In re Marriage of Wendy L. D. , 2017 IL App (1st) 160098 ( 2017 )

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In re Marriage of Wendy L.D., 2017 IL App (1st) 160098Appellate Court In re Marriage of WENDY L.D., n/k/a WENDY L.S., Petitioner-
Caption Appellant, and GEORGE T.D. III, Respondent-Appellee.
District & No. First District, Sixth Division
Docket No. 1-16-0098
Filed February 10, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 08-D-010469; the
Review Hon. Naomi Schuster, Judge, presiding.
Judgment Affirmed; sanctions denied.
Counsel on Grund & Leavitt, P.C., of Chicago (Marvin J. Leavitt, David C.
Appeal Adams, and Jody Meyer Yazici, of counsel), for appellant.
George T.D. III, appellee pro se.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Rochford and Delort concurred in the judgment and opinion.
OPINION
¶1 Petitioner-Appellant Wendy L.D., n/k/a Wendy L.S. (Wendy), appeals from the
December 31, 2015 order awarding custody of the parties’ children to respondent-appellee
George T.D. III (George). For the following reasons, we affirm the ruling of the circuit court
of Cook County.
¶2 BACKGROUND
¶3 The parties were married in 2001. The parties had three children (the children): G.D.,
born in October 2002; R.D., born in November 2003; and B.D., born in August 2006.
Notably, all three of the children have been found to have emotional problems. Further, both
R.D. and B.D. have a record of behavioral problems and have been diagnosed with disruptive
mood dysregulation disorder and oppositional defiant disorder, respectively.
¶4 Wendy filed for divorce in 2008. On September 28, 2010, the circuit court entered a
custody judgment awarding Wendy sole custody of the children (the custody judgment). The
custody judgment provided that the children’s primary residence would be with Wendy, but
granted George parenting time each Tuesday afternoon through Wednesday morning, as well
as alternating weekends.
¶5 A “summer vacation time” provision of the custody judgment specified that each parent
would have at least two uninterrupted weeks of time with the children during their summer
recess from school, and that, if there was an extra week or more of summer recess in which
the children were not enrolled in camp, such days would be split evenly between George and
Wendy.
¶6 The custody judgment recited that the parties agreed to “consult with each other
concerning major health and education matters with a view to arriving at a harmonious
policy” but that, if they were unable to reach an agreement, Wendy shall have ultimate
decision-making authority. The judgment specified that both parents were permitted to attend
the children’s regular medical appointments and that Wendy was to use her best efforts to
inform George of medical appointments in advance.
¶7 The custody judgment acknowledged Wendy’s intent for the children to attend North
Shore Country Day School (NSCD), a private school, and specified that both parents had the
right to attend school-related events. In a separate provision, the parties agreed to confer
about “any disciplinary or behavioral problems *** with the goal of maintaining a united
front to the children in matters of discipline.”
¶8 The custody judgment also provided that “Each parent shall encourage the children to
have a warm and loving relationship with the other parent.” The parties agreed not to
disparage the other parent to the children or to “attempt to curry favor with the children to the
detriment of the other parent.”
¶9 The parties agreed that the children would be raised in accordance with George’s Roman
Catholic faith, but specified that they would not be required to participate in religious
activities during Wendy’s parenting time except for certain one-time events, such as
confirmation.
¶ 10 The parties were divorced in October 2010 in an order that incorporated the custody
judgment.
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¶ 11 In October 2011, the court entered an “Agreed Order Amending and Supplementing
Custody Agreement” (the October 2011 order), which modified the custody judgment
provisions concerning parenting time during summer vacation. The October 2011 order
specified that, in the event that the children’s summer vacation included an extra week or
more when the children were not in camp, George “shall have the first half of any extra full
week or more and Wendy shall have the second half” and that “the exchange between the
parties shall occur at 12:00 p.m. if there are an odd number of days or 5:30 p.m. *** if there
is an even number of days, such that each party receives an equal allocation of time.” The
October 2011 order also added that “Wendy shall have the children in all years from the day
that school lets out until 9:00 a.m. on the Saturday following the dismissal of school for
summer recess.” The October 2011 order otherwise provided that “All other terms and
provisions of the September 2010 Custody Agreement shall remain in full force and effect.”
¶ 12 In October 2012, George filed a petition to modify the custody judgment pursuant to
section 610 of the Illinois Marriage and Dissolution of Marriage Act (Act), claiming that
changed circumstances warranted a modification of the custody judgment to award him sole
custody. See 750 ILCS 5/610 (West 2014). George’s petition claimed that since the custody
judgment, Wendy had engaged in “increasingly bizarre and erratic” behavior and “a
relentless campaign to alienate the children” from George.
¶ 13 Among other acts, George claimed that on three occasions in 2012, Wendy had made
false allegations of abuse against him, leading to unnecessary investigations by police and the
Illinois Department of Children and Family Services (DCFS). Although each DCFS
investigation was deemed to be “unfounded,” George claimed Wendy had misrepresented
these DCFS investigations to the children’s medical personnel and teachers. George also
claimed Wendy had repeatedly made “bizarre and unnecessary calls” to police that caused
mental anguish to the children and disrupted his parenting time.
