Tag Archives: Wheaton family law attorneys

Parental Rights and Losing Them

parental rights, Wheaton family law attorneysDespite a common misconception, merely being the biological parent of a child does not grant an adult immediate and total governance of that child’s life. Parental rights manifest when someone accepts legal responsibility regarding a child, and those rights can be lost. Still, there are quite a lot of misconceptions about parental rights that it is important to correct.

Definition of Parental Rights

Generally speaking, parental rights exist in any person who has been legally granted decision-making authority for a child—often referred to as legal custody. Despite the name, parental rights may be apply to anyone who has custody, including grandparents, or even an unrelated person or organization. It is a matter of good public policy and general fairness that, if possible, every child should have acknowledged legal parents. In Illinois, by law, a biological father actually has no legal rights to his child unless he acknowledges paternity.

The concept of tangible parental rights was articulated best in jurisprudence by the case of Santosky v. Kramer, 455 U.S. 745 (1982), in which three children were removed from a home after accusations of abuse. The state only had to prove there was permanent neglect “by a fair preponderance of evidence,” which is a relatively low legal standard. The Santoskys argued that such a low standard violated their parental rights, and the Supreme Court agreed, holding both that parental rights exist under law, and that such a low evidentiary standard would harm them.

Winning and Losing Parental Rights

While historically, losing one’s parental rights was an irreversible process, it has been possible (in limited circumstances) to regain them since 2009. However, this is extremely rare. The more common scenario in terms of gaining parental rights is when one applies to adopt a child.

In Illinois, parental rights may be terminated either by the government (such as in cases where criminal neglect is present) or as a result of an adoption-related proceeding. It is not technically possible for someone to unilaterally surrender parental rights, though if there is a history of abandonment a court may consider revoking that parent’s rights. A good example would be when a parent walks out on a family and never contacts them again, or if a baby is abandoned at a hospital.

Illinois mandates specifically that if someone has been convicted of three felonies, with the last one being within five years’ time, that a rebuttable presumption is created that he or she is “depraved,” with the implication being that their parental rights should be terminated. However, apart from that, there are surprisingly few specific statements that list grounds upon which parental rights will be terminated. Aside from proven instances of severe abuse or neglect, Illinois courts are reluctant to take such an action. It is considered good public policy to work toward a two-parent situation for each child.

More evidence of this is seen in the fact that rights cannot be terminated unilaterally. It is an unwritten rule that if a spouse seeks to terminate the parental rights of their children’s other parent, the request will be more favorably considered if there is another person—such as a stepparent—willing to step in as a parent.

Contact a Family Law Professional

If you are in danger of losing your parental rights, or if you believe that your former spouse should lose theirs, we can help you weigh your options. Contact an experienced Wheaton family law attorney to discuss your case today. Call 630-871-1002 for a free consultation.

 

Sources:

http://www.kylewood.com/familylaw/santosky.htm

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2098&ChapterID=59

What Are Substantial Changes in Circumstances?

change, Wheaton family law attorneyChild and spousal support are a part of life for many Illinois residents. Hever, even if the agreement to provide one or both was signed in good faith at the time of a divorce, things change. Child support and spousal support payments may both be modified if you are able to show a substantial change in your circumstances, and while this may seem vague or confusing, the law is fairly clear as to the procedure that must be followed.

Why Is a Substantial Change Required?

For your child support payments to change, your income or living situation must change to the point where the current amount is no longer appropriate. For example, if you had formerly agreed—or been ordred—to pay $200 per month, but then took a substantial pay cut, it could be appropriate to lower your support payments since your income is correspondingly less. To keep payments high when you may no longer be able to afford them is inequitable at best, and at worst, can be devastating to the standard of living for the paying parent.

There are rare circumstances where you may petition for a change in the amount of support without showing a substantial change in your circumstances, but in those cases, there is still an alternative provided so that the child’s standard of living will not drop. For example, one of the more common exceptions is asking for an adjustment of support payments if the child is moved onto the paying parent’s health insurance. If that occurs, the paying parent is essentially paying for all of the child’s health care, which is likely not an insignificant sum. However, most cases will demand the showing of substantial change before adjustments to support payments will be discussed.

