FOURTH DIVISION
December 30, 2004

The petitioner, Bradley Gilbert, appeals the decision of the circuit court of Cook County which issued onbehalf of the respondent, Lynette Gilbert, a plenary order ofprotection. On appeal, Bradley argues (1) the trial court erredin applying section 8-2601 of the Illinois Code of CivilProcedure (735 ILCS 5/8-2601 (West 2002)) in admitting hearsaytestimony that he sexually assaulted his daughter; (2) the trialcourt failed to conduct a reliability hearing with reference tosuch hearsay, and (3) the hearsay statements lacked thecorroboration required by the statute. For the reasons thatfollow, we affirm the decision of the trial court.

Bradley and Lynette were married in 1994. During theirmarriage, they had two children, a son, C.G., and a daughter,B.G. On October 17, 1997, Bradley filed a petition fordissolution of marriage. On March 2, 2000, a judgment fordissolution of marriage was entered. The parties also executed amarital settlement agreement and a joint parenting agreement,which were both entered on March 2, 2000. In the joint parentingagreement, the parties agreed that Lynette would serve as theprimary residential parent for the couple's two children.

On August 11, 2000, under the original dissolution case,Lynette filed an ex parte petition for an order of protection onbehalf of C.G. and B.G. against Bradley, pursuant to the IllinoisDomestic Violence Act of 1986 (Domestic Violence Act), (750 ILCS60/214 (West 2000)). An affidavit in support of the emergencyorder of protection was attached to the petition. In theaffidavit, it was alleged that, on August 10, 2000, B.G., who wasfour years old at the time, was visiting Bradley at his home whenhe sexually abused her. Specifically, it was alleged in theaffidavit that B.G. informed Lynette that during the visit,Bradley's penis, or "project" as she referred to it, touched her"private parts."

On August 11, 2000, the trial court found that there werereasonable grounds to believe that abuse had occurred and giventhe emergency nature of the situation, entered an ex parte orderof protection.

Thereafter, a hearing on the matter was held. At thathearing, Lynette testified that on the evening of August 10,2000, C.G. and B.G. arrived at her home at approximately 8 p.m.after visiting with Bradley. Later that evening, as Lynette wasgiving B.G. a bath, B.G. said "'mommy, daddy's private partstouched my private parts today.'" Lynette said that prior toB.G. making this statement, she had not been asking B.G. what shehad been doing with her father earlier that day. Lynettetestified that this was the first instance that B.G. had evermade such a statement to her. Lynette said that she was notsurprised that B.G. referred to her genitals as "private parts"since this is how she had taught B.G. to refer to them.

After B.G. made this statement, Lynette said that she askedB.G. "What did you just say?" Lynette then testified that B.G.again said, "'Daddy's private parts touched my private partstoday, mommy.'" Lynette said that she then took B.G. out of thetub, dried her off, and put some clothes on her so they could sitdown and talk in the bedroom.

Once they were in the bedroom, Lynette said that she askedB.G. to tell her what she did with her daddy. Lynette testifiedthat B.G. explained that "daddy said that he had a project forher to do." B.G. explained that Bradley also had a project forC.G. to perform, which was scooping dog "poop" in the backyard. When Lynette asked B.G. what her project was, Lynette said thatB.G. began to "withdraw a little bit and say, 'well, I don't knowthe words, mommy.'" Lynette said that she reassured B.G. andjust asked her to explain what she did at "daddy's house."

B.G. then explained "'well, he had this project, and he laidher down on the bed and took off her clothes. There was a redpillow and a green pillow. That he then took off his pants orlet down his pants and that the project was real little and itgot real big.'" Lynette stated that B.G. was referring toBradley's penis as the "project" at first and then as the"finger" so that she became a little confused as B.G. was tellingher story. Lynette said that B.G. said that she "held her mouthlike in a circle like uh, and she was real good that she didn'tbite." When asked what went into B.G.'s mouth, Lynetteresponded, "She kept calling it the project and the finger. Iwas very confused."

Lynette then testified that "[B.G.] kept telling me shedidn't know the words but that it tickled, that when daddy'sprivate part touched her it tickled. She showed me it wasbetween her legs and her bottom. She told me that it touched herbottom. And I asked her if it hurt. She said, no, it kind oftickled. And then I realized it was getting late and I stillneeded to get the laundry, so I just kind of said well, 'youknow, you can tell me anything at any time, right?' And she said,'yes.' I said, 'why don't we go get [C.G.], and let's godownstairs and get the laundry out of the dryer and come back up. Its getting late, and I think we need to go to bed.'"

After they retrieved the laundry, Lynette asked B.G. whatcolor the project was, and B.G. responded that it was "brown andpurple." At that point, Lynette said that was the end of theirconversation. After consulting with her parents, she decided tocall a doctor. Thereafter, she called a doctor and made anappointment for B.G. to see him the next day.

The next day, during the doctor's examination, Lynette saidthat B.G. refused to answer questions concerning the previousday. The doctor found no physical injury to the child. Beforethey left the doctor's office, Lynette testified that the doctorinformed her that he had an obligation to report the occurrenceto the proper authorities. Lynette testified that she responded,"you do what you have to do."

