Pro Se Chicago's Weblog

July 31, 2014

When opposing counsel lie to the court


You can file a Petition for adjudiction of criminal contempt against the attorney whether the case is in the local court or the appellate court. You should attach an affidavit stating that you have reviewed the transcripts or motion wherein the false statement was made. You should swear that the statement was false and how it was false You can ask the court to hold the attorney in contempt for fraud upon the court and sentence him for criminal contempt after a trial. If the court holds the attorney in contempt for fraud, then you can file with the ARDC and ask for the attorney to be disbarred. ARDC = Attorney Regulatory and Disciplinary Commission.

A petition is written just like a motion, but it is a collateral proceeding and not part of the case. It should be given a separate case number by the clerk.

Opposing counsel is an officer of the court. Attorneys have a code of conduct under IL Supreme Court Rules that prevent them from making false statements. They can be disbarred and should be.

Criminal contempt is when someone makes  false statements or commits fraud upon the court. Criminal contempt cannot be purged. As those charged with crimes have a 5th Amendment right to remain silent they can not be ordered to show cause as in a civil contempt case where someone refuses to obey an order.  Therefore you must file a Petition for Adjudication of Criminal Contempt instead of a Motion for Rule to Show Cause as you would with civil contempt. Criminal contempt is an act that

Civil  contempt is when you disobey an order and you hold the keys to the jail as you can expunge the order to jail you if you comply with the order such as pay child support or perform an act ordered by the judge. This is not an attempt to embarrass the court or bring the court into disrepute.

The following contains extensive important case law relevant to above and your cases.

CONTEMPT OF COURT (CIVIL V CRIMINAL) 

Circle Management, LLC., v. Olivier, 378 Ill.App.3d 601, 317 Ill.Dec. 555, 882 N.E.2d 129 (2007) [Ill.App. 1st Dist]

Major controlling case with amici including Legal Assistance Foundation of Metropolitan Chicago (LAF), the Lawyer’s Committee for Better housing (LCBH), Cabrini-Green legal Aid (CGLA) and the Northwestern University School of Law Bluhm Legal Clinic (Bluhm Clinic).

         

Courts have inherent authority to punish a party for contempt. See People v. Warren, 173 Ill.2d 348, 370, 219 Ill.Dec. 533, 671 N.E.2d 700 (1996) (“The power to punish for contempt does not depend on constitutional or legislative grant”) [further citations omitted]

“Contempt of court has been defined as any act that is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or that is calculated to lessen its authority or dignity.” Levaccare v. Levaccare, 376 Ill.App.3d 503, 508, 315 Ill.Dec. 280, 876 N.E.2d 280 (2007), quoting People v. Budzynski, 333 Ill.App.3d 433, 438, 266 Ill.Dec. 713, 775 N.E.2d 275 (2002).

Criminal contempt sanctions are punitive in nature and require a finding that the contemptuous conduct was willful. People v. Minor, 281 Ill.App.3d 568, 574, 217 Ill.Dec. 449, 667 N.E.2d 538 (1996); People v. Ernest, 141 Ill.2d 412, 422, 152 Ill.Dec. 544, 566 N.E.2d 231 (1990).

Civil contempt is prospective in nature, and is “designed to compel future compliance with a court order.” Emery, 374 Ill.App.3d at 977, 313 Ill.Dec. 502, 872 N.E.2d 485, quoting In re Marriage of Sharp, 369 Ill.App.3d 271, 279, 307 Ill.Dec. 885, 869 N.E.2d 539 (2006).

Although a court may enforce an order to pay money through contempt, this power is “limited to cases of willful refusal to obey the court’s order.” In re Marriage of Logston, 103 Ill.2d 266, 285, 82 Ill.Dec. 633, 469 N.E.2d 167 (1984).

“’It is not a contempt of court to fail to pay money which one neither has nor can obtain and which he has not causelessly either put out of his hands or failed to receive.’” Shapiro v. Shapiro, 113 Ill.App.2d 374, 388, 252 N.E.2d 93 (1969), quoting White v. Adolph, 305 Ill.App.76, 79, 26 N.E.2d 993 (1940)

Trial courts have inherent authority to impose sanctions against a party that fails to abide by valid court orders. Sander v. Dow Chemical Co., 166 Ill.2d 48, 67, 209 Ill.Dec. 623, 651 N.E.2d 1071 (1995); Smith v. City of Chicago, 299 Ill.App.3d 1048, 1054, 234 Ill.Dec. 108, 702 N.E.2d 274 (1998).

FRAUD – NOT JUST FALSE STATEMENT, BUT ALSO SUPPRESSION OF THE TRUTH

It is also clear and well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); Moore v. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) (“The maxim that fraud vitiates every transaction into which it enters …”); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).

Fraud maybe inferred from nature of acts complained of, individual and collective interest of alleged conspirators, situation, intimacy, and relation of parties at time of commission of acts, and generally all circumstances preceding and attending culmination of claimed conspiracy Illinois Rockford Corp. V. Kulp, 1968, 242 N.E. 2d 228, 41 ILL. 2d 215. “The Court has broadly defined fraud as any conduct calculated to deceive, whether it be by direct falsehood or by innuendo, by speech or silence, by word of mouth, by look, or by gesture. Fraud includes the suppression of the truth, as well as the presentation of false information. (In re Witt (1991) 145 Ill.2d 380, 583 N.E.2d 526, 531, 164 Ill. Dec. 610).” See also In re Frederick Edward Strufe, Disciplinary case no. 93 SH 100 where the Court stated that “Fraud has been broadly defined as anything calculated to deceive.” “Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”

Fraud does not always divest court of jurisdiction and cause orders to be void. They however would be voidable.

 

Misrepresentation of neglect in petition for wardship did not void jurisdiction.

 

An order is rendered void only by lack of jurisdiction, not by error or impropriety. (p. 377)

 

Only fraud that confers only colorable jurisdiction upon court renders judgment void; fraud that occurs after court’s valid

 

Fraud can render a judgment void, but not all fraud can do so. (Johnson v. Hawkins (1972), 4 Ill.App.3d 29, 32, 280 N.E.2d 291.) There is a difference between fraud that confers only colorable jurisdiction upon the court, and fraud that occurs after the court’s valid acquisition of jurisdiction; only the former type of fraud will render a judgment void. (Schwarz v. Schwarz (1963), 27 Ill.2d 140, 144-45, 188 N.E.2d 673.) The latter type of fraud, fraud that occurs after jurisdiction has been acquired, will render the court’s  order voidable, but not void for lack of jurisdiction. (Vulcan Materials Co.  v. Bee Construction, 96 Ill.2d at 165, 70 Ill.Dec. 465, 449 N.E.2d 812; In re Marriage of Noble (1989), 192 Ill.App.3d 501, 509, 139 Ill.Dec. 133, 548 N.E.2d 518; James v. Chicago Transit Authority (1976), 42 Ill.App.3d 1033, 1034-35, 1 Ill.Dec. 552, 356 N.E.2d 834; Johnson v. Hawkins, 4 Ill.App.3d at 32, 280 N.E.2d 291.) Fraudulent concealment, for example, renders a court’s orders voidable, not void. In re Application of County Treasurer (1990), 194 Ill.App.3d 721, 726, 141 Ill.Dec. 350, 551 N.E.2d 343.

