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Aurora Adoption Attorney Helps Family Adopt Bolivian Child

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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.

Written by Staff Writer

March 22nd, 2014 at 2:55 pm

New Law Strengthens Child Protective Services

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child mental illness, child protective services, DuPage County family law attorneys, Illinois child protective services, mental health treatment, Mevorah Law Offices LLC, parental rights, terminate parental rightsThis August, Governor Pat Quinn signed and put into effect Senate Bill 2909 and House Bill 5598, with the purpose of strengthening Illinois child protective services and providing more help to parents who have children suffering from serious mental health issues. The new bills amend the Children and Family Services Act, and permit parents to seek the services of the State when dealing with children who have serious mental illnesses or emotional disturbances, without having to terminate their parental rights in the absence of any type of abuse or neglect. The new law allows parents, who may no longer be able to care for their child because of a mental illness or emotional disturbance, to relinquish their child to the Department of Children and Family Services so that the child may receive the utmost care that his or her parent is unable to provide.

Purpose of the Amendment 

The purpose of the Bill is two-fold: one, it is a constitutional right of the parent to maintain legal custody of his or her children, and the State has a substantial burden to prove that the parent’s parental rights should be terminated. Secondly, the State wants to limit the number of children who become wards of the State due to the incredible costs associated with the care of the children within the welfare system. If a child requires treatment for his or her developmental disabilities or mental health illness it should have no bearing on the ability of the parent to adequately care for his or her child. It is not within the child’s best interest to be relinquished by his or her parents just because the parents cannot afford proper mental health treatment.

The Bill, itself, provides a financial remedy for parents whose private insurance does not cover the costs of mental health treatment and for parents who do not qualify for Medicaid.

Provisions of the Amendment

The Bill outlines the terms of the new amendments to the Act, and permits the parent or legal guardian to transfer temporary physical custody of the child to the Department so that he or she can undergo necessary treatment. Also, the Department, pursuant to the new amendment, would not be able to request or require that legal custody of the child be transferred permanently to the Department. In addition, the Department would not be permitted to terminate parental rights if there was no evidence to conclude that abuse or neglect was present.

For the child to remain out of the home and in the care of the Department for more than 180 days, the Bill requires a juvenile court to make a finding that treatment, lasting beyond 180 days, is in the best interests of the child and should thus remain within the care of the Department.

Protection of Children with Mental Health Illnesses in Illinois 

The need for this type of Bill is obvious when reviewing the number of children (and adults) who suffer from mental health issues and require treatment in Illinois. In fact, according to the Chicago Tribune, there has been an increase in the number of children and adults who are requiring mental health services and treatment. In Lake County, for example, more than 4,700 adults and children in 2013 received treatment and care for mental health illness and emotional disturbances. Between 2010 and 2011, approximately 1,210 children used the Lake County Health Department’s crisis services. More than 1,500 children used the services in 2012.

Protection of Your Parental Rights

Parental rights are constitutionally protected and may not be terminated with great cause. If you are involved in a legal situation where your parental rights may be compromised, please contact the experienced DuPage County family law attorneys at Mevorah Law Offices LLC for guidance and information on how to protect your family and access to your children.

To Procreate or to Not Procreate: Whose Right is Most Valid?

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co-parent agreement, DuPage County family law attorneys, frozen embryos, legal controversy, Mevorah Law Offices LLC, procreate, right to procreate, sperm donor, assisted reproductive technologyIn recent years, assisted reproductive technology has progressed rapidly and has provided women and men the opportunity to become parents. In 1985, through this new reproductive technology, 260 babies were born to parents who otherwise would not have been able to conceive. As of 2010, more than 61,000 children were born as a result of the newest technology. However, with the amazing results that have occurred from the utilization of this reproductive technology, also comes legal controversies in regards to the rights of the donors. Is the right to not procreate outweighed by the right to procreate?

Illinois’s Stand on the Right to Not Procreate

This legal controversy has been pushed in the direction of the right to procreate with a recent ruling by the Cook County court in Illinois. The Court awarded custody of the frozen embryos that were prepared prior to the woman’s chemotherapy treatment for her lymphoma. The chemotherapy had the effect of destroying the woman’s chance to conceive otherwise. Her now-ex boyfriend had originally agreed to provide his sperm for the embryos and later objected to the use of the embryos after the couple had split. The ex-boyfriend cited privacy issues, stating that the use of his genetic material could have a negative impact in regards to his future with other women.

