102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB2938

 

Introduced 2/19/2021, by Rep. Avery Bourne

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/602.9

    Amends the Illinois Marriage and Dissolution of Marriage Act. Requires that proceedings concerning a petition for visitation brought by a grandparent or great-grandparent be given priority in being set for a hearing, and that a decision be rendered within 6 months of the petition for visitation being filed, unless the parties agree otherwise. Requires the court to set the first hearing date for a petition for visitation within 45 days of filing the petition. Requires that further hearing dates be set in court within 45 days of the prior hearing. Allows the court to impose penalties and sanctions on any party that intentionally or recklessly causes an undue delay in proceedings regarding a visitation petition brought by a grandparent or great-grandparent.


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A BILL FOR

 

HB2938LRB102 10266 LNS 15592 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Marriage and Dissolution of
5Marriage Act is amended by changing Section 602.9 as follows:
 
6    (750 ILCS 5/602.9)
7    Sec. 602.9. Visitation by certain non-parents.
8    (a) As used in this Section:
9        (1) "electronic communication" means time that a
10    grandparent, great-grandparent, sibling, or step-parent
11    spends with a child during which the child is not in the
12    person's actual physical custody, but which is facilitated
13    by the use of communication tools such as the telephone,
14    electronic mail, instant messaging, video conferencing or
15    other wired or wireless technologies via the Internet, or
16    another medium of communication;
17        (2) "sibling" means a brother or sister either of the
18    whole blood or the half blood, stepbrother, or stepsister
19    of the minor child;
20        (3) "step-parent" means a person married to a child's
21    parent, including a person married to the child's parent
22    immediately prior to the parent's death; and
23        (4) "visitation" means in-person time spent between a

 

 

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1    child and the child's grandparent, great-grandparent,
2    sibling, step-parent, or any person designated under
3    subsection (d) of Section 602.7. In appropriate
4    circumstances, visitation may include electronic
5    communication under conditions and at times determined by
6    the court.
7    (b) General provisions.
8        (1) An appropriate person, as identified in subsection
9    (c) of this Section, may bring an action in circuit court
10    by petition, or by filing a petition in a pending
11    dissolution proceeding or any other proceeding that
12    involves parental responsibilities or visitation issues
13    regarding the child, requesting visitation with the child
14    pursuant to this Section. If there is not a pending
15    proceeding involving parental responsibilities or
16    visitation with the child, the petition for visitation
17    with the child must be filed in the county in which the
18    child resides. Notice of the petition shall be given as
19    provided in subsection (c) of Section 601.2 of this Act.
20        (2) This Section does not apply to a child:
21            (A) in whose interests a petition is pending under
22        Section 2-13 of the Juvenile Court Act of 1987; or
23            (B) in whose interests a petition to adopt by an
24        unrelated person is pending under the Adoption Act; or
25            (C) who has been voluntarily surrendered by the
26        parent or parents, except for a surrender to the

 

 

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1        Department of Children and Family Services or a foster
2        care facility; or
3            (D) who has been previously adopted by an
4        individual or individuals who are not related to the
5        biological parents of the child or who is the subject
6        of a pending adoption petition by an individual or
7        individuals who are not related to the biological
8        parents of the child; or
9            (E) who has been relinquished pursuant to the
10        Abandoned Newborn Infant Protection Act.
11        (3) A petition for visitation may be filed under this
12    Section only if there has been an unreasonable denial of
13    visitation by a parent and the denial has caused the child
14    undue mental, physical, or emotional harm.
15        (4) There is a rebuttable presumption that a fit
16    parent's actions and decisions regarding grandparent,
17    great-grandparent, sibling, or step-parent visitation are
18    not harmful to the child's mental, physical, or emotional
19    health. The burden is on the party filing a petition under
20    this Section to prove that the parent's actions and
21    decisions regarding visitation will cause undue harm to
22    the child's mental, physical, or emotional health.
23        (5) In determining whether to grant visitation, the
24    court shall consider the following:
25            (A) the wishes of the child, taking into account
26        the child's maturity and ability to express reasoned

 

 

