13.4 Pre-Trial Phase
(a) Pre-Judgment and Post-Judgment Motions, Petitions and Applications, Hearings
(i) In General
a. All motions, petitions and applications shall be made in writing. A notice of motion is not a motion.
b. All petitions and motions submitted to the court in Domestic Relations cases shall be titled with an accurate description of the primary relief sought in the petition or motion. Each responsive pleading shall specifically identify the petition or motion to which it responds.
c. Petitions shall be verified. All petitions and motions shall state with specificity the statute or authority relied upon for the relief sought. If a petition or motion fails to state with specificity the statute or authority relied upon for the relief sought, it may be stricken, sua sponte, by the court.
d. If an order submitted to the court is agreed, the word “agreed” shall precede the word “order” in the title.
e. Petitions for Rule to Show Cause or Adjudications of Contempt shall state both the legal and the factual bases of the contempt finding sought.
f. All motions, petitions and applications shall be filed with the Clerk of the Circuit Court.
g. Notice shall be in accordance with the applicable Illinois Supreme Court Rules, Cook County Circuit Court Rules and statutes.
h. At the time of the appointment of an evaluation pursuant to 750 ILCS 5/604, the court may issue a protective order prohibiting the parties or their attorneys from disseminating the contents of said report for purposes other than the litigation or to the minor children or to anyone who is not a party to the litigation.
i. Evaluators appointed pursuant to Section 604(b) of the Illinois Marriage and Dissolution of Marriage Act shall be required to send a detailed monthly bill to the parties or their respective counsel after their appointments unless they have previously entered into a written agreement for a “flat fee.”
(ii) Emergency Motions
a. Emergency motions shall be heard at a time designated by the judge to whom the case is assigned.
b. Facts identifying the nature of the sudden or unforeseen circumstances which give rise to the emergency and the reason why the matter should take precedence shall be stated with particularity in an affidavit or verification in support of the emergency motion.
(iii) Default Matters - When a party fails to file an appearance and/or an answer, cases transferred to another calendar for the limited purpose of a default prove-up with a court reporter, shall have the order of default entered before being transferred.
(iv) Ex Parte Matters
a. An ex parte matter is one where a party appears in court without giving notice for good cause shown. Such matters shall be heard at a time
designated by the judge to whom the case is assigned.
b. When an ex parte order is sought, the petition shall state the reason why notice should not be given and why the matter should be heard ex parte.
c. If the court does not deem the matter appropriate to be heard ex parte, the movant may set the matter on the motion call, with proper notice.
d. No ex parte order for custody shall be granted without notice unless it clearly appears from specific facts shown in a verified petition that immediate irreparable harm will be suffered by the child if notice is served before a hearing is held. All ex parte orders for custody shall set a status or hearing date on or before the 10th day after said order is entered and shall take precedence over all other matters. A copy of the ex parte custody order, with a copy of the underlying petition, shall be immediately served upon the other party. On two (2) days notice to the party who obtained the ex parte custody order, the adverse party may appear and move for a re-hearing or modification on the ex parte order.
(b) Appointment of Guardian ad Litem, Attorney for the Child and Child Representative
(i) The appointment of a guardian ad litem, attorney for the child, and child representative shall be in accordance with the Illinois Marriage and Dissolution of Marriage Act and Illinois Supreme Court Rules 906 and 907.
(ii) The order of appointment shall provide that the appointment will terminate thirty (30) days after the entry of the final custody judgment unless extended by the court.
(c) Children in Court - If the court finds that it is not in the best interest of a minor child of litigants to be inside the courtroom, the court may exclude the minor child from the courtroom.
(d) Assignment to Special Services
(i) Supportive Services - The court may order an investigation and a written report from Supportive Services of Cook County. Said investigation shall be in accordance with 750 ILCS 5/605.
(ii) Forensic Clinical Services - The court may order the parties to be evaluated by Forensic Clinical Services of Cook County in accordance with 750 ILCS 5/604(b). Forensic Clinical Services shall issue a written report with recommendations.
