HB5310 102ND GENERAL ASSEMBLY

LRB102 25490 LNS 34778 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB5310

Introduced 1/31/2022, by Rep. Joyce Mason

SYNOPSIS AS INTRODUCED:

725 ILCS 5/112A-32 new
750 ILCS 5/506	from Ch. 40, par. 506
750 ILCS 5/602.7
750 ILCS 5/603.10
750 ILCS 5/603.12 new
750 ILCS 5/715 new
750 ILCS 60/228 new

Provides that the Act may be referred to as Kayden's Law. Amends the Illinois Marriage and Dissolution of Marriage Act. Requires a court, when appointing a guardian ad litem to represent a child, shall make efforts to appoint a guardian ad litem who received evidence-based education and training relating to child abuse. Includes additional factors for the court to consider when determining the allocation of parenting time. Provides that if the court finds that there is a history of abuse of the child or a household member by a party or a present risk of harm to the child or an abused party and awards any form of parenting time to a party who committed the abuse or who has a household member who committed the abuse, the court shall include in the parenting plan safety conditions, restrictions, or safeguards as reasonably necessary to protect the child or the abused party. Creates various rebuttable presumptions related to a finding of child abuse. Allows the Administrative Office of the Illinois Courts to develop and implement an ongoing education and training program for judges and relevant court personnel regarding child abuse. Makes other changes. Amends the Code of Criminal Procedure of 1963 and the Domestic Violence Act of 1986. Restricts a court from sealing a court file related to a domestic violence order of protection.

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 1. References to Act. This Act may be referred to as Kayden's Law.

Section 5. The Code of Criminal Procedure of 1963 is amended by adding Section 112A-32 as follows:

(725 ILCS 5/112A-32 new)

Sec. 112A-32. Sealing of court file prohibited. No court shall seal a court file related to a domestic violence order of protection granted under this Article.

Section 10. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Sections 506, 602.7, and 603.10 and by adding Sections 603.12 and 715 as follows:

(750 ILCS 5/506) (from Ch. 40, par. 506)

Sec. 506. Representation of child.

(a) Duties. In any proceedings involving the support, custody, visitation, allocation of parental responsibilities, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates:

(1) Attorney. The attorney shall provide independent legal counsel for the child and shall owe the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.

(2) Guardian ad litem. The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem's report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.

The court appointing a guardian ad litem under this paragraph shall make reasonable efforts to appoint a guardian ad litem who has received evidence-based education and training relating to child abuse, including child sexual abuse, domestic abuse education, and the effect of child sexual abuse and domestic abuse on children.

(3) Child representative. The child representative shall advocate what the child representative finds to be in the best interests of the child after reviewing the facts and circumstances of the case. The child representative shall meet with the child and the parties, investigate the facts of the case, and encourage settlement and the use of alternative forms of dispute resolution. The child representative shall have the same authority and obligation to participate in the litigation as does an attorney for a party and shall possess all the powers of investigation as does a guardian ad litem. The child representative shall consider, but not be bound by, the expressed wishes of the child. A child representative shall have received training in child advocacy or shall possess such experience as determined to be equivalent to such training by the chief judge of the circuit where the child representative has been appointed. The child representative shall not disclose confidential communications made by the child, except as required by law or by the Rules of Professional Conduct. The child representative shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments. The child representative shall disclose the position as to what the child representative intends to advocate in a pre-trial memorandum that shall be served upon all counsel of record prior to the trial. The position disclosed in the pre-trial memorandum shall not be considered evidence. The court and the parties may consider the position of the child representative for purposes of a settlement conference.

(a-3) Additional appointments. During the proceedings the court may appoint an additional attorney to serve in the capacity described in subdivision (a)(1) or an additional attorney to serve in another of the capacities described in subdivision (a)(2) or (a)(3) on the court's own motion or that of a party only for good cause shown and when the reasons for the additional appointment are set forth in specific findings.

