Family Law Outline

Family Law Outline
INTRODUCTION
I. GENERAL THEMES
a. Judges have incredible discretion
b. Family law continues to change and evolve reflecting social change
II. ILLINOIS STATUTES- 750 ILCS Act 5

a. Purpose IMDMA(102) 10 Reasons
i. 1) provide adequate procedures for the solemnization and registration of marriage;
ii. (2) strengthen and preserve the integrity of marriage and safeguard family relationships;
iii. (3) promote the amicable settlement of disputes that have arisen between parties to a marriage;
iv. (4) mitigate the potential harm to spouses and their children caused by the process of an action
brought under this Act, and protect children from exposure to conflict and violence;
v. (5) ensure predictable decision-making for the care of children and for the allocation of parenting
time and other parental responsibilities, and avoid prolonged uncertainty by expeditiously resolving
issues involving children;
vi. (6) recognize the right of children to a healthy relationship with parents, and the responsibility
of parents to ensure such a relationship;
1. unless there is DV, parents are entitled to see their kids
vii. (7) acknowledge that the determination of children's best interests, and the allocation of parenting
time and significant decision-making responsibilities, are among the paramount responsibilities of
our system of justice, and to that end:
1. (A) recognize children's right to a strong and healthy relationship with parents, and parents'
concomitant right and responsibility to create and maintain such relationships;
2. (B) recognize that, in the absence of domestic violence or any other factor that the
court expressly finds to be relevant, proximity to, and frequent contact with, both
parents promotes healthy development of children;
3. (C) facilitate parental planning and agreement about the children's upbringing and
allocation of parenting time and other parental responsibilities;
4. (D) continue existing parent-child relationships, and secure the maximum involvement and
cooperation of parents regarding the physical, mental, moral, and emotional well-being of
the children during and after the litigation; and
5. (E) promote or order parents to participate in programs designed to educate parents to:
a. (i) minimize or eliminate rancor and the detrimental effect of litigation in any
proceeding involving children; and
b. (ii) facilitate the maximum cooperation of parents in raising their children;
viii. (8) make reasonable provision for support during and after an underlying dissolution of marriage,
legal separation, parentage, or parental responsibility allocation action, including provision for
timely advances of interim fees and costs to all attorneys, experts, and opinion witnesses including
guardians ad litem and children's representatives, to achieve substantial parity in parties' access to
funds for pre-judgment litigation costs in an action for dissolution of marriage or legal separation;
ix. (9) eliminate the consideration of marital misconduct in the adjudication of rights and duties
incident to dissolution of marriage, legal separation and declaration of invalidity of marriage; and
x. (10) make provision for the preservation and conservation of marital assets during the litigation.
b. LICENSE TO MARRY (203) - obtain license to marry by showing
i. (1) proof of permissible age:
1. 18 years old, or
2. 16 years old with parent/guardian consent
a. must have consent of both parents or
b. consent of 1 parent+ show diligent efforts by consenting party to find
other parent
i. Must have affidavit stating (1) name of absent parent and that he
cant be located + (2) diligent efforts made to locate other parent
T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 1

ii. (2) proof it is permissible marriage (i.e., not prohibited)see ( 212)
1. Still Marriedcannot marry until prior marriage is dissolved
2. Familycannot marry (1) ancestor + descendant or (2) brother and sister (whether
the relationship is by half or whole blood or by adoption)
a. Cannot marry uncle/niece or aunt/nephew (whether by half or whole blood)
3. First Cousinsnot permitted unless they are 50 years or older and sterile
4. Gay Marriagewill be effective in Illinois summer 2014
c. PROHIBITED MARRIAGES (212)
i. The following marriages are prohibited:
1. Already/still married cannot marry until prior marriage dissolved
2. Familycannot marry (1) ancestor + descendant or (2) brother and sister
(whether the relationship is by half or whole blood or by adoption)
3. FamilyCannot marry uncle/niece or aunt/nephew (whether by half or whole blood)
4. First Cousinsnot permitted unless
a. they are 50 years or older.; or
b. either party sterile(need doctors note)
ii. Note:
1. parties who cohabit after removal of the impediment are lawfully married of date of removal of
impediment
2. children born or adopted of a prohibited or common law marriage are the lawful children of the
parties
d. VALIDITY OF MARRIAGES (213)

i. GenerallyAll marriages (within IL or outside) that were valid at the time entered are
valid, except where contrary to public policy of state
1. Out of State Marriageare valid unless the marriage is contrary to public policy
2. Against po
e. INVALDIITY OF COMMON LAW MARRIAGES (214)
i. Common Law Marriagethere is none, invalid in Illinois unless entered before June 30,
1905
f. PENALTY(215)
i. Anyone who violates part 2 of this act(201-216) will be guilty of Class B misdemonear
1. Punishable by jail or fine
g. PROHIBITED MARRIAGES VOID IF CONTRACTED IN ANOTHER STATE(216)
i. Prohibited marriages are void if done in another state
1. Ex. Cannot go to Utah, marry your cousin and come back to Illinois and have the marriage
recognized
h. DECLARATION OF INVALIDITY (301)formerly known as Annulment
i. Court will enter a judgment declaring invalidity under the following circumstances:
(someone must have lacked consent)
1. (1) A party lacked capacity to consent to the marriage
a. Mental incapacity or infirmity
b. Under the influence of alcohol, drugs, or other incapacitating substances
c. Induced into marriage by force, duress, or fraud (involving the essentials of
marriage)
i. Forceshotgun marriage
ii. Fraudhas to be something the party did not know about before
the marriage (Ex: if one party did not know that the other party could not
consummate the marriage)
d. 302: SOL = 90 days after petitioner obtained knowledge of the condition
2. (2) A party lacks the physical capacity to consummate the marriage
a. At the time of marriage, other party did not know of the incapacity
b. 302: SOL = 1 year after the petitioner obtained knowledge of the
condition

3. (3) Under ageparty was 16 or 17 years old
a. Did not have parental/guardian consent or judicial approval
b. 302: SOL =Must be sought before the time that the underaged party
reaches the age at which he/she could have married without needing
permission
4. (4) Prohibited Marriage
a. See above 212
b. Can be sought by either party at any time (not to exceed 3 years after death
of one spouse)
i. TIME OF COMMENCEMENT (302)
i. See the time frames above (302 SOL)
ii. CANNOT seek a declaration of invalidity after DEATH of spouse for section 1(lack
consent), 2(lack consummation), and 3 (age) of Section 301.
iii. Declaration of invalidity sought under section 4(prohibited) marriages may be sought by
spouse of bigamous marriage, attorney or child of either party at any time not to exceed 3
years following death
j. CIVIL UNIONSIllinois Religious Freedom Protection Act & Civil Union Act750 ILCS
75/
i. 75/10
1. Civil Union Marriage
2. Civil union=Means a legal relationship between 2 persons, of either the same or
opposite sex
ii. 75/20- protections, obligations, and responsibilites
1. party to a civil union is entitled to the same legal obligations, responsibilities,
protections and benefits as those afforded or recognized by law to Illinois spouses
2. Religions do not have to recognize or approve civil unions
iii. 75/25 prohibited civil unions
1. prior to both parties 18 years of age
2. Already/still married or civil cannot marry until prior marriage or civil union
dissolved
3. Familycannot marry (1) ancestor + descendant or (2) brother and sister
(whether the relationship is by half or whole blood or by adoption)
4. FamilyCannot marry uncle/niece or aunt/nephew (whether by half or whole blood)
5. First Cousinsnot permitted unless
iv. 75/45 dissolution; declaration of invalidly
1. held to same standards of dissolution and invalidity (annulment) of regular
marriages
v. 75/60 respect for marriages and civil unions entered into other jurisdictions
1. civil union from other states will be recognized in IL as civil union
2. marriage(whether same sex or different sexes) and provided its not a common law
marriage will be recognized as a marriage in accordance with provisions of
IMDMA except section 216 shall not apply to same sex couples validly entered in
another jurisdiction
III. CASE LAW

a. RIGHT TO MARRY
i. Obergefell v. Hodges
1. Same sex marriage constitutional Right to marriage is a fundamental right of the
due process clause
a. Its a fundamental liberty it is inherent to the concept of individual
autonomy, it protects the most intimate association between two people, it
safeguards children and families by according legal recognition to building

a home and raising children, and it has historically been recognized as the
keystone of social order
b.
ii. Loving v. Virginia (SCOTUS 1967)
1. FactsLovings were married in D.C. and resided in VA. Lovings were charged with
violating the VA law against interracial marriage. Exiled from VA.
a. State argued that this law was permissible because it punished whites and blacks
equally
2. Holdingunconstitutionaldenying on the basis of race
a. There is patently no legitimate overriding purpose independent of invidious
racial discrimination which justifies this classification.
b. Strict Scrutiny standard racial classifications; narrowly tailored to achieve a
compelling state interest which is applicable to fundamental interests and suspect
classification; presumptively unconstitutional
3. Rule: the right to marry is a fundamental liberty interest
iii. Zablocki v. Redhail (SCOTUS 1978)

1. FactsWI statute mandated that WI residents with minor children not in their custody and
under obligation to pay child support may not get married without courts permission.
a. fell under this statute, could not make support payments for a period of time,
owed backed child support
b. s application for a marriage license was denied because he did not get court
order
c. wanted to marry woman who was having his baby
2. Holdingunconstitutionalviolated Equal Protection because it directly and substantially
interfered with the right to marry
a. State had a valid interest in wanting to promote payment of child support but not
compelling
b. There were less burdensome (more narrowly tailored) ways to get support
c. Right to marry is of fundamental importance SS standard
d. Dissent
i. RB test
ii. State does have an exceptionally strong interest in securing as much
support as their parents are able to pay
b. ADDITIONAL LIBERTY INTERESTS IN FAMILY LAW

i. Michael H. v. Gerald D. (SCOTUS 1989)
1. Facts Wife had a child with neighbor while married to H (Gerald); Biological father of
child (Michael H.) sought visitation rights with child.
a. Gerald moved for summary judgment, which was granted based on CAs
presumption of who was a father if a child is born within a marriage
b. Michael argued DP violationclaiming that he had a liberty interest in
maintaining a relationship with his daughter
c. Basically you only have 2 years to establish paternity
2. Question: Does the CA law violate the Due Process Clause by denying a possible
biological father the chance to establish his paternity of a child after two years have passed
since the child's birth?
3. HoldingSCOTUS held this statute was permissible
a. General judicial aversion to declaring children illegitimate (affects inheritance)
b. Footnote 6Justice Scalia proposed a new test for substantive due process; to
decide whether a right is fundamental (and thus protected), courts should focus on
the most specific level of tradition that can be identified.
i. OConnor + Kennedy refused to concur in n.6 because it was too rigid
c. VALIDITY OF MARRIAGE

i. Johnston v. Johnston
1. Factscore issue = property dispute
a. W sought an annulment cause H was alcoholic and lazyif marriage was invalid,
H had no claim on the house
b. Trial court granted the annulment
2. HoldingCourt of appeals determined that the fraud did not go to the very essence of the
marital relationship [would have been same outcome in Illinois]
3. Note: most anaulments relate to facts dealing with sex aspects of marriage. Annaulments
rarely granted for fraudulent misrepresentation of character, past life, or social standing
d. TRADITIONAL MODEL OF MARRIAGE

i. Bradwell v. Illinois (1873)
1. Woman not admitted to bar not constitutional
DIVORCE
I. ILLINOIS MARRIAGE + DISSOLUTION OF MARRIAGE ACT
a. 401- Dissolution of Marriage
i. JURISDICTIONmust live in Illinois for:
1. 90 days before the action or 90 days before the prove-up
2. 90 days from filing or 90 days before the finding (or entering of judgment)
ii. GROUNDS
1. NO FAULT DIVORCE
a. Irreconcilable Differencesirreconcilable differences have cause the
irretrievable breakdown of the marriage, and the court determines that
efforts at reconciliation have failed or that future attempts at reconciliation
would be impracticable.
i. Presumption: if lived separate and apart for continuous period of
6 months before dissolution of marriage than presumed met
requirement of irreconcilable differences
iii. Cant get judgment for divorce unless the court has considered, approved or reserved
the following:
1. Allocation of parental responsiblites
2. Support of child
3. Maintenance and
4. Disposition of property
5. * the court shall enter a dissolution that reserves the above if either (1)agreed by
paries, or (2) motion of either party and finding by court that appropriate
circumstances exist
iv. Death of a party after entry of dissolution but before judgment on reserved issues shall
not abate the proceedings
b. 402 LEGAL SEPARATION402
i. GenerallyAny person living separate and apart from his or her spouse without fault
may have a remedy for reasonable support and maintenance while they so live apart.
1. Neither spouse can remarry while legally separated (would have to get divorced to
remarry). Either spouse can seek divorce during a legal separation proceeding or
after judgment of legal separation has been entered.
2. Religious ReasonsMay be appropriate if client cannot get divorced for religious
reasons
ii. Commencement of this action, temporary relief, and trials shall be same as action of
dissolution of marriage
iii. Separation Agreementcan draft agreement that will enable you to acquire property
separately while living separately,

1. also can approve property settlement that parties request the court to incorporate
into the judgment
a. Court may not value or allocate property in the absence of such an
agreement
b. Court can only disapprove of a disagreement if its unconscionable
c. Agreement of property are non-modifiable
iv. Judgmenta judgment for legal separation will be entered by court (does not bar either
party from filing for divorce)
c. PROVE-UP403
i. OVERRIDING CONSIDERATIONtry to get clients through this without
embarrassment + acrimony
ii. VERIFIEDmust be an affidavit at the end stating that the info presented is true.
iii. ELEMENTS5/403(a)Roadmap to Prove-Up
1. Personal Information:
a. Age, occupation, residence, length of residing there (for each party)
b. Date + location of the marriage
c. Whether any other petitions for dissolution are on file anywhere else (1st
filed = 1st to be heard)
d. Names, ages, + addresses of all living children + whether W is currently
pregnant
i. Whether any petitions or actions for custody are pending
anywhere else
e. Jurisdictional requirements
2. Grounds- Must say that irreconcilable differences have been met
3. List Any Arrangements re:
a. Child Supportcannot waive child support, it is the childs right
b. Maintenance of either spouse
c. Allocation of parental responsiblity
d. Disposition of property
4. Relief:
a. List the relief requestedi.e., granting divorce
b. W may request use of her maiden name
c. Possible payment of fees?
iv. ADDITIONAL PARTIES
1. Under 403(d) the court can join additional parties(grandparents) if necessary
2. May be an issue if:
a. Child is in custody of someone else (ex: grandparent)
b. Parents who have loaned $$ to one of the spouses may be joined
3. Banks may be joined if home is in foreclosure
v. Birfurcation
1. Statute says you upon determining irreconcilable differences, court may allow
additional time to settle remaining issues
2. Reservationcan reserve an issue to determine after divorce is entered
(bifurcation)
a. First must
b. State specific time period for reservation
c. Remember all custody cases must be decided within 18 months of filing
(unless good cause is shown
i.
d. Conciliation404
i. reconciliation, very rarely done; possible to move for conciliation conference
ii. mediation is different from conciliation
iii. meetings are private