(iii) Marriage and Family Counseling Service - The Marriage and Family Counseling Service shall provide the following assistance to litigants and their families:
a. Mediation - In accordance with the provisions set forth in this set of rules, the Cook County Marriage and Family Counseling Service shall provide mediation services to partieslitigating a dispute involving children in the Domestic Relations Division.
b. Reconciliation - Where the judge has reason to believe that there is a prospect of reconciliation, the court, at the request of either party, or the attorney for the child, guardian ad litem or child representative, or on its own motion, may order the parties to attend a reconciliation conference. The content, use and administration of a reconciliation shall be privileged and confidential and shall not be disclosed to any party outside of the mediation or admissible at the time of trial.
c. Conciliation - At the request of either party or the attorney for the child, guardian ad litem or the child representative, or on its own motion, the court may order the parties to attend a conciliation conference for the purpose of assisting the parties to improve their communication and parenting skills and to refer the parties to any community services which may be appropriate. The content, use and administration of said conference shall be privileged and confidential and shall not be disclosed to any party outside of the conciliation conference or admissible at the time of trial.
d. Emergency Intervention - Where a judge has reason to believe that a child may be in imminent danger, the court may order the parties and children to an immediate interview with the Cook County Marriage and Family Counseling Service mediator who acts as the court’s intervener(s) in the matter. The emergency intervention interview shall not be confidential or privileged and any statements made during the interview may be communicated to the court and subject to discovery. Following the interview, the intervener(s) shall report to the court in the presence of the parties with regard to the recommendations of the interviewer.
(e) Provisions Governing Mediation
(i) Matters Subject to Mediation - The Domestic Relations Division judge shall order mediation on any pre-judgment contested custody dispute pursuant to Illinois Supreme Court Rules 923(a)(3) and 905(b) unless the court finds that an impediment to mediation exists. The Domestic Relations Division judge may order mediation on any post-judgment contested custody dispute within the judge’s discretion. Additionally, the Domestic Relations Division judge may order mediation on any pre or post-judgment contested issue of visitation and/or removal of the minor child(ren) from the state of Illinois.
(ii) Commencement of Mediation - The mediation process shall commence pursuant to Illinois Supreme Court Rule 923(a)(3) or as soon as practicable after any issue arises as set forth in this Rule. Wherever possible, the parties shall be referred to an orientation process wherein the mediation process is explained to them and scheduling occurs for the commencement of mediation.
(iii) Discovery - The Domestic Relations Division judge shall have discretion to stay discovery related to the mediation until such time as mediation is concluded.
(iv) Mandated Conference - Each case directed to mediation shall receive no less than one mediation conference, and additional conferences as are deemed appropriate by the mediator to be necessary. Each mediation conference shall last for approximately two (2) hours unless mediated issues are resolved prior to that time. At the time the court orders mediation, the court shall set a court status date as soon as practicable. The court may issue temporary orders prior to or during mediation. If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon notice and motion, may enter an order the court deems appropriate under the circumstances, including sanctions against a party for failure to appear.
(v) Appointment, Qualification and Compensation for Mediators - Mediators hired under the program should possess a Master’s Degree in Social Work, Psychology, Counseling, or a Juris Doctorate degree or an equivalent in a related field, and at least five (5) years post-degree experience in mental health mediation or a related field. Mediators will be compensated according to the grade level as contained on the schedule of salaries established by the Cook County Board of Commissioners. Prior to conducting mediation conferences, mediators shall be required to attend a forty (40) hour approved mediation training course which shall cover conflict resolution and mediation process and techniques. All mediators shall be required to attend continuing education programs as determined by the Director of the Marriage and Family Counseling Service which shall include, at a minimum, psychological issues and needs of children in cases of separation as well as family dynamics.
(vi) Conflict of Interest - No mediator shall continue service on a case in which his or her impartiality is impaired by any personal, financial or other relationship with either party or his or her counsel. If the mediator has or has had any conflict of interest, including, but not limited to, a current or previous therapeutic, personal, or economic relationship with either any child, stepparent, other relative, counsel, or anyone else involved in the case, he or she shall decline the appointment.