 

Can file civil rights suit against lawyer when they lie to the court and harm you

In ?  Vigus v. O’Bannon, 1886 N.E. 788, 118 Ill. 334; Hazelton v. Carolus, 1907 132 Ill. App. 512; Carter v. Mueller 457 N.E. 2d 1335 Ill. App. 1 Dist. 1983, The Supreme court has held that: “The elements of a cause of action for fraudulent misrepresentation (sometimes referred to as “(fraud and deceit)”are: (1) False statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. ______________, ____ U.S. _____ (_?_)

_____? citation_______Scott, 377 Mass. 364, 386 N.E. 2d 218, 220 (1979) See Lopez-Alexander, Unreported Order No. 85-279 (Colo. May 3, 1985) (Judge removed for, inter alia, a persistent pattern of abuse of the contempt power. The Mayor of Denver accepted the findings of the Denver County Court Judicial Qualification Commission that the judge’s conduct could not be characterized as mere mistakes or errors of law and that the conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute). Canon Ethics where there is a pattern of disregard or indifference, which warrant discipline.

Section 1983 of U.S.C.S. contemplates the depravation of Civil Rights through the Unconstitutional Application of a Law by conspiracy or otherwise. Mansell v. Saunders (CA 5 F 1A) 372 F 573, especially if the conspiracy was actually carried into effect, where an action is for a conspiracy to interfere with Civil Rights under 42 U.S.C.S. 1985 (3), or for the depravation of such rights under 42 U.S.C.S. 1983, if the conspiracy was actually carried into effect and plaintiff was thereby deprived of any rights, privileges, or immunities secured by the United States Constitution and Laws, the gist of the action maybe treated as one for the depravation of rights under 42 U.S.C.S. 1983, Lewis v. Brautigam (CA 5 F 1a) 227 F 2d 124, 55 ALR 2d 505, John W. Strong, 185, 777-78 (4 th ed. 1992).

Properly alleged facts within an affidavit that are not contradicted by counter affidavit are taken as true, despite the existence of contrary averments in the adverse party’s pleadings. Professional Group Travel, Ltd. v. Professional Seminar Consultants Inc., 136 ILL App 3d 1084, 483 N.E. 2d 1291; Buzzard v. Bolger, 117 ILL App 3d 887, 453 N.E. 2d 1129 et al.

i.e. even if false statements, unless you have affidavits that they are false, the statement is taken as true

FRAUD BY STATE IN CRIMINAL CASE – FALSE STATEMENTS TO CRIMINAL COURT

 

Where the public policy of the State of Illinois is violated, the order is void, Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

“Fraud upon the court” makes void the orders and judgments of that court. It is clear and well-settled law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354, 192 N.E. 229 (1934)

To apprehend a person on a sham or pretextual charge is so dangerous to interest of privacy and personal security as to call into play the exclusionary rule … The officer’s subjective intent and beliefs are quite crucial … If sham arrest operating under the impression that an arrest for offense count not stand up – use exclusionary rule …arrest must have a good faith probable cause  Carroll v. United States 267 U.S. 132, 156, 69 L.Ed. 543, 45 S.Ct 280 (1925); Moss v. Cox, 311 F.Supp. 1245, 1252 (ED VA 1970)

Due Process Defense 97 ALR Fed. 273

Inability to pay child support, court fee, & court-appointed counselor or examiner


A COURT MAY AWARD THE NONCUSTODIAL PARENT CHILD SUPPORT IF THE CUSTODIAL PARENT IS MUCH WEALTHIER THAN NONCUSTODIAL PARENT. THIS IS SO THAT CHILD CAN LIVE SAME LIFESTYLE WITH BOTH PARENTS.

In re Marriage of Turk 2014 IL 116730

 

Appellate citation: 2013 IL App (1st) 122486.

 

      JUSTICE KARMEIER delivered the judgment of the court, with opinion.

            Chief Justice Garman and Justices Freeman, Kilbride, and Burke concurred in the judgment and opinion.

      Justice Theis specially concurred, with opinion, joined by Justice Thomas.

 

            The parties to this Cook County child support dispute divorced in 2005 and have two sons, now ages 17 and 15. In 2012, the circuit court entered an agreed order establishing the father as custodial parent and setting up a visitation schedule for the mother under which she had regular visitation with the older boy once a week, for dinner on Wednesdays, and regular visitation with the younger boy, with weekly visits from Monday to Wednesday mornings, plus alternating weekends. This system gave her nearly equal time with him. At this time it was determined that the father earned approximately $150,000 per year and that the mother was earning less than $10,000. The father asked for termination of his obligation to pay support based on his custodial status, but the circuit court’s order required him to pay $600 per month in child support and to fund medical expenses not covered by insurance. The father’s claim that his designation as custodial parent meant that statute precluded requiring him to pay child support to a noncustodial parent was rejected by the circuit court, and the father appealed.

            The appellate court, like the circuit court, rejected the father’s claim of no obligation to pay child support, and it affirmed this aspect of the trial court’s ruling. However, it remanded for an evidentiary hearing for reconsideration as to the support amount. It did not, however, interfere with the circuit court’s ruling as to medical expenses.

            In this decision, the Illinois Supreme Court said that the Illinois Marriage and Dissolution of Marriage Act expressly confers on courts the option to order either or both parents to pay an amount that is reasonable and necessary for the support of the child, and, in its discretion, to order payment of various expenses determined to be reasonable, including health needs not covered by insurance. The supreme court explained that a parent who is technically noncustodial may have visitation rights which place the child in that parent’s care for periods of time which involve commensurate cost. This can be problematic if the noncustodial parent has fewer resources to meet the substantial support costs of an extensive visitation schedule. This would not only be unfair, but would leave the poorer parent with insufficient resources to care for the child in a manner even minimally comparable to that of the wealthier parent. A child should not end up living commensurate with the wealthier custodial parent’s income only half the time, when staying with the wealthier custodial parent. This could be detrimental to the child. Therefore, a trial court may order a custodial parent to pay child support where the circumstances and the best interests of the child warrant it.

            While rejecting the custodial father’s claims as to the meaning of the statute, the appellate court had remanded for an evidentiary hearing, with directions for the circuit court to clearly explain the basis for any support awarded. It was correct in this regard, but the supreme court held that, on remand, the circuit court should also revisit with specificity the issue of what portion of uninsured medical expenses the father should be required to pay.

            The appellate court was, thus, affirmed in part and reversed in part.

________________________________________________________________

THE U.S. SUPREME COURT HAS HELD THAT BEFORE A PERSON CAN BE JAILED FOR NONPAYMENT OF CHILD SUPPORT HE MUST BE GIVEN DUE PROCESS AND IN SOME CASES AN ATTORNEY – IF THE COURT DOES NOT PROVIDE THAT DUE PROCESS AS DEFINED IN THIS CASE

Turner v. Rogers, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011) [2011 BL 161240]

If incarcerated for failing to pay child support must have been given due process – notice, due process evidentiary hearing where it must be proven that defendant has ability to pay child support, and counsel. In a civil case, due process does not always involve appointment of counsel.

This is true only if there are procedural safeguards:

These include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay,

and the opposing counsel (parent) is pro se, then the court is not required to appoint counsel.

 

September 21, 2012

Grandparent visitation rights in Illinois – a big hurdle


ILLINOIS LAW ON GRANDPARENTS’ VISITATION RIGHTS by L. Shelton

This post assumes that the custodial parent has denied visitation for the non-custodial parent-related grandparents.

As explained in the following it is almost impossible to obtain visitation for  grandparents by court order unless the grandparents can prove, by convincing evidence that without their visitation the child’s mental, physical, or emotional health will be harmed.  Therefore, the grandparents must obtain affidavits from psychologists, testimony from the child, or independent testimony from persons other than themselves that there is hard evidence that a child will be harmed without their interactions with the child.  There is a presumption in the law that the parent’s decision to bar visitation from the grandparent does not harm the child.

It is a sad statement that although the Illinois law supports in principle grandparents’ visitation rights in cases where parents are not available, in reality the Illinois Supreme Court’s interpretation of this law eviscerates it so that if a custodial parent refuses to allow the grandparents to visit with the child, the grandparents have no recourse.

Grandparents’ rights are contained in several different statutes including:

  • Illinois Marriage and Dissolution of Marriage Act (IMDMA) 750 ILCS 5/101, et seq.,
  • Illinois Probate Act of 1975 (Probate Act), 755 ILCS 5/1-1, et seq., and
  • Illinois Adoption Act, (Adoption Act) 750 ILCS 5/0.01, et seq..

In common law, the superior right of the natural parent to raise and control their children was absolute barring special circumstances, such as when a parent died and his/her parents were trustee for their grandchild, or when the parent died and the grandparents had a long established close relationship with the child. In re Marriage of Spomer, 123 Ill.App.3d 31, 462 N.E.2d 724, 78 Ill.Dec. 605 (1984) [5th Dist].

Since 2005, although the Illinois Supreme Court (IL S Ct) has not addressed the constitutionality of the act yet, under the Probate Act and the IMDMA grandparents can move for visitation. Amendments to the IMDMA have been considered in Flynn v. Henkel, 227 Ill.2d 176, 880 N.E.2d 166, 316 Ill.Dec. 688 (2007).

In 2000 the legislature enacted law to allow grandparents visitation rights, IMDMA §§607(b)(1) and 607(b)(3). This was held unconstitutional in Wickham v. Byrne, 199 Ill.2d 309, 769 N.E.2d 1, 263 Ill.Dec. 799 (2002). They ruled the statute infringed on the natural parents’ fundamental right “to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion.” Wickham 769 N.E.2d at 5. See also Schweigert v. Schweigert, 201 Ill.2d 42, 772 N.E.2d 229, 265 Ill.Dec. 191 (2002); and Lulay v. Lulay, 193 Ill.2d 455, 739 N.E.2d 521, 250 Ill.Dec. 758 (2000).

Statutes that infringe on such fundamental rights can only survive if narrowly tailored to serve a compelling government interest. Laws pertaining to mandatory immunizations, protection against child abuse, and child labor prohibitions will survive.

In 2005 the legislature narrowed the situations where grandparents can move for and obtain visitation to comport with the above principles. This statute permits grandparents to seek visitation with their grandchild if the child’s parent or parents unreasonable deny visitation and at least one of five situations exists. 750 ILCS 5/607(a-5)(1):

1)    One parent is incompetent, deceased, or imprisoned for more than one year.

2)    The child’s parents are divorced for at least three months, at least one of the parents does not object to the visitation, and the grandparent visitation would not interfere with the visitation enjoyed by the parent not related to the grandparent seeking visitation.

3)    If a court other than a juvenile court or adoption court has terminated one parent’s rights in the child and this parent is the child of the grandparent seeking visitation.

4)    The child was born out of wedlock, the parents do not live together, and the petitioner is a maternal grandparent.

5)    The child was born out of wedlock, a court has established paternity, the parents do not live together, and the petitioner is the paternal grandparent.

The statute prohibits petitions for grandparents visitation if the parental rights have been terminated in an adoption proceeding, 750 ILCS 5/607(a-5)(2).

The statute places the burden of proof on the grandparent and the Illinois Supreme Court has interpreted this so onerously that it is now virtually impossible for grandparents to obtain visitation if the custodial parent does not approve of it.

“[T]here is a rebuttal presumption that a fit parent’s actions and decisions regarding grandparent . . .  visitation are not harmful to the child’s mental, physical, or emotional health.” 750 ILCS 5/607(a-5)(3) To prevail on a petition for visitation, the grandparents must prove that the parent’s actions and decisions in denying visitation harm the child’s mental, physical, or emotional health. Id. In determining whether this rebuttable presumption is overcome, the trial court is directed to consider numerous factors. These factors are:

1)    the child’s preference,

2)    the mental and physical health of the child and the grandparents,

3)    the duration and nature of the child’s relationship with the grandparents,

4)     the good faith of the grandparents in seeking visitation and of the person denying visitation,

5)    the amount of visitation time requested and

6)    whether this visitation would adversely impact the child’s other activities,

7)    whether the child lived with the grandparents for at least six consecutive months with or without the current custodial parent,

8)    whether the grandparents have had frequent contact with the child for at least 12 consecutive months,, and

9)    any other facts that demonstrate that severing the relationship between the grandparents and the child will harm the child’s mental, physical, or emotional health.