The case, though the Illinois Supreme Court decided not to review the appeal, provides a direction in reproduction law that the Court would like Illinois to follow. In the face of any objection to procreate, the Court has determined through this ruling that the right to procreate outweighs the objection. Other states have had mixed rulings surrounding the rights of donors and the custody of frozen embryos once a couple has split.

The determinative factor in this case was based largely on the fact that the woman was unable to reproduce as a result of her cancer treatment and that the couple had orally agreed to the conception, even though they had not signed a co-parent agreement determining control of the embryos.

Creation of a Donor/Co-Parent Agreement

Though Illinois courts have shown themselves to be pro-reproduction rights, it is important if you are considering having a child with a non-marital partner or an acquaintance as a donor through assisted reproductive technology that an agreement be written. The agreement should state and define the terms of the custody and control of the embryos and the relationship that the donor or non-marital partner will have once the child is born.

When writing your agreement consider the following:

  1. To what extent may the donor or non-marital partner decide when and where the embryos will be implanted?

  2. Will the donor be known to the child once the child has been born?

  3. Will the donor have any type of visitation rights with the child?

  4. Will the donor be required to help the child in the case of a medical emergency and/or the donor’s medical history might be needed?

  5. If the donor remains in the child’s life as a paternal figure, will the child be able to receive financial support from the donor?

Legal issues surrounding assisted reproductive technology are extremely complex, and it is important to consult an experienced family law attorney who will be able to provide guidance and advice with regards to your decision to conceive a child with a non-marital partner or an acquaintance as a donor. Ironing out the details and terms of the relationship is crucial to ensuring that you bring a child into this world without any legal battles or controversy surrounding his or her birth. Please contact the experienced DuPage County family law attorneys at Mevorah Law Offices LLC for more information.

How Often is Domestic Violence Occurring?

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domestic violence, DuPage County family law attorneys, harassment, Mevorah Law Offices LLC, order of protection, physical abuse, protective orders, willful deprivationIn just the first three months of 2014, it happened over 36,000 times. In 2013, it happened over 177,000 times. What are these statistics referring to? Domestic violence.

Illinois takes domestic violence seriously, and the Illinois Domestic Violence Act gave victims a tool to help combat abuse and separate from their spouse. Orders of protection can make an abuser take (or not take) a number of actions that will help ensure the safety of the victim, their loved ones, and their property.

Who Can Get an Order of Protection?

There are two basic requirements that must be met before a person can obtain an order of protection. First, the person must have been abused. Second, his or her abuser must be a member of the family or household.

Abuse can take many different forms. The Illinois Domestic Violence Act recognizes five acts of aggression as “abuse.” These acts include physical abuse, harassment, intimidation of a dependent, interference with personal liberty, and willful deprivation. The following provides a description of each of these terms:

  • “Physical abuse” includes assault, battery, and sexual violence, as well as knowingly engaging in conduct that could cause physical harm;

  • “Harassment” is intentional conduct that is unnecessary, that could cause emotional distress to the victim, and that does cause emotional distress to the victim. An example of this might be disturbing the victim at work or threatening the safety of the victim’s child;

  • “Intimidation of a dependent” occurs when the abuser forces the victim to engage in (or watch) acts of violence against another;

  • “Interference with personal liberty” means threatening a person with harm so that that person either undertakes conduct they do not want to, or refrains from engaging in conduct that they are legally entitled to undertake; and

  • “Willful deprivation” occurs when the abuser intentionally withholds a necessity (such as food or medicine) from their victim so that the victim’s well-being is put in jeopardy.

The definition of “family or household member” is actually quite broad. It refers not only to current and former spouses, but also to children, siblings, other blood relatives, people who live together or did live together, couples who are or were dating, couples with a common child, and the relationship between a disabled person and their caregiver. The gender of the parties has no effect on whether they qualify as “family or household members.”

Types of Orders

There are three basic types of protection orders in Illinois: emergency, interim and plenary.

Emergency orders are issued only in exigent circumstances, such as when there is an imminent threat of harm to the petitioner or their family. The abuser does not need to be present for the order to be issued, and the orders can last for 14-21 days.

