In re The Marriage of Eckersall

2014 IL App (1st) 132223

• Court: Appellate Court of Illinois
• Decided: June 2, 2014
• Docket: 1-13-2223
• Status: Unpublished

Opinion

2014 IL App (1st) 132223 No. 1-13-2223 Opinion filed May 28, 2014 Third Division ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

In Re THE MARRIAGE OF RAYMOND A. ) Appeal from the Circuit Court ECKERSALL III, ) of Cook County. ) Petitioner and Counterrespondent- ) Appellee, ) No. 13 D 1635 ) and ) ) The Honorable CATHERINE ECKERSALL, ) William S. Boyd, ) Judge, presiding. Respondent and Counterpetitioner- Appellant. ______________________________________________________________________________

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pucinski concurred in the judgment and opinion. Justice Mason dissented, with opinion.

OPINION

¶1 All too frequently children become casualties, caught in the crossfire of their parents'

hostilities. Alert judges and lawyers aware of the signs of potential trouble, as a matter of

course, will enter an order placing restrictions on the parents when their children are in their

custody. Restrictions, for purposes of illustration, may preclude the parents from engaging in

electronic surveillance, using alcohol and drugs, discussing the divorce, administering corporal 1-13-2223

punishment, and criticizing, demeaning, or disparaging the other parent. At issue is this type of

order, which in this case was characterized as an "injunction."

¶2 Catherine Eckersall filed what she contends is an interlocutory appeal under Illinois

Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), from a so-called injunction order entered

against her and Raymond Eckersall. The order directs the divorcing couple from participating in

certain behaviors when their three children are in their custody. Catherine argues: (i) the trial

court lacked jurisdiction to enter the order in the absence of either party filing a motion; (ii) the

order violates her right to due process because it was entered without an evidentiary hearing; (ii)

the trial court failed to make findings of fact as required by section 11-101 of the Illinois Code of

Civil Procedure (735 ILCS 5/11-101 (West 2012)); (iv) the order infringes on her rights to parent

her children in violation of the fourteenth amendment (U.S. Const., amend. XIV), and section 2,

article I, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2); and (v) the order violates her

freedom of speech under the United States and Illinois constitutions.

¶3 We dismiss the appeal because the trial court order did not enter an injunction subject to a

Rule 307 interlocutory appeal.

¶4 BACKGROUND

¶5 On February 25, 2013, Raymond Eckersall filed a petition for dissolution of marriage to

Catherine and for joint custody of the couple’s three daughters, ages 14, 12, and 10. Catherine

filed a counterpetition for dissolution of marriage and also sought joint custody, but requested

sole custody if the parties could not reach an agreement on custody. On April 8, 2013, by

agreement of the parties, the trial court appointed attorney Howard Rosenberg to represent the

minor children under section 506(a)(3) of the Illinois Marriage and Dissolution of Marriage Act

(Act) (750 ILCS 5/506(a)(3) (West 2012)).

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¶6 Raymond had moved out of the marital home, and on March 21, 2013, he filed a petition

to set a temporary parenting schedule stating that he and Catherine had been unable to reach an

agreement on visitation. On May 1, 2013, the trial court ordered the parties and the minor

children to immediately begin family therapy and scheduled a June 5 hearing on Raymond's

petition to set a temporary parenting schedule if the parties could not reach an agreement in the

interim.

¶7 After the June 5 status hearing, the trial court entered an order scheduling a June 24

hearing date for the petition to set a temporary parenting schedule, stating, "The parties shall

enter a parenting order (enjoining discussion of court/case related issue with the children) on the

June 24 status date." On June 24, 2013, the trial court entered an order setting July 10, 2013, as a

status date "for the entry of a custody/visitation injunctive order." The court warned, "If the

parties cannot reach an agreement on the terms of said order, the court shall set the terms."

