The Journal of The DuPage County Bar Association

Back Issues > Vol. 21 (2008-09)

Is Federal Substantive and Procedural Due Process Lacking in Our Divorce Courts?
By Paul D. Nordini

When a custody decision must be made, our Courts are left with the guidance provided by Section 602 of The Illinois Marriage and Dissolution Act (the Act). This Section provides that "[t]he court shall determine custody in accordance with the best interest of the child."1 When considering the child’s best interest, Section 602 mandates that the court consider all relevant factors involving the child and her parents.2 Important to note for this article is that Section 602 further provides that "[t]here shall be no presumption in favor or against joint custody."3

The purpose of this article is to provide focus and discussion on Section 602 of the Act and its lack of attention to the rights of parents as protected by the U.S. Constitution. When comparing Section 602 of the Act, termination of parent’s rights proceedings, and Federal case law related to parents’ protected rights, one’s first impression is that Section 602 is lacking in some respect as it relates to due process. The missing due process safeguards in Section 602 weakens the spine of our law, if it doesn’t break altogether from the Constitutional weight that should be placed upon it.

The U.S. Constitution contains safeguards for parents and the resulting rights that accompany the birth of a child. These safeguards protect parents’ "fundamental due process right to the care, custody and control of his or her children . .."4 The U.S. Supreme Court delivered a manual of sorts in its Mathews decision that provides guidance when reviewing Section 602 of the Act and whether or not the Illinois statute is unconstitutional as a whole.5 Our courts note that the factors enumerated in Mathews should be considered in determining whether or not due process rights are being violated. These factors are: (1) the private interest implicated by the official action; (2) the risk of an erroneous deprivation of that interest through procedures used, and the probable value, if any, of additional or substitute safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute safeguards would entail.6

Whether or not Section 602 of the Act holds up to Constitutional safeguards is largely untested. The great mystery continues as to whether or not the child’s best interest standard as mandated by the Act violates certain fundamental rights as protected by the Unites States Constitution.

Though Section 602 has not been placed under the Federal hot-lamp, so to speak, a parent’s protected rights are widely accepted and have been the subject of much review by our land’s highest court. Parents generally have a fundamental right to control the upbringing of their children.7 A divorce should not sever a parent’s relationship with a child and by doing so extinguish the fundamental rights that go with it; Illinois law should not "divorce" a parent from the ability of making parental decisions unless she were a menace to the child.8 However, as a practical matter, Illinois Courts have continuously "divorced" one parent or another from her right to make parental decisions. This is often the case when custody is in contest and the parents lack the ability to communicate effectively to make joint decisions regarding the upbringing of their children.

Before anyone believes that this article is attempting to argue that parents without communicative skills should be forced into a joint custody arrangement, this is not true. Alternatively, this article simply points to the shortcomings of Section 602 of the Act in addressing a parent’s fundamental right to due process prior to our Courts awarding sole custody. And while sole custody may be the only workable solution for some parents, just because we know the end of the story doesn’t necessarily mean we can avoid the middle.

Section 602 of the Act neither makes mention of certain fundamental rights that parents have nor reflects a process to protect those rights. Though the enumerated factors in Section 602 are not exclusive, courts rarely hear (and some would assert courts do not want to hear) the term "Constitution" or "Substantive Due Process" in the midst of a custody trial. Before someone in our divorce bar believes that this all too common calloused approach to custody is acceptable, one need look no further than our own Illinois cases in parental termination proceedings as a "healthier" alternative. A review of those types of cases strongly stands for safeguards that protects substantive due process rights; the same rights that should be protected in our divorce courtrooms.

A parent’s right to the care, custody, and control of her child is "a fundamental right that will not be lightly terminated by the courts."9 In juvenile proceedings to terminate parental rights, the Courts have properly applied two phases to those types of cases. In the first phase (the unfitness phase), parents can assert and argue for their fundamental rights; however, if unfitness is found, the case proceeds to its second phase, which is the child’s best interest phase. Illinois Courts have found that "[o]nce a finding of unfitness has been made, all considerations, including the parent’s rights, must yield to the best interest of the child."10 However, even in the best interest phase of these types of proceedings, parents continue to retain their fundamental interests, though the focus of phase two is the child.11 Our divorce process lacks this two tiered process or a variation of it. Section 602 of the Act should mirror what our Courts have always said in other types of cases where parental rights were in jeopardy, in that the statute should either explicitly note a parent’s fundamental right as an enumerated factor, or provide for a phase that includes a parent’s interest weighed against the child’s best interest.

