here here this morning an appeal from the order issued by the circuit court which modified custody and granted exclusive custody of a three and a half year old child to his father william paley after the child had spent the first three and a half years of his life living with his mother ashley edwards now we recognise that it is a prayer for him and an appellate court to find that the trial court engaged in an abuse of discretion in regards to a custody determination the trial court we have met is in the best position to judge the credibility of the witnesses and to hear the evidence yet we believe that this is the odd case where the event abuse of discretion can be found now there's two issues that i would like to discuss with you this morning first whether the court can su pleading that this before it and transform it into a petition to modify custody when no custody modification is originally sought and second whether the court abused its discretion in awarding custody to the petition er mr haley now the first and fundamental issue that must be addressed in this matter is whether the court's order granting william exclusive custody of the minor was issued without authority and as for it now i generally acknowledged that circuit courts have original jurisdiction of all just to simple matters the court's authority to hear an issue and resolve the question is and both through the filing of a petition and this pleading then frames the issue for the court the petition for child custody and for visitation so then we have to look at exactly what he put in this petition and what is he a wedge he alleges that he was the father of the minor child he alleged that he was a fit person to have liberal visitation he then asked for his prayer for relief as for liberal visitation for the minor child that is the only thing he alleged and that is the only thing he asked for it was important to note here is that some of these things had already been established in a prior order entered by the court now back a few years before in two thousand and eleven in order for support was entered by the circuit court this order in our support order that mr haley was to pay support to miss edwards now by that order if the presumption is made that actually edwards is the primary parent and has exclusive custody of the child to overcome this custody that mrs edwards then had mr haley it was his spirit to have to file for a modification of of custody he act had to ask to change custody and show certain things now the statutes pretty clear about what we need to have a modification of custody it says better titian for modification has to be filed and that petition then has to be served on the petitioner or on the other party at least thirty days prior to the hearing there was no petition for modification filed in this case your honor all that was ever asked for was visitation  she was pressed say that time your honor she did not have trial counsel and tell after the default judgment was entered and that would have been entered in february of two thousand and fourteen so from the time that mr hanley filed his petition in october to the case management that occurred in november of two thousand and thirteen and the subsequent case management this haley was pro se this entire period so there's  in the original petition as i just stated the original petition in this case only asked for a liberal because of taishan if the trial court had wanted to enter a default order and grant mr haley as much liberal visitation as it would have liked to i think that it would have been well be within their reason to be able to do this that's not what they want the fault is very correct here on do you think that because he granted custody and then he ordered exclusive custody to mr haley and then it was baked hated about two weeks after that and i believe that he thought that custody now became an issue of human is exactly what you just said and that custody should he could enter temporary custody without an appropriate pleading before the court order without showing sufficient circumstances that there was a change in circumstances or that there was harm to the child so a motion to modify custody and we go back to the trial court and proceed on a trial on that matter that i think that would be appropriate but i think we have to look at the fact that the orders that were entered in this case are technically void and should not be honor for what we could put together from the record it looks like mr jenkins actually sent variational petition to mrs edwards at her residence and that she did receive that original petition and that's why she was on court in that original case management after that it looks like the circuit when they send out docket entries after every case management they somehow mixed up the address this is the best that i can tell you and that they started sending any notice to miss edwards to an old address that mr haley had given a few years ago so he was you can living there i know he was not even living there all parties had changed residences and we know that at least mr haley had miss edwards address here originally did send the petition there but i do think that shows the numerous problems that occurred in this case and that mrs edwards was not even receiving notice of any of the court takes that happened after the original court date that she missed and we had meant that she did not come to one of the case management that's clearly on the record by missing that case management she never received another notice that there she did not know that there were any case management's occurring after the one that she missed she did not know that there was a hearing scheduled since she missed the case management so did he to show up at her house  turning for now was three and a half at the time of trial with the mother for three and a half years that's could actually the child has lived exclusively with the mother from the time that the child was born until mr haley took over temporary custody which was that happened in march of this year your honor in two thousand and fourteen so the child was three and