1.
e. EDUCATION PROGRAMS404(1)
i. FOCUS on the Children is now mandatory before divorve or in post judgment proceedings
1. Class teaches parents about the impact of the divorce on the children
2. Must take class early in the stages of divorce
ii. Indigent Clientscosts can be waived if clients are indigent
iii. DV Casesparents can attend separate sessions
f. 411- Commencement of Action
i. in order to commence action must file a praecipe for summons with clerk, pay filing fees, a
petition must be filed within 6 months or any extension for good cause shown
ii. Praecipe for Summons
1. Issued in cases where the couple may not move forward with the divorce
2. Divorce proceeding must be filed within 6 monthseither go forward or case
dismissed
3. Summons shall recite that petitioner has commenced divorce and requires
respondent to file appearance no later than 30 days from being served and plead to
petitioners petition w/n 30 days from day the petition is filed.
4. Must serve copy of pettion within 2 days of filing
5. Praecipe for summons filed without petition shall be served on respondent no later
than 30 days after its issuance; failure to do so or with any extension for good
casue shown granted by court will require court to dismiss the suit
6. Filing of praecipe for summons constitutes the commencement of action that
serves as grounds for involuntary dismissal under rules of CP of a subsequently
filed petition for dissolution of marriage or legal separation n another county.
g. PROCEDURAL DETAILS
i. Ordergrounds are always tried first at trial, then all other matters
ii. Proof of Groundsthe court must require adequate proof of groundseven if the
respondent did not request a bill of particulars. 403(f)
iii. Conciliation
iv. Mediationis mandatory.
1. Exceptionon good cause shown, the court may prohibit mediation or conciliation
or any other order that might make spouses meet without their attorneys present
usually cases involving DV, mental illness, drug addiction, etc.
v. Praecipe for Summons
1. Available option under 411
2. Does not list grounds for divorce
3. Issued in cases where the couple may not move forward with the divorce
4. Divorce proceeding must be filed within 6 monthseither go forward or case
dismissed
h. FINAL JUDGMENT413
i. Must be entered within 60 days of closing of proofs or after a trial
1. There is also an additional 30 days if needed
2. If there is an appeal, maintenance must still be paid even though appeal is
pending
3. If a party did change their name, then that party can ask to resume the use of their maiden
name
ii. Prove-up transcript and judgment are entered on different days
iii. Divorce is not finalized until judgment is entered
iv. Judgment will be final as long as no party appeals
1. If someone is appealing part of it (custody) but no the judment, then the divorce is
final and the other parties are still free to get married
v. Both parties get the judgment of divorce (i.e., nobody wins)

vi. Appeal:
1. Child support and maintenance cannot be suspended if judgment is appealed
2. Either party may remarry while appeal is pending as long as the appeal is not based
on the grounds of the final judgment
II. Supreme Court Rules

a. Rule 902. Pleadings
i. (a) Complaint or Petition. The initial complaint or petition in a child custody or allocation of parental
responsibilities proceeding shall state (1) whether the child involved is the subject of any other child custody or
allocation of parental responsibilities proceeding pending before another division of the circuit court, or another
court or administrative body of Illinois or of any other state, an Indian tribe, or a foreign country and (2)
whether any order affecting the custody, allocation of parental responsibilities, or visitation, or parenting
time of the child has been entered by the circuit court or any of its divisions, or by another court or
administrative body of Illinois or of any other state, an Indian tribe, or a foreign country. If any child
custody or allocation of parental responsibilitiesproceeding is pending with respect to the child, or any order
has been entered with respect to the custody, allocation of parental responsibilities, or visitation, or parenting
time of the child, the initial complaint or petition shall identify the tribunal involved and the parties to the
action.
ii. (b) Verification of Initial Complaint or Petition. The plaintiff or petitioner in a child custody or allocation of
parental responsibilities proceeding shall verify the pleadings required by paragraph (a) of this rule. If the
plaintiff or petitioner is a public agency, the verification shall be on information and belief of the attorney filing
the pleading and shall state that reasonable efforts were made to obtain all information relevant to the matters
verified.
iii. (c) Answer or Appearance. In a child custody or allocation of parental responsibilities proceeding the
defendants (or respondents) answer, if required, shall include a verified disclosure of any relevant information
known to the defendant (or respondent) regarding any pending proceedings or orders described in paragraph (a)
of this rule. Any defendant or respondent who appears but is not required to file an answer in the child
custody or allocation of parental responsibilities matter shall be questioned under oath by the court at the
partys first appearance before the court regarding any proceedings or orders described in paragraph (a) of this
rule.
iv. (d) Continuing Duty. The parties have a continuing duty to disclose information relating to other pending
child custody or allocation of parental responsibilities proceedings or any existing orders affecting the
custody, allocation of parental responsibilities, or visitation, or parenting time of the child, and shall
immediately disclose to the court and the other parties to the proceeding any such information obtained after
the initial pleadings, answer or appearance.
b. Rule 924. Parenting Education Requirement
i. (a) Program. Each circuit or county shall create or approve a parenting education program
consisting of at least four hours covering the subjects of visitationparenting
time and custody allocation of parental responsibilities and their impact on children.
ii. (b) Mandatory Attendance. Except when excused by the court for good cause shown, all parties
shall be required to attend and complete an approved parenting education program as soon as
possible, but not later than 60 days after an initial case management conference. In the case of a
default or lack of jurisdiction over the respondent, only the petitioning party is required to attend but
if the respondent later enters an appearance or participates in postjudgment proceedings, then the
party who has not attended the program shall attend. The court shall not excuse attendance unless
the reason is documented in the record and a finding is made that excusing one or both parents from
attendance is in the best interests of the child.
iii. (c) Sanctions. The court may impose sanctions on any party willfully failing to complete the
program.
c. Rule
III. EXTRA- DEFENSES TO DIVORCE
i. Recriminationdefense in divorce when the accused party makes a similar accusation
against the . Pretty much saying both spouses are bad, if this is case, then no divorce.
Recrimination as a bar to divorce has been expressly limited or abolished by statute (in
Illinois) or by case law in most states.
1. Abolished in IL (403)
2. Since the must be an innocent and injured spouse, if can successfully show
that the parties are equally at fault, then neither party can state that he or she is the
innocent party.

3. Equally at fault
ii. Condonationconditional forgivenessusual proof = sexual relations
1. After filingcondonation has been abolished in Illinois only for the period after
someone has filed for divorce. After one spouse has filed for divorce, she can sex
with her soon-to-be ex-husband all she wants.
2. Before filingif someone threatens to file for divorce and then lets the opposing
party move back in, opposing party can argue that they were forgiven.
3. In Illinoisyou cannot argue condonation after petition for divorce has been
filed. Condonation will only potentially apply before the petition is filed in Illinois.
iii. Collusionif the parties collude just to obtain a judgment of dissolution, the court cannot
render dissolution/legal separation/declaration of invalidity. 750 ILCS 5/407, 408
1. Still prohibited in Illinois
2. Both parties cheated the state divorce is vacated
3. 407Court must be satisfied that any admissions by the respondent were not
made fraudulently or with the intent to collude with the petitioner
4. 408Prohibits collusion
CUSTODY
I. ILLINOIS STATUTES
a. Definitions600
i. Caretaking functions Include but are not limited to
1. Nutritional needs
2. Managing bed time and routines
3. Caring when child is sick or injured
4. Extracurricular activities
5. Physical safety
6. Transportation
7. Protecting their developmental needs including
a. Motor and language skills
b. Toilet training
c. Self-confidence
d. Maturation
8. Discipline
9. Manners
10. Chores
11. School
12. Medical decisions
13. Helping child to develop relationship with family members
14. Daycare
15. Moral and ethical guidance
16.
ii. Relocation - means a change in residence from childs current primary residence located
in Cook, DuPage, Kane, Lake , McHenry, or Will to a new residence within this state that
is more than 25 miles from childs current address
1. if not in one of the above counties, then it means a move more than 50 miles from
current address
2. or a change of residence out of state that is more than 25 miles
a. can move out of state as long as not more than 25 miles from current
residence(still in the jurisdiction of IL)
iii. religious upbringing- the choice of religion or denomination of a religion, religious
schooling, religious training, or participation in religious customs or practices

iv. right of first refusal has the meaning provided by subsection (b) of 602.3
b. JURISDICTION + COMMENCEMENT OF PROCEEDING601.2
i. How do they begin?
1. Through filing of a:
a. Dissolution/ invalidity petition is filed and if minors are involved
b. either a paternity action or petition for allocation of parental
responsibilities
i. child does not have to be in physical custody of children and it
could also be filed by a non-parent
ii. Who can file?
1. Non-parentsby filing in county in which child is permanent resident and if the
child is not in the custody of the parent; there has been voluntary relinquishment of
the child
2. Stepparents if and only if
a. (1)The parent having majority parenting time is deceased, disabled,
cannot perform the duties of parent
b. (2) stepparent provided for care, control, and welfare to the child before
proceedings;
c. (3)child wishes to live with stepparent; and
d. (4) it is alleged to be in the best interests and welfare of the child to live with the
stepparent.
3. Grandparents if one parent is deceased, the parent or stepparent of that parent
may seek custody if one or more of following existed at time of parents death:
a. the other parent is absent from the marital home for at least a month w/o
the spouse knowing his/her whereabouts
b. other parent is in prison, or
c. or other parent has been convicted of violent act/DV against deceased
parent or child or received supervision or been convicted of violating an
order of protection for the deceased parent or the child
iii. must serve notice and copy of petition to childs parent, guardian, person with custody or
any person with action pending in respect to the child within 30 days before hearing
c. 602.3 RIGHT OF FIRST REFUSAL
i. Any time a parent knows in advance he/she will be absent for a significant period
and makes plans for child-care, the custodial parent may be obligated to extend the
opportunity to the other parent to provide that childcare.
ii. The parties may agree or the court may award
iii. Court shall consider making provisions for following: (1) the length of time that
invokes this right, (2)notification to the other parent and his/her response, (3)
transportation requirements, and (4) any other action necessary to protect and
promote the best interest of the child
iv. Can be granted in initial parenting order or final joint parenting agreement
D. 602.5. ALLOCATION OF PARENTAL RESPONSIBILITIES: DECISION-MAKING
I. Both parents do not have to be given decision making responsibilities
II. Major areas
1. Education:
2. Religion
A. If judge decides this, then the judge must look to the express or implied
agreement of the parties
I. Were they doing something that indicated some sort of agreement
II. Shall look at evidence as to parents past conduct in the absence of
express or implied agreement
B. If not past agreement (express or implied), then no one will be given
decision making authority of religion

C. So if there is no agreement, and no one allocated responsibility, then it's most
likely each parent will do what it wants to do when it has the kids and the court
probably won't do anything about it if there is Absent harm to the child
3. Medical/Health
4. Extra curricular
A. One of issues with this is when the one in charge of this decision conflicts
with the others parenting time
III. BEST INTERESTS OF THE CHILD602(c) 15 factors
1. Not Exhaustive Listcourts are not limited to the factors listed in the statuteall relevant
factors
2. Listed Considerations:
a. (1) Wishes of the child, taking into account maturity and ability to make
reasoned decision
i. (usually from GAL/CR, sometimes in camera interview),
b. (2) Childs adjustment at home, school, and in the community
c. (3) mental and physical health of all individuals involved
d. (4) the ability of the parents to cooperate to make decisions, or the level of
conflict b/w the parties that may affect their ability to share decision-
making
e. (5) the level of each parents participation in past significant decision-
making with respect to child
f. (6) any prior agreement or course of conduct b/w the parents relating to
decision making with respect to the child
g. (7)Wishes of the parents,
h. (8) the childs needs
i. (9) the distance b/w the parents residences, the cost and difficult of
transporting the child, each parents and the childs daily schedules, and
the ability of the parents to cooperate in the arrangement
j. (10)whether a restriction on decision making is appropriate under 603.10
k. (11) Willingness and ability of each parent to facilitate and encourage a
close and continuing relationship between the other parent and the child
l. (12) Physical violence or threat of physical violence,
m. (13) the occurrence of abuse against the child or other member of the
childs household
n. (14) whether the parent is a sex offender, and if so, the exact nature of the
offense and what, if any, treatment in which the parent has successfully
participated; and
o. (15) any other factor that the court expressly finds relevant
iv. a parent shall have sole responsibility for making routine decision with respect to the child
and for emergency decisions affecting the childs health and safety during the parents
parenting time
v. Court Will NOT Considerconduct of a present or proposed custodian that does not affect
his/her relationship with the child at issue (i.e., court will not consider marital misconduct)
e. 602. 10 Parenting Plan

i. Parents must file a plan of how they will manage things
ii. Parents within 120 days after filing service, must file jointly or separately a proposed plan.
unless good cause shown
1. if no parenting plan filed must have an evidentury hearing
iii. mediation shall be ordered to help with plan
iv. Plan must be in writing, signed by both parties, and it is binding on the court unless the
court found that it was unconscionable
1. Clean up bill-- Starting jan 1st it is not binding if the court finds it is not in the best
interest of the child

