Father Obtains Custody of 8 Year Old Son
Father Obtains Custody of 8 Year old Son after Mother Interferes with our Client, the Father's Visitation and Wrongfully Removes Child to Florida In re Marriage of Gibbs, 268 Ill.App.3d 962
Father [our client] and custody Mother were separated when their only son was 15 months old and divorced when he was four years old. Although Father consistently exercised visitation with his son, Mother had a history of attempting to restrict Father's visitation through various Court actions aimed to "frustrate" our client’s visitation.
Finally, Mother relocated their son to the state of Florida, and then filed a petition asking for permission to remove his residence to Florida permanently. In addition, Mother filed a Petition to suspend our client’s visitation with his son.
We represented the Father at the trial level and throughout the appellate process. After a full trial consisting of 14 separate trial dates, we won and Mother was ordered to return their son to Illinois. When she refused to obey court orders, we succeeded in presenting a petition to hold the mother in contempt of court and she was ordered to Cook County Jail until she returned the boy to Illinois. Although this order was reversed in the Appellate Court where we also represented the father, the son was ordered returned to Illinois. Upon the son’s return to Illinois, we fought to obtain custody for the father, and were successful in doing so. MORE
The Trial Judge specifically found:
“that the Petitioner, ALEXANDRA ENGLER, based upon the history of the entire past and present proceedings, has been vigorous in her motivation to frustrate or restrict the Respondent’s rights of visitation with his minor son, Palmer.”
Trial Judge Plusdrak after he conducted a full interview with the minor child in his chambers known as an in-camera. The Judge concluded that Palmer had been “programmed” by the Petitioner, Mother:
Judge Plusdrak specifically found in his ruling:
“Now as to the child PALMER, on October 1, 1991, this Court met the child in chambers for an interview in the presence of the attorneys and the court reporter. PALMER, then five years of age, was understandably not at ease and somewhat fidgety. When I asked a question, the boy would look up at the ceiling and then recite quite rapidly that he likes his stepfather, that he recalls how his father let him ride a bike and be hurt when he was riding by himself, and that he likes the warm weather in Florida and the swimming pool.
One need not be a trained therapist or a psychiatrist to sense that little PALMER was programmed in this regard in advance of his scheduled interview in the Courts chambers.”
As to Alexandra’s claim that Palmer suffered from “ separation anxiety” when he was away from her more than one week at a time, Judge Plusdrak concluded that the findings of ALEXANDRA’S expert Dr. Ner Litner were not to be believed and instead Judge Plusdrak adopted the findings of Respondents expert. Judge Plusdrak stated in his opinion that:
“In this expert’s opinion, the little boy, Palmer is not suffering from any separation anxiety, but the such anxiety may be caused by his mother’s ambivalence. He continued in his opinion if the child were to continue to live in Florida separated from his father, he might become disrespectful and develop a sense of abandonment.” [tr. Sept 18, 1992 p. 12]
Judge Plusdrak further specifically found in his opinion that it was in Palmers best interest to remain in Illinois and to maintain a healthy and close relationship with his father. Judge Plusdrak specifically stated in his findings:
“One, Palmer the minor child, now age six, while in the physical custody of his mother has been under sporadic therapy for the past three years and needs to have a healthy and close relationship with his natural father, the Respondent herein.
Two, Petitioner based on this history of the entire past and present proceedings, has been, vigorous in her motivation to frustrate or restrict the Respondent's rights of visitation with his minor son, Palmer.
Three, the Respondent opposing the petition to remove the minor child, Palmer, to Florida, has been motivated by his parental love for his minor child and not by any hatred for Petitioner’s current husband.
Four, removal of the minor child, Palmer, to Florida would hamper realistic and reasonable visitation of the Respondent with the child.
Five, the move to Florida would not enhance Petitioner's employment now or in the future.
Six, Petitioner’s current husband Alexander Engler , is a pilot with United Airlines and to date has failed to file any application to work from the O'Hare base in Chicago, Illinois.
Seven, it is and will be in the best interest of the minor child to remain with his mother in the State of Illinois.
Eight, that Petitioner has failed to sustain her burden of proof as required by Section 609 of the IMDMA.”
The Appellate Court, First District in affirming Judge Plusdrak’s findings specifically concluded that Alexandra’s conduct had been calculated to frustrate PETER’S visitation and the Court stated:
This supports a conclusion that the move may have been intended to frustrate Peter’s visitation. Alexandra also had a history of attempting to restrict Peter’s visitation with Palmer through court action. She had alleged in her original removal petition that Peter’s visits with Palmer should be supervised based in part on her allegation that Peter watched sexually explicit movies in Palmer’s presence. These allegations were subsequently dropped without resolution. [Emphasis added]
The Appellate Court, First District specifically found that the evidence concerning Mr. Engler’s long history of physical abuse was a valid basis for concern. The Appellate Court stated:
Peter’s motives in opposing the move were based in part on his desire to maintain a relationship with Palmer an his concern for Palmer living with Engler.
The evidence that Engler physically abused his ex-wife and girl friend is disturbing and a valid basis for concern. [ page 4 of Appellate Opinion]
That the Appellate Court, First District went on to note that:
As to Peter’s visitation rights, there was evidence that prior to the move he had exercised visitation although there were occasions which he missed. Overall, he consistently exercised his rights.
Since the move to Florida, the visitation schedule has changed and Peter has not been able to see Palmer on a regular basis. Alexandra offered visitation of three weeks in the summer, but visitation during the other months would be only three days. Before the move, Peter was allowed every other weekend and one weekday each week. Obviously, visitation could not be the same after the move to Florida; the move would reduce Peter’s visitation significantly during the school year.