New
Supreme Court Rules Re Family Law
Mandatory
CLE: Effective September 29, 2005, Illinois has become
a state with mandatory CLE. The two year initial reporting period
depends on your last name and ends either June 30, 2008 or June
30, 2009. Therefore, depending upon your name, the initial CLE
reporting requirements start June 30, 2006 with 20 hours during
these two years and then increasing. The reporting period therefore
starts July 1st of 2006 for lawyers whose last names start with
the letters A through M. The reporting starts July 1, 2007 for
lawyers whose last names start with the letters N through Z.
These rules have now
been newly amended. See: http://www.state.il.us/court/SupremeCourt/Rules/Amend/2005/MRAmend120605.htm
Small
Claims Ceiling Doubles -- to $10,000, effective January 1, 2006.
See: http://www.state.il.us/court/SupremeCourt/Rules/Amend/2005/MRAmend120605.htm
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." The
Supreme Court committee's three page summary of the rules highlights
some of these changes. To
see how the final rules differed from the September 2004 version
of the rules, click here.
ARTICLE
IX. CHILD CUSTODY PROCEEDINGS
PART
A. RULES OF GENERAL APPLICATION TO CHILD CUSTODY
PROCEEDINGS
Rule 900:
Purpose and Scope
Rule 901:
Expedited Hearings
Rule 902:
Pleadings
Rule 903.
Assignment and Coordination of Cases
Rule 904.
Case Management Conferences
Rule 905.
Mediation
Rule 906.
Attorney Qualifications and Education in
Child Custody and Visitation Matters
Rule 907.
Minimum Duties and Responsibilities of Attorneys
for Minor Children
Rule 908.
Judicial Training on Child Custody Issues
PART
B – CHILD CUSTODY PROCEEDINGS UNDER THE IMDMA AND THE
ILLINOIS PARENTAGE ACT OF 1984.
Rule 921.
General Provisions
Rule 922.
Time Limitations
Rule 923.
Case Management Conferences
Rule 924.
Parenting Education Requirement
ARTICLE
IX. CHILD CUSTODY PROCEEDINGS
PART A. RULES OF GENERAL APPLICATION TO CHILD CUSTODY
PROCEEDINGS
Rule
900. Purpose and Scope
(a) Purpose. Trial courts have a special responsibility
in cases involving the care and custody of children. When a child
is a ward of the court, the physical and emotional well-being of
the child is literally the business of the court. The purpose of
this article (Rules 900 et seq.) is to expedite cases affecting
the custody of a child, to ensure the coordination of custody matters
filed under different statutory Acts, and to focus child custody
proceedings on the best interests of the child, while protecting
the rights of other parties to the proceedings.
(b)(1) Definitions.
For the purposes of this article “child custody proceeding” means
an action affecting child custody or visitation. “Child” means a
person who has not attained the age of 18.
(b)(2) Part A. Scope.
Rules 900 through 920, except as stated therein, apply to all child
custody proceedings initiated under article II, III, or IV of the
Juvenile Court Act of 1987, the Illinois Marriage and Dissolution
of Marriage Act, the Uniform Child Custody Jurisdiction and Enforcement
Act, the Illinois Parentage Act of 1984, the Illinois Domestic Violence
Act of 1986 and article 112A of the Code of Criminal Procedure of
1963, and guardianship matters involving a minor under article XI
of the Probate Act of 1975.
(b)(3) Part B. Scope of Rules 921 through 940. Rules 921 through
940 apply to child custody proceedings initiated under the Illinois
Marriage and Dissolution of Marriage Act, and the Illinois Parentage
Act of 1984.
(b)(4) Part C. Scope of Rule 942. Rule 942 applies to child custody
proceedings under articles II, III, and IV of the Juvenile Court
Act of 1987.
(c) Applicability
of Other Rules. Applicable provisions of articles I and
II of these rules shall continue to apply in child custody proceedings
except as noted in this article.
Comment by
Gunnar J. Gitlin: I pointed out in my testimony
that the original rules used did not reference the Uniform Child
Custody Jurisdiction and Enforcement Act. The new rules do
reference the proper Act. It is important to note that the
rules define a child custody proceeding including custody proceedings
under the Illinois Domestic Violence Act.