a. Unconscionable is such a high standard, so teacher likes the best interest
b. So court can't turn down agreed plan unless not in best interest of the child
i. Judges like agreements/ love deals. A deal is a deal. So the judges
like them to force them to keep that deal
v. If court turns down the parenting plan, they must state why and hold an evidentiary hearing
on what should be in the plan
vi. Parenting plan at minimum must having following provisions
1. Who makes decisions
2. Childs living arrangements and parenting time for each parent including:
a. a schedule,
b. and a method/formula for determining such schedule in sufficient detail to
be enforced in a subsequent proceeding
3. a mediation provision if there is disagreements or proposed relocation
a. Life changes, and when something happens, they are supposed to go to
mediation to see if they can resolve this except if one parent has all of the
parenting decision making
4. Everyone has right to medical, school, and dental records, unless expressly denied
by court order
5. Designation of parent who had majority of parenting time --for certain laws that
are governed by custody
6. Childs residential address for school enrollment
7. Must list address and phone number unless there is domestic violence
8. If someone moves, they must give other parent 60 days notice, unless such notice
impracticable, then give earliest date practicable. Notice should give: date of
intended change of residence and address of new residence
9. Provisions for notifying other parent of emergencies, travel plans, and other child
related issues
10. Transportation arrangements
11. How the parties will communicate with child when the child is with the other party
12. Provisions for resolving issues arising from parents future relocation
13. Way to modify the parenting plan if something happens
14. Right of first refusual if desired, in best interest of child and it must include:
a. Length and kind of child care requirements invoking right
b. Notification to other parent and his/her response
c. Transportation requirements; and
d. Any other provision related to exercise of right
15. Catch all any other provision that addresses the child's best interests or that will
otherwise facilitate cooperation between the parents.
vii. Do not have to disclose addresses if there isDV
viii. Court shall conduct trail or hearing to determine a plan that maximizes the childs
relationship and access to both parents and that plan is in best interestalso court
shall take parenting plans into consideration when determining parenting time
f. 602.11. Access to Health Care, Child Care, and School Records by Parents
i. Unless there is order of protection or similar then any parent can have access
g. 603.5. Temporary Orders
i. Court can make a temporary allocation
ii. We don't do a temporary orders often
iii. The temporary orders end at the end of the case or if it has been withdrawn
unless a parent moves to continue the action for allocation of parental
responsibilities filed under Section 601.5
h. 603.10 RESTRICTION OF PARENTAL RESPONSIBILITES
i. New statute Preponderance standard (changed from clear and convincing)

ii. In order to do it, court must find that the new conduct seriously endangers the childs
mental, moral, and physical health
iii. If judge does limit, she can order certain remedies
1. Reduction, adjustment of decision making responsibilities or parenting time/both
2. Can order supervised visitation
3. Neutral exchange
4. Restrain a parents communication with or proximity to other parent or the child
5. require parent ot abstain form alcohol or non-prescribed drugs during parenting
time or specific time before parenting time
6. Restricting the presence of specific persons while a parent is exercising
parenting time with the child
7. Can require DV, drug, alcohol or other treatment
8. Catchall exception
Courts can modify an order restricting parental responsibilities if, after a hearing, the
court finds by a preponderance of the evidence that a modification is in the child's best interests
based on (i) a change of circumstances that occurred after the entry of an order restricting parental
responsibilities; or (ii) conduct of which the court was previously unaware that seriously endangers
the child. In determining whether to modify an order under this subsection, the court must consider
factors that include, but need not be limited to, the following:
(1) abuse, neglect, or abandonment of the child;
(2) abusing or allowing abuse of another person that had an impact upon the child;
(3) use of drugs, alcohol, or any other substance in a way that interferes with the parent's
ability to perform caretaking functions with respect to the child; and
(4) persistent continuing interference with the other parent's access to the child, except for
actions taken with a reasonable, good-faith belief that they are necessary to protect the
child's safety pending adjudication of the facts underlying that belief, provided that the
interfering parent initiates a proceeding to determine those facts as soon as practicable.
iv. An order granting parenting time to a parent or visitation to another may be revoked if the
court finds that that parent or other person is found to have knowingly used parenting time
to facilitate contact b/w the child and other parent who is barred from contact with child.
v. Orders for parenting time or restricted parenting time has special language
vi. No parenting time to sex offenders, incarcerated of sex offence, parole, UNLESS there is
treatment
vii. No visitation for first degree murderers unless in best interest
i. 604.10 Interviews; evaluations; investigation
i. IN CAMERA INTERVIEW
1. Attorneys are present (unless otherwise agreed by parties) and court reporter is
present
a. If one parent is not represented and the other is, then the judge can meet in
chambers alone with the child, but the court reporter must still be present
2. Transcriptmust have transcript, but judge can prevent a parent from getting a
transcript of the in camera interview
3. Cost of court reporterpaid b court clean up bill to fix this
ii. Courts professional - the judges can appt a profession to help in determining the childs
best interests and this professional gives a recommendation. What must be in the report is
listed in the statute
1. Costs paid by one or more of the parites
2. Professional shall testify as courts witness and subject to cross
3. The professional shall send his or her report to all attorneys of record, and to any
party not represented, at least 60 days before the hearing on the allocation of
parental responsibilities. The court shall examine and consider the professional's
report only after it has been admitted into evidence or after the parties have waived
their right to cross-examine the professional.

a. Judges got upset by the cross examine requirement, the clean up bill
allows them to see the report before
4. Parties can retain their own experts if they want...these experts must put in the
same things in reports of court professional
5. The court can designate who pays for these independent experts
6.
iii. EVALUATIONS
1. enables judges to order evaluations to assist in determing best intersts (can be
expensivecosts shared by parties)
2. may be ordered in pace of or in addition to professional under subsection b
3. if the evaluation doesnt go your way, you can ask for your own
4. evaluation report has certain requirements listed under statutue
5. must be sent to parties no less than 60 days before hearing
6. can be called as a witness
iv. Investigation - by motion court may order an investigation and report by any agency
private entity, or individual deemed appropriate by the court. This person must have
expertise in area of allocation of parental responsibilities.
v. 605allows the court to order further investigations through DCFS [not used as frequently]
1. Accessibilityevery party receives a copy of these reports
vi.
j. Appointment of GAL or CR601(f)
i. GALrepresents the childs best interests; makes a recommendation
ii. Childs Representativerepresent the childs wishes; has to consider, but is not bound by
the childs wishes; draft evidence-based, pre-trial memorandum
k.
i. Why change
1. Aimed at reducing the win/lose sentiments associated with awards of custody
2. This eliminates the terms joint or sole legal custody, residential custody, and
visitation
3. Parenting time
a. Time during which parent responsible to exercise caretaking functions and
non-significant decision making
4. Parenting Plan
a. Written agreement that allocates significant responsibilities, parenting time
or both
b. Pg. 934
l. CUSTODY 606.5
i. Receive Prioritythese cases jump ahead of others that do not involve custody
ii. Expensesjudge can order who pays for evaluation + costs of witness being present
iii. Non-hearsaycourt can consider out-of-court statements by children relating to abuse or
neglect that might otherwise be hearsay
iv. Bench Trialjudges determine questions of law and fact (no jury)
v. Exclude Publiccourt can decide to exclude the public in the childs best interest, but
may still admit anyone who has a direct and legitimate interest in the case
vi. Sealed Recordsrecords can be sealed to protect the children

m. 606.10. Designation of Custodian for Purposes of Other Statutes
i. solely for purposes of state and federal law, their will be a designation of custodian, only
parent with majority of parenting time. Also it does not effect parents rights or
responsibilities under the plan
n. MODIFICATION610.5
i. Presumptionthat the allocation order entered will stay in place for 2 years
1. There must be serious endangerment to childs mental, moral or physical health or
emotional health before a party can file motion for modification during 2 year
period
2. Exceptionone parent moves in with a sex offender
ii. Preponderance of the Evidenceneed preponderance of evidence to get modification
1. Unknownmust include facts/evidence that was not known at the time the custody
judgment was entered
2. Must be Change in Circumstances + Best Interest of Child
iii. Can modify without change of circumstances if (1) modification in childs best
interests and (2) any of the following is proven:
1. Modification reflects actual arrangement which child has been receiving care,
without parent objection, for the last 6 moths prior to filing
2. Modification is minor or
3. Modification is necessary to modify an agreed parenting plan or allocation
judgment that the court would not have ordered or approved had the court been
aware of circumstances at the time of the order or
4. The parties agree to the modification
iv. Frivolous Claimsif one party keeps filing frivolous motions to modify, the judge can
order that that party pay attorneys fees
1. If court finds one has file frivolous claims, the court can bar the parent for filing
for modification for a period of time
v. **not sure if applies from old outline Service Peoplespecial rules; if someone has to
be deployed, the 2 years does not apply
II. ILLINOIS SUPREME COURT RULES

a. RULE 901General Rules
i. Expedited hearing for child custody hearings
ii. Must include specific times and dates
iii. Cannot grant continuances unless theres a really good reason
iv. Advisementcannot take a case under advisement for longer than 60 daysmust rule w/n
60 days of trial
v. Appealsmust be expedited
b. RULE 905Mediation
i. All parties must attend mediation UNLESS impediment such as DV, substance abuse, or
mental health
ii. There has to be specific trainings for mediators
iii. This rule contains additional provisions for managing mediation programming
iv. Year report to see how its going
c. RULE 922Time Limitations
i. All custody cases must be resolved within 18 months from time of service
ii. May be extended for good cause
III. CASE LAW

a. In re Marriage of Carney (CA 1979)
i. Facts

1.H and W married and had 2 kids, soon after kids, W relinquished custody to H
2.Trial court judge repeatedly asked H about his physical disability and made his decision in
part based on fathers disability
ii. Holdingabuse of discretion
1. A physical handicap that affects a parents ability to participate with his children in purely
physical activities is not a changed circumstance of sufficient relevance and materiality to
render it essential expedient that custody be modified.
2. If a person has a physical handicap it is impermissible for the court simply to rely on that
condition as prima facie evidence of the persons unfitness as a parent or of probable
detriment to the child
3. In all cases, the court must view the handicapped person as an individual and the family
as a whole.
4. Custody determination should be made on conduct, not conjecture
b. Hollan v. Hollan
i. Ones sexual orientation does not matter in custody as long as it does not have an
impact on the child
c. Palmore v. sidoti
i. The Fourteenth Amendment does not permit the consideration of potential
effects do to racial prejudice against mixed-race families in child custody
determinations
ii. Hypo: What if the mother is african american, the father is white. They are asking
for allocation of parental responsibility. Could you argue that
1. This is a real case: 2006 trial court gave sole custody to the african
american mother. Said the mother could provide the better cultural
competency
a. It is a factor and cannot be the only factor and cannot outweigh the
relevant facts.
d. Kendall v. Kendall (MA 1997)
i. Facts
1. H = devout Christian, W = devout Jew
2. Children identified as being Jewish
3. JPA limited ways in which H could practice his faith
ii. Holdingaffirmed JPAs limitations
1. Court found demonstrable evidence of substantial harm to the children, and court rejected
s arguments that the divorce judgment burdened his right to practice religion
2. If a court finds substantial harm to the children, a parent may be limited (by court order) in
the way that they can practice their faith.
a. If there isnt substantial harm, each parent has the right to expose the children to
their own religious beliefs.
e. Pusey v. Pusey (UT 1986)

i. ender years doctrine, which presumes that during a childs tender years (i.e., under
6-8) the mother should have custody of the child.
1. Found tender years presumption unconstitutional
ii. Maternal preference = no longer a valid basis
f. In re custody of Halls (Wash, 2005)

i. Strong presumption against modification because changes in residences highly disruptive to
children
g. Hassenstab v. Hassenstab (NE 1997)

i. Facts
1. H sought modification in part based on Ws homosexual relationship
2. H also presented evidence that W had been suicidal 7 years before
3. Child expressed to court that she wanted to stay with mother

ii. Holdingchange in circumstances had not occurred
1. Custody of a minor child will not be modified unless there has been a material change of
circumstances showing that the custodial parent is unfit or that the best interests of the
minor child require such action
a. The party seeking modification of custody bears the burden of showing that a
material change in circumstances has occurred
i. Must demonstrate harm to child
ii. Unless theres harm to child, no modification

PARENTING TIME (f/k/a visitation)
a. STANDARDS + PROCEDURE
i. Allocated according to BI standard
ii. Unless parents come up with plan, courts will
iii. Both parents presumed to be fit UNLESS court finds by preponderance that parents
exercise of parenting time would seriously endanger child
iv. 602.8
1. Even if you dont get significant parental decision-making responsibility, youll
get parenting time UNLESS serious endangerment
v. BOP to Modify Visitation/Custody
1. Clear + Convincing evidence
2. That there has been a change in circumstances +
3. That modification is necessary for the mental, physical, and emotional health of
child
vi. Contempt of Court
1. Every contempt is civil/criminal + direct/indirect
2. Contemptuousact that brings the authority of the court into disrepute
3. Directeverything occurs right in front of the judge, no outside proof necessary
4. Indirecthave to put on evidence to show what happened (ex: failure to pay child
support)
5. Criminalto punish [without jury can fine up to $5,000 + put in jail for 6 months]
6. Civilto force someone to do something
a. The person is being forced must have the key to the jail cell in their pocket
b. If X does not have the ability to meet the courts demands, cannot lock
them up
b. PARENTING TIME VISITATION

i. Entitledparents are entitled to reasonable visitation with their child if they dont get
custody
ii. Exceptionunless visitation would endanger seriously the childs welfare
iii. Modificationvisitation can be modified when its in the best interest of the child610
iv. Restrictionvisitation can be restricted or limited if there is an issue related to safety
602.8,602.7(10)
C. 602.7. ALLOCATION OF PARENTAL RESPONSIBILITIES: PARENTING TIME

i. Restrictions: presumed that parents are fit and shall not place restrictions on parenting time
unless if finds by preponderance of the evidence that a parents exercise of parenting time
would seriously endanger the childs physical, mental, moral or emotion health.
ii. Same best interest factors (but one more, not exhaustive) list again:
a. (1) the wishes of each parent seeking parenting time
b. (2) Wishes of the child, taking into accout maturity and ability to make
reasoned decision
i. (usually from GAL/CR, sometimes in camera interview),
c. (3) the amount of time each parent spent perfomring caretaking functions
with respect to the child in the 24 months preciding the filing of any
petition for allocation of parental responsibilities or, if the child is under 2
years of age, since the childs birth;
d. (4) any prior agreement or course of conduct b/w the parents caretaking
functions with respect to the child
e. (5) the interaction and interrelationship of the child with his or her
parents and siblings and with any other person who may significantly
affect the childs best interests

