HB2330 98TH GENERAL ASSEMBLY

LRB098 10536 DRJ 40774 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2330

Introduced , by Rep. La Shawn K. Ford

SYNOPSIS AS INTRODUCED:

305 ILCS 5/10-3.1	from Ch. 23, par. 10-3.1
305 ILCS 5/10-12.5 new
730 ILCS 5/3-6-9 new
730 ILCS 5/5-3-1	from Ch. 38, par. 1005-3-1
730 ILCS 5/5-3-2	from Ch. 38, par. 1005-3-2
750 ILCS 5/510	from Ch. 40, par. 510

Amends the Illinois Public Aid Code, the Unified Code of Corrections, and the Illinois Marriage and Dissolution of Marriage Act. Provides that a person's obligation to pay child support pursuant to a court or administrative order is suspended by operation of law during any period that the person is committed to the custody of the Department of Corrections or the Department of Juvenile Justice. Provides that the programs of the Department of Healthcare and Family Services concerning child support orders shall include cases in which a responsible relative who is committed to the custody of the Department of Corrections or the Department of Juvenile Justice requests modification of the support order. Provides that the Department of Corrections and the Department of Juvenile Justice shall establish programs to assist committed persons who are obligors under child support orders in cases in which child support enforcement services are provided by the Department of Healthcare and Family Services. Provides for inclusion of information about any child support obligation owed by the defendant and recommendations concerning the payment of that obligation in a presentence report; requires a presentence investigation and report in the case of a misdemeanor defendant who owes a child support obligation.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning public aid.

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 and adding Section 10-12.5 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. The Illinois Department's program for review and modification of orders for support in cases in which support enforcement services are being provided under this Article X shall include, but not be limited to, cases in which a responsible relative who is committed to the custody of the Department of Corrections or the Department of Juvenile Justice requests review and modification of the order for support. The Illinois Department shall enter into cooperative agreements with the Department of Corrections and the Department of Juvenile Justice to facilitate receipt of such requests from committed persons.

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.)

(305 ILCS 5/10-12.5 new)

Sec. 10-12.5. Suspension of child support obligation during period of incarceration. Unless otherwise agreed by the parties in a written agreement set forth in a court or administrative order for support or unless otherwise approved by a court, an obligation to pay child support is suspended by operation of law during any period of time in which the person owing a duty of support is committed to the custody of the Department of Corrections or the Department of Juvenile Justice.

Section 10. The Unified Code of Corrections is amended by changing Sections 5-3-1 and 5-3-2 and adding Section 3-6-9 as follows:

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

Sec. 3-6-9. Assistance in requesting review and modification of support orders. The Department shall develop and establish a program to assist committed persons who are obligors under support orders in cases in which child support enforcement services are being provided by the Department of Healthcare and Family Services under Article X of the Illinois Public Aid Code in requesting review and modification of such support orders as provided for under that Code. The Department shall enter into a cooperative agreement with the Department of Healthcare and Family Services to facilitate transmittal of such requests from committed persons.

(730 ILCS 5/5-3-1) (from Ch. 38, par. 1005-3-1)

Sec. 5-3-1. Presentence Investigation. A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court. A defendant who owes a child support obligation shall not be sentenced for a misdemeanor before a written presentence report of investigation is presented to and considered by the court.

However, other than for felony sex offenders being considered for probation, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant's history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.

The court may order a presentence investigation of any defendant.

(Source: P.A. 93-616, eff. 1-1-04; 93-970, eff. 8-20-04.)

(730 ILCS 5/5-3-2) (from Ch. 38, par. 1005-3-2)

Sec. 5-3-2. Presentence Report.

(a) In felony cases, the presentence report shall set forth:

(1) the defendant's history of delinquency or criminality, physical and mental history and condition, family situation and background, economic status, education, occupation and personal habits;

(1.5) information about any child support obligation owed by the defendant and recommendations concerning the payment of that obligation; this information shall also be set forth in any presentence report prepared in connection with a misdemeanor case involving a defendant who owes a child support obligation;

(2) information about special resources within the community which might be available to assist the defendant's rehabilitation, including treatment centers, residential facilities, vocational training services, correctional manpower programs, employment opportunities, special educational programs, alcohol and drug abuse programming, psychiatric and marriage counseling, and other programs and facilities which could aid the defendant's successful reintegration into society;

(3) the effect the offense committed has had upon the victim or victims thereof, and any compensatory benefit that various sentencing alternatives would confer on such victim or victims;

(4) information concerning the defendant's status since arrest, including his record if released on his own recognizance, or the defendant's achievement record if released on a conditional pre-trial supervision program;

(5) when appropriate, a plan, based upon the personal, economic and social adjustment needs of the defendant, utilizing public and private community resources as an alternative to institutional sentencing;

(6) any other matters that the investigatory officer deems relevant or the court directs to be included; and

(7) information concerning defendant's eligibility for a sentence to a county impact incarceration program under Section 5-8-1.2 of this Code.

