Illinois General Assembly - Full Text of HB5425
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Full Text of HB5425  98th General Assembly

HB5425 98TH GENERAL ASSEMBLY

  
  

 


 
98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5425

 

Introduced , by Rep. John M. Cabello

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/102  from Ch. 40, par. 102
750 ILCS 5/602.1  from Ch. 40, par. 602.1
750 ILCS 5/602.4 new
750 ILCS 5/607  from Ch. 40, par. 607

    Amends the Illinois Marriage and Dissolution of Marriage Act. To the list of purposes of the Act, adds: (i) continuing existing child-parent relationships; and (ii) recognizing that the involvement of each parent for equal time and not less than 35% of residential parenting time per week is presumptively in the children's best interests. Provides that the court shall allocate parenting time according to the child's best interests and that it is presumed that it is in the child's best interests to award equal time to each parent. Provides that unless the parents present a mutually agreed written and notarized parenting plan within 90 days of both parties filing an appearance, the court shall allocate parenting time. Provides that it is presumed that both parents are fit and the court shall not place any restrictions on parenting time unless it finds by clear and convincing evidence that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral, or emotional health. Provides that in cases where the court finds that it is not in the best interests of the child for the parents to have equal time or that it is not possible for both parents to share time equally, a minimum of 35% residential time per week should be ordered for the non-custodial parent. Provides that the non-custodial parent may waive his or her right to a 35% minimum residential time per week. Provides that parents may agree to an alternate parenting schedule, subject to the court's approval. Provides that the term "visitation" includes parenting time. Provides that the parties shall implement an order allocating parenting time no more than 60 days after the entry of the order. Makes corresponding changes.


LRB098 15787 HEP 53892 b

 

 

A BILL FOR

 

HB5425LRB098 15787 HEP 53892 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 Sections 102, 602.1, and
6607 and by adding Section 602.4 as follows:
 
7    (750 ILCS 5/102)  (from Ch. 40, par. 102)
8    Sec. 102. Purposes; Rules of Construction. This Act shall
9be liberally construed and applied to promote its underlying
10purposes, which are to:
11    (1) provide adequate procedures for the solemnization and
12registration of marriage;
13    (2) strengthen and preserve the integrity of marriage and
14safeguard family relationships;
15    (3) promote the amicable settlement of disputes that have
16arisen between parties to a marriage;
17    (4) mitigate the potential harm to the spouses and their
18children caused by the process of legal dissolution of
19marriage;
20    (5) make reasonable provision for spouses and minor
21children during and after litigation, including provision for
22timely awards of interim fees to achieve substantial parity in
23parties' access to funds for litigation costs;

 

 

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1    (6) eliminate the consideration of marital misconduct in
2the adjudication of rights and duties incident to the legal
3dissolution of marriage, legal separation and declaration of
4invalidity of marriage;
5    (7) continue existing parent-child relationships, and
6secure the maximum involvement and cooperation of both parents
7regarding the physical, mental, moral, and emotional
8well-being of the children during and after the litigation; and
9    (8) make provision for the preservation and conservation of
10assets during the litigation; and .
11    (9) recognize that the involvement of each parent for equal
12time and not less than 35% of residential parenting time per
13week is presumptively in the children's best interests.
14(Source: P.A. 89-712, eff. 6-1-97.)
 
15    (750 ILCS 5/602.1)  (from Ch. 40, par. 602.1)
16    Sec. 602.1. (a) The dissolution of marriage, the
17declaration of invalidity of marriage, the legal separation of
18the parents, or the parents living separate and apart shall not
19diminish parental powers, rights, and responsibilities except
20as the court for good reason may determine under the standards
21of Section 602.
22    (b) Upon the application of either or both parents, or upon
23its own motion, the court shall consider an award of joint
24custody. Joint custody means custody determined pursuant to a
25Joint Parenting Agreement or a Joint Parenting Order. In such

 

 

