In re Marriage of Virgin, 188 N.E.3d 1218

Background

Parties divorced in 2016; dissolution judgment named Justin custodial parent but adopted an agreed, unconventional schedule giving Justin five overnights and Rachael nine overnights over a two-week period while declaring equal parenting time.
Justin moved (2018) to modify parenting time alleging substantial change: concerns about safety/supervision, C.V.’s sleep problems, inconsistent bedtime/routine at Rachael’s, missed medical follow‑ups, and that Justin had become primary caregiver and obtained more flexible work.
Rachael filed for indirect civil contempt, alleging Justin failed to maintain health insurance for C.V. during two multi‑month periods and had not submitted expenses to the carrier; she offered no documentary proof with her petition.
A guardian ad litem (GAL) described an extremely high‑conflict case (orders of protection, DCFS calls, mutual restraining orders); recommended weekly counseling for the child, monthly coparenting counseling, restrictions on inappropriate media and certain third parties, and a parenting schedule that would give Justin more weekday time to address sleep and caretaking continuity.
The trial court found Justin in indirect civil contempt (ordering a purge tied to payment of any costs from lapses, if any) and—separately—modified the parenting schedule to a true 50/50 alternating midweek/weekend rotation, imposed monthly coparenting counseling and a $300 penalty for harassing communications, and barred certain persons from Rachael’s home.
On appeal the court: (1) vacated the contempt finding for lack of proof of an insurance lapse; and (2) reversed the midweek 50/50 parenting order as against the manifest weight of the evidence, remanding with directions to award Justin majority parenting time as C.V.’s primary caretaker and to craft a schedule emphasizing stability (sleep, school, counseling).

Issues

Issue	Plaintiff's Argument (Rachael)	Defendant's Argument (Justin)	Held
Parenting‑time modification	The court’s modified 50/50 schedule was appropriate and in C.V.’s best interests; ancillary remedies (counseling, penalties) address conflict.	The 50/50 midweek swaps are against the manifest weight: high parental animosity, C.V.’s anxiety/sleep/medical needs, and Justin’s role as primary caretaker justify awarding Justin majority time.	Reversed. Appellate court held the alternating 50/50 schedule was not in the child’s best interest given the high conflict and Justin’s primary‑caretaker role; remanded to award Justin majority parenting time and require a stability‑focused schedule.
Indirect civil contempt (insurance)	Justin failed to maintain court‑ordered health insurance for C.V. during specified periods; contempt remedy and repayment appropriate.	Any lapse is speculative; Justin had coverage at the hearing and Rachael presented no proof of incurred costs—insufficient evidence for contempt.	Vacated. Appellate court found Rachael failed to prove a lapse by a preponderance; contempt order was founded on insufficient evidence. Court nonetheless had jurisdiction to review contempt because the parenting order resolving the case was final.

Key Cases Cited

In re Marriage of Bates, 212 Ill. 2d 489 (2004) (appellate deference to trial court custody/parenting determinations)
In re Marriage of Logston, 103 Ill. 2d 266 (1984) (standard for reviewing indirect civil contempt findings)
In re Marriage of Swanson, 275 Ill. App. 3d 519 (1995) (criticizing rotating custody that shifts children frequently between homes)
In re Marriage of Oros, 256 Ill. App. 3d 167 (1994) (reversing custody orders that rotate the child and disrupt stability)
In re Marriage of Tatham, 293 Ill. App. 3d 471 (1997) (definition and effect of civil contempt in family contexts)
In re Marriage of Charous, 368 Ill. App. 3d 99 (2006) (burden on petitioner to prove contempt by a preponderance)
Engle v. Foley & Lardner, 393 Ill. App. 3d 838 (2009) (appellate court will not sift the record for unsupported factual claims)