Are Orders of Protection a blessing or a curse?

In a recent ruling on July 18, 2018, a father who was originally awarded residential custody of his son was hit with an order of protection filed against him by the mother of the child, naming his son as a protected person.  The two parties were never married.  Based upon the mother’s lack of ability to care for the minor child, the father was granted custody of the minor child in 2013 (though without any compensation in the form of child support from the mother). The mother of the minor child filed an Emergency Order of Protection against the father based on claims that the father was abusive to the minor child, which was supported by an eye witness statement, and ultimately, that the minor child was “terrified” of his father.  The court found that because the father allegedly pushed the child in the head with a cell phone and was “terrified,” they were persuaded to affirm the judgment to extend the Order of Protection.

What is notable about this case is that the Order of Protection, which were entered based on the mother’s opinion and one eye witness statement, trumped the residential custody order originally granting the father custody.  The begs the questions: Is the child now back living with the mother who lacked the ability to care for this very child?  Will this cause a net effect of parents using orders of protections as weapons to gain custody?

Sandberg v. Brian B., 09-FA-190

Just how important is a reliable Power of Attorney for Healthcare?

A Power of Attorney for Healthcare can be an extremely important document during a family law case.  If you are undergoing a divorce proceeding and do not have a designated agent to make healthcare decisions for you, your spouse is typically the default decision maker when you become incapacitated or otherwise adjudicated incompetent.  Additionally, if you do have a designated agent and that agent is your spouse, your spouse could still have power to make healthcare decisions for you and gain access to your private medical information during your divorce proceeding.  Think back to whether or not you have a Power of Attorney in place, and whether your agent is your current spouse.  If so, chances are you do not want your spouse deciding when to pull the plugs while you are undergoing a divorce.  Or, in the event of a custody battle, you may not want your spouse gaining access to your mental health records in an attempt to use your medical history against you.  If any of these or similar situations apply to you, perhaps it is time to amend your Power of Attorney to appoint a new agent.   Additionally, if you do not have a Power of Attorney in place, it may be a good idea to have a qualified attorney prepare that document for you so that your spouse is not the default decision maker.

50/50 Parenting Time In Illinois

In a recent study conducted by Custody X Change, a company which developed a software program to aid divorced fathers with dividing parenting time and spending time with their children, Illinois was ranked the 47^th lowest state to the amount of parenting time divorced fathers get with their children. According to the study, on average each year, child(ren) in Illinois spent 23.1% of their time with their fathers. Fathers from the study apparently had no extenuating circumstances, meaning, no father in the study was incarcerated, living in a different state, or suffering from any circumstance which would limit the amount of time they were capable of spending with their child(ren). Many states have worked to increase the percentage of time divorced fathers get to spend with their children and now, many states begin with a 50/50 presumption of parenting time to moms and dads.  This coincides with Illinois’ proposed law that parents are to be granted equal parenting time unless there is evidence that one parent is a serious danger to the minor child(ren)’s physical, mental, or emotional health.  Equal parenting time would affect child support calculations in Illinois, where support obligations change when the paying parent has 146 overnights or more.  Is it best to have a 50/50 presumption, or does it depend on the facts of each unique case?  Is a one-size-fits-all solution the best for every child?

“One Size Fits All,” Fact or Fiction when it comes to law?

A proposed law in Illinois presumes that parents should be granted equal parenting time and equal decision-making responsibilities on behalf of their minor child unless there is evidence that one parent is a serious danger to the minor child’s physical, mental, or emotional health.  According to current law, there is no presumption that equal parenting time is in the best interests of the child.  Instead, parenting time and parental responsibilities are decided on a case by case analysis predicated upon a number of factors relating to the best interests of the child.  The proposed law assumes not only that the best interests for the child is to spend equal time with both parents, but that both parents are mentally and physically fit, able and willing to care for the minor child.  In situations where both parents are genuinely interested and capable in being making decisions for their child and reside in close proximity to one another, this proposed law works in their favor.  However, there are situations where this proposed law would not be in the child’s best interests.  Consider for example, parents that reside 10 miles away from one another which, in Chicago traffic, can take at least one hour of time to commute each way.  Is this fair for a child to spend two hours commuting to and from school each day?  What about the situation where a parent is simply not interested in spending time with their child, or simply not equipped to make decisions for their child?  In cases like these, it may not be fair to the child to presume that equal decision-making and parenting time is in that child’s best interest.  The problem will also be with enforceability – if one parent does not wish to or will not exercise his or her parenting time with the child, a court will have trouble forcing an interested parent to visit with their child half of the time.   This begs the question- is this new proposed one size fits all formula truly considering the best interest of the children?

Parents and College Expenses… Do the rules change if parents are unmarried or divorced?

In a recent family law case in DuPage County, the court found that the Illinois college support requirement for unmarried parents was unconstitutional based upon the Equal Protection Clause of the United States Constitution.  Section 513 of the Illinois Marriage and Dissolution of Marriage Act provides that the court may award sums of money from either or both parents for the educational expenses of their child, including college.  In this recent case, the parties were never married, and their daughter was 21 years old at the time of the proceeding.  The parents did not agree on where their daughter should go to college. It was not a requirement for both parents to participate in the college decision making process but it was required that both parents contribute to college expenses. The father wanted to do everything in his power, including pay the entirety of his daughter’s college expenses, to send her to the top Marine Biology program in the country.  Their daughter decided to go to one of the top “party schools” in the country which did not have a marine biology program.  The father then refused to contribute to the expenses.  The court held that based upon the Equal Protection Clause of the United States Constitution, unmarried or divorced parents should be treated the same as married parents in the eyes of the law.  The court held that the law as applied to the father in this case was unconstitutional.  Because married parents are not required to contribute to their children’s college expenses, neither should unmarried parents.  Stay tuned as it would not be surprising for the mother to seek an appeal.

Talking Parents

There are many systems in place, such as Talking Parents, to assist parents with their communication in  co-parenting their children.  (Other systems include Our Family Wizard, a parenting coordinator, a co-parenting counselor, or the like.)   Talking Parents is a telephone app where parents can discuss any issues, questions or agreements as it relates to their children.  This app may be monitored by the attorneys, child representative, guardian ad litem, mediator, or even the judge, when necessary.   This app in theory encourages parents to maintain civil and professional communication because they understand that these messages cannot be erased.  Additionally, the messages may be accessed by other individuals involved in the court case, especially those that may be the ultimate decision makers over the destiny of the party’s children.  If communication is difficult, stressful or simply non-existent, Talking Parents may be worth a try.

The Amendments to Section 504

The amendments to Section 504 of the Illinois Marriage and Dissolution of Marriage Act, including the duration and amount caps, launched on January 1, 2018.   In previous blogs, we discussed that the new maintenance guidelines for Illinois were originally set to be launched on June 1, 2018.  Please be aware that the start date was pushed up to January 1, 2018.

Planning Ahead

What happens if a will is not up to date when the settlor passes way?  Heath Ledger, for example, executed his will three years prior to his death.  Within this time frame, Heath neglected to update his will to include his fiancé and daughter.  When Heath passed away, his estate went to his parents and sisters and nothing went to his daughter and fiancé at the time.  If he and his wife were married she could have at least argued for a spousal share, however they were simply engaged.  If an estate plan is not set up properly, the rules of intestacy decide where and who your estate is distributed to.  Take Howard Hughes for example.  Seven years after his death, legal proceedings declared that his $2.5 billion estate was to be divided amongst his 22 cousins because he had no living will.  He may have had no relationship with some of these cousins and would have preferred to have his monies distributed elsewhere.

Note to Self: Plan ahead, plan smart, and plan often.

Don’t Procrastinate – Execute Your Documents Now

Estate planning is a crucial part of preparing for the future of your money, assets and healthcare.  Two main goals of estate planning are to avoid probate and reduce taxes amongst the estate.  Estate plans have multiple sections to ensure the protection of a person’s property.  These sections include a will, trust, joint tenancy, beneficiary designations and life insurance.  It also ensures that the healthcare and wellbeing of the individual or of their minor children are protected in case of sudden death, sickness or accidents.  Once the estate plan is created, so long as it is a revocable plan, it can be changed at any time depending on future events or new decisions that need to be made.  For example, the birth of another child, grandchild, divorce, or changes in the law may necessitate an amendment to your plan. There are a few things to keep in mind to ensure a successful estate plan is set in motion. It is very important to hire someone who is listens to your individual goals and keeps you on track so that you do not procrastinate finalizing your documents.

When are you going to start your estate plan?

Modified Illinois Maintenance Guidelines and Child Support

The new Illinois maintenance guidelines will take effect on June 1, 2018 and may have impact modifications of divorce judgments.  The new guidelines appear to be silent on whether or not the new guidelines constitute a substantial change of circumstances sufficient to modify a judgment. When the new child support guidelines took effect, the legislature specifically provided that the enactment of Public Act 99-764 did not constitute a substantial change in circumstances warranting a modification of child support. See 750 ILCS 5/510(a). The same does not appear to hold true for Public Act 100- 0520 regarding the new maintenance guidelines.  While one may assume that the legislature did not intend for this effect, one may also wonder why a specific provision providing otherwise was not specifically included. Will practitioners or litigants race to the courthouse seeking to modify judgments as a result of the new statute?