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Restriction visitation – what evidence is sufficient?
By Scott Colky
Illinois
courts have indicated that visitation is a form of custody, and is therefore
subject to the criteria set forth in sections 602, 603, 604, 605, and 606 of the
Illinois Marriage and Dissolution of Marriage Act (hereinafter “IMDMA”). In re
Marriage of Fields, 283 III.App.3d 894,671 N.E.2d 85, 219 III.Dec. 420 (4th
Dist. 1996); In re Marriage of Allen, 265 III.App.3d 208, 213, 638 N.E.2d 340,
344, 202 III.Dec. 694 (4th Dist. 1994). This interpretation of
sections 603, 605, and 606 is critical, as these are the provisions that are
limited specifically by their language to “custody proceedings.” The
application of sections 605 and 606 to visitation disputes allows for the use of
investigatory personnel, priority in hearing dates, and an array of other useful
tools.
These
tools set forth in section VI of the IMDMA are critical when a party seeks to
restrict the visitation of a parent or other party. When a court determines
whether a a parent is to receive restricted visitation, it is mandated to follow
the criteria articulated in section 607 of the Illinois Marriage and Dissolution
of Marriage Act, which must be proven by a preponderance of the evidence. In re
Marriage of Fields, supra. Section 607 provides that the parent not granted
custody of a child is entitled to reasonable visitation rights unless the court
finds, after a hearing, that the visitation would endanger the child’s mental,
moral, physical or emotional health. 750 ILCS 5/607.
A
restriction of a parent’s visitation is an action by the court which limits,
restrains or confines visitation within bounds. The endangerment standard in
section 607© is an onerous, stringent and rigorous standard, because liberal
visitation is the rule. Heldebrant v. Heldebrant, 251 III.App.3d 950, 623 N.E.2d
780 (4th Dist. 1993).
Restrictions on visitation include supervised visitation, preventing overnight
visitation, terminating visitation, requiring visitation in the custodial
parent’s home. Since a restriction is defined as something that confines or
limits visitation, conditions such as required counseling or parenting classes
are not restrictions and are instead considered an “accommodation for the
child.” In re the Marriage of Anderson, 130 III.App.3d. 684, 474 N.E.2d 911 (2d
Dist. 1985).
Section
607’s focus is on the parent’s right to visitation, and may be in direct
contravention of the “best interest of the child” standard with which the courts
are comfortable working. In formulating a visitation order, courts are afforded
a great deal of discretion, and a reviewing court will not interfere with the
trial court’s determination in the absence of an abuse of discretion or unless
manifest injustice has been done to the child or parent. In re the Marriage of
Diehl, 221 III.App.3d. 410, 429, 582, N.E.2d 281, 294, 164 III.Dec. 73 (2d Dist.
1991); in re the Marriage of Slayton, 292 III.App.3d 379, 685 N.E.2d 1038 (4th
Dist. 1997).
The
tension between the best interest standard, and a request for a restriction of
visitation, is best seen in situations where a parent shows poor parenting
skills or bad judgment. While overnight visitation with the parent is not in
the child’s best interest, his or her behavior does not reach the endangerment
standard. Another conflict between the statute and best interest is seen in
situations where the child at issue is under two years of age. The noncustodial
parent, in most instances, has never acted in any manner that has endangered the
child. Nonetheless, domestic relations judges uniformly award noncustodial
parents of infants visitation of one or two hours at least twice a week, rather
than overnight visitation and alternating weekends.
In Cook
County, the courts have formulated guidelines that provide that infants and very
young children should have visitation time extended to overnights and weekends
only in instances where the noncustodial parent has assumed equal primary care
for the child:
Overnights should be considered only if the noncustodial parent has been an
active participant in the ongoing daily care of the infant, including feeding,
changing, bathing, and caring for illness. (Cook
County
Visitation Guidelines)
Thus, in
cases where a pregnant spouse vacates the marital home or a spouse with a young
child leaves the other, or in a traditional family setting where Mom primarily
performs the early child care role, while Dad works, one parent shall
automatically have restricted visitation with his or her infant. No effort is
made in this situation to explain how the courts can ignore section 607, and the
burden of proving serious endangerment.
