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Child-Related Considerations in Family Law

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Child-Related Considerations in Family Law

Are you involved in a family law case involving children? Child-related issues in family law provide an additional layer of complexity in a case, and their best interests are at the forefront. In this presentation on the topic of child-related considerations in family law, we will explore topics involving establishing parentage, allocation of parental responsibility or custody, parenting time or visitation, and child support. We also explore how children are represented and have their voices heard in family law matters. Participants in this course will gain a general understanding of how a family law case involving children proceeds.

Transcript

- Hello, my name is Colleen Breems. I'm an attorney from Lavelle Law, which is a full service law firm based in Schaumburg, Illinois, and Chicago, Illinois. There, I'm on our litigation team focusing mainly on family law. It's my absolute pleasure to be here with you today, and thank you to Quimbee for allowing me to speak and put on, what I hope, is a really interesting and informative CLE when it comes to child-related considerations in family law matters. So a little bit more about me. As I mentioned, my name is Colleen at Lavelle Law. I'm a senior associate. There, I'm on our litigation team focusing mainly on family law. I would say that's about 95% of my practice. And I practice exclusively in Illinois, primarily in Cook County, but I hope that some of the information I'm able to impart upon you today is useful to you wherever it is that you're practicing, and that there's some useful takeaways when it comes to your family law matters that have child-related considerations as part of it. So for those who are not familiar, I did wanna give a quick rundown on what I mean when I say family law. Family law is an umbrella in litigation that has several different components. One is the idea of uncontested divorce. That's a situation where a couple is able to be amicable in their divorce, such that they can sit down, come up with terms that make sense for them when it comes to how they wanna see their marital state divided, and if they have children, how they want to co-parent together. There, as an attorney, it's for me to take those wishes, draft them into legal documents, and enter a judgment for divorce for them with the court that takes those terms and make them legally binding. The other side of that is contested divorce. All that means is that this particular couple is disagreeing about at least one issue in their divorce, such that the court needs to make decisions for them on that issue or multiple issues. So that can include issues that have to do with the marital states or co-parenting, such as how to divide retirement accounts, what kind of parenting time schedules these folks should have, whether any support should be payable by ones, the other, and the like. Another part of family laws, the idea of legal separation. In Illinois, that's a lesser common remedy that we see, but it's available in a narrow set of circumstances for couples who want to remain married but are living separately and want to have a judgment in place that governs for how they will be divided financially during this time. It can also make allowances for support to be payable during the period of legal separation, and can also ensure that there's going to be a continuation of say, health insurance, if that's needed. The next is something that we're gonna be touching on a lot here, which is the idea of parentage. Here, that this is a broad term for cases that involve children. And specifically, in this instance, very often, it could be families where the parents are not married, but they have a child together, and then they break up, and then they need the court to step in and help them, and sometimes, even make decisions for them about how they will be co-parenting moving forward. One of the parts of parentage is the idea of what we call an Illinois Parental Responsibility. Formerly, in Illinois, known as custody, and that may be the more common term to you, depending on which state you're in. I find that often, this is a bit of a misnomer for some folks. Lots of times, when people talk to me about the idea of custody, they seem to think it means who has physical possession of a child. And while that may be really what custody or parental responsibility is meant to describe is decision-making for a child. So here, we could see sole or joint custody, or at least here in Illinois, sole or shared allocation of parental responsibility. It means the same thing. And really, it means how this couple is going to make decisions for their children, whether they're going to be working together to make decisions for major issues for a child, such as educational, medical, extracurricular, and religious issues. Are they able and willing to make those decisions together, or are they unable to? Whether that's in issues with communication between the two of them or even some safety issues, such that one parent actually needs to be making those decisions solely for the sake of a child. Another part of family law here in Illinois, we call them orders of protection. This is a remedy that's available for people who have been victims of domestic violence in a relationship that's protected under the Domestic Violence Act here in Illinois. Really, this is a remedy that's available for people that have some sort of defined relationship with the person that they have been abused from. Lots of times, that can look like a spouse, an ex-spouse, a boyfriend or girlfriend, or an ex-boyfriend or girlfriend, a family member, even a roommate. The court in these instances is able to step in and put in place an order of protection, protecting a victim of abuse from their abuser. And this could have a lot of components in it. It can protect, not only the person who has been the victim of abuse, but it can protect their children, their pets, their family members, their residents, and even their personal property. And this could be granted here in Illinois on an emergency basis for up to 21 days, and also on a plenary level after that for up to two years, most commonly. Another part of family law is the idea of prenuptial and postnuptial agreements. Prenuptial agreements, being an agreement that a couple enters into prior to their marriage, detailing how they would like a divorce to play out, if God forbid, they