Illinois Coronavirus Stay-at-Home” Order Impact on Parenting Orders As you are all aware, the Illinois governor has ordered that starting today at 3:00 p.m., all the residents of Illinois are ordered to stay-at-home. Grocery stores will still be open and so will pharmacies. If you aren’t a first responder or some other emergency personnel, in law enforcement or health care, you are likely one of the people that is ordered to stay in your home. So if you are following the stay-at-home order and remaining in your home, can you go out to exchange your child with the other parent as detailed in your parenting order (Allocation or Custody Judgment)? The short answer is “yes.” Gov. J. B. Pritzker states that in his order that complying with court orders is considered essential travel, and all domestic relations attorneys were given a set of orders by our Chief Judge which states that everyone is supposed to comply with their parenting orders. Judge Dickler is also asking everyone to have some common sense in this trying time and not to look for technicalities to keep from having to abide by the orders. (If you send an email to [email protected], I can send you the orders the court has issued.) Special Circumstances Impacting Compliance with Parenting Orders? With that said, there are some circumstances that may dictate when you shouldn’t abide by the orders. While the courts do not like people to essentially decide for themselves if they should comply, we are really left with little choice since the courts are closed down. We are allowed to file emergency motions, but we don’t know what is considered an emergency just yet. Please note that no one has the final authority on the circumstances that I’ll next address. This is new ground for everyone and I’d assume that if a judge is facing your particular circumstance, common sense will be one of the criteria that is applied. OTHER PARENT HAS BEEN TRAVELING First, if the other parent has been traveling, I think it would be safe to say that the parent should self-quarantine and not expect parenting time during that quarantine. Should you make your child available to Skype or do FaceTime, even if your order doesn’t provide for it? Absolutely. Keep in mind that you would not want to go 14 days without seeing your child, so instead of sitting back and figuring out how to keep your child from the other parent, think of how you can make your child available in alternative ways. You should have had a discussion with your child by now about how serious this situation is, but try not to show panic to your child. I remember the story of a friend of mine told me about the last election. When the president won, their daughter starting crying and saying, “But I don’t want to move to Canada!” The little ears are listening to everything, so don’t leave the TV or radio on all day talking about this. Your child will think the world is going to end. You’d obviously answer questions they have, but try and rein in the panic. OTHER PARENT HAS BEEN SICK? If the other parent is sick, then I think you are within your rights to not take your child to the other parent. The last thing anyone wants is to infect your child or have your child come home and infect you or your parents. TRANSPORTATION? What if the other parent doesn’t have a car and uses public transportation? I would think in that instance if the parent cannot pick up the child in a car, then there would be no parenting time. I wouldn’t advise having the child on public transportation right now. MEETING IN PUBLIC PLACES? What if your parenting order has you meeting in a public place? In that instance, I would communicate with the other parent to just meet at that public place, but not to go in. You can drive up to the other parent’s car and exchange there. No need to go into the public place unless you are scared of the other parent. If you are too scared to be alone with the other parent (domestic violence cases) then the other parent can either pick up curbside at your house, or you could drop off curbside at their house. Those are all reasonable accommodations. If you cannot do any of those and the other parent won’t compromise, then I’d think you could cancel the parenting time rather than expose your child to being in the public place. TRAVEL BY AIRPLANE? What if the parenting order requires your child to get on a plane? Again, I would think that you wouldn’t send the child. No child should be traveling on a plane right now. Contact Anderson & Boback for Legal Advice on Parenting Orders These are just a few of the circumstances that have come up just today. If you have a question regarding the stay-at-home order impact on your parenting time or parenting orders, give me a call at the office 312–757–8684, or contact us by visiting our website illinoislawforyou.com, or email me directly at [email protected] and I’ll try and help you figure it out. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/parenting-time/stay-at-home-order-impact-parenting-orders/
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We are facing very uncertain times at the moment. With the WHO, CDC and the Federal Government’s coronavirus guidelines on social distancing and recommendations against large gatherings, you may find yourself at home working remotely, or being stuck at home confined with your significant other and/or family, with seemingly no escape in sight. There is a way, however, to put extra time at home to good use (other than catching up on Netflix or good books) when it comes to planning for divorce. This time of home isolation and social distancing is a great opportunity to try to plan for the future if divorce is something you are contemplating or seriously considering. Planning for Divorce When You’re Stuck at Home Here are some tips to follow in the event you find yourself at home with spare time for planning for divorce: (1) Gather and Organize your Financial Documents. Most divorcing parties exchange financial documents, particularly when they have accounts or debts in their own names. Start by gathering three (3) years of your prior bank statements, credit card statements, investment account statements, retirement account statements, Federal