IICLE Family Law Flash Points - April 2014

1.         Post-judgment sole custody award to father upheld even though he did not petition for it.  In a post-judgment custody trial where mother brought a petition for modification of a joint custody arrangement and sought sole custody of the parties’ 10-year old daughter, the trial court heard evidence from a 604(b) custody evaluator, the child’s school social worker, teacher, and other fact witnesses and ultimately grated father sole custody.  Father did not seek sole custody himself, but brought a petition to be named the child’s residential parent and for the joint custody arrangement to continue.  The 604(b) recommended that the mother be awarded sole custody. The trial court found that the mother’s testimony lacked credibility and that her actions could potentially alienate the daughter from a healthy relationship with her father.  The court found that the factor regarding “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child” weighed heavily in favor of the father.  The Appellate Court affirmed the decision noting that a 604(b) report is expert advice and the court is not bound to abide by such opinions.  And although the father did not specifically request sole custody, once the issue was placed before the court, the court possessed broad discretion to alter custody or visitation rights to the extent required by the child’s best interests.  In re Marriage of Debra N., 2013 IL App (1st) 122145.

2.         Invoking fifth amendment privilege against self-incrimination does not shift the burden back to the petitioner in a rule to show cause hearing.  At a hearing on a Petition for Rule to Show Cause after the rule had issued and the Respondent was ordered back in court to testify as to why he had failed to pay temporary support pursuant to a prior order, the Respondent took the fifth amendment. He represented that he was under investigation for the nonpayment of taxes and any evidence on his current inability to pay could incriminate himself.  The trial court subsequently found him in contempt of court and set the purge at approximately 20% of the amount owed on the arrearage.  Respondent appealed the contempt order.  The Appellate Court noted that at the hearing the burden had already shifted to him to show why he should not be held in contempt and that instead of presenting evidence to that effect he chose to assert his fifth amendment rights.  In that case, the burden did not shift back to the Petitioner to show that the Respondent had the ability to pay.  Instead, Respondent was attempting to use the fifth-amendment as a sword to defeat allegations of contempt, not a shield against self-incrimination, as it was intended. The trial court’s order was upheld. In re the Marriage of Ray, 2014 IL App (4th) 130326.