Re 2006 - 2013 Illinois Family Law Legislation / Supreme Court Rules Effecting
Divorce and Custody Cases
The Gitlin Law Firm, Woodstock, Illinois ©2013
May 25, 2013
A summary of new or proposed
legislation and new Court Rules follows:
A summary of key family law
legislation that has now been enacted into law:
Table of Contents:
1. New Laws and
Supreme Court Rules 20112-13
1a. Supreme Court Rule Changes for 2012-2013
Effective January 1, 2013 Rules re E-Mail Service
Amendments to Rule 11 for Service of Documents
Amended Rule 12 re Proof of E-mail Service
New SCR 138 re Personal Identify Information and Amendments to SCR
201(m) re Filing of Discovery Type Documents - Now Effective 7/1/13
1b. Form Changes
1, 2012: New Notice for Income Withholding Federal Form that States
1c. 2012 Legislation
PA 97-994/HB 5221 - Income Withhold for Support: Variety of Changes
to Water Down Current Law
PA 97-941 / SB 2569 - New Child Support Provisions
PA 97-0878 - Child Support - Deduction for Court Ordered Life Insurance
Premiums for Support
PA 97-608 / SB 1824 - Life Insurance
PA 97-1029 / SB 3549 - Self Employed Support Payors Found in Contempt
1d. 2013 Legislation
SB1169 – Child Support and Income Withholding - Terminate Date
HB 2992: Visitation and Babysitting / Right of First Refusal
3. New Laws
and Supreme Court Rules in 2010
a. Income Withholding Amendments
b. Confidentiality of Mental Health Records and Subpoenas
c. Adoption: Consents and Surrenders
d. Child Support or Maintenance
Not Stayed Pending Post-Judgment Proceedings
e. Domestic Violence / Orders
of Protection: Entry of Order into LEADS
f. Paternity – Tests to Determine Inherited Characteristics
g. Supreme Court Rule
Laws in 2009:
a. PA 96-53 -- Leveling the Playing
Field Statute Amendments
b. PA 96-053 -- Income Withholding
c. PA 2283 - Custody and Military
d. PA 96-246 - Stalking No Contact Order Act
d. HB 2660 Amendments to
Cindy Bischof's Law
96-331 - "Virtual" Visitation
5. New Laws
a. Family Law Study Committee
b. Domestic Violence (Cindy Bischof Law)
c. Children's Waiting Room Fee
d. College Expenses: Right to Know
Name of Educational Institution
Laws in 2007:
a. Public Act 95-374 - Trusts and 503(g)
b. Public Act 95-0685 - Impoundment of Vehicles
7. New Laws in
a. Grandparent Visitation
of Health Insurance
c. Independent Actions for Attorney Fees
- QILDRO Legislation;
- Child Representative Statute and Family
- Supreme Court Rules
Legislation and Supreme Court Rules
Court Rule Changes for 2012-2013
Effective January 1, 2013 Rules re E-Mail Service
Amendments to Rule 11
for Service of Documents
For the second time in three
months the Supreme Court Amended this rule. Originally, there was no provision
to opt out. The new rule is essentially that one presumptively opts in
if one posts E-mail addresses, etc. But if one is careful, that lawyer
can essentially “opt out.”
Rule 11, now titled, “Rule
11. Manner of Serving Documents Other Than Process and Complaint on Parties
Not in Default in the Trial and Reviewing Courts” first added
subsections 6 and 7 to paragraph b for how documents are to be served
as including (and then Section 6 was amended per the underlined changes):
(6) by transmitting them via
e-mail to the designated e-mail address of record for the attorney or
party if the attorney or party consented to e-mail service. The listing
of a designated e-mail address on documents or the use of e-mail service
shall be deemed consent by that party or attorney to receive e-mail
service. Any party may rescind consent of e-mail service in a case by
serving a notice on all parties or the attorneys of record. A party
or attorney who has rescinded consent to e-mail service in a case may
not serve another party or attorney by e-mail in that case;
Also added is SCR 11(d) which
has also been amended.
(7) by transmission through
a service provider that provides an electronic in-box for those parties
registered to use the service.
Mandatory E-Mail Service. The use of e-mail service is mandatory if
a local circuit adopts mandatory e-filing pursuant to Illinois Supreme
Court Electronic Filing Standards.
The committee comments state:
(December 21, 2012)
New subparagraphs (b)(6) and (7) were created to allow for service of
documents electronically. The amendments facilitate electronic communications
among the court, parties, and counsel and complement the expansion of
e-filing in the trial courts. However, electronic service may not be
appropriate in all instances. For example, absent a secure method for
electronic service of documents, other service options should be used
for cases or documents filed confidentially.
Amended Rule 12 re Proof of E-mail Service: Amended Rule 12 regarding
“Proof of Service in the Trial and Reviewing Courts; Effective Date of
Service” added regarding (b) manner of service a new (5):
(5) in case of service
by e-mail, by certificate of the attorney or affidavit of a person other
than the attorney who transmitted the document via e-mail, stating the
time and place of transmission to a designated e-mail address of record.
It also added a new (f):
(f) Effective Date of
Service by E-mail. Service by e-mail is complete on the first court
day following transmission.
New SCR 138 re Personal Identify Information and Amendments to
SCR 201(m) re Filing of Discovery Type Documents - Now Effective 7/1/13
Rule 138. Personal Identity
(a) In civil cases, personal identity information shall not be included
in documents or exhibits filed with the court. This rule applies to
paper and electronic filings.
(b) Personal identity information, for purposes of this rule, is defined
(1) Social Security numbers;
(2) birth dates;
(3) mother’s maiden names;
(4) drivers license numbers;
(5) financial account numbers, and
(6) debit and credit card numbers.
A court may order other types of information redacted or filed confidentially,
consistent with the purpose and procedures of this rule.
(c) If the court orders the
filing of documents or exhibits that contain personal identity information,
the information shall be filed under seal in a document titled “Notice
of Personal Identity Information Within Court Filing.” The notice shall
identify the documents or exhibits that contain personal identity information
and the order requiring the filing. The notice shall remain confidential,
except to parties or as the court may order.
(d) Neither the court, nor
the clerk, is required to review documents or exhibits for compliance
with this rule.
(e) If a document or exhibit
is filed containing personal identity information, a party or any other
person whose information has been filed may move that the court order
redaction and filing as provided in paragraph (f). The motion shall
be filed under seal and the clerk shall remove the document or exhibit
containing the personal identity information from public access pending
the court’s ruling on the substance of the motion. A motion requesting
redaction of a document in the court file shall have attached a copy
of the redacted version of the document. If the court allows the motion,
the clerk shall retain the unredacted copy under seal and the redacted
copy shall become part of the court record.
(f) If the court finds the
inclusion of personal identity information was willful, the court may
award the prevailing party reasonable expenses, including attorney fees
and court costs.
(g) This rule
does not require any clerk or judicial officer to redact personal identity
information from the court record except as provided in this rule. Adopted
Oct. 24, 2012. Its effective date was bumped back from January 1, 2013
to July 1, 2013.
October 24, 2012
Supreme Court Rule 138, adopted October 24, 2012, prohibits the filing
of personal identity information that could be used for identity theft.
For instance, financial disclosure statements used in family law cases
typically contain a variety of personal information that shall remain
confidential to protect privacy concerns. While paragraph (b) defines
the most common types of personal identity information, it further allows
the court to order redaction or confidential filing of other types of
information as necessary to prevent identity theft.
SCR 201(m) is amended:
(m) Filing Materials with
the Clerk of the Circuit Court. No discovery may be filed with the clerk
of the circuit court except
upon leave by order of court or
as authorized or required by local rule or these rules. Local
rules shall not require the filing of discovery. Any party serving discovery
shall file a certificate of service of discovery document.
October 24, 2012
Paragraph (m) was amended in 2012 to eliminate the filing of discovery
with the clerk of the circuit court absent leave of court granted in
individual cases based on limited circumstances. The rule is intended
to minimize any invasion of privacy that a litigant may have by filing
discovery in a public court file.
1b. Form Changes
Since June 1, 2012:
New Notice for Income Withholding Federal Form that States Must Follow:
[Employer Information Page that should be read by any lawyer preparing
[This is the Federal form that ours needs to follow - except for additional
[Action Transmittal of May 16, 2011 that states in part: “If the employer
receives a document to withhold income that is not issued on the OMB-approved
IWO form as required by federal law (section 466(a)(8) and 466(b)(6)(A)(ii)
of the Act) then the employer must reject the document and return it to
the sender, effective 05/31/12.”
[Column by Cynthia Holden of Employer Services Team of the Federal Office
of Child Support Enforcement. It states in part:
requires that the underlying child support order be attached to the
IWO form if the order is issued by an entity other than a state/tribal
child support agency or a court. A checkbox has been added to page two
for the employer/income withholder to indicate that the IWO is being
returned because it does not direct payments to the State Disbursement
Unit (SDU) or it is not regular on its face. Another change will take
place at the end of May 2012 when employers will begin returning income
withholding orders that are not on the standard federal form.
She then writes:
Is it news to you that a
standard form is used to withhold income for child support? If so, you
may learn more about the form, instructions for its use, the legal basis
for this requirement, and the different processes for new and existing
IWOs in Action Transmittal 11-05 [my link above]. You may also access
the fillable IWO form on the OCSE website [my link also above]. Finally,
a training presentation is provided to assist in completing the form;
a sample IWO form with numbers makes it easier to follow the instructions
found in Action Transmittal 11-05 and in the training presentation.
One national employer already began returning orders that do not meet
the criteria outlined in Action Transmittal 11-05, so please refer to
the information provided in the links above for details regarding the
new requirements. If you have questions, contact Cindy Holdren at (240)
676-2808 or email@example.com.
[A flowchart not consistent with IL law regarding the ability to send
a withholding notice where the underlying order did not call for income
The new language in the MSA could provide that the payor will pay directly
to the recipient until such time as an income withholding notice is properly
served and withholding commences.
The problem is that we have
conflicts between the Illinois approach and the Federal approach. The
Federal agency responsible is the Office of Child Support Enforcement.
Again, see their training slide show that was updated in 2012.
PA 97-994/HB 5221 -
Income Withhold for Support: Variety of Changes to Water Down Current
97-994 / HB 5221
8/17/2012 House Public Act . . . . . . . . . 97-0994
New Requirements of Notice and Cap Per Incident of $100 Per Day Following
Notice: Subsection 7 has been amended, effective on the date of its signing
(c) The income withholding
notice shall: ***
(7) in bold face type, the size of which equals the largest type on
the notice, state the duties of the payor and the fines and penalties
for failure to withhold and pay over income and for discharging, disciplining,
refusing to hire, or otherwise penalizing the obligor because of the
duty to withhold and pay over income under this Section; and
It adds a critical sentence
providing for a cap of $10,000:
“The total penalty for a
payor's failure, on one occasion, to withhold or pay to the State Disbursement
Unit an amount designated in the income withholding notice may not exceed
One Year “Statute of Limitations”:
Then added is the following language:
An action to collect the
penalty may not be brought more than one year after the date of the
payor's alleged failure to withhold or pay income.
Additional Notice Requirements
Before Penalty Can Accrue: Section 45 of the IWSA adds (j):
(j) If an
obligee who is receiving income withholding payments under this Act
does not receive a payment required under the income withholding notice,
he or she must give written notice of the non-receipt to the payor.
The notice must include the date on which the obligee believes the payment
was to have been made and the amount of the payment. The obligee must
send the notice to the payor by certified mail, return receipt requested.
a written notice of non-receipt of payment under this subsection, a
payor must, within 14 days thereafter, either (i) notify the obligee
of the reason for the non-receipt of payment or (ii) make the required
payment, together with interest at the rate of 9% calculated from the
date on which the payment of income should have been made. A payor who
fails to comply with this subsection is subject to the $100 per day
penalty provided under subsection (a) of Section 35 of this Act.
