SB0098sam001 94TH GENERAL ASSEMBLY

Sen. Wendell E. Jones

Filed: 4/11/2005

09400SB0098sam001 LRB094 05993 LCB 44839 a

AMENDMENT TO SENATE BILL 98

AMENDMENT NO. ______. Amend Senate Bill 98 by replacing everything after the enacting clause with the following:

"Section 5. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Sections 601, 602, 602.1, 604, 604.5, 605, and 607 as follows:

(750 ILCS 5/601) (from Ch. 40, par. 601)

Sec. 601. Jurisdiction; Commencement of Proceeding.

(a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination in original or modification proceedings as provided in Section 201 of the Uniform Child-Custody Jurisdiction and Enforcement Act as adopted by this State.

(b) A child custody proceeding is commenced in the court:

(1) by a parent, by filing a petition:

(i) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or

(ii) for custody of the child, in the county in which he is permanently resident or found;

(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents; or

(3) by a stepparent, by filing a petition, if all of the following circumstances are met:

(A) the child is at least 12 years old;

(B) the custodial parent and stepparent were married for at least 5 years during which the child resided with the parent and stepparent;

(C) the custodial parent is deceased or is disabled and cannot perform the duties of a parent to the child;

(D) the stepparent provided for the care, control, and welfare to the child prior to the initiation of custody proceedings;

(E) the child wishes to live with the stepparent; and

(F) it is alleged to be in the best interests and welfare of the child to live with the stepparent as provided in Section 602 of this Act.

(4) When one of the parents is deceased, by a grandparent who is a parent or stepparent of a deceased parent, by filing a petition, if one or more of the following existed at the time of the parent's death:

(A) the surviving parent had been absent from the marital abode for more than one month without the deceased spouse knowing his or her whereabouts;

(B) the surviving parent was in State or federal custody; or

(C) the surviving parent had: (i) received supervision for or been convicted of any violation of Article 12 of the Criminal Code of 1961 directed towards the deceased parent or the child; or (ii) received supervision or been convicted of violating an order of protection entered under Section 217, 218, or 219 of the Illinois Domestic Violence Act of 1986 for the protection of the deceased parent or the child.

(c) Notice of a child custody proceeding, including an action for modification of a previous custody order, shall be given to the child's parents, guardian and custodian, who may appear, be heard, and file a responsive pleading. The court, upon showing of good cause, may permit intervention of other interested parties.

(d) Proceedings for modification of a previous custody order commenced more than 30 days following the entry of a previous custody order must be initiated by serving a written notice and a copy of the petition for modification upon the child's parent, guardian and custodian at least 30 days prior to hearing on the petition. Nothing in this Section shall preclude a party in custody modification proceedings from moving for a temporary order under Section 603 of this Act.

(e) (Blank).

(f) The court shall, at the court's discretion or upon the request of any party entitled to petition for custody of the child, appoint a guardian ad litem to represent the best interest of the child for the duration of the custody proceeding or for any modifications of any custody orders entered. The guardian ad litem shall have completed 3 hours of training that relates to the functions and duties of a guardian ad litem and that includes training on the dynamics of domestic violence on partners and children. The guardian ad litem shall investigate whether there is evidence that either partner engaged in domestic violence and shall report to the court on the results of the investigation. Nothing in this Section shall be construed to prevent the court from appointing the same guardian ad litem for 2 or more children that are siblings or half-siblings.

(Source: P.A. 93-108, eff. 1-1-04; 93-1026, eff. 1-1-05.)

(750 ILCS 5/602) (from Ch. 40, par. 602)

Sec. 602. Best Interest of Child.

(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school and community;

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

(6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;

(7) the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and

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

In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.

(a-3) In any determination of custody where the court hears evidence concerning item (6) or (7) of subsection (a) of this Section, the court shall state in writing the reason that the court determined that legal custody with that party is in the best interest of the child.

(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.

(c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody.

(Source: P.A. 90-782, eff. 8-14-98.)

(750 ILCS 5/602.1) (from Ch. 40, par. 602.1)

Sec. 602.1. (a) The dissolution of marriage, the declaration of invalidity of marriage, the legal separation of the parents, or the parents living separate and apart shall not diminish parental powers, rights, and responsibilities except as the court for good reason may determine under the standards of Section 602.

