Illinois Family Law Advocate

What is visitation interference?

Shahzad Khan — Mon, 23 Aug 2010 14:13:05 -0600

Visitation interference is where one parent consistently and habitually deprives or obstructs with the other parent’s parenting time. The result of this consistent and habitual conduct by the custodial parent can be profound. It could have the substantial effect of breaking the non-custodial parent’s relationship with their child. In essence, one parent’s actions will alienate the child from the other parent. This is commonly known as Parental Alienation Syndrome (PAS). There is plenty of literature on PAS, which can all be found via the internet.

In Illinois, there are three ways to combat unlawful visitation interference. One is through criminal court proceedings and the other two are through family court or civil court proceedings. The criminal statute, 720 ILCS 5/10-5.5, governing visitation interference can be found here. The civil statute, 750 ILCS 5/607.1, governing visitation interference can be found here.

In the criminal case, a person found guilty of unlawful visitation interference is guilty of a petty offense. A petty offense is an offense that is rectified by a fine. However, the statute does provide that if a person is convicted under this statute for two or more acts of unlawful visitation interference then they can be found guilty of Class A misdemeanor, which can subject them to a prison term of less than one year.

The civil case for unlawful visitation interference is usually brought in family law court under the divorce, paternity, or domestic violence case, whichever applies. It can be brought as a Petition for Rule to Show Cause under 750 ILCS 5/511 for violation of the terms of a court order or it can be brought under 750 ILCS 5/607.1 for unlawful visitation interference.

The penalty for a violation under sections 511 or 607.1 can normally be a finding of contempt and an order to comply with the court order with the threat of jail if there is no substantial compliance. If the party fails to comply or continues the behavior the court has the right to sentence the party to jail not to exceed six months.

Happy Father's Day

Shahzad Khan — Sun, 20 Jun 2010 14:53:06 -0600

Happy Father's Day to my dad, my father-in-law and all dad's around the world. Enjoy your day! I know I will.

Happy Mother's Day

Shahzad Khan — Fri, 07 May 2010 09:48:41 -0600

Happy Mother's Day to my mom, my wife, my mother-in-law and all mom's around the world. Mom, Happy Birthday. You're the best!

Annulments - A not so common remedy!

Shahzad Khan — Thu, 06 May 2010 14:23:22 -0600

The Illinois statute pertaining to annulments is 750 ILCS 5/301 et seq. of the Illinois Marriage and Dissolution of Marriage Act. In Illinois a cause of action for annulment is known as a Declaration of Invalidity of Marriage. Annulments are not a common remedy these days as it has become so easy to get a no-fault divorce based on irreconcilable differences. However, annulments have been around for centuries as they have their roots in religious or theological law, as in the Catholic Church.

The benefit of getting a declaration of invalidity of marriage is that if an annulment is granted, it is as if the marriage never existed. But, If you are divorced then there is always a record of a previous marriage that follows you throughout life. However, proving the grounds for annulment are sometimes more difficult than proving grounds in a dissolution of marriage case.

In Illinois, there are four distinct categories of grounds for which a declaration of invalidity of marriage may be sought. They include:

A party to the marriage lacked capacity to consent to the marriage or the party was forced into marriage by force, duress or fraud – the capacity that is referred to here is mental capacity.
A party lacked physical capacity to consummate the marriage – this is referring to the inability to perform sexual intercourse to consummate the marriage;
A party was age 16 or 17 and did not have the consent of their parent, guardian or judicial approval to get married;
The marriage is prohibited by law – these are marriages referenced in 750 ILCS 5/212 of the Illinois Marriage and Dissolution of Marriage Act, which can be found here.

There are time limitations on bringing a Petition for Declaration of Invalidity of Marriage on each of these four categories of grounds. These time limitations can be found in 750 ILCS 5/302 of the Illinois Marriage and Dissolution of Marriage Act, which can be found here.

Important points to remember:

A Declaration for Invalidity of Marriage is a remedy not often used due to the ease of obtaining a no-fault divorce.
A Declaration of Invalidity of Marriage requires grounds to be proven within limited time limitations. Failure to adhere to these time limitations, will likely result in the parties having to file a dissolution of marriage proceeding.
If a Declaration of Invalidity of Marriage is granted, you are granted a clean slate with regard to your marital history.
Children born during marriages that are later determined to be invalid are considered legitimate to the parties of that invalid marriage.
Spouses who in good faith were married and later the marriage was invalidated, can receive property rights and maintenance (alimony) if the interests of justice so require.

Failing to Exercise Visitation

Shahzad Khan — Sat, 01 May 2010 21:25:05 -0600

I have represented my fair share of both men and women in family law disputes over the course of years. Specifically, with regard to visitation something does not make sense to me. Why do certain parents decide not to exercise their self petitioned and court ordered visitation orders. Usually, while the litigation is proceeding, these parents fight tooth and nail to get every kind of visitation possible. But when it comes time to exercise this visitation, they are no where to be found.

There simply is no way to make someone exercise their visitation schedule. You could file a Petition for Rule to Show Cause for their non-compliance with the court order. Frankly, I've never seen that happen. You could move the court to terminate the parents visitation rights by showing that the lack of visitation is a substantial endangerment to the child's emotional, psychological and physical health. However, it's very difficult to meet the standard of substantial endangerment.