PA 97-941 / SB 2569 - New Child Support Provisions
Status: 8/10/2012 Senate Public Act . . . . . . . . . 97-0941
Effective Date: January 1, 2013 - “only to petitions for dissolution of
marriage filed on or after the effective date.”
See Also: http://www.ilga.gov/legislation/97/SB/PDF/09700SB2569lv.pdf
Child Support - Deviation Language
and Tweaks re Adding “Mental” Needs: Child Support provisions will also
be changed. Some are small language issues. Right before the actual guidelines
being stated, the legislation adds the word “educational” to the reason
for support payments, i.e., to pay for “the reasonable and necessary educational,
physical, mental and emotional health needs of the child.”
The 505(a)(2) changes are more
important and read:
(2) The above guidelines
shall be applied in each case unless the court finds that a deviation
from the guidelines is appropriate after considering the best interest
of the child in light of the evidence, including, but not limited to,
makes a finding that application of the guidelines would be inappropriate,
after considering the best interests of the child in light of evidence
including but not limited to one or more of the following relevant
(d) the physical, mental,
and emotional needs
condition of the child, and his
educational needs; and
(d-5) the educational needs of the child; and
Comment: So the key
language is going from “makes a finding that application of the guidelines
would be inappropriate” to “finds that a deviation from the guidelines
is appropriate.” This is a better standard because the current standard
essentially uses a double negative. The double negative is that the court
follows the guidelines unless there is a finding that application in inappropriate.
Add-ons to Support in
New 505(a)(2.5). There is a new provision (2.5) that reads:
(2.5) The court, in its discretion,
in addition to setting child support pursuant to the guidelines and
factors, may order either or both parents owing a duty of support
to a child of the marriage to contribute to the following expenses,
if determined by the court to be reasonable:
(a) health needs not covered by insurance;
(b) child care;
(c) education; and
(d) extracurricular activities.
PA 97-0878 - Child Support - Deduction for Court Ordered Life
Insurance Premiums for Support
Status: 8/2/2012 House Public Act . . . . . . . . . 97-0878
See also: http://www.ilga.gov/legislation/97/HB/PDF/09700HB3960lv.pdf
and individual health/hospitalization insurance premiums and life insurance
premiums for life insurance ordered by the court to reasonably secure
payment of ordered child support or support ordered pursuant to Section
513, any such order to entail provisions on which the parties agree
or, otherwise, in accordance with the limitations set forth in subsection
504(f)(1) and (2); [note the changes from the law that had only been
in effect since January 1, 2012, i.e., PA 97-608].
So, simplified the language
will read under (f): “Dependent and individual health/hospitalization
insurance premiums and premiums for life insurance ordered by the court
to reasonably secure payment of ordered child support.”
PA 97-608 / SB 1824 - Life Insurance
These amendments were effective January 1, 2012. The maintenance section,
now adds a new paragraph (f):
(f) An award ordered by a
court upon entry of a dissolution judgment or upon entry of an award
of maintenance following a reservation of maintenance in a dissolution
judgment may be reasonably secured, in whole or in part, by life insurance
on the payor's life on terms as to which the parties agree, or, if they
do not agree, on such terms determined by the court, subject to the
respect to existing life insurance, provided the court is apprised
through evidence, stipulation, or otherwise as to level of death benefits,
premium, and other relevant data and makes findings relative thereto,
the court may allocate death benefits, the right to assign death benefits,
or the obligation for future premium payments between the parties
as it deems just.
the extent the court determines that its award should be secured,
in whole or in part, by new life insurance on the payor's life, the
court may only order:
(i) that the payor cooperate on all appropriate steps for the payee
to obtain such new life insurance; and
(ii) that the payee, at his or her sole option and expense, may
obtain such new life insurance on the payor's life up to a maximum
level of death benefit coverage, or descending death benefit coverage,
as is set by the court, such level not to exceed a reasonable amount
in light of the court's award, with the payee or the payee's designee
being the beneficiary of such life insurance.
In determining the maximum
level of death benefit coverage, the court shall take into account all
relevant facts and circumstances, including the impact on access to
life insurance by the maintenance payor. If in resolving any issues
under paragraph (2) of this subsection (f) a court reviews any submitted
or proposed application for new insurance on the life of a maintenance
payor, the review shall be in camera.
(3) A judgment shall expressly set forth that all death benefits paid
under life insurance on a payor's life maintained or obtained pursuant
to this subsection to secure maintenance are designated as excludable
from the gross income of the maintenance payee under Section 71(b)(1)(B)
of the Internal Revenue Code, unless an agreement or stipulation of
the parties otherwise provides.
This also had amended 505(f)
regarding the deductions for child support that had read:
Dependent and individual
health/hospitalization insurance premiums and life insurance premiums
for life insurance ordered by the court to reasonably secure child support
or support ordered pursuant to Section 513, any such order to entail
provisions on which the parties agree or, otherwise, in accordance with
the limitations set forth in subsection 504(f)(1) and (2);
But note that this section
has already been amended by PA 97-0878 / HB 3960 above.
Section 510(c) adds a new portion
that now reads:
*** Any obligation of a payor
party for premium payments respecting insurance on such party's life
imposed under subsection (f) of Section 504 is also terminated on the
occurrence of any of the foregoing events, unless otherwise agreed by
the parties. Any termination of an obligation for maintenance as a result
of the death of the payor party, however, shall be inapplicable to any
right of the other party or such other party's designee to receive a
death benefit under such insurance on the payor party's life.
PA 97-1029 / SB 3549 - Self Employed Support Payors Found in Contempt
Status: 8/17/2012 Senate Public Act . . . . . . . . . 97-1029
This legislation adds new provisions
to the lengthy (b) to Section 505:
If a person who is found
guilty of contempt for failure to comply with an order to pay support
is a person who conducts a business or who is self-employed, the court
in addition to other penalties provided by law may order that the person
do one or more of the following: (i) provide to the court monthly financial
statements showing income and expenses from the business or the self-employment;
(ii) seek employment and report periodically to the court with a diary,
listing, or other memorandum of his or her employment search efforts;
or (iii) report to the Department of Employment Security for job search
services to find employment that will be subject to withholding of child
It also amends: The Public
Aid Code: 305 ILCS 5/10-10; IPA of 1984; and Non-Support Punishment Act.
HB 1243 - Parentage
Illinois Parentage Act of 2013 – HB1243
Status: House Floor Amendment No. 4 Referred to Rules Committee:
4/19/2013 House Placed on Calendar Order of 3rd Reading - Short Debate
4/19/2013 House Rule 19(a) / Re-referred to Rules Committee
This is the comprehensive proposed
re-write to the Illinois Parentage Act of 1984.
Comment: It appears that as amended that this package of legislation will
be adopted in 2013. This legislation, overall, contains many improvements
bringing the law involving parentage up to date.
1d. 2013 Legislation:
*SB1169 – Child Support
and Income Withholding - Terminate Date
Status: 5/3/2013 Senate Passed Both Houses
This legislation will remove the requirement that income withholding notice
must contain a termination date for child support. There still exists
a requirement for a termination date.
This bill would remove the requirement that child support orders must
contain a termination date.
*HB 2992: Visitation
and Babysitting / Right of First Refusal
4/10/2013 House House Floor Amendment No. 1 Adopted
5/22/2013 House Passed Both Houses
I had written recently, “This
misguided legislation that appears on the ‘fast track’ will give each
parent the ‘right of first refusal’ to care for a minor child in lieu
of using a babysitter.” While this clause is within some joint parenting
agreements it not a standard clause. Since that time the legislation was
Sec. 602.3. Care of minor children;
right of first refusal. [New]
(a) If the court awards joint custody under Section 602.1 or visitation
rights under Section 607, the court may consider, consistent with the
best interest of the child as defined in Section 602, whether to award
to one or both of the parties the right of first refusal to provide child
care for the minor child or children during the other parent's normal
parenting time, unless the need for child care is attributable to an emergency.
(b) As used in this Section, "right of first refusal" means
that if a party intends to leave the minor child or children with a substitute
child-care provider for a significant period of time, that party must
first offer the other party an opportunity to personally care for the
minor child or children. The parties may agree to a right of first refusal
that is consistent with the best interest of the minor child or children.
If there is no agreement and the court determines that a right of first
refusal is in the best interest of the minor child or children, the court
shall consider and make provisions in its order for:
(1) the length and kind of child-care requirements invoking the right
of first refusal;
(2) notification to the other parent and for his or her response;
(3) transportation requirements; and
(4) any other action necessary to protect and promote the best interest
of the minor child or children.
(c) The right of first refusal may be enforced under Section 607.1 of
(d) The right of first refusal is terminated upon the termination of custody
or visitation rights.".
Curiously, there is no Section
Bill 1612 / PA 97-016 :
Status: 7/22/11. Public Act.
Synopsis As Introduced
Amends the Determination and Enforcement of Support Responsibility of
Relatives Article of the Illinois Public Aid Code. Provides that the Department
of Healthcare and Family Services may provide by rule for certification
to the Department of Health and Human Services of past due support owed
under a support order entered in this or any other State on behalf of
resident or non-resident persons. Provides that the purpose of certification
shall be to effect denial, revocation, restriction, or limitation of passports
of responsible relatives owing past due support. Provides that notwithstanding
any other State or local law to the contrary, a lien arises by operation
of law against the real and personal property of the noncustodial parent
for each installment of overdue support owed by the noncustodial parent.
Makes similar changes to the Illinois Marriage and Dissolution of Marriage
Act, the Non-Support Punishment Act, and the Illinois Parentage Act of
1984. Effective immediately.
Senator Martinez recently wrote:
In the Chicago Sun Times
there are reports of $3 billion in unpaid child support payments that
are costing the State millions of dollars in various forms of public
aid. When people fail to pay their legally required child support payments
it creates strenuous financial circumstances for families around the
To address this situation I am sponsoring Senate Bill 1612, which pushes
for stricter child support enforcement to assure the non-custodial parent
pays his or her backlog of unpaid child support. The measure has passed
through the Senate and is now being considered in the House. Once the
bill is signed into law, it will give Healthcare and Family Services
(HFS) the authority to place a lien on assets of non-parents who owe
past due child support totaling over $2,500. Additionally, the legislation
will deny parents with overdue payments the ability to obtain a passport
putting Illinois in line with federal law.
With so many families barely able to afford the basic necessities, this
measure is intended to help families that are struggling financially
due delinquent child support payments. The General Assembly and I are
taking steps to ensure that these families are paid what they are owed
in a timely fashion so that they are able to pay for the basic needs
of their children. $3 billion in delinquent child support payments is
I hope that my colleagues in the House pass Senate Bill 1612 as soon
as possible so that we can rectify the situation and provide so help
to families that are struggling as a result of this.
After the Senate passage, she
SB 1612 would put Illinois
in line with federal law by allowing HFS to seize and attach workers’
compensation settlements without a court order. The bill also streamlines
the collection of past due child support payments, allowing HFS to obtain
past due payments by placing a lien on the non-custodial parent’s assets.
Public Act 96-1072:
Child Support (SB 2570 / PA
96-1072): Establishes that following the entry of a judgment for dissolution
of marriage, a child support order cannot be suspended or stayed due to
the filing of post-judgment motions.
2010 Legislation and
Supreme Court Rules
Income Withholding Amendments
Service by Delivery
to a Third-Party Commercial Carrier
Effective December 29, 2009, Supreme Court Rules 11, 12, 361, 367, 373,
381, and 383 were amended to expressly allow for service by delivery to
a third-party commercial carrier such as UPS or Federal Express.
