Olson Law’s Attorney Letter
The Law Office of Peter R. Olson Olsonlawfirm.net 312-629-9900 Spring 2009, Vol. III, No. 2
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Be Careful Using a Guardianship to Change School Districts
Illinois‟s method of funding its schools from the property taxes paid by residents of the school districts has led to disparities in the resources available to children in those districts. And some parents are tempted to send their children to school in districts that are more affluent. Though many agree that Illinois should address its schoolfunding disparities, students may not attend public schools outside their own districts under Illinois law unless they pay non-resident tuition. Not only that, but it‟s a Class A misdemeanor to knowingly enroll a student who isn‟t a resident of the school district without paying tuition. What the School Code says Parents who think they can get around the law by sending their children to live with relatives in other districts, or even setting up short-term guardianships of their children with those relatives, are usually mistaken. Moreover, parents who have recently separated and live in different districts could face a challenge from one of the schools over whether their children are entitled to attend without paying tuition. With certain limited exceptions, the School Code imposes a duty upon any person who has “custody or control” of any child between the ages of seven and seventeen to cause them to attend public school in the district where the child resides. The Code also imposes duties upon school boards. The Code requires school boards to charge nonresident pupils attending schools of the district tuition in an amount not exceeding 110 percent of the per capita cost of maintaining the schools of the district for the preceding school year. That cost is figured by dividing the total cost of conducting and maintaining the schools of the district by the average daily attendance. Whether a public school is in the city, the suburbs, or a rural area, nonresident tuition won‟t be cheap. The Chicago Tribune reported that the Chicago public schools spent approximately $10,400 per student during the 2005-2006 school year. New Trier spent more than $17,000 per student during the same period, the Tribune said. Multiply those figures by 110 percent, and you have the tuition that the boards of those schools are required by law to charge students who haven‟t established residency in their districts. But isn‟t there a form for a guardianship that will enable a child to live with a relative for the purpose of attending school where the relative lives? Well, not exactly. The Probate Act does provide for three different types of guardianship: standby guardian, short-term guardian, and the typical, court-appointed guardian of a minor. A standby guardian is a sort of back-up guardian that is not particularly relevant to this article. A typical, court-appointed guardian will generally establish residency for school district purposes namely because this process is rather involved and typically will include expense and court appearances by the potential and then court-appointed guardian. The short-term guardianship is where people often get into trouble with school districts because this sort of guardianship only requires a form to be completed by the parent(s), potential guardian, and witnesses and can be good for up to 365 days (and can be renewed). The ease of use of the short-term guardianship form often leads to its abuse when a school change is desired. Yet a guardianship set up for the sole purpose of the child‟s attending school in the guardian‟s district won‟t work. Under the School Code, “The residence of a person who has legal custody of a pupil is deemed to be the residence of the pupil.” But the Code then defines “legal custody” as custody that is granted or exercised for reasons other than to have access to the educational resources of the school district in which the person resides.
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Retroactive tuition Some advice for parents considering setting up guardianships for their children is to not say a word in any guardianship documents that school is the purpose of the guardianship. Second, be sure the children actually spends most of their time with their guardians, not with their parents in their parents‟ school districts. Third, have a colorable reason for setting up the guardianship, meaning legitimate reasons other than wanting the child to attend a better school. I don‟t recommend the guardianship route. If the school district challenges you, how much in attorney‟s fees are you going to have to spend to prove these things? And if you lose, the board will bill you for the tuition since the child has been in school. They have to. The best advice for parents who are disturbed by their school district‟s lack of resources, or by any other educational issues in their district? Move. _____________________________________________________________________________________________
Client question: My husband just died leaving me (surviving wife) with two, minor stepchildren that I have raised since they were infants. I have never adopted the children. My husband made no provisions for the children in his will. Will I lose my stepchildren? Do I have any legal right to custody?