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1cases, the court shall initially request the parents to produce
2a Joint Parenting Agreement. Such Agreement shall specify each
3parent's powers, rights and responsibilities for the personal
4care of the child and for major decisions such as education,
5health care, and religious training. The Agreement shall
6further specify a procedure by which proposed changes, disputes
7and alleged breaches may be mediated or otherwise resolved and
8shall provide for a periodic review of its terms by the
9parents. In producing a Joint Parenting Agreement, the parents
10shall be flexible in arriving at resolutions which further the
11policy of this State as expressed in Sections 102 and 602. For
12the purpose of assisting the court in making a determination
13whether an award of joint custody is appropriate, the court may
14order mediation and may direct that an investigation be
15conducted pursuant to the provisions of Section 605. If there
16is a danger to the health or safety of a partner, joint
17mediation shall not be required by the court. In the event the
18parents fail to produce a Joint Parenting Agreement, the court
19may enter an appropriate Joint Parenting Order under the
20standards of Section 602 which shall specify and contain the
21same elements as a Joint Parenting Agreement, or it may award
22sole custody under the standards of Sections 602, 607, and 608.
23    (c) The court may enter an order of joint custody if it
24determines that joint custody would be in the best interests of
25the child, taking into account the following:
26        (1) the ability of the parents to cooperate effectively

 

 

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1    and consistently in matters that directly affect the joint
2    parenting of the child. "Ability of the parents to
3    cooperate" means the parents' capacity to substantially
4    comply with a Joint Parenting Order. The court shall not
5    consider the inability of the parents to cooperate
6    effectively and consistently in matters that do not
7    directly affect the joint parenting of the child;
8        (2) The residential circumstances of each parent; and
9        (3) all other factors which may be relevant to the best
10    interest of the child.
11    (d) Nothing within this section shall imply or presume that
12joint custody shall necessarily mean equal parenting time. The
13physical residence of the child in joint custodial situations
14shall be determined by:
15        (1) express agreement of the parties; or
16        (2) order of the court under the standards of this
17    Section.
18    (e) Notwithstanding any other provision of law, access to
19records and information pertaining to a child, including but
20not limited to medical, dental, child care and school records,
21shall not be denied to a parent for the reason that such parent
22is not the child's custodial parent; however, no parent shall
23have access to the school records of a child if the parent is
24prohibited by an order of protection from inspecting or
25obtaining such records pursuant to the Illinois Domestic
26Violence Act of 1986, as now or hereafter amended or pursuant

 

 

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1to the Code of Criminal Procedure of 1963. No parent who is a
2named respondent in an order of protection issued pursuant to
3the Illinois Domestic Violence Act of 1986 or the Code of
4Criminal Procedure of 1963 shall have access to the health care
5records of a child who is a protected person under that order
6of protection.
7(Source: P.A. 95-912, eff. 1-1-09; 96-651, eff. 1-1-10.)
 
8    (750 ILCS 5/602.4 new)
9    Sec. 602.4. Parenting time.
10    (a) The court shall allocate parenting time according to
11the child's best interests. It is presumed that it is in the
12child's best interests to award equal time to each parent.
13    (b) Unless the parents present a mutually agreed written
14and notarized parenting plan within 90 days of both parties
15filing an appearance, the court shall allocate parenting time.
16It is presumed that both parents are fit and the court shall
17not place any restrictions on parenting time unless it finds by
18clear and convincing evidence that a parent's exercise of
19parenting time would seriously endanger the child's physical,
20mental, moral, or emotional health.
21    (c) In cases where the court finds that it is not in the
22best interests of the child for the parents to have equal time
23or that it is not possible for both parents to share time
24equally, a minimum of 35% residential time per week should be
25ordered for the non-custodial parent. The non-custodial parent

 

 

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1may waive his or her right to a 35% minimum residential time
2per week.
3    (d) The parents may agree to an alternate parenting
4schedule, subject to the court's approval.
5    (e) The parties shall implement an order allocating
6parenting time entered under this Section no more than 60 days
7after the entry of the order.
 
8    (750 ILCS 5/607)  (from Ch. 40, par. 607)
9    Sec. 607. Visitation.
10    (a) A parent not granted custody of the child is entitled
11to reasonable visitation rights unless the court finds, after a
12hearing, that visitation would endanger seriously the child's
13physical, mental, moral or emotional health. If the custodian's
14street address is not identified, pursuant to Section 708, the
15court shall require the parties to identify reasonable
16alternative arrangements for visitation by a non-custodial
17parent, including but not limited to visitation of the minor
18child at the residence of another person or at a local public
19or private facility.
20        (1) "Visitation" means in-person time spent between a
21    child and the child's parent. In appropriate
22    circumstances, it may include electronic communication
23    under conditions and at times determined by the court.
24    "Visitation" includes parenting time under Section 602.4
25    of this Act.

