| ||||
| Public Act 103-0126 | ||||
| ||||
| ||||
AN ACT concerning civil law.
| ||||
Be it enacted by the People of the State of Illinois,
| ||||
represented in the General Assembly:
| ||||
Section 5. The Illinois Marriage and Dissolution of | ||||
Marriage Act is amended by changing Section 506 as follows:
| ||||
(750 ILCS 5/506) (from Ch. 40, par. 506)
| ||||
Sec. 506. Representation of child.
| ||||
(a) Duties. In any proceedings involving the support, | ||||
custody,
visitation, allocation of parental responsibilities, | ||||
education, parentage, property interest, or general welfare of | ||||
a
minor or dependent child, the court may, on its own motion or | ||||
that of any
party, appoint
an attorney to serve in one of the | ||||
following capacities to address the issues the court | ||||
delineates:
| ||||
(1) Attorney. The attorney shall provide independent | ||||
legal counsel for the child and shall owe the same duties | ||||
of undivided loyalty, confidentiality, and competent | ||||
representation as are due an adult client.
| ||||
(2) Guardian ad litem. The guardian ad litem shall | ||||
investigate the facts of the case and interview the child | ||||
and the parties. Unless the court directs otherwise, the | ||||
guardian ad litem shall submit to the court and the | ||||
parties a written report, written recommendations, or a | ||||
proposed parenting plan, in accordance with the child's | ||
best interests, not less than 30 days before a final | ||
hearing or trial. The guardian ad litem's written report | ||
or written recommendations shall be admitted into evidence | ||
without the need for foundation. The guardian ad litem | ||
shall be available for deposition before a final hearing | ||
or trial notwithstanding any other discovery cutoff. The | ||
guardian ad litem shall testify or submit a written report | ||
to the court regarding his or her recommendations in | ||
accordance with the best interest of the child. The report | ||
shall be made available to all parties. The guardian ad | ||
litem may be called as a witness for purposes of | ||
cross-examination regarding the guardian ad litem's report | ||
or recommendations. At the discretion of the court, the | ||
guardian ad litem: | ||
(i) may be present for all proceedings, including | ||
in camera examinations of the child; | ||
(ii) may issue subpoenas for records as part of | ||
the guardian ad litem's investigation; and | ||
(iii) may file pleadings relating to procedural | ||
matters. The guardian ad litem shall investigate the | ||
facts of the case and interview the child and the | ||
parties.
| ||
(3) Child representative. The child representative | ||
shall advocate what the
child representative finds to be | ||
in the best interests of the child after reviewing
the | ||
facts and circumstances of the case. The child | ||
representative shall meet with the child and the parties, | ||
investigate the facts of the case, and encourage | ||
settlement and the use of alternative forms of dispute | ||
resolution. The child representative shall have
the same | ||
authority and obligation to participate in the litigation | ||
as
does an attorney for a party and shall possess all the | ||
powers of investigation
as does a guardian ad litem. The | ||
child representative
shall consider, but not be bound by, | ||
the expressed wishes of the child. A
child representative | ||
shall have received training in child advocacy or shall
| ||
possess such experience as determined to be equivalent to | ||
such training by the
chief judge of the circuit where the | ||
child representative has been appointed.
The
child | ||
representative shall not disclose confidential | ||
communications made
by the child, except as required by | ||
law or by the Rules of Professional
Conduct. The child | ||
representative shall not render an opinion, | ||
recommendation, or report to the court and shall not be | ||
called as a witness, but shall offer evidence-based legal | ||
arguments. The child representative shall disclose the | ||
position as to what the child representative intends to | ||
advocate in a pre-trial memorandum that shall be served | ||
upon all counsel of record prior to the trial. The | ||
position disclosed in the pre-trial memorandum shall not | ||
be considered evidence. The court and the parties may | ||
consider the position of the child representative for | ||
purposes of a settlement conference.
| ||
(a-3) Additional appointments. During the proceedings the | ||
court may appoint an additional attorney to
serve in the | ||
capacity described in subdivision (a)(1) or an additional | ||
attorney to serve in another of the capacities described in | ||
subdivision (a)(2) or
(a)(3) on
the court's own motion or that | ||
of a party only for good cause shown and when the
reasons for | ||
the additional appointment are set forth in specific findings.
| ||
(a-5) Appointment considerations. In deciding whether to | ||
make an appointment of an attorney for the minor child, a | ||
guardian ad litem, or a child representative, the court shall | ||
consider the nature and adequacy of the evidence to be | ||
presented by the parties and the availability of other methods | ||
of obtaining information, including social service | ||
organizations and evaluations by mental health professions, as | ||
well as resources for payment.
| ||
In no event is this Section intended to or designed to | ||
abrogate the decision making power of the trier of fact. Any | ||
appointment made under this Section is not intended to nor | ||
should it serve to place any appointed individual in the role | ||
of a surrogate judge.
| ||
(b) Fees and costs. The court shall enter an order as | ||
appropriate for
costs, fees, and disbursements, including a | ||
retainer, when the attorney,
guardian ad litem, or child's | ||
representative is appointed. Any person appointed under this | ||
Section shall file with the court within 90 days of his or her | ||
appointment, and every subsequent 90-day period thereafter | ||
during the course of his or her representation, a detailed | ||
invoice for services rendered with a copy being sent to each | ||
party. The court shall review the invoice submitted and | ||
approve the fees, if they are reasonable and necessary. Any | ||
order approving the fees shall require payment by either or | ||
both parents, by any
other party or source, or from the marital | ||
estate or the child's separate
estate.
The court may not order | ||
payment by the Department of Healthcare and Family Services
in | ||
cases in which the Department is providing child support
| ||
enforcement services
under Article X of the Illinois Public | ||
Aid Code. Unless otherwise ordered by
the
court at the time | ||
fees and costs are
approved, all fees and costs payable to an | ||
attorney, guardian ad litem, or
child representative under | ||
this Section are by implication deemed to be in
the nature of | ||
support of the child and are within the exceptions to | ||
discharge
in bankruptcy under 11 U.S.C.A. 523. The provisions | ||
of Sections 501 and 508 of
this Act shall apply to fees and | ||
costs for attorneys appointed under this
Section.
| ||
(Source: P.A. 99-90, eff. 1-1-16.)
| ||