did get divorced. A postnuptial agreement is much the same, except the difference is is that this is an agreement that is entered into post-marriage. Lots of times, this makes sense if we're looking at a blended family scenario, and when adult is coming in with children from a previous marriage that they want to protect, or another time that this is super useful is if one of the spouses has a business that they want to protect to ensure that that business doesn't get harms in the events of a divorce. I also find that this also makes sense for folks to enter into when they're substantially dissimilar in terms of the amount of assets, income, or even debt that they're bringing into a marriage. Another component of family law is the idea of adoption, which I think is self-explanatory. Another component is the idea of child representation, which we will talk about here. Post-decree work, which means that after a judgment has been put in place, whether that's a judgment for allocation of parental responsibility, otherwise no one is a custody judgment, or even a divorce judgment, if that's not working, if that's not being complied with, if it needs to be changed, the court can come back in and step in and make changes where necessary. Another component of family law is mediation. I think also self explanatory, and also here in Illinois, at least, the idea of parent coordination, which we will touch on briefly here as well. So as I've mentioned, we will be discussing here today, child-related considerations in family law. I did include a handout through Quimbee for the statute that I practice under, which is the Illinois Parentage Act of 2015. Feel free to refer to that as I go through my presentation. And, of course, if there are any questions to the extent that I can, I'm certainly happy to answer them. But first, before we talk about Illinois's specific considerations, because I want this to be useful to you wherever it is you're practicing, let's start with the most basic question, which is what is a parentage statute? Quite simply, a parented statute is a law or act that provides a legal framework for establishing parent-child relationships. And it details those issues that come out of the establishment of parentage. We will talk about this a lot in this presentation. So one thing that I did want to make known to you is the idea of the Uniform Parentage Act of 2017. On this slide, I included a link, so you can see this yourself and see where this information is coming from. but the Uniform Parentage Act is a great place to start if you want to just kind of get a bit of a primer on what you can expect in a Parentage Act, and what you would commonly see in other states that would have similar acts. Now, this act in particular was put in place by the Uniform Law Commission, otherwise known as the National Conference of Commissioners on Uniform State Laws. And the people who are on this commission are lawyers who are qualified to practice. So that could be practicing lawyers, that could be judges, that could be law professors. However they sit, they need to be lawyers who are qualified to practice to be on this commission. And in order to get on this commission at all, they're appointed by state governments. And when they are appointed, they draft and promote enactment of uniform state laws and areas of state law where uniformity is desirable and practical. And I think that this is incredibly desirable and practical when it comes to issues of parentage. And just a quick overview of what you see here in a Uniform Parentage Act. Article 1 has our general provisions. Here, it talks about definitions and scope of this act, just to get your feet wet on what we're looking at. Article 2 talks about parent-child relationship. So here, we're talking about the establishment of parentage, presumptions of parentage, and the consequences of that, which we will be talking about in depth here. Article 3 talks about Voluntary Acknowledgements of Paternity, otherwise known as VAPs, which we will certainly also be talking about. Article 4, registry of paternity, Article 5, genetic or DNA testing, Article 6, proceedings to adjudicate parentage, which we will also be talking about a lot here. And then Article 7, assisted reproduction, and Article 8, surrogacy agreement. As you can see, this Uniform Parentage Act really covers a wide breadth of issues that come up wherever you are practicing as it relates to parentage issues. So here, as I've mentioned, I practice in Illinois as a family law attorney. So my expertise and my bread and butter is Illinois. So I'm gonna be talking a little bit about the change and the evolution of the Illinois Parentage Act of 1984 to our current acts, which was enacted in 2015. I hope that this gives you a bit of an idea about how a Parentage Acts can look in practice. And I hope that it's helpful wherever you are. So going to the Illinois Parentage Act of 1984, this is the older Parentage Act that used to be in place before the current one, which, as I mentioned, was an enacted in 2015. And I would like to talk about why did we need to change this act at all. It it's a great question. First of all, this older act of 1984, first of all, did not take into account the cultural and family dynamic changes in the last 30 years. In the terms of this old act, they're not gender neutral. And we also see that in this act, there were unequal rights extended to mothers and fathers, as well as children born outside of a, quote, legal relationship. So really, the changes in our act, really, were meant to be an answer to the evolving ways that families are made today. It takes into consideration the fact that very often, there are children born into a relationship that's not a marriage relationship, and that children aren't necessarily born to a mother and a father. There may be two mothers or two fathers. And it also takes into consideration the fact that sometimes, children aren't naturally born to their parents. So I really do think that these changes to the 1984 Illinois Parentage Acts were completely necessary, and, in my opinion, a bit overdue. So I think it's important to look at the timeline of the change to the law that we had in Illinois. So June 1st, 2011, the Illinois Supreme Court established civil unions that allow for same-sex marriage and opposite sex couples to be recognized in Illinois. Jumping forward just about two years, June 26th, 2013, United States Supreme Court ruled that the constitution allows for same-sex couples to marry. June 27th, 2015, United States Supreme Court