Illinois law encourages visitation by stating "that visitation affords members of a family the opportunity to communicate with each other, and thus diminish hostilities and foster an atmosphere in which a renewal of affection may take place." In re Marriage of Reed, 100 Ill. App. 3d 873 (1981). However, Illinois law also provides that a non-custodial parent cannot be forced to exercise his or her visitation rights. Something simply doesn't make sense.

When a parent fails to exercise his or her visitation rights, he or she doesn't realize the damage they are causing to their relationship with their child or children. It is the child who waits around for the phone call on Saturday. It is the child who sits by the door on Friday afternoon waiting for their other parent to spend the weekend with them. It is the child who asks the custodial parent, why doesn't my mommy or daddy visit with me or see me more often. In the end, it is the child who is left hurt and emotionally scarred.

Take a moment to think about what is important to you in life. If your family, child or children didn't enter your mind within the first few seconds of thinking about what is important to you, then you need to have your head checked.

It is never too late to show love and affection and build a strong, loving relationship with your child or children. So, make time and go call or visit your child or children.

Mother's Day, Father's Day, and summer break visitation: Great opportunities to enjoy your children!

Shahzad Khan — Sun, 04 Apr 2010 00:30:52 -0600

Mother's Day is May 9, 2010. Father's Day is June 20, 2010. Both are fast approaching. In addition, so is summer break.

If you do not have a visitation schedule with your children granting you visitation on your applicable holiday, now is the time to act. In addition, this is a great time to act to get visitation and parenting time with your children during their summer break.

If you do have a visitation schedule that grants you visitation on Father's Day or Mother's Day, PLEASE do not ignore it. This is a great opportunity for you to spend some quality time with your children. Just remember that if it wasn't for your children, you wouldn't be celebrating a mother's day or a father's day. So enjoy your special day and enjoy the company of your children.

If you do have a visitation schedule that grants you parenting time during your children's summer break, PLEASE do not ignore it. This is a great opportunity for you to spend some quality time with your children without the distractions of school and extracurricular activities. You have their full attention. Take advantage of it.

For those parents who do have a specific court ordered visitation schedule whether for the summer or for Mother's Day or Father's Day and often times do not get to exercise their visitation due to an outright denial of visitation or interference of their visitation rights by their former spouse or former significant other, now is the time to take action and have the court order their compliance. Take action now. Do it for your kids. Fight to be with them. Believe me, they will thank you for it.

Ten Ways to Love a Child!

Shahzad Khan — Thu, 25 Mar 2010 00:52:39 -0600

Whether you are married, in a relationship, divorced, separated, or going through some family law oriented dispute and you are a mother or a father, please take a moment to read over this list.

No matter what turmoil may exist in your life with regard to relationships, if you have children you and your spouse, ex-spouse, ex-significant other should take the time to show your children how much you love them and how much you care for them.

No matter what issues exist between you and your spouse, ex-spouse, ex-significant other, the children should never be caught up in these adult disputes. They should never have any knowledge about these adult disputes. They should never be brought within these disputes and have to choose sides.

Instead they should have an understanding that no matter what the situation may be, my parents, together, love me and care for me!

My ten ways to love a child:

1. Hugs and Kisses and cuddling up with one another: No matter how young the child is or how old the child is, hugs and kisses reinforce love and create closer and stronger bonds between parent and child. I know as children grow older, hugs and kisses decrease. Older kids may not appreciate this much, but I know younger kids will. Give hugs and kisses in the morning when you see them for the first time, before they go to school, when they get back from school and before they go to bed. That may be a lot for some of you and a lot for some children, but it does show a lot of love. This is the best way to express love.

2. Try to see the world from where they see the world: This applies to little kids especially, but can be applicable to older children as well. As an adult, we look down to talk to our children and they look up to see us. Often times we forget that the world as we see it in our adult eyes is not how children see the world. So, get down on your hands and knees and explore the world with your children from their level.

3. Read a book or sing a song together: Reading a book together not only is a great learning experience, it creates the very good habit of reading. Reading helps children with discovering new vocabulary. Reading a book together creates a true bonding opportunity. It brings parents and children closer to one another as does singing songs or nursery rhymes together.

4. Learn to Listen: Often times as adults we ignore most of what is said by children as habit because children sometimes say a lot. Take the time to listen to what they have to say. Give them your undivided attention. Giving your undivided attentions shows love and shows care to the child. You may be surprised by what they have to say.

5. Play and have fun together: Playing counting games or singing the ABC’s with toddlers and preschool age children is source of great enjoyment and a source of learning. Going to the park, riding your bikes together, going on a nature walk, going to a museum or taking a trip together can all be fun and enjoyable things to do.

6. Eat together. Eating breakfast, lunch when possible and always dinner together is a great way to show a child or children that they are a part of something, that they are a part of a family.

7. Surprise! Children love surprises. So what if it isn’t their birthday. So what if it isn’t Christmas, Hanukkah, or Eid. Giving something to them is a wonderful way to express your love. Taking them to their favorite restaurant, to the movies, to Chuck E. Cheese or taking them on a trip to the Grand Canyon are all wonderful ways to express your love for your child or children. Surprise them! They’ll love you for it.

8. Show praise and use positive words of encouragement. No matter how young or how old the child may be, show them and tell them how proud you are of their accomplishments, however big the accomplishment is or however small it is. Children need our encouragement. When they hear our encouragement, they know that they are loved and cared for. Tell them that you believe in them. Tell them that you support and encourage them in their education, extracurricular activities and other matters.