Later that afternoon, on August 11, 2000, Lynette and herattorney appeared in court to request an emergency order ofprotection. Thereafter, she reported the incident to the police. Later, Lynette said that she had another conversation withB.G. During the conversation, Lynette testified that she askedB.G., "Now when you were telling me about the project you alsocalled it the finger, where was the project? Was it this or wasthe project something different? And she said 'no,' and shepointed down to her private area. She said, 'the project wasdown here.' I said, okay. And when you said the project and thefinger went in your mouth and you held your mouth like this, butyou didn't bite, was it the finger or was it the project downthere? And she said, 'it was the project down there.' And Isaid -- I couldn't help myself -- I said, 'well, what did youthink?' She said, 'it was yucky. I told daddy to get it out.' I said, 'good girl. Thanks. You can go play.'"

Thereafter, B.G. was referred to the Children's AdvocacyCenter for a victim-sensitive interview on August 15, 2000. B.G.was interviewed by Caryn Brauweiler, who was the assistantdirector and had conducted 1,000 interviews of allegedly abusedchildren, 300 of which involved a child under the age of four. Detective Dave Bruno of the Hanover Park police department,Investigator Ron Miller of the Department of Children and FamilyServices, and Assistant State's Attorney (ASA) Ruth Howes of theCook County State's Attorney's office observed the interviewthrough a one-way glass.

During the interview, B.G. was asked if mommy touched herprivates outside of the bathtub and she said "no." When asked ifdaddy touched her privates outside of the bathtub, she paused andlooked away. B.G. then responded, "No, he doesn't."

Later in the interview, B.G. was asked if anyone touched herwhere she goes potty, she responded, "Yes." When asked who, sheshrugged her shoulders but did not respond. When asked to talkabout it, B.G. said that she would respond later if she weregiven some time to color. Thereafter, B.G. was asked about thetouching that happened on her private parts and she stated "I'mscared about it. Daddy does that."

B.G. was then shown anatomically correct dolls and she wasable to correctly identify the parts of the dolls, includingtheir genitalia, which she referred to as private parts. Thenthe interviewer reminded B.G. that they were going to talk aboutthe kind of touching that was scary for her. B.G. responded,"Mom told me if dad touched my private again, I should scream." When asked if that really happened, B.G. stated, "One time hedoes, a lot of times he does." When asked where this occurred,B.G. stated, "In his bedroom." B.G. then stated that it occurred"In his bed." B.G. then said that her father took her clothesoff and that he took his own underwear off.

When asked what happened next, B.G. stated that, "He stuckhis private there," as she pointed to her vagina and buttocks. When asked what her father's private's looked like, B.G.responded, "It looks like a boy's private." When she was askedif it looked liked the doll's private, she stated, "It wassticking up." She spontaneously added, "C.G. was picking Lady'spoop up." When asked where her father's fiancee was at when thisoccurred, B.G. responded that she was at work.

B.G. than had the interviewer draw her so that she was lyingon her stomach on her father's bed. When asked what happened,she stated, "He put his private on my bottom and stuck it throughmy legs, and put it here on my private." When asked how it felt,she said "silly." When asked if anything came out of hisprivates, she responded, "Let's not talk about it. It's yucky."

Later, B.G. began playing with the anatomically correctdolls. During this time, Brauweiler asked B.G. to show her howdaddy touched her. B.G. took the small female doll and put it onthe floor facedown. She pulled the underwear off and took thelarge male doll, pulling his pants off, and inserted the penis inthe rectum of the small female doll. She then explained thatdaddy then put his private between her legs and said that ittouched her on the private. She then stated, "Let's not talkabout it. I'm scared."

Bradley testified that on August 10, 2000, he picked up bothB.G. and C.G. from Lynette's house. He said that he spentapproximately two hours alone with the children, outside thepresence of his fiancee. He explained that during this time hegave C.G. a "project" to do, which was to scoop their dog's"poop" up in the backyard. He stated that C.G. did this task forapproximately five minutes. He stated that he did not assign atask to B.G. Bradley said that he used the term "project"because of his job.

He denied ever going into a bedroom with B.G. He statedthat there were no red or green pillows in the bedroom at hishome. He denied having any sexual contact with B.G. He statedthat B.G. never touched his penis. He stated that he had nevertouched her private parts in an inappropriate way.

Nancy Mulso testified that she was an employee of JudicialMonitoring Resources (JMR) an organization appointed by the trialcourt to supervise visitation. Mulso stated that JMR providedservices to Bradley and the children after the allegations ofabuse had been levied. As an employee of JMR, it was Mulso's jobto observe the visitation periods that Bradley had with hischildren.

Mulso testified that Bradley's behavior during visits withhis children was appropriate. Mulso testified that when B.G.visited with her father at the Schaumburg library, the child wasreluctant to return to her father and stated she was afraid ofhim. When asked why by Ms. Mulso, B.G. stated "because he didthat bad thing." Mulso testified that during one particularvisit, B.G. asked Bradley, "[W]hy did you do that?" And he said,"[W]hy did I do what?" B.G. responded, "Why did you touch mewhen you weren't supposed to?" And he said "[W]hen did I dothat?" And she said, "[M]ommy said you did." And he said,"[W]ell you'll have to ask mommy when it happened because Ididn't do it."

Mulso further testified that on a separate visit, whileBradley and the children were at an ice cream shop, "the childrentold [Bradley] that he wasn't going to heaven, he was going tohell because he didn't have Jesus in his heart."

On another visit Mulso overheard C.G. telling B.G. that shehad to watch out what she said in front of Mulso, "that she's [B.G.] not supposed to say things in front of us that mommysaid."

