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Status Re 2004 Illinois Family Law Legislation / Rules

By: Gunnar J. Gitlin
The Gitlin Law Firm, Woodstock, Illinois    © 2004
//www.gitlinlawfirm.com

Last Updated: December 27, 2004

A summary of new legislation, proposed or enacted Supreme Court Rules and bills that have passed follows:

If you know of a new piece of Illinois family law legislation which should be known by Illinois divorce lawyers, please let me know. Key new law is the grandparent visitation legislation, below.  For the Illinois Family Support Enforcement's summary of currently proposed legislation, click here.  A summary of key bills now pending in or passed by the legislature is:


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2004: Grandparent Visitation:
 
  Status: Public Act 93-911.


Synopsis as Reconciled:  The legislation allows a "grandparent, great-grandparent, or sibling" to file a petition for visitation if there is an unreasonable denial of visitation and one of certain stated conditions exist.  The statute states it provides a rebuttable presumption that a fit parent's actions and decisions are not harmful to the child.  

(750 ILCS 5/607) Visitation.

(a-5)
(1) Except as otherwise provided in this subsection (a-5), any grandparent, great-grandparent, or sibling may file petition for visitation rights to a minor child if there is an unreasonable denial of visitation [by a parent] and at least one of the following conditions exists:

(A) one parent of the child is incompetent as a matter of law or deceased or has been sentenced to a period of imprisonment for more than 1 year;
(B) the child's mother and father are divorced or have been legally separated from each other during the 3 month period prior to the filing of the petition and at least one parent does not object to the grandparent, great-grandparent, or sibling having visitation with the child. The visitation of the grandparent, great-grandparent, or sibling must not diminish the visitation of the parent who is not related to the grandparent, great-grandparent, or sibling seeking visitation;
[Senate Amendment 1: Nothing in subsection (a-5) of this Section shall apply to a child in whose interests a petition under Section 2-13 of the Juvenile Court Act of 1987 is pending.]
(C) the court has terminated a parent-child relationship and the grandparent, great-grandparent, or sibling is the parent of the person whose parental rights have been terminated, except in cases of adoption. The visitation must not be used to allow the parent who lost parental rights to unlawfully visit with the child;
(D) the child resided in the home of the grandparent, great-grandparent, or sibling for a period of 6 consecutive months or more and the grandparent, great-grandparent, or sibling was the primary caregiver for the child within the 2 years prior to the filing of the petition;
(E) the child is illegitimate, the parents are not living together, and the petitioner is a maternal grandparent, great-grandparent, or sibling of the illegitimate child; or
(F) the child is illegitimate, the parents are not living together, the petitioner is a paternal grandparent, great-grandparent, or sibling, and the paternity has been established by a court of competent jurisdiction.


(2) The grandparent, great-grandparent, or sibling of a parent whose parental rights have been terminated through an adoption proceeding may not petition for visitation rights.

(3) In making a determination under this subsection (a-5), there is a rebuttable presumption that a fit parent's actions and decisions regarding grandparent, great-grandparent, or sibling visitation are not harmful to the child's mental, physical, or emotional health. The burden is on the party filing a petition under this Section to prove that the parent's actions and decisions regarding visitation times are harmful to the child's mental, physical, or emotional health.

(4) In determining whether to grant visitation, the court shall consider the following:

(A) the preference of the child if the child is determined to be of sufficient maturity to express a preference;
(B) the mental and physical health of the child;
(C) the mental and physical health of the grandparent, great-grandparent, or sibling;
(D) the length and quality of the prior relationship between the child and the grandparent, great-grandparent, or sibling;
(E) the good faith of the party in filing the petition;
(F) the good faith of the person denying visitation;
(G) the quantity of the visitation time requested and the potential adverse impact that visitation would have on the child's customary activities;
(H) whether the child resided with the petitioner for at least 6 consecutive months with or without the current custodian present;
(I) whether the petitioner had frequent or regular contact with the child for at least 12 consecutive months; and
(J) any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to harm the child's mental, physical, or emotional health.

(5) The court may order visitation rights for the grandparent, great-grandparent, or sibling that include reasonable access without requiring overnight or possessory visitation.

(a-7)
(1) Unless by stipulation of the parties, no motion to modify a grandparent, great-grandparent, or sibling visitation order may be made earlier than 2 years after the date the order was filed, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously the child's mental, physical, or emotional health.

