate court in Gurda also discussed the trial court's sua sponte injunctive remedy requiring the respondent to surrender his passport. The appellate court found the trial court had the right to regulate international travel within the bounds of due process. The appellate court indicated that had the relief been requested in the petition for dissolution, and had the court heard evidence on the issue at trial and provided reasoning for it's decision there would have been a reasonable basis for the remedy fashioned by the court in Gurda. The trial court was overturned, as the issue was not properly before the court and without a hearing, the respondent's due process rights had been violated.

In 1979, Charles J. Fleck, then the presiding Judge of the Domestic Relations Division of Cook County, Illinois, examined the writ of ne exeat remedy for child kidnapping cases in an article appearing in the Kent Law Review:

Writs of ne exeat have been widely utilized in divorce actions to restrain a party threatening to flee the jurisdiction in order to avoid payment of alimony or child support. In view of the dearth of legal tools to combat child snatching, a writ of ne exeat is a very effective legal weapon if the parent with custody has prior knowledge that the other parent intends to leave the state.

Kent Law Review, Vol. 303, 1979.

Twenty years later, the writ of ne exeat has been overlooked. The writ, along with the ruling in Gurda, should provide modern practitioners with two remedies directed at litigants who may attempt to flee the jurisdiction. The Gurda remedy of impounding a passport may have the effect of preventing a debtor or potential child snatcher from leaving the country. A very large bond posted by a defendant or respondent in a response to a Writ of Ne Exeat should be an even greater deterrent.

By Scott C. Colky

Problems in the Enforcement of Foreign Divorce Judgments

We hear on a daily basis the world is getting smaller. We are told we are becoming a global village. Yet an obscure Illinois statute prevents the registration and enforcement of a divorce decree or Judgment for Dissolution of Marriage of a foreign country that contains provisions for child support and/or maintenance. The courts of the State of Illinois lack subject matter jurisdiction to enter any orders regarding child support or maintenance if the parties were divorced outside the United States.

Foreign judgments and foreign money claims are given full faith and credit if they fall into a category prescribed by Statute under the Foreign Judgments and Foreign Money Claims, section 12-618 through 12-626 of the Code of Civil Procedure of the State of Illinois. Section 12-618 specifically excludes judgments for support in matrimonial or family matters from the scope of the Act.

Section 12-618 states:

(b) Foreign Judgment

Means any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine, or other penalty, or a judgment for support in matrimonial or family matters. (emphasis added) 735 ILCS 5/12-618 (West 2000).

The appellate court in 1995 considered the issue of whether a Judgment of Dissolution of Marriage entered in Denmark in 1978 and which contained provisions for alimony for three years, but made no provisions for child support was enforceable in Illinois and whether the Illinois court could award child support. The parties were married on July 24, 1972 and they had one child born in 1974. In October 1990, the wife enrolled her foreign judgment in Illinois and filed a petition for child support. At the time of filing the wife and child lived in California and the husband in Illinois.

In the case of The Marriage of Constance Snyder v. James Snyder, the First District Fifth Division held that the Circuit Court had no subject matter jurisdiction to award child support. The court held that the Dissolution of Marriage and collateral matters such as child support are entirely statutory in origin and nature. Equity courts have no inherent power in dissolution cases, and the jurisdiction of the court in a dissolution proceeding is limited to that conferred by statute.

The appellate courts have reviewed this issue on numerous occasions. Each time they have come to the same conclusion. There is no way to obtain subject matter jurisdiction to register, modify or award support of foreign countries' matrimonial or family judgments.

