In re Marriage of Gordon (233 Ill. App. 3d 617, 1992)

PRESIDING JUSTICE EGAN

delivered the opinion of the court:

In May v. Anderson (1953), 345 U.S. 528, 533, 97 L. Ed. 1221, 1226, 73 S. Ct. 840, 843, which involved a dispute between a divorced couple over child custody, the Supreme Court described the rights of a mother “to the care, custody, management and companionship of her minor children” as “[rjights far more precious *** than property rights.” In this case the rights of a 24-year-old mother to the care, custody and management of her 35-month-old son, who had been in her custody since his birth, were stripped from her by an order of the circuit court. They were first stripped from her without giving her the right to utter a single word in her own defense. The first order, entered ex parte, gave “uninterrupted visitation” and “possession” of the child to the natural father. That order was extended over a six-month period during which hearings were conducted in which the mother was permitted to be heard; but the judge “extended” the order, granting to the natural father what is now conceded to be custody, although then called “physical care and possession,” until further order of the court. In this appeal the mother insists that the “extended” order is contrary to the manifest weight of the evidence, that her due process rights were violated by the ex parte hearing and order, that improper evidence was admitted and proper evidence was excluded. We dismiss the appeal from the ex parte order, and we reverse the order extending the ex parte order.

Robert Gordon (Robert) and Andreina Floreani (Andreina) were married on September 5, 1987; Robert, a physician, was 37 years old and Andreina, a college student, was 21 years old; Andreina was pregnant at the time. They separated about one month later. On November 18, 1987, Andreina filed a petition for dissolution of marriage. On February 8, 1988, their child, Andrew, was born. Robert denied that he was the father of Andrew and requested that blood tests be administered. Those tests later established that Robert was the father, and he admitted paternity.

On December 28, 1988, a judgment for dissolution of marriage was entered which incorporated a written settlement between the parties. Both parties agreed that the child was to be adopted by An-dreina’s parents, Dr. Evan Floreani and Maria Floreani. Robert acknowledged that upon his consent to adoption he would have no rights or obligations with the child which meant that he would “probably have no future contact with the child for the rest of [his] life nor the child with [him].” Andreina would have “sole custody of the child pending the adoption and [would] be solely responsible for his care and support.” Robert would be barred from all visitation or other rights regarding the child and would not “be liable for his care and support” except for temporary maintenance and child support of $4,750 which was then due to Andreina.

On April 19, 1989, Andreina filed a motion to vacate portions of the judgment for dissolution of marriage. The motion alleged that the property settlement agreement was contingent upon the adoption by Dr. and Mrs. Floreani of the child and that Dr. and Mrs. Floreani had decided not to adopt Andrew. The motion asked that all provisions of the judgment be vacated except those provisions divorcing the parties and granting custody of Andrew to Andreina. Robert filed a motion to dismiss the motion to vacate; he alleged that the settlement agreement was not contingent on the adoption of Andrew by Dr. and Mrs. Floreara; and he insisted that the settlement agreement be enforced.

Andreina filed a petition for child support. Robert filed a petition for visitation and a response to the petition for child support in which he admitted that he had made no contribution toward the support of Andrew since the entry of the judgment of dissolution of marriage; he further alleged that pursuant to the terms of the settlement agreement Andreina had assumed sole responsibility for the support of Andrew. In his petition for visitation, he suggested that the court should consider whether continued custodial residence with Andreina was in Andrew’s best interest. An agreed order was entered giving Robert an hour supervised visitation for four weeks at Hephzibath Children’s Association, a social service agency in Oak Park, and later an hour and one-half visitation the next four weeks at Robert’s home. The parties were to split the cost of Hephzibath’s supervision of visitation. The judge reserved the right to consider retroactive child support.

On July 24, 1989, the judge entered an order which required Robert to pay $1,000 per month as temporary child support. The order also provided that Robert should have visitation with Andrew each Tuesday and Thursday away from Andreina’s home for three hours. Mark Podolner, who worked for Hephzibath, was named in the order as the person to determine if supervision was required after one month.

On August 21, 1989, Andreina filed a petition for leave to remove Andrew to New York City, where she had obtained employment. Robert filed a response in opposition in which he asked the court to conduct a de novo trial to determine the best interests of Andrew. He alleged that he had established a warm and loving relationship with Andrew and asked that the permanent care, custody and control of Andrew be awarded to him.

On November 17, 1989, Robert filed an emergency petition for temporary custody of Andrew and a preliminary injunction restraining Andreina from removing the child to the State of New York or to Argentina. He alleged on information and belief that Andreina had moved to New York City and left physical custody of Andrew with her parents. Andreina moved to dismiss Robert’s counterpetition on the ground that the counterpetition was barred under section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 610(a)) in that it was filed less than two years after the order of dissolution of marriage was entered on December 28, 1988. On December 9, 1989, the judge granted Andreina’s motion to dismiss Robert’s petition for custody.

On January 8, 1990, Robert filed a motion for reconsideration of the December 9 order allowing Andreina’s motion to dismiss his petition for custody or, in the alternative, a motion to vacate the portion of the judgment of dissolution of marriage which related to the custody of Andrew.

On February 16, 1990, an agreed order was entered establishing visitation for Robert. It provided in part that Robert had visitation rights on alternate Saturdays and Sundays from 10 a.m. to 10 a.m. the next day; and each Wednesday from 3 p.m. until 6:30 p.m. He was to have Andrew for one week winter vacation and one week summer vacation. He was required to notify Andreina in writing giving her at least 30 days’ notice of his intent to exercise such vacation and listing Andrew’s itinerary, the place where he might be located and the telephone number where he might be reached with respect to the vacation. Andreina was to do the same for Robert when she would take Andrew on vacation or out of the State of Illinois for more than five days.

The agreed order provided for Robert’s responsibility for certain educational costs of Andrew, maintenance of health insurance and for a policy on Robert’s life in the amount of $250,000 naming Andrew as an irrevocable beneficiary. The order did not mention child support. We judge, therefore, that the order of July 24, 1989, requiring Robert to pay $1,000 per month as temporary child support was still in effect.