Rule
901: (a) Expedited Hearings. Child custody proceedings
shall be scheduled and heard on an expedited basis. Hearings in
child custody proceedings shall be held in strict compliance with
applicable deadlines established by statute or by this article.
(b) Setting of Hearings. Hearings in child custody
proceedings shall be set for specific times. At each hearing, the
next hearing shall be scheduled and the parties shall be notified
of the date and time of the next hearing. Hearings rescheduled following
a continuance shall be set for the earliest possible date.
(c) Continuances. Parties, witnesses and counsel
shall be held accountable for attending hearings in child custody
proceedings. Continuances shall not be granted in child custody
proceedings except for good cause shown and may be granted if the
continuance is consistent with the health, safety and best interests
of the child. The party requesting the continuance and the reasons
for the continuance shall be documented in the record.
(d) In any child custody
proceeding taken under advisement by the trial court, the trial
judge shall render its decision as soon as possible but not later
than 60 days after the completion of the trial or hearing.
Rule
902. Pleadings
(a) Complaint or Petition. The initial complaint
or petition in a child custody proceeding shall state (1) whether
the child involved is the subject of any other child custody proceeding
pending before another division of the circuit court, or another
court or administrative body of Illinois or of any other state,
an Indian tribe, or a foreign country and (2) whether any order
affecting the custody or visitation of the child has been entered
by the circuit court or any of its divisions, or by another court
or administrative body of Illinois or of any other state, an Indian
tribe, or a foreign country.
If any child custody proceeding
is pending with respect to the child, or any order has been entered
with respect to the custody or visitation of the child, the initial
complaint or petition shall identify the tribunal involved and the
parties to the action.
(b) Verification of Initial Complaint or Petition.
The plaintiff or petitioner in a child custody proceeding shall
verify the pleadings required by paragraph (a) of this rule. If
the plaintiff or petitioner is a public agency, the verification
shall be on information and belief of the attorney filing the pleading
and shall state that reasonable efforts were made to obtain all
information relevant to the matters verified.
(c) Answer or Appearance. In a child custody proceeding
the defendant’s (or respondent’s) answer, if required, shall include
a verified disclosure of any relevant information known to the defendant
(or respondent) regarding any pending proceedings or orders described
in paragraph (a) of this rule. Any defendant or respondent who appears
but is not required to file an answer in the child custody matter
shall be questioned under oath by the court at the party’s first
appearance before the court regarding any proceedings or orders
described in paragraph (a) of this rule.
(d) Continuing Duty. The parties have a continuing
duty to disclose information relating to other pending child custody
proceedings or any existing orders affecting the custody or visitation
of the child, and shall immediately disclose to the court and the
other parties to the proceeding any such information obtained after
the initial pleadings, answer or appearance.
Comment by
Gunnar J. Gitlin Re Continuing Duty: In
my comment to the Illinois Supreme Court I regarding the continuing
duty, I quoted from the UCCJEA regarding the continuing duty states:
"d) Each party has a continuing duty to inform the court of
any proceeding in this or any other state that could affect the
current proceeding." I inquired, "Do we want this
sort of language to be both part of a SCR as well as in the UCCJEA?"
Committee Comments:
The official comments explain: "The purpose of Rule
902 is to ensure that the trial court is aware of all custody proceedings
and orders relating to the child who is before the court. The Special
Committee found that child custody and visitation may be the subject
of multiple proceedings and orders. Rule 902 addresses the problem
of multiple proceedings that may occur intrastate and intra-circuit.
Multiple proceedings may arise intra-circuit when parties file for
relief under different statutory provisions (e.g., an abuse case
and a simultaneous guardianship case)."
Rule
903. Assignment and Coordination of Cases
Whenever possible and appropriate, all child custody proceedings
relating to an individual child shall be conducted by a single judge.
Each judicial circuit shall adopt a rule or order providing for
assignment and coordination of child custody proceedings. Assignments
in child custody proceedings shall be in accordance with the circuit
rule or order then in force.