(vii) Duties of Mediator - Preliminary Responsibilities - Before mediation may begin, the mediator shall screen for issues of impediments to mediation. An impediment to mediation may include, but is not limited to, family violence (child or spousal abuse has occurred in the past or is occurring on an ongoing basis), mental or cognitive impairment (one or both parties are mentally or cognitively impaired to the extent that such impairment would interfere with mediation unless the impairment is addressed and resolved), alcohol abuse or chemical dependency (one or both parties are chemically dependent to the extent that such dependence would interfere with mediation unless the dependence is addressed and resolved), or any other circumstances which would unreasonably interfere with mediation. In the event that the mediator finds an impediment to the mediation, the mediator may, at his or her discretion, institute such protocols as to address the impediment during mediation.
(viii) Duties of Mediator – Information at Initial Conference - Before mediation may begin, the mediator shall:
a. Advise the parties that the mediator neither represents nor advocates for either party and will not provide therapy or counseling to either party;
b. Explain that no legal advice will be provided;
c. Advise the parties that each has a right to consult with an attorney during the mediation process;
d. Define and describe the process of mediation to the parties, including the appropriate procedure when evidence of impairment surfaces after mediation is in progress;
e. Explain the mandated reporting requirements of the Abused and Neglected Child Reporting Act, 325 ILCS 5/1 et seq. as well as the application of rules of privilege and confidentiality in the mediation process; and
f. Disclose the nature and extent of any existing relationships with the parties or their attorneys and any personal, financial, or other interests that could result in bias or a conflict of interest on the part of the mediator.
(ix) Confidentiality and Privilege - Mediation conferences shall be private. Except as otherwise provided in this rule, the mediator shall have authority to exclude all persons other than the parties from conferences at which negotiations are to occur. Mediation proceedings and all information obtained through the mediation process shall be treated as confidential. Except as otherwise provided by law, all oral or written communications in a mediation conference conducted pursuant to these rules, other than an executed settlement agreement, shall be exempt from discovery and shall be confidential and inadmissible as evidence in the case. Communications shall not be disclosed by the mediator to any third party, including the parties’ attorneys. However, where there is a clear danger of imminent harm to the child or other individual, the obligation of the mediator to maintain confidentiality will not apply as to the danger of imminent harm.
(x) Evidentiary Privilege - Admissions, representations, statements, and other communications made or disclosed in confidence, by any participant or observer in the course of a mediation conference are privileged and shall not be admissible as evidence in any court proceeding. Except as identified herein, a mediator may not be called as a witness in any proceeding by any party or by the court to testify regarding matters disclosed in a mediation conference, nor may a party be compelled to testify as to privileged communications. This privilege shall not prohibit any person from obtaining the same information independent of the mediation, or from discovery conducted pursuant to law or court rule. Evidence regarding alleged settlement agreements shall be admissible in proceedings to enforce the settlement.
(xi) Exceptions to Confidentiality - Admissions, representations, statements and other communications are neither confidential nor privileged if:
a. The communication reveals either an act of violence committed against another during mediation, or intent to commit an act that may result in bodily harm to another;
b. The communication reveals evidence of abuse or neglect of a child; or
c. The communication took place during an Emergency Intervention.
(xii) Reporting Risk of Bodily Harm - In the event of any communication in the course of mediation which reveals an act of violence committed against another or an intent to commit an act that may result in bodily harm to another, the mediator may report such communication to an appropriate law enforcement agency. When the identity of an endangered person is known to the mediator, the mediator may warn that person and his or her attorney of the threat of harm; such notification shall not be considered a breach of the confidentiality mandated by this rule. The mandated reporting requirement of the Abused and Neglected Child Reporting Act, 325 ILCS 5/1 et seq, as applied to mental health professionals shall also apply to all mediators.
(xiii) Mediator Ex-Parte Communication - The mediator shall not communicate with either party without the presence of all parties to the mediation and shall not discuss mediation issues with any persons without the consent of the parties.
(xiv) Termination of Mediation - Termination by a mediator may be based upon a reasonable belief that:
a. The parties have reached a final impasse;
b. The willingness or ability of any party to participate meaningfully in mediation is so lacking that an agreement on voluntary terms is unlikely to be reached by prolonging the negotiations;
c. Either party is acting in bad faith;
d. The mediation process is harmful to either party;
e. An impediment to mediation exists as set forth in these rules; or
f. A disqualifying impairment exists and termination is required.
(xv) Expeditious Mediation - Cases assigned for mediation shall be completed in a timely manner as expeditiously as possible.
