Order Dismissing Post-Dissolution Custody Petition Immediately Appealable

Michael and Rose A’Hearn divorced in 2006. But their lawsuit did not end there. About two years later, Michael filed for two rules to show cause, complaining that Rose was interfering with Michael’s visitation and that she was engaging in immoral behavior. After mediation, Michael and Rose agreed on communication with and visitation of the child, but not on custody.

A month later, Michael filed a petition to modify custody. But the trial court later barred Michael’s witnesses because he had not disclosed them timely. Without witnesses, Michael’s custody petition was dismissed. Rose then filed a petition to extend maintenance and family support. Rose’s petitions were pending when Michael appealed the dismissal of his custody petition.

The first question was whether the appellate court had jurisdiction to consider Michael’s appeal, even though Rose’s petitions still were pending. The Third District Illinois Appellate Court ruled that it had jurisdiction because Michael’s custody petition was a new action, making its dismissal final and appealable.

The appellate court was concerned that the best interests of the child would not be served by delaying the custody appeal pending resolution of Rose’s other disputes. Here is how the court viewed the problem:

Postdissolution proceedings may well continue a decade or more after the divorce decree is entered … Overall, it does not serve the interests of justice where one party can defeat appellate jurisdiction, especially on issues of child custody, simply by filing a separate, completely unrelated petition. The case sub judice is a perfect example. Rose, having won at the trial level on a custody issue, could simply defeat appellate jurisdiction by filing her petition to extend maintenance which, on its face, has nothing to do with a modification of child custody.

This case continues the debate over whether individual post-dissolution petitions are appealable when they are decided, or whether all pending post-dissolution matters must be decided before any of them are appealable. Read the entire case, including the court’s analysis of the split among Illinois appellate districts, IRMO A’Hearn, No. 3-20-0831 (3/21/11), by clicking here.