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In Re Marriage of D.T.W.

December 30, 2011


Appeal from the Circuit Court of Cook County No. 07 D 11714 Honorable Renee Goldfarb, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Quinn

PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Garcia and R. Gordon concurred in the judgment and opinion.


¶ 1 Respondent S.L. appeals a trial court order granting petitioner D.T. sole custody of the parties' two minor children. We affirm.*fn1

¶ 2 The parties were married on May 18, 2002, in Cook County, Illinois. The parties had two children: Z.B.D. born on February 4, 2002, and Z.M.A. born on May 29, 2007. D.T. filed a praecipe for summons in suit for a dissolution of marriage on November 26, 2007. He also filed a petition for dissolution of marriage on May 27, 2008, seeking joint custody of the children. Respondent filed a counterpetition for dissolution of marriage on August 13, 2008, seeking sole custody. On March 29, 2010, D.T. filed a petition for sole custody and amended his petition for dissolution of marriage to reflect this change. The dissolution of marriage and custody proceedings were bifurcated and a judgment dissolving the marriage was entered on June 25, 2010. After a 38-day custody trial, the court issued a 102-page written order awarding sole custody of the children to D.T.

¶ 3 At the custody trial, the court heard testimony from D.T., respondent, their friends and relatives and other persons acquainted with the family. The court also heard testimony from Doctor Phyllis Amabile, a board-certified psychiatrist and forensic psychiatrist appointed by the court as an expert on custody and visitation under section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/604(b) (West 2008)). Amabile conducted multiple interviews with D.T. and respondent and two interviews with Z.B.D., who was eight years old at the time. Amabile also observed D.T. and respondent interact with the children and conducted several interviews with collateral persons acquainted with the family. She further reviewed pleadings, motions, medical records and other relevant documents. Amabile filed a report with the court on May 6, 2010 (report), documenting her findings. In the event joint custody was not deemed appropriate by the court, Amabile filed a supplemental report addressing the issue of sole custody (supplemental report) on July 26, 2010. The following facts are taken from the testimonial evidence heard by the court and Doctor Amabile's reports.

¶ 4 D.T. was born on January 17, 1982, and spent the first eight years of his life living with his mother, JoLinda and older sister, Tragil. JoLinda had drug-related problems at the time and was incarcerated. Tragil testified that the living arrangement was rather unique because she took on a parental role with D.T. D.T. testified that Tragil was his caretaker and best friend. When D.T. was nine years old he moved in with his father and stepfamily in Robbins, Illinois. There, D.T. met respondent in grade school. The parties began dating when they were teenagers in high school. D.T. was one year behind respondent in school. During D.T.'s senior year, after respondent left for Eastern Illinois University, D.T. moved in with respondent's mother, Darlene Funches. D.T. testified that Darlene provided him with a stable home environment and was like another mother to him. D.T. lived with Darlene until he graduated high school. With Darlene's help, D.T. secured a college scholarship to play basketball at Marquette University. D.T. testified that he has become estranged from Darlene during the divorce proceeding. He said he would like to reconcile with her and foster a relationship between her and the children.

¶ 5 Respondent left Eastern Illinois University at the beginning of her sophomore year. She moved back to Chicago and became pregnant with the parties' first child, Z.B.D., who was born on February 4, 2002. The parties were married on May 18, 2002. After marrying D.T., respondent moved to Milwaukee, Wisconsin, and enrolled at Marquette University. Doctor Amabile noted in her report that from Z.B.D.'s birth to the summer of 2003, both parties were very involved with Z.B.D.'s upbringing.

¶ 6 In 2003, during D.T.'s junior year of college, he was drafted into the National Basketball Association by the Miami Heat. The parties moved to the Doral Isles neighborhood in Miami, Florida. Doctor Amabile noted in her report that although D.T. was busy with his basketball schedule and spent a lot of time away from home, he made an effort to be a good father to Z.B.D. D.T. testified that Andrea Williams, respondent's best friend, moved into the Doral Isles home with the parties because respondent was lonely. Andrea is the godmother of both Z.B.D. and Z.M.A. Andrea testified that she looked after Z.B.D. in Florida.

