Full Text of HB0984 097th General Assembly
HB0984 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB0984 Introduced 01/31/11, by Rep. Michael J. Madigan SYNOPSIS AS INTRODUCED: | | 750 ILCS 5/607 | from Ch. 40, par. 607 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Makes a
technical change in a Section concerning visitation.
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| | A BILL FOR |
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| 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 Section 607 as follows:
| 6 | | (750 ILCS 5/607) (from Ch. 40, par. 607)
| 7 | | Sec. 607. Visitation.
| 8 | | (a) A parent not granted custody of the
the child
is | 9 | | entitled to reasonable visitation rights unless the court | 10 | | finds,
after a hearing, that visitation would endanger | 11 | | seriously the child's
physical, mental, moral or emotional | 12 | | health. If the custodian's street
address is not identified, | 13 | | pursuant to Section 708, the court shall require
the parties to | 14 | | identify reasonable alternative arrangements for visitation
by | 15 | | a non-custodial parent, including but not limited to visitation | 16 | | of the
minor child at the residence of another person or at a | 17 | | local public or
private facility. | 18 | | (1) "Visitation" means in-person time spent between a | 19 | | child and the child's parent. In appropriate | 20 | | circumstances, it may include electronic communication | 21 | | under conditions and at times determined by the court. | 22 | | (2) "Electronic communication" means time that a | 23 | | parent spends with his or her child during which the child |
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| 1 | | is not in the parent's actual physical custody, but which | 2 | | is facilitated by the use of communication tools such as | 3 | | the telephone, electronic mail, instant messaging, video | 4 | | conferencing or other wired or wireless technologies via | 5 | | the Internet, or another medium of communication.
| 6 | | (a-3) Grandparents, great-grandparents, and siblings of a | 7 | | minor child, who is one year old or older, have standing to | 8 | | bring an action in circuit court by petition, requesting | 9 | | visitation in accordance with this Section. The term "sibling" | 10 | | in this Section means a brother, sister, stepbrother, or | 11 | | stepsister of the minor child. Grandparents, | 12 | | great-grandparents, and siblings also have standing to file a | 13 | | petition for visitation and any electronic communication
| 14 | | rights in a pending dissolution proceeding or any other | 15 | | proceeding that involves custody or visitation issues, | 16 | | requesting visitation in accordance with this Section. A | 17 | | petition for visitation with a child by a person other than a | 18 | | parent must be filed in the county in which the child resides. | 19 | | Nothing in this subsection (a-3) and subsection (a-5) of this | 20 | | Section shall apply to a child in whose interests a petition is | 21 | | pending under Section 2-13 of the Juvenile Court Act of 1987 or | 22 | | a petition to adopt an unrelated child is pending under the | 23 | | Adoption Act. | 24 | | (a-5)(1) Except as otherwise provided in this subsection | 25 | | (a-5), any grandparent, great-grandparent, or sibling may file | 26 | | a
petition for
visitation rights to a minor child if there is |
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| 1 | | an unreasonable denial of visitation by a parent and at least | 2 | | one
of the
following conditions exists: | 3 | | (A) (Blank); | 4 | | (A-5) the child's other parent is deceased or has been | 5 | | missing for at least 3 months. For the purposes of this | 6 | | Section a parent is considered to be missing if the | 7 | | parent's location has not been determined and the parent | 8 | | has been reported as missing to a law enforcement agency;
| 9 | | (A-10) a parent of the child is incompetent as a matter | 10 | | of law;
| 11 | | (A-15) a parent has been incarcerated in jail or prison | 12 | | during the 3 month period preceding the filing of the | 13 | | petition;
| 14 | | (B) the child's mother and father are divorced or have | 15 | | been legally separated from
each other or there is pending | 16 | | a dissolution proceeding involving a parent of the child or | 17 | | another court proceeding involving custody or visitation | 18 | | of the child (other than any adoption proceeding of an | 19 | | unrelated child) and at least one parent does not object to | 20 | | the grandparent, great-grandparent, or sibling having | 21 | | visitation with the child. The visitation of the | 22 | | grandparent, great-grandparent, or sibling must not | 23 | | diminish the visitation of the parent who is not related to | 24 | | the grandparent, great-grandparent, or sibling seeking | 25 | | visitation; | 26 | | (C) (Blank); |
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| 1 | | (D) the child is born out of wedlock, the parents are | 2 | | not living together, and the petitioner is a maternal | 3 | | grandparent, great-grandparent, or sibling of the child | 4 | | born out of wedlock; or | 5 | | (E) the child is born out of wedlock, the parents are | 6 | | not living together, the petitioner is a paternal | 7 | | grandparent, great-grandparent, or sibling, and the | 8 | | paternity has been established by a court of competent | 9 | | jurisdiction. | 10 | | (2) Any visitation rights granted pursuant to this Section | 11 | | before the filing of a petition for adoption of a child shall | 12 | | automatically terminate by operation of law upon the entry of | 13 | | an order terminating parental rights or granting the adoption | 14 | | of the child, whichever is earlier. If the person or persons | 15 | | who adopted the child are related to the child, as defined by | 16 | | Section 1 of the Adoption Act, any person who was related to | 17 | | the child as grandparent, great-grandparent, or sibling prior | 18 | | to the adoption shall have standing to bring an action pursuant | 19 | | to this Section requesting visitation with the child.
