Public Act 096-0333
Public Act 0333 96TH GENERAL ASSEMBLY
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Public Act 096-0333
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| SB1628 Enrolled |
LRB096 10620 KTG 20792 b |
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| AN ACT concerning children.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Illinois Public Aid Code is amended by | changing Section 10-17.7 as follows:
| (305 ILCS 5/10-17.7)
| Sec. 10-17.7. Administrative determination of paternity. | The Illinois
Department may provide by rule for the | administrative determination of
paternity by the Child and | Spouse Support Unit in cases involving applicants
for or | recipients of financial aid under Article IV of this Act and | other
persons who are given access to the child support
| enforcement services of this
Article as provided in Section | 10-1, including persons similarly situated and
receiving | similar services in other states. The rules shall extend to | cases in
which the mother and alleged father voluntarily | acknowledge paternity in the
form required by the Illinois | Department or agree
to be bound by the results of genetic | testing or in which the alleged
father
has failed to respond to | a notification of support obligation issued under
Section 10-4 | and to cases of contested paternity. The Illinois
Department's | form for voluntary acknowledgement of paternity shall be the | same form prepared by the Illinois Department for use under the |
| requirements of Section 12 of the Vital Records Act. Any
| presumption provided for under the Illinois Parentage Act of
| 1984 shall apply to cases in which paternity is determined | under the rules of
the Illinois Department. The rules shall | provide for notice and an opportunity
to be heard by the | responsible relative and the person receiving child support | enforcement services under this Article if paternity is
not
| voluntarily acknowledged, and any final administrative
| decision rendered by the Illinois Department shall be reviewed | only under and
in accordance with the Administrative Review | Law. Determinations of paternity
made by the Illinois | Department under the rules authorized by this Section
shall
| have the full force and effect of a court judgment of paternity | entered under
the Illinois Parentage Act of 1984.
| In determining paternity in contested cases, the Illinois | Department shall
conduct the evidentiary hearing in accordance | with Section 11 of the Parentage
Act of 1984, except that | references in that Section to "the court" shall be
deemed to | mean the Illinois Department's hearing officer in cases in | which
paternity is determined administratively by the Illinois | Department.
| Notwithstanding any other provision of this Article, a
| default determination
of
paternity may be made if service of | the notice under Section 10-4 was made by
publication under the | rules for administrative paternity determination
authorized by | this Section. The rules as they pertain to service by
|
| publication shall (i) be based on the provisions of Section | 2-206 and 2-207 of
the Code of Civil Procedure, (ii) provide | for service by publication in cases
in which
the whereabouts of | the alleged father are unknown after diligent location
efforts | by the Child and Spouse Support Unit, and (iii) provide for | publication
of a notice of default paternity determination in | the same manner that the
notice under Section 10-4 was | published.
| The Illinois Department
may implement this Section through | the use of emergency rules in accordance
with Section 5-45 of | the Illinois Administrative Procedure Act. For purposes
of the | Illinois Administrative Procedure Act, the adoption of rules to
| implement this Section shall be considered an emergency and | necessary for
the public interest, safety, and welfare.
| (Source: P.A. 92-590, eff. 7-1-02.)
| Section 10. The Vital Records Act is amended by changing | Section 12 as follows:
| (410 ILCS 535/12) (from Ch. 111 1/2, par. 73-12)
| Sec. 12. Live births; place of registration.
| (1) Each live birth which occurs in this State shall be | registered
with the local or subregistrar of the district in | which the birth occurred
as provided in this Section, within 7 | days after the birth. When a
birth occurs on a moving | conveyance, the city, village, township, or road
district in |
| which the child is first removed from the conveyance shall be
| considered the place of birth and a birth certificate shall be | filed in the
registration district in which the place is | located.
| (2) When a birth occurs in an institution, the person in | charge of the
institution or his designated representative | shall obtain and record all
the personal and statistical | particulars relative to the parents of the
child that are | required to properly complete the live birth certificate; shall
| secure the required
personal signatures on the hospital | worksheet; shall prepare the certificate
from this worksheet; | and shall file the certificate with the local
registrar. The | institution shall retain the hospital worksheet permanently or
| as
otherwise specified by rule. The
physician in attendance | shall verify or provide the date of birth and
medical | information required by the certificate, within 24 hours after | the
birth occurs.
