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1 | AN ACT concerning civil law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Illinois Marriage and Dissolution of | |||||||||||||||||||||||||||||||||||
5 | Marriage Act is amended by changing Section 601 as follows:
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6 | (750 ILCS 5/601) (from Ch. 40, par. 601)
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7 | Sec. 601. Jurisdiction; Commencement of Proceeding.
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8 | (a) A court of this State competent to decide child custody | |||||||||||||||||||||||||||||||||||
9 | matters has
jurisdiction to make a child custody determination | |||||||||||||||||||||||||||||||||||
10 | in original or modification
proceedings as provided in Section | |||||||||||||||||||||||||||||||||||
11 | 201 of the Uniform
Child-Custody Jurisdiction and Enforcement | |||||||||||||||||||||||||||||||||||
12 | Act as
adopted by this State.
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13 | (b) A child custody proceeding is commenced in the court:
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14 | (1) by a biological, adoptive or intended parent only , | |||||||||||||||||||||||||||||||||||
15 | by filing a petition:
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16 | (i) for dissolution of marriage or legal | |||||||||||||||||||||||||||||||||||
17 | separation or declaration
of invalidity of marriage; | |||||||||||||||||||||||||||||||||||
18 | or
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19 | (ii) for custody of the child, in the county in | |||||||||||||||||||||||||||||||||||
20 | which he is
permanently resident or found . ;
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21 | (b-5) A person is an "intended parent" if he or she: | |||||||||||||||||||||||||||||||||||
22 | (1) is not a biological or adoptive parent to the | |||||||||||||||||||||||||||||||||||
23 | child; and |
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1 | (2) is or was in a committed intimate relationship with | ||||||
2 | a child's custodial parent; and | ||||||
3 | (3) lives or lived with the minor child and the child's | ||||||
4 | custodial parent for no less than 2 consecutive years, | ||||||
5 | within no more than 6 months prior to the filing of the | ||||||
6 | petition for custody; and | ||||||
7 | (4) together with the child's custodial parent, held | ||||||
8 | himself or herself out to the community and to the child as | ||||||
9 | the child's parent. | ||||||
10 | A person shall not be deemed an intended parent if: (i) the | ||||||
11 | child's non-custodial parent had contact with the child | ||||||
12 | affirming his or her parental status during the period of | ||||||
13 | cohabitation between the petitioner and the child's custodial | ||||||
14 | parent; or (ii) the non-custodial parent proves that the | ||||||
15 | custodial parent intentionally concealed the child from the | ||||||
16 | non-custodial parent, preventing contact affirming parental | ||||||
17 | status during the period of cohabitation between the petitioner | ||||||
18 | and the child's custodial parent. For purposes of this | ||||||
19 | provision, a parent's regular payment of child support shall be | ||||||
20 | considered contact with the child affirming his or her parental | ||||||
21 | status.
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22 | (2) by a person other than a parent, by filing a | ||||||
23 | petition for
custody of the child in the county in which he | ||||||
24 | is permanently resident
or found, but only if he is not in | ||||||
25 | the physical custody of one of his
parents; or
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26 | (3) by a stepparent, by filing a petition, if all of |
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1 | the following
circumstances are met:
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2 | (A) the child is at least 12 years old;
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3 | (B) the custodial parent and stepparent were | ||||||
4 | married for at least 5
years during which the child | ||||||
5 | resided with the parent and stepparent;
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6 | (C) the custodial parent is deceased or is disabled | ||||||
7 | and cannot perform
the duties of a parent to the child;
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8 | (D) the stepparent provided for the care, control, | ||||||
9 | and welfare to the
child prior to the initiation of | ||||||
10 | custody proceedings;
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11 | (E) the child wishes to live with the stepparent; | ||||||
12 | and
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13 | (F) it is alleged to be in the best interests and | ||||||
14 | welfare of the
child to live with the stepparent as | ||||||
15 | provided in Section 602 of this Act. | ||||||
16 | (4) When one of the parents is deceased, by a | ||||||
17 | grandparent who is a parent or stepparent of a deceased | ||||||
18 | parent, by filing a petition, if one or more of the | ||||||
19 | following existed at the time of the parent's death: | ||||||
20 | (A) the surviving parent had been absent from the | ||||||
21 | marital abode for more than one month without the | ||||||
22 | deceased spouse knowing his or her whereabouts; | ||||||
23 | (B) the surviving parent was in State or federal | ||||||
24 | custody; or | ||||||
25 | (C) the surviving parent had: (i) received | ||||||
26 | supervision for or been convicted of any violation of |
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1 | Article 12 of the Criminal Code of 1961 directed | ||||||
2 | towards the deceased parent or the child; or (ii) | ||||||
3 | received supervision or been convicted of violating an | ||||||
4 | order of protection entered under Section 217, 218, or | ||||||
5 | 219 of the Illinois Domestic Violence Act of 1986 for | ||||||
6 | the protection of the deceased parent or the child.