Factors to Be Considered

It is important to understand that a mere change in your income level is usually not sufficient to merit a change in support payments. The court will examine the events behind the raise or loss of income, such as voluntarily accepting a pay cut or trading pay for other benefits like fewer responsibilities or working closer to home. Some other factors often taken into account include the emancipation of one or more children (either by reaching the age of 18 or becoming emancipated minors), a change in the child’s needs (such as acquiring a physical disability), and a decline in the health of the paying parent that is severe enough to affect his or her ability to work.

Another critical fact that many couples forget or ignore is that no agreement regarding child or spousal support that is not approved by the court will be enforceable. The most common out-of-court agreement couples make, prenuptial agreements, cannot make provisions for child support in particular, and any other agreement to refuse modification or to stick to an arbitrary fee schedule will usually be set aside. Support issues should be dealt with at the time of divorce in the presence of a mediator or family court judge in Illinois.

A Family Law Attorney Can Help

Life happens, and sometimes it can have an effect on your income and standard of living that is unforeseeable. We all want to meet our obligations, but only if we can do so without actively harming ourselves. If you have a support order that needs to be changed, contact a Wheaton family lawyer. Call Andrew Cores Family Law Group at 630-871-1002 for a free consultation today.

 

Source:

http://www.ilga.gov/legislation/ilcs/documents/075000050k510.htm

The Role of a Guardian ad Litem

guardian ad litem, DuPage County In most cases, parents are able to keep the best interests of their children at heart. However, in the situations where parents may struggle to do, children still need someone who will put them first. Nowhere is this more important than during court proceedings. A guardian ad litem can speak up for a child or children’s interest, independent of parental pressure, and work toward the goal of giving the child the best life possible.

What a Guardian ad Litem Is and Is Not

Colloquially, the term “guardian ad litem” (GAL) is often used to describe people and positions that do not actually fit the definition. Some believe that a GAL is a sort of attorney-at-large, answerable to all parties and the court. Others think a GAL is only necessary if the possibility of someone losing their parental rights is a possibility. It is perhaps understandable that they are not well known, given GALs are used most often during child custody proceedings, but one must understand what a GAL actually does—considering that his or her role will involve your children.

The job of a guardian ad litem, in reality, is to investigate the case and compile a report that will be used by the judge as a recommendation of the child’s best interest and to make recommendations for the child’s future. The exact duties of this position might vary slightly between counties and states, but in Illinois, the GAL answers only to the judge and is only concerned with the child’s best interest. He or she may be called as a witness and may be subject to cross-examination regarding the submitted report.

When Your Child May Need a Guardian Ad Litem

While GALs generally are appointed in cases where child custody or parenting time is an issue, they may also play a role in cases where abuse is suspected or alleged. Because they are not beholden to either parent in such a matter, their testimony or report can be extremely significant in terms of determining where the child will live. Any matter which concerns the welfare of a child may prompt the appointment of a GAL, and it is the court’s discretion on whether or not to do so. Either party to the case may also file a motion requesting a GAL, as well

The GAL’s availability as a witness, unlike a child representative, can also help give children a voice in the divorce process without unduly traumatizing them. Children who can communicate are often placed in awkward positions by divorce or custody hearings, and they may feel pressured or influenced by one or both parents. If a GAL is involved in the case, your children can communicate any relevant information to him or her instead of being put through the fear and trauma of testifying in court.

Take Steps to Protect Your Chil?

Any kind of court proceeding can be frightening and intimidating for you, and will likely be even scarier for your children. If you are in the position where a guardian ad litem will be needed in your case, we may be able to assist. Contact our dedicated DuPage County child custody attorneys today to set up an appointment.

 

Sources:

http://ilga.gov/legislation/ilcs/documents/075000050K506.htm

http://www.cookcountycourt.org/ABOUTTHECOURT/CountyDepartment/DomesticRelationsDivision/ChildRepGuardianAdLitemGAL.aspx