|
|
||||
| Public Act 094-0640 |
||||
| ||||
| ||||
AN ACT concerning families.
| ||||
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 Sections 506 and 608 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, 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, and subject to the | ||||
terms or specifications the court determines, 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.
as an attorney | ||||
to represent the child;
| ||||
(2) Guardian ad litem. 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. The | ||||
guardian ad litem shall investigate the facts of the case | ||||
and interview the child and the parties.
as a guardian ad | ||||
litem to address issues the court delineates;
| ||||
(3) Child representative. The child representative | ||||
shall
as a child's representative whose duty shall be to | ||||
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
child's | ||
representative shall have
the same power and authority and | ||
obligation to participate
take part in the conduct of the | ||
litigation as
does an attorney for a party and shall | ||
possess all the powers of investigation
and recommendation | ||
as does a guardian ad litem. The child
child's | ||
representative
shall consider, but not be bound by, the | ||
expressed wishes of the child. A
child
child's | ||
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
child's representative has been | ||
appointed.
The
child
child's representative shall not | ||
disclose confidential communications made
by the child, | ||
except as required by law or by the Rules of Professional
| ||
Conduct. The child
child's 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
regarding
the issues set | ||
forth in this subsection. 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
subdivisions (a)(1), (a)(2), or
(a)(3) on
the | ||
court's
its 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, and thereafter as
necessary. 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
Such orders 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 Illinois | ||
Department of Public Aid
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
| ||
child's 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. 91-410, eff. 1-1-00; 92-590, eff. 7-1-02.)
| ||
(750 ILCS 5/608) (from Ch. 40, par. 608)
| ||
Sec. 608. Judicial Supervision.
| ||
(a) Except as otherwise agreed by the parties in writing at | ||
the time of
the custody judgment or as otherwise ordered by the | ||
court, the custodian
may determine the child's upbringing, | ||
including but not limited to, his
education, health care and | ||
religious training, unless the court, after
hearing, finds, | ||
upon motion by the noncustodial parent, that the absence of
a | ||
specific limitation of the custodian's authority would clearly | ||
be
contrary to the best interests of the child.
| ||
(b) If both parents or all contestants agree to the order, | ||
or if the
court finds that in the absence of agreement the | ||
child's physical health
would be endangered or his emotional | ||
development significantly impaired,
the court may order the | ||
Department of Children and Family Services to
exercise | ||
continuing supervision over the case to assure that the | ||
custodial
or visitation terms of the judgment are carried out. | ||
Supervision shall be
carried out under the provisions of | ||
Section 5 of the Children and Family
Services Act.
| ||
(c) The court may order individual counseling for the | ||
child, family counseling for one or more of the parties and the | ||
child, or parental education for one or more of the parties, | ||
when it finds one or more of the following: | ||
(1) both parents or all parties agree to the order; | ||
(2) the court finds that the child's physical health is | ||
endangered or his or her emotional development is impaired | ||
including, but not limited to, a finding of visitation | ||
abuse as defined by Section 607.1; or | ||
(3) the court finds that one or both of the parties | ||
have violated the joint parenting agreement with regard to | ||
conduct affecting or in the presence of the child. | ||
(d) If the court finds that one or more of the parties has | ||
violated an order of the court with regards to custody, | ||
visitation, or joint parenting, the court shall assess the | ||
costs of counseling against the violating party or parties. | ||
Otherwise, the court may apportion the costs between the | ||
parties as appropriate. | ||
(e) The remedies provided in this Section are in addition | ||
to, and shall not diminish or abridge in any way, the court's | ||
power to exercise its authority through contempt or other | ||
proceedings.
| ||
(f) All counseling sessions shall be confidential. The | ||
communications in counseling shall not be used in any manner in | ||
litigation nor relied upon by any expert appointed by the court | ||
or retained by any party.
| ||
(Source: P.A. 87-824.)
| ||