U.S. Supreme Court to Decide Constitutionality of Same-Sex Marriage Bans

 Posted on January 22, 2015 in Family Law

On Friday, January 16, the United States Supreme Court granted certiorari in four same-sex marriage cases. The court’s decision to hear these cases is historic – soon, all Americans will have the right to marry and divorce, or they will not.

Specifically, the court agreed to consider whether states have the constitutional power to ban same-sex marriage, and whether the Constitution compels states to recognize same-sex marriages performed elsewhere. The first issue addresses equal protection under the Fourteenth Amendment, while the second issue addresses full faith and credit (e.g., states must recognize marriages legally performed in other states).

Circuit Split on Same-Sex Marriage

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Paternity Testing and Unmarried Fathers' Rights

 Posted on January 20, 2015 in Child Custody

When an unmarried couple has a child, the father does not automatically have the same rights to his son or daughter as a married father has to his child. This is because unless a couple is married at the time of the child's birth or the mother was married at the time of conception, her husband or former husband is assumed to be the father. With this assumption comes the title of “legal father,” which comes with all the standard rights a father has to his child.

Unmarried fathers need to prove their paternity in order to have rights to their children. These rights are outlined in the Illinois Parentage Act of 1984 and include the following:

• The right to seek partial or full custody of the child;

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Discovery in Divorce

 Posted on January 15, 2015 in Divorce

As a marital relationship deteriorates all aspects of the marriage are affected. This ranges all the way from affection to finances. Once divorce becomes imminent, affection becomes less critical and finances become an all important facet of the relationship. There are two highly contested issues that couples dispute whilst going through a divorce: children and money. If you and your spouse have a respectful relationship throughout the divorce process and are able to discuss these peacefully, all the better. Unfortunately, this is not always the case. Tempers run short and emotions flare when two adults decide to split the life they have created together. Fortunately, courts recognize this and have created a process by which couples can get an accurate picture of each others’ finances, even without the help of one another. This process is known as “discovery.”

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Investigating Reports of Child Abuse or Neglect

 Posted on January 14, 2015 in Child Custody

Illinois created the Department of Children and Family Services to provide social and protective services to Illinois children and their families. One of the department’s most important responsibilities is outlined in the Abused and Neglected Child Reporting Act: DCFS must investigate reports of child abuse or neglect and offer protective services to prevent any further harm from befalling the child. DCFS must keep the best interests of the child in mind throughout this process.

While Illinois law generally assumes that keeping families together is in a child’s best interests, there are situations where DCFS must remove a child from his home. DCFS will only take a child away from his parents if that is necessary to keep the child safe. (Note that the department separates a child from his parents only as a last resort.) The department may ask the family to agree to a safety plan, which typically arranges for either the child or one of the parents to stay elsewhere while DCFS completes its investigation. The plan must be in writing.

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New Illinois Family Laws in 2015

 Posted on January 08, 2015 in Family Law

Every year the Illinois legislature passes new laws that affect the rights and obligations of state citizens. There are nine new Illinois family-related laws for 2015:

1. Sixteen-year-olds can be placed in temporary custody with the Department of Children and Family Services for delinquency (committing minor crimes). The age threshold used to be 15 years old.
2. Amendments to the Child Care and Adoption Act address civil unions and expand the definition of “relative” to include great-grandparents, step-grandparents and cousins.
3. There is now a Statewide Youth Advisory Board and regional youth advisory board to advise the Department of Children and Family Services on foster services.

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Dissolving a Civil Union in Illinois

 Posted on January 07, 2015 in Divorce

Before Illinois permitted same-sex marriage, gay couples had the right to enter into civil unions. (Heterosexual couples, too, have this option.) Semantics and ceremonial purposes aside, there is not much difference between a marriage and a civil union in Illinois, especially since the Religious Freedom Protection and Civil Union Act took effect in 2011. That act gives civilly unioned couples the same rights under state law as married couples.

Those rights include the right to de-couple. For a married couple, it means the right to divorce. For a civilly unioned couple, it means the right of dissolution. The laws applicable to a divorce are the same as those applicable to a civil union dissolution. Thus, all couples receive the same benefits under the law when they break up, whether the break up is a marriage or a civil union. Couples in a civil union, like in a marriage, will need to resolve:

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Illinois Courts May Exercise Temporary Jurisdiction in Emergency Child Custody Situations

 Posted on December 23, 2014 in Child Custody

An Illinois judge recently ruled that a Missouri teenager who has been hospitalized in Chicago should not be returned to his mother. The teen became a temporary ward of this state after the hospital reported his mother for medical child abuse. She wants to move him to another hospital in a different state, but the Illinois Department of Children and Family Services believes that she is interfering with her son’s medical treatment. For that reason, he has been placed under temporary protective custody in Illinois.*

*Note that the following is not a commentary on jurisdictional issues in the Missouri teenager case. Rather, the case is an example of when Illinois courts might address such issues.

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Chicago Tribune Reports Abuse, Corrective Actions at State Youth Residential Treatment Centers

 Posted on December 18, 2014 in Family Law

If your child is now, has ever been, or someday is, in trouble with the law, you might be concerned about the state of Illinois’s juvenile justice system and how it may affect your visitation rights.

The Chicago Tribune recently published a series highlighting the occurrence of illegal – and abusive – activities at some of Illinois’s youth residential treatment centers. (A youth residential treatment center is a facility that provides juvenile offenders with psychological and medical treatment, school and job training and temporary housing.) For example,the Tribune’s investigation revealed evidence of physical assaults, rapes, and child prostitution rings. In response to those allegations, the state Department of Children and Family Services began making unannounced inspections at the facilities, where officials are interviewing youth and staff as well as reviewing clinical records.

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Illinois Law Strives to Protect Homeless Families

 Posted on December 16, 2014 in Family Law

Somewhere tonight – probably, in fact, somewhere not too far from where you live – a child is sleeping in a car, or on the street, or in a shelter. This child might have a family, but he does not have a place to call home. It is a humbling reminder that not every family has a comfortable (or even safe) living situation.

While homeless families have fewer resources, they still enjoy the same protections under Illinois law. The state cannot deny its homeless citizens access to basic public services and must protect their legal rights. Specific guarantees are enumerated in the Illinois Bill of Rights for the Homeless, including:

• Homeless families have the right to be in public spaces, including on public sidewalks and on public transportation, without facing discrimination;

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An Unemployed or Underemployed Parent’s Child Support Obligations

 Posted on December 11, 2014 in Divorce

The duty to pay child support stems from the child’s needs as well as the parent’s ability to pay. The second part of that equation depends on the supporting parent’s financial resources and needs. In other words, it is difficult to order parents to pay beyond their means. But what do such “means” include? Two years ago the Illinois Supreme Court considered whether money regularly drawn from a savings account is considered income for child support purposes.

The case, In re Marriage of McGrath, involved a divorcing couple with two children. Their marriage settlement included a joint parenting agreement granting physical custody to the mother. Because the father was unemployed, the initial agreement did not require him to pay child support. Eventually, however, the mother filed a petition seeking support payments. At the time, the father was covering his own living expenses by making withdrawals from his savings account. The court found that those withdrawals constituted his net income and used that amount to calculate his support obligations.

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