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Status Re 2006 - 2013 Illinois Family Law Legislation / Supreme Court Rules Effecting Divorce and Custody Cases

By: Gunnar J. Gitlin
The Gitlin Law Firm, Woodstock, Illinois    ©2013

www.gitlinlawfirm.com

Last Updated: 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 for 2012

  Since June 1, 2012: New Notice for Income Withholding Federal Form that States Must Follow

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

 

2.   2011 Legislation  

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 Changes

4.  New Laws in 2009:


a.  PA 96-53 -- Leveling the Playing Field Statute Amendments
b.  PA 96-053 -- Income Withholding Amendment  
c.  PA 2283 - Custody and Military
d.  PA 96-246 - Stalking No Contact Order Act   
d.  HB 2660 Amendments to Cindy Bischof's Law

e.  PA 96-331 - "Virtual" Visitation

 

5.  New Laws in 2008:


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

6.  New Laws in 2007:


a.  Public Act 95-374 - Trusts and 503(g)
b.  Public Act 95-0685 - Impoundment of Vehicles Package Legislation
c.  Other.

7.  New Laws in 2006:


a. Grandparent Visitation
b. Reimbursements of Health Insurance
c. Independent Actions for Attorney Fees

  1. QILDRO Legislation;
  2. Child Representative Statute and Family Law Counseling;
  3. Supreme Court Rules

2012-13 Legislation and Supreme Court Rules

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
See: www.state.il.us/court/SupremeCourt/Rules/Amend/2012/122112_Rule_Amendments.pdf

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 Information


(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 as follows:


(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.



Committee Comments
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.

Committee Comments
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 for 2012

Since June 1, 2012: New Notice for Income Withholding Federal Form that States Must Follow:

See: www.acf.hhs.gov/programs/cse/newhire/employer/private/income_withholding.htm [Employer Information Page that should be read by any lawyer preparing these forms].

www.acf.hhs.gov/programs/cse/forms/OMB-0970-0154.pdf [This is the Federal form that ours needs to follow - except for additional information, etc.]

www.acf.hhs.gov/programs/cse/pol/AT/2011/at-11-05.htm [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.”

www.ncjfcj.org/blog/2011/09/14/revisions-to-the-income-withholding-for-support-order/
[Column by Cynthia Holden of Employer Services Team of the Federal Office of Child Support Enforcement. It states in part:

One change 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 cynthia.holdren@acf.hhs.gov.

http://www.acf.hhs.gov/sites/default/files/ocse/iwoflowchart.pdf
[A flowchart not consistent with IL law regarding the ability to send a withholding notice where the underlying order did not call for income withholding.]

Practice Note: 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.


1c.   2012 Legislation

PA 97-994/HB 5221 - Income Withhold for Support: Variety of Changes to Water Down Current Law
PA 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 as follows:

(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 $10,000.”

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.

After receiving 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: http://www.ilga.gov/legislation/billstatus.asp?DocNum=2569&GAID=11&GA=97&DocTypeID=SB&LegID=62833&SessionID=84
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 factors: ***

(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: www.ilga.gov/legislation/billstatus.asp?DocNum=3960&GAID=11&GA=97&DocTypeID=HB&LegID=62804&SessionID=84

See also: http://www.ilga.gov/legislation/97/HB/PDF/09700HB3960lv.pdf (pdf)

(f) Dependent 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
PA-97-608:
See: http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=097-0608&GA=97
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 following:

(1) With 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.

(2) To 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

See: http://www.ilga.gov/legislation/billstatus.asp?DocNum=3549&GAID=11&GA=97&DocTypeID=SB&LegID=65315&SessionID=84
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 support.

It also amends:  The Public Aid Code: 305 ILCS 5/10-10; IPA of 1984; and Non-Support Punishment Act. 