(2) The court shall not modify a prior grandparent, great-grandparent, or sibling visitation order 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 entry of the prior visitation, that a change has occurred in the circumstances of the child or his or her custodian, and that the modification is necessary to protect the mental, physical, or emotional health of the child. The court shall state in its decision specific findings of fact in support of its modification or termination of the grandparent, great-grandparent, or sibling visitation.

(3) Attorney fees and costs shall be assessed against a party seeking modification of the visitation order if the court finds that the modification action is vexatious and constitutes harassment.

(4) Notice under this subsection (a-7) shall be given as provided in subsections (c) and (d) of Section 601



 

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2004:   Grandparent Custody - HB 1020:
 
  Status: Public Act 93-1026.


Synopsis:  This legislation amends Section 601 of the IMDMA which provides for standing for petitions for custody.  It allows a grandparent to seek custody of a grandchild when one parent, who must have been the child or the stepchild of the grandparent, is decreased.  Effective January 1, 2005, Section (4) provides:

(4) When one of the parents is deceased, by a grandparent who is a parent or stepparent of a deceased parent, by filing a petition, if one or more of the following existed at the time of the parent's death:


(A) the surviving parent had been absent from the marital abode for more than one month without the deceased spouse knowing his or her whereabouts;
(B) the surviving parent was in State or federal custody; or
(C) the surviving parent had: (i) received supervision for or been convicted of any violation of Article 12 of the Criminal Code of 1961 directed towards the deceased parent or the child; or (ii) received supervision or been convicted of violating an order of protection entered under Section 217, 218, or 219 of the Illinois Domestic Violence Act of 1986 for the protection of the deceased parent or the child.



 

Agencies Ability to Access Tax Returns -- Public Act 93-835  
  Status: Was HB 4076.  July 29, 2004.

Amends 35 ILCS 5/917 of the Illinois Income Tax Act providing that public agencies enrolled in support enforcement (the IDPA, Attorney General and state's attorney) may obtain information from tax returns that would otherwise be confidential to assist with collection efforts.



 

Gestational Surrogacy Act -- HB 4962 -- Public Act 93-921
  Status: Public Act.  August 12, 4004.  

750 ILCS 45/2.5.  Creates the Gestational Surrogacy Act. Provides guidelines for creating surrogacy contracts. Establishes the eligibility requirements for becoming a surrogate. Amends the Illinois Parentage Act of 1984. Changes the Section concerning the establishment of the parent and child relationship to include the provisions outlined in the Gestational Surrogacy Act.  House Amendment 1:  Deletes the definition of "informed consent." Removes references to informed consent. Provides, in the requirements of the surrogacy contract, that each of the gestational surrogate and the intended parent or parents shall have signed a written acknowledgement that he or she received information about the legal, financial, and contractual rights, expectations, penalties, and obligations of the surrogacy agreement. See Illinois Bar Journal June 2004 for a further discussion.



 

Expedited Appeals in Custody Cases -- Supreme Court Rule 306A
  Status: New Supreme Court Rule -- effective July 1, 2004.  

It provides:  " The expedited procedures in this rule shall apply in the following child custody cases: (1) initial final child custody orders, (2) orders modifying child custody where a change of custody has been granted, (3) final orders of adoption and (4) final orders terminating parental rights. If the appeal is taken from a judgment or order affecting other matters, such as support, property issues or decisions affecting the rights of persons other than the child, the reviewing court may handle all pending issues using the expedited procedures in this rule, unless doing so will delay decision on the child custody appeal. In any other child custody cases in which the best interests of the child is involved including orders of visitation, guardianship standing to pursue custody and interim orders of custody, a party may file a petition in accordance with the rules seeking leave to appeal. Upon granting of the petition by the appellate court, all said proceedings shall be subject to procedures set forth in this rule.  The rule eliminates visitation and adds adoption as cases subject to expedited appeals.  A new provision will also state, "Requests for continuance are disfavored and shall be granted only for compelling circumstances. The appellate court may require personal appearance by the attorney or party requesting the continuance as provided by local rule." A good discussion of this Rule is in the Illinois Bar Journal, May 2004.



