ESTABLISHING CHILD SUPPORT

A. OVERVIEW

1. Parental Obligation

Under Illinois law, parents have an absolute legal obligation to contribute to the economic support of their children regardless of whether they are married, whether the children live with them, and whether the relationship between parent and child is a happy one. This obligation becomes an issue in dissolution of marriage, custody, and paternity cases. It typically results in the court ordering one or both parents to pay money either to the other parent or to some third-party provider (of services for the children) for the children’s expenses and also to provide health or medical insurance for the benefit of the children. The duration of these obligations is set by statue, and courts typically require that they be secured by life insurance (or other security) sufficient to cover the outstanding obligations in the event that the paying parent dies before the obligation is terminated or fulfilled.

The money that one parent pays another for the children’s expenses - i.e., the child support payments-is intended to cover both “fixed” or necessary expenses such as housing, food, clothing, and medical costs and any miscellaneous expenses such as education, recreation, and vacation. In In re Marriage of Bussey, 108 Ill.2d 286, 483 N.eE.2d 1229, 1234, 91 Ill.Dec. 594 (1985), for example, the Supreme Court of Illinois affirmed the holding that a child’s entitlement to support is not limited to support for basic “shown needs” because such a limitation would “read the ‘standard of living the child would have enjoyed had the marriage not been dissolve’ . . . completely out of the statute.” Bussey increased the support payments to include such special items as the cost of counseling, testing, and other services related to the emotional and mental health of the children, as well as half of the tuition for private schooling. Id.

Illinois law is clear: Both parents share the financial responsibility for the support of their children, though not necessarily equally, whether or not any marriage takes place (see §§3 and 14 of the Illinois Parentage Act of 1984 (Parentage Act), 750 ILCS 45/1, et seq.), during the marriage (IMDMA §§501, 505), and after any judgment for dissolution of marriage is entered (id.).

An evolving issue concerns the rights of children born as a result of assisted reproduction technology procedures. Section 3 of the Illinois Parentage Act, 750 ILCS 40/1, et seq., requires the written consent of a Husband to artificial insemination before a parent-child relationship could be established. However, In re Parentage of M.J., 203 Ill.2d 526, 787 N.E.2d 144, 272 Ill.Dec. 329 (2003), recognized that the Illinois Parentage Act currently fails to address the full spectrum of legal problems facing children born as a result of artificial insemination and other modern methods of assisted reproduction and urged the legislature to enact laws responsive to these problems. Legislators are working even now to fulfill these mandates.

In this significant opinion, the court reiterated the state’s public policy recognizing the rights of every child to the physical, mental, emotional, and monetary support of his or her parents. The court stated that claims of parentage and support of children produced as a result of assisted reproductive technologies are unique and must be decided based on the particular facts of each case.

Under the particular facts in the case before it, including a long-term intimate relationship and a paramour who allegedly knowingly consented to and encouraged the mother’s efforts to become pregnant through artificial insemination, the court found that while there was no written consent, the Illinois Parentage Act did not preclude support claims based on common law theories of oral contract or promissory estoppel and reversed and remanded on these claims.

The dual nature of the support obligation is evident from all the case law. For example, the appellate court has found in more than one instance that a trial court abused its discretion in refusing to require the non-custodial parent to contribute an equitable amount to support the minor child. In re Marriage of Butler, 106 Ill.App.3d 831, 436 N.E.2d 561, 62 Ill.Dec. 535 (1st Dist. 1982) (Non-custodial mother, who had voluntarily turned over children to father, ordered to pay child support based on application of IMDMA §505); Hursh v. Hursh, 26 Ill.App.3d 947, 326 N.E.2d 95 (1st Dist. 1975) (father does not have greater burden than other to support children, and if he gets custody, he is entitled to seek support from mother); Matthews v. Matthews, 42 Ill.App.3d 1049, 356 N.E.2d 1083, 1 Ill.Dec. 801 (1st Dist. 1976) (ordering custodial father to pay child support to non-custodial mother during her long summer vacation with children, when coupled with other financial facts in case, including mother’s superior financial position, was abuse of discretion).

Similary, in In re Marriage of McMahon, 82 Ill.App.3d 1126, 403 N.E.2d 730, 38 Ill.Dec. 499 (4th Dist. 1980), the appellate court affirmed the trial court’s order requiring both parents to contribute to the child’s support (the non-custodial father, two thirds; the custodial mother, one third). The appellate court further held that the particular distribution of support between both parents was not an abuse of discretion because the trial court considered the after-tax incomes of both parents. The court also considered that the father had the greater income and continued to give substantial gifts to the child, factors that adequately supported the decision to divide the minor’s support between both parents even though the mother was the custodial parent.

Another case in which the court agreed in principle with the theory of joint obligation (although it actually required no support from the non-custodial parent) is In re Marriage of Grauer, 153 Ill.App.3d 125, 505 N.E.2d 1131, 106 Ill.Dec. 340 (1st Dist. 1987), in which the trial court had ruled that the custodial father had far greater ability than the non-custodial mother to support both himself and the parties’ minor children and had therefore reserved the issue of any support from the non-custodial mother. The appellate court, affirming the reservation of support from the non-custodial parent, concluded that the trial court’s basis for doing so was proper and was properly recorded. The trial court in that case had specifically referred to such factors as the parties’ respective earning s and their disparate financial positions, concluding from that evidence that “[P]etitioner [the non-custodial mother], at that point in time, was incapable of shouldering support payments, while Respondent [the custodial father] possessed adequate funds to cover for the minors’ care.” 505 N.E.2d at 1133. See also In re Marriage of Rogliano, 198 Ill.App.3d 404, 555 N.E.2d 1114, 144 Ill.Dec. 595 (5th Dist. 1990), which stated that statutory guidelines should not be blindly applied in every case and that a joint obligation to support children does not mean that each parent’s burden is equal. That principle was confirmed in In re Marriage of Maczko, 263 Ill.App.3d 991, 636 N.E.2d 559, 201 Ill.Dec. 127 (1st Dist. 1992), in which it was recognized that the parent with disproportionately greater income should bear a greater percentage of the cost of support, especially if that party is the non-custodial parent. See also In re Marriage of Korte, 193 Ill.App.3d 243, 549 N.E.2d 906, 140 Ill.Dec. 255 (4th Dist. 1990) (mother not required to share in covering shortage in daughter’s educational funds because mother contributed clothes for daughter).

Finally, the joint obligation applies even if the parent from whom support is sought was a minor at the time the child was conceived. In re Parentage of J.S., 193 Ill.App.3d 563, 550 N.E.2d 257, 140 Ill.Dec. 621 (3d Dist. 1990), ordered the father, who had since married a different woman, to contribute to the support of his illegitimate child. The father had challenged the award on the ground that, being a 15-year-old child himself at the time that the child whose support was at issue was conceived, he was entitled to the benefits of Illinois public policy protecting minor children from the improvident consequences of their acts, including child support. The court, in ordering him to pay support to the mother of his child, not only rejected his public policy argument but juxtaposed it with the overriding public policy that children are entitled to support. 550 N.E.2d at 258.

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