In re: the Marriage of Paraskevas Agathos and Diamondo Bakatselos, 194 Ill.App.3d 168, 550 N.E.2d 1161, 141 Ill.Dec.115 (Jan.24,1990 lst Dist.3d Div.). The parties were divorced in Greece on February 26, 1988. In November of 1988, an ex-parte order was granted to the Petitioner granting him temporary custody of the parties' child, and he traced the Respondent and the child to Chicago. In November of 1988, Petitioner filed certified copies of the Greek orders, together with translations of those Orders, along with petitions in the Circuit Court of Cook County, Illinois. On February 3, 1989, the circuit court entered an order registering the Greek orders under the Uniform Money Judgments Act. The order also granted Respondent leave to respond to the petitions filed with the court. In April, the circuit court entered an order denying Respondent's Motion to Vacate the previous order registering, recognizing and granting comity to the custody orders entered in Greece, and finding in granting comity the Court of Cook County had no further subject matter jurisdiction to modify those orders. The court also made the Rule 304(a) finding, "That there was no just reason to delay enforcement of Appeal."

On Appeal, the appellate court stated:

Clearly the trial court erred in basing its registration of these decrees on the U.E.F.J.A. Judgment of foreign countries cannot be registered under that Act, Zalduendo v. Zalduendo, (1977), 45 Ill.App.3rd, 849 360 N.E.2d 386. Illinois case law also supports Respondent's contention that the Circuit Court's reliance on comity was misplaced. Illinois Courts have long held that comity cannot be the basis for enforcement of foreign countries matrimonial judgments. Clubb v. Clubb, (1949) 402 Ill.390, 84 N.E.2d 366; Hager v. Hager, (1971) 1 Ill.App.3d 1047, 274 N.E.2d 157; In re: the Marriage of Mullins, (1985) 135 Ill.App.3d 279, 481 N.E.2d 322.

In the Agathos v. Bakatselos, the court did recognize that Illinois' courts have authority and subject matters jurisdiction to hear child custody matters under the Uniform Child Custody Jurisdiction Act, but stated explicitly that the Uniform Foreign Money/Judgments Recognition Act is not an appropriate method to register a foreign decree.

In Zalduendo v. Zalduendo, 4 Ill. Dec. 450, 45 Ill.App.3d 849, 360 N.E.2d 386, the appellate court looked for and found a way around the prohibition of the Uniform Foreign Judgments and Foreign Money Act.

In this case an ex-wife sought to have child support awarded where the Cuba divorce decree had been silent on the issue. The appellate court drew a distinction between registering a foreign decree of divorce and recognizing it. The appellate court stating as a matter of comity, Illinois could recognize how the decree affected the status of the parties. The court went on to state "that if a court of this state could recognize a foreign decree and to enforce its provisions there must be some other jurisdictional basis to sustain an award of child support." Zalduendo, 360 N.E.2d at 390.

The court then did an analysis and determined since the Cuban judgment could not be registered (although recognized) the court had no subject matter jurisdiction to award child support. However the court went on to state that there existed a remedy under common law and the plenary powers of equity courts over minors to award child support existed. Thus with tortured legal reasoning the appellate court found a method to deal with an unjust statute that prohibits courts from awarding support if the parties' were married in another country.

However, the Snyder case decided in 1995 explicitly rejected the tortured reasoning of Zaluendo, supra, and every case in Illinois since Zaluendo has found a lack of subject matter jurisdiction to register or modify a foreign divorce decree.

As the world gets smaller, we are going to see many more foreign divorce decrees in Illinois. No tortured reasoning will let us escape that section 12-618 of the Code of Civil Procedure needs to be amended so that children whose parents divorce outside the United States can be supported in Illinois.

By Scott C. Colky

Restriction Visitation - What Evidence is Sufficient?

Illinois courts have indicated that visitation is a form of custody, and is therefore subject to the criteria set forth in sections 602, 603, 604, 605, and 606 of the Illinois Marriage and Dissolution of Marriage Act (hereinafter ¿IMDMA¿). In re Marriage of Fields, 283 III.App.3d 894,671 N.E.2d 85, 219 III.Dec. 420 (4th Dist. 1996); In re Marriage of Allen, 265 III.App.3d 208, 213, 638 N.E.2d 340, 344, 202 III.Dec. 694 (4th Dist. 1994). This interpretation of sections 603, 605, and 606 is critical, as these are the provisions that are limited specifically by their language to ¿custody proceedings.¿ The application of sections 605 and 606 to visitation disputes allows for the use of investigatory personnel, priority in hearing dates, and an array of other useful tools.