¶8 At the July 10 status hearing, the counsel for the minor children submitted to the trial

judge a proposed custody and visitation injunction order. He first informed the court he met with

the children and worked out a "decent schedule" that provided for visitation with their father all

day on Saturday and one week night and that at the children's request, Raymond's family was not

to be present while they are in their father's custody. The children's representative also told the

court that he and the parties negotiated the terms of a "prophylactic" order setting forth the

conditions of visitation but were unable to reach agreement on the terms. Catherine and her

attorney, as well as Raymond's attorney, were present in court. Under the proposed order, the

parties would be prohibited from engaging in specific types of conduct regarding the minor

children, including: (1) beating, striking, threatening or in any way interfering with the personal

liberty of the minor children; (2) discussing any aspect of the pending litigation in the presence

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of the minor children, including custody, visitation, support, grounds for dissolution, financial

information, and court dates; (3) questioning or discussing with the children their preferences

regarding custody or visitation; (4) questioning, discussing, rehearsing or coaching the minor

children regarding court testimony or interviews with the court, mediators, attorneys,

investigators or any other person related to the dissolution proceeding; (5) engaging in any kind

of electronic surveillance of the other party or the minor children; (6) using, consuming or

possessing alcohol or nonprescription drugs in the presence of the minor children; (7) permitting

an unrelated member of the opposite sex to reside on an overnight basis while the minor children

are present; and (8) criticizing, demeaning, disparaging or placing either party in a negative light.

The order also prohibited either party from using corporal punishment in disciplining the

children or from removing the children from the state without written consent from the other

party or by court order.

¶9 Raymond's attorney requested a single change—that the parties be permitted to have

alcohol in the home, even if they were not permitted to drink it in the presence of the children.

Catherine's attorney, however, objected to the order as a whole on the grounds that it infringed

on Catherine's right to parent and communicate with her children. Her attorney asserted the

minor children were having productive conversations with their mother, who encouraged the

children to attend therapy sessions and to see their father, and the order would prevent the

children from confiding in their mother about the divorce. After hearing from both sides, the

trial court agreed to the change requested by Raymond and entered the order over Catherine's

objection. On July 16, 2013, Catherine filed a notice of appeal.

¶ 10 ANALYSIS

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¶ 11 As an initial matter, neither Raymond nor the children's representative filed a responsive

brief. Because the record is not complex, and the claimed errors can be decided without the aid

of an appellee's brief, we will decide this appeal on Catherine's brief alone. State Farm Mutual

Insurance Co. v. Ellison, 354 Ill. App. 3d 387, 388 (2004).

¶ 12 A trial court may grant temporary relief in the nature of temporary maintenance or child

support, preliminary injunctions, "or *** other appropriate temporary relief." (Emphasis added

and internal quotation marks omitted.) In re Marriage of Meyer, 197 Ill. App. 3d 975, 978

(1990). "Section 501(a)(3) [of the Dissolution of Marriage Act] is an all-inclusive provision

which allows a party to move for any other appropriate temporary relief, such as temporary

custody; exclusive possession of the marital residence; sequestration of assets; and temporary

attorney fees." Id. "Temporary relief *** is often in the form of neither a temporary restraining

order nor a preliminary injunction." Id.

¶ 13 In the initial stages of a dissolution proceeding, a trial court may enter temporary orders

addressing custody of minor children and the terms of visitation with the noncustodial parent.

The issue of visitation is governed by section 607(a) of the Act, which provides that "[a] parent

not granted custody of the child is entitled to reasonable visitation rights." 750 ILCS 5/607(a)

(West 2012). The "trial court has broad discretion in fashioning the terms of visitation and those

terms will not be overturned absent proof that the court has abused its discretion." In re

Marriage of Engelkens, 354 Ill. App. 3d 790, 792 (2004). An abuse of discretion exists where no

reasonable person would agree with the position of the trial court. Brax v. Kennedy, 363 Ill.

App. 3d 343, 355 (2005).