and State Income Tax Returns, W-2’s/1099’s, year-end paystubs for the prior three (3) years, documents relative to any real estate you own, documents relative to any financial expectancies, documents showing that any property you own is non-marital; your resume, any other financial related documents, going back three (3) calendar years. Organize these documents in date order and by year, in folders. This will make it easy for you to refer back to these documents and it will also make it much easier for an attorney you hire to go through the documents while saving you attorney’s fees and costs associated with them having to organize the same. Even if you do not have separate accounts, gathering the last three (3) years of all financial documents, even the joint ones, is helpful, as some attorneys will require these when drafting settlement proposals, or advising you on the distribution of the marital estate. It is also very helpful to create a balance sheet, listing all known assets and the values, as of a (recent) date certain. This will give an attorney you hire a very clear picture of your finances. (2) Get a Head Start on Filling out a Financial Affidavit Form This financial form is almost always required to be filled out by both parties in a domestic relations case, whether it is a divorce or a parentage case, so long as some sort of support (child support or spousal support/maintenance) is involved. This form is easy to access online via Google if you’re looking for the Illinois statewide form. This form is generally the first thing your attorney will ask you to complete, so it doesn’t hurt to take a look at it and get an idea of what you will have to provide as far as financial information is concerned. To assist you in preparing this form, gather and organize your last twelve (12) months of bills, paystubs, expenses, receipts, and the like. (If you don’t use cash then your last twelve months of credit cards or checking account statements may suffice). You will need to come up with the monthly amount of various expenses as well as your monthly income to fill out this form. You will also need current account balances, to the best of your knowledge. Taking a sneak peek at the form and gathering the relevant information to help you complete it will put you ahead of the game. (3) Organize your Thoughts on Property Distribution Your divorce plan should include making a punch list of your property and how you want it distributed helps you to formulate a game plan with your attorney. Perhaps there are certain items that you want the most (i.e., to keep the marital home) and perhaps there are certain things you don’t care about as much (i.e., taking part in your spouse’s retirement account). Making a list of your “wants” versus “would like’s” versus what you do not want helps you to organize your thoughts and helps you to figure out with your counsel what your approach will be to your case. (4) Organize your Thoughts on Child-related Issues (Allocation of Parental Responsibilities and Parenting Time) Now is a great time to contemplate what sort of parenting time schedule would work best for your minor children. Consider factors such as where you will be living, where your spouse will be living, distance from your respective places of residence to the child(ren)’s schools, and how facilitating transportation would work. Think about things such as emergency plans for school closures and how those would work. Concentrating on how to allocate holidays is also something to consider. Do you want to share major holidays, such as Christmas, where one party takes Christmas Eve and the other takes Christmas Day? Or, do you want to take the entire Christmas holiday, to coincide with a week of Winter Break, to allow for travel? Do you want Thanksgiving to be an entire week off of school, or just the day? Going through a list of major holidays and sorting through what you want can be time-consuming, and now you may just find yourself with some time to review this. (5) Organize and Prepare to Divide Personal Items While you are stuck in the home planning for divorce, it is a great time to go through your personal property, and even to try and divide it up. Courts do not like to determine issues relative to personal property because, by the time the parties pay their attorneys to argue over who gets the 65-inch OLED TV, the parties probably could have bought several of them. Parties are often encouraged to sort through and divide personal property on their own. This would be one less thing to worry about! (6) Research Attorney Options Do your due diligence when researching divorce attorneys. Not every attorney is a good fit for every case. Personality and comfort really matter when you are choosing a divorce attorney. This person will be guiding you through the unknown and very personal time in your life. Look at websites, online reviews, and talk to people who have used the attorneys whom you may know. This will all help you make an informed decision about who is the right attorney to hire. To help you with this process, check out our tips on how to Choose the Divorce Attorney that is Right for You. (7) Schedule a Phone Consultation with a Divorce Lawyer At Anderson & Boback, we realize the coronavirus has created a time of added questions and uncertainty. As experienced Chicago divorce attorneys, we remain available and eager to help not only our current clients but our future clients as well. We are happy to set up a confidential phone consultation to see if your divorce or family law case is something we can assist with and if our firm would be a good fit for you. Give us a call at the office at 312–606–7241 or contact us online to schedule a consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/coronavirus-planning-for-divorce/ When there are allegations of child abuse, many wonder if it’s possible for a child’s statements to be used in a hearing before a judge without the child having to testify. In other words, can your child’s hearsay statements be used in court? Does your child have to appear in court and repeat what was previously said, or can the child’s words be used in the hearing even though she isn’t there?