750 ILCS 5/607(a-5)(4).

If the grandparents prevail, the court still has great flexibility in shaping the order. The court may refuse to grant overnight visitation or even possessory visitation. The court need only provide grandparents with reasonable access to the child. 750 ILCS 5/607(a-5)(5).

Modifications of these grandparents’ visitation orders may be requested every two years, similar to this restriction on custody orders, unless the court is provided affidavits alleging facts that demonstrate “the child’s environment may endanger seriously the child’s mental, physical, or emotional health.” 750 ILCS 5/607(a-5)(1). It must be proved by clear and convincing evidence that circumstances have changed since entry of previous visitation orders, which are necessary to protect the child’s mental, physical, or emotional health. Changes to the grandparent’s circumstances are irrelevant. The changes must relate to the child and the custodian. (750 ILCS 5/607(a-7)(2). The petition to modify visitation may be premised only on factual allegations that were nonexistent or unknown to the court when the previous visitation order was entered. (Id)  “Attorneys’ fees and costs shall be assessed against a party seeking modification of the visitation order if the court finds that the modification action is vexatious and constitutes harassment.,” 750 ILCS 5/607(a-7)(3).

Several amendments took effect in 2007:

1)    Grandparent visitation statutes do not apply to children less than one year old. 750 ILCS 5/607(a-3)

2)    The Petition must be filed in the county in which the child resides. 750 ILCS 5/607(a-3)

3)    The grandparent may petition for visitation during a pending divorce proceeding or any other proceeding involving custody of a child. 750 ILCS 5/607(a-3)

4)    The grandparent may petition for visitation if the parent has been missing for three months. 750 ILCS 5/607(a-5)(1)(A-5) [missing means the person cannot be located and the fact they are missing has been reported to a law enforcement agency.] (Id.)

5)    The grandparent may also petition for visitation if the parent has been incarcerated during the three month period prior to the filing of the petition. 750 ILCS 5/607(a-5)(1)(A-15).

6)    The grandparent may petition for visitation if the child has been adopted by a relative or a stepparent [which changes the law barring visitation after adoption.].

The IL S Ct has ruled in Flynn v. Henkel, 227 Ill.2d 176, 880 N.E.2d 166, 316 Ill.Dec. 688 (2007), concerning grandparent visitation rights under these statutes. The court reversed the lower court and Appellate Court decisions granting visitation, stating that the grandparents, in this case where the child was born out of wedlock, did not meet their burden of proof to show that it is harmful to the child’s mental, physical, or emotional health if visitation with the paternal grandparents was denied. The constitutionality of the new grandparent visitation statute has not been addressed.

Neither denial of an opportunity for grandparent visitation, as the trial court found, nor a child “never knowing a grandparent who loved him and who did not undermine the child’s relationship with his mother,” as the appellate court held, is “harm” that will rebut the presumption stated in section 607(a-5)(3) that a fit parent’s denial of a grandparent’s visitation is not harmful to the child’s mental, physical, or emotional health. 880 N.E.2d at 171.

Under the probate act, a grandparent may petition for visitation if:

1)    both parents are deceased, and

2)    the grandparent is the parent of the child’s legal  parent. [thus if the adoptive parents both die, the grandparents may petition for visitation only if they are parents of the adoptive parents.]

755 ILCS 5/11-7.1(a). The burden of proof to prove these things by the preponderance of the evidence is on the petitioner. Again,, if adopted by a close relative, then the grandparents may petition for visitation. Close relatives include aunts, uncles, first cousins, and brothers and sisters of the child.

August 9, 2012

Family Law – U.S. Consumer Protection Act limits amount of garnishment for child support


The consumer protection act REQUIRES that no more than 65 % of you income go towards paying back child support (this 65% includes  payment of taxes first, then child support, then any other garnishment of wages – total garnishment can be no more than 65 % if in arrears and 60 % of wages if not in arrears for child support).

From “Big Divorce Book” I Compiled:

11. “Title III, Consumer Protection Act”  Summary of authority and purpose of 15 USC § 1671 et seq. and 29 CFR Part 870 regarding maximum payments that may Be withheld under federal law from Obligor …………………………………………….  50-51

12. 15 USC § 1671 et seq. Federal Wage Garnishment Law (Title III of the Consumer Protection Act) & corresponding 29 CFR Part 870 …………………………………….  51-56

Mandates that when child support is an issue that federal and State taxes have priority over child support or other debts. Provides that child support has priority over other debts except for taxes. Provides that if the Obligor is not living with and supporting a spouse or child that no more than a total of 60% of net wages may be withheld from a paycheck and no more than 65% of net wages may be withheld from a paycheck if Obligor is more than 12 weeks in arrears ………………………………..   52-54

TITLE 15 > CHAPTER 41 > SUBCHAPTER II > § 1671. = 15 U.S.C. § 1671      Congressional findings and declaration of purpose

(a) Disadvantages of garnishment The Congress finds:

(1) The unrestricted garnishment of compensation due for personal services encourages the making of predatory extensions of credit. Such extensions of credit divert money into excessive credit payments and thereby hinder the production and flow of goods in interstate commerce.

(2) The application of garnishment as a creditors’ remedy frequently results in loss of employment by the debtor, and the resulting disruption of employment, production, and consumption constitutes a substantial burden on interstate commerce.

(3) The great disparities among the laws of the several States relating to garnishment have, in effect, destroyed the uniformity of the bankruptcy laws and frustrated the purposes thereof in many areas of the country.

(b) Necessity for regulation On the basis of the findings stated in subsection (a) of this section, the Congress determines that the provisions of this subchapter are necessary and proper for the purpose of carrying into execution the powers of the Congress to regulate commerce and to establish uniform bankruptcy laws.

15 U.S.C. § 1672. Definitions

For the purposes of this subchapter:

(a) The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.

(b) The term “disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.

(c) The term “garnishment” means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.

15 U.S.C. § 1673. Restriction on garnishment

(a) Maximum allowable garnishment Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed

(1) 25 per centum of his disposable earnings for that week, or

(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206 (a)(1) of title 29 in effect at the time the earnings are payable,

whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).

(b) Exceptions (1) The restrictions of subsection (a) of this section do not apply in the case of (A) any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by State law, which affords substantial due process, and which is subject to judicial review.

(B) any order of any court of the United States having jurisdiction over cases under chapter 13 of title 11.

(C) any debt due for any State or Federal tax.

(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed— (A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual’s disposable earnings for that week; and

(B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week;

except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.