The first big question is whether the children‟s biological mother is alive and whether or not she has physical custody of the children and/or has maintained a relationship with the children over the years. If the surviving parent is alive and has physical custody of the children, a non-parent has little chance of obtaining legal custody of the children. If the surviving parent does not have physical custody of the children, then the step-parent will at least have the opportunity to get into court and argue for custody. Then a court would look at the best interests of the children in terms of the respective living arrangements. These cases do strongly favor biological parents. If there is not a surviving parent, then the step-parent‟s prospects are much brighter. Then I would file a petition for guardianship under the Probate Act at the same time as a petition for child custody. The guardianship is quicker, and at a minimum the step-parent should get temporary guardianship while she pursues custody. The custody judge will appoint a child representative or a guardian ad litem (GAL) to do an investigation and report to the court. The children can tell the GAL or child rep what they want to do and their wishes are one of the factors for the court to consider in deciding custody. I would also file a petition to adopt the children pursuant to the Adoption Act. 750 ILCS 50/5(B)(g). This is the reason the step-mother needs to become the guardian. A step-parent should be in a superior position factually since she has physical possession of the children. Then write a will naming a guardian for these children in the event of her death while they are minors. *Email your questions to Diane at dianeb@olsonlawfirm.net for future newsletter issues.* **DISCLAIMER: Actual resolution of legal issues depends upon many factors, including variations of facts and state laws. This newsletter is not intended to provide legal advice on specific subjects, but rather to provide insight into legal developments and issues. The reader should always consult with legal counsel before taking action on matters covered by this newsletter.
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Case law update – April 2009
_____________________________________________________________________________________________ In re B.H., a Minor v. Demetrius, No. 1-08-2729 (March 23, 2009) 1st District. Finding by trial court that adoptive mother abused her 15-year-old daughter by using excessive corporal punishment is not against the manifest weight of the evidence. Although bite marks and scratches to minor were the result of an altercation, the altercation was the direct outcome of respondent‟s attempts to discipline the minor. How might this apply to you? This case was interesting because it looked at the definition of what is “excessive corporal punishment.” In this case the mother followed a 15-year-old daughter into the daughter‟s bedroom and bit the daughter on the chest and scratched the daughter‟s face. The daughter immediately left the house and went to the emergency room to receive treatment. This case analyzed an interesting line of cases dealing with a parent‟s right to use corporal punishment. A surprising degree of latitude is given to parents to discipline children. The cases seem to shift on the parent‟s state of mind in inflicting the punishment and the child‟s reaction afterwards. Was the parent lashing out at the child or calmly inflicting punishment? Did the child accept the punishment as such or get angry and rush to the hospital like in this case? Kunkel v. P. K. Dependable Construction, LLC, No. 5-07-0684 (February 13, 2009) 5th District. Although the trial court‟s finding that the defendant installed a defective roof and that plaintiff‟s damages totaled the cost of replacing the roof and damaged ceiling, it erred when it awarded the plaintiffs‟ attorneys‟ fees; because there was no evidence that the defendant knowingly violated the provisions of the Home Repair and Remodeling Act. Failure to provide plaintiffs with a brochure is not enough. How might this apply to you? Some fairly interesting “hair splitting” in this case. The Home Repair and Remodeling Act provides, “For any contract over $1,000, any person engaged in the business of home repair and remodeling shall provide to its customers a copy of the Home Repair: Know Your Consumer Rights pamphlet prior to the execution of any home repair and remodeling contract.” Yet in this case, although it was acknowledged that the contractor did not provide the pamphlet, the plaintiffs introduced no evidence that the defendants‟ failure to provide the brochure directly caused their damages. Thus no attorney fee award to the plaintiff. Glickman v. Teglia, No. 1-08-0392 (February 19, 2009) 1st District. Trial court erred when it granted 2619 motion to dismiss plaintiff‟s complaint for personal injuries she suffered when she slipped and fell on ice on common property of her condominium, alleging that the Association was liable for negligent maintenance and defective design of common areas. Even though initial Board of Directors had not yet been elected, under Condominium Property Act, the Association was still liable for property maintenance, with the developer serving in the role subsequently served by elected Board. How might this apply to you? This is a case of interest to potential buyers or owners of newly developed condominiums. Many people don‟t understand how a condominium association is formed and is later transferred from the property‟s developer to the unit owners. A condominium association is formed when a legal document called a condominium declaration is recorded with the county recorder of deeds. However for up to three years a developer often controls the condominium association and acts as its board of managers prior to the election of managers who actually live and own units in the association. Here the unit owner association thought they might not be liable for the time period before they took over the association from the developer. Wrong! The association existed the moment the declaration was recorded regardless of who ran the association‟s board of managers and the association was on the hook for this woman‟s injuries. In re Marriage