Justia Family Law Opinion SummariesArticles Posted in Illinois Supreme Court
In re Marriage of Turk
Iris and Steven have two sons, Nathaniel, born in 1997, and Jacob, born in 1999. Iris filed a divorce petition. The court entered an agreed judgment dissolving the marriage, providing for unallocated maintenance and child support, joint custody, and that Steven would provide the medical insurance for the children and cover 50% of their out-of-pocket medical and dental costs. Steven and Iris frequently returned to court and in 2010 the court granted temporary physical custody to Steven, limited Iris to supervised visitation, and made a one-time reduction in the amount Steven was paying for child support. Steven filed a petition under 750 ILCS 5/510, asking that his obligation to pay child support to Iris be terminated. Steven was required to pay $700 per month “based upon the current parenting schedule.” Steven subsequently asked the court to order Iris to pay child support to him or to temporarily terminate the obligation on the grounds that the boys’ schedules eliminated any expenses Iris might have. The trial court entered an agreed order which specified that Steven was to have “the sole care, custody, control and education” of the boys. Iris was granted visitation with Nathan for dinner on Wednesdays. With Jacob, she had weekly visits from Monday to Wednesday mornings, plus alternating weekends. Steven earned $150,000 per year while Iris earned than $10,000 per year. The court ordered Steven to pay Iris child support of $600 per month and made him “solely responsible for all uncovered medical, dental, orthodontia, psychological and optical expenses for the children.” The appellate court rejected Steven’s contention that section 505 does not authorize orders to pay child support to noncustodial parents and held that the trial court did not abuse its discretion in ordering Steven to pay child support, but that the award $600 per month, was not justified by the record. The Illinois Supreme Court affirmed the authority of the circuit court to order Steven to pay child support and remanded for a hearing regarding the amount. The court reversed modification of the support order requiring Steven to pay the full amount of any of the children’s medical and dental expenses not covered by insurance.View "In re Marriage of Turk" on Justia Law
In re N.C., a Minor
The day after N’s birth, the baby’s mother, Nichole, and her boyfriend, Alfred, executed a voluntary acknowledgement of paternity (VAP), expressly imposing responsibility on Alfred to provide financial support. The VAP did not grant Alfred a right to custody or visitation, but it did provide him the right to seek custody or visitation. Alfred was also entitled to notices of adoption proceedings. Both Nichole and Alfred had the right to rescind the VAP within 60 days. The VAP explicitly waived Alfred’s right to genetic testing. Three days later, the Department of Children and Family Services (DCFS) took N into protective custody. DCFS filed a petition alleging juvenile neglect, identifying Nichole as N’s mother and Alfred as N’s father. The circuit court entered an order for temporary shelter care, placed N in the custody of DCFS, appointed a guardian ad litem (GAL), entered an order identifying Alfred as the “legal” father based on the VAP, and appointed separate counsel for Nichole and Alfred. Following genetic testing, the court granted the state’s motion and dismissed Alfred, based on evidence that he is not N’s biological father. The appellate court reversed, holding that the state did not have standing in a juvenile neglect proceeding (705 ILCS 405/1-1) to challenge the paternity of a man who signed a VAP under the Illinois Parentage Act of 1984 (750 ILCS 45/1). The Illinois Supreme Court affirmed. View "In re N.C., a Minor" on Justia Law
In re Marriage of Donald B.
The Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/607(e), prohibits a non-custodial parent who has been convicted of a sexual offense perpetrated on a victim less than 18 years of age from obtaining court-ordered visitation with his children while serving his sentence and until successfully completing “a treatment program approved by the court.” A child abuse report was made to a hot line, alleging that Donald had sexually abused an unrelated minor. Donald pled guilty and was sentenced to two years’ probation. Donald was required to register as a sex offender, to provide a DNA sample, and to be tested for sexually transmitted diseases, but not required to obtain sex offender treatment. A court subsequently granted Donald’s ex-wife sole custody of their children suspended Donald’s visitation pursuant to section 607(e) Donald argued that a parent’s right to visitation with his child is a fundamental right, which the state may not abridge unless there is a compelling state interest and a finding that denying visitation is in the child’s best interest. The court agreed and found the law unconstitutional. The Illinois Supreme Court vacated, finding the matter moot. Donald successfully completed his probation. His cooperative participation in the sex offender evaluation, plus the evaluator’s assessment and recommendation that no further treatment was necessary, were sufficient to show compliance with section 607(e)’s requirement that he “successfully complete a treatment program approved by the court.” The court declined to apply the “public interest" exception.View "In re Marriage of Donald B." on Justia Law
In re Marriage of Tiballi
The circuit court dissolved the Tiballi marriage in 2005, awarding joint legal custody of daughter Francesca, but placing residential custody with Sheila. In 2010, Robert sought to modify custody. The court appointed a psychologist to advise it pursuant to the Marriage and Dissolution of Marriage Act, 750 ILCS 5/604(b), dismissed the petition, and ordered Robert to pay the fees of that psychologist. The appellate court affirmed, rejecting Robert’s argument that the psychologist’s fees were not “costs” under the Code of Civil Procedure, 735 ILCS 5/2-1009(a). The Illinois Supreme Court affirmed. Requiring a party who has his custody petition dismissed without prejudice, for non-abusive reasons, to automatically bear the full cost of a section 604(b) evaluator is beyond the scope of the Code and the Marriage Act. The Marriage Act is the specific statute that controls the matter and evaluator fees are not “court costs” within the meaning of the Code or Civil Procedure. When the circuit court appointed the section 604(b) evaluator, it ordered the parties to share equally in his fees without prejudice to ultimate allocation. The court never made that ultimate allocation because of its mistaken belief that section 2-1009 mandated the fees be taxed entirely to Robert as costs.View "In re Marriage of Tiballi" on Justia Law
In re S.L.
S.L., the daughter of Julia, born in 2002, was adjudicated abused or neglected in 2007, and was made a ward of the court in January 2008, pursuant to the Juvenile Court Act, 705 ILCS 405/2-3(1)(b). The conditions that gave rise to her removal were insect bites, apparent dog bites, substantial bruising to her shoulder and groin, and unclean living conditions. At each of five subsequent permanency hearings, the goal was for S.L. to return to Julia within 12 months, while custody remained with the Department of Children and Family Service. In July 2010, the goal was changed to substitute care pending termination of parental rights. Julia was continuously represented by counsel. In November 2011, the state sought termination of parental rights, alleging that Julia failed to make reasonable efforts to correct the conditions that were the basis for the removal and was unable to discharge parental responsibilities de to mental impairment. The appellate court reversed the trial court’s finding of unfitness because the state did not file a separate notice under the Adoption Act (750 ILCS 50/1(D)(m)(iii), identifying which nine-month periods were the subject of the termination proceeding. The Illinois Supreme Court reversed and reinstated the finding, noting that Julia did not allege any harm as a result of the defect in notice. Failure to file the separate notice pleading was a pleading defect, not a failure to state a cause of action, and was forfeited by Julia because she failed to raise the issue in the trial court.View "In re S.L." on Justia Law
Schultz v. Performance Lighting, Inc.