Hearsay and Use of a Child’s Statements in Court In many orders of protection cases, parents try to use their child’s statements against the other parent. So, when is it allowed? There are a couple of statutes that the Illinois Courts look to regarding hearsay statements, and you should be aware of each and how they are used. Section 606.5 of the Dissolution Act (750 ILCS 5/606.5 (West 2018)) specifically pertains to hearings and addresses hearsay statements made by a child in subsection ©. “Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act [(325 ILCS 5/1 et seq. (West 2018))], or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987 [(705 ILCS 405/1–1 et seq. (West 2018))], shall be admissible in evidence in a hearing concerning allocation of parental responsibilities in accordance with Section 11.1 of the Abused and Neglected Child Reporting Act [(325 ILCS 5/11.1 (West 2018))]. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient to support a finding of abuse or neglect.” 750 ILCS 5/606.5(c) (West 2018). Arika M. v. Christopher M., 2019 IL App (4th) 190125 (Ill. App. 2019). Section 8–2601 (735 ILCS 5/8–2601 (West 2018)) is located in article VIII of the Procedure Code (735 ILCS 5/art. VIII (West 2018)), which addresses evidence. That section states the following: “(a) An out-of-court statement made by a child under the age of 13 describing any act of child abuse or any conduct involving an unlawful sexual act performed in the presence of, with, by, or on the declarant child, or testimony by such of an out-of-court statement made by such child that he or she complained of such acts to another, is admissible in any civil proceeding, if: (1) the court conducts a hearing outside the presence of the jury and finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement. (b) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given to the statement and that, in making its determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factors. © The proponent of the statement shall give the adverse party reasonable notice of an intention to offer the statement and the particulars of the statement.” 735 ILCS 5/8–2601 (West 2018). Arika M. v. Christopher M., 2019 IL App (4th) 190125 (Ill. App. 2019) Illinois Orders of Protection Laws and Admissibility of Hearsay The statutory provisions providing for orders of protection are contained in Article II of the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/art. II (West 2018)). Under that article, section 205(a) (750 ILCS 60/205(a) (West 2018)) provides the following: “Any proceeding to obtain, modify, reopen or appeal an order of protection, whether commenced alone or in conjunction with a civil or criminal proceeding, shall be governed by the rules of civil procedure of this State. The standard of proof in such a proceeding is proof by a preponderance of the evidence, whether the proceeding is heard in criminal or civil court. The Code of Civil Procedure [(735 ILCS 5/1–101 et seq. (West 2018))] and Supreme Court and local court rules applicable to civil proceedings, as now or hereafter amended, shall apply, except as otherwise provided by this law.” Article II also contains a hearsay exception, which applies to “an action for an order of protection on behalf of a high-risk adult with disabilities.” 750 ILCS 60/213.1 (West 2018). The procedure code only addresses the admissibility of out-of-court statements related to child and elder abuse. See 735 ILCS 5/8–2601, 8–2701 (West 2018). Arika M. v. Christopher M., 2019 IL App (4th) 190125 (Ill. App. 2019). Cases Where Child’s Hearsay Statements Admissible in Court In Flannery, the circuit court admitted statements made by a child, who was around three years old at the time of the hearing. See Flannery, 328 Ill. App. 3d at 604, 611 (noting the child’s three-year doctor’s appointment was in December 2000 and the hearing began on April 3, 2001). Because the child was so young, it was determined that the child was “unavailable.” The case of Arika M. v. Christopher M. addresses the problems with child hearsay in an order of protection case. 2019 IL App (4th) 190125 (Ill. App. 2019). In this case, the court allowed the children’s hearsay statements into evidence, but there was no corroboration. The Appellate court, in this case, overturned the judge’s ruling allowing an order of protection against the father. The Arika M. v. Christopher M. Case In that case, the mother filed for an order of protection on behalf of herself and her three daughters, and against her husband. The trial court granted the mother’s petition, even though the children were not there to testify. The father was allowed parenting time, but it had to occur within the grandparent’s supervision. In the mother’s petition, she argued that her daughter did not want to be around their father. The mother stated in her petition that her daughter had been at a band concert and was not acting normally when she returned home. After the concert, the mother asked her daughter what was going on, and her daughter started crying and refused to say anything. Later that night, the mother read her daughter’s diary and the next day, she took the diary to the Illinois State Police. Children Interviewed by Children’s Advocacy Center and DCFS Case Opened All three daughters were interviewed at the Children’s Advocacy Center. In the mother’s petition seeking an order of protection, she attached a letter from Illinois State Trooper, detailing what the girls disclosed during the