Another
illustration is when one party is romantically involved with a person other than
his or her spouse. Petitions are routinely filed to prevent that parent from
having visitation while the “significant other” is present. The appellate
courts have taken the position that cohabitation may be considered in custody
and visitation cases, but mere cohabitation without evidence of endangerment is
insufficient to restrict visitation. (See In re Marriage of Diehl, supra.)
Yet, court orders are routinely entered restricting visitation in the presence
of an unrelated member of opposite sex. Such orders are entered because judges
believe they are in the best interest of the children involved.
Cases
involving visitation are sui generis, and each case must be reviewed on its own
facts, rendering it impossible to categorize all behavior that constitutes
serious endangerment. Likewise, many behaviors that may not endanger a child
may in certain circumstances rise to the level of endangerment. Cohabitation,
sexual deviancy (preferences for sadism and masochism) and imprisonment are some
examples of behavior which may rise to the level of endangerment in certain
circumstances. The courts have held that visitation with an incarcerated parent
is a matter which the court must carefully evaluate, based on specific facts to
determine if the child would have been endangered. In re Marriage of Campbell,
261 III.App.3d 483, 633 N.E.2d 797 (1st Dist. 1993); In re Marriage
of Pleasant, 256 III.App.3d 742, 628 N.E.2d 633 (1st Dist. 1993); In
re Marriage of Diehl, 221 III.App.3d 410, 582 N.E.2d 281 (2d Dist. 1991); In re
Marriage of Hanson, 112 III.App.3d 564, 445 N.E.2d 912 (5th Dist.
1983); Frail v. Frail, 54 III.App.3d 1013, 370 N.E.2d 303 (3d Dist. 1977).
Proving
endangerment using statements of the child has been made easier by a number of
appellate court rulings and statutes. The most of these statutes is section
606(e) of the Illinois Marriage and Dissolution of Marriage Act which applies to
petitions for supervised or restricted visitation. See In re Marriage of
Fields, supra. This statute allows into evidence the previous statement of a
child relating to allegations of abuse or neglect. However, recently in In
re the Marriage of Rudd, 227 III.Dec. 861, 688 N.E.2d 342 (4th
Dist. 1997), the appellate court interpreted section 606(e) to apply only to the
statements of the child or children whose custody or visitation is at issue.
The father in Rudd was alleged to have sexually abused his niece. The mother
attempted to introduce the statements of the nice into evidence though a child
protection investigator. The appellate court held that 606(e) did not allow
admission of the niece’s statements, but those statements might have been
admissible pursuant to Illinois Code of Civil Procedure, 735 ILCS 5/8-2601(a).
Section
8-2601 of thee Illinois Code of Civil Procedure allows for the out-of-court
statement made by a child under the age of 13 describing any act of child abuse
or any activity involving sexual abuse on the declarant or witnessed by the
declarant. In order for these statements to be admissible, the statute provides
that the court must conduct a hearing, and find that the time, content, and
circumstances of the statement provide sufficient safeguards of reliability and
the child either must testify at the proceeding, or is unavailable as a witness,
and there is corroborative evidence of the act which is the subject of the
statement. Section 8-2601 also provides for notice by the proponent of the
statement of the intention to offer the statement and the details of said
statement.
In
Carbonaro v. Carbonaro, Nos. 1-94-4134, 1-94-4141 (1st Dist. 1996),
the wife brought a petition for supervised visitation, alleging sexual abuse of
the parties’ daughter. Prior to trial, the husband’s attorney filed a motion
in limine, alleging that no notice was given of the intention to offer the
child’s hearsay statements, that the court had failed to hold a separate
reliability hearing, and under section 8-2601, that the child was available to
testify. The trial court denied the motion in limine, and allowed into
evidence all of the hearsay statements of the child over objection without
reference to an exception to the hearsay rule and without reference to section
606(e).
On
appeal, the appellate court acknowledged the lack of a separate hearing, but
noted that this was a bench trial, and the trial curt was in the best position
to judge the totality of circumstances which provide the safeguards of
reliability. The appellate court noted the child was two-and-one-half years old
at the time of the alleged incidents, and based on the in camera interview, was
unavailable to testify. The appellate court also found sufficient corroborative
evidence, and depositions of the witnesses constituted sufficient notice. Thus,
the appellate court ostensibly allowed the trial court to conduct a hearing on
reliability simultaneously with the trial.
The
appellate court went further, finding the statements of the minor to be
spontaneous declarations. |