On March 15, 1990, the judge denied Robert’s motion to reconsider the order of December 9, and he denied Robert’s motion to vacate the portion of the judgment granting custody to Andreina. On the same day Andreina withdrew her petition for leave to remove Andrew from Illinois.

For the next several months, various other motions and petitions were filed by the parties dealing with matters such as attorney fees, visitation rights and petitions for rules to show cause.

On January 2, 1991, Robert filed a petition for an emergency order of protection under the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2311—1 et seq.). Attached to the petition was the affidavit of Robert in which he alleged that he was a physician specializing in pediatric heart surgery; that he had been denied visitation by Andreina; that he had observed Andrew with numerous bruises, a split lip and little scratches; that on December 2, 1990, when he returned Andrew to Andreina she spanked Andrew when he screamed, “Daddy, help me. I’m scared”; that she then punched Andrew twice in the face; and that Andrew had consistently manifested hysteria and fear toward Andreina and had told Robert that Andreina had struck him in the face and head with her fist.

He further alleged that he had learned “recently” that Andreina planned a trip to Argentina which “has no child abduction treaty with the United States”; that Andreina’s mother was from Argentina and Andreina had gone to high school in Argentina; that the “harm that the remedies sought were intended to prevent would be likely to occur” if Andreina had been given notice of the petition, which asked for injunctive relief against Andreina and that “temporary legal custody of Andrew be awarded to Robert.”

The judge then conducted an emergency ex parte hearing without notice to Andreina. Robert, Mark Podolner, who had been appointed by the court to supervise Robert’s visitations, and Dr. Phillip Holding, a child psychiatrist, testified. The judge entered a form order of emergency protection enjoining Andreina from removing Andrew from the physical care of Robert, who already had Andrew in his care. An-dreina was ordered to appear on January 14, 1991, and to tender to the court Andrew’s passport. The question of “temporary custody” was “reserved because no notice was given to [Andreina] but [Robert would] continue to have uninterrupted visitation until January 14, 1991, so that Andrew Gordon [would] remain in his possession.” A supplemental order was also entered that day which found that An-dreina had “committed physical abuse” upon Andrew, that if An-dreina had been given prior notice of the proceedings it was “likely that Andrew would suffer continued abuse,” that Andreina had denied visitation to Robert on at least five occasions and that the proposed three-week visitation of Andreina to Argentina with Andrew would interfere with Robert’s visitation rights.

Hearings were conducted intermittently over a period of six months. Andreina and witnesses in her behalf testified. She denied the allegations that she had mistreated Andrew. Robert and witnesses in his behalf also testified. Throughout the hearings Andrew remained in the “possession” of Robert. Andreina had the right of supervised visitation.

On July 22, 1991, the judge entered an order on a preprinted form captioned “Interim/Plenary Order of Protection.” However, the judge said that the matter was before him “to be heard on extension or termination of ex parte order of protection entered on” January 2, 1991. He concluded that the order of protection entered on January 2, 1991, “is extended until further order of the court.” (Emphasis added.)

In the form order the printed words “temporary custody” were typed through and replaced with the typed words “physical care and possession.” The order, therefore, provided that the “physical care and possession,” not temporary custody, of Andrew was “awarded to Robert Gordon.” Andreina was prohibited from removing Andrew from Illinois or concealing him in Illinois. She was ordered to “[n]ot remove the minor child Andrew Gordon from the physical care of Robert Gordon.” The order recited, “This order shall remain in effect until further order of the court. There is no just reason to delay enforcement or appeal of this order.” Andreina filed a notice of interlocutory appeal from the order of January 2, 1991, and the order of July 22, 1991, and has assigned several grounds for reversal which we will address later.

First we must consider Robert’s claim that this appeal should be dismissed. He relies on Supreme Court Rule 306(a), which provides:

“(1) *** An appeal may be taken in the following cases only on the allowance by the Appellate Court of a petition for leave to appeal:

* * *

(v) from interlocutory orders affecting the care and custody of unemancipated minors, if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules.” 134 Ill. 2d R. 306(a)(l)(v).

Andreina contends that jurisdiction is proper under Rule 307(a), which provides:

“An appeal may be taken to the Appellate Court from an interlocutory order of court:

(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” 134 Ill. 2d R. 307(a).

It is Robert’s contention that the order appealed from is an “interlocutory order affecting the care and custody of an unemancipated minor” rather than an injunction order and that Andreina’s failure to seek leave to appeal pursuant to Supreme Court Rule 306(a) requires that this appeal be dismissed. His contention now that this is an appeal of a custody order is diametrically opposite to the position he took in the trial court. He advisedly avoided the term “temporary custody” in the order; it was supplanted by “uninterrupted visitation” and “care and possession.” On January 2, 1991, the attorney for Robert told the judge, “We are not going to ask for custody, but some other relief.” On February 6, 1991, the judge said, “We are not going into full custody at this time.” On April 9, 1991, the attorney for Andreina said, without contradiction by Robert’s attorney, “There was a great deal of testimony that would reflect positively or negatively upon a custody issue, but the custody of the child is not at issue at this point.” One reason the term “custody” was avoided by Robert in the trial court is obvious to us. The Domestic Violence Act specifically excludes “legal custody” from the remedies available in an emergency order of protection. (Ill. Rev. Stat. 1989, ch. 40, par. 2312—17(a).) Indeed, the preprinted petition for a protective order filed by Robert expressly provides, “Temporary Legal Custody not available in Emergency Order.”

We wish to make our position clear, however, that our review of all the proceedings discloses that a change of custody was the purpose of the petition regardless of how the parties may have described the proceedings in the trial court. To illustrate, Robert testified at the ex parte hearing that Andreina had denied his visitation rights on five occasions. He even had the judge make that finding in the supplemental ex parte order. The significance of that evidence is illustrated by the argument he made in support of his counterpetition for a change of custody which was denied:

“A growing body of case law in Illinois and throughout the country recognizes interference with visitation as a significant factor in the award of child custody and that should be a significant factor in this case.” (Emphasis added.)