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7 | (c) Notice of a child custody proceeding, including an | ||||||
8 | action
for modification of a previous custody order, shall be | ||||||
9 | given to each of the
child's biological, adoptive, and intended
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10 | parents and to the child's , guardian , if any
and custodian , who | ||||||
11 | may appear, be heard, and
file a responsive pleading. The | ||||||
12 | court, upon showing of good cause, may
permit intervention of | ||||||
13 | other interested parties.
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14 | (d) Proceedings for modification of a previous custody | ||||||
15 | order
commenced more than 30 days following the entry of a | ||||||
16 | previous custody order
must be initiated by serving a written | ||||||
17 | notice and a copy of the petition
for modification upon the | ||||||
18 | child's biological, adoptive, and intended parent and upon the | ||||||
19 | child's , guardian , if any,
and custodian at least
30 days prior | ||||||
20 | to hearing on the petition. Nothing in this Section shall
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21 | preclude a party in custody modification proceedings from | ||||||
22 | moving for a
temporary order under Section 603 of this Act.
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23 | (e) (Blank). | ||||||
24 | (f) The court shall, at the court's discretion or upon the | ||||||
25 | request of any party entitled to petition for custody of the | ||||||
26 | child, appoint a guardian ad litem , attorney for the minor |
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1 | child, or child's representative, to represent the best | ||||||
2 | interest of the child for the duration of the custody | ||||||
3 | proceeding or for any modifications of any custody orders | ||||||
4 | entered. Nothing in this Section shall be construed to prevent | ||||||
5 | the court from appointing the same guardian ad litem for 2 or | ||||||
6 | more children that are siblings or half-siblings.
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7 | (Source: P.A. 93-108, eff. 1-1-04; 93-1026, eff. 1-1-05.)
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8 | Section 10. The Probate Act of 1975 is amended by changing | ||||||
9 | Sections 11-5 and 11-7 and by adding Sections 11-3.1, 11-10.2, | ||||||
10 | 11-10.3, 11-10.4, 11-10.5, and 11-10.6 as follows: | ||||||
11 | (755 ILCS 5/11-3.1 new) | ||||||
12 | Sec. 11-3.1. Standing to file for guardianship of the | ||||||
13 | person of a minor. Any person who is interested in caring for a | ||||||
14 | minor while the minor's parents are unfit to make and carry out | ||||||
15 | day-to-day decisions for the minor has standing to file a | ||||||
16 | petition for guardianship of the person of the minor.
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17 | (755 ILCS 5/11-5) (from Ch. 110 1/2, par. 11-5)
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18 | Sec. 11-5. Appointment of guardian.
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19 | (a) Upon the filing of a petition for the appointment of a | ||||||
20 | guardian or on
its own motion, the court may appoint a guardian | ||||||
21 | of the estate or of both the
person and estate, of a minor, or | ||||||
22 | may appoint a guardian of the person only of
a minor or minors, | ||||||
23 | as the court finds to be in the best interest of the minor
or |
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1 | minors.
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2 | (a-1) A parent, adoptive parent or adjudicated parent, | ||||||
3 | whose parental rights
have not been terminated, may designate | ||||||
4 | in any writing, including a will, a
person qualified to act | ||||||
5 | under Section 11-3 to be appointed as guardian of
the person or | ||||||
6 | estate, or both, of an unmarried minor or of a child likely to | ||||||
7 | be
born. A parent, adoptive parent or adjudicated parent, whose | ||||||
8 | parental rights
have not been terminated, or a guardian or a | ||||||
9 | standby guardian of an unmarried
minor or of a child likely to | ||||||
10 | be born may designate in any writing, including a
will, a | ||||||
11 | person qualified to act under Section 11-3 to be appointed as | ||||||
12 | successor
guardian of the minor's person or estate, or both. | ||||||
13 | The designation must be
witnessed by 2 or more credible | ||||||
14 | witnesses at least 18 years of age, neither of
whom is the | ||||||
15 | person designated as the guardian. The designation may be | ||||||
16 | proved
by any competent evidence. If the designation is | ||||||
17 | executed and attested in the
same manner as a will, it shall | ||||||
18 | have prima facie validity. The designation of a
guardian or | ||||||
19 | successor guardian does not affect the rights of the other | ||||||
20 | parent
in the minor.
