Recommendations for Improvement of the Child Support Enforcement Division of the State's Attorney's Office (SAO)
III. Recommendations for Improvement of the Child Support Enforcement Division of the State's Attorney's Office (SAO)
A. THE SAO'S RELATIONSHIP WITH ILLINOIS DEPARTMENT OF PUBLIC AID (IDPA)
1) An ASA should supervise IDPA intake staff to develop a complete case file prior to referral to the SAO.
For example, any questionnaire should include questions designed to determine whether there has been a history of abuse between the mother and putative father and, if so, what effect this might have on the prosecution of the case. Also, the intake process should include questions regarding whether the mother was married at the time of the child's birth or conception.
Discussion:
In Cook County's IV-D system, IDPA Family Support Specialists have been conducting intake interviews with virtually no supervision by, communication from, or cooperation with the ASA who will be arguing the case in the courtroom. This striking lack of communication and cooperation between IDPA caseworkers and ASAs results in substantial inefficiency and confusion. One result is that very basic questions are frequently not asked, such as whether the custodial parent was married when the child was conceived. If so, the husband is the child's presumed father and must be given notice of the proceedings. These problems not only impair the ASA's ability to present the case in court, but also may cause unnecessary trips to court for the custodial parent so that proper pleadings can be filed and proper persons served with notice.
2) The SAO should assign one or more attorneys, on a rotating basis, to be on-site where intake interviews are taking place to answer questions and oversee the process.
Another concern has been that IDPA intake workers do not ask -- or at least do not record in the files -- whether the putative father has had a history of abusing the custodial mother or the child. That information could be important in several ways. The mother may be so afraid of the real father that she will deliberately name the wrong man as the father in order to protect herself from the real father. Or, she may be unaware that, until he is adjudicated the father, he has no legal right to seek visitation and/or custody. When the ASA does not know whether there is a history of abuse, the SAO cannot fashion a litigation strategy that will protect the custodial parent and child from substantial risks. An ASA present at the intake process would be able to train IDPA intake staff to gather information crucial to the hearing process but not necessarily of interest to IDPA.
Moreover, because the SAO does not participate in intake, many of the ASAs assigned to parentage courtrooms reported that the files they receive are usually incorrect in some way. Problems ranged from frequent typographical errors to more substantive matters. For instance, where the custodial parent is a minor, she needs to have a guardian ad litem appointed, and she needs a different form of complaint than the one normally used.
ASAs mentioned other problems, such as incomplete addresses and the lack of phone numbers. Several also mentioned out-of-date employment information for the non-custodial parent. This employment information is always at least three months old because it is obtained from the Illinois Department of Labor (which updates information quarterly). According to several ASAs, however, the employment information is often older than that.
Discussion:
Because IDPA intake workers and Assistant State's Attorneys do not work together, they have different objectives. These objectives sometimes compete with rather than complement one another and, as a result, the custodial parent is not well-served. For example, some ASAs expressed concern that women may feel compelled to name the wrong person as the father of their child either because they are afraid of the real father or because they want to protect him. A few ASAs expressed concern that intake workers may threaten to take away AFDC grants if the custodial parent does not name someone as the father. The practical and legal consequences that flow from "naming the wrong man" are significant to all concerned.
When women sign complaints that contain false allegations about the father's identity, several problems are created. The mother may be subject to court sanctions. The complaint will eventually be dismissed, and when the mother subsequently seeks to establish the true father's paternity and get support from him, her credibility is highly suspect. If the case goes to trial, she may lose solely because she previously filed suit against another man.
From the ASA's perspective, there are other negative consequences to filing a false complaint. At least two ASAs told us they feel they have been compromised ethically because they must sign the complaint as attorney for the plaintiff before ever meeting or speaking with the mother. They feel that inadequate inquiry at the intake stage is responsible for potentially false statements they must make on behalf of the mother and the state. The ASA to whom the case is eventually assigned will appear before the judge with the faulty complaint and may also be placed in a compromising ethical position. Only in extraordinary circumstances should any lawyer sign a complaint without having taken reasonable steps to insure that the complaint's allegations are correct.
3) The SAO should work with IDPA to assure that, at the intake interview, custodial parents are given an accurate and detailed overview of the process.
