It was a dream come true for a little girl in Bolivia: a family who wanted to adopt her. But more than three years later, the family from west suburban Aurora is still trying to bring 5-year-old Cecilia home. Attorney Brad Giglio of Mevorah Law Offices LLC says the feds have told him and his clients to be patient. Read more from CBS Chicago. Support Bringing Cecilia Home on Facebook.
When it comes to parental rights, Illinois, along with other states, hold that that these rights are fundamental in our society. There are significant number of protections that have been put into place to protect parents from any government interference with the raising of children. The main tenet behind parental rights in our society is that the government can only infringe on these rights when it is in the best interest of the child to do so and the action is taking place to ensure the child’s safety.
The Indian Child Welfare Act: The Resurgence of ICWA Cases
A number of distinct cases have been putting parental rights to the test. The cases in question involve American Indian children and the Indian Child Welfare Act (ICWA), a federal law whose purpose is to protect Indian children and promote the security of Indian tribes and Indian customs.
The Background of the ICWA
The ICWA was originally enacted as a result of the terrible history of the federal government rehoming Indian children into United States boarding schools as an attempt to assimilate the children into United States culture. There was a risk that many of these tribes were dying out due to this policy, as well as a number of social workers that were removing children because they believed that the children were in poverty and did not understand the tribal customs. These children were shipped off to non-Indian families, marking the death sentence for these American Indian tribes.
How the ICWA Functions Concurrently with State Law
The ICWA works in conjunction with state law to protect American Indian children. Courts must satisfy the higher ICWA threshold before children can be removed from their American Indian parents, and when it comes to adoption, there is generally an American Indian preference for the children. Also, the ICWA creates an obligation within states that they put in good faith “active efforts” to maintain the children within the home, and provide tribes concurrent jurisdiction when it comes to cases regarding children off the reservation and exclusive jurisdiction for children residing on the reservation. All custody efforts should be made to place the child within an American Indian family over a non-American Indian family for foster care purposes.
Issues Surrounding ICWA
However, there are many situations arising where the ICWA falls short of the protections that it should be providing to children. First and foremost, many of the states are falling short in active efforts and compliance issues. In a study put out by the Government Accountability Office, 32 states were falling short of their compliance obligations. Illinois, because of it has a negligible American Indian population, has very little research devoted to its compliance level, but it does have its own ICWA procedures and standards to implement the ICWA within the state.
Also, the threshold before removing children from a home is extremely high, requiring there be evidence that demonstrates beyond a reasonable doubt that serious damage will occur to the American Indian child. By having such a high standard, it is not only harder to prove, but children may remain in foster care for longer than they should, they may remain in an abusive home for longer than they should, and by being rehomed there is the possibility of continued abuse because the insular nature of the community.
Experienced Family Law Attorneys in DuPage County
The experienced family law attorneys at Mevorah Law Offices LLC work daily on issues involving parental rights and custody issues and can help you learn more about your parental rights in Illinois. Contact our experienced DuPage County family law attorneys today for a free and confidential consultation.
The old adage states that money can be a great equalizer. Those who are in the middle of a divorce are definitely able to attest to that claim, especially when it comes to divorce proceedings. In many cases, in divorce proceedings, or in other civil and criminal actions, the amount of available funding for these legal activities can greatly influence one’s case. It could make the difference between more than just winning and losing, but also the extent of property that each party may be able to acquire after equitable distribution.
Financial Issues Resulting from Divorce
Though many married women are currently employed and many are the breadwinners of the family, there are still many instances where women are still at a disadvantage financially because of a disparity in income due to the wage gap seen between the sexes, or a decision to stay at home with the family. These issues are exacerbated by the fact that divorce settlements can drag on for months and even years, especially when the relationship becomes acrimonious as a result of the divorce.
At the end of the day, regardless of whether you are in a more advantageous financial situation than your spouse, a long-running divorce will cost a significant amount; the difference, however, is whether the divorce will lead to financial ruin by one party, or if the financial disparities will lead to one of the spouses giving up significant stakes in property because of the applied financial pressures associated.
What is Divorce Financing?
In the last few years, there has been a significant increase in divorce financing options. Companies have begun to provide divorce financing to those spouses who may be at a financial disadvantage when it comes to the divorce proceedings, so that the two parties can be on even grounds. Divorce financing has been part of a growing industry since 2009. Some of the companies provide a loan with terms similar to credit cards. Some companies, however, structure their agreements as investments whereby the company receives their return on investment at the outcome of the case. The latter arrangement puts the company alongside of the spouse so his/her loss is their loss, and his/her gain is their gain.