| (3) When a birth occurs outside an institution, the | certificate shall be
prepared and filed by one of the following | in the indicated order of
priority:
| (a) The physician in attendance at or immediately after | the birth, or in
the absence of such a person,
| (b) Any other person in attendance at or immediately | after the birth, or
in the absence of such a person,
| (c) The father, the mother, or in the absence of the | father and the
inability of the mother, the person in |
| charge of the premises where the
birth occurred.
| (4) Unless otherwise provided in this Act, if the mother | was not married
to the father of the child at either the time | of conception or the time of
birth, the name of the father | shall be entered on the child's
birth certificate only if the | mother and the person to be named as the father
have signed an | acknowledgment of parentage in accordance with subsection (5).
| Unless otherwise provided in this Act, if the mother was | married at the time
of conception or birth and the presumed | father (that is, the mother's husband)
is not the biological | father of the child, the name of the
biological father shall be | entered on the child's birth certificate only if, in
accordance | with subsection (5), (i)
the mother and the person to be named | as the father have signed an
acknowledgment of parentage and | (ii) the mother and presumed father have signed
a denial of | paternity.
| (5) Upon the birth of a child to an unmarried woman, or | upon the birth of
a child to a woman who was married at the time | of conception or birth and whose
husband is not the biological | father of the child, the institution at the time
of birth and | the local registrar or county clerk after the birth shall do | the
following:
| (a) Provide (i) an opportunity for the child's mother | and father to sign
an acknowledgment of parentage and (ii) | if the presumed father is not the
biological father, an | opportunity for the mother and presumed father to sign a
|
| denial of paternity. The signing and witnessing of the | acknowledgment of
parentage or, if the presumed father of | the child is not the biological father,
the acknowledgment | of parentage and denial of paternity conclusively
| establishes a parent and child relationship in accordance | with Sections 5 and 6
of the Illinois Parentage Act of | 1984.
| The Department of Healthcare and Family Services shall | furnish
the acknowledgment of parentage and denial of | paternity form to institutions,
county clerks, and State | and local registrars' offices. The form shall
include
| instructions to send the
original signed and witnessed | acknowledgment of parentage and denial of
paternity to the | Department of Healthcare and Family Services. The | acknowledgement of paternity and denial of paternity form | shall also include a statement informing the mother, the | alleged father, and the presumed father, if any, that they | have the right to request deoxyribonucleic acid (DNA) tests | regarding the issue of the child's paternity and that by | signing the form, they expressly waive such tests. The | statement shall be set forth in boldface capital letters | not less than 0.25 inches in height.
| (b) Provide the following documents, furnished by the | Department
of Healthcare and Family Services, to the | child's mother, biological father, and (if the person
| presumed to be the child's father is not the biological |
| father) presumed father
for their review at
the time the | opportunity is provided to establish a parent and child
| relationship:
| (i) An explanation of the implications of, | alternatives to, legal
consequences of, and the rights | and responsibilities
that arise from signing an
| acknowledgment of parentage and, if necessary, a | denial of
paternity, including an explanation of the | parental rights and
responsibilities of child support, | visitation, custody, retroactive support,
health | insurance coverage, and payment of birth expenses.
| (ii) An explanation of the benefits of having a | child's parentage
established and the availability of | parentage establishment and child
support
enforcement | services.
| (iii) A request for an application for child | support enforcement
services from
the
Department of | Healthcare and Family Services.
| (iv) Instructions concerning the opportunity to | speak, either by
telephone or in person, with staff of
| the Department of Healthcare and Family Services who | are trained to clarify information
and answer | questions about paternity establishment.
| (v) Instructions for completing and signing the | acknowledgment of
parentage and denial of paternity.
| (c) Provide an oral explanation of the documents and |
| instructions set
forth in subdivision (5)(b), including an | explanation of the implications of,
alternatives to, legal | consequences of, and the rights and responsibilities
that | arise from signing an acknowledgment of parentage and, if | necessary, a
denial of paternity. The oral explanation may | be given in person or through
the use of video or audio | equipment.
| (6) The institution, State or local registrar, or county | clerk shall provide
an
opportunity for the child's father or | mother to sign a rescission of parentage.
The signing and | witnessing of the rescission of parentage voids the
| acknowledgment of parentage and nullifies the presumption of | paternity if
executed and filed with the Department of | Healthcare and Family Services (formerly Illinois Department | of Public Aid) within the
time frame contained in Section 5
of | the Illinois Parentage Act of 1984.