a half at the time and would have just turned four in september of this year so i believe what we have here is a situation where we do have a fatal flaw in the pleadings and that's the flaw that needs to be rectified in this order and that because because of the stand off law that the orders are void and they need to be reversed and overturned to have  trial court at that point did vacate the order but at the same time granted temporary exclusive custody to mr haley so custody exchange had to take place and i believe the trial court may take place within the next forty eight hours if not twenty four hours but it was a very quick exchange that happened temporary custody was correct so i believe that we had to participate at that point forward the trial was set as quickly as possible to try to change whatever we could in this case and i think it's important to even look at the docket entry in this case and that the docket entry setting the final hearing that we have in this case merely said that the matter was set for hearing it didn't even say that this was set for a custody hearing didn't say that it was set for trial on custody it said that the matter was set on hearing and what we said when we went to trial and pointed out to the court at the very beginning of the hearing was the only pleading that was before the court was the petition that mr haley had filed in october twenty third teen asking for visitation it was at that point that the trial court responded that yes it had that pleading but it had decided that it was going to consider that pleading a motion to modify custody and ask counsel to proceed at that point counsel not believe that there was any other option at that point but to proceed in the hearing otherwise the child was going to stay in the exclusive custody of mr haley to get miss edwards some relief there was really no other option but to continue participating in this hearing to try to get the child back with his mother which is what we were looking to do with that  and what i think is very important to note in this case is that what we have said it did all start with the default order there is case law that says the default order can not exceed the relief that is asked for that's exactly what happened in this case is that the default order exceeded the relief that was asked for and granted exclusive custody of the child to mr haley we then have a bit of a snowball effect that once mr haley had exclusive know that was vacated he was then given temporary custody as you can tough from the record these two parties were not able to work with each other very well and we even had to go to court on a motion from urgency visitation because miss edwards wasn't getting visitation the parties were communicating very well with each other this temporary custody then turned in to final custody which mr haley eventually got in this case so i think we can always go back to that default order which is what started everything off in this case i also want to point out that if we look at the testimony that was presented at trial a lot of mr haley sexton only his mother's testimony and his stepfather testimony at trial really worked at the last month and a half two months that the child had been and mr haley scare they talked about how well the child was adjusting to being with mr haley how well the child was doing how happy he was to be with his father how he was in roles and preschool daycare and how he was going there a few days a week how he was spending time with his other siblings with mr haley's other children that testimony only occurred because of bad default order and because mr haley received that temporary he would have never had a lot of that testimony if we had had him receive temporary custody in the first place so i think that's important to note in this case is how did we get to where we were in the final hearing and was that testimony wasn't all something that should have been taken into consideration because they focused a lot of their it's more best interest information exactly and i think what's in the best interests of this child as we speak today i believe that the best interest of the child is to go back with his mother and to be with the mother that he has lived with and the family that he has known for the first three and a half years his life but i suppose if you had a motion to reconsider yesterday and the court granted the motion to reconsider so you know i'm not  the trial judge should have looked at the two instance that were present and one the one you tossed out of carlos as to isolated incidents and there's a couple things to look at with those incidents one how long ago those incidents happened ok cooperate is very much throughout the case i think we definitely have two people here who are not very well able to communicate with each other i think we should hesitate though before we start  i completely agree your honor and if there had been a visitation order we may have been in a completely different place and it sounds like these parties were actually communicating to a certain level they worked out a somewhat every other weekend visitation that they have been following it didn't work out every week but that's what they were trying to do if they were trying to do something along those lines but things as they all smoothly happen and custody and force cases is they got complicated and the parties stopped communicating with each other specifically happened when miss had words moved permanently back to her permanent residence in chicago i believe that if the parties had been able to just talk to each other they may have been able to keep that same visitation schedule since that is what they're using now and they've been able to work that out now since this order was centered and that the parties are all taped weekends so if we had a visitation schedule in place in the first place we may have never gotten into the situation that we are now but i think if we walk away just as connect with saying at the instance that were important in this case i would bet what the court made its decision on in this case i don't believe that