Family Law Flash Points - August 2019

1.         Motion for Substitution of Judge ruling not appealable.  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 upon allocation judgments in place if “it only inconveniences one party.”  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.”  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 304(a) language was included. In re Marriage of Morgan, 2019 IL App (3d) 180560.

2.         Trial court’s order denying a petition for name change for minor child reversed.  After a lengthy evidentiary hearing on whether a minor child’s last name should be changed from her biological father’s to her step-father’s pursuant to735 ILCS 5/21-101, the trial court ruled that mother had not met her burden that the name change was in the best interest of the child.  Mother appealed and the Appellate Court reversed because nearly all of 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 where 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 step-father cared for her on a daily basis and the child thought of him as her dad and called him “dad.”  Although the mother and step-father enrolled the child in school with the step-father’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 step-father.  The Court reasoned that 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 3 ½ years old.  In re M.E. v. Gerald E., 2019 IL App (3d) 170759.