Interim orders may be granted after both the accuser and the abuser have been before the judge. They are often granted during the lapse of time between the expiration of an emergency order and the hearing for a plenary order. They may last for up to 30 days.

Plenary orders are put in place after there has been a full hearing on the facts of the case. If the judge agrees that the victim needs continued protection, the order may be granted. These orders can last for up to two years and may be renewed indefinitely.

What Can an Order of Protection Do?

Protective orders are flexible creations that are easily adapted to the facts of a case. Emergency orders can require the abuser to stay away from the victim and their children; to leave the victim’s house; to not take any of the victim’s personal property; and to yield their firearms. Interim and plenary orders can do all of same; plenary orders can also award legal fees, decide child custody and visitation and more.

Contact an Illinois Divorce Attorney 

There is help for people trying to escape abusive relationships. Orders of protection are powerful tools, especially for domestic violence victims who are seeking a divorce against their abusers. If you are trying to leave your abuser and have questions about orders of protection, contact the experienced DuPage County family law attorneys at Mevorah Law Offices LLC. Let us help you work toward your future.

If it’s a Boy, We Get Married? Babies, Gender Preference and Divorce

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DuPage County family law attorney, gender and divorce, gender preference, parents prefer boys, baby gender, demand for sons, divorce-prone relationship, first-born daughters, child custodyA married couple finds themselves constantly fighting. They are unhappy with each other and unhappy with their relationship. Though they have considered a divorce, the wife is pregnant and the couple wants to try to stay together for the sake of their unborn child.  Just a few months later, the child is born. Will the gender of the baby have an impact on whether the couple stays together?

Just a few months ago, the answer might have been yes. In 2003, researchers found that parents of girls were more likely to divorce than parents of boys. The findings set off a firestorm, igniting debate about whether parents prefer boys and why a parent might choose to stay in a relationship for one child and not another. But recently, more data has come to light that seems to suggest that the gender of a baby does not cause a divorce­—the stress of an unhappy marriage causes the gender of the child born to the marriage.

“The Demand for Sons”

In 2003, economists Gordon Dahl and Enrico Moretti released a ground-breaking study, “The Demand for Sons.” The researchers analyzed Census data from 1960-2000 and found that:

  • Fathers are less likely to live with their child if that child is a girl;

  • Women whose first-born child is a girl are less likely to ever marry than women whose first-born child is a boy;

  • Unwed parents are less likely to end up marrying if they discover that their unborn child is a girl;

  • The parents of first-born girls are more likely to divorce than the parents of boys; and

  • Mothers are more likely than fathers to have custody of their children, but when fathers do have custody, it is more likely to be of a son than a daughter.

Furthermore, Dahl and Moretti found that the more daughters a couple had, the more likely they were to divorce. While parents with one daughter were 5 percent more likely to divorce than parents with a son, parents with three daughters were 10 percent more likely to divorce.

Understandably, the research set off a debate. Do Americans have a gender preference? Are male children still seen as preferable to female children? Do fathers love their girl children less, or do mothers love their girl children more?

Girl Power?

Over the past decade, few answers to these questions have been forthcoming, but many scholars insisted that the correlation held true: female children were detrimental to a parents’ relationship. That idea changed in mid-July, when an economist and a sociologist set out to find a new explanation.

The two researchers noted that when it is a question of survival of the fittest, it is usually women who survive. Women seem to be biologically heartier than men, and that aptitude for survival begins in the womb. Because a stressful relationship (such as an unhappy marriage) can affect an embryo’s chances, female children are more likely to be carried to term and born to an already in-conflict couple than male children. Thus, female children may be the result of a divorce-prone relationship, not the cause of it.

Contact an Illinois Family Law Attorney

The new study shines a light on the issue of whether a child’s gender affects their parents’ marriage, but ultimately, it leaves just as many unanswered questions as the first study. Why are fathers more likely to have custody of a son than a daughter? Why do mothers of first-born daughters tend to remain unwed?

This study, and the questions that it raises, could have a huge impact on family law. If you are considering  divorce but are concerned about how it could affect your children, contact a compassionate DuPage County family law attorney at Mevorah Law Offices LLC. Get the divorce and child custody answers that you need.