¶ 14 Shortly after initiating the dissolution proceedings, Raymond filed a petition to set a

temporary parenting schedule. At the July 10 status hearing on that petition, the children's

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representative informed the judge the parties reached an informal agreement as to visitation, with

some limitations on Raymond's family requested by the children. Although the court did not

enter a formal visitation schedule as requested by Raymond's attorney, the court entered the

order at issue, setting forth the terms and restrictions on each parent when the minor children are

in their custody. The children's representative drafted the order. A children's representative is

tasked with "advocat[ing] what [he or she] finds to be in the best interests of the child after

reviewing the facts and circumstances of the case." 750 ILCS 5/506(a)(3) (West 2012). The

children's representative carries "the same authority and obligation to participate in the litigation

as does an attorney for a party." 750 ILCS 5/506(a)(3) (West 2012). Orders like the one here are

a wise and often necessary tool that diligent and experienced child representatives or GALs,

parents’ attorneys, and judges will insist on. While dissolution proceedings often become overly

contentious, where custody of minor children is involved, the parents’ battle must yield to the

welfare of the children and to the trial court’s power to set ground rules for the parents while the

children are in their custody. In re Marriage of Duffy, 307 Ill. App. 3d 257, 261 (1999) (trial

court authorized to enter joint parenting order on its own motion and modify the parties'

proposed joint parenting agreement, if it fails to protect best interest of the children).

¶ 15 After several meetings with Raymond and Catherine, as well as the children, Rosenberg

determined that an order establishing rules of conduct was needed. Catherine contends,

however, that the trial court lacked jurisdiction to enter the order in the absence of a motion by

either party and that by entering an injunction without a hearing, the trial court violated her right

to due process. She also asserts the order violates her right to parent her children and to engage

in free speech.

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¶ 16 Catherine's assertion that her right to due process was denied is without merit. Before the

July 10 status hearing, the trial judge informed the parties that if they could not reach an

agreement on a "parenting order (enjoining discussion of court/case related issue with the

children)" he would set the terms of the order. Before entering the July 10 order, the trial judge

heard from the attorneys for both parties regarding its terms and indeed one of the provisions was

changed at the request of Raymond's attorney. The trial judge also specifically asked Catherine's

attorney to explain why she thought the order was inappropriate. Therefore, both parties were

given an opportunity to raise specific and general objections before the trial court approved the

terms of the order. Further, the order states it "is subject to hearing upon request of either party

as to any or all of the prohibitions set forth therein." Thus, Catherine or Raymond may request a

hearing before the judge to present evidence showing why this ongoing order should be changed

or rescinded.

¶ 17 Was the Order an Injunction?

¶ 18 As a threshold issue we must determine whether this order entered by the trial court

constitutes an injunction. If it is not, its entry is not an appealable interlocutory order under

Illinois Supreme Court Rule 307(a) (eff. Feb. 26, 2010), and this court lacks jurisdiction to hear

the appeal.

¶ 19 Illinois Supreme Court Rule 307(a)(1) states that "[a]n appeal may be taken to the

Appellate Court from an interlocutory order of court: granting, modifying, refusing, dissolving,

or refusing to dissolve or modify an injunction." Ill. S. Ct. R. 307(a)(1) (eff. Feb. 26, 2010).

"An injunction has been defined as a " 'judicial process, by which a party is required to do a

particular thing, or to refrain from doing a particular thing.' " " In re Marriage of Tetzlaff, 304

Ill. App. 3d 1030, 1036 (1999) (quoting In re a Minor, 127 Ill. 2d 247, 261 (1989), quoting

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Wangelin v. Goe, 50 Ill. 459, 463 (1869)). The order entered by the trial court is titled a

"custody/visitation injunction order" and the parties and trial judge refer to the order as an

injunction. But what constitutes an appealable injunctive order under Rule 307(a)(1) depends on

the substance of the action, not its form. In re a Minor, 127 Ill. 2d at 260. “Not every nonfinal

order of a court is appealable, even if it compels a party to do or not do a particular thing.” Id. at

261-62. For example, court orders that are ministerial or administrative cannot be the subject of

an interlocutory appeal under the rule allowing appeal from interlocutory order granting an

injunction. Id. at 262. The character of an order must be determined in the context of the facts

and relief sought in each case. In re Marriage of Meyer, 197 Ill. App. 3d at 978.

¶ 20 Despite its label, the order’s effect and aim is to place terms and conditions on the parties'

visitation rights. The order regulates an aspect of the pre-trial proceeding, namely, the parties'

custody and visitation. The order does not purport to adjudicate any substantive issues, but,

rather, precludes the parents from engaging in specified conduct that could be detrimental to the

welfare of the children. Evidence of this intent appears in the record of proceedings. During a

discussion with the trial judge about the children's reluctance to see their father and their

compliance with orders issued by the court, including the order to attend therapy, the children's

representative, stated, "Visitation, therapy, you want them to know something, put it in an order.

