|
||||||||||||||||||||||
|
||||||||||||||||||||||
| ||||||||||||||||||||||
| ||||||||||||||||||||||
| ||||||||||||||||||||||
1 | AN ACT concerning civil law.
| |||||||||||||||||||||
2 | Be it enacted by the People of the State of Illinois,
| |||||||||||||||||||||
3 | represented in the General Assembly:
| |||||||||||||||||||||
4 | Section 5. The Illinois Marriage and Dissolution of | |||||||||||||||||||||
5 | Marriage Act is amended by changing Sections 601 and 607 as | |||||||||||||||||||||
6 | follows:
| |||||||||||||||||||||
7 | (750 ILCS 5/601) (from Ch. 40, par. 601)
| |||||||||||||||||||||
8 | Sec. 601. Jurisdiction; Commencement of Proceeding.
| |||||||||||||||||||||
9 | (a) A court of this State competent to decide child custody | |||||||||||||||||||||
10 | matters has
jurisdiction to make a child custody determination | |||||||||||||||||||||
11 | in original or modification
proceedings as provided in Section | |||||||||||||||||||||
12 | 201 of the Uniform
Child-Custody Jurisdiction and Enforcement | |||||||||||||||||||||
13 | Act as
adopted by this State.
| |||||||||||||||||||||
14 | (b) A child custody proceeding is commenced in the court:
| |||||||||||||||||||||
15 | (1) by a parent, by filing a petition:
| |||||||||||||||||||||
16 | (i) for dissolution of marriage or legal | |||||||||||||||||||||
17 | separation or declaration
of invalidity of marriage; | |||||||||||||||||||||
18 | or
| |||||||||||||||||||||
19 | (ii) for custody of the child, in the county in | |||||||||||||||||||||
20 | which he is
permanently resident or found;
| |||||||||||||||||||||
21 | (2) by a person other than a parent, by filing a | |||||||||||||||||||||
22 | petition for
custody of the child in the county in which he | |||||||||||||||||||||
23 | is permanently resident
or found, but only if he is not in |
| |||||||
| |||||||
1 | the physical custody of one of his
parents; or
| ||||||
2 | (3) by a stepparent, by filing a petition, if all of | ||||||
3 | the following
circumstances are met:
| ||||||
4 | (A) the child is at least 12 years old;
| ||||||
5 | (B) the custodial parent and stepparent were | ||||||
6 | married for at least 5
years during which the child | ||||||
7 | resided with the parent and stepparent;
| ||||||
8 | (C) the custodial parent is deceased or is disabled | ||||||
9 | and cannot perform
the duties of a parent to the child;
| ||||||
10 | (D) the stepparent provided for the care, control, | ||||||
11 | and welfare to the
child prior to the initiation of | ||||||
12 | custody proceedings;
| ||||||
13 | (E) the child wishes to live with the stepparent; | ||||||
14 | and
| ||||||
15 | (F) it is alleged to be in the best interests and | ||||||
16 | welfare of the
child to live with the stepparent as | ||||||
17 | provided in Section 602 of this Act. | ||||||
18 | (3.5) by a stepparent, by filing a petition, | ||||||
19 | notwithstanding that one or more of the circumstances | ||||||
20 | described in subparagraphs (A) through (F) in paragraph (3) | ||||||
21 | are not met, if all of the following circumstances are met: | ||||||
22 | (A) the child's age is consistent with an order of | ||||||
23 | stepparent custody; | ||||||
24 | (B) the length of the marriage of the custodial | ||||||
25 | parent and the stepparent and the nature and length of | ||||||
26 | the child's previous residency arrangements with the |
| |||||||
| |||||||
1 | parent and
stepparent are consistent with an order of | ||||||
2 | stepparent custody; | ||||||
3 | (C) the parent's physical and mental condition as | ||||||
4 | it relates to the parent's ability
to care for the | ||||||
5 | child is consistent with an order of stepparent | ||||||
6 | custody; the parent's lack of
competence, | ||||||
7 | incarceration, absence (with his or her whereabouts | ||||||
8 | unknown), or the parent being otherwise unable or
| ||||||
9 | unavailable to care for the child is consistent with an | ||||||
10 | order of stepparent custody; or the
parent is deceased; | ||||||
11 | (D) the child's wishes concerning stepparent | ||||||
12 | custody are consistent with an order of stepparent | ||||||
13 | custody; | ||||||
14 | (E) the stepparent's care, control, and provision | ||||||
15 | for the welfare of the child prior to the initiation of | ||||||
16 | the petition for custody are consistent with an order | ||||||
17 | of stepparent custody; | ||||||
18 | (F) other conditions exist that are consistent | ||||||
19 | with an order of stepparent custody; and | ||||||
20 | (G) it is in the best interests and welfare of the | ||||||
21 | child, as provided in Section 602 of this Act, to live | ||||||
22 | with the stepparent.
