Agers Case Holds Mom in Contempt For Not Allowing Visitation Between Daughter and Father

Holly Agers, the mom of the five year old in this case, entered into an agreed parenting schedule with the child’s father.  Without any notice to the father, she stopped the parenting time and alleged that the father was sexually assaulting their daughter.  Holly hired a therapist who agreed with the mom.

The mother filed a motion to terminate the father’s parenting time and the father filed a motion to hold the mother in contempt.  The mother also filed a motion for the court to have an incamera interview with the parties’ daughter.  An incamera interview is an interview with the judge, typically in his chambers, without either of the parents being present.

The mother’s motion for the incamera interview was denied and the Appellate court affirmed the trial court, stating that the trial judge is allowed to use his/her discretion when scheduling such an interview.  The parent does not have an absolute right to have the child speak to the court.

Section 604(a) of the Act states that a “court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation.” 750 ILCS 5/604(a)(West 2008). In re Marriage of Willis, 234 Ill. App. 3d 156, 159, 599 N.E.2d 179, 182 (1992), “there is no absolute right to present a child’s testimony during a custody proceeding, and, when that testimony is presented, it is left to the trial court’s discretion whether to receive it from the witness stand or in camera.”
Courts in Illinois have repeatedly held that whether a child should be interviewed in camera lies within the considerable discretion given to trial courts in such matters. In re Marriage of Johnson, 245 Ill. App. 3d 545, 554, 614 N.E.2d 1302, 1308 (1993).

The trial court found the mother in contempt for failing to abide by the parenting schedule that was established.  The mother argued that her daughter had made statements of abuse by her father, to her, to her step-father, to her grandmother, as well as the therapist, and that those statements should have been heard by the judge.  The trial court was found to have considered the statements, but because they were uncorroborated, the mother was unable to use them.

Section 606(e) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides:
“Previous statements made by the child relating to any allegations that the child is an abused or neglected child shall be admissible in evidence in a hearing concerning custody of or visitation with the child. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” 750 ILCS 5/606(e) (West 2008).
The first sentence of section 606(e) creates a statutory exception to the general rule against hearsay for a minor’s out-of-court statements of allegations of abuse or neglect in a hearing concerning custody of or visitation with the child. Therefore, pursuant to section 606(e) of the Act, the hearsay statements were admissible.
The trial court specifically stated in its order that the statements were admissible under section 606(e) of the Act, but because they were uncorroborated, they were insufficient to support a finding of abuse.

Sufficient corroboration of the alleged abuse or neglect
requires more than just witnesses testifying that a minor related claims of abuse or neglect to them. In re A.P., 179 Ill. 2d at 198, 688 N.E.2d at 650. Corroboration of abuse or neglect requires “independent evidence which would support a logical and reasonable inference that the act of abuse or neglect described in the hearsay statement occurred.” In re A.P., 179 Ill. 2d at 199, 688 N.E.2d at 650. Corroborating evidence “makes it more probable that a minor was abused or neglected.” In re A.P., 179 Ill. 2d at 199, 688 N.E.2d at 650. In In re A.P., a doctor testified that A.P. had an “abnormal hymen in that its opening was enlarged and it had an irregular border,” which the doctor believed had been penetrated by a finger or foreign object. 179 Ill. 2d at 191, 688 N.E.2d at 646. Such corrobrating evidence is absent in the this case, so the minor’s statements could not come into evidence.

Due to the contempt finding, the mother was ordered to pay some of the father’s lawyers fees.

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