When parents are no longer together, living far away from a child’s other parent can make parenting time schedules extremely complicated. Between arranging for travel back and forth as well as figuring out logistics, it can be complex to try and come up with an adequate schedule for the children and their other parent. There are many factors that contribute to the design of long-distance parenting plans, in particular, how far away the parents live from each other. If it is a few hours by car, that is a different situation than someone who is a plane ride away, halfway across the country, and the schedules are likely to be different depending on how long the transportation will take and the cost. Another factor depends on how involved the parent living far away from the children is in the children’s lives. This can be particularly important when the cause of the children living so far away from one parent is due to the other parent seeking to relocate.
Long-Distance Parenting Schedules in a Relocation Case When one parent seeks to relocate their child or children away from the other parent, the Court will consider a variety of factors. One of the most important factors is to try and award the same or substantially the same amount of parenting time to the parent who will be living further away from the children, as they had when the children lived nearby. This is going to depend on how close the relationship is between the child(ren) and the non-relocating parent and how much of the parenting time schedule was exercised. It is not uncommon when you have two very involved parents, and someone seeks to relocate, to see a schedule where the parent who will end up living far away from the children will have the majority of the summer parenting time to make up for the lack of parenting time during the school year. This parent may also have more of breaks from school (winter break, spring break, fall break). This parent may have the option of having parenting time as well, for weekends, if they want to visit the children in their new city. Sometimes a parent may have the “option” of one weekend per month if they travel to where the children are, they just have to give substantial notice (30-45 days prior, etc.) Parenting Time Schedules In Different States Without a Relocation Cases where the parents have lived in separate states, or further away from each other, for some time, may look a bit different than a schedule where one parent seeks to relocate. Usually, if the parties are living quite far away from one another, the parent who lives away from the children doesn’t have as much parenting time as a parent who is facing their children relocating. The status quo for the twenty-four (24) months prior to filing is usually a good indication of what the current “status quo” was for those two years before the proceedings began. In these scenarios, it is not uncommon to give the parent who lives further away from the child a block of parenting time during the summer and some holiday weekends, half of their school breaks, etc. However, there isn’t regular and consistent parenting time that needs to be “made up” by drafting this schedule, so there isn’t typically a requirement to give that parent a very substantial amount of summer. If the parent never exercised it before, it is harder to ask for it now, unless other factors contribute to why it would be in the minor children’s best interests to have this substantial amount of time. But, no one is trying to “make up” for lost time when the parents lived apart to begin with, so the schedule might be less stringent than a child relocation schedule. Electronic Parenting Time The Courts in Illinois have made it clear that electronic parenting time (i.e. video calls, such as FaceTime or Zoom, etc.) do not replace regular, in-person parenting time and cannot be a substitute for the same. But, that doesn’t mean that it shouldn’t be included in a “long-distance” parenting plan. It is important for parents to have telephone and video call access to their children during periods of non-parenting time to stay in touch and maintain their close relationship. Putting a schedule for phone calls into a parenting time is something that should always be addressed when there will be a “long distance” schedule, even if this time does not replace or replicate face-to-face parenting time. Depending on the age of the children and the resources of the parties, the parties may even consider giving the child(ren) their own device to contact the other parent, such as an old cell phone with WIFI capability for FaceTime or video calls while at home on a WIFI network, or even a cell phone. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/tips-for-long-distance-parenting-plans/
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Although we tend to put judges on a pedestal, we need to remember that judges are people too. Outside of the vacuum of the Domestic Relations Division, family law judges attend social events, enjoy the outdoors, and participate in occasional club or organization meetings. That is why there are rules in place to ensure that these outside forces and interests do not penetrate your case’s bubble in the interest of fairness and impartiality. Here, we discuss the different ways that you can substitute your judge and the different scenario’s where each rule applies.