(b) Upon the application of either or both parents, or upon its own motion, the court shall consider an award of joint custody. Joint custody means custody determined pursuant to a Joint Parenting Agreement or a Joint Parenting Order. In such cases, the court shall initially request the parents to produce a Joint Parenting Agreement. Such Agreement shall specify each parent's powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care, and religious training. The Agreement shall further specify a procedure by which proposed changes, disputes and alleged breaches may be mediated or otherwise resolved and shall provide for a periodic review of its terms by the parents. In producing a Joint Parenting Agreement, the parents shall be flexible in arriving at resolutions which further the policy of this State as expressed in Sections 102 and 602. For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may order mediation and may direct that an investigation be conducted pursuant to the provisions of Section 605. If there is a danger to the health or safety of a partner, joint mediation shall not be required by the court. In the event the parents fail to produce a Joint Parenting Agreement, the court may enter an appropriate Joint Parenting Order under the standards of Section 602 which shall specify and contain the same elements as a Joint Parenting Agreement, or it may award sole custody under the standards of Sections 602, 607, and 608.

(c) The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:

(1) the ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child. "Ability of the parents to cooperate" means the parents' capacity to substantially comply with a Joint Parenting Order. The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child;

(2) The residential circumstances of each parent; and

(3) all other factors which may be relevant to the best interest of the child.

(c-3) In any determination of joint custody where the court hears evidence concerning physical violence or threat of physical violence by the child's potential custodian or the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person, the court shall state in writing the reason that the court determined that joint custody with that party is in the best interest of the child.

(d) Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by:

(1) express agreement of the parties; or

(2) order of the court under the standards of this Section.

(e) Notwithstanding any other provision of law, access to records and information pertaining to a child, including but not limited to medical, dental, child care and school records, shall not be denied to a parent for the reason that such parent is not the child's custodial parent; however, no parent shall have access to the school records of a child if the parent is prohibited by an order of protection from inspecting or obtaining such records pursuant to the Illinois Domestic Violence Act of 1986, as now or hereafter amended.

(Source: P.A. 88-409.)

(750 ILCS 5/604) (from Ch. 40, par. 604)

Sec. 604. Interviews.) (a) The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.

(b) The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The professional personnel must have completed 3 hours of training in domestic violence and its effects on the partner and the child. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court's witness.

(Source: P.A. 80-923.)

(750 ILCS 5/604.5)

Sec. 604.5. Evaluation of child's best interest.

(a) In a proceeding for custody, visitation, or removal of a child from Illinois, upon notice and motion made within a reasonable time before trial, the court may order an evaluation concerning the best interest of the child as it relates to custody, visitation, or removal. All evaluators must have completed 3 hours of training in domestic violence and its effects on the partner and the child. The motion may be made by a party, a parent, the child's custodian, the attorney for the child, the child's guardian ad litem, or the child's representative. The requested evaluation may be in place of or in addition to an evaluation conducted under subsection (b) of Section 604.

The motion shall state the identity of the proposed evaluator and set forth the evaluator's specialty or discipline. The court may refuse to order an evaluation by the proposed evaluator, but in that event, the court may permit the party seeking the evaluation to propose one or more other evaluators.

(b) An order for an evaluation shall fix the time, place, conditions, and scope of the evaluation and shall designate the evaluator. A party or person shall not be required to travel an unreasonable distance for the evaluation.

(c) The person requesting an evaluator shall pay the fee for the evaluation unless otherwise ordered by the court.

(d) Within 21 days after the completion of the evaluation, if the moving party or person intends to call the evaluator as a witness, the evaluator shall prepare and mail or deliver to the attorneys of record duplicate originals of the written evaluation. The evaluation shall set forth the evaluator's findings, the results of all tests administered, and the evaluator's conclusions and recommendations. If the written evaluation is not delivered or mailed to the attorneys within 21 days or within any extensions or modifications granted by the court, the written evaluation and the evaluator's testimony, conclusions, and recommendations may not be received into evidence.

(e) The person calling an evaluator to testify at trial shall disclose the evaluator as an opinion witness in accordance with the Supreme Court Rules.

(f) Subject to compliance with the Supreme Court Rules, nothing in this Section bars a person who did not request the evaluation from calling the evaluator as a witness. In that case, however, that person shall pay the evaluator's fee for testifying unless otherwise ordered by the court.

(Source: P.A. 91-746, eff. 6-2-00.)

(750 ILCS 5/605) (from Ch. 40, par. 605)

Sec. 605. Investigations and Reports. (a) In contested custody proceedings, and in other custody proceedings if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by a child welfare agency approved by the Department of Children and Family Services, but shall not be made by that Department unless the court determines either that there is no child welfare agency available or that the parent or the child's custodian is financially unable to pay for the investigation or report.

(b) An investigator who makes a report to the court must have completed 3 hours of training in domestic violence and its effects on the partner and the child. In preparing his report concerning a child, the investigator may consult any person who may have information about the child and his potential custodial arrangements. Under order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric or other expert persons who have served the child in the past, without obtaining the consent of the parent or the child's custodian. The child's consent must be obtained if he has reached the age of 16, unless the court finds that he lacks mental capacity to consent.