Make a copy for them." In response, before entering the order, the experienced trial judge stated,

"they need to understand that I run this show. They do not."

¶ 21 Absent from the record is the indicia of injunctive relief. An injunction is an

extraordinary remedy applicable only to situations where an extreme emergency exists and

serious harm would result if it were not issued. In re Marriage of Centioli, 335 Ill. App. 3d 650,

654 (2002). A party seeking an injunction must file a complaint pleading facts that justify a right

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to injunctive relief. In re Marriage of Schmitt, 321 Ill. App. 3d 360, 371 (2001). Section

501(a)(2) of the Act requires a party seeking a temporary restraining order or injunction to

present an affidavit showing a factual basis for relief. 750 ILCS 5/501(a)(2) (West 2012). The

party must demonstrate that he or she: (1) possesses a certain and clearly ascertainable right that

needs protection; (2) will suffer irreparable harm without the protection of the injunction; (3) has

no adequate remedy at law; and (4) is likely to succeed on the merits of the case. Centioli, 335

Ill. App. 3d at 654. Further, section 11-101 of the Illinois Code of Civil Procedure requires that

"[e]very order granting an injunction and every restraining order shall set forth the reasons for its

entry." 735 ILCS 5/11-101 (West 2012).

¶ 22 The children's representative has the authority to file a complaint or petition for an

injunction, along with an affidavit showing a factual basis for relief. The absence of a petition

and an affidavit or an order from the trial judge setting forth reasons why an injunction was

necessary, all goes to show that the children's attorney was seeking something other than an

injunction and that the trial court viewed its order as something other than granting what

amounts to injunctive relief. We "presume that a trial judge knows and follows the law unless

the record demonstrates otherwise.” People v. Jordan, 218 Ill. 2d 255, 269 (2006).

¶ 23 In addition, the order was intended to place restrictions on the parents and, if necessary,

inform the children of the conditions of visitation. It was not the equivalent of a preliminary

injunction whose function is “to preserve the status quo pending resolution of the merits of the

case.” In re Marriage of Slomka, 397 Ill. App. 3d 137, 143 (2009). As noted, a trial court has

great latitude in setting the terms and conditions of visitation. And, at the suggestion of the

children's representative or the lawyers or on its own, the court may arrive at terms and

conditions that serve the best interests of the minor children. In re Marriage of Seitzenger, 333

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Ill. App. 3d 103, 112 (2002) ("a trial court has broad discretion in determining the visitation

rights of a nonresidential parent, with the best interest of the child being of primary concern.").

¶ 24 There is no evidence suggesting that the child representative or the parents sought a

prohibitory injunction to preserve the status quo or the trial judge intended to grant injunctive

relief without following the statutory requirements. Plus, the character and function of the order

more closely conforms to appropriate temporary relief as detailed in the Act than an injunction.

Accordingly, we find the order is not an injunction or the functional equivalent of an injunction.

¶ 25 The dissent focuses on the order as an injunction despite the order lacking the attributes

of an injunction. The focus should be on the Act and its procedures and standards and methods.

Dissolution of marriage proceedings take place under the authority of the Act, and the Act gives

the trial court broad discretion in fashioning the custody and visitation order. In re Marriage of

Oros, 256 Ill. App. 3d 167, 170 (1994). Once filed, the petition unleashes the Act's provisions

and many aspects of the family’s life before the filing become subject to the court's discretion,

including custody and visitation, afterwards. In re Marriage of Davis, 341 Ill. App. 3d 356, 359

(2003). “[C]ustody proceedings under the Marriage and Dissolution of Marriage Act are guided

by the overriding lodestar of the best interests of the child or children involved” (In re A.W.J.,

197 Ill. 2d 492, 497-98 (2001)), and when deciding issues pertaining to custody, the trial court

has broad discretion over the proceedings. In re Marriage Debra N., 2013 IL App (1st) 122145.