Committee Comments:
Rule 903 encourages the assignment of all custody proceedings concerning
a child to a single judge. The rule does not mandate consolidation
of child custody proceedings, because consolidation may be inadvisable
in certain cases. Moreover, in some counties mandatory consolidation
may be impracticable because of the arrangement of courtrooms and
facilities. Rule 903 encourages the consolidation of cases
by requiring that the judicial circuits adopt rules or orders concerning
the assignment and coordination of child custody proceedings, and
by providing that the assignment of child custody proceedings will
be in accordance with those rules
Rule
904. Case Management Conferences
In child custody proceedings other than cases under articles II,
III and IV of the Juvenile Court Act of 1987, and cases under the
Illinois Marriage and Dissolution of Marriage Act and the Illinois
Parentage Act of 1984 provided for under Part B of this article
(see Rule 923), an initial case management conference pursuant to
Rule 218 shall be held not later than 90 days after the
petition or complaint has been served upon the respondent.
If not previously resolved, the court shall address the appointment
of a guardian ad litem or counsel for the child and counsel for
any indigent party entitled to the assistance of appointed counsel
at the initial case management conference.
Comment by
Gunnar J. Gitlin: I testified against the
original version of this rule and the rule as adopted is in a slightly
modified form. The original rule had provided that the initial
case management conference was to be held within 60 days after the
filing of the compliant. I recommended the the rule be changed
to a longer time frame -- and one based upon the service -- not
the filing.
Rule
905. Mediation
(a) Each judicial circuit shall establish a program
to provide mediation for cases involving the custody of
a child or visitation issues (whether or not the parties
have been married). In addition to the minimum requirements set
forth in subparagraph (b)(2) of Rule 99, local circuit court rules
for mediation in child custody and visitation cases shall address:
(i) mandatory
training for mediators;
(ii) limitation
of the mediation program to child custody and visitation issues;
(iii) (unless otherwise
provided for in this article) standards to determine
which child custody and visitation issues should be referred to
mediation and the time for referral, and
(iv) excuse
from referral to mediation for good cause shown if the
court determines an impediment to mediation exists [effective
January 1, 2007].
The immunity and approval
requirements of subparagraph (b)(1) of Rule 99 shall apply to
mediation programs for child custody and visitation matters.
(b) Each judicial circuit
shall establish a program to provide mediation for dissolution
of marriage and paternity cases involving the custody of a child
or visitation issues (whether or not the parties have been
married). In addition to the minimum requirements set forth in subparagraph
(b)(2) of Rule 99, local circuit court rules for mediation in dissolution
of marriage and paternity cases shall address:
(i) mandatory expertise
requirements of a mediator;
(ii) mandatory training
for mediators;
(iii) limitation of
the mediation program to child custody and visitation issues;
and
(iv) referral of child
custody and visitation issues to mediation, pursuant to Rule 923(a)(3),
unless the parties are excused for good cause shown.
court determines an impediment to mediation exists
[effective January 1, 2007]. The fact that both parties
agree that they do not want the matter to be referred to mediation
does not constitute good cause shown.
The fact that both parties
agree that they do not want the matter to be referred to mediation
does not constitute good cause shown. The immunity and approval
requirements of subparagraph (b)(1) of Rule 99 shall apply to mediation
programs for child custody and visitation matters.
(c) In addition to meeting the requirements of Rule 905(a) and (b),
local circuit rules may also impose other requirements as deemed
necessary by the individual circuits.
Committee Comments:
The Committee believes mediation can be useful in nearly all contested
custody proceedings. Mediation can resolve a significant portion
of custody disputes and often
has a positive impact even when custody issues are not resolved.
The process of mediation focuses the parties’ attention on the needs
of the child and helps parties to be realistic in their expectations
regarding custody.
Many counties and judicial
circuits have had mandatory mediation programs in place in their
domestic relations courts for years. Cook County and DuPage County
have utilized mandatory mediation programs for more than a decade.
[Comment by Gunnar J. Gitlin -- McHenry County has had a mandatory
mediation program for nearly two decades.] To date, these
mandatory mediation programs have been implemented by the judicial
circuits under the auspices of Rule 99, Mediation Programs.