In addition, when Andreina’s attorney objected to questions asked of Robert which were designed to show the relationship between him and Andrew, his attorney said this:

“May I speak to that objection, Your Honor. You are being asked to give this man possession of this child, continued possession of this child. I would think his relationship with his child is of the utmost importance to the Court because of this request the child be continued to be in his possession.” (Emphasis added.)

Last, and most important, however, is the petition for change of custody filed by Robert after the order of July 22, 1991, had been entered. That petition, which has been provided to us by Robert’s attorneys in an appendix to his brief, establishes beyond doubt that the so-called “order of protection” was in fact an order changing custody. The petition for permanent custody is factually based entirely on the finding of abuse under the Domestic Violence Act made on July 22, 1991. An affirmance in this case would be res judicata of the factual basis of the petition for permanent custody. For those reasons we agree with appellate counsel for Robert that the order entered was, in substance, a custody order, but we also agree with appellate counsel for Andreina, for reasons to be explained later, that the Domestic Violence Act was misused and was a subterfuge to permit Robert to circumvent the requirements of section 610 of the Marriage Act. Ill. Rev. Stat. 1989, ch. 40, par. 610.

We need not determine whether the order is appealable under Rule 307(a) because we have determined that the motion to dismiss the appeal should be denied for two other reasons. First, we believe that the action brought under the Domestic Violence Act in this case was independent of the marriage dissolution proceedings. (Cf. In re Marriage of Blitstein (1991), 212 Ill. App. 3d 124, 569 N.E.2d 1357 (a petition for a protective order under the Domestic Violence Act filed in a marital dissolution case is a separate claim and is not an ancillary part of the claim for dissolution).) A petition for an order of protection may be filed under the Act “by any person on behalf of a minor child.” (Ill. Rev. Stat. 1989, ch. 40, par. 2312—1(b).) The fact that it was brought by Andrew’s father, who was also involved in the marriage dissolution proceedings, is coincidental. The core issue was whether Andreina had physically abused Andrew and that issue was completely adjudicated. If no custody order had been entered, no one could deny that Andreina might appeal as a matter of right.

Robert has seen fit to avoid the available remedies under the Marriage Act and filed a complaint under the Domestic Violence Act. We judge, therefore, that, in determining appealability, other matters pending in the dissolution proceedings are not relevant, such as the petitions for visitation filed by Andreina’s parents and particularly Robert’s petition for permanent custody which was filed after the notice of appeal was filed in this case.

The cases of In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, and In re Custody of Purdy (1986), 112 Ill. 2d 1, 490 N.E.2d 1278, do not involve the Domestic Violence Act but are analogously instructive. In Leopando, the trial court awarded permanent custody of a child to the father but reserved for future consideration the issues of maintenance, property division and attorney fees. The custody order stated that there was no just reason to delay enforcement or appeal of the order. The supreme court held that a “custody order [did not constitute] a final judgment as to a separate claim in a dissolution proceeding” and, therefore, was not appealable. (96 Ill. 2d at 118.) It is clear to us that implicitly the supreme court held that the custody order was appealable if all other material issues had been adjudicated.

The supreme court later made what was implicit in Leopando explicit in Purdy in which child custody had been granted to the mother pursuant to a judgment of dissolution of marriage. Four years later the father filed a petition for change of custody alleging that the mother could no longer care for the child because of the mother’s debilitating illness. The trial judge allowed the petition and granted the mother reasonable visitation on alternating weekends, but reserved ruling on the mother’s summer visitation rights. The order also recited that there was no just reason to delay enforcement or appeal.

The appellate court dismissed the appeal, relying on Leopando. In reversing the dismissal order of the appellate court, the supreme court distinguished Leopando, saying this:

“The issue of custody arises here not as a matter ancillary to the issue of dissolution or any other issue, but rather as a result of the father’s post-dissolution petition for a change of custody. The petition sought a change of custody, and the petition was granted. An order for a change of custody in this context constitutes a final, and therefore appealable, order. *** The fact that the circuit court reserved ruling on the mother’s summer visitation does not render the change-of-custody order interlocutory. ‘A decree is final if *** the matters left for future determination are merely incidental to the ultimate rights which have been adjudicated by the decree.’ [Citations].” (Emphasis added.) Purdy, 112 Ill. 2d at 5.

The posture of this case is the same as that of Purdy. In fact, the position of Andreina with respect to appealability is stronger than the position of the appellant in Purdy because there is nothing further pending in the complaint brought under the Domestic Violence Act. Our conclusion is not affected because the order of custody provided that it was in effect “until further order of the court.” One court may transfer jurisdiction to another court under certain circumstances. (Bashwiner v. Bashwiner (1984), 126 Ill. App. 3d 365, 466 N.E.2d 1161.) In the absence of a transfer, the decretal court has continuing jurisdiction. A court has continuing jurisdiction over the custody of unemancipated children (Sommer v. Borovic (1977), 69 Ill. 2d 220, 370 N.E.2d 1078), and the phrase “until further order of the court” is surplusage. An order of custody “until further order of the court” is as permanent as a custody order can ever be. Cf. In re Marriage of Cesaretti (1990), 203 Ill. App. 3d 347, 561 N.E.2d 306 (an order granting temporary custody to be reviewed every six months was final and appealable).

In sum, we hold that Rule 306(a) is not applicable here because that rule embraces interlocutory orders of custody. The order in this case was an order changing custody and was a final order. We conclude, therefore, that Andreina’s appeal is properly before us under Supreme Court Rule 301 in that the entire judgment was a final judgment. That Andreina filed an interlocutory appeal under Rule 307(a) is of no consequence to us. See In re Marriage of Hagaman (1984), 123 Ill. App. 3d 549, 462 N.E.2d 1276.

The second reason for our denial of the motion to dismiss arises from an observation of the supreme court in Purdy in which the appellee made the same argument that Robert makes here: The appellant should have filed a motion for leave to appeal pursuant to Supreme Court Rule 306(a)(l)(v)- To that argument the supreme court said this:

“We note that if the appellate court did not regard the order changing custody as final and appealable, the court should have considered the propriety of the order under Rule 306(a)(l)(v) in order to resolve the custody question as quickly and economically as possible.” (Purdy, 112 Ill. 2d at 4.)