¶ 26 Whether contested or not, divorce often leads to poor decisions on the part of the parents

due to the emotional and financial pressures divorce triggers. Trial courts, along with or as part

of, temporary visitation and custody orders, enter "rules of the road" orders like this one. Orders

by their nature assign burdens and limits and this order merely assigns temporary and modifiable

burdens and limits on both parents when the children are in their care. See Khan v. BDO

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Seidman, LLP, 2012 IL App (4th) 120359, ¶ 49 ("just because an order requires parties to do

something or to refrain from doing something *** does not necessarily follow that the order is an

injunction"). Significantly, the Act also places the best interest of the children above the

interests of the parents, which usually interferes with the very thing the dissent takes issue

with—the parents "fundamental right to care for and guide [their] children and, absent to

exceptional circumstances, to do so without judicial interference."

¶ 27 For instance, the right to reasonable visitation in section 607(a) of the Act “implies a

‘best interest of the child’ standard”—that is, a noncustodial parent's right to visitation in the first

place is determined by the child's best interests. In re Marriage of Chehaiber, 394 Ill. App. 3d

690, 696 (2009). Section 607(a) provides that a noncustodial parent has a right to reasonable

visitation, “unless the court finds, after a hearing, that visitation would endanger seriously the

child's physical, mental, moral or emotional health.” 750 ILCS 5/607(a) (West 2012). The

committee comment to section 407 of the Uniform Marriage and Divorce Act, the model statute

upon which section 607(a) is based, illustrates the primacy of the best interests of the child

standard in making accommodations for visitation. This comment provides, in relevant part, as

follows:

"With two important exceptions, this section states the traditional rule for

visitation rights. The general rule implies a 'best interest of the child' standard.

Although the judge should never compel the noncustodial parent to visit the child,

visitation rights should be arranged to an extent and in a fashion which suits the

child's interest rather than the interest of either the custodial or noncustodial parent.

The empirical data on post-divorce living arrangements suggests that, if the judge can

arrange visitation with a minimum of contest, most parties will eventually reach an

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accommodation and the bitterness accompanying the divorce will gradually fade."

Unif. Marriage & Divorce Act § 407 (amend. 1973), 9A U.L.A., Comment (1998).

¶ 28 Orders like the one here simplify the parent’s interaction with their children by

addressing usual and oft-contentious-producing issues before anything bad happens. All too

often divorce turns parents into malicious foes, and children into pawns. And even when it does

not, divorce frequently exposes children to negative behavior and parental conflict that can have

harmful, long-lasting repercussions on them. For the sake of the children, precautions are

preferable to remedial measures, prevention is preferable to punishment, and court ordained

protocol is preferable to parental anarchy. Experienced judges and lawyers realizing this err on

the side of protection rather than risk a child's well-being.

¶ 29 Because this court's jurisdiction is premised on Catherine's characterization of the circuit

court's order of July 10, 2013, as one granting injunctive relief, and we find that relief was not

granted by the challenged order, we lack jurisdiction to entertain this appeal.

¶ 30 CONCLUSION

¶ 31 No injunctive relief under Supreme Court Rule 307(a)(1) was granted by the circuit

court's order. Instead, the order was ministerial, setting the terms and conditions on visitation.

We have no jurisdiction to address this appeal.

¶ 32 Appeal dismissed.

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¶ 33 JUSTICE MASON, dissenting.

¶ 34 I believe we have jurisdiction to review the broad-ranging injunction entered by the trial

court and that the order Catherine appeals from is defective on both procedural and substantive

grounds. Therefore, I respectfully dissent.

¶ 35 To determine whether an order is injunctive in nature, a court must look beyond form and

address the substance of the order. In re a Minor, 127 Ill. 2d 247, 260 (1989) (construing an

order prohibiting publication of a minor's name as an injunction even though not labeled as

such). The majority concedes this, but concludes we lack jurisdiction under Supreme Court Rule

307(a)(1) (Ill. S. Ct. R. 307(a)(1) (eff. Feb 26, 2010)), reasoning that because there is no

evidence that the order was intended to grant injunctive relief, we should presume the order is

not an injunction.