(c) The investigator shall mail the report to counsel, and to any party not represented by counsel, at least 10 days prior to the hearing. The court may examine and consider the investigator's report in determining custody. The investigator shall make available to counsel, and to any party not represented by counsel, the investigator's file of underlying data, reports, and the complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (b) of this Section, and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator, or any person whom he has consulted, as a court's witness, for cross-examination. A party may not waive his right of cross-examination prior to the hearing.

(Source: P.A. 86-659.)

(750 ILCS 5/607) (from Ch. 40, par. 607)

Sec. 607. Visitation.

(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral or emotional health. If the custodian's street address is not identified, pursuant to Section 708, the court shall require the parties to identify reasonable alternative arrangements for visitation by a non-custodial parent, including but not limited to visitation of the minor child at the residence of another person or at a local public or private facility.

(a-3) Nothing in subsection (a-5) of this Section shall apply to a child in whose interests a petition under Section 2-13 of the Juvenile Court Act of 1987 is pending.

(a-5)(1) Except as otherwise provided in this subsection (a-5), any grandparent, great-grandparent, or sibling may file a petition for visitation rights to a minor child if there is an unreasonable denial of visitation by a parent and at least one of the following conditions exists:

(A) one parent of the child is incompetent as a matter of law or deceased or has been sentenced to a period of imprisonment for more than 1 year;

(B) the child's mother and father are divorced or have been legally separated from each other during the 3 month period prior to the filing of the petition and at least one parent does not object to the grandparent, great-grandparent, or sibling having visitation with the child. The visitation of the grandparent, great-grandparent, or sibling must not diminish the visitation of the parent who is not related to the grandparent, great-grandparent, or sibling seeking visitation;

(C) the court, other than a Juvenile Court, has terminated a parent-child relationship and the grandparent, great-grandparent, or sibling is the parent of the person whose parental rights have been terminated, except in cases of adoption. The visitation must not be used to allow the parent who lost parental rights to unlawfully visit with the child;

(D) the child is illegitimate, the parents are not living together, and the petitioner is a maternal grandparent, great-grandparent, or sibling of the illegitimate child; or

(E) the child is illegitimate, the parents are not living together, the petitioner is a paternal grandparent, great-grandparent, or sibling, and the paternity has been established by a court of competent jurisdiction.

(2) The grandparent, great-grandparent, or sibling of a parent whose parental rights have been terminated through an adoption proceeding may not petition for visitation rights.

(3) In making a determination under this subsection (a-5), there is a rebuttable presumption that a fit parent's actions and decisions regarding grandparent, great-grandparent, or sibling visitation are not harmful to the child's mental, physical, or emotional health. The burden is on the party filing a petition under this Section to prove that the parent's actions and decisions regarding visitation times are harmful to the child's mental, physical, or emotional health.

(4) In determining whether to grant visitation, the court shall consider the following:

(A) the preference of the child if the child is determined to be of sufficient maturity to express a preference;

(B) the mental and physical health of the child;

(C) the mental and physical health of the grandparent, great-grandparent, or sibling;

(D) the length and quality of the prior relationship between the child and the grandparent, great-grandparent, or sibling;

(E) the good faith of the party in filing the petition;

(F) the good faith of the person denying visitation;

(G) the quantity of the visitation time requested and the potential adverse impact that visitation would have on the child's customary activities;

(H) whether the child resided with the petitioner for at least 6 consecutive months with or without the current custodian present;

(I) whether the petitioner had frequent or regular contact with the child for at least 12 consecutive months; and

(J) any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to harm the child's mental, physical, or emotional health.

(5) The court may order visitation rights for the grandparent, great-grandparent, or sibling that include reasonable access without requiring overnight or possessory visitation.

(a-7)(1) Unless by stipulation of the parties, no motion to modify a grandparent, great-grandparent, or sibling visitation order may be made earlier than 2 years after the date the order was filed, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously the child's mental, physical, or emotional health.

(2) The court shall not modify a prior grandparent, great-grandparent, or sibling visitation order unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior visitation order or that were unknown to the court at the time of entry of the prior visitation, that a change has occurred in the circumstances of the child or his or her custodian, and that the modification is necessary to protect the mental, physical, or emotional health of the child. The court shall state in its decision specific findings of fact in support of its modification or termination of the grandparent, great-grandparent, or sibling visitation.

(3) Attorney fees and costs shall be assessed against a party seeking modification of the visitation order if the court finds that the modification action is vexatious and constitutes harassment.

(4) Notice under this subsection (a-7) shall be given as provided in subsections (c) and (d) of Section 601.

(b) (1) (Blank.)

