HB0185 101ST GENERAL ASSEMBLY

LRB101 04712 LNS 49721 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB0185

Introduced , by Rep. La Shawn K. Ford

SYNOPSIS AS INTRODUCED:

750 ILCS 5/102	from Ch. 40, par. 102
750 ILCS 5/602.5
750 ILCS 5/602.7
750 ILCS 5/602.10
750 ILCS 5/603.10

Amends the Illinois Marriage and Dissolution of Marriage Act. To the list of purposes of the Act, adds recognizing that the involvement of each parent for equal time is presumptively in the children's best interests. Deletes language providing that nothing in the Act requires that each parent be allocated decision-making responsibilities. Provides that there is a rebuttable presumption in favor of equal parenting time. Relocates provisions listing factors for the court to consider in determining a child's bests interests for purposes of allocating parenting time. In specified situations, requires the court to issue a written decision stating its specific findings of fact and conclusions of law in support of its ruling.

A BILL FOR

AN ACT concerning civil law.

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

Section 5. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Sections 102, 602.5, 602.7, 602.10, and 603.10 as follows:

(750 ILCS 5/102) (from Ch. 40, par. 102)

Sec. 102. Purposes; Rules of Construction. This Act shall be liberally construed and applied to promote its underlying purposes, which are to:

(1) provide adequate procedures for the solemnization and registration of marriage;

(2) strengthen and preserve the integrity of marriage and safeguard family relationships;

(3) promote the amicable settlement of disputes that have arisen between parties to a marriage;

(4) mitigate the potential harm to spouses and their children caused by the process of an action brought under this Act, and protect children from exposure to conflict and violence;

(5) ensure predictable decision-making for the care of children and for the allocation of parenting time and other parental responsibilities, and avoid prolonged uncertainty by expeditiously resolving issues involving children;

(6) recognize the right of children to a healthy relationship with parents, and the responsibility of parents to ensure such a relationship;

(7) acknowledge that the determination of children's best interests, and the allocation of parenting time and significant decision-making responsibilities, are among the paramount responsibilities of our system of justice, and to that end:

(A) recognize children's right to a strong and healthy relationship with parents, and parents' concomitant right and responsibility to create and maintain such relationships;

(B) recognize that, in the absence of domestic violence or any other factor that the court expressly finds to be relevant, proximity to, and frequent contact with, both parents promotes healthy development of children;

(C) facilitate parental planning and agreement about the children's upbringing and allocation of parenting time and other parental responsibilities;

(D) continue existing parent-child relationships, and secure the maximum involvement and cooperation of parents regarding the physical, mental, moral, and emotional well-being of the children during and after the litigation; and

(E) promote or order parents to participate in programs designed to educate parents to:

(i) minimize or eliminate rancor and the detrimental effect of litigation in any proceeding involving children; and

(ii) facilitate the maximum cooperation of parents in raising their children; and

(F) recognize that, in order to maximize the opportunity for children to maintain and strengthen the children's relationship with each parent, the involvement of both parents for equal time is presumptively in the best interests of the children;

(8) make reasonable provision for support during and after an underlying dissolution of marriage, legal separation, parentage, or parental responsibility allocation action, including provision for timely advances of interim fees and costs to all attorneys, experts, and opinion witnesses including guardians ad litem and children's representatives, to achieve substantial parity in parties' access to funds for pre-judgment litigation costs in an action for dissolution of marriage or legal separation;

(9) eliminate the consideration of marital misconduct in the adjudication of rights and duties incident to dissolution of marriage, legal separation and declaration of invalidity of marriage; and

(10) make provision for the preservation and conservation of marital assets during the litigation.

(Source: P.A. 99-90, eff. 1-1-16.)

(750 ILCS 5/602.5)

Sec. 602.5. Allocation of parental responsibilities: decision-making.

(a) Generally. The court shall allocate decision-making responsibilities according to the child's best interests. Nothing in this Act requires that each parent be allocated decision-making responsibilities.

(b) Allocation of significant decision-making responsibilities. Unless the parents otherwise agree in writing on an allocation of significant decision-making responsibilities, or the issue of the allocation of parental responsibilities has been reserved under Section 401, the court shall make the determination. The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child. Those significant issues shall include, without limitation, the following:

(1) Education, including the choice of schools and tutors.

(2) Health, including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs.

(3) Religion, subject to the following provisions:

(A) The court shall allocate decision-making responsibility for the child's religious upbringing in accordance with any express or implied agreement between the parents.

