October 27, 2006

A Solid Primer in the Basics of Child Custody

Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.

Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.

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October 26, 2006

An Example of Joint Custody Medical Decisions

The Associated Press reports on an interesting case arising in Cook County. The divorced parties apparently have a Joint Parenting Agreement, providing for the parents to consult with each other over the major decisions in the child's developmental life. Mom, in this case, wanted to have the 9 year old boy circumcised. Dad objected, and filed a petition in court to enjoin, or block, the procedure. The case is about the circumcision, but it also stands for the principle that a well drafted joint custody agreement has some teeth to it, that is, if the non-residential parent has some "say so" in the developmental life of the child, he must be more than a "consultant." In this case, Dad didn't want the boy to undergo the procedure involuntarily. I also understand that the boy himself did not want to be circumcised.

------AP------A judge has sided with a divorced father who did not want his 9-year-old son circumcised, in a case that has drawn attention from groups opposed to the surgical procedure.

Cook County Circuit Judge Jordan Kaplan's ruling, issued Tuesday, said the boy can decide for himself about circumcision when he turns 18. Until then, there will be no circumcision, a surgery that removes the foreskin of the penis.

The Associated Press is not naming the parents to protect the child's privacy. The father was born and raised in Poland; The mother is from Slovakia. Both now live in suburban Chicago.

A 2003 divorce decree gave the boy's father the right to offer advice on medical decisions.

The father opposed circumcision because he believed it could cause his son long-term physical and psychological harm. The child's mother wanted the procedure done to prevent recurring infections.

When the two could not resolve their dispute, the father sued to block the circumcision.

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October 25, 2006

Guidelines for Divorcing Parents

I have a number of clients who express concern about their divorce and the impact on their children. Are there any guidleines for parents to follow? Below are some thoughts and guidelines for parents anticipating divorce or in a divorce process. Be mindful that there are alternatives to traditional litigated divorce, such as a collaborative divorce. Lowering the temperature on a contested divorce and custody case also has benefits where the children are concerned.

1. Never disparage your former spouse in front of your children. Because children know they are "part mom" and "part dad", the criticism can batter the child's self-esteem.

2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.

3. Reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parent's hostility.

4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.

5. At every step during your divorce, remind yourself that your children's interests – not yours – are paramount, and act accordingly. Lavish them with love at each opportunity.

6. Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.

7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.

8. If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.

9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child's sense of abandonment and further erodes his or her stability.

10. If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parent's divorce.

American Academy of Matrimonial Lawyers

October 18, 2006

Both Parents Need to be Validated in Custody Plans

Custody Terminology and the Effect on Divorce Outcomes

Terminology in divorce carries weight: Which sounds better: Custody Decision, or Parenting Plan?

Senate Bill 2003, approved by the West Virginia Legislature during a special session in June 1999, started an overhaul of the state’s domestic relations system. The bill made changes in the divorce and child custody laws, changing terminology and adding steps to the process.

Michael Roe asks: In cases where Dads ask for custody, many times they are granted primary residential custody. Can you think of reasons why this maybe true?

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October 9, 2006

Mom Moves Far, Far Away...Illinois Relocation Law

One of the best ways that divorcing parents can faciliate a good joint parenting agreement is to live within reasonable proximity of each other. When both parents live within minutes and miles of each other, the parents and kids benefit. Even the best and broadest parenting agreement can be difficult to endure if the parents live at great distance from each other. Conversely, even if the non-residential parent gets a standard "boilerplate" visitation schedule, the parent's life with the kids is enhanced if he/she lives in the same school district as the kids.

The Illinois case of Samardzija illustrates a diffiuclt part of Illinois' removal and relocation law. In this case, Mom moved from (for example) Gurnee, Illinois to Carbondale. The move then caused non-residential parent, Dad (a Gurnee resident), to drive hours to see his kids, when previously the drive had been only minutes. The move to Carbondale, in effect, stripped Dad of his parenting role with the kids. In Illiniois, the mother's move to Carbondale was legal, and required no permission from the court. Mom moved, the kids said goodbye, and that was the end of Dad's parenting life, as he knew it.

The Samardzija court reasoned that while parties in divorce can agree to geographical limitations when there is a specific need to do so, absent such agreement, Illinois imposes no restraints on a custodial parent from moving to the opposite end of the state, if he/she so chooses.

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October 9, 2006

Illinois Custody and Order of Protection

In Sutherlin the trial court was in error when to refused to address the issue of temporary custody of the children, in an action initiated by the wife to obtain an order of protection for herself against her husband.