Discussion:
Attorneys assigned to paternity courtrooms said that most mothers, particularly those who receive AFDC, are completely in the dark about the child support system. Some mothers either do not cooperate or do so only reluctantly because they believe they are subjecting the father to a criminal proceeding. On the other hand, ASAs report that some intake workers promise mothers benefits that are unrealistic, such as obtaining half of the father's income.
Parents should be informed of the steps in establishing child support, they should be given an overview of the law regarding support, they should be advised that delays might occur, and they should be told whom to call with questions. Intake workers should inform custodial parents that the SAO represents IDPA and that in certain instances custodial parents may have to retain independent representation. Custodial parents should also be informed that an adjudication of paternity will give the father certain rights, such as the right to request visitation or even custody of the child. Obviously, intake workers should discuss with custodial parents the effects of an award of support on their AFDC grants.
4) The SAO should work with IDPA to develop clear lines of communication and to coordinate the authority and jurisdiction of each agency.
No one should get the bureaucratic runaround when either seeking information from, or attempting to provide information to, the state's child support enforcement system. The SAO reports that communication between its Child Support Enforcement Division and IDPA has improved substantially over the past two years.
Discussion:
IDPA and the SAO are separate governmental agencies, each with its own bureaucracy. Nevertheless, they have contracted to work together in IV-D cases and must have effective mechanisms for doing so. In the initial stages of our evaluation, this communication was nonexistent, and the situation was deplorable. Mail was often channeled to the wrong places. Litigants reported that they did not know whom to call with questions. They said that IDPA told them to call the SAO with questions, but when they called, they were transferred around and ended up leaving messages that were never returned. Although the relationship has improved with the change of SAO personnel, there is still a need for greater communication between the two offices. Given that the SAO must rely on IDPA for completion of significant steps in the collection process, IDPA must be available for consultation at all levels of the bureaucracy. In the same manner, the SAO must actively seek out responsible counterparts in IDPA to resolve problems in the system. This has not always worked smoothly.
One ASA confirmed that she gets calls from fathers' attorneys who have been told by people at IDPA to call the SAO for arrearage calculations. She tells them to call IDPA. Other ASAs said that no one knows which office is responsible for what information.
Most of the ASAs who were interviewed have had to contact someone at IDPA at some point in the process. Some said that they were able to find one or two individuals at IDPA who could answer questions, but some found the experience frustrating. According to one, "I get as much run-around as any mother trying to get through to IDPA." They said that getting answers could take weeks. This cannot continue if the program is to be effective. The solution is simple: greater communication at all levels with clear accountability in both offices. Although this sort of contact has been taking place at higher levels of the bureaucracy, clerical staff in both offices must be more familiar with the operations of the other. Meetings between the clerical staff of both agencies, in which they discuss operations and potential adjustments for IDPA and the SAO, would lead to a more efficient system.
5) The SAO should have greater access to IDPA's computers in the courtroom.
Discussion:
Through the "FSIS" computer system, the SAO may check records generated by the Illinois Department of Labor and other employment data. FSIS can assist ASAs in locating non-custodial parents if the custodial parent cannot provide accurate information. FSIS also can provide information as to the non-custodial parent's income sources and amounts. Although FSIS has been theoretically available to ASAs, many found it practically inaccessible at the time of our investigation for several reasons. Too many attorneys had to share one computer, and FSIS is prone to occasional breakdowns. IDPA is revamping the system but it probably will not be functional until some time in 1997. This type of problem cannot be solved by the personnel in either office, but accommodations can be made.
6) Since 1993, IDPA and the SAO have maintained their own separate case files -- a significant improvement over past practice.
Discussion:
Prior to 1993, the SAO and IDPA did not each maintain separate, complete case files. This created significant, but unnecessary, problems. When ASAs requested ledgers from IDPA, IDPA took the ASA's physical file. IDPA often did not return the file in time for the court date. Sometimes, the custodial parents would call with questions the ASA could not answer without the file. An additional problem was that the ASA often could not respond to motions without the ability to review the entire file. One ASA described the situation as "a huge problem."
B. POLICIES AND PROCEDURES WITHIN THE SAO'S DIVISION FOR CHILD SUPPORT ENFORCEMENT
1) The SAO has begun to make a concerted effort to recruit, train, and retain a stable staff of attorneys who want to handle parentage and child support cases.
