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Custody agreement appealed in IL which agreement is in "play"?

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JH37

Junior Member
My wife had her daughter in Illinois with her ex in 2003 and they agreed to joint custody, they were never married. In October of 2010 my wife and I got married in the state of California (where I currently reside) and as of May 2011 she won the custody to remove her daughter from the state of Illinois and move to the state of California at the start of the school year. The custody agreement is that the daughter remains in California for the school year and flies back to Illinois for Holidays (Summer, Thanksgiving, Winter & Spring Break). If the father moves away from his current city (which is very likely) he will have to pay for 1/2 of fee of the transportation and my wife is required to pay for full transport if he stays in his current location. This ruling was based that he made his case that my wife was removing their child from the community. When in fact if she moved from the community he too would move, either with or near his mother as he does not make enough income to sustain himself and a child on his own. Thus the only reason they were even staying in the community was based on her.

So as of last month my wife moved out to California to start a new job. My wife having a new job to start ended her lease and quit her Illinois job. 5 days before she was to fly out to California the ex tried to prevent her from leaving by telling her that he is filing an appeal and that the custody would revert back to the original agreement of basically 50/50 split time upon filing. The whole time though his lawyer seemed to be stalling and not agreeing to the agreement that my wife's lawyer was drawing up. In fact it took nearly 2 months and my wife's lawyer merely just brought the paperwork to the judge and it was finally filed last week. Two days ago her ex filed for an appeal.

Our belief is that he was stalling on the agreement so that when he filed for the appeal so their daughter would be forced to be in the Illinois school when the year starts causing another 4 month to 9 month push for her daughter to move out here. Which would in turn cause my wife to move back and help take care of her daughter.

Which leads to the actual question, which agreement is in "play" until the appeal is settled? The old one, which would require my wife to move back to Illinois (which is not feasible monetarily) or the one stating that her daughter will move to California when the school year starts?

Also as I don't know how to handle this situation, any advice on what to do now would be appreciated.

My wife and I don't have much money and can't realistically afford to rehire the attorney or another one. What should my wife and I do? I know I'm the Legal Stranger in this situation but I'm also the monetary support (as little as I have got) so I need to help figure this situation out.

Thank you.
 
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Ohiogal

Queen Bee
An Appeal may put a stay on all items under said appeal so it would revert to the 50/50 timeshare. Dad has EVERY RIGHT to appeal a decision. Whether he wins or not no one knows. But he has the right ot appeal.

ETA: Please see post 4 below with the actual rule. It would not let me add it here.
 
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LdiJ

Senior Member
My wife had her daughter in Illinois with her ex in 2003 and they agreed to joint custody, they were never married. In October of 2010 my wife and I got married in the state of California (where I currently reside) and as of May 2011 she won the custody to remove her daughter from the state of Illinois and move to the state of California at the start of the school year. The custody agreement is that the daughter remains in California for the school year and flies back to Illinois for Holidays (Summer, Thanksgiving, Winter & Spring Break). If the father moves away from his current city (which is very likely) he will have to pay for 1/2 of fee of the transportation and my wife is required to pay for full transport if he stays in his current location. This ruling was based that he made his case that my wife was removing their child from the community. When in fact if she moved from the community he too would move, either with or near his mother as he does not make enough income to sustain himself and a child on his own. Thus the only reason they were even staying in the community was based on her.

So as of last month my wife moved out to California to start a new job. My wife having a new job to start ended her lease and quit her Illinois job. 5 days before she was to fly out to California the ex tried to prevent her from leaving by telling her that he is filing an appeal and that the custody would revert back to the original agreement of basically 50/50 split time upon filing. The whole time though his lawyer seemed to be stalling and not agreeing to the agreement that my wife's lawyer was drawing up. In fact it took nearly 2 months and my wife's lawyer merely just brought the paperwork to the judge and it was finally filed last week. Two days ago her ex filed for an appeal.

Our belief is that he was stalling on the agreement so that when he filed for the appeal so their daughter would be forced to be in the Illinois school when the year starts causing another 4 month to 9 month push for her daughter to move out here. Which would in turn cause my wife to move back and help take care of her daughter.

Which leads to the actual question, which agreement is in "play" until the appeal is settled? The old one, which would require my wife to move back to Illinois (which is not feasible monetarily) or the one stating that her daughter will move to California when the school year starts?

Also as I don't know how to handle this situation, any advice on what to do now would be appreciated.

My wife and I don't have much money and can't realistically afford to rehire the attorney or another one. What should my wife and I do? I know I'm the Legal Stranger in this situation but I'm also the monetary support (as little as I have got) so I need to help figure this situation out.