(a-5) Appointment considerations. In deciding whether to make an appointment of an attorney for the minor child, a guardian ad litem, or a child representative, the court shall consider the nature and adequacy of the evidence to be presented by the parties and the availability of other methods of obtaining information, including social service organizations and evaluations by mental health professions, as well as resources for payment.

In no event is this Section intended to or designed to abrogate the decision making power of the trier of fact. Any appointment made under this Section is not intended to nor should it serve to place any appointed individual in the role of a surrogate judge.

(b) Fees and costs. The court shall enter an order as appropriate for costs, fees, and disbursements, including a retainer, when the attorney, guardian ad litem, or child's representative is appointed. Any person appointed under this Section shall file with the court within 90 days of his or her appointment, and every subsequent 90-day period thereafter during the course of his or her representation, a detailed invoice for services rendered with a copy being sent to each party. The court shall review the invoice submitted and approve the fees, if they are reasonable and necessary. Any order approving the fees shall require payment by either or both parents, by any other party or source, or from the marital estate or the child's separate estate. The court may not order payment by the Department of Healthcare and Family Services in cases in which the Department is providing child support enforcement services under Article X of the Illinois Public Aid Code. Unless otherwise ordered by the court at the time fees and costs are approved, all fees and costs payable to an attorney, guardian ad litem, or child representative under this Section are by implication deemed to be in the nature of support of the child and are within the exceptions to discharge in bankruptcy under 11 U.S.C.A. 523. The provisions of Sections 501 and 508 of this Act shall apply to fees and costs for attorneys appointed under this Section.

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

(750 ILCS 5/602.7)

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

(a) Best interests. The court shall allocate parenting time according to the child's best interests.

(b) 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 or 603.12, 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.

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. If the court finds that a child who expresses fear of a parent is based on the parent's actual and specific conduct that is contrary to the child's best interests, the finding shall be considered;

(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;

(8.1) which parent is more likely to ensure the health and safety of the child, as defined in Section 603.12;

(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;

(13.1) the attempts of a parent to turn the child against the other parent, except in the case of abuse, where reasonable safety measures are necessary to protect the health and safety of the child, as defined in Section 603.12, from harm. A parent's reasonable concerns for a child's health and welfare and the parent's reasonable efforts to protect the child shall not be considered attempts to turn the child against the other parent. A child's deficient or negative relationship with a parent shall not be presumed to be caused by the other parent;

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

(14.1) violent or assaultive behavior committed by a parent, including a past or current protection order under Article 112A of the Code of Criminal Procedure of 1963 or order of protection under the Domestic Violence Act of 1986 where there has been a finding of abuse;

(14.2) the existence of a protection order under Article 112A of the Code of Criminal Procedure of 1963 or order of protection under the Domestic Violence Act of 1986 entered on consent of the parents, with no admission or finding of abuse, if, upon review of the facts presented at the parenting time hearing, the court finds that abuse occurred;

(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);