Discussion:
In the recent past, custodial parents would often deal with as many as five different ASAs throughout the course of a case; this occurred primarily as a result of the random assignment of attorneys on the day of a hearing. Initially, we observed that attorneys seemed to be transferred frequently to other areas within the Child Support Enforcement Division of the SAO. One ASA had been transferred four times in nine months; many others also reported frequent transfers. Attorneys were frequently moved within the Child Support Enforcement Division to fill gaps left by other ASAs who left the Division entirely.
During the initial stage of our project, most of the ASAs interviewed planned to move to other divisions in the SAO as soon as they were able. Only seven of those interviewed planned to stay in Child Support for an indefinite time, with the rest expressing a desire to leave the Division as soon as they could get transferred. Several ASAs, however, felt that they would have to wait a long time before being transferred. Some expressed bitter frustration about the situation: "The longer you stay here, the less likely you'll be transferred to another division: you're stigmatized for being here."
Many of those who expressed a desire to leave the Division said that they had applied for transfers, but they were rarely hopeful about their chances of leaving. They described the situation as "stagnant," and a few had resigned themselves to staying for years before they would get a transfer. Some ASAs felt strongly that the Child Support Enforcement Division does not enjoy the same status and priority as other divisions in the SAO. One referred to the Division as the "cesspool" of the SAO, and several others called it the SAO's "stepchild."
More recently, however, the morale in the office has improved. Some of this improvement may be due to the new facilities, which are substantially better than the old, dilapidated facilities. All ASAs questioned in 1994 felt there had been substantial improvement in the general morale in the office, and all attributed this to the new director and administration.
Given the current poor employment climate for new attorneys, and assuming that proper training and supervision are provided to new attorneys in the SAO, we have assumed it would be possible to continue to find attorneys who are eager to work in the Child Support Enforcement Division. The current resurgence of interest in juvenile issues in the public-interest law sector suggests that there are many attorneys who would be eager to do precisely the type of work in which the Child Support Enforcement Division is involved.
2) Unlike past practice, ASAs now receive a significant amount of training, including manuals and regular training sessions that provide realistic information and advocacy tips that courtroom ASAs need.
Discussion:
It is critical that ASAs know how and why the child support system works or fails. Fostering an understanding of the entire system will serve both to improve service to custodial parents and to improve morale.
Of the ASAs we interviewed, less than half had been practicing law for more than five years, and at least six had been admitted to the bar less than a year. Nearly every ASA who spoke of training agreed that the SAO has been doing more training now than it has in the past. ASAs who had been in the Child Support Enforcement Division for more than a year often said that they had received no training at all when they were first assigned to the Division. They did not receive training manuals or written guidelines and did not have the opportunity to observe older attorneys in court.
Now, however, the office holds training sessions routinely on miscellaneous topics. The current administration is implementing guidelines for its attorneys. In general, training has become an important part of the Division's day-to-day activities. Attorneys consulted in the final stage of our evaluation commented on this new emphasis on training. They all felt it was important and had improved the quality of lawyering within the Division.
3) The Number of non-attorneys acting as assistants to the ASAs should be increased, and their services should be used in a more efficient manner.
Discussion:
The SAO should dramatically increase the number of qualified and trained law clerks and paralegals to assist the ASAs in implementing the Title IV-D program. One of our early recommendations was to increase the number of non-attorneys who perform paralegal activities. In the later stages of our review, we observed this suggestion in practice. Now, in the expedited program, attorneys are frequently assisted by a clerk who helps them prepare for hearings or court appearances. In addition, these clerks can communicate with custodial parents prior to and after the hearing. With a further increase in the number of assistants available to each attorney, operations will continue to improve.
Significantly, this is one of the things that we found most impressive about the operations of the DuPage County State's Attorney's Office of Child Support Enforcement. That office has established an excellent system for managing its caseload. Paralegals are utilized in an efficient manner, freeing the time of attorneys so that they can concentrate on more difficult matters. With similar changes, the efficiency of Cook County's office could also be improved.
4) The SAO has established a client services section to improve communications with custodial parents. This approach should be encouraged.
Discussion:
The SAO has historically been responsible for its lack of effective communication with custodial parents outside the courtroom. The current administration responded to this criticism about 18 months ago with a new Client Services Section within the SAO.
