IICLE Family Law Flash Points - July 2013

1.         Supreme Court grants PLA regarding issue of invalid Notice to Withhold.  In April we reported on the case of Schultz v. Performance Lighting, Inc. 2013 IL App (2d) 120405. After serving a Notice to Withhold child support on an obligor’s employer and not receiving any support payments, a support recipient sought a penalty against the employer for $100 per day that it failed to comply with the Notice pursuant to 750 ILCS 28/35.  The Appellate Court held that the omission of the obligor’s social security number on the notice rendered the notice invalid.  The Illinois Supreme Court has granted the recipient’s Petition for Leave to Appeal.  The Appellate Court decision be found here. 

2.         Equitable tolling doctrine now applies to the Parentage Act.  In a case of first impression, the Illinois Appellate Court has applied the equitable tolling doctrine to the statute of limitations contained in Section 8(a)(1) of the Parentage Act which requires that a parentage action be barred if brought later that 2 years after the child reaches majority. In this case, the Plaintiff was an adult child who filed a petition to establish paternity against her alleged putative father more than two years after she reached majority.  The Appellate record contained uncontroverted affidavits from both her and her mother detailing the circumstances of her birth, including her mother’s rape resulting in her impregnation and her father’s threatening conduct towards her mother if she brought any action against him.  The Appellate Court relied on the legislative history of Section 8(a)(1) and the legislators’ emphasis on a child’s right to the physical, mental, emotional, and monetary support of his or her parent, and therefore held that courts may apply the equitable tolling doctrine to allow a child to file a parentage action past the statute of limitations if the elements of the doctrine are met.  Ralda-Sanden v. Sanden, 2013 IL App (1st) 121117.

3.         Plenary Order of Protection Reversed.  During the course of dissolution of marriage proceedings, wife filed a petition for plenary order of protection allegeding that husband committed emotional abuse and harassment towards herself, their five minor children, and a childcare worker employed in their home because he viewed child pornography on an Ipad that was known to be used by the children.  The trial court granted the order of protection and the Appellate Court reversed.  The decision turned on the definition of harassment under the Domestic Violence Act which is knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Because there was no evidence that husband viewed the pornography in her (or the children’s) presence or left the sites visible, the Court reasoned that he did not act knowingly because there was no evidence that his conduct was certain to cause wife or the children emotional distress.  In re the Marriage of Young, 2013 IL App (2nd) 121196.