¶ 7 In 2006, the parties moved into a house in Pinecrest, Florida. Both D.T. and respondent testified that their Pinecrest residence was beautiful. Z.B.D. attended a Presbyterian school in Miami which the parties agreed was a very good school. Tragil and Andrea moved into the Pinecrest house and helped take care of Z.B.D. Tomasa Garcia, the parties' housekeeper, also helped take care of Z.B.D.

¶ 8 Z.M.A. was born in Chicago on May 29, 2007. Doctor Amabile testified that the bond between Z.M.A. and Z.B.D. is very strong. She said Z.M.A. looks to Z.B.D. as a source of security. Amabile said that both D.T. and respondent love and adore the children and exhibited wonderful interaction with each child. At trial, Amabile described respondent's strengths as loving, affectionate and consistent. She said respondent is very attached to the children and has been their primary caretaker since they were born. She acknowledged that respondent has had substantial help caring for the children. D.T. described the bond between respondent and the children as unbelievable and attached. Amabile noted that the children were very comfortable around respondent.

¶ 9 Doctor Amabile testified that D.T. loves the children deeply and has an identification with the parenting role. Amabile said that during her observations of D.T. with the children, she found it important that he demonstrated patience, empathy and love. She also observed that D.T. was playful, engaged and verbally affectionate with the children. Amabile said D.T. is a good teacher, has a nice sense of humor and is committed to the goal of the children doing well in the future. She said D.T. wants what is best for the children. She also said that it is important to D.T. to be a better father to his children than his father was for him and that D.T. has worked hard to accomplish that goal. The children love being with D.T. and are very comfortable around him. When the children visit D.T. in Miami, he plans activities ahead of time and provides them with a schedule and routine. Amabile noted in her report that D.T. relies heavily on his sister Tragil, his mother JoLinda and his housekeeper Tomasa for much of the hands-on care and supervision of the children.

¶ 10 Tragil has a bachelor's degree in elementary education and is a co-principal of a school. Tragil loves the children and has a great relationship with them. Tragil testified that if D.T. is awarded sole custody of the children she would move to Miami to assist him. Amabile testified that the children would be in good hands with Tragil as their caretaker. Amabile also testified that she was impressed with JoLinda's sincerity and concern about D.T. and the children. JoLinda took responsibility for being an absentee mother and acknowledged that she was given a second chance. Amabile said she was impressed favorably with JoLinda. Amabile further testified that Tomasa loved the children and was concerned about them. She said Tomasa was a positive influence on the children.

¶ 11 The parties' marriage began to experience difficulties around the time Z.M.A. was born. In August 2007, D.T. moved out of the Pinecrest residence and into a hotel. He had no set schedule for visitation with the children. Doctor Amabile noted in her report that she was critical of respondent's attitude on fostering a relationship between D.T. and the children during this time before the court ordered visitation. Amabile said that for a long period of time, respondent made visitation with the children challenging for D.T. Amabile noted that respondent negatively controlled D.T.'s access to the children.

¶ 12 D.T. filed a petition for dissolution of marriage in Chicago on May 27, 2008. Respondent then left Florida and moved to South Holland, Illinois, where the parties owned a second home. Respondent testified she moved with the children to Illinois to be near her mother. She said that Z.B.D. had completed the school year before they moved. D.T. testified that the move occurred before the school year ended for Z.B.D. and that respondent did not tell him she was moving back to Illinois. Doctor Amabile noted in her report that D.T. did not object to the move. D.T. denied telling Amabile that he did not object to the move. Although D.T. was under contract in Miami and remained there, he purchased a home for himself in Chicago.