Rule 905 requires each
judicial circuit to establish a mediation program for child custody
proceedings. Local circuit court rules will address the specifics
of the mediation programs. The Cook County model for
mediation programs, which provides county-employed mediators at
no cost to the parties, may not be financially or administratively
feasible for every circuit. Alternatively, some circuits have required
approved mediators to mediate a certain number of reduced fee or
pro bono cases per year as identified by the court.
The individual judicial circuits may implement rules which are particularly
appropriate for them, including provisions specifying responsibility
for mediation costs.
Paragraph (a) applies
to cases involving custody or visitation issues, other than those
arising in dissolution of marriage and paternity cases. It requires
local circuit court rules to address mandatory training for mediators
and limits the mediation program to issues involving child custody
and visitation. Paragraph (a) also requires local circuit court
rules to set standards to use in determining which child custody
and visitation issues should be referred to mediation and also address
when the referral will be made for them, including provisions
specifying responsibility for mediation costs.
Paragraph (b) provides
for mediation of disputed custody and visitation issues in dissolution
of marriage and paternity cases, absent good cause shown.
The timing and manner of referral to mediation in dissolution of
marriage and paternity cases is provided for in Rule 923.
Parties may be excused
from referral under both paragraphs (a) and (b) if the court determines
an impediment to mediation exists. Such impediments may include
family violence, mental or cognitive impairment, alcohol abuse or
chemical dependency, or other circumstances which may render mediation
inappropriate or would unreasonably interfere with the mediation
process.
Comment by
Gunnar J. Gitlin: The original draft of
the rules had referred to "mandatory mediation.” This
phrase was not retained in the final version of the rules.
This change is is likely due to the fact that the mediation is not
mandatory but counties are free to determine which cases are ineligible
for mediation. The largest exception (and the one to which
there was significant testimony) was that of that of domestic violence.
Similarly, the phrase "mandatory referral” was also rejected
in the final version of the rules. Finally, note the use of
the word "should” under paragraph (a)(3). The original
version referred to those cases which "must” be referred to
mediation. The interesting new phrase added to the 2006 version
-- probably as a result of the concessions for the non-mandatory
nature of the program to all custody and visitation cases -- is
the phrase, "The fact that both parties agree that they do
not want the matter to be referred to mediation does not constitute
good cause shown.” This was new language -- which was then
removed in the amended legislation.
The amended language
[effective January 1, 2007] regarding impairment is consistent with
the testimony before the committee from the domestic violence community
emphasizing that the general provision for opting out for good cause
shown was not appropriate and that there should be language consistent
with the rules in counties such as McHenry County, Kane County,
etc., defining impairment, etc.
Rule
906. Attorney Qualifications and Education in Child Custody and
Visitation Matters
(a) Statement of Purpose. This rule is promulgated
to insure that counsel who are appointed by the court to participate
in child custody and visitation matters, as delineated in Rule 900(b)(2),
possess the ability, knowledge, and experience to do so in a competent
and professional manner. To this end, each circuit court of this
state shall develop a set of qualifications and educational
requirements for attorneys appointed by the court to represent children
in child custody cases and guardianship cases when custody or visitation
is an issue and shall further develop a plan for the procurement
of qualified attorneys in accordance with the plan.
(b) Submission of Qualifications and Plan. The
Chief Judge of a judicial circuit shall be responsible for the creation
of the qualifications and Plan and for submitting them to the
conference of Chief Judges for approval. The Chief Judges of two
or more contiguous judicial circuits may submit a Plan for the creation
of a single set of qualifications and Plan encompassing those judicial
circuits or encompassing contiguous counties within the circuits.
(c) Qualifications and Plan. The qualifications
shall provide that the attorney is licensed and in good standing
with the Illinois Supreme Court. Certification requirements may
address minimum experience requirements for attorneys appointed
by the court to represent minor children. In addition, the qualifications
may include one or all of the following which are recommended:
(1) Prior to appointment
the attorney shall have 10 hours in the two years prior
to the date the attorney qualifies for appointment in approved
continuing legal education courses in the following areas: child
development; roles of guardian ad litem and child representative;
ethics in child custody cases; relevant substantive state, federal,
and case law in custody and visitation matters; family dynamics,
including substance abuse, domestic abuse, and mental health issues.