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1        and independent preferences as to visitation;
2            (B) the mental and physical health of the child;
3            (C) the mental and physical health of the
4        grandparent, great-grandparent, sibling, or
5        step-parent;
6            (D) the length and quality of the prior
7        relationship between the child and the grandparent,
8        great-grandparent, sibling, or step-parent;
9            (E) the good faith of the party in filing the
10        petition;
11            (F) the good faith of the person denying
12        visitation;
13            (G) the quantity of the visitation time requested
14        and the potential adverse impact that visitation would
15        have on the child's customary activities;
16            (H) any other fact that establishes that the loss
17        of the relationship between the petitioner and the
18        child is likely to unduly harm the child's mental,
19        physical, or emotional health; and
20            (I) whether visitation can be structured in a way
21        to minimize the child's exposure to conflicts between
22        the adults.
23        (6) Any visitation rights granted under this Section
24    before the filing of a petition for adoption of the child
25    shall automatically terminate by operation of law upon the
26    entry of an order terminating parental rights or granting

 

 

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1    the adoption of the child, whichever is earlier. If the
2    person or persons who adopted the child are related to the
3    child, as defined by Section 1 of the Adoption Act, any
4    person who was related to the child as grandparent,
5    great-grandparent, or sibling prior to the adoption shall
6    have standing to bring an action under this Section
7    requesting visitation with the child.
8        (7) The court may order visitation rights for the
9    grandparent, great-grandparent, sibling, or step-parent
10    that include reasonable access without requiring overnight
11    or possessory visitation.
12        (8) Proceedings concerning a petition brought under
13    this Section by a grandparent or great-grandparent shall
14    receive priority in being set for a hearing. The court
15    shall render a decision not later than 6 months after the
16    petition has been filed, unless the parties agree
17    otherwise. At the time of filing a petition under this
18    Section by a grandparent or great-grandparent, the court
19    shall set the first hearing within 45 days of the petition
20    being filed, and each subsequent hearing shall be
21    scheduled within 45 days of the immediately preceding
22    hearing. If a party intentionally or recklessly causes
23    undue delay of the proceedings on a petition for
24    visitation rights brought by a grandparent or
25    great-grandparent, the court shall impose penalties and
26    sanctions, including, but not limited to, costs and

 

 

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1    attorney's fees.
2    (c) Visitation by grandparents, great-grandparents,
3step-parents, and siblings.
4        (1) Grandparents, great-grandparents, step-parents,
5    and siblings of a minor child who is one year old or older
6    may bring a petition for visitation and electronic
7    communication under this Section if there is an
8    unreasonable denial of visitation by a parent that causes
9    undue mental, physical, or emotional harm to the child and
10    if at least one of the following conditions exists:
11            (A) the child's other parent is deceased or has
12        been missing for at least 90 days. For the purposes of
13        this subsection a parent is considered to be missing
14        if the parent's location has not been determined and
15        the parent has been reported as missing to a law
16        enforcement agency; or
17            (B) a parent of the child is incompetent as a
18        matter of law; or
19            (C) a parent has been incarcerated in jail or
20        prison for a period in excess of 90 days immediately
21        prior to the filing of the petition; or
22            (D) the child's parents have been granted a
23        dissolution of marriage or have been legally separated
24        from each other or there is pending a dissolution
25        proceeding involving a parent of the child or another
26        court proceeding involving parental responsibilities

 

 

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1        or visitation of the child (other than an adoption
2        proceeding of an unrelated child, a proceeding under
3        Article II of the Juvenile Court Act of 1987, or an
4        action for an order of protection under the Illinois
5        Domestic Violence Act of 1986 or Article 112A of the
6        Code of Criminal Procedure of 1963) and at least one
7        parent does not object to the grandparent,
8        great-grandparent, step-parent, or sibling having
9        visitation with the child. The visitation of the
10        grandparent, great-grandparent, step-parent, or
11        sibling must not diminish the parenting time of the
12        parent who is not related to the grandparent,
13        great-grandparent, step-parent, or sibling seeking
14        visitation; or
15            (E) (i) the child is born to parents who are not
16        married to each other; (ii) the parents are not living
17        together; (iii) the petitioner is a grandparent,
18        great-grandparent, step-parent, or sibling of the
19        child; and (iv) the parent-child relationship has been
20        legally established. For purposes of this subdivision
21        (E), if the petitioner is a grandparent or
22        great-grandparent, the parent-child relationship need
23        be legally established only with respect to the parent
24        who is related to the grandparent or
25        great-grandparent. For purposes of this subdivision
26        (E), if the petitioner is a step-parent, the

 

 

