Public Act 097-0160
 
SB1038 EnrolledLRB097 04761 RLC 44800 b



    AN ACT concerning criminal law.

 
    Be it enacted by the People of the State of Illinois, 
represented in the General Assembly: 



 
    Section 5. The Criminal Code of 1961 is amended  by changing 
Section 10-5 as follows:
 



    (720 ILCS 5/10-5)  (from Ch. 38, par. 10-5)



    Sec. 10-5. Child abduction. 

    (a) For purposes of this Section, the following terms have

the following meanings:


        (1) "Child" means a person who, at the time the alleged 
    violation occurred, was under the age of 18 or
severely or 
    profoundly mentally retarded.


        (2) "Detains" means taking or retaining physical 
    custody of a child,
whether or not the child resists or 
    objects.

        (2.1) "Express consent" means oral or written 
    permission that is positive, direct, and unequivocal, 
    requiring no inference or implication to supply its 
    meaning. 
        (2.2)  "Luring" means any knowing act to solicit, 
    entice, tempt, or attempt to attract the minor. 

        (3) "Lawful custodian" means a person or persons 
    granted legal custody
of a child or entitled to physical 
    possession of a child pursuant to a
court order.  It is 
    presumed that, when the parties have never been
married to 
    each other, the mother has legal custody of the child 
    unless a
valid court order states otherwise.  If an 
    adjudication of paternity has
been completed and the father 
    has been assigned support obligations or
visitation 
    rights, such a paternity order should, for the purposes of 
    this
Section, be considered a valid court order granting 
    custody to the mother.

        (4) "Putative father" means a man who has a reasonable 
    belief that he is the father of a child born of a woman who 
    is not his wife. 
        (5)  "Unlawful purpose" means any misdemeanor or felony 
    violation of State law or a similar federal or sister state 
    law or local ordinance. 
    (b) A person commits the offense of child abduction when he 
or she does any one of the following:


        (1) Intentionally violates any terms of a valid court 
    order granting
sole or joint custody, care, or possession 
    to another by concealing or
detaining the child or removing 
    the child from the jurisdiction of the
court.


        (2) Intentionally violates a court order prohibiting 
    the person from
concealing or detaining the child or 
    removing the child
from the jurisdiction of the court.


        (3) Intentionally conceals, detains, or removes the 
    child without the
consent of the mother or lawful custodian 
    of the child if the person is a
putative father and either: 
    (A) the paternity of the child has not been
legally 
    established or (B) the paternity of the child has been 
    legally
established but no orders relating to custody have 
    been entered. Notwithstanding the presumption created by 
    paragraph (3) of subsection (a),
however, a mother commits 
    child abduction when she intentionally conceals or removes

    a child, whom she has abandoned or relinquished custody of, 
    from an
unadjudicated father who has provided sole ongoing 
    care and custody of the
child in her absence.


        (4) Intentionally conceals or removes the child from a 
    parent after
filing a petition or being served with process 
    in an action affecting
marriage or paternity but prior to 
    the issuance of a temporary or final
order determining 
    custody.


        (5) At the expiration of visitation rights outside the 
    State,
intentionally fails or refuses to return or impedes 
    the return of the child
to the lawful custodian in 
    Illinois.


        (6) Being a parent of the child, and if the parents of 
    that child
are or have been married and there has been no 
    court order of custody,
knowingly conceals the child for 15 
    days, and fails to make reasonable attempts
within the 
    15-day period to notify the other parent as to the specific

    whereabouts of the child, including a means by which to 
    contact the child,
or to arrange reasonable visitation or 
    contact with the child. It is not a
violation of this 
    Section for a person fleeing domestic violence to take
the 
    child with him or her to housing provided by a domestic 
    violence program.


        (7) Being a parent of the child, and if the parents of 
    the child
are or have been married and there has been no 
    court order of
custody, knowingly conceals, detains, or 
    removes the child with physical force or
threat of physical 
    force.


        (8) Knowingly conceals, detains, or removes the child 
    for payment or promise of
payment at the instruction of a 
    person who has no legal right to custody.


        (9) Knowingly retains in this State for 30 days a child 
    removed from another state
without the consent of the 
    lawful custodian or in violation of a valid
court order of 
    custody.


        (10) Intentionally lures or attempts to lure a child 
    under the age of 16
into a motor vehicle, building, 
    housetrailer, or dwelling place without the
consent of the 
    child's parent or lawful custodian for other than a lawful 
    purpose. For the purposes of this item (10), the trier of 
    fact may infer that luring
or attempted luring of a child 
    under the age of 16 into a motor vehicle,
building, 
    housetrailer, or dwelling place without the express 
    consent of the child's parent
or lawful custodian or with 
    the intent to avoid the express consent of the child's 
    parent or lawful custodian was for is prima facie evidence 
    of other
than a lawful purpose.

