Pro Se Chicago's Weblog

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.

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 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

Blog at WordPress.com.

%d bloggers like this: