appealing to your honor's we are appealing the decision of the circuit court judge fence and and we are appealing based on the fact that the manifest weight of the evidence as applied to the section six o two factors for custody the decision of the court was against the manifest weight of the evidence i think a manifest weight of the evidence as a as a scale and the scale in this case when you actually look at the record read the facts of this case tips farther in the balance much farther in the balance of mr chapman than it does for ms rogers the facts in this case there was significant really the question correct and that's what sure i am and if you if you look at it if you look at the record if you look at all of the facts the opposite conclusion is clearly evident from looking at all of the facts as applied to the best interest factors significant violence by the mother and those those evidence that events of facts of violence was cited in judge tencent ruling on november twenty fifth two thousand and fourteen he indicated  it looked like the mom had been guilty of violence when she grabbed for the carrier to try and grab the child away from mr chapman mother also was throwing the various articles she was throwing an article of clothing on a visitation exchange in july twenty first two thousand and fourteen a significant amount of all carries on that july twenty first two thousand and fourteen instance and quite right during the break up and maybe possibly some time prior to the break up she throws a phone and smashes matthew chapman's phone the court can look at the violence of the up to rebecca rogers and see that that is not a factor those those two factors as they apply in section six of two they did not favor her and i think that the trial court knowledge that in its ruling you also see that there was an inability for the petitioner to foster a close relationship and there are myriad examples in the record of how she's not able to do that right away she threatened supervised visits after the break up in april of two thousand and fourteen when the parties went to have her removed her possessions and some of the possessions from the house that mr chapman was staying at with ms rogers and he owns she left him with only a few daddy clothes and the pack and play she would not share w contents were in a letter from the child's pediatrician easter sunday they had an agreement for mr chapman and the minor child hasn't time together and instead she scheduled pictures that apparently didn't didn't take place or she didn't share the pictures mr chapman wouldn't share the information on who was to watch the minor child when she was unavailable and wouldn't allow mr chapman to have the right of first refusal when she needed to work and mr chapman was available to watch the minor child memorial day memorial day mr chapman asked for the minor child until memorial day he's off work she requires  have the child until one pm on sunday arbitrarily and on reasonably she threatens to terminate visit she threatens to have after the manson incident of violence father's day if you look at the father's day tax despicable father's day attack saying i'm not going to allow you to have a child on father's day haha enjoy your father's day along with it it was unacceptable but there was not just examples of bad behavior early on i mean the july twenty first incident instance took place about four months prior to trial when she was showing up to the house causing it mr chapman throwing the article of clothing on the on the ground that took place she lied twenty first and another example even closer to the probably on november twenty fourth and twenty fifth is when mr chapman t his hollowing it's the child's first halloween could you please bring her by so i can see or my family can see here on our first following we want to see what she looks like an outfit and she no response she would even send a picture of back in may when she was interfering with the father's visitation time with with june when she was interfering with father's day with july when she was showing up at how his house cussing in front of a minor child no now granted the minor child is less than a year old at this time she probably can't understand all these cuss words but that doesn't change the facts that her inappropriate behavior proves that she's not on able to possible relationship we see multiple examples of the father's ability to foster a close and continued relationship his tax saying that hey the child needs both of us not just one of us early on after the parties broke up he offered right away to swish his parenting time with the mom when she was going to have a shower for her sister's baby he offered to switch mothers day without prompting allowed her to have allowed the mother to have the birthday offered to to switch times on mother's birthday but she refused to switch times didn't didn't get make made out he provided her with a mother's day card from the child provided her with flowers on her birthday from the child and the evidence force the father has the ability to do that going forward the only evidence and it seems that the court relied on the guardian of lightens improper testimony which was objected to at trial regarding compromise settlement negotiations the guardian ad litum testified to not just conduct but he also testified to statements that i believe him properly influence the trial court and that's why i don't believe that the trial court and custody cases that proffered obviously gets great deference and they obviously are in a position to evaluate the credibility of the witnesses but by allowing in testimony of my client's conduct settlement negotiations between the guardian ad litum and the minor child and the the respondent the petition or during that compromise negotiation but i mean if you look at the manifest weight of the evidence all of the facts and you look at the trial court's ruling on the ability to foster a close and continue relationship the court did not find that that was favorable to either party and when you look at all of the evidence that was presented i don't see how you can reach that conclusion and last you are improperly influenced by that inadmissible evidence of side court indicated that it was only going to receive the testimony relating to the mediation as a related to the demeanor of the party that well first off the trial court stated that i believe that the conduct of the parties that is admissible the trial court later on at the hearing on the motion to reconsider kind of backpedaled a bit and said now i i think that this is demeanor and so i allowed access of the demeanor none of it should be admissible i mean to allow anything to come in from compromise negotiations would be violating public policy and would have a chilling effect upon people in custody cases entering into compromise they go she asians especially with the guardian ad litem present and one of the one of the roles of the guardian ad litum is to see if there can be a settlement between the parties to to try and make efforts to see if there is an ability to resolve this without the need for a contested hearing to allow anyone to testify especially the guardian ad litem or the parties to testify as to what took place and compromise negotiations doesn't apply as well i would i would disagree with that because you have these evidentiary rules for civil proceedings a marriage case is a civil proceeding and you follow the rules of evidence and civil proceedings that are subject to this rule for a way and you can allow it you can allow a guardian ad litum to hear instances of inadmis evidence that does happen and the coronas case which is a first district case and i'm sure you've heard of it or that first district case in corona us the guardian ad litum heard and inadmissible tape that was basically an illegal wire p by one of the parties i mean they they tape recorded another party which was in violation of the illinois eavesdropping act of time and the guardian ad litum stats money and opinion wasn't thrown out because he's heard and admissible because section two specifically says conduct and statements made during these offers of compromise offers of saying i'm liable for something to that effect prohibits would not agree to work you want to agree to yes see that she doesn't want to see my so you've got it's an interesting legal issue because you have the statute that basically calls for a that says a guardian ad litum shall determine whether a settlement of the custody dispute can be achieved by rieman and to the extent these are all shall attempt to resolve such disputes by an agreement that serves the best interests of the child so on the one hand you've got  statute that requires that the guardian ad litum testify or provide a report containing recommendations to the court and then you have a supreme court rule saying that the guardian ad litum some basically attempt to conduct mediations of  custody disputes and here what you're saying is but the guardian ad litum cannot testify regarding aspects of the mediation yes  and in response to just turn whose question there is no case that indicates that that supports that position not that i could find in illinois i was unable to do much research outside of the state of attorneys in acting in the capacity of a mediator sharing confidential information if they have previously served i think if the previously acted as a mediator and then later represent an individual involved him of the proceedings from being able to use information gained from the mediation which you have right that's correct and there was actually a case that dealt testifying about what took place and getting involved that way when you have a responsibility to look out for the best interest of the child so the guardian ad litem put himself and to a bad position by agreeing to try and mediate between these two parties was a mistake agreed to mediator was the mistake as you serious here getting into it i mean as far as what happened at the age i think that i think that is a carving of light and you have to try and see if there is some avenue for resolution between the parties rather than put them into a contested hearing where contested hearings probably aren't in the best interest of a child it is much better for the parties to resolve these matters rather than go to a two day contested hearing where you're bringing out all these facts of how whole sides behaved badly or how paul sides are not necessarily the best person it's hard to get over something like that so the guardian ad litum still needs to try and resolve matters personal role nine zero seven that's their job but when you when you report back to the court as to what took place in those negotiations that's when you cross the line there's a guardian ad litum that he was also asked questions of on direct examination by sessions attorney about what occurred let's just take the circumstance where it's not the guardian ad litum volunteering what occurred during mediation but in fact that point the other attorney should have jacked and the guardian light and should have jacked to making any kind of testimony regarding i see them close out of time the point i would i would like to ask you a question you talked about the fact that the judge seemed to believe that she had changed her ways and would go forward be able to facilitate a relationship so we that's a credibility decision even if the judge decided that you still think your client should prevail yes because the court's determination on credibility tainted by this and of most and admissible evidence but also the record just does not support that she was credible if you look at it she had a prior inconsistent statement from the deposition taken in october of two thousand and fourteen she had on cross examination several instances where myself i had confront her with text messages before she would admit to saying something or doing something father's day is a prime example of back she was very evasive during cross examination less than candid with the court and to look at the record turman that she was a credible witness the record doesn't really support that finally your honour's the visitation award was manifestly unjust especially when you apply it to the facts and circumstances of this case if you do not overrule the court's custody determination then there are special circumstances for this case to award more than just the minimum standard visitation every other weekend and one night over a week over night during the week dad has had substantial time with this child he has been a good father to this child he has done everything that he can to fight for time and what's in the in time with dad isn't the best interests of this child it's not selfish love on his part it's mom trying to keep me away from the child and i know it's in her best interest for us to have a good relationship with each other thank you thank you counsel you will have  the petitioner ribbeck rogers testimony alone for the court to support its decision certainly there was other testimony out there i think it's clear that what the coun categorizes as issues of violence were looked at by the court in that way one night one time was a piece of clothing was thrown on the ground a different time i phone was thrown on the ground there was no physical contact or physical violence there was maybe one time where she reached an appropriate for carrier but that's not even defined and so that's what counsel and their arguments resting on is about all those file i don't like that exist clearly my client would appear from all the facts to a bed more affected by the breakup between the parties then mr chapman was in during the time soon after the breakup yes there was hard feelings probably still are but her testimony was bugged by definite on how she'd involved understood the need for her daughter to have a relationship with mr c that that was so very important testified as to the reasons why basically your own family situation or own fathers and sisters lack of ability to have a relationship early on because of hard feelings et c and that after talking with them she learned from that it doesn't necessarily heal her emotional scar but on the other hand she became better armed with the i think