Ron Miller, an investigator with the Department of Childrenand Family Services, observed that in his experience he had neverfound a case where a four year old was able to make falseallegations of sexual abuse.

Following the hearing, on September 10, 2002, the trialcourt issued a memorandum order. In the order, the trial courtinitially stated that the matter was "coming on to be heard uponthe petition of Lynette Gilbert for an order of protection filedon August 11, 2000." Although improperly captioned LynetteGilbert v. Bradley Gilbert, it was filed under the originaldissolution case number wherein Bradley filed as petitioner andLynette was the respondent. In the order, the trial courtdetermined that B.G. had been abused by Bradley. The trial courtissued a plenary order of protection pursuant to section 220 ofthe Act, which it incorporated into the March 20, 2000, finaljudgment for dissolution of marriage. The trial court furtherprovided that visitation with the children would "continuesubject to Bradley's compliance with the court's order regardingthe counseling program of the Social Service Department."

Thereafter, Bradley filed a petition to vacate, modify,reopen, or reconsider the order entered on September 10, 2002,pursuant to section 2-1203 of the Illinois Code of CivilProcedure (735 ILCS 5/2-1203 (West 2002)), which the trial courtdenied on December 19, 2002.

On January 17, 2003, Bradley timely filed his notice ofappeal wherein he appealed the trial court's orders of September10, 2002, and December 19, 2002.

On appeal Bradley argues that it is inappropriate to enteran order of protection pursuant to the provisions of the IllinoisDomestic Violence Act of 1986 that would vary the visitationrights determined in the dissolution proceedings. Although atleast one Illinois case in the Third District, Radke v. Radke,349 Ill. App. 3d 264 (2004), held that the Illinois DomesticViolence Act had been inappropriately used to alter thedefendant's visitation with his minor child, we are not facedwith that problem in this case. Here the order of protection wasfiled under the original dissolution case number so that thethoughtful opinion of the trial court was entered pursuant tothat initial dissolution case.

Moreover, in Radke, the court determined that the substanceof the plaintiff's complaint was not proven so that the issue ofthe application of the Domestic Violence Act was, in essence,dicta.

Even if the petition had not been filed under the originaldissolution case number, the Domestic Violence Act does notimpose any jurisdictional limitations. Section 103(6) of theDomestic Violence Act defines family or household members as any"children" without any reference to previous dissolutionproceedings. 750 ILCS 60/103(6) (West 2002).

Similarly, section 205(a), in determining the applicabilityof the rules of civil procedure, references "[a]ny proceeding toobtain, modify, reopen or appeal an order of protection, whethercommenced alone or in conjunction with a civil or criminalproceeding, shall be governed by the rules of civil procedure ofthis [s]tate." 750 ILCS 60/205(a) (West 2002). Here, again, thedrafters suggest that domestic violence proceedings may becommenced in conjunction with other civil proceedings or whenanother action is pending.

Reference is again made in section 210(a) dealing withprocess that relates to an action "commenced alone or inconjunction with another proceeding." 750 ILCS 60/210(a) (West2002). Similarly, section 210.1 refers to seeking an order ofprotection in conjunction with a pending civil case. 750 ILCS60/210.1 (West 2002).

The trial court's thorough order provides Bradley with everyopportunity to submit recommendations for reasonable alternativearrangements for supervised visitation of the minor children ofthe parties as well as providing obligations of petitioner to beinvolved with social service agency supervision and counseling.

Petitioner argues that the trial court erred in admittinginto evidence the hearsay evidence of B.G.'s statement as to thesexual abuse imposed by Bradley. While generally hearsaystatements are not admissible to prove certain conduct, theIllinois General Assembly has established certain statutoryexceptions to the hearsay rule in connection with alleged childabuse.

Section 606(e) of the Illinois Marriage and Dissolution ofMarriage Act provides that "[p]revious statements made by thechild relating to any allegations that the child is an abused orneglected child *** shall be admissible in evidence in a hearingconcerning custody of or visitation with the child. No suchstatement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a findingof abuse or neglect." 750 ILCS 5/606(e) (West 2002).

The Domestic Violence Act provides that the rules of civilprocedure shall be applicable to domestic violence actions (750ILCS 60/205 (West 2002)). With that in mind, we note thatsection 8-2601(a) of the Illinois Code of Civil Procedure states"[a]n out-of-court statement made by a child under the age of 13describing any act of child abuse or any conduct involving anunlawful sexual act *** is admissible in any civil proceedings,if *** the child *** is unavailable as a witness and there iscorroborative evidence of the act which is the subject of thestatement." 735 ILCS 5/8-2601(a) (West 2002).

A similar provision with almost identical language iscontained in the Juvenile Court Act of 1987 (Juvenile Court Act) 705 ILCS 405/2-18(4)(c) (West 2002)).

Although the relief sought in the instant petition refers tothe Domestic Violence Act, the essence of the court's rulingclearly implicates questions of custody and visitation. Accordingly, we find section 606(e) of the Illinois Marriage andDissolution of Marriage Act would apply. In re Marriage of Rudd,293 Ill. App. 3d 367 (1997).

We recognize that if this were a proceeding under theDomestic Violence Act, it might be argued that the guiding rulesare those set out in the Domestic Violence Act or perhaps eventhose set out in the Illinois Code of Civil Procedure.

