HB3481 97TH GENERAL ASSEMBLY

LRB097 06340 AJO 46420 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3481

Introduced 2/24/2011, by Rep. Dennis M. Reboletti

SYNOPSIS AS INTRODUCED:

750 ILCS 5/506

from Ch. 40, par. 506

Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that in a case involving a minor child, the court may appoint, only for good cause shown, (instead of appoint) an individual (instead of an attorney) to serve as independent legal counsel for the child or as guardian ad litem. Provides that the guardian ad litem shall testify and (instead of or) submit a written report, which shall be made available before trial, to the court regarding his or her recommendations. Provides that the guardian ad litem shall not communicate with any expert witness or court appointee. Provides that the guardian ad litem shall not file any pleading in the case and shall not attend court hearings unless he or she is expected to testify by the court and all parties. Provides that a child representative shall be an attorney and shall not communicate ex-parte with any expert witness or court appointee. Provides that the court shall enter an order as appropriate for costs, fees, and disbursements when the attorney for the child or the guardian ad litem (instead of attorney, guardian ad litem, or child's representative) is appointed. Provides that the failure to timely submit the required detailed invoice (which may not include a fee for the preparation of the invoice) shall preclude the collection of that invoice. Provides that a guardian ad litem or child representative may be paid at a reasonable rate not to exceed $150 per hour, subject to an annual consumer price index adjustment. Deletes provision prohibiting the court from ordering payment by the Department of Healthcare and Family Services in cases in which the Department is providing child support enforcement services. Deletes provision that states that unless otherwise ordered by the court at the time that the 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. Makes other changes.

A BILL FOR

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, 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, only for good cause shown, appoint an individual 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 testify and 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 at least 30 days prior to the trial. The report shall set forth the guardian ad litem's findings, the names and telephone numbers of all parties interviewed, and the guardian's conclusions and recommendations. 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 and others possessing special knowledge of the child's circumstance. However, the guardian ad litem shall not communicate with any expert witness or other court appointee such as a Section 604(b) custody evaluator. The guardian ad litem shall conduct his or her own independent investigation. The guardian ad litem's testimony and recommendations may be used as one data point in rendering a custody decision or in determining the child's best interests, subject to cross-examination. The guardian ad litem is not a court's witness but rather a fiduciary who owes the duties of undivided loyalty and competent investigation exclusively to the minor child. The guardian ad litem shall not file any petition or pleading and shall not attend any court hearing unless the guardian ad litem is expected by the court and all parties to testify.

(3) Child representative. The child representative shall be an attorney and 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 owes the duties of competent legal representation and undivided loyalty exclusively to the minor child. The child representative shall not communicate ex-parte with any expert witness or other court appointee such as a Section 604(b) custody evaluator. 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 individual to be a guardian ad litem 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 written 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. Failure to submit a detailed invoice for each 90-day period in the required time period shall preclude collection of costs, fees, and disbursements for services rendered in said 90-day period. A guardian ad litem or child representative shall not bill the parties any fees for the preparation and presentation of his or her invoice. The court shall review the invoice submitted and approve the fees, if they are reasonable and necessary. The court shall not award lump sum fees to the guardian ad litem or child representative. The court shall not authorize payment of bills that are not properly itemized. Compensation for a guardian ad litem or child representative may be paid at a reasonable rate, not to exceed $150 per hour. 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.

(c) Beginning in 2012, every January 20, the statutory rate described in subsection (b) shall be automatically increased or decreased, as applicable, by a percentage equal to the percentage change in the consumer price index-u during the preceding 12-month calendar year. "Consumer price index-u" means the index published by the Bureau of Labor Statistics of the United States Department of Labor that measures that average change in prices of goods and services purchased by all urban consumers, United States city average, all items, 1982-84=100. The new rate resulting from each annual adjustment shall be made available to the Chief Judge of each judicial circuit.

(Source: P.A. 94-640, eff. 1-1-06; 95-331, eff. 8-21-07.)