 

Child Support -- Extension of Withholding Orders Due to Unpaid Arrearage After Majority Age Reached -- SB 2690
  Status: August 6, 2004.   Governor's Amendatory Veto ( Recommends that the bill's effective date be changed from July 1, 2004 to January 1, 2005.)


Amends the IDPA, IDMDA, NSPA, IWSA and IPA of 1984.  Provides that if there is an unpaid arrearage or delinquency equal to at least one month's support obligation on the termination date stated in the order for support or, if there is no termination date stated in the order, on the date the child attains the age of majority or is otherwise emancipated, then the periodic amount required to be paid for current support of that child immediately prior to that date shall automatically continue to be an obligation, not as current support but as periodic payment toward satisfaction of the unpaid arrearage or delinquency. Provides that the periodic payment shall be in addition to any periodic payment previously required for satisfaction of the arrearage or delinquency. Provides that each order for support entered or modified on or after the effective date of this amendatory Act must contain a statement notifying the parties of these requirements. Makes other changes. Effective without amendatory veto:  July 1, 2004.



 

Child Support -- Obligors Without Withholding Orders and Debit Authorization -- HB 4310
  Status: Public Act 93-736. July 14, 2004.

As amended, amends the Illinois Banking Act, the Illinois Savings and Loan Act of 1985, the Savings Bank Act, the Illinois Credit Union Act, the Foreign Banking Office Act, the Illinois Public Aid Code. Directs the Department of Public Aid to adopt a child support enforcement debit authorization form and notify banks and other financial institutions that it has done so. Provides that banks and other financial institutions must implement use of the child support enforcement debit authorization form within 90 days after the Department of Public Aid gives notice that it has adopted the form.  Provides that if an obligor does not have an employer and has been ordered to make periodic payments of child support to the State Disbursement Unit, the obligor may (changed from "must") authorize a bank or other financial institution at which the obligor maintains an account to debit his or her account periodically in an amount equal to the amount of child support required to be paid, using the form adopted by the Department of Public Aid. Amendment changes and adds definitions of terms used in connection with child support enforcement debit authorization; provides that the signing and issuance of a child support enforcement debit authorization form does not relieve an obligor from responsibility for compliance with any other requirement under an order for support; and sets forth circumstances under which a financial institution is obligated to debit the account of an obligor pursuant to a child support enforcement debit authorization form. Effective immediately.



 

New Judicial Districts -- Public Act 93-541
  Status: New Law.  New judicial subcircuits were created for Lake, McHenry and Will counties "on or before" February 1, 2004.  The new judicial circuit for McHenry County (the 22nd) will be created on or after December 4, 2006 which separates it (us) from Lake County (the 19th).  McHenry County will be divided into three sub-circuits, Lake County will be divided into six subcircuits and Will County (the 12th Circuit) will be divided into five subcircuits.  This legislation generally has an immediately effective date.

 


 

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Parentage Injunction Act as to Removal — HB 1382
Public Act 93-139:
 
  Status: New Law.  Effective July 10, 2003


The legislation adds a new provision, Section 13.5 for the Illinois Parentage Act.  It states:

Text:  Sec. 13.5. Injunctive relief.

(a) In any action brought under this Act for the initial determination of custody or visitation of a child or for modification of a prior custody or visitation order, the court, upon application of any party, may enjoin a party having physical possession or custody of a child from temporarily or permanently removing the child from Illinois pending the adjudication of the issues of custody and visitation. When deciding whether to enjoin removal of a child, the Court shall consider the following factors including, but not limited to:

(1) the extent of previous involvement with the child by the party seeking to enjoin removal;
(2) the likelihood that parentage will be established; and
(3) the impact on the financial, physical, and emotional health of the party being enjoined from removing the child.
(b) Injunctive relief under this Act shall be governed by the relevant provisions of the Code of Civil Procedure.

(c) Notwithstanding the provisions of subsection (a), the court may decline to enjoin a domestic violence victim having physical possession or custody of a child from temporarily or permanently removing the child from Illinois pending the adjudication of the issues of custody and visitation. In determining whether a person is a domestic violence victim, the court shall consider the following factors: (1) a sworn statement by the person that the person has good reason to believe that he or she is the victim of domestic violence or stalking; (2) a sworn statement that the person fears for his or her safety or the safety of his or her children; (3) evidence from police, court or other government agency records or files; (4) documentation from a domestic violence program if the person is alleged to be a victim of domestic violence; (5) documentation from a legal, clerical, medical, or other professional from whom the person has sought assistance in dealing with the alleged domestic violence; and (6) any other evidence that supports the sworn statements, such as a statement from any other individual with knowledge of the circumstances that provides the basis for the claim, or physical evidence of the act or acts of domestic violence.  Emphasis added.