In examining the cases, it does not seem to make adifference. All of the statutes relate to statements of abuse bythe child and the requirement that there must be corroboratingevidence.

However, we believe that section 606(e) of the IllinoisMarriage and Dissolution of Marriage Act is the appropriatestatute to consider in relation to these hearsay statementsbecause the instant petition was brought under the name and titleof the original dissolution petition. 750 ILCS 5/606(e) (West2002).

Next, we consider whether it was error for the trial courtnot to conduct a reliability hearing with reference to B.G.'shearsay. Section 606(e) of the Illinois Marriage and Dissolutionof Marriage Act does not provide for a reliability hearing and wefind that none is required in a bench trial. Of the several actsdealing with hearsay of an allegedly abused child, only section8-2601(a) provides that the statements shall be admitted only if"the court conducts a hearing outside the presence of the juryand finds that the time, content and circumstance of thestatement provide sufficient safeguards of reliability." 735ILCS 5/8-2601(a) (West 2002)) Subsection (b) of 5/8-2601 setsforth the content of instructions to the jury where such astatement has been allowed into evidence. Section 8-2601contemplates use of the hearsay statements in jury trials andseemingly imposes the reliability hearing in these matters. Sinceno such provision is set forth in section 606(b), we do notbelieve the requirement is imposed upon the trial courts hearingmatters under the Illinois Marriage and Dissolution of MarriageAct.

Even if such a hearing was required in jury cases, in abench trial the trial judge is presumed to have considered thetime, content and circumstances under which the statement wasmade in determining the reliability of the statements. People v.Hart, 214 Ill. App. 3d 512 (1991). In the Hart case, the failureto hold a separate hearing in a bench trial was harmless error. It is difficult to imagine that the plethora of evidence andtestimony surrounding B.G.'s statement would not satisfy thesafeguards of reliability as to time, content and circumstancesof their making. In re Marriage of Rudd, 293 Ill. App. 3d 367(1997).

Lastly, we address Bradley's claim that the B.G.'s hearsaystatements lack the corroboration required by the statute.

In In re A.P., 179 Ill. 2d 184 (1997), which was a casearising under the Juvenile Court Act, our supreme courtacknowledged that the "form of corroboration will vary dependingon the facts of each case and can include physical orcircumstantial evidence." In re A.P., 179 Ill 2d at 199.

The language of the governing statute under the IllinoisMarriage and Dissolution of Marriage Act contains precisely thesame language as that set forth in the Juvenile Court Act.

The trial court properly relied heavily upon two cases. Inthe First District case In re C.C., 224 Ill. App. 3d 207 (1991),as in the case at bar, C.C. told his story of his father's sexualabuse. The court determined there was appropriate corroborationwhere the declarant, playing a game with puppets, described thesexual activity of his father, a social worker observed himplaying that game, and an interdisciplinary group made up ofchild rights specialists, psychologists, social workers,psychiatrists and nurses examined the activities of thedeclarant, and although there were no physical issues noted, theyconcluded from their interviews, evaluations and observationsthat the declarant was a victim of sexual abuse. The conclusionwas reached in part by C.C.'s discussion about touching hispenis, touching his father's penis when both were erect and thensoft again, and about "'yellow stuff.'" In re C.C., 224 Ill. App.3d at 210.

In evaluating the minor's out-of-court statements, the In reC.C. court determined that these evaluations and observationswere corroborative evidence within the purview of an earliercase, In re K.L.M., 146 Ill. App. 3d 489 (1986).

In In re K.L.M., the court found sufficient corroboration inthe testimony of caseworkers and a psychotherapist that the fouryear old child was anxious, that the child would have had limitedopportunity to have learned about sexual matters that shepurported to describe, and that there was some skin irritation inher genital area.

A recent case would suggest a different outcome. In In reMarriage of Flannery, 328 Ill. App. 3d 602 (2002), the courtdetermined that merely observing the physical evidence of thechild's hearsay statements of sexual abuse, such as using puppetsor other "games," was insufficient to provide corroboration underany of the operative statutes. The statements relating toobservation of the child were also hearsay.

If the Flannery case is bedrock precedent, it would bealmost impossible to obtain a finding of sexual abuse unlessthere was some physical evidence on the body of the child orunless the abuser had other witnesses to his abuse, a matter thatis certainly unlikely.

The trial court had available the observation of CarynBrauweiler, the assistant director of the Child Advocacy Centerof Northwest Cook County, who has, as we have noted, conducted1,000 interviews of allegedly abused children, 300 of whichinvolved a child under the age of four. She witnessed B.G.'s useof anatomically correct dolls to demonstrate the abuse, notingthat B.G. was able to discuss the fact that Bradley's penis was"sticking up." She also was the person who responded to B.G.'srequest to draw a picture of B.G. lying in her father's bed and aphysical demonstration of what happened to her in that position.

Additionally, there was the observations of the victimsensitive interview by Detective David Bruno of the Hanover Parkpolice department and DCFS Investigator Ron Miller, who observedthat in his experience he had never found a case where a fouryear old was able to make false allegations of sexual abuse,particularly in view of the lengthy details and complex victim-sensitive interview. He also observed B.G. discussing the"touching" before the dolls were brought out.

Perhaps the most compelling testimony is that of Nancy Mulsoof the Judicial Monitoring Resources, who observed B.G.confronting Bradley with respect to allegations of abuse. It isdifficult to imagine that a four year old would confront herfather over deeds that never happened.