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21 | (b) The court lacks jurisdiction to proceed on a petition | ||||||
22 | for the
appointment of a guardian of a minor if (i) the minor | ||||||
23 | has a living biological, adoptive, or intended parent ,
adoptive | ||||||
24 | parent or adjudicated parent, whose parental rights have not | ||||||
25 | been
terminated, whose whereabouts are known, and who is | ||||||
26 | willing and able to make
and carry out day-to-day child care |
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1 | decisions concerning the minor ; , unless the
parent or parents | ||||||
2 | consent to the appointment or, after receiving notice of the
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3 | hearing under Section 11-10.1, fail to object to the | ||||||
4 | appointment at the
hearing on the petition or (ii) there is | ||||||
5 | already a guardian for the minor appointed by
a court of | ||||||
6 | competent jurisdiction. There shall be a rebuttable | ||||||
7 | presumption
that a parent of a minor is willing and able to | ||||||
8 | make and carry out
day-to-day child care decisions concerning | ||||||
9 | the minor, but the presumption may
be rebutted by a | ||||||
10 | preponderance of the evidence.
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11 | The term "intended parent" shall have the same meaning as | ||||||
12 | in subsection (b-5) of Section 601 of the Illinois Marriage and | ||||||
13 | Dissolution of Marriage Act.
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14 | (b-1) If the court finds the appointment of a guardian of | ||||||
15 | the minor to be
in the best interest of the minor, and if a | ||||||
16 | standby guardian has previously
been appointed for the minor | ||||||
17 | under Section 11-5.3, the court shall appoint the
standby | ||||||
18 | guardian as the guardian of the person or estate, or both, of | ||||||
19 | the minor
unless the court finds, upon good cause shown, that | ||||||
20 | the appointment would no
longer be in the best interest of the | ||||||
21 | minor.
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22 | (c) If the minor is 14 years of age or more, the minor may | ||||||
23 | nominate the
guardian of the minor's person and estate, subject | ||||||
24 | to approval of the court. If
the minor's nominee is not | ||||||
25 | approved by the court or if, after notice to the minor, the | ||||||
26 | minor fails to nominate a
guardian of the minor's person or |
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1 | estate, the court may appoint the guardian
without nomination.
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2 | (d) The court shall not appoint as guardian of the person | ||||||
3 | of the minor any
person whom the court has determined had | ||||||
4 | caused or substantially contributed to
the minor becoming a | ||||||
5 | neglected or abused minor as defined in the Juvenile Court
Act | ||||||
6 | of 1987 unless 2 years have elapsed since the last proven | ||||||
7 | incident of abuse
or neglect and the court determines that | ||||||
8 | appointment of such person as guardian
is in the best interests | ||||||
9 | of the minor.
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10 | (e) Previous statements made by the minor relating to any | ||||||
11 | allegations
that the minor is an abused or neglected child | ||||||
12 | within the meaning of the
Abused and Neglected Child Reporting | ||||||
13 | Act, or an abused or neglected minor
within the meaning of the | ||||||
14 | Juvenile Court Act of 1987, shall be admissible
in evidence in | ||||||
15 | a hearing concerning appointment of a guardian of the person
or | ||||||
16 | estate of the minor. No such statement, however, if | ||||||
17 | uncorroborated and
not subject to cross-examination, shall be | ||||||
18 | sufficient in itself to support
a finding of abuse or neglect.
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19 | (Source: P.A. 90-430, eff. 8-16-97; 90-472, eff. 8-17-97; | ||||||
20 | 90-796, eff. 12-15-98.)
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21 | (755 ILCS 5/11-7) (from Ch. 110 1/2, par. 11-7)
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22 | Sec. 11-7. Superior parental
Parental right to custody.) If | ||||||
23 | the biological, adoptive, and intended
both
parents of a minor | ||||||
24 | are living and are competent to transact their own
business and | ||||||
25 | are fit persons, they are entitled to the custody
of the person |
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1 | of the minor and the direction of his education as against all | ||||||
2 | non-parents .
If one parent is dead and a
the surviving parent | ||||||
3 | is competent to
transact his own business and is a fit person, | ||||||
4 | he is similarly
entitled. The parents have equal powers, rights | ||||||
5 | and duties
concerning the minor in the absence of a court order | ||||||
6 | directing otherwise . If the parents live apart, the court for
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7 | good reason may award the custody and education of the minor
to | ||||||
8 | either parent or to some other person.
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9 | (Source: P.A. 79-328.)
