OFFICIALS WEIGH APPEAL OF DIVORCE PROGRAM RULING [2011-04-24]
Copr. (C) West 2000 No Claim to Orig. U.S. Govt. Works
Chicago Daily Law Bulletin
Volume 140, No. 161
Copyright (c) 1994 by Law Bulletin Publishing Company
August 17, 1994
OFFICIALS WEIGH APPEAL OF DIVORCE‑PROGRAM RULING
Law Bulletin staff writer
Cook County Circuit Court officials are considering whether to appeal a ruling that has stopped operation of a mandatory education program for divorcing parents, a spokesman for the Illinois attorney general said Wednesday.
“There has been no decision whether to appeal,” said Al Manning, spokesman for Attorney General Roland Burris. The attorney general represents Domestic Relations Presiding Judge Benjamin S. Mackoff in the challenge to his four‑ month‑old program “Focus on Children.”
The program requires all parents with minor children who are seeking a divorce in Cook County to pay a $25 fee and attend a four‑hour program on how to raise their children as single parents. It emphasizes not involving children in the marital problems by asking them to take sides or act as spies.
The matrimonial law firm of . . . . Feinstein challenged the program’s constitutionality shortly after it took effect in April through Cook County Rule 13.9.
Chancery Judge Lester D. Foreman enjoined the Circuit Court from enforcing the mandatory program on Friday afternoon.
“It was unquestionably the Circuit Court’s motive to assist children and single parents in enacting and energizing the program that became ‘Focus on Children,’ ” Foreman wrote in an eight‑page opinion. “The need has been ever present and the court system responded to the need.”
Despite its “laudable public purpose,” the rule’s origin and constitutionality must be scrutinized, he added.
“A suitor seeking dissolution of marriage has a menu prescribed by statute and properly need only satisfy those substantive criteria prescribed by statute to obtain relief,” Foreman wrote. “Circuit Court Rule 13.9, in addition to the payment of a fee over and above the original filing fee adds a mandatory substantive step as a legal requirement. Specifically, it requires the participation in the Focus on Children program. Such is constitutionally impermissible regardless of how beneficially motivated and humanely conceived.”
Feinstein contended in the class‑action lawsuit that Nancy Schulp needed no parenting update to prepare her for the divorce. They contended that the state Constitution confers only limited authority to the chief judge of a circuit court and does not allow for a mandatory program or added fees.
They also contended that the program violated the Illinois Marriage and Dissolution of Marriage Act, which simply allows a trial court to require a specific parent to attend a program if it is in the best interests of a child, but does not mandate that all parents attend a class.
Mackoff contended that the rule fell within the court’s rule‑making power as part of its duty to protect children of divorcing parents. He also contended that the marriage act specifically allows for the rule to create the program.
“Mackoff, however, cannot ascertain the situation of every child whose parents are undergoing a divorce in Cook County,” Foreman wrote. “The simple fact is that an individual determination is impossible at that level.
“Rather, Mackoff has removed an element of discretion from the trial judge and imposed an additional mandatory requirement upon persons seeking dissolution of marriage who have minor children,” Foreman wrote.
Foreman also wrote that allowing local rules to add more steps to meet the needed remedy would create instability in the courts.
“Were circuit courts enabled to effect substantive law, the access to a given remedy would be dependent upon which circuit court is being addressed within the state,” Foreman wrote. “This would be a malady striking at our desire for legal uniformity with respect to the statutory provisions enacted by our legislators.”
The lawsuit named Circuit Court Clerk Aurelia Pucinski as a defendant also. Pucinski’s office, which had been collecting the fees for the program, took no position in the lawsuit.
“We still think it is a good idea to have a program, but we will follow whatever law is established,” said Carolyn Barry, spokeswoman for Pucinski.
Assistant Attorney General Mitchell B. Katten represented Mackoff.
Nancy Schulp v. Benjamin S. Mackoff and Aurelia Pucinski, No. 94 CH 3853.