¶ 14 George also claimed Wendy had refused to communicate with him regarding the
scheduling of medical appointments, school meetings, and other activities, and had requested
that medical providers not allow George to attend medical appointments. The petition also
alleged that Wendy refused to participate in family therapy, against the recommendation of
the children’s school.
¶ 15 George’s petition further claimed that the changed circumstances of the children
supported custody modification, insofar as all three children now suffered “emotional
problems,” and that R.D. and B.D. had behavioral problems, which had led to R.D.’s
expulsion from NSCD in 2011. The petition sought sole custody, claiming Wendy’s
animosity toward George prevented her from encouraging a close relationship between the
children and their father.
¶ 16 In March 2013, the court appointed Dr. Louis Kraus to conduct an evaluation of the
family pursuant to section 604(b) of the Act (750 ILCS 5/604(b) (West 2012)). Over several
months, Dr. Kraus conducted numerous interviews with George, Wendy, and the children, as
well as various other medical professionals and school personnel.
¶ 17 Dr. Kraus completed his evaluation over a year later, in a report dated May 22, 2014 (the
May 2014 report). Dr. Kraus noted this was the longest it had taken him to complete an
evaluation, as he had reviewed “the most voluminous amount of information ever given to
me for an evaluation.”
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¶ 18 The May 2014 report detailed a history of abuse allegations by Wendy against George,
occurring both before and after the 2008 divorce and 2010 custody judgment, none of which
could be substantiated. According to the May 2014 report, Wendy claimed that George “had
been physically and emotionally abusive to the children and to her” during the marriage and
that she was fearful of George. Wendy reported to Dr. Kraus several incidents of threatening
behavior by George in the months leading up to her filing for divorce in October 2008,
including claims that he attempted to hit her with a car in August 2008. She claimed that in
December 2008, George had pointed a box cutter at her and “angrily thrust the blade”
through a sofa, in the presence of the children. George denied these acts and told Dr. Kraus
that Wendy’s behavior in the time period was “paranoid.”
¶ 19 In January 2009, George was served with an ex parte order of protection. The order of
protection was withdrawn on January 27, 2009. According to the May 2014 report, Wendy
told Dr. Kraus that she agreed to withdraw the order of protection based on George’s
representation that he would stay away from her. According to George, the order of
protection had been withdrawn during a hearing at the urging of the court, as the court
presiding over the matter found Wendy’s allegations to be “absurd.” George claimed that the
order of protection was not based on any actual threat by him, but that Wendy simply wanted
to force him to leave the marital home.
¶ 20 Over several years, on a number of occasions, Wendy’s allegations of abuse led to
investigations by police or DCFS, none of which resulted in findings of wrongdoing by
George. For example, in February 2, 2009, “there was an event where [R.D.] was kicking the
front seat of the car and that George reported pushing his leg down, although [R.D.] said he
had hit his leg. Wendy described this as a sprained knee and that R.D. was unable to walk.”
Dr. Kraus’s May 2014 report noted that police and medical records from the incident
indicated that (contrary to Wendy’s claim), R.D. had no sign of injury and was able to walk.
The May 2014 report also states that the DCFS investigator “noted in her report that [Wendy]
had lied to her.”
¶ 21 On another occasion, in April 2012, a DCFS investigation was prompted by an incident
where Wendy “walked into [R.D.’s] school saying that [R.D.] had a horrible weekend with
his father.” According to DCFS, the school principal reported that R.D. “mentioned
something happened with [George] during visitation but the special education teacher does
not believe that [R.D.] is being truthful,” since R.D. “was using [Wendy’s] language and did
not seem authentic.”
¶ 22 Dr. Kraus’s May 2014 report emphasized that, although there were numerous other
alleged incidents, “there are no DCFS findings other than unfounded, only allegations which
were not supported.” The May 2014 report states: “The allegations of abuse have stemmed
now for years. When one attempts to actually substantiate these *** there really is not clear
support of what [Wendy] is saying.”
¶ 23 Apart from the allegations of abuse, the May 2014 report describes numerous conflicts
after the October 2010 dissolution of marriage, including conflict over Wendy’s alleged
efforts to exclude George from meetings with the children’s teachers and medical
professionals. George reported that Wendy did not consistently let him know when
appointments were scheduled, or that she scheduled appointments at times when she knew he
would be working.
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¶ 24 This issue was highlighted by R.D. and B.D.’s mental health issues and related
behavioral difficulties, such as refusing to go to school, throwing tantrums, swearing, and
threatening school personnel. These problems led to R.D. being removed from NSCD in
December 2011. B.D.’s behavioral issues subsequently led to Wendy’s decision to remove
him from NSCD in January 2014. As of May 2014, both R.D. and B.D. went to North Shore
Academy (NSA), a public special education school for students with emotional and
behavioral problems.
¶ 25 The May 2014 report found that Wendy had requested George’s exclusion on at least one
occasion. In January 2012, following his removal from NSCD, R.D. was admitted in a “day
hospital setting” at Alexian Brothers Behavioral Health Hospital (Alexian Brothers). The
record includes an Alexian Brothers form completed by Wendy in January 2012, in which
she blamed R.D.’s behavioral problems on his “bad relationship with his father” and averred
that George’s “parenting style is authoritarian which has been hard on [R.D.] physically and
psychologically.” In that form, Wendy also reported to Alexian Brothers that George’s
“behavior has also been very tough on his mom who was granted a protective order against
him.”