Service of Withholding
Notices – Ordinary Mail, Certified Mail, Fax or as Allowed for Service
096-0858 (Effective since 010)
§28/20(g) provides that a withholding notice be served upon the obligor
by regular mail and upon the payor by ordinary mail, certified mail, facsimile
transmission or as otherwise allowed for service of summons. PA 096-0858
revises the section so proofs of service of the payor and obligor no longer
need be filed with the clerk of the court except when necessary in connection
with actions to enforce, contest, modify, suspend, terminate, or correct
the order. Although the Public Act states it is effective upon becoming
law, the specific amendments to the statute apply to orders from September
§28-21(g) of the IWSA now provides
of an income withholding notice and proof of service shall be filed
with the Clerk of the Circuit Court only when necessary in connection
with a petition to contest, modify, suspend, terminate, or correct an
income withholding notice, an action to enforce income withholding against
a payor, or the resolution of other disputes involving an income withholding
notice. The changes made to this subsection by this amendatory Act of
the 96th General Assembly apply on and after September 1, 2009.
A copy of the income withholding notice together with proofs of service
on the payor and the obligor shall be filed with the Clerk of the Circuit
It also contains changes to
the law regarding what occurs in IV-D cases regarding the National Medical
Confidentiality of Mental
Health Records and Subpoenas
Public Act 096-1399
PA 96-1399 amended sections 4, 9.2, and 10 of the Illinois Mental Health
and Developmental Disabilities Confidentiality Act (Mental Health Act).
The key change for our purposes is the required notice to the client and
the treatment provider to request the issuance of a subpoena. The modification
also makes it a requirement for specific language to be included in the
subpoena. Public Act 096-1399 makes changes to the Illinois Mental Health
and Developmental Disabilities Act (Mental Health Act). The modifications
focus on access to a client's mental health records.
To obtain a client's mental
health records, the party seeking the disclosure must send notice to the
client and the treatment provider. The client and the treatment provider
must be given an opportunity to object to such disclosure pursuant to
§110/10(b) of the Mental Health Act. A judge may not issue a written order
authorizing the disclosure of mental health records or the issuance of
a subpoena without compliance with the above two requirements.
In addition, every subpoena
duces tecum issued by a court or administrative agency that is served
on any person pursuant to §110/10 must contain the following language:
shall comply with a subpoena for mental health records or communications
pursuant to Section 10 of the Mental Health and Developmental Disabilities
Confidentiality Act, 740 ILCS 110/10, unless the subpoena is accompanied
by a written order that authorizes the issuance of the subpoena and
the disclosure or records or communications.
Adoption: Consents and
096-1461 (effective January 1, 2011) (pdf)
A recent amendment to the Illinois Adoption Act makes four changes to
the Act. (1) It creates a consent form for adoption to a specified person
or persons in non-DCFS cases; (2) If an adoption to a specified person
in a non-DCFS case does not occur, the birth parent is given notice of
this within 10 business days. The birth parent has within 10 business
days from the date that the written notice was sent to respond; (3) It
requires consenting birth parents to read or have read to them a new statutory
form entitled "Birth Parent Rights and Responsibilities-Private Form;"
and (4) It creates a surrender form to an agency that involves a specified
person who is to adopt the child.
Child Support or Maintenance
Not Stayed Pending Post-Judgment Proceedings
096-1072 (Effective January 1, 2011)
Public Act 096-1072 amends the Code and the IMDMA. It states that a monetary
child support or maintenance order shall not be suspended or stayed pending
post-judgment proceedings. See §2-1203(b) of the Code of Civil Procedure
and §413(a) of the Illinois Marriage and Dissolution of Marriage Act.
So the current language of §413
reads in part:
or directing payment of money for support
or maintenance of a a the spouse or a the minor
child or children entered under this Act or any other law of this
State shall not be suspended or the enforcement thereof stayed pending
the filing and resolution of post-judgment motions or an appeal.
Domestic Violence /
Orders of Protection: Entry of Order into LEADS
096-1241, effective January 1, 2011, amends the Illinois Code of Criminal
Procedure [112A-17(c)(2)] and the Illinois Domestic Violence Act – [§217(c)(2)].
It states a judge issuing an emergency order of protection shall promptly
communicate the order to the sheriff to facilitate its entry into the
Law Enforcement Agencies Data System (LEADS). The earlier law had provided
that the clerk of the court was to file the order for service with the
sheriff on the next court date following entry of the order.
Paternity – Tests to
Determine Inherited Characteristics [GDR 10-55]
096-1074. §11 of the Illinois Parentage Act of 1984 governs the manner,
admissibility, and effect of genetic testing in parentage proceedings.
Public Act 096- 1074 updates §11 to alter the manner in which genetic
testing is conducted, to provide a challenge to the methods used, to reflect
changes in the sensitivity of genetic testing, and to allow the court
to allocate costs.
New or Amended Supreme Court Rules 2010
Codification of Illinois
Rules of Evidence
Effective January 1, 2011, Illinois has codified its rules of evidence.
The new rules contain 14 “modernizations which address “non-controversial
developments in the law of evidence as reflected in the FRE. The Court
reserved Rule 813(18) which as originally drafted would have created a
hearsay exception for learned treatises. This exception is in the FRE
but it was urged that it was contrary to Illinois law – although this
may not e the case. The new rules contain changes in two areas. The first
addresses opinion testimony which now is located in Rules 405 and 608,
and the second deals with hearsay statements under 803(3).
Expansion of SCR 23 - Publication of Rule 23(b) Written Orders
Effective January 1, 2011, SCR 23 changes the types of cases http://www.state.il.us/court/supremecourt/Rules/Amend/2010/091310.pdf
Order. Cases which do not qualify for disposition by opinion may be
disposed of by a concise written order which shall succinctly state:
(1) in a separate introductory paragraph, a concise syllabus of the
court’s holding(s) in the case ***
unpublished order entered under subpart (b) or (c) of this
rule is not precedential and may not be cited by any party except
to support contentions of double jeopardy, res judicata, collateral
estoppel or law of the case. When cited for these purposes, a copy of
the order shall be furnished to all other counsel and the court.
(2) An order
entered under subpart (b) of this rule must contain on its first page
a notice in substantially the following form:
order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under
Publication. In order to make available to the public all opinions and
orders entered under subparts (a) and (b) of this rule, the clerks of
the Appellate Court shall transmit an electronic copy of each opinion
or order filed in his or her district to the webmaster of the Illinois
Supreme and Appellate Courts' Web site on the day of filing. No opinion
or order may be posted to the Web site that does not substantially comply
with the Style Manual for the Supreme and Appellate Courts.
SCR 23 Written Orders
Court Amends Rule 216 - Requests to Admit:
Since 2011, we have new rules addressing requests to admit facts per SCR
216 by adding new paragraphs (f) and (g) that now read:
of Requests. The maximum number of requests for admission a party may
serve on another party is 30, unless a higher number is agreed to by
the parties or ordered by the court for good cause shown. If a request
has subparts, each subpart counts as a separate request.
Requirements. A party must: (1) prepare a separate paper which contains
only the requests and the documents required for genuine document requests;
(2) serve this paper separate from other papers; and (3) put the following
warning in a prominent place on the first page in 12-point or larger
boldface type: “WARNING: If you fail to serve the response required
by Rule 216 within 28 days after you are served with this paper, all
the facts set forth in the requests will be deemed true and all the
documents described in the requests will be deemed genuine.”
PA 96-53 - Comprehensive Amendments
to Leveling the Playing Field Amendments
65 Status: 7/23/2009 Senate Public Act . . . . . . . . . 96-53
Provides that a proceeding related to interim attorney's fees and costs
in a pre-judgment dissolution proceeding (instead of interim attorney's
fees) shall be nonevidentiary and summary in nature (instead of nonevidentiary,
summary in nature, and expeditious). Provides that all hearings concerning
interim attorney's fees and costs shall be scheduled expeditiously by
the court. Provides that in dividing marital property, the court shall
consider all relevant factors including each party's contribution to the
marital or non-marital property including (I) any decrease in value attributable
to an advance from the marital estate or (ii) the contribution of the
spouse as a homemaker or to the family (instead of the contribution of
the spouse as a homemaker or to the family). Provides that interim attorney's
fees and costs may be awarded from the opposing party in a pre-judgment
dissolution proceeding under the interim fees and costs provisions and
in any other proceeding for attorney's fees and costs (instead of under
the Code's interim fees and costs provisions). Provides that all petitions
for or relating to interim fees and costs shall include an affidavit stating
the factual basis for the requested relief and shall be expeditiously
scheduled for hearing by the court. Provides that Code provisions concerning
contribution to fees and costs apply to petitions for interim fees. Provides
that deadlines for the filing of a praecipe or a petition for setting
final fees and costs shall be tolled under specified conditions relating
to an appeal or a post judgment motion.
Also provides that if a court
finds that a hearing under the Act (instead of the Section of the Act
regarding attorney's fees) was precipitated or conducted for an improper
purpose, the court shall allocate fees and costs of all parties for the
hearing to the party or counsel found to have acted improperly. Provides
that a consent judgment between client and counsel may be supported by
the affidavit of the counsel of record that includes the counsel's representation
that the client has been provided an itemization of the detailed billings
to the client (rather than incorporating the itemization)
100 - Income Withholding Amendments
Status: SB 100 Status: 7/23/2009 Public Act . . . . . . . . . 96-0053
Amends the Income Withholding for Support Act. Provides that a finding
of a payor's nonperformance within the time required under the Act must
be documented by a certified mail return receipt or a sheriff's or private
process server's proof of service (instead of by a certified mail return
receipt) showing the date the income withholding notice was served on
2283 - Custody and Military
Status: 8/25/09 Public Act.................96-676.
Amends the Illinois Marriage and Dissolution of Marriage Act. Provides
that in considering the best interest of a child, the court shall consider
the terms of a parent's military family-care plan that a
parent in the military completes prior to deployment. Provides that with
respect to the modification of any custody order that a party's absence,
relocation, or failure to comply with the court's custody,
visitation, or parenting time orders may not, by itself, be sufficient
to justify a modification of a prior order if the reason for the absence,
relocation, or failure to comply is the party's military deployment.
96-246 - Stalking No Contact Order Act
8/11/2009 Public Act . . . . . . . . . 96-0246
We have new law – the Stalking No Contact Order Act. The key is you don't
need to have a dating relationship. Stalking is defined broadly:
means engaging in a course of conduct directed at a specific person,
and he or she knows or should know that this course of conduct would
reasonable person to fear for his or her safety or the safety of a third
person or suffer emotional distress."
Thus, we have the same standard, essentially, as for domestic violence.
But you don't need to have a dating relationship. And it does not have
to be what most people think of as stalking. While this
law is in the Criminal Code, it provides for a civil order (although it
can be filed in connection with a criminal proceeding.) The scheme is
similar to Illinois domestic violence law – but, it defines
stalking broader than the definition of “harassment” under the IDVA:
means knowing conduct which is not necessary to accomplish a purpose
that is reasonable under the circumstances; would cause a reasonable
person emotional distress; and does cause emotional distress
to the petitioner
96-246 Amendments to Cindy Bischof's Law
Status: 8/11/2009 Public Act . . . . . . . . .
Public Act 96-246 amends the law known as Cindy Bischof Law. This is the
law that permits a judge to order a person charged with violating a protective
order to wear a satellite tracking device—as a condition of parole, mandatory
supervised release, early release, probation, or conditional discharge—that
alerts police and the victim when the offender breaches a court-imposed
boundary. The legislation provides that when a person is charged
with a violation of an order of protection, the court may, in its discretion
(rather than shall), order the respondent to undergo a risk assessment
evaluation if certain conditions are present.
96-331 - "Virtual Visitation"
First, the "virtual visitation"
law defined "visitation" and "Electronic Communication."
It made clear that what some refer to as "virtual visitation"
is not visitation but more akin to telephone contact.
means in-person time spent between a child and the child's parent. In
appropriate circumstances, it may include electronic communication under
conditions and at times determined by the court.