(c) Execution or enforcement of garnishment order or process prohibited No court of the United States or any State, and no State (or officer or agency thereof), may make, execute, or enforce any order or process in violation of this section.

15 U.S.C. § 1674. Restriction on discharge from employment by reason of garnishment

(a) Termination of employment No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.

(b) Penalties Whoever willfully violates subsection (a) of this section shall be fined not more than $1,000, or imprisoned not more than one year, or both.

15 U.S.C. § 1676. Enforcement by Secretary of Labor

(If someone violates this law you should complain to the U.S. Dept of Labor)

The Secretary of Labor, acting through the Wage and Hour Division of the Department of Labor, shall enforce the provisions of this subchapter.

29 C.F.R. 870 et seq.

Title 29: Labor

PART 870—RESTRICTION ON GARNISHMENT Section Contents

Subpart A—General

29 U.S.C. § 870.1   Purpose and scope. § 870.2   Amendments to this part. Subpart B—Determinations and Interpretations

29 U.S.C. § 870.10   Maximum part of aggregate disposable earnings subject to garnishment under section 303(a). § 870.11   Exceptions to the restrictions provided by section 303(a) of the CCPA and priorities among garnishments.

Subpart A—General § 870.1   Purpose and scope. (a) This part sets forth the procedures and any policies, determinations, and interpretations of general application whereby the Secretary of Labor carries out his duties under section 303 of the CCPA dealing with restrictions on garnishment of earnings, and section 305 permitting exemptions for State-regulated garnishments in certain situations. While the Secretary’s duties under section 303 include insuring that certain amounts of earnings are protected, such duties do not include establishing priorities among multiple garnishments, as such priorities are determined by other Federal statutes or by State law.

(b) Functions of the Secretary under the CCPA to be performed as provided in this part are assigned to the Administrator of the Wage and Hour Division (hereinafter referred to as the Administrator), who, under the general direction and control of the Assistant Secretary, Wage and Labor Standards Administration, shall be empowered to take final and binding actions in administering the provisions of this part. The Administrator is empowered to subdelegate any of his duties under this part. Any legal advice and assistance required for administration of this part shall be provided by the Solicitor of Labor.

29 U.S.C. § 870.2   Amendments to this part. The Administrator may, at any time upon his own motion or upon written request of any interested person setting forth reasonable grounds therefor, amend any rules in this part.

Subpart B—Determinations and Interpretations § 870.10   Maximum part of aggregate disposable earnings subject to garnishment under section 303(a). (a) Statutory provision. Section 303 (a) of the CCPA provides that, with some exceptions,

the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed

(1) 25 per centum of his disposable earnings for that week, or

(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 6(a)(1) of the Fair Labor Standards Act of 1938, in effect at the time the earnings are payable.

whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).

(b) Weekly pay period. The statutory exemption formula applies directly to the aggregate disposable earnings paid or payable for a pay period of 1 workweek, or a lesser period. Its intent is to protect from garnishment and save to an individual earner the specified amount of compensation for his personal services rendered in the workweek, or a lesser period. Thus:

(1) The amount of an individual’s disposable earnings for a workweek or lesser period which may not be garnished is 30 times the Fair Labor Standards Act minimum wage. If an individual’s disposable earnings for such a period are equal to or less than 30 times the minimum wage, the individual’s earnings may not be garnished in any amount. (When the minimum wage increases, the proportionate amount of earnings which may not be garnished also increases.) On April 1, 1991, the minimum wage increased to $4.25. Accordingly, the amount of disposable weekly earnings which may not be garnished is $127.50 effective April 1, 1991. (For the period April 1, 1990 through March 31, 1991, the amount that may not be garnished is $114 (30×$3.80).)

(2) For earnings payable on or after April 1, 1991, if an individual’s disposable earnings for a workweek or lesser period are more than $127.50, but less than $170.00, only the amount above $127.50 is subject to garnishment. (For earnings payable during the period April 1, 1990, through March 31, 1991, when the Fair Labor Standards Act minimum wage was $3.80, this range computes to more than $114.00, but less than $152.00.)

(3) For earnings payable on or after April 1, 1991, if an individual’s disposable earnings for a workweek or lesser period are $170.00 or more, 25 percent of his/her disposable earnings is subject to garnishment. (The weekly figure was $152.00 (40×$3.80) for the period April 1, 1990 through March 31, 1991.)

(c) Pay for a period longer than 1 week. In the case of disposable earnings which compensate for personal services rendered in a pay period longer than 1 workweek, the weekly statutory exemption formula must be transformed to a formula applicable to such earnings providing equivalent restrictions on wage garnishment.

(1) The 25 percent part of the formula would apply to the aggregate disposable earnings for all the workweeks or fractions thereof compensated by the pay for such pay period.

(2) The following formula should be used to calculate the dollar amount of disposable earnings which would not be subject to garnishment: The number of workweeks, or fractions thereof, should be multiplied times the applicable Federal minimum wage and that amount should be multiplied by 30. For example, for the period April 1, 1990 through March 31, 1991 when the Federal minimum wage was $3.80 per hour, the formula should be calculated based on a minimum wage of $3.80 ($3.80 multiplied by 30 equals $114; $114 multiplied by the number of workweeks (or fractions thereof) equals the amount that cannot be garnished). As of April 1, 1991, the $4.25 Federal minimum wage replaces $3.80 in the formula (and the amount which cannot be garnished would then be $127.50 multiplied by the number of workweeks (or fractions thereof)). For purposes of this formula, a calendar month is considered to consist of 41/3workweeks. Thus, during the period April 1, 1990 through March 31, 1991 when the Federal minimum hourly wage was $3.80 an hour, the amount of disposable earnings for a 2-week period is $228.00 (2×30×$3.80); for a monthly period, $494.00 (41/3×30×$3.80). Effective April 1, 1991, such amounts increased as follows: for a two-week period, $255.00 (2×30×$4.25); for a monthly period, $552.50 (41/3×30×$4.25). The amount of disposable earnings for any other pay period longer than 1 week shall be computed in a manner consistent with section 303(a) of the act and with this paragraph.

(3) Absent any changes to the rate set forth in section 6(a)(1) of the Fair Labor Standards Act, disposable earnings for individuals paid weekly, biweekly, semimonthly, and monthly may not be garnished unless they are in excess of the following amounts:

Date Minimum amount Weekly amount Biweekly amount Semi-monthly amount Monthly rate Jan. 1, 1981 $3.35 $100.50 $201.00 $217.75 $435.50 Apr. 1, 1990 3.80 114.00 228.00 247.00 494.00 Apr. 1, 1991 4.25 127.50 255.00 276.25 552.50

(4) Absent any changes to the rate set forth in section 6(a)(1) of the Fair Labor Standards Act, if the disposable earnings are less than the following figures, only the difference between the appropriate figures set forth in paragraph (c)(3) of this section and the individual’s disposable earnings may be garnished.