the maturity to  and then there was never quite worked out all the way up to the hearing of getting for our substituted verses three and that would appear to been the only dispute everything else went fine after that and soley the responses th would be the fact of the attempts touring the the the november quote meeting to try to put an agreement together i will agree with counsel in the sense that there are there is a lot of case law  guidance on the issue of the premolars of the guardian ad litum the supreme court rule clearly indicates that they're supposed to try to reach an agreement that was done how much is then talked about the supreme court case the while case which i my decision talks about the need for a broad disclosure anything that can help the court decide certainly the fact so that case were different than the facts of this case the words are exactly the say and  inflection body facial expressions that sort of thing and you ask about statements that were made during the course of the mediation does it i frankly don't entirely remember whether i specifically asked surely one of the the statements that mr chairman made expressed the issue of demeanor which was that he was mad because my client wasn't agreeing do what you wanted counsel cited to us and the second district in that case indicated we know that an attorney in o'connell's position would be wise to be cognizant of cock conflicts of interest from arising out of appointments as mediator and ga on the same manner you have on a mediators obligation to keep mediation communications confidential contrasted with the jail's duty to testify or submit a written report to the court and attorney's exposure to confidential information as mediator would undermine his or her ability to subsequently fulfill his or her role as g a o l so the statements there was at least a statement that basically and there were there's some confusion i don't think that was ever order there was some talk that it would be agreed to then at the last minute my client did not go to the mediation and so there was nothing done that will do her purse the g a o was appointed reports were given  i don't know that i would call it the same aspect of a mediation hearing that what took place in november with the guardian led in president carter's present now that may simply be how you feel if i was in his situation to do to try to get the parties to reach an agreement if possible he never served as a g a o i do not ok not not in not in this type of framework i do all the time both as in juvenile appreciate mr courses position where he's serving his of jail and mediator and that there is the potential that he could run afoul of the rules of professional conduct yet he worked to share confidential communications well again i don't know that going to do it anything that was expressed certainly in court i would consider as a confidential communication this was not sure if somebody is dark secrets or anything like that this is a lie why would guess disagree that anything that was brought before the court by way of mr course testimony was should be considered confidential communications and so i don't feel that that he'd violated any code professional there would never be told to reach the light of day this is entirely different than that this is more yallow mr chapman may not appreciate that somebody is opinion about how he was acting but i don't know that that would be considered confidential there was a distinction to be made between statements that were made during the course of the mediation ursus that demeanor well it got very much was it through and to me that's correct will it give some sense this case may be the case that goes into that every may decide obviously not to read if you want to know all i do feel there is plenty of evidence in this case and that's why i made a point regardless of anything mr gore said to support cases inclusion and really when i read through the record of her testimony on direct examination cross examination and rebuttal is a lot of acknowledgments and platitudes that i'm a different person now no facts no facts to support that i'm a different person now so really there's there's not a lot in her testimony that supports that she's the better custodial parent under the six o two factors we have also  sedaka his breaking up is hard to do in the two fifth district cases that i cited for a notion the mayor and melton i believe it was both of those two women were going through a tough break up and they one of those women actually indicate i'm going to counseling for this that's a lot more in that case of actually doing something about an acrimonious break up to support a bet hey i can foster a close and continue relationship and even in that circumstance and the notion marriage case the court said sorry that's not good enough you did not do enough to foster a close and continuing relationship breaking up is hard to do is not a good enough excuse you have a duty to foster a close and continuing relationship with that other parent when you're the custodial parent and it's an important duty because you are given your argument big time responsibility when you have custody of a child you have an important job to make sure that that child is brought up with not just the influence from you not just the love and respect from one side of the family but it takes two to raise a child and sometimes even takes more than that sometimes it takes a village it tastes the family members of the mother the family members of the father breaking up is hard to do as in a good enough excuse mr lamb can also cites that there is a lack of problems is evidence that there is no more hardship that she has she has turned a corner but the lack of problems that mr lampton a citing is simply her cutting off communication with the respondent at a certain period of time she had acted so poorly for such a long period of time that by october or november she simply stopped talking and no responses to tax messages no communication during the visitation exchanges of the child in fact we had testimony in the record from mr chapman saying i got the door slammed in my face a few times so to say that there was a lack of problems no it was just she cut off communication entirely and that in itself is a problem for the custodial parent you need to be able to communicate with the non custodial parent she cannot do that effectively that is just evidence of further problems and then finally the johnston vs we'll case versus weil said there is no expectation that you are having a confidential communication between a physician or a doctor or a mental health professional you were ordered by the court pursuant to six o four to undergo this this treatment so that case is not applicable to this situation to this fact pattern and we have an expectation of confidentiality of not having what you have to take place and settlement negotiations coming out before court and however the court wants to care for isaac demeanor conduct it's inadmissible it will have a chilling effect on negotiations between the parties you won't have negotiations between the parties anymore you'll just