(2) Periodic
continuing education in approved child related courses
shall be required to maintain qualification as an attorney eligible
to be appointed by the court in child custody and visitation cases.
(3) Requirements for
initial pro bono representation.
(4) Attorneys who work
for governmental agencies may meet the requirements of this rule
by attending appropriate in-house legal education classes.
(d) Conference
of Chief Judges Review and Approval. The Conference of
Chief Judges shall review and approve the Plan or may request that
the Chief Judge modify the submitted list of qualifications and
Plan. Upon approval, the Chief Judge of each circuit shall be responsible
for administering the program and insuring compliance. An attorney
approved to be appointed by the Court to participate in child custody
and visitation matters under a Plan approved in one county or judicial
circuit shall have reciprocity to participate in
child custody and visitation matters in other counties and judicial
circuits in Illinois.
Comment by Gunnar
J. Gitlin: It is odd that the Supreme Court
deleted the requirement that the lawyer appointed be insured since
this was a provision of the original rules.
Committee Comment:
The Special Committee is mindful that many judicial circuits will
find it very difficult to find funds to pay for the plans under
which counsel are appointed. Ideally, the State
would provide sufficient funding to reimburse the private attorneys
who are appointed by the court. In the absence of such funding,
the individual judicial circuits will need to be innovative in meeting
the financial requirements of the plans. In addition to requiring
the parties to pay for the appointed lawyer’s services, the local
rules could provide for the targeting of court filing fees. Voluntary
pro bono service is also strongly encouraged. (emphasis added.)
Rule
907. Minimum Duties and Responsibilities of Attorneys for
Minor Children
(a) Every child representative, attorney for a child and guardian
ad litem shall adhere to all ethical rules governing attorneys in
professional practice, be mindful of any conflicts in the representation
of children and take appropriate action to address such conflicts.
(b) Every child representative, attorney for a minor child and guardian
ad litem shall have the right to interview his or her client(s)
without any limitation or impediment. Upon appointment of a child
representative, attorney for the child or guardian ad litem, the
trial court shall enter an order to allow access to the child and
all relevant documents.
(c) As soon as practicable, the child representative, attorney for
the child or guardian ad litem shall interview the child, or if
the child is too young to be interviewed, the attorney should, at
a minimum, observe the child. The child representative, attorney
for the child or guardian ad litem shall also take whatever reasonable
steps are necessary to obtain all information pertaining to issues
affecting the child, including interviewing family members and others
possessing special knowledge of the child’s circumstances.
(d) The child representative, attorney for the child or guardian
ad litem shall take whatever reasonable steps are necessary to determine
what services the family needs to address the custody dispute, make
appropriate recommendations to the parties, and seek appropriate
relief in court, if required, in order to serve the best interest
of the child.
(e) The child representative, attorney for the child or guardian
ad litem shall determine whether a settlement of the custody dispute
can be achieved by agreement, and, to the extent feasible, shall
attempt to resolve such disputes by an agreement that serves the
best interest of the child.
Comment by
Gunnar J. Gitlin: Subsections (c) was changed
from immediately to "as soon as practicable" for obvious
reason. The original Supreme Court Rules had provide that
the individual appointed "shall take whatever steps necessary
to obtain all information pertaining to issues affecting the child.”
My written submission to the Supreme Court Rules Committee stated,
"This rule while well intentioned contains too much of a broadstroke
statement. One goal is the reducing cost of custody litigation
and obtaining “all information” in each case is simply not possible.”
The Supreme Court added the phrase "reasonable” steps.
Similarly, in section (d) the Supreme Court added the phrase that
the individual was to take whatever reasonable steps that were necessary.
In subsection (d)
I urged that, "[T]he role of the AFC is not a role that needs
to be consistent with the “best interest of the child.” Occasionally,
an AFC will be appointed because there is a perceived conflict between
the wishes of the child and the child’s best interest.” The
Supreme Court did not make a change to this portion of the Rules.
In my written report
to the Supreme Court Rule committee I pointed out:
We should be aware
that in August, 2003 the ABA adopted Standards of Practice for
Lawyers Representing Children in Custody Cases (Custody Standard).
