Illinois Case Law on Parental Abduction

Chicago, Illinois, family law attorney Joy Feinberg, discusses repeated patterns of non custodial or non residential parents, having their right interrupted when trying to see their children.

By Joy M. Feinberg
May 26, 2006
Child Custody

In situations where a court has found a REPEATED, continuing, ongoing pattern of interference with the non-custodial or non-residential parent's right to have access to and an ongoing relationship with the child of the parties, Illinois courts have ordered a change of custody to rectify the perception of alienation by one parent to another from the child of the parties. The acts which courts have relied upon to formulate the basis for concluding that alienation has/is occurring include: a) unfounded allegations of physical and/or sexual abuse, usually with reportings to DCFS; b) changing the child's name on school records, often associated with compelling the child to call a step-parent the "mother" or "father" of that child; c) repeatedly canceling visitations and obstructing make-up visits; d) creating an impression in the child that visits or time spent with the other parent is "unsafe"; and even, e) staging confrontations during visitation exchanges.

While most Illinois cases involve post-judgment matters, these same patterns of behavior are not foreign to initial custody disputes. The same method of proof of the alienation and the results of either an award of custody or a change of custody is the result which the court will order. The real question, and one that is not answered under the case law, is whether or not the award of custody, initially or in a modification proceeding can or will stop the effects of alienation and allow the children to have an unfettered relationship with both parents. It is in the worst of these cases where a custody order will not satisfy this goal.

While a pattern of acts is required in all cases, individual actions or acts independent of any combination are not likely to be looked upon as a pattern of alienation. Several cases will be examined where the claim of "alienation" was not met with the standard of proof necessary to elicit the desired result. Finally, there are times when various legal issues will prevent the claim of "alienation" from moving forward.

Alienation acknowledged

KNOCHE v. MEYER, 322 Ill.App.3d 297; 750 N.E.2d 297, 255 Ill.Dec. 716 (5th Dist., 2001)
Change of custody ordered where mother hostile to father; interfered with father's visitation rights. Child was almost 10 at time of custody change and had an older half-sister from mother's 1st marriage. Mother reported her 3rd husband for masturbating in from of her oldest daughter and had been beaten by her 5th husband. The court appointed expert stated father more capable of setting aside parental differences than mother; consistent disallowance of visitation between father and child by mother, even when police attempted to intervene; and mother engaged in "dramatic scenes" and "histrionic outbursts" during visitation transitions. (Mother married and divorced 2 additional times plus lived with 4 more men between this divorce and change of custody) EVIDENCE OF MOTHERâS VISITATION INTERFERENCE included the court record and numerous transcripts of answering machine messages, where her "hostile" and "angry" attitude toward the father was noted. Mother blamed this on father's new wife's "interference" and "lies". Between July, 1998, when the custody change was ordered and February, 1999, mother retained possession of the child while motions to reconsider were decided. In camera interview of child -- child's preference was to stay with mother.

HUFFMAN, 50 Ill.App.3d 217, 365 N.E.2d 270, 8 Ill.Dec. 32 (5th Dist., 1977)
- NO CLAIM OF ALIENATION; CLAIM OF UNDUE OR IMPROPER INFLUENCE -
In this joint custody modification action, mother awarded sole custody. Father claimed mother grabbed and shoved children during transfers; calling police to enforce custody rights and her pre-decree suicide attempt. (Her reason for the suicide: reaction to being informed that husband falsely promising future reconciliation and then going on vacation with family by former babysitter and student in husband's class.) The father, a psychology student and teacher, was found to have used his training and experience to influence the childrenâs preference. The father's driving by the children's school during recesses and getting their attention; his having the children in the original home with the original babysitter, who became his 2nd wife and his lavish treatment of them during his time was called a "calculated effort to influence the children". The children's unexplained "hostility" toward their mother and great affection for their father's new wife affected the court's decision. On appeal, the decision states:

"...assuming there was insufficient evidence to prove the plaintiff {father} deliberately alienated the children from their mother, we still believe a man of his qualifications and experience could have asserted enough influence on them so that they would not take the hostile attitude toward their mother as they did."