We have considered the propriety of the order under Rule 306(a)(l)(v). We originally denied Robert’s motion to dismiss the appeal, and we later took the motion with the case. We have now considered the entire case. We conclude without question that we would have allowed a petition for leave to appeal. When we consider the position taken by Robert in the trial court as to the nature of the relief sought, it is understandable that Andreina’s attorney did not file a petition for leave to appeal. Under all the circumstances of this case, we judge that any order dismissing this appeal would be monstrous. The motion to dismiss the appeal of the order of July 22, 1991, is denied.

Rule 307(b) provides that a party intending to take an appeal from an ex parte order shall first present a motion to the trial court to vacate the order. Robert maintains that no motion to vacate was filed. We disagree. Andreina filed a motion to disqualify the attorneys representing Robert and to declare the order of January 2, 1991, void ab initio. The attorney for Robert objected to any order “vacating” the order of January 2, 1991. The judge, in substance, denied the motion. However, Andreina did not file a notice of appeal within 30 days after the denial of the motion, as further required by Rule 307(b). For that reason the appeal of the order of January 2,1991, is dismissed.

We turn first to the facts. On January 2, 1991, Robert appeared with Charles J. Fleck and David B. Yavitz of the law firm of Schiller, Du Canto & Fleck. When the judge asked if both sides were present, Fleck told him that the petition had been filed without notice and that they would show why the order should issue without notice.

Robert testified that during his visits with Andrew over the previous four or five months, he noticed marks, bruises and abrasions on Andrew. The bruises were primarily on the arms and legs; Andrew also had a head laceration which required stitches. He noticed that Andrew suffered a split lip sometime in early December 1990 and another one in mid-December.

Andrew is an intelligent child and can speak and understand sentences. When he first asked Andrew about the first split lip, Andrew responded that “mommy hit him.” He noticed a second split lip when he picked Andrew up for visitation. At that time when Andrew got into the car and before Robert said anything, Andrew said, “Mommy mad, mommy hit me.”

Three months before the hearing, Andrew had problems standing. When asked why, Andrew responded that mommy had pulled his leg. Robert asked Andreina about Andrew’s injuries. She said that the leg injury occurred when she accidentally twisted his leg when lifting Andrew up; she said the other injuries occurred when Andrew fell and hit himself.

Robert and Andrew became very close during this period of time. When Robert would return Andrew after their visit, Andrew became very fearful, stating that he is “scared of mommy”; Andrew started crying and became hysterical. When Robert put him in the car on the return trips, Andrew began kicking and screaming, “No” and “Please help me.” Once in the car, Andrew would not talk and went into a shell. When the car got close to Andreina’s house, Andrew began screaming and pleading with Robert to help him; Andrew has tried to lock himself in the car at times.

On December 2, 1990, he returned Andrew to Andreina as per the visitation schedule; Andrew was screaming that he was scared and did not want to go. Andreina hit Andrew on his bottom two or three times. Andrew began to cry harder and became more hysterical. An-dreina then hit Andrew twice in his head with her fist and told him “shut up or be quiet.” Robert then took Andrew away from Andreina and went to the Evanston police station.

The police told Robert to contact the Department of Children and Family Services (DCFS) about an investigation. They also told him that they would speak to Andreina and tell her that one more act of violence and they would put her in jail.

He had noticed violent proclivities on Andreina’s part in the past. On their honeymoon Andreina smashed a $700 Lladro vase against the wall when she became upset because Robert wanted to buy his nephew a $20 toy train. He saw Andreina and her mother punching each other in an argument over a bottle of Lemon Joy, a dishwashing liquid.

Andreina wanted to take Andrew to Argentina for three weeks. She refused to give Robert the telephone number or the addresses of the relatives with whom she would be staying. She was raised for a significant portion of her life in Argentina. She said on previous occasions that she thought Argentina was a better country than the United States and that she would prefer to live there.

Robert said he had been denied visitation five or six times over the previous six-month period. He feared that if Andreina had notice of the ex parte proceedings, she might take her frustrations out on Andrew. He expressed concern over the proposed trip to Argentina; he feared Andreina might not return with Andrew.

Mark Podolner testified that he was a parenting educator who was appointed by the court to supervise Robert’s visitation. He had supervised visitations for about seven years. His role was that of a “pseudo-guardian,” to provide information on behalf of the child. He supervised Robert’s visits with Andrew from June through September of 1989. Robert had a positive relationship with his son. Podolner had spoken with Andreina on several occasions and had met with her in August of 1989; he believed that she was extremely hostile.

Robert called him in early December 1990. Robert was concerned about Andreina’s alleged abuse of Andrew. Podolner visited with Robert and Andrew to observe their relationship. Andrew was afraid of Podolner and clung to his father. When told that he was going back to Andreina’s, Andrew became terrified and said, “No mommy, no mommy.” In his opinion Andrew had been “traumatized” by An-dreina. He had seen similar behavior from children who had been physically or sexually abused, but usually the child feared the noncustodial parent.

He visited with Andrew and Robert again the next week. He played a game in which Andrew pretended to kill him with laser weapons. The game was typical, but Andrew had an unusual degree of intensity for a child of that age. When Andrew was told he was going back to his mother, he exhibited the same type of fearful behavior. In Podolner’s opinion it was possible for a child to be “brainwashed” into acting that way, but he did not believe that to be the case based on his knowledge of Robert and his family. He found that Andrew’s reactions in this respect were spontaneous.

He accompanied Robert and Andrew to Andreina’s home. He observed that Andrew became withdrawn. In his opinion there were several reasons for this behavior, including withdrawal from what Andrew was experiencing. Podolner was concerned that Andreina would either physically take her frustrations out on Andrew or leave the country with Andrew.

The last witness was Dr. Phillip Helding, who was tendered as an expert witness. He was a child psychiatrist affiliated with Loyola Medical Center. He treats abused children several times a week.