9. Discipline your child with love. Don’t be abusive in language or physically. Children need to have boundaries. No matter how young or old they may be, explain to them that their behavior is not acceptable and it is something that you do not approve of. Instruct them to do the right thing and guide them as good role models to not engage in improper things.

10. Be a good role model for your child or children. Don't leave it up to athletes and movie stars to be your child's role model. You are in a position to have the most influence on your child or children. Take advantage of your position!

Man throws egg at judge during child support hearing

Shahzad Khan — Wed, 24 Mar 2010 22:40:41 -0600

[I do not know what this man was thinking. From what he did, I can tell you that he has scrambled eggs for brains. Judge McJoynt is one of the nicest, most reasonable and fair judges you will ever meet. I cannot understand what possesses a person to pull off a stunt like this. People cease to amaze me.]

March 24, 2010
SUN-TIMES MEDIA WIRE

(WHEATON) A 40-year-old west suburban man was arrested Wednesday morning after he allegedly threw a raw egg at a judge during a child support hearing at the DuPage County Courthouse.

Agim Demiri of Naperville was in court for a child support case when he got upset and threw a raw egg at the presiding judge, according to a release from the DuPage County Sheriff's office. Demiri was immediately taken into custody by a sheriff's deputy in the courtroom.

The judge was not injured, sheriff's office spokeswoman Dawn Domrose said.

He was charged with one count of direct criminal contempt and remanded immediately to the DuPage County Jail for seven days, the release said. He is due back in court at 1:30 p.m. Wednesday.

The incident is still under investigation and more charges may be filed.

NC woman gets $9M in alienation of affection suit

Shahzad Khan — Sat, 20 Mar 2010 11:26:25 -0600

[reported by the Associated Press]

Thu Mar 18, 2:56 pm ET
GREENSBORO, N.C. – A jury has awarded a North Carolina woman $9 million from her husband's lover after ruling the other woman ruined their marriage.

The News & Record of Greensboro reports the jury ruled this week in 60-year-old Cynthia Shackelford's alienation of affection case. North Carolina is one of a handful of states that allow jilted spouses to sue over affairs.

Shackelford says her husband was a Greensboro attorney when he started an affair before separating from her in April 2005.

The other woman didn't respond to a message left by the newspaper.

Shackelford's lawyer says she might not get the full $9 million, but Shackelford wanted to send a message that the sanctity of marriage should be respected.

_______

Illinois is one of the handful of states that allows jilted spouses to sue over affairs committed by their spouses. The Illinois statute regarding Alienation of Affection, 740 ILCS 5/1 can be found here.

Child Support Orders: understanding your obligations before you get burnt!

Shahzad Khan — Sat, 13 Mar 2010 23:44:31 -0600

(This is part one of a two part series on problems non-custodial parents face when they do not read over and understand their obligations pursuant to a child support order.)

In Illinois the preferred and the default method of paying child support is through the State Disbursement Unit by an income withholding order The State Disbursement Unit is essentially a clearing house that accepts child support, records it ,and forwards it on to the custodial parent. Its actually a great way to pay support because it protects the non-custodial by creating a record of their payments. If child support is being paid through income withholding, then there should be no question of whether support was paid or not paid.

Having said that obligors, those parents obligated to pay child support, or non-custodial parents often find themselves in trouble when they fail to read child support orders over carefully. Often times obligors or non-custodial parents find themselves behind in child support simply because they didn't read the order over properly or they're attorney didn't advise them properly.

When a child support order is entered with an income withholding order child support does not automatically start flowing from your paycheck. Unfortunately, there is a period of time from when the support order is entered and the income withholding notice is sent, received and placed in the payroll system at your employers payroll or human resources office. During this lag time, you are responsible for paying child support on your own when it is due. If you do not see it coming out of your paycheck, you must pay for it on your own.

That means you must write a check or obtain a money order for the amount you are to pay and pay it according to the frequency you are required to pay it. So, for example if you are ordered to pay child support in the amount of $100.00 biweekly, then each time you are paid biweekly by your employer, you should drop a check or money order in the mail to the State Disbursement Unit, in the amount required until you see support being withheld and deducted from your paycheck.

This is a common scenario that gets many obligors or non-custodial parents in trouble. Once you fall behind in child support, you start incurring penalties and interest. These penalties and interest rack up rather quickly.

The worse thing you can do during this lag time, besides not doing anything, is paying child support to the custodial parent with cash payments. No matter how good your terms are with the custodial parent, child support should never be paid with cash. Cash, unlike a check or money order, does not leave any evidence behind to show that it was paid. So, if ever a dispute arises between you and the custodial parent regarding your payment of child support, cash will not save you.

Important things to remember:

Read all court orders over for your own understanding. If you do not understand something have your attorney explain it to you. If you do not have an attorney, find an attorney that conducts a free consultation who may be able to explain and answer your questions during that consultation.
There is a lag time between the time the order for support is entered and support starts flowing from your paycheck. Make sure you pay support during that lag time if support is due.
Failure to pay support during that lag time will result in penalties and interest that will add up and can result in findings of contempt, fines, imprisonment and depending on the amount the loss of your driver's license and passport.
Never pay support with cash to the custodial parent. It will burn you many years down the road.
If you are going to pay support before support flows from your paycheck, pay it with a check or money order to the State Disbursement Unit.

