The holiday crunch

As Family Law practitioners we know the usual crunch that occurs during the holidays for visitation. I became aware that Judge Alfred Levinson, the judge who presides most of the time in Paternity Court in the Third Municipal District, had issued an order that all Emergency Motions for holiday visitation should be filed and heard on or before December 13, 2007.

During a break in a hearing that Judge Levinson was presiding over he graciously had his clerk tender copies to the undersigned and two colleagues of a case that Judge Levinson considers controlling with relation to parental alienation and visitation interference.

The case is IRMO Charous, 368 Ill. App. 3d 99, 855 N.E. 2d 953 (2^nd Dist. 2006). This is a case that came out of Judge Waldeck's courtroom in Lake County, Illinois that constitutes fairly egregious conduct on behalf of the custodial parent.

The facts of the case are as follows: On November 18, 2003 the trial court entered a Judgment for Dissolution of Marriage. Under the terms of the Judgment the wife was awarded sole custody of the parties' two children, Erica, born 10/6/1988 and Daniel born 6/12/1993.

There was a Parenting Agreement contained in the Judgment for Dissolution of Marriage that provided that Petitioner, David Charous would receive alternating weekends and on every Wednesday evening. There was also a holiday schedule which included alternating Passover, Memorial Day weekend, the 4^th of July, Labor Day, Rosh Hashanah, Yom Kippur, Thanksgiving and the summer and spring school vacations. The children were to be with the mother on her birthday and on Mother's Day and to be with the father on his birthday and Father's Day.

The Parenting Agreement provided the following: for the parties to work together to resolve scheduling conflicts; prohibiting the parties from withholding visitation because of monetary disputes; prohibited the parties from discussing perceived deficiencies in the other parent or issues involved in the marital conflict; prohibited the parties from disparaging remarks about the other parent and required the parties to cooperate in facilitating disclosure of the children's grades, evaluations and school records; and, further required the children to attend psychological therapy. Additionally, the Parenting Agreement required the wife to consult with the husband prior to making any decisions regarding the children's extracurricular activities.

The father, David Charous, filed a Verified Petition for Adjudication of Indirect Civil Contempt approximately six months after the entry of the Judgment for Dissolution of Marriage contending that his ex-wife had interfered with his right to visitation with the minor children. The Petition also alleged that the wife had violated the Parenting Agreement by removing his name from the contact list at his daughter's school and by encouraging the children to miss their visitation time with the father.

During the pendency of the Petition the father filed a petition pursuant to Section 607.1 of the Illinois Marriage and Dissolution of Marriage Act with allegations that were similar to the violations alleged in the Petition for Adjudication of Indirect Civil Contempt.

On May 12, 2005 Judge Waldeck conducted an in-camera interview of the parties' children. Although the Appellate Court did not report the court reported transcript of what took place it should be noted that on June 6, 2005 Judge Waldeck entered an Order requiring the parties' children to fully comply with the visitation schedule contained in the Parenting Agreement or he would subject the children to sanctions.

The trial court then heard testimony from the parties with relation to the Petition for Indirect Civil Contempt and the visitation interference. The testimony included the Child's Representative testifying that he recalls having a conversation with the mother/ex-wife where she said that she thought that her ex-husband should not be involved in the children's lives at all. Irrespective of this evidence and other testimony summarized in the opinion, the trial court at the close of evidence denied the father's petitions alleging visitation abuse and seeking a finding that his ex-wife was in indirect civil contempt.

The 2^nd District Appellate Court reversed and found that the trial court had abused its discretion in denying the Petition for Indirect Civil Contempt and the Petition for Visitation Abuse filed by the father in this case.

In its discussion, the Court reviewed the case law relating to indirect civil contempt and the burden shifting that occurs thereon. The Court noted that the burden initially falls on the Petitioner to prove by a preponderance of the evidence that the alleged contemnor has violated a court order. Once the Petitioner has proved by a preponderance of the evidence that the alleged contemnor has violated provisions of a Court Order then the burden shifts to the alleged contemnor to show that non-compliance with the Court Order was not willful or contumacious and that he or she had a valid excuse for failure to follow the Court Order. IRMO Charous, 368 Ill. App. 3d at 108-109.

The Court then went on to explain that it thought that the father had proved by a preponderance of the evidence that the ex-wife had violated multiple provisions of the Parenting Agreement. The Court then shifted its focus to the basis of the ex-wife's non-compliance with the visitation provisions of the Parenting Agreement. First the ex-wife stated that she had the authority, as sole custodian of the children, to decide what extracurricular activities the children would be involved in. The Court rejected this noting that the Parenting Agreement provided for consultation between the parties before making any final decisions regarding those extracurricular activities.

Additionally, the reliance by the ex-wife in IRMO LaTour, 241 Ill. App. 3d 500, 608 N.E. 2d 1339 (1993) was found to be misplaced. In LaTour the non-custodial parent lived in the suburbs of Chicago while the mother and the minor children lived in Quincy. The Court in the LaTour case found that the parties' children had busy extracurricular schedules and indicated that it would be reasonable for the Trial Court to provide that the children's extracurricular activities scheduled on the father's weekend for visitation would excuse the children from visiting. However, this decision was distinguished on the basis that the LaTour was faced with the geographical distance between the suburbs of Chicago and Quincy, Illinois.

In the Charous case, the mother/ex-wife resided in Deerfield with the children while the father resided in Skokie. The children's participation in extracurricular activities would not preclude their visitation with their father for the rest of the weekend.

The mother/ex-wife then tried to assert her failure to comply was a result of the children's refusal to visit with their father. The Charous court pointed out that Illinois courts have held that a custodial parent may not disregard the visitation requirements of a Dissolution Judgment merely because the children do not desire to visit the non-custodial parent. 368 Ill. App. 3d at 111.

Finally, the Charous court concluded that the father was entitled to an award of attorney's fees and costs incurred in prosecuting his petitions. This was due to the fact that a reviewing court may review the record and independently determine that a party violated a trial court order without cause or justification which mandates the award of attorney's fees under Section 508(b). The trial court's failure to make such a finding was not fatal in this case.

I encourage all Family Law practitioners to read the reported version of this case.