When Can I Substitute the Judge in My Divorce When I Do Not Have a Specific Reason for Doing So? Each party in the divorce proceeding is entitled to one substitution of judge without cause as a matter of right so long as they meet the basic requirements. Without cause present, the party’s motion to the court cannot be filed to delay or avoid trial and/or if the judge has already made a substantial ruling in your case. A substantial ruling is a ruling that relates to the merits of the case and could include, but is not limited to, rulings on motions to dismiss, rulings on pretrial issues and/or motions for summary judgment. In Illinois, the basic threshold requirements remove all discretion from the procedure and require the judge to grant the motion if it is timely. 735 ILCS 5/2-1001(a)(2) When Can I Substitute the Judge for My Divorce When I Think my Judge is Biased Against Me? If a party in a divorce proceeding believes that their presiding judge is biased against them then they may be able to substitute their Judge for cause. As described in the Illinois divorce case In re Marriage of O’Brien, Judges are presumed to be impartial, so it is the burden of the charging party to prove that they have cause to substitute the judge. Although the statute does not define “cause,” Illinois courts have held that in such circumstances, actual prejudice has been required to force removal of a judge from a case, that is, either prejudicial trial conduct or personal bias. When determining actual prejudice, the party seeking substitution must show that the specific, actual prejudice stemmed from an extra-judicial source which results in an opinion on the merits on some basis other than what the judge learned from this particular case. Substituting Your Judge 'For Cause' Substituting a judge for cause has a very high burden and often requires substantial supporting evidence. According to the Supreme Court of the United States, as cited in Liteky vs. United States: “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source, and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” [510 U.S. 540, 541 (1994)] To give parties an understanding of what this means, we can turn to the facts of the Illinois case In re C.M.A. In that case, which was a consolidation of appeals arising out of two separate adoption cases, the Judge was removed for cause under 2-1001(a)(3) because she based her decision on one adoption off of evidence of the other adoption, she didn’t question the witnesses about the minor child or his case and welfare but questioned the petitioner regarding her “coming out” process as a lesbian, her early sexual experiences, and whether the petitioners were currently in a lesbian sexual relationship. That same judge then issued an order adding a new party to the case, who was on public record for the position that persons living homosexual lifestyles are not in the best interest of the children. Under these circumstances, the court determined that the judge’s conduct met the high degree of antagonism as to make fair judgment impossible and the judge was removed for cause under 735 ILCS 2-1001(a)(3). What Other Circumstances Can Arise Requiring Substitution? Under the Illinois statute, there are two other situations where you can substitute a judge in your case. The first scenario is when the judge is
In these cases, the judge may be substituted with or without a party bringing the issue before the court. 735 ILCS 2-1001(a)(1) The second scenario relates only to a defendant in a contempt proceeding arising from that defendant’s attack of the judge’s character or behavior outside of court. If the proceeding is pending before the judge whose character or conduct was attacked, the party will fear that he or she will not receive a fair or impartial trial before that same judge. 735 ILCS 2-1001(a)(4) When are Judges Required to Remove Themselves? Judges may recuse themselves if there may be a potential personal bias or other personal involvement in the case without either party bringing an issue to the court’s attention. A judge is required to disqualify himself/herself if the judge’s impartiality might be reasonably questioned. The law lists certain circumstances where disqualification is mandated i.e. where a judge has an interest in the proceeding, when a judge is a party to the proceeding, when the judge has served as counsel for any party or when a judge may be a material witness. Illinois Supreme Court Rule 63(c) If you are going through a divorce or family law case and you want to know whether substituting your judge should is right for your case, be sure to seek experienced legal advice. Feel free to contact Anderson & Boback today to schedule a confidential consultation. Our team of experienced and top-rated family law and divorce attorneys will help you make the right choices. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/dont-like-your-judge-consider-a-change/ Smart Home technology is all the rage lately. Everyone seems to have a digital device, whether it be Siri on an iPhone, a Google Home, an Alexa, Ring security cameras, doorbell cameras, and more. While this smart home technology certainly can make our lives easier, the way these devices can impact court proceedings is widely unknown. In criminal proceedings, subpoenas have been issued to try and obtain the recordings from smart devices to large companies such as Google, or Amazon, but the issues largely are resolved before any of these large companies have to comply. In Illinois, family law and divorce cases use these devices a bit differently.
Obtaining Smart Home Recordings There are two ways to obtain recordings on Smart devices. The first way is through the use of a Subpoena. Subpoenas are largely unsuccessful unless the litigants have the funds to retain an attorney in the state where the company being subpoenaed is registered in order to pursue a separate cause of action to obtaining the recordings, records, and/or videos sought. The second way to obtain these recordings is to request them in the discovery from the person who has access to them. For Smart Home devices like home security cameras and doorbell cameras, the person who resides in the home or has access to the accounts may be able to produce the videos and/or recordings if they are requested within the time period where the recordings are saved. This is typically the most cost-effective way to obtain these recordings, but the time frame in which the recordings are stored can be quite short, so it is important to copy them or request them as soon as possible after the event in question. Recordings from Your Own Smart Devices A person can use their own recording from their own devices in Court so long as they are able to lay a foundation for the evidence. This means that they have to be able to prove that the video is authentic, was not altered or doctored in any way, and that it was not altered in the chain of custody. In family law cases, this is usually simple to do. Someone produces a video. Let’s say it is a neighbor who produced their doorbell footage of you and your spouse arguing on your front lawn. The neighbor can produce the video via subpoena, or can voluntarily produce it. The neighbor can be subpoenaed to testify that:
The testimony of the neighbor is usually enough for the video to come into evidence in a family court case and then the court will review the footage, which should corroborate the story told by the parties in the case and the neighbor. Recordings from Doorbell Cameras A person can also use their own home footage as well, from security cameras, a Ring doorbell, etc. This is true especially when the spouse has a reasonable expectation that they are being recorded (they know about the doorbell camera, for example, or they can see it because it is out in the open and should have known about it.) This is different than a covertly planted camera the spouse is unaware of. People have a reasonable expectation of privacy in their own homes and recording or surveilling a spouse without their knowledge or consent wouldn’t likely be admissible in proceedings. However, when a spouse knows the recording device is there and consents to it, that footage is typically fair game. People do really crazy things in front of doorbell cameras. It can capture exchanges of children for parenting time, exchanges of money for support, conversations between estranged spouses or exes, and more. People tend to forget they are there. However, the footage can be helpful in certain situations and could be admitted in a family law case. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-family-law/using-smart-home-evidence-in-family-law-cases/ When a doctors divorce, there are unique issues that arise that have to be dealt with such as how to deal with the value of the professional license, the ownership of a business entity operated by the professionally, the valuation of a business, and the student loans associated with obtaining the professional license. For a doctor going through a divorce, these could all be aspects of marital property that have to be carefully considered in the division of the marital estate.
