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A legal battle stretching from Illinois to Indonesia found its way into a Cook County courtroom in March 2017, as a judge ruled against granting guardianship and custody to a baby’s grandmother. According to an ABC 7 Chicago News report, the infant’s parents are serving a prison sentence in a Bali murder case, having been convicted just before the child’s birth. The girl had been allowed to stay in jail with her mother until her second birthday, and her mother entrusted an Australian woman with her care on that date.
The basis of the judge’s ruling was that the child’s parents must give written consent before a decision on the grandmother’s guardianship petition would be proper. There are complicated issues involved in any Illinois guardianship case, as an experienced attorney can explain.
Illinois Probate Act
Just like any other case, a court must have jurisdiction over the matter and the parties involved. In guardianship cases, the Illinois Probate Act specifically states that the court lacks jurisdiction to rule on a petition to appoint a guardian if:
A court will make a determination of parenting time regarding minor children as part of a divorce, and both parents are expected to meet their obligations under the order. The occasional deviation from the schedule is understandable as life gets hectic for one parent or the other. However, continued incidents that deviate from the parenting time order can become a problem.
Abuse of allocated parenting time is inconvenient and discourteous, and it is also against the law. Still, it is possible to pursue enforcement under Illinois law. You may be able to proceed in a civil court to enforce parenting time, but—to give more “teeth” to the court’s order—you can also seek criminal penalties against the non-conforming parent. Talk to an Illinois parenting time lawyer about the two different options.
Enforcement in Civil Court
Illinois law specifically provides for situations where there is abuse of parenting time by one of the child’s parents. The other parent can file a petition stating the name, contact information, and place of employment of the person offending the parenting time order, as well as the details of the parenting plan in effect at the time. In addition, the petition must include the specifics of how the other parent is violating the terms of the parenting time order, along with relevant information.
Illinois law allows parents to seek a determination on parental responsibility before the child is born, whether or not the individuals are married. If the issue of parental responsibility arises out of a divorce case, the court would first apply the legal presumption that the child is a product of the marriage. Where the issue is presented in the case of unmarried parents, a court must first determine parentage.
Either situation introduces interesting questions about jurisdiction over an unborn child under state law, as courts must have the authority to hear the case before making any determination on parental responsibility in Illinois.
General Jurisdiction Rules
Under Illinois law, a parent cannot take a child out of the state once the other parent has been served with parentage or divorce papers. Once all the parties are before the court in this way, the court has jurisdiction. However, this rule only applies to living people; it is necessary to turn to Illinois law on parental responsibility matters to determine jurisdiction in cases where the child is not yet born.
The already-contentious divorce between Jesse Jackson, Jr. and Sandi Jackson is becoming even uglier as attorneys for the spouses spar over jurisdiction issues. The Chicago Sun-Times reports that the dispute centers on whether Illinois courts have jurisdiction over Ms. Jackson, who lives in Washington, D.C. with the couple’s two children. Mr. Jackson’s lawyers allege that there is a valid legal basis for the divorce case to remain in Illinois due to Ms. Jackson’s connection to the South Side residence the couple shared: She contributed to household expenses since purchasing the home in 1994 and uses the space when she is in town. A decision on the motion filed by Mr. Jackson’s attorneys may not come for some time, yet the case raises important questions about jurisdiction in Illinois divorce cases.
Two Types of Jurisdiction for Divorce Cases in Illinois
In general, jurisdiction determines where you file for divorce, because you must initiate your case where you reside—not where you were married. There are two types of jurisdiction you must satisfy to proceed with your divorce in Illinois.
When a couple files for divorce, there may be a great discrepancy between their incomes—a difference that can make life very difficult for the lower wage earner when the other spouse is no longer contributing to the household. To avoid such a situation, Illinois divorce law provides for a proceeding called a Petition for Temporary Support and Other Relief.
If a judge grants the petition, one spouse may be required to pay spousal support to the other to assist with living expenses; the arrangement is temporary and only lasts until a final order is entered to conclude the divorce. There are strict rules governing the petition process, so it is wise to consult with an Illinois spousal maintenance attorney for assistance.
