HB4121ham001 102ND GENERAL ASSEMBLY

Rep. Maurice A. West, II

Filed: 1/12/2022

10200HB4121ham001 LRB102 19262 LNS 31917 a

AMENDMENT TO HOUSE BILL 4121

AMENDMENT NO. ______. Amend House Bill 4121 by replacing everything after the enacting clause with the following:

"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, allocation of parental responsibilities, 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, appoint an 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 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. 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.

(3) Child representative. The child representative 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 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 pretrial 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 attorney to serve in the capacity described in paragraph (1) of subsection (a) subdivision (a)(1) or an additional attorney to serve in another of the capacities described in paragraph (2) or (3) of subsection (a) 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 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. The court shall review the invoice submitted and approve the fees, if they are reasonable and necessary. 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) Responsibilities. The appointment of a guardian ad litem or child representative for a child in a case involving custody or visitation issues requires, at a minimum, the following activity by any individual serving in the role of guardian ad litem or child representative:

(1) Meeting with both parties within 90 days of receiving retainer fees or within 90 days of appointment if both parties have fee waivers.

(2) Interviewing the child, the parents, and any prospective custodians. Investigating any other matter designated by the court at the time of appointment. Reviewing relevant court pleadings and materials from the parties that identify the custody and visitation issues.

(3) If an issue concerning the adequacy of the home environment has been raised by a party or if the guardian ad litem or child representative has cause to believe that the home environment is relevant to the recommendations of the guardian ad litem or child representative, visiting the child's current or proposed dwelling.

(4) If the Department of Children and Family Services is involved, obtaining records from the Department of Children and Family Services and speaking to appropriate Department of Children and Family Services representatives, obtaining parental consent as necessary.

(5) Interviewing the child's educational and mental health providers, only if the guardian ad litem or child representative determines that such interviews are essential to the issues before the court.

(6) Issuing a concise written report summarizing the investigation, findings, and any recommendations of the guardian ad litem or child representative. With the court's approval, the guardian ad litem or child representative may skip this activity if the issues are simple and a report is not justified.

(7) Taking calls from the child, as necessary.

(8) Preparing for and testifying at the temporary or final custody hearing if ordered by the court or requested by a party and approved by the court.

(9) Appearing in court if ordered by the court or requested by a party and approved by the court.

If guardian ad litem or child representative activities are essential to the guardian ad litem's or child representative's investigation, such as in a situation involving child safety, and circumstances make it impractical or impossible to obtain prior court approval, the guardian ad litem or child representative may proceed to undertake the activities but shall seek approval of them from the court as soon as practicable.

Within 30 days of the entry of an order appointing a guardian ad litem or child representative, any party wishing to suggest a particular interview or other activity on the part of the guardian ad litem or child representative shall submit a request in writing to the guardian ad litem or child representative with copies to opposing parties and the court. The request shall make clear why the interview or other activity is necessary to the guardian ad litem's or child representative's investigation and evaluation. The request should be considered by the guardian ad litem or child representative but is not binding on the guardian ad litem or child representative.

(Source: P.A. 99-90, eff. 1-1-16.)".