5 Areas of Concern for a Doctor Getting a Divorce There are five key areas of concern for a doctor facing divorce. 1. Medical Practice Valuation Valuing a medical practice is complicated but very important in determining how to divide the marital property equitably. If the medical practice was starting during the marriage, then it is likely that the marital practice will be considered marital property. If the medical practice is marital property, then it has to be divided equitably. Keep in mind that Illinois law requires that the marital estate be divided “equitably” which does not necessarily mean “equally” it could mean equal, but the requirement is equitable and there are several factors that a court will look at to determine this equity in the division of marital property. Use a Business Valuation Expert It is important to retain a business evaluation expert with experience valuing medical practices. Once you retain such an expert you can work with that expert in providing the appropriate information and access to get a professional valuation that will hold up in court. Valuing a medical practice has many components and is not as simple as a review of tax returns, profit and loss statements, or balance sheets. Valuation of a doctor’s medical practice is often based on intangible things such as reputation, goodwill and longevity in the community. Both parties to the divorce have an interest in making sure that the medical practice does not suffer financially during a divorce due to cash flow but also maintains its reputation, patients, and goodwill. 2. Dividing Marital Debts The marital estate must also include the marital debt so it is important to include all marital debt in the calculation when dividing marital property. Debt associated with a medical practice will be calculated in the expert valuation. Keeping in mind that in Illinois student loan debt is largely considered a personal debt belonging to the person accruing the debt. You may have gone to medical school during the marriage and those loans were used to obtain a professional license that benefited the marriage, however, as a general rule student loan debt is not the responsibility of your spouse. 3. Spousal Support Issues If you attended medical school during the marriage and your spouse supported the family during this time, that is an important factor that the Judge would take into consideration when it comes to property division and support. On the other hand, if you had your professional license when you got married and your spouse gave up a career to stay home and care for the household and children while you opened your medical practice and advanced your career, the court’s will not hold this against your spouse but will use this as a relevant factor in determining property division and support. 4. Equitable Division of Marital Property There are many ways to structure the equitable division of property which may or may not include maintenance or alimony once you have the valuation of the medical practice. It is often recommended that you work with a mediator or each other to work out a solution that fits your family as opposed to having a judge decide. The Judge may not necessarily have a handle on what is best for your family and it is certainly recommended to resolve these types of issues with the help of your attorney or mediator to save time, costs, as well as many other stressors involved in litigation. 5. Custody and Parenting Responsibilities The other issue for doctors going through a divorce is the schedules that are required to practice medicine. This is not a Monday – Friday job and when you have on-call time and other responsibilities it can be a challenge figuring out how to share time with the children and develop a parenting schedule. Again, this is something that is best worked out between divorcing spouses with the help of their lawyers or a mediator, as you know your children and family best and you also know what is best for your children. You can ask a stranger in a black robe to make these types of decisions for you but you are giving them an awful lot of power over your family and how your life will move forward. In Illinois, the term “custody” – when one parent is the custodial parent and the other visits with the children – is no longer used. Instead, the terms “Parenting Time” and “Allocation of Decision Making” are used when children are involved. This makes things flexible enough for you to work out a solution for parenting time that fits within your work schedule that may change every week and the children’s schedule which is also likely to be fluid. There are many creative ways to come up with a long-term schedule that fits your unique family situation. There is no one boilerplate plan that works for everyone. Seek Advice from a Divorce Attorney Experienced Representing Doctors If you are a doctor about to go through a divorce, please contact us to talk about some creative solutions to move your life forward with grace and integrity for your entire family. With decades of experience representing physicians and other professionals throughout the Chicago area, Anderson & Boback is ready to put our expertise to work for you. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/issues-when-doctors-divorce/ The latest child relocation case – comes out of Lake County, Illinois, and it denied Nuriana Levites the right to relocate her daughter to California.
