Judiciary I - Civil Law Committee
Filed: 3/21/2007
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1 | AMENDMENT TO HOUSE BILL 1978
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2 | AMENDMENT NO. ______. Amend House Bill 1978 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Illinois Marriage and Dissolution of | ||||||
5 | Marriage Act is amended by changing Sections 607 and 609 as | ||||||
6 | follows:
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7 | (750 ILCS 5/607) (from Ch. 40, par. 607)
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8 | Sec. 607. Visitation.
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9 | (a) A parent not granted custody of the child
is entitled | ||||||
10 | to reasonable visitation rights unless the court finds,
after a | ||||||
11 | hearing, that visitation would endanger seriously the child's
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12 | physical, mental, moral or emotional health. If the custodian's | ||||||
13 | street
address is not identified, pursuant to Section 708, the | ||||||
14 | court shall require
the parties to identify reasonable | ||||||
15 | alternative arrangements for visitation
by a non-custodial | ||||||
16 | parent, including but not limited to visitation of the
minor |
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1 | child at the residence of another person or at a local public | ||||||
2 | or
private facility.
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3 | (1) "Visitation" means in-person time spent between a | ||||||
4 | child and the child's parent. In appropriate | ||||||
5 | circumstances, it may include electronic communication | ||||||
6 | under conditions and at times determined by the court. | ||||||
7 | (2) "Electronic communication" means time that a | ||||||
8 | parent spends with his or her child during which the child | ||||||
9 | is not in the parent's actual physical custody, but which | ||||||
10 | is facilitated by the use of communication tools such as | ||||||
11 | the telephone, electronic mail, instant messaging, video | ||||||
12 | conferencing or other wired or wireless technologies via | ||||||
13 | the Internet, or another medium of communication.
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14 | (a-3) Grandparents, great-grandparents, and siblings of a | ||||||
15 | minor child, who is one year old or older, have standing to | ||||||
16 | bring an action in circuit court by petition, requesting | ||||||
17 | visitation in accordance with this Section. The term "sibling" | ||||||
18 | in this Section means a brother, sister, stepbrother, or | ||||||
19 | stepsister of the minor child. Grandparents, | ||||||
20 | great-grandparents, and siblings also have standing to file a | ||||||
21 | petition for visitation and any electronic communication
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22 | rights in a pending dissolution proceeding or any other | ||||||
23 | proceeding that involves custody or visitation issues, | ||||||
24 | requesting visitation in accordance with this Section. A | ||||||
25 | petition for visitation with a child by a person other than a | ||||||
26 | parent must be filed in the county in which the child resides. |
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1 | Nothing in this subsection (a-3) and subsection (a-5) of this | ||||||
2 | Section shall apply to a child in whose interests a petition is | ||||||
3 | pending under Section 2-13 of the Juvenile Court Act of 1987 or | ||||||
4 | a petition to adopt an unrelated child is pending under the | ||||||
5 | Adoption Act. | ||||||
6 | (a-5)(1) Except as otherwise provided in this subsection | ||||||
7 | (a-5), any grandparent, great-grandparent, or sibling may file | ||||||
8 | a
petition for
visitation rights to a minor child if there is | ||||||
9 | an unreasonable denial of visitation by a parent and at least | ||||||
10 | one
of the
following conditions exists: | ||||||
11 | (A) (Blank); | ||||||
12 | (A-5) the child's other parent is deceased or has been | ||||||
13 | missing for at least 3 months. For the purposes of this | ||||||
14 | Section a parent is considered to be missing if the | ||||||
15 | parent's location has not been determined and the parent | ||||||
16 | has been reported as missing to a law enforcement agency;
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17 | (A-10) a parent of the child is incompetent as a matter | ||||||
18 | of law;
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19 | (A-15) a parent has been incarcerated in jail or prison | ||||||
20 | during the 3 month period preceding the filing of the | ||||||
21 | petition;
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22 | (B) the child's mother and father are divorced or have | ||||||
23 | been legally separated from
each other or there is pending | ||||||
24 | a dissolution proceeding involving a parent of the child or | ||||||
25 | another court proceeding involving custody or visitation | ||||||
26 | of the child (other than any adoption proceeding of an |
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1 | unrelated child) and at least one parent does not object to | ||||||
2 | the grandparent, great-grandparent, or sibling having | ||||||
3 | visitation with the child. The visitation of the | ||||||
4 | grandparent, great-grandparent, or sibling must not | ||||||
5 | diminish the visitation of the parent who is not related to | ||||||
6 | the grandparent, great-grandparent, or sibling seeking | ||||||
7 | visitation; | ||||||
8 | (C) (Blank); | ||||||
9 | (D) the child is born out of wedlock, the parents are | ||||||
10 | not living together, and the petitioner is a maternal | ||||||
11 | grandparent, great-grandparent, or sibling of the child | ||||||
12 | born out of wedlock; or | ||||||
13 | (E) the child is born out of wedlock, the parents are | ||||||
14 | not living together, the petitioner is a paternal | ||||||
15 | grandparent, great-grandparent, or sibling, and the | ||||||
16 | paternity has been established by a court of competent | ||||||
17 | jurisdiction. | ||||||
18 | (2) Any visitation rights granted pursuant to this Section | ||||||
19 | before the filing of a petition for adoption of a child shall | ||||||
20 | automatically terminate by operation of law upon the entry of | ||||||
21 | an order terminating parental rights or granting the adoption | ||||||
22 | of the child, whichever is earlier. If the person or persons | ||||||
23 | who adopted the child are related to the child, as defined by | ||||||
24 | Section 1 of the Adoption Act, any person who was related to | ||||||
25 | the child as grandparent, great-grandparent, or sibling prior | ||||||
26 | to the adoption shall have standing to bring an action pursuant |
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1 | to this Section requesting visitation with the child.
