A Magical Day of Networking In early February I helped organize a Networking Event in Disneyland. All attendees were both attorneys (had to have passed a bar exam) and moms. Professionals who are also parents are a unique niche; we are used to juggling many things at once, and it makes us better attorneys for it. Networking with other working mothers is something I am very passionate about. So, of course, when presented with this opportunity to meet 50+ lawyer moms, in Disneyland, I was all (Minnie) ears! Meeting Up at Sleeping Beauty’s Castle We met up for a morning photo all together in front of Sleeping Beauty castle. Unfortunately, the castle was completely boarded up, because it was under construction. But, we did not let that put a damper on our day! We took some photos, and we wrote our names on our “nametags” (which were Disneyland Park “I’m celebrating” buttons) and made our first introductions. We had some time before our luncheon, and so we rode Pirates of the Caribbean, and took over nearly three entire boats! We took some photographs and chatted away, learning more about one another during the ride. Networking at Disneyland’s Exclusive “Club 33” Next, it was on to our luncheon at Club 33. Club 33 is a coveted social club located in Disneyland park. Membership is extremely difficult to come by and being able to have a meal there is on the bucket list of any true Disney fan. We had a beautiful luncheon, explored the Club, and took the iconic Club 33 photo of our feet by the Club 33 tiles. We chatted away about relevant legal topics, including social justice issues, current events, and issues we face practicing law as working parents. It was wonderful to connect with women from all over the country and from many diverse backgrounds. Attorneys traveled in for this event from Oregon, Texas, Utah, Illinois, and more, but the majority of attendees were from California. There were government attorneys, immigration attorneys, other family law practitioners, and more. After the luncheon, we went into the member’s lounge for additional networking and drinks. The lounge was stunning! We had an amazing time getting to know one another and talking about our practices. Once the formal part of the networking was over, we broke off into groups and took Disneyland by storm. We met a Star Wars Stormtrooper, rode Space Mountain, Indiana Jones, and bought Mickey and Minnie Ears and unique snacks. It was a blast! Proceeds Raised Donated to “Together We Rise” Organization All additional proceeds raised from the luncheon and networking day were donated to Together We Rise, an organization which helps foster children go to Disneyland. Overall, it was a wonderful way to get together and network with like-minded individuals in the happiest place on earth! We are all already looking forward to doing it again in the future. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/a-b-news/lawyer-moms-just-want-to-have-fun/
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QUESTION: My ex has relocated more than 25 miles away with our minor children. Is there a basis for modifying child support? ANSWER: Possibly. There are definitely arguments to be made in regard to modifying child support when there is parent relocation, but it depends on the unique factors of the case. For example, if the transportation costs for parenting time escalate, that could be a basis to modify support. If a parent who previously had to drive across town to have parenting time with their children now has to fly to a different state or spend a significant amount of time driving, resulting in increased transportation expenses, it is arguable that child support should be modified. Typically, this depends on the distance between the parties after relocation as well as before the relocation. Conversely, a parent who moves further away from their children and then has to incur additional expenses to travel to see their children may not have a basis to modify support, as they chose to move further away. However, no results can ever be guaranteed, it is entirely situational. QUESTION: My ex’s income has gone up. How will this impact child support? ANSWER: Possibly. Under the new Illinois statute, this may be considered a substantial change in circumstances where modifying child support modification is possible depending upon how much the spouse was earning before their income went up. Under the new statute, both spouse’s incomes are considered in the child support calculation. So, it is always best to run the child support figures under the new statute with the new income amounts to see if there is, in fact, a substantial change in circumstances, prior to filing. This is the best way to see if there is, in fact, a basis to modify support, because the results can be surprising. The new statute considers how much parenting time as well as both parties’ income and is an entirely different calculation than the formula which was in place prior, which was a straight percentage order. QUESTION: Can I ask for my ex to contribute to health insurance premiums for our minor children? ANSWER: Yes. Child support is modifiable at any time in most cases, so at any point, someone can bring a motion for contribution to the minor children’s expenses. Health insurance is built into the new statute and the way the calculation works, health insurance can be awarded based upon the parties’ income percentages. Under the old law, if the obligatory parent paid the child’s health insurance premium, they could use it as a deduction when calculating child support. This is treated slightly differently than it was before. QUESTION: I quit my job and took a new job where I am earning less money. Can I modify my child support obligation? ANSWER: This depends. The circumstances under which the last job was lost can change how a Court would view this situation. If the job change resulted in a reduction in income, which was voluntary and for the purpose of reducing support, the Court is less inclined to modify the support obligation. When modifying child support is at issue, the circumstances for quitting a job are relevant and can change the Court’s opinion. Anderson & Boback are dedicated to helping you make the best decisions by explaining all your options and taking the necessary action to protect you and your child’s interests. Contact us today for a confidential consultation to learn more about modifying child support. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support-modification/modifying-child-support-top-4-questions/ Parental Alienation is very serious as there is no “cure” if it is allowed to go on for a period of time. A parent cannot get back the time lost and things missed during this unfortunate period of alienation from their child. Depending on how long the alienation has gone on and to what severity, the relationship may be lost for good and the child irreparably harmed.