These tools set forth in section VI of the IMDMA are critical when a party seeks to restrict the visitation of a parent or other party. When a court determines whether a a parent is to receive restricted visitation, it is mandated to follow the criteria articulated in section 607 of the Illinois Marriage and Dissolution of Marriage Act, which must be proven by a preponderance of the evidence. In re Marriage of Fields, supra. Section 607 provides that the parent not granted custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that the visitation would endanger the child¿s mental, moral, physical or emotional health. 750 ILCS 5/607.

A restriction of a parent¿s visitation is an action by the court which limits, restrains or confines visitation within bounds. The endangerment standard in section 607© is an onerous, stringent and rigorous standard, because liberal visitation is the rule. Heldebrant v. Heldebrant, 251 III.App.3d 950, 623 N.E.2d 780 (4th Dist. 1993).

Restrictions on visitation include supervised visitation, preventing overnight visitation, terminating visitation, requiring visitation in the custodial parent¿s home. Since a restriction is defined as something that confines or limits visitation, conditions such as required counseling or parenting classes are not restrictions and are instead considered an "accommodation for the child." In re the Marriage of Anderson, 130 III.App.3d. 684, 474 N.E.2d 911 (2d Dist. 1985).

Section 607¿s focus is on the parent¿s right to visitation, and may be in direct contravention of the "best interest of the child" standard with which the courts are comfortable working. In formulating a visitation order, courts are afforded a great deal of discretion, and a reviewing court will not interfere with the trial court's determination in the absence of an abuse of discretion or unless manifest injustice has been done to the child or parent. In re the Marriage of Diehl, 221 III.App.3d. 410, 429, 582, N.E.2d 281, 294, 164 III.Dec. 73 (2d Dist. 1991); in re the Marriage of Slayton, 292 III.App.3d 379, 685 N.E.2d 1038 (4th Dist. 1997).

The tension between the best interest standard, and a request for a restriction of visitation, is best seen in situations where a parent shows poor parenting skills or bad judgment. While overnight visitation with the parent is not in the child¿s best interest, his or her behavior does not reach the endangerment standard. Another conflict between the statute and best interest is seen in situations where the child at issue is under two years of age. The noncustodial parent, in most instances, has never acted in any manner that has endangered the child. Nonetheless, domestic relations judges uniformly award noncustodial parents of infants visitation of one or two hours at least twice a week, rather than overnight visitation and alternating weekends.

In Cook County, the courts have formulated guidelines that provide that infants and very young children should have visitation time extended to overnights and weekends only in instances where the noncustodial parent has assumed equal primary care for the child:

Overnights should be considered only if the noncustodial parent has been an active participant in the ongoing daily care of the infant, including feeding, changing, bathing, and caring for illness. (Cook County Visitation Guidelines)

Thus, in cases where a pregnant spouse vacates the marital home or a spouse with a young child leaves the other, or in a traditional family setting where Mom primarily performs the early child care role, while Dad works, one parent shall automatically have restricted visitation with his or her infant. No effort is made in this situation to explain how the courts can ignore section 607, and the burden of proving serious endangerment.

Another illustration is when one party is romantically involved with a person other than his or her spouse. Petitions are routinely filed to prevent that parent from having visitation while the "significant other" is present. The appellate courts have taken the position that cohabitation may be considered in custody and visitation cases, but mere cohabitation without evidence of endangerment is insufficient to restrict visitation. (See In re Marriage of Diehl, supra.) Yet, court orders are routinely entered restricting visitation in the presence of an unrelated member of opposite sex. Such orders are entered because judges believe they are in the best interest of the children involved.

