Appeal from the Circuit Court of Du Page County. No. 90-CF-1178-02. Honorable Thomas E. Callum, Judge, Presiding.
Petition for Leave to Appeal Denied June 2, 1994.
The opinion of the court was delivered by: Colwell
JUSTICE COLWELL delivered the opinion of the court:
Defendant, Joyce B. Olsewski, was convicted after a bench trial of child abduction (Ill. Rev. Stat. 1989, ch. 38, par. 10-5(b)(2) (now 720 ILCS 5/10-5(b)(2) (West 1992))). The issue raised on appeal is whether a trial court may order a parent convicted of abducting her own children to turn over custody of the children to the other parent when the parent/offender had legal custody of the children at the time she committed the offense. We reverse.
The testimony and other evidence received at trial revealed that in 1987 the circuit court of Du Page County entered an order dissolving the marriage of defendant and James Rizza (James) and awarding sole custody of the two minor children, Carl Anthony Rizza and Grace Marie Rizza, to defendant. The court awarded James reasonable visitation. Early in 1989, defendant learned that her current husband, Robert Olsewski, was being transferred to Louisiana by his employer. Accordingly, in May 1989, defendant moved to Louisiana with her husband and her children.
On August 15, 1989, defendant returned to Illinois to conclude the sale of her Illinois home. Upon returning she found a packet of papers on her doorstep instructing her to appear in court on August 16. James had filed a petition for a rule to show cause and sought a restraining order prohibiting defendant from removing the children from Illinois.
Both defendant and James appeared in court on August 16, but neither was represented by an attorney. The Judge informed defendant that she could not remove the children outside of the jurisdiction without the permission of the court. Defendant stated that she was not aware that she had to obtain the permission of the court and explained that she was under the impression that James had no objection to her move to Louisiana. She also explained that her son was scheduled to start school in Louisiana in two weeks. The Judge ordered her to obtain an attorney and appear back in court on August 23.
Defendant returned to Louisiana on August 17. She did not appear in court on August 23, and on that date the court entered a written order directing defendant not to remove the children from Illinois. On October 3, 1989, James petitioned the court for a change of custody. Defendant did not appear at the October 23 hearing on the petition, and the court on that date awarded temporary custody of the children to James and issued a writ of attachment.
The children remained with defendant in Louisiana. Defendant subsequently initiated custody proceedings in the Louisiana court. James participated in these proceedings. On November 6, 1992, this court affirmed the circuit court's order of September 4, 1991, quashing the writ of attachment and relinquishing jurisdiction over the custody dispute to the Louisiana court. See In re Marriage of Rizza (1992), 237 Ill. App. 3d 83, 91, 603 N.E.2d 134.
Defendant was charged with child abduction on September 7, 1990. The indictment alleged that defendant violated section 10-5(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 10-5(b)(1) (now 720 ILCS 5/10-5(b)(1) (West 1992))) by removing the children from Illinois in violation of the October 23, 1989, order granting James temporary custody of the children. Defendant surrendered to the trial court on September 4, 1991. On January 8, 1992, defendant was charged by indictment with two additional counts of child abduction. These counts alleged violations of section 10-5(b)(2) (Ill. Rev. Stat. 1991, ch. 38, par. 10-5(b)(2) (now 720 ILCS5/10-5(b)(2) (West 1992))) stemming from defendant's failure to obey the court's orders of August 16, and August 23, 1989.
The court held a bench trial on January 9, 1992, and entered a finding of guilty as to additional count II which alleged that defendant violated the court's order of August 16, 1989. The court concluded, however, that, because the evidence did not demonstrate that defendant received notice or was aware of the orders of August 23, and October 23, 1989, she did not intentionally violate them. Accordingly, the court entered findings of not guilty with respect to count I and additional count III. On March 6, 1992, the trial court sentenced defendant to a period of 20 days' incarceration in the Du Page County jail and 30 months' probation. As a condition of her probation, the trial court also ordered defendant to "cause Carl Anthony Rizza and Grace Marie Rizza to be returned to their lawful custodian, James Rizza within 30 days of this order." Defendant filed a timely notice of appeal.
Although defendant does not raise the issue on appeal, we believe defendant should not have been convicted of child abduction. Defendant was convicted pursuant to section 10-5(b)(2) of the Criminal Code of 1961 which reads: "[a] person commits child abduction when he or she * * * intentionally violates a court order prohibiting the person from * * * removing the child from jurisdiction of the court." (Ill. Rev. Stat. 1989, ch. 38, par. 10-5(b)(2) (now 720 ILCS 5/10-5(b)(2) (West 1992)).) However, section 10-5(c)(1) reads: "it shall be an affirmative defense that * * * the person had custody of the child pursuant to a court order granting legal custody * * * which existed at the time of the alleged violation." (Ill. Rev. Stat. 1989, ch. 38, par. 10-5(c)(1) (now 720 ILCS 5/10-5(c)(1) (West 1982)).) It is undisputed that defendant had sole legal custody of the children on August 16, 1989, the date of the order which she had allegedly violated by moving to Louisiana in May 1989.
Defendant's counsel included in his disclosure to the prosecution prior to trial that the defense intended to assert the defenses of innocence, that defendant had legal custody at the time of the violation, and that defendant was fleeing an incidence or pattern of domestic violence. However, defendant's primary defense at trial was that she did not intentionally violate the ...