Most would agree, including the courts, that children need to have a good relationship with both parents in order to grow up with the best chance at becoming productive members of society. Unfortunately, divorce and separation is usually a difficult time for people to see this as important and allow their anger at the other parent to become open and obvious. How Parental Alienation OccursPrimarily, the way parental alienation is done is with:
Not Everything is Parental AlienationNot everything is “parental alienation.” In my experience alienating behaviors by both parents are not uncommon in high-conflict divorces and may lead to estrangement as opposed to Alienation. Parental Alienation is a deliberate attempt by one parent to distance the child from the other parent. On the other hand, estrangement follows conflicts and disagreements or arguments between the parents and child. This leads to some of the same feelings in the child but those feelings are due to the behavior of the parent and lead to estrangement. As an example, the father who leaves his family for another woman and spends time with her and her children and no time with his own children. In this situation, he is likely to become “estranged” from his children due to their feelings of hurt and disappointment. Estrangement is Not Alienation Estrangement results from a parent’s behavior toward the child which causes the child to feel betrayed and not interested in the parent as opposed to Parental alienation which is a parent actively working at causing the child to feel betrayed by the other parent causing the child to lose interest in the other parent. An estranged parent may still blame the other parent for the child not wanting to spend time with them. It is critical to look at the behavior of both parents to find out what is really going on. Also, it’s important to look at the reactions of the parent. A parent who has been alienated is likely to continue to work on the relationship with the child, attempt communication, stay in touch and use the court system to keep fighting for the relationship. The alienated parent will not want to give up. A parent estranged from a child due to their own behavior has a more laid-back attitude of “things will work out” give them time” or let’s wait and see. They may not actively continue to work on the relationship or regularly communicate as they are waiting for the child to “come around.” Whether parental alienation or estrangement, in both cases, the children suffer. If you believe parental alienation is present in your parent-child relationship, please contact our family law attorneys today to schedule a confidential consultation. THE INFORMATION SHARED IN THIS ARTICLE JUST SOME OF THE HELPFUL INFORMATION JANICE BOBACK WILL SHARE DURING HER PROVING/DISPROVING PARENTAL ALIENATION SEMINAR ON MARCH 4, 2019, WITH THE NATIONAL BUSINESS INSTITUTE CONTINUING LEGAL EDUCATION FOR PROFESSIONALS. TO LEARN MORE ABOUT THIS INFORMATIVE SEMINAR AND REGISTER, PLEASE VISIT THE NBI COURSE PAGE. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/parental-alienation-what-it-is/ In a divorce or separation situation, it is not usual to hear there are times a child doesn’t want to see the other parent for parenting time. When couples with children divorce or break up, the court will typically enter what’s called a Joint Parenting Agreement. The Joint Parenting Agreement lays out the responsibilities of each parent as it pertains to the children. These responsibilities include designating the custodial parent, decision-making and parenting schedules. Do I Have to Make My Child See the Other Parent If They Don’t Want to Go? There could be a variety of reasons children do not want to see the other parent. Many times the reasons are minor like the children would rather spend time with their friends. Other times the reasons could be more serious. If the reasons are serious, the obvious question that arises is “do I have to make my child see their other parent?” The short answer is it depends… but most of the time, yes. The most important thing to remember when making a decision is that the Joint Parenting Agreement is entered as a Judgment in Court. This means if a parent does not comply with the Court ordered parenting time there can be consequences, including contempt. Ask WHY Your Child Doesn’t Want to Be With the Other Parent When your child expresses concern or hesitancy to go with their other parent, you should ask why and find out what is behind the child’s concerns. If the concern is not serious, then you need to speak with your child and explain the importance of spending time with the other parent and having a relationship with that parent. This is especially true if you are the “custodial parent.” If the Court has designated you the custodial parent, that means the Court expects you to foster a relationship between your child and the other parent. Serious Concerns May Require an Order of Protection Now, if the concern is serious, you should contact an attorney immediately. Depending on your concerns, you may need to file a Petition for an Order of Protection on behalf of your minor child. If the matter is serious but less urgent, you may need to file a Petition to Modify the parenting time. To obtain an order of protection on behalf of your child, you must show abuse which means harassment, interference with personal liberty or physical abuse. Orders of Protection can be done on an emergency basis. To Modify the parenting plan, you must show a substantial change in circumstances. A substantial change in circumstances can be a variety of issues, such as a change in work schedule or the parent not exercising parenting time. It will be important to contact an attorney to evaluate whether your situation amounts to a substantial change in circumstances. Parenting Plan and Right To See Your Child Now, what if you are the parent not receiving parenting time? You have the right to see your child pursuant to Court order. Again, you should contact an attorney. Motions to Enforce a parenting agreement can be brought to court on an emergency basis, especially if the other parent is refusing especially if it is a special date that you are supposed to have parenting time with your child. You can also file a “Petition for Rule to Show Cause” which is basically a contempt petition if your the other parent is not following a court order. Mediation When Issues Arise with Parenting Plan If you are having difficulty with parenting time, you can try to work out parenting time issues with the other parent. Whether you seek the assistance of a neutral third party or seek more formal assistance with a family law mediator, cooperatively reaching an agreement with the other parent can improve your co-parenting efforts. Some Parenting Agreements have a mediation clause which means before you take a parenting plan issue to court, you and the other parent are required to seek resolution using with a mediator. In either situation, the most important steps are to speak with the child and then contact an experienced family law attorney you trust. Contact our office today to schedule a confidential consultation about your parenting plan or when your child doesn’t want to see the other parent. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/child-doesnt-want-see-other-parent/ Setting a parenting schedule can be one of the biggest, most stressful issues that arise if you are getting divorced and children are involved in the relationship. The key is creating a parenting schedule that is most conducive to everyone involved which means you, especially your children, any other caretakers (babysitters, grandparents, etc.), and yes… even your ex. Think about it…your ex will be much more pleasant to deal with if he or she is relatively happy. You just have to find a happy medium.