| ||||||
23 | (4) When one of the parents is deceased, by a | ||||||
24 | grandparent who is a parent or stepparent of a deceased | ||||||
25 | parent, by filing a petition, if one or more of the | ||||||
26 | following existed at the time of the parent's death: |
| |||||||
| |||||||
1 | (A) the surviving parent had been absent from the | ||||||
2 | marital abode for more than one month without the | ||||||
3 | deceased spouse knowing his or her whereabouts; | ||||||
4 | (B) the surviving parent was in State or federal | ||||||
5 | custody; or | ||||||
6 | (C) the surviving parent had: (i) received | ||||||
7 | supervision for or been convicted of any violation of | ||||||
8 | Article 12 of the Criminal Code of 1961 directed | ||||||
9 | towards the deceased parent or the child; or (ii) | ||||||
10 | received supervision or been convicted of violating an | ||||||
11 | order of protection entered under Section 217, 218, or | ||||||
12 | 219 of the Illinois Domestic Violence Act of 1986 for | ||||||
13 | the protection of the deceased parent or the child.
| ||||||
14 | (c) Notice of a child custody proceeding, including an | ||||||
15 | action
for modification of a previous custody order, shall be | ||||||
16 | given to the
child's parents, guardian and custodian, who may | ||||||
17 | appear, be heard, and
file a responsive pleading. The court, | ||||||
18 | upon showing of good cause, may
permit intervention of other | ||||||
19 | interested parties.
| ||||||
20 | (d) Proceedings for modification of a previous custody | ||||||
21 | order
commenced more than 30 days following the entry of a | ||||||
22 | previous custody order
must be initiated by serving a written | ||||||
23 | notice and a copy of the petition
for modification upon the | ||||||
24 | child's parent, guardian and custodian at least
30 days prior | ||||||
25 | to hearing on the petition. Nothing in this Section shall
| ||||||
26 | preclude a party in custody modification proceedings from |
| |||||||
| |||||||
1 | moving for a
temporary order under Section 603 of this Act.
| ||||||
2 | (e) (Blank). | ||||||
3 | (f) The court shall, at the court's discretion or upon the | ||||||
4 | request of any party entitled to petition for custody of the | ||||||
5 | child, appoint a guardian ad litem to represent the best | ||||||
6 | interest of the child for the duration of the custody | ||||||
7 | proceeding or for any modifications of any custody orders | ||||||
8 | entered. Nothing in this Section shall be construed to prevent | ||||||
9 | the court from appointing the same guardian ad litem for 2 or | ||||||
10 | more children that are siblings or half-siblings.
| ||||||
11 | (Source: P.A. 93-108, eff. 1-1-04; 93-1026, eff. 1-1-05.)
| ||||||
12 | (750 ILCS 5/607) (from Ch. 40, par. 607)
| ||||||
13 | Sec. 607. Visitation.
| ||||||
14 | (a) A parent not granted custody of the child
is entitled | ||||||
15 | to reasonable visitation rights unless the court finds,
after a | ||||||
16 | hearing, that visitation would endanger seriously the child's
| ||||||
17 | physical, mental, moral or emotional health. If the custodian's | ||||||
18 | street
address is not identified, pursuant to Section 708, the | ||||||
19 | court shall require
the parties to identify reasonable | ||||||
20 | alternative arrangements for visitation
by a non-custodial | ||||||
21 | parent, including but not limited to visitation of the
minor | ||||||
22 | child at the residence of another person or at a local public | ||||||
23 | or
private facility.