One responsibility of the Client Services Section should be to keep custodial parents informed about the details of their cases. The employees of this Section should notify custodial parents prior to hearings about whether it is necessary that they attend, whether the respondent was properly served, and if so, what will take place during the hearing. A probable result of this improvement will be to get the parents more deeply involved in the process. The more they understand about the system and the case, the more they can help the SAO implement Title IV-D.
5) The SAO has implemented a team structure for handling cases.
Discussion:
During our study's initial phase, litigants reported being extremely frustrated by the lack of continuity in their dealings with IDPA and the SAO. They reported having several different attorneys. ASAs confirmed these complaints. One said, "[Continuity] is a huge problem. Five or six different attorneys may have worked on one case. The office policy is that mothers get an ASA, but clients want us to behave like private divorce attorneys." While ASAs may not be able to function like private divorce attorneys, given the limitation on the scope of their representation, they certainly could be more accountable to the custodial parents. The team approach is one means of fostering accountability. The SAO implemented such an approach at the end of 1994.
Prior to the implementation of the team approach, one ASA had said that no one was ever accountable for a file because each person could always point to a different work station as having caused the problem. This problem was very damaging to the operations of the office, and the team approach offers an alternative to this kind of situation by establishing consistent accountability and responsibility for each case. If the same ASA or team of ASAs is responsible for a single case throughout its duration, there is greater motivation to ensure that the case is developed appropriately. Individual responsibility for cases promotes greater accountability to the custodial parents.
The authors of this report consider the implementation of the team structure approach a major structural improvement for the Child Support Enforcement Division.
6) ASA caseloads should be small enough to permit diligent preparation and representation.
If this means more staff is required, IDPA should fund additional staff positions within the SAO.
Discussion:
Workloads vary among different parts of the Child Support Division. Some ASAs felt that their workloads were reasonable, and in fact felt that even with a reduced case load, they would not do their jobs much differently. More, however, felt that they had too many cases to handle them properly. One said, "I am a meticulous person; I wanted to pay attention to [all] my cases. But I just can't give attention to detail. I am overloaded with work." Another ASA said, "Files are supposed to be prepped the day before you go to court, but the attorney hasn't always seen it [before the hearing]. This is strictly a volume operation. No way a file could be handled the way it would be in private practice. All the files should receive the same amount of time but don't." More disturbingly, one ASA said that the heavy caseloads create an intense pressure to settle cases just to get rid of them. Another ASA in a paternity courtroom said that court calls are so heavy that the judge grants continuances too easily, just to dispose of the case for the day and get through the call.
ASAs who work in enforcement reported especially burdensome case loads. In addition to their usual cases, in the past they assisted mothers who had brought pro se motions to enforce or modify support. One ASA said that he assisted as many as five to ten pro se clients per day in addition to his own cases. ASAs complained that many mothers filed pro se motions on the advice of people at the Clerk of Court's office, because they could get court dates within thirty days rather than going through the slower channels of IDPA and the SAO. ASAs expressed frustration with these pro se clients because their petitions were often poorly drafted or filed incorrectly. One ASA said, "The problem is driving us crazy. We usually have to tell them to withdraw their petitions [because they have been done incorrectly]. It's not fair to our clients who have waited [a long time] for their court dates."
According to the SAO, there is now a new system in place to deal with pro se cases. According to the SAO, pro se complainants are now advised that the SAO will file a petition on their behalf through the IV-D program. Pro se cases, therefore, will no longer preempt regularly scheduled cases of other IV-D clients.
C. THE SAO's RELATIONSHIP WITH CUSTODIAL PARENTS
1) The relationship among the SAO, IDPA, and the custodial parent must be clarified to recognize that, by statute, the SAO represents only IDPA in child support enforcement proceedings.
There is considerable ambiguity surrounding the fundamental issue of whom the SAO is to represent in child support enforcement proceedings under Title IV-D. The SAO should adopt a policy which clearly explains to all participants that the SAO represents IDPA and that the SAO's efforts on behalf of the custodial parent are limited to the scope of representation defined in Illinois law.
Discussion:
Who is the client? Several factors would suggest that the custodial parent is the client: she is the one whose name appears in the case caption, she is the one who stands up in court next to the IV-D attorney, and it is in her financial interest that paternity and child support be established and enforced. This latter interest is present even for custodial parents receiving AFDC benefits, both because they receive a $50 pass-through in addition to the AFDC benefits and because the child-support payments belong entirely to them once they go off AFDC.
