The newsletter of the ISBA’s Standing Committee on Government Lawyers
Who does the Attorney General represent in child support cases?
I have been an Assistant Attorney General in the Public Aid Bureau of the Illinois Attorney General’s office since 1975. A long-standing issue for the parties and the courts to grasp concerns whom I represent in child support cases.
I represent the Department of Healthcare and Family Services (HFS), the child support enforcement agency for the State of Illinois. Pursuant to federal mandates, HFS provides child support assistance to parents who apply for services and to parents who receive benefits from the State. Child support services include: establishing paternity and establishing, enforcing, and modifying child support orders in court. The Attorney General represents HFS in 89 counties throughout Illinois. In the remaining 13 counties, including Cook County, the State’s Attorney represents HFS pursuant to section 10-3.1 of the Illinois Public Aid Code (305 ILCS 5/10-3.1).
The cases involve obligees who receive child support and obligors who pay child support. The obligor can be either the mother or the father, or both mother and father when the child is living with a foster parent or guardian. The obligor/obligee roles can change in a case if custody changes.
Federal law requires HFS to provide child support services to both obligees and obligors. Therefore, HFS may ask the Attorney General to file a petition to enforce or increase an existing support obligation in one case, and a petition to decrease an existing support obligation in another, depending upon the circumstances and application of the child support guidelines set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505).
Pursuant to law, the Attorney General represents only HFS – not the obligee, obligor, or child. Section 10-3.1 of the Illinois Public Aid Code reads in relevant part:
An attorney who provides representation pursuant to this Section shall represent the Illinois Department exclusively. Regardless of the designation of the plaintiff in an action brought pursuant to this Section, an attorney-client relationship does not exist for purposes of that action between that attorney and (i) an applicant for or recipient of child support enforcement services or (ii) any other party to the action other than the Illinois Department. Nothing in this Section shall be construed to modify any power or duty (including a duty to maintain confidentiality) of the Child and Spouse Support Unit or the Illinois Department otherwise provided by law.
305 ILCS 5/10-3.1.
Additionally, the parent receiving child support services signs a disclosure statement. The disclosure tells the parent:
The Attorney General does not represent you. The Attorney General represents the Department of Healthcare and Family Services exclusively. If you want an attorney to represent you, you must retain a private attorney.
It further advises the parent that:
1. Information revealed during proceedings will be shared with HFS, including unreported child support, excess assistance, and the parent’s financial assets and income.
2. HFS provides child support services to both obligees and obligors, as well as other custodians, guardians, and foster care agencies, which includes setting child support and seeking increases or reductions in support obligations as circumstances dictate.
3. The Attorney General will not participate in visitation, custody or property matters.
4. The parent must tell the Attorney General if they are represented by a private attorney or if they retain one in the future.
Child support attorneys must be ever vigilant that the parties and the court understand that HFS is our only client. Over the years, I have seen judges refer to the obligee as being “present” by the Attorney General. I have also observed obligees say that they were being “represented” by the Attorney General. On occasion, lawyers have sent discovery directed to the obligee to the Attorney General. In all of these instances, the Attorney General must take action to assure that these misunderstandings are addressed and corrected. The law is clear: in child support cases, the Attorney General has one and only one client—the Department of Healthcare and Family Services. ■