The other critical provision is the additional language in Section 14 of the Illinois Parentage Act (Judgments).  It states that, "In determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the IMDMA, including Section 609."  Finally, the IPA amends Section 16 (Modifications).  It provides that, "the court has continuing jurisdiction to modify an order for ... removal included in a judgment entered under this Act.  Any ... removal judgment modification shall be in accordance with the relevant factors provided in the "IMDMA" including Section 609."

Discussion:  I believe the legislation might not contain what might be called an "automatic" injunction similar to the language in Section 609 of the IMDMA. Otherwise, why would the legislature have added the provisions for injunctive proceedings and the fact that the court has to apply the "relevant provisions of the Code of Civil Procedure" to the injunctive proceeding to bar removal. Thus, to bar removal pending a petition, etc., you have to show a clearly ascertainable right in need of protection, irreparable injury, no adequate remedy at law, and a likelihood of success on the merits. The lack of adequate remedy at law can be assumed but we are still left with the key provisions of an irreparable injury and a likelihood of success on the merits in the petition for injunction which would also consider as the factors the named ones, i.e.: the extent of the previous involvement with the child by the party seeking to enjoin removal; the likelihood that parentage will be established; and the impact on the party being enjoined from removing the child.

Thus, an argument can be made that the legislation would not have provided for detailed language as to injunctive proceedings if it intended for a party to be automatically enjoined. The argument is that you don't assume that the legislature intended surplusage. You assume the legislation intended to add the injunctive language for a reason.  Then the question is what reason could the legislature have had for adding the injunctive language into the legislation. It is possible the legislation was intended to apply to the situation where parentage has not yet been established -- so that the father is only the putative father, seeking first an injunction and next seeking parentage and visitation.  However, if this were the intent of the statute, why didn't the statute limit itself and just state that it applied in this situation only.  Instead, it applies, "In any action brought under this Act for the initial determination of custody or visitation of a child or for modification of a prior custody or visitation order."


The argument that can be made that a party must seek removal in parentage cases is the language of the statute which provides, "In determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the IMDMA, including Section 609."

Section 609(a) states:

The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.

The argument would be that the injunctive proceeding was intended to apply to the situation prior to the hearing on the removal petition, i.e., pre-removal judgment injunction. This is because the statute states that the injunction can be entered (temporary or permanent), "pending the adjudication of the issues of custody and visitation."


On the other hand, it is noteworthy that the legislation could have provided that once a judgment for parentage is entered, the parent awarded custody would be prohibited from removing the children pursuant to Section 609 of the IMDMA. The legislation did not provide this. Instead, it provides that if the court determines removal, it determines it based upon the Section 609 standards. The question is when does the court consider removal? Does the court only consider it following a petition for injunction or does the person seeking to remove the child have to apply for removal? I believe these questions were not answered with certainty in the legislation.


 



 

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Reviewing, Modifying or Terminating Maintenance – Senate Bill 363:

Public Act 93-353

 
  Status:  Signed into law on July 24, 2003.

Text:  Section 510 of the IMDMA adds a new provision, Section (a-5) which now will read:


(a-5) An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.  In all such proceedings, as well as in proceedings in which maintenance is being reviewed, the court shall consider the applicable factors set forth in subsection (a) of Section 504 and the following factors:

(1) any change in the employment status of either party and whether the change has been made in good faith;

(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;

(3) any impairment of the present and future earning capacity of either party;

(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;

(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;

(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;

(7) the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought;

(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and

(9) any other factor that the court expressly finds to be just and equitable.



 

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UCCJEA · HB1157:

Public Act 1157



 
  Status: New law effective on the date indicated below.  