Date Minimum amount Weekly amount Biweekly amount Semi-monthly amount Monthly rate Jan. 1, 1981 $3.35 $134.00 $268.00 $290.33 $580.67 Apr. 1, 1990 3.80 152.00 304.00 329.33 658.67 Apr. 1, 1991 4.25 170.00 340.00 368.33 736.67

For example, in April of 1990, if an individual’s disposable earnings for a biweekly pay period are $274.00, the difference between $228.00 and $274.00 (i.e., $46.00) may be garnished.

(5) If disposable earnings are in excess of the figures stated in paragraph (c)(4) of this section, 25% of the disposable earnings may be garnished.

(d) Date wages paid or payable controlling. The date that disposable earnings are paid or payable, and not the date the Court issues the garnishment order, is controlling in determining the amount of disposable earnings that may be garnished. Thus, a garnishment order in November 1990, providing for withholding from wages over a period of time, based on exemptions computed at the $3.80 per hour minimum wage then in effect, would be modified by operation of the change in the law so that wages paid after April 1, 1991, are subject to garnishment to the extent described in paragraphs (b) and (c) of this section on the basis of a minimum rate of $4.25 per hour. This principle is applicable at the time of the enactment of any further increase in the minimum wage.

29 U.S.C. § 870.11   Exceptions to the restrictions provided by section 303(a) of the CCPA and priorities among garnishments. top (a)(1) Section 303(b) of the Consumer Credit Protection Act provides that the restrictions in section 303(a) do not apply to:

(i) Any debt due for any State or Federal tax, or

(ii) Any order of any court of bankruptcy under Chapter XIII of the Bankruptcy Act.

(2) Accordingly the Consumer Credit Protection Act does not restrict in any way the amount which may be withheld for State or Federal taxes or in Chapter XIII Bankruptcy Act proceedings.

(b)(1) Section 303(b) provides the following restrictions on the amount that may be withheld for the support of any person (e.g. alimony or child support):

(A) Where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is issued), 50 per centum of such individual’s disposable earnings for that week; and

(B) Where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week; except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve week period which ends with the beginning of such workweek.

(2) Compliance with the provisions of section 303(a) and (b) may offer problems when there is more than one garnishment. In that event the priority is determined by State law or other Federal laws as the CCPA contains no provisions controlling the priorities of garnishments. However, in no event may the amount of any individual’s disposable earnings which may be garnished exceed the percentages specified in section 303. To illustrate:

(i) If 45% of an individual’s disposable earnings were garnished for taxes, and this garnishment has priority, the Consumer Credit Protection Act permits garnishment for the support of any person of only the difference between 45% and the applicable percentage (50 to 65%) in the above quoted section 303(b).

(ii) If 70% of an individual’s disposable earnings were garnished for taxes and/or a Title XIII Bankruptcy debt, and these garnishments have priority, the Consumer Credit Protection Act does not permit garnishment either for the support of any person or for other debts.

(iii) If 25% of an individual’s disposable earnings were withheld pursuant to an ordinary garnishment which is subject to the restrictions of section 303(a), and the garnishment has priority in accordance with State law, the Consumer Credit Protection Act permits the additional garnishment for the support of any person of only the difference between 25% and the applicable percentage (50–65%) in the above quoted section 303(b).

(iv) If 25% or more of an individual’s disposable earnings were withheld pursuant to a garnishment for support, and the support garnishment has priority in accordance with State law, the Consumer Credit Protection Act does not permit the withholding of any additional amounts pursuant to an ordinary garnishment which is subject to the restrictions of section 303(a).

March 7, 2012

IISBA members retaliate against activists in family court fighting against extortion of family assets by court-appointed attorneys


Read complaint here.

On February 29, 2012 a group of moms and dads who were victims of court ordered extortion of their families appeared to testify before the Illinois House Judiciary I Committee in support of HB 5544, which would set a limit on fees that child representatives and guardian ad litems can bill families for services in divorce cases, when they are court-appointed to represent the minor children.

These moms and dads made compelling testimony that proved that judges were rubber stamping orders to pay these lawyers exorbitant amounts, from $300 to $1200 per hour, amounting to up to around $100,000 per divorce case. These fees which are often one to two times an average family’s yearly income, not including the fees the parents pay each of their own attorneys, cause the corrupt family court judges to ignore the law, 750 ILCS 5-506, that requires them to approve only “reasonable and necessary” fees, and order the families to use the children’s’ college funds to pay the court-appointed attorneys as well as to sell their homes – often making them homeless or end up living in trailer homes or with friends and relatives, to pay these fees.

Surely, this was not the intent of the legislature when they enacted these statutes to look after the “best interest of the children” – notably a term that the Nazis used 60 years ago to take Aryan looking from their parents and place them with good German couples in order to ensure a pure race!

For details of this scheme to rape the estates of families in divorce court to enrich lawyers see the complaint filed with the ARDC, Illinois Supreme Court Chief Justice Kilbride, with the attached copies of the slide show that these activists gave to the Illinois House Judiciary I Committee on February 29, 2012 to document this atrocious, immoral, and illegal scheme supported by the ISBA, whose member testified that they NEED these exorbitant fees and the families should have a penalty that impoverishes them for arguing with each other!

Read complaint here.

February 14, 2012

Tell your representatives support HB 2833 – end excessive fees to child reps & GALs in divorce


To: All Members of General Assembly

From: Concerned Citizens On behalf of families whose assets were depleted by the “cottage industry” and whose assets are no longer available for the care, up-keep, and education of their children – Michael Gerhardt, Esq., Milijana Vlastelica, Karyn Mehringer, MA., LCPC, Claudia Shabo, Miriam Shabo, David Bambic, Marie Szczypta and other Community Activists

Dear Legislators,

 

PLEASE REVIEW THE LANGUAGE OF HB 2833 HA#1 AND VOTE YES TO END THE “COTTAGE INDUSTRY” IN THE DOMESTIC RELATIONS DIVISION PROBLEM:

Representation of Child statute, 750 ILCS 5/506 provides no fee cap that the private attorneys, in a capacity of a court-appointed Attorney for Child (AFC), Guardian ad Litem (GAL), Child Representative (CR), may bill the parties for representing their minor children in divorce/custody cases.

