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Court rules on confidentiality under 604(b) of Marriage Act
[2011-04-24]
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Copyright (c) 2011 by Law Bulletin Publishing Company
February 28, 2011 Volume: 157 Issue: 40
Court rules on confidentiality under 604(b) of marriage act
By Sarah Zavala
Special to the Law Bulletin
The Illinois Supreme Court ruled Friday that information obtained under section 604(b) of the Illinois Marriage and Dissolution of Marriage Act is not confidential.
The high court ruled 5-1 with Chief Justice Thomas L. Kilbride dissenting. Justice Mary Jane Theis did not take part in the ruling because she was on the 1st District Appellate Court at the time.
Heather Johnston v. Andrew Weil, arose from two separate child custody proceedings, involving Johnston and her two children whom have separate fathers.
Sean McCann sought custody after his son was taken to the hospital with bruises. The Department of Child Family Services was contacted to carry out an investigation.
McCann filed a post-dissolution petition to change the joint parenting agreement.
The circuit court appointed a psychiatrist to conduct interviews and make a report pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/604 (b).
At the same time, defendant Andrew Weil also wanted custody of his daughter and filed a motion to subpoena the psychiatrist.
Johnston argued that the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) protected the psychiatrist's report and that the evaluation only affected McCann.
In 2006, the Cook County Circuit Court found that the psychiatrist's section 604(b) report in the McCann proceeding was privileged under the Mental Health and Developmental Disabilities Confidentiality Act and not applicable in the Weil proceeding.
In 2007, Johnston filed a complaint seeking $200,000 in damages under the Confidentiality Act, against her first and second ex-husbands and their attorneys.
The Cook County Circuit Court issued the following question to the 1st District Appellate Court: "Whether evaluations, communications, reports, and information obtained pursuant to Section 750 ILCS 5/604(b) of the Illinois Marriage and Dissolution of Marriage Act are confidential under the Mental Health and Development Disabilities Confidentiality Act, 740 ILCS 110/1 et seq. where the 604(b) professional person is a psychiatrist or other mental health care professional."
The majority of the high court agreed with the appellate court and answered "no" to the question. The high court remanded the case to the circuit court for further proceedings.
Justice Charles E. Freeman wrote the majority opinion saying that "the certified question does not represent the full range of issues presented in this case."
The majority of the high court rejected Johnston's argument that the information obtained from the psychiatrist was confidential under the Confidentiality Act.
Freeman said the Confidentiality Act does not apply because the psychiatrist and the plaintiff were not engaged in a therapeutic relationship.
Freeman added, "A custody evaluation pursuant to section 604(b) of the Marriage Act does not constitute psychiatric services received for a mental condition."
However, the majority of the high court agreed with her argument that section 604(b) restricts disclosure of the psychiatrist's report to the McCann proceeding.
Kilbride said he agrees with the majority's observation that 604(b) promotes thorough consideration of a child's best interest and the need for the information in child custody proceedings.
However, he added, "I strongly disagree with the majority's final determination that mental health information in court-ordered report under section 604(b) can never be confidential under the Confidentiality Act."
Joseph T. Monahan, who represented Weil, of Monahan & Cohen, said this was an important issue and he was not surprised by the decision.
Monahan said he agrees with the dissent that the information is very private. However, because 604(b) experts are not therapists and they are the court's witness, then they have the duty to share that information.
Johnston's attorney Miriam F. Solo said she was upset with the decision, but no further action will be taken.
"I would caution attorneys to be real careful," Solo said. "Now anyone can take this information."
Paul L. Feinstein submitted amicus curiae on behalf of the American Academy of Matrimonial Lawyers. Feinstein said it is a tough issue but he is not surprised by the decision.
This case Heather Johnston v. Andrew Weil, is No. 109639.
STATUTE FREEZING ASSETS DURING DIVORCES FOUND UNCONSTITUTIONAL
[2011-04-24]
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Copr. (C) West 2000 No Claim to Orig. U.S. Govt. Works
9/23/93 CHIDLB 1
9/23/93 Chi. Daily L. Bull. 1
Chicago Daily Law Bulletin
Volume 139, No. 186
Copyright (c) 1993 by Law Bulletin Publishing Company
September 23, 1993
STATUTE FREEZING ASSETS DURING DIVORCES FOUND UNCONSTITUTIONAL
David Bailey
Law Bulletin staff writer
An "excessively broad" state statute freezing marital assets during divorce proceedings could affect non‑marital property as well and is unconstitutional, the Illinois Supreme Court ruled Thursday.
The justices without dissent found that the Illinois Marriage and Dissolution Act's provision restraining the parties in a divorce proceeding from transferring or disposing of property without a court order violates substantive due process.
In affirming Cook County Circuit Judge Arthur L. Dunne's ruling, the justices found that the provision "far exceeds providing notice of extraordinary expenditures or transactions."