(B) The court shall consider evidence of the parents' past conduct as to the child's religious upbringing in allocating decision-making responsibilities consistent with demonstrated past conduct in the absence of an express or implied agreement between the parents.

(C) The court shall not allocate any aspect of the child's religious upbringing if it determines that the parents do not or did not have an express or implied agreement for such religious upbringing or that there is insufficient evidence to demonstrate a course of conduct regarding the child's religious upbringing that could serve as a basis for any such order.

(4) Extracurricular activities.

(c) Determination of child's best interests. In determining the child's best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:

(1) the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to decision-making;

(2) the child's adjustment to his or her home, school, and community;

(3) the mental and physical health of all individuals involved;

(4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;

(5) the level of each parent's participation in past significant decision-making with respect to the child;

(6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;

(7) the wishes of the parents;

(8) the child's needs;

(9) the distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and the child's daily schedules, and the ability of the parents to cooperate in the arrangement;

(10) whether a restriction on decision-making is appropriate under Section 603.10;

(11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

(12) the physical violence or threat of physical violence by the child's parent directed against the child;

(13) the occurrence of abuse against the child or other member of the child's household;

(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and

(15) any other factor that the court expressly finds to be relevant.

(d) A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child's health and safety during that parent's parenting time.

(e) In allocating significant decision-making responsibilities, the court shall not consider conduct of a parent that does not affect that parent's relationship to the child.

(Source: P.A. 99-90, eff. 1-1-16.)

(750 ILCS 5/602.7)

Sec. 602.7. Allocation of parental responsibilities: parenting time.

(a) Allocation of parenting time. Best interests. The court shall allocate parenting time according to the child's best interests. Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time. There is a rebuttable presumption that it is in the child's best interests to award equal time to each parent. In determining the child's best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:

(1) the wishes of each parent seeking parenting time;

(2) the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to parenting time;

(3) the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child's birth;

(4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;

(5) the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child's best interests;

(6) the child's adjustment to his or her home, school, and community;

(7) the mental and physical health of all individuals involved;

(8) the child's needs;

(9) the distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and the child's daily schedules, and the ability of the parents to cooperate in the arrangement;

(10) whether a restriction on parenting time is appropriate;

(11) the physical violence or threat of physical violence by the child's parent directed against the child or other member of the child's household;

(12) the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;

(13) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

(14) the occurrence of abuse against the child or other member of the child's household;

(15) whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);

(16) the terms of a parent's military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and

(17) any other factor that the court expressly finds to be relevant.

If the court deviates from the presumption contained in this subsection, the court shall issue a written decision stating its specific findings of fact and conclusions of law in support of the deviation from the presumption.

(b) Restrictions Allocation of parenting time. Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time. It is presumed both parents are fit and the court shall not place any restrictions on parenting time as defined in Section 600 and described in Section 603.10, unless it finds by a preponderance of the evidence that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral, or emotional health. If the court deviates from the presumption contained in this subsection, the court shall issue a written decision stating its specific findings of fact and conclusions of law in support of the deviation from the presumption.

In determining the child's best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:

(1) the wishes of each parent seeking parenting time;

(2) the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to parenting time;

(3) the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child's birth;

(4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;

(5) the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child's best interests;

(6) the child's adjustment to his or her home, school, and community;

(7) the mental and physical health of all individuals involved;

(8) the child's needs;

(9) the distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and the child's daily schedules, and the ability of the parents to cooperate in the arrangement;

(10) whether a restriction on parenting time is appropriate;

(11) the physical violence or threat of physical violence by the child's parent directed against the child or other member of the child's household;

(12) the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;

(13) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

(14) the occurrence of abuse against the child or other member of the child's household;

(15) whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);

(16) the terms of a parent's military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and

(17) any other factor that the court expressly finds to be relevant.

(c) In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent's relationship to the child.

(d) Upon motion, the court may allow a parent who is deployed or who has orders to be deployed as a member of the United States Armed Forces to designate a person known to the child to exercise reasonable substitute visitation on behalf of the deployed parent, if the court determines that substitute visitation is in the best interests of the child. In determining whether substitute visitation is in the best interests of the child, the court shall consider all of the relevant factors listed in subsection (b) of this Section and apply those factors to the person designated as a substitute for the deployed parent for visitation purposes. Visitation orders entered under this subsection are subject to subsections (e) and (f) of Section 602.9 and subsections (c) and (d) of Section 603.10.