Cases involving visitation are sui generis, and each case must be reviewed on its own facts, rendering it impossible to categorize all behavior that constitutes serious endangerment. Likewise, many behaviors that may not endanger a child may in certain circumstances rise to the level of endangerment. Cohabitation, sexual deviancy (preferences for sadism and masochism) and imprisonment are some examples of behavior which may rise to the level of endangerment in certain circumstances. The courts have held that visitation with an incarcerated parent is a matter which the court must carefully evaluate, based on specific facts to determine if the child would have been endangered. In re Marriage of Campbell, 261 III.App.3d 483, 633 N.E.2d 797 (1st Dist. 1993); In re Marriage of Pleasant, 256 III.App.3d 742, 628 N.E.2d 633 (1st Dist. 1993); In re Marriage of Diehl, 221 III.App.3d 410, 582 N.E.2d 281 (2d Dist. 1991); In re Marriage of Hanson, 112 III.App.3d 564, 445 N.E.2d 912 (5th Dist. 1983); Frail v. Frail, 54 III.App.3d 1013, 370 N.E.2d 303 (3d Dist. 1977).

Proving endangerment using statements of the child has been made easier by a number of appellate court rulings and statutes. The most of these statutes is section 606(e) of the Illinois Marriage and Dissolution of Marriage Act which applies to petitions for supervised or restricted visitation. See In re Marriage of Fields, supra. This statute allows into evidence the previous statement of a child relating to allegations of abuse or neglect. However, recently in In re the Marriage of Rudd, 227 III.Dec. 861, 688 N.E.2d 342 (4th Dist. 1997), the appellate court interpreted section 606(e) to apply only to the statements of the child or children whose custody or visitation is at issue. The father in Rudd was alleged to have sexually abused his niece. The mother attempted to introduce the statements of the nice into evidence though a child protection investigator. The appellate court held that 606(e) did not allow admission of the niece¿s statements, but those statements might have been admissible pursuant to Illinois Code of Civil Procedure, 735 ILCS 5/8-2601(a).

Section 8-2601 of thee Illinois Code of Civil Procedure allows for the out-of-court statement made by a child under the age of 13 describing any act of child abuse or any activity involving sexual abuse on the declarant or witnessed by the declarant. In order for these statements to be admissible, the statute provides that the court must conduct a hearing, and find that the time, content, and circumstances of the statement provide sufficient safeguards of reliability and the child either must testify at the proceeding, or is unavailable as a witness, and there is corroborative evidence of the act which is the subject of the statement. Section 8-2601 also provides for notice by the proponent of the statement of the intention to offer the statement and the details of said statement.

In Carbonaro v. Carbonaro, Nos. 1-94-4134, 1-94-4141 (1st Dist. 1996), the wife brought a petition for supervised visitation, alleging sexual abuse of the parties¿ daughter. Prior to trial, the husband¿s attorney filed a motion in limine, alleging that no notice was given of the intention to offer the child's hearsay statements, that the court had failed to hold a separate reliability hearing, and under section 8-2601, that the child was available to testify. The trial court denied the motion in limine, and allowed into evidence all of the hearsay statements of the child over objection without reference to an exception to the hearsay rule and without reference to section 606(e).

On appeal, the appellate court acknowledged the lack of a separate hearing, but noted that this was a bench trial, and the trial curt was in the best position to judge the totality of circumstances which provide the safeguards of reliability. The appellate court noted the child was two-and-one-half years old at the time of the alleged incidents, and based on the in camera interview, was unavailable to testify. The appellate court also found sufficient corroborative evidence, and depositions of the witnesses constituted sufficient notice. Thus, the appellate court ostensibly allowed the trial court to conduct a hearing on reliability simultaneously with the trial.

The appellate court went further, finding the statements of the minor to be spontaneous declarations.

By Scott C. Colky

Modification of Custody Within two Years after Davis

On October 21, 1998, a new client comes into your office and tells you that 14 months ago he and his ex-wife entered into a joint parenting agreement. The children live with her and he sees them every other weekend, vacations, and alternate holidays. He is remarried, has a good job, and a new house.