On the other hand, there are several factors that would suggest that IDPA is the client. It is IDPA who pays the IV-D attorneys, and IDPA has, at least in the case of AFDC recipients, accepted an assignment of support such that most of the support paid will go to reimburse IDPA for AFDC benefits furnished to the family.
Finally, there are some factors that would suggest that the child is the IV-D client. It is the child who ultimately benefits from having a legal parent established and who benefits from the payment of child support.
At the beginning of this study, we asked ASAs whom they believed their client to be. ASAs gave answers across the entire spectrum. Some stated that the client was the mother only while others claimed that they represent IDPA. Other ASAs believed that they represent both the mother and child and a few ASAs told us that they represent the mother, child, and IDPA.
The inquiry as to who is the SAO's client has been rendered largely theoretical since the time we began this study because the Illinois General Assembly has passed a law which declares that IDPA is the IV-D attorney's only client. Under these circumstances, then, the only remaining question for the IV-D attorney is to determine what his or her relationship is to the custodial parent who, as noted above, has some appearances of being the client.
We believe that the custodial parent needs to be told in no uncertain terms that the ASA does not represent her. This communication ought to be both in writing and oral and ought to be done in the intake process and by the ASA or team of ASA's who will actually be standing up in the courtroom next to the custodial parent. The SAO should inform the custodial parent that she has the right to obtain her own attorney to represent her interests, but that she will have to pay her attorney's fees herself. When the custodial parent receives AFDC benefits, the SAO should also inform the custodial parent that she has a duty to cooperate with the SAO and that, if she tells the SAO about any support money she has received "under the table" from her child's father, or any other violation of IDPA's rules, the SAO will report her to IDPA. Finally, even though she is not the client, the SAO should treat the custodial parent with respect and courtesy. While IDPA may, by statute, be the SAO's client, the participation of the custodial parent is an integral part of child support proceedings.
2) Each ASA or his/her assistant should schedule an introductory meeting with the custodial parent.
This meeting is necessary to make sure the information in the file is accurate and complete, to answer questions and to learn about potential problems. It would facilitate the development of a relationship between the ASA and the custodial parent, and it would provide an opportunity for the ASA to give a realistic picture of what the custodial parent can expect to happen.
Discussion:
It is a very common phenomenon for ASAs to meet the custodial parent for the first time in the hearing room. While some custodial parents may come in early to ask questions and occasionally call the SAO, no ASA routinely meets with custodial parents before the court date. As a result, ASAs fail to become familiar with either the custodial parent or the case record prior to appearing in court. According to courtroom observers, ASAs in parentage cases frequently must conduct their own intake during the initial hearing before the judge.
Clearly, this model is far from ideal for discussing sensitive issues such as those involved in a parentage case. Because of the lack of contact between the ASA and the custodial parent, we have observed that custodial parents do not have the confidence in the ASAs that they should have. For example, custodial parents have complained that ASAs do not listen to them when they attempt to provide information regarding the non-custodial parent's income.
Another consequence of the failure to develop an effective working relationship is that vital information about the case may never be communicated. One custodial parent related an illustrative story. She had a support order in effect, but then she discovered that the father had removed their daughter from his employer-provided medical insurance plan. She tried to notify IDPA, but was put off. When she finally reached someone at IDPA, she was told that IDPA has "nothing to do with that" and to contact the father's employer. She did so, but the employer did nothing for almost a year. Her daughter was eventually reinstated on the medical insurance, but the mother is still paying medical bills incurred during the lapsed year. She had never mentioned the medical insurance issue to the ASA handling her case because she did not know it could be pertinent. One could reasonably conclude that if the mother and the ASA had established a relationship, they might have worked together to resolve this difficulty. Had the ASA been involved, it is likely that IDPA and, more importantly, the employer, would have been much more cooperative.
Another illustration of the problem was cited by an ASA who reported that in too many instances the ASA discovers in court that the custodial parent was married to a man who was not the putative biological father at the time of birth or conception of her child. Under Illinois law, marriage creates a presumption that the husband is the father of the child and requires that the husband be served with notice of the parentage case. Court observers once witnessed a parentage case in which the ASA learned, in the courtroom, that the mother was married and had been married during the conception and birth of her child to a man who was not the father of her child. The child's biological father was present in court, and wanted to admit paternity and to support his child. Moreover, the husband accepted that the child was not his and had no desire to contest the case. However, because of the ASA's obvious unfamiliarity with the case record, he was unprepared to proceed and the case had to be continued. As a result, a case which could have been resolved on the first court date was continued at least twice; the case lasted at least six months longer than necessary.