f. (6)Childs adjustment at home, school, and in the community
g. (7) mental and physical health of all individuals involved
h. (8) the childs needs
i. (9) the distance b/w the parents residences, the cost and difficult of
transporting the child, each parents and the childs daily schedules, and
the ability of the parents to cooperate in the arrangement
j. (10)whether a restriction on parenting time is appropriate
k. (11) Physical violence or threat of physical violence by the childs parent
directed against the child or other member of the childs household
l. (12) the willingness and ability of each parent to place the needs of the
child ahead of his or her own needs
m. (13) Willingness and ability of each parent to facilitate and encourage a
close and continuing relationship between the other parent and the child,
n. (14) the occurrence of abuse against the child or other member of the
childs household
o. (15) whether the parent is a sex offender, and if so, the exact nature of the
offense and what, if any, treatment in which the parent has successfully
participated; and
p. (16) the terms of a parents military family-care plan that a parent must
complete before the deployment if a parent is a member of the US Forces
who is being deployed, and
q. (17) any other factor that the court expressly finds relevant
iii. Court Will NOT Considerconduct of a present or proposed custodian that does not affect
his/her relationship with the child at issue (i.e., court will not consider marital misconduct)
iv. (d) Substitute visitation: upon motion, court may allow parent who is deployed to
designate a person known to child to exercise substitute visitation on behalf of deployed
parent if court determines its in childs best interest
1. Court shall consider all best interest factors as it applies to substitute person.
2. DV- address can be protected and neutral place
d. 602.8 PARENTING TIME by parents not allocated significant decision making responsiblies
i. If a parent does not get significant parental responsibilities, you can still get significant
parenting time UNLESS it endangers physical, mental, moral, or impairs
1. Presumption that child should spend time with each parent
2. DV- address can be protected and neutral place
e. 602. 9 VISITATION BY NON PARENTS
i. 602.9(a) definitions
1. electronic communication can be ordered
2. sibling both whole, half, step
3. step parent: means person married to a child parent, included married to childs
parent prior to death
4. visitation time spent b/w child and the grandparent, sibling, step parent or any
person designated under section d of 602.7
ii. 602.9(b)(4) - Presumption for Parentin making a determination under this section, there
is a rebuttable presumption that a fit parents actions and decisions regarding
grandparent/sibling/stepparent visitation are not harmful to the childs mental, physical,
and emotional health
1. BOP = petitionerpetitioner must establish harm
2. Show that no visits will cause undue harm to childs physical, emotional, or mental
health
iii. 602.9(b)(5) factors considered for Visitation
1. Preferences of the child
2. Mental and physical health of child
3. Mental and physical health of grandparent/great-grandparent/sibling/stepparent
4. Length and quality of prior relationship between the child and petitioner

5. The good faith of the petitioner
6. The good faith of the person denying the visitation
7. The quantity of the visitation time requested and the potential adverse impact that the
visitation would have on the childs customary activities
8. Any other fact that establishes that the loss of the relationship between the petitioner and
the child is likely to harm the childs mental, physical, or emotional health, and
9. Whether visitation can be structured in a way to minimize the childs exposure to conflicts
b.w the adults
iv. 602.9(b)(6)Adoptionif there is an adoption, ten the relationship is severed. If the persons
who adopted the child is related to the child, then any person who was related to the child
as grandparent, great-grandparent, or simbling prior to the adoption shall have standing to
bring an action for visitation
v. 602.9(c)(1)GRANDPARENTS, GREAT-GRANDPARENTS, + SIBLINGS+STEP
PARENET
1. If you are petitioning parent then grandparent visiting time cuts into your parenting
time
2. Agechild must be a year or older
3. Standinggrandparents, great-grandparents, + siblings(half too) can petition
4. Can ask for visitation or adoption
5. Unreasonable Denialcan petition for visitation if there is an unreasonable denial
of visitation by a parent that causes undue mental, physical or emotional harm to
the child and one of the following conditions exists:
a. (1) Childs other parent is deceased or missing for 90 days,
b. (2) Parent is incompetent as a matter of law,
c. (3) Parent has been incarcerated for 3 months preceding filing,
d. (4) if parents are divorced or separated, and at least one parent says its ok
for grandparent/sibling to visit,
i. This visitation cannot diminish the visitation of the non-custodial parent
e. (5) if parents are not married, the parents are not living together, and the
petitioner is a grandparent, great, grandparent, step, parent, or sibling of
the child, and parentage has been established
vi. 602.9(c)(3) Additional factors that should be considered
1. whether the child resided with the petition for at least 6 consecutive moths with or
without a parent present
2. whether the child had frequent and regular contact or visitation with the petitioner
for at least 12 consecutive months, and
3. whether the grandparent, great-grandparent, sibling or step parent was a primary
caretaker for the child for a period of at least 6 moths within the 24 month period
immediately before the proceeding
vii. Modificationno modification of orders for 2 years unless serious endangerment
1. unless by stipulation of the parties, no motion to modify as grandparent/sibling
visitation order may be made earlier than 2 years after the date the order was filed,
unless the court permits it to be made on the basis of affidavits that there is reason
to believe the childs present environment may seriously endanger the childs
mental, physical, or emotional health
2. Clear + Convincingneed clear + convincing evidence that facts have arisen
since the order was entered or that were unknown to the court at the time, that a
change of circumstances of the child or his/her parent and that modification is
necessary to protect the mental, physical, and emotional health of child
a. Parents can always petition to modify visitation upon changed
circumstances when necessary to promote the childs best interest
3. Attorneys Feesshall be assessed against a party seeking modification of the
order if the court finds that the modification is vexatious/harassment

viii. (d) + (f) Cannot be granted visitation if a sex offender or first degree murderer
ix. Summaryhas to be an unreasonable denial to grandparents/siblings/stepparents + harm
to the child + deference given to fit parents determination
f. 607.5 ABUSE OF ALLOCATED PARENTING TIME

i. Expedited Procedureprovided for enforcement of court ordered visitation
ii. A GAL, child rep, or parent can file
iii. Visitation Abuseoccurs when a party has willfully and without justification:
1. (1) denied another party visitation as set forth by the court, or
2. (2) exercised his or her visitation rights in a manner that is harmful to the child or
the childs custodian
iv. If court finds by preponderance that someone is not complying with parenting time, court
could issue order (9 options) :
1. Addition terms to previous order
2. Requirement of both or one of parties to do parenting education
3. Require individual or family counseling
4. Requirement of non complying parent to post a cash bond or other security ot
ensure future compliance
5. Make up parenting time, must be
a. The same type and duration of parenting time that was denied
b. Be made up within 6 months after the noncompliance occurs unless he
period of time/holiday cannot be made up within 6 months, in which case
it shall be made up within one year
6. A finding that the non complying parent is in contempt of court
7. Imposition on the non complying parent of an appropriate civil fine per incident of
denied parenting time
8. Non complying parent reimburse other parent for all reasonable expenses incurred
as a result of violation
9. Any other provision that may promote the childs best interests
v. Attorneys Fees Unless good cuase shown, the parent abusing the parenting time is
supposed to pay the others attorneys fees
vi. If someone is held in contempt, court can
1. a persons drivers license can be suspended,
2. put them on probation and order certain conditions,
3. sentence them to periodic imprisonment (not exceed 6 months that allows party to
work or conduct business
4. find them guilty of petty offence and fine up to $500
g. REMOVAL/RELOCATION609.2
i. Parents Relocation= change of circumstances
ii. Parent who has majority parenting time or either parent who has been allocated equal
parenting time may seek ot relocate with a child
iii. Parent intending to relocate must give written notice to other parent. A copy of the notice
must be filed with clerk of court. Court may waive or seal some info if there is DV
1. The notice must have
a. Intended date of move
b. Address of intended new residence
c. Length of time relocation will last
2. If other parent signs the notice and relocating parent files the notice with the court,
then relocation will be allowed and parenting plan or allocation judgment will be
changed as agreed by the parties as long as in childs best interst.
3. If other parent doesnt agree have to ask the court to relocate
iv. Court considers 11 factors
1. Circumstances and reasons for intended relocation

2. Reasons why other parent objected to the intended relocation
3. The history and quality of each parents relationship with the child, specifically
whether a parent has substantially filed or refused to exercise the parental
responsibilities allocated to him or her
4. Educational opportunities for the child at existing location and at the proposed new
location
5. The presence or absence of extending family at the existing location and proposed
new location
6. Anticipated impact of the relocation on the child
7. Whether the court will be able to fashion a reasonable allocation of parental
responsibilities b/w all parents if the relocation occurs
8. Wishes of the child, taking into account the childs maturity and ability to express
reasoned and independent preferences as to relocation
9. Possible arrangements for the exercise of parental responsibilities appropriate to
the parents resources and circumstances and the developmental level of the child
10. Minimization of the impairment to a parent-child relationship caused by a parents
relocation
11. Any other relevant factors bearing on the childs best interest
v. If parent moves with the child 25 miles or less from childs current address then IL
continues to be the home state of the child
vi. Language in MSA
1. A good lawyer will put restrictive language in the MSA
2. Stating that parents cannot move X miles away from current location without
agreement or approval of court
vii. New Law
1. If the child is residing in Cook County or Collar Counties (Lake, Kane, DuPage
and Will) and parent with at least 50% parenting time wants to move 25 miles
from residence, must notify other parent and gets them to agree and sign.
2. If parent does not agree, then there will be a hearing
3. If you want to move out of state and its more than 25 miles, you need to
get permission
h. SEX OFFENDER609.5
i. Automatic ground for modification of visitation
ii. If youre going to marry or live with sex offender have to provide notice
i. TEMPORARY PARENTING TIME (Visitation)

i. Court can enter temporary visitation order while visitation determinations are pending
ii. Between the time that petition is filed and case is resolved
iii. Supposed to be done in 18 months
II. CASE LAW

a. Non-Illinois Cases
i. Eldridge v. Eldridge (TN 2001)
1. H and W had 2 kidsdivorced
2. W moved to establish a visitation schedule while she was engaging in live-in homosexual
relationshipH moved for sole custody
3. Trial court was reversed for not stating a basis for its decision
4. As long as W + girlfriend were not exposing daughter to inappropriate behaviorno
restriction
5. Need evidence of harm to restrict visitation of non-custodial parent
ii. Zummo v. Zummo (PA 1990)
1. H argued that he had constitutional right to expose his children to Catholic serviceseven
though MSA indicated that children were to be raised Jewish

2. Parents have rights to expose their children to their religion, but they can also be ordered to
cooperate with the other parents wishes
3. If an IL, the court could say that mom had right to make decisions as far as religion, but
not necessarily mean that dad couldnt take them to religious services. Likely IL would
also make provision that if mom wanted kid in hebrew school there may be
accommodation that she take him and that dad have additional parenting time
4.
iii. Edwards v. Edwards (ND 2010)
1. H + W were married twice, in interim W had a daughter by different father
2. Stepfather was awarded visitation and joint-custody rightsalthough W had last word
3. Reviewing court allowed stepfather to have visitation, but not decision-making authority
4. Different in Illinois
a. There are super limited circumstances for stepparent visitation
b. Illinois does not have equitable parent doctrine
i. Does not recognize de facto parent (only for inheritance purposes)
b. Troxel v. Granville (US 2000)3rd Party Visitation

i. Facts
1. 1991 couple separates, 1993 H commits suicide
2. Hs parents continue to see the children for a couple months, then W limits visits
3. WA statute allowed any person to petition for visitation
4. Grandparents filed request for visitation (equivalent to what H would have had)
5. W remarries, new H adopts the kids
ii. Holdingstatute was too broad
iii. Reasoning
1. SC noted that the statute didnt require showing of harm
2. Parents have to have the right to limit visitation
3. Due Process violationstatute was way too broad
4. The custody, care, and nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the state can neither supply
nor hinder.
a. A law that allows anyone to petition a court for child visitation rights over
parental objections unconstitutionally infringes on parents fundamental right to
rear their children.
iv. Dissent
1. Scalia
a. Majority opinion reflects natural not con law
b. Legislature should make call and they make best interest choice
2. Stevens:
a. Children have a liberty interest as well in maintaining contact with certain people
b. There should be a hearing focused on the childs interests
c. State issue and we should stay out of this
c. Edwards v. Edwards --Stepparent

i. IL looks at equitable parent vs psychological parent
ii. IL does not recognize equitable parent doctrine except in probate
iii. Stepparents can get visitation but could not get allocation of parenting responsibilities
iv. Not hard to get TPR if the bio parent is totally out of parents life
d. In re Matter of Collingbourne (Ill. App. Ct. 2003)Removal
i. Facts
1. W and H married in 1985, and had 2 kids
2. Divorced in 1999each became custodial parents of one of the sons
3. 2 years after JPA was entered, W petitioned for removal of son to MA
4. W argued the move would improve the quality of her and her sons life
a. She would have larger slary, more flexible work schedule, some or better school
opporutnies
ii. Holdingfound for W, allowed removal
iii. Reasoning

