SB2595 94TH GENERAL ASSEMBLY

LRB094 15644 AJO 53921 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2595

Introduced 1/20/2006, by Sen. William R. Haine - Pamela J. Althoff - Cheryl Axley - Wendell E. Jones

SYNOPSIS AS INTRODUCED:

750 ILCS 5/602	from Ch. 40, par. 602
750 ILCS 5/602.1	from Ch. 40, par. 602.1

Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that there is a rebuttable presumption that it is not in the best interest of a child to award custody to a parent who has been convicted of a crime that is in one of several designated categories (including battery, unlawful restraint, and stalking), convicted of a crime that resulted in serious physical injury to a family or household member, or determined by a court order to have violated an order of protection. The presumption can be rebutted by a preponderance of the evidence that the parent has completed a partner abuse program; alcohol and drug screening, if the court deems the screening to be appropriate, and alcohol or drug counseling or treatment, if applicable; all of the factors weigh in the parent's favor; and there is little likelihood of any future injury to the child. If the presumption is rebutted, the court shall state the evidence relied upon. If the presumption is not rebutted, custody shall be with the other parent, provided that is in the best interest of the child. If the presumptions for both parents are not rebutted, the court may award custody to one parent, if to do so is in the best interest of the child. Deletes from the list of relevant factors to consider in the determination of the best interest of the child, the willingness and ability of each parent to facilitate and encourage a continuing relationship between the other parent and the child.

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 602 and 602.1 as follows:

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

(9) whether one of the parents is a sex offender.

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.

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

(c)(Blank). 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.

(d) (1) There is a rebuttable presumption that it is not in the best interest of the child for the court to grant custody, either joint or sole, to a parent:

(A) if that parent was convicted of a crime under the Criminal Code of 1961, that is included in this list of offenses: unlawful restraint, aggravated unlawful restraint, aggravated assault, battery, domestic battery, aggravated domestic battery, aggravated battery, heinous battery, aggravated battery of a child, stalking, aggravated stalking, or cyberstalking;

(B) if that parent was convicted of any crime that resulted in serious physical injury to any family or household member, as that term is defined by the Illinois Domestic Violence Act of 1986; or

(C) if a court order determined that the parent violated an order of protection entered under the Illinois Domestic Violence Act of 1986, or violated an order of protection entered under the Code of Criminal Procedure of 1963, or

(D) if that parent was convicted of a crime pursuant to a statute of another state, tribe, or United States territory that is substantially similar to a crime described in subparagraph (A) or subparagraph (B) of paragraph 1 of subsection (d); or

(E) if a court order determined that the parent violated an order of protection or a substantially similar order entered under a statute of another state, tribe, or United States territory that is substantially similar to the Illinois Domestic Violence Act of 1986 or Article 112A Domestic Violence; Order of Protection in the Code of Criminal Procedure of 1963.

(2) This presumption may be rebutted only by a preponderance of the evidence that:

(A) the parent who was convicted of one of the crimes described in subparagraph (A) or subparagraph (B) of paragraph 1 of subsection (d) has successfully completed, since the conviction, a Partner Abuse Intervention Program that is in compliance with the Illinois Department of Human Services State standards;

(B) complete alcohol and drug screening assessments, if the court finds that it is appropriate for the parent to complete alcohol and drug screening assessments by a certified substance abuse counselor or program, and

(1) either or both screening assessments recommend counseling, treatment, or other measures and the parent has successfully met all of the recommendations that were made to the parent, or

(2) the alcohol and drug screening assessments conclude that there is no need for that parent to undergo any counseling, treatment, or other measures;

(C) all of the factors in Section 602 and the recent history of the parent outweighs the violation of an order of protection, the criminal conviction, and, if applicable, the reasons for the assessments' recommendations for alcohol or drug counseling, treatment, or other measures; and

(D) there is little likelihood of future injury to the child or other party, notwithstanding the violation of an order of protection, conviction of the parent for a crime described in subparagraph (A) or subparagraph (B) of paragraph 1 of subsection (d), or, if applicable, the reasons for the assessments' recommendations for alcohol or drug counseling, treatment, or other measures.

(3) In a case where the presumption described in paragraph (1) of subsection (d) is rebutted, the court shall state in writing the evidence upon which the court relied for the determination that the presumption was rebutted and the findings of the court relating to the reason that custody with that parent, if so determined by the court, is in the best interest of the child.

(4) If there is no evidence against either parent of a conviction of a listed crime or a court order that determined that either parent's violated an order of protection, and whenever it appears that both parents are fit, the court may enter an order of joint custody taking into account the best interest of the child and the other applicable provisions of this Act. If a rebuttable presumption under paragraph (1) of subsection (d) exists and that presumption is not rebutted, sole custody shall be granted to the other parent, provided that no unrebutted presumption exists as to the other parent and no other evidence leads the court to conclude that an order of sole custody with that parent would be contrary to the best interest of the child. If a rebuttable presumption exists as to each parent under paragraph (1) of subsection (d) and that presumption is not rebutted as to either parent, sole custody may be granted to one of the parents taking into account the best interest of the child, other applicable provisions of this Act and, provided that no unrebutted presumption exists as to the other parent and no other evidence leads the court to conclude that an order of sole custody with that parent would be contrary to the best interest of the child.

(Source: P.A. 94-377, eff. 7-29-05; 94-643, eff. 1-1-06; revised 8-29-05.)

(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) (Blank). 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.

(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. 94-377, eff. 7-29-05.)