(2) "Electronic communication" means time that a parent spends
with his or her child during which the child is not in the parent's
actual physical custody, but which is facilitated by the use of communication
tools such as the telephone, electronic mail, instant messaging, video
conferencing or other wired or wireless technologies via the Internet,
or another medium of communication.
Subsection (c) was added to
the removal provisions of the IMDMA:
(c) The court may not use
the availability of electronic communication as a factor in support
of a removal of a child by the custodial parent from Illinois.
(Source: P.A. 96-331, eff. 1-1-10.)
Legislation: 2008 also was not an active session in
terms of movement on significant family law legislation. Again,
the reason that many bills stalled was due to the Family Law Study Committee
-- whose aim was to comprehensively review the Illinois Marriage and Dissolution
of Marriage Act: It's original aim was to have this work completed
by January 1, 2009
Law Study Committee - HR1101
(Rep. Michael J. Madigan - John A. Fritchey) This House Resolution creates
the Illinois Family-Law Study Committee to examine the Illinois Marriage
and Dissolution of Marriage Act, study the changes in law and society
since the Act was enacted, and recommend how the Act should be amended
to improve and update it.
5/19/2008 House Resolution Adopted as Amended 098-000-000.
Violence (Cindy Bishof's Law) Allowing Use of GPS Devices - Public
P.A. 95-773 amends various law including the the Criminal Code of 1961,
the Unified Code of Corrections, the Code of Criminal Procedure of 1963,
and the Illinois Domestic Violence Act. It provides that the respondent
shall undergo a risk assessment evaluation per protocols set by the Illinois
Department of Human Services under such terms and conditions as the court
may direct (rather than attend and complete partner abuse intervention
programs). The Act creates the Domestic Violence Surveillance Fund in
the State treasury. The offense of violation of an order of protection
includes the respondent's failure to attend and complete partner abuse
intervention programs. It provides that a person charged with a violation
of an order of protection, as a condition of bail, may be ordered by the
court to carry or wear a global positioning system device. A person convicted
of violation of an order of protection, as a condition of parole, mandatory
supervised release, or early release, shall be ordered to carry or wear
a GPS device. A a person sentenced to probation or conditional discharge
for violation of an order of protection, as a condition of probation or
conditional discharge, may be ordered to carry or wear a GPS device. In
domestic violence cases, the court shall order the respondent to attend
and complete partner abuse intervention programs. Finally, the law adds
to every penalty imposed upon a plea of guilty or finding of guilty resulting
in a judgment of conviction of a violation of an order of protection an
additional fine in an amount not less than $200 which shall be deposited
into the Domestic Violence Surveillance Fund. The cornerstone of the new
(f) When a person is charged
with a violation of an order of protection under Section 12-30 of the
Criminal Code of 1961, the court shall order the respondent to undergo
a risk assessment evaluation at an Illinois Department of Human Services
protocol approved partner abuse intervention program. Based on the results
of the risk assessment and the other circumstances of the violation, the
court may order that the person, as a condition of bail, be placed under
electronic surveillance as provided in Section 5-8A-7 of the Unified Code
Status: 8/4/2008 Signed into
Law. Effective January 1, 2009
Waiting Room Fee - Public
Act 95-773 increases the maximum fee assessed against civil litigants
from $5 to $10 for children's waiting rooms at the county board's direction.
Status: 9/25/08 Public Act 95-980
Expenses: Right to Know Name of Educational Institution - PA
95-954 (Dillard, R-Downers Grove) entitles each parent to know the
name of the education institution that the child attends unless the court
finds that the child's safety would be jeopardized. It had been surprising
that this right was not considered to be implicit in the previous statutory
scheme by one Illinois case. This law was to address fact. http://www.ilga.gov/legislation/95/SB/PDF/09500SB2044lv.pdf
Status: 8/29/08 Public Act 95-954. .
SEC. 503(g) Trusts: Expands 503(g) trusts in family-law
cases to specifically authorize them for expenses incurred for the 'physical
and mental health' of a minor. Current law authorizes these trusts for
support, maintenance, education and general welfare of any minor.
1035 - Package Legislation -- See
Separate Article of Gitlin Law Firm -- "They Booted My Car and Took
Illinois Public Aid
Sec. 10-9.5 (new). Access
to records. In any hearing, case, appeal, or other matter arising
out of the provisions concerning the determination and enforcement of
the support responsibility of relatives, an obligor or obligee, or their
legal representatives, shall be entitled to review any case records in
the possession of the Illinois Department of Healthcare and Family Services,
the State Disbursement Unit, or a circuit clerk with regard to that obligor
or obligee that are able to prove any matter relevant to the hearing,
case, appeal, or other matter if access to the record or portion of the
record is authorized by 42 U.S.C. 654.
Sec. 10-17.6. Certification
Past Due Support Information to Licensing
Agencies. The Illinois Department may provide by rule for certification
to any State licensing agency of (I) the failure of responsible relatives
to comply with subpoenas or warrants relating to paternity or child support
proceedings and (ii) past due support owed by responsible relatives
under a support order entered by a court or administrative body of this
or any other State on behalf of resident or non-resident persons receiving
child support enforcement services under Title IV, Part D of the Social
Security Act. The rule shall provide for notice to and an opportunity
to be heard by each responsible relative affected and any final administrative
decision rendered by the Department shall be reviewed only under and in
accordance with the Administrative Review Law.
(Source: P.A. 87-412.)
Sec. 10-17.13 (new). Vehicle
immobilization and impoundment. The Illinois Department may provide
by rule for certification to municipalities of past due support owed by
relatives under a support order entered by a court or administrative body
of this or any other State on behalf of resident or non-resident persons.
The purpose of certification shall be to effect collection of past due
support by immobilization and impoundment of vehicles registered to responsible
relatives pursuant to ordinances established by such municipalities under
Section 11-1430 of the Illinois Vehicle Code.
The rule shall provide for
notice to and an opportunity to be heard by each responsible relative
affected, and any final administrative decision rendered by the Department
shall be reviewed only under and in accordance with the Administrative
Review Law. A responsible relative may avoid certification to a municipality
for vehicle immobilization or arrange for discontinuance of vehicle immobilization
and impoundment already engaged by payment of past due support or by entering
into a plan for payment of past and current child support obligations
in a manner satisfactory to the Illinois Department.
Amendments to the Illinois Vehicle Code Amendments:
625 ILCS 5/6-103
The Secretary of State shall not issue, renew, or allow the retention
of any driver's license nor issue any permit under this Code: ***
14.5. To any person certified
by the Illinois Department of Healthcare and Family Services as being
90 days or more delinquent in payment of support under an order of support
entered by a court or administrative body of this or any other State,
subject to the requirements and procedures of Article VII of Chapter 7
of this Code regarding those certifications;
625 ILCS 5/7-100 [Definitions]
of support. An order for the support of dependent children issued
by an administrative body of this or any other State.
Court order of support.
A judgment order for the support of dependent children issued by a court
of this State, including a judgment of dissolution of marriage. With
regard to a
certification by the Department of Healthcare and Family Services under
subsection (c) of Section 7-702, the term "court order of support"
shall include an order of support entered by a court of this or any other
625 ILCS 5/7-702 [Suspension of driver's license for failure to
comply with order to pay child support.]
(C) The Secretary of State shall
suspend a driver's license upon certification by the Illinois Department
of Healthcare and Family Services, in a manner and form prescribed by
Illinois Secretary of State, that the person licensed is 90 days or more
delinquent in payment of support under an order of support issued by a
court or administrative body of this or any
other State. The Secretary of State may reinstate the person's driver's
license if notified by the Department of Healthcare and Family Services
that the person has paid the support delinquency in full or has arranged
for payment of the delinquency and current support obligation in a manner
satisfactory to the Department of Healthcare and Family Services.
625 ILCS 5/7-704 [Suspension
to continue until compliance with court order of support.]
(C) Section 7-704.1, and not
this Section, governs the duration of a driver's license suspension if
the suspension occurs as the result of a certification by the Illinois
Department of Healthcare and Family Services under subsection (c) of Section
(625 ILCS 5/7-704.1 new)
Sec. 7-704.1. Duration of driver's license suspension upon certification
of Department of Healthcare and Family Services.
(a) When a suspension of a driver's license occurs as the result of a
certification by the Illinois Department of Healthcare and Family Services
under subsection (c) of Section 7-702, the suspension shall remain in
effect until the Secretary of State receives notification from the Department
that the person whose license was suspended has paid the support delinquency
in full or has arranged for payment of the delinquency and current support
obligation in a manner satisfactory to the Department.
(b) Whenever, after one suspension
of an individual's driver's license based on certification of the Department
of Healthcare and Family Services, another certification is received from
the Department of Healthcare and Family Services, the Secretary shall
again suspend the driver's license of that individual and that suspension
shall not be removed unless the obligor is in full compliance with the
order of support and has made full payment on all arrearages
(625 ILCS 5/7-705)
Sec. 7-705. Notice.
The Secretary of State, prior to suspending a driver's license under this
Chapter, shall serve written notice upon an obligor that the individual's
driver's license will be suspended in 60 days from the date on the notice
unless (i) the obligor satisfies the court order of support and
the circuit clerk notifies the Secretary of State of this compliance or
(ii) if the Illinois Department of Healthcare and Family Services has
made a certification to the Secretary of State under subsection (c) of
Section 7-702, the Department notifies the Secretary of State that the
person licensed has paid the support delinquency in full or has arranged
for payment of the delinquency and current support obligation in a manner
satisfactory to the Department.
(625 ILCS 5/7-706) Administrative Hearing
There are corresponding provisions allowing. The existing law has provided
that if a request for an administrative hearing is made before the effective
date of the suspension, then the suspension is stayed until a hearing
decision is entered. The scope of the administrative hearing is limited.
(a) Whether the driver is
the person who owes a duty to make payments under the court or administrative
order of support.
(b) Whether (i) the
authenticated document of a court order of support indicates that the
obligor is 90 days or more delinquent or has been adjudicated in arrears
in an amount equal to 90 days obligation or more and has been found
in contempt of court for failure to pay child support or (ii) the
certification of the Illinois Department of Healthcare and Family Services
under subsection (c) or Section 7-702 indicates that the person is 90
days or more delinquent in payment of support under an order of support
issued by a court or administrative body of this or any other State.
(c) Whether (i) a superseding
authenticated document of any court order of support has been entered
or (ii) the Illinois Department of Healthcare and Family Services, in
a superseding notification, has informed the Secretary of State that
the person certified under subsection (c) of Section 7-702 has paid
the support delinquency in full or has arranged for payment of the delinquency
and current support obligation in a manner satisfactory to the Department.
(625 ILCS 5/7-707)
Sec. 7-707. Payment of reinstatement fee. When a person
an obligor receives notice from the Secretary of State that the
suspension of driving privileges has been terminated based upon
(i) receipt of notification from the circuit clerk of the person's
compliance as obligor with a court order of support or (ii) receipt
of notification from the Illinois Department of Healthcare and Family
Services that the person whose driving privileges were terminated has
paid the delinquency in full or has arranged for payment of the delinquency
and the current support obligation in a manner satisfactory to the Department
(in a case in which the person's driving privileges were suspended upon
a certification by the Department under subsection (c) of Section 7-702),
the obligor shall pay a $70 reinstatement fee to the Secretary of State
as set forth in Section 6-118 of this Code. ***
(625 ILCS 5/11-1430 new)
Sec. 11-1430. Vehicle immobilization and impoundment upon certification
of the Department of Healthcare and Family Services. Any municipality
may provide by ordinance for a program of vehicle immobilization and impoundment
in cases in which the Department of Healthcare and Family Services has
certified to the municipality under Section 10-17.13 of the
Illinois Public Aid Code that the registered owner of a vehicle owes past
due support. The program shall provide for immobilization of any eligible
vehicle upon the public way by
presence of a restraint in a manner to prevent operation of the vehicle
and for subsequent towing and impoundment of such vehicle solely upon
the certification of past due support by
the Department of Healthcare and Family Services. Further process, hearings,
or redetermination of the past due support by the municipality shall not
be required under the ordinance. The ordinance shall provide that the
municipality may terminate immobilization and impoundment of the vehicle
if the registered owner has arranged for payment of past and current support
obligations in a manner satisfactory to the Department of Healthcare and
A small but critical portion of this package of legislation includes severance
pay under definition of income as being “any form of periodic payment
to an individual, regardless of source” pay under IWSA - 750 ILCS 28/15.