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10 | (755 ILCS 5/11-10.2 new) | ||||||
11 | Sec. 11-10.2. Standard for appointing guardian of the | ||||||
12 | person. The court may appoint a petitioner as guardian of the | ||||||
13 | person of a minor if the court finds that the petitioner meets | ||||||
14 | the qualifications set forth in Section 11-3 of this Act and: | ||||||
15 | (1) the petitioner has exercised due diligence in | ||||||
16 | giving notice of the pendency of the petition to the | ||||||
17 | minor's biological, adoptive, and intended parents, if | ||||||
18 | any; | ||||||
19 | (2) the minor's biological, adoptive, and intended | ||||||
20 | parents have either (a) consented in writing or in open | ||||||
21 | court to the petition for guardianship; or (b) failed to | ||||||
22 | object after having been given notice of the pendency of | ||||||
23 | the proceedings; or (c) been proven by the petitioner, | ||||||
24 | following a hearing, to be unfit to care for the minor; | ||||||
25 | (3) the petitioner is able and willing to make and |
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1 | carry out day-to-day decisions for the minor; and | ||||||
2 | (4) the petitioner is able and willing to meet the | ||||||
3 | other obligations of a guardian of the person of the minor. | ||||||
4 | (755 ILCS 5/11-10.3 new) | ||||||
5 | Sec. 11-10.3. Rights and obligation of guardian of the | ||||||
6 | person. A person who has been appointed guardian of the person | ||||||
7 | of a minor has the right and the obligation to make and carry | ||||||
8 | out necessary and appropriate day-to-day decisions for the | ||||||
9 | minor, including enrolling the minor in school and authorizing | ||||||
10 | medical care for the minor. The guardian of the person of a | ||||||
11 | minor has the obligation to foster a positive relationship | ||||||
12 | between the minor and the minor's biological, adoptive, and | ||||||
13 | intended parents, including facilitating visitation between | ||||||
14 | the minor and his or her parents, unless a court order provides | ||||||
15 | otherwise. | ||||||
16 | (755 ILCS 5/11-10.4 new) | ||||||
17 | Sec. 11-10.4. Duration of guardianship. Once the court has | ||||||
18 | appointed a person to be guardian of the person of a minor, the | ||||||
19 | guardian shall remain the minor's guardian throughout the | ||||||
20 | minor's minority, unless a successor guardian of the person is | ||||||
21 | appointed, subject to the rights of the minor's biological, | ||||||
22 | adoptive, and intended parents to seek vacation or termination | ||||||
23 | of the guardianship. |
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1 | (755 ILCS 5/11-10.5 new) | ||||||
2 | Sec. 11-10.5. Vacating a guardianship of the person of a | ||||||
3 | minor. Upon motion by a minor's biological, adoptive, or | ||||||
4 | intended parent, if the court finds that a guardian of the | ||||||
5 | person of a minor failed to give proper notice of the pendency | ||||||
6 | of the petition for guardianship to the minor's biological, | ||||||
7 | adoptive, or intended parents, when the petitioner knew or | ||||||
8 | should have known of the existence and whereabouts of the | ||||||
9 | minor's biological, adoptive, or intended parents, the court | ||||||
10 | shall vacate the guardianship and order the return of the minor | ||||||
11 | to the custody of the minor's biological, adoptive, or intended | ||||||
12 | parent. | ||||||
13 | (755 ILCS 5/11-10.6 new) | ||||||
14 | Sec. 11-10.6. Termination of guardianship of the person of | ||||||
15 | a minor. A minor's biological, adoptive, and intended parents | ||||||
16 | may petition the court to terminate a guardianship of the | ||||||
17 | person of his or her or their minor child whenever there has | ||||||
18 | been a substantial change in the parent's circumstances since | ||||||
19 | the petition for guardianship was granted. Except as otherwise | ||||||
20 | provided herein, if the court finds that there has been a | ||||||
21 | substantial change in the parent's circumstances since the | ||||||
22 | petition for guardianship was granted, the court shall | ||||||
23 | terminate the guardianship of the person of the minor and order | ||||||
24 | the return of the minor to the custody of the minor's | ||||||
25 | biological, adoptive, or intended parent, unless the guardian |
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1 | of the person of the minor meets his or her burden of proving | ||||||
2 | to the court that the parent petitioning to terminate the | ||||||
3 | guardianship remains unfit to care for the minor. If a period | ||||||
4 | of more than 5 years, or half the minor's lifetime, whichever | ||||||
5 | is shorter, has passed since the petition for guardianship of | ||||||
6 | the person of the minor was granted, then the standard for | ||||||
7 | terminating the guardianship shall be whether it is in the | ||||||
8 | minor's best interest to terminate the guardianship.
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9 | Section 99. Effective date. This Act takes effect January | ||||||
10 | 1, 2008.
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