Robert had contacted him on December 28 for an emergency evaluation of Andrew. He met with Robert and his sister the following day and received background information. He then met with Robert, his sister, his mother, and Andrew on December 30, 1990, for approximately one hour. He observed that Andrew was cautious, timid and did not interact with him. He noted that Andrew appeared to have a good relationship with Robert and his family.

Andrew was left alone with Helding for a short period of time. Andrew became very upset, which Helding characterized as unusual, but he expected such behavior considering Andrew’s inability to become comfortable with him during the earlier period. Andrew would not stay with him and finally had to be forcibly taken from Robert’s sister, who initially observed the meeting between the two. When alone with Helding, Andrew just continued to scream and call out for Robert and his sister for several minutes.

Andrew stated that he was afraid that there were bugs in the room and ghosts in the closet. In Helding’s opinion this fear of ghosts and bugs evidenced extreme anxiety and Andrew felt a need to attribute this anxiety to objects. When he asked Andrew if he wanted to see his mother, he screamed and began crying again. Andrew said he was scared of his mother and did not want to be with her; he wanted Robert and his sister. Based on his observations of Andrew, Helding was of the opinion that Andrew had been “traumatized” by his mother in some manner.

The judge was informed that Andrew had been with Robert since December 27 and was to be returned to Andreina on January 3. The judge gave an ex parte order for protection for 14 days. He found that Andreina had committed physical abuse on Andrew as defined in the Illinois Domestic Violencé Act and that if she were given previous notice of the ex parte proceedings it was likely that Andrew would suffer continued abuse. The order provided that Robert would have uninterrupted visitation until January 14, 1991. Andreina was also ordered to turn Andrew’s passport over to the court.

On January 14, Andreina and her counsel appeared and an agreed order was entered which continued the order of protection with supervised visitation for Andreina. On February 6, 1991, the judge began hearings to determine whether the order of protection should be extended. Testimony was heard on 10 different days over a period of almost six months.

Andreina was called first as an adverse witness and later on her own behalf. At the time she testified she was a part-time student at the University of Chicago. She had graduated from Northwestern University in June 1989 with a bachelor of arts degree. Robert began supervised visits with Andrew in June 1989. She feared that Robert would mistreat Andrew because he denied paternity during her pregnancy. She began to notice a change in Andrew’s behavior; she suspected her husband of injecting Andrew with drugs to facilitate a “brainwashing process.” On December 13, 1989, she noticed a red mark on Andrew’s buttocks and called the Evanston police. She took Andrew to the hospital for tests; the medical report indicated that the red mark was an insect bite.

Generally, Andrew would be dropped off at Andreina’s by Robert or his sister. They would ring the buzzer and Andreina would come down and get Andrew. There were never any problems with the exchanges until November of 1990. At that time, Andrew began to return home in an anxious and upset state. She could see him screaming and kicking when Robert brought him back. Andrew would calm down quickly, however, often on the way from the lobby to her apartment.

On December 2, 1991, Robert brought Andrew in kicking and screaming. Andrew was carrying a yellow blanket and clinging to his father. Andrew told her that he didn’t like her and that he was going to hit and kick her. Robert placed Andrew on Andreina’s lap, and Andrew continued to squirm and screamed for Robert. Andreina got up and took Andrew to the elevator; Robert followed. Andreina did not want to be on the elevator with Robert, so she went to the stairwell to talk to Andrew in private. Robert came into the stairwell and took Andrew from her, pushing her with his elbow. She asked what he was doing, and he responded that he could take Andrew whenever he wanted to. They argued for about five minutes in the stairwell. Robert pushed her away from the door with his elbow, left the stairwell and left the building. She ran after him. Robert put Andrew into his car, and when Andreina got near the car he pushed her away.

Andreina called the Evanston police and told them that Robert had taken Andrew; a policeman came to her home and she filled out a report. A neighbor brought her Andrew’s blanket.

Andreina, accompanied by her mother, followed the officer to the police station. At the station she met with several police officers including Officer Jones. Jones told her that Robert had made allegations of abuse against her. She immediately denied the allegations. She waited for approximately two hours in the reception area while the officers discussed the case with Robert and his family.

She noticed a bruise on Andrew once when he returned from a visit with Robert, but did not seek medical attention for the bruise. She denied that Robert had ever called her about bruises on Andrew’s arms and legs. Andrew had received the stitches over his eye when he slipped and fell at her parents’ home, hitting his head on the oven door. The split lips would occur when Andrew, who has an overbite, fell down. He had also fallen in the bathroom and broken his tooth.

She had taken two videotapes of her son which were received in evidence. The first depicted Andrew’s first birthday party on February 8, 1989; the second was taken six months later. She also made two audiotapes of Andrew after he returned from visits with Gordon. She made the audiotapes to make a record because she did not like that Andrew came home with “aggressive toys.”

She testified that when she gets upset she raises her voice. She denied ever striking her son in anger. She disciplines Andrew by telling him “No” or “Don’t do that.” If he persists, she smacks him on the hand or spanks him on the diaper. She denied ever striking him in the head, in particular on December 2, 1990. She denied destroying a Lladro vase.

Steven Jones, an Evanston police juvenile officer, testified that Robert brought Andrew into the police station on December 2, 1990. Robert explained the incident which occurred at his wife’s home and of his son’s behavior. Jones waited for Andreina to arrive. He spoke with her for approximately 15 minutes and then took everyone upstairs. He attempted to interview Andrew alone and initially got no response. Robert’s sister then came into the room and Jones questioned Andrew. In response to Jones’ question about whether he loved his mother, Andrew said, “Mom hit me.” Jones indicated that Andrew motioned with his hand hitting his head. Jones asked Andrew if wanted to go home with Andreina and Andrew responded by screaming “No” and that he did not want to go home with her. He said that he wanted to go home with his father. Jones examined Andrew “totally” and found no marks or bruises. Andrew was taken home by Andreina with the consent of Robert. Jones said that if he had any evidence of child abuse, he would not have permitted Andrew to go home with Andreina. A report was made to the DCFS pursuant to standard police procedure. Robert did not want Andrew to be taken to a child shelter.