Pet Custody: A Bone of Contention

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Chicago family law attorney, Mevorah Law Offices LLC, pet custody, pet custody case, petimonyCarol Streams couple has been trying to divorce for two years. What is holding them up? It is not a dispute over who gets the house or whether spousal support should be paid. No, this dispute is all about their black Labrador, and who gets custody of him.

With 91 percent of pet-owning Americans agreeing that their animals are members of the family, it should come as no surprise that a bone of contention for some divorcing couples will be who gets the family pet. Unfortunately for animal lovers, family law courts do not seem to have the same feelings about Fido. Therefore, pet parents need to understand how the courts view pet custody, and must also learn what they can do to prepare themselves for a dispute.

How the Courts View “Petimony”

In the eyes of most courts, animals are not family members—they are pieces of personal property that should be equitably distributed along with the rest of the marital estate. Because personal property (like a toaster) does not have feelings and courts do not order visitation for this type of property, many judges have traditionally ruled the same way when it comes to pets.

This view of animals as personal property was enshrined by the 1995 Florida case Bennett v. Bennett. The appellate court found that “While a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property.” Noting that the trial court had “no authority” to grant visitation rights for chattel, the justices also recognized that “Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.”

What to Do if You Are Involved in a “Petimony” Dispute

The Bennett view of pet custody is slowly changing. Some courts are now recognizing the bonds between animals and humans, so it is possible for pet owners to convince a judge to determine custody or visitation of an animal.

To begin this process it is important to first recall who bought or adopted the animal. There is still a preference for treating animals as personal property, so the person who is the “owner” of the pet stands a good chance of maintaining custody.

Whether you are the owner of the animal or not, be prepared to show the judge that you are its primary caregiver and so that it is in the animal’s best interests to remain with you. Gather evidence—receipts for food, grooming, daycare—that shows you are the one who provides for the animal’s needs. Get support from friends and neighbors who can state that you are the one who walks your pet and plays with it. If possible, present evidence of any distress the animal may have suffered when you were away from it for a significant amount of time.

Finally, it is very important to show the court that you are not seeking custody for revenge or to prolong the divorce proceedings. If you never showed any interest in the animal until divorce proceedings began, do not start now. Prove to the judge that you are motivated by a genuine concern for your pet, not a genuine desire to get revenge on your ex.

Talk to an Illinois Family Law Attorney 

Petimony is a new and developing area of law, but a Chicago family law attorney will be in the best possible position to guide you through your case. If you are engaged in a pet custody case, contact the Mevorah Law Offices LLC to get the help you need.

Think before You Post: Social Media Can Impact Family Law Cases

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Chicago divorce attorney, social media can impact family, children’s best interests, Mevorah Law Offices LLC, social media and divorceWith the advent of social media, people have become comfortably used to sharing the intimate details of their lives. However, many forget that what gets posted online does not always stay online. Hence, there is a good chance that what a person says on Facebook could come back to haunt them in the courtroom. Below are examples of ways social media use may impact family law cases

Hidden Assets? Not Any More

Hypothetically, a husband decides he does not want to pay his soon-to-be-ex spouse a significant amount of spousal support. Thus, he decides to hide some of his assets during the acrimonious divorce. He sells stocks, stashes money in offshore accounts, and downsizes his house and car. The judge believes his riches-to-rags story, and his now ex-wife gets a far smaller support order than she had anticipated.

In celebration, the now ex-husband takes his new girlfriend on a vacation, and the girlfriend posts pictures of their lavish trip. However, if the ex-wife discovers the pictures, she can take them to court as evidence that the ex-husband is worth more than he claimed and she can ask the judge to modify the support order. In fact, the ex-husband may end up paying more than he had hoped to, and will likely find himself in serious trouble for lying to the court.

Character Evidence

Another example is when a husband and wife are engaged in a bitter fight over the custody of their children. Life is stressful, and the wife does not have a lot of patience with the children right now. She posts messages on social media about how frustrated she is, how she would like to take the kids and run so that husband cannot get custody, or how she would like to severely discipline the children. If the husband sees these posts, this information may be admissible to show that the wife is an unfit parent and that it is not in the children’s best interests to remain with her.

Contact a Family Law Attorney

Social media can impact family law cases significantly. If you live in Illinois and are going through a divorce or dealing with support or custody matters, contact an experienced Chicago divorce attorney at the Mevorah Law Offices LLC to make sure that social media is being used on your behalf, and not against you.