All reviewed, our very own appellate decisions show that divorce cases too should be burdened with the constitutional albatross protecting a parent’s interests in being just that: a parent. While the nay sayers may raise issue that parents in divorce are not being denied their rights altogether, as in the case of termination proceedings, that argument fails on a number of fronts. First of all, rights protected by our Constitution cannot be simply watered down by the type of proceeding underway; they are either intact or abrogated in any kind of suit. Additionally, when sole custody is awarded to one parent over another, the now non-custodial parent loses all ability to have control over decisions impacting the child’s education, healthcare, and religious upbringing. To somehow argue that because a parent can remain in contact with their child (by way of visitation, or parenting time), their rights can therefore be diminished does not comport with our judicial view on how fundamental rights are defined or protected.

What does appear to allow the continued violation of due process rights, is the financial inability of a parent to afford the judicial review of a trial court’s custody decision (let us not forget, we are talking about parent’s rights as enumerated within Federal Case Law, and this sort of argument could find its way to Washington). In essence, the watering down of a parent’s right appears to be tolerated because the violation does not amount to such a personal affront to justify the expense of a protracted review process.

One parent, right in DuPage County’s backyard, made a quasi-attempt to review this issue when he filed suit against Berwyn South School District.12 In that case, the Plaintiff, Dan Crowley, a long time Naperville resident, was locked out of his children’s school and all school functions. Mr. Crowley’s former wife took no part in the alleged shut-out, but rather, the school on its own accord found that because Dan Crowley was the non-custodial parent, the school did not have to include Mr. Crowley in his children’s education experience. While the trial court found that Mr. Crowley’s multi-count complaint failed to state a cause of action from which relief could be granted, on review, the U.S. Court of Appeals handed down a sharply tongued reversal on all but one of Mr. Crowley’s counts.

The reviewing court only affirmed dismissal of Mr. Crowley’s count that alleged the school’s act amounted to violating his right to liberty, and this singular issue was presented to the U.S. Supreme Court within Mr. Crowley’s Petition for Writ of Certiorari. While our highest Court failed to entertain Mr. Crowley’s Petition for Writ, one can only guess that they may be waiting for the same type of argument against the other parent or against Section 602 of the Act (as opposed to a third-party being the alleged violator) before giving this issue the time and attention it deserves.

Not only does Section 602 fail to mention or reflect a parent’s fundamental interests, Section 602.1 also fails to provide proper safeguards for parents. Here too, joint custody appears to be exclusively available to those parents that can "cooperate effectively" in making parenting decisions.13

While Section 602.1 appears to protect a parent’s rights to school records under sub-section (e), that right is pale in comparison to what should be a parent’s fundamental right to control of a child’s education. Again, sole custody may simply be the only result that would make sense under the circumstances; however, for that parent who may lose custodial rights, process should be in place to address her rights protected by our Constitution. That process is non-existent or so watered down in the divorce arena, that no one can identify when and if it happens.

All said, our judiciary and the Illinois General Assembly might want to act sooner than later to put into place a process that contains substantive and procedural safeguards for parents about to lose their Federally protected rights within a divorce or parentage case, as approximately 18 years of custody decisions may just get thrown out of the proverbial window.

1 750 ILCS 5/602(a).
2 750 ILCS 5/602(a)(1)-(8).
3 750 ILCS 5/602client.
4 In re Brandon L., 348 Ill.App.3d 315, 809 N.E.2d 763, 768, 284 Ill.Dec. 197 (2nd Dist. 2004), see also, Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925).
5 Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 47 L.Ed.2d 18 (1976).
6 Id. 424 U.S. at 335.
7 Bermand v. Young, 291 F.3d 983 (7th Cir. 2002).
8 750 ILCS 405/2-21; 750 ILCS 50/8; In re D.C., 807 N.E.2d 472, 476 (Ill.2004); In re Cheyenne S., 815 N.E.2d 1186, 1190-91 (Ill. App. 2004); Quinn v. Neal, 998 F.2d 526, 532n.6 (7th Cir. 1993) (applying Illinois law).
9 In re Andrea F., 208 Ill.2d 148, 280 Ill.Dec. 531, 802 N.E.2d 782 (2003).
10 Brandon, 809 N.E.2d at 769.
11 Id.
12 Daniel Crowley v. Donald McKinney and Berwyn South School District No. 100,  2002 C 2091, U.S. Dist Court., Northern Dist. Ill., Eastern Div.
13 750 ILCS 5/602.1

Paul D. Nordini has offices in Naperville, IL.  He proudly served in the Marine Corps -Special Operations Battalion in Operation Desert Shield and Storm prior to attending DePaul University College of Law.  He practices primarily in divorce and custody litigation.
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