In re Parentage of A.U.

Overview

In this parentage and allocation-of-parental-responsibilities case, the First District held that the trial court improperly denied petitioner's motion for substitution of judge as of right under section 2-1001(a)(2) of the Code of Civil Procedure. Because the judge had not ruled on any substantial issue and no trial or merits hearing had begun, the right to substitution was absolute. The court reversed the denial, vacated all subsequent orders (including the final allocation judgment), and remanded for reassignment to a different judge.

Key Facts

Minor A.U.-A. was born in 2019 to unmarried parents; respondent signed a voluntary acknowledgment of paternity. Both parents are enrolled members of the Turtle Mountain Band of Chippewa Indians; respondent resides on the tribe's North Dakota reservation.

HFS filed a support complaint; respondent responded with a petition for allocation of parental responsibilities seeking sole decision-making and relocation of the minor to North Dakota.

Petitioner alleged domestic violence and threats to remove the child to the reservation, raising concerns about enforcement given tribal sovereign jurisdiction.

The case was assigned to the trial judge in early 2024. On January 10, 2025, petitioner filed an emergency motion to continue trial and to appoint an evaluator under section 604.10(b) of the IMDMA (750 ILCS 5/604.10(b)).

The January 13, 2025, written order contained one finding only—that the matter was not an emergency under Cook County G.O. 2022 D 12—and denied the motion. A briefing schedule on the same relief was later entered, and the parties briefed it.

Petitioner moved for substitution of judge as of right on February 14, 2025; the court denied it on March 6, 2025, finding the January 13 order was a substantial ruling because it had heard argument and "expressed its opinion."

The court then barred petitioner's late-disclosed Rule 213(f) witnesses and exhibits, conducted a five-day trial, denied motions to reopen proofs, and entered a final allocation judgment on August 29, 2025.

The record contained no transcript or bystander's report of the January 13 or February 27, 2025, hearings; respondent filed no appellee's brief, and the appeal was decided on petitioner's brief and the record. See First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128 (1976).

Procedural History

Circuit Court of Cook County, Domestic Relations (No. 20 D 450097, Judge Scott Tzinberg). Accelerated child-custody appeal under Illinois Supreme Court Rule 311(a); the court found good cause for issuing its decision beyond 150 days due to briefing extensions, citing In re J.S. , 2020 IL App (1st) 191119, and In re Zariyah A. , 2017 IL App (1st) 170971.

Holdings

Reviewed de novo ( In re Marriage of Crecos , 2015 IL App (1st) 132756, ¶ 21): The denial of the motion for substitution of judge as of right was error. An order finding a motion "not an emergency" is not a ruling on a substantial issue because it does not relate directly to the merits. All orders entered after the substitution motion was filed—including the trial rulings and final judgment—are vacated; remanded for reassignment.

A hearing on an emergency motion is not a "hearing" under section 2-1001(a)(2); that term means a hearing on the merits of the underlying litigation ( Gohari v. McDonald's Corp. , 2022 IL App (1st) 201086, ¶ 21).

The trial court's later characterization that it had "determined there was no need for a 604.10(b) evaluator" could not supplement the clear, unambiguous written order. See Hartgraves v. Don Cartage Co. , 63 Ill. 2d 425, 432 (1976).

The court did not reach the evidentiary (motion in limine) issue, as vacatur mooted it.

Legal Principles

735 ILCS 5/2-1001(a)(2): one substitution as of right if presented before trial or hearing begins and before the judge has ruled on any substantial issue. When properly raised, the right is absolute and the court has no discretion to deny it; improper denial requires vacatur of every subsequent order ( Palos Community Hospital v. Humana Insurance Co. , 2021 IL 126008, ¶¶ 25, 34). A ruling is "substantial" only if it relates directly to the merits ( Crecos ; Nasrallah v. Davilla , 326 Ill. App. 3d 1036; In re Estate of Gay , 353 Ill. App. 3d 341). Clarification: Palos abrogates Crecos 's "expressed his opinion on the relief prayed for" factor—judicial commentary or "testing the waters" is no longer part of the analysis.

Practical Implications

File the SOJ as of right early, but know that housekeeping and emergency-status rulings (including Cook County G.O. 2022 D 12 determinations) do not forfeit the right.

Argue that whether the judge "expressed an opinion" at a hearing is irrelevant post- Palos ; focus solely on whether the ruling reached the merits.

Preserve the argument by relying on the four corners of the written order; a judge's later recollection cannot expand it ( Hartgraves ).

Opposing counsel should look for genuine merits rulings—e.g., dispositive motion rulings or true evidentiary determinations—and note that oral argument on a motion to dismiss can constitute a "hearing."

Beware the cost: an improper denial invalidates a five-day trial and final custody judgment, so trial courts and litigants should resolve SOJ motions correctly before proceeding.

Limitations/Caveats

This is a Rule 23(e)(1) order and is not precedential except in limited circumstances; it may be cited only for res judicata, collateral estoppel, or law of the case. It was decided without an appellee's brief and on an incomplete record (no transcripts of the key hearings), which may limit its persuasive force. The discussion of what constitutes a "hearing" under section 2-1001(a)(2) supports the holding; the observation regarding Crecos 's abrogation is reasoning integral to the result but framed as commentary on prior appellate authority. The witness-bar issue was not decided.