Moreover, B.G. visited with her father at the Schaumburglibrary and as she was reluctant to return to her father, shestated she was afraid of him. When asked why by Ms. Mulso, sheresponded "because he did that bad thing."

Additionally, Bradley used the word "project" often inspeech and B.G. used it in identifying the incident as a"project," as well as in referencing genitals as a "project."

The trial court also noted the improbability that B.G. wouldbe aware of knowledge about a penile erection in that it would be"real little and then it would get real big" or that she had someknowledge of ejaculation as evidenced by her comment, "Let's nottalk about it. It's yucky."

All of the above fall within the ambit of the First Districtcase In re C.C. and the Fourth District case In re K.L.M..

Bradley suggests that Lynette had motivation to fabricatethe entire scenario and that during the course of the dissolutionproceedings, she threatened to raise issues of interfamily sexualabuse that had occurred in Bradley's family. To the contrary,the trial court's opinion states that "there is no evidence ofany motivation in this child or the mother to fabricate thisstory." The trial court goes on to note that Lynette was awareof Bradley's relationship with his fiancee for a very long time.

The trial court had an opportunity to hear the evidence,view the witnesses and make judgments as to their credibility,and in its well-considered order, it stated that the evidence "isjust simply not enough to form a basis to conclude there wasfabrication, or to infer it from these facts." Additionally, thetrial court suggests the young age of the child and the facts ofthe case make it unlikely that the child fabricated.

Based upon the record before us, we cannot say that thetrial court's findings were against the manifest weight of theevidence.

Affirmed.

QUINN, J., concurs.

REID, P.J., dissents.

PRESIDING JUSTICE REID dissenting:

I dissent. I would reverse and remand this matter withdirections to vacate the order of protection.

The first issue I will address is whether Lynette's use ofan order of protection to alter Bradley's visitation rights withregards to B.G. was proper. Here, I believe that Radke v. Radke,349 Ill. App. 3d 264 (2004) and Wilson v. Jackson, 312 Ill. App.3d 1156 (2000) are very instructive.

In Radke, the petitioner, Kathryn, was formerly married tothe respondent, Ross. Following the dissolution of theirmarriage, Kathryn was granted residential custody of the parties'12-year-old daughter, Laine. Ross was granted visitation.

Thereafter, Kathy filed a petition for an order ofprotection on behalf of Laine. Kathryn sought, inter alia, anorder prohibiting Ross from abusing, harassing or intimidatingLaine. The trial court subsequently issued an emergency ex parteorder of protection.

At the subsequent hearing on the petition, Laine testifiedthat she visited her father in January 2003. At that time, sheinformed Ross that she did not enjoy spending time at his homeand that she wanted to return to her mother's house. When sheattempted to call her mother, Ross "ripped the telephone off ofthe wall" and grounded her.

Thereafter, Laine said that she attempted to leave and walkto her mother's house. When she did, Ross followed her outside,held her arms behind her back, then pushed her inside and intoher room. Laine testified that Ross attempted to hit her, butsaid that she was able to avoid contact by moving backwards. Shealso said that she suffered a bruise on her arm as a result ofthis incident.

At the conclusion of the hearing, the trial court found thatissues of visitation would not be addressed in the order ofprotection. "The court specifically noted that it would notrestrict Ross's visitation, correctly recognizing that thepurpose of an order of protection, 'is to protect, not toeffectuate changes in visitation.'" Radke, 349 Ill. App. 3d at267.

The court accepted Laine's testimony that physical force hadbeen used to prevent her from returning to her mother's house,and that Ross had denied her access to a telephone to call hermother. The trial court determined that Ross had improperlyprevented Laine from calling Kathryn. Consequently, the courtentered a plenary order of protection requiring Ross to refrainfrom physical abuse, harassment, intimidation or interferencewith the personal liberty of his daughter for two years from thedate of the order. Radke, 349 Ill. App. 3d at 267.

On appeal, Ross argued that: (1) the trial court abused itsdiscretion in granting the order of protection because theevidence failed to establish that he had harassed his daughter,and (2) the order of protection should be vacated because anyaction to restrict his visitation with his daughter should havebeen taken under the existing dissolution action rather than byobtaining an order of protection. The Radke court rejected thetrial court's legal conclusion that Ross' action of denying Lainethe ability to use the phone under the circumstances constitutedharassment. Radke, 349 Ill. App. 3d at 268.

The Radke court then turned to the question of whether ornot the order of protection should be vacated because any actionto restrict his visitation should have been taken under theexisting dissolution action rather than by obtaining an order ofprotection. The Radke court agreed with Ross. Its reasoningfollows:

"The primary purpose of the Domestic Violence Actis to aid victims of domestic violence and to preventfurther violence. 750 ILCS 60/102 (West 2002); Wilsonv. Jackson, 312 Ill. App. 3d 1156 (2000). Obtaining anorder of protection is not the proper procedure forresolving child custody or visitation issues. Thoseissues should be resolved under the Illinois Marriageand Dissolution of Marriage Act (750 ILCS 5/101 et seq.(West 2002)). Wilson, 312 Ill. App. 3d 1156 (citing Inre Marriage of Gordon, 233 Ill. App. 3d 617 (1992)).  In Wilson, this court found that the petitioner'sprimary purpose in seeking an order of protection wasto obtain visitation and custody of his child ratherthan to prevent abuse. We vacated the order ofprotection granted by the trial court due to thepetitioner's misuse of the Act, as well as insufficientevidence of abuse. Wilson, 312 Ill. App. 3d 1156.