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2 | (3) In making a determination under this subsection (a-5), | ||||||
3 | there is a
rebuttable
presumption that a fit parent's actions | ||||||
4 | and decisions regarding grandparent,
great-grandparent, or | ||||||
5 | sibling visitation are not harmful to the child's mental, | ||||||
6 | physical, or emotional health. The
burden is on the
party | ||||||
7 | filing a petition under this Section to prove that the
parent's | ||||||
8 | actions and
decisions regarding visitation times are harmful to | ||||||
9 | the child's mental, physical, or emotional health. | ||||||
10 | (4) In determining whether to grant visitation, the court | ||||||
11 | shall consider the following:
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12 | (A) the preference of the child if the child is | ||||||
13 | determined to be of sufficient maturity to express a | ||||||
14 | preference; | ||||||
15 | (B) the mental and physical health of the child; | ||||||
16 | (C) the mental and physical health of the grandparent, | ||||||
17 | great-grandparent, or sibling; | ||||||
18 | (D) the length and quality of the prior relationship | ||||||
19 | between the child and the grandparent, great-grandparent, | ||||||
20 | or sibling;
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21 | (E) the good faith of the party in filing the petition;
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22 | (F) the good faith of the person denying visitation; | ||||||
23 | (G) the quantity of the visitation time requested and | ||||||
24 | the potential adverse impact that visitation would have on | ||||||
25 | the child's customary activities; | ||||||
26 | (H) whether the child resided with the petitioner for |
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1 | at least
6 consecutive months with or without the current | ||||||
2 | custodian present; | ||||||
3 | (I) whether the petitioner had frequent or regular | ||||||
4 | contact or visitation with the child for at least 12 | ||||||
5 | consecutive months;
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6 | (J) any other fact that establishes that the loss of | ||||||
7 | the relationship between the petitioner and the child is | ||||||
8 | likely to harm the child's mental, physical, or emotional | ||||||
9 | health; and | ||||||
10 | (K) whether the grandparent, great-grandparent, or | ||||||
11 | sibling was a primary caretaker of the child for a period | ||||||
12 | of not less than 6 consecutive months.
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13 | (5) The court may order visitation rights for the | ||||||
14 | grandparent, great-grandparent, or sibling that include | ||||||
15 | reasonable access without requiring overnight or possessory | ||||||
16 | visitation.
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17 | (a-7)(1) Unless by stipulation of the parties, no motion to | ||||||
18 | modify a grandparent, great-grandparent, or sibling visitation | ||||||
19 | order may be made earlier than 2 years after the date the order | ||||||
20 | was filed, unless the court permits it to be made on the basis | ||||||
21 | of affidavits that there is reason to believe the child's | ||||||
22 | present environment may endanger seriously the child's mental, | ||||||
23 | physical, or emotional health. | ||||||
24 | (2) The court shall not modify an order that grants | ||||||
25 | visitation to a grandparent, great-grandparent, or sibling | ||||||
26 | unless it finds by clear and convincing evidence, upon the |
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1 | basis of facts that have arisen since the prior visitation | ||||||
2 | order or that were unknown to the court at the time of entry of | ||||||
3 | the prior visitation, that a change has occurred in the | ||||||
4 | circumstances of the child or his or her custodian, and that | ||||||
5 | the modification is necessary to protect the mental, physical, | ||||||
6 | or emotional health of the child. The court shall state in its | ||||||
7 | decision specific findings of fact in support of its | ||||||
8 | modification or termination of the grandparent, | ||||||
9 | great-grandparent, or sibling visitation. A child's parent may | ||||||
10 | always petition to modify visitation upon changed | ||||||
11 | circumstances when necessary to promote the child's best | ||||||
12 | interest. | ||||||
13 | (3) Attorney fees and costs shall be assessed against a | ||||||
14 | party seeking modification of the visitation order if the court | ||||||
15 | finds that the modification action is vexatious and constitutes | ||||||
16 | harassment. | ||||||
17 | (4) Notice under this subsection (a-7) shall be given as | ||||||
18 | provided in subsections (c) and (d) of Section 601.