(xvi) Report to the Court - A Mediation Status Report shall be provided to the court on or before the scheduled status date. The Report shall inform the court if a full agreement, partial agreement, temporary agreement or no agreement was reached. Parties shall not be compelled or pressured by the mediator to reach an agreement on any issues arising in an action, which is subject to mediation, by rule or court order. If an agreement is reached, a copy of that agreement shall be attached to the Mediation Status Report. The parties may enter into an agreed order on the status date finalizing the agreement reached through mediation. Agreements reached in mediation are not binding on the parties unless memorialized in a court order and approved by the court. Parties shall review any agreements reached in mediation with their attorneys. Agreements reached in mediation are not binding until entered as a court order.
(xvii) Personal Safety - At all times while any mediation is occurring, a Cook County Sheriff’s Deputy shall be posted at the mediation facility to provide for the personal safety of the mediators and parties.
(xviii) Data Collection Requirements - The Marriage and Family Counseling Service shall collect, compile and report such data as may be required by the Illinois Supreme Court or its administrative director to assist in measuring and monitoring the performance of mediation programs. Mediators shall report monthly on forms provided by the court, the number of cases pending and the average time elapsed for all cases pending in which mediation is in progress.
(xix) Annual Report - An annual report shall be filed with the Illinois Supreme Court through the Administrative Office of the Illinois Courts. This report shall contain a statement of the nature of the mediation program and the number and type of cases referred to mediation through the mediation program. Said report shall be submitted to the Illinois Supreme Court for the calendar year not later than the first day of March of the next calendar year.
(xx) Family Mediation Advisory Committee - The Presiding Judge of the Domestic Relations Division shall establish an advisory committee whose membership shall consist of at least six (6) persons, including two (2) Domestic Relations Division judges, the Director of the Marriage and Family Counseling Service, two (2) practicing attorneys in the field of domestic relations, and a practicing mental health professional. Members of the committee shall be appointed by the Presiding Judge for terms not to exceed two (2) years. At least annually the committee shall assist the Presiding Judge of the Domestic Relations Division in reviewing these rules and the Marriage and Family Counseling Service and recommend whether any changes should be made in the program.
(xxi) Private Resources - The parties, counsel appointed to represent a child or children, or either or any of them, may also request private counseling or mediation services or any other private evaluation, and the court, in its discretion, may order the same. The court shall apportion the costs, if any, to the parties in accordance with the governing law.
(f) Parenting Education Program - Parenting education programs are available to protect the child(ren)'s best interest pursuant to Section 404.1 of the Illinois Marriage and Dissolution of Marriage Act and Illinois Supreme Court Rule 924. The Circuit Court of Cook County has established an in class program called Focus on Children, and has authorized an online program to be used as an alternative to the in class program.
(i) For purposes of this rule 13.4(f), "authorized parenting education program" shall mean Focus on Children or the online parenting education program authorized by the Presiding Judge of the Domestic Relations Division. The identity of the authorized online parenting education program shall be established by general order of the Domestic Relations Division.
(ii) All parents of minor children involved in any action involving custody or visitation, including post-decree proceedings for modification of custody or visitation or for removal, shall attend and complete an authorized parenting education program, except for good cause shown.
(iii) The authorized parenting education programs shall be educational in nature and not designed for individual therapy. Each program may be divided into sessions, which in the aggregate shall be a minimum of four (4) hours in duration.
(iv) Parties shall complete an authorized parenting education program within the time period set forth by Illinois Supreme Court Rule 924, unless excused by the Court, in its discretion, for good cause shown. A finding of good cause shall include a finding that excusing one or both parents from attendance is in the best interests of the child. If the Court excuses a party from attending an authorized parenting education program, the Court shall make a written finding in the record stating why the party is excused.
(v) Parties may complete the online authorized parenting education program without a court order. However, completion of the online authorized parenting education program shall occur no earlier than sixty (60) days prior to the initiation of the proceedings and no later than sixty (60) days after the initial case management conference
(vi) All parties ordered to mediation or emergency intervention shall be required to attend and complete the in class Focus on Children program, unless excused by the Court for good cause shown. Those parties who are referred to mediation shall complete Focus on Children prior to their first mediation date. For purposes of this paragraph, the parties= mediation intake date shall not be considered the first mediation date.