rules in favor of same sex marriage nationwide, ruling that states cannot ban same sex marriage. And then January 1, 2016, the Illinois Parentage Act of 2015 goes into effect, and it was born. So here, I would like to turn to what our current act here is in Illinois. It's our new law or new earth to us, the Illinois Parentage Act of 2015. So I think first, it's important to look at specific articles within the statute, and you can follow along in your handout should you wish. Specifically turning to the idea of the new public policy in this act, cited at 750 ILCS 46/102, this new public policy set out to recognize the right of every child to the physical, mental, emotional, and financial support of his or her parents. And it also set out to determine that the parent-child relationship extends equally to every child, and to his or her appearance, or to each of his or her parents, regardless of the legal relationship of the parents, meaning that they may not necessarily be married, and regardless of whether the parent is a minor, which just simply did not exist in the old act. And now, turning to the new definitions we see here in the act, specifically 750 ILCS 46/103, something that is super notable is we see the removal of the designation of, quotes, mother and, quotes, father in favor of parents, as I've touched on, making these terms gender neutral. Out of this, it's also important to note that now, instead of calling it what it used to be called, quote, a paternity case, it's now a parentage case to make those ideas gender neutral as well. This allows us to take into consideration same-sex marriages and civil unions, and while doing so, fulfills the requirements of the Illinois Constitution. Now turning to the new automatic establishment of parent-child relationships, you can find this in your handout at 750 ILCS 46/201. As you would see here, there's now no need for adjudication if a parent signs what we call a Voluntary Acknowledgement of Paternity, also known as a VAP. Here, as you may be able to determine in the past, if someone wanted to establish that they were a parent of a child, and that was in question, they would have to go to court and have that established. And now this is a bit of a short circuit. A VAP or a Voluntary Acknowledgement of Paternity is a document that can be signed at the time of the birth of a child, usually it's done right there at the hospital, or it could be done anytime after a child is born to establish parentage outside of courts. This document details information about the parents and the child, and it is to be signed by both parents in front of a witness. Minors under 18, who are parents, may sign this document without the consent of their parents. And it's really important to know what you're doing when you're signing a VAP or a VAP. It is a very important and potent legal document. So I always throw in a word of caution here when talking about it. You've got to beware, if a VAP is signed, it generally waves the right to a DNA test legally down the line. And if that VAP has been signed for 60 days, this is generally a permanent waiver, except in cases of fraud, duress, or mistake of material fact, which, in my opinion, are pretty tough to prove. So I would definitely thread very carefully if there is any question of parentage at all prior to signing a VAP and would urge anyone to first consult with their lawyer. Next, we will talk about the new presumption of parentage. This can be found in your handout at 750 ILCS 46/204. Something we touched on already. It's important to know that now we're calling this parentage, not paternity. More gender neutrality there. And we also see that it changes the presumption of parentage. It provides that a parent-child relationship extends equally to every child and his or her parents, regardless of the legal relationship of those parents, or even the age of the parents. It also now has a presumption of parentage and civil unions or similar legal relationships, not just legal marriages. Now talking about the new establishment of parentage, 750, again, 750 ILCS 46/204. Let's talk about that word presumption. Here, this particular part of the act changes establishment of parentage. We now have four rebuttable presumptions of parentage. One is if a child born while the person and mother are married in a civil union or a similar relationship, that's a rebuttable presumption of parentage. Another one is if the child was born during or within 300 days of the termination of said relationship, such as in the issue of a divorce. Another rebuttable presumption is if the child was born during or within 300 days of termination of invalid marriage, civil union, or similar relationship, but the parties attempted to comply with the law for the same. So here, what this is talking about is if a marriage or a civil union was, in fact, legally invalid, but the parties attempted to have a legally valid marriage or civil union, this rebuttable presumption still applies and protects a child of that relationship. Another rebuttable presumption is if the person enters into said relationship with mother after the birth of the child, and that person is listed on the birth certificate for the child. Now please note, if a child is born to a mother while the parties are in this type of relationship, parentage is assumed only to be rebutted by clear and convincing evidence. So that that's a tough burden to hurdle around. Now, let's talk about proceedings to declare the non-existence of parent-child relationships, found at 750 ILCS 46/205. This can be brought by the child, the birth mother, or the person presumed to be the parent of the child under the act via a verified complaint. After presumption of parentage is rebutted under Section 204, as we talked about on the last slide, parentage by another person can be established. This can be barred if brought later than two years after the petitioner knew or should have known about the underlying facts, and it shall not extend beyond the child reaching 18 years of age. The two-year time limit does not bar asserting a defense in an action to declare existence of a parent-child relationship, and it does not include time periods where the mother refuses to submit to a DNA test. It can be brought after an adjudication of parentage. If a negative DNA test is had, can vacate all orders regarding parental responsibility, otherwise known as custody, parenting time, otherwise known as visitation, and support. In this new act, we also see new stances on DNA testing, citing 750 ILCS 46/610. The thing that is new