What procedural and substantive rights are potentially impacted by “rules of the road” orders in child custody cases – interlocutory orders which regulate what the contending parents can and can’t do in interacting with their children while the divorce case is pending?  That’s the issue presented by In re Marriage of Eckersall.  Last week, the Supreme Court declined to decide the issues, holding that the issues in Eckersall were moot and that leave to appeal was improvidently granted.  Our report on the oral argument is here.

Eckersall began when the husband filed a petition for divorce.  By agreement of the parties, the Circuit Court appointed an attorney to represent the couple’s three children.  The parties subsequently agreed on a visitation schedule, but not on the terms and conditions of visitation, so the attorney for the children proposed what he referred to as a “prophylactic” order.

The order enjoined the parties from various actions, mostly relating to the divorce litigation: no discussing any aspect of the litigation, no coaching the children for court testimony or interviews, no discussing with the children their preferences as to visitation, no criticizing the other parent in the children’s presence, and no questioning the children about the other parent’s conduct, habits or spending.  The wife objected to the order on the grounds that it interfered with her right to parent and communicate with her children, but the trial court entered the order over her objections.

The wife filed a notice of appeal from the order, contending that it was appealable under Rule 307(a)(1) as an injunction.  A divided Appellate Court disagreed and dismissed the appeal.  Not long after, the Circuit Court entered an order finalizing the parties’ divorce, which automatically vacated the “rules of the road” order.

In an opinion by Justice Charles E. Freeman, a unanimous Supreme Court affirmed the Appellate Court.  The order under appeal was clearly moot, the Court held; the only question was whether an exception applied allowing the Court to proceed with the appeal anyway.

The public interest exception to the mootness doctrine involves weighing three factors: (1) the question presented is of a substantial public nature; (2) there is a need for an authoritative determination of the issue for the guidance of public officers; (3) there is a likelihood of future recurrence of the question.

The Court held that the first factor was not satisfied.  The order was used in Cook County custody cases, the Court pointed out, and then only when the parties couldn’t agree on terms and conditions of visitation.  Therefore, the order only affected a “small group of people,” and had no real impact on the public as a whole.  The second factor wasn’t satisfied either, given that there was no conflict in authority on the issues presented.  The third factor – likelihood of recurrence – wasn’t satisfied either, given the lack of litigation on the issue.  Accordingly, there was no basis for applying the public interest exception.

The Supreme Court therefore unanimously dismissed the appeal, concluding that the petition for leave to appeal was improvidently granted.

Image courtesy of Flickr by umjanedoan (no changes).