Status Re 2006 - 2009 Illinois Family Law Legislation / Supreme Court Rules Effecting Divorce and Custody Cases

Status:  This 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 formula.

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Practice Tip:  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. 

Status:  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;

(2) Guardian 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.

(a-3) Additional 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 Section.

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Practice Tip:  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. 

*  Note the IDPA is now know as the Illinois Department of Healthcare and Family Services.  The former IDPA now goes by the acronym HFS.

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750 ILCS 5/608 "Judicial Supervision"
Sections (b) and (c) remain. Sections (c) through (f) are new and provide:

(c) 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.

(d) 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 as appropriate.

(e) 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.

(f) 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 any party.

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Practice 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. 

Supreme Court Rules Re Family Law

Amended SCR 237: Effective: July 1, 2005, Supreme Court Rule 237 now provides, in part:

(b) Notice 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.

Committee Comment: 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.

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Supreme Court's New Rules Applicable to All Custody Cases:

Status:  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. 

ARTICLE IX. CHILD CUSTODY PROCEEDINGS

PART A. RULES OF GENERAL APPLICATION TO CHILD CUSTODY
PROCEEDINGS

Rule 900:  Purpose and Scope

Rule 901:  Expedited Hearings

Rule 902:  Pleadings

Rule 903. Assignment and Coordination of Cases

Rule 904. Case Management Conferences

Rule 905. Mediation

Rule 906. Attorney Qualifications and Education in Child Custody and Visitation Matters

Rule 907. Minimum Duties and Responsibilities of Attorneys for Minor Children

Rule 908. Judicial Training on Child Custody Issues

PART B – CHILD CUSTODY PROCEEDINGS UNDER THE IMDMA AND THE
ILLINOIS PARENTAGE ACT OF 1984.

Rule 921. General Provisions

Rule 922. Time Limitations

Rule 923. Case Management Conferences

Rule 924. Parenting Education Requirement

ARTICLE IX. CHILD CUSTODY PROCEEDINGS

PART A. RULES OF GENERAL APPLICATION TO CHILD CUSTODY
PROCEEDINGS

Rule 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.

(b)(1) Definitions. 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.

(c) Applicability 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.

Comment by 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. 

Rule 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.

Rule 902. Pleadings
(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.

Comment by 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?" 

Committee Comments:  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)."

Rule 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.

Committee Comments:  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

Rule 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. 

Comment by 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 the filing.

Rule 905. Mediation
(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:

(i) mandatory training for mediators;

(ii) limitation 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

(iv) excuse 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 for mediators;

(iii) limitation of the mediation program to child custody and visitation issues; and

(iv) referral of child custody and visitation issues to mediation, pursuant to Rule 923(a)(3), unless the 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.

Committee Comments:  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 regarding custody. 

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 process.

Comment by 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. 

Rule 906. Attorney Qualifications and Education in Child Custody and Visitation Matters
(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.

(2) Periodic 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.

(d) Conference 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. 

Committee Comment:  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.) 

Rule 907. Minimum Duties and Responsibilities of Attorneys for Minor Children
(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.

Comment by 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 fail.

Committee Comment:  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.

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 background [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 this rule. 

Comment by 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. 

PART B – CHILD CUSTODY PROCEEDINGS UNDER THE ILLINOIS
MARRIAGE AND DISSOLUTION OF MARRIAGE ACT AND THE
ILLINOIS PARENTAGE ACT OF 1984.

Rule 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.

Rule 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). 

Comment by 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, e.g., IRMO 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 remain undecided.

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. 

Rule 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
agreement;
(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 ILCS 5/506).

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. 

Committee Comment:  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).

Rule 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.

(c) Sanctions. The court may impose sanctions on any party willfully failing to complete the program.

Comment by 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. 

Final Comment 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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