"In enacting section 501.1(a)(1), the legislature has sought to prevent the dissipation and concealment of marital assets once proceedings have begun to dissolve a marriage," Justice Moses W. Harrison II wrote.
"In attempting to accomplish this purpose, however, the legislature has imposed upon parties to the dissolution of marriage a stay that restrains them from the disposition of not only marital assets but also property to which the other spouse can lay no claim upon the division of 'marital property,' " Harrison wrote.
"By virtue of the excessively broad sweep of this section to include a restraint affecting property that cannot be considered in any way a marital asset, the means adopted by the legislature is not a rational means of accomplishing its purpose," Harrison wrote.
The new provision took effect on Jan. 1, requiring a stay of all assets, marital and non‑marital, upon the service of a summons, petition or order under the act or on the filing of the respondent's first appearance. Outside of reasonable costs, the stay enjoins the parties from expending assets until a final judgment is entered, the proceedings are dismissed or a court order is entered.
Plaintiff Carrie Messenger challenged the validity of the new provision shortly after it took effect on Jan. 1. Dunne heard arguments on an accelerated basis and ruled the provision unconstitutional in February.
The Illinois attorney general appealed and briefs supporting the provision were filed by the Illinois State Bar Association and the American Academy of Matrimonial Lawyers.
Chicago divorce attorney Paul L. Feinstein, who represented Messenger, said he would seek to overturn similar laws in California and Arizona on constitutional grounds.
David H. Hopkins, who prepared the amicus curiae brief for the ISBA, said he was "absolutely stunned" by the Supreme Court's ruling.
"The dissolution action stay is one of the finest developments in divorce law and the product of about five or six years of work by the organized matrimonial bar," said Hopkins of Schiller, DuCanto & Fleck.
Hopkins said that the Supreme Court ignored the statutory consequences of extraordinary transfers of money and that the dissolution act specifically provides that disposition of non‑marital property is taken into account when dividing a marital estate.
The stay provision was to expose the possible transfer of assets to allow the opposing party the opportunity to object under traditional injunction principles, Hopkins said.
"Both parties should be equipped with the same information, equality in terms of knowledge about what is going on," Hopkins said.
Hopkins said the organized bar will try to fix the problems "the Supreme Court seems to believe exists" in the provision.
"The goals are too important to be cast aside because of this ruling," Hopkins said.
On appeal, the state contended that Messenger had no standing to file the challenge, nor did the provision deprive her of property without due process of law. The act merely acted as a notice provision, according to the defendants.
The justices found, however, that Messenger had sustained a direct injury to a legal interest that could be addressed by granting the relief she requested.
"Had the legislature wished merely to require that a party to an action for dissolution provide notice of an extraordinary expenditure or transaction, it could have achieved that end by omitting much of section 501.1(a)(1)," Harrison wrote.
The act's provisions that restrain people from abusing their spouse or minor children and that prohibit either party from removing a minor child from Illinois or concealing the child from the other party were not challenged.
Assistant Attorney General Jennifer A. Keller represented the state in the Supreme Court case. Carrie Messenger v. Edgar, et al., No. 75132.
9/23/93 CHIDLB 1
Copyright 1999 Chicago Sun Times
[2011-04-24]
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(C) No Claim to Orig. U.S. Govt. Works
Chicago Sun‑Times
Copyright 1999
Friday, August 20, 1999
NEWS
SNEED
Michael Sneed
It's a shocker! . . .
A prominent Chicago oral surgeon . . . . is in Cook
County jail today for failure to pay $92,104.96 in child support for his six children . . . ages 5 to 15.
(The doctor), who has offices in Chicago and the suburbs, was drilled Thursday by Divorce Court Judge Veronica Mathein, who ordered (the doctor) jailed indefinitely until he produces a cashier's or certified check for the total.
(The doctor), who divorced wife . . . in 1997, is under court order to pay $14,000 a month. Her attorney, … … … Paul Feinstein, charged in court that (the doctor)once had an income of $1.7 million a year. . .
Unable to pay the back support by the 4 p.m. Thursday deadline
imposed by the judge, (the doctor) was sent to Cook County Jail, where he spent the night.
Got any Novocain?
OFFICIALS WEIGH APPEAL OF DIVORCE PROGRAM RULING
[2011-04-24]
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Copr. (C) West 2000 No Claim to Orig. U.S. Govt. Works
Chicago Daily Law Bulletin
Volume 140, No. 161
Copyright (c) 1994 by Law Bulletin Publishing Company
August 17, 1994
OFFICIALS WEIGH APPEAL OF DIVORCE‑PROGRAM RULING
David Bailey
Law Bulletin staff writer
Cook County Circuit Court officials are considering whether to appeal a ruling that has stopped operation of a mandatory education program for divorcing parents, a spokesman for the Illinois attorney general said Wednesday.