 

 

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1        (2) "Electronic communication" means time that a
2    parent spends with his or her child during which the child
3    is not in the parent's actual physical custody, but which
4    is facilitated by the use of communication tools such as
5    the telephone, electronic mail, instant messaging, video
6    conferencing or other wired or wireless technologies via
7    the Internet, or another medium of communication.
8    (a-3) Grandparents, great-grandparents, and siblings of a
9minor child, who is one year old or older, have standing to
10bring an action in circuit court by petition, requesting
11visitation in accordance with this Section. The term "sibling"
12in this Section means a brother, sister, stepbrother, or
13stepsister of the minor child. Grandparents,
14great-grandparents, and siblings also have standing to file a
15petition for visitation and any electronic communication
16rights in a pending dissolution proceeding or any other
17proceeding that involves custody or visitation issues,
18requesting visitation in accordance with this Section. A
19petition for visitation with a child by a person other than a
20parent must be filed in the county in which the child resides.
21Nothing in this subsection (a-3) and subsection (a-5) of this
22Section shall apply to a child in whose interests a petition is
23pending under Section 2-13 of the Juvenile Court Act of 1987 or
24a petition to adopt an unrelated child is pending under the
25Adoption Act.
26    (a-5)(1) Except as otherwise provided in this subsection

 

 

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1(a-5), any grandparent, great-grandparent, or sibling may file
2a petition for visitation rights to a minor child if there is
3an unreasonable denial of visitation by a parent and at least
4one of the following conditions exists:
5        (A) (Blank);
6        (A-5) the child's other parent is deceased or has been
7    missing for at least 3 months. For the purposes of this
8    Section a parent is considered to be missing if the
9    parent's location has not been determined and the parent
10    has been reported as missing to a law enforcement agency;
11        (A-10) a parent of the child is incompetent as a matter
12    of law;
13        (A-15) a parent has been incarcerated in jail or prison
14    during the 3 month period preceding the filing of the
15    petition;
16        (B) the child's mother and father are divorced or have
17    been legally separated from each other or there is pending
18    a dissolution proceeding involving a parent of the child or
19    another court proceeding involving custody or visitation
20    of the child (other than any adoption proceeding of an
21    unrelated child) and at least one parent does not object to
22    the grandparent, great-grandparent, or sibling having
23    visitation with the child. The visitation of the
24    grandparent, great-grandparent, or sibling must not
25    diminish the visitation of the parent who is not related to
26    the grandparent, great-grandparent, or sibling seeking

 

 

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1    visitation;
2        (C) (Blank);
3        (D) the child is born out of wedlock, the parents are
4    not living together, and the petitioner is a maternal
5    grandparent, great-grandparent, or sibling of the child
6    born out of wedlock; or
7        (E) the child is born out of wedlock, the parents are
8    not living together, the petitioner is a paternal
9    grandparent, great-grandparent, or sibling, and the
10    paternity has been established by a court of competent
11    jurisdiction.
12    (2) Any visitation rights granted pursuant to this Section
13before the filing of a petition for adoption of a child shall
14automatically terminate by operation of law upon the entry of
15an order terminating parental rights or granting the adoption
16of the child, whichever is earlier. If the person or persons
17who adopted the child are related to the child, as defined by
18Section 1 of the Adoption Act, any person who was related to
19the child as grandparent, great-grandparent, or sibling prior
20to the adoption shall have standing to bring an action pursuant
21to this Section requesting visitation with the child.
22    (3) In making a determination under this subsection (a-5),
23there is a rebuttable presumption that a fit parent's actions
24and decisions regarding grandparent, great-grandparent, or
25sibling visitation are not harmful to the child's mental,
26physical, or emotional health. The burden is on the party

 

 

