As Chicago family law attorneys, we are often asked should a child testify in family court. Parents often know that their children see and hear what happens in a family home, or in their parent’s individual homes and that the children often have access to information that would corroborate the parent’s position. Many parents who are new to family law in the legal system may believe that this benefits their case in some way and will try to utilize their child’s knowledge and witness statements to their advantage. Sometimes it is by recording them, sometimes it is by pushing for the minor child’s voice to be heard. However, parents learn very quickly that the Judges will do everything in their power to try and make sure children are as uninvolved in the legal dispute between their parents as they possibly can be. There are certain exceptions that are made, but they are very limited. For the most part, the Court does not want the minor children involved in divorce or family law disputes and rarely if ever wants the children to be forced to testify in family court. Child Testimony in Family Court When it comes to the wellbeing of minor children having a child provide their testimony is important. Most of the time, if there are allegations of abuse, neglect, or anything that pertains to a child's wellbeing, the Court will opt to appoint a Guardian Ad Litem. A guardian ad litem is an attorney who acts as the court’s “eyes and ears”. They are the Court’s witness at a trial on parenting time issues or anything relative to the minor children. They are able to testify as to what the minor children reported to them. So, oftentimes, they will interview the minor children, and they may even interview collateral witnesses such as teachers, doctors, therapists, coaches, family friends, and extended family members, to try and gain insight into whatever is being alleged and assess credibility. This person then can testify as to what they observed or witnessed, or what was reported to them. This is the most common way the Court will hear from minor children in a family law case. This is because the minor children are not forced to come to court or testify against a parent. Being in Court is a scary experience, and there is no value in putting a child in a position to testify unless it is absolutely necessary. So, a Guardian Ad Litem, a lot of times, can help avoid this. Child Testimony By "In Camera Review" In some situations, the Court may want to hear from the minor children directly. If they think there is a credibility issue, they may want to hear from the children directly. However, most of the time, they won’t let the children testify in a courtroom. They will conduct what is called an “in camera interview” instead. All of the attorneys have a right to be present unless they agree to waive it, but at a minimum, the child’s Guardian Ad Litem or Child Representative will be present with the Judge and a court reporter. The court reporter will take down the testimony. However, the Court can opt to seal it from the parties and their attorneys so that no one can see what the child said, in certain circumstances. The Court can then assess the credibility of the child(ren) on their own, without them being in the courtroom and testifying for their parents to hear. This is the preferred method of eliciting testimony from a minor child. In very limited circumstances, a minor child might be called to testify as a witness. This is reserved for only the most dire circumstances, as a last resort, and usually the allegations are incredibly serious. Or, the minor child might be significantly older (i.e. a teenager), where their level of maturity is different than that of a younger child. Age a Minor Child Can Testify in Illinois Family Court The general rule in Illinois is that when a minor child attains the age of thirteen (13) they are old enough and mature enough to articulate their preferences for parenting time, allocation of parental responsibilities and extra-curricular activities. However, their reasoning has to be sound. They can’t say they want to live with dad because he is never home and it is the party house. The Court likely would not agree with the child’s preference is that is the reason why. But, it is generally accepted that around age 13, minor children can maturely formulate their opinions. This does not mean they will be called to testify, though. Usually, they are just as effectively able to promulgate their opinions through a Guardian Ad Litem as they would have had they testified. Children will only testify in very limited circumstances. Some Judges get angry just at the suggestion that a child is “willing” or “can” testify. The suggestion of a child speaking to the Court whether in an in-camera interview or through testimony must be handled very delicately and parents need to be cautious about when they ask for this relief. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/can-my-child-testify-in-family-court/
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As a Chicago family law attorney, I am often asked by clients if they can appeal a family law court order. You have a right to appeal a final decision from the family law court and you also may have a right to appeal a decision from a family law court that is not a final decision or one that is final but does not dispose of all of the issues involved.