in this act is that courts are now allowed to deny motions for DNA testing, which is not something we saw in the old act. So again, another reason to be very careful when you're signing a volunteer acknowledgement of paternity or entering into parentage in an judgment when you're not sure because courts are now allowed to deny motions for DNA testing between a parent and child if the conduct of the presumed parent stops that person from denying parentage, which is a bit of a vague term here, if it would be inequitable to deny the parent-child relationship, and it is in the child's best interest to deny DNA genetic testing. So what the court looks at in determining if this would be in the child's best interest to deny is it considers the length of time of this parent-child relationship, the child's age, the nature of the relationship between the parent and child, the effect on the equities, just to name a few. In the old law, a parent could file suit challenging parentage up to a child's 20th birthday, so when they're no longer minors. Now the new law says that the suit can only be brought two years after that parent learns or should have learned about any relevant facts leading to the proposed challenge of paternity. So this isn't something that someone can sit on, and I would certainly not recommend it. Now talking about new factors considered with DNA testing, 750 ILCS 46/610. The length of time between the birth and the time the presumed parent learns he or she is not the biological parent is considered the length of the time that the presumed parent has parented the child, the child's age, the type of relationship between the presumed parent compared to the alleged parent, and any harm that may result in rebutting the presumption of parentage with DNA testing. These are some factors we touched on in the last slide, but it's really important to see here that these are just some of the things the court can consider in denying a motion for DNA or genetic testing. And the best interest of a child is weighed very heavily in this, and I would say just about all family law matters, no matter which state you're in. So I would really caution someone carefully, if this is something that they are trying to rebut because the court is going to look at whether the denial of a DNA test would be in the best interest of a child based on the age, based on the relationship, based on what actual parenting has happened, and based on the potential harm of a child to find out that this person isn't actually his or her parents. Now let's talk about some of the things that did not change in the new act. One thing that doesn't change is the idea of child support. Illinois holds very clear that a child has a right to receive child support and be financially supported by both parents. So here let's take a look at 750 ILCS 46/501. One thing that can be put in place right away in a case involving a child is a temporary order for child support. That's something that can be filed for at the same time, someone files a parentage case. A temporary order of support can be put in place if someone is presumed to be a parent to the child through marriage, civil union, et cetera, at the time of birth, which we touched on a bit earlier. If the person is petitioning to have parentage adjudicated, if the person is identified as a parent through DNA testing, if the person is declining to submit to DNA testing, it could be presumed that person is the parents. If it's shown by clear and convincing evidence that this particular person is a child's father. Likewise, if this person is a mother to the child, or if anyone else is determined to be this child's parents. And here, at least in Illinois, we use child support guidelines of sections 505 and 505.2 of the Illinois Marriage and Dissolution of Marriage Act. Here in Illinois, we used to have a pretty straightforward way to determine child support, which would look at the number of children between a couple and would assign a percentage of income that should be payable by the supporting parent to the other parent. Now, what we use, which is seen in many states, is the income shares model, where the court considers the joint income of both parties and the respective parenting time schedules, as well as the needs of a child to come up with a formula and a calculation that shows us what child support should be and by whom should it be paid. I could give an entire presentation just on that alone. So going onto the next slide, some questions that I get very commonly is how can child support be paid? Here in Illinois, there are a few ways. One common way is for one parent to pay the other directly. And here is a lawyer I always recommend that that's done with some sort of paper trail. I really urge my clients against say, paying cash from one parent to another because it's really hard to prove that that cash changed hands as opposed to say a Zelle transfer or even a payment by a check. So here, there would be a court order in place that tells the paying parent how much they are to pay, when, and the frequency of it. And it's on them to follow that order and make sure that these payments are made timely and in full, otherwise, they could be facing the wrath of the court if someone were to file something called a petition for rule to show cause, which is essentially a document that could be filed with the court, letting the court know someone was ordered to do something, and they didn't do it. The court can then compel, in this instance, the person who's not paying child support to pay it, to potentially pay interest on the non-paid child support and to even pay the person who's been aggrieved attorney's fees. So I highly recommend that if a parent is going to be paying child support directly, to make sure that they are organized, and on top of it, and not missing a beat. Another way that child support can be paid is through the SDU or the State Disbursement Unit here in Illinois. Here, this takes a bit of a guesswork out of it. And I would definitely recommend it for clients who are say, forgetful, and maybe cannot be counted upon to make those direct child support payments timely and full as they're ordered to do. Payments through the State Disbursement Unit allow the paying party's paycheck to be garnished by his or her employer, and then transmit that support payment directly to the other parent. It's a great option, and, I think, a very clean one because if there's any question about what has been paid and when in terms of child support, it's generally pretty straightforward to get