HB5544ham001 97TH GENERAL ASSEMBLY

Rep. Jil Tracy

Filed: 3/20/2012

09700HB5544ham001 LRB097 18385 AJO 67579 a

AMENDMENT TO HOUSE BILL 5544

AMENDMENT NO. ______. Amend House Bill 5544 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, 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 file an appearance. 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 deposed no later than 30 days before trial or as otherwise ordered by the court. At trial, the 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 may be deemed an opinion witness, subject to a motion to exclude witnesses. The guardian ad litem may, as practicable, be called to testify first, after which testimony the guardian ad litem may be discharged. This provision shall not be interposed to preclude a guardian ad litem from being called as a rebuttal witness. 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 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 subdivision (a)(1) or an additional attorney to serve in another of the capacities described in 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.

A party is entitled to one substitution of a particular attorney, guardian ad litem, or child representative if he or she makes a written request for substitution within 7 days after the appointment of a particular attorney, guardian ad litem, or child representative. A party may request a substitution once.

(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. This shall be done by the court at the outset of the appointment, taking into consideration the financial circumstances of the parties and the prevailing rates in the community for attorneys with comparable experience and expertise in family law. The parties shall have an opportunity to be heard on the fees set and on any further petitions for interim fees. The court may, in appropriate circumstances, make the appointment pro bono, provided that the person so appointed may decline the appointment. 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. Failure to submit a detailed invoice for each 90-day period in the required time period precludes collection of costs, fees, and disbursements for services rendered in that 90-day period. An attorney, guardian ad litem, or child representative may not bill the parties for preparation or presentation of his or her invoice. The court shall review the invoice submitted and approve the fees, if they are reasonable and necessary. If a party files a motion to reconsider approval of these fees, that motion must be heard by the designated supervising judge for domestic relations cases or, in circuits in which no such judge is designated, by the chief judge of the circuit. Subject to a rebuttable presumption that the parents are jointly and severally liable for payment of said reasonable and necessary fees, the court shall enter an order approving the fees, setting forth with specificity the terms of payment by 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 award lump sum fees to the attorney, guardian ad litem, or child representative that are not properly itemized. The attorney, guardian ad litem, or child's representative must file a petition for setting final fees and costs within 30 days following the entry of a final order, an order of voluntary dismissal, or within any court-ordered extension of this time. The parties shall have an opportunity to be heard on this petition. If a party files a motion to reconsider the approval of these fees, that motion must be heard by the designated supervising judge for domestic relations cases or, in circuits in which no such judge is designated, by the chief judge of the circuit. 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 relevant provisions of Sections 501 and 508 of this Act shall apply to fees and costs for attorneys appointed under this Section.

(Source: P.A. 94-640, eff. 1-1-06; 95-331, eff. 8-21-07.)".