of Barile, No. 3-07-1081 (October 8, 2008) 1st District. On October 8, 2008, the Illinois Appellate Court, Second District, reversed and remanded the decision of the Circuit Court of Du Page County declining to hold the petitioner in contempt of court and ordering the petitioner to pay the respondent past-due maintenance interest from the date of judgment. Following the judgment of dissolution of marriage, which ordered the
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petitioner to pay the respondent maintenance of $5,318 per month, the petitioner asked to terminate, modify, and abate maintenance pursuant to Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act [750 ILCS 5/510(a)]. The respondent moved to hold the petitioner in contempt for failing to pay maintenance. Although the trial court granted the motion to dismiss and ordered the petitioner to pay the respondent past-due maintenance and interest from the date of judgment, the court declined to hold the petitioner in contempt. The appellate court held that the trial court erred in not finding the petitioner in contempt and awarded the respondent interest from the date of judgment. The court stated that the petitioner‟s choice to cover his own expenses and many nonessential expenses of the parties‟ children did not release him of his maintenance obligation because “financial inability to comply with an order must be shown by definite and explicit evidence.” How might this apply to you? This case makes the important point of how high the bar is set before a party is excused from following a court‟s order, in this case namely the payment of maintenance to a former spouse. The defense of poverty and misfortune as a valid excuse for nonpayment has been found applicable only in the most extreme cases, notably where a party who is ordered to pay support had no money and no way of getting money to meet his support obligations.” In re Marriage of Dall, 212 Ill. App. 3d 85, 97-98 (1991). Here although the former husband does cover many expenses that seem to be legitimate like paying for items for his children, these can‟t come before his court-ordered maintenance requirement. He should have been held in contempt of court. Leith v Frost, No. 4-07-0964 (December 31, 2008) 4th District. On December 31, 2008, the Illinois Appellate Court, Forth District, affirmed the judgment of the Circuit Court of Logan County awarding damages to the plaintiffs for tortious damage to their dog and modifying the damage award to equal the total costs of veterinary care required. The defendant and the plaintiffs were neighbors whose backyards were enclosed by fences. On April 27, 2006, the plaintiff found one of the defendant‟s dogs, Cosmo, mauling one of its dachshunds, Molly. The plaintiff freed Molly from Cosmo and took the dog to the veterinary teaching college at the University of Illinois where bills totaled $4,784. The trial court found the defendant to be negligent in failing to secure his dog and awarded the plaintiff $200. The plaintiff and the defendant both appealed the decision. The appellate court changed the damage award to $4,784 to cover the veterinary costs associated with returning the dachshund to its original state. How might this apply to you? This isn‟t the sort of case we typically deal with but I thought some pet owners might be interested. The case looked at how a court should award damages when a family‟s pet dog was injured. Generally pets are considered personal property and the cost of repairs to personal property is usually the measure of damages, but when the cost of repairs exceeds the fair market value of the personal property, the value of the personal property becomes the ceiling on the amount of damages which can be recovered. That‟s why $200 was the initial order. But the appellate court changed the damage amount to $4,784 which were the veterinary costs for care to the pet. The court looked at this more like a family heirloom or photograph where damages shouldn‟t be capped at the mere replacement value of the item. In re Estate of Hudson, No. 5-07-0312 (October 15, 2008) 5th District. At the time of their divorce, the parties had two minor children and the father was ordered to pay child support. Approximately six years later the father died owing approximately $3,300.00 in child support. The former wife filed a petition in the probate court for unpaid child support in addition to future child support under the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The trial court in the probate case directed that each child should receive $10,000.00 pursuant to Section 15-2-8(b) of the Probate Act. The trial court later found that the total child support that would be due until both children were emancipated was $19,656.00. Since the child award of $10,000.00 per child was paid, it amounted to the total that would be due through emancipation of the children. Therefore, the estate only had to pay the past due child support because the child award under the Probate Act is to be applied without duplication to the provisions under the IMDMA. The former wife appealed and the Appellate Court reversed the trial court stating that
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support for children under the Probate Act was a distinct concept from child support under the IMDMA. Under Section 510(d) of the IMDMA the court has broad discretion to set child support following the death of the obligor. Child support is to be decided in tandem with the child award under the Probate Act but they are not duplicative requiring a set off of one against the other. This situation presents itself when a mother or father who have a child support obligation die while their children are still minors (and thus would have still
How might this apply to you?
owed them further child support). Then there are potentially two payouts that the children are entitled to: A „child‟s award‟ of up to $10,000 each under the Probate Act and the remaining child support payments. Here the trial court got it wrong because it said that the child‟s award paid enough to take care of the child support award too. Wrong, these are separate and distinct items that should both be paid.
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