The Department of | Healthcare and Family Services shall furnish the rescission of | parentage
form to institutions, county clerks, and State and | local registrars' offices.
The form shall include instructions | to send the original signed and witnessed
rescission of | parentage to the Department of Healthcare and Family Services.
| (7) An acknowledgment of paternity signed pursuant to | Section 6 of the
Illinois Parentage Act of 1984 may be | challenged in court only on the basis of
fraud, duress, or | material mistake of fact, with the burden of proof upon the
| challenging party. Pending outcome of a challenge to the |
| acknowledgment of
paternity, the legal responsibilities of the | signatories shall remain in full
force and effect, except upon | order of the court upon a showing of good cause.
| (8) When the process for acknowledgment of parentage as | provided for under
subsection (5) establishes the paternity of | a child whose certificate of birth
is on file in
another state, | the Department of Healthcare and Family Services shall forward | a copy of
the
acknowledgment of parentage, the denial of | paternity, if applicable, and the
rescission of parentage, if | applicable, to the birth record agency of the state
where the | child's certificate of birth is on file.
| (9) In the event the parent-child relationship has been | established in
accordance with subdivision (a)(1) of Section 6 | of the Parentage Act of 1984,
the names of the biological | mother and biological father so established shall
be entered on | the child's birth certificate, and the names of the surrogate
| mother and surrogate mother's husband, if any, shall not be on | the birth
certificate.
| (Source: P.A. 95-331, eff. 8-21-07.)
| Section 15. The Criminal Code of 1961 is amended by | changing Section 10-5.5 as follows:
| (720 ILCS 5/10-5.5)
| Sec. 10-5.5. Unlawful visitation or parenting time | interference.
|
| (a) As used in this Section,
the terms
"child", "detain", | and "lawful custodian" shall have the meanings ascribed
to them | in Section 10-5 of this Code.
| (b) Every person who, in violation of the visitation, | parenting time, or custody time
provisions of a court order | relating to child custody, detains
or conceals a child with the | intent to deprive another person of his or her
rights
to | visitation, parenting time, or custody time shall be guilty of | unlawful
visitation or parenting time interference.
| (c) A person committing unlawful visitation or parenting | time interference is
guilty of a petty offense. However, any | person violating this Section after
2 prior convictions of | unlawful visitation interference or unlawful visitation or | parenting time interference is guilty
of a Class A misdemeanor.
| (d) Any law enforcement officer who has probable cause to | believe that
a person has committed or is committing an act in | violation of this Section
shall issue to that person a notice | to appear.
| (e) The notice shall:
| (1) be in writing;
| (2) state the name of the person and his address, if | known;
| (3) set forth the nature of the offense;
| (4) be signed by the officer issuing the notice; and
| (5) request the person to appear before a court at a | certain time and
place.
|
| (f) Upon failure of the person to appear, a summons or | warrant of arrest may
be issued.
| (g) It is an affirmative defense that:
| (1) a person or lawful custodian committed the act to | protect the child
from imminent physical harm, provided | that the defendant's belief that
there was physical harm
| imminent was reasonable and that the defendant's conduct in | withholding
visitation rights, parenting time, or custody | time was a reasonable response to the harm believed | imminent;
| (2) the act was committed with the mutual consent of | all parties having a
right to custody and visitation of the | child or parenting time with the child; or
| (3) the act was otherwise authorized by law.
| (h) A person convicted of unlawful visitation or parenting | time interference shall not be
subject to a civil contempt | citation for the same conduct for violating
visitation, | parenting time, or custody time provisions of a
court order | issued under the Illinois Marriage and Dissolution of Marriage
| Act.
| (Source: P.A. 88-96.)
| Section 20. Illinois Marriage and Dissolution of Marriage | Act is amended by changing Section 607.1 as follows:
| (750 ILCS 5/607.1) (from Ch. 40, par. 607.1)
|
| Sec. 607.1. Enforcement of visitation orders; visitation | abuse.
| (a) The circuit court shall provide an expedited procedure | for
enforcement of court ordered visitation in cases of | visitation abuse.