interviews. The letter stated that the girls were being touched by their father in “their private areas and took baths with them.” They also stated that their father walked in the bathroom and opened the curtain while they showered, even after they had requested him to leave. The girls reported feeling uncomfortable and unsafe while in his custody. Thereafter, the Department of Children and Family Services (DCFS) opened a case. Again, the letter was produced to a DCFS child protection investigator and also to the children’s school so that the father would not take the children. Emergency Order of Protection Against Father Issued On December 19, 2018, the circuit court issued an emergency order of protection against the father and reserved visitation and prohibited him from having any contact with the girls. The emergency order of protection remained in effect until the completion of the hearing on the plenary order of protection. Mother’s Request for a Plenary Order of Protection On January 28, 2019, the circuit court commenced the hearing on the mother’s request for a plenary order of protection (2 years). The mother testified on her own behalf, and also presented the testimony of Kate Wheeler, the girls’ counselor. During the direct examination of Wheeler, the father’s attorney raised a hearsay objection to a question asking Wheeler to disclose what the daughter had told her regarding abuse during a counseling session. The father’s attorney said that the admissibility of the minor’s out-of-court statements was governed by section 8–2601 of the Code of Civil Procedure (735 ILCS 5/8–2601 (West 2018)) and the mother had not established the requirements for admissibility. Specifically, the child was not present to testify, and the mother had not made a showing of the child’s unavailability. The mother’s attorney argued that section 606.5(c) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/606.5(c) (West 2018) (formerly section 606(e) of the Dissolution Act)) applied. Further argument stated that even if section 606.5(c) applied, the statements were not admissible unless corroborated. In response, the petitioner’s counsel suggested the circuit court should reserve ruling until additional evidence corroborating the out-of-court statements could be presented. The court reserved ruling on the objection to “wait and see what corroboration there is and what indicia of reliability there is.” Both Wheeler and petitioner then gave testimony that included out-of-court statements made by the three girls. Circuit Court Admitted Girls’ Out-of-Court Statements After the close of the mother’s case, the court ruled on the issue of the admissibility of the girls’ out-of-court statements. The father’s attorney argued that the mother did not present any corroborating evidence and noted that she failed to present any medical evidence of abuse. The mother argued that the girls’ demeanors and actions were corroborative evidence. The court admitted the statements, agreeing with the petitioner’s counsel that the girls’ actions and demeanors corroborated their out-of-court statements. In admitting the statements, the court never specified the statute it relied upon. Circuit Court Issued Plenary Order of Protection The circuit court found “it’s not clear at all when the incidents that have been described occurred; however, the court is satisfied that the incidents did occur.” The court also noted it rejected the suggestion the petitioner made up the allegations and stated a plenary order of protection would issue. Corroboration or Availability to Cross-Exam the Child In this case, the out-of-court statements admitted were made by minor children, who were old enough to testify in court. The children were able to testify, but the mother didn’t call them in her case. Which is understandable, since she likely didn’t want to expose her children to the proceeding. But to take action against the father and not allow him parenting time (unless supervised) is not fair to the father either. In domestic relations cases, it is not uncommon for one side to plead for an order of protection to seek an upper hand in the custody litigation. It clearly would be hurtful for the girls to take the stand and testify as to what occurred, but without that ability to cross-exam, the hearing is not fair. After considering the statutory scheme for both hearsay provisions as well as the Domestic Violence Act, it was found that section 8–2601 of the Procedure Code was the applicable statute the court should have used. Section 205(a) of the Domestic Violence Act (750 ILCS 60/205(a) (West 2018)) requires the application of the Procedure Code. At issue in an order of protection proceeding is whether the “petitioner has been abused by respondent, who is a family or household member.” 