1. Applied Eckert Factors
a. (1) will the move enhance the quality of life for both the parent and child
b. (2) motive of custodial parent
c. (3) motive of the non-custodial parent
d. (4) can there be a realistic and reasonable visitation schedule for the non-custodial
parent
2. These factors are not exclusive
3. In all circumstances, removal will have some effect on visitation. The pivotal question is
whether a reasonable and realistic visitation schedule can be created.
4. Court noted that Tylers desire to stay in IL was a natural response for a child of his age
and not sufficient grounds to deny removal petition
iv. Rule
1. Because there is a nexus between the wellbeing of the custodial parent and the child who is
in the parents care, all benefits afforded to the child as a result of the move must be
considered by the court in making its best interests determination
a. A court must consider the proposed move in terms of likelihood for enhancing the
general quality of life for both the custodial parent and the child
b.
Extra
a. JUDICIAL SUPERVISION608
v. Custodial Parentthe custodian may determine the childs upbringing, including but not
limited to, his education, healthcare, and religious trainingunless the court finds that the
absence of a specific limitation of the custodians authority would clearly be contrary to the
best interests of the child.
vi. Counselingcourt may order individual counseling for the child, family counseling, or
parental education for one or more of the parties
b. CUSTODY ORDER ENFORCEMENT611

vii. Law enforcement has to enforce order + provide assistance to petitioner

DOMESTIC VIOLENCE
I. ILLINOIS DOMESTIC VIOLENCE ACT (1986)
a. 60/102 Purposes
i. Recognize that DV is a serious thing and we need to protect kids
ii. Protect disabled adults and older adults who are vulnerable to DV
iii. Recognize that system has not been effective up until now, we need to change that
iv. Want to support victims and avoid future abuse by entering these orders of protection
v. Keep abuser away from them and records, idea we dont want people trapped in these
relationships
vi. Clarify the responsibility of law enforcement, and recorgnize their risks
vii. Expand the criminal and civil remedies to victims
b. Who Can be Protected (60/103 definitions & 60/201 persons protected by act):
i. Any person abused by a family member or another household member (roommates)
1. Related by blood or by present or prior marriage
2. Those who formerly shared a common dwelling
3. Persons who have or allegedly have children in common
4. Share a blood relationship through a child
ii. High risk adult
iii. Minor children
iv. Anybody who is residing or employed in a private home or public shelter that has an
abused family member staying with them
1. Disabled person and their personal assistants/caregivers
v. Anybody in a dating relationship (has to be more than one date)
1. If cant meet dating relationship get a stalking/no contact order
c. Who can file?
i. People can file for themselves, or their kids, or their shelter
d. Types of Orders of Protection:
i. (1) Emergency (60/217)
1. Can get this ex parteother party does not have to be present
2. Lasts for no less than 14 days, and no more than 21 days
3. After 21 days, the other side has to be served
4. If for some reason, you cannot get them served or they need more time, an interim
OP will be entered (keeping status quo) for another 30 days (multiple interims can
be entered)
ii. (2) Interim (60/218)
1. extends the emergency Usually issued when other side does not get
served/notice
2. Judges will routinely extend order up to 30 days
iii. (3) Plenary (60/219)
1. Can be no more than 2 years, but can be extended upon good cause shown
iv. Orders of protection can be attached to civil or criminal case
v. Random
You can order stay away orders
You can order counseling
These cant be done in plenary orders
You can order parenting time
You can prohibit concealment of children or that youre moving
You can order possession of personal property
You can order someone to not wreck someone elses property
You can order animals to be protected
Amounts of restitution

Cant be there under influence of drug/alcohol
Cant do mutual Ops
o Unless its for a separate incident
e. Remedies for Ops (60/214): some of the remedies ($$ + custody + counseling) are not available
for EOPs
i. Prohibit abuse, neglect, or exploitationno harmful or offensive contact (available in all
OPs)
ii. Exclusive possession of the dwellingother side would then have to move out
1. Do a balance of hardships presumption in petitioners favor
iii. Stay away order
iv. Counseling (not in EOP)
v. Physical care and possession of child to victimcan give temporary custody at hearing
vi. Temporary allocation of parental esponsiblites
vii. Parenting time
viii. Prohibit someone from removing or concealing of the kids
ix. Can order someone to appear in court
x. Possession of personal property
xi. Protection of property Order respondent not to destroy property or hurt animals (pets)
xii. Order support be paid
xiii. Order payment for losses: includes medical expenses, lost earning, destruction of property,
attys fees, cort costs, moving or travel expenses, including reasonable expenses for
temporary shelter and restaurant meals. Ect.
xiv. Can prohibit parent from not visiting child when intoxicated
xv. Can order respondent to not possess a weapon
xvi. Can prohibit access to school records
xvii. Can order reimbursement for shelter fees
xviii. Can order other injunctive relief means you can pretty much order anything
f. 60-215no mutual orders of same incidence
1. Can enter correlative stay away orders thus separate incidents
g. 60-216- Accountability for Action of Others
i. Get someone to do something that you can't, then can be held responsible under 216
h. 60-221- Content of Orders

i. must say remedies granted and reasons remedies are not granted
ii. must say that any violation is a class A misdemeanor 365 days in jail and say that it is
enforceable anywhere
i. 60-301.1. Law Enforcement Policies
i. every law enforcement agency shall develop, adopt, and implement written polices
regarding arrest procedures for DV incidents consistent with this Act.
j. 60-304 Law Enforcementif law enforcement thinks someone has been abused, have to help
i. Offer info about DV, arrest someone, help them get their things
k. 60-401 Medical Providershave to help victims of domestic violencetakes away their liability
under the DV Act
l. NEW STUFF- nto your outline
i. Public Act effective 1/2016 will include the following language
1. mitigate the potential harm to the spouses and their children cause by the process
of can action brought under this Act, and protect children from exposure to conflict
and violence
II. Dating
a. Stalking, no contact order
b. Must be more than one date
c. If you have been sexually assaulted by stranger, there is civil/no contact order
III.

IV.DRUGAN PRESENTATION
a. Illinois Must Arrest
i. Illinois is not a must arrest statemay arrest if there is probable cause
ii. DuPage County protocol = you must arrest if probable cause exist
1. Reportsmust include: children information + school attended, prior domestic
responses and disposition, presence of FOID, and documentation of FSS call
b. Domestic Battery Sentencing
i. First Conviction = Class A Misdemeanor
ii. Second/Subsequent Violation = Class 4 felony
iii. 26 week batterers program
c. Continuing Violation
i. Overrides SOLs
1. This doctrine relieves a plaintiff of a limitations bar if he/she can show a series of
related acts to him/her, one or more of which falls within the limitations period
d. Orders of Protection
i. Must be served upon the respondent in order to be valid and enforceable
ii. Can be obtained without giving the respondent prior knowledge
iii. Pros: hold abuser accountable, can make contact by abuser a criminal offense,
empowerment
iv. Cons: brings abuse into public arena, may anger abuser, some violations are hard to prove
V. CASE LAW
a. Feltmeier v. Feltmeier
i. Facts
1. H + W were married for 11 years
2. 2 years after divorce, W sued H for IIED based on his abusive acts throughout their
marriage
3. Acts included: beating her, abusing her in the presence of her children, throwing things at
her, verbal abuse, isolating her, stalking her
ii. Question- whether there was a claim for IIED, whether Ps claims for IIED based on conduct prior
to August 25,1997(2 years ago) were barred by the applicable statue of limitations, Whether the
Ps claim against the D for IIED has been released by the language of the MSA
iii. Holdingcould state a valid cause of action for IIED against spouse + treated as a continuous tort
(i.e., not barred by SOL)
iv. Reasoning
1. Found W complaint stated a proper cause of action for IIED (behavior was extreme
enough)
2. Court applied continuing tort theory (the SOL would not start to run until either the
continuing behavior at issue stopped or the last such act occurred)
3. MSA did not bar Ws claim
v. Rule
1. A victim of domestic violence can properly plead a claim of IIED against her abuserand
acts that constitute a pattern of domestic violence may be treated as a continuing tort

THE ROLE OF COUNSEL
a. Representation for Children506
i. Types:
Attorneyvery rare
Guardian Ad Litemmakes a recommendation, can be called as a witness , cannot
file motions technically
Child Representativedoes not make a recommendation(takes a position), brings
out evidence-based points in court, kind of a combination between attorney/GAL,
can file a written memo
ii. Rules of Professional Responsibilitystill bound even though your client is a child
iii. Paidattorney/GAL/CR must be paid [may be able to get pro bono appointment]
b. Statement of Clients Rights + Responsibilities508(f)
i. There must be a written contract to represent someone in divorce and state the objectives of
representation
ii. This contract must include the language provided in the statute
iii. You should review this with your client at the beginning of the relationship
iv. General Provisions:
Client will make major decisionsnot the lawyer
If you stop representing your client, have to turn over their file
No contingency fees for divorce representation
Must keep client reasonably informed about the status of representation and
promptly respond to reasonable requests for information
v. Also note
Cannot bive a guarantee of what will happen
You should get a retainer
If client doesnt pay, get out
You can refuse to do things if it is against the childs best interests
c. Training605
i. 3 hours of training required
ii. Including training for domestic violence
II. ILLINOIS SUPREME COURT RULES

a. Rule 906Implements training requirements
b. Rule 907Requirements for Attorneys for Children
i. Follow the rules of PR
ii. Attorney has the right to interview the child
iii. Consider what services the family might need
iv. Examine whether there is a way to solve the problem without trial
c. Rule 908Judge Training
i. Judges are required to have training as well
ii. 8 recommended areas for training
III. CASE LAW

a. In re Braun
i. H + W met with attorney together
ii. H returned to talk to attorney by himself
iii. Attorney ended up representing W after speaking with H
iv. Conflict Against Interest
After speaking with them together, could likely not have represented either of them

The intent of the rule against conflicts is violated whenever the conduct of an attorney
raises the possibility that he has or may use the confidences of one client for the benefit of
another
b. Klemm v. Superior Court
i. H + W wanted divorcethey were in agreement over child support and custody
ii. Had a family friend represent themjudge thought there was a conflict of interest
iii. Appellate Court found this was permissible
Wherein the conflict was only potential, that if the written consents were knowing and
informed and given after full disclosure by the attorney, the attorney can appear for both of
the parties on issues concerning which they fully agree.
There is difference b/w potential conflict and real conflict
iv. Illinois . . .
Informed consent + full disclose = you can do this
BUT YOU NEVER SHOULD
You should tell potential clients from the start that you cannot represent both
c. In re Rinella
i. Attorney was suspended for 3 years until further order of the court
ii. Had sex with clientsfelt like they had to have sex with him for sake of their case
iii. Court said that the rules of professional responsibility step-by-step guide this was wrong.
iv. Nature of family law = clients are in an extremely emotional/fragile place overreaching
IV. Presentation/speaker
a. Enrico Mirabelli
i. Beerman, Swerdlove.
ii. Distinguished service
Filed first hague convention case
iii. ardc always report divorce counsels
Divorce lawyers do not make any money
b.

PROPERTY & MAINTENANCE
a. DISPOSITION OF PROPERTY503
i. Different Types of property (subsection a)
1. NON-MARITAL PROPERTYnon-marital property is not shared
a. Types:
i. (1) Gifts, legacy, or descent,
ii. (2) Property acquired in exchange for property acquired before
marriage or for #1 type of property
1. ex. Bought stock with inheritance money before marriage.
This stock would be nonmarital)
iii. (3) Property acquired by a spouse after a judgment of legal
separation
iv. (4) Property excluded by valid agreement of parties (including
premarital or postnuptial agreement)
v. (5) Any judgment or property obtained by judgment awarded to
spouse from the other spouse, except if required for insurance and
recovery related to amounts advanced by the marital estate
vi. (6) Property acquired before marriage,
vii. (6.5)Property acquired using non marital property as collateral,
subject to reimbursement (non marital subject to reimbursement)
1. But if marital estate advanced money for something that
was non marital. The marital estate can be entitled to
reimbursement
a. For instance: you used married money to pay for
mortgage your husbands home that he owned
previously before you got married.
viii. (7) Increase in value of (1) to property acquired through (6),
ix. (8) Income from (1) to (6) of property if not attributable to the
personal effect of a spouse
2. Marital Estateeverything is earned after marriage is presumed to be part of
marital estate (except for those 8 things)doesnt matter how property is owned
3. Note
a. *property acquired b4 marriage that would otherwise be non marital shall
not be deemed marital bc acquired in contemplation of marriage
b. court shall make specific factual findings as to classification as martial or
non marital
ii. Presumption of Marital Property Generallyall property acquired by either spouse after
the marriage and before a judgment of dissolution of marriage or declaration of invalidity
of marriage (including non-marital property transferred into some form of co-ownership
between the spouses) are presumed to be marital property, regardless of whether title is
held individually or by the spouses in some form of co-ownership such as joint tenancy
1. you can overcome the presumption if you show by clear and convincing evidence
that the property was acquired by method listed earlier or done fore estate or tax
planning purposes or for other reasons that establish that the transfer was not
intended to be a gift
iii. Common Issues: (intangible assets)

1. 5/503(b)(2)- Pensions, IRA, defined contribution plans
a. QILDROQualified Illinois Domestic Relations Order
b. Spouses may have multiple pensions

c. Presumed marital if set up after marriage, (if set up before
marriage non marital)
i. Presumption can be overcome by allocation/classification as non-
marital pensions
2. Stock Options5/503(b)(3)
a. Must allocate even if value is unknown
b. Factors
i. All circumstances of grant including vesting schedule to determine
if based on past, present or future efforts;
ii. Length from grant to option
3. Life insurance
a. If marital, court to allocate:
i. Ownership
ii. Right to receive benefits
iii. Obligation to pay premium
iv. To be done equitably at time of judgment
b. Make sure you have your client look at who is the beneficiary for all these
things
iv. AFTER CLASSIFYING, address:

1. Comminglingmixing together with a loss of identity. If no loss of identity,
property of contribution estate
a. Joining of money in savings acct
2. Transmutationone type of estate becomes another
3. Contributionone estate gives to another property or personal effort (significant
and results in substantial appreciation)
a. One puts contribution into another and want reimbursement
4. Reimbursementpay backbut must be retraceable by clear and convincing
evidence, must not be a gift
5. Other notes
a. Comingled Marital + Non-Marital Propertywhen marital and non-
marital property are commingled by contributing one estate of property
into another resulting in a loss of identity of the contributed property, the
classification of the contributed property is transmuted to the estate
receiving the contribution
b. ReimbursementWhen one estate of property makes a contribution to
another estate of property, or when a spouse contributes personal effort
to another estate of property, or when a spouse contributes personal
effort to non-marital property, the contributing estate shall be
reimbursed from the estate receiving the contribution notwithstanding
any transmutation
c. The court may provide for reimbursement out of the marital property to
be divided or by imposing a lien against the non-marital property which
received the contribution
v. ASSIGN VALUE: IL (EQUITABLE DISTRIUBTION STATE)
1. Assign value to all marital property without regard to marital misconduct
2. Divideequitable distribution (fair, but within judicial discretion)
a. Non-maritaleach spouse receives their non-marital property
b. Marital Misconduct factor for determining division
3. Considerations: DIVISION OF PROPERTY LOOKS AT THESE FACTORS

a. Contributionthe contribution of each party to the acquisition,
preservation, or increase/decrease of the marital or non-marital property,
including:
i. (i) any advance from marital estate for attorneys fees,
ii. (ii) the contribution of a spouse as a homemaker
iii. (iii) whether the contribution is afer commencement of action
b. Dissipationof marital or non marital property = using marital property
for a non-marital purpose when an irretrievable breakdown of the marriage
has begun (but cannot go back further than five years)
i. Special notice requirements
ii. May be issue of fact re when breakdown began
iii. Watch for random gifts to other people
c. Other Considerations:
i. Value of property assigned to each
ii. Duration of marriage
iii. Relevant circumstances of each at the time of divisionincluding
desirability of giving home or time in home to spouse having
primary residence of kids
iv. Any obligations/rights from prior marriage
v. Any pre-nuptial agreement
vi. Age, health, and other personal factors
vii. Who got custody
viii. Whether apportionment is in lieu of in addition to maintenance
ix. Reasonable future prospects of each
x. Tax consequenceschild support is non-taxable
vi. Date of valuation
1. Court has discretion to use
a. Date of trial or other date agreed by parties or ordered by the court within
its discretion
i. Why does this matter?
1. Certain properties can go up or down depending on the
date
vii. 503(g) Trusts
1. If necessary to protect and promote best interests of the children the court may
make a trust or separate fund:
a. Set aside from jointly or separately held estates of the parties;
b. For support, maintenance, education, physical or mental health of any
minor, dependent or incompetent child of parties
viii. 503(h) and (i)
1. If an appeal and remand--unless specifically directed or good cause showndont
consider increase or decrease in value of marital or non-marital property
2. Can order sale of property and apply proceeds as determined by court
ix. EQUITABLE PROPERTY CONT.
1. Marital property is divided in just proportions
2. Court considers all the factors including non-financial contributions
b. MAINTENANCE504
i. Marital Misconductmaintenance is determined without regard for marital misconduct
ii. Determined in amounts and for periods of time Court deems just
iii. Reservationmust be decided eventually
iv. Typestemporary (rehabilitative) + permanent (really no such thing. . .)
1. temporaryconsider:
a. When does it end? Can it be reviewed? Who has BOP?

b. What happens if not reviewed? What do you expect the recipient to do or
accomplish before the review?
2. Permanentusually wont happen possibly in a long term marriage where
theres an issue with employability or health of one spouse
a. Really maintenance can always be modified
3. In Grossdetermine lump sum (cannot be modified) + is paid over period, when
paid its done(this will be eliminated by Jan 1)
v. Statutory Factors:
1. Income and property of each including marital property receiving and non-marital property
assigned as well as financial obligations imposed in dissolution,
2. Needs of each,
3. Realistic present and future earning capacity,
4. Any impairment of that earning capacity due to domestic duties or foregoing or delaying
education or career opportunities,
5. any impairment of realistic present or future earning capacity of party who will pay
6. Time to get on your feet or whether you have kids and need time to raise them,
7. Standard of living during the marriage,
8. Duration of the marriage,
9. Age, health, station, occupation, amount and source of income, vocational skills,
employability, estate, liabilities and needs of each
10. All sources of public and private income
a. Including disability and retirement
i. Cannot divide up social security
11. Tax consequences
a. Maintenance counts as income and is taxable
b. Child support is not income so not taxable and no deductible
12. Contributions of party seeking maintenance to the education, career, or license of the other
spouse,
13. Any valid agreement, and
14. Any other factor the court expressly finds to be equitable
15. DONTT FORGET ANY FINANCIAL OBLIGATIONS - MORTGAGE
vi. DETERMINING AMOUNT AND DURATION

1. Use guideline if:
o (1) Combined gross income of under $250,00 AND
o (2) Payor has no child support or maintenance obligation or both from a
prior relationship
Court to follow UNLESS finding that the guidelines would be
inappropriate
IL state bar association
a. Because maintenance fairly routine up north, didnt seem fair economic
disparity throughout state of Illinois
2. Do not use guidelines
o if over $250,000 or other circumstances
o Want to argue to deviate from the guidelines because it will not be
equitable
vii. AMOUNT GUIDELINES
30% of Payors Gross 20% of payees gross =amount of maintenance
o UNLESS amount of maintenance added to payees gross may not be
over 40% of combined gross income of both
Example:
o The numbers
Higher earner makes $100,000
Lower income earner makes $50,000
Combined gross is $150, 000

o First step of Equation
Payors gross= $100,000 x .30= 30,000
Payees gross= 50,000 x .2= 10,000
$30,000 (30% of Payors Gross) $10,00 (20% of payees
gross) = $20,000 amount of maintenance
o 2nd step
If you do .4 x $150,000(combined gross income) = $60,000
BUT payees gross of 50,00 + 20,00= $70,00, which exceeds
60,000, so Payee can only get $10,000 is Maintenance
viii. DURATION GUIDELINES
Length of Marriage TIMES (.2 through .8 depending on length of marriage)= how long
will receive maintenance
o 0-5 years: .2
o 5-10 years: .4
o 10-15 years: .6
o 15-20 years: .8
o 20+ permanent or length of marriage at Judgess discretion
Hypothetical/in-class exercise
First, subtract 30%(high earner) 20%(low earner)=N
Then N + low earners salary= X
Then X -
High earner: $125,000
o 30%: $37,500
Low earner: $50,000
o 20%: $10,000
Total Gross: $175,000
o 40%: $70,000
Length marriage: 10 years 3 months
Answer:
o Amount:
37,500-10,000= 27,500
27,500+50,000= 77,500
77,500-70,00= 7,500 reduce 27,500 by 7,500 = $20,000
o Duration: 6.15 years
10.25yrs x .6= 6.15 years
Assume the soon-to-be-ex-husband grosses $50,000 a year, and his wife earns $30,000. Thirty
percent of $50,000 is $15,000, and 20 percent of $30,000 is $6,000. Subtract $6,000 from
$15,000, and voila the husband owes the wife $9,000 a year in maintenance. Simple enough.
But things arent so simple in this example, because that $9,000 payment would push the wifes
annual gross over the40-percent-of-combined-income limit. How? If you add $50,000 plus
$30,000, you get $80,000, 40 percent of which is $32,000. That $32,000 $2,000 more than the
wifes annual gross thus constitutes the cap on her income after maintenance. Therefore, the
husband in this case owes the wife only $2,000 per year under the formula. (Note that the
higher the payors income is in relation to the payees, the less likely the 40-percent rule is to
limit the payees award.)
ix. If not using guidelines

1. Set after considering all relevant factors in section(a) of this section
x. Findings required

1. Reasons for awarding or not awarding including reference to each relevant factor
2. If deviate from guidelines: amount of maintenance under guidelines and reasons
for deviating from guidelines
3. 504(b-3) Gross income= all income from all sources before deductions
4. 504(b-4) Unallocated can t order in judgment or post judgment cases unless
parties agree
5. Can order in pre-judgment cases
6. B-4.5 Fixed term maintenance under 10 yearscan designate termination date as
permanent termination
7. 5/504 (b-5) interest on maintenance- simple interest
8. Under IL law 9%
9. 5/504(b-7) --is a judgment
10. 5/504(c) on appeal, court shall grant and enforce as reasonable and proper
11. But 5/504(d) shall not accrue while imprisoned for failure to pay
12. Fees in counties under 1 million people if paid through clerk - 504(e)
xi. Life insurance can be used to secure maintenance 5/504(f)
1. Parties can do so by agreement (if no agreement, court can order it)
2. Payor to cooperate
3. Existing insurance, court can allocate who pays; new insurance payee pays
xii. Modification of Maintenance
1. 760 ILCS 5/510 as to insallments subsequent to due notice
a. Modification will only affect installments following the motion to modify
2. Petitioner must show substantial change in circumstances
3. Note:
a. Retirement of payor/change of employment
b. Cohabitation on a continuing conjugal basis- payback
i. Can go back in the past and make the receiving party may be
ordered to pay back the unjust payments
c. Remairriage of recipientnotice (timely) and payback
d. Death
4. Consider all 504 factors plus
a. Change of employment status of each party and their good faith
b. Efforts of receiver to become self-supporting; and if reasonable
c. Any impairment of present/future earning capacity
d. Tax consequences of maintenance payments on each party
e. Duration of payments made and to be made and the length of the marriage
f. Property of each including retirement benefits and present status of
property
g. Increase or decrease of each partys income since judgment
h. Property owned or acquired since original judgment
i. Any other factor the acourt expressly finds just and equitable
II. CASE LAWTHERE IS INCREDIBLE JUDICIAL DISCRETION HERE.

a. Laing v. Laing
i. Court determined that a non-vested pension was a marital asset
ii. Dispute = over how it should be divided between the former spouses
iii. This court (and Illinois) found that it would be unfair to divide based on present value
1. Instead applies reserved jurisdiction approach (QUILDRO)
2. The trial court retains jurisdiction and orders the employee spouse to pay the former spouse
a fraction of each pension payment that is actually received.
a. Once vesting occurs, the portion of the pension that is marital property can be
calculated as of the time of divorce and the non-employee spouses share can be
payable in lump sum or in installments.
iv. Solution = QUADRO (federal) [QUILDRO (IL)]

1. Most large companies have HR departmentsan order will be drafted saying a spouse is
supposed to get a certain percentage
2. QUADRO/QUILDRO = will direct how much from each fund should be paid to each
spouse
v. Basically pensions are martial property
b. Postema v. Postema
i. W was a nurse, H went to law school
ii. Issue = whether or not law degree was a marital asset
iii. Appellate court determined that because the degree was determined to be the product of a concerted
family effortW was entitled to $$
1. In Illinois the degree is not an asset this would be addressed through contribution or
maintenance and not considered marital property
c. Elkus v. Elkus
i. Facts
1. H and W were married for 17 years
2. During the course of the marriage, Ps career succeeded dramatically and income rose
accordingly
3. While married, H traveled with P, photographed her for things, critiqued her performances
4. H was also Ws voice coach and teacher for 10 years
5. H argued that he sacrificed his own career as teacher/singer to devote himself to Ws career
ii. ISSUE: Whether Ps career and/or celebrity status constituted marital property subject to equitable
distribution.
iii. Basically you have property interest in the income resulting from enhancement by your
skills/contribution
d. Finan v. Finan
i. Whether a trial court determining financial orders in dissolution cases may consider a
partys pre-separation dissipation of marital assetsi.e. whether trial courts should
consider both pre- and post-separation dissipation of marital assets when entering
financial orders
ii. Court said you can consider it, but temporal limitation. Dissipation must
1. Be in contemplation of divorce
2. Or when marriage is in serious jeopardy or undergoing an irretrievable breakdown
iii. Similar to Illinoisconsider dissipation
iv. Illinois can go back 3 yrs to when the conduct began prior to the physical separation
e. Tucker v. Tucker
i. In Illinois you cannot consider marital misconduct (maybe in pre-nup)
ii. In Missouri, you canbut it has to relate to some kind of financial loss
f. Dykman v. Dykman
i. Court gave W alimony even though she was 51 and H was 85
ii. Court can consider $$ that was spent on other women (can only go back 5 years if she did
not know about it)
g. Zells v. Zells (IL)
i. Goodwill = if your name is on the door, certain people will come to you AND this is
considered in marital property for purposes of property distribution and maintenance award
ii. Goodwill divisible in Illinois, but will be considered in property distribution (i.e.,
valuation of assets)
iii. Contingent fee contracts are not marital assets, and goodwill is adequately addressed by
considering the statutory factors included in IMDMAthus, goodwill is not a separate
marital asset that will be subject to valuation and division.

CHILD SUPPORT
a. OVERVIEW:
i. Illinois is a guideline state which is mandatory unless the court makes a finding that
guidelines are inappropriate after considering factors
1. Guidelines:
a. 1 child: 20%, 2 children- 28%
b. 3 children- 32%, 4 children 40%
c. 5 children 45%, 6 or more 50%
ii. If court deviates from guidelinesmust explain why they are deviating
1. court makes a finding that the guidelines are inappropriate after court after
considering the best intersts of the childincluding by not limited to:
a. financial needs and resources of the child
b. financial needs and resources of the parents
c. the standard of living for child if no divorce
d. physical, mental, and emotional needs of the child
e. educational needs of the child
iii. Either spouse can be ordered to pay child support (regardless of fault)
iv. Consider the best interests of the child + other factors listed (non-exclusive list of factors)
v. Child support can be reserved
b. DETERMINING NET INCOMEall income from all sources minus the following:
i. Maintenance is not considered part of net income
ii. Reasonable and necessary repayments of debt for production of income
iii. State and federal tax
iv. Social security + Medicare
v. Mandatory retirement paymentsrequired by law or as condition of employment
vi. Union dues
vii. Dependent and individual health/hospitalization insurance premiums
viii. Prior obligation of support/maintenance that are actually paid per court order (older
family comes first)
ix. Maitnencance paid in this case to person receiving
x. Reasonable and necessary repayments of debt for production of income
xi. Medical expenditures to preserve life or health and reasonable expenditures for the child or
other parent exclusive of gifts
xii. Foster care payments by DCFS
xiii. Court ordered health insurance payments
c. Coming in July 2017
i. income shares, child support will be based on the combined income of both parents
ii. each parent pays a prorated share of child rearing expenditures
iii. those expenditures are based on a table dont have yet
1. table will include: housing, clothing, food, transportation, entertainment, and misc
out of pocket expenses(out of pocket health care, personal care, education and
reading materials
iv. net income will be gross minus either standardized tax amount or individualized tax
amount or net income by party agreement
d. ISSUES DETERMINING NET INCOME:

i. Life Style Analysiscourt can order support in a reasonable amount based on life style
1. Retro-active Supportif ordering retroactive support where there was no
jurisdiction previously, rebuttable presumption that net was same then as it is now
ii. Failure to Appear