Schultz sought to recover a $100 per day statutory penalty from Performance Lighting under the Income Withholding for Support Act, 750 ILCS 28/35, claiming failure to withhold sums for child support that allegedly should have been withheld from her ex-husband’s paychecks. A2009 dissolution ordered the ex-husband to pay $600 every two weeks; he worked for Performance until May, 2010. The trial court dismissed with prejudice, finding that the notice of withholding was not in strict compliance with the Act. The appellate court and Illinois Supreme Court affirmed. The notices provided to the employer did not provide the father’s social security number, as required by the Act and were, therefore, not “regular on their face.” The requirements of the statute are mandatory. Although there are recent legislative amendments, effective August, 2012, they have no impact here.View "Schultz v. Performance Lighting, Inc." on Justia Law
In re Karavidas
Karavidas, admitted to practice law in Illinois in 1979, worked for the City of Chicago, the Attorney General, and several law firms. In 1988, he opened his own practice. His father executed will and trust documents prepared by another attorney in 2000, and died later the same day. Karavidas was named executor and successor trustee. His dealings with the estate resulted in charges of conversion of assets entrusted to him; breach of fiduciary obligations; conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Illinois Rules of Professional Conduct; conduct prejudicial to the administration of justice; and conduct tending to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Review Board of the IARDC recommended that charges be dismissed. The Illinois Supreme Court agreed. Before professional discipline may be imposed under Supreme Court Rule 770, the Administrator must demonstrate that the attorney violated the Rules of Professional Conduct. Personal misconduct that falls outside the scope of the Rules may be the basis for civil liability or other adverse consequences, but may not result in professional discipline.View "In re Karavidas" on Justia Law
People v. Trzeciak
Defendant was charged with the 2004 murder of Kasavich. In pretrial motions, the trial court ruled that some evidence of domestic violence was relevant to defendant’s motive for the killing and to intent, but limited the evidence that was admissible, finding that the admission of all of it would be more prejudicial than probative. The trial court denied defendant’s motion to exclude certain testimony from defendant’s wife based on the marital privilege. The appellate court concluded the communications between his wife and defendant were protected by marital privilege because they were made during the marriage and were made privately. The Illinois Supreme Court reversed and remanded. Defendant’s threat to kill his wife and Kasavich was not made in reliance on the confidences of his marriage; defendant intended that his wife reveal the threat to Kasavich. It is the type of communication that the wife might have revealed to a family member or the police. Defendant’s threat, that it was not motivated by his reliance on the intimate, special trust, and affection of the marital relationship. View "People v. Trzeciak" on Justia Law
In re Marriage of Earlywine
The underlying divorce proceedings were initiated by the husband in 2010 through his attorney, James, and were complicated because the couple had a three-year-old son. Both parties had debts and neither was able to pay attorney fees, but husband’s family contributed more than $8,000 on his behalf, which was paid to James. When James received the money, husband signed an agreement, designating the sum as an “advance retainer” and the attorney’s property, not placed in a client trust account. Citing the “leveling of the playing field” provisions of the Illinois Marriage and Dissolution of Marriage Act, the trial court entered a “disgorgement” order for James to turn over to wife’s attorney half of the fees paid to him ($4,000). The appellate court and Illinois Supreme Court affirmed. The Marriage Act reflects a policy of giving trial courts discretion to do equity in dissolution proceeding by making interim fee awards where parties lack resources. Case law and ethics rules concerning attorney fees come from a different context and are not pertinent to marriage dissolution. The advance payment retainer argued by James might be appropriate in some circumstances, such as bankruptcy or a forfeiture proceeding. View "In re Marriage of Earlywine" on Justia Law
In re the Parentage of J.W.
The mother began a relationship with Jason in 2001; J.W. was born in 2002. The couple married in 2003 and divorced in 2006. The court awarded J.W.’s mother custody and Jason visitation. In 2008, the mother married Joe. Months later, DNA testing determined that J.W. was the biological child of Steve, with whom the mother, unbeknownst to Jason, had a one-time sexual encounter in 2001. The mother temporarily separated from Joe, moved, and placed J.W. in school near Steve’s residence. Steve began successful proceedings to legally establish his parentage, but the mother reunited with Joe. They had a child together. Steve’s attempts to have visitation with J.W. were opposed by Jason, who had been presumed to be J.W.’s father until 2008. The circuit court determined that it was not in J.W.’s best interests to have visitation with Steve. The appellate court reversed. The Illinois Supreme Court reversed, holding that under section 14(a)(1) of the Parentage Act, the initial burden is on the noncustodial parent to show visitation is in the best interests of the child, using the best-interests standard of section 602 of the Marriage Act, and that the circuit court’s decision was not against the manifest weight of the evidence. View "In re the Parentage of J.W." on Justia Law