750 ILCS 60/203(a) (West 2018). The trial court should have said which statute it was relying upon in allowing the hearsay. It was clear that the court did not follow the provisions of section 8–2601 because it did not make a finding of reliability or a finding the minor children were unavailable as witnesses. Corroboration of a Child’s Hearsay Statement Both section 606(e) of the [Dissolution] Act and section 8–2601 of the [Procedure] Code require corroboration of the child’s hearsay statements where the minor is unavailable to testify. What exactly would be corroboration? And when is a child unavailable to testify? Corroboration of a child’s statement could be cuts and bruises or hospital records showing an injury to the child. In other words, if a child told you that her mother hit her in the mouth and the child has a swollen mouth, the statement has corroboration. The hearsay statement could come into evidence. Consult a Chicago Family Law Attorney About Admissibility of Your Child’s Statements in a Court Proceeding Whether your child’s statement can come into evidence in court requires an examination of what type of case you have and how the statement was made. You will need the expertise of a professional to determine if your child will be allowed to testify, or if you can get in the child’s statements without the child being present in court. A child’s statements regarding any harm or abuse at the hands of a parent are very serious and are important in any family law case. Contact Anderson & Boback to speak with our experienced family law attorneys to determine how your child’s statements and testimony will be received by the court. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/childs-statements-in-court-without-testifying/ The buzz word of a “collaborative divorce” is extremely trendy at the moment. We get a lot of the phone calls at our divorce law firm asking about a collaborative type of divorce and it seems this phrase is used interchangeably with “settling a divorce out of court”. These methods, however, are not one and the same. Collaborative divorce is one possible method to employ in order to resolve a matter out of court, but it is not the only way to settle a case out of court. Divorce and family law cases have been settled out of court for years, long before it was cool to have a “collaborative” divorce.
Settling a Divorce Out of Court There are various methods to settle a divorce out of court. In fact, most people are surprised to learn that the majority of divorce cases settle out of court. No one wants to talk about those cases, though, because they aren’t interesting. Everyone always wants to talk about the contested divorce cases with the crazy facts, because those are more dramatic, and by default, folks don’t usually talk about the amicable divorce where everyone agreed, signed and quickly finalized the matter. The method that you utilize with your attorney to settle your family law or divorce case out of court is going to be highly dependent upon your style, your personality, your partner’s personality and the facts of your case. When One Spouse is Always “Calls the Shots” For example, take a scenario where the parties do not communicate well. One party is intense and imposing and calls all of the shots, while the other party is meek. The dynamic of the relationship between these spouses is that there is a disparity when they communicate. As always, the meek partner gives way to the dominant and “shot calling” partner regularly in their everyday life. This type of power struggle is going to have to be treated carefully when trying to settle their divorce out of court. The imposing partner is already empowered and is used to the meek partner giving way to whatever they want to do. For this reason, this sort of scenario is not a situation where these two folks should be reviewing a Marital Settlement Agreement at the dinner table and then later telling the attorneys what to change. Sometimes, that approach works, but it would not work here. This scenario is one where the parties may do better having a four-way settlement conference where the parties sit down with their lawyers and go through the pending issues and try to resolve it; or, where the attorneys meet or conference without the clients present to try and resolve what they can, or, everyone meets, but the parties remain in separate rooms but the attorneys shuttle back and forth. In some scenarios, the attorney and client pairs could exchange proposals through counsel and pass back and forth changes until the case is resolved, or until there is an impasse. Cooperative Couples that Communicate Well Then, take the couple where the parties communicate well but have grown apart and agree a divorce is imminent. In this scenario, one party might retain an attorney and work with that attorney to come up with a proposed Marital Settlement Agreement and/or Allocation Judgment. That party may then present the settlement documents to their spouse. That spouse may review it with a lawyer, and then the two parties may sit down at the dinner table and go through the agreements and figure out what needs to be modified. The party who retained an attorney to draft the documents can then go back to their attorney to make the agreed-upon changes. Once the changes are made everyone signs, and the case is resolved that way. But, it takes a certain style of relationship in order for this method to be employed successfully. Both of the above examples involve settling the divorce case out of court. However, neither of them is labeled as “collaborative”. To settle out of court, you don’t have to find an attorney who is trained in “collaborative divorce”. However, that option does work best for some couples, and our firm does offer collaborative divorce. However, it is not the only way to settle a divorce out of court. What is a Collaborative Divorce? A collaborative divorce is a divorce where the attorneys being utilized are trained to conduct “collaborative divorces”. It usually involves full disclosure by both parties of all financial obligations, assets, and income, and the parties work together with the attorneys to come up with a settlement proposal, which