Status - 9/11/07: Public
Adoption – - Senate Bill 68
amends the Adoption Act to make two changes. (1) Clarifies that children
are entitled to inheritance rights and all other available benefits of
adopted children if their adoptive parents die before the adoption is
completed as long as the court has jurisdiction over the parties. (2)
Allows DCFS to provide financial assistance for the gap between when the
child's adoptive parents die and completion of a new adoption by another
adoptive parent. Passed both chambers.
Prohibits any guardian ad litem
or legal fees from being assessed against the Department of Human Services
if its Inspector General has petitioned to declare a person a disabled
adult. Effective immediately.
The 94th General Assembly:
Bill 4357 (Lindner, R-Sugar Grove) rewrote the visitation statute
for grandparents and siblings. PA
1026 has been effective since January 1, 2007.
This legislation will change
standing for visitation for grandparents, great-grandparents, and siblings.
It will provide that there is an unreasonable denial of visitation by
a parent and one of the following occurs:
(1) The child's other parent
is deceased or has been missing for at least three months. A parent
is considering "missing" if parent has been reported as missing
to a law enforcement agency, and the parent's location has not been
determined. (This missing-parent ground for standing is an expansion
from current law.)
(2) A parent of the child is incompetent as a matter of law. (Same as
(3) A parent has been incarcerated
in jail or prison during the three-month period preceding the filing
of the petition. (Current law requires that one parent be sentenced
to a period of imprisonment for more than one year without any limitation
on when the sentence is served.)
(4) At least one parent does
not object to the visitation by a nonparent and there is a pending dissolution
proceeding of a parent; a pending custody or visitation proceeding involving
the child; or the child's mother and father are divorced or have been
legally separated from each other. (Current law is limited to the situation
in which the child's mother and father are divorced or have been legally
separated from each other during the three-month period before the filing
of the petition for visitation, and at least one parent does not object
to the visitation by the nonparent.)
(5) The child was born out
of wedlock, the parents are not living together, and the petitioner
is a maternal grandparent, great-grandparent, or sibling of the child.
(6) The child is born out
of wedlock, the parents are not living together, the petitioner is a
paternal grandparent, great-grandparent, or sibling, and paternity has
been established by court of competent jurisdiction.
An adoption case order terminating
parental rights to or for the adoption of a child automatically terminates
any visitation rights previously granted under §607. However,
if the adoptive parent or parents are related to the child, any person
who was related to the child before the adoption as grandparent, great-grandparent,
or sibling has standing for visitation.
Three other things to keep
in mind while reading this Section.
(1) "Sibling" is
defined as a brother, sister, stepbrother, or stepsister of the minor
(2) If there is no pending
litigation, a petition for visitation filed by a nonparent must be filed
in the county in which the child resides.
(3) Nothing in §607 applies
to a child subject to a pending petition under the Juvenile Court Act
or a pending petition to adopt an unrelated child.
1026 does three other things.
(1) In the list of criteria
on whether a court should grant a nonparent visitation, it adds a new
criterion for the court to consider. This criterion is whether the nonparent
was a full-time caretaker of the child for a period of not less than
six consecutive months. But PA
1026 does not change the current rebuttable presumption that a fit
parent's actions and decisions regarding nonparent visitation are not
harmful to the child. The burden of proof is still on the nonparent
seeking visitation to prove that those actions and decisions are harmful
to the child's mental, physical, or emotional health.
(2) In the modification of
a visitation order, it clarifies that a child's parent may always petition
to modify visitation upon changed circumstances when necessary to promote
the child's best interest.
(3) Section 607 has three
different provisions affecting the right of a nonparent to modify a
visitation order. PA
1026 repeals two of the three provisions to clarify that a court
may not modify an existing visitation order to nonparent unless it finds
by clear and convincing evidence, upon the basis of facts that have
arisen since the prior visitation order or that were unknown to the
court at the time of the entry of the order, that a change has occurred
in the circumstances of the child or the child's custodian and that
modification is necessary to protect the mental, physical, or emotional
health of the child.
of Health Insurance. Public Act 94-923 has been law
since June 26, 2006.
Bill 4383 (Bellock, R-Westmont) requires the court to order the
obligor to reimburse the obligee for 50% of the premium for placing
the child on his or her health insurance policy in two situations:
(1) A health insurance plan
is not available to the obligor through an employer or labor union or
trade union and the court does not order the obligor to cover the child
as a beneficiary of any health insurance plan that is available to the
obligor on a group basis or as a beneficiary of an independent health
insurance plan to be obtained by the obligor.
(2) The obligor does not obtain
medical insurance for the child within 90 days of the date of the court
order requiring the obligor to obtain insurance for the child. It also
permits the court to order the obligor to reimburse the obligee for
100% of the premium for placing the child on his or her health insurance
Fees - Removal of One Year Statute of Limitations re Independent Proceeding.
2475. Public Act 94-1016. Effective since July 7, 2006.
Overview: The new attorney
fee legislation addresses the "one year statute of limitations"
in seeking fees against your own client when brining an independent
action in family law cases. Section 508(e) now provides:
(2) After the close of the
period during which a petition (or praecipe) may be filed under subdivision
(c)(5), if no such petition (or praecipe) for the counsel remains pending,
any counsel or former counsel may pursue such an award and judgment
in an independent proceeding,
provided the complaint in the
independent proceeding is filed within one year after the close of the
In an independent proceeding,
the prior applicability of this Section shall in no way be deemed to
have diminished any other right of any counsel (or former counsel) to
pursue an award and judgment for legal fees and costs on the basis of
remedies that may otherwise exist under applicable law; and the limitations
period for breach of contract shall apply. ***
The changes made by this
amendatory Act of the 94th General Assembly are declarative of existing
As a reminder, the statute
of limitations for a contract action is 10 years, pursuant to 735
Sec. 13-206. Ten year limitation. Except as provided in Section 2-725
of the "Uniform Commercial Code", actions on ... written
contracts, or other evidences of indebtedness in writing, shall be
commenced within 10 years next after the cause of action accrued;
but if any payment or new promise to pay has been made, in writing,
on any ... contract, or other written evidence of indebtedness, within
or after the period of 10 years, then an action may be commenced thereon
at any time within 10 years after the time of such payment or promise
QILDRO Legislation -- PA-94-657
significant law has been effective since July 1, 2006. The
key change allow what are essentially percentage orders for QILDROs
involving defined benefit plans -- somewhat similar to QDROs being
entered into normal cases. The difference, however is the
political accommodation necessary to obtain the passage of the new
-- the two step process with step one being the entry of the QILDRO
at the time of the divorce and step two being entering the QILDRO
Calculation Court Order form years after the divorce.
The new QDRRO legislation
adds new terms "permissive service" and "regular
service." A change allows QILDROs for support rather
than just for a property distribution. There is a provision
which allows a distribution of the death benefit or the portion
of the death benefit that would otherwise be payable to the death
benefit beneficiary or estate to be paid to the payee. The
critical portion of the statute which I have favored for years now
provides for percentage orders for QILDROS similar to those allowed
in QDROs. The new law provides in part that "in the case
of a periodic benefit, this amount must be specified as a dollar
amount per month or per month as specified in subsection (n)."
It thus wipes up the dollar certain requirement that was a bane
to Illinois family lawyers try to provide for an equitable distribution
of state retirement benefits. This subsection then provides
a new form for distribution in section (n-5). There is broad
language in this Act placing the responsibility for providing accurate
calculations on the lawyers. The new terminology is that there
are now QILDROS and "QILDRO Calculation Court Order."
What will now generally occur is that within 45 days after the system
receives a QILDRO, then the retirement system provides a great deal
of specified information regarding the benefits. There are
provisions which will allow the payee to share in possible annual
post-retirement increases in benefits.
If a percentage order
is followed under what might be called a "traditional coverture
fraction" there is express language. This will be called
a "Marital Portion Benefit Calculation Formula."
A supplemental order is then entered providing for the use of this
The significant question with this new legislation is ensuring that
it will be the former client's responsibility years later to attend
to the entry of the QILDRO Calculation Court Order form. The
legislation attempts to make this as simple as possible. However,
the fact remains that this order must be entered years after the
divorce - so the responsibility for drafting this order should be
addressed with the client following the divorce.
Re-Written GAL, AFC and Child Representative Statute / Family Law
Counseling: PA 94-640
Effective since January 1, 2006.
750 ILCS 5/506:
Section 506 is nearly entirely re-written and provides:
(a) Duties. In any proceedings involving the support, custody, visitation,
education, parentage, property interest or general welfare of a
minor or dependent child, the court terms or specifications the
court determines, appoint a attorney to serve in one of the following
capacities to address the issues the court delineates:
(1) Attorney. The attorney shall provide independent
legal counsel for the child and shall owe the same duties of undivided
loyalty, confidentiality, and competent representation as are due
an adult client. as an attorney to represent the child;
ad litem. The guardian ad litem shall testify
or submit a written report to the court regarding his or her recommendations
in accordance with the best interest of the child. The report shall
be made available to all parties. The guardian ad litem
may be called as a witness for purposes of cross-examination regarding
the guardian ad litem's report or recommendations. The
guardian ad litem shall investigate the facts of the case
and interview the child and the parties.
(3) Child representative.
[Note change from child's representative] The child representative
shall advocate what the child representative finds to be in the
best interests of the child after reviewing the facts and circumstances
of the case. The child representative shall meet with the child
and the parties, investigate the facts of the case, and encourage
settlement and the use of alternative forms of dispute resolution.
The child representative shall have the same authority and obligation
to participate in the litigation as does an attorney for a party
and shall possess all the powers of investigation as does a guardian
ad litem. The child representative shall consider, but
not be bound by, the expressed wishes of the child. A child representative
shall have received training in child advocacy or shall possess
such experience as determined to be equivalent to such training
by the chief judge of the circuit where the child representative
has been appointed. The child representative shall not disclose
confidential communications made by the child, except as required
by law or by the Rules of Professional Conduct. The child representative
shall not render an opinion, recommendation, or report to the court
and shall not be called as a witness, but shall offer evidence-based
legal arguments The child representative shall disclose the position
as to what the child representative intends to advocate in a pre-trial
memorandum that shall be served upon all counsel of record prior
to the trial. The position disclosed in the pre-trial memorandum
shall not be considered evidence. The court and the parties may
consider the position of the child representative for purposes of
a settlement conference.
appointments. During the proceedings the court may appoint
an additional attorney to serve in the capacity described in subdivision
(a)(1) or an additional attorney to serve in another of the capacities
described in subdivision (a)(2) or (a)(3) on the court's own motion
or that of a party only for good cause shown and when the reasons
for the additional appointment are set forth in specific findings.
(a-5) Appointment considerations. In deciding whether
to make an appointment of an attorney for the minor child, a guardian
ad litem, or a child representative, the court shall consider the
nature and adequacy of the evidence to be presented by the parties
and the availability of other methods of obtaining information,
including social service organizations and evaluations by mental
health professions, as well as resources for payment.
In no event is this Section intended to or designed to abrogate
the decision making power of the trier of fact. Any appointment
made under this Section is not intended to nor should it serve to
place any appointed individual in the role of a surrogate judge.
(b) Fees and costs.
