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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Appellate citation: No. 4-10-0267 (unpublished order under Supreme Court Rule 23).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.

October 3, 2011

The Big Divorce Book – little known Illinois and Federal Divorce laws


FOR  COMPLETE COPY WITH SUMMARY OF THE LAWS PERTAINING TO CHILD SUPPORT FOR ILLINOIS CONTACT LINDA SHELTON AT picepil@aol.com – IT WILL BE E-MAILED TO YOU FOR A CONTRIBUTION TO COVER THE COST OF COPYING, PRODUCING, AND MAILING THIS 56 PAGE DOCUMENT  – there are no guarantees as to completeness or accuracy

ILLINOIS

DIVORCE BIG BOOK
ILLINOIS AND FEDERAL STATUTES
REGARDING CHILD SUPPORT

AN EDUCATIONAL PUBLICATION BY

STOP ILLINOIS CORRUPTION

(A PUBLIC SERVICE CLUB)

EDITED BY

DAVID BAMBIC and DR. LINDA SHELTON

Copyright 2011

November 4, 2011

NOTE: Interpretation of Law in Table of Contents has been done by paralegals and lay persons and is not guaranteed as to its accuracy – Please verify any interpretation of law by a licensed attorney – This is the opinion and belief of editors only and not meant to be a definitive interpretation of the law or legal advice – Use this interpretation at your own risk

NOTE: These laws are applicable the moment an obligee (non-custodial parent) is placed into the State Disbursement Unit (in Illinois Department of Healthcare and Family Services [HFS]) for collection and distribution of child support and are available to ALL PARENTS in divorce actions even if they are NOT on public assistance (Public Aid), upon application by either parent, whereupon the Family Court loses jurisdiction to investigate and hear applications for change in child support unless the parents disagree with the recommendation of the HFS Child Support Unit Administrative Law Court (ALC), after the ALC investigates financial circumstances, holds a hearing and makes a recommendation to the parties. Then the parties may go back to the Family Court Judge (Trial Judge) for review of recommendations, evidentiary hearing, and decision on change in child support.

NOTE: All parents may apply to be supervised by the SDU and ALC in the Child Support Services Division (CS) of HFS. Find the address of your local office for the Illinois Child Support Unit in the Department of Healthcare and Family Services at their web site:

TABLE OF CONTENTS FOR DIVORCE BIG BOOK

Note that these laws were written to be in compliance with federal codes pertaining to Social Security Title IV – 42 U.S.C. § 401 et seq. & amendments

page

1. Illinois Marriage and Dissolution of Marriage Act – 750 ILCS 5/506 Representation of child………………………………………………..…. 1-2

“The child representative shall not render an opinion, recommendation, or report to the court . . . but shall offer evidence-based [ NOTE NOT HEARSAY] legal argument. The child representative shall disclose the position as to what the child representative intends to advocate in a pre-trial memorandum that shall be served upon counsel of record prior to the trial. The position disclosed in the pre-trial memorandum shall not be considered evidence.” ……………………………………………………………………………………………………………………. 1

“Any person appointed under this Section shall file with the court within 90 days of his or her appointment, and every subsequent 90 – day period thereafter during the course of his or her representation , a detailed invoice for services rendered with a copy being sent to each party.”…………………………………………………………………………………………………………………………………………………………………………. 2

2. “Unified Child Support Services Act” 750 ILCS 24 et seq. …………………………………………………………………………………………….……… 3-6

Plan must be submitted by County State’s Attorney to the [Illinois] Department of Healthcare and Family Services (“DFS”) – Section 10 ………………………………………………………………………………………………………………………………………………………………………………….. 3

“Components of a Unified Child Support Services Program” 750 ILCS 24/15……………………………………………………………………..…..…… 4-5

“ (1) Accepting applications for child support services from private Parties or referrals from any state agency [Court]”……………………… 4

“(7) Obtaining identified cases that have moved into non-compliance With obligations [arrears] . . . . “……………………………………….. 4

“(16) Marketing the Program within the county in which it is operating so that potential applicants learn about child support services offered.”………………………………………………………………………………………………………………………………………………………………………………. 5

“Child Support Program Responsibilities” – 750 ILCS 24/35 ……………………………………………………………….………………………………..… 5-6

”Operation of a statewide toll free telephone” – [for the public to obtain information even if they are not eligible for public aid]……… 5

“(2) Management and supervision of the State Disbursement Unit” By the DFS………………………………………….………………………………. 6

3. “Expedited Child Support Act of 1990” – 750 ILCS 25 et seq……………………….……………………………………………………………..………… 7-13

“Purpose” 750 ILCS 25/2 “. . modification of child support orders” ……..…………..………………………………………………………………………. 7

“Establishment of the Expedited Child Support System” 750 ILCS 25/4………….………………………………………………………………………… 8

“(1) …The System shall be available to all participants in the IV-D program, and may be made available to all persons, regardless of participation in the IV-D program…” ……………….………………………………………………………………………………………………………………..…… 8

“(2) Implementation . . . the Chief Judge of any Circuit shall develop and Submit to the [Illinois] Supreme Court a Plan for the creation of a System ………………………………………………………………………………………………………………………………………………………………………………. 8

“(5) Implementation. The System shall be administered by Supreme Court. The Supreme Court may delegate, to the Chief Judge of each Judicial Circuit, the day-to-day administration of the system in the County. . . .” ………………………………………………………………………… 8

4. “Actions subject to Expedited Child Support Hearings” – 750 ILCS 25/5 ………………….……………………………………………………………. 9