• On April 10, 2010, The Illinois Family Law Study Committee (Formed by the Illinois House of Representatives to investigate and recommend changes to laws) identified and referred to the present domestic relations system as a “cottage industry.”

• In Lawpulse, IBJ, July 07 publication, one of the attorneys stated, “There are attorneys making half a million dollars a year as child reps – and not working terribly hard for it”.

• Currently, the children’s attorneys, GALs/CRs/AFCs are allowed to bill a rate as high as $400.00/hour, especially in Chicago and its wide metropolitan area.

• Some GALs/CRs/AFCs are not submitting a detailed invoice for each 90-day period as required by the statute, without any consequences.

• Some courts are awarding lump sum fees to appointed GALs/CRs/AFCs without ever receiving properly itemized billing.

• Some GALs/CRs/AFCs are billing the parents a professional attorney rate for the preparation and presentation of their invoices. SOLUTION: House Bill 2833, HA #1 provides that:

• A court-appointed GAL/CR/AFC may be paid at a reasonable rate not to exceed $150.00/hour which is comparable to what a court-appointed attorney used to make in death penalty cases.

• A court-appointed GAL’s/CR’s/AFC’s failure to submit a detailed invoice for each 90-day period precludes the collection of fees for services rendered in that period.

• A court-appointed GAL/CR/AFC may not bill the parties any fees for the preparation and presentation of an invoice.

• A court may not award lump sum fees to a court-appointed GAL/CR/AFC.

• Deletes provision which states that unless otherwise ordered by the court at the time that the fees and costs are approved, all fees and costs payable to an appointed attorney, GAL/CR/AFC are by implication deemed to be in the nature of support of the child. STATUS: All 11 members of the Judiciary I – Civil Law Committee recommended that HB 2833, HA #1 be adopted with amendments to be added. DISCUSSION:  Fees capped at $150/hour instead of $300-$400 and more:

• Presently, there is no cap on as to what the private attorneys in a capacity of court-appointed GAL/CR/AFC may charge the parties in divorce/custody cases for advocating the minor children’s best interests. GAL/CR/AFC often bill between $300 -$400/hour; and many times, no one knows what their billing rates are as judges are not requiring detailed invoices and rubberstamping their fees without question. This is one of the reasons this area is labeled a “cottage industry” and is open to serious fee abuse.

• Pursuant to the Illinois Supreme Court Rule 906, the Special Committee stated, “Ideally, the State would provide sufficient funding to reimburse the private attorneys who are appointed by the court. In the absence of such funding, the individual judicial circuits will need to be innovative in meeting the financial requirements of the plans. In addition to requiring the parties to pay for the appointed lawyer’s services, the local rules could provide for the targeting of court filing fees. Voluntary pro bono service is also strongly encouraged.”  In practice, some judicial circuits became “innovative” by allowing the appointed attorneys to bill the parents excessive fees in excess of $100,000.00.  Voluntary pro bono service is virtually non-existent.

• No trial court should ever be in a position to generate an extremely lucrative business to the private attorneys without any recourse available to the parties.

• There is no reason, rationale, or basis as to why the court-appointed attorneys, GALs/CRs/AFCs in custody cases, are allowed to bill $400/hour when paid for by the parents, whereas all other court-appointed attorneys make only a fraction of that.

• In Death Penalty cases, an appointed attorney fees did not exceed $125/hour (adjusted for COLA) per 725 ILCS 124-10.

• In non-death penalty cases, attorney fees are based on 725 ILCS 5/113-3, at $40/hour for court time and $30/hour for non-court time.

• Even the most senior Public Defenders are paid no more than $40/hour; and they are dealing with loss of freedom – jail time.

• Therefore, the proposed rate of $150/hour is more than equitable.

• Being an attorney as a GAL/CR/AFC has lower costs associated than being any other attorney.

• No “marketing costs” as one does not have to look for a case; but is assigned the case. (Assignment, other than randomly, opens this area for much abuse and favoritism.)

• One does not have to worry about collection of fees as the judge will order the fees from the marital estate, and often with the threat of contempt. No other attorneys enjoy this luxury. And in a “cottage industry” this is particularly disturbing. Invoices need to be detailed and submitted:

• This area has already been identified as a “cottage industry.” That includes: fee abuses, work not performed, no accountability, etc.

• How does one determine an amount to bill if there is no record of work performed? There needs to be repercussions for failure to submit a bill, because failure to submit a bill indicates that there is something amiss.

• Regularly submitting bills will encourage settlement, and is a method to control costs of litigation.

• Every profession, including lawyers, regularly submits bills. There should be no huge surprise at the very end. Hiding costs until late in the process is unprofessional and borders on extortion. The federal courts have already held that the fees and costs payable to GAL/CR/AFC are not a domestic support obligation of the debtor:

• In Joel Levin v. Carlo M. Greco, No. 08-A-00251, In the United States Bankruptcy Court For the Northern District of Illinois, Eastern Division, the Court held that the debt owed to a “child representative” in an Illinois divorce case is not a “domestic relations support obligation” under 101 (14A) of the Bankruptcy Code (Title 11, U.S.C), a status that would make the debt nondischargeable under 523 (a) (5) of the Code.

February 12, 2012

Illinois Supreme Court motion for supervisory order to force Illinois HFS Child Support Division to hear requests to change child support


Federal and State law, Social Security Title IV-D and 305 ILCS 5/10, require the administrative law courts in the Illinois Department of Healthcare and Family Services (HFS) hear petitions to change child support by a non-custodial parent or custodial parent. For a summary of these laws see this link here.

The HFS Child Support Division and their Administrative Law courts have been illegally refusing to hear any non-custodial parent’s request for change in child support for 20 years. They do not even have forms for the non-custodial parent to apply for a hearing before the Administrative Court Law Judge or to request a change in child support!  The above codes and statutes require that this be allowed and done. Therefore, their refusal to do their job is being challenged in the courts – see link below.

HFS-CSD directed by Pam Lowery has been refusing to do their job. Non-custodial parents have been illegally forced to pay as much as 110 % of their income for child support and have even been illegally jailed. Even if in arrears a non-custodial parent may not be ordered to pay more than 65 % of his/her income to child support after garnishment for taxes per the federal Consumer Protection Act.

Trial courts lose jurisdiction to hear post-trial requests for change in child support according to these laws and regain it only after the HFS-CSD administrative law court investigates the financial circumstances (with subpoenas to the parents) and holds a hearing before the administrative law judge in their division with the parents present and then makes a recommendation that goes to the Trial Judge. Then the trial judge can rubber-stamp it if the parents agree or hold a trial to determine the appropriate amount of child support if the parents disagree.