The Process to Appeal a Family Law Court Order Once you have a decision from the court that resolves all issues and you want to have a higher court review the decision you can do that through the appeal process. There is a time limit that must be strictly adhered to as there is very little leeway if any when specific dates are not met. It is important to remember that when you appeal your case to the appellate court, it is not another “bite of the apple” or chance to have your case heard all over again in an attempt to gain a different decision. The purpose of appealing to the appellate court is to review the underlying case exactly as it was heard and decided by the trial judge. Appellate Court and the Standard of Review There are different standards the appellate court uses to review cases depending upon the type of case. This is known as the "standard of review". In most family law cases where the trial court has discretion when they make decisions and enter orders, the standard of review applied is “abuse of discretion”. This means that the appellate court will carefully review the pleadings, the evidence used at the trial, and the transcripts of the testimony and made a determination as to whether or not the family law court abused its discretion in deciding your case. Was There an Abuse of Discretion by the Family Court? In other words, the appellate court does not look at everything and make a new determination and maybe the appellate court would make a different decision if they were the trier of fact (trial judge). That is not their role in a family law appeal. The role of the appellate court in appealing a family law court order is to make sure that the trial judge’s decision was one that could have been made based upon the pleadings, evidence, and testimony. The appellate court does not determine whether it would have made the same decision. They make a determination that the decision could have been made so there is no abuse of discretion. If there is no evidence the court abused its discretion the trial court ruling will stand. This is when the appellate court affirms the trial court’s decision. When the Family Court Abused Its Discretion In the event the appellate court finds that after review of the pleadings, evidence and testimony the trial court abused its discretion and should not have entered the ruling that it did, the appellate court will do one of two things, they will either:
The Illinois Marriage and Dissolution of Marriage Act gives the trial court a lot of deference in making decisions since they have firsthand knowledge at the trial and can determine the credibility of the witnesses. Credibility is important in family law cases since many of the trials come down to “he-said / she-said” cases. If the trial court enters a Judgment that states one, both or neither of the parties were credible witnesses, the appellate court weighs that very heavily. However, if the family law court order on appeal is a question of law and not deference the appellate court will review the pleadings, evidence, and testimony as though it is considering the case for the first time. This allows the appellate court to substitute its own judgment about the application of the law in the case and make its own determination. This is not often the case in family law matters but it does happen. Thinking of Appealing a Family Law Court Order? Talk to an Experienced Family Law Attorney Right Away When it comes to appealing a court order or judgment it is important to be aware of the thirty (30) day time limit to file an appeal. As such, be sure to talk to an experienced family law attorney right away. If you are in the Chicago area contact the family law attorneys at Anderson & Boback to discuss the possibility of appealing the family law court order in your case. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/can-i-appeal-a-family-law-court-order/ Aside from retirement benefits and other long-range assets your family acquired during your marriage, Social Security benefits are one more asset to look at when dividing property after a divorce. This asset is not one that the divorce court will give you, but one that the state you live in awards you in certain circumstances. What should a person look for when seeking Social Security benefits? You Cannot Collect Your Own Social Security Benefits and Those of Your Ex-spouse You will want to look at the amount of your own benefit and then the benefit you would receive from your ex-spouse. You cannot collect both. The options are that an ex-spouse either receives 100% of their own social security or 50% of the other former-spouse’s social security (although this does not affect the original wage earner from collecting 100% of their own social security). Example: A couple is married from 1983-2000 (17 years) the husband remarries for several years but divorces again. After he is 62 and elects to take social security, he has the option of collecting 100% of his benefits or 50% or his first wife’s (because the marriage was over 10 years). If he would have stayed married over ten years to his second wife before he divorced, he would have had the option of collecting 50% of her social security, if it was higher than his. This does not mean though that people can collect multiple social securities, they can only collect one but they have the option of collecting whichever one has the greatest benefit after they have been married to someone for over ten years. I am Divorced. Do I qualify for my Ex-husband’s Social Security Benefits? If you are divorced, you may qualify for Social Security benefits from your former spouse. Even though you are no longer married, Social Security allows a divorced person a personal benefit, since you were a long-term partner of a member in the workforce. There are two ways to qualify. When you apply, they will want to know if your ex-spouse is still alive, or if he is deceased. You will need to be patient and read up on the benefits since the rules are fairly complicated. Keep asking questions in the Social Security office and your patience will pay off. Also, any benefits that you as a divorced spouse might receive would have no effect on the amount of benefits your ex-spouse gets. My former spouse is still living. What are the basics for that set of rules? Basically, you can receive benefits based on your ex-spouse's work record if:
Any retirement benefit that you are entitled to receive based on your own work record, must be lower than the benefit you would receive from your ex-spouse's record. Basically, you collect whichever benefit is higher. You cannot collect both. Also, it does not matter if your ex-spouse has remarried. In any event, before anything can happen, there is a "test" for your ex-spouse, too. He must be entitled to Social Security retirement or disability benefits. If he qualifies for those benefits even if he has not begun taking them, Social Security will allow you as the ex-wife to go ahead and take your ex-spouse benefits — providing that you have been divorced for at least two years. How Much are the Social Security Benefits? The amount of social security benefits will depend on how much your ex-spouse qualifies for. If you are at full retirement age, you will be eligible for payments that are 50 percent of whatever he would get. But if you begin taking the benefits before your full retirement age, they will be permanently reduced. That is basically the same as what would apply if you were still married and your husband retired: You could get a spouse's benefit of 50 percent. The Benefits are Different if Your Ex-spouse is Deceased. You would have to meet these conditions:
Things Can be Different if You have a Child Younger than 16. You can get benefits on an ex-spouse's record at any age if you are caring for that ex-spouse's child, who is also your natural or legally adopted child and who is younger than 16. Your benefits will continue until the child reaches 16 or is no longer disabled. Importantly, you can receive this benefit even if you were not married to your ex-spouse for 10 years. Multiple marriages qualify as well. Even if your ex-spouse had multiple marriages, and then divorced, you could still be eligible for benefits. It will depend on how long the marriages lasted and other circumstances. But, of course, you cannot collect multiple benefits on the records of multiple ex-spouses. Just one. If your ex-husband had a previous ex-wife, which person gets the benefit? With Social Security, it does not matter if the first ex-spouse applied before you did. There is not just one benefit available. If you meet the qualifications, you get a benefit, regardless of what another ex-spouse has or has not done. The rules are complex. For more information, you'd do well to read a 28-page booklet that Social Security publishes, What Every Woman Should Know. In addition to divorce, it delves into such subjects as domestic violence and your status with Social Security if you become a widow. To collect an ex-spouse's benefit, go online to Social Security or call 1-800-772-1213 (TTY 1-800-325-0778). Be prepared to provide documents that establish your right to the benefit. You will likely be asked for your birth certificate, marriage license, and divorce decree. Plus you will need your ex-spouse's Social Security number. If you do not know it, you will be asked for his date and place of birth and the names of his parents, information which will allow Social Security to look the number up. Speak to an Experienced Divorce Attorney About the Social Security Benefits of an Ex-spouse When it comes to Social Security Benefits of an ex-spouse, it can be complicated and confusing. It may have been a while since you divorced or perhaps you are thinking about divorce you and need guidance social security benefits. At Anderson & Boback, our experienced Chicago divorce attorneys have spent more than 20 years helping clients with dividing marital assets including the social security benefits of an ex-spouse. Contact us today for free consultation to discuss questions about divorce and the social security benefits of your ex-spouse. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/divorce-and-social-security-benefits/ It can be tough to stay in a residence with a significant other when the relationship is “over”. However, when minor children are involved, there are many things to consider. There is much planning which has to happen before one party should separate from the joint residence and relocate elsewhere especially when that means separating without your children.
Parenting Time Can be a Challenge First, if there is no case pending and/or no temporary parenting time schedule, moving out of the home without your children may mean that there is no “regular” time frame in which you will see your child/children for the near future. You will be subject to the mercy of coming to an agreement with your ex regarding when you can exercise parenting time until there is a court order in place governing the schedule. This can make it very difficult since many people who separate do so because they do not get along and cannot agree. Moving out of a home without a parenting time schedule may mean that there will be a period of time where little, infrequent, or no parenting time will take place at all. This is something to seriously consider prior to moving out of a joint residence. Worry About the “Status Quo” One factor that the Court considers when allocating parenting time and parental responsibilities (decision making, formerly known as custody, for extra-curricular activities, medical/health care, education, and religious decision for the minor children) is what the status quo has been for the prior twenty-four (24) months. The Court wants to know who has been the primary caretaker, who has made the decisions, who does the day-to-day tasks of feeding, bathing, school work, etc. If a party chooses to separate and move out of a joint residence without their child(ren) and that party had previously functioned as a primary caretaker, that is about to change. The other parent will now be in the role of primary caretaker, presumably. If this goes on for quite some time, perhaps a year, the prior twenty-four (24) months before the case was filed now has a much different status quo. Courts tend to like the status quo, so altering it severely could damage a position where one party was previously the primary caretaker of the children, but not any longer. You May Have to Pay Child Support or Other Bills, Even If You Move Without Your Children. Child support is typically paid by the person who has less parenting time, dependent of course on the parties’ respective incomes and the parenting time schedule. So, if one party chooses to move out of a joint residence without the minor children, there is now potentially an argument that said person would have to pay child support, whereas had they stayed with the children they may not have had to. Another surprising fact to parties who separate in a marriage or divorce situation specifically is that they may still have to contribute to marital expenses and the maintenance of marital assets, even if they are no longer living in the marital home. For example, if one party decides to move out of a marital residence and the house is marital and has a mortgage, the person moving out may still have to contribute to the mortgage and/or property taxes for said home, even if they are not living there. This is situation-dependent, but the thought is that generally a court will uphold marital assets and try to preserve the marital estate. They generally won’t let a marital home mortgage go into default so that one party can move out and pay rent somewhere else. So, just because someone moves out of a jointly held marital home for separation purposes, does not mean they no longer have to pay the bills for said home. There are many considerations when deciding to separate out of a joint residence and these are just some of the complex issues one must consider. When children are involved separating becomes even more complicated. Feel free to reach out to our experienced family law attorneys if you are thinking about separating without your children to ensure that you are making the best decision for you and your family. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/separating-without-your-children-chicago-divorce/ |
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