Full Text of HB5544 97th General Assembly
HB5544ham001 97TH GENERAL ASSEMBLY | Rep. Jil Tracy Filed: 3/20/2012
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| 1 | | AMENDMENT TO HOUSE BILL 5544
| 2 | | AMENDMENT NO. ______. Amend House Bill 5544 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, appoint
an | 12 | | attorney to serve in one of the following capacities to address | 13 | | the issues the court delineates:
| 14 | | (1) Attorney. The attorney shall provide independent | 15 | | legal counsel for the child and shall owe the same duties | 16 | | of undivided loyalty, confidentiality, and competent |
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| 1 | | representation as are due an adult client.
| 2 | | (2) Guardian ad litem. The guardian ad litem shall file | 3 | | an appearance. The guardian ad litem shall testify or | 4 | | submit a written report to the court regarding his or her | 5 | | recommendations in accordance with the best interest of the | 6 | | child. The report shall be made available to all parties. | 7 | | The guardian ad litem may be deposed no later than 30 days | 8 | | before trial or as otherwise ordered by the court. At | 9 | | trial, the The guardian ad litem may be called as a witness | 10 | | for purposes of cross-examination regarding the guardian | 11 | | ad litem's report or recommendations. The guardian ad litem | 12 | | may be deemed an opinion witness, subject to a motion to | 13 | | exclude witnesses. The guardian ad litem may, as | 14 | | practicable, be called to testify first, after which | 15 | | testimony the guardian ad litem may be discharged. This | 16 | | provision shall not be interposed to preclude a guardian ad | 17 | | litem from being called as a rebuttal witness. The guardian | 18 | | ad litem shall investigate the facts of the case and | 19 | | interview the child and the parties.
| 20 | | (3) Child representative. The child representative | 21 | | shall advocate what the
child representative finds to be in | 22 | | the best interests of the child after reviewing
the facts | 23 | | and circumstances of the case. The child representative | 24 | | shall meet with the child and the parties, investigate the | 25 | | facts of the case, and encourage settlement and the use of | 26 | | alternative forms of dispute resolution. The child |
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| 1 | | representative shall have
the same authority and | 2 | | obligation to participate in the litigation as
does an | 3 | | attorney for a party and shall possess all the powers of | 4 | | investigation
as does a guardian ad litem. The child | 5 | | representative
shall consider, but not be bound by, the | 6 | | expressed wishes of the child. A
child representative shall | 7 | | have received training in child advocacy or shall
possess | 8 | | such experience as determined to be equivalent to such | 9 | | training by the
chief judge of the circuit where the child | 10 | | representative has been appointed.
The
child | 11 | | representative shall not disclose confidential | 12 | | communications made
by the child, except as required by law | 13 | | or by the Rules of Professional
Conduct. The child | 14 | | representative shall not render an opinion, | 15 | | recommendation, or report to the court and shall not be | 16 | | called as a witness, but shall offer evidence-based legal | 17 | | arguments. The child representative shall disclose the | 18 | | position as to what the child representative intends to | 19 | | advocate in a pre-trial memorandum that shall be served | 20 | | upon all counsel of record prior to the trial. The position | 21 | | disclosed in the pre-trial memorandum shall not be | 22 | | considered evidence. The court and the parties may consider | 23 | | the position of the child representative for purposes of a | 24 | | settlement conference.
| 25 | | (a-3) Additional appointments. During the proceedings the | 26 | | court may appoint an additional attorney to
serve in the |
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| 1 | | capacity described in subdivision (a)(1) or an additional | 2 | | attorney to serve in another of the capacities described in | 3 | | subdivision (a)(2) or
(a)(3) on
the court's own motion or that | 4 | | of a party only for good cause shown and when the
reasons for | 5 | | the additional appointment are set forth in specific findings.
| 6 | | (a-5) Appointment considerations. In deciding whether to | 7 | | make an appointment of an attorney for the minor child, a | 8 | | guardian ad litem, or a child representative, the court shall | 9 | | consider the nature and adequacy of the evidence to be | 10 | | presented by the parties and the availability of other methods | 11 | | of obtaining information, including social service | 12 | | organizations and evaluations by mental health professions, as | 13 | | well as resources for payment.