¶ 13 Respondent enrolled Z.B.D. at Calvary Academy, a private Christian school in South Holland, Illinois. Z.M.A. is enrolled at the Calvary Academy day care program. D.T. testified that Calvary Academy is a good school and that Z.B.D. is receiving a good education. D.T. said that respondent's decision to enroll the children at Calvary Academy was a good decision. Sandy Bacheldor, an assistant in the office of Calvary Academy, testified that Z.B.D. is well liked by staff and students and is doing well academically and socially. Z.B.D.'s report cards show that he receives good grades. Z.B.D. participates in soccer through the South Holland park district, plays on a South Holland little league baseball team and participates in summer camps. All witnesses agreed that Z.M.A. is a delightful, active and well-adjusted young boy.

¶ 14 After respondent and the children moved to Illinois, visitation problems arose. D.T. testified that he had problems contacting Z.B.D. because he had to ask respondent's permission to do so. He said he felt respondent was punishing him. Respondent claimed it was D.T.'s fault for not contacting the children more often. After continued disputes, a parenting schedule was proposed by the court. The parties failed to agree on the schedule. D.T. sought parenting time in Florida during the basketball season while respondent sought parenting time for D.T. only in Chicago. In November 2008, D.T. sought court intervention to establish parenting time for him.

¶ 15 The next two years involved numerous motions and court orders regarding parenting time for D.T. Doctor Amabile noted in her report that respondent was controlling and resistant to authority on the issue of visitation. Amabile said that even after the court ordered parenting time for D.T., respondent attempted to interfere with D.T.'s relationship with the children. She pointed out that respondent had twice sought medical care for the children just before a scheduled parental visit, leading to a curtailment, restriction or cancellation of D.T.'s visit. Amabile testified that taking the children to the hospital before a scheduled visit was volitional on respondent's part. She said that respondent's actions were not in the best interests of the children. We recount some of the incidents surrounding D.T.'s visits below.

¶ 16 On December 17, 2008, the court ordered parenting time for D.T. in Florida. The order directed that D.T. was to spend Christmas with the children, that he could visit the children away from the parties' house and that respondent would not withhold her consent to this. In December 2008, respondent and the children traveled to Florida and stayed at the parties' Pinecrest residence. On December 24, 2008, the day before D.T.'s scheduled visit, respondent called D.T. and told him that Z.M.A. was sick with pneumonia, Z.B.D. was getting sick and she did not want them leaving the house. D.T. went to the house that evening for parenting time with the children as scheduled. He testified that when he arrived at the house, the front gate would not open. He called respondent but she did not answer. D.T. said the Pinecrest police arrived at the house and told him that respondent had called them. Officer Heather Setter testified in her deposition that respondent called police, saying that a car was parked outside of the front gate of the house and that respondent believed it had something to do with a case in Chicago about money that had been stolen from the family. D.T. told police that he was at the house to see his children. Police accompanied D.T. to the front door of the house and told respondent that D.T. was there to see the children. Respondent allowed D.T. to enter the house but asked the officers to sit outside the house until he left.

¶ 17 Under the December 17, 2008, court order, D.T. was scheduled to visit with the children on Christmas Day 2008. On Christmas morning, respondent took the children to the emergency room of Baptist Hospital in Miami. Respondent testified that both children had a fever, a cough and did not sleep throughout the night. She said that Z.B.D. was coughing so hard he vomited in the car on the way back from the hospital. D.T. testified the children did not seem sick when he saw them on Christmas Eve. Respondent testified that when she brought the children to the hospital on Christmas morning there was nothing wrong with them but that they were sick the night before. Doctor Amabile noted in her report that respondent's description of the children's symptoms and symptom severity was not supported by medical evidence. Amabile's report questioned respondent's decision to take the children to the hospital on Christmas morning.

