97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5544

 

Introduced 2/15/2012, by Rep. Jil Tracy

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/506  from Ch. 40, par. 506

    Amends provisions of the Illinois Marriage and Dissolution of Marriage Act concerning fees and costs for representation of a child. Provides that: an appointed attorney, guardian ad litem, or child representative's failure to submit a detailed invoice for each 90-day period precludes the collection of costs, fees, and disbursements for services rendered in that period; an appointed attorney, guardian ad litem, or child representative may not bill the parties any fees for the preparation and presentation of an invoice; the court may not award lump sum fees to an appointed attorney, guardian ad litem, or child representative; the court may not authorize payment of bills that are not properly itemized; compensation for an appointed attorney, guardian ad litem, or child representative may be paid at a reasonable rate not to exceed $150 per hour; and that this rate shall be adjusted each year in accordance with the consumer price index. Deletes language providing that: the court may not order payment by the Department of Healthcare and Family Services if the Department is providing child support enforcement services under the Illinois Public Aid Code; and fees and costs payable to an appointed attorney, guardian ad litem, or child representative are by implication deemed to be in the nature of support of the child and are within the exceptions to discharge in bankruptcy unless the court orders otherwise. Makes other changes.


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A BILL FOR

 

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1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Marriage and Dissolution of
5Marriage Act is amended by changing Section 506 as follows:
 
6    (750 ILCS 5/506)  (from Ch. 40, par. 506)
7    Sec. 506. Representation of child.
8    (a) Duties. In any proceedings involving the support,
9custody, visitation, education, parentage, property interest,
10or general welfare of a minor or dependent child, the court
11may, on its own motion or that of any party, appoint an
12attorney to serve in one of the following capacities to address
13the issues the court delineates:
14        (1) Attorney. The attorney shall provide independent
15    legal counsel for the child and shall owe the same duties
16    of undivided loyalty, confidentiality, and competent
17    representation as are due an adult client.
18        (2) Guardian ad litem. The guardian ad litem shall
19    testify or submit a written report to the court regarding
20    his or her recommendations in accordance with the best
21    interest of the child. The report shall be made available
22    to all parties. The guardian ad litem may be called as a
23    witness for purposes of cross-examination regarding the

 

 

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1    guardian ad litem's report or recommendations. The
2    guardian ad litem shall investigate the facts of the case
3    and interview the child and the parties.
4        (3) Child representative. The child representative
5    shall advocate what the child representative finds to be in
6    the best interests of the child after reviewing the facts
7    and circumstances of the case. The child representative
8    shall meet with the child and the parties, investigate the
9    facts of the case, and encourage settlement and the use of
10    alternative forms of dispute resolution. The child
11    representative shall have the same authority and
12    obligation to participate in the litigation as does an
13    attorney for a party and shall possess all the powers of
14    investigation as does a guardian ad litem. The child
15    representative shall consider, but not be bound by, the
16    expressed wishes of the child. A child representative shall
17    have received training in child advocacy or shall possess
18    such experience as determined to be equivalent to such
19    training by the chief judge of the circuit where the child
20    representative has been appointed. The child
21    representative shall not disclose confidential
22    communications made by the child, except as required by law
23    or by the Rules of Professional Conduct. The child
24    representative shall not render an opinion,
25    recommendation, or report to the court and shall not be
26    called as a witness, but shall offer evidence-based legal

 

 

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1    arguments. The child representative shall disclose the
2    position as to what the child representative intends to
3    advocate in a pre-trial memorandum that shall be served
4    upon all counsel of record prior to the trial. The position
5    disclosed in the pre-trial memorandum shall not be
6    considered evidence. The court and the parties may consider
7    the position of the child representative for purposes of a
8    settlement conference.
9    (a-3) Additional appointments. During the proceedings the
10court may appoint an additional attorney to serve in the
11capacity described in subdivision (a)(1) or an additional
12attorney to serve in another of the capacities described in
13subdivision (a)(2) or (a)(3) on the court's own motion or that
14of a party only for good cause shown and when the reasons for
15the additional appointment are set forth in specific findings.
16    (a-5) Appointment considerations. In deciding whether to
17make an appointment of an attorney for the minor child, a
18guardian ad litem, or a child representative, the court shall
19consider the nature and adequacy of the evidence to be
20presented by the parties and the availability of other methods
21of obtaining information, including social service
22organizations and evaluations by mental health professions, as
23well as resources for payment.
24    In no event is this Section intended to or designed to
25abrogate the decision making power of the trier of fact. Any
26appointment made under this Section is not intended to nor

 

 

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1should it serve to place any appointed individual in the role
2of a surrogate judge.
3    (b) Fees and costs. The court shall enter an order as
4appropriate for costs, fees, and disbursements, including a
5retainer, when the attorney, guardian ad litem, or child's
6representative is appointed. Any person appointed under this
7Section shall file with the court within 90 days of his or her
8appointment, and every subsequent 90-day period thereafter
9during the course of his or her representation, a detailed
10invoice for services rendered with a copy being sent to each
11party. Failure to submit a detailed invoice for each 90-day
12period in the required time period shall preclude collection of
13costs, fees, and disbursements for services rendered in that
1490-day period. An attorney, guardian ad litem, or child
15representative shall not bill the parties any fees for the
16preparation and presentation of his or her invoice. The court
17shall review the invoice submitted and approve the fees, if
18they are reasonable and necessary. The court shall not award
19lump sum fees to the attorney, guardian ad litem, or child
20representative. The court shall not authorize payment of bills
21that are not properly itemized. Compensation for the attorney,
22guardian ad litem, or child representative may be paid at a
23reasonable rate not to exceed $150 per hour. Any order
24approving the fees shall require payment by either or both
25parents, by any other party or source, or from the marital
26estate or the child's separate estate. The court may not order

 

 

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1payment by the Department of Healthcare and Family Services in
2cases in which the Department is providing child support
3enforcement services under Article X of the Illinois Public Aid
4Code. Unless otherwise ordered by the court at the time fees
5and costs are approved, all fees and costs payable to an
6attorney, guardian ad litem, or child representative under this
7Section are by implication deemed to be in the nature of
8support of the child and are within the exceptions to discharge
9in bankruptcy under 11 U.S.C.A. 523. The provisions of Sections
10501 and 508 of this Act shall apply to fees and costs for
11attorneys appointed under this Section.
12    (c) Beginning in 2014, every January 20, the statutory rate
13described in subsection (b) shall be automatically increased or
14decreased, as applicable, by a percentage equal to the
15percentage change in the consumer price index-u during the
16preceding 12-month calendar year. "Consumer price index-u"
17means the index published by the Bureau of Labor Statistics of
18the United States Department of Labor that measures that
19average change in prices of goods and services purchased by all
20urban consumers, United States city average, all items,
211982-84=100. The new rate resulting from each annual adjustment
22shall be made available to the Chief Judge of each judicial
23circuit.
24(Source: P.A. 94-640, eff. 1-1-06; 95-331, eff. 8-21-07.)