Limitations of Divorce Financing
These companies, however, do not automatically fund all divorces. They do a cost-risk analysis to weigh the benefits of getting involved in this domestic dispute, along with the costs of attorneys’ fees and other expenses. If the company believes that the spouse has a strong case and could win a significant amount of money by winning the most lucrative marital assets for the spouse, then the company has an incentive – the possible big pay out – to get involved. Also, most of these companies want the client to attempt to find other avenues for funding first before getting involved.
Preparations to Make Divorce Financing a Last Resort
Though divorce financing is the new trend, it still is best if spouses prepare themselves at the onset of marriage for a possible divorce. Some of the following are options for spouses to protect and adequately prepare themselves for divorce costs, even if the marriage is happy:
- Put aside a secret fund for divorce proceedings. Knowing that you have this money set aside could help assuage any concerns and can head off a surprise divorce.
- Understand the financials of the household. If you know what the marital assets are, then you are better prepared to know what share should be yours and what should be your spouse’s if there is a divorce.
- Prepare a prenuptial or postnuptial agreement. Having a pre/postnuptial agreement can make the divorce less protracted as the assets are more or less divvied up as a result of the agreement. In this way, half the work (or more) is already done, and this could make the possibility of a long, protracted divorce less likely.
Experienced Family Law Attorneys in DuPage County
If you and your spouse are considering a divorce, it is important speak with the experienced family law attorneys at Mevorah Law Offices LLC about property division and the divorce proceedings. Contact our experienced DuPage County family law attorneys today for a free and confidential consultation.
Study Reveals That Children in Shared Custody Situation Are Less Stressed than Children in a One-Parent Home
When determining what would be the best for your children when you and your spouse have decided to split, there are a variety of child custody arrangements that can be discussed and put into place. Many psychologists have wondered about the effect that custody arrangements could have on children that are forced into the custody arrangement, especially determining whether one custody arrangement may be in the best interest of the child.
The Custody Arrangement-Stress Study
According to a most recent study, surprisingly, the once-held idea that shared custody arrangements were more stressful for children actually is not the case at all. As found in the study, where 150,000 children ages 12-15 years old were evaluated, it is the children who are in a one-parent home that suffer the most. The researchers met with children who lived in nuclear families, those that spent time in a shared custody relationship with their parents, and then children who lived in one-parent homes, and evaluated their psychosomatic health problems, including everything from sleep issues, stomachaches, tension, loss of appetite, or any issues concentrating.
The Results of the Study
It was no surprise that children in the nuclear family reported the least amount of issues regarding psychosomatic issues. Though many researchers felt that the stress of moving back and forth between two parents adversely affected children in joint custody arrangements, it was the opposite. Having two parents affected the stress of moving between two homes: the children had double the resources, the social circles, family, and material goods, and made these children feel less vulnerable. The children that were in a sole-parent custody arrangement actually were more stressed and had more serious psychosomatic issues than any of the other children in the arrangements. Accordingly, it was also girls who reported more psychosomatic issues than their male counterparts, and sleep problems had the most impact on the children.
Shared Parenting Bills Nationwide
This research comes at the time where several states are pushing forward shared parenting bills, and providing significant parental rights to fathers in child custody arrangements. In the past, the courts generally ruled in favor of the mothers; now, the movement has pushed forward for equal parenting time for both mother and father. The fear behind the presumption of the shared parenting bill is that fathers who are emotionally or physically abusive to the family will have significant bargaining power at the custody negotiations because they are put on equal footing as the mothers. There are also concerns about forcing parents who have significant hate for each other to collaborate and agree on decisions for the children.
Illinois: Joint Custody as a Default
In Illinois, the Court system has already created a presumption that joint custody arrangements are in the best interest of the child. The Illinois Marriage and Dissolution of Marriage Act provides that the default custody arrangement should be a joint parenting situation where the parents come to a solution through a parental agreement, deciding which upbringing matters will be decided together and which can be decided apart. The court will also see the extent to which the parents can cooperate and work effectively together for the child.
When Joint Custody Is Not in the Best Interest of the Child
Though the best interest of the child analysis generally pulls in favor of joint custody, the court has significant latitude in allowing judges to determine when the presence of one of the parents could potentially harm the child, such as in the situation where the parent has been convicted of being a sex offender, or there has been an occurrence of repeated abuse in the household.
Experienced Family Law Attorneys in DuPage County
If you and your spouse are considering a divorce, it is important speak with the experienced family law attorneys at Mevorah Law Offices LLC about child custody arrangements and how to best draft a parental agreement. Contact our experienced DuPage County divorce attorneys today for a free and confidential consultation.