Two Witnesses: That’s IL’s Limit and IL’s Sticking to It in Child Custody Case

Too often, clients with little or no prior experience with the courts have naïve notions and expectations about the legal process, especially in family court.

Lawyers trying to build or defend their cases sometimes have to work hard

  • to dispel such notions
  • to get clients to appreciate what evidence will actually get before the judge and how it will appear to an objective third party who may not ever get the real “inside” story and
  • most importantly, to motivate clients to meet and overcome the real legalistic challenges their cases may face.

One strategy some lawyers resort to is showering clients with “horror stories”: opposing counsel’s, colleagues’, the legal press’ and, occasionally, I am told by others, their own. That’s not to scare clients.

It’s to get them to take their legal case seriously and to stay on top of strategy and preparation from the get-go.

Below is an article (unfortunately, one of many) that everyone with a contested family court case should read. There are many variables, of course, but the legal system really can be this way.

Two Witnesses Not Enough in Custody Case: Petition

Brian Mackey

Springfield – September 23, 2005

A woman denied custody of her two children is asking the Illinois Supreme Court to rule that limiting each party in a child custody dispute to two witnesses is unfair and does not provide the trial court with enough information.

Dustin and Bethany Miller were married in July 2001. In September 2004, Dustin filed for divorce and successfully petitioned for temporary custody of their two children. That December, Adams County Judge John C. Wooleyhan entered an order that set the case for Feb. 9, 2005, and required that if either party wanted to call more than two witnesses at the hearing, they would need to request a pretrial conference at least seven days before the custody hearing date.

Bethany Miller’s current attorney, Richard D. Frazier, said on Friday the two-witness rule was essentially a standing order in Wolleyhan’s courtroom.

The problem, Frazier said, is that Bethany Miller was in the process of changing attorneys as the clock was running out on the seven-day pre-hearing request.

Frazier filed an entry of appearance as Bethany’s counsel in mid-January; but her prior attorney’s motion to withdraw was not approved until Feb. 2, 2005.

Two days before the hearing, Wooleyhan declined Frazier’s request for a continuance.

According to the petition, Frazier made one last pitch to the judge at the hearing: “We would have liked to have called ten witnesses for the hearing today, and probably the most important witness … is my client Ms. Miller’s psychologist.”

The psychologist would testify as to Bethany Miller’s mental condition, Frazier told the judge, adding that “his testimony concerning her treatment and her ability to care for her children would be very important for the court to hear.”

Frazier also told the judge of other witnesses that would bolster Bethany Miller’s case, including a priest and a nun.

Wolleyhan stuck to his two-witness rule, the hearing proceeded and custody was awarded to Dustin Miller.

Bethany Miller took her case to the 4th District Appellate Court, arguing that she had not been given the opportunity to prove her case because the trial court improperly barred evidence.

But the Springfield-based appellate court held that it did not have enough information to rule on the matter and affirmed the decision of the trial court.

In rejecting Bethany Miller’s claim, the appellate court wrote that she did not meet the standard set forth in In re Estate of Romanowski, 329 Ill.App.3d 769 (2002), which required that she “must provide the reviewing court with an adequate offer of proof as to what the excluded evidence would have been.”

The appellate court held that Frazier did not inform the court his remarks were in lieu of a formal offer of proof, so the court was never called upon to decide whether Frazier should have been allowed to make an informal offer of proof.

It also held that Frazier’s remarks “fell far short of meeting the criteria for making such an offer. He failed to inform the court, with particularity, what the expected testimony would be or its purpose. His representations constituted nothing more than conclusory descriptions of the subject matter of some of the witnesses’ testimony,” which are not an adequate offer of proof under People v. Singmouangthong, 334 Ill.App.3d 542 (2002).

But in her petition to the high court, Bethany Miller argues that a “statement by counsel may be a sufficient offer of proof when the offered evidence is obvious and when neither opposing counsel nor the court dispute counsel’s statement.” Wright v. Stokes, 167 Ill.App.3d 887 (1988).

Bethany Miller’s petition concludes: “Clearly, the offer of proof was sufficient to allow the trial court to make an informed decision whether to reverse its previous ruling and allow each party to call more than two witnesses. It was also sufficient to allow the appellate court to make an informed decision on this matter.”

Frazier is a partner with Metnick, Cherry, Frazier & Sabin LLP in Springfield.

The case is In re the marriage of: Dustin Miller v. Bethany Miller, No. 101319.

For educational purposes only and not intended to infringe on Copyright 2005 Law Bulletin Publishing Company, Chicago Daily Law Bulletin