| ||||||
24 | (a-3) Grandparents, great-grandparents, and siblings of a | ||||||
25 | minor child, who is one year old or older, have standing to |
| |||||||
| |||||||
1 | bring an action in circuit court by petition, requesting | ||||||
2 | visitation in accordance with this Section. The term "sibling" | ||||||
3 | in this Section means a brother, sister, stepbrother, or | ||||||
4 | stepsister of the minor child. Grandparents, | ||||||
5 | great-grandparents, and siblings also have standing to file a | ||||||
6 | petition for visitation rights in a pending dissolution | ||||||
7 | proceeding or any other proceeding that involves custody or | ||||||
8 | visitation issues, requesting visitation in accordance with | ||||||
9 | this Section. A petition for visitation with a child by a | ||||||
10 | person other than a parent must be filed in the county in which | ||||||
11 | the child resides. Nothing in this subsection (a-3) and | ||||||
12 | subsection (a-5) of this Section shall apply to a child in | ||||||
13 | whose interests a petition is pending under Section 2-13 of the | ||||||
14 | Juvenile Court Act of 1987 or a petition to adopt an unrelated | ||||||
15 | child is pending under the Adoption Act. | ||||||
16 | (a-5)(1) Except as otherwise provided in this subsection | ||||||
17 | (a-5), any grandparent, great-grandparent, or sibling may file | ||||||
18 | a
petition for
visitation rights to a minor child if there is | ||||||
19 | an unreasonable denial of visitation by a parent and at least | ||||||
20 | one
of the
following conditions exists: | ||||||
21 | (A) (Blank); | ||||||
22 | (A-5) the child's other parent is deceased or has been | ||||||
23 | missing for at least 3 months. For the purposes of this | ||||||
24 | Section a parent is considered to be missing if the | ||||||
25 | parent's location has not been determined and the parent | ||||||
26 | has been reported as missing to a law enforcement agency;
|
| |||||||
| |||||||
1 | (A-10) a parent of the child is incompetent as a matter | ||||||
2 | of law;
| ||||||
3 | (A-15) a parent has been incarcerated in jail or prison | ||||||
4 | during the 3 month period preceding the filing of the | ||||||
5 | petition;
| ||||||
6 | (B) the child's mother and father are divorced or have | ||||||
7 | been legally separated from
each other or there is pending | ||||||
8 | a dissolution proceeding involving a parent of the child or | ||||||
9 | another court proceeding involving custody or visitation | ||||||
10 | of the child (other than any adoption proceeding of an | ||||||
11 | unrelated child) and at least one parent does not object to | ||||||
12 | the grandparent, great-grandparent, or sibling having | ||||||
13 | visitation with the child. The visitation of the | ||||||
14 | grandparent, great-grandparent, or sibling must not | ||||||
15 | diminish the visitation of the parent who is not related to | ||||||
16 | the grandparent, great-grandparent, or sibling seeking | ||||||
17 | visitation; | ||||||
18 | (C) (Blank); | ||||||
19 | (D) the child is born out of wedlock, the parents are | ||||||
20 | not living together, and the petitioner is a maternal | ||||||
21 | grandparent, great-grandparent, or sibling of the child | ||||||
22 | born out of wedlock; or | ||||||
23 | (E) the child is born out of wedlock, the parents are | ||||||
24 | not living together, the petitioner is a paternal | ||||||
25 | grandparent, great-grandparent, or sibling, and the | ||||||
26 | paternity has been established by a court of competent |
| |||||||
| |||||||
1 | jurisdiction. | ||||||
2 | (2) Any visitation rights granted pursuant to this Section | ||||||
3 | before the filing of a petition for adoption of a child shall | ||||||
4 | automatically terminate by operation of law upon the entry of | ||||||
5 | an order terminating parental rights or granting the adoption | ||||||
6 | of the child, whichever is earlier. If the person or persons | ||||||
7 | who adopted the child are related to the child, as defined by | ||||||
8 | Section 1 of the Adoption Act, any person who was related to | ||||||
9 | the child as grandparent, great-grandparent, or sibling prior | ||||||
10 | to the adoption shall have standing to bring an action pursuant | ||||||
11 | to this Section requesting visitation with the child.