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19 | (b) (1) (Blank.)
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20 | (1.5) The Court may grant reasonable visitation privileges | ||||||
21 | to a stepparent
upon petition to the court by the stepparent, | ||||||
22 | with notice to the parties
required to be notified under | ||||||
23 | Section 601 of this Act, if the court determines
that it is in | ||||||
24 | the best interests and welfare of the child, and may issue any
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25 | necessary orders to enforce those visitation privileges.
A | ||||||
26 | petition for visitation privileges may be filed under this |
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1 | paragraph (1.5)
whether or not a petition pursuant to this Act | ||||||
2 | has been previously filed or is
currently pending if the | ||||||
3 | following
circumstances are met:
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4 | (A) the child is at least 12 years old;
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5 | (B) the child resided continuously with the parent and | ||||||
6 | stepparent for at
least 5 years;
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7 | (C) the parent is deceased or is disabled and is unable | ||||||
8 | to care for the
child;
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9 | (D) the child wishes to have reasonable visitation with | ||||||
10 | the stepparent;
and
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11 | (E) the stepparent was providing for the care, control, | ||||||
12 | and welfare to the
child prior to the initiation of the | ||||||
13 | petition for visitation.
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14 | (2)(A) A petition for visitation privileges shall not be | ||||||
15 | filed pursuant
to this subsection (b) by the parents or | ||||||
16 | grandparents of a putative father
if the paternity of the | ||||||
17 | putative father has not been legally established.
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18 | (B) A petition for visitation privileges may not be filed | ||||||
19 | under
this subsection (b) if the child who is the subject of | ||||||
20 | the
grandparents' or great-grandparents' petition has been | ||||||
21 | voluntarily
surrendered by the parent or parents, except for a | ||||||
22 | surrender to the
Illinois Department of Children and Family | ||||||
23 | Services or a foster care
facility, or has been previously | ||||||
24 | adopted by an individual or individuals
who are not related to | ||||||
25 | the biological parents of the child or is the
subject of a | ||||||
26 | pending adoption petition by an individual or individuals who
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1 | are not related to the biological parents of the child.
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2 | (3) (Blank).
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3 | (c) The court may modify an order granting or denying | ||||||
4 | visitation
rights of a parent whenever modification would serve | ||||||
5 | the best interest of
the child;
but the court shall not | ||||||
6 | restrict a parent's visitation rights unless it
finds that the | ||||||
7 | visitation would endanger seriously the child's physical,
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8 | mental, moral or emotional health.
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9 | (d) If any court has entered an order prohibiting a | ||||||
10 | non-custodial parent
of a child from any contact with a child
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11 | or restricting the non-custodial parent's contact with the | ||||||
12 | child, the
following provisions shall apply:
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13 | (1) If an order has been entered granting visitation | ||||||
14 | privileges with the
child to a grandparent or | ||||||
15 | great-grandparent who is related to the child through
the | ||||||
16 | non-custodial parent, the visitation privileges of the | ||||||
17 | grandparent or
great-grandparent may be revoked if:
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18 | (i) a court has entered an order prohibiting the | ||||||
19 | non-custodial parent
from any contact with the child, | ||||||
20 | and the grandparent or great-grandparent is
found to | ||||||
21 | have used his or her visitation privileges to | ||||||
22 | facilitate contact
between the child and the | ||||||
23 | non-custodial parent; or
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24 | (ii) a court has entered an order restricting the | ||||||
25 | non-custodial parent's
contact with the child, and the | ||||||
26 | grandparent or great-grandparent is found to
have used |
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1 | his or her visitation privileges to facilitate contact
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2 | between the child and the non-custodial parent in a | ||||||
3 | manner that violates the
terms of the order restricting | ||||||
4 | the non-custodial parent's contact with the
child.
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5 | Nothing in this subdivision (1) limits the authority of | ||||||
6 | the court to
enforce its orders in any manner permitted by | ||||||
7 | law.
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8 | (2) Any order granting visitation privileges with the | ||||||
9 | child to a
grandparent or great-grandparent who is related | ||||||
10 | to the child through the
non-custodial parent shall contain | ||||||
11 | the following provision:
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12 | "If the (grandparent or great-grandparent, whichever | ||||||
13 | is applicable) who has
been granted visitation privileges | ||||||
14 | under this order uses the visitation
privileges to | ||||||
15 | facilitate contact between the child and the child's
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16 | non-custodial parent, the visitation privileges granted | ||||||
17 | under this order shall
be permanently revoked."
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18 | (e) No parent, not granted custody of the child, or | ||||||
19 | grandparent, or
great-grandparent, or stepparent, or sibling | ||||||
20 | of any minor child, convicted
of any offense
involving an | ||||||
21 | illegal sex act perpetrated upon a victim less than 18 years of
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22 | age including but not limited to offenses for violations of | ||||||
23 | Article 12 of the
Criminal Code of 1961, is entitled to | ||||||
24 | visitation rights while incarcerated
or while on parole, | ||||||
25 | probation, conditional discharge, periodic
imprisonment, or
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26 | mandatory supervised release for that offense, and upon |
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1 | discharge from
incarceration for a misdemeanor offense or upon | ||||||
2 | discharge from parole,
probation, conditional discharge, | ||||||
3 | periodic imprisonment,
or mandatory supervised release for a | ||||||
4 | felony offense, visitation shall be
denied until the person | ||||||
5 | successfully completes a treatment program approved
by the | ||||||
6 | court.
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7 | (f) Unless the court determines, after considering all | ||||||
8 | relevant factors,
including but not limited to those set forth | ||||||
9 | in Section 602(a), that it would
be in the best interests of | ||||||
10 | the child to allow visitation, the court shall not
enter an | ||||||
11 | order providing visitation rights and pursuant to a motion to | ||||||
12 | modify
visitation shall revoke visitation rights previously | ||||||
13 | granted to any
person who would otherwise be entitled to | ||||||
14 | petition for visitation rights under
this Section who has been | ||||||
15 | convicted of first degree murder of the parent,
grandparent, | ||||||
16 | great-grandparent, or sibling of the child who is the subject | ||||||
17 | of
the order. Until an order is entered pursuant to this | ||||||
18 | subsection, no person
shall visit, with
the child present, a | ||||||
19 | person who has been convicted of first degree murder of
the | ||||||
20 | parent, grandparent, great-grandparent, or sibling of the | ||||||
21 | child
without the consent of the child's parent, other than a | ||||||
22 | parent convicted of
first degree murder as set forth herein, or | ||||||
23 | legal
guardian.
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24 | (g) (Blank).
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25 | (Source: P.A. 93-911, eff. 1-1-05; 94-229, eff. 1-1-06; | ||||||
26 | 94-1026, eff. 1-1-07 .)
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1 | (750 ILCS 5/609) (from Ch. 40, par. 609)
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2 | Sec. 609. Leave to Remove Children.) | ||||||
3 | (a) The court may grant leave, before
or after judgment, to | ||||||
4 | any party having custody of any minor child or children
to | ||||||
5 | remove such child or children from Illinois whenever such | ||||||
6 | approval is
in the best interests of such child or children. | ||||||
7 | The burden of proving that
such removal is in the best | ||||||
8 | interests of such child or children is on the
party seeking the | ||||||
9 | removal. When such removal is permitted, the court may
require | ||||||
10 | the party removing such child or children from Illinois
to give | ||||||
11 | reasonable security guaranteeing the return of such children.
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12 | (b) Before a minor child is temporarily removed from | ||||||
13 | Illinois, the
parent responsible for the removal shall inform | ||||||
14 | the other parent, or the
other parent's attorney, of the | ||||||
15 | address and telephone number where the
child may be reached | ||||||
16 | during the period of temporary removal, and the date
on which | ||||||
17 | the child shall return to Illinois.
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18 | (c) The court may not use the availability of electronic | ||||||
19 | communication as a factor in support of a removal of a child by | ||||||
20 | the custodial parent from Illinois. | ||||||
21 | The State of Illinois retains jurisdiction when the minor | ||||||
22 | child is
absent from the State pursuant to this subsection.
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23 | (Source: P.A. 85-768.)".
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