ILLINOIS DIVORCE LAW BLOG

Hearsay is permitted in some contested custody cases. Guardians ad litem can consider hearsay in making recommendations to the court concerning the best interest of a child. In fact, in Illinois a guardian ad litem can even rely on inadmissible evidence that may have been wrongfully obtained, such as by an alleged violation of an eavesdropping statute. In re Marriage of Karonis, 693 N.E.2d 1282 (Ill. App. Ct. 1998).

Is it legal to tape a telephone conversation with a party who has not consented to the taping? The answer is NO. If a child is talking on the phone to a parent, and the other parent believes the conversation should be taped, does this make it legal? NO. A violation of the Illinois eavesdropping statute is arguably a prosecutable offense, and the contents of the wrongfully taped conversation are not admissible. However, the Karonis court allowed the the guardians ad litem in the case to review the illegally taped conversations in formulating their custody recommendations.

When should a GAL or Child’s Rep be appointed? In all cases?

When it is clear that the parents are looking after only their own interests and the interests of the child may be seriously neglected, it is recommended to the trial court that an attorney for the child or a GAL be appointed. Hartman v. Hartman, 89 Ill.App.3d 969, 412 N.E.2d 711, 45 Ill. Dec. 360 (4th Dist. 1980).

The appointment of an attorney to represent a child is a matter left to the sound discretion of the trial court. The failure of the trial court to appoint a GAL was not an abuse of discretion, where there was ample evidence before the court through other witnesses, including evidence as to the child’s best interest through the testimony of psychologists, therapists, neighbors and othjer competent witnesses. In re Marriage of Ricketts, 329 Ill. App.3d 173, 768 N.E.2d 834, 263 Ill. Dec. 753 (5th Dist. 2002).

Illinois Supreme Court Rule 907 will set forth the minimum standards of practice for attorneys who represent children in contested custody cases. DuPage County and Kane County dissolution of marriage cases will be subject to the new Rule expected to be effective as of the new year 2007. The Rules, I believe, will strengthen and define with greater particularity the role of the GAL/Child’s Rep, and will provide the Court with better trained attorneys, willing to assist the court in resolving difficult contested custody cases.

(a) Every child representative, attorney for a child and guardian ad litem shall adhere to all ethical rules governing attorneys in professional practice, be mindful of any conflicts in the representation of children and take appropriate action to address such conflicts.

(b) Every child representative, attorney for a minor child and guardian ad litem shall have the right to interview his or her client(s) without any limitation or impediment. Upon appointment of a child representative, attorney for the child or guardian ad litem, the trial court shall enter an order to allow access to the child and all relevant documents.

Illinois’ child support scheme is not unusual, but in practice it can be so simple as to be unfair. In order to simplify the statutory child support scheme, the legislature determined that in most cases, the so-called non-residential parent (typically the father) shall be ordered to pay a fixed amount of his net income to the residential parent (for the support of the child). The parties, through discovery in the case, determine what the net income of the payor spouse is.

The judge is then expected to apply the fixed guidelines defined by the Illinois legislature to determine the amount of child support to be paid by the non-residential parent to the residential parent. The guidelines are:

Children % of Net Income
1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%
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Divorce creates enormous stresses on the divorcing parents, and the anxiety with divorcing parents can be most profound. Clients from throughout Illinois have asked me to develop strategies for protecting their parenting rights, and I have found that advocating and developing “out of the box” strategies for parenting plans are needed in most disputed custody cases.

Just as all family systems are unique, so too must be the parenting agreements that are put in place in resolving the dipsutes over custody of children. Intense focus must be placed by the parties and the attorneys on developing parenting plans that allow competent, caring parents to have as much interaction and investment in the developmental lives of their children as possible.
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Illinois’ child support scheme raises many questions in the minds of many of my clients. Many residential custody mothers feel that the Illinois statutory guidlines do not provide enough financial support from the nonresidential fathers, and feel that as the father’s income rises, so should the level of support. Conversely, some fathers feel that the statutory child support scheme is too rigid and inflexible, and for a nonresidential father of multiple children, the levels of defined support are burdensome. Can the levels of support be changed, after divorce?
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In DuPage and Kane County, Collaborative Divorce is becoming more prevalent. Clients want an alternative to stressful, expensive “court wars.” Many clients ask me about divorce mediation (I am a certified mediator for DuPage County). Some cases, however, might benefit from a new approach to mindful, non-litigated divorce…Collaborative Law.

What is the difference between Collaborative Practice and Mediation?

In mediation, the mediator facilitates the negotiations of the disputing parties and tries to help them settle their case. However, the mediator cannot give either party legal advice, and cannot be an advocate for either side. If there are lawyers for the parties, they may or may not be present at the mediation sessions, but if they are not present, the parties can consult their counsel between mediation sessions. Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review and editing by the parties and counsel.

Collaborative Law was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same commitment to settlement as the sole agenda. It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, to work with their own clients and one another to assure that the process stays balanced, positive and productive.
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