"There has been no decision whether to appeal," said Al Manning, spokesman for Attorney General Roland Burris. The attorney general represents Domestic Relations Presiding Judge Benjamin S. Mackoff in the challenge to his four‑ month‑old program "Focus on Children."
The program requires all parents with minor children who are seeking a divorce in Cook County to pay a $25 fee and attend a four‑hour program on how to raise their children as single parents. It emphasizes not involving children in the marital problems by asking them to take sides or act as spies.
The matrimonial law firm of . . . . Feinstein challenged the program's constitutionality shortly after it took effect in April through Cook County Rule 13.9.
Chancery Judge Lester D. Foreman enjoined the Circuit Court from enforcing the mandatory program on Friday afternoon.
"It was unquestionably the Circuit Court's motive to assist children and single parents in enacting and energizing the program that became 'Focus on Children,' " Foreman wrote in an eight‑page opinion. "The need has been ever present and the court system responded to the need."
Despite its "laudable public purpose," the rule's origin and constitutionality must be scrutinized, he added.
"A suitor seeking dissolution of marriage has a menu prescribed by statute and properly need only satisfy those substantive criteria prescribed by statute to obtain relief," Foreman wrote. "Circuit Court Rule 13.9, in addition to the payment of a fee over and above the original filing fee adds a mandatory substantive step as a legal requirement. Specifically, it requires the participation in the Focus on Children program. Such is constitutionally impermissible regardless of how beneficially motivated and humanely conceived."
Feinstein contended in the class‑action lawsuit that Nancy Schulp needed no parenting update to prepare her for the divorce. They contended that the state Constitution confers only limited authority to the chief judge of a circuit court and does not allow for a mandatory program or added fees.
They also contended that the program violated the Illinois Marriage and Dissolution of Marriage Act, which simply allows a trial court to require a specific parent to attend a program if it is in the best interests of a child, but does not mandate that all parents attend a class.
Mackoff contended that the rule fell within the court's rule‑making power as part of its duty to protect children of divorcing parents. He also contended that the marriage act specifically allows for the rule to create the program.
"Mackoff, however, cannot ascertain the situation of every child whose parents are undergoing a divorce in Cook County," Foreman wrote. "The simple fact is that an individual determination is impossible at that level.
"Rather, Mackoff has removed an element of discretion from the trial judge and imposed an additional mandatory requirement upon persons seeking dissolution of marriage who have minor children," Foreman wrote.
Foreman also wrote that allowing local rules to add more steps to meet the needed remedy would create instability in the courts.
"Were circuit courts enabled to effect substantive law, the access to a given remedy would be dependent upon which circuit court is being addressed within the state," Foreman wrote. "This would be a malady striking at our desire for legal uniformity with respect to the statutory provisions enacted by our legislators."
The lawsuit named Circuit Court Clerk Aurelia Pucinski as a defendant also. Pucinski's office, which had been collecting the fees for the program, took no position in the lawsuit.
"We still think it is a good idea to have a program, but we will follow whatever law is established," said Carolyn Barry, spokeswoman for Pucinski.
Assistant Attorney General Mitchell B. Katten represented Mackoff.
Nancy Schulp v. Benjamin S. Mackoff and Aurelia Pucinski, No. 94 CH 3853.
Psychobabble or a legitimate, legal basis for child custody
[2011-03-27]
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Psychobabble or a legitimate, legal basis for child custody
By Charles Keeshan Daily Herald Staff Writer
Posted Sunday, November 14, 2004
The first time Norma Perez learned she was being accused of "parental alienation syndrome," she shrugged it off.
The idea that one parent could turn a child against the other might be true, the Elgin resident figured, but it certainly did not apply to her.
A year later, a DuPage County judge ruled otherwise.
Declaring that the mental, emotional and physical health of her 10-year-old daughter was endangered by her mother's behavior, Judge James J. Konetski stripped Perez of custody and handed the girl over to her father without giving her a chance to say goodbye to mom.
"I'm not a perfect person, but I know I didn't do the things they said I did," Perez said.
"I fought for my daughter," she said. "If we don't, we risk losing our children, and if we do, we're called alienators."
Robert G. Black, the attorney for Perez's former husband, R. Edward Bates, said the label fits in this case.
"The evidence showed she did not foster a close loving relationship between the child and father," Black said. "In fact, she totally alienated the child from her father."
Perez is just one of many mothers across the suburbs, and hundreds nationwide, to lose custody of their children based on parental alienation syndrome, a theory that stirs passionate debate in the mental health and legal communities almost two decades after its advent.