The court should have found that the wife's petition for the order of protection was not designed to interfere with the husband's visitation with the children, and the record should have supported a finding that there was abuse committed by the husband against the wife sufficient to allow for an Order of Protection.

October 9, 2006

Illinois Grandparent's Visitation Rights

It was not an abuse of discretion by the trial court, the Illinois Appellate Court held, to refuse to order Grandparent visitation when the parents of the children had not agreed to it. IRMO Ross

The court held that in view of the Wickham decision ( holding that the grandparent visitation pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act to be uncomstitutional), there was no basis to permit the grandparents a right to petition fo rvisitation.

October 9, 2006

Illinois Custody and Superior Rights Doctrine

In re Custody of T.W. is an interesting analysis of the superior rights doctrine, and how this doctrine, that substantiates the rights of biological parents, can be trumped by a best interests test.

What do I mean by this? In this case, a child's mother voluntarily surrendered custody of her child to her parents. The grandparents raised the child, and later, when the grandparents went to court toget cusotdy of the child formally (with the mother's consent) the father objected. The superior rights doctrine establishes a presumption that a biological parent is the best person to raise a child. However, as in this case, this presumption can be overridden by a finding by the court that the child's best interest is paramount to the, less than absolute, doctrine of superior rights.

Thus, the superior rights doctrine is not so superior, after all. Should the court find that the child's best interest is met by being raised by someone other than the biological parent, the court can override the parent's claim and award to the party meeting the best interests test.

October 9, 2006

Divorce touches all walks of life....

Beautiful, wealthy and bright, but subject to the viscissitudes of life:

Two months after television reports circulated about her husband Peter Cook’s alleged infidelity with an 18-year-old employee, Christie Brinkley has made it official: she’s seeking a divorce. Cook’s written apology to Brinkley ran in a newspaper column shortly after his alleged dalliance became public, but the apology failed to deter the former model and actress and Uptown Girl's from filing for a dissolution of marriage.

According to Cook’s attorney, Brinkley filed for divorce on September 14, 2006 and the case is pending.

October 9, 2006

Illinois Child Support Modification and the GAL

In Hartman v. Hartman, there was an action by the former husband to lower his child support payments from $1500 per month, to $500 per month, while providing $500 in maintenance. Mr. Hartman may have wished to do this to allow for some tax benefits for part of his monthly payments, as well as to lower his monthly support payout in total.

In any event, the court determined that the parents were litigating this issue in pursuit of their own pecuniary interests, and were not attentive to the best interest of their child. THe parents frmaed the issues around money, whereas the court saw the issue affecting the well-being of the parties' child.

What did the court do? The court appointed a guardian ad litem to determine, within the context of the child support modification proceeding, what result would be in the best interest of the child. The court's concern over the child's interest being neglected trumped the parents' interest in sorting out their finances.

October 9, 2006

Illinois Custody Cases: Karonis and Tape Recordings

Hearsay is permitted in some contested custody cases. Guardians ad litem can consider hearsay in making recommendations to the court concerning the best interest of a child. In fact, in Illinois a guardian ad litem can even rely on inadmissible evidence that may have been wrongfully obtained, such as by an alleged violation of an eavesdropping statute. In re Marriage of Karonis, 693 N.E.2d 1282 (Ill. App. Ct. 1998).

Is it legal to tape a telephone conversation with a party who has not consented to the taping? The answer is NO. If a child is talking on the phone to a parent, and the other parent believes the conversation should be taped, does this make it legal? NO. A violation of the Illinois eavesdropping statute is arguably a prosecutable offense, and the contents of the wrongfully taped conversation are not admissible. However, the Karonis court allowed the the guardians ad litem in the case to review the illegally taped conversations in formulating their custody recommendations.

October 9, 2006

Illinois Custody and the Court's Discretion re: GAL

When should a GAL or Child's Rep be appointed? In all cases?

When it is clear that the parents are looking after only their own interests and the interests of the child may be seriously neglected, it is recommended to the trial court that an attorney for the child or a GAL be appointed. Hartman v. Hartman, 89 Ill.App.3d 969, 412 N.E.2d 711, 45 Ill. Dec. 360 (4th Dist. 1980).