Petition with Supporting Affidavit
Either spouse in a divorce proceeding may file a petition to receive temporary spousal maintenance, so long as it is accompanied by an affidavit stating the facts that entitle him or her to support. The affidavit must include financial documents such as tax returns, bank statements, business financial statements, and other paperwork to support the facts asserted by the petitioner.
When you hear the term “restraining order,” you often think of a domestic situation where a victim goes to court to prevent an abuser from engaging in acts of violence. However, Illinois law also provides for restraining orders that relate to property in a divorce, which are used to safeguard assets during the proceedings. Without a valid order in place, one spouse may be tempted to empty bank accounts, transfer real estate, sell off certain personal items, or take other actions to impact an equitable distribution of property. An Illinois attorney can tell you more about restraining orders as they relate to property in a divorce, but some general information should be helpful.
Petition for Temporary Restraining Order
Either spouse may file a petition with the court to restrict the other from disposing of property, except where it is required in the usual course of business such as cost of living expenses. Prohibition on transferring, selling, concealing, and encumbering assets are included in this type of order. The petition must be supported by an affidavit, which is a sworn statement attesting to the facts contained in the document.
Illinois lawmakers recognize that grandparents and non-parent relations can play a big role in a child’s life, so the General Assembly enacted a law that allows individuals to seek visitation under certain circumstances. In general, a person must file a petition in court; however, it is not necessary for there to be a pending case for divorce or allocation of parental responsibilities in order to initiate proceedings. A family law attorney can assist you with the process if the situation warrants visitation by non-parents, but some general information can help you understand your options.
Illinois Statute on Visitation by Non-Parents
The law regarding the visitation petition limits eligibility to grandparents, great-grandparents, step-parents, and half- or step-siblings. Once the individual passes the relationship test, there are additional requirements:
On its face, the Illinois Voluntary Acknowledgement of Paternity (VAP) seems like a simple form. It requires basic information about the mother, the child, the person asserting parentage, and other details. The benefit of using a VAP is that paternity is established without having to go to court. However, it is critical that you know the legal implications of executing the form—no matter what position you are in as a parent.
Before you consider this method of establishing paternity and sign the VAP, make sure you talk to a qualified Illinois parentage attorney to fully understand your rights and obligations.
VAP Basics
In Illinois, a child is presumed to be the offspring of two parents only if these individuals were married at the time the child was either born or conceived. Where the parents were not married, only the person who actually bore the child is considered a parent and can be listed on the birth certificate. It is possible to overcome the presumption and establish parentage through executing the VAP or by going to court for a determination on paternity.
If you are like many other individuals seeking divorce in Illinois, you hope to complete the process with as little cost and hassle as possible. You may have already sought information on the state’s Joint Simplified Dissolution of Marriage option for divorcing couples, which is attractive because it keeps expenses low and reduces the amount of time for resolution of your case. However, the fact is that very few couples actually qualify for the process due to the strict legal requirements. The eligibility rules will help you understand why—in most cases—you need a skilled Illinois divorce attorney to handle your matter.
Eligibility for Joint Simplified Dissolution Procedure
As a party seeking to divorce through the simplified process, you both must certify that every one of the following conditions is true when initiating the proceeding:
A parenting plan for decision-making and parenting time is a part of any Illinois divorce when minor children are involved, whether it is by agreement of the parties or ordered by the court. The provisions of the plan that cover parenting time refer to the periods where one parent is responsible for care-taking duties. However, provisions may not address what happens when something “comes up” to impact the normal schedule.
Illinois law regarding the right of first refusal is intended to alleviate issues that may arise under these circumstances. You should discuss your situation with a qualified parenting time lawyer. Still, some answers to the most common questions on right of first refusal should be helpful.
What is the Right of First Refusal?
When one parent is unable to watch a minor child during regular parenting time as defined by the parenting plan, he or she would typically retain a caretaker to handle this responsibility. However, a right of first refusal means that the parent would first have to offer the other parent an opportunity to provide care before resorting to a third-party caretaker.
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