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In re Marriage of Donald B.

Supreme Court of Illinois

May 22, 2014

In re MARRIAGE OF DONALD B., Petitioner-Appellee and Roberta B., Respondent Lisa Madigan, Attorney General of the State of Illinois, Intervenor-Appellant

Appeal dismissed. Circuit court judgment vacated. Stay vacated and cause remanded.

SYLLABUS

Where a noncustodial parent who had a sex offense conviction was statutorily barred from court-ordered visitation until successful completion of a court-ordered treatment program, a constitutional challenge to that statute was moot after an evaluation for sex-offender treatment yielded a recommendation that no further treatment was necessary--no mootness exception applicable.

For APPELLANT (115553): Ms. Mary Brigid Hayes, Office of the Cook County Public Guardian; Ms. Kass Plain, Assistant Cook County Public Guardian; Public Guardian of Cook County; Ms. Margaret Elizabeth Currin, Office of the Cook County Public Guardian, Chicago, IL.

For APPELLEE (115553): Ms. Kathleen Marie DiCola, Mr. Zachary M. Bravos, Law Offices of Zachary M. Bravos, Law Offices of Zachary M. Bravos, Wheaton, IL.

For OTHER (115553): Mr. Christopher M.R. Turner, Asst. Attorney General, Civil Appeals Div, Chicago, IL; Mr. David J. Silberman, Levine, Wittenberg & Shugan, Attorneys at Law, Tinley Park, IL; LeVine, Wittenberg & Shugan, Attorneys at Law, Tinley Park, IL; Hon. Mark Joseph Lopez, Associate Judge, Chicago, IL; Hon. Timothy Charles Evans, Chief Judge of the Circuit Cort of Cook County, Chicago, IL; Clerk of Circuit Court of Cook County, Civil Appeals Division, Chicago, IL.

For APPELLANT (115463): Mr. Christopher M.R. Turner, Asst. Attorney General, Civil Appeals Div, Chicago, IL.

For APPELLEE (115463): Ms. Kathleen Marie DiCola, Law Offices of Zachary M. Bravos, Law Offices of Zachary M. Bravos, Wheaton, IL.

For OTHER (115463): Ms. Mary Brigid Hayes, Office of the Cook County Public Guardian, Chicago, IL; Mr. Robert Forsyth Harris, Cook County Public Guardian, Chicago, IL; Mr. David J. Silberman, Levine, Wittenberg & Shugan, Tinley Park, IL; LeVine, Wittenberg & Shugan, Attorneys at Law, Tinley Park, IL.

JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

OPINION

Page 824

BURKE, JUSTICE.

This matter comes before us on direct appeal from a circuit court of Cook County judgment finding section 607(e) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/607(e) (West (2010)) unconstitutional on its face and as applied to petitioner, Donald B. Section 607(e) prohibits a non-custodial parent who has been convicted of a sexual offense perpetrated on a victim less than 18 years of age from obtaining court-ordered visitation with his or her children while serving his sentence and until successfully completing " a treatment program approved by the court."

In this case, after Donald's visitation with his minor children was suspended pursuant to section 607(e), he challenged the constitutionality of the statute. The circuit court of Cook County ruled the statute unconstitutional and then ordered visitation be reinstated. That order was stayed, however, by this court at the request of the Cook County Public Guardian (Public Guardian), who brought this appeal from the circuit court's finding of unconstitutionality on behalf of Donald's two minor children, Andrea B. and Jonathan B.[1] Lisa Madigan, Attorney General of the State of Illinois, has also filed an appeal from the circuit court's ruling as intervenor. We have consolidated the two appeals for our review.

After the parties submitted their briefs and oral argument was heard, Donald filed a motion in the circuit court seeking reinstatement of visitation, asserting that he was now in compliance with section 607(e) of the Marriage Act. This raised a question as to whether the appeal before

Page 825

us had been rendered moot. We requested additional briefing.

We now hold that the appeal before us is moot and no exceptions to the mootness doctrine apply to permit our consideration of the statute's constitutionality. Accordingly, we lift the stay order entered by this court, vacate the circuit court's order finding the statute unconstitutional, and remand to the circuit court for further proceedings consistent with this opinion.

BACKGROUND

Donald (Petitioner) and Roberta (Respondent) were married in 1995. Together they have four children: Erin, born November 15, 1991(now emancipated); Derek, born June 4, 1994 (now emancipated); Andrea, born March 24, 1998, and Jonathan, born October 2, 1999. In 2002, Donald filed a petition for dissolution of marriage, in which he alleged that Roberta had abandoned him and the children in November 2001. Donald sought sole custody of the children and child support from Roberta.

After several continuances, a final judgment for dissolution of marriage was entered in October 2004, in accord with a marital settlement agreement and joint parenting agreement. The joint parenting agreement provided that Donald and Roberta would share custody of the children, but that the children's ...


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