| ||||||
12 | (3) In making a determination under this subsection (a-5), | ||||||
13 | there is a
rebuttable
presumption that a fit parent's actions | ||||||
14 | and decisions regarding grandparent,
great-grandparent, or | ||||||
15 | sibling visitation are not harmful to the child's mental, | ||||||
16 | physical, or emotional health. The
burden is on the
party | ||||||
17 | filing a petition under this Section to prove that the
parent's | ||||||
18 | actions and
decisions regarding visitation times are harmful to | ||||||
19 | the child's mental, physical, or emotional health. | ||||||
20 | (4) In determining whether to grant visitation, the court | ||||||
21 | shall consider the following:
| ||||||
22 | (A) the preference of the child if the child is | ||||||
23 | determined to be of sufficient maturity to express a | ||||||
24 | preference; | ||||||
25 | (B) the mental and physical health of the child; | ||||||
26 | (C) the mental and physical health of the grandparent, |
| |||||||
| |||||||
1 | great-grandparent, or sibling; | ||||||
2 | (D) the length and quality of the prior relationship | ||||||
3 | between the child and the grandparent, great-grandparent, | ||||||
4 | or sibling;
| ||||||
5 | (E) the good faith of the party in filing the petition;
| ||||||
6 | (F) the good faith of the person denying visitation; | ||||||
7 | (G) the quantity of the visitation time requested and | ||||||
8 | the potential adverse impact that visitation would have on | ||||||
9 | the child's customary activities; | ||||||
10 | (H) whether the child resided with the petitioner for | ||||||
11 | at least
6 consecutive months with or without the current | ||||||
12 | custodian present; | ||||||
13 | (I) whether the petitioner had frequent or regular | ||||||
14 | contact or visitation with the child for at least 12 | ||||||
15 | consecutive months;
| ||||||
16 | (J) any other fact that establishes that the loss of | ||||||
17 | the relationship between the petitioner and the child is | ||||||
18 | likely to harm the child's mental, physical, or emotional | ||||||
19 | health; and | ||||||
20 | (K) whether the grandparent, great-grandparent, or | ||||||
21 | sibling was a primary caretaker of the child for a period | ||||||
22 | of not less than 6 consecutive months.
| ||||||
23 | (5) The court may order visitation rights for the | ||||||
24 | grandparent, great-grandparent, or sibling that include | ||||||
25 | reasonable access without requiring overnight or possessory | ||||||
26 | visitation.
|
| |||||||
| |||||||
1 | (a-7)(1) Unless by stipulation of the parties, no motion to | ||||||
2 | modify a grandparent, great-grandparent, or sibling visitation | ||||||
3 | order may be made earlier than 2 years after the date the order | ||||||
4 | was filed, unless the court permits it to be made on the basis | ||||||
5 | of affidavits that there is reason to believe the child's | ||||||
6 | present environment may endanger seriously the child's mental, | ||||||
7 | physical, or emotional health. | ||||||
8 | (2) The court shall not modify an order that grants | ||||||
9 | visitation to a grandparent, great-grandparent, or sibling | ||||||
10 | unless it finds by clear and convincing evidence, upon the | ||||||
11 | basis of facts that have arisen since the prior visitation | ||||||
12 | order or that were unknown to the court at the time of entry of | ||||||
13 | the prior visitation, that a change has occurred in the | ||||||
14 | circumstances of the child or his or her custodian, and that | ||||||
15 | the modification is necessary to protect the mental, physical, | ||||||
16 | or emotional health of the child. The court shall state in its | ||||||
17 | decision specific findings of fact in support of its | ||||||
18 | modification or termination of the grandparent, | ||||||
19 | great-grandparent, or sibling visitation. A child's parent may | ||||||
20 | always petition to modify visitation upon changed | ||||||
21 | circumstances when necessary to promote the child's best | ||||||
22 | interest. | ||||||
23 | (3) Attorney fees and costs shall be assessed against a | ||||||
24 | party seeking modification of the visitation order if the court | ||||||
25 | finds that the modification action is vexatious and constitutes | ||||||
26 | harassment. |
| |||||||
| |||||||
1 | (4) Notice under this subsection (a-7) shall be given as | ||||||
2 | provided in subsections (c) and (d) of Section 601.
| ||||||
3 | (b) (1) (Blank.)
| ||||||
4 | (1.5) The Court may grant reasonable visitation privileges | ||||||
5 | to a stepparent
upon petition to the court by the stepparent, | ||||||
6 | with notice to the parties
required to be notified under | ||||||
7 | Section 601 of this Act, if the court determines
that it is in | ||||||
8 | the best interests and welfare of the child, and may issue any
| ||||||
9 | necessary orders to enforce those visitation privileges.
