Annette Burns, an Arizona Family Law attorney and subscriber to this blog, thoughtfully sent me a very interesting Illinois case in which the trial judge faced the same situation that presented last week in Macomb County Circuit Court. I'd like to share that with my readers since the Tsimhoni case has gone viral. It's an important read, respectfully noting the comments of Elizabeth Sadowski, a Michigan family lawyer and colleague, that this is not a case to be "decided around the water cooler."
In In re Marshall, the Illinois Appellate Court noted that
1) The trial court had jurisdiction over the child in this custody / visitation case;
2) Where the child admitted to the violations of court order in the presence of the court, this constituted direct contempt and the trial court had authority to deal with the contempt summarily.
3) “[The State may not pursue a governmental purpose, albeit legitimate and substantial, by means which abridge fundamental liberties more broadly than necessary. The purpose must be achieved by means of the least restrictive viable alternative.”
4) Commitment of a minor constitutes a substantial abridgment of personal liberty.
5) After finding Heidi and Rachel (the Marshall children) to be in direct civil contempt, the trial judge did not indicate that he considered less restrictive alternatives that might have resulted in visitation. Since the purpose of a civil contempt proceeding is to compel prospective
compliance for the benefit of a party to the litigation, a judge should consider all reasonable alternatives for enforcing visitation rights. Such alternatives are not necessarily limited
to the contempt proceedings against the minors.
6) For instance, one possible alternative is contempt proceedings against the custodial parent.
In the Marshall case, the record shows that on May 10, 1995, Kathy Marshall (the mother) was found to be in contempt for violating the visitation order, and she did not appeal the finding.
Noting that two more contempt petitions were presently pending against Kathy in the court below, the Marshall panel suggested that "(s)hould the present situation persist, the trial court might consider whether the mother is continuing to contumaciously interfere with the visitation order."
The Marshall panel noted that in Chicago Board of Education v. Terrile, 47 Ill.App.3d 75, 80, 5 Ill.Dec. 455, 459, 361 N.E.2d 778, 782 (1977), the court reversed the commitment of a
truant because the record was devoid of evidence that commitment was the least restrictive alternative. Specifically, there was no showing as to what alternatives to commitment were available, which of these alternatives were investigated, and why the investigated alternatives were not suitable to meet the needs of the respondent.
The Marshall panel was not critical of the trial court's decision--other than to note that the record did not show that the trial judge had considered the least restrictive means to obtain compliance with the visitation order. The sanction against the children was affirmed, however the case was remanded with an order for immediate mandate that the trial court take another look at whether the "punishment fit the crime." (My words--thank you Gilbert & Sullivan)
The Marshall panel discussed two other similar cases and noted that “ultimate responsibility” for compliance with the visitation order rests with the custodial parent," and * * * the mother “cannot escape her duty to comply with the provisions of the decree by attempting to shift this burden to the discretion of her children or some other person." The panel concluded with the suggestion that the trial court could send Kathy Marshall to jail if she has failed to comply with her duties under the visitation order,
The Marshall opinion is a published appellate opinion and contains citations. However, the opinion notes at the top that is it "for educational use only."
You may read the entire Marshall opinion here. Note that the emphasis was added by this writer. Download In Re Marshall (Illlinois Judge Jail Children)
A public record, a report from one Guardian ad Litem who has dealt with this family may be read here. Download GAL.Report.Tsimhoni