(b) The investigation shall include a physical and mental examination of the defendant when so ordered by the court. If the court determines that such an examination should be made, it shall issue an order that the defendant submit to examination at such time and place as designated by the court and that such examination be conducted by a physician, psychologist or psychiatrist designated by the court. Such an examination may be conducted in a court clinic if so ordered by the court. The cost of such examination shall be paid by the county in which the trial is held.

(b-5) In cases involving felony sex offenses in which the offender is being considered for probation only or any felony offense that is sexually motivated as defined in the Sex Offender Management Board Act in which the offender is being considered for probation only, the investigation shall include a sex offender evaluation by an evaluator approved by the Board and conducted in conformance with the standards developed under the Sex Offender Management Board Act. In cases in which the offender is being considered for any mandatory prison sentence, the investigation shall not include a sex offender evaluation.

(c) In misdemeanor, business offense or petty offense cases, except as specified in subsection (d) of this Section, when a presentence report has been ordered by the court, such presentence report shall contain information on the defendant's history of delinquency or criminality and shall further contain only those matters listed in any of paragraphs (1) through (6) of subsection (a) or in subsection (b) of this Section as are specified by the court in its order for the report.

(d) In cases under Sections 11-1.50, 12-15, and 12-3.4 or 12-30 of the Criminal Code of 1961 or the Criminal Code of 2012, the presentence report shall set forth information about alcohol, drug abuse, psychiatric, and marriage counseling or other treatment programs and facilities, information on the defendant's history of delinquency or criminality, and shall contain those additional matters listed in any of paragraphs (1) through (6) of subsection (a) or in subsection (b) of this Section as are specified by the court.

(e) Nothing in this Section shall cause the defendant to be held without bail or to have his bail revoked for the purpose of preparing the presentence report or making an examination.

(Source: P.A. 96-322, eff. 1-1-10; 96-1551, Article 1, Section 970, eff. 7-1-11; 96-1551, Article 2, Section 1065, eff. 7-1-11; 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)

Section 15. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Section 510 as follows:

(750 ILCS 5/510) (from Ch. 40, par. 510)

Sec. 510. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition.

(a) Except as otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section 505.2, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification. An order for child support may be modified as follows:

(1) upon a showing of a substantial change in circumstances; and

(2) without the necessity of showing a substantial change in circumstances, as follows:

(A) upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines specified in Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing order resulted from a deviation from the guideline amount and there has not been a change in the circumstances that resulted in that deviation; or

(B) upon a showing of a need to provide for the health care needs of the child under the order through health insurance or other means. In no event shall the eligibility for or receipt of medical assistance be considered to meet the need to provide for the child's health care needs.

The provisions of subparagraph (a)(2)(A) shall apply only in cases in which a party is receiving child support enforcement services from the Department of Healthcare and Family Services under Article X of the Illinois Public Aid Code, and only when at least 36 months have elapsed since the order for child support was entered or last modified.

(a-5) An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances. In all such proceedings, as well as in proceedings in which maintenance is being reviewed, the court shall consider the applicable factors set forth in subsection (a) of Section 504 and the following factors:

(1) any change in the employment status of either party and whether the change has been made in good faith;

(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;

(3) any impairment of the present and future earning capacity of either party;

(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;

(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;

(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;

(7) the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought;

(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and

(9) any other factor that the court expressly finds to be just and equitable.

(b) The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.

(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. Any obligation of a payor party for premium payments respecting insurance on such party's life imposed under subsection (f) of Section 504 is also terminated on the occurrence of any of the foregoing events, unless otherwise agreed by the parties. Any termination of an obligation for maintenance as a result of the death of the payor party, however, shall be inapplicable to any right of the other party or such other party's designee to receive a death benefit under such insurance on the payor party's life.

(d) Unless otherwise provided in this Act, or as agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, or if the child has attained the age of 18 and is still attending high school, provisions for the support of the child are terminated upon the date that the child graduates from high school or the date the child attains the age of 19, whichever is earlier, but not by the death of a parent obligated to support or educate the child. An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.

(d-5) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, an obligation to pay child support is suspended by operation of law during any period of time in which the person owing a duty of support is committed to the custody of the Department of Corrections or the Department of Juvenile Justice.

(e) The right to petition for support or educational expenses, or both, under Sections 505 and 513 is not extinguished by the death of a parent. Upon a petition filed before or after a parent's death, the court may award sums of money out of the decedent's estate for the child's support or educational expenses, or both, as equity may require. The time within which a claim may be filed against the estate of a decedent under Sections 505 and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975, as a barrable, noncontingent claim.

(f) A petition to modify or terminate child support, custody, or visitation shall not delay any child support enforcement litigation or supplementary proceeding on behalf of the obligee, including, but not limited to, a petition for a rule to show cause, for non-wage garnishment, or for a restraining order.

(Source: P.A. 97-608, eff. 1-1-12.)