Transcript CASE LAW UPDATE CUSTODY / VISITATION

CASE LAW UPDATE
CUSTODY / VISITATION
2005-2006
CASE LAW UPDATE
Visitation

Step-parent

Grandparents
Standing Requirements of IMDMA v. Probate Act

Custody

Guardianship
Removal/Relocation

Intrastate

Interstate
Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)
Hague Convention
Other Factors
Visitation
Step-parent
1.
Former husband granted custody of step-son over mother’s objection; he met the standing
requirement (750 ILCS 5/601(b) (2) and it was in child’s best interest to remain with step-father.
In re Marriage of Archibald 843 N.E.2d 446, 300 Ill.Dec. 188, (Ill. App. 5th
Dist.) Jan. 31, 2006
2.
Father had right to terminate former wife’s visitation; court had no authority to enforce the Agreed
Order for visitation, even with evidence Father was unfit.
- no equal footing
- no “narrow exception to the unconstitutionality of the statute”.
- step-parents have no common law right to visitation
In re Marriage of Engelkens 354 Ill.App.3d 790, 821 N.E.2d
799, 290 Ill. Dec. 487, (Ill. App. 3rd Dist.) Dec 28, 2004.
3.
Former husband’s visitation rights with child were enforceable, despite Mother’s objection, where
the parties had a parenting agreement.
- Need contractual basis for enforcing parenting agreements
- Wickham v. Byrne did not apply to Consent Judgments
-custody disputes should be resolved based on best interest, not on
financial considerations
In Re Marriage of Purcell 355 Ill.App.3d 851, 825 N.E.2d 724, 292 Ill.
Dec. 136, (Ill. App. 4th Dist. 2005)
Visitation Grandparents


The parties’ 1995 Agreed Order for visitation was enforceable because:
a) there was consideration for the agreement; and
b) trial court had subject matter jurisdiction to hear
case, as common law grandparent visitation still exists in
limited circumstances, (despite Wickham v. Byrne, 199 Ill.
2d 309, 769 N.E.2d 1 (2002)).
Provision in the court order prohibiting parties from discussing case
with daughter interfered with parent’s 14th Amendment rights to
parental liberty.
Felzak v. Hruby, --- N.E.2d ----, 2006 WL 2666128 (Ill. App. 2
Dist.) September 5, 2006
Standing Requirements
IMDMA ≠ Probate Act
Custody
1. A non-parent must have standing to seek
custody
2. The court must consider the superior rights
doctrine
3. Non-parent must overcome presumption that
custody to the parent is in the child’s best interest.
(750 ILCS 5/601 et.seq.)
In re Custody of T.W., 365 Ill.App.3d 1075, 851 N.E.2d 881 (Ill. App.
5 Dist.) June 19, 2006
Standing Requirements
Guardianship
1. There “shall be a rebuttable presumption that a parent of a minor is willing and
able to make and carry out day to day child care decisions concerning the
minor, but the presumption may be rebutted by a preponderance of evidence”.
(755 ILCS 5/11-5(b) and 5/11-7)
2. Standing requirement of the IMDMA (750 ILCS 5/601(b)(2)), that a custody
proceeding may be commenced by a person other than a parent “only if the
child is not in the physical custody of one of his parents” does not apply to the
Probate Act.
3. Section 11-7 of the Probate Act means what it says: a fit parent, competent to
transact his or her own business, is entitled to custody. A fit parent may not be
deprived of custody under the Probate Act if he or she was living apart from the
other parent at the time that parent died.
In re R.L. S., a Minor 218 Ill.2d 428, 844 N.E.2d 22, 300 Ill.Dec. 350,
(2005) affirmed 214 Ill 2d 533, 830 N.E. 2d 3, 294 Ill.Dec. 3 (Ill.) March 30, 2005
Removal/Relocation
Intrastate
1. Mother’s post-trial statement that she was relocating to another part of
the State with children was newly discovered evidence triggering a new
trial. Father was granted sole custody.
- Issues affecting the children’s best interest need to be
disclosed
In re Marriage of Wolff 355 Ill.App.3d 403, 822 N.E.2d 596, 290 Ill. Dec. 1011,
(Ill. App. 2 Dist.) January 21, 2005
2. Custodial parent need not obtain non-custodial parent’s consent to
relocate within the State.
- presumption in favor of allowing freedom of movement
- geographic limitations may not be enforceable
- inconvenience is not a compelling reason
In re Marriage of Samardzija, 365 Ill.App.3d 702, 850 N.E.2d 880 (Ill. App. 3
Dist.) June 9, 2006
Removal/Relocation
Intrastate
3. Court will look at a parent’s motives for relocating to
another part of the State
- is purpose to frustrate other parent’s visitation?
- §609 does not apply to intra-state transfers
In re Marriage of Main, 838 N.E.2d 988, 298 Ill. Dec. 95, (Ill. App. 2d
Dist.) November 10, 2005
Removal/Relocation
Interstate
1. Mother’s request to remove child and relocate to North Carolina
because her fiancé worked there, he would provide financial support
and she would be able to quit work and stay home with child, was
denied.
- considered father’s relationship with the child and what child would
be leaving behind
In re Marriage of Hansel, 304 Ill. Dec. 298, 852 N.E.2d 548 (Ill. App. 3 Dist.)
July 7, 2006
2. The standards for removing a child from the state are the same under
the Parentage Act and the IMDMA: request leave to remove, burden
and best interest.
- non-custodial parent need not request an injunction under §13.5
of the Parentage Act.
Fisher v. Waldrop, 221 Ill.2d 102, 849 N.E.2d 334, 302 Ill. Dec. 542 (Ill.)
April 20, 2006
Removal/Relocation
Interstate
3. Once a parent is permitted to leave the state with
the child, Illinois cannot control the custodial parent’s
future moves to another state.
In re Parentage of Tavares 363 Ill.App.3d 964, 852 N.E.2d
241,303 Ill. Dec. 834 (Ill. App. 5 Dist.) May 24, 2006
UCCJEA