an accounting from this state to show that very clearly. Another way to do this is through a trust accounts. Say if there is an agreement or an order between the parents about what child support should be and how much that should be through a defined period of time, the paying parent could actually take this amount and put it into a trust account to be accessed by the other parent. A clean way to do it, especially if we're looking at lump sum payments as opposed to say regular biweekly intervals. So those are just some ways that child support can be paid commonly. Another common question I get is, okay, so I understand child support, but what about expenses for a child? And I find that people are often somewhat surprised to hear that expenses for a child and child support can be different things. Now let's talk about the differences. Child support, what is it? Child support is meant to provide for the basic needs of a child, such as food on the table, a roof over the head, and clothing on the back. It's meant to cover those basic necessities. And expenses for a child are considerations that go above and beyond that. So that can include appearance contribution to educational, medical, extracurricular, religious, and childcare expenses. So over and above a child support order, a court can also put in place an order about how parents are to split these types of expenses. Commonly, we see an order that says parents are to split these expenses 50-50 down the middle, or in a different percentage that can measure it with their respective incomes. And just like a child support order, the court can say clearly when it's to be paid. In my judgments for child support and expenses for a child, I like to clearly detail that whenever a parent is incurring a particular expense for a child, they have a certain number of days to provide a receipt or proof of payment to the other parent whom they're seeking reimbursement from. And then that that parent has a certain number of days to remit their portion of the payment. So that way, it really hopefully, takes the guesswork out of things, and it gives these parents some predictability about when they can expect to receive invoices or proof of payment of particular expenses, and when they can also expect to have some reimbursements. So just an important thing to know, child support often isn't all that a parent should be paying for a child because we've got all of these other considerations to think of. Let's talk about some other things that don't change in this updated act that we have in Illinois. One is the idea of removal, otherwise known as relocation. So here, that the idea of removal or relocation details that parameters in which a parent may be able to move with a child away from, quote, their home base. And the idea for this is to protect the other parent and allow that parent to continue to have their co-parenting rights, including a visitation schedule. So under this act, while the guidelines for removal have changed, and I would bring you over to 750 ILCS 5/609.2, rules for removal still apply to parents. A parent can be enjoined from temporarily removing a child from the state during a case. If a parent is looking to enjoin the other from removal, or if a parent already removed the child from the state, God forbid, the court considers the extent of the other parent's previous involvement with the child, the likelihood parentage will be established, and the impact on the financial, physical, and emotional health of a party being enjoined. So this is a lot of information, but here in Illinois, in Cook County, generally what we advise our clients is to, if they're going to be moving away from where they're living right now, and they're the residential parents, otherwise known as the parent who has the child, 51% of the time, at least, they should only be looking to move within a 25-mile radius here in Cook County. And if they move any further than that, say 26 miles, it becomes a legal issue. It becomes an issue that they need to seek either permission from the other parent for, which we would memorialize in a notice and an agreed order, or they need to petition the court for the court to make a ruling on whether this relocation is in the best interest of a child. Moving on to some other things that don't change is the idea of child representation. I would turn your attention to 750 ILCS 46/613. For me, child representation is something that's very near and dear to my heart. It's actually a big part of my practice and a bit of my niche. In Cook County, in Illinois, I'm able to be appointed by judges to represent children who are going through family law matters, including parentage matters in a few capacities. The idea of child representation allows a minor child to be a permissible and interested party to a case. So it's not just their parents. It allows the children to have a voice in this case, and it allows the judge to know what their wishes are and what their concerns are. So it really does take the focus away, so to speak, from the parents and what they're fighting about and puts the focus on the person who's often in the middle, who is the child. Here in Illinois, a child can be represented in a few different capacities, as I briefly touched on. One is through the capacity of a guardian ad litem, otherwise known as a GAL. Another is in the capacity as a child's representative or otherwise known as a child rep, or even in an attorney for the child. These are all different rules that allows a child to be represented and advocated for in a family law court involving his or her parents. A common question I get when I talk about the idea of child representation is in-camera interviews or testimony of a child. Generally speaking in my experience in practice, courts want to avoid, as much as they possibly can, the need for a child to be involved in their parents' case to this extent. It can be very trying and very traumatizing for a child to say, take the stand and testify in a family law matter. That's not to say it doesn't happen, and that's not to say that there isn't a place for it, but judges hope that when there are pointing someone to advocate for the needs of a child, that it, therefore, wouldn't have to come to that because the child has their own representative in court advocating for their best interests. One thing that I see more commonly is the use of an in-camera interview. What that is is, generally, it allows the judge to have a child or children come in and come into their chambers and have a conversation with them about their