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1filing a petition under this Section to prove that the parent's
2actions and decisions regarding visitation times are harmful to
3the child's mental, physical, or emotional health.
4    (4) In determining whether to grant visitation, the court
5shall consider the following:
6        (A) the preference of the child if the child is
7    determined to be of sufficient maturity to express a
8    preference;
9        (B) the mental and physical health of the child;
10        (C) the mental and physical health of the grandparent,
11    great-grandparent, or sibling;
12        (D) the length and quality of the prior relationship
13    between the child and the grandparent, great-grandparent,
14    or sibling;
15        (E) the good faith of the party in filing the petition;
16        (F) the good faith of the person denying visitation;
17        (G) the quantity of the visitation time requested and
18    the potential adverse impact that visitation would have on
19    the child's customary activities;
20        (H) whether the child resided with the petitioner for
21    at least 6 consecutive months with or without the current
22    custodian present;
23        (I) whether the petitioner had frequent or regular
24    contact or visitation with the child for at least 12
25    consecutive months;
26        (J) any other fact that establishes that the loss of

 

 

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1    the relationship between the petitioner and the child is
2    likely to harm the child's mental, physical, or emotional
3    health; and
4        (K) whether the grandparent, great-grandparent, or
5    sibling was a primary caretaker of the child for a period
6    of not less than 6 consecutive months.
7    (5) The court may order visitation rights for the
8grandparent, great-grandparent, or sibling that include
9reasonable access without requiring overnight or possessory
10visitation.
11    (a-7)(1) Unless by stipulation of the parties, no motion to
12modify a grandparent, great-grandparent, or sibling visitation
13order may be made earlier than 2 years after the date the order
14was filed, unless the court permits it to be made on the basis
15of affidavits that there is reason to believe the child's
16present environment may endanger seriously the child's mental,
17physical, or emotional health.
18    (2) The court shall not modify an order that grants
19visitation to a grandparent, great-grandparent, or sibling
20unless it finds by clear and convincing evidence, upon the
21basis of facts that have arisen since the prior visitation
22order or that were unknown to the court at the time of entry of
23the prior visitation, that a change has occurred in the
24circumstances of the child or his or her custodian, and that
25the modification is necessary to protect the mental, physical,
26or emotional health of the child. The court shall state in its

 

 

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1decision specific findings of fact in support of its
2modification or termination of the grandparent,
3great-grandparent, or sibling visitation. A child's parent may
4always petition to modify visitation upon changed
5circumstances when necessary to promote the child's best
6interest.
7    (3) Attorney fees and costs shall be assessed against a
8party seeking modification of the visitation order if the court
9finds that the modification action is vexatious and constitutes
10harassment.
11    (4) Notice under this subsection (a-7) shall be given as
12provided in subsections (c) and (d) of Section 601.
13    (b) (1) (Blank.)
14    (1.5) The Court may grant reasonable visitation privileges
15to a stepparent upon petition to the court by the stepparent,
16with notice to the parties required to be notified under
17Section 601 of this Act, if the court determines that it is in
18the best interests and welfare of the child, and may issue any
19necessary orders to enforce those visitation privileges. A
20petition for visitation privileges may be filed under this
21paragraph (1.5) whether or not a petition pursuant to this Act
22has been previously filed or is currently pending if the
23following circumstances are met:
24        (A) the child is at least 12 years old;
25        (B) the child resided continuously with the parent and
26    stepparent for at least 5 years;

 

 

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1        (C) the parent is deceased or is disabled and is unable
2    to care for the child;
3        (D) the child wishes to have reasonable visitation with
4    the stepparent; and
5        (E) the stepparent was providing for the care, control,
6    and welfare to the child prior to the initiation of the
7    petition for visitation.
8    (2)(A) A petition for visitation privileges shall not be
9filed pursuant to this subsection (b) by the parents or
10grandparents of a putative father if the paternity of the
11putative father has not been legally established.
12    (B) A petition for visitation privileges may not be filed
13under this subsection (b) if the child who is the subject of
14the grandparents' or great-grandparents' petition has been
15voluntarily surrendered by the parent or parents, except for a
16surrender to the Illinois Department of Children and Family
17Services or a foster care facility, or has been previously
18adopted by an individual or individuals who are not related to
19the biological parents of the child or is the subject of a
20pending adoption petition by an individual or individuals who
21are not related to the biological parents of the child.
22    (3) (Blank).
23    (c) The court may modify an order granting or denying
24visitation rights of a parent whenever modification would serve
25the best interest of the child; but the court shall not
26restrict a parent's visitation rights unless it finds that the

