ILLINOIS DIVORCE LAW BLOG

Articles Posted in Child Custody

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Below is a synopsis of two new bills signed into law that affect Family Law practice.  HB4121 sets a minimum standard for GALs in terms of their obligation to interview the parents and the children.  Now, most of us would agree that a period of 90 days is too long, and that most competent GALs make a practice of meeting with the parents and children within days or weeks of the appointment of the GAL.  This legislation may be addressing a concern that some GALs ( and I have seen this in operation) can be quite dilitory about their work, and some simply do not accept that the role of a GAl involves competence and diligence.  In most cases, judges and lawyers know who the good GALs are, and those appointments are often made with this understanding in mind. However, there are cases that involve GALs who do competent work, but may not visit with the children as often as they might, and this issue then becomes an area for criticism when the case goes to trial. HB4121 sets a minimum standard, to which GALs either conform, or risk some sanction for failing to do so.

HB2741 is an important change. The IMDMA was amended in 2016 to allow the Court to appoint a clinician to perform therapy in a family law case, with certain underlying findings being made. The hitch has been for a few years that the therapy process and feedback from the clinicians was barred insofar as communication with a GAL was concerned. In my view, this placed the process of therapy into a difficult position where children were concerned, insofar as the GAL has a statutory duty to investigate all aspects of the child’s life to determine the custodial best interests of the child. Now, with this amendment, the GAL may do his/her work to the fullest extent by allowing the feedback from the clinician so long as the HIPAA and Illinois Mental Health Act provisions are followed.

IMDMA GALs

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My divorce and post decree clients that have people with traits of toxic narcissism often struggle with trying to explain or discuss what it can be like living with someone with such toxic traits, especially when the person is able to maintain a facade of normalcy on their work or neighborhood relationships.  Sometimes, I have to coach clients to understand that it can be difficult persuading others as to how emotionally damaging these relationships are, especially when the narcissist is “high functioning,” or otherwise able to disguise their abusive behaviors from the rest of the world.  Living with someone with a toxic narcissistic personality disorder can be brutal, especially when the narcissist uses the relationship to emotionally abuse their partner, and tries to turn children, neighbors, and even family members against the otherwise healthy partner.

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Signs and symptoms of narcissistic personality disorder and the severity of symptoms vary. People with the disorder can:

  • Have an exaggerated sense of self-importance
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Questions come up from time to time about how parents are treated in Parentage cases ( where the parents are unmarried) vs. in a divorce case. Should fathers for example, be treated differently in a child custody case if they are not married to the mother of the child or children?  The answer in Illinois, fortunately, is no.  The Illinois Parentage Act borrows and connects with the Illinois Marriage and Dissolution of Marriage Act (IMDMA) and utilizes in Parentage cases the same child custody statutes that are used in divorce cases.  These days, parents are no longer awarded “custody,” but are awarded “allocations of parenting time.”

In a New Jersey case, the Parentage courts were expected to decide child custody issues in a speedy fashion, and it seems that this expedited approach robbed some fathers of the right to have a full hearing over child custody issues. A recent case there made the news, as the appellate court decided that the rules for parentage cases should follow the same rules and due process afforded in a divorce case.  Here’s a summary of that case for those interested in the details:

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If the custody or parenting time of a minor child is at issue before a court, should the legal process differ depending on whether the parents of the child at issue were married?
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Dr. Michael Bone has a series of articles on Parental Alienation that are thoughtful and effective. One of the issues that he raised recently was the need for lawyers that represent targeted parents to “step up” and actually give voice (as I like to call it) to the reality that the other party is committing acts of PA, and making false allegations. In other words, it is not enough for a lawyer to simply defend a PA case.  In my view, the act of PA is child abuse, and if we look at PA from that angle, any parent that is committing a form of child abuse should be seen as an abuser, and the “target,”  as it were, needs to be painted on that offender’s back.  The Court needs to know that the alienating parent is guilty, culpable, and needs to be stopped and sanctioned by the Court.
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Here below is Dr. Bone’s view on this issue:
” Very often, the targeted parent will have been accused falsely of being in some way dangerous, unstable or otherwise suspect as a parent. Since the court should always carefully examine any potential danger that such a parent might represent, it should then also recognize that the fact remains that parents are falsely accused of tendencies and acts that are not them.
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I have included below most of the text of the amended Illinois SB 4113, which seeks to establish a rebuttable presumption that an award of equal parenting time to each parent is in the best interests of the minor child(ren) in a divorce case.

For many years, my firm has represented Fathers in complex child custody cases, and in many cases  my Dad clients were rightfully awarded the primary custody of their children.  I have fought vigorously to level the playing field for my Dad clients through the years, some who faced false allegations, false OPs and other challenges in their divorce cases. These cases can be battles, but with the right strategy and management, the right decisions can be reached in these cases. Equally so, I have fought for women, in their own custody cases, some facing false allegations of parental alienation from a narcissistic husband.  My goal has always been to develop strategies for both my male and female clients to combat parental alienation, false allegations, and to create outcomes that serve both my clients and the true best interests of the children.

So with SB 4113, the question becomes whether this legislation will, in and of itself, create that level playing field for parents?  I note that many of the more vocal Bar associations have opposed this bill, and I can say that some judges with whom I have discussed this do not favor the bill. But, the idea of such a bill has a lot of favor, especially with men and women who, for too long, have been impacted by a legal system that oftentimes does not serve the best interests of children fully.  Will SB 4113 create that foundation so that the court is required to factor in a presumptive 50/50 allocation of time to both parents?  I am hopeful that SB 4113 perhaps undergoes some revisions that might make its passage more palatable.  I note that a 50/50 presumption is a satisfying idea, but that in many cases, many judges and clinicians do not believe that a 50/50 time allocation is appropriate in most circumstances and with most families.  An equalization of time is beneficial where the parents live proximate to each other, where the parents both share positive parenting traits, work schedules can accommodate 50/50 time, the age and circumstances of the kids favor shared time, and myriad other factors that can benefit a true shared parenting environment.  I believe that a shared parenting bill could be written that might be more dense, more detailed and more fleshed out that might give a solid and detail-rich shared parenting bill a real likelihood of passage.

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An article published in one of the leading bar journals discussed the use of social media postings as evidence in court cases. The article happened to concern a criminal case, where a Facebook posting allegedly made by a defendant using his mother’s Facebook page had statements from the defendant admitting to the time, place and means of the crime. Certainly Facebook and other social media are much more often employed these days in divorce and child custody cases, where parents try to assemble negative information and evidence concerning their spouse’s behaviors, infidelity, or use the social media platforms to stalk or otherwise gather information about their former partners and their habits and behaviors.

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Whenever evidence is to be used in a court hearing, the evidence must meet certain tests for reliability.  One does not have to be a forensic IT expert to know that a fraudulent Facebook page or identity can be created, or that a post can be posted by someone claiming to be another person.  Because of the nature of this possible lack of trustworthiness, courts have struggled to define the foundations that must be laid in order to admit social media evidence.

Social media evidence has garnered the most distrust. As one court explained, “[t]he concern arises because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.” Another concern is that regardless of whether the information is genuine or fabricated, it is “available by performing a Google search… forever,” giving the impression that it is accurate and true. Griffin v. State, 19 A.3d 415, 421-22 (Md.)  Generally, a witness authenticating electronic evidence must “provide factual specificity about the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change, or the process by which it is produced if the result of a system or process that does so.” As pointed out by Griffin, the “most obvious method [of authentication] would be to ask the purported creator if he/she indeed created the profile and also if she added the posting in question.” Id.

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