HB5520 94TH GENERAL ASSEMBLY

LRB094 16437 RLC 51697 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB5520

Introduced 1/27/2006, by Rep. Aaron Schock

SYNOPSIS AS INTRODUCED:

720 ILCS 5/10-5

from Ch. 38, par. 10-5

Amends the Criminal Code of 1961. Provides that the offense of child abduction also includes intentionally luring or attempting to lure a child under the age of 16 into an aircraft, watercraft, or isolated area without the consent of the parent or lawful custodian of the child for other than a lawful purpose. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Criminal Code of 1961 is amended by changing Section 10-5 as follows:

(720 ILCS 5/10-5) (from Ch. 38, par. 10-5)

Sec. 10-5. Child Abduction.

(a) For purposes of this Section, the following terms shall have the following meanings:

(1) "Child" means a person under the age of 18 or a severely or profoundly mentally retarded person at the time the alleged violation occurred; and

(2) "Detains" means taking or retaining physical custody of a child, whether or not the child resists or objects; and

(3) "Lawful custodian" means a person or persons granted legal custody of a child or entitled to physical possession of a child pursuant to a court order. It is presumed that, when the parties have never been married to each other, the mother has legal custody of the child unless a valid court order states otherwise. If an adjudication of paternity has been completed and the father has been assigned support obligations or visitation rights, such a paternity order should, for the purposes of this Section be considered a valid court order granting custody to the mother.

(b) A person commits child abduction when he or she:

(1) Intentionally violates any terms of a valid court order granting sole or joint custody, care or possession to another, by concealing or detaining the child or removing the child from the jurisdiction of the court; or

(2) Intentionally violates a court order prohibiting the person from concealing or detaining the child or removing the child from the jurisdiction of the court; or

(3) Intentionally conceals, detains or removes the child without the consent of the mother or lawful custodian of the child if the person is a putative father and either: (A) the paternity of the child has not been legally established or (B) the paternity of the child has been legally established but no orders relating to custody have been entered. However, notwithstanding the presumption created by paragraph (3) of subsection (a), a mother commits child abduction when she intentionally conceals or removes a child, whom she has abandoned or relinquished custody of, from an unadjudicated father who has provided sole ongoing care and custody of the child in her absence; or

(4) Intentionally conceals or removes the child from a parent after filing a petition or being served with process in an action affecting marriage or paternity but prior to the issuance of a temporary or final order determining custody; or

(5) At the expiration of visitation rights outside the State, intentionally fails or refuses to return or impedes the return of the child to the lawful custodian in Illinois; or

(6) Being a parent of the child, and where the parents of such child are or have been married and there has been no court order of custody, conceals the child for 15 days, and fails to make reasonable attempts within the 15 day period to notify the other parent as to the specific whereabouts of the child, including a means by which to contact such child, or to arrange reasonable visitation or contact with the child. It is not a violation of this Section for a person fleeing domestic violence to take the child with him or her to housing provided by a domestic violence program; or

(7) Being a parent of the child, and where the parents of the child are or have been married and there has been no court order of custody, conceals, detains, or removes the child with physical force or threat of physical force; or

(8) Conceals, detains, or removes the child for payment or promise of payment at the instruction of a person who has no legal right to custody; or

(9) Retains in this State for 30 days a child removed from another state without the consent of the lawful custodian or in violation of a valid court order of custody; or

(10) Intentionally lures or attempts to lure a child under the age of 16 into a motor vehicle, aircraft, watercraft, isolated area, building, housetrailer, or dwelling place without the consent of the parent or lawful custodian of the child for other than a lawful purpose.

For the purposes of this subsection (b), paragraph (10), the luring or attempted luring of a child under the age of 16 into a motor vehicle, aircraft, watercraft, isolated area, building, housetrailer, or dwelling place without the consent of the parent or lawful custodian of the child shall be prima facie evidence of other than a lawful purpose.

(c) It shall be an affirmative defense that:

(1) The person had custody of the child pursuant to a court order granting legal custody or visitation rights which existed at the time of the alleged violation; or

(2) The person had physical custody of the child pursuant to a court order granting legal custody or visitation rights and failed to return the child as a result of circumstances beyond his or her control, and the person notified and disclosed to the other parent or legal custodian the specific whereabouts of the child and a means by which such child can be contacted or made a reasonable attempt to notify the other parent or lawful custodian of the child of such circumstances and make such disclosure within 24 hours after the visitation period had expired and returned the child as soon as possible; or

(3) The person was fleeing an incidence or pattern of domestic violence; or

(4) The person lured or attempted to lure a child under the age of 16 into a motor vehicle, aircraft, watercraft, isolated area, building, housetrailer, or dwelling place for a lawful purpose in prosecutions under subsection (b), paragraph (10).

(d) A person convicted of child abduction under this Section is guilty of a Class 4 felony. A person convicted of a second or subsequent violation of paragraph (10) of subsection (b) of this Section is guilty of a Class 3 felony. It shall be a factor in aggravation for which a court may impose a more severe sentence under Section 5-8-1 of the Unified Code of Corrections, if upon sentencing the court finds evidence of any of the following aggravating factors:

(1) that the defendant abused or neglected the child following the concealment, detention or removal of the child; or

(2) that the defendant inflicted or threatened to inflict physical harm on a parent or lawful custodian of the child or on the child with intent to cause such parent or lawful custodian to discontinue criminal prosecution of the defendant under this Section; or

(3) that the defendant demanded payment in exchange for return of the child or demanded that he or she be relieved of the financial or legal obligation to support the child in exchange for return of the child; or

(4) that the defendant has previously been convicted of child abduction; or

(5) that the defendant committed the abduction while armed with a deadly weapon or the taking of the child resulted in serious bodily injury to another; or

(6) that the defendant committed the abduction while in a school, regardless of the time of day or time of year; in a playground; on any conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity; on the real property of a school; or on a public way within 1,000 feet of the real property comprising any school or playground. For purposes of this paragraph (6), "playground" means a piece of land owned or controlled by a unit of local government that is designated by the unit of local government for use solely or primarily for children's recreation; and "school" means a public or private elementary or secondary school, community college, college, or university.

(e) The court may order the child to be returned to the parent or lawful custodian from whom the child was concealed, detained or removed. In addition to any sentence imposed, the court may assess any reasonable expense incurred in searching for or returning the child against any person convicted of violating this Section.

(f) Nothing contained in this Section shall be construed to limit the court's contempt power.

(g) Every law enforcement officer investigating an alleged incident of child abduction shall make a written police report of any bona fide allegation and the disposition of such investigation. Every police report completed pursuant to this Section shall be compiled and recorded within the meaning of Section 5.1 of "An Act in relation to criminal identification and investigation", approved July 2, 1931, as now or hereafter amended.

(h) Whenever a law enforcement officer has reasons to believe a child abduction has occurred, he shall provide the lawful custodian a summary of her or his rights under this Act, including the procedures and relief available to her or him.

(i) If during the course of an investigation under this Section the child is found in the physical custody of the defendant or another, the law enforcement officer shall return the child to the parent or lawful custodian from whom the child was concealed, detained or removed, unless there is good cause for the law enforcement officer or the Department of Children and Family Services to retain temporary protective custody of the child pursuant to the Abused and Neglected Child Reporting Act, as now or hereafter amended.

(Source: P.A. 92-434, eff. 1-1-02.)

Section 99. Effective date. This Act takes effect upon becoming law.