¶ 18 The court ordered parenting time for D.T. in Florida during Christmas 2009. Tragil went to the South Holland residence in December 2009 to pick up the children and transport them to the airport. Tragil was greeted at the house by respondent, respondent's mother Darlene and respondent's friend Nadgee Alarcon. Doctor Amabile described Nadgee as suspicious and hostile. Amabile said Nadgee had influence over respondent and was both a good and bad influence on the children. At the house, Nadgee told Tragil that the group wanted to pray before the visitation. Tragil agreed. Tragil told Amabile that Darlene began "speaking in tongues" and saying that Tragil never had a mother and did not have a father. Nadgee prayed and said Tragil was a slave to people. Tragil said Z.B.D. and Z.M.A. were present for the prayer. Amabile testified that Tragil cried when she recounted the story to her. Amabile said Z.M.A. likely did not understand what was happening but that this behavior likely had a negative effect on Z.B.D. by alienating him from his aunt Tragil.

¶ 19 The court ordered parenting time for D.T. to take place on February 5, 2010, the day after Z.B.D.'s birthday. Under the court order, Tragil was to pick up the children at the South Holland residence. The court ordered Lester Barclay, the children's attorney, to accompany Tragil to the residence because of the December 2009 prayer incident. On the day of D.T.'s scheduled visitation, respondent texted him a photo of Z.M.A. hunched over the toilet, vomiting. She said that Z.M.A. had a high fever and asked D.T. not to take him for visitation. D.T. called Tragil and told her that Z.M.A. was sick and could not come to the visitation. Tragil testified that when Barclay and she arrived at the South Holland residence, the gate did not open. Barclay called respondent's attorney. Tragil said they waited about 20 minutes for the gate to open. Nadgee drove the children to the gate. Tragil testified that Z.M.A. was not sick and did not vomit that day. The group went to a Chicago Bulls basketball game. Tragil said she believed the picture of Z.M.A. vomiting was not taken on the date of the scheduled visitation because Z.M.A.'s hair was shorter in the picture than it was on the date of visitation. D.T. also testified that the picture looked old for the same reason.

¶ 20 The court ordered parenting time for D.T. in Miami on March 12, 2010. Respondent unsuccessfully sought to transfer the visitation to Chicago and claimed in her court pleadings that she believed Z.B.D. should not be traveling to Miami. Under the court order, Tragil was to pick up the children after school from their South Holland residence and transport them to the airport. Tragil testified that when she arrived at the house, no one responded. She said neither respondent nor the children were at the house. Tragil waited outside of the front gate of the house for two hours. D.T. testified that Tragil called him and told him that no one was responding at the South Holland residence. D.T. called his attorney and Barclay, but neither knew where the children were.

¶ 21 Respondent testified that on March 12, 2010, she received a call from Calvary Academy, informing her that Z.B.D. had a headache. She said that Z.B.D. started complaining of headaches a few weeks after he returned from visiting D.T. in Miami in December 2009. Sandy Bacheldor, an assistant in the office of Calvary Academy, testified that a phone call was made on March 12, 2010, to respondent about Z.B.D.'s headache. Bacheldor said Z.B.D. had been having headaches for a while. Respondent testified that she drove to the school and picked up both children. When respondent returned to the house with the children, she called a pediatrician and then went to the hospital with Z.B.D. Respondent's mother, Darlene Funches, testified that she watched Z.M.A. while respondent took Z.B.D. to the hospital. Respondent said she lost her mobile phone and was unable to call D.T. or Tragil to tell them of the children's whereabouts. Respondent called her attorney that day and left a message because the attorney was not in the office. The attorney did not receive respondent's message. Respondent said she did not know anyone's telephone number and was unable to call D.T. or Barclay. D.T.'s attorneys received an e-mail on March 13, 2010, telling them that Z.B.D. was in the hospital.

¶ 22 Doctor Amabile noted in her report that respondent's failure to notify those who should have been notified about Z.B.D.'s hospital visit was a lapse of good co-parenting and of common courtesy. She said there was no excuse for respondent's conduct and that respondent's failure to notify D.T. created anxiety and ill will and inflamed the circumstances of the litigation.