¶ 36 This reasoning turns the logic of In re a Minor on its head. The order is labeled an

"injunction"; it "restrains" and "enjoins" the parties, "until further order," from 11 categories of

conduct and speech, which are "prohibited." It is only by ignoring the plain language of the

order that the majority is able to characterize it as something other than what it says it is.

¶ 37 The entry of the order was not accompanied by any of the procedural protections

normally attendant to the award of this drastic remedy. The court did not have before it a

verified pleading stating a cause of action to which injunctive relief is ancillary. In re Marriage

of Hartney, 355 Ill. App. 3d 1088 (2005) (complaint for preliminary injunction must plead facts

that clearly establish a right to relief); Exchange National Bank of Chicago v. Cullerton, 17 Ill.

App. 3d 392, 394 (1974) (verification essential to grant of injunctive relief); 750 ILCS

5/501(a)(2) (West 2012) (requiring application for injunctive relief to be accompanied by

affidavit showing a factual basis for relief requested). There is no pleading in the record in

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which either party claims that the other is engaging in conduct detrimental to their children's

interests. There is no evidence that the trial court made any findings of fact or conclusions of

law that would justify entering an injunction. 735 ILCS 5/11-101 (West 2012).

¶ 38 Under ordinary circumstances, the procedural defects preceding entry of this order would

be grounds for reversal. Instead, rather than address the substance of the order and the manner of

its entry, the majority concludes the order must not be an injunction because customary

procedures were not followed and that the order is in the nature of "temporary relief" authorized

under section 501 of the Act. 750 ILCS 5/501 (West 2012). By so recasting the nature of the

order, the majority concludes that although it does restrain Catherine's and Raymond's speech

and conduct, it is nevertheless "administrative" or "ministerial" in nature. Such administrative

and ministerial orders are not appealable because they operate solely to regulate the procedural

details of litigation and are distinguishable from traditional forms of injunctive relief because

they do not affect the relations of the parties in their daily activities outside the litigation. In re a

Minor, 127 Ill. 2d at 262.

¶ 39 The trial court's order clearly does affect the most intimate details of Catherine's

relationship with her children. The order does not merely place a "condition" on or regulate

aspects of pretrial preparation such as who will reside in the marital home and who will pay the

bills until the property division is sorted out. It does not even address the temporary parenting

schedule that was the impetus for its entry in the first place. Rather, the order places restrictions

on the parties' parental rights and significantly affects the relationship of the parties in their

everyday activities apart from the litigation.

¶ 40 The majority's reasoning underscores why the order is exactly what it purports to be: an

effort to bring the authority of the court to bear on a parent's decision to speak to or behave

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toward their children in a particular way. The majority notes that parents embroiled in

dissolution proceedings often behave in ways that negatively affect their children. The precise

purpose of the order, therefore, is to "restrain" and "enjoin" Catherine or Raymond from

engaging in such harmful speech and behavior before it ever happens. I do not know what label

to place on such an order other than an injunction. And I am unaware of any authority for

entering an injunction whose purpose is purely prophylactic. See Callis, Papa, Jackstadt &

Halloran, P.C. v. Norfolk & Western Ry. Co., 195 Ill. 2d 356, 371 (2001) (right to injunctive

relief "rests on actual or presently threatened interference with another's rights"' damage must be

"likely and not merely possible").

¶ 41 Once the order is viewed as an injunction, the record reveals no basis for its entry. These

dissolution proceedings had been pending for only a few months at the time the order was

entered. The most substantive motion practice in the scant record before us has concerned

Raymond's opposition to Catherine's request for temporary support and maintenance for herself

and their three children.

¶ 42 The worst that can be said is that although Catherine and Raymond agreed on a

temporary parenting schedule, their children, three girls ages 14, 12 and 10, upset with their

father for leaving, refused to go along with it. In her response to Raymond's petition to set a

temporary parenting schedule, Catherine represented "the minor children are currently upset with

Raymond and have been extremely resistant to the encouragement by Catherine and others that

they resume their relationship with their father." And, in fact, the record shows that the impetus

for entry of the order was the trial court's intention to demonstrate to the children that they were

required to comply with the parenting schedule the court intended to set. In addressing

Catherine's objections to entry of the order, in which she raised the procedural and substantive

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arguments she pursues on appeal ("I'm afraid my client can't accept an injunction that doesn't

allow her to speak with her children about the most important details of their life"), the court

stated: "[T]hey [the children] need to understand I run this show. They do not."

