2013 IL App (5th) 120375
Ill. App. Ct.2013Background
- Holly Agers (petitioner) received sole custody of daughter S.A.; Lee Agers (respondent) received visitation, including overnight visits in Tennessee, per dissolution judgment.
- Petitioner unilaterally stopped visitation after allegations that respondent sexually abused S.A.; petitioner filed to terminate visitation and for an in camera interview; respondent filed for rule to show cause and modification of visitation.
- DCFS initially credited a hotline report but later issued an unfounded report for lack of jurisdiction; no criminal indictment resulted and no medical corroboration was presented.
- Trial court held a multi-day evidentiary hearing; child did not testify; testimony included petitioner, relatives, and S.A.’s therapist (hired by petitioner); a VHS tape of courthouse visitation was admitted for a limited purpose.
- Trial court found the child’s out-of-court statements admissible under 750 ILCS 5/606(e) but uncorroborated and therefore insufficient to support termination of visitation; denied in camera interview; found petitioner in contempt for willfully withholding visitation and ordered her to pay $1,500 of respondent’s attorney fees.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Admissibility/weight of child’s out-of-court statements | Court should rely on child’s statements to terminate visitation | Statements are hearsay, potentially coached; insufficient without corroboration | Statements admissible under 750 ILCS 5/606(e) but uncorroborated and insufficient to find abuse; trial court did not abuse discretion |
| Admission of videotape of courthouse visit | Tape improperly authenticated; prejudicial | Tape relevant to show child was not fearful; limit use to observing interaction | Tape admissible for limited purpose (child’s demeanor/interactions); exclusion of child’s spoken statements was correct; no abuse of discretion |
| Denial of in camera interview of child | Needed to hear child’s account in camera | In camera unnecessary; child’s wishes not the asserted purpose; potential prejudice | Denial proper; trial court reasonably concluded petitioner sought substance of abuse allegations rather than child’s visitation preference; no abuse of discretion |
| Contempt and attorney fees award | Withholding visitation was justified to protect child; fees improper | Petitioner willfully violated court order; fees mandatory when order violated without justification | Trial court reasonably found willful contempt, denied termination petition, and properly awarded $1,500 of respondent’s fees; no abuse of discretion |
Key Cases Cited
- First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (appellate review can proceed without appellee’s brief when record is straightforward)
- In re A.P., 179 Ill. 2d 184 (corroboration requires independent evidence making abuse more probable)
- In re Marriage of Rudd, 293 Ill. App. 3d 367 (admissibility of evidence reviewed for abuse of discretion)
- In re Marriage of Willis, 234 Ill. App. 3d 156 (trial court discretion on in camera child interviews)
- Schwartz v. Cortelloni, 177 Ill. 2d 166 (abuse of discretion standard explained)
- In re Marriage of Johnson, 245 Ill. App. 3d 545 (discretion on interviewing child in custody matters)
- In re Marriage of Baggett, 281 Ill. App. 3d 34 (attorney fees mandatory when party willfully violates court order)
- In re Marriage of Simmons, 221 Ill. App. 3d 89 (deference to trial court on child custody factfinding)