¶ 23 The medical records from Z.B.D.'s March 12, 2010, hospital visit show that respondent told the doctors that Z.B.D. had an accident near a pool. According to respondent, Z.B.D. fell by the side of the pool, hit his head, became dizzy, rolled into the pool, lost consciousness and was under water for an unknown period of time. The hospital notes also say that Z.B.D. almost drowned. Z.B.D. was diagnosed with a sinus infection and prescribed medication for the infection.

¶ 24 Doctor Amabile discussed Z.B.D.'s accident in her report. Z.B.D. told Amabile that while visiting D.T. in Miami in December 2009, he was playing with his cousin by the pool.

Z.B.D. slipped on the bricks, hit his chin and fell into the pool. Z.B.D. told Amabile his head did not go underwater. He pulled himself out of the pool, ran into the house and D.T. bandaged his chin. This sequence of events was corroborated by the testimony of both D.T. and Tragil. D.T. added that he did not take Z.B.D. to the hospital or tell respondent about the incident because Z.B.D. only had a scratch on his chin. Amabile testified that neither respondent nor Z.B.D. told her that Z.B.D. lost consciousness or was under water for a period of time. She noted that Z.B.D. did not almost drown. Amabile said that respondent was embellishing some of the details of Z.B.D.'s accident and lying about others.

¶ 25 Doctor Amabile further noted in her report that although Z.B.D. did experience a headache on March 12, 2010, it appeared to be similar to other headaches he had been experiencing for a few weeks before that date. Amabile said that after reviewing Bacheldor's report about the headache, she was left with the impression that there was nothing out of the ordinary or extreme about Z.B.D.'s March 12, 2010, headache. Amabile questioned respondent's decision to take Z.B.D. to the hospital on the day D.T. was scheduled to visit with the children. Amabile noted in her report that respondent either did not believe D.T.'s visits with the children were important or it was a passive-aggressive expression of hostility on respondent's part. Amabile further pointed out that just a few days after the March 12, 2010, incident, respondent tried to obtain an order of protection against D.T. on the basis of Z.B.D.'s accident.

¶ 26 The petition for order of protection was filed by respondent in Markham court on March 19, 2010. The petition alleged that Z.B.D. was suffering from headaches as a result of hitting his head and nearly drowning while he was with D.T. in Miami. Respondent sought a denial of D.T.'s visitation and that he have no contact with the children by any means, either in person, by phone, e-mail or through third parties.

¶ 27 The court ordered make-up parenting time for D.T. on May 5, 2010, to May 7, 2010, in Chicago. Under the court order, D.T. was to take Z.B.D. to his doctor's appointment on May 6 and respondent was to meet them at the doctor's office. The court order noted that D.T. had not seen the children and that phone contact had been disrupted. D.T. filed a motion for Tragil to pick up the children from school on May 5, 2010, which the court granted. Respondent objected to the motion and filed an emergency motion to reconsider. Respondent's motion was denied.

¶ 28 On May 5, 2010, respondent picked up the children at school. Respondent testified that on that date she drove to the children's school at dismissal time to bring Z.B.D. a bag with medication. Respondent said she went to Bacheldor's office with the bag and waited there until 3:30 p.m. Respondent then left the school with the children. She said she took the children because Tragil was not there at 3 p.m., dismissal time. Respondent said she believed the court order was for the children to be picked up on dismissal from school. Bacheldor testified that if Z.B.D. was not picked up from school at dismissal time, the protocol would have been for Z.B.D. to go to the extended day care program, which lasts until 6 p.m.

¶ 29 Tragil testified she arrived at the school between 3:15 and 3:30 p.m. on May 5, 2010. She said the children were nowhere to be found. Bacheldor testified that she went to a meeting at 3:20 p.m. on May 5, 2010, and when she returned from the meeting at 3:55 p.m., Tragil was in her office, looking for the children. Tragil said she called family and friends and then called the police. Bacheldor testified that Tragil waited in the parking lot of the school until about 5:30 p.m. D.T. testified that he was in an airport when Z.B.D. called him on May 5, 2010. D.T. said Z.B.D. refused to tell D.T. where he was. D.T. did not visit with the children on May 5, 2010. He said he was disappointed and upset. Respondent took Z.B.D. to the doctor's office on May 6, 2010.