The week before, your client received a phone call from a man who indicated that he had been involved with your client's former wife for the last eight months. He told your client that during that time period his ex-wife would use cocaine, and had left the children, ages six and eight, alone to go out drinking with him. The boyfriend reported that the client's ex-wife had both an alcohol problem and a cocaine problem and that he believed she was mentally unstable. The boyfriend was prepared to sign an affidavit and testify if necessary. However, the boyfriend told the client that the previous day your client's ex-wife obtained an order of protection against the boyfriend, and that he had a prior felony conviction for delivery of controlled substance.

You explain to your client that in order to modify a custody judgment within two years from the date it was entered, he must be able to allege and prove by clear and convincing evidence that the children's present environment may seriously endanger their physical, mental or emotional health. You tell your client that based on what he has told you, there may not be sufficient evidence to prove serious endangerment by clear and convincing evidence.

The next day, the Supreme Court of Illinois decides the Department of Public Aid ex rel. Lindy Davis v. Jesse Brewer. As a result, you call your client and tell him it's time to file a petition for modification of custody. (183 Ill.2d 540, 702 N.E.2d 563, 234 Ill.Dec. 223 (October 22, 1998.)

Modification of custody is set out in section 610 of the Illinois Marriage and Dissolution of Marriage Act as follows:

Section 610. Modification. (a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.

(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child's best interest. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.

(c) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.

With few exceptions, the appellate courts have held that if a custody modification is brought within two years of the custody judgment, the petitioner must allege and prove by clear and convincing evidence that:

1) the child is seriously endangered in the present environment;

2) there has been a substantial change in circumstances warranting modification of the prior custody order; and

3) the proposed modification is in the best interest of the child.

Illinois Appellate Courts have held that "the effect of Section 610(a) of the Marriage Act is that even if the non-custodial parent would perhaps be a better parent for the child, custody will not be modified within two years of the date of the custody order unless the child is seriously endangered." In re: the Marriage of Clark, 149 Ill.App.3d 613, 500 N.E.2d 1092 (3rd Dist. 1986); Naylor v. Kindred, 250 Ill.App.3d 997, 620 N.E.2d at 520, 525 (4th Dist. 1993).

Courts have cited the following comments from the Uniform Marriage and Divorce Act regarding section 610(a):

Most experts who have spoken to the problems of post divorce adjustment of children believe that insuring the decree's finality is more important that determining which parent should be the custodian...This section is designed to maximize finality (and thus assure continuity for the child) without jeopardizing the child's interest...Any change in the child's environment may have an adverse effect, even if the non-custodial parent would better serve the child's interest. (9A U.L.A., Section 409, Comment at 628-29 (1987), Naylor at 525.)

The same year the Fourth District issued its opinion in Naylor, which clearly sets forth the traditional interpretation of 610(a)(b), the appellate court in the First District decided In re: the Marriage of Oehm, 252 Ill.App.3d 311, 625 N.E.2d 34 (1st Dist. 1993). The appellate court in Oehm read section 610(a)(b) literally and ruled that once a court has reason to believe that the children's present environment may endanger seriously their physical, mental or emotional health, then the court was entitled to conduct a hearing on the requested modification to determine what would be in the best interest of the children.

The Illinois Supreme Court found the appellate court's decision in Oehm persuasive, in reversing the appellate court in Davis v. Brewer, 292 Ill.App.3d 416, 685 N.E.2d 1010, 226 Ill.Dec. 555 (5th Dist. 1997).

The supreme court, like the appellate court in Oehm, found section 610(a)(b) of the Illinois Marriage and Dissolution of Marriage Act to be plain and unambiguous. The court felt the statute was so clear that it would be given effect without resorting to other aids of construction.

The supreme court read 610(a) and (b) to establish a dual step process for modification petitions filed and tried within two years of the last custody judgment. The first step is the filing of a petition for modification with attached affidavits. The court must then find that the affidavits submitted by the petitioning parent establish a reason to believe that the child's present environment may endanger seriously his physical, moral or emotional health. The supreme court stated that this first step of filing the petition with affidavits and having the court make a threshold finding "of a reason to believe endangerment exists" is procedural in nature. If the procedural requirements are met, the trial court then proceeds to a hearing based on the legal standards of section 610(b), "the child's best interest."