37 Fam. L.Q. 129 (2003). These custody standards are based upon
the premise that a lawyer should act like a lawyer. The standards
allow for two alternative capacities in which a lawyer should
represent a child in a custody matter, i.e., child's attorney
or a best interest attorney (a term previously known as a Guardian
ad Litem). Illinois' role of the child's representative appears
at odds with the position taken by the American Bar Association
as to the proper role for a lawyer in such proceedings. It is
in part because I believe that the role of the child’s representative
may be at odds with the position of the ABA and have other problems
outlined above that I also recommend against promoting the appointment
of such an individual as a mandatory appointment should mediation
fail.
Committee Comment:
The Special Committee is aware that the American Bar Association
and the
National Conference of Commissioners on Uniform State Laws have
taken the position
that there should be three distinct types of appointments: (1) a
child’s attorney, who provides independent legal counsel in the
same manner as to an adult client; (2) a “best interest attorney,”
such as Illinois’ child representatives, who provide independent
legal services for the child’s best interests but who does not make
general “recommendations”; (3) a guardian ad litem, who gathers
information for the court and helps identify other needed services
for the child or family.
In its Standards of Practice for Attorneys Representing Children
in Custody Cases, the ABA recommended that attorneys not serve as
GALs unless they do so as would a non-lawyer. However, the Illinois
Marriage and Dissolution of Marriage Act mandates that GALs appointed
under the Act be attorneys and that they may actually act in loco
parentis for the child. See 750 ILCS 5/506. It is the position of
the Special Committee that none of these concerns require changes
in the language of Rule 907 or any other rule.
Rule
908. Judicial Training on Child Custody Issues
(a) Meeting the challenge of deciding child custody cases fairly
and expeditiously requires experience or training in a broad range
of matters including, but not limited to: (1) child development,
child psychology and family dynamics; (2) domestic violence issues;
(3) alternative dispute resolution strategies; (4) child sexual
abuse issues; (5) financial issues in custody matters; (6) addiction
and treatment issues; (7) statutory time limitations; and (8) cultural
and diversity issues.
(b) Judges should have experience or training in the matters described
in paragraph (a) of this rule before hearing child custody cases.
Before a judge is assigned to hear child custody cases, the Chief
Judge of the judicial circuit should consider the judge’s background
[judicial and legal experience], any prior training the judge
has completed and any training that may be available to the judge
before he or she will begin hearing child custody cases.
(c) Judges who, by specific assignment or otherwise, may be called
upon to hear child custody cases shall attend a seminar approved
by should participate in judicial education
opportunities available on these topics, such as attending those
sessions or portions of the Education Conference, presented bi-annually
at the direction of the Supreme Court concerning matters,
which address the topics described in paragraph (a) of this
rule or related issues at least once every two years. Judges
may meet this requirement by attending a seminar in person or by
completing approved. Judges may also
elect to participate in any other Judicial Conference Judicial Education
Seminars addressing these topics, participate in other judicial
education programs approved for the award of continuing judicial
education credit by the Supreme Court, complete individual training
through the Internet, computer training programs, video presentations,
or other meansrelevant programs. The Chief Judges of the
judicial circuits should make reasonable efforts to ensure that
judges have the opportunity to attend approved seminars to meet
their responsibilities under programs approved for the award of
continuing judicial education credit by the Supreme Court which
address the topics and issues described in paragraph (a) of
this rule.
Comment by
Gunnar J. Gitlin: The fact that the Supreme
Court immediately watered down the rule for continuing education
for judges before the rule even became effective is remarkable.
The rule went from mandatory education to permissive education while
there is mandatory education for all of the other professionals.
Interestingly, the Supreme Court made this change without comment.
This changes are made effective to July 1, 2006 while the
other rule changes were effective commencing January 1, 2007.
PART
B – CHILD CUSTODY PROCEEDINGS UNDER THE ILLINOIS
MARRIAGE AND DISSOLUTION OF MARRIAGE ACT AND THE
ILLINOIS PARENTAGE ACT OF 1984.
Rule
921. General Provisions
In addition to the rules in Part A of this article, the rules in
this Part B shall apply to child custody proceedings filed under
the Illinois Marriage and Dissolution of Marriage Act, and the Illinois
Parentage Act of 1984.