In re Marriage of Dmitry Levites v. Nuriana Levites It seemed clear from the evidence before the court that Dmitry was abusive to Nuriana. Other evidence suggested that Dmitry had even conspired with another man, Marozau, to injure his wife. On May 23, 2017, the trial court entered a mutual no-contact order, which precluded both parties from engaging in harassing conduct, committing physical abuse, interfering with the other’s personal liberty, or stalking each other. The order also set a parenting schedule, with their child’s primary residence with Nuriana and Dmitry having parenting time on two weekday evenings and one overnight on the weekend. The parents were to do the exchanges of their child at a neighbor’s house. On Memorial Day, May 29, 2017, at about 5:20 a.m., a man named Marozau entered the marital residence and beat Nuriana, ultimately dragging her out of the house and down the driveway. Neighbors observed the abuse and the police were called. The neighbor went outside and him. By the time Marozau had dragged Nuriana to the end of the driveway, police arrived and restrained and arrested Marozau. Nuriana testified that she had been severely beaten, she had bruises all over her body, and hair had been ripped from her head. Nuriana filed an emergency petition seeking to suspend her husband’s visitation and to require supervised visitation once his parenting time resumed. Evidence was presented at trial that Dmitry knew Marozau and that after Marozau was arrested, it was Dmitry that posted his bond. Both parties had complaints about the other. Dimitry complained about Nuriana’s behavior regarding their child. Dimitry informed the court that Nuriana frequently canceled his parenting time, claiming that the child was ill. Makeup time for the missed visits was generally ordered, and Dimitry testified that he did not believe that he had missed any parenting time. At trial, the testimony was unrefuted that Dimitry consistently exercised his visitation. Mother Seeks Relocation to California Nuriana eventually sought relocation to California, citing her concern for her and her child’s safety, although she did admit at trial that she did not believe her husband would hurt their child. Nuriana testified that she would live with her sister in Beverly Hills and that she had leads on three jobs, but she had no written offers or even any details to present. According to Nuriana, her primary employment lead was working for a law firm that catered to the Russian expatriate community in Los Angeles. However, throughout the proceedings, Nuriana requested an interpreter, maintaining that her English language skills were not up to the task of testifying and understanding the proceedings. Nuriana testified that the schools in the area in California had received high marks, according to websites she had visited. The guardian for the child disputed that Nuriana had investigated the schools. The guardian stated that he had researched them and found them to be of adequate quality, and he testified and reported that Nuriana had not looked into them. In his report, Lewinthal noted that he had researched the elementary school that Nuriana planned for her child to attend and that it was a good school with above-average scores. Psychologist Report Recommendation on Allocation of Parental Responsibilities On June 13, 2019, Dr. Frances Pacheco, a psychologist, filed her report advising the trial court on the allocation of parental responsibilities pursuant to the trial court’s order. The court’s June 27, 2018, order empowered Pacheco to interview the parties and the child, and to provide the court with input regarding the child’s best interests and regarding a parenting schedule. Pacheco recommended that Nuriana be allowed to relocate to California and that Dmitry’s parenting time be supervised while in California. Pacheco remarked in her report that when the child was with Dimtry, his then-wife, Anat, was the child’s primary caretaker and that Dimtry had commented to Pacheco that, if Nuriana were allocated anything other than supervised visitation with their child, then he would withdraw his contact with the child out of fear that Nuriana would continue to make allegations of abuse. Pacheco also remarked that she doubted that either parent “had the willingness and ability to encourage and facilitate a positive relationship between the child and the other parent.” Guardian Ad Litem Did Not Object to Request to Relocate The guardian for the child testified that he had no objection to Nuriana’s request to relocate, because Dmitry had said during a personal interview that, if Nuriana received unsupervised parenting time, he might withdraw his contact with the child. Dmitry denied making the statement. On direct examination, Dmitry clarified the context of the remark, made to both Lewinthal and Pacheco. He explained that he feared that Nuriana would continue to make unfounded allegations of physical and sexual abuse and that his child would be psychologically torn up by the investigations. Dmitry explained that, to spare him and the child the pain of the allegations and investigations, he might feel compelled to withdraw altogether from his child’s life if Nuriana received unsupervised parenting time. Trial Court Denied Child Relocation Without Prejudice After the trial, the court denied Nuriana’s amended petition for relocation without prejudice, and Nuriana appealed. In the court’s ruling, the court first defined the evidence it had considered: the evidence from the hearing, Pacheco’s report, and Lewinthal’s reports and testimony. Next the court defined the relevant legal rules it applied in its analysis: the statutory factors and the case law discussing the application of the factors. It noted that it was particularly sensitive to the issue of a custodial parent who is seeking relocation and has been interposing roadblocks, “however slight,” in the relationship between the child and the noncustodial parent. The trial court discussed the facts it found to be “extremely disturbing.” The first issue was Marozau’s May 29, 2017, attack and attempted kidnapping of Nuriana. The court labeled as “important to the Court’s ruling and to this case” the fact that Dmitry provided the money to post Marozau’s bond. Regarding Dmitry’s in-court testimony and statements to Lewinthal that “he knew nothing about the attack, that he was fearful of [Marozau], and [that] he virtually had no or limited knowledge of [Marozau],” the court found them to be “absolutely incredible.” The court was also troubled that Dmitry posted bond for Marozau “so that [Marozau] could be on the street and Nuriana could be terrorized by the action that this individual was still at large.” While the court concluded that Dmitry had approved of Marozau’s attack on Nuriana, it expressly declined to find that Dmitry had directed the attack to proceed or he knew in advance that the attack would occur. The court also found fault with Nuriana. The court found that she had attempted to interfere with Dmitry’s relationship with his child, citing the allegations of sexual abuse against Dmitry. The Department of Children and Family Services had “investigated those complaints, police departments ha[d] investigated those complaints and found no basis for them whatsoever.” The court highlighted an August 12, 2019, medical report in which their child was diagnosed with vaginal inflammation, but it noted that there was no follow-up, there was no call to DCFS, and there was nothing to support Nuriana assertion that Dmitry had molested the child. Both Parents Found to Interfere with the Other’s Parent-Child Relationship The court also found Dmitry at fault for interfering with Nuriana’s relationship with their daughter. Nuriana testified that when their daughter came back from parenting time with her father, she would sing, “Mom is bad” and “mom is a bitch.” The court determined Dmitry’s denial to be incredible. The court chastised both parties for attempting to use the child and the court system to use the law enforcement authorities to garner an advantage in their case. In the case-law portion of the court’s remarks, the trial court stated that “[t]he only basis that [it] could find to support Nuriana’s request for relocation is her physical safety.” After distinguishing a case, the court stated: “I do not in any way mean to minimize what happened here, but it is the only instance, that’s one instance, it’s a very serious instance, and thank goodness the neighbors were alerted because I don’t know what [Marozau] would have done if he was successful in getting Nuriana to his car. I know that he had her out of the