See a 383 Motion for Supervisory Order to the Illinois Supreme Court , which purpose is to ask the Court to ORDER the HFS-CSD administrative law courts to do their statutory duty and to order the family court judges to stop holding post-trial hearings on child support until AFTER they receive the recommendations from the HFS-CSD administrative law courts. here

January 25, 2012

Motion for Supervisory Order – Illinois Supreme Court


The reason to file a motion for a supervisory order with the Illinois Supreme Court (IL S Ct) is if a person is unable to file  direct appeal on the issue. For example in a divorce case where the judge endlessly keeps an issue “in reserve” for more than a year, and therefore, there is no final appealable order because all issues are not dealt with, then it is appropriate to file a motion for supervisory order to the IL S Ct in order to ask for an order to force the trial judge to make a decision on the case.

Also see info from the Illinois Pro Bono organization: here

The following is an example of a motion for supervisory order. The sample IL S Ct motion for supervisory order is here.

To file it, if the court is in session you send the original and 9 copies to the IL S Ct in Springfield at their office. If they are not in session and you are in Chicago, you file an original and five copies in the Chicago office of the IL S Ct and then send one copy to each of the four justices outside of Chicago – their local offices. Recently (2013) the IL S Ct made rules on how to E-file. See their web site for updated information.

Included must be notice of service to the judge (who is the respondent) and to the other parties, an order with a place for the judges to circle either “denied” or “granted” and a place to sign it., a verified statement that you are complying with the 20 page limit to the pleading, a cover for the appendix, an affidavit that the documents in the appendix are true and accurate copies, a table of contents with page numbers for the appendix, an affidavit if you are pro se (verified statement if you are an attorney) that you have served notice and the motion to the parties and judges, and a check for $25 dollars.  See IL S Ct rules 383,341-343.

The supporting record must be authenticated by the trial court clerk or verified by affidavit by attorney or  pro se counsel as required in IL S Ct rule
328

November 19, 2011

How to apply for change in child support payments


Please be aware that the courts in Illinois, especially Cook County do NOT follow the law and no government agency, federal or state, has responded to our complaints. Please help by complaining to your state and federal senators and members of the house that an investigation and remedy are needed. Support organizations that are working for justice in divorce courts. This is theoretically how it works, but individual judges in divorce cases simply seem to make up their own rules as they go along.

In Illinois, if your circumstances significantly change and you seek a change in your amount of child support as a non-custodial parent, then the laws state that you should apply to the Illinois Department of  Public Aid Child Support Enforcement Unit’s Administrative Law Court for investigation, hearing, and determination of the amount of child support (which includes providing health insurance for the child).

The IDPA, CSEU also manages the State Disbursement Unit which collects and disburses child support payments through guarnishment of wages.

If you are not making payments through the SDU, then you can still apply to be heard by the Adm Law Court by filling out this application – click here.

The trial court does not  have the jurisdiction to hear motions for enforcement of child  support orders or motions for change in child support, until AFTER the Adm Law Court makes a recommendation. Then the trial court will rubber stamp the recommendation if the parents agree or will hold hearings and make decisions if the parents disagree on the payments.

The Domestic Relations Courts in Cook County have been for two decades ILLEGALLY hearing these motions instead of waiting for a recommendation by the Adm Law courts!  ALL SHOULD PROTEST BY APPLYING TO THE CHILD SUPPORT ENFORCEMENT SERVICES DIVISION WITH THIS APPLICATION AND BY MAKING OBJECTIONS IN THE TRIAL COURTS.

WE ALSO SUGGEST YOU COPY THIS COMPENDIUM OF THE RELATIVE FEDERAL AND STATE LAWS THAT IS SUMMARIZED I THE TABLE OF CONTENTS IN OUR BIG DIVORCE BOOK HERE AND PRESENT IT TO YOUR TRIAL COURT AS A “MEMORANDUM OF LAW”.

Make sure to read this booklet by the federal government that is a comprehensive guide to all issues in child support here.

GOOD LUCK!

October 27, 2011

IL Supreme Court returns father’s parental rights when not informed of case


This decision of the Illinois Supreme Court defines the concept of due diligence in notifying a parent that there is a case where they can lose parental rights. Attempts at service by mail or personal service is NOT enough!

Supreme Court Summaries
Opinions filed October 27, 2011

In re Dar. C., 2011 IL 111083
Appellate citation: No. 4-10-0267 (unpublished order under Supreme Court Rule 23).

CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Thomas, Garman, and Karmeier concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion, joined by Justice Freeman.
Justice Theis specially concurred, with opinion.

In this McLean County case, a father whose parental rights had been terminated on March 7, 2008, challenged that result for lack of personal jurisdiction. Under the Code of Civil Procedure, he filed a petition for relief from that judgment, claiming that, under the Juvenile Court Act of 1987, it was improper to serve him only by publication in Bloomington after attempts at personal service or service by certified mail were unsuccessful. Statute requires a “diligent inquiry” before a parent may be served by publication. The failed attempts had been based on potential addresses obtained through the use of computerized database searches. The State simply mailed letters but made no visits to the addresses to seek further information. The appellate court affirmed the termination order.
The termination took place in proceedings that began pursuant to 2006 charges that the respondent father’s two minor children, who were living with their mother, were neglected. It was known that the mother was receiving Social Security benefits, but no effort was made to determine their source or to obtain a release of Social Security information. Later that same year, a separate proceeding to collect child support from the father was initiated by a different attorney in the same prosecutor’s office, with the complaint being signed by a caseworker in the termination proceeding. In the collection matter, the father’s birth date, Social Security number and physical description were listed. The State indicated that it had located the respondent at a treatment center in Lake County and obtained his consent for entry of a child support order using the funds from his social security disability benefits.
In this decision, the supreme court said that “the State’s ability to obtain respondent’s contact information in the separate child support action casts significant doubt on the diligence of the State’s inquiry into respondent’s location in the termination proceedings” and that “relying on a computerized database search of a parent’s name while ignoring, or otherwise not investigating, other potentially useful information, does not constitute a diligent inquiry.” These circumstances indicate that there was a lack of personal jurisdiction over the father in attempting to serve him by publication on these facts. The appellate court was reversed and the termination of the father’s rights concerning his children was vacated as void. The cause was remanded to the circuit court for further proceedings.

Older Posts »

The Silver is the New Black Theme. Blog at WordPress.com.

Follow

Get every new post delivered to your Inbox.

Join 827 other followers

%d bloggers like this: