It’s become commonplace in domestic relations cases with custody issues, in Cook County and certain other jurisdictions, for the trial court, early in the proceedings, to enter a kind of “rules of the road” order specifying what the parents can and can’t do with the children. The centerpiece of these orders is usually that neither parent can disparage the other to the children, but they typically contain anywhere from five to ten subparts.

But what procedural hurdles does the trial court have to go through before entering such an order? That’s the issue the Illinois Supreme Court debated during its November term in In re Marriage of Eckersall, an appeal from a decision of the First District, Division 3.

Eckersall began in 2013 when the husband filed for divorce and joint custody of three daughters. The wife filed a counter-petition and also sought joint custody, but specifically sought sole custody if the parties couldn’t agree on a joint arrangement. The parties agreed to the appointment of counsel to represent the interests of the children. The children’s attorney submitted a “rules of the road” order, including a non-disparagement clause and seven other categories of conduct that the parents would be barred from engaging in while in the presence of the children. The husband’s attorney asked for minor changes in the draft order, but the wife’s attorney objected to the order from start to finish on the grounds that it infringed on the wife’s right to communicate with and parent her children. The trial court entered the order, and shortly thereafter, the wife filed a notice of appeal, contending that the order was appealable as an injunction.

The Appellate Court disagreed and dismissed the appeal. The order did not purport to adjudicate any substantive issues, the Court noted; it merely controlled the parties’ conduct during the litigation, and automatically dissolved upon entry of a final judgment. The Court concluded that the points on which the wife rested her argument – that the trial court had proceeded without a motion, a supporting affidavit and an order setting forth reasons – actually compelled the conclusion that the result was not an injunction, since trial judges are presumed to follow the law. Nor was the order intended to maintain the status quo, in the Court’s view. Justice Mason dissented, arguing that the order was both substantively an injunction (and therefore appealable) and procedurally defective.

Counsel for the wife began the Supreme Court hearing, arguing that the practical meaning of the Appellate Court’s action was that any trial court could restrict parental rights without the slightest appellate review. Justice Theis asked why the Court should decide the issues presented, given that they were moot (final judgment in the underlying divorce had been entered while the appeal worked its way through the system). Counsel responded that the Court should invoke the public interest exception to mootness. Justice Theis asked what the public interest was if one judge entered a particular order in a single case. Counsel answered that similar orders are entered nearly every day, as a matter of course, without underlying justification. Justice Thomas noted that this was the first time such orders had ever been challenged, so doesn’t it cut against the public interest argument that they’re so common? Counsel responded that there was little time to challenge such orders, since they are in effect only until final judgment. Justice Thomas asked whether that fact too cuts against review – if the order is temporary, its effect is limited. Counsel answered that a divorce case can be the hardest time of all for children, and not having parents available to answer the children’s questions is wrong. Chief Justice Garman asked whether the court must wait until the children have suffered actual harm before entering an order. Counsel answered no, but there must be at least an articulable threat. The Chief Justice asked how that restriction intersected with the courts’ obligation to protect the children. Counsel answered that the courts’ obligations must be balanced against the duty to respect the parents’ rights. The result is that the court must have a hearing and tailor the order to the facts of the case. Justice Karmeier asked whether, if the Court agrees with the wife, any temporary custody order would be immediately appealable. Counsel said no, that some temporary custody orders are not coercive. Justice Karmeier asked what if the order imposed additional terms and conditions on the parents’ interactions with their children. Counsel answered that if there are restrictions in the order, that part of the order is appealable. Chief Justice Garman asked whether there was any restriction a trial court could impose on parties’ conduct that wouldn’t be an injunction. Counsel answered that certain directives, such as setting times that children should be dropped off and picked up, are just declaring the parties’ rights and obligations. The Chief Justice asked what about an order not to disparage the other party. Counsel responded that such an order is an injunction. Chief Justice Garman asked whether there was an attempt to raise the wife’s objections with the Court. Counsel answered that both sides had provided versions of an order they’d agree to, but the wife objected to being barred from answering her children’s questions about the divorce. The Chief Justice asked whether that was in the record, and counsel said no, the court had entered the child representative’s order with one modification suggested by the father.

Counsel for the children spoke next. He argued that no one was denying that the order entered was in the children’s best interest. It was critical to consider the injury that would occur every day if similar orders were barred. The threshold issue, counsel argued, was whether the order was an injunction. In fact, the order was clearly permissible under the Marriage and Dissolution of Marriage Act. Counsel argued that injunctions are an extraordinary remedy, while the language of the order here shows that it was the furthest thing from extraordinary. The order entered was not final, and if any inequity had been found, it could easily have been corrected. Counsel argued that similar orders are entered every day in divorce cases involving children, and they are not intended as injunctions. Counsel argued that there is already an avenue for appeal of such orders by permission under Supreme Court Rule 306(a)(5), and nothing more is needed. Counsel urged the Court, if it felt that something about the order had gone too far, to provide guidance, but not to label the order an injunction.

Counsel for the husband followed, arguing that the appeal was moot. A final judgment for dissolution had been entered before the petition for leave to appeal was ever filed, and the temporary order at issue was no longer in effect. The public interest exception doesn’t apply, counsel argued, for two reasons. First, it applies only to a limited group of people. Second, although it has been in use for years, this case was the first challenge to the order, showing that there was no significant need for the Court’s guidance. Counsel concluded by agreeing with the children’s representative that the order was clearly in the best interests of the children.

Counsel for the wife concluded in rebuttal. He agreed that certain provisions were in the children’s best interests, but for others – such as the bar on answering the children’s questions – that proposition was very much in dispute. Counsel argued that there was no basis for construing only orders based on actual wrongdoing as injunctions. Counsel noted that Rule 306(a)(5) allowed permissive appeal only where an order dealt both with care and custody of the children – there was no grounds for appealing the order at issue. Counsel disputed the notion that the order applied only to a limited class of persons – this order potentially applied to any parent with children. Counsel concluded by noting that a similar order had been challenged in another case which went to the Second District and was ultimately vacated.

We expect Eckersall to be decided in four to six months.

Image courtesy of Flickr by Tori Rector (no changes).