house, that she sustained injury, she was treated at the hospital, he just didn’t get her in the car before the police thankfully arrived. That one instance weighs heavy on this court, but I cannot say that that alone is a basis for granting this petition for relocation. Rather, I’m concerned by the conduct of Nuriana that once I grant relocation to the state of California, she will seek to have the California authorities investigate her claims of sexual abuse of the child which I have already found lack credibility.” The court then noted that it was to consider any and all relevant evidence in reaching its decision and that the factors from In re Marriage of Eckert, 119 Ill. 2d 316 (1988), were not exclusive. No single factor controlled and weight should be given to each of the factors. “One single factor that favors relocation is the violence. And if there were enough—if the petition and the evidence had shown that there were other good reasons to relocate to California, i.e., schools, i.e., economic opportunity, i.e., that Nuriana was moving because somebody she had entered into a relationship with was relocating, those are cases where in many of those cases relocation ha[d] still been denied.” The court discussed In re Marriage of Demaret, 2012 IL App (1st) 111916, and In re Parentage of P.D., 2017 IL App (2d) 170355, in which relocation was denied even though the mother would have garnered a huge salary increase if she had been allowed to relocate. “In this case, I don’t have that she even has a job. There was an allegation that she was going to be employed as a paralegal in a law firm. Throughout these proceedings now going on three years[,] [Nuriana] has at all contested hearings utilized a court interpreter, which suggests she has very limited use of the English language, so what job she was going to get—she never produced a job offer sheet, a letter from a potential employer, or anything that indicated how she was going to support herself and the child. She did testify that she had the assistance of her sister, but the sister never testified. There was testimony that there was a two-bedroom apartment that was available, which meant the child necessarily would be sharing *** a room in the apartment, a bedroom with her mother. The type of planning and specificity that I see in cases where relocation has been allowed was totally lacking in this case. I’m not sure how [Nuriana] was going to be able to support herself and the child. I had no particulars on the school. The child is now of school age. And I also have, if you will, the advantage of looking at two years of a normal parenting schedule. Initially, there were orders in this case that prohibited Dmitry from seeing the child. There was an order of protection sought that named the child as a protected party; that was later amended. But throughout a period of two years, there were no violations to the order of protection, Dmitry committed no act of violence towards Nuriana, and he is regularly seeing the child, he regularly has overnights with the child. Therefore, it was my conclusion that if I were to allow relocation, I would be essentially terminating Dmitry’s parental rights. The idea that Dmitry and Nuriana could have some sort of cooperative relationship in traveling from one coast to Chicago is pure folly. Both parties have been guilty of doing everything to undermine the other that they possibly could. So the Court could not find that Nuriana would cooperate with seeing that the parent-child relationship would continue. And again, I was able to at least look at over the last two years the child has been with her father on a regular basis, has seen her father, and I would be putting the child in a situation where I don’t know that she would ever see her father again.” Appellate Court Review of Trial Court Findings On review in the Appellate Court, the court looked at the trial court’s findings. The Appellate Court noted that the trial court did not hear from anyone in California that Nuriana said that she was going to live with, nor did Nuriana have a job lined up in California. Further, it doubted that her job prospects would be very good and especially doubted her claim that she had a lead on a paralegal job, because Nuriana consistently used a language interpreter in all important hearings, which suggested that her English language skills were marginal and might hamper her ability to find English-language-intensive positions, like that of a paralegal at a law firm. The trial court noted that Nuriana had not investigated the schools in California (and this was confirmed by the child’s guardian, Lewinthal). Nuriana and the child would have to share a bedroom in the proposed living arrangements, and Nuriana had demonstrated no means by which she could support herself. The court discussed that Dmitry had fully and consistently exercised his parental time throughout the case, and it noted that Nuriana had frequently attempted to limit and interfere with his parenting time. In that regard, the court again highlighted Nuriana’s baseless reports of abuse and her videotaping of visitation exchanges, and it juxtaposed this against Nuriana’s admission during her testimony that she did not believe that Dmitry posed a danger to their daughter or would harm the child. The trial court considered whether each party could foster a good relationship between the child and the other parent. The court concluded that, based on the manifest rancor between the parties, there was simply no way the parties could be expected to do this. Indeed, the court found that each party was responsible for undercutting the other, from the derogatory songs that the child would sing after spending time with dad (Mom is bad, Mom is a bitch) to Nuriana’s unfounded reports of Dmitry abusing their daughter. The Appellate Court found that there was ample evidence in the record supporting the trial court’s conclusion to deny the relocation. The trial court also considered the effect the proposed relocation would have on parenting time. It noted that Nuriana had no means of support lined up in California and that the parties’ economic resources, in general, were not abundant. Specifically, the court noted that Nuriana would lack the economic ability to participate in the cost of the travel that would be required and would lack the inclination to do so even if she had the resources. Again, there was evidence in the record to support the trial court’s conclusion. The court also considered whether Nuriana wanted to relocate to preserve a committed relationship, and it concluded that the proposed relocation was solely to physically distance herself from Dmitry. While the court termed this factor “compelling,” the court noted that it was due to the previous physical harm caused by a third party and that it did not change the court’s calculus overall, regarding the factors under consideration. Illinois Appellate Court Affirms Judgment to Deny Child Relocation The Appellate court did not believe that a manifest injustice would occur as a result of the trial court’s decision. The court emphasized the speculative nature of Nuriana’s request to relocate. There was no particularly detailed level of planning. She did not have a job offer in hand, although she attempted to explain that by noting the uncertainty of the timing of the move. Nevertheless, she did not present a job offer or objective evidence from any potential employers. Likewise, Nuriana did not research the educational opportunities for her child, leaving that to Lewinthal to do on her behalf. While both Lewinthal and Pacheco opined that relocation should be allowed, their opinions were based on statements Dmitry made that he explained to the court’s satisfaction as misunderstandings. Specifically, Dmitry explained that he felt that, if relocation occurred, he would have to withdraw his contact because of Nuriana’s history of making accusations of abuse. The court accepted this explanation, and it noted that, during the hearing, Nuriana expressly conceded that she did not believe that Dmitry would harm their child. Accordingly, the Appellate court affirmed the trial court’s judgment to deny the relocation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-relocation/illinois-child-relocation-marriage-of-levites/ When your divorce is set for trial this is where the judge will finalize your divorce case. It is set after several months of discovery and represents the final orders in your divorce. Given the permanent nature of this proceeding, many people are intimidated by the prospect of testifying and having one shot to persuade the judge to rule their way.
