Wednesday, July 23, 2014

Protecting Children from Bad Parents when a Good Parent Dies


Protecting Children from Bad Parents when a Good Parent Dies

Death of a Parent M Scott Gordon
 A good parent’s worst nightmare might be dying and leaving custody of children to an absent, neglectful or even abusive parent. What happens, then, when a good parent dies leaving the children to a “bad” parent?  How can a “good” parent protect the children from a “bad” parent in the event of death or disability that prevents a “good” parent from caring for the children? Guardianship in Chicago can be complicated.

First, if the parents are married at the time of the good parent’s death, there is not much that can be done if steps have not already been taken to address the problem. Taking steps to protect your children before your potential demise, therefore, is crucial. If the bad parent has left the household and is absent from the children’s lives, it may be a different story. The same is true if the parents are divorced and the bad parent is not involved in the children’s lives.

Since all parents have fundamental rights that are protected by law, one parent cannot terminate the parental rights of the other parent, except in the case of adoption. The law presumes that maximum involvement of both parents is in the children’s best interests and the law favors the involvement of both parents in children’s lives. No matter how uninvolved a parent is, how far behind in support a parent is, or even how bad a parent is, parental rights are a factor. Further, since parental rights are protected in Chicago and the rest of Illinois, one parent cannot unilaterally trump another parent’s rights.

Parental Rights Chicago
 One parent cannot petition a court to terminate another parent’s rights in a private legal action, except in the case of an adoption (for instance, by a new spouse). Even then, parental rights will not be terminated without sufficient cause, and that cause must be more than a difference of opinion, different parenting styles or even some bad parenting that does not go as far as harming or endangering the children. Even when the State seeks to terminate parental rights for abuse or neglect, parents are given every opportunity to redeem themselves before those rights will be terminated.

That is not to say, however, that the good parent is without recourse. During life, if the bad parent has court ordered visitation, the good parent can ask to have that visitation modified to reduce the amount of visitation or to require supervised visitation if there is sufficient cause.  A parent with joint custody can also seek to change joint custody to sole custody for sufficient cause as well. A parent can petition for the court’s help to resolve any problems that occur in a shared parenting or visitation arrangement. Taking these steps during life to confront bad parenting is important because the record that is established during life may have some impact on the surviving “bad” parent’s rights after the “good” parent dies.

 Apart from the record of parenting established during life, a good parent can express a preference for care of the children after death. While Illinois recognizes the parental rights of biological parents, it is not automatic that an absent parent, or one who has demonstrated neglectful, abusive or bad parenting behavior, will receive possession of the child after death of the custodial parent. A good parent can name a guardian in a Will that may be considered by a court after death, even when there is a surviving natural parent.

There must be more, however. A third party (like a grandparent, other family or close family friend) must have “standing” to obtain guardianship of another person’s biological child. Standing can be established by a close, intimate relationship and “possession”. Possession means physically having the children in your care in your home for some period of time.

Hence, having a good support system in place is key. Having grandparents, other family members or close personal friends who are intimately involved in the children’s lives and who are able and willing to step in and take over a parental role immediately after death is vital. The importance of immediate action cannot be stressed enough in this situation. Once a third party (like grandparents) have “possession” of the children, they have their “foot in the door”.  The longer that possession continues before any formal action is taken to establish permanent guardianship/custody, the more likely “standing” can be established that will allow a third party, like close family or friends who have a good relationship with the children, to obtain guardianship, even if there is a surviving parent.

 If that person having “possession” of the children is the person named in the Will as the preferred guardian, the custodial parent’s preference for guardianship will be considered.  While the absent or bad parent is entitled to notification of any proceedings, the absent/bad parent may or may not actually contest the matter.  A person named as guardian in a Will, and more importantly, a person who has actual “possession” of a child will have “standing” to petition a court to seek a guardianship. When a non-parent has standing, as in these circumstances, the court will make its determination based on the best interests of the child, and the lack of involvement or history of bad parenting by the surviving biological parent and other factors will be considered by the court in making that determination.

Thus, the naming of a guardian in a Will coupled with the intimate involvement and immediate possession of the children by the named guardian after the good parent’s death, will be of great assistance to your proposed guardian in attempting to prevail in a guardianship proceeding.

The reality that even bad parents have rights that are protected may not be what a good parent wants to hear. Our laws that protect many freedoms and rights also protect one parent from the unilateral whims of the other parent in our society. That is generally a good thing, but there is recourse for a “good” parent to address a “bad” parent, and, with a bit of planning and understanding, a good parent can tip the children’s future in favor of their best interests.

