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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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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.

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.

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.

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.

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.

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).

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.

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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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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