(1.5) The Court may grant reasonable visitation privileges to a stepparent upon petition to the court by the stepparent, with notice to the parties required to be notified under Section 601 of this Act, if the court determines that it is in the best interests and welfare of the child, and may issue any necessary orders to enforce those visitation privileges. A petition for visitation privileges may be filed under this paragraph (1.5) whether or not a petition pursuant to this Act has been previously filed or is currently pending if the following circumstances are met:

(A) the child is at least 12 years old;

(B) the child resided continuously with the parent and stepparent for at least 5 years;

(C) the parent is deceased or is disabled and is unable to care for the child;

(D) the child wishes to have reasonable visitation with the stepparent; and

(E) the stepparent was providing for the care, control, and welfare to the child prior to the initiation of the petition for visitation.

(2)(A) A petition for visitation privileges shall not be filed pursuant to this subsection (b) by the parents or grandparents of a putative father if the paternity of the putative father has not been legally established.

(B) A petition for visitation privileges may not be filed under this subsection (b) if the child who is the subject of the grandparents' or great-grandparents' petition has been voluntarily surrendered by the parent or parents, except for a surrender to the Illinois Department of Children and Family Services or a foster care facility, or has been previously adopted by an individual or individuals who are not related to the biological parents of the child or is the subject of a pending adoption petition by an individual or individuals who are not related to the biological parents of the child.

(3) (Blank).

(c) The court may modify an order granting or denying visitation rights of a parent whenever modification would serve the best interest of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral or emotional health. The court may modify an order granting, denying, or limiting visitation rights of a grandparent, great-grandparent, or sibling of any minor child whenever a change of circumstances has occurred based on facts occurring subsequent to the judgment and the court finds by clear and convincing evidence that the modification is in the best interest of the minor child.

(c-3) In any proceeding for the modification of an order granting or denying visitation rights of a parent where the court hears evidence concerning physical violence or threat of physical violence by the child's potential custodian or the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person, the court shall state in writing the evidence the reason that the court determined that granting or denying visitation with that party is in the best interest of the child.

(d) If any court has entered an order prohibiting a non-custodial parent of a child from any contact with a child or restricting the non-custodial parent's contact with the child, the following provisions shall apply:

(1) If an order has been entered granting visitation privileges with the child to a grandparent or great-grandparent who is related to the child through the non-custodial parent, the visitation privileges of the grandparent or great-grandparent may be revoked if:

(i) a court has entered an order prohibiting the non-custodial parent from any contact with the child, and the grandparent or great-grandparent is found to have used his or her visitation privileges to facilitate contact between the child and the non-custodial parent; or

(ii) a court has entered an order restricting the non-custodial parent's contact with the child, and the grandparent or great-grandparent is found to have used his or her visitation privileges to facilitate contact between the child and the non-custodial parent in a manner that violates the terms of the order restricting the non-custodial parent's contact with the child.

Nothing in this subdivision (1) limits the authority of the court to enforce its orders in any manner permitted by law.

(2) Any order granting visitation privileges with the child to a grandparent or great-grandparent who is related to the child through the non-custodial parent shall contain the following provision:

"If the (grandparent or great-grandparent, whichever is applicable) who has been granted visitation privileges under this order uses the visitation privileges to facilitate contact between the child and the child's non-custodial parent, the visitation privileges granted under this order shall be permanently revoked."

(e) No parent, not granted custody of the child, or grandparent, or great-grandparent, or stepparent, or sibling of any minor child, convicted of any offense involving an illegal sex act perpetrated upon a victim less than 18 years of age including but not limited to offenses for violations of Article 12 of the Criminal Code of 1961, is entitled to visitation rights while incarcerated or while on parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for that offense, and upon discharge from incarceration for a misdemeanor offense or upon discharge from parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for a felony offense, visitation shall be denied until the person successfully completes a treatment program approved by the court.

(f) Unless the court determines, after considering all relevant factors, including but not limited to those set forth in Section 602(a), that it would be in the best interests of the child to allow visitation, the court shall not enter an order providing visitation rights and pursuant to a motion to modify visitation shall revoke visitation rights previously granted to any person who would otherwise be entitled to petition for visitation rights under this Section who has been convicted of first degree murder of the parent, grandparent, great-grandparent, or sibling of the child who is the subject of the order. Until an order is entered pursuant to this subsection, no person shall visit, with the child present, a person who has been convicted of first degree murder of the parent, grandparent, great-grandparent, or sibling of the child without the consent of the child's parent, other than a parent convicted of first degree murder as set forth herein, or legal guardian.

(g) If an order has been entered limiting, for cause, a minor child's contact or visitation with a grandparent, great-grandparent, or sibling on the grounds that it was in the best interest of the child to do so, that order may be modified only upon a showing of a substantial change in circumstances occurring subsequent to the entry of the order with proof by clear and convincing evidence that modification is in the best interest of the minor child.

(Source: P.A. 93-911, eff. 1-1-05.)

Section 99. Effective date. This Act takes effect upon becoming law.".