The plain language of sub-section (b) applies to all petitions, regardless of whether they are filed and heard before or after two years from the date of the entry of the custody judgment. In order for any prior custody judgment to be modified, sub-section (b) requires the court to find by clear and convincing evidence, based upon facts that have arisen since the prior custody judgment or that were unknown to the court at the time of that judgment, that: (1) "a change has occurred in the circumstances of the child or his custodian," and (2) that the modification is necessary to serve the best interest of the child." 750 ILCS 5/610(b) (West 1996). Davis at 566.

The court's decision is an anomaly in the law. Procedurally, a petitioner is required to plead in affidavits facts which if proven would establish the children are seriously endangered. The court then states that the petitioner does not need to prove the facts pleaded, or the elements of their case. Instead, the court requires that petitioner prove it is in the best interests of the children that they should be in petitioner's custody. Where else in the law are you allowed to plead facts that you need not prove?

More importantly, one must consider how the supreme court addresses the public policy considerations of stability and finality, in Davis, that have long been the basis of court rulings regarding sec. 610(a) and (b).

The supreme court stated:

Although stability in a child's life is an important goal, it would make little sense to provide a "safety valve" for emergency situations so strict as to defeat its very purpose. We note that this holding does not undermine the policy of custodial stability while promoting the best interests of the child. In addition, the policy goal of assuring continuity for the child and avoiding "ping pong" litigation in custody disputes is further satisfied by subsection (c) of Section 610, which provides that "attorney fees and costs shall be assessed against a party seeking modification if the Court finds that the modification action is vexatious and constitutes harassment." 750 ILCS 5/610(c) (West 1996). This provision provides a strong deterrent to those persons who would plan to seek custody modification solely as a form of harassment against the other parent. Davis.

The prospect of a court awarding attorney fees and costs against a parent who has a good faith best interest argument for custody seems a "remote possibility." More likely, petitions for modification will be "spun" to emphasize endangerment, giving parents with resources a second chance at making their best interest case.

The legislature must take a new look at issues raised by this case, including whether public policy should require stability and finality for children to rise to a level that means they are not in the care of the best custodian, or whether best interests of children should always be the final measure.

By Scott C. Colky

The Child Representative Statute is Unconstitutional

The members of the Special Subcommittee of the Illinois State Bar Association who wrote and lobbied for the "Child's Representative" statute were well-intentioned, hardworking attorneys and judges who cared deeply for children. The statute has had a positive impact on attorneys who represent children by requiring mandatory education and training.

The goal of the Subcommittee was to create a Guardian ad Litem who could investigate the child's situation and report to the court regarding their conclusions. In addition, they wanted the same individual to be able to subpoena witnesses, call witnesses at trial and advocate what the Child's Representative believed was in the child's best interest. In light of the fact the Child's Representative would have the powers of both the Guardian ad Litem and the Attorney for the Child, a prohibition against cross-examining the Child's Representative was included in the statute.

                                 Prior practice

Prior to the enactment of the Child Representative statute, the court could appoint either a Guardian ad Litem or an Attorney for the Child. When an attorney was appointed to represent young children, the appointment was usually as a Guardian ad Litem (GAL). The GAL would interview the children and advocate what that attorney believed was in the children's best interest. However, in situations where the children were older and voiced strong preferences, the appointment was usually as an Attorney for the Child (AFC). The AFC was bound by his traditional role of advocating his client's wishes even if the attorney believed those preferences were not in the children's best interests. In those cases, the AFC would request that the court appoint a GAL to investigate the situation and to report what she felt was in the child's best interest. This created a problem. The court had to appoint two attorneys to do the job now performed by the Child's Representative, thereby increasing the cost of the litigation.

