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Chicago Child Custody – Custody Orders and Parent Conduct

Chicago Child Custody – Custody Orders and Parent Conduct

By: M. Scott Gordon

When it comes to Child Custody and visitation orders, can an Illinois court tell parents how they should behave around their children? A recent case from the Illinois Supreme Court, In re Marriage of Eckersall, suggests that courts may in fact be able to prohibit certain parental behaviors.

Facts of Eckersall

In Eckersall, the husband filed for divorce and sought joint custody of his three children. The wife also wanted joint custody, but only if the parties could agree on an arrangement. Without such an agreement, the wife’s petition indicated that she wanted sole custody. During the custody proceedings, the husband and wife agreed to have a lawyer appointed as an advocate for their children. As a recent article in Chicago Lawyer explained, the children’s attorney requested that the Judge enter an order on behalf of the children that prohibited certain types of parental conduct, including the following:

  •      Physical or emotional abuse of the children, or use of corporal punishment;
  •      Discussing aspects of the divorce and custody litigation with the children;
  •     Asking the children about their preferences for custody or visitation, or generally discussing these issues with them;
  •      Discussing or rehearsing court testimony or interviews related to the case with the children;
  •      Electronically surveilling the other party or the children, including any and all forms of audio or video recording;
  •      Using alcohol or nonprescription drugs in the presence of the children;
  •      Allowing an unrelated member of the opposite sex to spend the night when the children are present;
  •      Criticizing, disparaging, or demeaning the other party; and
  •      Removing the children from the state without the other party’s consent or a court order.

 

The order was entered by the Court, even though the wife objected to it. She raised numerous objections, including that it violated her right to due process. The court decided that her due process rights weren’t violated because she had the opportunity to raise both general and specific objections.

The wife appealed to the appellate court, which dismissed her appeal. She then appeared to the Illinois Supreme Court, which has yet to render a decision.

Divorce Court Orders and Regulating Parental Behavior

What did the wife argue at the Illinois Supreme Court? Many issues came up in this case, but in essence the wife contended that the order functioned like an injunction and thus should have been appealable. The dissenting judges from the appellate court made some significant points, which may come into play in the Supreme Court’s decision.

For instance, the order prevented the children from discussing their feelings about the divorce with their mother, as well as asking their mother questions about how the divorce would affect them. In addition, by prohibiting the mother from surveilling, or videotaping, her children, the order effectively prevented the mother from videotaping school plays, sporting events, and so forth.

At the same time, however, Illinois courts often enter these kinds of orders in divorce cases. Should these orders be better tailored to the unique custody issues that arise in each case, rather than prohibiting conduct that never seemed to be a concern during the divorce proceedings? We’ll have to wait and see how the Supreme Court decides.

In the meantime, if you have questions about Chicago child custody, don’t hesitate to contact an experienced Chicago child custody lawyer at M. Scott Gordon & Associates to learn more about how we can help with your case.