Most parties will try every avenue to resolve a case prior to setting a trial and having to go through the process of preparing for trial, if anything, due to the financial and emotional tolls a trial can take on the parties. Trials are expensive, and you are placing your future in the hands of a Judge who does not know you or your family and hoping for the best. Trials really should not be used unless absolutely necessary to resolve a case. However, in some scenarios, the case needs to be set for trial in order to move it along. If you have a party who will not settle, or who does not want to get divorced, setting trial dates is a way to put an “end date” on the case, because on that date either the case will finally be settled or the case will proceed to trial, and one way or another, the case will be over. Before Your Divorce Case is Set For Trial There are many steps that need to be taken in order for a case to be set for trial. Usually, when a case is set for trial, discovery has been issued (or there is a tight time frame/deadlines for issuance and closure of same). This means gathering documents, and typically it is many years of documents. You will need to gather, or otherwise continue to update, your tax documents, bank records, credit card records, retirement account statements, investment account statements, payroll documentation, financial affidavits, documents relative to what is in the best interests of your children, and more. These documents must be seasonally updated through the date of the trial. So, there is a gigantic obligation to produce or continuously update records. Depositions Depositions also must be taken if they are going to be required. A deposition is the sitting of a deponent (usually the other party, or other witnesses you may call at a trial) to see how they will answer questions at trial relative to the case at hand. Depositions usually last no more than three hours, unless the Court grants additional time. All attorneys and parties may be present, and a court reporter is present to take down the questions and answers during the deposition. A record or transcript will also be produced to be used at trial for purposes of impeachment (meaning, if a deponent testifies differently at a deposition than they do at trial regarding the same issue, the transcript can be used to call into question the deponent/witnesses’ credibility.) Trial Retainer Many firms may also request a trial retainer in order to cover the costs of preparing for trial in a tighter time frame than usual. Saving money to account for a large trial retainer is something that litigants should plan for and expect if their case is set for trial. Preparing When Your Divorce is Set for Trial Final Trial Conference or Pre-Trial Conference There is usually a final trial conference or pre-trial conference before the trial proceeds as a last attempt to try and resolve a case. The majority of divorce cases settle, but some may not settle until the eve of trial, or even the day of trial, depending on the issues and the circumstances involved. Settlement is almost always most cost-effective than a trial. It is rare for a litigant to get everything that they want. Judges try not to be biased and try to do what is fair which often means giving everyone a little bit of what they are requesting. Evaluating your position prior to trial could save you a lot of money. If you are going to trial believing you will get everything that you are asking for, that is probably not a realistic expectation. Discussing settlement up until the day of trial is something that should continue to happen in order to try and keep the costs of the case as manageable as possible. Testimony and Witnesses Finally, you should think about who you need to testify in your case. Talk to your attorney about what documents need to be admitted into evidence and what experts or lay witnesses are necessary to have evidence admitted. If you wait too long to think about this, it may be too late as some counties require a certain amount of notice prior to your trial date. The husband and wife will also testify in their case. It is important to be honest and to prepare for your testimony with your attorney so you know what to expect and not be surprised at trial. It is also important to know what evidence/testimony your soon-to-be-ex will introduce so that you are prepared to rebut that information. Legal Strategy Once your case is set for trial, talk to your divorce attorney about the legal strategy to help you succeed at trial. Early preparation and good communication will go a long way to ease the nerves on that final divorce day. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/what-to-expect-when-your-divorce-is-set-for-trial/ One of the hardest things as a divorced/separated parent is knowing or suspecting that your child is being abused while visiting the other parent. You may know something is going on with your child, but if you cannot prove it, what do you do?
