In re Marriage of Donald B., 2014 IL 115463


Direct appeal from the circuit court of Cook County.


††††††††††† 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.


††††††††††† A provision of the Illinois Marriage and Dissolution of Marriage Act prohibits a noncustodial parent who has been convicted of a sex offense involving a minor from obtaining court-ordered visitation with his children while serving sentence and until completing ďa treatment program.Ē The circuit court of Cook County found that this provision was unconstitutional, bringing the issue before the Illinois Supreme Court on direct appeal. In this decision, that court found that the question was moot in this case and did not have to be addressed.

††††††††††† When this father of fourís divorce was finalized in 2004, arrangements were made concerning custody and visitation, but, in 2009, he was indicted concerning his alleged sexual encounters, between 2004 and 2008, with an unrelated underage girl who lived in his neighborhood. He pled guilty in 2011 to one count of felony sexual abuse and was given two years of probation. In March of 2012, the mother was given sole custody of the minor children, and the fatherís visitation was suspended pursuant to the statute at issue here. At this point, the father brought forward a challenge to its constitutionality. Viewing parental visitation as a fundamental right, the circuit court ruled in December of 2012 that the provision was unconstitutional on its face and as applied as denying substantive and procedural due process and as being violative of separation of powers. The circuit court reinstated the fatherís visitation and vacated the prior order which had suspended it, but, in January of 2013, followed up with an order requiring the father to be evaluated for a sex-offender treatment program. Pursuant to the circuit courtís written opinion, the Public Guardian, on behalf of the minor children, appealed the ruling of statutory unconstitutionality directly to the Illinois Supreme Court. The Attorney General also appealed, and the two appeals were consolidated. On order of the supreme court, the reinstatement of the fatherís visitation was stayed pending appeal.

††††††††††† On September 25, 2013, after his probation term ended, the father sought reinstatement of visitation, asserting that he had been evaluated and found not in need of treatment. He argued that this constituted statutory compliance. The appeal to the supreme court thus focused on whether there had been compliance, whether visitation should be reinstated, and whether the circuit courtís finding of unconstitutionality had been rendered moot.

††††††††††† The supreme court held that the facts in the record as to compliance are not in dispute, and thus, the question of compliance with the statute is simply a matter of statutory interpretation. This is a question of law, which the supreme court could resolve. It did so by finding that the evidence was sufficient to show compliance and that, therefore, the challenged statutory restriction on visitation no longer applies. Thus, the question of the statuteís constitutionality is moot, and the supreme court found no exceptions to the mootness doctrine that were applicable.

††††††††††† The stay on the circuit courtís order reinstating visitation was vacated. The circuit courtís ruling of statutory unconstitutionality was also vacated. The appeal was dismissed as moot, and the cause was remanded to the circuit court for further proceedings.