(e) If the street address of a parent is not identified pursuant to Section 708 of this Act, the court shall require the parties to identify reasonable alternative arrangements for parenting time by the other parent including, but not limited to, parenting time of the minor child at the residence of another person or at a local public or private facility.

(Source: P.A. 99-90, eff. 1-1-16.)

(750 ILCS 5/602.10)

Sec. 602.10. Parenting plan.

(a) Filing of parenting plan. All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan. The time period for filing a parenting plan may be extended by the court for good cause shown. If no appearance has been filed by the respondent, no parenting plan is required unless ordered by the court.

(b) No parenting plan filed. In the absence of filing of one or more parenting plans, the court must conduct an evidentiary hearing to allocate parental responsibilities.

(c) Mediation. The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist. Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule.

(d) Parents' agreement on parenting plan. The parenting plan must be in writing and signed by both parents. The parents must submit the parenting plan to the court for approval within 120 days after service of a petition for allocation of parental responsibilities or the filing of an appearance, except for good cause shown. Notwithstanding the provisions above, the parents may agree upon and submit a parenting plan at any time after the commencement of a proceeding until prior to the entry of a judgment of dissolution of marriage. The agreement is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence produced by the parties, that the agreement is not in the best interests of the child. If the court does not approve the parenting plan, the court shall make express findings of the reason or reasons for its refusal to approve the plan. The court, on its own motion, may conduct an evidentiary hearing to determine whether the parenting plan is in the child's best interests.

(e) Parents cannot agree on parenting plan. When parents fail to submit an agreed parenting plan, each parent must file and submit a written, signed parenting plan to the court within 120 days after the filing of an appearance, except for good cause shown. The court's determination of parenting time should be based on the child's best interests, and it is presumed that it is in the child's best interests to award equal time to each parent. The filing of the plan may be excused by the court if:

(1) the parties have commenced mediation for the purpose of formulating a parenting plan; or

(2) the parents have agreed in writing to extend the time for filing a proposed plan and the court has approved such an extension; or

(3) the court orders otherwise for good cause shown.

(f) Parenting plan contents. At a minimum, a parenting plan must set forth the following:

(1) an allocation of significant decision-making responsibilities;

(2) provisions for the child's living arrangements and for each parent's parenting time, including either:

(A) a schedule that designates in which parent's home the minor child will reside on given days; or

(B) a formula or method for determining such a schedule in sufficient detail to be enforced in a subsequent proceeding;

(3) a mediation provision addressing any proposed reallocation of parenting time or regarding the terms of allocation of parental responsibilities, except that this provision is not required if one parent is allocated all significant decision-making responsibilities;

(4) each parent's right of access to medical, dental, and psychological records (subject to the Mental Health and Developmental Disabilities Confidentiality Act), child care records, and school and extracurricular records, reports, and schedules, unless expressly denied by a court order or denied under Section 602.11;

(5) a designation of the parent who will be denominated as the parent with the majority of parenting time for purposes of Section 606.10;

(6) the child's residential address for school enrollment purposes only;

(7) each parent's residence address and phone number, and each parent's place of employment and employment address and phone number;

(8) a requirement that a parent changing his or her residence provide at least 60 days prior written notice of the change to any other parent under the parenting plan or allocation judgment, unless such notice is impracticable or unless otherwise ordered by the court. If such notice is impracticable, written notice shall be given at the earliest date practicable. At a minimum, the notice shall set forth the following:

(A) the intended date of the change of residence; and

(B) the address of the new residence;

(9) provisions requiring each parent to notify the other of emergencies, health care, travel plans, or other significant child-related issues;

(10) transportation arrangements between the parents;

(11) provisions for communications, including electronic communications, with the child during the other parent's parenting time;

(12) provisions for resolving issues arising from a parent's future relocation, if applicable;

(13) provisions for future modifications of the parenting plan, if specified events occur;

(14) provisions for the exercise of the right of first refusal, if so desired, that are consistent with the best interests of the minor child; provisions in the plan for the exercise of the right of first refusal must include:

(i) the length and kind of child-care requirements invoking the right of first refusal;

(ii) notification to the other parent and for his or her response;

(iii) transportation requirements; and

(iv) any other provision related to the exercise of the right of first refusal necessary to protect and promote the best interests of the minor child; and

(15) any other provision that addresses the child's best interests or that will otherwise facilitate cooperation between the parents.

