HB0360sam001 94TH GENERAL ASSEMBLY

Sen. Richard J. Winkel Jr.

Filed: 5/3/2005

09400HB0360sam001 LRB094 02474 LCB 45260 a

AMENDMENT TO HOUSE BILL 360

AMENDMENT NO. ______. Amend House Bill 360 by replacing everything after the enacting clause with the following:

"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.)".