The appointment of an attorney to represent a child is a matter left to the sound discretion of the trial court. The failure of the trial court to appoint a GAL was not an abuse of discretion, where there was ample evidence before the court through other witnesses, including evidence as to the child's best interest through the testimony of psychologists, therapists, neighbors and othjer competent witnesses. In re Marriage of Ricketts, 329 Ill. App.3d 173, 768 N.E.2d 834, 263 Ill. Dec. 753 (5th Dist. 2002).

October 9, 2006

Illinois Family Law: New Rules for Custody Cases

Illinois Supreme Court Rule 907 will set forth the minimum standards of practice for attorneys who represent children in contested custody cases. DuPage County and Kane County dissolution of marriage cases will be subject to the new Rule expected to be effective as of the new year 2007. The Rules, I believe, will strengthen and define with greater particularity the role of the GAL/Child's Rep, and will provide the Court with better trained attorneys, willing to assist the court in resolving difficult contested custody cases.

(a) Every child representative, attorney for a child and guardian ad litem shall adhere to all ethical rules governing attorneys in professional practice, be mindful of any conflicts in the representation of children and take appropriate action to address such conflicts.

(b) Every child representative, attorney for a minor child and guardian ad litem shall have the right to interview his or her client(s) without any limitation or impediment. Upon appointment of a child representative, attorney for the child or guardian ad litem, the trial court shall enter an order to allow access to the child and all relevant documents.

(c) As soon as practicable, the child representative, attorney for the child or guardian ad litem shall interview the child, or if the child is too young to be interviewed, the attorney should, at a minimum, observe the child. The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.

(d) The child representative, attorney for the child or guardian ad litem shall take whatever reasonable steps are necessary to determine what services the family needs to address the custody dispute, make appropriate recommendations to the parties, and seek appropriate relief in court, if required, in order to serve the best interest of the child.

(e) The child representative, attorney for the child or guardian ad litem shall determine whether a settlement of the custody dispute can be achieved by agreement, and, to the extent feasible, shall attempt to resolve such disputes by an agreement that serves the best interest of the child.

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October 9, 2006

Illinois Child Support: Is it equitable?

Illinois' child support scheme is not unusual, but in practice it can be so simple as to be unfair. In order to simplify the statutory child support scheme, the legislature determined that in most cases, the so-called non-residential parent (typically the father) shall be ordered to pay a fixed amount of his net income to the residential parent (for the support of the child). The parties, through discovery in the case, determine what the net income of the payor spouse is.

The judge is then expected to apply the fixed guidelines defined by the Illinois legislature to determine the amount of child support to be paid by the non-residential parent to the residential parent. The guidelines are:

Children % of Net Income
1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%

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October 6, 2006

Parenting the Kids: Illinois Custody and Post Divorce Parenting

Divorce creates enormous stresses on the divorcing parents, and the anxiety with divorcing parents can be most profound. Clients from throughout Illinois have asked me to develop strategies for protecting their parenting rights, and I have found that advocating and developing "out of the box" strategies for parenting plans are needed in most disputed custody cases.

Just as all family systems are unique, so too must be the parenting agreements that are put in place in resolving the dipsutes over custody of children. Intense focus must be placed by the parties and the attorneys on developing parenting plans that allow competent, caring parents to have as much interaction and investment in the developmental lives of their children as possible.

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October 6, 2006

Changing Child Support: DuPage and Kane County

Illinois' child support scheme raises many questions in the minds of many of my clients. Many residential custody mothers feel that the Illinois statutory guidlines do not provide enough financial support from the nonresidential fathers, and feel that as the father's income rises, so should the level of support. Conversely, some fathers feel that the statutory child support scheme is too rigid and inflexible, and for a nonresidential father of multiple children, the levels of defined support are burdensome. Can the levels of support be changed, after divorce?

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October 2, 2006

DuPage, Kane County: Collaborative Divorce

In DuPage and Kane County, Collaborative Divorce is becoming more prevalent. Clients want an alternative to stressful, expensive "court wars." Many clients ask me about divorce mediation (I am a certified mediator for DuPage County). Some cases, however, might benefit from a new approach to mindful, non-litigated divorce...Collaborative Law.

What is the difference between Collaborative Practice and Mediation?

In mediation, the mediator facilitates the negotiations of the disputing parties and tries to help them settle their case. However, the mediator cannot give either party legal advice, and cannot be an advocate for either side. If there are lawyers for the parties, they may or may not be present at the mediation sessions, but if they are not present, the parties can consult their counsel between mediation sessions. Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review and editing by the parties and counsel.