communication was a small factor but if you look at the court's order i think he it was very much based on the two incidents where the court described ashley is angry and destructive manner i do believe that it was an abuse of discretion by the court to take these two incidents and decide that a change in custody was warranted if we look at the two incidents one over happened over two years before the trial the other one happened a year before the trial these were two isolated incidents where m into arguments with the person she was then dating i'm not saying that either instant showed good judgment on the side of miss severance but i also believe that this court has said that isolated incidents that show poor judgment by the parents themselves and i see my time's up if i can just finish my thought this court has said that isolated incidents that may show poor judgment by the parties themselves are not always enough to overturn a custody interpretation we have to work  what is in the child's best welfare and have these instances directly affected the child's welfare the child was not directly involved in either of these incidents the instant was between ashley and the boyfriend and if we look at what  close said that it was it did not involve the child well to the contrary the child was there now when she was testifying in made sexual allegations against her boyfriend carlos and the officer determined he looked at the boy and determined that the boy was ok well then mrs edwards said that she couldn't remember because she was intoxicated she was intoxicated she was using cannabis she was bleeding she had busted out carlos's windows and there was also another incident that was mentioned in the brain where she came to william's house and she basically fought her way into the door in the door through some of this personal items around and he basically had to contain her and get her out of the house now keep in mind that the judge not only is listening to testimony with regard to these images the question is should he have that so here's the thing you're a very experienced family law when you filed a petition it's clear when you read the and he was disturbed and concerned about a lack of credibility a lack of cooperation and these two incidents where we focused on them too much or not he's thinking to himself they speak her it up and i think right now i need to do the best thing for this child but the problem is he's not in juvenile court there's not already been a temporary order that the facts that under juvenile court rules this is the equivalent of a edwards had cooperated at the beginning we probably would be right but that didn't happen yeah and based on her conduct during these proceedings and her demeanor and the deprivation of mr haley it had regarding visitation the judge basically found that there had been a substantial change in circumstances how do you defend against a substantial change in circumstances if you don't know that's what the standard is and nancy what's happened well i mean how do you bring in all this evidence that there has been you know period of a substantial period of time work she's in a more stable situation she's got a support network she's not breaking any more i'm assuming those you know the things are better the fact is yes is it was abundantly clear that she was not australia relationship between that child and mr hayley and also she was downright obstructive about it ordered to pay her forty dollars a week and shots she can't even afford the train ticket to come down to springfield to do that and then he's behind thousands of dollars of child support at forty bucks a week  in some ways it's understandable that her demeanor in court might be a little frustrated and angry when she wants custody of her child without a proceeding a pleading correct well man your honor you know if you put the shoe on the other foot this is what i'm saying if the case management proceedings that would that could reason to be construed to say custody has become an issue be prepared when we come back to the core concert presenting evidence that the court is considering what is in the best interest of this child is to work custody should be placed either temporarily or permanently i don't recall anything like that being said in that case management conference but it probably interpret it sending them good if they don't they don't engage then it's up to the mediator whether or not she wants she here she wants to say that the mediation was unsuccessful or the mediator can report back to the co refusal to participate and that's essentially what this was about i guess ashley had words just thought that we would go away she just ignored us and that was not the case  and essentially in this or in these circumstances a judge or duly obviously felt that it was just too no order to that there had been a substantial change in circumstances and to grant witnesses witnesses her family members people who testified with regard to you know her interactions with logan and she knew exactly  at least as much time as is my client your honor she had time to get her witnesses  witness her testimony her attitude her demeanor all throughout this and essentially you were he wrote a very detailed cogent order and basically his conclusion with regard to ashley edwards is that she is not worth a read or hear fully and essentially he heard the testimony from williams family and william with regard to logan's interactions with william and william's family and how it was adjusting to the home life and the environment the stable environment that was available to him so after the judge had the opportunity to observe all the witnesses all the testimony look you went through the six hundred two factors and determined that logan would be  william and mainly it's because it's her misery because mrs edwards or her it's her own fault because she would not foster a relationship between logan and his father and that the evidence show that even when she was in springfield at least in the first year of the child's life he didn't have much of her there was an unfair he testified other was essentially