Synopsis:  Illinois now joins the majority of states which have enacted the Uniform Child-Custody Jurisdiction and Enforcement Act.  It repeals the UCCJA.  First, it reconciles UCCJA principles with the PKPA, providing primacy to "home state jurisdiction."  In doing so it also provides for continuing exclusive jurisdiction in the original forum state.  Second, it adds interstate civil enforcement for child custody orders. The UCCJEA amends many Acts including the Illinois Public Aid Code, the Intergovernmental Missing Child Recovery Act of 1984, the Criminal Code of 1961, the Code of Criminal Procedure of 1963, the Illinois Marriage and Dissolution of Marriage Act, and the Illinois Domestic Violence Act of 1986 by making changes to conform to the creation of the new Act and the repeal of the old Act. Effective January 1, 2004.



 

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Increase in Guidelines to 28% for Two Children · HB 2863:

 
  Status: Public Act 93-148.  Effective June 10, 2003.

Synopsis:  Amends the Illinois Marriage and Dissolution of Marriage Act. Raises the minimum amount support percentage of the supporting party's net income to 28% for 2 children (from 25%). Effective immediately.



 

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Amendments to UIFSA · SB 922:
 
  Status: Public Act 93-479.  August 8, 2003.  It has an effective date of January 1, 2004 but has a delayed "operative date."  

Synopsis: For a summary of the UIFSA, please see my outline under the articles by The Gitlin Law Firm.  This is legislation which essentially tinkers with the UIFSA.   Illinois is one of the early adopters of this legislation.  The legislative service's summary states:  "Amends the Uniform Interstate Family Support Act. Makes numerous changes recommended by the National Conference of Commissioners on Uniform State Laws. The changes include those concerning the following: personal jurisdiction over an individual; jurisdiction to modify or enforce a child support order; duties of a child support enforcement agency; nondisclosure of information; issuance of a temporary child support order; registration of orders for enforcement; modification of a child support order of another state; and jurisdiction to modify a child support order of a foreign country or political subdivision. Provides that the amendatory Act becomes operative upon at least one of the following 2 events taking place, whichever occurs first, but in no event prior to July 1, 2004: (1) the amendment by Congress of subdivision (f) of 42 U.S.C. Sec. 666 to statutorily require or authorize, in connection with the approval of state plans for purposes of federal funding, the adoption of the Uniform Interstate Family Support Act as promulgated by the National Conference of Commissioners on Uniform State Laws in 2001; or (2) the approval, either generally or with specific application to Illinois, by the federal office of Child Support Enforcement or by the Secretary of Health and Human Services, of a waiver, exemption, finding, or other indicia of regulatory approval of the Uniform Interstate Family Support Act, as promulgated by the National Conference of Commissioners on Uniform State Laws in 2001, in connection with the approval of state plans for purposes of federal funding."




 

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Support Enforcement Amendments · HB 16:

 
  Status: Public Act 93-116  Effective date July 10, 2003.  This Public Act creates a new provision of the IMDMA -- Section 714.  It also creates the same new provision of the Non-Support Punishment Act and the Illinois Parentage Act.  It provides:  

Text:  

Sec. 714. Information to locate putative fathers and noncustodial parents.
(a) Upon request by a public office, employers, labor unions, and telephone companies shall provide location information concerning putative fathers and noncustodial parents for the purpose of establishing a child's paternity or establishing, enforcing, or modifying a child support obligation. The term "public office" is defined as set forth in the Income Withholding for Support Act. In this Section, "location information" means information about (i) the physical whereabouts of a putative father or noncustodial parent, (ii) the employer of the putative father or noncustodial parent, or (iii) the salary, wages, and other compensation paid and the health insurance coverage provided to the putative father or noncustodial parent by the employer of the putative father or noncustodial parent or by a labor union of which the putative father or noncustodial parent is a member. An employer, labor union, or telephone company shall respond to the request of the public office within 15 days after receiving the request. Any employer, labor union, or telephone company that willfully fails to fully respond within the 15-day period shall be subject to a penalty of $100 for each day that the response is not provided to the public office after the 15-day period has expired. The penalty may be collected in a civil action, which may be brought against the employer, labor union, or telephone company in favor of the public office.  
(b) Upon being served with a subpoena (including an administrative subpoena as authorized by law), a utility company or cable television company must provide location information to a public office for the purpose of establishing a child's paternity or establishing, enforcing, or modifying a child support obligation.
(c) Notwithstanding the provisions of any other State or local law to the contrary, an employer, labor union, telephone company, utility company, or cable television company shall not be liable to any person for disclosure of location information under the requirements of this Section, except for willful and wanton misconduct.