SCHULTZ, 38 Ill.App.3d 678, 347 N.E.2d 749 (3rd Dist., 1976)
9 months after divorce, mother petitioned that father refused her visits and sought change of custody. Denied. 1 ¸ months later, father's continuing refusal to allow visits, with such games as telling mother she came too late; that child was sick or not being present for visit, caused contempt finding; 30 days jail sentence stayed by turnover and $250 payment and change of custody. Appellate court allowed child to stay with mother pending hearing on whether change of custody was in child's best interests. NO CLAIM OF "ALIENATION"

HARTMAN, 252 Ill.App.3d 481, 621 N.E.2d 917, 190 Ill.Dec. 464 (3rd Dist., 1993)
2-year-old daughter awarded to father's custody where mother had alleged sexual abuse against father (she saw him sleeping naked with daughter from prior marriage); the reporting occurred 2 years after incident occurred; 14-year-old testified it never happened. Mother alleged father abusive to her; allowed their child to watch father urinate and see him naked. Court found both parties misused DVA; "...no community standard prohibited nudity in privacy of ones own home or urinating in front of a child." Father, never had been primary caregiver; however, he had good support system and was only ill-tempered around wife. He found both parties hit each other, although the wife received more "souvenirs". The court's finding that the wife had "deliberately lied" about the sexual abuse allegation and had "attempted to destroy the relationship between" father and daughter. Court said mother had lost custody -- father had not won it.

MULLINS, 142 Ill.App.3d 57, 490 N.E.2d 1375, 96 Ill.Dec.170 (1st Dist., 1986)
This is the most detailed of all cases of repeated interference with visitation, even when supervised; canceling visitation and not agreeing to make-ups; acknowledging a desire to thwart the court's visitation orders; name changing; attempt to move out of state; the seeking by mother of the father to allow the adoption of the children by her new husband and false DCFS complaints (2). Change of custody ordered. Initial DCFS report was founded and supervised visitation ordered. The 2nd allegation was that the father had sexually abused child in a restaurant.
Refused to set make-up visitation unless his witness sat at another table;
Cancelled next visit because her then husband unable to supervise;
she refused to act as supervisor; refused to set another date and hung up on him after swearing at him;
When he asked to visit at a restaurant closer to his home, she stated that he could "take the court order and shove it."

When next seeing the children and explaining that he was sorry he didn't see them the previous week, step-father called out that he was a liar and not to pay attention to anything he said.

Step-father supervisor would not allow children to sit with father when restaurant had only 1 table ready and wouldn't agree to extend time of visit to including waiting time. Then step-father grabbed children by wrist and pulled them out of restaurant saying loudly for all to hear, "I can't leave them here with you -- we have you under investigation for sexual molestation to your daughter and I won't leave them hear with you."

KRAMER, 211 Ill.App.3d 401, 570 N.E.2d 422, 155 Ill.Dec. 909 (1st Dist., 1991)
Bennett Leventhal testified that mother, by trying to eliminate father from child's life, was compromising her own relationship with child and father better able to isolate child from conflicts between mother and father and to foster a relationship between child and both of his parents. Attempted name change; told child his father didn't love him. Custody changed from mother to father under CLEAR AND CONVINCING EVIDENCE supported the change to be in child's best interests. There were 60 days of trial with specific incidences recounted over a 7-year period from date of parties separation through trial.

In every phase of child's relationship with his father, mother has fostered anger, confusion and turmoil to one purpose and to one purpose only -- to destroy every vestige of the relationship. ... The fights, the visits missed, the incidents of the exchanges or visitation, the make-up visits never provided, the telephone calls caught in the vacuum of the unresponsive telephone answering machine, the examinations that never took place, the illness of her and child that delayed and frustrated, the orders of court that never were complied with in any real way, if at all and all the other scenarios presented here, have one common thread running through them -- the denial of access between a son and his father and thereby destruction and prevention of a fundamental natural human right -- the right to a nurturing relationship."

This was interesting case because standard language of parenting agreement used against violating parent: "Both Husband and Wife will use their best efforts to foster the respect, love and affection of the child towards each parent and shall cooperate fully in implementing a relationship with the child that will give the child the maximum feeling of security that may be possible."

DIVELBISS, 308 Ill.App.3d 198, 719 N.E.2d 375, 241 Ill.Dec.514 (2nd Dist., 1999)
Court found mother unwilling to facilitate close and continuing relationship between former husband and child; she repeatedly denied him visitation; generated problems to resist visitation and staged confrontations during exchanges in order to videotape them, recruited her then husband (police officer) in scheme and unfounded allegations of sexual abuse all supported change of custody from mother to ROTATING CUSTODY: November -- May with mother and June through October with father for 15 year old girl, plus a visitation schedule, holidays and telephone contact.

Court's witness said change of custody not indicated; found "parental alienation syndrome" by mother against father over child EVEN THOUGH IT WAS NOT INTENTIONALLY DONE BY THE MOTHER; suggested daughter spend 30 days with father AND NO CONTACT BY MOTHER (which she violated), followed by counseling to help the child "extricate herself from her parents' divorce and the way that she had become emotionally entangled in their divorce". When this pattern of interference continued even afterward, Court appointed "conciliator" recommended change of custody and this rotating schedule. No "custody evaluation done" -- rather a "conciliation evaluation" was performed. {NB: Held that this type of evaluation, even if not reviewed by professional organizations, did not result in HAZARD disallowance of testimony.}

Court also found that the mother had "recruited and involved" the child in staging incidences for videotape, but factual basis for same not set forth in appellate decision.

