HB4357 94TH GENERAL ASSEMBLY

LRB094 15974 AJO 51205 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB4357

Introduced 1/3/2006, by Rep. Patricia Reid Lindner

SYNOPSIS AS INTRODUCED:

750 ILCS 5/607

from Ch. 40, par. 607

Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that grandparents, great-grandparents, and siblings of a minor child may petition the court for visitation, provided that the petition must be filed in the county in which the child resides. Provides that a petition may be filed when the custodial parent denies visitation and the other parent is dead, missing for 3 months or more, incompetent, or incarcerated for 3 months preceding the filing of a petition. Provides that any visitation granted under this Section ends by operation of law if the child is adopted however, if one natural parent is dead and the surviving spouse remarries, a subsequent adoption will not terminate visitation granted by a court to parents of the deceased parent. Provides that a petitioner who seeks to overcome the presumption that a parent's actions regarding visitation by the grandparent, great-grandparent, or sibling are not harmful to the child's health may do so by proof that the child had a significant relationship with the petitioner that, once lost, will cause harm to the child or the petitioner was the primary caregiver of the child. Describes significant existing relationship with a grandchild. A grandparent is not required to present expert testimony to prove the existence of a significant existing relationship between the child and the grandparent. The court may apply a reasonable person standard to determine whether there is a significant relationship between the child and the grandparent, or that the loss of the relationship between the child and the grandparent is likely to cause severe emotional harm to the child. Provides that a child's parent may always file a petition to modify visitation upon changed circumstances. Deletes provision that grandparent visitation subsection does not apply to a child who is the subject of a pending juvenile court case. Deletes provision that bars any petition for visitation after adoption.

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 Section 607 as follows:

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

Sec. 607. Visitation.

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

(a-3) Grandparents, great-grandparents, and siblings of a minor child have standing to bring an action in circuit court by petition, requesting visitation in accordance with this Section. Grandparents, great-grandparents, and siblings of a minor child also have standing to file a petition for visitation rights in a pending dissolution proceeding or any other proceeding that involves custody and 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 subsection (a-5) of this Section shall apply to a child in whose interests a petition under Section 2-13 of the Juvenile Court Act of 1987 is pending.

(a-5)(1) Except as otherwise provided in this subsection (a-5), any grandparent, great-grandparent, or sibling of a minor child 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); one parent of the child is incompetent as a matter of law or deceased or has been sentenced to a period of imprisonment for more than 1 year;

(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; or

(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 during the 3 month period prior to the filing of the petition 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) the court, other than a Juvenile Court, has terminated a parent-child relationship and the grandparent, great-grandparent, or sibling of the minor child is the parent of the person whose parental rights have been terminated, except in cases of adoption. The visitation must not be used to allow the parent who lost parental rights to unlawfully visit with the child;

(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) If a person other than a blood relative of the child or a stepparent adopts a child, any visitation rights granted pursuant to this Section before the adoption of the child shall automatically end by operation of law upon the adoption of the child. If one natural parent is deceased and the surviving natural parent remarries, any subsequent adoption proceedings may not terminate any court-granted grandparental rights belonging to the parents of the deceased natural parent, unless the termination of visitation rights is ordered by the court having jurisdiction over the adoption after an opportunity to be heard, and the court determines it to be in the best interest of the child to terminate or modify such visitation The grandparent, great-grandparent, or sibling of a parent whose parental rights have been terminated through an adoption proceeding may not petition for visitation rights.

(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. A finding of substantial harm may be based upon cessation of the relationship between a minor child and the child's grandparent, great-grandparent, or the child's sibling if the court determines, upon proper proof, that:

(A) The child had such a significant existing relationship with the grandparent, great-grandparent or the child's sibling that loss of the relationship is likely to occasion severe emotional harm to the child;

(B) The grandparent, great-grandparent or the child's sibling functioned as a primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or

(C) The child had a significant existing relationship with the grandparent, great-grandparent or the child's sibling and loss of the relationship presents the danger of other direct and substantial harm to the child.

(3a) For purposes of this Section, a grandparent, great-grandparent or the child's sibling shall be deemed to have a significant existing relationship with a grandchild if:

(A) The child resided with the grandparent or great-grandparent for at least 6 consecutive months;

(B) The grandparent or great-grandparent was a full-time caretaker of the child for a period of not less than 6 consecutive months; or

(C) The grandparent, great-grandparent or sibling of the child had frequent visitation with the child who is the subject of the suit for a period of not less than one year.

(3b) A grandparent is not required to present the testimony or affidavit of an expert witness in order to establish a significant existing relationship with a grandchild or that the loss of the relationship is likely to occasion severe emotional harm to the child. Instead, the court shall consider whether the facts of the particular case would lead a reasonable person to believe that there is a significant existing relationship between the grandparent and grandchild or that the loss of the relationship is likely to occasion severe emotional harm to the child.

(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 with the child for at least 12 consecutive months; and

(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.

(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 a prior grandparent, great-grandparent, or sibling visitation order 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 interests.

(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. The court may modify an order granting, denying, or limiting visitation rights of a grandparent, great-grandparent, or sibling of any minor child whenever a change of circumstances has occurred based on facts occurring subsequent to the judgment and the court finds by clear and convincing evidence that the modification is in the best interest of the minor child.

(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) If an order has been entered limiting, for cause, a minor child's contact or visitation with a grandparent, great-grandparent, or sibling on the grounds that it was in the best interest of the child to do so, that order may be modified only upon a showing of a substantial change in circumstances occurring subsequent to the entry of the order with proof by clear and convincing evidence that modification is in the best interest of the minor child.

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