HB2236 96TH GENERAL ASSEMBLY

LRB096 08683 AJO 18813 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB2236

Introduced 2/18/2009, by Rep. LaShawn K. Ford

SYNOPSIS AS INTRODUCED:

305 ILCS 5/10-3.1	from Ch. 23, par. 10-3.1
730 ILCS 5/3-6-9 new
750 ILCS 5/510.5 new

Amends the Illinois Public Aid Code, the Unified Code of Corrections, and the Illinois Marriage and Dissolution of Marriage Act. Provides that an incarcerated person obligated to pay child support who has gross income of less than $200 per month is presumed to have no ability to pay child support. Provides that the Department of Human Services shall initiate an action to modify a support obligation if either the obligor or the obligee receives child support enforcement services. Provides that the Department of Corrections shall develop and establish a program in the Adult Division designed to permit committed persons who are obligors to request assistance from the Department of Health care and Family Services in obtaining a child support order modification.

A BILL FOR

AN ACT concerning child support.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Public Aid Code is amended by changing Section 10-3.1 as follows:

(305 ILCS 5/10-3.1) (from Ch. 23, par. 10-3.1)

Sec. 10-3.1. Child and Spouse Support Unit. The Illinois Department shall establish within its administrative staff a Child and Spouse Support Unit to search for and locate absent parents and spouses liable for the support of persons resident in this State and to exercise the support enforcement powers and responsibilities assigned the Department by this Article. The unit shall cooperate with all law enforcement officials in this State and with the authorities of other States in locating persons responsible for the support of persons resident in other States and shall invite the cooperation of these authorities in the performance of its duties.

In addition to other duties assigned the Child and Spouse Support Unit by this Article, the Unit may refer to the Attorney General or units of local government with the approval of the Attorney General, any actions under Sections 10-10 and 10-15 for judicial enforcement of the support liability. The Child and Spouse Support Unit shall act for the Department in referring to the Attorney General support matters requiring judicial enforcement under other laws. If requested by the Attorney General to so act, as provided in Section 12-16, attorneys of the Unit may assist the Attorney General or themselves institute actions in behalf of the Illinois Department under the Revised Uniform Reciprocal Enforcement of Support Act; under the Illinois Parentage Act of 1984; under the Non-Support of Spouse and Children Act; under the Non-Support Punishment Act; or under any other law, State or Federal, providing for support of a spouse or dependent child.

The Illinois Department shall also have the authority to enter into agreements with local governmental units or individuals, with the approval of the Attorney General, for the collection of moneys owing because of the failure of a parent to make child support payments for any child receiving services under this Article. Such agreements may be on a contingent fee basis, but such contingent fee shall not exceed 25% of the total amount collected.

An attorney who provides representation pursuant to this Section shall represent the Illinois Department exclusively. Regardless of the designation of the plaintiff in an action brought pursuant to this Section, an attorney-client relationship does not exist for purposes of that action between that attorney and (i) an applicant for or recipient of child support enforcement services or (ii) any other party to the action other than the Illinois Department. Nothing in this Section shall be construed to modify any power or duty (including a duty to maintain confidentiality) of the Child and Spouse Support Unit or the Illinois Department otherwise provided by law.

The Illinois Department may also enter into agreements with local governmental units for the Child and Spouse Support Unit to exercise the investigative and enforcement powers designated in this Article, including the issuance of administrative orders under Section 10-11, in locating responsible relatives and obtaining support for persons applying for or receiving aid under Article VI. Payments for defrayment of administrative costs and support payments obtained shall be deposited into the DHS Recoveries Trust Fund. Support payments shall be paid over to the General Assistance Fund of the local governmental unit at such time or times as the agreement may specify.

With respect to those cases in which it has support enforcement powers and responsibilities under this Article, the Illinois Department may provide by rule for periodic or other review of each administrative and court order for support to determine whether a modification of the order should be sought. The Illinois Department shall provide for and conduct such review in accordance with any applicable federal law and regulation.

If either the obligor or the obligee receives child support enforcement services under this Article, the Illinois Department shall initiate an action to modify a support obligation because of incarceration where the obligor is an incarcerated obligor, as defined in Section 510.5 of the Illinois Marriage and Dissolution of Marriage Act and the obligor has requested a modification due to incarceration.

As part of its process for review of orders for support, the Illinois Department, through written notice, may require the responsible relative to disclose his or her Social Security Number and past and present information concerning the relative's address, employment, gross wages, deductions from gross wages, net wages, bonuses, commissions, number of dependent exemptions claimed, individual and dependent health insurance coverage, and any other information necessary to determine the relative's ability to provide support in a case receiving child support enforcement services under this Article X.

The Illinois Department may send a written request for the same information to the relative's employer. The employer shall respond to the request for information within 15 days after the date the employer receives the request. If the employer willfully fails to fully respond within the 15-day period, the employer shall pay a penalty of $100 for each day that the response is not provided to the Illinois Department after the 15-day period has expired. The penalty may be collected in a civil action which may be brought against the employer in favor of the Illinois Department.

A written request for information sent to an employer pursuant to this Section shall consist of (i) a citation of this Section as the statutory authority for the request and for the employer's obligation to provide the requested information, (ii) a returnable form setting forth the employer's name and address and listing the name of the employee with respect to whom information is requested, and (iii) a citation of this Section as the statutory authority authorizing the employer to withhold a fee of up to $20 from the wages or income to be paid to each responsible relative for providing the information to the Illinois Department within the 15-day period. If the employer is withholding support payments from the responsible relative's income pursuant to an order for withholding, the employer may withhold the fee provided for in this Section only after withholding support as required under the order. Any amounts withheld from the responsible relative's income for payment of support and the fee provided for in this Section shall not be in excess of the amounts permitted under the federal Consumer Credit Protection Act.