A | ||||||
10 | petition for visitation privileges may be filed under this | ||||||
11 | paragraph (1.5)
whether or not a petition pursuant to this Act | ||||||
12 | has been previously filed or is
currently pending if the | ||||||
13 | following
circumstances are met:
| ||||||
14 | (A) the child is at least 12 years old;
| ||||||
15 | (B) the child resided continuously with the parent and | ||||||
16 | stepparent for at
least 5 years;
| ||||||
17 | (C) the parent is deceased or is disabled and is unable | ||||||
18 | to care for the
child;
| ||||||
19 | (D) the child wishes to have reasonable visitation with | ||||||
20 | the stepparent;
and
| ||||||
21 | (E) the stepparent was providing for the care, control, | ||||||
22 | and welfare to the
child prior to the initiation of the | ||||||
23 | petition for visitation.
| ||||||
24 | Notwithstanding that one or more of the circumstances | ||||||
25 | described in subparagraphs (A) through (E) in this paragraph | ||||||
26 | (1.5) are not met, a stepparent may file a petition for |
| |||||||
| |||||||
1 | visitation privileges if the stepparent shows:
| ||||||
2 | (F) the child's age; | ||||||
3 | (G) the nature and length of the child's previous | ||||||
4 | residency arrangements with the parent and step-parent;
| ||||||
5 | (H) the parent's physical and mental condition as it | ||||||
6 | relates to the parent's ability to care for the child; | ||||||
7 | whether the parent is incompetent, incarcerated, absent | ||||||
8 | (with his or her whereabouts unknown), or otherwise unable | ||||||
9 | or unavailable to care for the child; or the parent is | ||||||
10 | deceased;
| ||||||
11 | (I) the child's wishes concerning visitation with the | ||||||
12 | stepparent;
| ||||||
13 | (J) the circumstances that exist concerning the | ||||||
14 | stepparent's care, control, and provision for the welfare | ||||||
15 | of the child prior to the initiation of the petition for | ||||||
16 | visitation; and
| ||||||
17 | (K) other circumstances that exist that show that | ||||||
18 | granting visitation privileges to the stepparent is in the | ||||||
19 | best interests and welfare of the child.
| ||||||
20 | (2)(A) A petition for visitation privileges shall not be | ||||||
21 | filed pursuant
to this subsection (b) by the parents or | ||||||
22 | grandparents of a putative father
if the paternity of the | ||||||
23 | putative father has not been legally established.
| ||||||
24 | (B) A petition for visitation privileges may not be filed | ||||||
25 | under
this subsection (b) if the child who is the subject of | ||||||
26 | the
grandparents' or great-grandparents' petition has been |
| |||||||
| |||||||
1 | voluntarily
surrendered by the parent or parents, except for a | ||||||
2 | surrender to the
Illinois Department of Children and Family | ||||||
3 | Services or a foster care
facility, or has been previously | ||||||
4 | adopted by an individual or individuals
who are not related to | ||||||
5 | the biological parents of the child or is the
subject of a | ||||||
6 | pending adoption petition by an individual or individuals who
| ||||||
7 | are not related to the biological parents of the child.
| ||||||
8 | (3) (Blank).
| ||||||
9 | (c) The court may modify an order granting or denying | ||||||
10 | visitation
rights of a parent whenever modification would serve | ||||||
11 | the best interest of
the child;
but the court shall not | ||||||
12 | restrict a parent's visitation rights unless it
finds that the | ||||||
13 | visitation would endanger seriously the child's physical,
| ||||||
14 | mental, moral or emotional health.