¶ 26 A June 2012 affidavit from an administrator at Alexian Brothers stated that George had
been excluded from group therapy sessions at Alexian Brothers, at Wendy’s request. Dr.
Kraus’s May 2014 report opined that Wendy had “use[d] the argument that she was fearful of
[George] as a way to keep him away from medical and psychological services for the
children.”
¶ 27 The May 2014 report also noted conflicts arising from Wendy’s resistance to begin
family therapy or to locate additional individual therapists for the children. In April 2013
(approximately six months after filing his petition to change custody), George filed a petition
for family therapy, which had been offered by NSA. The court eventually entered an order on
August 1, 2014, appointing Michael Wagrowski, a therapist at NSA, to provide family
therapy. Although Wagrowski worked with R.D. and B.D. individually, the family therapy
did not occur. Dr. Kraus’s subsequent October 2014 report acknowledged that Wendy “did
not want family therapy through [NSA]” and “It’s unclear whether or not she actually wanted
family therapy.”
¶ 28 Separately, although NSCD had recommended on October 9, 2013 that B.D. see
psychiatrist Dr. Louis Weiss, Wendy did not set up any appointments until George filed an
emergency motion on November 25, 2013, resulting in a court order on December 12, 2013,
directing her to do so. The May 2014 report also noted that Dr. Kraus thought counseling
with both parents would be helpful, but that Wendy was not interested.
¶ 29 In addition, Dr. Kraus’s May 2014 report noted a conflict as to whether Wendy had failed
to support the children’s Catholic religious upbringing, as had been agreed to in the custody
judgment.
¶ 30 Dr. Kraus’ May 2014 report found that both parents were capable and that all three
children had “positive relationships” with their mother. However, the May 2014 report
opined that “her behaviors are having a negative impact on not only the children’s
relationship with their father, but on the children.”
¶ 31 The May 2014 report found that George had shown “he has the capability of parenting
and making key decisions for the children,” noting that Wendy “would likely have that
ability if she wasn’t as focused on villainizing” George. Dr. Kraus noted: “I have strong
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concern over [Wendy’s] ability to encourage a relationship between [the] children and their
father.” He opined that “Wendy has not done a good job in regard to being the sole decision
maker for the children.” Although she had done a “reasonable job” in regard to educational
decisions, Dr. Kraus opined she “had some difficulty regarding mental health intervention
*** in a collaborative way” with George, and found some “resistance on her part to
acknowledge some of the mental health concerns of the children.”
¶ 32 Dr. Kraus opined that overall George was “more consistent” in working with the
children’s caregivers and educators, and that George “has a greater capacity to encourage a
relationship with the other parent.” The May 2014 report recommended a “50:50 split of
residential time” but opined that George should have custody with respect to major health
and educational decisions.
¶ 33 Michael Bender was appointed as the children’s representative in July 2014. At his
request, the court entered an order calling for Dr. Kraus to update his May 2014 report. After
conducting additional interviews with the parents in September 2014, Dr. Kraus submitted
his updated report, dated October 8, 2014 (the October 2014 report).
¶ 34 The October 2014 report described an improved attitude by Wendy. Wendy had now
admitted “that George had never been physically abusive to her” and “she does not feel he is
any type of risk to the children.” She also told Dr. Kraus that she “felt that both she and
George were great parents” and that “her intention was not to exclude George, but
understood how one can perceive the issue that way.”
¶ 35 According to the October 2014 report, Wendy acknowledged “for the first time that her
behaviors have, in part, negatively impacted the situation.” Dr. Kraus reported that he had
spoken with Wagrowski at NSA, who “reported that both parents have been working far
more consistently with each other, have come to school meetings and have been less
argumentative.”
¶ 36 The October 2014 report noted George’s “skepticism” that Wendy was “only acting in
this idealized way because they are approaching trial” and that she had been “coached” as to
what she should say. Dr. Kraus recognized “there could be some truth to what George’s
concerns are” but he opined that Wendy had genuinely shown improvement in cooperating
with George.
¶ 37 However, the October 2014 report stated that conflicts had continued between the
parents. George reported to Dr. Kraus that “several times there was a new program or a
person involved in the treatment team [and] somehow there would be a new allegation of
child abuse, repeating old history as far back as 2009.” The October 2014 report states that
“Wendy acknowledged this somewhat as the case, but said that there had been no reports to
DCFS *** since 2012.”
¶ 38 The October 2014 report also indicated that Wendy recently had begun individual
therapy, and that she had contacted a behavioralist to work with the family, as previously
recommended by Dr. Kraus.
¶ 39 Dr. Kraus opined that “even though it’s taken a while, I believe that Wendy understands”
and her behavior had changed “not necessarily because of the court case at hand although
that may have been the precipitant. She is seeing that her prior behaviors may have
negatively impacted the children and more important, her current behaviors have shown to be
positive.”
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¶ 40 The October 2014 report concluded that, with “certain caveats,” Dr. Kraus now
recommended (unlike his May 2014 report) that Wendy retain sole custody of the children.
Among the caveats, the October 2014 report recommended that George should have more
time with the children and that there should be joint participation by the parents in medical
and educational appointments. He also recommended individual therapy for both parents and
family therapy. Dr. Kraus emphasized that “things cannot return to where they were” and that
he would “support revisiting my prior recommendations” if Wendy resumed making
“unfounded allegations” or “attempts at removing George from involvement with the
children.”