In this case, Kathryn admitted that she obtainedthe order of protection to temporarily suspendvisitation. Laine also indicated that the order ofprotection was sought so that she could see her fatheronly when she wanted to see him. The Domestic ViolenceAct is not the appropriate vehicle for resolving suchissues. We note that the order of protection did notrestrict Ross's visitation or contact with Laine. Thecourt narrowly drafted the order to prohibit physicalabuse, harassment, interference with personal libertyor intimidation. Nevertheless, based on this record,we believe that Kathryn misused the Domestic ViolenceAct for the purpose of attempting to alter Ross'svisitation with Laine. For that reason, and because wefind that no harassment occurred, we reverse thejudgment of the circuit court and vacate the order ofprotection." Radke, 349 Ill. App. 3d at 268-69.

In Wilson, the petitioner sought an ex parte order of protection under the Domestic Violence Act in order to obtaincustody of his daughter. The Wilson court determined that thepetitioner misused the Domestic Violence Act as a means to obtainpossession and custody of his daughter from his ex-girlfriend. The ruling of the Wilson court follows:

"In this case petitioner could have filed apetition for visitation or custody under the ParentageAct (see 750 ILCS 45/6(e) (West 1998)) or the MarriageAct (see 750 ILCS 5/601(b)(1)(ii) (West 1998)). Instead, petitioner waited until he had physicalcustody of the child and then sought an ex parte orderof protection. A careful review of the entire recordconvinces this court that petitioner's primary purposein seeking an order of protection was not to preventabuse but was to obtain visitation with and custody ofthe child. While petitioner's desire to be a part ofhis child's life is laudable, obtaining an order ofprotection is not the proper procedure for establishing visitation. Petitioner's misuse of the DomesticViolence Act in this manner warrants reversal of theplenary order of protection entered in this case. Cf.Gordon, 233 Ill. App. 3d at 648('We would be justifiedin reversing the judgment on the grounds that the judgeexceeded his statutory authority and that the DomesticViolence Act was misused * * *.'). We emphasize thatnot every case of improper use of the Act would requirereversal. It is both the misuse of the Act, and thedearth of evidence of abuse, as explained below, thatcompel reversal." Wilson, 312 Ill. App. 3d 1156 at1164-65.

The Illinois Marriage and Dissolution of Marriage Act(IMDMA) provides parents with certain safeguards and protectionswhich they are not afforded under the Domestic Violence Act. Under the IMDMA, in order to modify a parent's custodial rights,proper notice must be given and a subsequent hearing must beheld. (750 ILCS 5/610(b) (West 2000)); (750 ILCS 5/601(c) &(d)(West 2000)); (750 ILCS 5/603 (West 2000)).

This is not so under the Domestic Violence Act. Under theDomestic Violence Act, a parent can circumvent the protectionsguaranteed under the IMDMA. In effect, the Domestic Violence Actcould be used as a short cut which would effectuate an ex partechange of status which would modify the status quo ante. Incircumstances such as this one, the Domestic Violence Act couldbe abused and I do not believe that it was intended to be usedthis manner.

Here, there was an agreed order between Bradley and Lynettewhich delineated both of their parental rights. If Lynettebelieved that Bradley was abusing B.G., instead of filing an exparte petition seeking an order of protection on behalf of C.G.and B.G. against Bradley pursuant to the Domestic Violence Act, Ibelieve that Lynette should have filed an emergency petition tochange child custody and visitation under 750 ILCS 5/603 (West2000).

Like the petitioners in Radke and Wilson, Lynette improperlysought an order of protection in order to suspend or alterBradley's visitation rights with his daughter. As stated in bothRadke and Wilson, the Domestic Violence Act is not the properstatute to use to alter a parent's visitation rights with theirchild. That is precisely what Lynette did. As such, the trialcourt's order of protection should be vacated.

The majority attempts to distinguish Radke. Initially, themajority states that Radke is inapplicable to this set of factsbecause "[h]ere the order of protection was filed under theoriginal dissolution case number so that the thoughtful opinionof the trial court was entered pursuant to that initialdissolution case." However, the majority overlooks the fact thatalthough the order of protection was originally filed under theoriginal dissolution case number, the trial court went on toacknowledge that "a search of the court file fails to discloseany response to the currently pending petition." The trial courtthen went on to set out and analyze the pertinent issues involvedand held that "in accordance with section 220(i)(ii) of theIllinois Domestic Violence Act the said plenary order ofprotection entered on even date herewith shall remain in effectuntil vacated or modified by this Court." The trial court alsoincorporated the plenary order into the final judgment fordissolution of marriage. The majority cannot ignore the factthat the trial court used the Illinois Domestic Violence Act toalter the Bradley's visitation rights with his daughter.

Furthermore, the majority attempts to characterize theholding in Radke which concerned the application of the DomesticViolence Act as dicta. This is just simply erroneous. A readingof the decision in Radke shows that its holding with regards tothe Domestic Violence Act is also the law of the case. Radke,349 Ill. App. 3d at 268-69.

Furthermore, I do not believe that B.G.'s statements wereproperly corroborated.