Tax Considerations & Marriage Penalties for Middle Class Families

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DuPage County family law attorney, marriage penalties, tax considerations, tax break, marriage bonuses, higher tax bracket, filing jointly, decrease marriage penalties, increase marriage bonusesWhen a couple decides to get married, buy a home, have children, and plan for their future retirement, they must think about the tax consequences at every step in the process to maximize the financial consequences of each event in their lives. Speaking with an attorney versed in family law can help ensure that the couple is on the right track, and can be of assistance in the event of divorce or other family-related issues.

Marriage

When a couple gets married, they may be subject to both marriage penalties and marriage bonuses. A marriage penalty occurs when a couple pays more income tax filing jointly as a married couple than filing separately as individuals. A marriage bonus is the reverse and occurs when a couple pays less tax filing jointly than filing separately as individuals.

If spouses have similar incomes, they are more likely to encounter marriage penalties. This happens because, by combining their incomes in a joint filing, they might be placed into a higher tax bracket. If one spouse is the exclusive income earner, he or she will most likely receive a marriage bonus. This generally happens because joint filing moves the higher earner’s income into a lower tax bracket.

In 2001, the tax code was changed to increase marriage bonuses and decrease marriage penalties. The standard deduction for filing jointly as a married couple is twice that for single filers. The income ranges for the 10 to 15 percent tax brackets are also twice that of single filers.

Home Ownership

The tax code provides a number of benefits for people who own their homes in the form of deductions. Homeowners may deduct both mortgage interest and property tax payments from their federal income tax.

Homeowners do not have to include the rental value of their homes as taxable income. Homeowners may also exclude the capital gain they get should they decide to sell their home; however, there is a cap on the exclusion. Finally, homeowners may deduct interest paid on home equity debt. The cap for that is $100,000.

Having Kids

The child tax credit reduces a married couple’s taxes by $1,000. Married couples with an adjusted gross income of $110,000 or under qualify for the full credit. The couple can claim it every year on their taxes until their child reaches the age of 17.

There are also tax credits available that help lower the cost of child care. If the couple has children under the age of 13, they may be eligible for a 20 to 35 percent credit. The cap is $3,000 for one child, or a total of $6,000 for two or more children. Eligible expenses may include paying for a nanny or babysitter, preschool school care, and summer day camp.

If a parent participates in his or her employer’s flexible spending account for dependent-care expenses, he or she may qualify for additional deductions. A parent can contribute a maximum of $5,000 a year, and the money is deducted from the parent’s gross salary before taxes.

Saving for Retirement 

A tax break that favors long-term retirement planning is the Retirement Savings Contributions Credit or Saver’s Tax Credit. If you are 18 or older, not a full-time student, and are not claimed as a dependent on another person’s tax return, you can qualify for this credit.

You can take a tax credit for making eligible contributions to your IRA or employer-sponsored retirement plan like a 401(k) or 403(b). The amount of the credit is 50, 20 or 10 percent of your IRA contributions or retirement plan. The cap is $2,000 for an individual or $4,000 if married and filing jointly. The amount will depend on your adjusted gross income.

Resources

Seeking a knowledgeable advisor at each milestone is critical in order to avoid some of the tax penalties a couple can face throughout their marriage. For more information about these or any other family law issues, please contact an experienced DuPage County family law attorney.

Challenges to Collecting Child Support

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Chicago family law attorneys, child support, collecting child support, Illinois Marriage and Dissolution of Marriage Act, Mevorah Law Offices LLC, non-custodial parentIllinois Law 

When a couple divorces in Illinois, in most cases, the non-custodial parent will be required to pay child support to the custodial parent. The law governing child support payments in Illinois is the Illinois Marriage and Dissolution of Marriage Act (“Act”). Under the Act, a couple can negotiate on their own what terms they want to work out for payment or, if the couple cannot agree, the court will arraign a structured payment plan that is in the best interests of the child or children.

Enforcement Mechanisms

Just because the court orders a parent to pay child support, it is not guaranteed that payments will be enforced or that the custodial parent will receive the money. The court does have mechanisms in place to collect payment, like garnishing the non-custodial parent’s wages.