Thank you.
The last orders that the judge signed are the ones in effect, therefore the orders giving permission for the child to relocate to CA are what is currently in effect.

However, your wife is going to have to defend the appeal, so either she pays the attorney or she travels back to IL frequently for court. It would likely be cheaper to pay the attorney.
 

Ohiogal

Queen Bee
The last orders that the judge signed are the ones in effect, therefore the orders giving permission for the child to relocate to CA are what is currently in effect.

However, your wife is going to have to defend the appeal, so either she pays the attorney or she travels back to IL frequently for court. It would likely be cheaper to pay the attorney.
NOT if they ahve been stayed.
Rule 305. Stay of Judgments Pending Appeal

(a) Stay of Enforcement of Money Judgments. The enforcement of a judgment for money only, or any portion of a judgment which is for money, shall be stayed if a timely notice of appeal is filed and an appeal bond or other form of security, including, but not limited to, letters of credit, escrow agreements, and certificates of deposit, is presented to, approved by and filed with the court within the time for filing the notice of appeal or within any extension of time granted under paragraph (c) of this rule. Notice of the presentment of the bond or other form of security shall be given by the judgment debtor to all parties. The bond or other form of security ordinarily shall be in an amount sufficient to cover the amount of the judgment and costs plus interest reasonably anticipated to accrue during the pendency of the appeal. If a form of security other than an appeal bond is presented, the appellant shall have the burden of demonstrating the adequacy of such other security. If the court, after weighing all the relevant circumstances, including the amount of the judgment, anticipated interest and costs, the availability and cost of a bond or other form of security, the assets of the judgment debtor and of the judgment debtors insurers and indemnitors, if any, and any other factors the court may deem relevant, determines that a bond or other form of security in the amount of the judgment plus anticipated interest and costs is not reasonably available to the judgment debtor, the court may approve a bond or other form of security in the maximum amount reasonably available to the judgment debtor. In the event that the court approves a bond or other form of security in an amount less than the amount of the judgment plus anticipated interest and costs, the court shall impose additional conditions on the judgment debtor to prevent dissipation or diversion of the judgment debtors assets during the appeal.

(b) Stays of Enforcements of Nonmoney Judgments and Other Appealable Orders. Except in cases provided for in paragraph (e) of this rule, on notice and motion, and an opportunity for opposing parties to be heard, the court may also stay the enforcement of any judgment, other than a judgment, or portion of a judgment, for money, or the enforcement, force and effect of appealable interlocutory orders or any other appealable judicial or administrative order. The stay shall be conditioned upon such terms as are just. A bond or other form of security may be required in any case, and shall be required to protect an appellees interest in property.

(c) Extensions of Time. On motion made within the time for filing the notice of appeal or within any extension granted pursuant to this paragraph, the time for the filing and approval of the bond or other form of security may be extended by the circuit court or by the reviewing court or a judge thereof, but the extensions of time granted by the circuit court may not aggregate more than 45 days unless the parties stipulate otherwise. A motion in the reviewing court for any extension of time for the filing and approval of the bond or other form of security in the circuit court must be supported by affidavit and accompanied by a supporting record (Rule 328), if the record on appeal has not been filed.

(d) Stays by the Reviewing Court. Except in cases provided for in paragraph (e) of this rule, application for a stay ordinarily must be made in the first instance to the circuit court. A motion for a stay may be made to the reviewing court, or to a judge thereof, but such a motion must show that application to the circuit court is not practical, or that the circuit court has denied an application or has failed to afford the relief that the applicant has requested, and must be accompanied by suggestions in support of the motion and a supporting record (Rule 328), if the record on appeal has not been filed. If a stay is granted by the reviewing court or a judge thereof, the clerk shall notify the parties and transmit to the clerk of the circuit court or administrative agency a certified copy of the order granting the stay.

(e) Automatic Stay Pending Appeal of Termination of Parental Rights. (1) An order terminating the parental rights of any person that is entered in a proceeding initiated under the Juvenile Court Act of 1987 shall be automatically stayed for 60 days after entry of the order of termination. If notice of appeal is filed with respect to the termination order within the 60 days, the automatic stay shall continue until the appeal is complete or the stay is lifted by the reviewing court. If notice of appeal is not filed within the 60 days, the automatic stay shall expire.
And it is possible for those orders to be stayed. According to the rules of Illinois. While I said "normally" in my prior post that may be a bit misleading but it is very possible that they can be.
 

Ohiogal

Queen Bee
The last orders that the judge signed are the ones in effect, therefore the orders giving permission for the child to relocate to CA are what is currently in effect.