        (11) With the intent to obstruct or prevent efforts to 
    locate the child victim of a child abduction, knowingly 
    destroys, alters, conceals, or disguises physical evidence 
    or furnishes false information. 
    (c) It is an affirmative defense to subsections (b)(1) 
through (b)(10) of this Section that:


        (1) the person had custody of the child pursuant to a 
    court order
granting legal custody or visitation rights 
    that existed at the time of
the alleged violation;


        (2) the person had physical custody of the child 
    pursuant to a court
order granting legal custody or 
    visitation rights and failed to return the
child as a 
    result of circumstances beyond his or her control, and the

    person notified and disclosed to the other parent or legal 
    custodian the
specific whereabouts of the child and a means 
    by which the child could be
contacted or made a reasonable 
    attempt to notify the other parent or lawful
custodian of 
    the child of those circumstances and made the disclosure

    within 24 hours after the visitation period had expired and 
    returned the
child as soon as possible;


        (3) the person was fleeing an incidence or pattern of 
    domestic violence; or


        (4) the person lured or attempted to lure a child under 
    the age of 16
into a motor vehicle, building, housetrailer, 
    or dwelling place for a
lawful purpose in prosecutions 
    under paragraph (10) of subsection (b).

    (d) A person convicted of child abduction under this 
Section is guilty of
a Class 4 felony.  A person convicted of 
child abduction under subsection (b)(10) shall undergo a sex 
offender evaluation prior to a sentence being imposed. A person 
convicted of a second or subsequent violation of
paragraph (10) 
of subsection (b) of this Section is guilty of a Class 3

felony.  A person convicted of child abduction under subsection 
(b)(10) when the person has a prior conviction of a sex offense 
as defined in the Sex Offender Registration Act or any 
substantially similar federal, Uniform Code of Military 
Justice, sister state, or foreign government offense is guilty 
of a Class 2 felony. It is a factor in aggravation under 
subsections (b)(1) through (b)(10) of this Section for which a 
court
may impose a more severe sentence under Section 5-8-1 
(730 ILCS 5/5-8-1) or Article 4.5 of Chapter V of the Unified 
Code
of Corrections if, upon sentencing, the court finds 
evidence of any of the
following aggravating factors:


        (1) that the defendant abused or neglected the child 
    following the
concealment, detention, or removal of the 
    child;


        (2) that the defendant inflicted or threatened to 
    inflict physical harm
on a parent or lawful custodian of 
    the child or on the child with intent to
cause that parent 
    or lawful custodian to discontinue criminal prosecution
of 
    the defendant under this Section;


        (3) that the defendant demanded payment in exchange for 
    return of the
child or demanded that he or she be relieved 
    of the financial or legal
obligation to support the child 
    in exchange for return of the child;


        (4) that the defendant has previously been convicted of 
    child abduction;



        (5) that the defendant committed the abduction while 
    armed with a deadly
weapon or the taking of the child 
    resulted in serious bodily injury to
another; or


        (6) that the defendant committed the abduction while in 
    a school,
regardless of the time of day or time of year; in 
    a playground; on any
conveyance owned,
leased, or 
    contracted by a school to transport students to or from 
    school or a
school related activity; on the real property 
    of a school;
or on a
public way within 1,000 feet of the 
    real property comprising any school or
playground.  For 
    purposes of this paragraph (6), "playground" means a piece

    of land owned or controlled by a unit of local government 
    that is designated by
the unit of local government for use 
    solely or primarily for children's
recreation;
and 
    "school" means a public or private
elementary or secondary 
    school, community college, college, or university.

    (e) The court may order the child to be returned to the 
parent or lawful
custodian from whom the child was concealed, 
detained, or removed.  In
addition to any sentence imposed, the 
court may assess any reasonable
expense incurred in searching 
for or returning the child against any
person convicted of 
violating this Section.

    (f) Nothing contained in this Section shall be construed to 
limit the
court's contempt power.

    (g) Every law enforcement officer investigating an alleged 
incident of
child abduction shall make a written police report 
of any bona fide
allegation and the disposition of that 
investigation.  Every police report
completed pursuant to this 
Section shall be compiled and recorded within
the meaning of 
Section 5.1 of the Criminal Identification Act.

    (h) Whenever a law enforcement officer has reasons to 
believe a child
abduction has occurred, she or he shall provide 
the lawful custodian a summary of
her or his rights under this 
Code, including the procedures and relief
available to her or 
him.

    (i) If during the course of an investigation under this

Section the child is found in the physical custody of the 
defendant or
another, the law enforcement officer shall return 
the child to the parent
or lawful custodian from whom the child 
was concealed, detained, or removed,
unless there is good cause 
for the law enforcement officer or the
Department of Children 
and Family Services to retain temporary protective
custody of 
the child pursuant to the Abused and Neglected Child Reporting

Act.

(Source: P.A. 95-1052, eff. 7-1-09; 96-710, eff. 1-1-10; 
96-1000, eff. 7-2-10.)