Parenting Schedules – Things to ConsiderThere are many different options for parenting schedules. For example, you could do:
Parenting Schedule Logistics WHAT TIME DOES SOCCER PRACTICE END AGAIN? Who’s picking up who? What time does practice end? What times does dad get off work? Schedules can get crazy so keeping a calendar is always a good idea. I recommend creating a Google calendar that can be color coordinated and easily share with whoever needs access. All the details of the events can be logged into the entry and invites can be sent out that way too. There’s lots of room for notes and comments. You can also create repeating events easily or calculate which weekends each parent gets if you are looking at dates far into the future. It’s a good way to avoid confusion. If you do keep an online calendar, make sure you check it every day and keep it updated. Mediation – We Can’t Agree, Now What? Mediation is usually suggested for parties to work through different scenarios and discuss their options. Trained family law mediators typically have some creative ideas that can help resolve scheduling issues. With the vast number of families they help, they’ve seen it all. Court Ordered Parenting Schedules – What Happens If We Can’t Decide? If you truly cannot come to an agreement with your ex and efforts to mediate does not help. The courts will, unfortunately, be forced to determine the parenting schedule for you. The court will either give you and/or your attorney the opportunity to argue your position, and after hearing all the testimony and evidence, a judge will make the final decision. This is usually not the most favorable outcome for either party because although the Judge attempts to find the best solution, he/she is not the one living it day in and day out. They usually just make a quick decision that appears most reasonable. I recommend avoiding this and trying your best to reach an agreement. If you attempt the Judge’s ordered schedule and it is not working, you can still try to come to reach an agreement with your ex and go back to court to request a change. Calendars Constantly Change – Be Flexible! Schedules can be hard to keep up with especially when they change. As kids get older, their schedules seem to get more and more packed. Don’t forget that just because you set a schedule it doesn’t mean it won’t ever change. You constantly have to make adjustments to keep up with what works best. Jobs changes, school schedules adjust during holidays, people move, and summers create even more options. Summer Is a Great Opportunity for Quality Time Summertime is typically a good time to take advantage of quality time. Maybe do one week on and one week off since school is out and you can do more fun outdoor activities with your kids. They grow up fast so be sure to really soak up the sun with them. All these factors can cause the need to sit down with your child’s other parent and discuss what works best right now. My biggest piece of advice is to try your hardest to work together with your ex because it will (1) make your life less stressful, and (2) it’s good to show your children you can work together. Your kids are always watching both of their parents so show them you can work things out and doing what’s in their best interest is the primary concern. Create a positive environment for your family. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/parenting-time/ight-parenting-schedule-family/ UCCJEA Not Followed Returning Child to Father THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) WAS NOT FOLLOWED BY THE COURT HERE, AND AS A RESULT, A WISCONSIN GIRL IS RETURNED TO HER FATHER Lauren sought guardianship of Mirabella, the daughter of her former boyfriend, Matthew. She claimed that Matthew, a Wisconsin resident, had left Mirabella to live with Lauren in Illinois for more than one year. The trial court entered an order of plenary guardianship and an order of protection against Matthew. Father Challenged Guardianship Based on Wisconsin Custody Order Matthew challenged the guardianship on the basis that he was awarded sole custody of Mirabella by a Wisconsin court and that the Illinois court lacked jurisdiction. Ultimately, the Appellate Court vacated the trial court’s orders and returned custody of Mirabella to her father. Case Background The minor child, Mirabella, was born November 4, 2014, to Matthew and Christina. Christina was not a part of this litigation between Lauren and Matthew. Matthew and Mirabella lived in Wisconsin, and on September 1, 2016, the trial court in Racine County, Wisconsin, entered an order awarding Matthew the sole custody of Mirabella. FATHER’S EX-GIRLFRIEND FILED EMERGENCY PETITION FOR APPOINTMENT OF GUARDIAN On May 11, 2018, Lauren, Matthew’s ex-girlfriend, filed an Emergency Petition for Appointment of Guardian. In the petition, Lauren alleged that Mirabella had lived with her in Channahon, Illinois, since May 1, 2017, when Matthew left Mirabella in Lauren’s care. She further alleged that Matthew gave her Mirabella’s medical card but had not provided any monetary support and had not seen Mirabella in over three months. Finally, Lauren alleged that Matthew was unwilling or unable to make the day-to-day decisions for Mirabella and that he “voluntarily relinquished the child to Petitioner.” On May 14, 2018, the trial court appointed Lauren plenary guardian without prejudice and also appointed a guardian ad litem for Mirabella. An additional order entered the same day, which is not in the record, presumably prohibited Mirabella from leaving Will County. On May 16, 2018, Lauren sought and was granted an emergency order of protection, naming herself and Mirabella as protected parties. Matthew was not provided timely notice and did not appear at either hearing. On May 21, 2018, Matthew appeared and was served with the summons, complaint, emergency order of protection, and interrogatories. The court struck Matthew’s emergency motion, which is not included in the record. On June 7, 2018, Matthew filed a copy of the Racine County order granting him sole custody in the Will County court. He also filed an emergency motion to strike and dismiss Lauren’s Emergency Petition for Appointment of Guardian and for an order of protection. Matthew’s motion provided that he lived with Mirabella and Lauren in Wisconsin until May 2017. He and Lauren broke up in May 2018. He was not given notice of the guardianship proceeding or hearing on the order of protection. On June 14, 2018, Lauren filed an emergency motion to amend her emergency motion to appoint a guardian and the amended motion, titled “an emergency motion for finding of temporary emergency jurisdiction.” Matthew filed a motion to strike Lauren’s motions. A hearing took place on June 18, 2018, and the trial court entered an order finding an Illinois Supreme Court Rule 903 judicial conference was needed with the Wisconsin court and continued the matter. The Illinois judge and a Wisconsin judge, although not the judge who entered the initial custody order, participated in a judicial conference that took place between June 18 and June 26, 2018. The trial court in Wisconsin wrote to Matthew’s attorney on June 26, 2018, informing that the conversation concerned which court would have jurisdiction and the determination was made that the hearing already scheduled in Illinois would take place and jurisdiction would be addressed then. The letter also stated that no decision on jurisdiction had been made. No record of the phone conference was made. Father Appeals Illinois Court Finding of Personal