Visitation abuse occurs when a party has | willfully and without
justification: (1) denied another party | visitation as set forth by the
court; or (2) exercised his or | her visitation rights in a manner
that is harmful to the child | or child's custodian.
| (b) An Action may be commenced by filing a petition setting | forth: (i)
the petitioner's name, residence address or mailing | address, and telephone
number; (ii) respondent's name and place | of residence, place of employment,
or mailing address; (iii) | the nature of the visitation abuse, giving dates
and other | relevant information; (iv) that a reasonable attempt was made | to
resolve the dispute; and (v) the relief sought.
| Notice of the filing of the petitions shall be given as | provided
in Section 511.
| (c) After hearing all of the evidence, the court may order | one or more of
the following:
| (1) Modification of the visitation order to | specifically outline periods
of visitation or restrict | visitation as provided by law.
| (2) Supervised visitation with a third party or public | agency.
| (3) Make up visitation of the same time period, such as |
| weekend for
weekend, holiday for holiday.
| (4) Counseling or mediation, except in cases where | there is
evidence of domestic violence, as defined in | Section 1 of the Domestic
Violence Shelters Act, occurring | between the parties.
| (5) Other appropriate relief deemed equitable.
| (d) Nothing contained in this Section shall be construed to | limit the
court's contempt power, except as provided in | subsection (g) of this
Section.
| (e) When the court issues an order holding a party in | contempt of court
for violation of a visitation order, the | clerk shall transmit a copy of
the contempt order to the | sheriff of the county. The sheriff shall furnish
a copy of each | contempt order to the Department of State Police on a daily
| basis in the form and manner required by the Department. The | Department
shall maintain a complete record and index of the | contempt orders and make
this data available to all local law | enforcement agencies.
| (f) Attorney fees and costs shall be assessed against a | party if the
court finds that the enforcement action is | vexatious and constitutes
harassment.
| (g) A person convicted of unlawful visitation or parenting | time interference under Section
10-5.5 of the Criminal Code of | 1961 shall not be subject to the provisions of
this Section and | the court may not enter a contempt order for visitation abuse
| against any person for the same conduct for which the person |
| was convicted of
unlawful visitation interference or subject
| that
person to the sanctions provided for in this Section.
| (Source: P.A. 87-895; 88-96.)
| Section 25. The Illinois Parentage Act of 1984 is amended | by changing Section 11 as follows:
| (750 ILCS 45/11) (from Ch. 40, par. 2511)
| Sec. 11. Tests to determine inherited characteristics.
| (a) In any action brought under Section 7 to determine the | existence of the father and child relationship or to declare | the non-existence of the parent and child relationship, the | court or Administrative Hearing Officer in an Expedited Child | Support System shall, prior to the entry of a judgment in the | case, advise the respondent who appears of the right to request | an order that the parties and the child submit to | deoxyribonucleic acid (DNA) tests to determine inherited | characteristics. The advisement shall be noted in the record. | As soon as practicable, the court or Administrative Hearing | Officer
in an Expedited Child Support System may, and upon | request of a party
shall, order or direct the mother, child and | alleged father to
submit to deoxyribonucleic acid (DNA) tests | to determine
inherited characteristics.
If any party refuses to | submit to the tests, the court may
resolve the
question of | paternity against that party or enforce its order if the rights
| of others and the interests of justice so require.
|
| (b) The tests shall be conducted by an expert qualified as | an examiner of
blood or tissue types and appointed by
the | court.
The expert shall determine the testing procedures. | However, any
interested party, for good cause shown, in advance | of the scheduled tests,
may request a hearing to object to the
| qualifications of the expert or the testing procedures. The
| expert appointed by the court shall testify at the
pre-test | hearing at the expense of the party requesting the hearing, | except
as provided in subsection (h) of this Section for an | indigent party. An
expert not appointed by the court shall | testify at the pre-test hearing at
the expense of the party | retaining the expert. Inquiry into an
expert's qualifications | at the pre-test hearing shall not affect either
parties' right | to have the expert qualified at trial.
| (c) The expert shall prepare a written report of the test
| results. If the test results show that the alleged father is | not excluded,
the report shall contain a combined paternity | index relating to the probability
of paternity. The expert may | be called by the court as a witness to
testify to his or her | findings and, if called, shall be subject to
cross-examination | by the parties. If the test results show that the alleged
| father is not excluded,
any party may demand that other | experts,
qualified as examiners of blood or tissue types, | perform independent tests
under order of court, including, but | not limited to, blood types or other
tests of genetic markers | such as those found by Human Leucocyte Antigen (HLA)
tests. The |
| results of the tests may be offered into evidence. The
number | and qualifications of the experts shall be determined by the | court.