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1        parent-child relationship need be legally established
2        only with respect to the parent who is married to the
3        petitioner or was married to the petitioner
4        immediately before the parent's death.
5        (2) In addition to the factors set forth in
6    subdivision (b)(5) of this Section, the court should
7    consider:
8            (A) whether the child resided with the petitioner
9        for at least 6 consecutive months with or without a
10        parent present;
11            (B) whether the child had frequent and regular
12        contact or visitation with the petitioner for at least
13        12 consecutive months; and
14            (C) whether the grandparent, great-grandparent,
15        sibling, or step-parent was a primary caretaker of the
16        child for a period of not less than 6 consecutive
17        months within the 24-month period immediately
18        preceding the commencement of the proceeding.
19        (3) An order granting visitation privileges under this
20    Section is subject to subsections (c) and (d) of Section
21    603.10.
22        (4) A petition for visitation privileges may not be
23    filed pursuant to this subsection (c) by the parents or
24    grandparents of a parent of the child if parentage between
25    the child and the related parent has not been legally
26    established.

 

 

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1    (d) Modification of visitation orders.
2        (1) Unless by stipulation of the parties, no motion to
3    modify a grandparent, great-grandparent, sibling, or
4    step-parent visitation order may be made earlier than 2
5    years after the date the order was filed, unless the court
6    permits it to be made on the basis of affidavits that there
7    is reason to believe the child's present environment may
8    endanger seriously the child's mental, physical, or
9    emotional health.
10        (2) The court shall not modify an order that grants
11    visitation to a grandparent, great-grandparent, sibling,
12    or step-parent unless it finds by clear and convincing
13    evidence, upon the basis of facts that have arisen since
14    the prior visitation order or that were unknown to the
15    court at the time of entry of the prior visitation order,
16    that a change has occurred in the circumstances of the
17    child or his or her parent, and that the modification is
18    necessary to protect the mental, physical, or emotional
19    health of the child. The court shall state in its decision
20    specific findings of fact in support of its modification
21    or termination of the grandparent, great-grandparent,
22    sibling, or step-parent visitation. A child's parent may
23    always petition to modify visitation upon changed
24    circumstances when necessary to promote the child's best
25    interests.
26        (3) Notice of a motion requesting modification of a

 

 

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1    visitation order shall be provided as set forth in
2    subsection (c) of Section 601.2 of this Act.
3        (4) Attorney's fees and costs shall be assessed
4    against a party seeking modification of the visitation
5    order if the court finds that the modification action is
6    vexatious and constitutes harassment.
7    (e) No child's grandparent, great-grandparent, sibling, or
8step-parent, or any person to whom the court is considering
9granting visitation privileges pursuant to subsection (d) of
10Section 602.7, who was convicted of any offense involving an
11illegal sex act perpetrated upon a victim less than 18 years of
12age including, but not limited to, offenses for violations of
13Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70,
14or Article 12 of the Criminal Code of 1961 or the Criminal Code
15of 2012, is entitled to visitation while incarcerated or while
16on parole, probation, conditional discharge, periodic
17imprisonment, or mandatory supervised release for that
18offense, and upon discharge from incarceration for a
19misdemeanor offense or upon discharge from parole, probation,
20conditional discharge, periodic imprisonment, or mandatory
21supervised release for a felony offense. Visitation shall be
22denied until the person successfully completes a treatment
23program approved by the court. Upon completion of treatment,
24the court may deny visitation based on the factors listed in
25subdivision (b)(5) of this Section.
26    (f) No child's grandparent, great-grandparent, sibling, or

 

 

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1step-parent, or any person to whom the court is considering
2granting visitation privileges pursuant to subsection (d) of
3Section 602.7, may be granted visitation if he or she has been
4convicted of first degree murder of a parent, grandparent,
5great-grandparent, or sibling of the child who is the subject
6of the visitation request. Pursuant to a motion to modify
7visitation, the court shall revoke visitation rights
8previously granted to any person who would otherwise be
9entitled to petition for visitation rights under this Section
10or granted visitation under subsection (d) of Section 602.7,
11if the person has been convicted of first degree murder of a
12parent, grandparent, great-grandparent, or sibling of the
13child who is the subject of the visitation order. Until an
14order is entered pursuant to this subsection, no person may
15visit, with the child present, a person who has been convicted
16of first degree murder of the parent, grandparent,
17great-grandparent, or sibling of the child without the consent
18of the child's parent, other than a parent convicted of first
19degree murder as set forth herein, or legal guardian.
20(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17;
21100-706, eff. 1-1-19.)