 

 

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1visitation would endanger seriously the child's physical,
2mental, moral or emotional health.
3    (d) If any court has entered an order prohibiting a
4non-custodial parent of a child from any contact with a child
5or restricting the non-custodial parent's contact with the
6child, the following provisions shall apply:
7        (1) If an order has been entered granting visitation
8    privileges with the child to a grandparent or
9    great-grandparent who is related to the child through the
10    non-custodial parent, the visitation privileges of the
11    grandparent or great-grandparent may be revoked if:
12            (i) a court has entered an order prohibiting the
13        non-custodial parent from any contact with the child,
14        and the grandparent or great-grandparent is found to
15        have used his or her visitation privileges to
16        facilitate contact between the child and the
17        non-custodial parent; or
18            (ii) a court has entered an order restricting the
19        non-custodial parent's contact with the child, and the
20        grandparent or great-grandparent is found to have used
21        his or her visitation privileges to facilitate contact
22        between the child and the non-custodial parent in a
23        manner that violates the terms of the order restricting
24        the non-custodial parent's contact with the child.
25        Nothing in this subdivision (1) limits the authority of
26    the court to enforce its orders in any manner permitted by

 

 

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1    law.
2        (2) Any order granting visitation privileges with the
3    child to a grandparent or great-grandparent who is related
4    to the child through the non-custodial parent shall contain
5    the following provision:
6        "If the (grandparent or great-grandparent, whichever
7    is applicable) who has been granted visitation privileges
8    under this order uses the visitation privileges to
9    facilitate contact between the child and the child's
10    non-custodial parent, the visitation privileges granted
11    under this order shall be permanently revoked."
12    (e) No parent, not granted custody of the child, or
13grandparent, or great-grandparent, or stepparent, or sibling
14of any minor child, convicted of any offense involving an
15illegal sex act perpetrated upon a victim less than 18 years of
16age including but not limited to offenses for violations of
17Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70,
18or Article 12 of the Criminal Code of 1961 or the Criminal Code
19of 2012, is entitled to visitation rights while incarcerated or
20while on parole, probation, conditional discharge, periodic
21imprisonment, or mandatory supervised release for that
22offense, and upon discharge from incarceration for a
23misdemeanor offense or upon discharge from parole, probation,
24conditional discharge, periodic imprisonment, or mandatory
25supervised release for a felony offense, visitation shall be
26denied until the person successfully completes a treatment

 

 

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1program approved by the court.
2    (f) Unless the court determines, after considering all
3relevant factors, including but not limited to those set forth
4in Section 602(a), that it would be in the best interests of
5the child to allow visitation, the court shall not enter an
6order providing visitation rights and pursuant to a motion to
7modify visitation shall revoke visitation rights previously
8granted to any person who would otherwise be entitled to
9petition for visitation rights under this Section who has been
10convicted of first degree murder of the parent, grandparent,
11great-grandparent, or sibling of the child who is the subject
12of the order. Until an order is entered pursuant to this
13subsection, no person shall visit, with the child present, a
14person who has been convicted of first degree murder of the
15parent, grandparent, great-grandparent, or sibling of the
16child without the consent of the child's parent, other than a
17parent convicted of first degree murder as set forth herein, or
18legal guardian.
19    (g) (Blank).
20    (h) Upon motion, the court may allow a parent who is
21deployed or who has orders to be deployed as a member of the
22United States Armed Forces to designate a person known to the
23child to exercise reasonable substitute visitation on behalf of
24the deployed parent, if the court determines that substitute
25visitation is in the best interest of the child. In determining
26whether substitute visitation is in the best interest of the

 

 

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1child, the court shall consider all of the relevant factors
2listed in subsection (a) of Section 602 and apply those factors
3to the person designated as a substitute for the deployed
4parent for visitation purposes.
5(Source: P.A. 96-331, eff. 1-1-10; 97-659, eff. 6-1-12;
697-1150, eff. 1-25-13.)