Metropolitan Family Services

July 6, 2008

Policy initiatives

Thoughts on the Rewrite of the Illinois Marriage and Dissolution of Marriage (IMDMA)

The law is an imperfect tool for resolving the many difficult issues that develop when parents divorce or separate; when parents are unable to parent at least temporarily and other adult caregivers step in; and when the parents responsible for the children have never lived together. In other cultures and at other times in our history, other institutions such as the "clan" or "the church" or "the mediator" set the rules and made the decisions. In 2007 in the United States, it is judges in courts who make the decisions.

A morass of conflicting case law has developed during the three decades since the Illinois Marriage and Dissolution of Marriage Act was passed. This is both the result of and the cause of cases that seem to be in continuous litigation. Continuous litigation is always painful for children and their parents or guardians. It is also expensive, draining valuable resources from families who can't afford it and causing court backlogs. Many parents are not represented by counsel when they appear in court on family law matters, creating yet more problems.

It should be noted that many families do separate with minimal involvement from the courts. The problems lie with the approximately ten percent of cases that are very contentious. So, one concern in crafting new policy is to avoid changes which will add unnecessary steps for the families who are able to separate with limited judicial involvement.

In 2005, a committee of the Illinois State Bar Association (ISBA) introduced a new bill relating to custody and visitation into the Legislature. However, bar groups opposed the bill and the ISBA agreed not to move it, choosing instead to meet with a committee set up through the Chicago Bar Association to try to reach a compromise on the issues where they were at odds.

While the negotiations were ongoing, The Chicago Council of Lawyers' Child and Family Law Committee convened a group which included the Sergeant Shriver National Center for Poverty Law, the Legal Assistance Foundation of Metropolitan Chicago, the Chicago Legal Clinic, Coordinated Advice and Referral Services, Metropolitan Family Services and mental health professionals who work with children to develop a position paper around the many topics covered in the rewrite. All partners share a commitment to ensure that the interests of low income parents, custodial and non-custodial, are part of the discussion in any debate over major changes in IMDMA.

The ISBA and the CBA failed to reach a compromise and the ISBA and the Chicago Council of Lawyers have asked that the Illinois State Legislature undertake a through review of the Act.

Metropolitan Family Services brings several perspectives to the questions. The Legal Aid Bureau has deep experience with the child custody issues that are at the root of this issue. The Social Policy Department has a history of representing the interests of low income families with the Illinois State Legislature. Staff from direct service programs including Mentor Moms, The Young Fathers Initiative, Older Caregivers, and General Counseling bring insights into the complexities of family histories- as they come together and break apart- that is invaluable in developing public policy which supports and strengthens families.

Recommendations for the Illinois Legislature's review of the Illinois Marriage and Dissolution of Marriage Act and other related legislation such as the Probate Act, the Guardianship Act, and the Paternity Act as well as laws related to child support and domestic violence as they intersect with these acts.

WHO should be invited to testify?

Lawyers with expertise in family law, adoption, child custody, guardianship, rights of grandparents, child support, domestic violence, and juvenile justice have the insights based on their own case experience which are essential to this discussion.
Child psychiatrists, psychologists, social workers, domestic violence advocates, court-appointed custody evaluators, advocates who handle guardianship cases, and other professionals with insights into the lives of children and their caregivers will add a different slant on the perplexing problems facing judges as they confront challenging family situations.
Families who will be affected by the law need to be heard. This means custodial parents and non custodial parents. It includes the many relative caregivers who step into the lives of children when the parents are unable to care for them. It also includes other guardians and foster parents.
We did not include children because we want to protect children wherever possible from being in a position where they might publicly have to answer painful or shameful questions.

TOPICS for the hearings

Who has the standing to petition for custody? Just biological and adoptive parents? What about caregivers who have raised the child as their own child? What about care giving adults who have lived in the child's household for an extended period of time?
What are the rights of guardians? Should this vary according to how long the child has been with the guardian?
What is proper terminology? Are the terms "visitation" and "custody" out-dated? Are there better words?
Should "joint custody" be assumed under all but situations involving abuse? If yes, why. If no, why not? What is the impact on child support?
How should "decision-making" be divided among the separating parents?
What role should a non-custodial parent who has never lived with the child have in his or her child's life?
What are the ways to decrease the amount of time separating parents and/or guardians spend in court, with lawyers? Is there a role for parenting coordinators; parenting mediators?
Are our current relocation rules outdated? What process and rules would be better suited to today's environment?
Do we need better rules for the replacement of the child's representatives?
Who has the right to see 604 (b) and 604.5 evaluations?
What does "in the best interest of the child," mean? Does it differ depending on the age of the child; the longevity of the relationship?
Should domestic abuse or violence create a presumption against obtaining custody? How should it be considered when determining visitation provisions?

It may not be possible for the bar groups to come to agreement over how the IMDMA should be rewritten because the members represent very different perspectives. We think that an excellent first step is for the State Legislature to hold public hearings to air out the differences, to hear about how other states approach this most difficult task. We will keep readers of this website informed about the changes being considered as the issue is debated in the year ahead.

Kendra Reinshagen, Executive Director, Legal Aid Bureau
Suzanne Strassberger, Vice President, Government Affairs and Strategic Initiatives
April 17, 2007