If you are in a situation in which the other parent of your children is largely absent from your children’s lives by his/her own doing, is neglectful or abusive or is making choices and living a lifestyle that is not in your children’s best interest, contact the experienced attorneys at M. Scott Gordon & Associates for assistance.
 

Wednesday, July 16, 2014

Who is entitled to Maintenance (alimony) in Chicago, and what are the criteria for awarding it?


Who is entitled to Maintenance (alimony) in Chicago, and what are the criteria for awarding it?


Chicago-Spousal-Support-Maintenance-Scott-Gordon

As you begin the process of Divorce in Chicago, it’s important to become familiar with the basic principles of spousal maintenance. Below are answers to some common questions about this topic. 

“Maintenance”, also referred to as spousal support or alimony, may be awarded to either spouse. In Illinois, courts don't consider fault, or marital misconduct, in setting the amount of maintenance. Instead, a court will consider other relevant factors, including:
  • both spouses’ income and property, including marital property, awarded to both spouses and any non-marital property awarded to the spouse requesting alimony
  • the financial needs of each spouse
  • the present and future earning capacity of each spouse
  • any damage to  the earning capacity of the spouse requesting maintenance due to time spent on  domestic duties (such as childcare), or a decision to delay or give up education, training, employment, or career opportunities because of the marriage
  • the time it will take the spouse seeking maintenance to obtain the education, training, and employment necessary to become self-supporting (if the requesting spouse is caring for children, however, the judge may find it inappropriate for that spouse to work)
  • the standard of living established during the marriage
  • the tax consequences of the property division for each spouse’s economic circumstances
  • whether the  spouse requesting alimony made significant contributions to the other spouse’s education, training, or career.
 If both spouses are self-supporting, a court may not award any maintenance, even if one spouse earns substantially more than the other.  One option, instead of maintenance, is for the Court to distribute a disproportionate amount of the marital property (like bank accounts, mutual funds, and any tangible assets) to the lower-earning spouse.

M-Scott-Gordon Can I receive temporary maintenance during the divorce proceeding?

Yes. An Illinois court won’t issue a long term maintenance order until the end of the divorce proceedings. So what are you supposed to do if you need financial support while the divorce is still underway? First, you and your spouse can agree to some amount of temporary support. If you cannot agree on this issue, a judge can order one spouse to pay temporary maintenance during the divorce case.

How long does maintenance last?
rehabilitative-maintenance-m-scott-gordon

Short-term rehabilitative maintenance enables the receiving spouse to pay for living expenses while gaining the skills necessary to become self-supporting. Longer-term maintenance may be ordered for a set period and then reviewed again so the court can determine whether it should continue as is, or be increased, decreased, or terminated altogether. A spouse receiving longer-term maintenance is still expected to make good faith efforts (taking into account age, skills, and life experience) to become employed and self-supporting. The idea behind this is that, generally speaking, maintenance payments will be terminated at some point rather than go on indefinitely. However, if a spouse can show a permanent inability to become self-supporting (the person can never obtain gainful employment), a court might order that maintenance payments will continue permanently.  This may be appropriate in very long-term marriages where one spouse has never worked or been out of the work force for decades.

Can the maintenance payment amount or schedule be changed?

http://www.familylawadvocate.com/divorce/spousal-maintenance/
It depends.  Spouses in Chicago can agree to make alimony payments non-modifiable or modifiable under specified circumstances, both in regards to amount and length of the obligation.   

In order to change or modify maintenance payments, if they are modifiable under any agreement, the spouse asking the court for a modification will need to show a change in circumstances. This could include an increase or decrease in the ability to pay due to a promotion or a job loss, or a major change in either spouse’s needs. In deciding whether to modify a maintenance award, a court will essentially consider the same factors it considered in setting the original amount. 

Will my maintenance terminate if my spouse decides to retire?

Whether voluntary retirement will justify an Chicago court modifying the maintenance award depends upon the circumstances of the individual case. Relevant factors include the age, health status, motives and timing for the retirement, ability to pay after retirement, and the other spouse's ability to become self-supporting. The issue of retirement, and its effect on maintenance, should be fully considered when negotiating any marital settlement agreement.

Contact a Chicago area Attorney

If you have questions about child custody and what rights you have to see your children pending a divorce, contact the experienced attorneys at M. Scott Gordon & Associates for assistance.