You Need Some Kind of Evidence The rules do not allow you to introduce what your child says to you unless there is “corroborating evidence.” What exactly is that? If your child says that a person hit her in the eye and the child has a black eye, then the black eye can corroborate the statement. If there is no corroboration, then the statement does not come into evidence. When there is psychological trauma to your child, you will likely need the assistance of a therapist to get this information before the court. You still have the hearsay problem, but at least a medical professional is assessing your child. One problem parents face when they suspect abuse, is to start questioning the child. If you do this, you will most likely sabotage any hope you have of proving abuse. Why is it Wrong to Talk to My Child About the Neglect or Abuse? For one thing, you do not know how to do it properly. When you are questioning the child, you have to be careful of assuming facts that the child did not say, or contaminating their statements. For instance, if your child told you that she was hit in the face, and you follow up with “when did daddy hit you?” you just interjected a fact that the child did not say. The child never said her dad did it, and by automatically jumping to that conclusion, you have skewed the statement. There are trained professionals that know how to properly question children and you are best leaving that to a professional so you do not get a statement from your child that is inaccurate. What Can I Do if I Suspect Child Abuse? Do I have to Send My Child on Her Parenting Time? If there is a court order for visitation, you have to comply with the court order. If you withhold visitation and violate the parenting agreement, you could be subject to sanctions. You would need to address the allegations of abuse with the court and attempt to get a different order, otherwise, the court order must be obeyed. To protect children who are being abused, the Illinois Marriage and Dissolution of Marriage Act provides specific remedies to either remedy the situation until a more definitive determination can be made by the court. Section 603.10 states in relevant part as follows: (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:
Can I seek to have the parenting supervised? Of course. But first, you have to file the appropriate petition. A judge will most likely assess the facts as alleged in your petition to determine if the matter is an emergency and if parenting time should be modified temporarily until the matter can be further investigated. The judge will then likely appoint a Guardian ad Litem (GAL) or Child Representative who will represent your child and will meet with all of the parties involved. The GAL or Child Representative would be the eyes and ears of the court and report if the child has in fact been abused and any recommendations for modification of allocation of parenting time. If You Suspect Child Abuse, Talk to a Family Law Attorney If you suspect that your child is being abused by the other parent, talk to a family law attorney to determine what the first steps should be. Each case is different and a wrong first move could damage your case before it even starts. It is important to have sufficient evidence gathered to present to the judge in a matter that meets the court’s requirements. An Illinios family law attorney experienced with child abuse and neglect cases can help you gather the right evidence and effectively communicate the urgency of the situation to the judge. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/suspect-child-abuse-neglect-by-your-ex-during-parenting-time/ If you have been married for several years and spent your married life as a stay-at-home mom taking care of your family and realize you are facing a divorce, there is no reason to panic. Your efforts of caring for your home and family will not be ignored by the Court and is not discouraged by the laws in Illinois. Every case, of course, is fact-specific and the outcome of your case will be dependent on the facts in your specific marriage. As an example, a stay-at-home mom who has a Ph.D. and previous work history may likely have a different divorce outcome than a stay-at-home mom who has no advanced degree and no job experience. The length of your marriage is also important, as in the previous example a stay-at-home mom who has been home for the past two years is likely to turn out differently than a stay-at-home mom who has been home for ten years. 5 Tips for a Stay-at-Home Mom Facing Divorce If you find yourself facing divorce as a stay-at-home mom, it is important to understand your family’s financial picture and plan for your future after the divorce. It is important when going through a divorce to be able to articulate to your attorney and the court what your reasonable needs are, so it is important to begin an investigation as to what your needs have been in the past and how things may look in your future. If you have overseen paying the bills and managing your marital finances, then you will have a good idea of where you stand and how much money it takes to run your household. However, if you are not involved in the financial operations of your household then you will have to start doing some investigative work. Divorce Tip #1: Start gathering documents. The more information you can gather and share with your divorce attorney the better for you to work with your attorney in making decisions. The important documents to get together are as follows:
Divorce Tip #2: Prepare a budget. Know what you have been spending to run your household so that you can understand what you will need to continue living after you are divorced. You need to know what you will need to know what to ask for as far as maintenance and child support from your spouse. If you are going to be moving from the marital home, you should determine where you will likely be moving and do the research as to what is available and how much will it cost so that you can do an outline of a potential budget in your new home. On the other hand, if you are going to plan on staying in the marital home the budget that you create will allow you to determine how much money you will need when your spouse is no longer in the house contributing to the expenses. Divorce Tip #3: Understand and know your credit score. You should immediately order a copy of your credit report from one of the key credit reporting agencies (Experian, etc.) and review the report in detail. Make sure you are aware of all of the credit cards and debts listed and that the debts reflected on your credit report are being paid on time. If there are things on your credit report that you are unaware of you can work with your divorce attorney to make sure you obtain the supporting documents on those debts. You will need to make sure you can control your credit score moving forward. If you do not have much on your credit score and need to increase your credit you can take steps to get your score up which will help you after the divorce when you will be applying for things based on your own income and your individual credit score. Divorce Tip #4: Decide how you would like things to look after the divorce and work with a qualified attorney to create a plan to get you there. What is most important to you and how to get there is a critical piece of the planning process. You need to consider the following and rate in terms of importance:
Divorce Tip #5: Think about returning to work and what that may look like. Do you need to go back to school for a degree, a certificate or training? If so, you will want to research the availability of a college or program and the costs so that you can build that into your financial need. If you are of an age where you can rehabilitate and become employable it is a good idea to think in terms of becoming self-supporting, but it will take some research and decisions about your future. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/help-im-a-stay-at-home-mom-and-getting-divorced/ In April 2013, petitioner, Julie Ann Julie, filed a petition for an emergency order of protection against respondent, Joseph John Joe III, pursuant to section 214 of the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/214 (West 2012)).