Section 606(e) of the IMDMA states that:

"Previous statements made by the child relating toany allegations that the child is an abused orneglected child within the meaning of the Abused andNeglected Child Reporting Act, or an abused orneglected minor within the meaning of the JuvenileCourt Act of 1987, shall be admissible in evidence in ahearing concerning custody of or visitation with thechild. No such statement, however, if uncorroboratedand not subject to cross-examination, shall besufficient in itself to support a finding of abuse orneglect."

"In In re A.P., 179 Ill. 2d 184 (1997), our supreme courtdiscussed the evidence necessary to corroborate a minor's hearsaystatement of sexual abuse. The purpose of presentingcorroborating evidence, the court wrote, was to balance thewelfare interests of minors and the rights of those accused ofabuse or neglect. In re A.P., 179 Ill. 2d at 197. The courtnoted that sufficient corroboration requires more than witnessestestifying that a minor related instances of abuse to them. Inre A.P., 179 Ill. 2d at 198. The court stated:

'[C]orroborating evidence of * * * abuse orneglect requires there to be independent evidence whichwould support a logical and reasonable inference thatthe act of abuse or neglect described in the hearsaystatement occurred. In essence, corroborating evidenceis evidence that makes it more probable that a minorwas abused or neglected. The form of the corroborationwill vary depending on the facts of each case and caninclude physical or circumstantial evidence.' In reA.P., 179 Ill. 2d at 199." In re Marriage of Flannery,328 Ill. App. 3d 602, 610 (2002).

The trial court in the case, sub judice, determined that thehearsay statements were corroborated with the following evidence:(1) B.G.'s use of anatomically correct dolls to describe whattook place, (2) B.G.'s use of the term "project" to describeBradley's penis, (3) B.G.'s statement that Bradley's project was"real little then it got real big," (4) B.G. statement thatBradley's privates were different than that of the anatomicallycorrect doll because his was "sticking up," and (5) when B.G. wasasked if anything came out of Bradley's privates, she responded,"Let's not talk about it. It's yucky."

In finding that there was corroborating evidence, the trialcourt relied heavily on the cases of In re C.C., 224 Ill. App. 3d207 (1991) and In re K.L.M., 146 Ill. App. 3d 489 (1986). Thetrial court considered but refused to follow the decision reachedin In re Marriage of Flannery, 328 Ill. App. 3d 602 (2002), whichdistinguished both In re C.C. and In re K.L.M. Taking ourparticular set of facts into consideration, I believe thatFlannery is more persuasive.

In Flannery, a mother alleged that her three-year-olddaughter, Amanda, informed a social worker that "daddy put hisfinger in my buddy butt (vagina) and hurt me." A physicalexamination of the girl revealed that she suffered vaginalredness. However, the pediatrician who examined the childtestified that vaginal redness is quite common among 2 1/2 year-old-girls, and explained that there were a lot of things whichcould explain the cause of the girl's vaginal redness. Exceptfor the vaginal irritation, the pediatrician was unable to findanything abnormal.

Furthermore, there was evidence that Amanda, who was pottytrained, began to "have accidents" around the time of the allegedabuse. There was testimony that Amanda began waking up in themiddle of the night. There was testimony that after Amandainitially informed her mother of the abuse, she made furtherstatements which suggested that her father had abused her. Therewas also testimony from a social worker who conducted a sexual-abuse-victim assessment of Amanda. The social worker, interalia, testified about Amanda's physical actions when she spokeabout the alleged sexual abuse she suffered from her father.

The trial court determined that there was sufficientevidence to corroborate Amanda's hearsay statements. The trialcourt noted that the corroborating evidence consisted of physicalevidence and testimony regarding Amanda's physical actions whenshe relayed the statements of abuse. Flannery, 328 Ill. App. 3dat 605.

In reversing the trial court, the Flannery court determinedthat there was inadequate physical evidence and testimonyconcerning the physical actions of the child when she relayed thestatements of abuse to corroborate the hearsay statement undersection 8-2601. Flannery, 328 Ill. App. 3d at 610-613. Aportion of the Flannery court ruling follows:

"[T]his court has previously determined thatevidence that is itself hearsay cannot provide thecorroboration required by the statute. In re Alba, 185Ill. App. 3d 286, 290 (1989). Although hearsay isdefined as testimony of an out-of-court 'statement'that is offered to establish the truth of the matterasserted (People v. Garcia, 195 Ill. App. 3d 621, 626(1990)), we have applied this definition to physicalmanifestations as well. See Alba, 185 Ill. App. 3d at290 (finding that child's drawing indicating where herfather placed his penis was insufficient to corroboratethe child's hearsay statement of sexual abuse; thedrawing constituted hearsay because it was offered toestablish the truth of the matter asserted). In thiscase, Amanda's physical actions were offered to provepetitioner's claim that Amanda was sexually abused. Accordingly, the actions fit within the definition ofhearsay and could not, by themselves, corroborateAmanda's out-of-court statements of sexual abuse. Acontrary holding would effectively nullify thecorroboration requirement. Thus, we hold thattestimony regarding the physical manifestations thataccompany a child's hearsay statements of abuse isinsufficient to corroborate the out-of-court statementswhen the child's conduct is the only corroborativeevidence presented. Consequently, we must reverse thejudgment of the trial court.