the attorney then drafts and the parties execute. The parties are committed to trying to find solutions to their issues that mutually benefit them, rather than being involved in contentious litigation. That’s really all there is to it! The mystery is finally revealed. So, do you have to have a “collaborative divorce” to settle your case out of court? No. You do not have to a collaborative divorce to settle your divorce out of court. It is just one method you can use to settle your divorce without going to court. However, it is not the only method that has to be used to do so. It just so happens that the buzz word of “collaborative divorce” is extremely popular right now. Seek Advice from the Chicago Divorce Lawyers at Anderson & Boback Anderson & Boback has attorneys who are trained specifically in collaborative divorce, and we also have experienced litigators and negotiators who are very well versed in settling your case out of court. If you are facing divorce or have questions about the process of divorce in Illinois, we can help. Contact Anderson & Boback to schedule a confidential consultation and learn more about divorce and if the collaborative divorce process is right for your situation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/collaborative-divorce-vs-settling-a-divorce-out-of-court/ When you are in the process of a divorce, your spouse’s attorney may send a notice to your attorney that they intend on taking your deposition. A deposition notice will tell you when and where you are to appear and what, if anything, you are to bring with you. Your attorney will likely work with you to make sure you are prepared for your divorce deposition, as preparation if very important.
People present at your deposition will be your attorney and your spouse’s attorney. Your spouse may be there as well. If there are any other attorneys involved in your divorce case, such as a Child Representative or a Guardian Ad Litem, they will also likely be present if your deposition will include questions about the children. There will also be a court reporter who will take down every word that is said by anyone in the room during the deposition period. A typical divorce depositions can last up to 3 hours. A Judge does not attend the deposition and will not even review the deposition transcript unless called upon to do so by one of the attorneys. The procedure itself is straightforward. After everyone is seated and ready, the court reporter will ask you to raise your right hand and take the oath. The attorneys in the room will then take turns asking you questions, but most, if not all, questions to you will be from your spouse’s attorney. The court reporter will record everything said by all in the room. This record will later be made into a typed, word-for-word transcript of the questions asked and the answers given during the deposition. Depositions can seem very informal, but you cannot let the informality mislead you. Depositions are vitally important, and what you say will be used at trial. Depositions Help Reveal Useful Testimony and Evidence Fundamentally, attorneys take depositions to discover what a witness will say at trial and to preserve that testimony for trial. You are being deposed so that the opposing attorney can (1) find out what they can about you to be used at trial; (2) find evidence favorable to their case and may attempt to maneuver you into making statements against your interest; (3) commit you to statements under oath; and (4) gage your likability and how they think a judge will perceive your credibility. Testimony Under Oath As a deposition witness, you have a duty to tell the truth at all times. You and your attorney have likely already talked about areas of interest to opposing counsel and it is important that you are prepared to answer questions about those specific areas. Most lawyers are skilled at taking depositions and will know how to make a witness uncomfortable. If you find yourself reluctant to give a completely candid answer because it would be damaging, know that the damage is usually smaller than that caused by a less-than-candid answer. Having said that, you must be prepared for an opposing lawyer who will emphasize the strong points of their client’s case, ignore or try to explain away the weak points, and ridicule your story, and contrive ways to suggest that you are not telling the truth or are in error. Although you must be accurate and candid when testifying in a deposition, you need to be on guard. 10 Helpful Tips When Participating in a Divorce Deposition Following are a few tips that may help you when you participate in a deposition: Tip 1: Pause and think before answering. Listen to the question. Concentrate on every word and wait until you hear the last word of the question before you answer. In ordinary conversation, we cut one another off frequently. In a divorce deposition, however, pause to think before you answer. That way, you will not inadvertently give away information that the opposing attorney never thought of asking for. Additionally, this allows you to concentrate on the substance of your testimony and permits you, rather than the opposing attorney, to dictate the tempo of the deposition. Tip 2: Never volunteer information. Don’t be a “helpful” witness. For example, if a friend was to ask you whether you know what time it is, you may say, “ten o’clock” but in a deposition, your answer to that question should simply be “yes” or “no”. If your answer is “yes”, let the attorney