Although some of these observations were made in the earlier stages of our review, the same situations will recur until the underlying problem is addressed. The resolution of this problem is particularly crucial in conjunction with the newly implemented expedited program. Substantial time is wasted in the hearing rooms when both the hearing officer and the ASA are desperately trying to determine, from their written records, how the case has come before them, and what has previously occurred. This wasted time significantly impairs the expedited process, providing a disservice to the custodial parents and to IDPA. Without meeting with the custodial parent prior to appearance in court, ASAs are unfamiliar with the case and, inevitably, problems and delays will occur.
3) The SAO should develop a policy of making arguments in favor of positions that would benefit the child, even if it knows the judge may reject those arguments.
ASAs should argue, in appropriate cases, for the entry of child support orders in excess of the minimum guidelines, and should argue for retroactive child support in parentage cases. The SAO should also file appeals from orders that are legally unsound or against the manifest weight of the evidence.
Discussion:
Support awards are routinely below statutory guidelines in parentage cases; some ASAs estimated that at least 90% of their cases result in an award below statutory guidelines. ASAs routinely fail to ask for greater than guidelines orders, or retroactive support, considering such requests to be futile. ASAs in at least two courtrooms stated that awards below statutory guidelines stem from judges and hearing officers who regard the guidelines as a ceiling rather than a statutory minimum. Additionally, these ASAs reported that judges refuse to award retroactive support. Notwithstanding these perceptions, failing to seek retroactive support or appropriate support is inconsistent with the ASA's role. Moreover, even if the motion would be a futile gesture, the ASA should make a record and file an appeal.
Regardless of the position of the judges and hearing officers, ASAs must always remember that they are present in the hearing room to establish paternity and enforce child support orders consistent with Title IV-D and Illinois law, rather than simply trying to move cases. To uphold their obligations, ASAs should zealously advocate positions consistent with the law, even if it appears that the hearing officer or trial judge will rule in a manner inconsistent with the law. Furthermore, ASAs should appeal all rulings inconsistent with the law to fulfill their ethical and legal obligations.
4) To help minimize the number of times a custodial parent must appear in court, it is important that the SAO contact the custodial parent prior to the initial hearing to inform her whether service has been accomplished on the non-custodial parent.
Discussion:
A common problem with the child support enforcement system historically has been that numerous cases were continued because respondents had not been served. Some ASAs estimated that 40-50% of their cases had to be continued at least once because the respondent had not been served by the initial hearing date. The reasons for lack of service range from incorrect information about the respondent's whereabouts, to evasion of service, to alleged inefficiency or incompetence by the Sheriff's Office.
Whatever the reason for incomplete service, it usually means the custodial parent must make a fruitless trip to court. In the past, ASAs did not routinely call custodial parents to inform them when they need not appear. No one at the SAO had that responsibility.
Some ASAs had expressed the view that custodial parents should always show up, just in case the respondent knows that he is supposed to appear even though he was not served. Consequently, many custodial parents made a useless trip to court, sat through a call, often taking a day off of work. One of the greatest criticisms custodial parents have expressed is the great frustration at being called into court many times for nothing. Because continuances in most courtrooms range from two to four months, a support case that is continued is delayed even further, representing a significant hardship to custodial parents who do not receive AFDC, as well as a loss of reimbursement to the state in cases where they do.
D. ASAs MUST ADEQUATELY PREPARE FOR REPRESENTATION IN COURT
1) ASAs should review files a sufficient length of time before the court date to enable them to correct inaccurate or incomplete files.
Discussion:
SAO case files are generated by clerical staff. The staff create a physical file from the documents sent by IDPA and make sure the complaint is complete. The file consists of a 1067 Form, which contains general biographical data (name of parents and child, addresses, ages, etc.), a complaint, and a questionnaire, which is sent to custodial parents and which they are supposed to fill out and return. ASAs in parentage courtrooms usually receive files one to two days before the court date.