Garnishing wages is the most effective way of ensuring compliance. Illinois has a flat percentage formula: 20 percent is deducted from a non-custodial parent’s wages if the couple has one child; 28 percent if they have two; and 32 percent if they have three or more children together. There is a cap that limits the deduction to no more than 65 percent of a paycheck, regardless of the number of children the couple has together. This money is sent to the State Disbursement Unit, which then mails the check to the custodial parent.

There are other punishments if a non-custodial parent fails to pay child support. The court can take away the non-custodial parent’s driver’s license or passport. The court can also enforce other financial penalties, such as withholding federal tax refunds or placing a lien against property of the non-custodial parent. However, the court only uses these methods if other, less punitive actions have failed.

Revolving Door into the Courtroom

Unfortunately, even when the court has enforcement measures in place, custodial parents sometimes end up going back to court multiple times to obtain the court-ordered child support. There are several hurdles that the court faces in enforcing payment. If a parent moves around frequently it may be difficult to track the parent down and the parent may move out of the court’s enforcement jurisdiction.

Another hurdle the court faces is if or when to modify the payments. If a parent is constantly changing jobs, he or she may not have a steady income and cannot consistently pay support each month. Sometimes the parent may be acting fraudulently by underreporting his or her income or identifying his or her occupation as “self-employed” and hiding possible earnings.

Most states, including Illinois, get federal funding to assist parents in getting child support payments. In many counties, there are child support enforcement divisions that assist parents with establishing paternity, and then, once paternity is established, seek enforcement of payment by the non-custodial parent.

In some cases the non-custodial parent will refuse to pay or is unable to pay if they are jobless or in jail. Courts are reluctant to threaten jail for failure to pay child support because they have found that it just leads into pattern of non-payment and jail time.

Alternative Methods of Collection

Some frustrated custodial parents are looking to collection agencies to collect on non-payment of child support. There are many agencies that specialize in enforcing collection of child support payments. In Illinois, there is no statute of limitations for enforcing payment. These agencies have the manpower and time to further investigate the issue, which the overburdened courts are unable or unwilling to do. However, it is at a significant cost to the custodial parent, as collection agencies in return may ask for a hefty percentage of money that they end up collecting as a fee for their services.

Resources

For more information about family law issues, including apply for and collecting child support, please contact the experienced Chicago family law attorneys at Mevorah Law Offices LLC. We can assist you with any family law-related issues you may be facing.

Guardianship in Illinois

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Chicago family law attorneys, guardianship, Illinois Probate Act, types of guardianship, adoption options, award of custody, Mevorah Law Offices LLCWhat is Guardianship?

Guardianship is a court process that grants a non-parent legal custody of a child. Guardianship allows a non-parent to act in place of a parent to make decisions that will affect the welfare of a child. Guardians have to guarantee that the child receives food, clothing, and shelter, as well as an education and appropriate medical care.

Unlike with an adoption, a guardian can be appointed without having to end the birth parents’ rights over the child. The court has jurisdiction until the child turns 18 years old. The court has to rule out the options of adoption and of a possible permanent return of the child to the parental home before it will award guardianship. The child’s parents may agree to the guardianship. If the parents do not agree, they will be offered a chance to object to the guardianship in court unless their parental rights have already been taken away.

Who Can Act as a Guardian?

The court must always consider the best interests of the child when determining guardianship. In doing so, the court will look at the following factors:

  • The wishes of the child (a child over 14 must give consent);

  • The wishes of the guardian and his or her relationship with the child;

  • The child’s ability to adapt to the new home, school, and community environments; and

  • The physical and mental health of all parties involved.

In the process, the Illinois Department of Children and Family Services (DCFS) will also perform an investigation, a home study, and a criminal background check.

A person is qualified to act as a guardian if the court finds that the proposed guardian:

  • Is at least 18 years old;

  • Is a United States resident;

  • Is not of unsound mind;

  • Is not disabled; and

  • Has not been convicted of a felony.

Custody and Guardianship Statutes

Illinois has specific statutes that provide for an award of custody:

  • The Probate Act;

  • The Illinois Marriage and Dissolution of Marriage Act ;

  • The Illinois Parentage Act of 1984;

  • The Illinois Domestic Violence Act of 1986;

  • The Adoption Act; and

  • The Juvenile Court Act of 1987.

The Illinois Probate Act

The statute governing guardianship in Illinois is the Illinois Probate Act.