Jurisdiction On June 29, 2018, the trial court denied Matthew’s motions to strike, found Illinois was Mirabella’s home state for jurisdictional purposes and determined that, per the conversation with the Wisconsin judge, Wisconsin ceded jurisdiction. The court further found that it had temporary emergency jurisdiction and set a date to decide if Lauren had standing to seek guardianship. On appeal, Matthew argued that the trial court lacked personal jurisdiction over him and that it failed to comply with the requirements of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/101 et seq. (West 2016)). Matthew argued that Wisconsin retained exclusive continuing jurisdiction over Mirabella’s custody. He also argued that an Illinois court may not modify Wisconsin’s custody determinations, and the emergency petition to appoint a guardian did not meet the requirements for emergency jurisdiction under the UCCJEA. The Appellate Court stated that a person may object to personal jurisdiction based on a number of factors. A person can accidentally submit to jurisdiction, or waive his argument against jurisdiction, however, if he files any motion before the court before he files a motion challenging his personal jurisdiction. 735 ILCS 5/2-301(a-6) (West Supp. 2017). A court acquires jurisdiction over a party who voluntarily appears before the court. In re Estate of Pellico, 394 Ill. App. 3d 1052, 1066 (2009). A review of the record showed that on May 21, 2018, Matthew was present in court and was served with the summons, the complaint, interrogatories, and the emergency order of protection. The court struck Matthew’s emergency motion as unintelligible. When challenged about the subject matter of his motion, Matthew did not say that his motion in any way objected to the trial court’s personal jurisdiction. This was a mistake on his part. It was not until Matthew’s emergency motion to strike and dismiss filed June 11, 2018, that he challenged personal jurisdiction. However, he had already waived any objection to it by appearing and filing a prior motion. In addition, Matthew voluntarily appeared at the May 21, 2018, hearing and accepted the summons and complaint without objection. Those two errors caused Michael to lose his argument about jurisdiction. It is unclear from the record if he appeared on his own behalf or through counsel, but this is just one example of why someone should never appear in court on his own behalf. The reviewing court found that the trial court had personal jurisdiction over Matthew. These two mistakes early in the case likely caused Matthew quite a bit of a headache and money. On appeal, Matthew next argued that the trial court erred when it did not follow the procedures set forth in the UCCJEA. Because a custody determination regarding Mirabella had been made by the Wisconsin court and Matthew continued to reside in Wisconsin, Matthew argued that the trial court was required to follow the procedures set forth in the UCCJEA. Matthew further alleged that if the trial court had followed the procedures set forth in the UCCJEA, it would have determined that jurisdiction was proper only in Wisconsin. Appellate Court Review of Father’s Claim Wisconsin Jurisdiction The Appellate Court began with Matthew’s claims that Wisconsin retained exclusive continuing jurisdiction over all custody determinations and the trial court here was without authority to modify the Wisconsin custody order. Under the UCCJEA, a child custody proceeding is one that concerns the legal or physical custody of a child and includes proceedings for guardianship and protection from domestic violence. 750 ILCS 36/102(4) (West 2016). A child custody determination is a judgment or court order concerning legal or physical custody, including permanent, temporary, and modification orders. 750 ILCS 36/102(3) (West 2016). Modification means a child custody determination changing, replacing, superseding, or is otherwise made after a previous determination regarding the same child, regardless of whether made by the same court. A court may not modify a prior custody order of another state, except as provided under temporary emergency jurisdiction provisions of the UCCJEA or when Illinois has jurisdiction to make an initial custody determination under section 201(a)(1) or (2) of the UCCJEA and (1) the other state cedes jurisdiction or (2) the child, the child’s parents, or a person acting as parent does not presently reside in the other state. 750 ILCS 36/203 (West 2016). Once a state makes an initial child custody determination, it retains exclusive continuing jurisdiction. <ahref="https: cases.justia.com="" illinois="" court-of-appeals-second-appellate-district="" 2015-2-14-1229.pdf?ts="1435104544"">Fleckles v. Diamond, 2015 IL App (2d) 141229.</ahref="https:> Modifying Custody Determination From Another State In determining whether to modify a custody determination from another state, an Illinois court must first decide whether the court in the other state retained exclusive continuing jurisdiction. A letter from the Wisconsin judge to Matthew’s attorney, dated June 26, 2018, provided that the conversation involved, in part, whether Illinois or Wisconsin should have jurisdiction and that the judges determined the Illinois hearing that was scheduled would be used to address jurisdiction. The letter further stated that “no such decision on jurisdiction has been made” and the parties would have “an opportunity to present evidence and argument before the jurisdiction question is answered.” The letter concluded with the statement that if Wisconsin is found to have jurisdiction, a guardian ad litem would likely be appointed. In contrast, the trial court here concluded from the phone call that Wisconsin ceded jurisdiction and that Illinois was now Mirabella’s home state. The UCCJEA’s requirements to modify custody were not satisfied. The Wisconsin court did not cede jurisdiction. The court’s letter specifically stated that jurisdiction was not determined. It is undisputed that Matthew resided in Wisconsin during the entirety of the proceedings and prior to Lauren’s initial filing. Our Appellate Court found that the trial court here was without jurisdiction to modify the order of Racine County awarding Matthew sole custody. Review of Temporary Emergency Jurisdiction Under UCCJEA The Appellate Court next considered whether the trial court obtained temporary emergency jurisdiction under the UCCJEA. Matthew asserted that Lauren’s pleadings were insufficient to invoke the trial court’s jurisdiction. In the alternative, he argued that the trial court failed to comply with the UCCJEA’s mandatory requirements and the court erred in granting Lauren’s petition for guardianship. A court may obtain temporary emergency jurisdiction when the child is present in Illinois and “has been abandoned or it is necessary in an emergency to protect the child because the child *** is subjected to or threatened with mistreatment or abuse.” 750 ILCS 36/204(a) (West 2016). Where there has been a prior child custody determination entitled to enforcement, an order issued by the Illinois court under temporary emergency jurisdiction must specify “a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction.” 750 ILCS 36/204(c) (West 2016). The temporary order remains in effect until an order from the other state is obtained or the time period expires. Where an Illinois court is asked to make a child custody determination under its temporary emergency jurisdiction authority, and it is informed that a child custody determination has already been made by a court in another state with jurisdiction, the court “shall immediately communicate with the other court.” 