Spotlight on pro bono

In February 2006, the Illinois Supreme Court adopted new rules regarding child custody proceedings. The rules were designed to improve and expedite child custody proceedings, emphasizing the best interest of the child (see Committee Comments of the Special Supreme Court Committee on Child Custody Issues).

While of obvious import to all family law practitioners, these new rules also have a potential impact on recruiting them to provide pro bono representation through legal service providers in these matters. Some may have been reluctant formerly to do so.

Supreme Court Rule 905 is commonly referred to in family law practice lingo as the “mandatory mediation provision” of the new rules.

Specifically, Rule 905(b) requires each judicial circuit to establish programs to provide mediation in cases involving the custody of a child or visitation issue.

Supreme Court Rule 923(a)(3) states, “If there is no agreement regarding custody or a parenting plan or both, the court shall schedule the matter for mediation in accordance with Rule 905(b) and shall advise each parent of the responsibilities imposed upon them by the pertinent local court rules.”

Thus, according to the newly adopted rules, every matter where child custody or visitation issues are in dispute must now first go through mandatory mediation before those issues can be further litigated in court.

The hope is that mediation will accomplish, or at least encourage, amicable settlement of custody and visitation issues without the need for lengthy, expensive and traumatic custody litigation.

While everyone is hoping that these rules have an overall positive impact on children and families, many of us who are committed to equal access to justice are also hoping that these rules may encourage family law practitioners to accept pro bono referrals in these types of matters from local legal service providers.

According to the Legal Needs Study II of low-income Illinoisans, these individuals and families had no legal assistance for more than 1.1 million legal issues in 2003.

In 2003, low-income Illinoisans attempted to resolve approximately 875,000 problems on their own, including domestic violence (68.9%), child custody (62.5%) and divorce (48.5%). See the Legal Needs Study II at www.ltf.org/iolta/legalneeds.pdf.

Family law pro bono referrals, specifically those involving child custody, are always in high demand. However, because of the often lengthy and expensive nature of child custody matters, many private family law practitioners are unwilling or, more often than not, simply financially unable to provide pro bono representation in these kind of cases.

Perhaps, with the new mandatory mediation provision of the new rules, some family law practitioners may be encouraged to take a second look at the prior bleak outlook on these types of matters and commit to at least one pro bono referral from a legal services provider when child custody may be at issue.

Of course, most private family law practitioners, myself included, are hoping to see positive returns on this mediation investment strategy. Many of us are still unsure as to how ultimately successful mandatory mediation will be.

But alas, it does deserve every family law practitioner's genuine effort and enthusiasm to ultimately better serve clients. Similarly, representation of low-income families in these types of matters merits the same consideration.

So, next time you receive a pro bono referral from a legal service provider for a divorce with children, don't automatically reject it.

Rather, review the particular facts of the case and determine what impact, if any, mediation would have on the matter, and seriously consider taking the referral.

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