1. If there was proper service on the non-custodial parent of a discovery request, +
2. The non-custodial parent failed to comply and failed to appear,
3. Then, any information received pursuant to a subpoena with proper notice shall be
admitted without further foundation
4. Good service In an action to enforce child support, personal service or
mailing to the last known address of the respondent is good service
iii. Failure to Pay
1. Failure to pay = punishable as contempt [indirect civil]
a. Failure to report if not current for 60 days = indirect criminal contempt
2. Additionally, court can place them on probation, sentence to periodic
imprisonment (work release), up to 6 months with release for work and all or part
of $ money earned paid for support
3. Can pierce corporate veil if unity of interest and ownership shown
4. Can suspend drivers license if delinquent 90 days or more can give hardship
license for work
5. Business Ownerif parent guilty of contempt, runs a business or is self-employed,
court can order them to provide financial statements with incomes and expenses,
seek employment with job diary, report to department of employment security
iv. Unpaid child support obligation accrues interest
v. Unpaid support becomes a judgment and can be enforced as such when due
vi. New Employment
1. Obligor must notify within 7 days of new employment, access to health insurance,
new residence or phone number
e. TERMINATION OF CHILD SUPPORT

i. Termination Datesupport orders must contain a termination date
1. Unless agreed in writing, support cannot terminate no earlier than 18 years old,
graduation from high school, or 19 years old [if not out of high school by 18,
wheichever comes first HS graduation or 19]
2. Arrearages do not end.
f. Other notes
i. Child support orders must require either parent to report in writing to other parent and the
clerk within 10 days any new employment or termination of of employment
ii. If new employment, must report name and address of new employer
iii. Failure to report if not current in payments for 60 days is indirect criminal contempt
iv. Bond set in amount of arrearage
v. Both parents to notify of change of address
vi. Within 5 days except for certain circumstances
g. Unemployed supporting parent 5/505.1
i. Court can order to seek employment keep job diary
ii. Job training through various agencies
iii. Special public aid provisions
1. Pay past due amounts per a court approved plan or; if unemployed get job
training and job search help
h. MODIFICATION
i. Modification will only apply to amounts due after the motion to modify is filed
ii. Substantial Changepetitioner must show a substantial change in circumstances (except
Public Aid cases or if needed for health care of child
iii. Property Dispositionwill not be affected by a modification of child support. To modify
property disposition, court would have to find that the judgment should be re-opened
iv. Deathdoes not end the right to collect support or petition for educational expenses
i. SUPPORT FOR EDUCATIONAL EXPENSES for NON-Monor Child 513

i. Court can order parent to pay
1. Educational expenses (college, vocational or professional, but also HS if
age 19) .
2. court can order either or both parents to pay up to bachelors degree; ends
at 23 except for good cause then 25
3. fasfa & other financial aid forms
4. cost of up to 5 applications, 2 standardized exams; and 1 prep class
5. Except for good cause, cost of tuition fees and room and board are not to
exceed of U and I at U/C cost for in state
6. Medical expenses, including insurance, and dental and reasonable living
expenses for resident or living at home (food, utilities and transportation)
7. $ to child, either party, school, or trust or special account
8. Supporting parent gets access to transcripts and name of school (unless
safety reasons); not to non academic records
9. ends : if not maintaining C average, except for illness or good cause; age
23; bachelors degree; marries; but: armed forces, incarceration or
pregnancy does not terminate authority of court to order
10. Accounts established before dissolution are a resource of child excpet for a
perents contributions after judgment;
a. Child not a 3rd party beneficiary except for death or disablity of
party who could file;
i. Child can only sue if other parent died or disabled
i. Factors for Educational Expenses:
1. Present and future Financial resources of both parents, including but not limited
to savings for retirement
2. Standard of living that child would have enjoyed if not for divorce
3. Financial resources of the child
4. The childs academic performance
ii. Can only get for expenses from date of filing a petition
iii. The right to enforce prior to obligation to pay may be enforce b/4 or after obligation
incurred
j. SUPPORT FOR NON-MINOR CHILDREN with a Disablity 514.5
i. Support May Never Endcourt can order support, even after child reaches majority, if
child is mentally or physically disabledcan order the support be paid forever.
ii. Can be out of property or income of both or estate of a deceased parent
iii. Money can go to parent or into a trust for the benefit of the child
iv. Application can be made b4 or after the child has attained majority; but unless application for 513
expenses are filed, the disability must have arisen while the child was eligible for support under 505
or 513
v. Court shall consider
1. Present and future Financial resources of both parents, including but not limited to
savings for retirement
2. Standard of living that child would have enjoyed if not for divorce
3. Financial resources of the child
4. Other governmental resources available to the child
k. Note
i. NEW LAW
1. limits parents responsibilities to pay post-high school education expenses so that the max
amount a party could be ordered to continued is set at the cost of in-state attendance at Uni
of Ill-Champagne-Urbana not including medical and living expenses
ii. NEW LAW
1. Any onligation must be incurred before childs 23td birthday unless good cause can be
shown
2. Even if good cause is shown, no award can ever be made after childs 25 th birthday

3. Also parents obligation to pay will terminate if child does not maintain C average among
other things
II. CASE LAW

a. Schmidt v. Schmidt
i. If judge is going to deviate from guidelinesmust clearly explain why
ii. Within judges discretion to possibly grant support to W while H has possession of child
b. Solomon v. Findley
i. Mom went contempt route bc you can require other to pay or they go to jail. Here the court said
court cannot order via a contempt order. The court said no its contract
ii. Spouse can agree via MSA to accept duties (that would be enforceable under K theory) beyond child
turning age of majorityagreed to pay for educational expenses
iii. Contract theorycould possibly hold one spouse in contempt (reason for pursuing in divorce court)
iv. In IL what would happen?
1. Need to file before they start school
2. MSA is the contract b/w the parties usually it says you will work it when it comes to
that point.
3. Usually says we will figure it out according to the statue
4. You must file a petition, asking the person to file.
a. Promise to pay is worth the paper that its written on
b. Even if you went through equitable estoppel most likely not going to get a
judgment
c. Curtis v. Kline
i. Constitutionality of statute that allowed court to order contribution to educational
expenses
ii. Judge agrees with the dissent
iii. IL has statute, this doesnt mean tha someone ewill be ordered to pay
iv. If you deviate from guidelines, must say why
d. Ainsworth v. Ainsworth
i. Found there was some legal obligation to support step-family (not in IL)
ii. A judge can always deviatesupport of step-family could still be considered in IL
iii. Right now IL law: 1st in time, 1st in right
1. So in total income of father is 100k, 2 children, each different moms
a. First child would get 20 percent of 100k
b. Second child woud get 20 percent of 80k (you deduct prior support order to get
dads total income)
e. Eunique v. Powell (SCOTUS 2002)

i. W was denied passport because so much in arrears for child support
ii. Rational connection between passport denial and not paying child support
iii. State has a legitimate interest in making sure payments are made
iv. You cannot impede on ability to travel within state
f. Turner v. Rogers (SCOTUS 2011)

i. Key issue when holding party in contempt = determination re ability to pay
ii. If the custodial parent (entitled to receive support) is unrepresented by counsel, the State need not
provide counsel to the non-custodial parent (required to provide the support). However, the state
must nonetheless have in place alternative procedures that assure a fundamentally fair determination
of the critical incarceration-related questionwhether the supporting parent is able to comply with
the support order.

ALTERNATIVE DISPUTE RESOLUTIONS
I. ILLINOIS SUPREME COURT RULES
a. Rule 905Mediation
i. Mediation is required for parents who are already in conflict over parental responsibility,
visitation, removal, and other non-child support issues related to children unless there is an
impediment such as DV, substance abuse, or mental health disorders.
1. Cook County parents will be referred to Family Mediation Services if they
cannot agree to a mediator.
2. Mediation may be order for non-child related issues
ii. Mandatory training for mediators
iii. There mst be statistical reports made regarding mediation results in court
iv. Types:
1. Mediation3rd party is neutral
2. Arbitration3rd party is going to make the decision (could be binding or non-
binding)
3. Collaborative Divorcelawyers agree to not go to court except for the prove-up;
if collaborative law breaks down, the lawyers have to withdraw
v. Topicscustody and removal (in divorce and paternity cases)
1. In Illinois, you must mediate custody + visitation
vi. Mediation Agreementjudges should only reject a mediation agreement if it is
unconscionable or a manifest injustice
II. Secondary Sources

a. More follow-through with orders if clients self-select
b. Benefits of ADR = efficient, cost-effective, more self-determination, preserve resources, preserve
relationships, more control over outcome
c. BRIGID DUFFIELD PRESENTATION

i. Ways Clients End up in Mediation:
1. (1) Self-select in (private mediation)
2. (2) Court-ordered mediationreached an impasse, mediation = way of settling
3. (3) Court-annexed
ii. When do Clients End up in Mediation:
1. Can go to mediation during, before, or after litigation
2. However, people will not revolve the issue unless they are ready
iii. Impairments to Mediation:
1. Domestic Violence
2. Alcohol/drug abuse
3. Mental illness
4. Litmus test = Can the parties negotiate in their best interest?
iv. Set-Up of Mediation:
1. Shuttle Mediationseparate completely, mediator is managing back and forth
(DV)
2. Caucus Mediationstart together and then separate
v. Agreement:
1. Private Mediationlawyers will dictate how agreement should be entered. Generally, the
attorneys will draft documentssometimes lawyers will want memo from mediator.
a. Mediators do not draft documents unless lawyers request
b. Memorialized agreement
2. Court Ordered
a. Mediator drafts letter or report
b. Mediator does not draft settlement
vi. Mediator SHOULD NOT serve as Attorney.

1. Mediator can serve as attorneybut should not!
vii. NARROWif nothing else, mediation can narrow the issues/disagreements between
parties
III. CASE LAW

a. Ferguson v. Ferguson
i. $185,000 = Ws share of equity H was arguing that there was no equity in the house
ii. This was a mediated agreement (contained in MSA)a deals a deal.
iii. Court refused to allow impossibility defenseit was not totally unforeseeable that the market would
collapse
iv. Anticipate contingencies!
v. A deal is a deal , absent fraud or distress, it will be held.

MARTIAL SETTLEMENT AGREEMENT
a. AGREEMENT502
i. Formcan be written or oral
1. Put it in writing unless good cause shown with the approval of the court before
proceeding to an oral prove up
2. May happen right before going to trial
3. Can do oral prove-up and then deliver written MSA
4. Error to only submit based on oral agreement
5. If there is a discrepancy between what was said versus what is written, written
agreement controls.
ii. Must Include:
1. Child custody
2. Support not taxable
3. Visitation
4. Maintenance IF WAIVED, ITS FOREVER
a. Person who receives taxable
b. Person who gives- deductible
5. Property Distribution
a. Taxable basis in a divorce situation, whatever basis was at time of
purchase versus what it is now
6. Should include attorneys fees
iii. Effect:
1. Bindingbinding on the court except as to child support/custody/visitation unless
court finds that they are unconscionable
a. Unless otherwise provided for, the MSA will be set forth in the judgment
b. If judge find something unconscionable judge usually instructs parties to
renegotiate or else they will have trial
2. Not Unconscionableother provisions must not be unconscionable
3. Not Modifiableparties can expressly say that as to maintenance and property, the
parties can make it non-modifiable
4. Child Support/Visitationpayment of child support and visitation are not legally
connected, but practically speaking they are connected
iv. 513 post majority support
1. parental allocation can be modified if there is a showing of substantial change of
circumstances
2. property is NON modifiable
3. judgment can preclude modification of other things but child related issues because
of change in circumstances
v. Taxes
1. Who gets dependency exemption?
2. Whoever gets custody or primary allocation of parental responsibility would
normally get the dependency exemption unless parties agreed otherwise
3. Joint tax return can do this or not is determined by your marital status on the last
day of the year
4. Child support- neither deductible or included as taxable income
5. There is no gain or loss recognized when the title of any property is transferred in
divorce
II. CASE LAW

a. Edwardson v. Edwardson (KY) Should courts look at MSA + determine whether this is a good
deal?
i. KY Standard = (1) full disclosure + (2) not unconscionable at the time it is being enforced
ii. Court analyzed whether or not MSA was permissible deal at time of enforcement
iii. Prenumptual agreement are enforceable
b. Simeone v. Simeone (PA) Should courts look at MSA + just enforce it?
i. Attorney presented W with pre-nupt the night before wedding
ii. Court decided to enforce it via contract law (a deals a deal)
1. No requirement that you have to consult with lawyer
c. Illinois Approach
i. Just enforce it!
ii. Does not matter if it was a good deal at the time you entered into it
1. But there must have been full disclosure
iii. Will be enforced under contract principles
iv. MSAs v. Pre-Nupts
1. For MSAs, courts have to make sure that its not unconscionable when its entered,
but if its been entered, it will be enforced under contract principles
2. For pre-nupts, a deal is a deal in Illinois
d. Duffy v. DuffyOral MSA

i. H decided to start paying $2000 instead of $5000 in support
ii. H should have considered contingencies like possibly losing his job
iii. MSA was enforceddeals a deal.
iv. Illinois Approachan oral MSA would have been allowed + case would come out the
same