HB 1243 - Parentage Act
Illinois Parentage Act of 2013 – HB1243
See: http://www.ilga.gov/legislation/billstatus.asp?DocNum=1243&GAID=12&GA=98&DocTypeID=HB&LegID=71761&SessionID=85
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
www.ilga.gov/legislation/billstatus.asp?DocNum=1169&GAID=12&GA=98&DocTypeID=SB&LegID=71291&SessionID=85
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

www.ilga.gov/legislation/billstatus.asp?DocNum=02992&GAID=12&GA=98&DocTypeID=HB&LegID=74842&SessionID=85
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 “watered down.”

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 this Act.
(d) The right of first refusal is terminated upon the termination of custody or visitation rights.".

Curiously, there is no Section 602.2. 

 


2011 Legislation

Senate Bill 1612 / PA 97-016 :
http://www.ilga.gov/legislation/billstatus.asp?DocNum=1612&GAID=11&GA=97&DocTypeID=SB&LegID=57559&SessionID=84

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 State.

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 simply unacceptable.

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 wrote:

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


Legislative Changes:

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 of Summons
PA 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 1, 2009.

§28-21(g) of the IWSA now provides in part:

A copy 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 Court.

It also contains changes to the law regarding what occurs in IV-D cases regarding the National Medical Support Notice.

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:

No person 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 Surrenders
PA 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
PA 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:

An order requiring maintenance 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
PA 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]
PA 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
See: http://www.state.il.us/court/SupremeCourt/Evidence/Evidence.asp
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

(b) Written 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 ***

(e)(1) An 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:

NOTICE: This 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 Rule 23(e)(1)

(g) Electronic 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.

Recent SCR 23 Written Orders

Supreme 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:

(f) Number 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.

(g) Special 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.”

 


2009 Legislation
PA 96-53 - Comprehensive Amendments to Leveling the Playing Field Amendments
SB 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)

SB 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 the payor.

 

HB 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.

PA 96-246 - Stalking No Contact Order Act

Status:  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:

"Stalking" 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 cause a
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:

"Harassment" 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

PA 96-246  Amendments to Cindy Bischof's Law
Status:  8/11/2009 Public Act . . . . . . . . . 96-0246
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.

 

PA 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.

(1) "Visitation" 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.)


2008 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

Family 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.

Domestic Violence (Cindy Bishof's Law) Allowing Use of GPS Devices - Public Act 95-773
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 law provides:

(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 of Corrections.

Status: 8/4/2008 Signed into Law.  Effective January 1, 2009

Children's 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
http://www.ilga.gov/legislation/95/HB/PDF/09500HB4956lv.pdf

Educational 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.  .


2007 Legislation:

SB0454

8/23/07: Public Act 95-374

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.


SB 1035 - Package Legislation -- See Separate Article of Gitlin Law Firm -- "They Booted My Car and Took My License".

10/23/07: Public Act 95-0685

Illinois Public Aid Code Amendments:

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 of 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 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. 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]

Administrative order 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 State.


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 the
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 7-702.

(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 Family Services.

Severance Pay: 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.


SB 68
Status - 9/11/07: Public Act 95-601.

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.

 


SB 452

Status: Public Act 95-0373

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.

 


Previous Significant Legislation

The 94th General Assembly: 

Grandparents' Visitation.

House 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 current law.)

(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 child.

(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.

PA 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.

Reimbursement of Health Insurance.  Public Act 94-923 has been law since June 26, 2006.

House 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 policy. 

Attorney's Fees - Removal of One Year Statute of Limitations re Independent Proceeding.

SB 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 foregoing period.

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 law.

As a reminder, the statute of limitations for a contract action is 10 years, pursuant to 735 ILCS 5/13-206:
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 to pay.


2006 QILDRO Legislation -- PA-94-657
 

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.

***

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. 


Re-Written GAL, AFC and Child Representative Statute / Family Law Counseling:  PA 94-640
 

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.

***

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.

***


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.

***

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.


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. GitlinIn 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.”


The Gitlin Law Firm, P.C., provides the above information as a continuing legal education to other lawyers.  A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice.

The Gitlin Law Firm
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098
815/338-9401

Last Updated:  May 25, 2013

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