Attorney Gary L. Schlesinger noted on the ABA Family Law listserv today that there are two Illinois cases dealing with the issue of a servicemember's parents exercising his or her parenting time when the servicemember is on deployment. He wrote an article for a seminar a few years ago, from which he grants permission to quote:
In another case perhaps contrary to the wishes of the Supreme Court, the Second District decided the Sullivan case. The parties were divorced in 1997. Mom got sole custody of the one child, Samuel, born August 13, 1993. Dad got visitation. Mom petitioned for back child support and unprovided medical insurance. Dad petitioned to have his family exercise his visitation while he was on active military duty. “Eugene’s petition did not specify the statutory basis for his request for relief.” (So there!) The trial court dismissed dad’s petition on subject matter jurisdictional grounds—the court could not grant grandparent visitation.
The Second District said, “The record reveals the Eugene’s petition was essentially a request for a modification of his visitation rights. Section 607(c) of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) provides that a “court may modify an order granting or denying visitation rights of a parent whenever modification would serve the best interests of the child.” 750 ILCS 5/607(c) (West 2002) Thus, the issue becomes whether the trial court could grant Eugene’s requested relief and allow his family to exercise his visitation rights when he was serving overseas in the military.”
This is NOT a petition by grandparents to visit grandchildren. This is a petition by dad to have his relatives exercise his visitation in his militarily required absence. The Appellate Court made that distinction and cited a similar case from the First District, Solomon v. Solomon 319 Ill. App. 619; 49 N.E. 2d 807 ( 1943).
In Solomon, a father inducted into the army and due to be stationed in Oregon, petitioned to have his parents exercise his visitation. The trial court granted the petition. The mother appealed claiming the Court had no such power and the grandparents were emotionally and temperamentally unstable. The First District said the Soldiers’ and Sailors’ Civil Relief Act gave the court power to fashion a way for the father’s relatives to see the child. The Court remanded for a hearing to see if the grandparents “were fit to receive the child in their home as ordered by the court.”
What is the possibility of Sullivan being expanded to include other relatives in addition to grandparents? What is the possibility of the case being expanded to permit collateral relatives to visit if the father is out of town on business or for education but not in the military? Probably yes to the first and no to the second. The SCRA is really the basis for the decision as well as the desire to not hurt military folks. Sullivan v Sullivan, 342 Ill.App.3d 560; 795 N.E.2d 392; 277 Ill.Dec. 25 (2003).
Gary l. Schlesinger