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.
3. Plenary order of protection reversed for failure to include specific findings. 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 mother to testify as to what her daughter told her when she returned home. Father disputed the facts on the record and said he only spanked her 3 times. The trial court granted the order of protection and 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 Section 214(c)(1) of the Domestic Violence Act which require 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 were fatal to the validity of the order of protection. Landmann v. Landmann, 2019 IL App (5th) 180137.
4. Plenary order of protection reversed due to children’s hearsay statements. 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 Section 8-2601 of the Code of Civil Procedure (735 ILC 5/8-2601). The Section requires the child to either testify at the proceeding, or be unavailable as a witness so long as there is corroborative evidence of the act which is the subject of the statement. The Court opined on the differences between the IMDMA, 750 ILCS 5/606.5; the Civil Code, 735 ILCS 5/8-2601; and The Domestic Violence Act, 750 ILCS 60/205(a), all 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 (2002) which applied Sec. 8-2601 and noted that Flannery stated that Section 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 of Daria W. v. Bradley W., 317 Ill.App.3d 194 (2000) which concluded the IMDMA controlled the admission of the child’s hearsay statement. Arika M. v. Christopher M., 2019 IL App (4th) 190125.