Eunice Gordon, Robert’s mother, testified that her son lived with her and that she was present most of the time when Andrew visited. She also testified to Andrew’s behavior when informed that he was returning to his mother’s.

On December 2, Robert dropped off Andrew and placed him in Andreina’s lap. She heard Andrew screaming and saw him kicking. She had left the car; it was the first time that she had ever done so; she did so because the weather was cold and the car motor was not running. She went to the entryway of the building. She saw An-dreina, whose face had turned red, hit Andrew once in the cheek with her fist and then “pat” him on the back a few times. Robert then took Andrew and returned to the car. On cross-examination she denied ever telling anyone that she did not see what occurred. Andreina later attempted to show through Officer Jones that Eunice Gordon had told him that she had not seen what had occurred. The judge sustained Robert’s objection to Jones’ impeaching testimony. That ruling is assigned as error.

Janice Ginsberg, Robert’s sister, testified that she saw a mark or bruise on Andrew on several occasions. Later she said she had seen a bruise on only one occasion during the previous six or seven months. Robert told her that Andreina said Andrew had fallen. During the previous six months she noticed Andrew had a cracked tooth. Andrew told her it happened at his mommy’s house. She noticed something “like a gash” on Andrew’s ear. She spoke to Robert about it because she was always worried about infections. He told her he did not know how it had occurred. She also noticed stitches over Andrew’s eye above the outer left eyebrow. Robert told her that Andreina said it was an accident. About four months earlier Janice noticed Andrew had a cut on his bottom lip. She noticed a second cut appearing on Andrew’s upper lip. On direct examination she said she could not recall noticing Andrew with a cut lip on any other occasion. On cross-examination she testified she saw cuts on Andrew’s lips four or five times. She never asked Robert about the cuts because she did not think they were unusual. Later she said that she did think that the second cut lip was unusual, but she did not bring it to Robert’s attention because “as long as the child was playing and was happy,” she did not want to interfere.

She went to the police station on December 2, 1990, at the request of Robert, who had called her. Her testimony of what occurred at the police station was similar to the testimony of Robert and her mother.

Robert, Podolner and Helding also testified. Their testimony was largely a repetition of their testimony at the ex parte hearing with some omissions and additions. The judge took Andreina’s motion for judgment at the close of Robert’s case under advisement.

Dr. Patricia Mather was the first witness called by Andreina. She was a child psychologist. She listed her educational and professional accomplishments. She was initially contacted by Andrew’s maternal grandfather, Dr. Floreani. She examined Andrew on December 21, 1990, for about five minutes to assess the reactions he displayed after a visit with Robert and to give suggestions to Andreina on how to reduce Andrew’s stress. She interviewed Andreina, who informed her that Andrew would return upset after visits with his father, exhibiting aggression and wanting to hit and kick Andreina. Andreina told Mather that after one-half hour Andrew would return to normal.

Mather also saw Andrew on February 2, 1991, to determine whether Andreina had abused Andrew. She watched the videotapes which had been admitted into evidence. Based on the December 21, 1990, meeting she had with Andrew it was her opinion that Andrew was suffering from separation anxiety from both parents. Under this disorder a child can exhibit aggression and violence towards the person from whom the child is separated. This condition is more common in developmental periods when a child is under stress. Mather stated that Andrew exhibited no signs of being an abused child. There were no marks on Andrew, and he possessed none of the qualities of an abused child. She could not form an opinion with a reasonable degree of certainty that Andrew was an abused child because there was not enough empirical data present.

On cross-examination she stated that her December 1990 opinion was based on the five minutes she saw Andrew and the information provided by Andreina in the intake interview. The behavior she found most persuasive was that Andrew had difficulty separating from his mother in Mather’s office and from Robert during her interview with Robert on February 2, 1991. She had never diagnosed a victim of child abuse before.

Michael Bertrand testified that he had been a child protective investigator for the DCFS for four years. His job was to investigate allegations of child abuse. He received notification of the occurrence of December 2, 1990, from the Evanston police. He went to Andreina’s home in December 1990, but no one was home. He met with Andreina early in January 1991; Andreina contacted him after he unsuccessfully attempted to reach her on several occasions. Andrew was not present at the meeting. Bertrand went to Robert’s house in an attempt to see Andrew in early January. He received no answer at the door. He called on a couple of occasions and spoke to a woman who identified herself as Robert’s mother; she told him that she had given his previous messages to Robert. Robert did not return Bertrand’s calls. He sent a mailgram to Robert stating that the DCFS had received the report and that Bertrand needed to speak with him. He received no response from Robert. Later he said that his final report showed that the abuse was unfounded. The attorney for Robert moved to strike all of Bertrand’s testimony as having no probative value. The judge struck the testimony. That ruling is also assigned as error.

Karen Hogan was a pre-school teacher with a degree in elementary education. She testified that in September 1990 Andrew began attending nursery school where she taught. Andrew attended school two or three days a week, but not usually for a full day. Andrew had a difficult time for the first month when he was initially left at the school, but he adjusted after his hesitation in coming into the school lessened. He would cling to his mother and cry when she left and would be excited when his mother picked him up.

Hogan observed Andrew’s body from September to December 1990 when changing him at school. She never noticed any unusual marks on him; Andrew might have a bump on his knee or such, but no bruises. She did not notice a laceration near Andrew’s eye, split lips, a cracked tooth, or an inability to use his left hand or walk on his right leg.

Maria Floreani, Andreina’s mother, testified that during the summer through the end of 1990, she, her husband and Andreina provided the primary care for Andrew. She saw Andrew almost every day. The amount of time and the time of day of these visits varied. She observed him three times a week, and sometimes Andrew did not want to eat. She never witnessed any anger on Andreina’s part toward Andrew; she said that Andreina was patient with Andrew. An-dreina had a good personality. She denied ever having a dispute with her over a bottle of Lemon Joy detergent.

