UPDATE: Illinois Supreme Court Reverses Ruling That 604(b) Evaluator Fees Are “Court Costs” Taxable to Party Voluntarily Dismissing a Petition

In re Marriage of Tiballi, 2014 IL 116319 (March 20, 2014)

The Illinois Supreme Court reversed the ruling of the appellate court that ordered the father seeking a modification of residential custody to pay for the 604(b) child custody evaluator’s fees after his petition was dismissed, either voluntarily or for want of prosecution. The Court noted that “Illinois does provide by statute that in all cases where any action is voluntarily dismissed by the plaintiff or is dismissed for want of prosecution, the defendant is entitled to recover costs. 735 ILCS 5/5-116 (West 2010).” The Court held that the fees of “a section 604(b) evaluator do not qualify a ‘court costs’ under section 2-1009 and 5-116 of the Code.” The Court continued on to state “[t]he fees of a 604(b) evaluator clearly do not fall under the definition of ‘costs’ adopted by this court, which again was ‘charges or fees taxed by the court, such as filing fees, courthouse fees, and reporter fees,’ as well as subpoena fees and statutory witness fees.”

604(b) evaluator fees are to be allocated between the parties pursuant to 750 ILCS 5/604(b).

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ORIGINAL POST: Illinois Appellate Court: 604(b) Evaluator Fees Are “Court Costs” Taxable to Party Voluntarily Dismissing a Petition

In re Marriage of Tiballi, 2013 IL App (2d) 120523 (June 7, 2013)

The parties in the case were divorced by previous order, with the parties being awarded joint custody but the mother awarded residential custody of the minor child.  Thus the child lived with mother and the father received visitation time.  The father brought a petition to modify residential custody.  The trial court appointed a 604(b) child custody evaluator (psychiatrist) pursuant to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/604(b)) to advise it with regard to the custody dispute.  The trial court ordered each party to pay half of the evaluator’s fees.  After the 604(b) evaluator submitted his report advising the trial court that residential custody should remain with the mother, the father voluntarily dismissed the petition and did not pursue it further.  The trial court then ordered the father to bear the full cost of the 604(b) evaluator.

On appeal, the Second District Appellate Court held that the cost of a 604(b) evaluator was a “court cost” as opposed to a “litigation cost” which could be taxed to a party who voluntarily dismisses a petition to modify custody pursuant to 735 ILCS 5/2-1009(a).