In contrast with effect of videotaping as set forth above:

USE OF AUDIOTAPE IN PROVING ALIENATION CLAIM: ALMQUIST, 299 Ill.App.3d 732, 704 N.E.2d 68, 234 Ill.Dec. 910 (3rd Dist., 1998):
Father on telephone call with 7 year old child, audiotapes the conversation, which is held to be a violation of the law and inadmissible; however, the audiotape recorded the mother's playing of a LOUD PLAYING AUDIOTAPE in the background (a "suicide" tape made 1 ¸ years earlier by the father) -- this occurred on 2 occasions -- and found that the only purpose of the act was to interfere with the father's telephone visitation with the parties' daughter. Mother held in INDIRECT CRIMINAL CONTEMPT and sentenced her to 2 years court supervision. The mother testified that she would tell the daughter to answer the phone when the father's caller id number showed and then she left the room. In her testimony, the daughter played the tape herself.

Alienation not found

HELDEBRANDT, 301 Ill.App.3d 265, 703 N.E.2d 939, 234 Ill.Dec. 839 (4th Dist., 1998):
Parties divorced after 5 children born. For more than a year after divorce, father "did not want to see children" and then tried to initiate visitation. Children resisted. Children testified about fatherâs bad temper, giving specifics on remembered incidents: ripping phone out of wall; throwing things; chasing them with a knife and plastic baseball bat; used belting as punishment; and threatened them with physical punishment. Supervised visitation ordered but father only saw 3 of the 5 children 3 times in 1 ¸ years. After another court modification, and another attempt to visit where children refused to go, father and children did not see each other nor did father attempt visitation. After 3 years, father sought termination of CHILD SUPPORT, although it was modified based upon each parties' changes in income. The court rejected this argument, especially given the circumstances of this case and stated:

To grant James' motion would have the effect of punishing his children for their apparent inability to forgive and forget his outbursts and absences during their childhoods. James never claimed that the mother engaged in egregious behavior designed to interfere with his visitation rights.

MELTON, 288 Ill.App.3d 1084, 681 N.E.2d 1046, 224 Ill.Dec. 425 (5th Dist., 1997)
5 months after joint custody agreement and judgment entered, father filed for change of custody. When mother also sought change, 610(a) standard no longer required and court looked to best interests. Facts which support court's finding that mother on several occasions made immature choices and put her own welfare above that of children not reported. NB: Youngest doing well in school; older daughter with behavioral and learning disabilities told court in camera mother more helpful and understanding of her issues. Custody awarded to father. NO EXACT CLAIM OF ALIENATION.

Alienation claim obstructed by other legal issues

ZUBATY, 288 Ill.App.3d 284, 681 N.E.2d 1, 224 Ill.Dec. 19 (1st Dist., 1997):
Here, the father faced a RURESA (Revised Uniform Reciprocal Enforcement of Support Act) action to get child support, medical coverage and arrears paid. The Floridian mother was awarded support and enforcement as requested. Thereafter, the father sought to have the Illinois court hear his complaints relative to VISITATION INTERFERENCE. This claim was held to be beyond the scope of jurisdiction in a RURESA action. The father would need to go to Florida to seek relief from his concerns.

BLANCHARD, 305 Ill.App.3d 348, 712 N.E.2d 374; 238 Ill.Dec. 652 (2nd Dist., 1999)
Father filed Rule to Show Cause seeking child's return to Illinois when mother moved with child to Georgia. However, divorce judgment allowed relocation from Illinois to Virginia. She did move to Virginia; however, she also moved back to Illinois and left for Georgia without court or father's permission. The timing of all of this is not clear in the decision. HELD: Illinois inconvenient forum and jurisdiction ceded to Georgia per UCCJA.

IN RE PARENTAGE OF: MATTSON (Slauf v. Mattson) 240 Ill. App.3d 993, 608 N.E.2d 1284, 181 Ill.Dec. 810 (2nd Dist., 1993)
Father alleged that mother's attempt to change child's name was "ALIENATING" child from him. Name change not allowed because mother did not meet standard of clear and convincing evidence.

GORDON, 233 Ill.App.3d 517, 599 N.E.2d 1151, 175 Ill.Dec. 137 (1st Dist., 1992)
This case probably has enough of the facts to be an "alienation" case; however, and EX PARTE ORDER of PROTECTION was used to change custody and that was overturned on appeal.


Joy M. Feinberg of Feinberg & Barry, P.C. has practiced family law in Chicago for more than 20 years. She is past-president of the Illinois Chapter of the American Academy of Matrimonial Lawyers. She can be reached at (312) 444-1050. View her firm's Divorce Magazine profile here.

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By Joy M. Feinberg| May 26, 2006
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