¶ 30 On that date, D.T. filed an emergency motion to transfer physical possession of the children. The court granted the motion and ordered immediate physical possession of the children be transferred to D.T. until May 9, 2010. The court ordered respondent to be in court on May 10, 2010, to explain why the previous court order was not obeyed. Respondent did not appear in court on May 10, 2010. The court issued a body attachment and $10,000 cash bond for respondent. The court noted that it was troubled by the pattern of behavior that was developing in this case and respondent's unwillingness to obey court orders that were not in her favor.

¶ 31 Doctor Amabile filed her first report with the court on May 6, 2010. Amabile was unaware of the May 5, 2010, incident at that time. Amabile concluded in the report that Z.B.D. was exhibiting signs of alienation from D.T. Amabile explained that alienation is the programming of a child by the alienating parent, in this case respondent, to believe that one parent is good and the other parent is bad with the goal that the child completely reject the other parent. Amabile said that Z.B.D.'s feelings toward D.T. were ambivalent. She said that during her interviews with Z.B.D., he made a number of negative statements about D.T. Z.B.D. talked about how D.T. abandoned respondent and left her while she was pregnant with Z.M.A. Amabile found Z.B.D.'s statements to be strange for a child of his age. Amabile also noted that in a questionnaire Z.B.D. answered at the Christian Counseling Center, he said that if he could change something about his life he would change D.T.'s soul. Z.B.D. described respondent in the questionnaire as good and wise. Amabile explained that she was troubled by Z.B.D.'s belief that D.T. had something wrong with his soul and Z.B.D.'s unbalanced view of his parents. Amabile said that these were signs of alienated thinking on Z.B.D.'s part.

¶ 32 Doctor Amabile also noted in this report that during one of her observations of the interaction between D.T. and the children, Z.B.D. wrote a note to her which read "I am going to ask my dad some [questions]." Z.B.D. then stood next to Amabile and asked D.T. a series of questions, including what Z.M.A. meant to him. Amabile said Z.B.D. asked the questions in a confrontational voice. Amabile testified that she has never in all of her years of experience seen a child do this. She said D.T. did a good job answering the questions, exhibiting patience, empathy and love.

¶ 33 Doctor Amabile described respondent in the report as loving and affectionate. Amabile said respondent loves the children, has a strong identification with the parenting role and is very attached to the children. Amabile noted that respondent has been the children's primary caretaker since they were born. But, Amabile also noted that respondent does not understand how she has placed the children in the middle of the parties' divorce, how Z.B.D. has suffered because of the pressure he feels and how it is wrong for her to say disparaging things about D.T. to the children. Amabile recommended joint custody with respondent as the primary residential parent. She advised respondent seek counseling with the goal of helping respondent learn to shelter the children from divorce conflicts and support the children's relationship with D.T.

¶ 34 Friday, May 29, 2010, was Z.M.A.'s third birthday. Although Friday would usually be the start of parenting time for D.T., Z.M.A. spent the day with respondent because the parties could not reach an agreement to share parenting time. Because of the lack of agreement, the court entered an order on May 28, 2010, scheduling parenting time for D.T. to begin at 2 p.m. on Saturday, May 30, 2010. The court order provided that Tragil was to be the transporter of the children for this and future parenting visitations with D.T. Respondent objected to this arrangement.

¶ 35 Also on May 28, 2010, respondent filed a civil complaint for intentional infliction of emotional distress against Tragil in court at Markham. The lawsuit was brought by Z.B.D. and Z.M.A. through respondent. The complaint sought money damages and alleged that Tragil: placed the children in the care of strangers who were not authorized caregivers; deprived Z.B.D. of his cellular telephone so he could not contact respondent; left the children in the company of a young girl who forced Z.M.A. to kiss another young girl on the lips; failed to properly feed the children during visitation; and allowed both children to nearly drown while acting as a caregiver.