¶ 41 In addition to Dr. Kraus’s reports, the court granted Wendy’s request to submit a custody
evaluation from her expert witness, Dr. Alan Ravitz, a child psychiatrist. Dr. Ravitz issued
his custody evaluation on September 24, 2014, which was not entered into evidence,
although he later testified at trial about his conclusions.
¶ 42 The court conducted a trial on George’s petition between October 2014 and August 3,
2015, including over 30 days of testimony. George, who is not an attorney, represented
himself at trial. In addition to offering his own testimony, George called Dr. Kraus and
several other witnesses.
¶ 43 On questioning by George, Dr. Kraus agreed that Wendy first expressed her changed
attitude in meetings with Dr. Kraus in September 2014. Dr. Kraus agreed that his October
2014 opinion was made with “caveats,” in part, due to George’s expressed concern that
Wendy “was changing her behavior and what she was saying to me simply with the hopes
that I would change my opinion” from his May 2014 recommendation. He acknowledged it
was “reasonable” for George to have concern about the “genuineness” of Wendy’s conduct
but reiterated his opinion that Wendy was sincere in acknowledging that she had made some
mistakes and realized that the parents’ conflicts had negatively impacted the children. He
opined that she had shown “a progressive level of improvement.”
¶ 44 George also called Sheena Selvey, R.D.’s fourth and fifth-grade teacher at NSA, who
agreed that George “seems to have a good relationship” with R.D. and that George had
attended school events and teacher-parent meetings. Selvey also testified that Wendy was
responsive to requests by the school, that she was an “engaged” parent and had a good
relationship with R.D.
¶ 45 Ann Bystedt, the principal of NSA, testified that she had observed both parents’
interactions with R.D. She testified that George’s relationship with R.D. was “a pretty typical
one,” and that R.D.’s interactions with George were “very positive on many days” but other
days were “very challenging.” She also testified that Wendy had been responsive and agreed
that her presence was “helpful” to R.D. Bystedt agreed that as of April 2013, the family had
not taken part in family therapy, because Wendy had not agreed to participate.
¶ 46 Michael Wagrowski, a therapist for both R.D. and B.D., testified that he had observed
George and R.D. to have “typically positive interactions” and could not recall any negative
interactions between R.D. and George. Wagrowski also described a positive relationship
between Wendy and both R.D. and B.D.
¶ 47 After George rested his case, Wendy called Dr. Ravitz as a witness. Dr. Ravitz testified
that he had been retained by Wendy in late August 2014 and had been asked to do a custody
evaluation “very quickly.” Due to time constraints, his report in this case was not as detailed
as his usual practice. Although he had interviewed the parties and the children, he did not
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have time to contact collateral sources of information (such as the children’s teachers or
therapists).
¶ 48 Asked about the impact of a potential change in the children’s parenting schedule, Dr.
Ravitz testified that the “key factor” for the children was not the parenting schedule, but “the
parents’ ability to cooperate with each other.” He cautioned that one could not assume that
the children would benefit “just by switching the kids from spending the majority of their
time with Wendy to spending the majority of their time with George.”
¶ 49 Dr. Ravitz testified he felt Wendy had made many very good decisions for the children
with regard to their education and treatment. He opined there should be “no immediate
changes” in custody but instead recommended “a treatment program that would involve both
parents with a gradual increase in the amount of time that the boys spend with their father.”
Dr. Ravitz testified that eventually the children “could have essentially a 50/50 relationship”
with each parent.
¶ 50 Wendy testified in her case in chief. On questioning by her counsel about her response to
the May 2014 report, Wendy stated that she now believed “That I was not actually fearful of
George but *** it was more intimidation. And that the things that I said to some of the
providers I shouldn’t have said.” She testified that the May 2014 report “was the moment that
I realized the effect that my comments had had” and that “I needed to do a much better job
and change the way I was communicating *** to eliminate those inappropriate comments
and fears that I had had and to communicate in a much more effective and nonjudgmental
way.” She also testified that she had followed all of Dr. Kraus’s recommendations, including
contacting a behaviorist to work with the children and arranging for R.D. and B.D. to see
psychiatrists.
¶ 51 After Wendy rested her case, on August 3, 2015, the children’s representative called
George and Wendy as witnesses.
¶ 52 At the close of trial, George, Wendy, and the children’s representative submitted closing
briefs. The submission from the children’s representative argued that there should be no
change in custody, as there was no evidence that the children’s mental health issues were
caused by Wendy’s decision making. The representative argued that Wendy had carefully
responded to the children’s needs, and that given her understanding of the children, it was not
in their best interest for her role in decision making to be reduced.
¶ 53 The children’s representative acknowledged there had been “times when mother did not
consult with the Father” but that Wendy now asserted that she consulted with George. The
representative noted that the court was “in the best position to determine the credibility of
this assertion.” The children’s representative opined that “with two special needs children
*** a change in residence would not be in their best interest” because they need
“consistency.” Thus, he recommended that, if any change in custody was made, the court
should award the parties joint custody but the children should retain their primary residence
with Wendy. However, the representative agreed that George’s parenting time should be
increased.
