Full Text of HB4121 102nd General Assembly
HB4121ham001 102ND GENERAL ASSEMBLY | Rep. Maurice A. West, II Filed: 1/12/2022
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| 1 | | AMENDMENT TO HOUSE BILL 4121
| 2 | | AMENDMENT NO. ______. Amend House Bill 4121 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, allocation of parental responsibilities, | 10 | | education, parentage, property interest, or general welfare of | 11 | | a
minor or dependent child, the court may, on its own motion or | 12 | | that of any
party, appoint
an attorney to serve in one of the | 13 | | following capacities to address the issues the court | 14 | | delineates:
| 15 | | (1) Attorney. The attorney shall provide independent | 16 | | legal counsel for the child and shall owe the same duties |
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| 1 | | of undivided loyalty, confidentiality, and competent | 2 | | representation as are due an adult client.
| 3 | | (2) Guardian ad litem. The guardian ad litem shall | 4 | | testify or submit a written report to the court regarding | 5 | | his or her recommendations in accordance with the best | 6 | | interest of the child. The report shall be made available | 7 | | to all parties. The guardian ad litem may be called as a | 8 | | witness for purposes of cross-examination regarding the | 9 | | guardian ad litem's report or recommendations. The | 10 | | guardian ad litem shall investigate the facts of the case | 11 | | and interview the child and the parties.
| 12 | | (3) Child representative. The child representative | 13 | | shall advocate what the
child representative finds to be | 14 | | in the best interests of the child after reviewing
the | 15 | | facts and circumstances of the case. The child | 16 | | representative shall meet with the child and the parties, | 17 | | investigate the facts of the case, and encourage | 18 | | settlement and the use of alternative forms of dispute | 19 | | resolution. The child representative shall have
the same | 20 | | authority and obligation to participate in the litigation | 21 | | as
does an attorney for a party and shall possess all the | 22 | | powers of investigation
as does a guardian ad litem. The | 23 | | child representative
shall consider, but not be bound by, | 24 | | the expressed wishes of the child. A
child representative | 25 | | shall have received training in child advocacy or shall
| 26 | | possess such experience as determined to be equivalent to |
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| 1 | | such training by the
chief judge of the circuit where the | 2 | | child representative has been appointed.
The
child | 3 | | representative shall not disclose confidential | 4 | | communications made
by the child, except as required by | 5 | | law or by the Rules of Professional
Conduct. The child | 6 | | representative shall not render an opinion, | 7 | | recommendation, or report to the court and shall not be | 8 | | called as a witness, but shall offer evidence-based legal | 9 | | arguments. The child representative shall disclose the | 10 | | position as to what the child representative intends to | 11 | | advocate in a pretrial pre-trial memorandum that shall be | 12 | | served upon all counsel of record prior to the trial. The | 13 | | position disclosed in the pre-trial memorandum shall not | 14 | | be considered evidence. The court and the parties may | 15 | | consider the position of the child representative for | 16 | | purposes of a settlement conference.
| 17 | | (a-3) Additional appointments. During the proceedings the | 18 | | court may appoint an additional attorney to
serve in the | 19 | | capacity described in paragraph (1) of subsection (a) | 20 | | subdivision (a)(1) or an additional attorney to serve in | 21 | | another of the capacities described in paragraph (2) or (3) of | 22 | | subsection (a) subdivision (a)(2) or
(a)(3) on
the court's own | 23 | | motion or that of a party only for good cause shown and when | 24 | | the
reasons for the additional appointment are set forth in | 25 | | specific findings.
| 26 | | (a-5) Appointment considerations. In deciding whether to |
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| 1 | | make an appointment of an attorney for the minor child, a | 2 | | guardian ad litem, or a child representative, the court shall | 3 | | consider the nature and adequacy of the evidence to be | 4 | | presented by the parties and the availability of other methods | 5 | | of obtaining information, including social service | 6 | | organizations and evaluations by mental health professions, as | 7 | | well as resources for payment.
| 8 | | In no event is this Section intended to or designed to | 9 | | abrogate the decision making power of the trier of fact. Any | 10 | | appointment made under this Section is not intended to nor | 11 | | should it serve to place any appointed individual in the role | 12 | | of a surrogate judge.
| 13 | | (b) Fees and costs. The court shall enter an order as | 14 | | appropriate for
costs, fees, and disbursements, including a | 15 | | retainer, when the attorney,
guardian ad litem, or child's | 16 | | representative is appointed. Any person appointed under this | 17 | | Section shall file with the court within 90 days of his or her | 18 | | appointment, and every subsequent 90-day period thereafter | 19 | | during the course of his or her representation, a detailed | 20 | | invoice for services rendered with a copy being sent to each | 21 | | party. The court shall review the invoice submitted and | 22 | | approve the fees, if they are reasonable and necessary. Any | 23 | | order approving the fees shall require payment by either or | 24 | | both parents, by any
other party or source, or from the marital | 25 | | estate or the child's separate
estate.