| 20 | | (3) In making a determination under this subsection (a-5), | 21 | | there is a
rebuttable
presumption that a fit parent's actions | 22 | | and decisions regarding grandparent,
great-grandparent, or | 23 | | sibling visitation are not harmful to the child's mental, | 24 | | physical, or emotional health. The
burden is on the
party | 25 | | filing a petition under this Section to prove that the
parent's | 26 | | actions and
decisions regarding visitation times are harmful to |
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| 1 | | the child's mental, physical, or emotional health. | 2 | | (4) In determining whether to grant visitation, the court | 3 | | shall consider the following:
| 4 | | (A) the preference of the child if the child is | 5 | | determined to be of sufficient maturity to express a | 6 | | preference; | 7 | | (B) the mental and physical health of the child; | 8 | | (C) the mental and physical health of the grandparent, | 9 | | great-grandparent, or sibling; | 10 | | (D) the length and quality of the prior relationship | 11 | | between the child and the grandparent, great-grandparent, | 12 | | or sibling;
| 13 | | (E) the good faith of the party in filing the petition;
| 14 | | (F) the good faith of the person denying visitation; | 15 | | (G) the quantity of the visitation time requested and | 16 | | the potential adverse impact that visitation would have on | 17 | | the child's customary activities; | 18 | | (H) whether the child resided with the petitioner for | 19 | | at least
6 consecutive months with or without the current | 20 | | custodian present; | 21 | | (I) whether the petitioner had frequent or regular | 22 | | contact or visitation with the child for at least 12 | 23 | | consecutive months;
| 24 | | (J) any other fact that establishes that the loss of | 25 | | the relationship between the petitioner and the child is | 26 | | likely to harm the child's mental, physical, or emotional |
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| 1 | | health; and | 2 | | (K) whether the grandparent, great-grandparent, or | 3 | | sibling was a primary caretaker of the child for a period | 4 | | of not less than 6 consecutive months.
| 5 | | (5) The court may order visitation rights for the | 6 | | grandparent, great-grandparent, or sibling that include | 7 | | reasonable access without requiring overnight or possessory | 8 | | visitation.
| 9 | | (a-7)(1) Unless by stipulation of the parties, no motion to | 10 | | modify a grandparent, great-grandparent, or sibling visitation | 11 | | order may be made earlier than 2 years after the date the order | 12 | | was filed, unless the court permits it to be made on the basis | 13 | | of affidavits that there is reason to believe the child's | 14 | | present environment may endanger seriously the child's mental, | 15 | | physical, or emotional health. | 16 | | (2) The court shall not modify an order that grants | 17 | | visitation to a grandparent, great-grandparent, or sibling | 18 | | unless it finds by clear and convincing evidence, upon the | 19 | | basis of facts that have arisen since the prior visitation | 20 | | order or that were unknown to the court at the time of entry of | 21 | | the prior visitation, that a change has occurred in the | 22 | | circumstances of the child or his or her custodian, and that | 23 | | the modification is necessary to protect the mental, physical, | 24 | | or emotional health of the child. The court shall state in its | 25 | | decision specific findings of fact in support of its | 26 | | modification or termination of the grandparent, |
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| 1 | | great-grandparent, or sibling visitation. A child's parent may | 2 | | always petition to modify visitation upon changed | 3 | | circumstances when necessary to promote the child's best | 4 | | interest. | 5 | | (3) Attorney fees and costs shall be assessed against a | 6 | | party seeking modification of the visitation order if the court | 7 | | finds that the modification action is vexatious and constitutes | 8 | | harassment. | 9 | | (4) Notice under this subsection (a-7) shall be given as | 10 | | provided in subsections (c) and (d) of Section 601.
| 11 | | (b) (1) (Blank.)
| 12 | | (1.5) The Court may grant reasonable visitation privileges | 13 | | to a stepparent
upon petition to the court by the stepparent, | 14 | | with notice to the parties
required to be notified under | 15 | | Section 601 of this Act, if the court determines
that it is in | 16 | | the best interests and welfare of the child, and may issue any
| 17 | | necessary orders to enforce those visitation privileges.