follow up with a question, such as “what time is it?” For the most part, keep your answers short and to the point – answer only the question that is asked. Tip 3: Make sure you understand the question. Never answer a question unless you fully understand it. It’s up to the examiner to frame intelligible, unambiguous questions. If the opposing attorney can’t do it, do not help her. For example, you may be asked if something happened after “that.” If you are not sure what “that” refers to, say that you don’t understand the question. Don’t say, “if you mean this, then my answer would be such and such; if you mean that, then my answer would be so and so.” You may end up giving your spouse’s attorney an idea that hadn’t occurred to her. Simply say that you do not understand the question. If something interferes with your ability to hear a question, insist that the full question be repeated to you so you have a full understanding of what is being asked. You have an absolute right to ask for clarification of a question at any time. This does not mean that you should be over-technical or picky about every question. But if a question is ambiguous or unintelligible, insist that it be repeated or restated in terms that you can clearly understand. Tip 4: If you don’t remember, say you don’t remember. Sometimes you won’t remember important facts. If you don’t remember the facts that would answer a particular question, say that. The deposition is not a test. If you are pretty sure of the answer but not 100 percent sure, say that. Tip 5: Don’t guess when responding to a question. If you don’t know an answer to a question, say so. “I do not know” is a totally proper deposition answer. Witnesses often feel that they should know the answer to a question, then conceal their lack of knowledge by guessing. The attorneys know that the memory of any witness will have limits. Tip 6: Always read the fine print. Documents often form the central evidence of a case, and they can be a proper subject for questions in a deposition. You may be asked if you are familiar with a certain document; if you are, you may be asked detailed questions about its contents. The lawyer may also read a portion of a document to you and then ask you questions about it. If this occurs, never testify about the content of a document that you are not completely familiar with unless the document is before you and you’ve been given a full opportunity to read it. You can refer to the document if necessary. If the attorney needs the document to phrase a question, insist that the document be returned to you before you answer. If the attorney suggests that the document states a certain fact, always check to see whether the document actually does before you answer. Tip 7: Ignore the silent treatment. Sometimes attorneys engage in a subtle ploy of suggesting, by silence, that you should give a different or more complete answer and you may feel uncomfortable or assume that your answer is incomplete and feel compelled to explain. The attorney may encourage you with silence, tilted head or raised eyebrows or may stare at you with a look of disbelief. Ignore this. When you have answered the questions, stop and wait for the next one. Sometimes, the opposing attorney is simply thinking about how to work the next question. You may be tempted to fill the silence with words but don’t. Tip 8: Stick to your answer. You may hear the same question more than once. The opposing attorney may ask you the same question ten different ways and then ask it once more prefixed by, “I cannot remember if I have asked you this, but… ”. This is used for one of two reasons: they’re trying to get a different answer by changing the form of the question, or they’re trying to emphasize something that they think strengthens their case. If your original answer was accurate, stick to it. The fact that the opposing attorney keeps coming back to the question does not mean that you are not answering properly. Tip 9: Listen for objections. Your attorney may, although it is very unlikely, object to certain questions and if that happens you must not be distracted by that. If your attorney does object, stop and wait for that to be resolved. The court reporter will note the objection and it may have to be ruled on later by the Judge. Even with an objection, you will usually be expected to answer. Rarely, but not likely, your attorney may instruct you not to answer the question. In that instance, do not answer. Tip 10: Reviewing the deposition transcript. After the conclusion of a deposition, you have a right to read the transcript of your deposition testimony and provide your signature. Usually, it is recommended to waive this process and trust that the court reporter took all the information down accurately. Before you testify in a divorce deposition, be sure to consult with an experienced divorce lawyer to help navigate through the process and protect your interests. Contact Anderson and Boback today for a confidential consultation and get answers to your questions including preparing for a divorce deposition. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/tips-prepare-divorce-deposition/ This area of law is difficult since there are judges that don’t believe that parental alienation exists. Any lawyer practicing family law knows that alienation exists, however. The question then becomes, “how do you demonstrate that the other parent is alienating your children?” if the court doesn’t recognize alienation as a problem?