The court may not order | 26 | | payment by the Department of Healthcare and Family Services
in |
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| 1 | | cases in which the Department is providing child support
| 2 | | enforcement services
under Article X of the Illinois Public | 3 | | Aid Code. Unless otherwise ordered by
the
court at the time | 4 | | fees and costs are
approved, all fees and costs payable to an | 5 | | attorney, guardian ad litem, or
child representative under | 6 | | this Section are by implication deemed to be in
the nature of | 7 | | support of the child and are within the exceptions to | 8 | | discharge
in bankruptcy under 11 U.S.C.A. 523. The provisions | 9 | | of Sections 501 and 508 of
this Act shall apply to fees and | 10 | | costs for attorneys appointed under this
Section. | 11 | | (c) Responsibilities. The appointment of a guardian ad | 12 | | litem or child representative for a child in a case involving | 13 | | custody or visitation issues requires, at a minimum, the | 14 | | following activity by any individual serving in the role of | 15 | | guardian ad litem or child representative: | 16 | | (1) Meeting with both parties within 90 days of | 17 | | receiving retainer fees or within 90 days of appointment | 18 | | if both parties have fee waivers. | 19 | | (2) Interviewing the child, the parents, and any | 20 | | prospective custodians. Investigating any other matter | 21 | | designated by the court at the time of appointment. | 22 | | Reviewing relevant court pleadings and materials from the | 23 | | parties that identify the custody and visitation issues. | 24 | | (3) If an issue concerning the adequacy of the home | 25 | | environment has been raised by a party or if the guardian | 26 | | ad litem or child representative has cause to believe that |
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| 1 | | the home environment is relevant to the recommendations of | 2 | | the guardian ad litem or child representative, visiting | 3 | | the child's current or proposed dwelling. | 4 | | (4) If the Department of Children and Family Services | 5 | | is involved, obtaining records from the Department of | 6 | | Children and Family Services and speaking to appropriate | 7 | | Department of Children and Family Services | 8 | | representatives, obtaining parental consent as necessary. | 9 | | (5) Interviewing the child's educational and mental | 10 | | health providers, only if the guardian ad litem or child | 11 | | representative determines that such interviews are | 12 | | essential to the issues before the court. | 13 | | (6) Issuing a concise written report summarizing the | 14 | | investigation, findings, and any recommendations of the | 15 | | guardian ad litem or child representative. With the | 16 | | court's approval, the guardian ad litem or child | 17 | | representative may skip this activity if the issues are | 18 | | simple and a report is not justified. | 19 | | (7) Taking calls from the child, as necessary. | 20 | | (8) Preparing for and testifying at the temporary or | 21 | | final custody hearing if ordered by the court or requested | 22 | | by a party and approved by the court. | 23 | | (9) Appearing in court if ordered by the court or | 24 | | requested by a party and approved by the court. | 25 | | If guardian ad litem or child representative activities | 26 | | are essential to the guardian ad litem's or child |
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| 1 | | representative's investigation, such as in a situation | 2 | | involving child safety, and circumstances make it impractical | 3 | | or impossible to obtain prior court approval, the guardian ad | 4 | | litem or child representative may proceed to undertake the | 5 | | activities but shall seek approval of them from the court as | 6 | | soon as practicable. | 7 | | Within 30 days of the entry of an order appointing a | 8 | | guardian ad litem or child representative, any party wishing | 9 | | to suggest a particular interview or other activity on the | 10 | | part of the guardian ad litem or child representative shall | 11 | | submit a request in writing to the guardian ad litem or child | 12 | | representative with copies to opposing parties and the court. | 13 | | The request shall make clear why the interview or other | 14 | | activity is necessary to the guardian ad litem's or child | 15 | | representative's investigation and evaluation. The request | 16 | | should be considered by the guardian ad litem or child | 17 | | representative but is not binding on the guardian ad litem or | 18 | | child representative.
| 19 | | (Source: P.A. 99-90, eff. 1-1-16 .)".
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