“(1) Petitions for child support and for medical support . . . for post-judgment dissolution and . . where child support or medical support was reserved or could not be ordered at the time of entry of the judgment . . .” ………………………………….………………………………………… 9

“(2) Petitions for modification of child support and medical support in post-judgment dissolution of marriage . . . “ ……………………… 9

“(4) Actions for the enforcement of any existing order for child support or medical support in post-judgment dissolution of marriage . . .”………………………………………………………………………………..………………………………………………………………………………………………………… 9

“(8) Actions brought pursuant to Article X of the Illinois Public Aid Code”……………………………………………………………………………….…. 9

“(b) Notwithstanding the provisions of subsection (a) of this Section, if the custodial parent is not a participant in the IV-D program and maintenance is in issue, the case shall be presented directly to the court.”……………………………………………………………………………..….… 9

“(c) . . . the System be available in pre-judgment proceedings for dissolution of marriage, declaration of invalidity of marriage and legal separation.”………..………………………………………………………………………………………………………………………………………………………..……….. 9

5. “Authority of hearing officers (administrative law judges” and “Expedited Child Support Hearings” 750 ILCS 25/6 & 7……………………………………………….………………..…………………………………………………………………………………………………………….………….… 9-11

Administrative law judges [hearing officers] are by statute authorized to subpoena and collect evidence, review evidence, and make recommendations to the court as to post-dissolution of marriage child support issues, modification of child support and health insurance issues for the children. The Trial Court by statute shall refer all child support and health insurance issues to the administrative law court. Only if the parents disagree with the administrative law judge’s recommendations shall the court intervene in coming up with its own decisions regarding child support and health insurance issues for the children post judgment for dissolution of marriage……………….. 9-11

“(b) in any case in which the Obligee is not participating in the IV-D program or has to apply to participate in the IV-D program, the Administrative Hearing Officer shall: (1) inform the Obligee of the existence of the IV-D program and provide applications on request; and (2) inform the Obligee and the Obligor of the option of requesting payment to be made through the Clerk of the Circuit court.” ………………………………………………………………………..…………………………….……………………………………………………………………………………. 10-11

6. “Authority retained by the [trial] court” 750 ILCS 25/8 ………………………………………………………………………………………………………… 12-13

Trail Court retains jurisdiction over all matters not related to child Support or health insurance [as well as parentage issues] for the children and must resolve issues when the parents disagree with

the recommendations of the administrative law judge ……………………………………………………….……………………………………………………… 12-13

7. “Judicial Hearings” 750 ILCS 25/9……………………………………………………….…………………………………………………………………………..….. 13

Defines under what circumstances the Trial Court regains Jurisdiction over post-judgment child support and child health Insurance support issues …………….…………………………………………………………………………………………………………………………………………………………. 13

8. “Child Support Payment Act” 750 ILCS 27 ………………………………………………………….………………………………………………………………… 14

Allows obligor to pay child support through a currency exchange……………..………………………………………………………………………………… 14

9. “Income Withholding for Support Act: 750 ILCS 28………………………………………………………………………………………………………….…. 15-24

Details the form of notice to be given to the Obligor (750 ILCS 28/20(b)- p. 17-18), by the Court Clerk and the payer by the SDU, Clerk or other public officer (750 ILCS 28/20(g) – p. 18, 750 ILCS 28/30 – p. 20), or Obligee if the SDU, Clerk or other public officer is not Ordered to be involved in support payments supervision or providing notice to payer (750 ILCS 28/20(b)&(g) – p.18); details how to deal with delinquency and how to penalize payers who refuse to withhold……………………………………………………………………………………………………………………………………………………………………………… 15-24

10. “Illinois Public Aid Code” 305 ILCS 5, “Determination and Enforcement of Support Responsibility of Relatives” 305 ILCS 5/Article X………………………………………………………………………………………………………………………………………………………………………………………… 25-49

“The Department of HFS shall cause to be published and distributed publications reasonably calculated to inform the public that individuals who are not recipients or applicants for public aid under this Code are eligible for the child support enforcement services under this Article X. Such publications shall set forth the an explanation, in plain language, that the child support enforcement services program is independent of any public and aid program under the Code and that the receiving of child support enforcement services in no way implies that the person receiving such services is receiving public aid.”.…………………………………………………..………………………. 25-26

“Access to records” 305 ILCS 5/10-9.5……………………………………..………………………………………………………………………………………….. 32

Mandates that both parents have access to all records from the Clerk, SDU, and HFS, except if there is an order of protection hiding an address or phone number, then that Address or phone number may not be revealed……………………………………………………………….. 32

“Information to State Case Registry” 305 ILCS 5/10-10.5 …………………………………………………………………………………………………..… 37-39

Establishes a section in the Department of HFS, Public Aid Division that maintains all records of child support Payment and enforcement, and requires that both parents keep the Department informed of address changes……………………………………………… 37-39

“State Disbursement Unit” 305 ILCS 5/10-26…………………………………………………………………………………………………………………..….. 46-47

Establishes the SDU under the supervision of the Illinois HFS which is authorized to accept and disburse child support payments as well as to inform payers of withholding orders and penalties for failure to comply ………………………………………………………………… 46-47

“Notice of child support enforcement services” 305 ILCS 5/10-28………………………………………………………………………………………… 49

Provides that the SDU may notify the Obligor and payer of its services, as well as other parties……………………………………………….. 49

11. “Title III, Consumer Protection Act” Summary of authority and purpose of 15 USC § 1671 et seq. and 29 CFR (Code of Federal Regulations) 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

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