Full Text of HB2833 97th General Assembly
HB2833ham001 97TH GENERAL ASSEMBLY | Rep. Dennis M. Reboletti Filed: 4/11/2011
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| 1 | | AMENDMENT TO HOUSE BILL 2833
| 2 | | AMENDMENT NO. ______. Amend House Bill 2833 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Illinois Marriage and Dissolution of | 5 | | Marriage 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, | 9 | | custody,
visitation, education, parentage, property interest, | 10 | | or general welfare of a
minor or dependent child, the court | 11 | | may, on its own motion or that of any
party , only for good | 12 | | cause shown , appoint
an individual attorney to serve in one of | 13 | | the following capacities to address the issues the court | 14 | | delineates:
| 15 | | (1) Attorney. The attorney shall provide independent | 16 | | legal counsel for the child and shall owe the same duties |
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| 1 | | of undivided loyalty, confidentiality, and competent | 2 | | representation as are due an adult client.
| 3 | | (2) Guardian ad litem. The guardian ad litem shall | 4 | | testify and or submit a written report to the court | 5 | | regarding his or her recommendations in accordance with the | 6 | | best interest of the child. The report shall be made | 7 | | available to all parties at least 30 days prior to the | 8 | | trial. The report shall set forth the guardian ad litem's | 9 | | findings, the names and telephone numbers of all | 10 | | individuals interviewed, and the guardian's conclusions | 11 | | and recommendations . The guardian ad litem may be called as | 12 | | a witness for purposes of cross-examination regarding the | 13 | | guardian ad litem's report or recommendations. The | 14 | | guardian ad litem shall investigate the facts of the case | 15 | | and interview the child and the parties and others | 16 | | possessing special knowledge of the child's circumstance. | 17 | | However, the guardian ad litem shall not communicate with | 18 | | any expert witness or other court appointee without prior | 19 | | approval from the court. The guardian ad litem shall | 20 | | conduct his or her own independent investigation. The | 21 | | guardian ad litem's testimony and recommendations may be | 22 | | used as one factor in rendering a custody decision or in | 23 | | determining the child's best interests, subject to | 24 | | cross-examination. The guardian ad litem is not a court's | 25 | | witness but rather a fiduciary who owes the duties of | 26 | | undivided loyalty and competent investigation exclusively |
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| 1 | | to the minor child. The guardian ad litem shall not file | 2 | | any petition or pleading and shall not attend any court | 3 | | hearing unless the guardian ad litem is expected by the | 4 | | court to testify .
| 5 | | (3) Child representative. The child representative | 6 | | shall be an attorney and shall advocate what the
child | 7 | | representative finds to be in the best interests of the | 8 | | child after reviewing
the facts and circumstances of the | 9 | | case. The child representative shall meet with the child | 10 | | and the parties, investigate the facts of the case, and | 11 | | encourage settlement and the use of alternative forms of | 12 | | dispute resolution. The child representative shall have
| 13 | | the same authority and obligation to participate in the | 14 | | litigation as
does an attorney for a party and shall | 15 | | possess all the powers of investigation
as does a guardian | 16 | | ad litem. The child representative
shall consider, but not | 17 | | be bound by, the expressed wishes of the child. A
child | 18 | | representative shall have received training in child | 19 | | advocacy or shall
possess such experience as determined to | 20 | | be equivalent to such training by the
chief judge of the | 21 | | circuit where the child representative has been appointed.
| 22 | | The
child representative shall not disclose confidential | 23 | | communications made
by the child, except as required by law | 24 | | or by the Rules of Professional
Conduct. The child | 25 | | representative owes the duties of competent legal | 26 | | representation and undivided loyalty exclusively to the |
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| 1 | | minor child. The child representative shall not | 2 | | communicate ex-parte with any expert witness or other court | 3 | | appointee without prior approval from the court. The child | 4 | | representative shall not render an opinion, | 5 | | recommendation, or report to the court and shall not be | 6 | | called as a witness, but shall offer evidence-based legal | 7 | | arguments. The child representative shall disclose the | 8 | | position as to what the child representative intends to | 9 | | advocate in a pre-trial memorandum that shall be served | 10 | | upon all counsel of record prior to the trial. The position | 11 | | disclosed in the pre-trial memorandum shall not be | 12 | | considered evidence. The court and the parties may consider | 13 | | the position of the child representative for purposes of a | 14 | | settlement conference.