Child Support Accountability Laws

Shahzad Khan — Sun, 07 Mar 2010 22:36:46 -0600

True story. Father, non-custodial parent of two children works as an employee for the City of Chicago. He works hard for his money and he works hard to provide a better life for his children. He pays support on a regular basis and has never, ever fallen behind.

He's a good father, never late for visitation and always looking forward to the next opportunity to see his kids. But each time he sees his children he notices that their condition does not ever change. They wear the same old clothes, the same old tattered shoes, the same back pack year in and year out, the same things over and over again. Their condition simply does not change. Even though he pays support, he still brings them new clothes, toys and things of use for school and sport.

The father then describes the condition of the children's mother, who happens to not work and who happens to collect child support from two other men. She has nicely manicured nails, a new hair style, a new Coach purse and is well dressed and well groomed.

Make whatever assumptions you may want. In my line of business I have seen custodial parents take child support checks and payments and blow them all away at the mall and even in Northwest Indiana at Harrah's or at the riverboat in Joliet. Illinois does not have any child support accountability laws. It's unfortunate.

However, simply put there aren't many states to begin with that require a custodial parent to account for the child support that they receive from a non-custodial parent. To my understanding there are a total of eleven states in the United States that have some form of child support accountability law. Two of those states border our great state and they are Indiana and Missouri. The others include: Colorado, Delaware, Florida, Kansas, Louisiana, Nebraska, Oklahoma, Oregon, Washington and Alabama.

The Indiana child support accountability law can be found here and the Missouri child support accountability law can be found here.

You hear of these abuses once in a while. Its unfortunate that these abuses exist. But, I can say that the vast majority of custodial parents use the child support that they are entrusted with for the proper purposes of providing for the child's day to day needs, including food, clothing, supplies for school, toys and other necessities of life.

It's my opinion that if laws exist with stringent penalties for the non-payment of support, then laws should exist for the abusive use of support. However, the problem with accountability laws is how do you prove that the custodial parent has not used the support in a proper manner. Videotape of a custodial parent cashing a check at Harrah's is not always available.

Social Networking: A Family Law Nightmare!

Shahzad Khan — Thu, 11 Feb 2010 01:08:07 -0600

If you are going through a divorce, are separated, or are involved in some other form of family law related litigation, be aware of what client's post on social networking sites. Recently, the American Academy of Matrimonial Lawyers conducted a survey in which they determined that: "81% of the nation's top divorce attorneys say they have seen an increase in the number of cases using social networking evidence during the past five years."

This is true. It is true because I have used this evidence against opposing parties in divorce and paternity litigation. You will be surprised as to what evidence, clues, and information is posted on social networking sites for your client and the opposing party. Although the article specifically mentions Facebook, all social networking sites are fair game in family law litigation. I also include dating sites as sources of valuable information.

In one such case, I had the opportunity to prevent the illegal removal of a child from the state of Illinois. In that case, the opposing party was leaving clues and all sorts of information of her planned move to another state on her myspace page. Her exact words were quoted in placed in an ex-parte petition for temporary restraining order and the pages were printed out and attached as exhibits to the petition as well. Lets just say that the opposing party was shocked when she was served with a court order temporarily restraining her movement with the minor child and the petition that quoted her own words and showed pictures of her own statements.

Attorneys need to advise their clients about the pitfalls of social networking sites while involved in family law litigation. Client's should inform their attorneys that they have these sites and they frequent these sites. A question about social networking should always appear in an initial client questionnaire.

It is important to advise the client to limit their presence on these sites and remove possibly objectionable and damaging material. It is also advisable for attorneys to have the passwords to these sites to monitor their client's information so that it does not jeopardize their rights and cause damage to their cases.

Important points to remember:

This is important! Social networking sites are public forums and therefore are sources of public information.
Be careful who you accept as a friend on social networking sites. Limit access to your personal information to only those you trust. In this day and age it is very difficult to trust someone on the internet.
Do not post objectionable pictures. These are pictures that are sexually suggestive or pictures that place yourself or a child in danger of being harmed.
Do not post objectionable comments. These include comments regarding your state of mind, including that you are depressed or you have thoughts of suicide Also do not post your feelings of rage and anger towards your spouse, ex-spouse or significant other. In addition, do not post your thoughts, feelings and emotions pertaining to persons involved in your case, like the judge.
Make sure your attorney is aware that you have these sites and make sure your attorney reviews the sites with you to remove objectionable information or information that could be construed in a wrong way.

Legal Separations are Unnecessary!

Shahzad Khan — Fri, 05 Feb 2010 00:42:34 -0600

Often times clients come to me and ask for a legal separation. A legal separation is just that. It is a means to legally live separate. The essential effect that it has is that it cuts off the marital estate. Therefore, from the date the legal separation is entered, the time period that represents the marital estate is now defined This means that whatever is earned, acquired or accumulated after the entry of the legal separation judgment is not considered a part of the marital estate and therefore is not subject to an equitable division under Illinois law. Only the property acquired or accumulated and income earned during the defined marital estate is subject to an equitable division for purposes of a dissolution of marriage case.

Legal separations are governed by 750 ILCS 5/402 of the Illinois Marriage and Dissolution of Marriage Act, which can be found on this page.

In the years that I have practiced, I have probably only performed two legal separations. They are rare. The reason that they are rare is because they leave the parties to the legal separation in limbo. A legal separation is a temporary fix. It does not conclude all issues like a judgment for dissolution of marriage does. Orders for child support and maintenance can be sought during a proceeding for legal separation. However, courts lack jurisdiction to issue orders for the distribution and allocation of property, unless the parties raise an issue as to property and submit it to the court for its decision.