| 14 | | In no event is this Section intended to or designed to | 15 | | abrogate the decision making power of the trier of fact. Any | 16 | | appointment made under this Section is not intended to nor | 17 | | should it serve to place any appointed individual in the role | 18 | | of a surrogate judge.
| 19 | | A party is entitled to one substitution of a particular | 20 | | attorney, guardian ad litem, or child representative if he or | 21 | | she makes a written request for substitution within 7 days | 22 | | after the appointment of a particular attorney, guardian ad | 23 | | litem, or child representative. A party may request a | 24 | | substitution once. | 25 | | (b) Fees and costs. The court shall enter an order as | 26 | | appropriate for
costs, fees, and disbursements, including a |
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| 1 | | retainer, when the attorney,
guardian ad litem, or child's | 2 | | representative is appointed. This shall be done by the court at | 3 | | the outset of the appointment, taking into consideration the | 4 | | financial circumstances of the parties and the prevailing rates | 5 | | in the community for attorneys with comparable experience and | 6 | | expertise in family law. The parties shall have an opportunity | 7 | | to be heard on the fees set and on any further petitions for | 8 | | interim fees. The court may, in appropriate circumstances, make | 9 | | the appointment pro bono, provided that the person so appointed | 10 | | may decline the appointment. Any person appointed under this | 11 | | Section shall file with the court within 90 days of his or her | 12 | | appointment, and every subsequent 90-day period thereafter | 13 | | during the course of his or her representation, a detailed | 14 | | invoice for services rendered with a copy being sent to each | 15 | | party. Failure to submit a detailed invoice for each 90-day | 16 | | period in the required time period precludes collection of | 17 | | costs, fees, and disbursements for services rendered in that | 18 | | 90-day period. An attorney, guardian ad litem, or child | 19 | | representative may not bill the parties for preparation or | 20 | | presentation of his or her invoice. The court shall review the | 21 | | invoice submitted and approve the fees, if they are reasonable | 22 | | and necessary. If a party files a motion to reconsider approval | 23 | | of these fees, that motion must be heard by the designated | 24 | | supervising judge for domestic relations cases or, in circuits | 25 | | in which no such judge is designated, by the chief judge of the | 26 | | circuit. Subject to a rebuttable presumption that the parents |
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| 1 | | are jointly and severally liable for payment of said reasonable | 2 | | and necessary fees, the court shall enter an order approving | 3 | | the fees, setting forth with specificity the terms of payment | 4 | | by Any order approving the fees shall require payment by either | 5 | | or both parents , by any
other party or source, or from the | 6 | | marital estate or the child's separate
estate.
The court may | 7 | | not award lump sum fees to the attorney, guardian ad litem, or | 8 | | child representative that are not properly itemized. The | 9 | | attorney, guardian ad litem, or child's representative must | 10 | | file a petition for setting final fees and costs within 30 days | 11 | | following the entry of a final order, an order of voluntary | 12 | | dismissal, or within any court-ordered extension of this time. | 13 | | The parties shall have an opportunity to be heard on this | 14 | | petition. If a party files a motion to reconsider the approval | 15 | | of these fees, that motion must be heard by the designated | 16 | | supervising judge for domestic relations cases or, in circuits | 17 | | in which no such judge is designated, by the chief judge of the | 18 | | circuit. The court may not order payment by the Department of | 19 | | Healthcare and Family Services
in cases in which the Department | 20 | | is providing child support
enforcement services
under Article X | 21 | | of the Illinois Public Aid Code. Unless otherwise ordered by
| 22 | | the
court at the time fees and costs are
approved, all fees and | 23 | | costs payable to an attorney, guardian ad litem, or
child | 24 | | representative under this Section are by implication deemed to | 25 | | be in
the nature of support of the child and are within the | 26 | | exceptions to discharge
in bankruptcy under 11 U.S.C.A. 523. |
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| 1 | | The relevant provisions of Sections 501 and 508 of
this Act | 2 | | shall apply to fees and costs for attorneys appointed under | 3 | | this
Section.
| 4 | | (Source: P.A. 94-640, eff. 1-1-06; 95-331, eff. 8-21-07.)".
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