 



 

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$100 Per Day Penalties for Failure to Withhold Income · Originally HB 2523:

Version Passed - SB1503 / Public Act 93-294

 
  Status:  Public Act as of 7/22/03.  Effective date January 1, 2004.

Background and Synopsis:  This is legislation I drafted (see the discussion about this law at my seminar as part of my presentation to IICLE in January 2003).  It passed the House by a vote of 114 -2-1.  The law amends the Income Withholding for Support Act.  It requires a payor who has been served with an income withholding notice to withhold the specified amount from an obligee's wages (instead of merely requiring a payor to merely payor over amounts already withheld). It provides that if the payor fails to withhold from the payor's wages or pay over amounts withheld, the payor shall pay a penalty of $100 per day, for each day after the 7 business days grace period has expired, the amount not paid to the State Disbursement Unit.

Text:  The legislation provides:

(750 ILCS 28/35) Sec. 35. Duties of payor (a) It shall be the duty of any payor who has been served with an income withholding notice to deduct and pay over income as provided in this Section. The payor shall deduct the amount designated in the income withholding notice, as supplemented by any notice provided pursuant to subsection (f) of Section 45, beginning no later than the next payment of income which is payable or creditable to the obligor that occurs 14 days following the date the income withholding notice was mailed, sent by facsimile or other electronic means, or placed for personal delivery to or service on the payor. The payor may combine all amounts withheld for the benefit of an obligee or public office into a single payment and transmit the payment with a listing of obligors from whom withholding has been effected. The payor shall pay the amount withheld to the State Disbursement Unit within 7 business days after the date the amount would (but for the duty to withhold income) have been paid or credited to the obligor. If the payor knowingly fails to withhold the amount designated in the income withholding notice or to pay any amount withheld to the State Disbursement Unit within 7 business days after the date the amount would have been paid or credited to the obligor, then the payor shall pay a penalty of $100 for each day that the withheld amount designated in the income withholding notice (whether or not withheld by the payor) is not paid to the State Disbursement Unit after the period of 7 business days has expired. The failure of a payor, on more than one occasion, to pay amounts withheld to the State Disbursement Unit within 7 business days after the date the amount would have been paid or credited to the obligor creates a presumption that the payor knowingly failed to pay over the amounts. This penalty may be collected in a civil action which may be brought against the payor in favor of the obligee or public office. A finding of a payor's nonperformance within the time required under this Act must be documented by a certified mail return receipt showing the date the income withholding notice was served on the payor. For purposes of this Act, a withheld amount shall be considered paid by a payor on the date it is mailed by the payor, or on the date an electronic funds transfer of the amount has been initiated by the payor, or on the date delivery of the amount has been initiated by the payor. For each deduction, the payor shall provide the State Disbursement Unit, at the time of transmittal, with the date the amount would (but for the duty to withhold income) have been paid or credited to the obligor.

Language which I had included in my draft legislation had stated:  "Payment of a penalty of $100 per day is mandatory unless the payor demonstrates the payor's compelling cause or justification for the payor's failure to withhold or the payor's failure to pay over withheld amounts to the State Disbursement Unit."  While I believe that my language had a more appropriate standard, my goal had been to put "teeth" into the legislation.  The legislation as now amended is a vast improvement over the previous law.



 


Illinois Uniform Mediation Act - HB 2146:

710 ILCS 35/

 
  Status:  Public Act as of 7/31/03 and an effective date of January 1, 2004.

Synopsis:  This uniform act provides that it applies to mediation where the "parties are required to mediate by statute or court or administrative agency rule or referred to mediation by a court."  The Uniform Act codifies the provisions in many local mediation rules and provides that, "mediation communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 5."  The rules provide that, "A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant."  It also provides, "Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation."  There are very few exceptions such as a threat to inflict bodily injury or commit a crime of violence.  The rules also regulate conflicts of interests for mediators.



 


"An Act Concerning Confidential Intermediaries" -- Public Act 93-189:
 
  Status: New Law, Effective January 1, 2004

Synopsis:  This law provides that any adopted person 21 years of age or older, any any adoptive parent of an adopted person under age 21 or any birth parent of an adopted person who is older than age 21 may petition a court in any county within Illinois for appointment of a confidential intermediary.  The purpose is:

exchanging medical information with one or more mutually consenting biological relatives,
obtaining identifying information about one or more mutually consenting biological relatives, or
arranging contact with one or more mutually consenting biological relatives.
The standard for the court to grant the petition is only that, "disclosure is of greater benefit than nondisclosure."  However, the statute provides that the Confidential Intermediary must conduct a search and and first determine if there is no Denial of Information Exchange on file with the Illinois Adoption Registry.  If such a document has been filed, then the intermediary reports this fact, and the intermediary's job is terminated.  There are also provisions for sanctions for inappropriate disclosures.