750 ILCS 36/204(d) (West 2016). Communications between the courts may include the participation of the parties; if the parties are not able to participate, they must be given the chance to present facts and legal arguments before the court may decide the jurisdictional issue. 750 ILCS 36/110(b) (West 2016). The parties need not be informed if the call concerns schedules, calendars, court record, and similar matters and a record of the call is not required. 750 ILCS 36/110(c) (West 2016) Otherwise, a record must be made of the call, and the parties must be promptly informed and granted access to the record of the call. 750 ILCS 36/110(d) (West 2016). ILLINOIS SUPREME COURT RULE 903 INAPPLICABLE The trial court believed that the call with the Wisconsin judge was governed by Illinois Supreme Court Rule 903(eff. Mar. 8, 2016). That rule provides that custody proceedings concerning an individual child be decided by a single judge. The Court here was incorrect because Rule 903 is inapplicable and does not direct the interstate phone conference at issue. The requirements under the UCCJEA govern the phone call here – not Rule 903. The UCCJEA requires that the phone conference must be recorded, which did not occur and, as discussed above, resulted in differing versions of the call. Moreover, according to the Illinois trial court, jurisdiction was decided despite the lack of participation of the parties or an opportunity for them to argue the merits of jurisdiction as required by the UCCJEA. Background of Emergency Petition for Guardianship Lauren’s emergency petition for guardianship stated that Matthew left Mirabella with her around May 1, 2017, that Mirabella remained in her care, that Matthew provided Mirabella’s medical card but did not provide any financial assistance, that Matthew lived in Wisconsin and had not seen Mirabella for more than three months, and that Mirabella’s mother had not had contact with Mirabella for more than a year. The petition alleged that Mirabella’s mother was believed to be a drug addict and unable to care for Mirabella and that Matthew left Mirabella in Lauren’s custody for more than one year, did not provide support, and is unwilling and unable to make daily decisions concerning Mirabella’s care. The petition further alleged that there was no one in Illinois to carry out Mirabella’s daily care, which necessitated Lauren’s appointment as guardian. By all accounts, Mirabella was present in Illinois and had been living here with Lauren for more than one year. Lauren’s petition, however, failed to allege that Matthew abandoned Mirabella or that there was a threat of her abuse or mistreatment. The petition did not assert that Matthew left Mirabella “without provision for reasonable and necessary care or supervision.” 750 ILCS 36/102(1) (West 2016). Rather, the petition asserted that Matthew left Mirabella in Lauren’s care. The petition did not allege mistreatment or abuse, offered only the conclusory statement that Matthew was unwilling and unable to make decisions concerning the care of Mirabella. EMERGENCY MOTION FOR FINDING OF TEMPORARY EMERGENCY JURISDICTION After Matthew moved to strike and dismiss Lauren’s petition, she moved to amend the pleading, which the trial court granted after Matthew moved to strike and dismiss the motion to amend. The amended motion, titled “an emergency motion for finding of temporary emergency jurisdiction” rather than petition for guardianship, stated that a custody order was entered in Wisconsin, granting Matthew sole custody, and was enrolled in Will County; that Illinois was now Mirabella’s home state; and that Lauren had physical custody of Mirabella for a period of six consecutive months and was a person acting as a parent under the UCCJEA. The motion alleged that Mirabella was subjected to or threatened with mistreatment as shown by Matthew’s repeated threats of suicide, his failure to comply with his medication regime, his use of Mirabella “as a bargaining chip” in his relationship with Lauren, his “depersonalizing Mirabella by threatening Lauren that he will find Mirabella a new mother,” and his “exhibiting emotional instability and verbal abuse toward persons he purports to love.” Lastly, the motion requested the court immediately communicate with the Wisconsin court that entered the custody order. The amended motion also failed to satisfy the statutory requirements. Lauren filed her motion to amend and motion for emergency temporary jurisdiction on June 14, 2018, nearly a month after the trial court awarded her guardianship of Mirabella. Her belated claims regarding Matthew cannot constitute the basis for the prior ruling granting her guardianship. Even if Lauren’s new allegations regarding Matthew were considered, they do not indicate abandonment, mistreatment, or abuse. Unsupported allegations regarding Matthew’s behavior and mental health did not establish that he mistreated or abused Mirabella. There is no claim of emergency or that Mirabella was in immediate harm. To the contrary, Lauren alleged Matthew had not seen Mirabella in three months prior to her original filing and therefore her allegations cannot support a claim of emergency or immediate harm. The allegations concerning Matthew’s suicide threats are supported by copies of undated text messages in which he talks about suicide. Again, those allegations, while serious, do not support a claim that there was an immediate risk of harm to Mirabella. Because the Wisconsin court had already determined that Matthew was fit for custody of Mirabella, it retains continuing exclusive jurisdiction to decide if he is now unfit as alleged by Lauren. Trial Court Failed to Comply With UCCJEA After learning that a Wisconsin court had entered a prior custody order and in the exercise of its emergency temporary jurisdiction, the Illinois court was required to specify a time period to allow Lauren to obtain an order from the Wisconsin court and to immediately communicate with the other court. The trial court’s orders granting guardianship and finding it had temporary emergency jurisdiction did not include a time period as required and the trial court failed to immediately communicate with the Wisconsin court. Lauren suggested at the initial hearing on May 14, 2018, that there was a prior order. The court did not call the Wisconsin judge until approximately mid-June. The Appellate Court did not consider that the trial court acted “immediately” to communicate with the court in Wisconsin. The Appellate Court ruled that the trial court failed to comply with the requirements of the UCCJEA and granted guardianship to Lauren without any authority to do so. Lauren did not establish any basis to sustain the court’s emergency temporary jurisdiction. It is undisputed that Matthew has sole custody as determined by the Racine County court. It was found that because Wisconsin retained continuing and exclusive jurisdiction to make custody determinations regarding Mirabella, the trial court here lacked jurisdiction to award Lauren guardianship and to modify the Wisconsin custody order. Accordingly, all orders entered by the trial court were vacated and the Appellate Court ordered custody of Mirabella be immediately returned to Matthew. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/uccjea-child-returned-to-father/ One of the common parenting mistakes a child of divorced parents makes is relative to that dreaded question: “Do I HAVE to go?”