The court shall enter an order as appropriate for costs, fees, and
disbursements, including a retainer, when the attorney, guardian
ad litem, or child's representative is appointed. Any person appointed
under this Section shall file with the court within 90 days of his
or her appointment, and every subsequent 90-day period thereafter
during the course of his or her representation, a detailed invoice
for services rendered with a copy being sent to each party. The
court shall review the invoice submitted and approve the fees, if
they are reasonable and necessary. Any order approving the fees
shall require payment by either or both parents, by any other party
or source, or from the marital estate or the child's separate estate.
The court may not order payment by the Illinois Department of Public
Aid * in cases in which the Department is providing child support
enforcement services under Article X of the Illinois Public Aid
Code. Unless otherwise ordered by the court at the time fees and
costs are approved, all fees and costs payable to an attorney, guardian
ad litem, or child representative under this Section are
by implication deemed to be in the nature of support of the child
and are within the exceptions to discharge in bankruptcy under 11
U.S.C.A. 523. The provisions of Sections 501 and 508 of this Act
shall apply to fees and costs for attorneys appointed under this
This new legislation is far improved over the previous "child's
representative" legislation, which was flawed from the start.
Not only is the child representative law improved, but the role
of the guardian ad litem is somewhat fleshed out.
the IDPA is now know as the Illinois Department of Healthcare and
Family Services. The former IDPA now goes by the acronym HFS.
ILCS 5/608 "Judicial Supervision"
Sections (b) and (c) remain. Sections (c) through (f) are new and
The court may order individual counseling for the child, family
counseling for one or more of the parties and the child, or parental
education for one or more of the parties, when it finds one or
more of the following:
(1) both parents or all parties agree to the order;
(2) the court finds that the child's physical health
is endangered or his or her emotional development is impaired
including, but not limited to, a finding of visitation abuse as
defined by Section 607.1; or
(3) the court finds that one or both of the parties
have violated the joint parenting agreement with regard to conduct
affecting or in the presence of the child.
If the court finds that one or more of the parties has violated
an order of the court with regards to custody, visitation, or
joint parenting, the court shall assess the costs of counseling
against the violating party or parties.
Otherwise, the court may apportion the costs between the parties
The remedies provided in this Section are in addition to, and
shall not diminish or abridge in any way, the court's power to
exercise its authority through contempt or other proceedings.
All counseling sessions shall be confidential. The communications
in counseling shall not be used in any manner in litigation nor
relied upon by any expert appointed by the court or retained by
Tip: This is a very significant change to Illinois
law. Previously, counseling could not be forced -- except
under the guise of conciliation -- whose goal was the reconciliation
of the marriage. This historical provision of the statute
was useless. The ability to assess the costs of counseling
if one party violates an order of court regarding visitation, etc.,
is an extraordinary new remedy -- which may put greater teeth into
enforcement of visitation orders.
Court Rules Re Family Law
SCR 237: Effective: July 1, 2005, Supreme Court Rule 237
now provides, in part:
of Parties et al. at Trial or Other Evidentiary Hearings.
The appearance at the trial or other evidentiary hearing of a
party or a person who at the time of trial or other evidentiary
hearing is an officer, director, or employee of a party may be
required by serving the party with a notice designating the person
who is required to appear. The notice also may require the production
at the trial or other evidentiary hearing of the originals of
those documents or tangible things previously produced during
discovery. If the party or person is a nonresident of the county,
the court may order any terms and conditions in connection with
his or her appearance at the trial or other evidentiary hearing
that are just, including payment of his or her reasonable expenses.
Upon a failure to comply with the notice, the court may enter
any order that is just, including any sanction or remedy provided
for in Rule 219(c) that may be appropriate.
(c) New. Notice
of Parties at Expedited Hearings in Domestic Relations Cases.
In a domestic relations case, the appearance at an expedited hearing
of a party who has been served with process or appeared may be
required by serving the party with a notice designating the party
who is required to appear. The notice may also require the production
at the hearing of the original documents or tangible things [not
just those “previously produced during discover”] relevant to
the issues to be addressed at the hearing. If the party is a nonresident
of the county, the court may order any terms and conditions in
connection with his or her appearance at the hearing that are
just, including payment of his or her reasonable expenses. Upon
a failure to comply with the notice, the court may enter any order
that is just, including any sanction or remedy provided for in
Rule 219(c) that may be appropriate.
Paragraph (c) was added to the rule effective July 1, 2005. Because
of the important issues decided in expedited hearings in domestic
relations cases, including temporary family support, temporary
child custody, and temporary restraining orders, a trial court
should have the benefit of the attendance of individuals and production
of documents and tangible things on an expedited basis.
Court's New Rules Applicable to All Custody Cases:
The Illinois Supreme Court conducted a public hearing in September
2004. Gunnar J. Gitlin testified at that hearing. As
I then stated, "Every Illinois family lawyer should be aware
of the potential impact of these proposed Supreme Court Rules in
custody cases." To
see how the final rules differed from the September 2004 version
of the rules, click here.
IX. CHILD CUSTODY PROCEEDINGS
A. RULES OF GENERAL APPLICATION TO CHILD CUSTODY
Purpose and Scope
Assignment and Coordination of Cases
Case Management Conferences
Attorney Qualifications and Education in
Child Custody and Visitation Matters
Minimum Duties and Responsibilities of Attorneys
for Minor Children
Judicial Training on Child Custody Issues
B – CHILD CUSTODY PROCEEDINGS UNDER THE IMDMA AND THE
ILLINOIS PARENTAGE ACT OF 1984.
Case Management Conferences
Parenting Education Requirement
IX. CHILD CUSTODY PROCEEDINGS
PART A. RULES OF GENERAL APPLICATION TO CHILD CUSTODY
900. Purpose and Scope
(a) Purpose. Trial courts have a special responsibility
in cases involving the care and custody of children. When a child
is a ward of the court, the physical and emotional well-being of
the child is literally the business of the court. The purpose of
this article (Rules 900 et seq.) is to expedite cases affecting
the custody of a child, to ensure the coordination of custody matters
filed under different statutory Acts, and to focus child custody
proceedings on the best interests of the child, while protecting
the rights of other parties to the proceedings.
For the purposes of this article “child custody proceeding” means
an action affecting child custody or visitation. “Child” means a
person who has not attained the age of 18.
(b)(2) Part A. Scope.
Rules 900 through 920, except as stated therein, apply to all child
custody proceedings initiated under article II, III, or IV of the
Juvenile Court Act of 1987, the Illinois Marriage and Dissolution
of Marriage Act, the Uniform Child Custody Jurisdiction and Enforcement
Act, the Illinois Parentage Act of 1984, the Illinois Domestic Violence
Act of 1986 and article 112A of the Code of Criminal Procedure of
1963, and guardianship matters involving a minor under article XI
of the Probate Act of 1975.
(b)(3) Part B. Scope of Rules 921 through 940. Rules 921 through
940 apply to child custody proceedings initiated under the Illinois
Marriage and Dissolution of Marriage Act, and the Illinois Parentage
Act of 1984.
(b)(4) Part C. Scope of Rule 942. Rule 942 applies to child custody
proceedings under articles II, III, and IV of the Juvenile Court
Act of 1987.
of Other Rules. Applicable provisions of articles I and
II of these rules shall continue to apply in child custody proceedings
except as noted in this article.
Gunnar J. Gitlin: I pointed out in my testimony
that the original rules used did not reference the Uniform Child
Custody Jurisdiction and Enforcement Act. The new rules do
reference the proper Act. It is important to note that the
rules define a child custody proceeding including custody proceedings
under the Illinois Domestic Violence Act.
901: (a) Expedited Hearings. Child custody proceedings
shall be scheduled and heard on an expedited basis. Hearings in
child custody proceedings shall be held in strict compliance with
applicable deadlines established by statute or by this article.
(b) Setting of Hearings. Hearings in child custody
proceedings shall be set for specific times. At each hearing, the
next hearing shall be scheduled and the parties shall be notified
of the date and time of the next hearing. Hearings rescheduled following
a continuance shall be set for the earliest possible date.
(c) Continuances. Parties, witnesses and counsel
shall be held accountable for attending hearings in child custody
proceedings. Continuances shall not be granted in child custody
proceedings except for good cause shown and may be granted if the
continuance is consistent with the health, safety and best interests
of the child. The party requesting the continuance and the reasons
for the continuance shall be documented in the record.
(d) In any child custody
proceeding taken under advisement by the trial court, the trial
judge shall render its decision as soon as possible but not later
than 60 days after the completion of the trial or hearing.
(a) Complaint or Petition. The initial complaint
or petition in a child custody proceeding shall state (1) whether
the child involved is the subject of any other child custody proceeding
pending before another division of the circuit court, or another
court or administrative body of Illinois or of any other state,
an Indian tribe, or a foreign country and (2) whether any order
affecting the custody or visitation of the child has been entered
by the circuit court or any of its divisions, or by another court
or administrative body of Illinois or of any other state, an Indian
tribe, or a foreign country.
If any child custody proceeding
is pending with respect to the child, or any order has been entered
with respect to the custody or visitation of the child, the initial
complaint or petition shall identify the tribunal involved and the
parties to the action.
(b) Verification of Initial Complaint or Petition.
The plaintiff or petitioner in a child custody proceeding shall
verify the pleadings required by paragraph (a) of this rule. If
the plaintiff or petitioner is a public agency, the verification
shall be on information and belief of the attorney filing the pleading
and shall state that reasonable efforts were made to obtain all
information relevant to the matters verified.
(c) Answer or Appearance. In a child custody proceeding
the defendant’s (or respondent’s) answer, if required, shall include
a verified disclosure of any relevant information known to the defendant
(or respondent) regarding any pending proceedings or orders described
in paragraph (a) of this rule. Any defendant or respondent who appears
but is not required to file an answer in the child custody matter
shall be questioned under oath by the court at the party’s first
appearance before the court regarding any proceedings or orders
described in paragraph (a) of this rule.
(d) Continuing Duty. The parties have a continuing
duty to disclose information relating to other pending child custody
proceedings or any existing orders affecting the custody or visitation
of the child, and shall immediately disclose to the court and the
other parties to the proceeding any such information obtained after
the initial pleadings, answer or appearance.
Gunnar J. Gitlin Re Continuing Duty: In
my comment to the Illinois Supreme Court I regarding the continuing
duty, I quoted from the UCCJEA regarding the continuing duty states:
"d) Each party has a continuing duty to inform the court of
any proceeding in this or any other state that could affect the
current proceeding." I inquired, "Do we want this
sort of language to be both part of a SCR as well as in the UCCJEA?"
The official comments explain: "The purpose of Rule
902 is to ensure that the trial court is aware of all custody proceedings
and orders relating to the child who is before the court. The Special
Committee found that child custody and visitation may be the subject
of multiple proceedings and orders. Rule 902 addresses the problem
of multiple proceedings that may occur intrastate and intra-circuit.
Multiple proceedings may arise intra-circuit when parties file for
relief under different statutory provisions (e.g., an abuse case
and a simultaneous guardianship case)."
903. Assignment and Coordination of Cases
Whenever possible and appropriate, all child custody proceedings
relating to an individual child shall be conducted by a single judge.
Each judicial circuit shall adopt a rule or order providing for
assignment and coordination of child custody proceedings. Assignments
in child custody proceedings shall be in accordance with the circuit
rule or order then in force.
Rule 903 encourages the assignment of all custody proceedings concerning
a child to a single judge. The rule does not mandate consolidation
of child custody proceedings, because consolidation may be inadvisable
in certain cases. Moreover, in some counties mandatory consolidation
may be impracticable because of the arrangement of courtrooms and
facilities. Rule 903 encourages the consolidation of cases
by requiring that the judicial circuits adopt rules or orders concerning
the assignment and coordination of child custody proceedings, and
by providing that the assignment of child custody proceedings will
be in accordance with those rules
904. Case Management Conferences
In child custody proceedings other than cases under articles II,
III and IV of the Juvenile Court Act of 1987, and cases under the
Illinois Marriage and Dissolution of Marriage Act and the Illinois
Parentage Act of 1984 provided for under Part B of this article
(see Rule 923), an initial case management conference pursuant to
Rule 218 shall be held not later than 90 days after the
petition or complaint has been served upon the respondent.