¶ 36 Doctor Amabile later testified at the custody trial that, except for the allegation that the children almost drowned, respondent did not tell her about the other allegations in the May 28, 2010, complaint. Amabile said respondent never told her that Tragil was emotionally damaging to the children. Amabile also said that her investigation did not reveal evidence of extreme or outrageous conduct on Tragil's part. She testified that Tragil loves the children and that the children love her. Amabile described the lawsuit as a "bad idea." She also said that it was another example of the process of alienation. Respondent testified at the custody trial that she filed the lawsuit against Tragil to protect the children.

¶ 37 On May 31, 2010, D.T. went to the South Holland residence with the court order for visitation. D.T. waited outside the front gate of the house for about one hour because the gate was closed. Respondent denied that she did not open the gate. D.T. called police. D.T. said he had a birthday party planned for Z.M.A. at D.T.'s house and that Z.M.A.'s whole family was going to attend the party. Z.B.D. exited the house and, in the presence of police, told D.T. that he did not want to go to Z.M.A.'s birthday party. The front gate of the house separated Z.B.D. from D.T. Respondent testified that Z.B.D. asked a police officer not to make him go to the party.

D.T. took only Z.M.A. to the party.

¶ 38 The next day, D.T. filed an emergency motion for immediate turnover of the children. The court granted the motion and ordered the children be turned over to D.T. from June 2, 2010, to June 7, 2010, with the parties to appear in court on June 7, 2010. The court expressed its concern that respondent's actions were prolonging the litigation in this case.

¶ 39 Also on June 1, 2010, respondent went to the Markham court with Z.B.D. and filed a criminal petition for order of protection on behalf of Z.B.D. against Tragil. Respondent alleged in the petition that on May 30, 2010, Tragil hit Z.B.D. in the right arm with her fist. The petition sought for Tragil to have no contact with the children and included a request to prohibit Tragil from entering or remaining at Calvary Academy. The petition alleged that it was probable that Tragil would be under the influence of drugs and would likely be carrying weapons. Respondent later testified at the custody trial that she had never seen Tragil with a weapon and that she did not take Z.B.D. to the Markham court on June 1, 2010. She was impeached with the transcript of the June 1, 2010, proceeding. During the proceeding, respondent told the court that there was a history of abuse between Tragil and the children. The petition indicated that there was no other pleading or action involving the parties pending before the court.

¶ 40 Tragil's criminal trial in Markham took place on September 2, 2010. Respondent signed Z.B.D. out of school on that date to testify against Tragil at the trial. Respondent later acknowledged at the custody trial that she alone was under subpoena by the State. At the criminal trial against Tragil, Z.B.D. testified that on May 30, 2010, Z.M.A. and he were in a car inside the front gate of the South Holland residence. Respondent's mother and Nadgee were also inside the car. Tragil was in another car parked outside of the front gate. When the gate opened, Z.M.A. ran to Tragil and entered her car. Z.B.D. said he stood by the gate for a few minutes, debating whether or not he wanted to go with Tragil. He then told Tragil that Z.M.A. and he did not want to go with her. Z.B.D. said Tragil grabbed his arm and he kicked her in the leg. Tragil then hit him with her fist. Z.B.D. said he then went to Tragil's car, unstrapped Z.M.A. from the car seat, removed him from the car and together ran back to Darlene's car.

¶ 41 On cross-examination, Z.B.D. acknowledged that he did not want to be in court and that he did not know he was going to be testifying at trial. He also acknowledged that testifying put him in a "funny position" because he had to pick a side between his mother and father. He further acknowledged that this made him uncomfortable and that he did not want to see anything bad happen to his aunt Tragil.

ΒΆ 42 Tragil testified at the criminal trial that when she arrived at the South Holland residence on May 30, 2010, Z.M.A. ran out of the car driven ...

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