(15.1) whether one of the parents has been convicted of or has pled guilty or no contest to any of the following offenses or an offense in another jurisdiction substantially equivalent to any of the following offenses: Section 3.02 (aggravated cruelty of an animal), 3.03 (animal torture), or 3.03-1 (depiction of animal cruelty) of the Humane Care for Animals Act; Section 11-501 (driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof) of the Illinois Vehicle Code; Section 9-1 (first degree murder), 9-1.2 (intentional homicide of an unborn child), 9-2 (second degree murder), 9-2.1 (voluntary manslaughter of an unborn child), 9-3 (involuntary manslaughter and reckless homicide), 9-3.2 (involuntary manslaughter and reckless homicide of an unborn child), 9-3.3 (drug-induced homicide), 9-3.5 (concealment of death), 10-1 (kidnapping), 10-2 (aggravated kidnaping), 10-3 (unlawful restraint), 10-3.1 (aggravated unlawful restraint), 10-4 (forcible detention), 10-5 (child abduction), 10-5.1 (luring of a minor), 10-5.5 (unlawful visitation or parenting time interference), 10-7 (aiding or abetting child abduction), 10-9 (trafficking in persons, involuntary servitude, and related offenses), 10-10 (failure to report the death or disappearance of a child under 13 years of age), 11-1.20 (criminal sexual assault), 11-1.30 (aggravated criminal sexual assault), 11-1.40 (predatory criminal sexual assault of a child), 11-1.50 (criminal sexual abuse), 11-1.60 (aggravated criminal sexual abuse), 11-6 (indecent solicitation of a child), 11-6.6 (solicitation to meet a child), 11-9.1 (sexual exploitation of a child), 11-9.1A (permitting sexual abuse of a child), 11-9.1B (failure to report sexual abuse of a child), 11-9.3 (presence within school zone by child sex offenders), 11-9.4-1 (sexual predator and child sex offender presence or loitering in or near public parks), 11-11 (sexual relations within families), 11-14 (prostitution), 11-14.1 (solicitation of a sexual act), 11-14.3 (promoting prostitution), 11-14.4 (promoting juvenile prostitution), 11-18 (patronizing a prostitute), 11-18.1 (patronizing a minor engaged in prostitution), 11-20 (obscenity), 11-20.1 (child pornography), 11-21 (distribution of harmful material), 11-24 (child photography by sex offender), 11-25 (grooming), 11-26 (traveling to meet a child), 11-30 (public indecency), 12-1 (assault), 12-2 (aggravated assault), 12-3.4 (violation of an order of protection), 12-5 (reckless conduct), 12-7.3 (stalking), 12-7.4 (aggravated stalking), 12-7.5 (cyberstalking), 12-35 (sexual conduct or sexual contact with an animal), 12-21.6 (endangering the life or health of a child), 12C-10 (child abandonment), 20-1 (arson), 20-1.1 (aggravated arson), 29D-20 (making a terrorist threat), or 48-1 (dog fighting) of the Criminal Code of 2012; or Section 401 (manufacture or delivery, or possession with intent to manufacture or deliver, a controlled substance, a counterfeit substance, or controlled substance analog) of the Illinois Controlled Substances Act;

(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.

(b-1) A factor under subsection (b) shall not be adversely weighed against a party if the circumstances related to the factor were in response to abuse or necessary to protect the child or the abused party from harm and the party alleging abuse does not pose a risk to the health and safety of the child, as defined in Section 603,12, at the time of the parenting time hearing. A temporary housing instability as a result of abuse shall not be considered against the party alleging the abuse.

As used in this subsection, "temporary housing instability" means a period not to exceed 6 months from the date of the last incident of abuse as determined by a court.

(b-2) No single factor under subsection (b) shall by itself be determinative in the awarding of parenting time. The court shall examine the totality of the circumstances, giving weighted consideration to the factors that affect the health and safety of the child, as defined in Section 603.12, when issuing a parenting plan that is in the best interests of the child.

(b-3) A criminal conviction specified under paragraph (15.1) of subsection (b) shall not by itself be determinative in the awarding of parenting time. The court shall examine the totality of the circumstances when issuing a parenting plan that is in the best interests of the child.

(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 5/603.10)

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. 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;

(2.1) supervision under Section 603.12;

(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.)

(750 ILCS 5/603.12 new)

Sec. 603.12. Safety conditions.

(a) After considering the factors under subsection (b) of Section 602.7, if the court finds that there is a history of abuse of the child or a household member by a party or a present risk of harm to the child or an abused party and awards any form of parenting time to a party who committed the abuse or who has a household member who committed the abuse, the court shall include in the parenting plan safety conditions, restrictions, or safeguards as reasonably necessary to protect the child or the abused party.

The court shall include in the parenting plan the reason for imposing the safety conditions, restrictions, or safeguards and an explanation as to why the safety conditions, restrictions, or safeguards are in the best interests of the child or the abused party. If supervised contact is ordered, there shall be a review of the risk of harm and need for continued supervision on at least an annual basis. The safety conditions, restrictions, or safeguards may include:

(1) nonprofessional supervised parenting time;

(2) professional supervised parenting time;

(3) limitations on the time of day that parenting time is permitted or the number of hours of parenting time and the maximum number of hours of parenting time permitted per day or per week;

(4) the appointment of a qualified professional specializing in programming relating to the history of abuse or risk of harm to provider intervention or harm prevention programming. The court may order an evaluation by the appointed qualified professional to determine whether additional programming is necessary;

(5) limitations on parenting time; or

(6) any other safety conditions, restrictions, or safeguards to ensure the health and safety of the child or to protect a household member.

