Child Custody Disputes: The Role of a Guardian Ad Litem
When the allocation of parental responsibilities is in dispute, the Court has the authority to appoint an attorney to investigate the best interests of the child and make recommendations to the Court. That attorney performs the role of a Guardian Ad Litem (GAL). Either party may request the appointment of a GAL, or the Court may appoint one on its own motion.
The GAL, in addition to being a licensed attorney, is required to have completed supplemental professional education, often covering topics such as developmental considerations of children, family dynamics, interviewing and assessment techniques, mental health and substance abuse issues, ethical considerations, and others. He/She makes inquiries of each party, the child/children which are the subject of the dispute, and often, third parties with information relevant to the matters in dispute such as counselors, teachers, and extended family members.
The GAL is a neutral agent of the Court, can be cross-examined by either party, has broad authority, and communications with GALs are not subject to privilege. GALs, as licensed legal professionals, are entitled to receive a retainer for their services, separate and apart from legal fees which may be paid by either party to his/her own counsel. The GAL retainer is often allocated in percentages to each party based on their respective financial circumstances. While the recommendations of a GAL are not binding on the Court’s determinations, such recommendations are often given considerable weight in judicial decisions.
In Illinois, it is very important to have a proper plan in place for your estate. If you do not designate the beneficiaries of your estate while you are alive, when you die, your estate will have to be probated and your property will be divided using a statutory formula that takes into account the relatives you have left behind. If you have a spouse and children, your spouse will receive 50% of your estate and the other 50% will be divided between your children. If you only have a spouse, your spouse will receive everything. If you have children and no living spouse, your children will receive your estate in equal shares. The formula also addresses how your estate will be divided if you do not have a spouse or children.
What are the grounds for Marriage Annulment in Illinois?
Annulments are characterized as declarations of invalid marriages in Illinois. There are limited legal grounds for annulments which include specific legal requirements and strict deadlines for when petitions may be brought. Grounds include:
- Lack of capacity to consent to the marriage at the time it was solemnized because of mental incapacity, infirmity, being under the influence of alcohol, drugs or other incapacitating substances, or inducement to marry by force, duress or fraud involving the essentials of marriage – which must be brought no later than 90 days after knowledge of the condition is first acquired;
- Lack of physical capacity to consummate the marriage by sexual intercourse at the time the marriage was solemnized and the other party did not know of the incapacity – which must be brought no later than one year after knowledge of the condition is first acquired;
- A party was aged 16 or 17 years and did not have the consent of his/her parents or guardian or judicial approval – which must be brought prior to the time the under-aged party reaches age 18; and
- The marriage is prohibited, as in the case of bigamy and marriages with immediate family members, for which there is no deadline.
Children born during a marriage that is annulled remain the lawful and legitimate children of the marriage. Marriages are deemed invalid as of the date of the marriage, unless the Court finds, after considering all relevant circumstances, that the interests of justice would not be served by making the judgment of annulment retroactive. This means that dissolution of marriage laws relating to the division of property and maintenance, or alimony, would ordinarily not apply.
Relocation After Divorce: What Are The Requirements For Me To Move With My Child?
Effective January 1, 2016, the act of moving is statutorily characterized as “relocation.” Any parent with whom a child resides with the majority of the time, or either parent if the child resides with both of them equal amounts of time, must provide advance written notice to the other parent of an intent to move: a) more than 25 miles from the child’s current home, if the child resides in Cook, DuPage, Kane, Lake, McHenry or Will County; b) more than 50 miles from the child’s current home, if the child resides in any other county in Illinois; or c) out of state to a new residence that is located more than 25 miles from the child’s current residence.
The notice must meet the following requirements: state the date when the parent intends to move; state the new address which the parent will be moving to; and, if not a permanent move, state the length of time the parent will be living at the new address. The notice must be provided to the other parent at least 60 days in advance of the move, unless a Court orders otherwise or is impracticable, in which case, notice must be given at the earliest practicable time.
If the non-moving parent consents to the move, and signs and returns the notice to the moving parent, then the moving parent may file the signed notice with the Court and no further court action is required. If the non-moving parent does not consent, or fails to return the signed notice, the moving parent must file a petition with the Court asking for permission to relocate before the move may occur.
What are the current grounds for divorce in Illinois?
Grounds are the circumstances under which a marriage may be dissolved. Illinois previously permitted divorce to occur on both “no-fault” grounds as well as “fault-based” grounds. Effective January 1, 2016, the single available ground for divorce is now “irreconcilable differences”. The Court will consider said ground to be satisfied upon a finding that irreconcilable differences have caused the irretrievable breakdown of the marriage and the Court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.
If the above elements are contested, the parties having lived separate and apart for a continuous period of not less than six (6) months immediately preceding the entry of the judgment dissolving the marriage, creates an irrebuttable presumption that the requirement of irreconcilable differences has been met. “Separate and apart” does not mean an actual physical separation of the divorcing spouses inasmuch as the parties may share a common household but have ceased living as husband and wife.
Mediators are approved by the Court after completing a Court approved training program and generally hold degrees in law, psychiatry, psychology, social work, human development, family counseling or other related fields. Mediators are paid a fee for their services which is allocated in percentages to each party, to be paid by the parties at the time of each mediation session. Unless otherwise agreed, mediation entails a maximum of three (3) hours and mediators may charge an additional hour for administrative fees. Attorney Kramer is an approved mediator in Will County and has successfully mediated hundreds of custody, visitation and parenting disputes.
Mediation is a court ordered confidential process where a qualified and neutral mediator, selected by the parties or appointed by the Court, assists the litigants in reaching mutually acceptable agreements. It is an informal and non-adversarial process. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem-solving, exploring settlement alternatives and reaching agreements. Parties are required to mediate in good faith.
Your First Court Date in Divorce Cases: Case Management/Status Conferences
The purpose of a case management or status conference is to prevent delay in the disposition of the case and to monitor compliance with court rules. An initial date is set by the Clerk of the Court upon a case being filed under the Illinois Marriage and Dissolution of Marriage Act or the Illinois Parentage Act, and usually occurs approximately ninety (90) days after the date of commencement of the case. At the date, the parties, or their attorneys of record if represented, appear before the Court and report the progress of the case to the Court, including: whether the parties have complied with the parenting education program requirements; whether the parties have reached agreement on allocation of parental responsibilities; whether mediation scheduling is in order; and whether the parties have exchanged financial affidavits. Additional dates are set after the initial date, as may be required.
Please join us in celebrating the opening of our Lombard Office on Thursday November 10th. The Lombard Chamber of Commerce is helping us celebrate with a ribbon cutting ceremony at 5:00pm. Snacks and refreshments will be provided!
Getting a divorce can be one of the most challenging and emotional times in life. Far too often, we see clients hurting their case by letting their anger with their spouse get in the way of making rational decisions. No matter what you or your spouse did to “cause” the divorce, it should not be used as an excuse to rack up debt or spend money in an irresponsible manner. Even if a divorce has not been filed yet, these actions can be brought to the Court’s attention during the divorce, and you could be forced to not only account for every dollar spent, but reimburse your spouse for 50% of every dollar spent or incurred irresponsibly.
Similarly, do not take out your anger by damaging your spouse’s property or threatening a spouse’s new significant other. These actions can be used against you when the Court makes custody determinations and allocates parental responsibilities. The ability of each spouse to facilitate a close and continuing relationship between the children and the other parent is a major factor considered in custody cases. Don’t let one angry mistake be the determining factor in your case.