A | 18 | | petition for visitation privileges may be filed under this | 19 | | paragraph (1.5)
whether or not a petition pursuant to this Act | 20 | | has been previously filed or is
currently pending if the | 21 | | following
circumstances are met:
| 22 | | (A) the child is at least 12 years old;
| 23 | | (B) the child resided continuously with the parent and | 24 | | stepparent for at
least 5 years;
| 25 | | (C) the parent is deceased or is disabled and is unable | 26 | | to care for the
child;
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| 1 | | (D) the child wishes to have reasonable visitation with | 2 | | the stepparent;
and
| 3 | | (E) the stepparent was providing for the care, control, | 4 | | and welfare to the
child prior to the initiation of the | 5 | | petition for visitation.
| 6 | | (2)(A) A petition for visitation privileges shall not be | 7 | | filed pursuant
to this subsection (b) by the parents or | 8 | | grandparents of a putative father
if the paternity of the | 9 | | putative father has not been legally established.
| 10 | | (B) A petition for visitation privileges may not be filed | 11 | | under
this subsection (b) if the child who is the subject of | 12 | | the
grandparents' or great-grandparents' petition has been | 13 | | voluntarily
surrendered by the parent or parents, except for a | 14 | | surrender to the
Illinois Department of Children and Family | 15 | | Services or a foster care
facility, or has been previously | 16 | | adopted by an individual or individuals
who are not related to | 17 | | the biological parents of the child or is the
subject of a | 18 | | pending adoption petition by an individual or individuals who
| 19 | | are not related to the biological parents of the child.
| 20 | | (3) (Blank).
| 21 | | (c) The court may modify an order granting or denying | 22 | | visitation
rights of a parent whenever modification would serve | 23 | | the best interest of
the child;
but the court shall not | 24 | | restrict a parent's visitation rights unless it
finds that the | 25 | | visitation would endanger seriously the child's physical,
| 26 | | mental, moral or emotional health.
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| 1 | | (d) If any court has entered an order prohibiting a | 2 | | non-custodial parent
of a child from any contact with a child
| 3 | | or restricting the non-custodial parent's contact with the | 4 | | child, the
following provisions shall apply:
| 5 | | (1) If an order has been entered granting visitation | 6 | | privileges with the
child to a grandparent or | 7 | | great-grandparent who is related to the child through
the | 8 | | non-custodial parent, the visitation privileges of the | 9 | | grandparent or
great-grandparent may be revoked if:
| 10 | | (i) a court has entered an order prohibiting the | 11 | | non-custodial parent
from any contact with the child, | 12 | | and the grandparent or great-grandparent is
found to | 13 | | have used his or her visitation privileges to | 14 | | facilitate contact
between the child and the | 15 | | non-custodial parent; or
| 16 | | (ii) a court has entered an order restricting the | 17 | | non-custodial parent's
contact with the child, and the | 18 | | grandparent or great-grandparent is found to
have used | 19 | | his or her visitation privileges to facilitate contact
| 20 | | between the child and the non-custodial parent in a | 21 | | manner that violates the
terms of the order restricting | 22 | | the non-custodial parent's contact with the
child.
| 23 | | Nothing in this subdivision (1) limits the authority of | 24 | | the court to
enforce its orders in any manner permitted by | 25 | | law.
| 26 | | (2) Any order granting visitation privileges with the |
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| 1 | | child to a
grandparent or great-grandparent who is related | 2 | | to the child through the
non-custodial parent shall contain | 3 | | the following provision:
| 4 | | "If the (grandparent or great-grandparent, whichever | 5 | | is applicable) who has
been granted visitation privileges | 6 | | under this order uses the visitation
privileges to | 7 | | facilitate contact between the child and the child's
| 8 | | non-custodial parent, the visitation privileges granted | 9 | | under this order shall
be permanently revoked."
| 10 | | (e) No parent, not granted custody of the child, or | 11 | | grandparent, or
great-grandparent, or stepparent, or sibling | 12 | | of any minor child, convicted
of any offense
involving an | 13 | | illegal sex act perpetrated upon a victim less than 18 years of
| 14 | | age including but not limited to offenses for violations of | 15 | | Article 12 of the
Criminal Code of 1961, is entitled to | 16 | | visitation rights while incarcerated
or while on parole, | 17 | | probation, conditional discharge, periodic
imprisonment, or
| 18 | | mandatory supervised release for that offense, and upon | 19 | | discharge from
incarceration for a misdemeanor offense or upon | 20 | | discharge from parole,
probation, conditional discharge, | 21 | | periodic imprisonment,
or mandatory supervised release for a | 22 | | felony offense, visitation shall be
denied until the person | 23 | | successfully completes a treatment program approved
by the | 24 | | court.
| 25 | | (f) Unless the court determines, after considering all | 26 | | relevant factors,
including but not limited to those set forth |
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| 1 | | in Section 602(a), that it would
be in the best interests of | 2 | | the child to allow visitation, the court shall not
enter an | 3 | | order providing visitation rights and pursuant to a motion to | 4 | | modify
visitation shall revoke visitation rights previously | 5 | | granted to any
person who would otherwise be entitled to | 6 | | petition for visitation rights under
this Section who has been | 7 | | convicted of first degree murder of the parent,
grandparent, | 8 | | great-grandparent, or sibling of the child who is the subject | 9 | | of
the order. Until an order is entered pursuant to this | 10 | | subsection, no person
shall visit, with
the child present, a | 11 | | person who has been convicted of first degree murder of
the | 12 | | parent, grandparent, great-grandparent, or sibling of the | 13 | | child
without the consent of the child's parent, other than a | 14 | | parent convicted of
first degree murder as set forth herein, or | 15 | | legal
guardian.
| 16 | | (g) (Blank).
| 17 | | (Source: P.A. 96-331, eff. 1-1-10 .)
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