perspective on whatever the issues are in the case. Whether that's fighting between the parents, how parenting time is going, how decisions are being made, their day to day care and the like, a child can actually speak directly to a judge about these issues if a judge finds that appropriate. If a child, and they almost always should at this instance, has someone who's advocating for them such as a guardian ad litem or a child's representative, generally speaking, that person is in the in-camera interview with them to guide them and make them feel comfortable, introduce them to the judge, and sometimes even pose the questions for that child. Commonly, there's a court reporter there taking all of this down, but also commonly, judges ask parents to stay out of the chambers and not be involved in this process to make the child as comfortable as possible and as able to speak as candidly as possible. So that's just one interesting factor of how a child can be part of a case. Now, let's talk a little bit about those different roles of child representation that I touched on here. One is called guardian ad litem or GAL. What this is a family law attorney who's appointed by a judge to conduct an investigation and advocate for the best interest of a child. How they do this is through an oral and/or written report that details clearly what their investigation entails, what they were able to discover through that investigation, and then to make recommendations to the court for what they think is in the best interest of a child. At a guardian ad litem's investigation, after appointment, I find that the best practices are to first connect with the parents and their attorneys to get a sense of what's been going on in the case. Oftentimes, when there's someone appointed for a child in a case, it means that something is going wrong. These parents aren't able to co-parent effectively by agreement. Here in Cook County, it generally also means that these parents were ordered to attend mediation to try to resolve all of the co-parenting issues by agreement, and they were not able to. So usually, when someone who comes into this case in the capacity of child representation takes the reins, there's usually been a pretty long history to the case and a lot that's been happening. So that's why I say it's super important for guardian ad litem to connect with the parents and to connect with their attorneys to get a sense of what the issues are from each of their perspectives and what's been going on so far. I also obtained a copy of the file from one of the attorneys or from the court directly, if necessary, to review through the orders and through the pleadings what the history of this case is, what's been happening, and to identify what the issues are that I need to investigate. Often, good judges, when appointing a guardian ad litem, will detail that clearly in an appointment order, what the issues are that they are tasking this GAL with investigating and will also assign a court date for that GAL to come back to the court with at least their initial findings. So through that investigation, a guardian ad litem will review the file, talk to the parents, talk to the attorneys. And then, I would say most importantly, they should talk to the child. If the child is old enough, and if the child is too young, at least set eyes on the child. In my best practices as guardian ad litem, I find that while some children are very excited and love the idea about coming into your office and playing with all of the things you have there, most commonly, children are more comfortable if you are able to come to their house and meet them where they are. It gives you an opportunity to see how they live, see how they're being parented by the parent who's living there and see their level of comfort. You're also able to see if there's anything they need in the home that they don't have, if there are any safety hazards. Some of these can include, is the fire detector appropriately linked up to the house? Are the appliances working? Does this child have a safe and appropriate bedroom? Is the child safe with all the other parties that are living in this room? These are things that can be investigated. From there, a guardian ad litem can also talk to the child's professionals like teachers, doctors, therapists, and also collaterals given by the parent. Often, these are friends or family members who have a lot to say as to what's been going on with the issues as it relates to co-parenting between the parents, how a child is doing, and can give some specific insight or corroboration to what you've been hearing from the parents. So a guardian ad litem, after conducting this investigation will give an oral and most often, a written report to the court about what they investigated and based on the investigation, what they would recommend to the court about the particular issue. That can look like whether a relocation of a parents with a child is appropriate, or that could be as simple as how these parents should make decisions together, if they can't, which parent should, and what a parenting time schedule would look like. After receiving this report, courts very often weigh heavily a guardian ad litem's investigation and opinion. And with that in mind, hopefully, that helps parents achieve a settlement. But if not, and this case goes to trial, this guardian ad litem can also be called as a witness and cross-examined as an expert at trial, and then the court can make its rulings from there. Another rule in child representation is that of a child rep, a child's representative. Like a guardian ad litem, this is someone who is to advocate for the best interest of a child. But the difference here is that they have the same authority to participate in litigation as an attorney for a party, which is different than a guardian ad litem. Generally guardian ad litems do not file motions or conduct discovery, for example, but a child rep can. And something that's different here is a child rep also has confidentiality with a child, and that's way different than a guardian ad litem. A guardian ad litem doesn't have confidentiality with anyone. There's no attorney-client privilege there. The other role is the attorney for a child, which is just that. An attorney who represents a child just as if a parent is represented by an attorney. So those are some roles here in Illinois that allow a child's voice to be heard in the process. Some questions I get then is all right, it's great. I know about these three roles, but how do I know which is the best fit for my child? So