IICLE Family Law Flash Points - March 2015

1.         Supreme Court finds issue of whether an interim parenting order was an injunction moot, and declines to rule on the issue.  In July we reported on the case of In re the Marriage of Eckersall, where the First District dismissed wife’s appeal for lack of jurisdiction on the issue of whether a trial court’s order which placed restrictions on parents’ behavior when the children were in their custody was an injunction.  The Supreme Court subsequently granted wife’s Petition for Leave to Appeal, but thereafter in its ruling, stated that the PLA was “improvidently granted” and that the issue was now moot. The Appellate Court filed its opinion on May 28, 2014 and the trial court entered a final judgment for dissolution of marriage on June 9, 2014.  Therefore, the issue whether the interim parenting order was an injunction was now moot because the order was no longer in effect.  The Court declined to apply the public interest exception and address the merits of the appeal because (1) this type of order has a limited application to a small group of people – only divorce proceedings where the parties cannot agree on terms and conditions of visitation; (2) there are no conflicting precedents which require an advisory opinion and (3) there is no likelihood of recurrence evidenced by the lack of litigation regarding this issue in the past. In re the Marriage of Eckersall, 2015 IL 117922.

2.         Post-judgment custody modification granted.  The Appellate Court upheld a trial court’s ruling transferring custody from mother to father wherein the trial court originally denied the father’s petition for change of custody due to applying the improper legal standard, and then corrected itself upon father filing a Motion for Reconsideration.  The parties’ original judgment granted (by agreement) mother sole custody of the parties’ only minor child.  Three years later, father filed a Petition to Modify Custody alleging that a substantial change in circumstances had occurred and that it was in the child’s best interest to reside with him. The evidence showed that the mother had serious mental health problems; her marriage with her new husband was troubled; she exhibited several instances of neglectful parenting; and she was not forthcoming with the father about matters affecting the child.  The trial court originally interpreted Section 610(b) of the IMDMA to require proof that the change of circumstances had already actually affected the child, and therefore did not modify custody.  However, upon reconsideration it corrected itself and found that circumstances occurred which could lead to future harm or otherwise adversely affect the child’s welfare, and therefore transferred custody to father.   In re the Marriage of Rogers, 2015 IL App (4th) 1407658.

3.         Removal allowed so that mother could take a more secure employment position in South Carolina.  The Appellate Court reversed a trial court’s decision to deny a mother’s Petition for Removal and allowed her to permanently remove the minor child to South Carolina so she could take advantage of a more secure employment position.  In their judgment for dissolution of marriage, the parties shared joint custody and mother was named the primary residential parent.  Father had visitation two (2) weekends per month as well as two (2) weeks in the summer along with some other holidays. At trial, the evidence showed that the mother’s job was extremely stressful, tenuous, and causing her health problems.  She was offered a job at the University of South Carolina, near where her parents and sister resided.  She accepted the offer and moved there with the child. She also retained her house in Illinois pending the outcome of this action. Her salary in South Carolina was less than in Illinois, but she worked significantly less hours. The Appellate Court noted it had concerns with a 7-year old child traveling alone on an airplane frequently for visitation, but that this had already occurred a number of times without incident. The Court also noted that cutting back on the total amount of visitation for father would not significantly impact his relationship with the child given the amount of time he now saw her.  In re the Marriage of Tedrick, 2015 IL App (4th) 140773.