Rule
922. Time Limitations
All child custody proceedings under this rule in the trial court
shall be resolved within 18 months from the date
of service of the petition or complaint to final order. In the event
this time limit is not met, the trial court shall make written findings
as to the reason(s) for the delay. The 18-month time limit shall
not apply if the parties, including the attorney representing the
child, the guardian ad litem or the child representative, agree
in writing and the trial court makes a written finding that the
extension of time is for good cause shown. In the event the parties
do not agree, the court may consider whether an extension of time
should be allowed for good cause shown. All child custody
proceedings under this rule in the trial court shall be resolved
within 18 months from the date of service of the petition or complaint
to final order. In the event this time limit is not met,
the trial court shall make written findings as to the reason(s)
for the delay. The 18-month time limit shall not apply if the parties,
including the attorney representing the child, the guardian ad litem
or the child representative, agree in writing and the trial court
makes a written finding that the extension of time is for good cause
shown. In the event the parties do not agree, the court may consider
whether an extension of time should be allowed for good cause
shown. (emphasis added).
Comment by
Gunnar J. Gitlin: The time frame was again changed
from the date of service -- not the date of filing. The new
language in this rule provides, "All child custody proceedings
under this rule in the trial court shall be resolved within 18 months
from the date of service of the petition or complaint to final order,”
and continues until the end of the rule. It might be suggested
that the requirement that there be an 18 month time frame from service
to the date the case is resolved is not a provision for an 18 month
time frame for the case to be tried. Often custody cases will
be tried for several days and then continued -- extending the time
frame for resolution of these cases. Also, note that a case
is not resolved when tried because after trial. After the
close of proofs in a custody case, often a court will allow written
closing arguments. Often the petitioner will present written
closing followed by the respondent with the possible opportunity
for a reply by the petitioner. After written closing arguments
(if the court does not request oral argument), the case is usually
taken under advisement. Thereafter, the court has an expedited
time frame to render a decision. Most courts render a memorandum
of decision and a question could be presented as to whether the
memo of decision is the resolution of the case or whether a case
is resolved when the court enters a judgment or other order addressing
the custody issues.
An equally important
issue is whether the courts will essentially bifurcate custody and
other issues, thus hearing the custody issues first and then deferring
the remainder of the issues. Then the question is the interpretation
of the new Supreme Court Rules effecting appeals of custody cases
and whether recent case law in this regard is contrary to the provisions
for expedited interlocutory appeals in custody cases. See,
e.g., IRMO
Sproat, 830 N.E.2d 843, 357 Ill.App.3d 880, 294 Ill.Dec. 431
(2d Dist. 2005) holding that the provision of SCR 306A providing
expedited appeals of custody orders does not confer jurisdiction
on appellate court of custody order when other issues in dissolution
remain undecided.
I practice in
two of the busiest counties in the state, McHenry County and Lake
County. The question is how a custody case can be heard in
these counties within the above time frames and a secondary question
will be the impact of these rules on the time frame in which a trial
on other issues can be resolved.
Rule
923. Case Management Conferences
(a) Initial Conference. In a child custody proceeding
under this part, an initial case management conference pursuant
to Rule 218 shall be held not later than 90 days after service
of the petition or complaint is obtained. In addition to
other matters the court may choose to address, the initial
conference shall cover the following issues:
(1) Parenting Education. The parents shall show
proof of completion of an approved parenting
education program as required by Rule 924, provide a fixed schedule
for compliance, or show cause to excuse compliance;
(2) Custody and Parenting Plan. The parents shall
provide the court with an agreed order regarding custody and an
agreed parenting plan, if there is an
agreement;
(3) Mediation. If there is no agreement regarding
custody or a parenting plan or both, the court shall schedule
the matter for mediation in accordance with Rule 905(b) and shall
advise each parent of the responsibilities imposed upon them by
the pertinent local court rules.
(b) A full case
management conference shall be held not later than 30
days after mediation has been completed. In addition to
other matters the court may choose to address at the conference,
and if the court has not appointed counsel previously, the court
shall address whether to appoint an attorney for the child or a
guardian ad litem or a child representative in accordance with section
506 of the Illinois Marriage and Dissolution of Marriage Act (750
ILCS 5/506).