The personal information under items (6), (7), and (8) of this subsection is not required if there is evidence of or the parenting plan states that there is a history of domestic violence or abuse, or it is shown that the release of the information is not in the child's or parent's best interests.

(g) The court shall conduct a trial or hearing to determine a plan which maximizes the child's relationship and access to both parents and shall ensure that the access and the overall plan are in the best interests of the child. The court shall take the parenting plans into consideration when determining parenting time and responsibilities at trial or hearing.

(h) The court may consider, consistent with the best interests of the child as defined in Section 602.7 of this Act, whether to award to one or both of the parties the right of first refusal in accordance with Section 602.3 of this Act.

(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17.)

(750 ILCS 5/603.10)

Sec. 603.10. Restriction of parental responsibilities.

(a) After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child's mental, moral, or physical health or that significantly impaired the child's emotional development, the court shall enter orders as necessary to protect the child. The court shall issue a written decision stating its specific findings of fact and conclusions of law in support of its ruling. Such orders may include, but are not limited to, orders for one or more of the following:

(1) a reduction, elimination, or other adjustment of the parent's decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;

(2) supervision, including ordering the Department of Children and Family Services to exercise continuing supervision under Section 5 of the Children and Family Services Act;

(3) requiring the exchange of the child between the parents through an intermediary or in a protected setting;

(4) restraining a parent's communication with or proximity to the other parent or the child;

(5) requiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time;

(6) restricting the presence of specific persons while a parent is exercising parenting time with the child;

(7) requiring a parent to post a bond to secure the return of the child following the parent's exercise of parenting time or to secure other performance required by the court;

(8) requiring a parent to complete a treatment program for perpetrators of abuse, for drug or alcohol abuse, or for other behavior that is the basis for restricting parental responsibilities under this Section; and

(9) any other constraints or conditions that the court deems necessary to provide for the child's safety or welfare.

(b) The court may modify an order restricting parental responsibilities if, after a hearing, the court finds by a preponderance of the evidence that a modification is in the child's best interests based on (i) a change of circumstances that occurred after the entry of an order restricting parental responsibilities; or (ii) conduct of which the court was previously unaware that seriously endangers the child. In determining whether to modify an order under this subsection, the court must consider factors that include, but need not be limited to, the following:

(1) abuse, neglect, or abandonment of the child;

(2) abusing or allowing abuse of another person that had an impact upon the child;

(3) use of drugs, alcohol, or any other substance in a way that interferes with the parent's ability to perform caretaking functions with respect to the child; and

(4) persistent continuing interference with the other parent's access to the child, except for actions taken with a reasonable, good-faith belief that they are necessary to protect the child's safety pending adjudication of the facts underlying that belief, provided that the interfering parent initiates a proceeding to determine those facts as soon as practicable.

(c) An order granting parenting time to a parent or visitation to another person may be revoked by the court if that parent or other person is found to have knowingly used his or her parenting time or visitation to facilitate contact between the child and a parent who has been barred from contact with the child or to have knowingly used his or her parenting time or visitation to facilitate contact with the child that violates any restrictions imposed on a parent's parenting time by a court of competent jurisdiction. Nothing in this subsection limits a court's authority to enforce its orders in any other manner authorized by law.

(d) If parenting time of a parent is restricted, an order granting visitation to a non-parent with a child or an order granting parenting time to the other parent shall contain the following language:

"If a person granted parenting time or visitation under this order uses that time to facilitate contact between the child and a parent whose parenting time is restricted, or if such a person violates any restrictions placed on parenting time or visitation by the court, the parenting time or visitation granted under this order shall be revoked until further order of court."

(e) A parent who, after a hearing, is determined by the court to have been convicted of any offense involving an illegal sex act perpetrated upon a victim less than 18 years of age, including but not limited to an offense under Article 11 of the Criminal Code of 2012, is not entitled to parenting time while incarcerated or while on parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for a felony offense, until the parent complies with such terms and conditions as the court determines are in the child's best interests, taking into account the exact nature of the offense and what, if any, treatment in which the parent successfully participated.

(f) A parent may not, while the child is present, visit any person granted visitation or parenting time who has been convicted of first degree murder, unless the court finds, after considering all relevant factors, including those set forth in subsection (b) of Section 602.7, that it would be in the child's best interests to allow the child to be present during such a visit.

(Source: P.A. 99-90, eff. 1-1-16.)