Julie’s petition for an emergency order of protection alleged that Joe :
She also sought protection for her and Joe’s four young children. The trial court granted her request and entered an emergency order of protection. Wife’s Plenary Order of Protection Granted In October 2013, the trial court conducted a hearing to determine whether to grant a plenary order of protection (order of protection for 2 years). Julie testified that Joe’s business partner, Tom Fazy, was murdered and that Joe confessed to Julie that he had hired someone to commit the murder. Tom Fazy was murdered in December 2004 at his office in Midlothian, Illinois. Julie said that in February 2005, Joe told Julie that he had someone murder Fazy and provided the name of the hitman. Joe warned Julie that if she told anyone that he was involved in the murder of Fazy, he would hurt her or their then three-year-old son. Joe and Julie left Illinois and went to Florida. Julie explained that, while in Florida, Joe frequently threatened her whenever he became angry and would say that she knew what he was capable of doing, that he killed before and had no problem killing again. Julie testified to that and to multiple acts of other violence against her. She testified that she was afraid to leave him and that if she did, he would kill her. She testified that Joe continued to threaten her life. Joe testified that he never threatened Julie’s life. He denied confessing to anyone that he had his business partner murdered. Joe called both of his parents to testify. Both parents reported that they had never seen Joe exhibit abusive behaviors. Following closing arguments, the trial court explained its findings of fact and concluded that the allegations in the petition had been proven. The trial court entered a plenary order of protection that contained an expiration date of October 25, 2015. Petition to Extend the Order Indefinitely In September 2015, Julie filed her own petition without an attorney and requested a hearing to extend the plenary order of protection for an indefinite amount of time. In support of her request, she asserted that she remained fearful for her safety and the safety of her children. In November 2015, when the trial court conducted a hearing on the motion to extend the plenary order of protection, Joe failed to appear. The court noted that Joe had been served with a summons, found that he was in default, and extended the plenary order of protection indefinitely. Shortly thereafter, the Manatee County, Florida, sheriff’s office served Joe with a copy of the extended plenary order of protection. Ex-Husband Seeks to Terminate the Protection Order In October 2019, Joe filed a motion to terminate the plenary order of protection, alleging that the Act does not provide for an indefinite extension of a plenary order of protection. In January 2020, the trial court conducted a hearing on Joe’s motion and denied it, concluding that plenary orders of protection can be extended for an indefinite period. Joe appealed, arguing that (1) the Act limits the duration for extensions of plenary orders of protection to two years, (2) the trial court erred by granting Julie’s request for an extension of the plenary order because no good cause was shown, and (3) section 220 of the Act is unconstitutionally vague. The Appellate court disagreed and affirmed the trial court’s judgment. Purpose of the Illinois Domestic Violence Act The purposes of the Domestic Violence Act include supporting the efforts of victims of domestic violence to avoid further abuse by reducing an abuser’s access to the victim so that victims are not trapped in abusive situations by fear of retaliation. The Act states that a plenary order of protection entered under this Act shall be valid for a fixed period of time, not to exceed two years.” Subsection (e) further states, “Any plenary order may be extended one or more times § 220(e). The statute continues, stating, “An extension of a plenary order of protection may be granted, upon good cause shown, to remain in effect until the order of protection is vacated or modified.” No Time Limit Exists for an Extension The Act provides for an indefinite extension of a plenary order of protection. Although the initial plenary order of protection had a specific time limit of two years, no time limit exists for an extension of such an order. Instead, the Act specifically states that, upon good cause shown, the extension may “remain in effect until the order of protection is vacated or modified.” This language also stands in stark contrast to the language limiting the initial plenary order of protection to not “exceed two years.” Joe argues on appeal that because section 220(b)(0.05) of the Act states, “a plenary order of protection entered under this Act shall be valid for a fixed period of time, not to exceed two years,” that this extension also cannot exceed two years. The Act permits courts to indefinitely extend plenary orders of protection. Joe is allowed to file a motion to vacate or modify the order if he chooses. Julie however, testified that there were no material changes since the original entry of the plenary order of protection. Joe argues that the statute is confusing or contradictory because one portion of it says the duration of a plenary order of protection is not to exceed two years but another portion states that extensions may be of an indefinite duration until vacated or modified. Joe contends that “a reasonable person of ordinary intelligence may interpret that an extension of a plenary order of protection is still a plenary order of protection, and therefore shall have a limit not to exceed two years.” The Appellate court ruled that this is not the standard. If the fact that a reasonable person “may interpret” the statute incorrectly was all it took for a statute to be unconstitutionally vague, then almost any statute could be deemed unconstitutionally vague. The real standard is whether a reasonable person of ordinary intelligence has a reasonable opportunity to understand what the statute provides. Judged in accordance with the correct standard, the Appellate court concluded that the statute easily passes constitutional muster, and the Court affirmed the trial court’s judgment. Dale v. Bennett, 2021 IL App (4th) 200188 (March 3, 2021) THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/orders-of-protection/illinois-plenary-orders-of-protection-can-be-extended-indefinitely/ |
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