Comment by Gunnar
J. Gitlin: In my testimony before the Supreme
Court I was very critical of the proposed language in the rule which
had stated, "A full case management conference shall be held
not later than 30 days after mediation has been completed. In addition
to other matters the court may choose to address at the conference,
and if the court has not appointed counsel previously, the court
shall address the appointment of counsel for the child pursuant
to Rule 925 [now deleted].”
I referred to
the Chicago Tribune series critical of the effect of the appointment
of guardian ad litems or other attorneys in terms of the impact
of the cost of child custody proceedings. My recommendation
was to give the court greater flexibility as to appointing an evaluation
pursuant to Section 604(b) of the IMDMA in cases instead of appointing
a guardian ad litem (GAL), Attorney for the Child (AFC) or child's
representative (CR). The likely result of this rule change
is greater cost to cases in which custody appears to be at issue.
A simple fact is that 90 days after service, it is often impossible
to determine if custody may be at issue because often the non-filing
party is only beginning to come to the terms with the divorce process.
I also commented
at to this proposed rule, "In addition to the cost concern,
my concern is the apparent preference of the appointment of such
an individual (GAL, AFC or CR) as opposed to the appointment of
an expert pursuant to Section 604(b). Such an expert is generally
a psychologist. The advantage of the court’s appointment of a psychologist
is that even with the modicum of training as required by the proposed
Supreme Court Rules, it is inevitable that a custody evaluator will
have had much more training in child developmental issues.”
Here I was successful
in having different language included in the new rule. The
language of the new rule is more ambiguous when it states the court
"shall address whether to whether to appoint” a GAL, AFC or
CR. Clearly, this was designed to avoid the concern that I
raised that the appointment of such an individual appeared mandatory
with the previous version of the rules.
Committee Comment:
Paragraph (b) provides that in cases referred to mediation under
the rule, a full case management conference is required within 30
days after mediation is completed. At the full case management
conference, the court will consider, inter alia, the appointment
of counsel for the child as provided in section 506 of the Illinois
Marriage and Dissolution of Marriage Act (750 ILCS 5/506).
Rule
924. Parenting Education Requirement
(a) Program. Each circuit or county shall create
or approve a parenting education program consisting of at least
four hours covering the subjects of visitation and custody and their
impact on children.
(b) Mandatory Attendance. Except when excused by
the court for good cause shown, all parties shall be required to
attend and complete an approved parenting education program as
soon as possible, but not later than 60 days after
an initial case management conference. In the case of a
default or lack of jurisdiction over the respondent, only the petitioning
party is required to attend but if the respondent later enters an
appearance or participates in postjudgment proceedings, then the
party who has not attended the program shall attend. The court shall
not excuse attendance unless the reason is documented in the record
and a finding is made that excusing one or both parents from attendance
is in the best interests of the child.
(c) Sanctions.
The court may impose sanctions on any party willfully failing to
complete the program.
Comment by
Gunnar J. Gitlin: The final version eliminated
the phrase, "No final judgment shall be issued nor shall a
custody trial occur until the parties have attended an approved
parenting education program or have been excused from attendance
by the court.” It was likely believed that the provisions
for mandatory attendance should be sufficient since it required
the taking of the parenting education class not later than 60 days
after the initial case management conference.
Final Comment
by Gunnar J. Gitlin: Finally, I urged the elimination
of what had been SCR 925. It had provided, "In a case
where the court has referred the parties to mediation to resolve
their custody dispute and following the holding of a full case management
conference and the parties or their counsel have certified to the
court that the custody dispute remains unresolved, the court shall
appoint an attorney for the minor child or a guardian ad litem or
a child representative to represent the best interests of the child.”
I was very critical of this proposed
rule because of what had previously been the mandatory nature of
the appointment. I stated, "I would delete this proposed
rule. As is discussed above, the preference in these rules is for
the appointment of a CR, GAL or AFC rather than a custody evaluation.
My preference in light of the cost is for a custody evaluation.
The cost of a custody evaluation is generally between $3K and $4K.
It is only in relatively unusual cases where the cost of a GAL,
AFC, etc. is less than this amount. One reason is the billable hourly
rates with attorneys billing on average two or three times | 