ADOPTION
a. Juvenile Court Act Overview
i. Main GoalIf possible to do so, kids are to be kept in their homes
1. Everything should be done with humane concern
ii. Procedural Rights: minors have the same procedural rights as adults unless specifically
precluded by laws which enhance the protection of such minors
iii. Concurrent Planningshould occur in most cases
1. (1) working to solve problem why case came into the system
2. (2) back-up plan for the future
iv. Expedited TerminationUnder some extreme circumstances, you do not have to go
through all the normal steps
1. If parents have already had another children removed and TPR
2. Chronic abuse
3. 1st degree murder
4. sex offenses
5. torture
6. other children are terminate
7. parent who are never gong to be able to care for children (mental)
b. NEGLECT
i. Child is under 18 years old
ii. Not receiving proper or necessary support, education, medication, or other remedial care
iii. Child must receive necessary care + adequate food and shelter
iv. A child is not neglected if left with another responsible adult
v. Environment injurious to welfare
vi. Children who test positive at birth for drugs/alcohol
vii. Kids being left home alone
viii. Newborn protection act: if you drop baby off with another human then no neglect
ix. Remain ward of the court till 19 and can be extended until 21
c. ABUSE
i. Under 18 member,
ii. Statute identifies a group of people as possible abusers:
1. Parent, immediate family, person responsible for the minors welfare, or any
person who is in the same family or household as the minor or individual residing
in the same home as minor, or a paramour
iii. Loss of bodily function, disfigurement, impairment, non-accidental abuse
iv. Affirmative action
v. Involuntary servitude
vi. Sexual servitude
vii. Excessive corporal punishment
d. DEPENDENCY
i. Child without parent or guardian
ii. Child without proper care (because of their parents conditions)
iii. Without proper medical care through no fault of parent
iv. If someone is dependent, parents cannot lose their parental rights through termination
v. No religious exemption in Illinois
e. DELINQUENCY
i. 705 ilcs 405/5-103 : delinquent minor means any minor who prior to his or her 18th
birthday has violated or attempted to violate, regardless of where the act occurred, any
federal, State, county or municipal law or ordinance
ii. If 16 or older, can be prosecuted as adult (in prison until 21 but subject to exceptions)

f. IL has no brightline test for corporal punishment reasonableness
II. CASE LAW

a. In re B.H.
i. Adoptive/foster mother was charged with excessive corporal punishment
ii. 15 year old and foster mom got in physical fight, mom bit child
iii. Was this excessive corporal punishment?
1. Court said that biting/scratching was beyond bounds of reasonableness
b. Walker v. Superior Court

i. ISSUE: Whether a prosecution for involuntary manslaughter and felony child
endangerment can be maintained against the mother of a child who died of meningitis
after receiving treatment by prayer instead of medical attention.
ii. Other remedial care = provision is IL code as well
iii. CA SC allowed criminal prosecution
iv. Mother had another daughter who was allowed to choose whether or not to be a Christian
Scientist
c. Hernanson
i. Parents were highly educated
ii. They were convicted, but their conviction was thrown out
iii. You can still be subject to criminal penalties despite religious convictions
III. Extended reading notes
WALKER V. SUPERIOR COURT Supplement
Supreme Court of California (1988)
NATURE OF CASE: Medical Neglect
FACT SUMMARY:
- Mother was Christian Scientist
- Four year old daughter died from acute meningitis after provided her with spiritual treatment instead of
medical care
- Shauntay fell ill with flu-like symptoms4 days later had a stiff neck
- called Christian Scientist prayer practitioner and CS nurse to help her daughter
- Shauntay lost weight, grew disoriented, and had a period of heavy and irregular breathing
- Shauntay died after 17 days without medical treatment
ISSUE: Whether a prosecution for involuntary manslaughter and felony child endangerment can be maintained
against the mother of a child who died of meningitis after receiving treatment by prayer instead of medical
attention.
CONCISE RULE OF LAW:
HOLDING: Prosecution was permitted by statute as well as by the free exercise and due process clauses of the
state and federal Constitution. See also #1-5 in bold below.
DECISION:
- (1) Exemption to misdemeanor Child Neglect Statute for parents who utilized prayer treatment in lieu
of medical care did not provide defense to prosecution for involuntary manslaughter and felony child
endangerment
o Overruled earlier case (Arnold) and concluded that 270 exempted parent who use prayer
treatment from the statutory requirement to furnish medical care
Based on language of statute found that prayer could be alternative to medical care
o However, based on the language in the provision exempting parentsonly applied as used in

this sectionlimited this exception to the Child Abuse/Neglect statute
Court noted that conduct that may be legal in one statutory context may be actionable
under separate statutes created for different purposes
Court also analyzed different purposes of child neglect statute and criminal code
Child neglect statute = ensuring that parents take care of their kids
Criminal code = protecting citizens from immediate and grievous bodily harm
- (2) Child welfare statutes providing that children receiving treatment by prayer shall not for that
reason alone be considered abused or neglected did not evince legislative sanction for prayer
treatment of children in life-threatening circumstances
o Legislature knew about this gap and chose to leave the matter unaddressed
They knew parents could be exempt under 270 but liable under criminal code
tried to argue that intent to exempt under 270 is implied in other statutes
Court says no
Court looked to statutes that involved the threat of serious physical harm or
illness to children and noted that the legislature had enabled courts in those
instances to step in
Legislative Intentwhen a childs health is seriously jeopardized, the right of a parent to
rely exclusively on prayer must yield.
o Prayer treatment will be accommodated as an acceptable means of attending to the needs of a
child only insofar as serious physical harm or illness is not at risk
When a childs life is placed in danger, court found no intent to shield parents from the
chastening prospect of felony liability
- (3) Provision of prayer alone to seriously ill child may constitute criminal negligence sufficient to
support involuntary manslaughter and felony child endangerment prosecutions
o argued that (regardless of the religious exemption) she could not be convicted under either
manslaughter or felony child endangerment
o Argued state couldnt prove necessary culpability
o cited to cases from the 19th century
o also argued that she sincerely and in good faith tried to treat Shauntay with prayer
o Court shuts this down too
The question is whether a reasonable person in s position would have been aware of
the risk involved
This inquiry would be based on the objective reasonableness of the s conduct, not her
subjective intent
o Whether this s particular conduct was sufficiently culpable to justify a conviction of involuntary
manslaughter and felony child endangerment was a question for the jury
- (4) Prosecution did not violate free exercise clause of State or Federal Constitution
o To determine whether governmental regulation of religious conduct violates the first
amendment, the gravity of the states interest must be balanced against the severity of the
religious imposition
Governmental interest = protecting childrens lives
Religious Interest = not enough
Noted that there was no sin or stigma involved for mom if she sought medical
assistance
Regardless of the severity of the religious imposition, the governmental interest is plainly
adequate to justify its restrictive effect
Parents have no right to free exercise of religion at the price of a childs life
o The imposition of felony liability for failure to seek medical care for a seriously ill child is justified

by a compelling state interest
Also, found that an adequately effective and less restrictive alternative is not available to
further the states interest in assuring the provision of medical care to gravely ill children
who refuse medical care for their children
- (5) Prosecution under existing statutes did not infringe upon due process by failing to provide notice of
illegal conduct
o Due process requires that a statute be definite enough to provide:
(1) a standard of conduct for those whose activities are proscribed, and
(2) a standard for police enforcement and for ascertainment of guilt
o The statutes in this case did not invite standardless law enforcement
They clearly identified their respective proscriptions
o Is it lawful for a parent to rely solely on treatment by spiritual means through prayer for the care
of her child during the first few days of sickness, but not for the 4th or 5th day?
The law is full of instances where a mans fate depends on his estimating rightly
The matter of degree that persons relying on prayer treatment must estimate rightly is
the point at which their course of conduct becomes criminally negligent
o argued the statutes had inexplicably contradictory command[s]
Court said that the legality of s conduct under 270 was not a command
o Overall there was sufficient notice to that her provision of prayer alone to her daughter would
be accommodated only insofar as the child was not threatened with serious physical harm or
illness
HERMANSON V. STATE Supplement

Supreme Court of FL (1992)
NATURE OF CASE: Parents were convicted of felony child abuse and 3rd degree murder for providing
FACT SUMMARY:
- s daughter died from untreated juvenile diabetes
- H and W were members of First Church of Christ, Scientist
- Charged and convicted of child abuse resulting 3rd degree murder for failing to provide their daughter
with conventional medical treatment
- Both parents were highly educatedno criminal records
- No facts indicating that the parents abused or otherwise neglected their child
- Amys death could have been prevented even up until hours before her death with adequate medical
attention
- When Amy fell ill, her parents had 3 different helpers from the church come pray over her/try to heal
her
- Juvenile Court Hearing
o Dept. of Health and Rehabilitative Servs. Told parents they were investigating before Amy died
o Report = unfounded
- Amys disease progressed slower than Walker
o Month or so got progressively worse
o Sunken eyes
o Blueish skin
o Fruity breath
o Vomiting and constipation
o Weight loss
ISSUE: Was the spiritual treatment proviso contained in the Florida statute for child abuse/neglect a statutory
defense to a criminal prosecution?

CONCISE RULE OF LAW:
HOLDING: When considered together, spiritual treatment accommodation provision and child abuse statute failed
to give parents notice of point at which their reliance on spiritual treatment lost statutory approval and became
culpably negligent.
DECISION:
- Ultimately Founddenial of due process because the statutes in question failed to give parents notice
of the point at which their reliance on spiritual treatment loses statutory approval and becomes
criminally negligent
- Statutory History
o Exception to Neglect Statute:
A parent or other person responsible for the childs welfare legitimately practicing his
religious beliefs, who by reason thereof does not provide specified medical treatment for
a child, may not be considered abusive or neglectful for that reason alone.
- Procedural History
o State argued
s reliance on Christian Science healing practices under these circumstances = culpable
negligence
s were not legitimately practicing their religious beliefs
Suggested that Christian Science church recognizes conventional medical care
o Jury asked for clarifications:
Do Christian Scientists have a choice to go to a medical doctor if they want to?
If not, can they call a doctor at a certain point?
Do they need permission first?
o Jury Convicted them
15 years probation
On appeal, the district court affirmed
- Appeal to Supreme Court
o s raised four issues ( failed to meet burden, 1st Amendment claim, error to allow s
statement)
o Court analyzed the case primarily on procedural due process grounds
Noted that courts at lower levels had been confused by the statutes at issue
Persuaded by State v. McKownlack of clarity between two statutes
State had attempted to take away with one hand what it had given with the other
Disagreed with Walker
The state had trapped s, they had no fair warning of whether their conduct was
criminal
Legislature failed to make clear at which point a parents reliance on his or her religious
beliefs becomes criminalwhatever the legislature chooses, they have to make it clear
Baby Richard case

What happened?
o Basically, Illinois Supreme Court ruled that courts can only consider a best interest if
parent is determined to be unfit which is not what happened so adoption was improper
because dads rights were improperly terminated.
Arguments for bio dad to have rights
o dad tried his best to find out babys existence and found out 3 months after
he immediately asserted his parental rights

o dad should have asserted his rights earlier by hiring a lawyer sooner
o is it really a BI case
instead should have focused on that right of father were improperly terminated and
because of that improper termination, the rest of the case was fucked up
o Its a 2 step process
1. Fitness test
if dad is found unfit, then you go to BI standard
Arguments against dad having kid
o should there be a policy change that adoptive parents must make effort to find natural parents
o Mom really thought that dad had abandoned her and listed him as unknown
o reversal does not mean that Dad should get kids
o There should be a best interst hearing
o Should not take kid away from only parent he knew
o Kid and Dad DO NOT have the same interests
o Since boy was 4years old, he has been with adoptive parents
Legislature created baby richard law, made it so that even if adopted parents fail in petition,
they can keep custodial rights.


MISCELLANEOUS
SHOULD YOU EVER REPRESENT BOTH PARTIES IN A DIVORCE? NO. NEVER.
o Even with full disclosure + informed consent + no apparent conflict between the partiesconflict
may arise. There may be a way to do this without violating any ethics rules, but don't do it.
o 750 ILCS 5/508
New Changes to the Illinois Marriage and Dissolution Act

The revised law eliminates all of the fault-based grounds for getting divorced, leaving the only
grounds of irreconcilable differences.
o NO FAULT
Further, instead of having to prove a statutory period of separation, the new law eliminates the
separation period as well.
These changes shift the focus away from having the parties blame one another for the divorce in
order to allow them to proceed as amicably and quickly as possible.
Procedure
o OLD LAW-There used to be no time limit for court to render final judgment of dissolution of marriage
NEW LAW-NOW court must enter its judgment within 60 days of the closing of proofs or after a
trial.
o OLD LAW- Used to be that hearings for temporary child support and maintenance are evidentiary in nature
NEW LAW - Revised law provide that temporary child support and maintenance can be heard on a
summary basis so no need for comprehensive, evidentiary hearings which applies not pre and post
dissolution
o OLD NAW court must make a decision related to custody within 18 months of filing
NEW LAW parties must submit a parenting agreement within 120 days of filing for divorce
Calculation of Support
o NEW LAW
now lets a child support payor deduct student loan payments in calculating his or her net income
o NEW LAW
limits parents responsibilities to pay post-high school education expenses so that the max amount a
party could be ordered to continued is set at the cost of in-state attendance at Uni of Ill-Champagne-
Urbana not including medical and living expenses
o NEW LAW
Any onligation must be incurred before childs 23td birthday unless good cause can be shown
Even if good cause is shown, no award can ever be made after childs 25 th birthday
Also parents obligation to pay will terminate if child does not maintain C average among other
things
Random
Deputy mike drugan, attorney david levy, and attorney bridget Duffield

Family Law Outline

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Family Law Outline

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Family Law Outline

II. ILLINOIS STATUTES- 750 ILCS Act 5

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 1

d. VALIDITY OF MARRIAGES (213)

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 2

III. CASE LAW

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 3

iii. Zablocki v. Redhail (SCOTUS 1978)

b. ADDITIONAL LIBERTY INTERESTS IN FAMILY LAW

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 4

d. TRADITIONAL MODEL OF MARRIAGE

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 5

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 6

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 7

II. Supreme Court Rules

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 8

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 9

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 10

e. 602. 10 Parenting Plan

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 11

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 12

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 13

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 14

II. ILLINOIS SUPREME COURT RULES

III. CASE LAW

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 15

e. Pusey v. Pusey (UT 1986)

f. In re custody of Halls (Wash, 2005)

g. Hassenstab v. Hassenstab (NE 1997)

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 16

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 17

b. PARENTING TIME VISITATION

C. 602.7. ALLOCATION OF PARENTAL RESPONSIBILITIES: PARENTING TIME

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 18

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 19

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 20

f. 607.5 ABUSE OF ALLOCATED PARENTING TIME

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 21

i. TEMPORARY PARENTING TIME (Visitation)

II. CASE LAW

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 22

b. Troxel v. Granville (US 2000)3rd Party Visitation

c. Edwards v. Edwards --Stepparent

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 23

b. CUSTODY ORDER ENFORCEMENT611

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 24

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 25

h. 60-221- Content of Orders

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 26

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 27

II. ILLINOIS SUPREME COURT RULES

III. CASE LAW

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 28

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 29

iii. Common Issues: (intangible assets)

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 30

iv. AFTER CLASSIFYING, address:

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 31

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 32

vi. DETERMINING AMOUNT AND DURATION

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 33

ix. If not using guidelines

T. Gadbaw Family Law OutlineANDERSON (Fall 2016) 34

II. CASE LAWTHERE IS INCREDIBLE JUDICIAL DISCRETION HERE.