When does a parental control order go too far?

Ruling calls into question several constitutional issues

All in the Family

Dan Stefani

Dan Stefani is a principal at Katz & Stefani and primarily handles family law matters that require detailed analyses of complex transactions and business valuations. His work on behalf of mainly high net worth clients, as well as spouses of high net worth individuals, involves valuations of closely held corporations, partnerships and other entities, child custody and support issues as well as paternity and domestic violence.

October 2014

On May 28, in a 2-1 decision, the 1st District Appellate Court dismissed an appeal by a mother who disagreed with an order entered by the trial judge.

The order prohibited the parents from participating in certain behaviors when with their three children.

While the court dismissed the appeal based on its holding that the order at issue was not an injunction for purposes of permitting an interlocutory appeal, the majority went on to analyze the order and hold that the order did not violate the mother’s right to due process.

The dissent’s position was that the order was, in fact, an injunction and that the order was defective on both procedural and substantive grounds. In re Marriage of Eckersall, 2014 IL App (1st) 132223.

It is fascinating the level of control a judge has over parents once they avail themselves to the court system.

The order at issue stated that the parties would be prohibited from engaging in specific types of conduct regarding the minor children, including: (1) beating, striking, threatening or in any way interfering with the personal liberty of the minor children; (2) discussing any aspect of the pending litigation in the presence of the minor children — including custody, visitation, support, grounds for dissolution, financial information and court dates; (3) questioning or discussing with the children their preferences regarding custody or visitation; (4) questioning, discussing, rehearsing or coaching the minor children regarding court testimony or interviews with the court, mediators, attorneys, investigators or any other person related to the dissolution proceeding; (5) engaging in any kind of electronic surveillance of the other party or the minor children; (6) using or consuming alcohol or nonprescription drugs in the presence of the minor children; (7) permitting an unrelated member of the opposite sex to reside on an overnight basis while the minor children are present; and (8) criticizing, demeaning, disparaging or placing either party in a negative light.

The order also prohibited either party from using corporal punishment in disciplining the children or from removing the children from the state without written consent from the other party or by court order. The order was entered without a pending petition by either party or the children’s representative. The children’s representative presented the order to the court which was subsequently entered over the wife’s objection.

On appeal, the wife objected to the order for the following reasons: (i) the trial court lacked jurisdiction to enter the order in the absence of either party filing a motion; (ii) the order violated her right to due process because it was entered without an evidentiary hearing; (iii) the trial court failed to make findings of fact as required by the Illinois Code of Civil Procedure; (iv) the order infringes on her rights to parent her children in violation of the 14th Amendment of the U.S. Constitution and Section 2, Article I of the Illinois Constitution; and (v) the order violated her freedom of speech under the United States and Illinois constitutions.

The majority held that the wife’s assertion that her due process rights were denied was without merit because before entry of the order by the judge, both parties were given an opportunity to raise specific and general objections.

Further, because the order states that it was “subject to a hearing upon request of either party as to any or all of the prohibitions set forth herein,” the wife’s due process rights were not denied. As the appellate court dismissed the appeal because it was not an injunction, the majority opinion is devoid of any detailed analysis of the wife’s other four objections to the order.

The dissent made several valid points as to why the order was an injunction and why it was procedurally and substantively defective. Most interestingly, the substantive defects were pointed out by certain examples of what the order prohibited. For example, when the parties’ three daughters resided with the wife, the order prohibited the children from talking to their mother about their feelings regarding the divorce or how the divorce would affect them.

The dissent further pointed out that to be in compliance, the mother would have to simply refer her own children to a relative stranger, the child representative. Additionally, if the wife wanted to take a video of a ballet recital, soccer game or school graduation, she would be violating the order’s proscription against “[e]ngaging in any and all forms of audio and/or video recording … regardless of whether such conduct is known, … overt … [or] voluntary.”

These types of orders are entered all the time in divorce court.

As the dissent points out, judges should use caution when entering these types of orders, especially (like in this case), where there was no evidence that either party intended to embark on the conduct that was prohibited by the order. As the dissent further points out, the trial court was well-intentioned in its order, but restrictions such as these on parental rights should be tailored to the circumstances. A “cookie-cutter approach” is something to try to avoid when it comes to these parental issues in a pending dissolution of marriage.