One attorney said that she often receives files with blank 1067 forms, which she and paralegals must fill out in court when the parties are present. Another frequent problem is that case files contain inaccurate or incomplete information. Files with inadequate or incorrect information force ASAs to seek continuances. One ASA said, "It's definitely a problem. Sometimes we have to settle cases for less because discovery hasn't been done. We have to rely on his [the father's] word a lot because we can't impeach him. It's [also] the biggest reason for continuances." One ASA said that he often has to request ledgers from IDPA after the case is filed. A ledger is a list of support payments, orders, and balances. The ASA said that IDPA usually does not produce the ledger for four to six weeks, and that when it does arrive, it is usually incorrect. He referred to the "maddening" problem that payments are often entered incorrectly; payments that were made are not credited toward arrearages or new support-order terms have not been entered. The ASA stated, "Sometimes, the math is done wrong. There are a lot of mistakes."
As a result of these inaccuracies and incomplete files, court proceedings are sometimes filed in error. That needlessly consumes court time and attorney time, and requires custodial parents to make unnecessary trips to court. A simple review of the file before the court date, combined with better communication between the SAO and the custodial parent, will avoid much of this waste.
2) ASAs should send subpoenas to defendants' employers and/or serve discovery on the defendants to ascertain defendants' incomes accurately prior to court.
Discussion:
Court observers noted that courts often set permanent support awards without any verification of fathers' incomes. In those cases, no documentation regarding income was in the case file and the ASAs had failed to conduct discovery. Accordingly, at the support hearing, the ASAs were unable to either confirm or contest the fathers' stated incomes. For example, of fifty-eight cases we sampled in which paternity was established, ASAs failed to produce employment records, pay stubs, income tax information, or asset information. Only twenty-seven of those fifty-eight cases resulted in a monetary award. Of those cases in which a support order was entered, observers were of the opinion that lower-than-possible awards may have resulted from the ASA's failure to prove fathers' ability to pay. Verification of this information is an important step in providing effective representation to custodial parents. An aggressive investigation into at least income and employment information is necessary. Moreover, this investigation should be done at the earliest possible stage of the process.
3) ASAs should consult with custodial parents regarding information they may have as to defendants' sources and amounts of income.
Discussion:
Lack of information regarding non-custodial parents' income can frequently be resolved, even without conducting an investigation, if the ASAs would communicate with the custodial parents. Often, the custodial parent has information regarding the non-custodial parent's sources and amount of income that may not be readily available from the files. Particularly where there is no employer-provided information in a file due to inadequate pre-trial discovery, the court and the ASA are placed in the position of relying on the non-custodial parent's own testimony regarding his income. Very often, the custodial parent knows when the non-custodial parent is lying about his income and can provide information to impeach his testimony.
However, many custodial parents report that ASAs do not listen when they try to convey this information. Not only does an ASA's unwillingness to listen demonstrate disrespect for the custodial parent, but it is also counter-productive to the ASA's role in the Title IV-D system.
4) ASAs should object to requests for continuances that are made for dilatory reasons, and ASAs should insist that the reasons for continuances be stated clearly in court orders.
Reasons for continuance should be noted in the ASA's files so that their objections to repeated requests for continuances can be substantiated.
Discussion:
Litigants were often frustrated by the frequent continuances and the glacially slow progress of their cases. ASAs agreed, noting that continuances of two to five months were common in many courtrooms. While the expedited process has improved this situation, custodial parents still complain about all the unnecessary continuances allowed to respondents. Though continuances are a fact of legal life, particularly in a high-volume courtroom, ASAs should object strenuously to routine requests for continuances.
5) ASAs should object to defendants' motions to vacate default judgments unless the defendant has met the legal requirements for vacating a default judgment.
Discussion:
Courtroom observers noted that ASAs failed to object when fathers sought to vacate default judgments. On five separate occasions in one day, the fathers' motions to vacate default judgments were made without any objection from the ASA. None of these fathers were asked by the ASA (or the court) to meet either of the two tests required to vacate a default judgment: (1) due diligence or (2) a meritorious defense. Unless the legal requirements for vacating a default judgment have been satisfied, ASAs should object to vacating the judgment.
6) The SAO should not prosecute enforcement proceedings in court if the obligor is working for an employer on whom an income withholding order can be served unless there is a reasonable likelihood of obtaining a lump-sum payment towards an arrearage that justifies use of court time.
According to the SAO, Assistant State's Attorneys now seek withholding orders in all cases. We recommend that the ASA serve the income withholding order on the employer at the commencement of the action so that current support is paid while issues regarding payment of the arrearage are being litigated.