just kind of a quick and dirty rundown on this. Once you appoint to GAL, I generally say this makes the most sense if you've got a younger child, or if you need an independent expert to testify in this case. Lots of times, in these types of cases that are high conflict, there may be a desire for a custody evaluation, which is rather expensive. A guardian ad litem may be a better way to go about this, to get some expert testimony about what the best interest of a child is. When to appoint a child rep? Generally, I find that this makes more sense with older children. Here in Illinois, the older a child is, the more weight their preferences can be given by the courts. I find that what tends to be the magic age here is at the age of 14, where a court gives more heavily some weight to a child's wishes and opinions in what is going on in this case. It doesn't mean the court is bound by that, but the court sees this as a general age of maturity, where they can make reasoned opinions and tell the court exactly what it is they want and why. As I mentioned here, it also makes sense to have a child representative if we believe that confidentiality in this matter is important. And once you appoint an attorney for a child, generally, we see that this is a lesser appointed role. You don't see it very often, but it does make sense when there seems to been a neglect on both sides for a child's best interest, and someone really needs to step in and take the reins for advocating for this child. Also, if a child is called to testify, this might be the best role. As I mentioned, I do this type of work quite often, and sometimes, I've even seen, and I've personally had this, where someone who such as myself is appointed in one role, and then after conducting a bit of investigation preliminarily, is able to determine that a different role might make the most sense. And the person who's appointed could give notice to the court about that and why they think their role should be converted, say from a child representative to a guardian ad litem. So that's something that the court can entertain as well. And I do find that courts are very appreciative of attorneys who do this type of work because judges are very busy and often can't get off the bench and get to know each individual family and meet a child in their cases. So this allows them to have as much information as possible about the wellbeing of a child to better inform their rulings. A another question that I talked about really briefly here is the idea of the Illinois Marriage and Dissolution of Marriage Act. As we've been talking about here, the Parentage Act applies to unmarried parties, but changes to many of the same ideas applied to married parties as well, who are subject to the IMDMA. Both types of cases still must provide for care, parental responsibility, control, and parenting time of minor children. And both cases must contain awards for support. Again, I will bring you to sections 505 and 505.2. I know we touched on briefly how a child support is calculated, at least here in Illinois, in general terms. One thing that's also important to note when it comes to child support that I get asked pretty often is the idea of reserving or waiving child support. As I've touched on before, child support is considered a right for a child. Illinois finds that a child has a right to be financially supported by his or her parents. So because of that, parents can't agree to waive payments of child support from one to the other, but instead, can sometimes agree to reserve child support. So what that means is that the parents can agree, no one is going to be seeking child support in this particular spot in time for whatever reason, based on the circumstances of the parties, their financial resources, the needs of the child to name a few. But at any point, that can change. If someone decides after that, that child support is necessary now due to a change in circumstances, that parent can file a motion for child support to get that paid. Another thing that applies to both parentage and divorce acts, both types of cases are governed by the same removal provisions, which we touched on a bit. So all of this is to say that basically, the Parentage Act refers back to the IMDMA. Some other things to think about. In both marriage and non marriage cases, we've got terms for what we call parenting time, otherwise known as visitation. We also have terms for parental responsibility, otherwise known as custody. Again, that's decision-making on what I call the big four areas. Religious decision-making, educational decision-making, medical decision-making, and extracurricular decision-making. In both of these types of cases, we also have what we call parenting plans. Here in Illinois, they're generally now called allocation judgements, but they used to be called joint parenting agreements or JPAs. They mean the same thing, and what they are is a document that sets forth clearly what the court has ordered for all manner of a child-related issues. It details how parents make decisions together, and if they don't make decisions together, which parents is to make them, who has the child when, including a regular parenting time schedule. That is to say a normal time schedule, a weekly schedule, as opposed to say special event schedule, holiday schedule, and vacation schedule. It also details often how parents are to communicate with each other whether that's directly or through a co-parenting app, if there are communication issues. It also details clearly rights of a childs. I always like to include a minor child's bill of rights in these documents that remind the parent that this is for a child and a child is a right to be treated as an interested party here, and to not be used as a pawn, or put in the middle, or treated as a messenger, which can sometimes happen in these high-conflict cases. At least in Cook County, parents in both of these types of cases also must complete a parenting class before a judgment is entered, regardless of their amicability, regardless of how great of parents they are, that's required. And I do find that that's a great practice. It doesn't teach them how to be parents, it teaches them how to be separated parents, which is new for anyone going through this type of case. Also, in contested cases in Cook County, parents of both types of cases must also complete mediation and may have a child representative or guardian ad litem. Sometimes, attorney for a child's appointed here. This can happen in both types of cases. All of this is to say all that we're