Bill Text: IL HB3481 | 2011-2012 | 97th General Assembly | Introduced


Bill Title: 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.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2013-01-08 - Session Sine Die [HB3481 Detail]

Download: Illinois-2011-HB3481-Introduced.html


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.
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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, only for good
12cause shown, appoint an individual attorney to serve in one of
13the following capacities to address the issues the court
14delineates:
15 (1) Attorney. The attorney shall provide independent
16 legal counsel for the child and shall owe the same duties
17 of undivided loyalty, confidentiality, and competent
18 representation as are due an adult client.
19 (2) Guardian ad litem. The guardian ad litem shall
20 testify and or submit a written report to the court
21 regarding his or her recommendations in accordance with the
22 best interest of the child. The report shall be made
23 available to all parties at least 30 days prior to the

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1 trial. The report shall set forth the guardian ad litem's
2 findings, the names and telephone numbers of all parties
3 interviewed, and the guardian's conclusions and
4 recommendations. The guardian ad litem may be called as a
5 witness for purposes of cross-examination regarding the
6 guardian ad litem's report or recommendations. The
7 guardian ad litem shall investigate the facts of the case
8 and interview the child and the parties and others
9 possessing special knowledge of the child's circumstance.
10 However, the guardian ad litem shall not communicate with
11 any expert witness or other court appointee such as a
12 Section 604(b) custody evaluator. The guardian ad litem
13 shall conduct his or her own independent investigation. The
14 guardian ad litem's testimony and recommendations may be
15 used as one data point in rendering a custody decision or
16 in determining the child's best interests, subject to
17 cross-examination. The guardian ad litem is not a court's
18 witness but rather a fiduciary who owes the duties of
19 undivided loyalty and competent investigation exclusively
20 to the minor child. The guardian ad litem shall not file
21 any petition or pleading and shall not attend any court
22 hearing unless the guardian ad litem is expected by the
23 court and all parties to testify.
24 (3) Child representative. The child representative
25 shall be an attorney and shall advocate what the child
26 representative finds to be in the best interests of the

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1 child after reviewing the facts and circumstances of the
2 case. The child representative shall meet with the child
3 and the parties, investigate the facts of the case, and
4 encourage settlement and the use of alternative forms of
5 dispute resolution. The child representative shall have
6 the same authority and obligation to participate in the
7 litigation as does an attorney for a party and shall
8 possess all the powers of investigation as does a guardian
9 ad litem. The child representative shall consider, but not
10 be bound by, the expressed wishes of the child. A child
11 representative shall have received training in child
12 advocacy or shall possess such experience as determined to
13 be equivalent to such training by the chief judge of the
14 circuit where the child representative has been appointed.
15 The child representative shall not disclose confidential
16 communications made by the child, except as required by law
17 or by the Rules of Professional Conduct. The child
18 representative owes the duties of competent legal
19 representation and undivided loyalty exclusively to the
20 minor child. The child representative shall not
21 communicate ex-parte with any expert witness or other court
22 appointee such as a Section 604(b) custody evaluator. The
23 child representative shall not render an opinion,
24 recommendation, or report to the court and shall not be
25 called as a witness, but shall offer evidence-based legal
26 arguments. The child representative shall disclose the

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1 position as to what the child representative intends to
2 advocate in a pre-trial memorandum that shall be served
3 upon all counsel of record prior to the trial. The position
4 disclosed in the pre-trial memorandum shall not be
5 considered evidence. The court and the parties may consider
6 the position of the child representative for purposes of a
7 settlement conference.
8 (a-3) Additional appointments. During the proceedings the
9court may appoint an additional individual to be a guardian ad
10litem attorney to serve in the capacity described in
11subdivision (a)(1) or an additional attorney to serve in
12another of the capacities described in subdivision (a)(2) or
13(a)(3) on the court's own motion or that of a party only for
14good cause shown and when the reasons for the additional
15appointment are set forth in specific written 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 said
1490-day period. A guardian ad litem or child representative
15shall not bill the parties any fees for the preparation and
16presentation of his or her invoice. The court shall review the
17invoice submitted and approve the fees, if they are reasonable
18and necessary. The court shall not award lump sum fees to the
19guardian ad litem or child representative. The court shall not
20authorize payment of bills that are not properly itemized.
21Compensation for a guardian ad litem or child representative
22may be paid at a reasonable rate, not to exceed $150 per hour.
23Any order approving the fees shall require payment by either or
24both parents, by any other party or source, or from the marital
25estate or the child's separate estate. The court may not order
26payment by the Department of Healthcare and Family Services in

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1cases in which the Department is providing child support
2enforcement services under Article X of the Illinois Public Aid
3Code. Unless otherwise ordered by the court at the time fees
4and costs are approved, all fees and costs payable to an
5attorney, guardian ad litem, or child representative under this
6Section are by implication deemed to be in the nature of
7support of the child and are within the exceptions to discharge
8in bankruptcy under 11 U.S.C.A. 523. The provisions of Sections
9501 and 508 of this Act shall apply to fees and costs for
10attorneys appointed under this Section.
11 (c) Beginning in 2012, every January 20, the statutory rate
12described in subsection (b) shall be automatically increased or
13decreased, as applicable, by a percentage equal to the
14percentage change in the consumer price index-u during the
15preceding 12-month calendar year. "Consumer price index-u"
16means the index published by the Bureau of Labor Statistics of
17the United States Department of Labor that measures that
18average change in prices of goods and services purchased by all
19urban consumers, United States city average, all items,
201982-84=100. The new rate resulting from each annual adjustment
21shall be made available to the Chief Judge of each judicial
22circuit.
23(Source: P.A. 94-640, eff. 1-1-06; 95-331, eff. 8-21-07.)
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