Prior to the enactment of the Child's Representative statute, the ethical requirements of an attorney appointed to represent children were easily defined. The AFC had a fiduciary relationship to her client and functioned in the traditional role of an attorney. The GAL, however, stood in the shoes of the children and was a party to the litigation. In re the Parentage of Ryan Griesmeyer, 302 Ill.App.3d 905, 707 N. E. 2d 72 (1st Dist. 1998). The guardian investigated, created a report for the court and was subject to cross-examination. In re the Marriage of Karonis, 296 Ill.App.3d 86, 693 N.E.2d 1282 (2nd Dist. 1998).

                                    Current statute

Section 506 of the Illinois Marriage and Dissolution of Marriage Act defines the role of a Child's Representative, stating that..."[t]he child's representative shall have the same power and authority to take part in the conduct of the litigation as does an attorney for a party and shall possess all the powers of investigation and recommendation as does a guardian ad litem. The child's representative shall consider, but not be bound by, the expressed wishes of the child..." "The child's representative shall not be called as a witness regarding the issues set forth in this subsection." 750 ILCS 5/506.

                                    Custody czar?

A Child's Representative owes a duty to whom? Certainly not the child, because it is the Child's Representative's sole discretion to determine what they believe is in the child's best interest and to advocate that position. If the position she takes is not in the child's best interest, where is the accountability? The statute gives the Child's Representative unfettered discretion to determine best interest. And, by virtue of their appointment, the Child's Representative has enormous credibility and influence with the court, who is relying on this individual to be the court's eyes and ears. The Child's Representative's most dangerous tool is that he or she is able to convey hearsay information to the court.

Hearsay information does not usually come into evidence as it is considered unreliable. The basis of the unreliability is that the declarant cannot be cross-examined. Entire statutes have been created such as "The Dead Man's Act" to prevent hearsay from coming into evidence. While there is an established body of law regarding exceptions to the hearsay rule, the most important factor in those exceptions is the reliability of the statement.

Courts have traditionally required that doctors, psychologists, and witnesses come to court and testify, so that the truth finding process, highlighted by cross-examination, could take place. Only in the situation where an expert testifies that they relied on hearsay information does that hearsay information come into evidence. However, the information is admitted not for the truth of what the expert was told by the declarant, but to serve as the basis of what the expert relied on in forming that opinion, Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 322 (1981). Further, those hearsay sources could then be called as witnesses and other evidence attacking what the expert relied on could be introduced at trial.

This is not the case with our "custody czar." For example, the Child's Representative has the ability to speak to mental health treaters who have a confidential relationship with the children. The Child's Representative is able to incorporate that information into their recommendation and reports to the court. Since neither the Child's Representative nor the mental health treater can be cross-examined, the court receives hearsay information that cannot be challenged. 

                           The child's representative statute is unconstitutional

The Supreme Court of Illinois in Lulay v. Lulay, 193 Ill.2d 455, 739 N.E.2d 521 (2000) held that grandparent's visitation was unconstitutional because parents have a fundamental liberty interest in the care, custody and control of their children. The Illinois Supreme Court reiterated this position two years later in Schweigert v. Schweigert, 201 Ill.2d 42, 772 N.E.2d 229 (2002).

Because raising children is considered a fundamental liberty interest, it receives heightened protection under the due process clauses of both the State and Federal constitutions. Article 1, section 2 of the Illinois Constitution provides that "no person shall be deprived of life, liberty or property without due process of law nor be denied equal protection of the laws." See In re M.H, et al., 196 Ill.2d 356, 751 N.E.2d 1134 (2001); In the Interest of J.B. and T.B., 328 Ill.App.3d 175, 765 N.E.2d 1093, (1st Dist. 2002); and Lulay v. Lulay, 193 Ill.2d 455, 739 N.E.2d 51 (2000). Due process in its most basic form requires that a litigant have the right to appear and present evidence. The litigant also has the right to cross-examine witnesses.

It is a well-established principle that a public hearing before any tribunal or public body means the right to appear and give evidence and also the right to hear and examine the witnesses whose testimony is presented by opposing parties. See E. and E. Hauling v. County of DuPage, 77 Ill.App.3d 1017, 396 N.E.2d 1260 (2nd Dist. 1979) and People ex. rel. Robert J. Klaeren II v. Village of Lisle, 316 Ill.App.3d 770, 737 N.E.2d 1099 (2nd Dist. 2000).