Discussion:
Filing enforcement proceedings in court when the non-custodial parent is employed by an employer on whom an income withholding order could be served creates two serious problems. First, if there is an employer, there is no need to return to court to enforce the support order, or to collect the arrearage. Instead, a notice of delinquency served on the non-custodial parent, and then his employer, will accomplish the same result far more expediently. If enforcement proceedings are commenced, valuable court time is consumed, and, for no valid reason, custodial parents must take time off to appear.
Second, failure to serve an income-withholding order before the first court date needlessly delays the custodial parent's receipt of child support payments. Enforcement proceedings are frequently filed to get the non-custodial parent to pay a lump sum on an accrued arrearage. In other cases, the enforcement proceeding is combined with a petition to increase the amount of current support. But, in cases where the non-custodial parent is not currently paying support, ASAs did not routinely assure that an income-withholding order is served on the non-custodial parent's employer before the enforcement proceeding is commenced. Because of delays that frequently result from continuances (for the non-custodial parent to obtain an attorney, for the ASA to conduct an investigation, etc.), the failure to serve an income withholding order on or before the first court date means that the custodial parent may not receive current support, sometimes for months. To ensure that these withholding orders are routinely served, the SAO must be able to serve them without relying on IDPA, or it must work much more closely with IDPA to obtain service.
Currently, IDPA's dilatory practice in serving withholding orders is responsible for much of the delay in the expedited process. If IDPA, by contract, maintains the responsibility of serving these orders, it must do so expeditiously. It is a severe obstacle to justice when there is a delay of two months in service of a withholding order on the employer. It is even worse when withholding orders previously entered for the very purpose of avoiding court time are ignored and situations meriting their use are referred back to the SAO.
E. ADDITIONAL RECOMMENDATIONS FOR THE IV-D SYSTEM
1) Free child care for litigants should be made available at or near the hearing rooms.
Parents involved with child support proceedings must often bring children to the hearing rooms. This sometimes results in a chaotic environment. There are instances where mothers have been taking care of their children outside the hearing room when their case was called and, as a result, continuances were ordered. By definition, these proceedings involve children. The court should expect their presence and accordingly provide appropriate facilities.
In addition, the Circuit Court of Cook County should consider having more child support proceedings heard in suburban courtrooms. Even if adequate child care is provided in a downtown Chicago courthouse, it is a great hardship to many mothers living in suburban locations who must transport their infant children to downtown Chicago using public transportation.
2) Steps must be taken to provide independent representation for custodial parents when necessary.
In most cases, although the SAO formally represents only IDPA, the ASAs advocate positions that are consistent with those that should be advocated by the custodial parent and/or the child. See, e.g., Parks v. Romans, 187 Ill. App. 3d 445, 451 (1st Dist. 1989) (trial court "erred in holding that the State's Attorney's office could not represent the custodial parent where there was no conflict of interest").
But, in some cases, joint representation of the custodial parent and IDPA by the same ASA would be impossible and/or unethical. For example, where the putative father has been abusive, the mother might prefer to give up the fight for child support rather than be forced to permit visitation or risk losing custody. But the SAO's client, IDPA, may prefer to pursue the fight for child support payments. Another example where the SAO cannot represent the interests of custodial parents involves visitation and child custody issues. The Parentage Act of 1984 provides that "[l]egal representation by the State's Attorney or the Attorney General shall be limited to the establishment and enforcement of an order for support, and shall not extend to visitation, custody, property or other matters. 750 ILCS 45/18(b) (1993). If visitation, custody, property or other matters are raised by a party and considered by the court in any proceeding under [the Parentage Act of 1984], the court shall provide a continuance sufficient to enable the mother or child to obtain representation for such matters."
The SAO must articulate a policy for the ASAs requiring a full explanation of what an ASA can and cannot do during the course of support proceedings. Appropriate steps and safeguards must exist to protect the interests of IDPA and custodial parents when their interests diverge. We do not, however, embrace the idea that the SAO must become the custodial parent's all-purpose lawyer. When conflicts arise or when child custody or visitation matters become involved and the custodial parent cannot afford private counsel, the General Assembly must create a means for custodial parents to obtain legal representation. Pro bono representation by the private bar is one answer. Government funding for outside representation is another.