| 15 | | (a-3) Additional appointments. During the proceedings the | 16 | | court may appoint an additional attorney to
serve in the | 17 | | capacity described in subdivision (a)(1) or the capacity an | 18 | | additional attorney to serve in another of the capacities | 19 | | described in subdivision (a)(2) or
(a)(3) on
the court's own | 20 | | motion or that of a party only for good cause shown and when | 21 | | the
reasons for the additional appointment are set forth in | 22 | | specific written findings.
| 23 | | (a-5) Appointment considerations. In deciding whether to | 24 | | make an appointment of an attorney for the minor child, a | 25 | | guardian ad litem, or a child representative, the court shall | 26 | | consider the nature and adequacy of the evidence to be |
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| 1 | | presented by the parties and the availability of other methods | 2 | | of obtaining information, including social service | 3 | | organizations and evaluations by mental health professions, as | 4 | | well as resources for payment.
| 5 | | In no event is this Section intended to or designed to | 6 | | abrogate the decision making power of the trier of fact. Any | 7 | | appointment made under this Section is not intended to nor | 8 | | should it serve to place any appointed individual in the role | 9 | | of a surrogate judge.
| 10 | | (b) Fees and costs. The court shall enter an order as | 11 | | appropriate for
costs, fees, and disbursements, including a | 12 | | retainer, when the attorney,
guardian ad litem, or child's | 13 | | representative is appointed. Any person appointed under this | 14 | | Section shall file with the court within 90 days of his or her | 15 | | appointment, and every subsequent 90-day period thereafter | 16 | | during the course of his or her representation, a detailed | 17 | | invoice for services rendered with a copy being sent to each | 18 | | party. Failure to submit a detailed invoice for each 90-day | 19 | | period in the required time period shall preclude collection of | 20 | | costs, fees, and disbursements for services rendered in said | 21 | | 90-day period. An attorney, guardian ad litem, or child | 22 | | representative shall not bill the parties any fees for the | 23 | | preparation and presentation of his or her invoice. The court | 24 | | shall review the invoice submitted and approve the fees, if | 25 | | they are reasonable and necessary. The court shall not award | 26 | | lump sum fees to the attorney, guardian ad litem, or child |
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| 1 | | representative. The court shall not authorize payment of bills | 2 | | that are not properly itemized. Compensation for the attorney, | 3 | | guardian ad litem, or child representative may be paid at a | 4 | | reasonable rate, not to exceed $150 per hour. Any order | 5 | | approving the fees shall require payment by either or both | 6 | | parents , by any
other party or source, or from the marital | 7 | | estate or the child's separate
estate.
The court may not order | 8 | | payment by the Department of Healthcare and Family Services
in | 9 | | cases in which the Department is providing child support
| 10 | | enforcement services
under Article X of the Illinois Public Aid | 11 | | Code. Unless otherwise ordered by
the
court at the time fees | 12 | | and costs are
approved, all fees and costs payable to an | 13 | | attorney, guardian ad litem, or
child representative under this | 14 | | Section are by implication deemed to be in
the nature of | 15 | | support of the child and are within the exceptions to discharge
| 16 | | in bankruptcy under 11 U.S.C.A. 523. The provisions of Sections | 17 | | 501 and 508 of
this Act shall apply to fees and costs for | 18 | | attorneys appointed under this
Section.
| 19 | | (c) Beginning in 2012, every January 20, the statutory rate | 20 | | described in subsection (b) shall be automatically increased or | 21 | | decreased, as applicable, by a percentage equal to the | 22 | | percentage change in the consumer price index-u during the | 23 | | preceding 12-month calendar year. "Consumer price index-u" | 24 | | means the index published by the Bureau of Labor Statistics of | 25 | | the United States Department of Labor that measures that | 26 | | average change in prices of goods and services purchased by all |
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| 1 | | urban consumers, United States city average, all items, | 2 | | 1982-84=100. The new rate resulting from each annual adjustment | 3 | | shall be made available to the Chief Judge of each judicial | 4 | | circuit. | 5 | | (Source: P.A. 94-640, eff. 1-1-06; 95-331, eff. 8-21-07.)".
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