The Juvenile Court Act recognizes that issues involving loss of custody entitle parents to the right to cross-examination:

"Due process is not a technical concept unrelated to time, place, and circumstances; rather, it is flexible and calls for such procedural protections as a particular situation demands. Procedural aspects of due process require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the case. Due process is not denied when a party fails to avail himself of the opportunity to be heard after it is offered to him. [citation omitted] While section 1-20 of the Juvenile Court Act (Ill.Rev.Stat. 1981, ch 37, par 701-20(1)) entitles respondents to certain rights including the right to be present [and represented by counsel] and to cross-examine witnesses, the proceedings are not intended to be adversary in character. The primary concern is the best interests and welfare of the child." [citation omitted]. In re D.L., Jr., 226 Ill.App.3d 177, 589 N.E.2d 680 (1st Dist. 1992).

Even cases involving child support arrearages recognize the right to cross examination:

"The rights to cross-examine and to present evidence are so basic as to be grounded in due process. Collectively, they constitute the litigant's day in court. Illinois Constitution, Art II, §2; [cites omitted] Defendant's citations to the effect that the scope and extent of cross-examination are matters for the trial court's discretion do, of course, express sound principles of law but are not applicable to a situation of complete denial. We conclude that the procedure followed in the instant case effectively denied the plaintiff her day in court, and the resulting order must therefore be reversed and remanded for a proper hearing." In re the Marriage of Jamal, 98 Ill.App.2d 180, 240 N.E.2d 246 (1st Dist. 1968).

Based on the foregoing, 750 ILCS 5/506 violates procedural due process by creating an individual who can report evidence to the court and not be subject to cross examination. As a result, litigants are denied due process and "their day in court."

Unfortunately, courts have become comfortable relying on the "custody czar" to help them make very difficult decisions regarding children. However, the statute is so fundamentally flawed that it not only violates due process, but equal protection as well.

                               Equal protection

The protection provided by the equal protection clauses in the Constitutions of the United States and Illinois is identical. The government is required to treat similarly situated individuals in a similar manner. The government, therefore, may not treat different classes of persons on the basis of criteria wholly unrelated to the purpose of legislation. In re R.C., 195 Ill.2d 291, 745 N.E.2d 1233 (2001).

Under the equal protection clause, courts are required to treat similarly situated individuals in a similar manner. Nonetheless, parents who are going through custody, removal, visitation and parentage cases are all treated differently depending on whether the court appoints a GAL, AFC or a Child's Representative for the children.

Under 750 ILCS 5/506, the decision as to the type of child's advocate is completely left up to the court's discretion. There is no criteria or guidance given to the court to help them determine which type of child's advocate should be appointed. Therefore, although individual litigants may be similarly situated, they may have the right to cross-examination if a GAL is appointed but will not have the right to cross-examination if a Child's Representative is appointed.

Courts apply strict scrutiny to classifications affecting fundamental rights. In re A.A., 181 Ill.2d 32, 690 N.E.2d 980 (1998). "To survive strict scrutiny in the equal protection context, as in due process analysis, the means employed by the Legislature must be necessary to advance a compelling state interest, and the statute must be narrowly tailored to the attainment of the legislative goal." [cite omitted] In re R.C., 195 Ill.2d 291, 745 N.E.2d 1233 (2001).

There is no compelling reason why litigants in custody cases should receive such disparate treatment. No rational basis exists for the court to hear unchallenged hearsay in some cases, and to allow the truth finding process to take place in others.

It is understandable that judges want to receive as much information as is available in cases involving children. These are tough cases and the consequences are great. However, in the Legislature's desire to protect children, it has enacted a statute that rejects concepts of basic fundamental fairness and has replaced these concepts with a "custody czar."

By Scott C. Colky

Areas of Practice

  • Adoptions
  • Child Custody
  • Divorce
  • Family Law
  • Grandparents Rights and Litigation

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