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A proposed major rewrite of Illinois' 35-year-old Marriage and Dissolution of Marriage Act has some ISBA matrimonial lawyers feeling encouraged and others concerned.
A massive overhaul of Illinois' family law statutes has been in the works for several years now, and the General Assembly may take final action on a pending bill as soon as this fall's veto session.
House Bill 1452, which is essentially a reintroduced version of a bill that failed to reach a vote last year, has been stalled in legislative committees since February.
One lawyer who helped draft the bill believes it is finally time for lawmakers to amend a body of law that has remained mostly unchanged for more than three decades.
"I think that after 35 years, almost 36 now, of the Marriage and Dissolution of Marriage Act, when you take a look at the changes that have been happening in society since that bill was enacted in 1977, everyone recognizes that we need to analyze the law under the characteristics of today's society," said Peoria-based family law attorney Richard W. Zuckerman. "Those of us who served on the Family Law Study Committee would certainly like to see the results of our work product move forward in some fashion during the next [legislative] session."
Zuckerman, who is a member and past chair of the ISBA Family Law Section Council, said not all lawyers agree on every aspect of the bill, and committee hearings, public meetings and informal debates have continued through this summer in order to iron out the few remaining wrinkles.
In the end, he said there may not be universal agreement on every detail, but he expects the overall product to greatly modernize Illinois' divorce and child-custody laws.
"Some of the positions of other bar associations - not just the ISBA - differ with the current version of the bill," Zuckerman said. "We've been working to reconcile those differences of opinion with the core content of the bill.…There have been discussions over the summer regarding improvements, changes and concerns so we can figure out where all the stakeholders are at."
Pamela J. Kuzniar, a Chicago-based sole practitioner who chairs the ISBA Family Law Section Council and who has been an active participant in the development of family law reforms for several years, said while she favors many of the proposed amendments, she is concerned that some aspects of HB 1452 could create more problems than they resolve.
For example, the bill would codify what it calls an "equitable parent," who is a person other than a child's biological or adoptive parents who would be given legal standing to petition the courts for custody rights. She said there are limited circumstances in which an equitable parent should have standing to seek custody of a child, like when the person in good faith believed he or she was the child's true parent and has spent a lifetime caring for the child.
But the equitable-parenting doctrine could be subject to abuse and should be limited in its scope, if included at all, Kuzniar said. Under the current language of the bill, she said it's possible that a daycare provider who has cared for a child for several years while the parents are working could have standing to petition for custody of that child.
"That could create a situation where parents feel like they have to fire their nannies every year, so the care provider won't qualify for standing under the statute," Kuzniar said. She participated in drafting similar legislation with the ISBA section in 2009, and that version of a bill included certain exceptions that were not drafted into the current bill.
Kuzniar suggested the current bill, like the 2009 proposal, should include express exceptions to the equitable-parent sections to exclude professional childcare providers from having standing to petition for custody. Similarly, Kuzniar said that no parent who joins the military and leaves his or her family for active duty should ever have to worry that a person who cares for the child in the soldier's absence will have standing to petition for custody.
"We want our military to be composed of normal citizens who have children that give them something to fight for and something to look forward to coming home to," Kuzniar said. "You need your frame of mind when serving your country to be on serving your country, not on whether someone is going to petition for custody of your children when you get home from overseas."
The bill would also require divorcing parents to file a "parenting plan" with the trial court within 90 days of filing for dissolution of marriage. Zuckerman and Kuzniar agree that parenting plans are beneficial to parents and children, but Kuzniar said that, under the proposed procedures, the parenting plans would often have to be filed in court prior to any mediation between the parties.
"It seems like there should be a way to get mediation done so that [the parents] can address all the issues in mediation, and then come up with a parenting plan," Kuzniar said.
The bill further proposes to adopt a statutory presumption that it is in a child's best interests to spend at least 35 percent of residential parenting time with each of his or her parents. Kuzniar does not question that it usually benefits a child to spend substantial time with both parents, but her fellow ISBA section members reached a consensus that certain exceptions should be stated that are not included in the current language of the bill.
"We think that the 35-percent time-splitting [section of the bill] should have something in it stating that the court expressly recognizes that there is a clear exception in situations involving domestic violence before you put this 35-precent rule into play," Kuzniar said.
Other proposed amendments would drastically change the causes of action, remedies, rights, and procedures for family law matters. For example, the bill would eliminate all grounds for divorce other than irreconcilable differences, and the mandatory six-month waiting period for that ground would also be repealed. Rather, if the parties were separated for six months or more, it would create an irrefutable presumption that irreconcilable differences exist.
The amendments would require courts to enter judgments no earlier than after the conclusion of the entire case, and would expressly prohibit judgments from being entered after hearing testimony on the grounds only. Further, the bill would require judgments to be entered within 60 days of the close of proofs, unless the court enters an order specifying good cause for a single 30-day extension.
Some less substantive amendments would merely change the way the law sounds to people undergoing marriage dissolutions. For example, the bill would remove the terms "custody" and "visitation" from the Act, to be replaced with "parental responsibilities" and "parenting time," respectively. Rather than "removing" a child to a different jurisdiction, a parent would "relocate" with the child. Yet the word "divorce" would not appear in the Act, with the continued use of the term "dissolution of marriage."
For a more thorough summary of the bill's major proposals, see the the August 8 ISBA Statehouse Review in Illinois L@wyer Now by Jim Covington.