Understanding Parental Alienation It is helpful to first understand what alienation is. Parental Alienation is the process, and the result, of psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent and/or other family members. The parent is typically alone with the child when this happens, however, and it is your burden to prove the other parent is doing that. How do you do that when you aren’t there to hear what is being said? Typically you become aware of it because of how your child is acting toward you. Are There Signs of Alienation? Here are some examples of a child’s behavior:
How to Address Alienation What exactly can be done if there are signs of alienation? Under Illinois law, 750 ILCS 5/603.10, you can ask the court to restrict a parent’s right to the child. Sec. 603.10 states: (a) After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child. Such orders may include, but are not limited to, orders for one or more of the following: (1) a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision- making responsibilities and parenting time; (2) supervision, including ordering the Department of Children and Family Services to exercise continuing supervision under Section 5 of the Children and Family Services Act; (3) requiring the exchange of the child between the parents through an intermediary or in a protected setting; (4) restraining a parent’s communication with or proximity to the other parent or the child; (5) requiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time; (6) restricting the presence of specific persons while a parent is exercising parenting time with the child; (7) requiring a parent to post a bond to secure the return of the child following the parent’s exercise of parenting time or to secure other performance required by the court; (8) requiring a parent to complete a treatment program for perpetrators of abuse, for drug or alcohol abuse, or for other behavior that is the basis for restricting parental responsibilities under this Section; and (9) any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare. 750 ILCS 5/603.10 Restriction of parental responsibilities. (Illinois Compiled Statutes (2019 Edition)) The evidence you’d need to prove your case can be problematic since a lot of the information you’ll get might be provided by your child. The case of Bates illustrates a case where a father fought against the alienation. Mother Loses Custody After Alienating Child in the Bates Case In Bates, the father (Edward) was able to demonstrate that his ex-wife was alienating their child against him. In re Marriage of Bates, 212 Ill.2d 489 (2004). Ultimately, it cost the mother, Norma, custody of her daughter. The parties divorced in 2000 and agreed to joint custody, and in 2001, Norma filed a petition to modify their agreement, stating that Edward had breached their agreement. Their daughter had extreme anxiety and distress whenever Edward had parenting time. Norma accused Edward of being an alcoholic and of being abusive. Edward had complaints about Norma as well. According to Edward, Norma did not allow him to talk to their child, changed the child’s school without notifying him (and changed her name at the new school) and repeatedly belittled him in front of the child. Edward’s complaints held merit, and a therapist assigned to work with the parties opined that Norma was alienating their daughter from Edward. Family therapy was ordered and there was a strong admonishment to Norma to cease her abuse allegations toward Edward. At the trial, court-appointed evaluators, experts and treating physicians testified. The court’s evaluator testified about the child’s comments and that her complaints did not seem valid. Although the girl would repeat the accusations against her father, when pressed for further details, she couldn’t come up with anything more than the original accusation. The expert opined that the girl should be placed with her father and that if the custody was not modified, the child was headed for a life with extreme anxiety and panic. The court concluded that Edward had met his burden in that his daughter’s present environment was seriously endangering his daughter’s physical, mental, moral or emotional health and that it was in their daughter’s best interest to modify custody from her mother and to her father instead. The court made a point of noting that Norma could not facilitate and encourage a relationship between her daughter and Edward. Proving Parental Alienation at Trial At trial, you’ll find experts on both sides of the alienation diagnosis. Some believe it doesn’t exist or that it is dangerous to assume that alienation occurs in some instances. In some instances, it is just normal kid behavior and not alienation. For instance, a child in his/her teens can be confrontational and unreasonable, and that can be attributed to the teenager being a teen. One parent didn’t alienate the child resulting in this behavior, it is just a common behavior among teens. In my opinion, though, alienation is not hard to spot. If a parent is involved, attends parenting time and is still being told by the children that it isn’t enough and that the parent doesn’t do anything right, immediate action should be taken to put the relationship on track. Family therapy is your first likely step but if your relationship with your child doesn’t improve, you need to make the court aware of what is happening so the appropriate action can be taken. Your burden to prove alienation is high, so keep good notes. All the missed visits should be noted, along with anything your child says to you about your inadequacies. If it were my child, I’d reach out to the other parent to address it and if you suspect that the negativity is coming from the other parent and is not usual teenage behavior, then you’ll need some court intervention before the relationship is impaired forever. Proving parental alienation in a parent-child relationship are serious matters with lasting consequences. Please contact our family law attorneys today to schedule a confidential consultation if you have concerns about your ex is alienation your children and how to prove. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/other-parent-alienating-your-child/ |
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