 

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ISBA -- Custody Law Proposal:
 
  Status:  The ISBA is currently seeking comments upon the custody law proposal from ISBA members at its web-site.  See:  //www.isba.org/legislative/custodyproposal/  For a further discussion of this see, Illinois Bar Journal, April 2004, Vol 92, p. 170-171.

Synopsis:  The ISBA states, "For the third time in recent years, the ISBA Family Law Section Council has proposed a far-reaching improvement in the practice of domestic relations."  It promotes the draft legislation as being "kidcentric."  To see the custody law proposal, itself, in pdf format, click here.



 

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Supreme Court Reviews Rules Including Proposed Rules in All Custody Cases:
 
  Status:  The Illinois Supreme Court conducted a public hearing on September 10, 2004, at 10:00 a.m. at 160 N. LaSalle Street, Room C-500, Chicago.  Gunnar J. Gitlin testified at that hearing.  The proposed amendments are:

00-13 (PR 98)  Amends Rule 237 (Compelling Appearance of Witnesses at Trial);

4-01 (PR 114)  Amends Rule 23.

4-10 (PR 117)  Proposal 1 from the ISBA -- Creates new Rule of Professional Conduct 1.17 and amends Rules of Professional Conduct 5.4, 5.6 and 7.2.  Proposal 2 from ABA -- Model Rule of Professional Conduct 1.17

4-11 (PR 118)  Amends Rule 604(a); and

4-16 (PR 129)  Creates New Rules 900-908, 921-925, 941 and 942.  This was "offered by the Supreme Court Committee on Child Custody Issues."  It would create an Article IX to the rules.  The preamble states:

Rule 900. Purpose and Scope. (New)
(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 through 990) 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.

It then would have definitions:

(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 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.

The General Rules at 901 would provide:

Rule 901. General Rules. (New)
(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 shall be granted only 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, including the factual findings supporting the court's determination that the continuance is in the best interests of
the child.
(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.




There is then a new pleading rule stating:

Rule 902. Pleadings. (New)
(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 5
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.

There is then a poorly drafted rule which would provide:

Part A. Rules of General Application to Child Custody Proceedings.
Rule 904. Case Management Conferences. (New)
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 60 days after the filing of the petition or complaint.
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.

Because of the cost of a GAL or attorney of the child, etc., the Supreme Court should not dictate that the court "address the appointment."  Moreover, the rule neglects even mentioning the child's attorney, etc.  

 

These new rules are too lengthy to specifically incorporate. Briefly, there would be new rules mandating mediation in custody cases state-wide (limited to custody and visitation issues).  There would be new rules provided for:

Uniform minimum standards for mediation in divorce cases (Rule 905)
Minimum qualification and education standards for attorney's appointed by the court to represent children in custody proceedings (rule 906);
Minimum duties and responsibilities of attorneys for minor children (Rule 907);
Judicial training on custody Issues (Rule 908);  
Time limitations in custody proceedings -- providing that generally these issues must be resolved within 18 months. (Rule 922);
Mandatory case management conferences with the initial conference addressing parenting education, custody and parenting plan and mediation.  There is a requirement for a "full case management conference" not later than 30 days after mediation is completed.  (Rule 923);
Mandatory parenting education program (Rule 924);
Mandatory appointment of child's representatives, AFC or GAL after mediation (perhaps one of the poorest thought out proposals which is Rule 925);        
Every Illinois family lawyer should be aware of the potential impact of these proposed Supreme Court Rules in custody cases.
 



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Woodstock, IL 60098
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[whippertizzy]

Thanks alot!  I appreciate it. Sorry it took me so long to get here, but I have been a little busy with the new baby. I will make a copy of it for my mother in law right away.

[MYSONSDAD]

Let me know how you make out. Depending on my trial, my parents might be taking some steps of their own...

Good Luck!

"Children learn what they live"