| ||||||
15 | (d) If any court has entered an order prohibiting a | ||||||
16 | non-custodial parent
of a child from any contact with a child
| ||||||
17 | or restricting the non-custodial parent's contact with the | ||||||
18 | child, the
following provisions shall apply:
| ||||||
19 | (1) If an order has been entered granting visitation | ||||||
20 | privileges with the
child to a grandparent or | ||||||
21 | great-grandparent who is related to the child through
the | ||||||
22 | non-custodial parent, the visitation privileges of the | ||||||
23 | grandparent or
great-grandparent may be revoked if:
| ||||||
24 | (i) a court has entered an order prohibiting the | ||||||
25 | non-custodial parent
from any contact with the child, | ||||||
26 | and the grandparent or great-grandparent is
found to |
| |||||||
| |||||||
1 | have used his or her visitation privileges to | ||||||
2 | facilitate contact
between the child and the | ||||||
3 | non-custodial parent; or
| ||||||
4 | (ii) a court has entered an order restricting the | ||||||
5 | non-custodial parent's
contact with the child, and the | ||||||
6 | grandparent or great-grandparent is found to
have used | ||||||
7 | his or her visitation privileges to facilitate contact
| ||||||
8 | between the child and the non-custodial parent in a | ||||||
9 | manner that violates the
terms of the order restricting | ||||||
10 | the non-custodial parent's contact with the
child.
| ||||||
11 | Nothing in this subdivision (1) limits the authority of | ||||||
12 | the court to
enforce its orders in any manner permitted by | ||||||
13 | law.
| ||||||
14 | (2) Any order granting visitation privileges with the | ||||||
15 | child to a
grandparent or great-grandparent who is related | ||||||
16 | to the child through the
non-custodial parent shall contain | ||||||
17 | the following provision:
| ||||||
18 | "If the (grandparent or great-grandparent, whichever | ||||||
19 | is applicable) who has
been granted visitation privileges | ||||||
20 | under this order uses the visitation
privileges to | ||||||
21 | facilitate contact between the child and the child's
| ||||||
22 | non-custodial parent, the visitation privileges granted | ||||||
23 | under this order shall
be permanently revoked."
| ||||||
24 | (e) No parent, not granted custody of the child, or | ||||||
25 | grandparent, or
great-grandparent, or stepparent, or sibling | ||||||
26 | of any minor child, convicted
of any offense
involving an |
| |||||||
| |||||||
1 | illegal sex act perpetrated upon a victim less than 18 years of
| ||||||
2 | age including but not limited to offenses for violations of | ||||||
3 | Article 12 of the
Criminal Code of 1961, is entitled to | ||||||
4 | visitation rights while incarcerated
or while on parole, | ||||||
5 | probation, conditional discharge, periodic
imprisonment, or
| ||||||
6 | mandatory supervised release for that offense, and upon | ||||||
7 | discharge from
incarceration for a misdemeanor offense or upon | ||||||
8 | discharge from parole,
probation, conditional discharge, | ||||||
9 | periodic imprisonment,
or mandatory supervised release for a | ||||||
10 | felony offense, visitation shall be
denied until the person | ||||||
11 | successfully completes a treatment program approved
by the | ||||||
12 | court.
| ||||||
13 | (f) Unless the court determines, after considering all | ||||||
14 | relevant factors,
including but not limited to those set forth | ||||||
15 | in Section 602(a), that it would
be in the best interests of | ||||||
16 | the child to allow visitation, the court shall not
enter an | ||||||
17 | order providing visitation rights and pursuant to a motion to | ||||||
18 | modify
visitation shall revoke visitation rights previously | ||||||
19 | granted to any
person who would otherwise be entitled to | ||||||
20 | petition for visitation rights under
this Section who has been | ||||||
21 | convicted of first degree murder of the parent,
grandparent, | ||||||
22 | great-grandparent, or sibling of the child who is the subject | ||||||
23 | of
the order. Until an order is entered pursuant to this | ||||||
24 | subsection, no person
shall visit, with
the child present, a | ||||||
25 | person who has been convicted of first degree murder of
the | ||||||
26 | parent, grandparent, great-grandparent, or sibling of the |
| |||||||
| |||||||
1 | child
without the consent of the child's parent, other than a | ||||||
2 | parent convicted of
first degree murder as set forth herein, or | ||||||
3 | legal
guardian.
| ||||||
4 | (g) (Blank).
| ||||||
5 | (Source: P.A. 93-911, eff. 1-1-05; 94-229, eff. 1-1-06; | ||||||
6 | 94-1026, eff. 1-1-07 .)
|