98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2330

 

Introduced , by Rep. La Shawn K. Ford

 

SYNOPSIS AS INTRODUCED:
 
305 ILCS 5/10-3.1  from Ch. 23, par. 10-3.1
305 ILCS 5/10-12.5 new
730 ILCS 5/3-6-9 new
730 ILCS 5/5-3-1  from Ch. 38, par. 1005-3-1
730 ILCS 5/5-3-2  from Ch. 38, par. 1005-3-2
750 ILCS 5/510  from Ch. 40, par. 510

    Amends the Illinois Public Aid Code, the Unified Code of Corrections, and the Illinois Marriage and Dissolution of Marriage Act. Provides that a person's obligation to pay child support pursuant to a court or administrative order is suspended by operation of law during any period that the person is committed to the custody of the Department of Corrections or the Department of Juvenile Justice. Provides that the programs of the Department of Healthcare and Family Services concerning child support orders shall include cases in which a responsible relative who is committed to the custody of the Department of Corrections or the Department of Juvenile Justice requests modification of the support order. Provides that the Department of Corrections and the Department of Juvenile Justice shall establish programs to assist committed persons who are obligors under child support orders in cases in which child support enforcement services are provided by the Department of Healthcare and Family Services. Provides for inclusion of information about any child support obligation owed by the defendant and recommendations concerning the payment of that obligation in a presentence report; requires a presentence investigation and report in the case of a misdemeanor defendant who owes a child support obligation.


LRB098 10536 DRJ 40774 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB2330LRB098 10536 DRJ 40774 b

1    AN ACT concerning public aid.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Public Aid Code is amended by
5changing Section 10-3.1 and adding Section 10-12.5 as follows:
 
6    (305 ILCS 5/10-3.1)  (from Ch. 23, par. 10-3.1)
7    Sec. 10-3.1. Child and Spouse Support Unit. The Illinois
8Department shall establish within its administrative staff a
9Child and Spouse Support Unit to search for and locate absent
10parents and spouses liable for the support of persons resident
11in this State and to exercise the support enforcement powers
12and responsibilities assigned the Department by this Article.
13The unit shall cooperate with all law enforcement officials in
14this State and with the authorities of other States in locating
15persons responsible for the support of persons resident in
16other States and shall invite the cooperation of these
17authorities in the performance of its duties.
18    In addition to other duties assigned the Child and Spouse
19Support Unit by this Article, the Unit may refer to the
20Attorney General or units of local government with the approval
21of the Attorney General, any actions under Sections 10-10 and
2210-15 for judicial enforcement of the support liability. The
23Child and Spouse Support Unit shall act for the Department in

 

 

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1referring to the Attorney General support matters requiring
2judicial enforcement under other laws. If requested by the
3Attorney General to so act, as provided in Section 12-16,
4attorneys of the Unit may assist the Attorney General or
5themselves institute actions in behalf of the Illinois
6Department under the Revised Uniform Reciprocal Enforcement of
7Support Act; under the Illinois Parentage Act of 1984; under
8the Non-Support of Spouse and Children Act; under the
9Non-Support Punishment Act; or under any other law, State or
10Federal, providing for support of a spouse or dependent child.
11    The Illinois Department shall also have the authority to
12enter into agreements with local governmental units or
13individuals, with the approval of the Attorney General, for the
14collection of moneys owing because of the failure of a parent
15to make child support payments for any child receiving services
16under this Article. Such agreements may be on a contingent fee
17basis, but such contingent fee shall not exceed 25% of the
18total amount collected.
19    An attorney who provides representation pursuant to this
20Section shall represent the Illinois Department exclusively.
21Regardless of the designation of the plaintiff in an action
22brought pursuant to this Section, an attorney-client
23relationship does not exist for purposes of that action between
24that attorney and (i) an applicant for or recipient of child
25support enforcement services or (ii) any other party to the
26action other than the Illinois Department. Nothing in this

 

 

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1Section shall be construed to modify any power or duty
2(including a duty to maintain confidentiality) of the Child and
3Spouse Support Unit or the Illinois Department otherwise
4provided by law.
5    The Illinois Department may also enter into agreements with
6local governmental units for the Child and Spouse Support Unit
7to exercise the investigative and enforcement powers
8designated in this Article, including the issuance of
9administrative orders under Section 10-11, in locating
10responsible relatives and obtaining support for persons
11applying for or receiving aid under Article VI. Payments for
12defrayment of administrative costs and support payments
13obtained shall be deposited into the DHS Recoveries Trust Fund.
14Support payments shall be paid over to the General Assistance
15Fund of the local governmental unit at such time or times as
16the agreement may specify.
17    With respect to those cases in which it has support
18enforcement powers and responsibilities under this Article,
19the Illinois Department may provide by rule for periodic or
20other review of each administrative and court order for support
21to determine whether a modification of the order should be
22sought. The Illinois Department shall provide for and conduct
23such review in accordance with any applicable federal law and
24regulation. The Illinois Department's program for review and
25modification of orders for support in cases in which support
26enforcement services are being provided under this Article X

 

 

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1shall include, but not be limited to, cases in which a
2responsible relative who is committed to the custody of the
3Department of Corrections or the Department of Juvenile Justice
4requests review and modification of the order for support. The
5Illinois Department shall enter into cooperative agreements
6with the Department of Corrections and the Department of
7Juvenile Justice to facilitate receipt of such requests from
8committed persons.
9    As part of its process for review of orders for support,
10the Illinois Department, through written notice, may require
11the responsible relative to disclose his or her Social Security
12Number and past and present information concerning the
13relative's address, employment, gross wages, deductions from
14gross wages, net wages, bonuses, commissions, number of
15dependent exemptions claimed, individual and dependent health
16insurance coverage, and any other information necessary to
17determine the relative's ability to provide support in a case
18receiving child support enforcement services under this
19Article X.
20    The Illinois Department may send a written request for the
21same information to the relative's employer. The employer shall
22respond to the request for information within 15 days after the
23date the employer receives the request. If the employer
24willfully fails to fully respond within the 15-day period, the
25employer shall pay a penalty of $100 for each day that the
26response is not provided to the Illinois Department after the

 

 

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115-day period has expired. The penalty may be collected in a
2civil action which may be brought against the employer in favor
3of the Illinois Department.
4    A written request for information sent to an employer
5pursuant to this Section shall consist of (i) a citation of
6this Section as the statutory authority for the request and for
7the employer's obligation to provide the requested
8information, (ii) a returnable form setting forth the
9employer's name and address and listing the name of the
10employee with respect to whom information is requested, and
11(iii) a citation of this Section as the statutory authority
12authorizing the employer to withhold a fee of up to $20 from
13the wages or income to be paid to each responsible relative for
14providing the information to the Illinois Department within the
1515-day period. If the employer is withholding support payments
16from the responsible relative's income pursuant to an order for
17withholding, the employer may withhold the fee provided for in
18this Section only after withholding support as required under
19the order. Any amounts withheld from the responsible relative's
20income for payment of support and the fee provided for in this
21Section shall not be in excess of the amounts permitted under
22the federal Consumer Credit Protection Act.
23    In a case receiving child support enforcement services, the
24Illinois Department may request and obtain information from a
25particular employer under this Section no more than once in any
2612-month period, unless the information is necessary to conduct

 

 

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1a review of a court or administrative order for support at the
2request of the person receiving child support enforcement
3services.
4    The Illinois Department shall establish and maintain an
5administrative unit to receive and transmit to the Child and
6Spouse Support Unit information supplied by persons applying
7for or receiving child support enforcement services under
8Section 10-1. In addition, the Illinois Department shall
9address and respond to any alleged deficiencies that persons
10receiving or applying for services from the Child and Spouse
11Support Unit may identify concerning the Child and Spouse
12Support Unit's provision of child support enforcement
13services. Within 60 days after an action or failure to act by
14the Child and Spouse Support Unit that affects his or her case,
15a recipient of or applicant for child support enforcement
16services under Article X of this Code may request an
17explanation of the Unit's handling of the case. At the
18requestor's option, the explanation may be provided either
19orally in an interview, in writing, or both. If the Illinois
20Department fails to respond to the request for an explanation
21or fails to respond in a manner satisfactory to the applicant
22or recipient within 30 days from the date of the request for an
23explanation, the applicant or recipient may request a
24conference for further review of the matter by the Office of
25the Administrator of the Child and Spouse Support Unit. A
26request for a conference may be submitted at any time within 60

 

 

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1days after the explanation has been provided by the Child and
2Spouse Support Unit or within 60 days after the time for
3providing the explanation has expired.
4    The applicant or recipient may request a conference
5concerning any decision denying or terminating child support
6enforcement services under Article X of this Code, and the
7applicant or recipient may also request a conference concerning
8the Unit's failure to provide services or the provision of
9services in an amount or manner that is considered inadequate.
10For purposes of this Section, the Child and Spouse Support Unit
11includes all local governmental units or individuals with whom
12the Illinois Department has contracted under Section 10-3.1.
13    Upon receipt of a timely request for a conference, the
14Office of the Administrator shall review the case. The
15applicant or recipient requesting the conference shall be
16entitled, at his or her option, to appear in person or to
17participate in the conference by telephone. The applicant or
18recipient requesting the conference shall be entitled to be
19represented and to be afforded a reasonable opportunity to
20review the Illinois Department's file before or at the
21conference. At the conference, the applicant or recipient
22requesting the conference shall be afforded an opportunity to
23present all relevant matters in support of his or her claim.
24Conferences shall be without cost to the applicant or recipient
25requesting the conference and shall be conducted by a
26representative of the Child or Spouse Support Unit who did not

 

 

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1participate in the action or inaction being reviewed.
2    The Office of the Administrator shall conduct a conference
3and inform all interested parties, in writing, of the results
4of the conference within 60 days from the date of filing of the
5request for a conference.
6    In addition to its other powers and responsibilities
7established by this Article, the Child and Spouse Support Unit
8shall conduct an annual assessment of each institution's
9program for institution based paternity establishment under
10Section 12 of the Vital Records Act.
11(Source: P.A. 91-24, eff. 7-1-99; 91-613, eff. 10-1-99; 92-16,
12eff. 6-28-01; 92-590, eff. 7-1-02.)
 
13    (305 ILCS 5/10-12.5 new)
14    Sec. 10-12.5. Suspension of child support obligation
15during period of incarceration. Unless otherwise agreed by the
16parties in a written agreement set forth in a court or
17administrative order for support or unless otherwise approved
18by a court, an obligation to pay child support is suspended by
19operation of law during any period of time in which the person
20owing a duty of support is committed to the custody of the
21Department of Corrections or the Department of Juvenile
22Justice.
 
23    Section 10. The Unified Code of Corrections is amended by
24changing Sections 5-3-1 and 5-3-2 and adding Section 3-6-9 as

 

 

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1follows:
 
2    (730 ILCS 5/3-6-9 new)
3    Sec. 3-6-9. Assistance in requesting review and
4modification of support orders. The Department shall develop
5and establish a program to assist committed persons who are
6obligors under support orders in cases in which child support
7enforcement services are being provided by the Department of
8Healthcare and Family Services under Article X of the Illinois
9Public Aid Code in requesting review and modification of such
10support orders as provided for under that Code. The Department
11shall enter into a cooperative agreement with the Department of
12Healthcare and Family Services to facilitate transmittal of
13such requests from committed persons.
 
14    (730 ILCS 5/5-3-1)  (from Ch. 38, par. 1005-3-1)
15    Sec. 5-3-1. Presentence Investigation. A defendant shall
16not be sentenced for a felony before a written presentence
17report of investigation is presented to and considered by the
18court. A defendant who owes a child support obligation shall
19not be sentenced for a misdemeanor before a written presentence
20report of investigation is presented to and considered by the
21court.
22    However, other than for felony sex offenders being
23considered for probation, the court need not order a
24presentence report of investigation where both parties agree to

 

 

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1the imposition of a specific sentence, provided there is a
2finding made for the record as to the defendant's history of
3delinquency or criminality, including any previous sentence to
4a term of probation, periodic imprisonment, conditional
5discharge, or imprisonment.
6    The court may order a presentence investigation of any
7defendant.
8(Source: P.A. 93-616, eff. 1-1-04; 93-970, eff. 8-20-04.)
 
9    (730 ILCS 5/5-3-2)  (from Ch. 38, par. 1005-3-2)
10    Sec. 5-3-2. Presentence Report.
11    (a) In felony cases, the presentence report shall set
12forth:
13        (1) the defendant's history of delinquency or
14    criminality, physical and mental history and condition,
15    family situation and background, economic status,
16    education, occupation and personal habits;
17        (1.5) information about any child support obligation
18    owed by the defendant and recommendations concerning the
19    payment of that obligation; this information shall also be
20    set forth in any presentence report prepared in connection
21    with a misdemeanor case involving a defendant who owes a
22    child support obligation;
23        (2) information about special resources within the
24    community which might be available to assist the
25    defendant's rehabilitation, including treatment centers,

 

 

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1    residential facilities, vocational training services,
2    correctional manpower programs, employment opportunities,
3    special educational programs, alcohol and drug abuse
4    programming, psychiatric and marriage counseling, and
5    other programs and facilities which could aid the
6    defendant's successful reintegration into society;
7        (3) the effect the offense committed has had upon the
8    victim or victims thereof, and any compensatory benefit
9    that various sentencing alternatives would confer on such
10    victim or victims;
11        (4) information concerning the defendant's status
12    since arrest, including his record if released on his own
13    recognizance, or the defendant's achievement record if
14    released on a conditional pre-trial supervision program;
15        (5) when appropriate, a plan, based upon the personal,
16    economic and social adjustment needs of the defendant,
17    utilizing public and private community resources as an
18    alternative to institutional sentencing;
19        (6) any other matters that the investigatory officer
20    deems relevant or the court directs to be included; and
21        (7) information concerning defendant's eligibility for
22    a sentence to a county impact incarceration program under
23    Section 5-8-1.2 of this Code.
24    (b) The investigation shall include a physical and mental
25examination of the defendant when so ordered by the court. If
26the court determines that such an examination should be made,

 

 

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1it shall issue an order that the defendant submit to
2examination at such time and place as designated by the court
3and that such examination be conducted by a physician,
4psychologist or psychiatrist designated by the court. Such an
5examination may be conducted in a court clinic if so ordered by
6the court. The cost of such examination shall be paid by the
7county in which the trial is held.
8    (b-5) In cases involving felony sex offenses in which the
9offender is being considered for probation only or any felony
10offense that is sexually motivated as defined in the Sex
11Offender Management Board Act in which the offender is being
12considered for probation only, the investigation shall include
13a sex offender evaluation by an evaluator approved by the Board
14and conducted in conformance with the standards developed under
15the Sex Offender Management Board Act. In cases in which the
16offender is being considered for any mandatory prison sentence,
17the investigation shall not include a sex offender evaluation.
18    (c) In misdemeanor, business offense or petty offense
19cases, except as specified in subsection (d) of this Section,
20when a presentence report has been ordered by the court, such
21presentence report shall contain information on the
22defendant's history of delinquency or criminality and shall
23further contain only those matters listed in any of paragraphs
24(1) through (6) of subsection (a) or in subsection (b) of this
25Section as are specified by the court in its order for the
26report.

 

 

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1    (d) In cases under Sections 11-1.50, 12-15, and 12-3.4 or
212-30 of the Criminal Code of 1961 or the Criminal Code of
32012, the presentence report shall set forth information about
4alcohol, drug abuse, psychiatric, and marriage counseling or
5other treatment programs and facilities, information on the
6defendant's history of delinquency or criminality, and shall
7contain those additional matters listed in any of paragraphs
8(1) through (6) of subsection (a) or in subsection (b) of this
9Section as are specified by the court.
10    (e) Nothing in this Section shall cause the defendant to be
11held without bail or to have his bail revoked for the purpose
12of preparing the presentence report or making an examination.
13(Source: P.A. 96-322, eff. 1-1-10; 96-1551, Article 1, Section
14970, eff. 7-1-11; 96-1551, Article 2, Section 1065, eff.
157-1-11; 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
 
16    Section 15. The Illinois Marriage and Dissolution of
17Marriage Act is amended by changing Section 510 as follows:
 
18    (750 ILCS 5/510)  (from Ch. 40, par. 510)
19    Sec. 510. Modification and termination of provisions for
20maintenance, support, educational expenses, and property
21disposition.
22    (a) Except as otherwise provided in paragraph (f) of
23Section 502 and in subsection (b), clause (3) of Section 505.2,
24the provisions of any judgment respecting maintenance or

 

 

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1support may be modified only as to installments accruing
2subsequent to due notice by the moving party of the filing of
3the motion for modification. An order for child support may be
4modified as follows:
5        (1) upon a showing of a substantial change in
6    circumstances; and
7        (2) without the necessity of showing a substantial
8    change in circumstances, as follows:
9            (A) upon a showing of an inconsistency of at least
10        20%, but no less than $10 per month, between the amount
11        of the existing order and the amount of child support
12        that results from application of the guidelines
13        specified in Section 505 of this Act unless the
14        inconsistency is due to the fact that the amount of the
15        existing order resulted from a deviation from the
16        guideline amount and there has not been a change in the
17        circumstances that resulted in that deviation; or
18            (B) upon a showing of a need to provide for the
19        health care needs of the child under the order through
20        health insurance or other means. In no event shall the
21        eligibility for or receipt of medical assistance be
22        considered to meet the need to provide for the child's
23        health care needs.
24    The provisions of subparagraph (a)(2)(A) shall apply only
25in cases in which a party is receiving child support
26enforcement services from the Department of Healthcare and

 

 

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1Family Services under Article X of the Illinois Public Aid
2Code, and only when at least 36 months have elapsed since the
3order for child support was entered or last modified.
4    (a-5) An order for maintenance may be modified or
5terminated only upon a showing of a substantial change in
6circumstances. In all such proceedings, as well as in
7proceedings in which maintenance is being reviewed, the court
8shall consider the applicable factors set forth in subsection
9(a) of Section 504 and the following factors:
10        (1) any change in the employment status of either party
11    and whether the change has been made in good faith;
12        (2) the efforts, if any, made by the party receiving
13    maintenance to become self-supporting, and the
14    reasonableness of the efforts where they are appropriate;
15        (3) any impairment of the present and future earning
16    capacity of either party;
17        (4) the tax consequences of the maintenance payments
18    upon the respective economic circumstances of the parties;
19        (5) the duration of the maintenance payments
20    previously paid (and remaining to be paid) relative to the
21    length of the marriage;
22        (6) the property, including retirement benefits,
23    awarded to each party under the judgment of dissolution of
24    marriage, judgment of legal separation, or judgment of
25    declaration of invalidity of marriage and the present
26    status of the property;

 

 

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1        (7) the increase or decrease in each party's income
2    since the prior judgment or order from which a review,
3    modification, or termination is being sought;
4        (8) the property acquired and currently owned by each
5    party after the entry of the judgment of dissolution of
6    marriage, judgment of legal separation, or judgment of
7    declaration of invalidity of marriage; and
8        (9) any other factor that the court expressly finds to
9    be just and equitable.
10    (b) The provisions as to property disposition may not be
11revoked or modified, unless the court finds the existence of
12conditions that justify the reopening of a judgment under the
13laws of this State.
14    (c) Unless otherwise agreed by the parties in a written
15agreement set forth in the judgment or otherwise approved by
16the court, the obligation to pay future maintenance is
17terminated upon the death of either party, or the remarriage of
18the party receiving maintenance, or if the party receiving
19maintenance cohabits with another person on a resident,
20continuing conjugal basis. Any obligation of a payor party for
21premium payments respecting insurance on such party's life
22imposed under subsection (f) of Section 504 is also terminated
23on the occurrence of any of the foregoing events, unless
24otherwise agreed by the parties. Any termination of an
25obligation for maintenance as a result of the death of the
26payor party, however, shall be inapplicable to any right of the

 

 

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1other party or such other party's designee to receive a death
2benefit under such insurance on the payor party's life.
3    (d) Unless otherwise provided in this Act, or as agreed in
4writing or expressly provided in the judgment, provisions for
5the support of a child are terminated by emancipation of the
6child, or if the child has attained the age of 18 and is still
7attending high school, provisions for the support of the child
8are terminated upon the date that the child graduates from high
9school or the date the child attains the age of 19, whichever
10is earlier, but not by the death of a parent obligated to
11support or educate the child. An existing obligation to pay for
12support or educational expenses, or both, is not terminated by
13the death of a parent. When a parent obligated to pay support
14or educational expenses, or both, dies, the amount of support
15or educational expenses, or both, may be enforced, modified,
16revoked or commuted to a lump sum payment, as equity may
17require, and that determination may be provided for at the time
18of the dissolution of the marriage or thereafter.
19    (d-5) Unless otherwise agreed by the parties in a written
20agreement set forth in the judgment or otherwise approved by
21the court, an obligation to pay child support is suspended by
22operation of law during any period of time in which the person
23owing a duty of support is committed to the custody of the
24Department of Corrections or the Department of Juvenile
25Justice.
26    (e) The right to petition for support or educational

 

 

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1expenses, or both, under Sections 505 and 513 is not
2extinguished by the death of a parent. Upon a petition filed
3before or after a parent's death, the court may award sums of
4money out of the decedent's estate for the child's support or
5educational expenses, or both, as equity may require. The time
6within which a claim may be filed against the estate of a
7decedent under Sections 505 and 513 and subsection (d) and this
8subsection shall be governed by the provisions of the Probate
9Act of 1975, as a barrable, noncontingent claim.
10    (f) A petition to modify or terminate child support,
11custody, or visitation shall not delay any child support
12enforcement litigation or supplementary proceeding on behalf
13of the obligee, including, but not limited to, a petition for a
14rule to show cause, for non-wage garnishment, or for a
15restraining order.
16(Source: P.A. 97-608, eff. 1-1-12.)