By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
www.sdflaw.com; dschiller@sdflaw.com
Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.
- Trial court reversed on post-judgment modification of parenting time where it failed to engage in a best interest analysis about the children’s change of residence from Illinois to Indiana.In a post-judgment parenting action where the parties had joint decision-making of their two grade school aged children and father had the majority of the parenting time, father filed a petition to modify parenting time and mother filed a counter-petition. Both petitions sought primary physical custody of the children.The trial court held a lengthy hearing with multiple witnesses, including the GAL who switched their recommendation mid-hearing. The allegations and testimony at trial included questionable environments at both parents’ homes with father’s home allegedly being dangerously close to having DCFS called for uncleanliness and mother’s home being unstable due to alleged fights between her and her then-boyfriend. At the conclusion of the hearing the trial court entered a document entitled “Agreed Parenting Plan and Judgment” which was submitted as mother’s proposed judgment thereby granting mother’s counter-petition and giving her primary physical possession of the children in Indiana. The Appellate Court reversed. The trial court abdicated its duties by signing a form judgment that indicated the parties had agreed to modify the parenting plan when in fact there had been a contested hearing. Further, the trial court needed to find that a substantial change of circumstances had occurred and make a determination that it was in the best interests of the children to modify the parenting plan. Mother also failed to follow the IMDMA’s requirements before relocating out of state to Indiana, thereby preventing father from objecting to her out of state move. By bypassing this requirement and ordering that the children reside primarily with mother, the trial court failed to consider the reason for mother’s relocation from Illinois, as well as mother’s alleged history of not exercising her parenting time as provided for under the original judgment. Because she was the parent relocating, she had the burden of demonstrating that the relocation was in the best interest of the children. The Appellate Court vacated and remanded. In re Marriage of Gualandi and Mau-Gualandi, 2024 IL App (5th) 240238.
In re Marriage of Gualandi and Mau-Gualandi - Trial court’s judgment modifying parenting time reversed and the Appellate Court suggested the GAL might need to be replaced. In a highly litigious and contentious post-judgment parenting case (see Flash Point #1), which included multiple cross-allegations of each parent’s home being questionable living environments for the parties’ two children, a GAL was appointed to investigate the facts of the case. The GAL filed a report and testified to that underlying report, but facts came to light during the hearing that they were not aware of at the time they completed their report, which caused them to change their recommendation mid-hearing. The Appellate Court noted in its decision that at the time of the hearing the parties lived over three hours away from each other and in different states and it was concerning that in their report, the GAL only focused on the living conditions at father’s home and not mother’s. The GAL did not contact DCFS or complete a case history search regarding any claims of domestic violence regarding the mother and her boyfriend. The Court further found that the GAL’s report did not adequately address the 602.7(b) best interest factors, did not address the home environment in Indiana the children would be living in, and did not address the school environment the children would be relocated to with a move to Indiana, among other items. The Court stated that the trial court on remand should consider whether a new GAL should be appointed, and if the current GAL remained, an updated report should be presented which contained a complete investigation of the facts. In re Marriage of Gualandi and Mau-Gualandi, 2024 IL App (5th) 240238.
In re Marriage of Gualandi and Mau-Gualandi - Trial court affirmed on an extension of a plenary order of protection as the facts established there was good reason to extend the original order of protection.Two married parties (husband and wife) obtained separate plenary orders of protection against the Respondent, wife’s mother and the grandmother of their children. The allegations including that Respondent was mentally unstable and that Petitioners had gone to great lengths to eliminate all contact between Respondent and their family. As the two-year plenary was set to expire, both Petitioners sought extensions and alleged that the harassment had not stopped citing supporting instances of continued harassment. At the hearing, Respondent’s counsel moved for a directed finding arguing that good cause was required to support an extension but that the Petitioners had only shown unchanged circumstances. The trial court denied the motion. At the conclusion of the hearing the trial court found good cause for the extension and extended the plenary order for another two years. On appeal, Respondent argued that Section 220(e) of the Domestic Violence Act distinguishes a motion for an extension that is uncontested and for which a Petitioner does not seek a modification from any other motion for an extension. Under Respondent’s theory, if the petition to extend a plenary order of protection is contested, the Petitioner must show “good cause” for the extension. The Appellate Court engaged in an extensive statutory construction review of the language of Section 220(e) and held that while the terms of the second sentence of the statute clearly apply to only those situations where the motion for an extension of an order of protection is uncontested and for which the petitioner does not seek a modification, the Court did not agree with Respondent’s argument that the distinction contained varying standards of proof from “no material change in relevant circumstances” to “good cause shown.” Rather, the second sentence of the statute allows a relaxed method of proof where the motion is uncontested and seeks no modification. The Court also engaged in an extensive analysis of the third sentence of the statute and its impact on the facts, ultimately concluding that Section 220(e)’s language was ambiguous and that parties seeking an extension of an order of protection could interpret the statute in different ways depending the duration and circumstances. Therefore, the Court looked to the legislative history of the statute and concluded that the legislature intended to treat contested extensions of plenary orders of protection differently depending on the duration of the extension. If the extension is contested and is to remain in effect until vacated or modified, i.e., of an unspecified duration, the petitioner must establish “good cause” for the extension, in addition to meeting the requirements set forth in Section 219. Graham v. Rengen, 2024 IL App (2d) 230611 ¶50. Because the plenary orders of protection in the case at bar were of fixed duration not to exceed 2 years, the Petitioners needed to only satisfy the requirements under Section 219 and nothing within such section prohibited the trial court from extending a plenary order of protection for two years based on the conduct that formed the basis for the initial order. Since the evidence at the hearing showed that the Respondent engaged in abuse as defined by the Act and many of the allegations went unrefuted by Respondent, the trial court’s order was affirmed. Graham v. Rengen, 2024 IL App (2d) 230611
Graham v. Rengen