What eventually happens is the parties will file for a Petition for Dissolution of Marriage or in some cases the parties will reconcile. The cases that I handled were cases where the parties had been married for significant periods of time and that the parties were looking for a cooling off period to sort their lives out and determine whether their marriages were salvageable. In each of those cases, the parties eventually reconciled.

Reconciliation is always possible at any time during a legal separation or a dissolution of marriage. A proceeding for legal separation should not be looked at as a means to a reconciliation. It may provide the parties some time to think things over separately, however, the court in a dissolution of marriage proceeding can also provide the parties time to think things over and determine whether they wish to reconcile or not. Often times, courts will provide parties up to six months to determine whether they wish to reconcile or proceed forward with their divorce case.

In my opinion, a legal separation is simply unnecessary.

Important Points to Remember:

A proceeding for legal separation is a rarity.
Temporary support and maintenance can be sought during a legal separation proceeding.
Court’s lack jurisdiction to distribute and allocate property on their own, unless the parties bring the issue to the attention of the court and request the court’s decision.
A legal separation will result in either a reconciliation or conversion to a Petition for Dissolution of Marriage.
Legal separations are unnecessary.

Tender Years Doctrine

Shahzad Khan — Tue, 19 Jan 2010 14:20:24 -0600

For years many states, including Illinois, followed what is known as the tender years doctrine. The tender years doctrine is essentially a doctrine that states that the mother of children in their tender years is the preferred parent to have custody of the subject children when the issue of custody is being litigated.

Fortunately, this doctrine has been abolished. The First District Appellate Court in the case, In re Marriage of Kennedy, 94 Ill.App.3d 537, 545, 49 Ill.Dec. 927, 933, 418 N.E.2d. 947, 953 (1st Dist. 1981) states that the legal presumption no longer exists. The Court specifically states:

[C]hanging social and legal trends have cast the tender years doctrine aside. The doctrine rested on a sociological presumption that maternal affection is more active and better adapted to the care of the child than that of the father. With the advent of new lifestyles for both men and women, however, the factual basis for the doctrine, if there ever was one, has vanished . . . . The sex of the candidate for custody is but one of the many factors that may be considered in determining which parent receives the child.

The Court basically provides the holding that the sex of either parent is not the definitive factor in determining custody of the child. The sex of either parent may be considered as one of many other factors in determining custody. Previously, the courts in custody litigation may have considered more mothers over fathers to be awarded custody, because the previous trends had been that more mothers were primary care givers versus fathers.

However, again, sex of either parent is not defining factor that determines custody. Other factors that the court may consider are outlined in Section 602 of the Illinois Marriage and Dissolution of Marriage Act. But, please note that this list of factors is not a complete list. Other factors may exist depending upon the facts of your particular case.

In addition, the tender years doctrine is no longer considered the presumption because social trends and social norms have changed and continue to change. Due to the recent economic downturn, more men are unemployed and as such are at home with their children, while more women are joining the workforce. Due to this role reversal, many men are able to argue that they are in a better position to care for and be present for their children.

Similar conclusions are discussed in a November 2009 article by Working Mother Magazine called Custody Lost, in which Sally Abrahms states:

A shift in the courts’ focus, a limping economy and dramatic male/female role reversals in many nuclear families are leading to nontraditional outcomes. Not long ago, men usually paid the child support and doled out the alimony. Moms (working or not) almost always got the kids in messy divorce wars. Years of changing diapers, wiping noses and kissing boo-boos gave them the edge. But now the tide is turning.

Times have changed. Societal norms and trends have changed. Men, who traditionally were the sole bread winners in families, have lost their jobs due to tough economic times. This has caused women, mothers to pursue employment that was previously unnecessary during good economic times. This has resulted in more children being taken care of by their fathers and more fathers getting primary custody of their children.

This does not mean that if you are an unemployed father taking care of your children that you are entitled to a preference for custody of your children. This simply means that there has been a leveling of the playing field in custody litigation, where both men and women have an equal chance of being awarded primary custody over their children.

Illinois Child Support: A Simple Guide

Shahzad Khan — Sat, 09 Jan 2010 00:43:14 -0600

I often get a hypothetical question from friends and acquittances at dinner or at other occasions about how much of their income would go for child support if they were to divorce or end their relationships with their significant other.

Illinois, unlike many other states, looks at the income of the non-custodial parent to determine child support. Our neighboring state of Indiana looks at the income of both parents, the amount of time the parents spend with the children, and other factors to determine child support. But, in Illinois child support is determined by very simple statutory guidelines.

Section 505 is the statute section that governs the issue of child support in Illinois. The specific statutory guidelines can be found in 750 ILCS 5/505(a)(1) of the Illinois Marriage and Dissolution of Marriage Act, which is stated as follows:

(1) The Court shall determine the minimum amount of support by using the following guidelines:
   Number of Children Percentage of Supporting Party’s
   Net Income
   1 20%
   2 28%
   3 32%
   4 40%
   5 50%

Section 505 basically provides that the court can deviate from the guidelines if the court finds the application of the guidelines to a particular case to be inappropriate based upon the best interests of the child and based on other enumerated factors. However, there are factors not listed within the statute section that may still be considered by the court to allow for a deviation from guidelines. Section 505(a)(2) can be found here.