However, your wife is going to have to defend the appeal, so either she pays the attorney or she travels back to IL frequently for court. It would likely be cheaper to pay the attorney.
You have no clue about appeals, do you? Most clients do not ever see the inside of a courtroom on an appeal. Appeals are fought on the record and briefs. The only ones that go to court are the attorneys --unless she is unrepresented -- for ORAL ARGUMENT.

For proper information on appeals, OP, please go to the following:
Casemaker - Browse
 

LdiJ

Senior Member
You have no clue about appeals, do you? Most clients do not ever see the inside of a courtroom on an appeal. Appeals are fought on the record and briefs. The only ones that go to court are the attorneys --unless she is unrepresented -- for ORAL ARGUMENT.

For proper information on appeals, OP, please go to the following:
Casemaker - Browse
I assumed an appeal from the magistrate to the sitting judge, as the OP indicated that dad had very little money. I am quite aware of how an appeal to the higher courts work, most particularly as to how much money it takes to make that kind of appeal.

And yes, I am quite aware that orders can be "stayed". However until and unless the orders are stayed, the last orders signed by the judge are what is in effect...and so far there is nothing to indicate that the orders have been stayed, and nothing to indicate the likihood of the orders being stayed.
 
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Ohiogal

Queen Bee
I assumed an appeal from the magistrate to the sitting judge, as the OP indicated that dad had very little money.

And yes, I am quite aware that orders can be "stayed". However until and unless the orders are stayed, the last orders signed by the judge are what is in effect...and so far there is nothing to indicate that the orders have been stayed, and nothing to indicate the likihood of the orders being stayed.
Don't assume. He said AN APPEAL. He also stated that the JUDGE made the decision. Hence, it would be an actual appeal. And yet you didn't bring up the fact that the orders could be stayed. Your answer may be entirely wrong. The stay, if issued, would have been sent to mom's attorney.

You REALLY need to start posting caselaw, rules and other things to back up your assertions -- I do so even though I STUDIED the law and passed the bar and practice daily. You're smart but your constant refusal to actually back anything up makes you look idiotic and/or stupid when you are wrong which happens quite a bit when you don't check things.
 

LdiJ

Senior Member
Don't assume. He said AN APPEAL. He also stated that the JUDGE made the decision. Hence, it would be an actual appeal. And yet you didn't bring up the fact that the orders could be stayed. Your answer may be entirely wrong. The stay, if issued, would have been sent to mom's attorney.

You REALLY need to start posting caselaw, rules and other things to back up your assertions. Your smart but your constant refusal to actually back anything up makes you look idiotic when you are wrong.
Your answer may be entirely wrong as well.

1) Most laypeople don't refer to a magistrate as a magistrate, they call them "the judge" even though that is incorrect.
2) This was an agreement that the father delayed/avoided signing after the fact and mom's attorney finally submitted it to the judge and the judge signed off on it.
3) Dad doesn't appear to have the requisite 5-10k laying around that it takes to start an appeal to a higher court.
4) The judge/magistrate certainly isn't going to issue a "stay" in this scenario and where is the smoking gun that would cause the higher courts to hear this as an emergency for the purposes of issuing a stay?

Come on OG...stays are not that common in family law cases...even when there is evidence that judges made an error of law or abused their discretion.
 

Ohiogal

Queen Bee
Your answer may be entirely wrong as well.

1) Most laypeople don't refer to a magistrate as a magistrate, they call them "the judge" even though that is incorrect.
My answer is correct based on the fact that OP stated judge. Based on HIS wording I am correct.

2) This was an agreement that the father delayed/avoided signing after the fact and mom's attorney finally submitted it to the judge and the judge signed off on it.
So?
3) Dad doesn't appear to have the requisite 5-10k laying around that it takes to start an appeal to a higher court.
It is not a required 5-10k for an appeal. Where did you get those numbers? Seriously. Filing fee is no where near 5-10k. Should I find those costs? Also the transcript doesn't necessarily cost 5-10k. Heck depending on the length of the hearing it may not cost more than a couple hundred. (Think $3-4 a page -- one page per minute). And you do not know what dad is being charged by his attorney.


4) The judge/magistrate certainly isn't going to issue a "stay" in this scenario and where is the smoking gun that would cause the higher courts to hear this as an emergency for the purposes of issuing a stay?
Emergency? You don't necessarily need an emergency. You need an argument of law. If dad has a chance of getting it overturned then a stay can be issued. The stay is issued PER THE RULES if the stay would BE JUST. Can you read? Did you read what I posted?

Come on OG...stays are not that common in family law cases...even when there is evidence that judges made an error of law or abused their discretion.
Sorry but wrong. I have seen many stays issued in family law cases. Especially when it involves no danger to the child but a parent's relationship could be harmed or drastically changed. Again, back up ANYTHING you state with actual facts. Please. Give some documentation -- case law, rule, anything, to prove that what you are stating is factual and not just something you pulled out of your rear. Oh yeah, you won't.
 