Collaborative Law was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same commitment to settlement as the sole agenda. It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, to work with their own clients and one another to assure that the process stays balanced, positive and productive.

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October 2, 2006

Child Custody: The Role of the Psychologist/Evaluator

The Role of the Child Custody Evaluator: APA Guidelines

A. The role of the psychologist is that of a professional expert who strives to maintain an objective, impartial stance.
The psychologist does not act as a judge, who makes the ultimate decision applying the law to all relevant evidence. Neither does the psychologist act as an advocating attorney, who strives to present his or her client's best possible case. The psychologist, in a balanced, impartial manner, informs and advises the court and the prospective custodians of the child of the relevant psychological factors pertaining to the custody issue. The psychologist should be impartial regardless of whether he or she is retained by the court or by a party to the proceedings. If either the psychologist or the client cannot accept this neutral role, the psychologist should consider withdrawing from the case.

B. The psychologist gains specialized competence.

A psychologist contemplating performing child custody evaluations is aware that special competencies and knowledge are required for the undertaking of such evaluations. Competence in performing psychological assessments of children, adults, and families is necessary but not sufficient. Education, training, experience, and/or supervision in the areas of child and family development, child and family psychopathology, and the impact of divorce on children help to prepare the psychologist to participate competently in child custody evaluations. The psychologist also strives to become familiar with applicable legal standards and procedures, including laws governing divorce and custody adjudications in his or her state or jurisdiction.


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October 2, 2006

When Child Custody is in Dispute: APA Guidelines

The majority of child custody disputes are settled, through negotiation, mediation, or collaboration on a parenting plan that works for both parents. When the issue of custody is not resolved, it is my practice to petition the court to engage a highly qualified custody evaluator (a specially trained psychologist) to furnish recommendations regarding the best interest of the child(ren) to the court. The American Psychological Association has developed guidelines for the the custody evaluation.

I. Orienting Guidelines: Purpose of a Child Custody Evaluation

1. The primary purpose of the evaluation is to assess the best psychological interests of the child. The primary consideration in a child custody evaluation is to assess the individual and family factors that affect the best psychological interests of the child. More specific questions may be raised by the court.

2. The child's interests and well-being are paramount.
In a child custody evaluation, the child's interests and well-being are paramount. Parents competing for custody, as well as others, may have legitimate concerns, but the child's best interests must prevail.

3. The focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fit.
In considering psychological factors affecting the best interests of the child, the psychologist focuses on the parenting capacity of the prospective custodians in conjunction with the psychological and developmental needs of each involved child. This involves (a) an assessment of the adults' capacities for parenting, including whatever knowledge, attributes, skills, and abilities, or lack thereof, are present; (b) an assessment of the psychological functioning and developmental needs of each child and of the wishes of each child where appropriate; and (c) an assessment of the functional ability of each parent to meet these needs, including an evaluation of the interaction between each adult and child.

The values of the parents relevant to parenting, ability to plan for the child's future needs, capacity to provide a stable and loving home, and any potential for inappropriate behavior or misconduct that might negatively influence the child also are considered. Psychopathology may be relevant to such an assessment, insofar as it has impact on the child or the ability to parent, but it is not the primary focus.

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October 2, 2006

Father Blocks Daughter's Move-Away

Do unmarried fathers have the right to stop the move away of a child that they love, and with whom they have had a strong parenting relationship? The Illinois Appellate case of Fischer v. Waldrop illustrates the principle that a father, though he be unmarried to the mother of his child, may enjoin the move-away of a child to another state.

In 2003, the Illinois legislature amended the Parentage Act to specifically address removal. In particular, the legislature amended section 14 of the Parentage Act, pertaining to judgments, to provide that "[i]n determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the [Marriage Act], including [s]ection 609." 2003). Finally, the legislature added a new section, which provides, in relevant part:

"(a) In any action brought under this Act for the initial determination of custody or visitation of a child or for modification of a prior custody or visitation order, the court, upon application of any party, may enjoin a party having physical possession or custody of a child from temporarily or permanently removing the child from Illinois pending the adjudication of the issues of custody and visitation. When deciding whether to enjoin removal of a child, the [c]ourt shall consider the following factors, including, but not limited to:

(1) the extent of previous involvement with the child by the party seeking to enjoin removal;

(2) the likelihood that parentage will be established; and

(3) the impact on the financial, physical, and emotional health of the party being enjoined from removing the child.

(b) Injunctive relief under this Act shall be governed by the relevant provisions of the Code of Civil Procedure

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