touching on here when it comes to parentage considerations also apply to divorce cases here as well in Illinois. Now, let's talk about how to work a family law parentage case. So if you are a family law attorney, and you have a client who hires you for a parentage case, the first thing to do is to get started by filing a petition for establishment of parentage. This is a document that asks the court to enter an order to establish parentage if not already done. And here, it details the jurisdiction of the parties. It details who the minor child is, it details if there's a Voluntary Acknowledgement of Paternity, which should allow for an automatic establishment. With this, you also wanna file a summons. This is needed to gain service on the other parents. If the other parent is served here in Illinois, they have 30 days to file a document called an appearance form, which lets the court know whether they intend to represent themselves, or if they're represented through an attorney and allows them to participate in the case. If they fail to file that appearance, they could be defaulted, and a court can enter a judgment without their participation. One thing that I did promise I would touch on is the idea of parent coordination. This is something that we also commonly see in cases that involve minor children. So who is a parent coordinator? This is a professional that's appointed by the court. This can be done pre or post-decree, meaning before a judgment is ever entered or after if there are post decree issues and motions are filed. And this is a trained professional. It can be an attorney, but at least here in Illinois, it doesn't have to be. We also see this as someone who is a therapist or even a mediator. But this is someone who is trained and they are to help parents in managing their parenting plan, can help the parents interpret what the terms mean in the events of a dispute, and can also be a tiebreaker, so to speak, when it comes to those disputes. It helps parents, hopefully, improve their co-parenting communication, ideally, to the point where they don't need to make use of a parent coordinator because they're able to resolve issues themselves. But where they can't, this parent coordinator can also help resolve those disputes. Now there are several motions that could be filed in parentage cases. I could give an entire presentation just on this alone, but a motion for allocation of parental responsibility that could be temporary, meaning during the case, or permanent, meaning in a final judgment. A motion for parenting time, again, could be temporary or permanent. Not to say that parenting time is permanent in that it's never modifiable. Parenting time can be changed if there's a substantial change in circumstances or if there are safety concerns for a child, seem even goes for allocation of parental responsibility. While these could be put in a final judgment, meaning that the case is no longer pre-decree and no longer being actively litigated, it can be changed to serve the best interests of a child, whether that's what the court finds or by agreement, can also file a motion for child support, contribution to expenses. Both of these can be changed based on changes in income, parenting time, circumstances. We also see motions for the appointment of a guardian ad litem or a child representative, motion for return of a minor child if a child has been removed, a petition for an order of protection and instances of abuse, a petition for relocation. If one parent is seeking to move their residential parenting a certain number of miles away from the other parents. And these are just some of them. In order of protection. I touched on this briefly, but it's a remedy available to protect victims of domestic violence, and sometimes that does come up in parentage cases. Parentage cases are not immune to concerns of abuse, unfortunately. It can protect the petitioner, meaning the person who files for a petition, and it can protect his or her family members, minor children, notably for this presentation, resident, pets, personal property, and notably, for purposes of this presentation can impact parenting time if a child is listed as a protected party. Often here, we see the court make allowances for a continued relationship with the parent against who in order of protection was entered, but the courts wanna make sure it's safe. So often we see allowances for supervised parenting time or even therapeutic supervised parenting time with that parent. So what do I mean by that? Let's talk about restricted parenting time. Supervised parenting time is one form of this. This is usually done by a professional whose job is to supervise parenting time, and it could be done through a public professional service or a private professional service. Generally speaking, the private services tend to be more expensive, or a trusted agreed upon third party. There's also therapeutic supervised parenting time, which is generally done by a professional who's a trained therapist who specifically does this type of therapy to help repair a harmed relationship between a parent and child, or there's also the idea of public place parenting time, where the parenting time isn't supervised, but it happens in a public place in an effort to ensure that it's safe and appropriate. We also have some high conflict resources for parents who are really not getting along. as mentioned, court ordered mediation, child representation, a co-parenting communication application, where the court can review a record of communication between the parents here in Illinois that looks like OurFamilyWizard or TalkingParents, or use of appearing coordinator or an order of protection, as we touched on. And how the determination of an outcome in a parentage case looks like? This can be done by agreement of the parties with the help of mediation, with the help of a guardian ad litem or a child representative, can be done by default, as we talked about, or done by trial. If you have any questions for me, I have my information here. Please do not hesitate to reach out. I would be more than happy to help, and if I can't help, guide you in an appropriate direction. And I just wanna thank you very much for taking the time to listen to this Quimbee presentation. It's been an honor to talk with you about this. I've got a slide here about how to connect with me. And thank you very much again. Hope you have a wonderful rest of the day, and happy practicing.

Presenter(s)

Colleen Breems
Associate
Lavelle Law

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