Section 201(a)(2) pf the UCCJEA provides an alternative basis
for jurisdiction where no home state exists and the child and at
least one parent have significant connections to Illinois. 750
ILCS 36/101 et. seq.
In re Marriage of Diaz, 363 Ill.App.3d 1091, 845 N.E.2d 935, (Ill. App. 2 Dist.)
March 17, 2006

A binding forum selection clause in an order is not necessarily
binding; it is one factor the court considers.
Horgan v. Romans, 366 Ill.App.3d 180, 851 N.E.2d 209, 303 Ill. Dec. 311 (Ill.
App. 1 Dist.) May 18, 2006
International Child Abduction Remedies
Act (ICRA) and Hague Convention

Any order requiring a return of children when there is
a risk of harm also requires that the children be kept
out of the custody of the alleged abusing parent until
the merits of the custody issues can be resolved by
the court. If there is clear evidence the children may
be harmed, it may be appropriate to deny the return.
Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. Ill.) Dec. 07, 2005

Child’s “habitual residence” was Poland and therefore
Polish law giving custody to unwed mother governed
whether Father unlawfully removed and retained
child during child’s visit to Illinois
Kijowsa v. Haines – F. 3d ----, 2006 WL 2574095 (7th Cir. Ill.) July 20, 2006
OTHER FACTORS

Visitation
Disabled person. Under IMDMA, court has no subject matter
jurisdiction over visitation issues involving a non-minor child
even if the child is disabled.
In re Marriage of Dobbs 358 Ill. App.3d 308, 831 N.E.2d 1154, 294 Ill. Dec.
829, (Ill.App.5th Dist.) June 7, 2005
Passports. Requiring father’s attorney to hold children’s
passports was not a “restriction” on visitation rights.
In re the Marriage of Mouschovias 831 N.E. 2d 1222, 294 Ill. Dec. 897, (Ill.
App. 4th Dist) July 14, 2005
OTHER FACTORS
Custody
Name Change. A disagreement over a name change creates a custody
dispute that should be resolved by the family court.
In re Wright 363 Ill.App.3d 894, 844 N.E.2d 427, (Ill. App. 4th Dist.)
February 14, 2006
Race. Race may be considered as a factor in determining custody.
In re Marriage of Gambla, 853 N.E.2d 847, 304 Ill. Dec. 770 (Ill. App. 2d Dist.)
July 31, 2006
Agreed Orders. Court had the authority to enter an Agreed Order for
custody and child support where both parties and the Judge signed
the document.
In Re Marriage of Nau 355 Ill.App.3d 1081, 824 N.E.2d 650, 291 Ill. Dec. 794 (Ill.
App. 2d Dist.) March 4, 2005