HB3486 95TH GENERAL ASSEMBLY

LRB095 10239 AJO 30453 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB3486

Introduced 2/28/2007, by Rep. Paul D. Froehlich

SYNOPSIS AS INTRODUCED:

750 ILCS 5/607	from Ch. 40, par. 607
750 ILCS 5/609	from Ch. 40, par. 609

Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that upon motion by either parent, the court may grant a reasonable amount of electronic communication at reasonable hours to a parent at times during which the child is not in the parent's physical custody. Sets forth provisions governing such electronic communication. Provides that the court may not use the availability of electronic communication as a factor in support of the request of a custodial parent to remove a child from the area or the State, and that the parent seeking removal shall be responsible for the costs of providing any court ordered electronic communication equipment. Effective immediately.

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 607 and 609 as follows:

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

Sec. 607. Visitation; electronic communication.

(a) In this Section:

"Visitation" means the in-person time spent between a child and the child's parent, including any electronic communication.

"Electronic communication" means time that a parent spends with his or her child during which the child is not in the parent's actual physical custody, but which is facilitated by the use of communication tools, including without limitation the telephone, a webcam, electronic mail (e-mail), instant messaging, video conferencing, or other wired or wireless technologies via the Internet or another medium of communication.

(a-1) (a) A parent not granted custody of the child is entitled to reasonable visitation and electronic communication rights unless the court finds, after a hearing, that visitation or electronic communication 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 and electronic communication by a non-custodial parent, including, but not limited to, visitation and electronic communication of the minor child at the residence of another person or at a local public or private facility.

(a-2) Upon motion by either parent, the court may grant a reasonable amount of electronic communication at reasonable hours to a parent at times during which the child is not in the parent's physical custody. If a court enters an order that includes electronic communication with the child, each of the following provisions shall apply:

(1) Electronic communication may not be used as a replacement or as a substitute for a parent's in-person visitation time with the child.

(2) The court may not use the availability of electronic communication as a factor in support of a modification of a physical custody or visitation order.

(3) The court shall determine the equipment that is available to the parties for the purposes of electronic communication and may order either party to obtain the necessary equipment for the facilitation of electronic communication and, except as provided in Section 609 of this Act, determine which party shall be responsible for the costs of acquiring such equipment.

(4) Any supervised visitation shall include any electronic visitation between a child and the supervised parent.

(5) Each parent shall furnish the other parent with the e-mail address and any other electronic communication access information of the child and any change in the e-mail address or other electronic communication access information within 48 hours of the change.

(6) Each parent shall permit and encourage, at reasonable hours and for a reasonable duration, reasonable and uncensored electronic communication if the equipment to facilitate such communication is reasonably available. If the parties cannot reach an agreement as to whether or not the equipment is reasonably available, the court shall make that determination. In making such determination, the court shall consider each of the following factors:

(1) The best interests of the child.

(2) Each parent's ability to pay any additional expenses for the facilitation of electronic communication.

(3) Any other factors the court considers material.

(a-3) Grandparents, great-grandparents, and siblings of a minor child, who is one year old or older, have standing to bring an action in circuit court by petition, requesting visitation in accordance with this Section. The term "sibling" in this Section means a brother, sister, stepbrother, or stepsister of the minor child. Grandparents, great-grandparents, and siblings also have standing to file a petition for visitation rights in a pending dissolution proceeding or any other proceeding that involves custody or visitation issues, requesting visitation in accordance with this Section. A petition for visitation with a child by a person other than a parent must be filed in the county in which the child resides. Nothing in this subsection (a-3) and subsection (a-5) of this Section shall apply to a child in whose interests a petition is pending under Section 2-13 of the Juvenile Court Act of 1987 or a petition to adopt an unrelated child is pending under the Adoption Act.

(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) (Blank);

(A-5) the child's other parent is deceased or has been missing for at least 3 months. For the purposes of this Section a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency;

(A-10) a parent of the child is incompetent as a matter of law;

(A-15) a parent has been incarcerated in jail or prison during the 3 month period preceding the filing of the petition;

(B) the child's mother and father are divorced or have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving custody or visitation of the child (other than any adoption proceeding of an unrelated child) 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) (Blank);

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

(E) the child is born out of wedlock, 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) Any visitation rights granted pursuant to this Section before the filing of a petition for adoption of a child shall automatically terminate by operation of law upon the entry of an order terminating parental rights or granting the adoption of the child, whichever is earlier. If the person or persons who adopted the child are related to the child, as defined by Section 1 of the Adoption Act, any person who was related to the child as grandparent, great-grandparent, or sibling prior to the adoption shall have standing to bring an action pursuant to this Section requesting visitation with the child.

(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 or visitation with the child for at least 12 consecutive months;

(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; and

(K) whether the grandparent, great-grandparent, or sibling was a primary caretaker of the child for a period of not less than 6 consecutive months.

(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 an order that grants visitation to a grandparent, great-grandparent, or sibling 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. A child's parent may always petition to modify visitation upon changed circumstances when necessary to promote the child's best interest.

(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.

(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) (Blank).

(Source: P.A. 93-911, eff. 1-1-05; 94-229, eff. 1-1-06; 94-1026, eff. 1-1-07.)

(750 ILCS 5/609) (from Ch. 40, par. 609)

Sec. 609. Leave to Remove Children.) (a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.

(b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal shall inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.

The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection.

(c) The court may not use the availability of electronic communication as a factor in support of the request of a custodial parent to remove a child from the area or the State.

(d) The parent seeking removal shall be responsible for the costs of providing any court ordered electronic communication equipment.

(e) In this Section, "electronic communication" has the meaning given to that term in Section 607 of this Act.

(Source: P.A. 85-768.)

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