¶ 43 Nothing in the record even hints that Catherine or Raymond do or intend to use corporal

punishment to discipline their children, have criticized, demeaned or disparaged the other to their

children, have used or intend to use nonprescription drugs in front of their children or have

engaged in electronic surveillance of each other or their children. And although no reasonable

person would defend such conduct, the chance that one party may engage in harmful conduct in

the future—in the absence of a showing of "an ascertainable right in need of protection"—is an

insufficient basis upon which to predicate an injunction.

¶ 44 Further, certain aspects of the injunction are clearly overbroad. For example, neither

party may discuss "any aspect of the pending litigation with and/or in the presence of the minor

children." The parties' three daughters reside with Catherine. If, as I would expect would

happen often, the children want to talk to their mother about their feelings regarding the divorce

or how the divorce will affect them, Catherine must refer them to their child representative, a

stranger. Or if she fails to do so, Catherine faces the prospect of a rule to show cause, for there is

nothing on the face of the order that exempts willful violations from the court's inherent

contempt power. Catherine is likewise prohibited from assuaging any fear or anxiety her

children may express regarding who will have custody of them, interviews they may be required

to participate in with the trial judge, mediators, attorneys, social workers and the like, or whether

a visitation schedule will conflict with a slumber party or sporting event. If Catherine wants to

take a video of a ballet recital, soccer game or school graduation, she violates the order's

proscription against "[e]ngaging in any and all forms of audio and/or video recording ***

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regardless of whether such conduct is known ***, overt *** [or] voluntary." The record does

not disclose that any concrete concern for the children's well-being prompted these broad

incursions on a parent's right to care for her children.

¶ 45 It is no answer to say that the parties are entitled to seek relief from the order. ("This

Order is subject to hearing upon request of either party as to any or all of the prohibitions set

forth herein.") If there is no factual or legal basis for the injunction in the first place, allowing

the parties to seek relief from its prohibitions on a piecemeal basis is meaningless. Such a

process unnecessarily burdens the exercise of parental rights and increases the cost of litigation.

¶ 46 In its broad-based and unconditional restrictions, the order impinges upon a parent's

fundamental right to care for and guide his or her children and, absent exceptional circumstances,

to do so without judicial interference. See Troxel v. Granville, 530 U.S. 57, 65, 68-69 (2000)

("[T]he interest of parents in the care, custody, and control of their children--is perhaps the oldest

of the fundamental liberty interests recognized by this Court"; "[S]o long as a parent adequately

cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject

itself into the private realm of the family to further question the ability of that parent to make the

best decisions concerning the rearing of that parent's children."); In re M.H., 196 Ill. 2d 356, 362

(2001). Nothing in the record even remotely suggests that Catherine (or Raymond, for that

matter) is an unfit parent and, in fact, the order itself disavows any such finding. ("This Order is

entered *** without any assumption to suggestion that either party will or has engaged in the

conduct prohibited by this Order.") Unless a case is made that placing such conditions or

restrictions on the parties are necessary to protect the best interest of their children, a parent's

right to raise his or her children (Pierce v. Society of the Sisters of the Holy Names of Jesus &

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Mary, 268 U.S. 510, 534-35 (1925)) and the freedom of personal choice in the matters of family

life (Santosky v. Kramer, 455 U.S. 745, 753 (1982)) should not be restricted.

¶ 47 I have no doubt that the trial court was well-intentioned. I also recognize that the friction

inherent in custody and visitation disputes may render it necessary for a court to intervene to

protect the best interest of the children involved. But such restrictions on parental rights must be

tailored to the circumstances; there is no "one size fits all." And given the practical and wide-

ranging effect this order places on a parent's rights, the judicial oversight it contemplates must be

based on pleading and proof of conduct warranting the drastic remedy of an injunction. Because

those essential prerequisites are missing here, I would reverse.

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