Articles Posted in Evidence

This article should be read in conjunction with our May 2015 article on Mental Health Examinations.


There any number of child related issues that may arise in a divorce or parentage matter. Frequently, the most intractable issue are those which pertain to the mental or physical fitness on the part of a party to the case.  Illinois Supreme Court Rule 215 permits opposing parties and even the trial court may seek to discover relevant facts about the condition of an adverse party by requiring them to participate in an evaluation with an impartial medical professional.  The evaluator may conclude and report to the court whether the party is either mentally and physically fit to function around their children without adversely affecting the children’s mental, moral, physical, or emotion well-being, or even their best interests.


If you are subject to a Rule 215 evaluation you may ask yourself, are there any limitations to evaluations if your case has concluded? Can a court abuse its discretion by ordering an evaluation? The answer, maybe a surprising, “yes.”

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In Illinois, the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA), protects communications made between a client and a therapist. Generally, when an individual begins therapy, the therapist’s first obligation is to explain that anything the client says to the therapist will remain confidential. However, this may not always be the case for children whose parents are simultaneously involved in a custody battle, and where a Guardian ad Litem (GAL) has been appointed to investigate and recommend to the court what is in the best interest of the minor child.


In 2017, the Illinois legislature added section 607.6 to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Given how recently section 607.6 was added, there is not much case law interpreting its provisions. Under this section of the statute, a court may order individual counseling for a child, family counseling for the parties and the child, or parental education for one or more of the parties. Perhaps the more controversial portion of 607.6 can be found in subsection (d). Section 607.6(d) provides, “all counseling sessions shall be confidential. The communications in counseling shall not be used in any manner in litigation nor relied upon by any expert appointed by the court or retained by any party.”

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Divorces in Illinois have been governed by the Illinois Marriage and Dissolution of Marriage Act, originally enacted in 1979.  Since then, changes in family dynamics, including recent developments in Illinois law related to same-sex marriage, parentage, adoption, and in areas of embryo preservation and rights, rendered the law outdated and in need of an update.  For years, Illinois legislators, judges, and prominent practitioners in the field have pushed for a revised version of the Act, but only recently has this been accomplished.


The revised law, which will become effective on January 1, 2016, has been updated in several significant ways that impact how divorces and related issues will be addressed.  The law will apply to new and pending cases and will change the way that divorcing parties navigate the process of divorce.


The following is a brief summary of some of the important changes to the Act:




Presently, a person seeking a divorce must allege “grounds” for the divorce.  Most commonly, people cite “irreconcilable differences” as the reason for a divorce.  To prove irreconcilable differences have arisen to cause a marriage to fail, the party filing for divorce must prove that the parties have lived separate and apart for a continuous period of in excess of two years, or agree with the other party to waive the separation period if they have lived apart for six months.  The must also prove that the marriage is over and not salvageable.  The other fault-based reasons include: impotency, adultery, desertion, habitual drunkenness, excessive use of addictive drugs, poisoning, extreme  and repeated physical or mental cruelty, one party being convicted of a felony or other infamous crime, or infecting the other spouse with a sexually transmitted disease.


The revised law eliminates all of the fault-based grounds for getting divorced, leaving the only grounds of irreconcilable differences.  Further, instead of having to prove a statutory period of separation, the new law eliminates the separation period as well. These changes shift the focus away from having the parties blame one another for the divorce in order to allow them to proceed as amicably and quickly as possible.

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It is no secret that emotions run high during a divorce or custody proceeding.  Sometimes parties seek orders of protection from one another to prohibit acts of abuse or harassment from occurring.


Imagine this scenario:  Chris and his girlfriend Rhianna are having an argument about who will have custody of their daughter after they split up.  Chris gets really angry, punches Rhianna in the face, and smashes her face on the dashboard of his car.  In turn, Rhianna files for an emergency petition for an order of protection against Chris.


In court, the judge orders Chris to stay away from Rhianna.  Furthermore, he is prohibited from communicating with her, except regarding issues related to their daughter.  A week later, Chris calls Rhianna and when she answers, she clicks the “record” button on her iPhone.  Chris proceeds to tell her how sorry he is and how he just wants another chance.  He says “I love you, I’m coming over right now to show you how much I love you and you better let me in, or else.”  When she hangs up, Rhianna calls the police, plays the recording for them, and has Chris arrested for violating the order of protection.


Prior to March 2014, Rhianna would not have been able to use that recording to prove that Chris had violated the order of protection by harassing communication.  The old version of the Illinois Eavesdropping Act provided that a person could be arrested for recording someone, private or public, without their knowledge or consent.  The law was one of the most restrictive in the United States. The law not only restricted recording of private individuals but also public individuals and occurrences.  As a result, under the old law, it was illegal to record, for example, public debates, protests, or interactions between the public and police officers.

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Question: Can your prior acts of violence, abuse, or harassment be used against you in an order of protection hearing?
Answer: It depends on which side of the litigation you are on.




Just kidding.


An order of protection is a civil remedy in which a person can ask a judge for protection from an abusive family member or significant other. Generally speaking, in order to obtain an order of protection, a person must show that he or she has been abused or harassed, and that such abuse or harassment is not likely to stop unless the court takes action. An order of protection can help to stop abuse and prohibit contact as well as make someone stay-away, attend counseling, pay child support, or vacate your home, among other things. If a person violates an order of protection, he or she can be arrested and charged with a crime.


Because orders of protection often entail allegations of violence, it is not unusual for each of the parties to want to talk about all of the bad things that the other person did in the past.


As an example, let’s assume that Britney files for an order of protection against Kevin. Britney is therefore the “petitioner,” and Kevin is the “respondent.” In her petition, she details five prior incidents over the last few months in which Kevin has physically abused her, sometimes in the presence of their two children. Moreover, Kevin has a history. Last year, Kevin’s ex-girlfriend filed a police report because Kevin broke into her house and punched her. However, she did not press charges.


Kevin would like to point out that Britney is not that innocent, either. About three years ago, Britney pled guilty to misdemeanor battery for slapping her then-boyfriend, Justin.

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Editor’s Note:  In December, 2014, Illinois Governor Quinn signed into law a revised version of the Illinois Eavesdropping Statute.  The constitutionality of the new law has not yet been challenged.


On March 20, 2014, the Illinois Supreme Court struck down the Illinois Eavesdropping Statute, 720 ILCS 5/14-1, et seq. , as unconstitutional. See People v. Clark, 2014 IL 115776; People v. Melongo, 2014 IL 114852. Generally speaking, that law made it a crime to make an audio recording of another person without their consent, subject to certain exceptions. Worse, the statute rendered any evidence obtained in violation of its provisions inadmissible in any civil or criminal trial. 720 ILCS 5/14-5.

From an evidentiary perspective, the probative value of an audio recording of a person’s own words, spoken aloud in his or her own voice, cannot be underestimated. As such, in the context of family, the old Eavesdropping statute deprived litigants and their divorce attorneys of potentially valuable evidence. Thus, the Illinois Supreme Court’s decision is a decidedly positive development in the law.

To illustrate, suppose that George and Mary are about to file for divorce. They are home on an otherwise quiet evening. George is sitting on the couch, watching TV. Mary is getting ready for bed. Earlier in the day, however, they had argued extensively. George accused Mary’s family of unnecessarily meddling in their household affairs. Mary blamed George. She felt that if George would simply act more responsibly, her family wouldn’t have to get involved. Though they had stopped arguing hours ago, they were at an uneasy state of peace.

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