In re Marriage of Saheb ( 2007 )

FIRST DIVISION
NOVEMBER 13, 2007
No. 1-06-3304
In Re MARRIAGE OF ) Appeal from the
) Circuit Court of
DHEY ABDUL SAHEB, ) Cook County.
)
Petitioner-Appellee, )
) Nos. 05 D 1733, 05 D 5633
) & 05 CH 22625
and )
)
ALIXIO KHAZAL, ) Honorable
) Jeanne R. Cleveland Bernstein,
Respondent-Appellant. ) Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
Respondent Alixio Khazal1 and petitioner Dhey Abdul Saheb are the father and mother,
respectively, of six-year-old Basma Ali Khazal. The father appeals from the modified joint
parenting order entered by the circuit court of Cook County on October 12, 2006, which was
incorporated into the judgment for dissolution of marriage entered on the same day. The father
appeals from the order only to the extent that it grants visitation to petitioner in the United Arab
Emirates where she resides, instead of in Illinois where respondent and the minor child reside.
For the reasons stated below, we affirm.
1
The father’s notice of appeal spelled his first name as “Alixio.” The father’s appellate
brief spelled his first name as “Alexio.”
No. 1-06-3304
BACKGROUND
The father, then 34 years old, and the mother, then 24 years old, were married on
February 20, 2000,2 in the United Arab Emirates (UAE), where the marriage was registered. One
child was born during the marriage, namely a daughter, Basma Ali Khazal, on June 20, 2001, in
Chicago, Illinois. On May 20, 2005, the mother filed a petition in Chicago for dissolution of
marriage, which claimed that the parties had been living separate and apart since November 2004.
Dr. John M. Palen, who has a doctorate in social work, was appointed by the court on
June 9, 2005, to evaluate the parties and the minor child and made the following findings in a
report dated December 12, 2005. The parties spent half their married life living apart from each
other. From the date of their marriage until the mother ‘s return from the UAE to Chicago in
May 2005, the parties had spent a total of 2 ½ years away from each other, in order for the
mother to finish her medical school studies in the UAE. From the time of the child’s birth in June
2001 until she returned with her mother in May 2005, the child spent two of her then four years
away from her father.
Dr. Palen stated in his report:
“Each parent’s version of the marriage, description of Alex’s
relationship with Basma, and recollection of the circumstances
2
The judgment for dissolution of marriage, dated October 12, 2006, stated that the parties
were married on February 20, 2000. However at the October 12 hearing, the mother testified that
they were married on August 17, 2000, and the trial court so found, orally on the record.
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No. 1-06-3304
leading to Dhey’s return from the United Arab Emirates are polar
opposites of the other. It is not possible to definitively sort out fact
from fiction.”
Dr. Palen found that the parties disagreed about the circumstances of the mother’s return
to Chicago. It is undisputed that mother and child left for the UAE in December 2004 with the
father’s consent so that the mother could prepare for a United States medical licensing exam and
that the father visited the UAE in both January and March 2005. The father claimed to Dr. Palen
that the mother arrived in the UAE in December 2004 with no intent of returning and that she
pushed back the date of her medical exam in order to prolong her stay indefinitely. The mother
denied to Dr. Palen any plan to deprive the father of access to their daughter and did return in
May 2005.
Dr. Palen’s report listed documents reviewed by him, which included: an order issued by
a court in the UAE on March 17, 2005, at the father’s request to prevent the child from traveling
until further notice; and a cancellation of the travel ban, dated May 16, 2005. The father sought
the travel ban out of a fear that the mother would travel to Iraq to live with a cousin there. The
mother admitted that she obtained visas in March 2005 to travel to Iraq. After the circuit court in
Cook County issued an order on May 2, 2005, requiring the mother’s and child’s return to
Chicago prior to May 25, 2005, the father apparently sought cancellation of the UAE travel ban.
Dr. Palen recommended in his report that the mother have primary residential custody and
that the parents share legal custody pursuant to a modified joint custody order, which allocated
medical decisions to the mother and educational decisions to the father.
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Prior to the court hearing on June 26, 2006, the parties indicated their intent to reside in
different countries, with the father residing in Illinois and the mother residing in the UAE. Prior
to the hearing, the parties agreed to most of the terms contained in the subsequently-issued joint
parenting order, namely, that they would share joint legal custody, that the child would reside
primarily with the father in Chicago, that the father would have residential custody and that the
mother would have visitation. However, the parties could not agree on whether the mother’s
visitation would take place in Illinois or in the UAE.