In a case receiving child support enforcement services, the Illinois Department may request and obtain information from a particular employer under this Section no more than once in any 12-month period, unless the information is necessary to conduct a review of a court or administrative order for support at the request of the person receiving child support enforcement services.

The Illinois Department shall establish and maintain an administrative unit to receive and transmit to the Child and Spouse Support Unit information supplied by persons applying for or receiving child support enforcement services under Section 10-1. In addition, the Illinois Department shall address and respond to any alleged deficiencies that persons receiving or applying for services from the Child and Spouse Support Unit may identify concerning the Child and Spouse Support Unit's provision of child support enforcement services. Within 60 days after an action or failure to act by the Child and Spouse Support Unit that affects his or her case, a recipient of or applicant for child support enforcement services under Article X of this Code may request an explanation of the Unit's handling of the case. At the requestor's option, the explanation may be provided either orally in an interview, in writing, or both. If the Illinois Department fails to respond to the request for an explanation or fails to respond in a manner satisfactory to the applicant or recipient within 30 days from the date of the request for an explanation, the applicant or recipient may request a conference for further review of the matter by the Office of the Administrator of the Child and Spouse Support Unit. A request for a conference may be submitted at any time within 60 days after the explanation has been provided by the Child and Spouse Support Unit or within 60 days after the time for providing the explanation has expired.

The applicant or recipient may request a conference concerning any decision denying or terminating child support enforcement services under Article X of this Code, and the applicant or recipient may also request a conference concerning the Unit's failure to provide services or the provision of services in an amount or manner that is considered inadequate. For purposes of this Section, the Child and Spouse Support Unit includes all local governmental units or individuals with whom the Illinois Department has contracted under Section 10-3.1.

Upon receipt of a timely request for a conference, the Office of the Administrator shall review the case. The applicant or recipient requesting the conference shall be entitled, at his or her option, to appear in person or to participate in the conference by telephone. The applicant or recipient requesting the conference shall be entitled to be represented and to be afforded a reasonable opportunity to review the Illinois Department's file before or at the conference. At the conference, the applicant or recipient requesting the conference shall be afforded an opportunity to present all relevant matters in support of his or her claim. Conferences shall be without cost to the applicant or recipient requesting the conference and shall be conducted by a representative of the Child or Spouse Support Unit who did not participate in the action or inaction being reviewed.

The Office of the Administrator shall conduct a conference and inform all interested parties, in writing, of the results of the conference within 60 days from the date of filing of the request for a conference.

In addition to its other powers and responsibilities established by this Article, the Child and Spouse Support Unit shall conduct an annual assessment of each institution's program for institution based paternity establishment under Section 12 of the Vital Records Act.

(Source: P.A. 91-24, eff. 7-1-99; 91-613, eff. 10-1-99; 92-16, eff. 6-28-01; 92-590, eff. 7-1-02.)

Section 10. The Unified Code of Corrections is amended by adding Section 3-6-9 as follows:

(730 ILCS 5/3-6-9 new)

Sec. 3-6-9. Assistance in obtaining modification of child support orders. The Department shall develop and establish a program in the Adult Division designed to permit committed persons who are obligors under child support orders to request the Department of Healthcare and Family Services to assist in obtaining modifications of those orders pursuant to Section 510.5 of the Illinois Marriage and Dissolution of Marriage Act.

Section 15. The Illinois Marriage and Dissolution of Marriage Act is amended by adding Section 510.5 as follows:

(750 ILCS 5/510.5 new)

Sec. 510.5. Special circumstances regarding incarcerated obligors.

(a) Definitions. For purposes of establishing or modifying a support order, the following definitions apply:

(1) "Correctional facility" means any place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order, and includes but is not limited to a youth correction facility.

(A) "Correctional facility" applies to a State hospital only as to persons detained therein charged with or convicted of a crime, or detained therein after acquittal of a crime by reason of mental defect;

(B) "Correctional facility" includes alternative forms of confinement, such as house arrest or confinement, where an obligor is not permitted to seek or hold regular employment.

(2) "Incarcerated obligor" means a person who:

(A) is or may become subject to an order establishing or modifying child support; and

(B) is, or is expected to be, confined in a correctional facility for at least 6 consecutive months from the date of initiation of action to establish a support order, or from the date of a request to modify an existing order.

(b) For purposes of computing a monthly support obligation for an incarcerated obligor, all provisions contained in Section 505 will apply except as otherwise specified in this Section.

(c) The incarcerated obligor's income and assets are presumed available to the obligor, unless such income or assets are specifically restricted, assigned, or otherwise inaccessible pursuant to State or federal law or rule regarding the income and assets of incarcerated obligors.

(d) If the incarcerated obligor has gross income less than $200 per month, there shall be a presumption that the obligor has no ability to pay support.

(e) If either the obligor or the obligee receives child support enforcement services from the Illinois Department under Article X of the Public Aid Code, the Child and Spouse Support Unit of the Department of Healthcare and Family Services shall initiate an action to modify a support obligation because of incarceration, where the obligor is an incarcerated obligor, as defined in paragraph (1) of subsection (b) and the obligor has requested a modification due to incarceration.

(f) An order entered pursuant to this Section that modifies a support order because of the incarceration of the obligor, is effective only during the period of the obligor's incarceration and for 60 days after the obligor's release from incarceration. The previous support order is reinstated by operation of law on the 61st day after the obligor's release from incarceration.