¶ 54 Wendy’s closing brief included the argument that, because George’s October 2012
petition to modify custody was filed within two years of the October 2011 order, he was
required by section 610(a) of the Act to “meet the initial threshold of showing serious
endangerment” to the children to seek a modification and that he had failed to do so.
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Wendy’s closing brief otherwise argued that under section 610(b) of the Act, George had
failed to demonstrate that changed circumstances warranted a change in custody.
¶ 55 On December 31, 2015, the trial court entered a 125-page order and judgment that
granted George’s petition to modify custody, after setting forth in great detail the witness
testimony, as well as numerous exhibits documenting communications between the parents
regarding the children’s education and health care.
¶ 56 In making its ruling, the trial court rejected Wendy’s legal argument that George was
required to allege or prove “serious endangerment” under section 610(a) of the Act, which at
the time provided that “no motion to modify a custody judgment may be made earlier than 2
years after its date, unless the court permits it to be made on the basis of affidavits that there
is reason to believe the child’s present environment may endanger seriously his physical,
mental, moral or emotional health.” 750 ILCS 5/610(a) (West 2014).
¶ 57 The court rejected Wendy’s contention that the two-year period under this provision
should be measured from the October 2011 order. The court recognized that the October
2011 order “set an adjustment to the original custody judgment” but described this as “an
agreed order regarding summer parenting time” which “did not create a new custody
judgment.” As George’s October 2012 petition to modify custody was filed more than two
years after the original September 2010 custody judgment, the court concluded that George
was not required to plead or prove serious endangerment under section 610(a).
¶ 58 The court proceeded to find that a change in custody was warranted. The court
recognized that section 610(b) of the Act requires proof by “clear and convincing evidence”
of changed circumstances, such that modification is necessary to serve the best interests of
the children. 750 ILCS 5/610(b) (West 2014). The court found that the circumstances as of
December 2015 were “dramatically different” from the circumstances as of the September
2010 custody judgment. The court noted that as of the September 2010 custody judgment, the
children were only 4, 6, and 7 years old. The court found that unforeseen “significant
developmental concerns” had arisen in the ensuing years, particularly with respect to R.D.
and B.D.
¶ 59 The court also found that Wendy’s circumstances had changed, insofar as Wendy had
chosen “to alter her court ordered compliance” with provisions of the custody judgment
requiring cooperation with George on educational and medical matters. The trial court
emphasized its doubts about Wendy’s credibility, noting her “inability to remember or recall
incidents and events” and her claimed inability to understand “uncomplicated inquiries”
when she was questioned by George, but that she had no such difficulties when questioned
by her own attorneys. Thus, the court made a “general finding that the testimony of [Wendy]
was suspect.” The court specifically found that Wendy had “determined that she was not
going to confer with [George] to discuss educational issues” and failed to confer with him
about disciplinary or behavioral problems, in violation of the 2010 custody judgment.
¶ 60 The court also emphasized that Dr. Kraus’s May 2014 report expressed concerns over
Wendy’s ability to encourage a relationship between the children and their father, as well as
her resistance to acknowledge some of the children’s mental health concerns. The court
recognized that Dr. Kraus’s October 2014 report had retreated from his May 2014
recommendation that custody be awarded to George. However, the court noted that “Dr.
Kraus did not have the benefit of sitting through the balance of the trial, observing the
demeanor of [Wendy] and hearing the testimony that I have heard.” The court found that
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there was clear and convincing evidence to establish a substantial change in circumstances,
noting it had considered “extensive testimony of the parties, *** and hundreds of pages,
exhibits and matters this court took judicial notice of.”
¶ 61 The court’s December 31, 2015, ruling proceeded to recite each of the best interest
factors set forth in section 602 of the Act (750 ILCS 5/602 (West 2014)), before concluding
that the best interests of the children would be served by George having sole custody. With
respect to the children’s mental health, the court credited the May 2014 report that George
“has been more consistent” and more reasonable in working with mental health
professionals. On the other hand, the court found that Wendy “delayed getting an outside
therapist” for B.D. The court also found that George had made “numerous attempts *** to
engage in family therapy and *** divorce counseling” but Wendy refused to participate, to
the detriment of the children. The court also found that Wendy at times had failed to provide
accurate information to the children’s medical providers, particularly in making allegations
against George.
¶ 62 The court emphasized that the “strongest factor” in favor of changing custody was
Wendy’s “failure, unwillingness or inability to facilitate and encourage a close and
continuing relationship between [George] and the children.” The court found that Wendy had
acted with a “goal of minimizing the role of [George] in the children’s lives” and that her
decisions “strongly impacted the welfare of the children.”
¶ 63 The court found “[a]ny minimal change in her approach after October 2014 is
encouraging but suspicious to the extent that when she is not under the watchful eye of this
court, her prior practice of excluding [George] I suspect to resume.” The court noted that,
although the October 2014 report indicated Dr. Kraus’s view that Wendy now understood the
consequences of her actions, Wendy “was at the same time telling Dr. Ravitz that she was
fearful of [George] and had in part not changed her behaviors.”
¶ 64 The court proceeded to find that it was in the children’s best interest to grant George sole
custody, with ultimate decision-making authority on major health and education matters. The
order specified that the children would reside primarily with George but granted Wendy
parenting time from Wednesday afternoons through Friday mornings, in addition to
alternating weekends.