On April 11, 2006, the father filed a motion to require the guardian ad litem to investigate
issues “relating to the Hague Convention.” At a pretrial conference on June 26, 2006, with all
counsel present, Michael Zaslavsky, the guardian ad litem, recommended that the trial court
permit visitation in the UAE even though the UAE was not a party to the Hague Convention and
that the court set a cash bond to guarantee the child’s return.
At a hearing on June 26, 2006, both parents testified. The mother agreed to pay airfare
for biannual visits by the child to the UAE with an accompanying adult and to post a bond to
secure the child’s return. The mother admitted that she had obtained visas in March 2005 to travel
with the child to Iraq and that she had objected in early 2005 to the father returning to Chicago
without her and with the child. The mother testified that she was a Canadian citizen in the
process of becoming a United States citizen, and intended to take a United States medical
licensing exam. The mother testified that the child would only be eligible for a visa issued by the
UAE which permitted the child to stay a maximum of 60 days in the UAE.
The mother testified that she wanted parenting time in the UAE instead of the United
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States for the following reasons:
“First of all, I don’t have any family here, any friends, I don’t have
car, I don’t have income. Even if I come here, I want to have fun
with my daughter. And over there in the United Arab Emirates, I
have car, I’m going to have everything there, and having family,
friends, we can go everywhere we can, we’re going to have fun
there.”
When the trial court asked the mother, “[H]ow do we know you’re committed to
returning her[?]” the mother replied:
“I don’t know how to say it, but if I want to do this, I’m going to
do it from the beginning. Why I came here and have all these
problems and just stay near because I want to obey the law and be
with the law, I don’t want to just go and run away and have
miserable life for my daughter, I want to be on the same side.”
At the June 26 hearing, the father testified that he purchased the airline tickets for the
mother and child to travel to the UAE in December 2004 and that the round-trip tickets had an
open-ended return date for six months. The father testified that, in January 2005, he flew to the
UAE and the mother refused to let him bring the child back to the United States. When he
returned to the United States, he contacted several offices in an attempt to bring the child back to
the United States. The offices included the United States embassies in Kuwait and the UAE, the
“Washington D.C. Department of children issue,” and the office of Senator Dick Durbin.
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On February 18, 2005, the father obtained an emergency order of protection from the
circuit court of Cook County directing the mother to return the child to Chicago.
The father further testified that he returned to the UAE in March 2005 and initiated a
UAE court proceeding to return the child to the United States He claimed that the emergency
order of protection was unenforceable in the UAE but that on March 16, 2005, he did obtain an
order from a UAE civil court prohibiting the child from leaving the UAE. He testified that he
later learned that, coincidentally on the same day, March 16, 2005, the mother had obtained a visa
for her and the child to travel to Iraq. He claimed that the trip was for the purpose of the mother
entering into an arranged marriage in Iraq. The father testified that, while he was in the UAE in
March 2005, he obtained a second United States passport for the child.
The circuit court of Cook County extended the emergency order of protection until May
2, 2005. On May 2, 2005, the trial court issued an order stating that the mother was still in the
UAE due to a travel restriction and that the mother and child shall return for a court appearance
on May 26, 2005, which they did.
In the modified joint parenting order, dated October 12, 2006, the trial court ordered
visitation in the UAE during the child’s winter and summer breaks from school. The winter visit
is two weeks long; and the summer visit starts one week after school lets out for the summer and
ends one week before school starts again in the fall. The order provided that the father or another
agreed-upon adult shall accompany the child to and from the UAE on all airline flights, and that
the mother shall pay for the airline tickets for the child and the accompanying adult. If the father
accompanies the child, then he has the right to retain her passport during the visit. If another
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adult accompanies the child, then he or she must deposit the child’s passport with the American
embassy in Dubai for the duration of the visit. In addition to paying for the trip, the mother has
the responsibility to arrange for the child’s visa to the UAE. The father has the right to a one
week visit during the mother’s summer visitation time in the UAE.
As a condition precedent to visitation, the mother must deposit a cash bond of $100,000
with the clerk of the circuit court of Cook County, Illinois. If the mother fails to return the child
to the father pursuant to the joint parenting order, then the monies in the account shall be forfeited
and paid to the father. The mother was also ordered to pay child support of $50 per week while
she is unemployed and 20% of her net income when she becomes employed.