| (d) Documentation of the chain of custody of the blood or
| tissue samples, accompanied by an affidavit or certification in | accordance
with Section 1-109 of the Code of Civil Procedure, | is competent evidence to
establish the chain of custody.
| (e) The report of the test results prepared by the | appointed expert shall be
made by affidavit or
by
certification | as provided in Section 1-109 of the Code of Civil Procedure
and | shall be mailed to all parties. A proof of service shall be
| filed with the court. The verified
report shall be admitted | into evidence at trial without foundation testimony
or other | proof of authenticity or accuracy, unless a written motion
| challenging the admissibility of the report is filed by either | party
within 28 days of receipt of the report, in
which case | expert testimony shall be required.
A party may
not file such a | motion challenging the admissibility of the report later than
| 28 days before commencement of trial. Before trial, the court
| shall determine whether the motion is sufficient to deny | admission of the
report by verification. Failure to make
that | timely motion constitutes a waiver of the right to object to
| admission by verification and shall not be
grounds for a | continuance of the hearing to determine paternity.
| (f) Tests taken pursuant to this Section shall have the | following effect:
|
| (1) If the court finds that the conclusion of the | expert or
experts, as
disclosed by the evidence based upon | the tests, is that the alleged father
is not the parent of | the child, the question of paternity shall be resolved
| accordingly.
| (2) If the experts disagree in their findings or | conclusions, the
question shall be weighed with other | competent evidence of paternity.
| (3) If the tests show that the alleged father is
not | excluded and that the combined paternity index is less than | 500 to 1,
this evidence shall be admitted by the court and | shall be weighed with
other competent evidence of | paternity.
| (4) If the tests show that the alleged father is not
| excluded and that the combined paternity index is at least | 500 to 1, the
alleged
father is presumed to be the father, | and this evidence shall be admitted.
This presumption may | be rebutted by clear and convincing evidence.
| (g) Any presumption of parentage as set forth in Section 5 | of this Act
is rebutted if the court finds that the conclusion | of the expert or experts
excludes
paternity of the presumed | father.
| (h) The expense of the tests shall be paid by the party
who | requests the tests. Where the tests are requested by the party
| seeking to establish paternity and that party is found to be | indigent by
the court, the expense shall be paid by the public |
| agency providing
representation; except that where a public | agency is not providing
representation, the expense shall be | paid by the county in which the action
is brought. Where the | tests are ordered by the court on its own motion or
are | requested by the alleged or presumed father and that father is | found to
be indigent by the court, the expense shall be paid by | the county in which
the action is brought. Any part of the | expense may be taxed as costs in the
action, except that no | costs may be taxed against a public agency that has
not | requested the tests.
| (i) The compensation of each expert witness appointed by | the court shall
be paid as provided in subsection (h) of this | Section. Any part of
the payment may be taxed as costs in the | action, except that
no costs may be taxed against a public | agency that has not requested the
services of the expert | witness.
| (j) Nothing in this Section shall prevent any party from | obtaining tests
of his or her own blood or tissue independent | of those ordered by the court
or from
presenting expert | testimony interpreting those tests or any other blood
tests | ordered pursuant to this Section. Reports of all the
| independent tests, accompanied by affidavit or certification | pursuant to
Section 1-109 of the Code of Civil Procedure, and | notice of any expert
witnesses to be called to testify to the | results of those tests shall be
submitted to all parties at | least 30 days before any hearing set to
determine the issue of |
| parentage.
| (Source: P.A. 87-428; 87-435; 88-353; 88-687, eff. 1-24-95.)
| Section 99. Effective date. This Act takes effect upon | becoming law.
| | |
INDEX
| |
Statutes amended in order of appearance
|
| 305 ILCS 5/10-17.7 |
|
| 410 ILCS 535/12 |
from Ch. 111 1/2, par. 73-12 |
| 720 ILCS 5/10-5.5 |
|
| 750 ILCS 5/607.1 |
from Ch. 40, par. 607.1 |
| 750 ILCS 45/11 |
from Ch. 40, par. 2511 |
| |
Effective Date: 8/11/2009
|
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