So, essentially, the court can deviate from the above referenced guidelines only if you have an exceedingly good reason to deviate from those guidelines. While litigating many child support cases, I have determined that it is very rare to get a judge to agree to a deviation from guidelines. I am not saying it is impossible to get a deviation. What I am saying is that it is very difficult and you have to have a very good reason and very good evidence to support your theory.

Once you know what your percentage is going to be, whether by statutory guidelines or via deviation, the next step is to figure out your net income. In Illinois child support is based upon the net income of the obligated or non-custodial parent, not gross income. Pursuant to Section 505: net income is defined as the total of all income from all sources, minus the following deductions:

(a) Federal income tax;

(b) State income tax;

(c) Social Security (FICA payments);

(d) Mandatory retirement contributioins required by law or as a condition of employment;

(e) Union dues;

(f) Dependent and individual health/hospitalization insurance premiums;

(g) Prior obligations of support or maintenance actually paid pursuant to court order;

(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive gifts.

All income from all sources means just that. Every source of income is included. This can include, but is not limited to, your wages from all your employers, interest income, dividend income, pensions or retirement income, social security disability benefits, cash income, and self employment income.

Once the net income is determined, the appropriate statutory percentage or deviated percentage is applied to the obligated or non-custodial parent’s net income to determine the support amount that he or she will have to pay.

Important Points to Remember:

Child Support in Illinois is based on statutory guidelines. This means that the amount of support you pay is dependent on the number of children you have with the particular mother in your particular case.
The courts will more often than not follow the statutory guidelines.
Deviations are available, but difficult to achieve. You must have a compelling reason to deviate from the statutory guidelines and your evidence in support must be as compelling.
Child support in Illinois is based upon the net income of the obligated or non-custodial parent. In Illinois net income is specifically defined in the statute.
Other states, other than Illinois may use gross income, incomes of both parties, time spent with the children and other factors to determine child support. Please consult an attorney in your state to know your specific requirements.

Divorce: You've Been Served!

Shahzad Khan — Sun, 27 Dec 2009 23:43:01 -0600

On December 27, 2009, CBS news reported that a man in Sacremento, California was hospitalized for burns and smoke inhalation resulting from trying to burn papers served on him as a part of his divorce case. The article can be found here.

This is clearly something you should not do if you are served with papers for divorce or any other court proceeding. It is frustrating to be served with court papers and in his case, a petition for dissolving his marriage. Thoughts regarding ending a marriage are not pleasant. Moreover, whatever is written in the petition will likely cause you to rip your hair out and cause you to feel anger and at the same time sadness about a relationship that you have put so much love, time and effort into. These emotions are normal. It’s what you do with these emotions that may get you in trouble.

Extreme anger may result in domestic violence. Extreme sadness may result in suicidal thoughts and actions. Most people are level headed and usually call an attorney to find out about their rights and obligations. That’s what you should do if you are served with divorce papers.

However, I have dealt with people who have taken their emotions to the extreme and committed acts of domestic violence and acts that affect their own personal safety. These actions are not going to help you win your case. If children are involved in your case, these actions are going to significantly effect your chances of having any contact with your children.

Litigants that I have represented and have dealt with on the other side have been ordered to have supervised visitation with their children due to acts of domestic violence and uncontrolled anger. Litigants can be required to undergoe anger management therapy and other psychological therapies. Litigants can also lose any possibility of getting custody of their children just because of their thoughtless actions.

So it’s important to think before you act. But, if you cannot control yourself, get help immediately.

Important things to remember:

If you are served with divorce papers or any other kind of legal papers for any proceeding, call an attorney as soon as possible to understand the documents that have been served upon you and understand your rights and obligations.
Time is of the essence. In some jurisdictions a response to a petition for dissolution or divorce is required within 20 days of service. In Illinois, some form of affirmative action (filing a response or filing an Appearance) must be taken within 30 days of service. Failure to do so may result in adverse effects on your rights and obligations. So, consult an attorney as soon as possible.
If you are served, keep your emotions in check. Remember extreme actions can have extreme results.
If you or someone you know is suffering from extreme anger or extreme sadness or depression due to a divorce, get help immediately. Contact a mental health professional. If there is an immediate threat to life, call 911.
If you filed for divorce, and you have been threatened by your spouse due to the filing or have been stalked, harassed or intimidated in any manner, contact an attorney to understand your rights and obligations. You do not have accept the harassment, intimidation, stalking or interference with your personal liberty. Depending on your jurisdiction, protective orders, restraining orders and orders of protection exist to protect children and litigants from unruly spouses who cannot control their anger and their emotions.

Voluntary Acknowledgments of Paternity - Don't sign it unless you are absolutely sure!

Shahzad Khan — Sun, 13 Dec 2009 00:54:11 -0600

Recently, I had the opportunity to observe a situation that many of my clients have gone through with the births of their children. I went to celebrate the birth of a child with a friend and his girl friend. While I was present, a hospital worker came into my friends hospital room and asked whether he was married to the woman who gave birth to his child. In this case, he was not married to the woman and as such was provided a form known as a Voluntary Acknowledgment of Paternity.

A Voluntary Acknowledgment of Paternity (VAP) is a form provided by the state that essentially creates a legal relationship between father and child when signed. The significance of signing this document is known as paternity by consent. If this document is signed then the father waives his right to a DNA test and it also creates an obligation for child support. In addition in Illinois, signing a VAP awards sole custody by default to the mother of the child.