* * * Petitioner first relies on In re K.L.M., 146 Ill.App. 3d 489 (1986). In K.L.M., the court found thatthe minor child's hearsay statements of sexual abuse byher father were corroborated by (1) testimony of acaseworker for the Department of Children and FamilyServices and a psychotherapist that the girl wasanxious when she related the allegations of abuse; (2)the testimony of the child's father, who indicated thatthe four-year-old had limited opportunity to havelearned about the sexual matters that she purported tohave described; (3) testimony that the minor's motherhad no opportunity to arrange for the child to providefalse testimony; and (4) testimony that the girl had askin irritation in the genital area. K.L.M., 146 Ill.App. 3d at 493-94. Importantly, however, the courtpointed out that the child was able to describe semen. K.L.M., 146 Ill. App. 3d at 494. The court believedthat the child would have been unable to describe semenunless she had seen it and that it would have beenunlikely that she had seen semen unless the events sherelated had actually taken place.
Petitioner also cites In re C.C., 224 Ill. App. 3d207 (1991). C.C. involved the alleged sexual abuse oftwo minors, R.C. and C.C., by their father. In C.C.,the court found that the minors' out-of-courtstatements of sexual abuse were corroborated bytestimony that C.C. had used anatomically correctpuppets to recreate a 'secret game' he played with R.C.and his father. Moreover, the five-year-old C.C. wasable to describe semen, and there was testimony thatthe behavior of C.C. and R.C. began to change whileliving with their father. For instance, C.C. begancrying over insignificant things, he wet his pantsevery day, he became less affectionate, he did not wantto be touched, he stopped doing schoolwork, and he washard to motivate. The seven-year-old R.C. frequentlywet his pants, had bowel movements in his pants, hadfrequent tantrums, often cried and whined, and wouldnot let anyone hug him. Further, a medical teaminterviewed, observed, and psychologically tested bothboys. The team then compiled a 'composite picture' ofthe children and concluded that they had been sexuallyabused. Based on this evidence, the court concluded that it was more probable than not that the childrenwere sexually abused by their father. C.C., 224 Ill.App. 3d at 215.

We find petitioner's reliance on K.L.M. and C.C.misplaced. In both of those cases there was a myriad offactors beyond the children's physical manifestationsthat, when taken together, could support a finding ofcorroboration. Here, the trial court found only twofactors corroborated Amanda's hearsay statements.However, we have already concluded that there was nophysical evidence to corroborate Amanda's hearsaystatements of sexual abuse. Thus, we are left onlywith Amanda's physical manifestations. As noted above,there is no authority supporting a finding ofcorroboration based on the child's physical conductalone, and we decline to impose such a finding here." Flannery, 328 Ill. App. 3d at 612-14.

Here, I believe the trial court improperly determined thatthe hearsay statements in question had been corroborated. Thetrial court made this erroneous determination because it onlyrelied on further hearsay to corroborate the original hearsaystatements. Taking into consideration the particular set offacts before us, I cannot agree with the decision reached by themajority and the trial court.

In this matter, there was absolutely no physical evidencethat corroborated the hearsay statements. Furthermore, the dayafter the abuse allegedly occurred, when Lynette initially tookB.G. to the doctor for an examination, B.G. made no statements tothe doctor concerning any alleged abuse. Thereafter, duringB.G.'s victim sensitive interview with Brauweiler, initially B.G.unequivocally informed Brauweiler that Bradley had never touchedher privates outside of him giving her a bath.

Moreover, it appears that the trial court failed to realizethat Lynette was the only person to state that B.G. referred toBradley's penis as a "project." During B.G.'s interview withBrauweiler, B.G. never referred to Bradley's penis as a"project." The only person who did so was Brauweiler, whichoccurred when Brauweiler asked B.G. "if daddy had asked her abouta special project," and B.G. response was "Yes." However, B.G.also added "I don't know what it is and we're not going to talkabout it."

Lynette was also the only person to say that B.G. informedher that Bradley put his penis in her mouth. This accusation wasnever repeated by B.G. to anyone other than Lynette. We findthis to be unsettling in this matter because there was evidencegiven by Mulso of JMR which suggested that Lynette may have beenin fact coaching B.G. as to what she should say. It also appearsthat the trial court failed to adequately consider Bradley'sallegations that before their divorce, Lynette had threatened touse his family history of sexual abuse, i.e., his fathermolesting his sister, against him with regards to the custody oftheir children.

Furthermore, it also appears that the trial court as well asthe majority have ignored the evidence which suggested thatLynette had a strong motive to lie about the alleged abuse. Forinstance, Lynette admitted that she prevented Bradley from havingnormal unsupervised visits with the children until he obtained acourt order in the context of the divorce proceedings. There wasalso evidence the Lynette did not like Bradley's fiancee,Jennifer Ann Licka, and that she did not want her around thechildren.

Licka also testified that she saw the children on the daythat the alleged abuse occurred. In fact Licka saw the childrenafter the abuse allegedly occurred. Licka stated that she didnot see anything unusual about the children's behavior. Lickastated that she was with the children for four hours until theyreturned home that particular evening. Also, Licka testifiedthat on the day of the alleged abuse, she and Bradley informedthe children that they would be getting married and also informedthem that they would be participating in the wedding. After thisconversation, B.G. then asked if she could come and live with herand Bradley.

As such, I disagree with the majority and believe that inthis particular case, the hearsay statements were notsufficiently corroborated.