On October 9, 2007, the appellate court on its own motion ordered that the appeal shall be
taken on the record and the appellant’s brief only.
ANALYSIS
On appeal, the father asks this court to reverse that portion of the modified joint parenting
order which granted visitation in the UAE. The father seeks reversal on the grounds that: first,
the trial court erred by granting visitation in a country that is not a party to the Hague Convention
and thus will not enforce an American court order; second, the trial court erred by granting
visitation in the UAE without first obtaining testimony or a written report from the guardian
ad litem, and without considering the written report of the court-appointed psychologist; and
third, the trial court erred by ordering a security bond to guarantee the mother’s return of the
child without first hearing testimony on what would constitute a reasonable amount for the bond.
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Visitation in a Non-Hague Country
Section 607(a) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act)
provides that “[a] parent not granted custody of the child is entitled to reasonable visitation
rights,” 750 ILCS 5/607(a) (West 2006). 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).
The issue of visitation in this case is governed by section 607(a), not section 607(c) (750
ILCS 5/607(c) (West 2006)). Section 607(c) prohibits a trial court from restricting a
noncustodial parent’s visitation rights “unless it finds that the visitation would endanger seriously
the child’s physical, mental, moral or emotional health.” 750 ILCS 5/607 (c) (West 2006). The
appellate court has interpreted section 607(c) to protect the right of a noncustodial parent to
“standard” visitation, which includes unsupervised, overnight visitation in the home of the
noncustodial parent. In re Marriage of Mouschovias, 359 Ill. App. 3d 348, 358 (2005); In re
Marriage of Wycoff, 266 Ill. App. 3d 408, 416 (1994); Gibson v. Barton, 118 Ill. App. 3d 576,
580 (1983). Elimination of a “standard aspect[]” of visitation is a restriction, governed by section
607(c) (750 ILCS 5/607(c) (West 2006)), which requires a finding of serious endangerment.
Mouschovias, 359 Ill. App. 3d at 358; Wycoff, 266 Ill. App. 3d at 416; Gibson, 118 Ill. App. 3d
at 580.
In the case at bar, the trial court granted visitation in the home of the noncustodial parent,
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which would certainly be standard, but for the fact that it occurs in the UAE. While visitation in
the noncustodial home is “standard,” regular visitation in a foreign country 24 hours away by
plane is not. Although section 607(c) protects “the standard aspects of visitation,” it does not
protect “unusual rights.” Mouschovias, 359 Ill. App. 3d at 358. Thus, the serious endangerment
standard of section 607(c) does not apply to the case at bar. The issue in the case at bar is
whether the trial court abused its broad discretion in fashioning the terms of visitation pursuant to
Section 607(a).
Although custody in one country and visitation in another country is an unusual
arrangement, it has been permitted. In re Marriage of Pickholtz, 178 Ill. App. 3d 512, 515 (1988)
(agreed order permitted noncustodial father biannual visitation in Israel); Randivojevic v.
Randivojevic, 11 Ill. App. 3d 116, 118 (1973) (in contested case, trial court awarded custody to
mother in Germany and permitted father one-month visitation in United States). In re Marriage of
Condon, 62 Cal. App. 4, 533, 540, 549, 73 Cal. Rptr. 2d 33, 38, 44 (1998) (trial court did not
abuse its discretion by permitting the mother to move with the children to Australia and granting
the father visitation in the United States during school vacations).
The father claims that the trial court abused its discretion by ordering visitation in the
UAE because, first, the UAE will not enforce the order, and second, the mother will not
voluntarily return the child.
The UAE is not a party to the Hague Convention on the Civil Aspects of International
Child Abduction (Hague Convention) 51 Fed. Reg. 10494 (1986), and the mother’s attorney
stipulated to this fact at a hearing on June 26, 2006. The Hague Convention provides a civil legal
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remedy to parents seeking the return of or access to their child (Hague Convention arts. 1, 8, 9,
and 10). Countries that have signed the Hague Convention have agreed to the prompt return of a
child who was habitually resident in a signatory country and who was removed or retained in
another signatory country in violation of a parent’s custodial rights (Hague Convention, arts. 1, 3,
4). According to the list of signatory countries maintained by the United States Department of
State’s Bureau of Consular Affairs, the UAE is not a signatory to the Hague Convention, see
Bureau’s website at http://travel.state.gov/family/abduction/hague_issues.html.