(b) If the court finds by a preponderance of the evidence that a party has abused the child or household member, there shall be a rebuttable presumption that the court shall only allow nonprofessional supervised parenting time or professional supervised parenting time between the child and the party who committed the abuse. A court may find that an indicated report for physical or sexual abuse is a basis for a finding of abuse under this subsection only after a de novo review of the circumstances leading to the indicated report. Notwithstanding this subsection, the court may award an alternative form of parenting time if the court finds by a preponderance of the evidence that:

(1) the party no longer poses a risk of abuse to the child or any other household member; and

(2) another parenting time arrangement is in the best interests of the child and will not jeopardize the health and safety of the child.

(c) If the court finds by a preponderance of the evidence that there is an ongoing risk of abuse of the child, there shall be a rebuttable presumption that the court shall only allow professional supervised parenting time between the child and the party who poses the risk of abuse. A court may find that an indicated report for physical or sexual abuse is a basis for a finding of abuse under this subsection only after a de novo review of the circumstances leading to the indicated report. Notwithstanding this subsection, the court may award an alternative form of parenting time if the court finds by a preponderance of the evidence that:

(1) the party no longer poses a risk of abuse to the child or any other household member; and

(2) another parenting time arrangement is in the best interests of the child and will not jeopardize the health and safety of the child.

(d) As used in this Section:

"Health and safety of the child" includes, but is not limited to, the physical, emotional, and psychological well-being of the child.

"Household member" means a spouse or individual who has been a spouse, individual living as a spouse or lived as a spouse, parent or child, individual related by consanguinity or affinity, current or former sexual or intimate partner, or individual who shares biological parenthood currently sharing a household with the child or a party.

"Intervention and harm prevention programming" includes, but is not limited to, programming designed to rehabilitate the offending individual, including prioritizing an intervention or harm prevent program, if available, or the impacts of physical, sexual, or domestic abuse on the victim.

"Nonprofessional supervised parenting time" means parenting time during which an adult, designated by the court or agreed upon by the parties, monitors the interaction between the child and the individual with parenting time rights.

"Professional supervised parenting time" means parenting time during which a professional with education and training on the dynamics of domestic violence, sexual assault, child abuse, and the impact of domestic violence on children oversees the interaction between the child and the individual with parenting time rights and promotes the health and safety of the child during the interaction.

(750 ILCS 5/715 new)

Sec. 715. Judicial education and training.

(a) The Administrative Office of the Illinois Courts may develop and implement an ongoing education and training program for judges and relevant court personnel, including guardians ad litem, counsel for children, and mediators, regarding child abuse. The education and training program shall include all aspects of the maltreatment of children, including:

(1) sexual abuse;

(2) physical abuse;

(3) implicit and explicit bias;

(4) trauma and neglect; and

(5) the impact of child abuse and domestic violence on children.

(b) The education and training program shall include the latest best practices from evidence-based, peer-reviewed research by recognized experts in the types of child abuse specified under subsection (a). The Administrative Office of the Illinois Courts shall design the education and training program to educate and train relevant court personnel on all of the factors listed under Section 602.7 and improve the ability of courts to make appropriate parenting time decisions that are in the best interests of the child, including education and training regarding the impact of child abuse, domestic abuse and trauma on a victim, specifically a child, and situations where one party attempts to turn a child against another party.

Section 15. The Illinois Domestic Violence Act of 1986 is amended by adding Section 228 as follows:

(750 ILCS 60/228 new)

Sec. 228. Sealing of court file prohibited. No court shall seal a court file related to an order of protection granted under this Act.