mr hanley like this is mine here you can have a no i'm snatching him back and she would take him for long periods of time to congo area and basically there was mr healey felt like there wasn't anything that he could do about it those proceedings essentially it was necessary to move on to custody how are we going to to give mr healey any reader asked her are we going to auster the relationship between this child and his father it that his it's not an buse of discretion it's not against a man by man it best way to be evidence he had he knew all the facts he had the opportunity to hear the testimony see the people  and he made the determination that it's and logan's best interests that he be with william and as far as her not having notice and said you know i would i would restate again that i mean she had a duty to follow her own kids and she had plenty of opportunity prepare for trial pleadings and with regard to the pleadings i would say the pleadings were quiet enough that it gave the judge the discretion to determine that there had been a substantial change circumstances because we went to the corner we were asking for help we were asking for relief and we ask that he have liberal visitation but we also asked the judge for any  further are differently than he deemed jobs and that's what the judge did since he could not obviously there was nothing that he could do with miss edwards if she would not participate then essentially he was going to basically there'd been a substantial change in circumstances because he was being private visitation and custody all time with this child also there was a substantial change in circumstances because she was no longer residing in springfield but she had moved back permanently to her home near chicago and also there was standing there is a very testimony that she also did there went back and forth during the period that he was either not involved or beginning to be involved yes she had a residence my time was up he had a resident she had a residence here in spring hill and she also had her mother's thank you i would like to start around her i just saying i do have to disagree with mr jenkins when she said that there was not a default judgment in this case i think the record very clearly shows that he ordered that was entered on february fifth two thousand and fourteen was judgment mrs edwards did not receive notice of the hearing that was to occur that day she did not show up at the hearing and if we look at the order that was entered that day it was a default judgment saying that the severance failed to appear and permanent custody remember the exact wording that he used but it was very clear from this order that custody was placed with mr haley it was not a temporary order and at that time he did not even award any visitation to miss and words he said that visitation was reserved until such time as miss edwards came before the court so without knowing that custody was even going to be an issue in this case there was an order entered that gave custody changed it from a set of words to mr haley based on that one order and that was the order that started everything today another point that i'd just like to pick up on that mr jenkins addressed as she spent a lot of time talking about how the court looked at the six the two factors and how the court looked at fostering the relationship and i believe that we can all agree that those factors and fostering the relationship are very important and a custody case and we don't dispute that whatsoever but before we can even get to those factors we have to address whether there was a substantial change in circumstances and whether that change in circumstances was enough that custody should be looked at and whether we should modify custody and whether the change in circumstances affected the welfare of the child those are the statutory requirements that the court first has to find before we even get to the factors of this case and we believe that the court abused discretion in finding that there was a change in circumstances this jenkins just   at a couple things and she said it was a change in circumstances because mr haley wasn't receiving the station i believe mr haley's on testimony at trial was the first year of the child's life he was not involved he would be involved sporadically when he felt like it occasionally he would now we fully admit that after the first year the parties did start communicating better they worked out a rough schedule he would get approximately every other weekend but again it was kind of up to the parties and it didn't happen every weekend and it was based on what the parties were doing so mr haley not really being involved in the child's life i don't think he can put it all on mrs edwards there was a portion of it that you apportion to him as well the best interests of the child i absolutely what your honor unfortunately in these cases we cannot perceive in custody cases or divorce cases unless the rules are followed we have to follow the rules and we have the statutes there for a reason to show us what has to be done in each case it is not justice and it is not fair to the parties involved if someone doesn't follow the rules says don't deny the there's a lot of  subtle so was so and i would agree with you and ninety nine percent of the time your honor maybe not exactly that high but i would agree with you with a lot of the time that best interest should be the overwhelming factor unfortunately in this case i believe that best interest comes in third first we have to look at was the statute followed where the rules followed were the pleading sufficient was the core allowed to make the order that it did is the order for a second like i said before we even get to best interest in this case there has to be proven that there was a substantial change in circumstances that take us to best interest of the child we already ha presumption that the mother was the primary custodian in this case that presumption is very high and that we have case law that says that we shouldn't easily be changing who is the custodian we favor stability for children we favor them