If not previously resolved, the court shall address the appointment
of a guardian ad litem or counsel for the child and counsel for
any indigent party entitled to the assistance of appointed counsel
at the initial case management conference.
Gunnar J. Gitlin: I testified against the
original version of this rule and the rule as adopted is in a slightly
modified form. The original rule had provided that the initial
case management conference was to be held within 60 days after the
filing of the compliant. I recommended the the rule be changed
to a longer time frame -- and one based upon the service -- not
(a) Each judicial circuit shall establish a program
to provide mediation for cases involving the custody of
a child or visitation issues (whether or not the parties
have been married). In addition to the minimum requirements set
forth in subparagraph (b)(2) of Rule 99, local circuit court rules
for mediation in child custody and visitation cases shall address:
training for mediators;
of the mediation program to child custody and visitation issues;
(iii) (unless otherwise
provided for in this article) standards to determine
which child custody and visitation issues should be referred to
mediation and the time for referral, and
from referral to mediation
for good cause shown if the
court determines an impediment to mediation exists [effective
January 1, 2007].
The immunity and approval
requirements of subparagraph (b)(1) of Rule 99 shall apply to
mediation programs for child custody and visitation matters.
(b) Each judicial circuit
shall establish a program to provide mediation for dissolution
of marriage and paternity cases involving the custody of a child
or visitation issues (whether or not the parties have been
married). In addition to the minimum requirements set forth in subparagraph
(b)(2) of Rule 99, local circuit court rules for mediation in dissolution
of marriage and paternity cases shall address:
(i) mandatory expertise
requirements of a mediator;
(ii) mandatory training
(iii) limitation of
the mediation program to child custody and visitation issues;
(iv) referral of child
custody and visitation issues to mediation, pursuant to Rule 923(a)(3),
parties are excused for good cause shown.
court determines an impediment to mediation exists
[effective January 1, 2007]. The fact that both parties
agree that they do not want the matter to be referred to mediation
does not constitute good cause shown.
The fact that both parties
agree that they do not want the matter to be referred to mediation
does not constitute good cause shown. The immunity and approval
requirements of subparagraph (b)(1) of Rule 99 shall apply to mediation
programs for child custody and visitation matters.
(c) In addition to meeting the requirements of Rule 905(a) and (b),
local circuit rules may also impose other requirements as deemed
necessary by the individual circuits.
The Committee believes mediation can be useful in nearly all contested
custody proceedings. Mediation can resolve a significant portion
of custody disputes and often
has a positive impact even when custody issues are not resolved.
The process of mediation focuses the parties’ attention on the needs
of the child and helps parties to be realistic in their expectations
Many counties and judicial
circuits have had mandatory mediation programs in place in their
domestic relations courts for years. Cook County and DuPage County
have utilized mandatory mediation programs for more than a decade.
[Comment by Gunnar J. Gitlin -- McHenry County has had a mandatory
mediation program for nearly two decades.] To date, these
mandatory mediation programs have been implemented by the judicial
circuits under the auspices of Rule 99, Mediation Programs.
Rule 905 requires each
judicial circuit to establish a mediation program for child custody
proceedings. Local circuit court rules will address the specifics
of the mediation programs. The Cook County model for
mediation programs, which provides county-employed mediators at
no cost to the parties, may not be financially or administratively
feasible for every circuit. Alternatively, some circuits have required
approved mediators to mediate a certain number of reduced fee or
pro bono cases per year as identified by the court.
The individual judicial circuits may implement rules which are particularly
appropriate for them, including provisions specifying responsibility
for mediation costs.
Paragraph (a) applies
to cases involving custody or visitation issues, other than those
arising in dissolution of marriage and paternity cases. It requires
local circuit court rules to address mandatory training for mediators
and limits the mediation program to issues involving child custody
and visitation. Paragraph (a) also requires local circuit court
rules to set standards to use in determining which child custody
and visitation issues should be referred to mediation and also address
when the referral will be made for them, including provisions
specifying responsibility for mediation costs.
Paragraph (b) provides
for mediation of disputed custody and visitation issues in dissolution
of marriage and paternity cases
, absent good cause shown.
The timing and manner of referral to mediation in dissolution of
marriage and paternity cases is provided for in Rule 923.
Parties may be excused
from referral under both paragraphs (a) and (b) if the court determines
an impediment to mediation exists. Such impediments may include
family violence, mental or cognitive impairment, alcohol abuse or
chemical dependency, or other circumstances which may render mediation
inappropriate or would unreasonably interfere with the mediation
Gunnar J. Gitlin: The original draft of
the rules had referred to "mandatory mediation.” This
phrase was not retained in the final version of the rules.
This change is is likely due to the fact that the mediation is not
mandatory but counties are free to determine which cases are ineligible
for mediation. The largest exception (and the one to which
there was significant testimony) was that of that of domestic violence.
Similarly, the phrase "mandatory referral” was also rejected
in the final version of the rules. Finally, note the use of
the word "should” under paragraph (a)(3). The original
version referred to those cases which "must” be referred to
mediation. The interesting new phrase added to the 2006 version
-- probably as a result of the concessions for the non-mandatory
nature of the program to all custody and visitation cases -- is
the phrase, "The fact that both parties agree that they do
not want the matter to be referred to mediation does not constitute
good cause shown.” This was new language -- which was then
removed in the amended legislation.
The amended language
[effective January 1, 2007] regarding impairment is consistent with
the testimony before the committee from the domestic violence community
emphasizing that the general provision for opting out for good cause
shown was not appropriate and that there should be language consistent
with the rules in counties such as McHenry County, Kane County,
etc., defining impairment, etc.
906. Attorney Qualifications and Education in Child Custody and
(a) Statement of Purpose. This rule is promulgated
to insure that counsel who are appointed by the court to participate
in child custody and visitation matters, as delineated in Rule 900(b)(2),
possess the ability, knowledge, and experience to do so in a competent
and professional manner. To this end, each circuit court of this
state shall develop a set of qualifications and educational
requirements for attorneys appointed by the court to represent children
in child custody cases and guardianship cases when custody or visitation
is an issue and shall further develop a plan for the procurement
of qualified attorneys in accordance with the plan.
(b) Submission of Qualifications and Plan. The
Chief Judge of a judicial circuit shall be responsible for the creation
of the qualifications and Plan and for submitting them to the
conference of Chief Judges for approval. The Chief Judges of two
or more contiguous judicial circuits may submit a Plan for the creation
of a single set of qualifications and Plan encompassing those judicial
circuits or encompassing contiguous counties within the circuits.
(c) Qualifications and Plan. The qualifications
shall provide that the attorney is licensed and in good standing
with the Illinois Supreme Court. Certification requirements may
address minimum experience requirements for attorneys appointed
by the court to represent minor children. In addition, the qualifications
may include one or all of the following which are recommended:
(1) Prior to appointment
the attorney shall have 10 hours in the two years prior
to the date the attorney qualifies for appointment in approved
continuing legal education courses in the following areas: child
development; roles of guardian ad litem and child representative;
ethics in child custody cases; relevant substantive state, federal,
and case law in custody and visitation matters; family dynamics,
including substance abuse, domestic abuse, and mental health issues.
continuing education in approved child related courses
shall be required to maintain qualification as an attorney eligible
to be appointed by the court in child custody and visitation cases.
(3) Requirements for
initial pro bono representation.
(4) Attorneys who work
for governmental agencies may meet the requirements of this rule
by attending appropriate in-house legal education classes.
of Chief Judges Review and Approval. The Conference of
Chief Judges shall review and approve the Plan or may request that
the Chief Judge modify the submitted list of qualifications and
Plan. Upon approval, the Chief Judge of each circuit shall be responsible
for administering the program and insuring compliance. An attorney
approved to be appointed by the Court to participate in child custody
and visitation matters under a Plan approved in one county or judicial
circuit shall have reciprocity to participate in
child custody and visitation matters in other counties and judicial
circuits in Illinois.
Comment by Gunnar
J. Gitlin: It is odd that the Supreme Court
deleted the requirement that the lawyer appointed be insured since
this was a provision of the original rules.
The Special Committee is mindful that many judicial circuits will
find it very difficult to find funds to pay for the plans under
which counsel are appointed. Ideally, the State
would provide sufficient funding to reimburse the private attorneys
who are appointed by the court. In the absence of such funding,
the individual judicial circuits will need to be innovative in meeting
the financial requirements of the plans. In addition to requiring
the parties to pay for the appointed lawyer’s services, the local
rules could provide for the targeting of court filing fees. Voluntary
pro bono service is also strongly encouraged. (emphasis added.)
907. Minimum Duties and Responsibilities of Attorneys for
(a) Every child representative, attorney for a child and guardian
ad litem shall adhere to all ethical rules governing attorneys in
professional practice, be mindful of any conflicts in the representation
of children and take appropriate action to address such conflicts.
(b) Every child representative, attorney for a minor child and guardian
ad litem shall have the right to interview his or her client(s)
without any limitation or impediment. Upon appointment of a child
representative, attorney for the child or guardian ad litem, the
trial court shall enter an order to allow access to the child and
all relevant documents.
(c) As soon as practicable, the child representative, attorney for
the child or guardian ad litem shall interview the child, or if
the child is too young to be interviewed, the attorney should, at
a minimum, observe the child. The child representative, attorney
for the child or guardian ad litem shall also take whatever reasonable
steps are necessary to obtain all information pertaining to issues
affecting the child, including interviewing family members and others
possessing special knowledge of the child’s circumstances.
(d) The child representative, attorney for the child or guardian
ad litem shall take whatever reasonable steps are necessary to determine
what services the family needs to address the custody dispute, make
appropriate recommendations to the parties, and seek appropriate
relief in court, if required, in order to serve the best interest
of the child.
(e) The child representative, attorney for the child or guardian
ad litem shall determine whether a settlement of the custody dispute
can be achieved by agreement, and, to the extent feasible, shall
attempt to resolve such disputes by an agreement that serves the
best interest of the child.
Gunnar J. Gitlin: Subsections (c) was changed
from immediately to "as soon as practicable" for obvious
reason. The original Supreme Court Rules had provide that
the individual appointed "shall take whatever steps necessary
to obtain all information pertaining to issues affecting the child.”
My written submission to the Supreme Court Rules Committee stated,
"This rule while well intentioned contains too much of a broadstroke
statement. One goal is the reducing cost of custody litigation
and obtaining “all information” in each case is simply not possible.”
The Supreme Court added the phrase "reasonable” steps.
Similarly, in section (d) the Supreme Court added the phrase that
the individual was to take whatever reasonable steps that were necessary.
In subsection (d)
I urged that, "[T]he role of the AFC is not a role that needs
to be consistent with the “best interest of the child.” Occasionally,
an AFC will be appointed because there is a perceived conflict between
the wishes of the child and the child’s best interest.” The
Supreme Court did not make a change to this portion of the Rules.
In my written report
to the Supreme Court Rule committee I pointed out:
We should be aware
that in August, 2003 the ABA adopted Standards of Practice for
Lawyers Representing Children in Custody Cases (Custody Standard).