Divorced parents or parents that have never been married hear this hear this question all too often. Hearing your child ask that question time and again can certainly get old after a while. Divorced Parents Should Support a Child’s Bond With the Other Parent However, in most scenarios, it is best to encourage your children to attend parenting time with their other parent. This is quality time which helps them bond (or remain bonded to) the other parent. It also ensures that you are not held in contempt of court for violating a parenting order. You can also be accused of alienating your child from the other parent, or guilty of visitation interference, which is a crime in Illinois. The bottom line is that the court order must be followed, both to keep you protected, as well as for your children’s best interests. Here are a few more helpful tips for divorced parents to remember while parenting a child of divorce in 2019: 1. DO NOT TALK BADLY ABOUT YOUR EX.Just do not do it, ever. Your children pick up everything you do, from the tone in your voice to body language, and if you don’t like your ex, I can guarantee you that they already know it. You don’t need to remind them of your dislike for the other parent they love. 2. DO NOT TALK BADLY ABOUT YOUR EX’S NEW SIGNIFICANT OTHER, FAMILY, FRIENDS, ETC. Just like the rationale in tip #1, the same advice applies here. Just don’t do it. Believe me, you are not making this situation any easier on your children by reinforcing what they already know. 3. BE THERE FOR YOUR CHILD TO TALK TO OR HAVE SOMEONE AVAILABLE. This could be a therapist, an older cousin, an older sibling, a trusted close friend, an aunt, an uncle, a teacher, someone. Your child needs an outlet to talk to about the things they cannot discuss with you, as they get older. It is healthy and having a neutral third party can help them work through their emotions, especially regarding things they may not want to discuss with you. 4. TRY TO GET ALONG WITH YOUR EX. This is not realistic in every scenario, for obvious reasons. However, you would be surprised at how liberating it can be for everyone to get along and push through the drama. The best tip for divorced parents or parents that are no longer together is to put the past behind you, so you can put your best foot forward in this new year! Co-parenting after a divorce or break up presents added challenges to parenting, especially when your child does not want to attend parenting time. Contact Anderson & Boback if you have questions about parenting time or other concerns that arise for divorced parents. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/parenting-time/divorced-parents-parenting-tips-2019/ In the case of the Wojcik’s, the trial court needed to resolve a conflict between the parties regarding their view of what was “Unallocated Maintenance.” The husband, Michael Wojcik, and the wife, Sandra Wojcik, had been married for over 30 years. They resolved their marriage amicably, and Michael agreed to pay Sandra for 60 months. He made a monthly payment of $13,500.00 for 60 months and thought he was finished with his payments. His ex-wife disagreed. The Court found that maintenance could only terminate based on terms that the Settlement Agreement set forth. The Marital Settlement Agreement set forth certain events that might occur that would serve to terminate Michael’s obligation to pay unallocated family support. Those termination events were: the death of either petitioner or respondent, petitioner getting remarried, or petitioner cohabitating with another person on a resident, continuing, conjugal basis. Well, neither party died and Sandra did not remarry or live with anyone on a continuing, conjugal basis. So no terminating events occurred and now the maintenance was reviewable. Supported Spouse’s Efforts to Secure Employment At trial, both Michael and Sandra testified. The testimony at trial showed that a month after the judgment for dissolution of the marriage was entered; Sandra was hired as a teacher. However, she resigned her position as a teacher in 2015, because of threats she received from students. Sandra applied for other teaching jobs but did not secure employment as a teacher. About three months after resigning her teaching position, she was hired in a sales associate position earning $9 per hour plus commissions. She received health benefits. She also worked a few hours a month as a tutor for $13 per hour. Wife’s Ability to Earn Income Impaired During 30 Year Marriage Sandra testified that she could find a suitable job based on her education and experience, but that she could not earn enough income to support herself. Exhibits introduced at trial and admitted into evidence show that Sandra’s monthly expenses were approximately $6,191 and her monthly income was $1,418. The trial court found Sandra to be credible and found her efforts to secure employment to be reasonable. The court imputed the income she had been earning as a teacher, finding that such an amount was a reasonable baseline for what she could earn from full-time employment. The trial court found that “even with Sandra’s imputed income she can never achieve the level of income that would allow her to maintain the lifestyle the parties enjoyed during the marriage on her income alone.” The court gave “great weight to the 30-year duration of the marriage” and observed that Sandra’s “ability to earn income was impaired by her domestic duties having foregone or delayed her education and employment,” while Michaels’ career was able to thrive. Accordingly, the trial court found that Sandra was entitled to permanent maintenance in an amount ultimately determined to be $5,700 per month. Michael was ordered to pay her back payments of the maintenance in the sum of $239,400.00. Unallocated Maintenance in the Marital Settlement Agreement What Michael failed to understand apparently