¶ 65 On January 13, 2016, Wendy filed her notice of appeal from the December 31, 2015,
order. After Wendy filed her appellate brief, George filed a motion for sanctions against
Wendy, claiming that her appeal was frivolous. Our court took that motion with the case.
¶ 66 ANALYSIS
¶ 67 We have jurisdiction under Illinois Supreme Court Rule 304(b)(6), which provides for
jurisdiction over a custody judgment or modification of such judgment pursuant to the Act.
Ill. S. Ct. R. 304(b)(6) (eff. Mar. 8, 2016).
¶ 68 On appeal, Wendy raises two main challenges to the trial court’s order based on the
provisions of section 610 of the Act, which governed modification of custody at the time of
the 2015 proceedings. 750 ILCS 5/610 (West 2014).1 First, she contends that the court erred
1
As of January 1, 2016, provisions regarding the modification of an order allocating parental
responsibilities appear in section 610.5 of the Act. Pub. Act 99-90 (eff. Jan. 1, 2016) (adding 750 ILCS
5/610.5).
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in concluding that George was not required to plead or prove “serious endangerment” in
order to seek modification of custody, pursuant to section 610(a) of the Act. 750 ILCS
5/610(a) (West 2014). Separately, she argues that the court erred in finding, pursuant to
section 610(b) of the Act, that George proved by clear and convincing evidence that a
custody change was in the children’s best interests. 750 ILCS 5/610(b) (West 2014).
¶ 69 We first address Wendy’s argument premised on section 610(a) of the Act, which at the
time provided that: “Unless by stipulation *** no motion to modify a custody judgment may
be made earlier than 2 years after its date, unless the court permits it to be made on the basis
of affidavits that there is reason to believe the child’s present environment may endanger
seriously his physical, mental, moral or emotional health.” 750 ILCS 5/610(a) (West 2014).
¶ 70 Wendy argues that George’s October 2012 petition was made earlier than two years after
the custody judgment, in light of the October 2011 agreed order amending the 2010 custody
judgment. In other words, she argues that the applicable “custody judgment” for purposes of
section 610(a) is the October 2011 agreed order, rather than the original September 2010
custody judgment. As a result, she claims that George had to meet the threshold showing of
“reason to believe the child’s present environment may endanger seriously his physical,
mental, moral or emotional health.” 750 ILCS 5/610(a) (West 2014). She proceeds to argue
that George’s affidavit in support of his October 2012 petition did not meet this requirement.
¶ 71 We reject this argument, as we agree with the trial court that the relevant “custody
judgment” was the September 2010 custody judgment, rather than the October 2011 agreed
order. As noted by the trial court, the October 2011 order “set an adjustment” with respect to
summer parenting time provisions, but “did not create a new custody judgment.” Our review
of the October 2011 order makes clear that it did not purport to make any material change to
the parties’ custody arrangement, but merely sought to clarify how the parties were to
implement the previous agreement to evenly split parenting time in the summer when the
children were not in camp. The October 2011 order did not purport to make any substantive
alterations to the 2010 agreement. Rather, the October 2011 order specifically stated that,
apart from the summer vacation modifications, “All other terms and provisions of the
September 2010 Custody Agreement shall remain in full force and effect.”
¶ 72 As the October 2011 order did not make any material change to the September 2010
custody agreement, we reject Wendy’s suggestion that, for purposes of section 610(a), we
must measure the two-year period from October 2011. As George’s October 2012 petition to
modify custody was filed more than two years after the original September 2010 custody
judgment, the trial court correctly concluded that George was not required to plead or prove
that the children’s environment seriously endangered them pursuant to section 610(a). Thus,
we need not separately analyze whether George failed to meet this standard.
¶ 73 Apart from her reliance on section 610(a), Wendy next argues that the court erred in
finding that George had met his burden to justify a change in custody under section 610(b).
The version of section 610(b) in effect at that time2 provided:
2
Former section 610 of the Act has been repealed. As of January 1, 2016, the Act now provides, in
section 610.5, that “the court shall modify a parenting plan or allocation judgment when necessary to
serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of
facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not
anticipated therein, a substantial change has occurred in the circumstances of the child or of either
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“The court shall not modify a prior custody judgment unless it finds by clear and
convincing evidence, upon the basis of facts that have arisen since the prior judgment
or that were unknown to the court at the time of entry of the prior judgment, that a
change has occurred in the circumstances of the child or his custodian, or in the case
of a joint custody arrangement that a change has occurred in the circumstances of the
child or either or both parties having custody, and that the modification is necessary
to serve the best interest of the child.” 750 ILCS 5/610(b) (West 2014).
¶ 74 “Section 610(b) of the Act allows a noncustodial parent *** to bring to the trial court’s
attention a change in circumstances and seek a reassessment of whether, in light of that
change, modification of custody is necessary to serve the child’s best interest.” In re
Marriage of Rogers, 2015 IL App (4th) 140765, ¶ 60.
¶ 75 Former section 602 of the Act, which was in effect at the time of these proceedings, 3
provided that in determining custody “in accordance with the best interest of the child,” the
court shall consider “all relevant factors including *** (3) the interaction and
interrelationship of the child with his parent or parents ***; (5) the mental and physical
health of all individuals involved; *** (8) the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship between the other parent and the
child.” 750 ILCS 5/602 (West 2014).