There are three types of guardianship under the Probate Act:

  • Person – when the minor owns no property and has no income;

  • Estate – when the guardian cares for, manages, and invests in the property owned by the minor; and

  • Person and Estate – when the guardian acts on behalf of both the person and the estate.

The Illinois Probate Act was amended in January, 2011. It eliminated the standard of “parental fitness” for appointing a guardian. It now also allows for a non-parent to have standing in court. Under the amended law, the court will determine if the parents have voluntarily relinquished physical custody of a child, failed to appear in court after getting proper notice of a court hearing, or consented to the guardianship.

Discharge of Guardianship

Parents can discharge a guardianship. The standard of proof for both sides is clear and convincing evidence. The parents must establish there has been “a material change of circumstances.” Once the parents can establish this, then the guardian has to prove that end the guardianship is not in the best interests of the child.

The court will look at the following factors to determine the best interests:

  • How the child interacts with the parent and anyone living in the parent’s household;

  • Whether the parent can provide a safe environment for the minor;

  • How stable are the parties involved;

  • How long the child has lived with the guardian and how the child has adjusted to his or her environment; and

  • What the visitation dynamics are between the parent and child and how the guardian controls visitation.

Resources

For more information about family law issues such as guardianship, please contact the experienced Chicago family law attorneys at Mevorah Law Offices LLC. We are prepared to assist you will all your family law needs.

States Debate over Child Custody Laws

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Illinois family law attorney, child custody laws, sole custody, types of custody, joint custody, awarding custody, Illinois child custodyChild Custody

The Illinois Marriage and Dissolution of Marriage Act is the law that governs how child custody is determined in Illinois. When we think of the word “custody,” we sometimes view it in terms of the time spent with a child regardless of whether the courts award joint or sole custody. However, custody in Illinois actually has to do with determining which parent has the decision-making power over the child. The length of time a parent spends with the child is not the focus of the determination.

Types of Custody 

There are two types of custody in Illinois: sole custody and joint custody.

Sole Custody

Sole custody refers one parent having the right to make all major decisions for the child. These decisions include health care options, where the child goes to school, and what religion the child will take.

Joint Custody

Joint custody refers to both parents having the right to equally participate in all major decisions for the child. This requires a situation in which both parents demonstrate a willingness and ability to work together in the best interest of the child. This includes all the same decisions awarded with sole custody. However, if there is a medical emergency, both parents must approve what course of action will be taken. The physical time spent with each parent does not need to be split evenly. Generally, when joint custody is awarded, the child will reside mostly with one parent. This parent receives what is known as “residential custody.” The residential custodian is often awarded child support from the non-residential parent.

How is Custody Determined by a Court?

A court will decide what is in the best interests of the child when awarding custody. There are several factors the court will review to make this determination, including:

  • What the parents’ want;
  • What the child wants;
  • How the child interacts with his or her parents, siblings, and other close family members;
  • How the child is adjusting to the home, school, or local environment;
  • The mental and physical health of all parties;
  • Any threat to the child’s physical or emotional health in either home environment. This can include physical, verbal or emotional abuse by anyone towards anyone;
  • How the parents interact with each other; and
  • The sex offender status of either parent.

National Debate on Changing Child Custody Laws

Advocates for changes in the current law argue that the best interests of the child means equal time or more evenly distributed time spent with both parents. These advocates are against laws awarding sole custody to one parent, and would like the law to spell out a minimum percentage of time a child should spend with each parent.

However, those who are in favor of the status quo, like the Cook County Public Guardian’s Office and Illinois State Bar Association, argue that having strict requirements about custody will take away a judge’s ability to determine the best interests of the child. They fear a cookie cutter answer will not allow the judges to make critical decisions about the child’s welfare.

Illinois is one of seven states currently dealing with legislation proposing changes to the laws as part of a larger national debate on the issue. The most recent legislation proposed in Springfield would ask judges to consider equal time for both parents but would not make it a requirement. It would also create a 90-day deadline for custody disputes. The most recent proposal was approved by the House in April and is now in the Senate for debate.

Resources

An experienced attorney will always stay abreast of national and state laws regarding child custody and other family law matters. For more information about family law issues, please contact the experienced Lombard family law attorneys at Mevorah Law Offices LLC.

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