The father claims that since the UAE is not a Hague signatory, he will have no legal
recourse if the mother refuses to return the child from a visit to the UAE. However, contrary to
the father’s claim, he was able to obtain some legal recourse in the UAE. A court in the UAE
issued an order on March 17, 2005, at the father’s request in order to prevent the child from
traveling to Iraq; and then apparently at the father’s request, the UAE court cancelled the ban on
May 16, 2005, to allow the child to travel back to Chicago.
The father claims that the trial court abused its discretion by granting visitation in a
country that will not enforce a United States custody order, but he fails to cite any legal authority
to support his claim. “A point raised in a brief but not supported by citation to relevant authority
*** is therefore forfeited.” People v. Ward, 215 Ill. 2d 317, 332 (2005); In re Marriage of Bates,
212 Ill. 2d 489, 517 (2004) (“A reviewing court is entitled to have issues clearly defined with
relevant authority cited”); Rosier v. Cascade Mountain, Inc., 367 Ill. App. 3d 559, 568 (2006)
(this court held that, by failing to offer any supporting legal authority or reasoning, plaintiffs
waived consideration of their theory for asserting personal jurisdiction over defendants);
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Ferguson v. Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 78 (1998) (“it is not necessary to
decide this question since the defendant has waived the issue” by failing to offer case citation or
other support as Supreme Court Rule 341 requires); 210 Ill. 2d R. 341(h)(7) (argument in
appellate brief must be supported by citation).
The father did cite a New York custody case, Ahmad v. Naviwala, 762 N.Y.S.2d 125, 306
A.D.2d 588 (3d. Dept. 2003). In Ahmad, a New York appellate court reversed a trial court’s
award of custody to the father and granted sole custody to the mother, where the father secreted
the children for two years in Saudi Arabia, obtained an ex parte award of custody in Saudi Arabia
and attempted to conceal the children when they traveled to the United States. Ahmad v.
Naviwala, 762 N.Y.S.2d 125, 306 A.D.2d 588 (3d. Dept. 2003). The Ahmed case is readily
distinguishable from the case at bar. In the case at bar, the mother returned the child to the United
States with notice to the father and did not seek custody in another jurisdiction.
The case at bar is also distinguishable from Mitchell v. Mitchell, 252 Ga. 46, 311 S.E.2d
456 (1984), a custody case prohibiting travel to the UAE. In Mitchell, the Supreme Court of
Georgia held that a trial court had discretion to order the parents not to procure passports for the
children, where the parties had resided in the UAE for seven years prior to the divorce, the father
had absconded to Georgia with the children immediately prior to filing for divorce in Georgia and
the mother objected to residence in Georgia. Mitchell, 252 Ga. at 46-47, 49, 311 S.E.2d at 457-
59. The Georgia Supreme Court held that the trial court had the discretion to prohibit obtaining
passports, since the father would have no legal recourse in the UAE if the mother took the
children back to the UAE. Mitchell, 252 Ga. at 49, 311 S.E.2d at 459.
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The Mitchell case is distinguishable from our case in two respects. First, after hearing
testimony by the parties, the trial court in Mitchell exercised its discretion to forbid out-of-United
States travel, whereas the trial court in the case at bar exercised its discretion to permit it.
Obviously, the trial courts’ firsthand assessments of the parties in their respective cases was vastly
different. Second, the mother in the case at bar has agreed to the residence of her child in the
United States and returned the child to the United States for that purpose.
In light of the fact that the father was able to obtain some legal recourse in the UAE and
the fact that the mother returned the daughter to the United States from the UAE, this court
cannot find that the trial court abused its discretion in permitting visitation in the UAE. A trial
court is in a better position than a reviewing court for weighing the evidence. Bates, 212 Ill. 2d at
516. This is particularly true when a trial court must judge the credibility of conflicting witnesses
in order to determine what is in the best interests of a child. Bates, 212 Ill. 2d at 516.
In the alternative, the father argues that the governing statute in the case at bar is not the
visitation statute (750 ILCS 5/607 (West 2006)), but a removal statute (750 ILCS 5/609 (West
2006)). Removal and visitation cases require different standards of review. In a removal case,
this court will reverse the trial court’s decision only if it is against the manifest weight of the
evidence. Ford v. Marteness, 368 Ill. App. 3d 172, 175 (2006). By contrast, in a visitation case,
this court will reverse only for an abuse of discretion. Engelkens, 354 Ill. App. 3d at 792.