¶ 76 “Determining custody in a particular case is a matter which rests with the sound
discretion of the trial court.” Department of Public Aid ex rel. Davis v. Brewer, 183 Ill. 2d
540, 557 (1998). Accordingly, we apply a very deferential standard of review. Our supreme
court has explained:
“The standard of review of custody modification judgments is the manifest weight
of the evidence. [Citation.] The trial court is in the best position to review the
evidence and to weigh the credibility of the witnesses. [Citation.] In determining
whether a judgment is contrary to the manifest weight of the evidence, the reviewing
court views the evidence in the light most favorable to the appellee. [Citation.] Where
the evidence permits multiple reasonable inferences, the reviewing court will accept
those inferences that support the court’s order. [Citation.] A custody determination, in
particular, is afforded great deference because the trial court is in a superior position
to judge the credibility of the witnesses and determine the best interests of the child.”
(Internal quotation marks omitted.) In re Marriage of Bates, 212 Ill. 2d 489, 515-16
(2004).
In this case, viewing the evidence in the light most favorable to George, we cannot say the
court’s decision to modify custody was against the manifest weight of the evidence.
¶ 77 Wendy asserts a number of arguments as to why George failed to prove by clear and
convincing evidence that a custody change was in the children’s best interest. Among these,
she argues that there were no material changes in circumstances. With respect to the court’s
finding that the children’s circumstances had changed, she argues that the children’s
increased ages cannot constitute a sufficient change in circumstances. With respect to the
court’s reliance on the mental health issues that had emerged since the 2010 judgment, she
parent and that a modification is necessary to serve the child’s best interests.” Pub. Act 99-90 (eff. Jan.
1, 2016) (adding 750 ILCS 5/610.5(c)).
3
Section 602 of the Act was repealed by Pub. Act 99-90, § 5-20 (eff. Jan. 1, 2016).
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argues that the original judgment gave her decision-making authority on health care matters,
and that it is “absurd to retroactively limit the scope” of her decision-making authority to
“educational or medical issues that the children may have been dealing with” at the time of
the custody judgment.
¶ 78 She also argues against the court’s finding that her behavior demonstrated material
changes in her circumstances. She asserts that “a parent’s conduct is irrelevant” in
determining the children’s best interest unless such conduct is shown to have affected the
children, and she claims that George did not demonstrate the relevance between her alleged
misconduct and the children’s best interests.
¶ 79 Wendy notes that both Dr. Kraus and Dr. Ravitz opined that Wendy had made good
parenting decisions. She claims that George did not actually disagree with her decisions, but
only “disagreed with her methodology.” She argues that “[a]t most, George demonstrates that
he had not been included satisfactorily in the decision making process in the past” and that he
“offered no alternatives to any decisions that Wendy had made.”
¶ 80 Wendy also emphasizes the evidence of her improved attitude and behaviors following
the May 2014 report. She contends that “faults and inadequacies of the custodial parent in the
past that are improved at the time of the custody hearing should not be considered a sufficient
basis for a change in custody.” She argues the evidence showed “that she had taken steps to
address past deficiencies” in her communications with George, citing the lack of
“unfavorable evidence” regarding her behavior since August 2014. She notes that Drs. Kraus
and Ravitz “commended her improvements” and that they, as well as the children’s
representative, recommended that she retain sole custody.
¶ 81 Wendy further argues that the court erred in its application of the relevant best interest
factors under former section 602(a) of the Act. With respect to factor (3), regarding the
children’s relationship with their parents (see 750 ILCS 5/602(a)(3) (West 2014)), she notes
the trial testimony that she had a good relationship with all three children and argues that the
evidence showed that George “had a much more difficult time with R.D.” With respect to the
factors of “the mental and physical health of all individuals involved” (750 ILCS 5/602(a)(5)
(West 2014)), she relies on Dr. Kraus’s and Dr. Ravitz’s opinions that she made good
decisions for the children and that the parties are working more collaboratively to address
their mental health issues. With respect to the factor relied upon most heavily by the trial
court—the willingness and ability to encourage a close relationship between the children and
the other parent (750 ILCS 5/602(a)(8) (West 2014))—Wendy argues “that she actively
corrected her past difficulties in including George,” emphasizing that Dr. Kraus “reassessed
his opinion” from the May 2014 report based on her “concrete improvements.”
¶ 82 We find these arguments unavailing, particularly in light of the required deferential
standard of review. Viewing the evidence in the light most favorable to George, the trial
court could reasonably find that changed circumstances had been proven by George, and that
it was in the children’s best interest to award sole custody to George (while retaining
parenting time for Wendy).
¶ 83 Wendy’s argument that she made good decisions for the children and that George merely
disputed her “methodology” fails to address the primary thrust of the court’s reasoning: that
her exclusion of George negatively impacted the children by interfering with their
relationship with their father. The court emphasized that the strongest factor in its decision
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was the harm to the children caused by her longstanding efforts to alienate George from
them.
¶ 84 Notably, Wendy’s argument does not dispute the findings that, at least until 2014, Wendy
interfered with George’s rights under the 2010 custody judgment. Viewing the evidence in
the light most favorable to George, the evidence suggests that Wendy engaged in a pattern of
alienation, including fabricating claims of abuse in order to distance George from the
children. Understandably, Wendy focuses on the evidence that her attitude and behaviors had
improved after the May 2014 report. However, under the totality of the circumstances in this
case, we cannot say the trial court was unreasonable in finding such evidence unpersuasive.