The concept, proffered by New Jersey psychiatrist Richard Gardner in 1985, holds that in some cases a custodial parent can poison a child's mind against the other parent, causing that child to have a disrespectful and antagonistic relationship with the other parent.
Gardner's work has launched intense arguments both pro and con in psychological publications, legal journals and courtrooms across the country.
Some dismiss the theory as junk science or pop psychology that lacks research to support it. Others say Gardner's work is not only valid but a long-overdue examination of an insidious form of child abuse.
That debate took place most recently within the Illinois Supreme Court, where justices hearing Perez's case were asked to decide whether testimony about the syndrome belongs in state courtrooms.
The court provided no clear answer to that question in an Oct. 28 decision. But in denying Perez's request to regain custody of her daughter, justices encouraged more challenges of the syndrome's legitimacy.
"We note that PAS is now the subject of legal and professional criticism, and our holding in this case does not foreclose further challenges to the validity or general acceptance of that concept," Justice Thomas L. Kilbride stated.
Discovery and debate
Gardner was working as a professor of child psychiatry at his alma mater, Columbia University in New York, when he began documenting cases in which children in the midst of a custody dispute began showing hostile behavior toward a parent with no clear reason, according to his biography.
He declared the behavior "parental alienation syndrome" and established a set of eight symptoms, including denigration of the alienated parent, lack of guilt over cruelty to that parent and unflinching support for the other parent.
Before his suicide last year, Gardner wrote at length on the subject and testified about it in hundreds of divorce cases across the country. One of those cases was Perez's, in which he issued a finding of parental alienation syndrome despite never interviewing Perez or her daughter.
His self-published 1992 book, "The Parental Alienation Syndrome: A Guide for Legal and Mental Health Professionals," is considered the definitive guide to the theory.
His ideas launched a legion of followers in the legal and mental health professions.
Among them is Douglas Darnall, a Youngstown, Ohio, psychiatrist who wrote a book on the issue called "Divorce Casualties." He also operates a Web site, found at www.parentalalienation.com.
Darnall said cases of parental alienation syndrome are rare but real.
"It should be used in court because it does describe a legitimate pattern of behavior that does have an impact on a child and a parent/child relationship," he said. "Most judges want to listen to the evidence, and most judges accept it."
But for all the followers Gardner's ideas have spawned, they have created at least as many critics.
One of them, Dr. Paul Fink of Temple University's School of Medicine, called the theory dangerous.
"It was made up by one guy who spread it around," said Fink, who is past president of the American Psychiatric Association. "No investigation was done, there was no research, and it's hurt a lot of women and children."
Detractors note Gardner's work is not recognized by the APA's Diagnostic and Statistical Manual, the Bible of the psychiatric profession.
"It has generally been denounced," said David Finn, a counselor from Rolling Meadows who performs court-ordered child custody evaluations. "It's never been accepted as a valid syndrome, and the research has not been there to support it.
"The presumption is that the alienation is because of the parent," Finn said. "While that may be part of the reason in some instances, it is not an evaluation of all the reasons why it might exist."
Critics of the theory say one parent can cause resentment in a child toward the other parent. But those feelings are usually temporary and never rise to the level of a syndrome or mental disorder, as Gardner claims.
Darnall, however, believes the theory may soon get APA recognition. New research, he said, indicates Gardner's findings may be more correct than many critics believe and could get it into the next edition of the Diagnostic and Statistical Manual.
Fink scoffed at the suggestion.
"It won't be in there, I guarantee you," he said. "Since there has been no verification, no research, it's not getting in there."
From an idea to court
Gardner's theories have yet to receive official recognition in the industry, but family law attorneys have been using them for years, most often on behalf of fathers hoping to gain custody.
Annette Zender, a Woodstock resident who lost custody of her daughter three years after a Lake County judge sided with alienation claims against her, likens it to legal kidnapping.
"When they can't find any other excuse, they come up with parental alienation and it works," she said.
Since losing her daughter, Zender has built a network of suburban women who share similar stories. So far, she said, the group numbers more than 70 from Lake, Cook, Kane, McHenry and Will counties.
While groups like Zender's want to see the syndrome, known as PAS, barred from the courtroom, fathers' rights organizations support Gardner's work, saying it can provide balance in a family court system that assumes mothers should always get custody.
"Parental alienation occurs, unfortunately," said Michael McCormick, executive director of the American Coalition for Fathers and Children. "We have seen parental alienation be adopted in numerous courtrooms across the country as a valid science."
Whether that should be the case is something people on both sides thought the Illinois Supreme Court would answer in the Perez case.
While that did not happen, Perez attorney Paul Feinstein said the court's offer to hear more cases on the issue is a promising sign for PAS opponents.
"They weren't impressed with it and that's why they invited more challenges to it," Feinstein said. "I think this is pretty much the end of it."
© 2004 Daily Herald, Paddock Publications, Inc.