when he signed the Marital Settlement Agreement, is that he was paying child support and maintenance, which is the definition of Unallocated Maintenance. Sandra and Michael still had a minor child when they divorced, so her payment of $13,500.00 per month was for her expenses and for child support. Once the child emancipated, there was no more child support to pay. So there needed to be a modification of the amount he paid. He seemed to believe that he was done once he paid the 60 months and sought to terminate his award, and ended up with a permanent award. Michael believed that a review or an extension of maintenance may only occur where a judgment awards or reserves maintenance in the first place. He was incorrect. Modification of Support Obligation Provisions in the Agreement The parties’ marital settlement agreement in this case expressly states that Sandra’s support obligation is “reviewable.” The parties did agree that the support obligation was reserved, they agreed that it could be reviewed. The parties also agreed that the court could modify the support obligation provided that a petition was filed and no termination event had occurred. The Court ruled that “[T]he intent of the parties to preclude or limit modification or termination of maintenance must be clearly manifested in their agreement.” In re Marriage of Brent, 263 Ill. App. 3d 916, 923 (1994). There is no such manifestation of intent to limit the modification of maintenance in the marital settlement agreement in this case. Instead, it was expressly made reviewable. Marital Settlement Agreement Terms Controlling After reading the Court’s opinion, it is hard to understand why Michael believed his obligation was over. I can only guess that he just didn’t understand what he was signing. If you are ever in a position to sign something with terms you don’t fully understand, then you need to resist signing it until you understand its implications. Nonetheless, in the Wojcik case, Michael argued that Sandra was required to bring her petition to review and modify the maintenance obligation before the original, reviewable payment period expired. Ultimately, Michael acknowledged that his support obligation was reviewable, but suggests that Sandra had to seek extended support a few weeks earlier than she did. The same argument made by Michael here was squarely rejected in the Rodriguez case, 359 Ill. App. 3d 307, 312-13 (2005). In Rodriguez, the former husband argued that because the former wife did not petition for review of maintenance within the four-year period set for maintenance in the court’s original order, the former wife was forever barred from seeking an extension of maintenance. That argument was rejected by the reviewing court and they held that the trial court was entitled to review the maintenance award even though the original maintenance payment period had lapsed. In this case, Sandra filed the petition to review maintenance just weeks after the original, admittedly reviewable support obligation ended. Court Finds Permanent Maintenance Award Appropriate Michael argued that the trial court erred when it ordered him, based on the evidence adduced at trial, to pay permanent maintenance to Sandra. Permanent maintenance is another term that Michael needed to understand and apparently did not when he appealed. Permanent maintenance does not mean everlasting; it means the obligation is for an indefinite period. Indefinite maintenance is commonly granted where the parties have grossly disparate earning potentials and where the marriage was lengthy. It doesn’t mean forever. Michael can modify his obligation when there is a substantial change in circumstance. Maintenance Justified When Earning Capacity Cannot Cover Modest Monthly Expenses In 2015, Michael was earning $700,000 a year while Sandra was making $9.00 an hour. The testimony showed that Sandra helped Michael get his business off the ground while she cared for their three children. When the trial court found that Sandra had “satisfied her obligation at rehabilitation,” the trial court was not making a finding that she had achieved self-sufficiency. Instead, it explained that her efforts at rehabilitation since the divorce, namely: earning a master’s degree, working full time for seven years as a teacher, and then quickly starting a new job as a sales representative after resigning her teaching position, constituted a good faith effort at self-sufficiency. Even so, the court still found that maintenance was justified because it had become clear that petitioner’s earning capacity is such that “she can never achieve the level of income that would allow her to maintain the lifestyle the parties enjoyed during the marriage on her income alone.” But even more than that, the record showed that Sandra cannot earn enough to cover her monthly expenses which are fairly modest in consideration of the marital circumstances. They were married for over 30 years. Reasonable Efforts to Become Self-Supporting Michael clearly did not endear the Court to his side when he argued that Sandra was “disinterested in becoming self-supporting,” had “a sense of entitlement,” and analogized her basis for seeking maintenance to “self-imposed poverty.” The trial court obviously disagreed with these characterizations and made a finding that Sandra had made a good faith effort at rehabilitating herself and obtaining suitable employment, considering all the facts. The Appellate Court ruled that the trial court did not abuse its discretion in holding that Sandra had made reasonable and sufficient efforts at becoming self-supportive. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/maintenance/unallocated-maintenance-reviewable-not-terminable/ Anderson & Boback is pleased to announce the promotion of Jessica C. Marshall to Partner. Marshall began with the Chicago family law firm in 2010 as an associate attorney.