She changed Andrew’s diapers and bathed him. She never saw any significant bruises on Andrew’s body. Andrew had bruises which he received as the result of running and playing. He suffered a cut near his eye at her home in January 1990 when he slipped and hit his head on the oven. She never noticed that Andrew had a problem picking up objects with his hand or walking on his right leg in the second half of 1990. Over the last half of 1990, Andrew split his lower lip two or three times when he fell; she observed Andrew fall at her house and suffer one of those split lips.

On cross-examination she testified that Andrew’s behavior following the transfers from Robert to Andreina after Robert’s visitations was normal until November or December of 1990. At that time, she noticed that Andrew was unhappy or upset and would say “No, no, no” and “I hate you” to her or Andreina. He would calm down about 25 minutes after being dropped off.

Dr. Evan Floreani, Andreina’s father, testified he was a physician specializing in internal medicine and hematology. Andreina was a good and sensitive girl who did well in school. He had the opportunity to observe Andrew three or four times a week for approximately three to four hours each time during the latter part of 1990.

He bathed and examined Andrew; he did not see any bruises or lacerations on him during the latter part of 1990. He heard Andrew fall and hit his head on the oven when Andrew was visiting his house. He noticed that Andrew had a cracked tooth at one point, but never noticed that he had any difficulty walking. He noticed that Andrew had an overbite, and he once noticed a cut on his lower lip.

Dr. Richard Ciskowski, Andrew’s pediatrician, testified that he first saw Andrew after his birth and attended to him periodically since then. He saw Andrew on July 3, 1990, and examined him because Andrew was suffering from a virus. He also examined Andrew on December 20, 1990, because Andrew had some congestion. He made an appointment to see Andrew on December 24, 1990, but the appointment was not kept by Andreina. The judge sustained objections by Robert’s attorney to questions that were designed specifically to show that Dr. Ciskowski examined Andrew and saw no bruises. No error is assigned to those rulings. We judge nonetheless that Dr. Ciskowski saw no bruises on Andrew or he would have said that he had seen them when he was describing the results of his examination.

Lawrence Abrams testified that he was a friend of Andreina and had known Andrew for two years. He denied being romantically involved with her. He saw Andrew about once a week and baby-sat for him three or four times, changed his diapers and bathed him on various occasions. During the latter half of 1990, Abrams did not change Andrew, but bathed him half a dozen times. On two occasions, he noticed a small trivial bruise on one of Andrew’s legs. He never noticed that Andrew had a cracked tooth, inability to grasp objects with his hand or an inability to walk on his right leg. He noticed that Andrew had two or three split lower lips.

On December 9, 1990, he baby-sat for Andrew for seven or eight hours. He observed Andrew’s arms and legs and did not see any bruises. When Abrams picked Andrew up on that day to take him to his apartment, Andrew looked as if he had recently stopped crying, but he was fine a short time later. When Abrams dropped him off at Andreina’s at the end of the day, Andrew did not appear upset in any way.

Abrams was waiting in the lobby of Andreina’s building when Robert returned Andrew on December 9 and 16 because Abrams was concerned after hearing about the events of December 2. Abrams was not present at the exchange on December 9. On December 16, Abrams saw Robert drop Andrew off at Andreina’s. The exchange took place without incident as Andrew did not protest being turned over to Andreina. Abrams spent most of the day with Andreina and Andrew at the Museum of Science and Industry; Andrew and An-dreina interacted without any problems.

Dean Graham of the Family Institute of Chicago was called to testify. She had been assigned the supervision of visitation of Andrew by order of the court appointing the Family Institute of Chicago for that purpose. The judge allowed Robert’s motion in limine barring her testimony because her knowledge of the case came after the ex parte order had been entered. Andreina’s counsel made an offer of proof that Graham would testify that since she had been appointed she had supervised visitation between Andrew and his mother once or twice a week and that during those visits Andrew and his mother interacted well and that Andrew knew that Andreina was his mother. Andrew demonstrated a loving, open, affectionate relationship with his mother. That in limine ruling is also assigned as error.

Barbara Wilson testified that she lived in the same building as Andreina and had known her for almost eight years as an acquaintance, but she had only spoken to her four or five times over that period. She was at home at 11 a.m. on December 2, 1990, when she heard a loud argument involving a female. She said the argument lasted about five to seven minutes. She went downstairs by way of the stairwell where she saw a baby’s yellow blanket on the landing; she picked up the blanket and put it on a couch in the lobby. (The blanket was later returned to Andreina.)

She also testified that when the door between the stairwell and the lobby is closed, there is no way for anyone in the lobby to look out into the stairwell. Anyone standing outside the building could not see what was occurring inside the stairwell.

Mitchell Klass, the engineer of Andreina’s building, testified that he had observed Andreina and Andrew on a daily basis for 16 months including the last half of 1990. Andrew was a happy boy, and when he grew upset, Andreina would comfort him. Klass never saw any bruises on Andrew at any time. Klass said, “[Andrew] was a happy boy, very happy little boy. There were times like any other little boy, you know, he’d get upset and want his way.” He was asked how An-dreina would act when Andrew would become upset, and he said, “She was very soft-spoken. And she would always comfort him in a way.” He said that the relationship between Andrew and Andreina was “very close. He would always, always hang on to her.”

At this juncture, it is appropriate to discuss a trip to Argentina that Andreina intended to take with Andrew, her mother and father and Andrew’s “aunt and uncle,” who were not further identified.

On November 14, 1990, Andreina, through her attorney, notified Robert that she wished to take Andrew on vacation with her to Argentina from January 4, 1991, through January 27, 1991. The purpose of the vacation was to permit Andrew to visit his 85-year-old great-grandmother for the first time. Andreina had already purchased the airline tickets. She asked that Robert communicate any dissatisfaction to her proposal “immediately.” On December 2, 1990, by certified mail, Andreina once again informed Robert of her desire to take Andrew on vacation from January 4 through January 27, 1991. Again Robert was asked to communicate any dissatisfaction with the removal of Andrew for the three-week period “immediately.” The December 2 letter from Andreina to Robert referred to a letter from Robert to her requesting a one-week winter vacation with Andrew. She informed him that Andrew would be available to him from Thursday, December 27, 1990, at 10 a.m. until 10 a.m. Thursday, January 3, “exactly as [Robert] requested.”