In support of his claim that the removal statute governs, the father asserts in his appellate
brief that “the parties treated visitation overseas as removal of Basma to the United Arab
Emirates” and that the “guardian ad litem made his recommendation based upon the removal
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statute.” However, the father’s appellate brief fails to cite any legal authority for his claim that
the removal statute should govern the trial court’s award of visitation. As noted above, any
points not supported by legal authority in an appellate brief are generally waived. In addition, the
appellate court has previously treated visitation in another country as an issue pursuant to section
607, the visitation statute (750 ILCS 5/607 (West 2006)). Mouschavias, 359 Ill. App. 3d at 358-
359.
To the extent that the removal factors provide this court with some guidance, they do not
suggest a different outcome. Section 609, the removal statute, provides:
“The court may grant leave, before or after judgment, to
any party having custody of any minor child or children to remove
such child or children from Illinois whenever such approval is in the
best interests of such child or children. The burden of proving that
such removal is in the best interests of such child or children is on
the party seeking the removal. When such removal is permitted, the
court may require the party removing such child or children from
Illinois to give reasonable security guaranteeing the return of such
children.” 750 ILCS 5/609 (a)(West 2006).
When deciding a removal petition, a trial court must consider the following five factors:
first, whether the proposed move will enhance the quality of life for both the custodial parent and
the child; second, whether the proposed move is a ruse designed to frustrate or defeat the
noncustodial parent’s visitation; third, the motives of the noncustodial parent in resisting removal;
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fourth, the visitation rights of the noncustodial parent; and fifth, whether a reasonable visitation
schedule can be achieved if the move is allowed. Ford, 368 Ill. App. 3d at 175, citing In re
Marriage of Eckert, 119 Ill. 2d 316 (1988).
These five factors are phrased in terms of the custodial parent seeking removal. For these
factors to provide any guidance to this court in the case at bar, we have to read “noncustodial
parent” wherever the factors state “custodial parent.”
First, visitation in the UAE will enhance the quality of life for both the mother and the
child. The mother now lives in the UAE. Visitation in the mother’s home will allow the child to
know her mother better and participate in her mother’s daily life. In addition, the mother will be
able to provide activities for her child in her community which would be difficult to arrange if the
mother were merely a visitor in the United States Second, although the father has claimed that
the mother will not return the child, he has not claimed that the mother’s desire for visitation in
the UAE is a mere ruse. Third, as far as the motives of the father in resisting visitation in the
UAE, he admitted in his brief to this court that the parties’ relationship has been “very
acrimonious.” During the hearing on June 26, 2006, the trial court noted that the father refused
to look at the mother during her testimony. Fourth, as for the father’s visitation rights, the father
has the right to visit his daughter for one week during her summer sojourn in the UAE. Fifth, the
father has not claimed that the visitation schedule is unreasonable. Thus, to the extent that the
five removal factors provide some guidance, they do not suggest a different outcome. As noted
before, this court finds that the trial court did not abuse its discretion by granting visitation in the
UAE.
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No Testimony or Written Report From Guardian Ad Litem
The father claims that the trial court erred when it failed to obtain testimony or a written
report from the court-appointed guardian ad litem and deprived the father of the opportunity to
cross-examine the guardian ad litem. In lieu of a written report or testimony, the guardian ad
litem provided an oral report to the trial court, which included a recommendation that the trial
court permit visitation in the UAE.
Section 506 of the Dissolution Act states that a “guardian u shall testify or submit a
written report to the court regarding his or her recommendations.” 750 ILCS 5/506(a)(2) (West
2006). Section 506 also provides that the “guardian ad litem may be called as a witness for
purposes of cross-examination regarding the guardian ad litem’s report or recommendations.”
750 ILCS 5/506(a)(2) (West 2006). The Illinois Supreme Court has held that a trial court’s
denial of a party’s request to cross-examine a guardian ad litem is a denial of procedural due
process. Bates, 212 Ill. 2d at 514. This due process violation is subject to harmless error
analysis. Bates, 212 Ill. 2d at 515.
In the case at bar, the guardian ad litem presented his recommendations in an oral report
to the court during a pretrial conference with counsel present. The father did not claim in his
appellate brief that he objected at the pretrial conference to the oral report or that he made a
request at that time for testimony, cross-examination or a report in writing. Apparently for the
first time on appeal, the father claimed that the guardian’s oral report surprised him and precluded
his ability to prepare adequately for trial. He failed to cite to any place in the record where he
made these claims to the trial court. Bates, 212 Ill. 2d at 517 (a party must provide citations to
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the relevant pages in the record); 210 Ill. 2d R.341(h)(7) (appellant is required to submit a brief
with citation to “the pages of the record relied on”).
Since the father failed to object in the court below, he has waived consideration of these
issues on appeal. Lange v. Freund, 367 Ill. App. 3d 641, 648-49 (2006). The plain error doctrine
does permit an appellate court to review errors not properly preserved at the trial level. Lange,
367 Ill. App. 3d at 649; Gillespie v. Chrysler Motors Corp., 135 Ill. 2d 363, 375 (1990). “But
this doctrine is applied in civil cases only where the act complained of was a prejudicial error so
egregious that it deprived the complaining party of a fair trial and substantially impaired the
integrity of the judicial process.” Lange, 367 Ill. App. 3d at 649; Gillespie, 135 Ill. 2d at 377.
Before an error can rise to the level of a plain error, there must first be a “threshold-level
showing” of prejudice. Lange, 367 Ill. App. 3d at 649. The father has not explained what he
would have done differently if he had received the guardian’s recommendation earlier and in
writing. Thus, this court finds both that the father waived this issue for appeal and that it did not
rise to the level of a plain error.
In addition, the lack of cross-examination of the guardian ad litem did not violate the
father’s right to due process. As noted before, a due process violation occurs when a trial court
denies a party’s request to cross-examine a guardian ad litem. Bates, 212 Ill. 2d at 514.
However, the Bates decision, which the father cites, is not on point. In Bates, the party
requested the opportunity to examine the Guardian ad litem; by contrast, in the case at bar, the
father never made such a request. Bates, 212 Ill. 2d at 514. Thus, no due process violation
occurred.
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Recommendation of Section 604(b) Evaluator
The father also claims that this court should reverse the trial court’s order of visitation in
the UAE because the trial court failed to consider the report of Dr. Palen, who was appointed by
the court to evaluate the parties and the child. In his written report dated December 12, 2005, Dr.
Palen recommended that the child “continue to reside in the primary care of the mother” and that
the parties share legal custody. With respect to travel, Dr. Palen recommended that “neither
parent be able to travel with Basma out of the United States without leave of the court,” that
“each of the parents post a sizeable bond to ensure that Basma not be removed from the United
States or secreted from the other parent,” and that “[h]er removal from the United States would
be irreparably detrimental to her well-being.”
In direct contradiction of the father’s claim that the trial court failed to consider Dr.
Palen’s report, the trial court specifically referred to Dr. Palen’s report in its written judgment for
dissolution of marriage, dated October 12, 2006. In fact, with respect to travel, the trial court
implemented most of Dr. Palen’s recommendations. First, the trial court’s order implemented the
parties’ agreement and Dr. Palen’s recommendation that the child not be removed from the
United States but remain here on a permanent basis. Second, the trial court ordered the posting
of a sizeable bond, as Dr. Palen recommended. Third, Dr. Palen recommended that the child not
travel out of the United States without leave of court, and the parenting order gave specific leave
of court for the child to travel on biannual visits to her mother in the UAE.
The father’s appellate brief failed to cite any pages in the record to support his claim that
the trial court did not consider Dr. Palen’s report. In addition, even if the father’s claim was
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factually correct, his brief failed to cite any legal authority for the proposition that a parenting
order must be reversed if a trial court does not consider the psychologist’s report. As noted
above, a party waives a claim by failing to support it with citations to legal authority or the
record. Ward, 215 Ill. 2d at 332; Bates, 212 Ill. 2d at 517; 210 Ill. 2d R.341(h)(7).
This court will not reverse a trial court simply because it decided not to follow all of a
psychologist’s recommendations. Dr Palen was appointed pursuant to section 604(b),
which permits the trial court to “seek the advice of professional personnel,” 750 ILCS 5/604(b)
(West 2006) . Nothing in section 604 requires the trial court to follow the advice of the 604(b)
evaluator. Advice is simply that – advice. The trial court is the ultimate fact finder in a child
custody case, not the expert witness. In re Marriage of Gambla, 367 Ill. App. 3d 441, 468
(2006). “Prohibiting a trier of fact from rejecting an expert’s opinion on an ultimate issue would
usurp the role of the trier of fact.” Gambla, 367 Ill. App. 3d at 468 (this court affirmed a trial
court’s award of custody to the mother, despite the contrary recommendations of the two
psychologists who were ordered to perform custody evaluations). Thus, the trial court’s decision
not to implement all of Dr. Palen’s recommendations is not, by itself, a ground for reversal.