Marshall is a dedicated, intelligent, hard-working, and honest attorney with impressive credentials and substantial achievements in the legal community. She focuses her practice on divorce and family law. From child custody to military divorce, she is a passionate advocate with an unwavering commitment to her clients. Respected by colleagues, judges and clients, she has received numerous awards, including the ISBA Young Lawyer of the Year for Cook County (2017-2018). This prestigious award honors the extraordinary commitment and dedication of a young lawyer who has provided outstanding service to the Illinois population. Only two lawyers are chosen to receive this honor each year. The ISBA recognized Marshall for her important role “mentoring other associates and staff focusing on the importance of civility in the practice of law” and participation in the ISBA Standing Committee on Women in the Law. Marshall has also been recognized by the following: American Institute of Family Law Attorneys – 10 Best Client Satisfaction Award (2018); Rising Star in Family Law, Illinois, by Super Lawyers (2018); The National Advocates Top 40 Under 40 (2016); and the Avvo Client’s Choice Award (2014). She is also the Catalyst Co-editor for 2018-2019. Marshall is committed to helping people and solving their problems through skillful application of the law. Her achievements include helping parents reunite with children, protecting children from abusive situations, and offering in-depth knowledge of military divorce laws and regulations by winning an appeal on the original improper division of a military pension. Marshall was admitted to the Illinois State Bar in 2010 and the United States Court of Appeals, Federal Circuit, in 2011. She is a member of the Illinois State Bar Association, and the Illinois Bar Association Women and the Law Committee. She has held the following positions on Women and the Law Committee: Co-Editor, The Catalyst 2014-2015 and 2017-2018, Social and Gifts Sub-Committee Co-Chair 2015-2016, Social and Gifts Sub-Committee Member 2014-2015 and 2016-2017, and We Will (Women Supporting Women in Local Legislation) Core Member. Marshall received her JD in 2010 from The John Marshall Law School. A 2007 graduate of Indiana University, she earned her Bachelor of Science in Public Affairs and Legal Studies. She also participated in an Oxford University summer program through Indiana University. “We are very fortunate to have had Jessica Marshall join our team in 2010. Jessica is instrumental in our growth and to our vision of being one of the biggest small law firms practicing in the area of family law in Chicago.” says Janice Boback. Founded in 2004, Anderson & Boback is devoted to the practice of family law and specializes in adoptions, divorce (both civil and military), post-decree actions, child support (in and out of state), visitation, custody, paternity, and prenuptial agreements. Their attorneys are recognized for their skillful negotiation and strategic litigation, and have helped hundreds of Chicago parents with their custody and visitation issues. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/a-b-news/anderson-and-boback-promote-jessica-marshall-to-partner/ Let’s face it raising your child with someone other than your ex can be just as difficult as co-parenting with your ex. Between different styles of communication and parenting, it can be a complete nightmare. After all, you may not know your ex’s significant other well and may have some resentment towards that person. It is important to recognize this and try your best to keep your personal feelings out of your co-parenting relationship for your child’s sake. When raising a child, it is crucial to keep their best interest in mind at all times. Here are a few tips to effectively co-parent with your ex’s significant other. Three Keys to Co-Parent with Your Ex’s Significant Other (1) Forms of Communication Is there anything you can do to improve your relationship with the co-parent? Finding an effective form of communication is key. While texting can be easy, it can also be difficult to interpret and cause unnecessary miscommunications and frustrations. Maybe making a rule to only talk on the phone will work best for you or only talk through the two biological parents. Maybe it is best to set a weekly time to talk where all the parents involved in the co-parenting can discuss the upcoming week’s schedule; this could be done via phone conference or in person during a weekly exchange. Maybe it is a good idea to have an agenda for the meeting and stick to those points. This will ensure important topics are not forgotten and for everyone to have a turn to speak at the meeting. Maybe set a rule where texts should only be exchanged during emergency situations and then define what constitutes an “emergency” so it is clear and everyone is on the same page. Find what works for you and the co-parent relationship and stick to that. There are also a number of online co-parenting tools such as ourfamilywizard.com which serves as a platform for parents to communicate and track that communication. There is also a great calendar that can be very helpful as the children involved grow older and became involved in more activities. (2) Setting Rules If there are issues or tension between you and the other co-parent, I suggest addressing the issue immediately. Handle in a tasteful manner rather than let the emotions build up. Good rules of thumb are (1) not to talk poorly about the other co-parent in front of the child (2) stick to any schedules because even though a change may work out for you, it could become more difficult for the other parent involved to change their schedule without notice and (3) give as much advance notice if you are going to be late to pick ups or drop offs. Be sure to not set realistic rules; this will do no good if they are merely broken. (3) Issues to Address Schedules are probably the biggest thing co-parents need to coordinate especially in today’s world. It’s important to adhere to the schedule and be on time for pick ups/drops offs because the other parents are relying on you. Last minute changes to the schedule can cause a lot of annoyance for the parties involved. Before making a decision or saying something, really think about how it can be perceived from the other parents involved. Other big issues are parenting style such as discipline, bed times, and diets. Sometimes it’s good to create a contract-like document or a parenting agreement that lays out the terms by which the parents strive to raise the child. It can be simple or as detailed as you want. It could be a good parenting tool because if there are issues in the future, parents can look back at the agreement and try to adjust their parenting styles to reflect the agreed upon goals. One of the keys of co-parenting, is realizing that you are not solely in control and you need to be open to alternative parenting styles. It will no doubt be frustrating at times but is imperative you accept the fact. If you cannot come to an agreement on an issue maybe think about hiring a mediator. Mediators are great; they are trained professionals and if you hire an experienced family law mediator, they will likely have an assortment of suggestions to resolves any issue you are having. Talking issues out with a therapist is another helpful way to take some of the unnecessary emotions out of the problem and help you focus on the real issue at hand. Not responding the same day to a frustrating message or at least consulting with someone else before responding are also helpful tools in ensuring your response is not spiteful. Whatever co-parenting method you chose, keep in mind communication is key. Issues often arise when there is a lack of communication. I encourage you to keep a constant and emotionless communication stream open and to always consider the best interest of the child involved. Complex situations of co-parenting with your Ex’s significant other require sound legal advice from experienced family law attorneys. Contact Anderson & Boback if you would like to discuss your family law situation or have questions about child custody jurisdiction. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/family-law/co-parent-with-your-ex-significant-other/ |
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