37 Fam. L.Q. 129 (2003). These custody standards are based upon
the premise that a lawyer should act like a lawyer. The standards
allow for two alternative capacities in which a lawyer should
represent a child in a custody matter, i.e., child's attorney
or a best interest attorney (a term previously known as a Guardian
ad Litem). Illinois' role of the child's representative appears
at odds with the position taken by the American Bar Association
as to the proper role for a lawyer in such proceedings. It is
in part because I believe that the role of the child’s representative
may be at odds with the position of the ABA and have other problems
outlined above that I also recommend against promoting the appointment
of such an individual as a mandatory appointment should mediation
The Special Committee is aware that the American Bar Association
and the National Conference of Commissioners on Uniform State Laws
have taken the position
that there should be three distinct types of appointments: (1) a
child’s attorney, who provides independent legal counsel in the
same manner as to an adult client; (2) a “best interest attorney,”
such as Illinois’ child representatives, who provide independent
legal services for the child’s best interests but who does not make
general “recommendations”; (3) a guardian ad litem, who gathers
information for the court and helps identify other needed services
for the child or family.
In its Standards of Practice for Attorneys Representing Children
in Custody Cases, the ABA recommended that attorneys not serve as
GALs unless they do so as would a non-lawyer. However, the Illinois
Marriage and Dissolution of Marriage Act mandates that GALs appointed
under the Act be attorneys and that they may actually act in loco
parentis for the child. See 750 ILCS 5/506. It is the position of
the Special Committee that none of these concerns require changes
in the language of Rule 907 or any other rule.
908. Judicial Training on Child Custody Issues
(a) Meeting the challenge of deciding child custody cases fairly
and expeditiously requires experience or training in a broad range
of matters including, but not limited to: (1) child development,
child psychology and family dynamics; (2) domestic violence issues;
(3) alternative dispute resolution strategies; (4) child sexual
abuse issues; (5) financial issues in custody matters; (6) addiction
and treatment issues; (7) statutory time limitations; and (8) cultural
and diversity issues.
(b) Judges should have experience or training in the matters described
in paragraph (a) of this rule before hearing child custody cases.
Before a judge is assigned to hear child custody cases, the Chief
Judge of the judicial circuit should consider the judge’s
[judicial and legal experience], any prior training the judge
has completed and any training that may be available to the judge
before he or she will begin hearing child custody cases.
(c) Judges who, by specific assignment or otherwise, may be called
upon to hear child custody cases
shall attend a seminar approved
by should participate in judicial education
opportunities available on these topics, such as attending those
sessions or portions of the Education Conference, presented bi-annually
at the direction of the Supreme Court concerning matters,
which address the topics described in paragraph (a) of this
rule or related issues at least once every two years. Judges
may meet this requirement by attending a seminar in person or by
completing approved. Judges may also
elect to participate in any other Judicial Conference Judicial Education
Seminars addressing these topics, participate in other judicial
education programs approved for the award of continuing judicial
education credit by the Supreme Court, complete individual training
through the Internet, computer training programs, video presentations,
or other meansrelevant programs. The Chief Judges of the
judicial circuits should make reasonable efforts to ensure that
judges have the opportunity to attend approved seminars to meet
their responsibilities under programs approved for the award of
continuing judicial education credit by the Supreme Court which
address the topics and issues described in paragraph (a) of
Gunnar J. Gitlin: The fact that the Supreme
Court immediately watered down the rule for continuing education
for judges before the rule even became effective is remarkable.
The rule went from mandatory education to permissive education while
there is mandatory education for all of the other professionals.
Interestingly, the Supreme Court made this change without comment.
This changes are made effective to July 1, 2006 while the
other rule changes were effective commencing January 1, 2007.
B – CHILD CUSTODY PROCEEDINGS UNDER THE ILLINOIS
MARRIAGE AND DISSOLUTION OF MARRIAGE ACT AND THE
ILLINOIS PARENTAGE ACT OF 1984.
921. General Provisions
In addition to the rules in Part A of this article, the rules in
this Part B shall apply to child custody proceedings filed under
the Illinois Marriage and Dissolution of Marriage Act, and the Illinois
Parentage Act of 1984.
922. Time Limitations
All child custody proceedings under this rule in the trial court
shall be resolved within 18 months from the date
of service of the petition or complaint to final order. In the event
this time limit is not met, the trial court shall make written findings
as to the reason(s) for the delay. The 18-month time limit shall
not apply if the parties, including the attorney representing the
child, the guardian ad litem or the child representative, agree
in writing and the trial court makes a written finding that the
extension of time is for good cause shown. In the event the parties
do not agree, the court may consider whether an extension of time
should be allowed for good cause shown. All child custody
proceedings under this rule in the trial court shall be resolved
within 18 months from the date of service of the petition or complaint
to final order. In the event this time limit is not met,
the trial court shall make written findings as to the reason(s)
for the delay. The 18-month time limit shall not apply if the parties,
including the attorney representing the child, the guardian ad litem
or the child representative, agree in writing and the trial court
makes a written finding that the extension of time is for good cause
shown. In the event the parties do not agree, the court may consider
whether an extension of time should be allowed for good cause
shown. (emphasis added).
Gunnar J. Gitlin: The time frame was again changed
from the date of service -- not the date of filing. The new
language in this rule provides, "All child custody proceedings
under this rule in the trial court shall be resolved within 18 months
from the date of service of the petition or complaint to final order,”
and continues until the end of the rule. It might be suggested
that the requirement that there be an 18 month time frame from service
to the date the case is resolved is not a provision for an 18 month
time frame for the case to be tried. Often custody cases will
be tried for several days and then continued -- extending the time
frame for resolution of these cases. Also, note that a case
is not resolved when tried because after trial. After the
close of proofs in a custody case, often a court will allow written
closing arguments. Often the petitioner will present written
closing followed by the respondent with the possible opportunity
for a reply by the petitioner. After written closing arguments
(if the court does not request oral argument), the case is usually
taken under advisement. Thereafter, the court has an expedited
time frame to render a decision. Most courts render a memorandum
of decision and a question could be presented as to whether the
memo of decision is the resolution of the case or whether a case
is resolved when the court enters a judgment or other order addressing
the custody issues.
An equally important
issue is whether the courts will essentially bifurcate custody and
other issues, thus hearing the custody issues first and then deferring
the remainder of the issues. Then the question is the interpretation
of the new Supreme Court Rules effecting appeals of custody cases
and whether recent case law in this regard is contrary to the provisions
for expedited interlocutory appeals in custody cases. See,
Sproat, 830 N.E.2d 843, 357 Ill.App.3d 880, 294 Ill.Dec. 431
(2d Dist. 2005) holding that the provision of SCR 306A providing
expedited appeals of custody orders does not confer jurisdiction
on appellate court of custody order when other issues in dissolution
I practice in
two of the busiest counties in the state, McHenry County and Lake
County. The question is how a custody case can be heard in
these counties within the above time frames and a secondary question
will be the impact of these rules on the time frame in which a trial
on other issues can be resolved.
923. Case Management Conferences
(a) Initial Conference. In a child custody proceeding
under this part, an initial case management conference pursuant
to Rule 218 shall be held not later than 90 days after service
of the petition or complaint is obtained. In addition to
other matters the court may choose to address, the initial
conference shall cover the following issues:
(1) Parenting Education. The parents shall show
proof of completion of an approved parenting
education program as required by Rule 924, provide a fixed schedule
for compliance, or show cause to excuse compliance;
(2) Custody and Parenting Plan. The parents shall
provide the court with an agreed order regarding custody and an
agreed parenting plan, if there is an
(3) Mediation. If there is no agreement regarding
custody or a parenting plan or both, the court shall schedule
the matter for mediation in accordance with Rule 905(b) and shall
advise each parent of the responsibilities imposed upon them by
the pertinent local court rules.
(b) A full case
management conference shall be held not later than 30
days after mediation has been completed. In addition to
other matters the court may choose to address at the conference,
and if the court has not appointed counsel previously, the court
shall address whether to appoint an attorney for the child or a
guardian ad litem or a child representative in accordance with section
506 of the Illinois Marriage and Dissolution of Marriage Act (750
Comment by Gunnar
J. Gitlin: In my testimony before the Supreme
Court I was very critical of the proposed language in the rule which
had stated, "A full case management conference shall be held
not later than 30 days after mediation has been completed. In addition
to other matters the court may choose to address at the conference,
and if the court has not appointed counsel previously, the court
shall address the appointment of counsel for the child pursuant
to Rule 925 [now deleted].”
I referred to
the Chicago Tribune series critical of the effect of the appointment
of guardian ad litems or other attorneys in terms of the impact
of the cost of child custody proceedings. My recommendation
was to give the court greater flexibility as to appointing an evaluation
pursuant to Section 604(b) of the IMDMA in cases instead of appointing
a guardian ad litem (GAL), Attorney for the Child (AFC) or child's
representative (CR). The likely result of this rule change
is greater cost to cases in which custody appears to be at issue.
A simple fact is that 90 days after service, it is often impossible
to determine if custody may be at issue because often the non-filing
party is only beginning to come to the terms with the divorce process.
I also commented
at to this proposed rule, "In addition to the cost concern,
my concern is the apparent preference of the appointment of such
an individual (GAL, AFC or CR) as opposed to the appointment of
an expert pursuant to Section 604(b). Such an expert is generally
a psychologist. The advantage of the court’s appointment of a psychologist
is that even with the modicum of training as required by the proposed
Supreme Court Rules, it is inevitable that a custody evaluator will
have had much more training in child developmental issues.”
Here I was successful
in having different language included in the new rule. The
language of the new rule is more ambiguous when it states the court
"shall address whether to whether to appoint” a GAL, AFC or
CR. Clearly, this was designed to avoid the concern that I
raised that the appointment of such an individual appeared mandatory
with the previous version of the rules.
Paragraph (b) provides that in cases referred to mediation under
the rule, a full case management conference is required within 30
days after mediation is completed. At the full case management
conference, the court will consider, inter alia, the appointment
of counsel for the child as provided in section 506 of the Illinois
Marriage and Dissolution of Marriage Act (750 ILCS 5/506).
924. Parenting Education Requirement
(a) Program. Each circuit or county shall create
or approve a parenting education program consisting of at least
four hours covering the subjects of visitation and custody and their
impact on children.
(b) Mandatory Attendance. Except when excused by
the court for good cause shown, all parties shall be required to
attend and complete an approved parenting education program as
soon as possible, but not later than 60 days after
an initial case management conference. In the case of a
default or lack of jurisdiction over the respondent, only the petitioning
party is required to attend but if the respondent later enters an
appearance or participates in postjudgment proceedings, then the
party who has not attended the program shall attend. The court shall
not excuse attendance unless the reason is documented in the record
and a finding is made that excusing one or both parents from attendance
is in the best interests of the child.
The court may impose sanctions on any party willfully failing to
complete the program.
Gunnar J. Gitlin: The final version eliminated
the phrase, "No final judgment shall be issued nor shall a
custody trial occur until the parties have attended an approved
parenting education program or have been excused from attendance
by the court.” It was likely believed that the provisions
for mandatory attendance should be sufficient since it required
the taking of the parenting education class not later than 60 days
after the initial case management conference.
by Gunnar J. Gitlin: Finally, I urged the elimination
of what had been SCR 925. It had provided, "In a case
where the court has referred the parties to mediation to resolve
their custody dispute and following the holding of a full case management
conference and the parties or their counsel have certified to the
court that the custody dispute remains unresolved, the court shall
appoint an attorney for the minor child or a guardian ad litem or
a child representative to represent the best interests of the child.”
I was very critical of this proposed
rule because of what had previously been the mandatory nature of
the appointment. I stated, "I would delete this proposed
rule. As is discussed above, the preference in these rules is for
the appointment of a CR, GAL or AFC rather than a custody evaluation.
My preference in light of the cost is for a custody evaluation.
The cost of a custody evaluation is generally between $3K and $4K.
It is only in relatively unusual cases where the cost of a GAL,
AFC, etc. is less than this amount. One reason is the billable hourly
rates with attorneys billing on average two or three times the cost
of a mental health professional.”
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May 25, 2013