Amount of Security Bond
The father claims that this court should reverse the part of the order providing for
visitation in the UAE because the trial court failed to hear evidence concerning the appropriate
amount of the security bond before setting its amount. Specifically, the father claimed in his brief
to this court that: “[a]t the trial, Counsel for Petitioner Father tried to ask what would be a fair
amount for the bond, but the Court sustained the objection, not allowing testimony on the
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subject.” The brief then cites the cross-examination of the mother by the father’s attorney during
the June 26th hearing. The brief cites a page in the record which contains the following colloquy:
MR. SIMKIN: “How much of a cash bond are you anticipating
suggesting to the Court would be a fair amount?
MS. AVERY:[mother’s attorney]: Judge, I’m going to object
to the question because that’s part of our settlement negotiations
between attorneys and at this point –
THE COURT: It hasn’t been agreed to?
MS. AVERY: Well, frankly, we haven’t even discussed the
number. My client, as she said earlier, will do whatever your
Honor rules.
MR. SIMKIN: I’ll rephrase my question. If the Court sets a cash
amount of a bond [sic] has to be deposited either with the Court or
in some other fashion and you are unable to make that bond, are
you agreeable that your parenting time in the United Arab Emirates
will not commence until that bond is posted? Do you understand
my question?
MS. SAHEB: I do understand.
MS. AVERY: I guess I’d object to the follow [sic] of the
question, Judge, because we don’t know yet what the terms of the
agreement are going to state. So, I mean Counsel is –
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No. 1-06-3304
THE COURT: I think she answered that she is willing to post a
bond.
MS. AVERY: Yes.
THE COURT: And the terms are to be determined.
MR. SIMKIN: Okay.
MS. AVERY: Yes.”
The above colloquy shows that the trial court deferred to the representation of the mother’s
attorney, to which the father’s attorney acquiesced, that the attorneys were engaged in settlement
negotiations and that questioning about the amount would endanger those negotiations.
The Illinois Supreme Court has held that, under “ ‘the doctrine of invited error,’ ” a party
“ ‘may not request to proceed in one manner and then later contend on appeal that the course of
action was in error.’ ” People v. Harvey, 211 Ill. 2d 368, 385 (2004), quoting People v. Carter,
208 Ill. 2d 309, 319 (2003). To permit a party to use, as a vehicle for reversal, the exact action
which it procured in the trial court “ ‘would offend all notions of fair play’ ” and encourage
duplicity by litigants. Harvey, 211 Ill. 2d at 385, quoting People v. Villarreal, 198 Ill. 2d 209, 227
(2001). Thus, when a party “procures, invites or acquiesces” to a trial court’s evidentiary ruling,
even if the ruling is improper, he cannot contest the ruling on appeal. People v. Bush, 214 Ill. 2d
318, 332 (2005); Harvey, 211 Ill. 2d at 386; People v. Caffey, 205 Ill. 2d 52, 114 (2001).
In the case at bar, the father’s attorney acquiesced to the mother’s attorney’s
representation to the trial court concerning ongoing settlement negotiations. The father cannot
now complain about an action that he invited. Thus, the lack of testimony about an appropriate
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No. 1-06-3304
amount for the bond is not a ground for reversal. In addition, the father has offered no evidence
that the $100,000 bond set by the trial court was inadequate.
CONCLUSION
For the foregoing reasons, the modified joint parenting order of the trial court is affirmed.
First, the trial court did not abuse its discretion by permitting visitation in a country that is not a
party to the Hague Convention, where the father was previously able to obtain some legal
recourse in the non-Hague country and the mother previously returned the child to the United
States. Second, by failing to object in the trial court, the father waived consideration on appeal of
the lack of testimony or a written report by the guardian ad litem. Third, the trial court
implemented most of the psychologist’s recommendations with respect to travel, and the trial
court’s decision not to implement all of the psychologist’s recommendations is not, by itself, a
ground for reversal. Fourth, the father cannot now complain about the lack of testimony about
the appropriate amount of the security bond when his actions at the trial court invited the finding
by the trial court and when the father failed to show that the amount of the security bond was
inadequate.
Affirmed.
CAHILL, P.J., and GARCIA, J., concur.
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