Robert prepared a letter on December 10, which was served by certified mail on Andreina on December 13. In that letter Robert reminded her that both he and she were entitled to one week’s vacation with Andrew pursuant to the agreed order. He said that he expected to exercise his visitation with Andrew starting Saturday, January 12, 1991, at 10 a.m., until Sunday, January 13, 1991, at 10 a.m. In effect, he was telling her he would not consent to her taking Andrew to Argentina for three weeks.

On January 3, 1991, Andreina’s attorney filed an emergency petition to remove Andrew for three weeks to permit the trip to Argentina. The notice of the petition informed the lawyer, James T. Friedman, who had represented Robert, that Andreina’s attorney would appear on January 4 for an emergency hearing on her petition. Neither Andreina nor her attorney knew at that time that Robert had obtained the order of January 2, 1991, which was served on Andreina on January 3.

When called by her attorney, Andreina testified that Robert had visitation the Wednesday following December 2, 1991. He also had overnight visitation the following Saturday. On neither occasion did Robert make any objection to her custody. On December 13, 1990, she received a telephone call from Robert. He wanted to know if she would go on a trip with him to Florida without his mother being present and if she would take Andrew to Disney World instead of to Argentina. He said that he had no objection to her trip but to the duration. He would not mind her going for one week, but he would mind her going for three weeks. She did not accept that because she did not want to be alone with Robert far away. She did not “like the idea at all.”

Robert picked up Andrew on December 27 and was to return him one week later on January 3. During that week she called Robert’s home three times but was never able to speak to Andrew. She was told that he was either sleeping or that he was not there.

She received another invitation from Robert to spend New Year’s Eve with him and Andrew. He called with that request at the end of December. She told him, “I don’t think that’s appropriate, after all the things that we’ve been through.” He again said that he objected to her taking Andrew out of town for three weeks. Her testimony of those conversations with Robert was unrebutted.

She identified an album of pictures taken of Andrew between June and the end of December 1990. She testified that they fairly and accurately portrayed Andrew. The judge sustained an objection to the introduction of the pictures. That ruling is also assigned as error.

Three videotapes and an audiotape were received in evidence. One videotape was taken by Robert on December 8 and 9, 1990, at the direction of his attorney Charles J. Fleck. That videotape shows Robert picking up Andrew on December 8, Andrew at Robert’s home before he returned to his mother and Andrew riding in Robert’s car and being removed from the car on December 9.

Two videotapes were taken by Andreina. One was taken on Andrew’s first birthday and the other was taken six months later. The tape taken six months later shows Andrew in his own home. He is seen clothed walking around the house and climbing and standing on a coffee table; he is seen unclothed standing in a bathtub. Andreina is speaking to him in Spanish. The audiotape, identified as having been taken on December 5 and 13, 1990, after visitations with Robert, discloses Andreina talking to Andrew in English. We have examined the videotapes of December 8 and 9 and of Andrew at 18 months of age; and we have listened to the audiotape. We have also examined other exhibits including a Lladro statue and the Executive Stress Eliminator from Radio Shack which Robert purchased for Andrew and which Andreina thought was too aggressive for a boy of Andrew’s age. The Executive Stress Eliminator contains buttons which when pushed produce sounds of bombs falling and exploding and various weapons being fired.

Andreina first argues that the ex parte order denied her constitutional due process. We agree that the judge should not have proceeded to an ex parte hearing on the basis of what was before him; we agree that he should not have entered his findings of abuse ex parte-, we agree that the ex parte findings led the judge to impose an improper burden of proof on Andreina ultimately; but we do not agree that the order of July 22, 1991, should be reversed solely on the ground that the ex parte hearing and order represented abuses of judicial discretion.

Robert cites Sanders v. Shephard (1989), 185 Ill. App. 3d 719, 541 N.E.2d 1150, in support of his argument that the ex parte proceedings and order were proper. In that case Shephard was about to be paroled from imprisonment after a conviction of criminal abduction of his daughter. Sanders, the mother, filed a petition for an ex parte order of protection under the Domestic Violence Act. In the attached affidavit, Sanders swore that Shephard had phoned her from prison and threatened to kill her or commit bodily harm against her and their daughter upon his release from prison. She further stated that she believed that Shephard would make arrangements to farther conceal her daughter and destroy evidence of her whereabouts if he received prior notice. The trial judge entered an emergency ex parte order of protection and subsequently entered a plenary order requiring Shephard to produce the child in court. Shephard was subsequently held in contempt on three separate occasions for refusal to return his daughter to the custody of Sanders. The appellate court affirmed the convictions of contempt and rejected Shephard’s claim of a denial of due process:

“There is no procedural due process defect in obtaining an emergency order of protection without notice to a respondent, when the petition for the emergency protection order is supported by affidavits that demonstrate exigent circumstances justifying entry of an emergency order without prior notice. [Citation.]” 185 Ill. App. 3d at 727.

The facts of Sanders bear no resemblance to the facts of this case. In this case, the parties had been before the judge on a number of occasions. On January 8, 1991, the judge said that he was very familiar with the whole background. He pointed out that he had had the case for a year, longer than present counsel had been involved in it. Therefore, the judge was aware of the animosity between the parties, and he was aware that Robert had already attempted unsuccessfully to obtain custody of Andrew on more than one occasion. He was also aware that Robert at one time had surrendered any parental rights to Andrew and had insisted that he had no duty to provide child support for Andrew. Most of all he was aware that Andrew was in the custody of Robert at the time he appeared on January 2. There was no concealment of Andrew by Andreina. There was no reason why the visitation rights of Robert could not have been extended and the hearing conducted with notice to Andreina. She could not abscond to Argentina with Andrew; she did not have him. The judge could have ordered her to surrender Andrew’s passport before the hearing. We make this last observation in response to the far-fetched argument made in the trial court, which Robert understandably does not make here, that Andreina might go to Argentina and take Andrew with her. Dr. Evan Floreani was a respected physician; he was an American citizen; and he and his wife wer