Essentially this document bypasses the court system on the issues of paternity and custody. If the father wants visitation with the child, then he has to petition the court to establish that right. If the father wants custody, he has to petition the court to modify custody. Instead of starting out disadvantaged, why not have everything established in court. If you are going to be there for one issue, why not be there for all the issues in your case and start out on an even playing field with the mother of the child.

In the United States alone, approximately 40% of all births are to unmarried parents. That percentage continues to grow each year. I do not know whether there are any figures on how many VAPs are signed each year to determine paternity administratively. But it happens quite often and quite often the new father has second thoughts.

DO NOT SIGN IT, unless you are absolutely sure you are the father!

Do Not be pressured into a situation that you may later regret. Do Not let your emotions get in the way. If you are not sure, do not sign it. I cannot stress that anymore. Its that simple.

If you have signed it and the emotions of the birth have passed and you have come back to your senses and you realize that you might not be the father of the child, you do have a sixty day grace period, after signing the VAP, to rescind your VAP in Illinois. After sixty days have passed, you are on the hook for the next eighteen years plus the possibility of college. Think about that for a second!

Challenging a VAP after the expiration of the sixty day period is possible but very difficult. A VAP may be challenged on the grounds of fraud, duress or material mistake of fact. The burden of proving this is on the party challenging the VAP.

In the cases that I have litigated, the Courts have focused in on whether the act of the father signing the VAP was voluntary and whether the father had any doubts about his paternity at the time of signing the VAP. If he still signed the VAP with those doubts in mind, the court was not inclined to vacate the VAP. This is because even though he harbored doubts about his paternity, he still committed a voluntary act by signing the document declaring himself to be the father, regardless of whether there were facts that supported a conclusion that a fraud had been committed against the particular father.

Paternity fraud is a serious issue and will be discussed in a later submission. A recent New York Times Magazine article titled: Who Knew I was Not the Father, by Ruth Padawer, is a great place to get acquainted with this topic.

In getting back to our topic, of whether to sign the VAP, DO NOT succumb to pressure, threats and emotions. Do Not give in to anyone. BECAUSE: YOU HAVE RIGHTS! You have the right to a DNA test. You also have the right to have a judge resolve all together the issues of paternity, custody, visitation and child support. The best thing to do in this situation is to consult an attorney to discuss your rights so that you can start out on an even playing field.

Important things to remember:

Signing a VAP is a voluntary act. Do not sign it, therefore do not commit a voluntary act unless you are absolutely sure you are the father of the child. In an age where DNA tests are now available over the counter, it's best to side with caution and determine with certainty whether the child is yours.
If you are in Illinois it is best to have a judge oversee your case and resolve the issues of paternity, custody, visitation and child support rather than having some of the issues resolved through one administrative act.
Signing a VAP creates a legal relationship by consent of the parties.
Signing a VAP waives your right to a DNA test and puts you in a disadvantaged position on the issue of custody.
Preferably before the birth of the child, consult a family law attorney to discuss your rights, obligations and options. If the child is already here, consult a family law attorney as soon as possible.

Child Support and Visitation do not go hand-in-hand!

Shahzad Khan — Fri, 04 Dec 2009 00:28:48 -0600

A common misconception among former clients and many litigants is that payment of child support guarantees visitation. Child support has nothing to do with visitation and vice versa in Illinois. If an order provides that you are to pay child support based upon statutory guidelines, you must do so. If a separate order provides that you also have certain detailed and specific visitation rights, then you should exercise those rights.

The custodial parent, namely your ex-spouse, ex-girlfriend, ex-boyfriend or ex-significant other cannot deny you the right to have visitation with your child or children, if you do not pay child support. Not paying child support pursuant to court order is a violation of that court order, which can result in a finding of contempt and further result in fines, penalties and imprisonment. The same goes for a violation of a visitation order. The person who violates an order for visitation can have a finding of contempt issued against them and therefore be subject to similar fines, penalties and also eventually imprisonment.

You, as the custodial parent, may hate the fact that you are not receiving child support as ordered. However, you cannot take the law into your own hands and arbitrarily modify the order so that the non-custodial parent has no visitation. The only person entitled to curtail visitation rights is the circuit court judge assigned to your case. That's it. You as a litigant do not have that right.

Important points to remember:

If you are under an order to pay child support - you as the non-custodial parent must continue to pay support per the order until that order is modified or terminated.
If an order for visitation exists - the custodial parent must timely make sure the children are available for visitation at the designated transition location.
If an order for visitation exists - the non-custodial parent must timely appear for visitation at the designated transition location and must return the children on a timely manner at the same or specified transition location.
You are NOT the judge - You are a litigant. You do not have the ability to terminate or modify orders. So you cannot terminate or modify your child support obligation arbitrarily. Similarly, you cannot terminate, cut short or modify a parents visitation just because he or she has not paid child support.
Rules to Show Cause - There is proper procedure to rectify the violation of any court order, including visitation and child support orders. Civil contempt, penalties, fines and imprisonment may apply if you are successful in proving your case. However, in Illinois a violation of a visitation order can also result in criminal prosecution.

Deadlines for Holiday Visitation

Shahzad Khan — Fri, 27 Nov 2009 00:14:17 -0600

As we have just concluded one holiday, there is another set of holidays on their way: Christmas Eve, Christmas, New Years Eve and New Years Day.

