In re Marriage of Swafford, 2023 IL App (5th) 230239-U

Summary

Case Summary: In re Marriage of Swafford, 2023 IL App (5th) 230239-U - Here is a two-sentence summary of the article: The Fifth District Court's recent decision in In re Marriage of Swafford serves as a warning to litigants who attempt to play tactical games at trial, only to have their appeals undermined by forfeited arguments and invited error. The court emphasizes the importance of building a strong record at trial, objecting specifically and on the record, controlling client behavior, integrating parenting time and financial analysis, and preserving issues below to increase chances of success in custody battles.

The opposing counsel is already on the back foot—and if you're reading this, you should understand exactly why.

The Fifth District just handed down In re Marriage of Swafford, and while it's an unpublished Rule 23 order, the strategic lessons inside are anything but academic. This case is a masterclass in how custody battles are won and lost long before the appellate briefs hit the clerk's desk. More importantly, it's a warning shot to every litigant who thinks they can sandbag arguments, play tactical games at trial, and then cry foul on appeal.

Spoiler: The appellate court doesn't care about your regrets. They care about your record.

The Swafford Landscape: What Happened

Jesse Swafford appealed the trial court's allocation of parental decision-making responsibility and parenting time to his ex-wife, Aubrie. He also challenged the court's order requiring the parties to equally share the children's education and extracurricular expenses.

He lost. On every front.

The Fifth District affirmed the trial court's findings, and the reasoning should make every family law practitioner in Illinois sit up and pay attention. This wasn't a close call. This was a systematic dismantling of an appeal built on forfeited arguments and invited error.

Lesson One: The Trial Court Record Is Your Only Ammunition

Illinois appellate courts review custody and parenting determinations under a deferential standard. The trial court's findings won't be disturbed unless they're against the manifest weight of the evidence. Translation: if the trial judge had any reasonable basis for their decision, you're not winning on appeal.

In Swafford, the trial court heard testimony about primary caretaking, communication patterns regarding school logistics, and—critically—the father's use of a GPS tracker on the mother's vehicle. There was evidence of recordings and third-party contacts involving the children.

The appellate court didn't second-guess any of it. They noted the trial court could "permissibly weigh" this evidence when making best-interest findings. The message is clear: your client's behavior during the marriage—and especially during litigation—becomes Exhibit A in the credibility war.

The Tech-Law Intersection

That GPS tracker detail isn't throwaway color. It's leverage. In modern custody litigation, surveillance technology cuts both ways. A client who installs tracking devices on their spouse's vehicle isn't just creating a bad fact for trial—they're potentially exposing themselves to civil liability and criminal scrutiny. Meanwhile, the surveilled spouse gains a powerful narrative: controlling behavior, invasion of privacy, and conduct inconsistent with co-parenting.

If you're representing the tracked spouse, this is discovery gold. If you're representing the tracker, you'd better have an explanation that doesn't make your client look like a stalker. Good luck with that.

Lesson Two: Forfeiture Is Not Your Friend

Jesse Swafford challenged the education expense allocation on appeal. The Fifth District's response was surgical: he never raised this argument in the trial court. Forfeiture. Done.

This isn't complicated doctrine, but it's remarkable how often litigants and their counsel fail to preserve issues below. If you don't object, you don't argue, you don't raise the issue—you don't get to complain about it later. The appellate court isn't a mulligan. It's not a chance to run arguments you were too timid or too tactical to advance at trial.

Preservation requires specificity. A general objection won't cut it. You need to articulate the legal basis for your position, on the record, in front of the trial judge. If your client is unhappy with an expense allocation, you fight that battle in the courtroom—not in the appellate brief.

Lesson Three: The Invited-Error Doctrine Will Destroy Your Appeal

Here's where Swafford gets truly instructive. Jesse challenged the extracurricular expense sharing on appeal, and the Fifth District shut it down under the invited-error doctrine.

Invited error means you caused or agreed to the very ruling you're now attacking. If you stipulated to something at trial, if you pursued a tactical course of conduct that led to the outcome, you cannot turn around and claim the court erred. You invited the result. You own it.

This doctrine is a trap for the unwary. Trial counsel sometimes make concessions or agreements believing they're gaining strategic advantage elsewhere. That's fine—until your client decides they don't like the outcome and wants to appeal. At that point, your tactical brilliance becomes appellate poison.

The lesson: document every stipulation, every agreement, every tactical decision. Make sure your client understands the consequences. And if you're going to concede an issue, do it with eyes wide open about the appellate implications.

Lesson Four: Client Conduct Is Litigation Evidence

The trial court in Swafford heard about GPS tracking, recordings, and communications involving the children. These weren't peripheral details—they were central to the court's best-interest analysis.

Your clients need to understand: everything they do during a custody dispute is potential evidence. Text messages. Social media posts. Emails. Surveillance activities. Conversations with the children. Interactions with third parties. All of it can and will be used against them.

Advise your clients early and often about litigation-sensitive behavior. The parent who exercises restraint, maintains appropriate boundaries, and focuses on the children's wellbeing will almost always present better to the court than the parent who's tracking vehicles and recording conversations.

This isn't about being passive. It's about being strategic. The goal is to win custody, not to accumulate evidence of your own bad judgment.

Lesson Five: Parenting Time and Support Are Intertwined

The Swafford opinion notes differing support amounts tied to parenting-time allocations. This is standard practice under Illinois law, but it creates complexity in negotiations and settlements.

When you're negotiating parenting time, you're also negotiating child support. The two are mathematically linked. A shift in overnights changes the support calculation. This means every parenting-time proposal has financial implications, and every financial proposal has parenting-time implications.

Document your agreements carefully. Specify what happens if parenting time changes. Build contingencies into your settlement agreements. And make sure your client understands that fighting for more overnights isn't just about time with the kids—it's about money.

The Strategic Takeaway

Swafford reinforces principles that experienced family law practitioners already know but that bear repeating:


Build your record at trial. The appellate court reviews what happened below. If you didn't develop the facts, if you didn't make the arguments, if you didn't preserve the issues, you've already lost the appeal.
Object specifically and on the record. General objections are worthless. Articulate your legal basis. Make the trial court rule.
Beware tactical concessions. Every stipulation, every agreement, every strategic decision has appellate consequences. The invited-error doctrine is unforgiving.
Control your client's behavior. Surveillance technology, social media, communications with children—all of it is evidence. Advise accordingly.
Integrate parenting time and financial analysis. These issues are linked. Negotiate them together.


The Power Dynamic Has Shifted

If you're facing a custody dispute in Illinois, understand this: the party who controls the narrative at trial controls the outcome. The party who preserves issues, builds the record, and presents credible evidence of appropriate parenting wins. The party who plays games, makes tactical errors, and fails to object loses—and then loses again on appeal.

Swafford is a reminder that appellate courts aren't in the business of rescuing litigants from their own mistakes. They're in the business of reviewing trial court decisions for legal error. If the trial court had a reasonable basis for its ruling, that ruling stands.

Your opposition may not understand this. Their counsel may not be preparing for trial with appellate preservation in mind. That's their problem—and your advantage.

The question isn't whether you can win. The question is whether you're positioned to win at every level. If you're not working with counsel who understands both the trial and appellate landscape, who integrates technology and surveillance issues into custody strategy, and who prepares every case as if it's going to the Fifth District—you're already behind.

Book a consultation now. The other side is already making mistakes. Let's make sure you're ready to capitalize.

Full Opinion (PDF): Download the full opinion

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, CEH, ISC2). Illinois Super Lawyers Rising Star 2016-2025.

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