¶ 85 First, as a matter of credibility, the court was not required to believe Wendy’s testimony
that, after the May 2014 report, she suddenly realized the negative impact of her past
behavior, and thereby made a permanent change. Indeed, Dr. Kraus acknowledged it was
reasonable to be suspicious that Wendy had altered her statements and behavior to affect the
outcome of the trial.
¶ 86 Furthermore, even assuming she was sincere, her argument suggests the trial court was
somehow obligated to give more weight to the evidence of her improved conduct since
August 2014, notwithstanding the evidence of uncooperative conduct in the preceding years
since the 2010 custody judgment. In deciding the petition, the court was free to consider any
evidence of changed circumstances since the custody order. Thus, we cannot say the court
was unreasonable in finding that the relatively recent behavioral improvements by Wendy, as
reported by Dr. Kraus, were not persuasive, when weighed against the ample evidence of
longstanding problematic behavior.
¶ 87 We reiterate that the trial court was in the best position to evaluate the witnesses’
credibility. See Bates, 212 Ill. 2d at 515. In this case, the court heard extensive testimony by
Wendy and George on multiple days. After ample opportunity to observe Wendy’s
demeanor, the court found that her credibility was suspect and found George to be more
credible. We will not second-guess those findings.
¶ 88 We acknowledge that the court’s conclusions differed from those of Dr. Kraus, as well as
Wendy’s expert, Dr. Ravitz, and the children’s representative. However, this does not mean
that the trial court’s conclusion was erroneous. “Although is it within the court’s discretion to
seek independent expert advice, it is well settled that a court is not bound to abide by the
opinions or implement the recommendations of its court appointed expert.” In re Marriage of
Debra N., 2013 IL App (1st) 122145, ¶ 52. The various experts and consultants are in reality
advisors to the court. The court has discretion to accept or reject some or all of the advice
within the parameters of what is reasonable under the facts of a particular case.
¶ 89 Debra N. is factually similar to this case. In that case, the parents’ divorce decree
included a joint custody agreement, naming the mother the residential parent of the child and
granting the father weekly visitation. Id. ¶ 3. The mother subsequently sought sole custody,
and the father sought to become the primary residential parent. Id. ¶ 6.
¶ 90 At a subsequent trial on custody issues, the court’s appointed expert under section 604(b)
of the Act acknowledged that the mother had sought to interfere with the father’s visitation,
but still recommended that the mother have sole custody, with increased parenting time for
the father. Id. ¶ 12. The mother admitted several of the father’s allegations of her attempts to
undermine the father’s relationship with their child but claimed these were “lapses in
judgment or mistakes.” Id. ¶ 35. After hearing testimony from both parents, the court
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awarded the father sole custody, finding that the mother lacked credibility and that she had
“engaged in a pattern of interference” and otherwise sought to “alienate [the child] from a
healthy relationship with her father and his family.” (Internal quotation marks omitted.) Id.
¶ 39.
¶ 91 On appeal, our court recognized that “the mere fact that the trial court’s custody
determination did not correspond to the recommendation of [the expert] does not render its
decision against the manifest weight of the evidence.” Id. ¶ 53. Rather, we held that “[w]here
*** the record supports the circuit court’s finding that the custodial parent has made attempts
to thwart the noncustodial parent’s efforts to visit and maintain a close relationship with the
child, the court’s decision to modify the custody arrangement *** is not against the manifest
weight of the evidence and will be upheld on appeal.” Id. ¶ 56.
¶ 92 The same reasoning from Debra N. applies in this case. Although the court’s custody
disposition did not comport with the court-appointed expert’s recommendation, there was
nevertheless sufficient evidence to support the change in custody. Thus, under our deferential
standard, we decline to find that the trial court’s December 31, 2015, custody modification
order was against the manifest weight of the evidence.
¶ 93 Finally, we dispose of George’s motion for sanctions against Wendy pursuant to Illinois
Supreme Court Rule 375(b), which applies if an appeal is “frivolous” or “not taken in good
faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.” Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994).
¶ 94 George claims that Wendy’s appeal lacks good faith, as its contentions “are so unfounded
that no reasonable or prudent attorney, or litigant, could honestly suggest that they even
warrant consideration.” George asserts that Wendy’s appellate brief contains “blatantly false”
statements mischaracterizing the record. Wendy responds that her appeal cannot be frivolous,
since the trial court’s custody determination was contrary to the recommendations of the
children’s representative, as well as Drs. Kraus and Ravitz. She also denies George’s claim
that she mischaracterized the evidence, arguing that “the fact that George does not believe
Wendy’s testimony, does not ipso facto make it false.”
¶ 95 Although we affirm the trial court’s order under our deferential standard of review, we
cannot say that Wendy’s appeal was frivolous, especially in light of the opinion evidence
from Drs. Kraus and Ravitz favoring her retention of sole custody. Similarly, although the
trial court credited George’s testimony over Wendy’s, that does not mean her appeal was in
bad faith. Thus, although we affirm the trial court’s December 31, 2015, order, we deny
George’s motion for sanctions.
¶ 96 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 97 Affirmed; sanctions denied.
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