While Brian Galbraith over at, "Ontario Family Law Blog" suggested things to remember while spending your first post-divorce holiday alone, that got me thinking about the boundaries of holiday visitation.

In most cases, a properly written parenting agreement will provide the necessary parameters for such holiday visitation. But sometimes, the parenting agreement is lacking in substance or sometimes the parties are at a stage in the litigation where the issue of holiday visitation has not hit the surface and no parenting agreement exists.

In either case, if you don't have a holiday visitation schedule you better act fast. Having practiced throughout the state, I have come to know that many judges have their own arbitrary deadlines with regards to holiday visitation. This means that these judges will not consider a motion for holiday visitation after a set date.

Be aware that some of those deadlines may have already passed. It is wise to check with your judge’s clerk to determine whether your judge has a policy regarding holiday visitation. It would be unwise to file an emergency motion seeking holiday visitation in a courtroom where a judge has set a deadline for holiday visitation and that deadline has already passed. You and your attorney will get an earful. I guarantee it. The judge will ask you why you didn’t think of seeking holiday visitation earlier in the year, as you were well aware that Christmas Eve, Christmas, New Year’s Eve and New Years Day are all holidays whose dates are known well in advance. In addition, your motion will probably be denied.

However, if the judges in your county do not set deadlines, you still must act fast. Christmas is only a few weeks away and people tend to leave town to be with family and friends. Judges are people like you and me and they also leave town as well. Although an emergency judge may be available in your county during the week of a particular holiday, seeking holiday visitation on an emergency basis is not a good idea and will make the judge very unhappy with you and your attorney.

Issues pertaining to visitation are usually not considered emergencies unless there is some danger to a child. Therefore, it is prudent to act fast and get the matter in court as soon as possible.

Important points to remember:

Plan ahead of time - these days you can get calendars for upcoming years well in advance.
Contact the clerk for your particular judge to determine his or her specific requirements as to holiday visitation.
Do Not seek holiday visitation after such a deadline has passed.
Remember if you fail to act fast, you deprive yourself of a opportunity to spend some quality time with your children without the distractions of school and extracurricular activities.

Payment of Child Support on Social Security Disability

Shahzad Khan — Fri, 20 Nov 2009 16:52:39 -0600

Section 505 of the Illinois Marriage and Dissolution of Marriage Act imposes an obligation for support of a child on either one parent or both parents. Either one or both parents can be required to pay the necessary and reasonable expenses of the minor child including reasonable and necessary expenses pertaining to the child’s physical, mental and emotional health. This obligation to support the child continues until the child emancipates under Illinois law.

The obligation of support applies to all parents including parents who are self employed, employed by an employer, underemployed or unemployed. It even applies to those who are disabled and therefore unable to earn a living.

Is this fair? The simple answer is yes.

Why? Because the needs of the child need to be satisfied. The only people who should be responsible for making sure those needs are met are the parents of the child or children.

So how does a parent who is disabled pay support? If the disabled, non-custodial parent has applied for social security disability benefits, that parent will likely receive a lump sum payment that is retroactive to their initial filing with the Social Security Administration. It is also possible that the custodial parent may receive their own lump sum payment for the benefit of the child. This lump sum payment would represent the support that the non-custodial parent would have paid over the course of months since the non-custodial parent filed his claim with the Social Security Administration.

In addition, the lump sum payment made to the custodial parent would be used to satisfy any child support arrearages that may exist. However, if the arrearages are not completely satisfied by the lump sum payment paid to the custodial parent, then the lump sum paid to the disabled or non-custodial parent can be used to satisfy this debt.

In addition, the non-custodial parent is not relieved of his obligation to pay future support just because he or she is on social security disability. The non-custodial parent will continue to receive his monthly benefit as will each of his dependents through a dependent allotment that will be paid directly to the custodial parent and which will satisfy his or her obligation for child support.

The rationale behind requiring a disabled person on Social Security Disability to pay child support is that the benefits that the disabled parent receives are a derivative of their employment over the course of years. Therefore the amount of benefits they receive are accumulated from income that they earned over the years of their work history. As such, this benefit that they are receiving is considered income for purposes of child support.

The process of receiving Social Security Disability benefits is a long and arduous process. It's not as simple as I have written it above. Lump sums are not handed out freely. The process can take from several months to a year or more. Sometimes people get rejected and have to refile. Most clients who I have represented in family law matters involving child support have other attorneys representing them before the Social Security Administration. It's always advisable to have your family attorney work with your disability attorney so that information is made available to the family law attorney and to the family law court. This helps to prevents Rules to Show Cause, contempt findings and helps to keep the litigant out of jail.

Important points to remember:

Social Security Disability benefits are subject to a child support obligation because they are derived from your income over the course of your work history.
If you are disabled consult a disability attorney to determine your rights;
If you have on-going family law issues pertaining to child support, consult a family law attorney to determine your rights and obligations under Illinois law;
Execute consent forms to allow your disability attorney and your family law attorney to talk to one another and coordinate a proper strategy so that you do not get in trouble in court;
Results vary. The process of obtaining social security benefits can take from several months to a year or more. Sometimes people have to reapply for benefits.
If awarded a lump sum, DO NOT spend or hide your lump sum payment to avoid paying down back child support arrears. This will get you in a lot of trouble. You may found yourself in a jail cell.