(vii) A party residing outside of Cook County, Illinois, may complete the authorized online parenting education program. If said party is ordered by the court to attend an in class parenting education program, the court may accept evidence of participation in a program similar to Focus on Children authorized by any court of competent jurisdiction in the state or county in which the party resides.
(viii) Within thirty (30) days of successfully completing an authorized parenting education program, the party shall file with the Clerk of the Circuit Court a certificate attesting to the party's successful completion of the program. A party's failure to complete an authorized parenting education program may result in sanctions imposed by the Court.
(ix) No final judgment regarding custody, visitation, or removal shall be entered without the filing of the parties' certificates of completion, unless attendance at an authorized parenting education program is excused by the Court for good cause shown or the Court in its discretion allows the parties additional time to file their certificates.
(x) The costs of authorized parenting education programs shall be established by general order of the Domestic Relations Division and shall be paid by the parties unless waived pursuant to 735 ILCS 5/5-105, 5/5-105.5, or Illinois Supreme Court Rule 298. Prior to registering for an authorized parenting education program, any party receiving a fee waiver shall notify the parenting education program of the waiver.
(xi) Parties registered for Focus on Children who do not complete the program or cancel their registration less than twenty-four (24) hours in advance may be required to re-register and may be required to pay an additional fee. Parties who do not complete the authorized online program within thirty (30) days of registration for the program may be required to re-register and may be required to pay an additional fee.
(xii) Nothing in these rules shall preclude the Court from ordering either party to attend additional authorized parenting education courses.
[Amended, effective October 16, 2012.]
(g) Supervision of Discovery - Discovery shall be conducted pursuant to Illinois Supreme Court Rules, and all motions, petitions and applications concerning discovery shall be brought before the appropriate judge for supervision and enforcement.
(i) The time for the commencement, completion and compliance with discovery shall be governed by Illinois Supreme Court Rules and as the judge may direct.
(ii) After discovery closes, except as provided by Illinois Supreme Court Rules 213(i) and 214, no discovery shall be allowed except as specifically approved by order upon a showing of extraordinary circumstances.
(iii) Every objection to an interrogatory or answer shall include the interrogatory and/or the answer giving rise to the objection.
(iv) Every Illinois Supreme Court Rule 214 Affidavit of Compliance shall, in addition to the requirements of the Illinois Supreme Court Rule, list with specificity the documents produced in accordance with the request.
(h) Status Call - The number and frequency of automatic status calls during a calendar year shall be pursuant to order of the Presiding Judge of the Domestic Relations Division. Notice of the first status for any case shall be sent by the Clerk of the Circuit Court to the attorneys of record by postcard no less than thirty (30) days prior to the commencement of said call and shall also be published in a newspaper of general circulation and posted in the courtroom. All cases shall be called for status report no later than six (6) months after the case is filed. Failure of the petitioner to answer the status call shall result in a dismissal for want of prosecution.
(i) Case Management Conferences - Case management conferences shall be held as prescribed by Illinois Supreme Court Rules 218, 904 and 923.
(j) Pre-trial Settlement Conference
(i) At the request of any party by written motion or by order of the judge, a settlement pre-trial conference may be held to attempt to resolve contested issues.
(ii) The completed Uniform Pre-Trial Memorandum, in the form promulgated by the Presiding Judge of the Domestic Relations Division, shall be delivered to the judge and each attorney of record and unrepresented party no less than seven (7) days prior to the Settlement Pre- Trial Conference. The Pre-Trial Memorandum shall not become part of the common law record in the case unless otherwise agreed to by the parties.
(iii) Failure to comply with this rule shall subject the non-complying party to sanctions, unless good cause is shown for failure to comply.
(iv) Upon assignment to a trial calendar, the trial judge may conduct a pre-trial conference in addition to any previous conference(s). Participation in a pre-trial conference with the trial judge may constitute a waiver of a party’s right to a substitution of judge as permitted by 735 ILCS 5/2-1001(a)(2). The trial judge may require the parties to waive their right to request a substitution of judge in the event the trial judge proceeds to conduct a pre-trial conference.