JH37

Junior Member
I am not sure what has happened thus far within the legal system. My wife had received a vague email last night from her lawyer regarding the matter. It merely stated "he filed for an appeal on Friday" and that was the only real mention of the matter. To clear things up, my mention of judge only refers to the signing of the agreement.

How long is it before we are notified of a Stay?

Though the father has no money his mother has been helping him out financially over the last 8 years. So there is no doubt she will pay for whatever costs in this appeal. Though she is not wealthy either.

Are there odds that his appeal may not be granted? What have been reasons that have happened in the past?
 

Ohiogal

Queen Bee
I am not sure what has happened thus far within the legal system. My wife had received a vague email last night from her lawyer regarding the matter. It merely stated "he filed for an appeal on Friday" and that was the only real mention of the matter. To clear things up, my mention of judge only refers to the signing of the agreement.

How long is it before we are notified of a Stay?

Though the father has no money his mother has been helping him out financially over the last 8 years. So there is no doubt she will pay for whatever costs in this appeal. Though she is not wealthy either.

Are there odds that his appeal may not be granted? What have been reasons that have happened in the past?
You will not be notified. Your wife should be notified shortly after a stay is granted IF it is granted. If he is filing within the proper time period then he has an appeal by right and he will be able to proceed on the appeal. If you mean that will he win his appeal -- well that depends on if there were any errors made regarding application of the law AND if he properly argues them to the appellate court. It is POSSIBLE that he will win. However with judicial discretion it is not a guarantee.
 

mistoffolees

Senior Member
My wife and I don't have much money and can't realistically afford to rehire the attorney or another one. What should my wife and I do? I know I'm the Legal Stranger in this situation but I'm also the monetary support (as little as I have got) so I need to help figure this situation out.
Your wife (not you and not 'we') can't realistically afford NOT to have an attorney on this. Appeals are complex and it's easy for a layman to mess it up.

Not to mention, of course, that your wife will be flying back and forth to IL on at least one occasion (and probably more), so you're going to have expenses, either way--and she's going to have to take time off from her new job. Better to have a professional handle it.
 

Ohiogal

Queen Bee
Your wife (not you and not 'we') can't realistically afford NOT to have an attorney on this. Appeals are complex and it's easy for a layman to mess it up.

Not to mention, of course, that your wife will be flying back and forth to IL on at least one occasion (and probably more), so you're going to have expenses, either way--and she's going to have to take time off from her new job. Better to have a professional handle it.
Misty, if this is an appeal, why do you believe she will be flying back and forth to IL on at least one occasion? Seriously. For many appeals, the client's only involvement is to say, I want you to do the appeal, and the client pays for it. They don't have to be present for hearings or anything of that nature.

I do appeals and throughout the whole thing I seldom have to have communication with my client. My only communication is letting the client know the appeal has been filed unless, of course, the client calls me and asks questions.

Appeals are NOT client-centered events. They are COURT-centered. They involve reading transcripts, researching law and writing a brief of several pages. Then maybe a response brief. IN addition to the attorney presenting an oral argument if they choose to do so.
 

JH37

Junior Member
You will not be notified. Your wife should be notified shortly after a stay is granted IF it is granted. If he is filing within the proper time period then he has an appeal by right and he will be able to proceed on the appeal. If you mean that will he win his appeal -- well that depends on if there were any errors made regarding application of the law AND if he properly argues them to the appellate court. It is POSSIBLE that he will win. However with judicial discretion it is not a guarantee.
I understand that I personally won't be notified... it's that she will be notified and then she will tell me. That is the only "we" in this situation. But this situation being her problem and we are a family, it's mine as well... and that is the only "we" that I am referring to.

Based only on my wife's words I believe the father's basis for appeal is that he was given an unfair ruling by a judge that is not fit to rule on such a case. He claims that because she is divorced and her previous husband did not pay child support that her decision was compromised and unfair to him.

I understand that the father has the right to appeal but the appeal does still need to be granted by a judge right? I'm just trying to better get an understanding of the situation and what roads my wife can take.

Thanks.
 

mistoffolees

Senior Member
Misty, if this is an appeal, why do you believe she will be flying back and forth to IL on at least one occasion? Seriously. For many appeals, the client's only involvement is to say, I want you to do the appeal, and the client pays for it. They don't have to be present for hearings or anything of that nature.
If Mom wants to handle it without an attorney, she will need to fly back on at least one occasion, so she's going to have significant expenses even if she doesn't get an attorney. If she does it with an attorney, she probably won't need to go back.

That's what I was trying to convey. Sorry I wasn't clear.
 
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