Full Text of HB1087 95th General Assembly
HB1087 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 HB1087
Introduced 2/8/2007, by Rep. Thomas Holbrook SYNOPSIS AS INTRODUCED: |
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750 ILCS 5/601 |
from Ch. 40, par. 601 |
750 ILCS 5/607 |
from Ch. 40, par. 607 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Provides for stepparent custody when the circumstances warrant custody; the circumstances to consider include: the parent's physical and mental health, abilities, and location; the child's living and care arrangements; the stepparent's role concerning care, control, and provision for the child's welfare; the child's age; the length of the marriage between the parent and the stepparent; the child's wishes; and the child's best interests. Provides for stepparent visitation when the circumstances warrant visitation; the circumstances to consider include: the parent's physical and mental condition, abilities, and location; the child's previous residency with the stepparent; the child's wishes; the child's age; the stepparent's role concerning care, control, and provision for the child's welfare; and the best interests of the child.
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A BILL FOR
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HB1087 |
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LRB095 06564 AJO 26667 b |
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Illinois Marriage and Dissolution of | 5 |
| Marriage Act is amended by changing Sections 601 and 607 as | 6 |
| follows:
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| (750 ILCS 5/601) (from Ch. 40, par. 601)
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| Sec. 601. Jurisdiction; Commencement of Proceeding.
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| (a) A court of this State competent to decide child custody | 10 |
| matters has
jurisdiction to make a child custody determination | 11 |
| in original or modification
proceedings as provided in Section | 12 |
| 201 of the Uniform
Child-Custody Jurisdiction and Enforcement | 13 |
| Act as
adopted by this State.
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| (b) A child custody proceeding is commenced in the court:
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| (1) by a parent, by filing a petition:
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| (i) for dissolution of marriage or legal | 17 |
| separation or declaration
of invalidity of marriage; | 18 |
| or
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| (ii) for custody of the child, in the county in | 20 |
| which he is
permanently resident or found;
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| (2) by a person other than a parent, by filing a | 22 |
| petition for
custody of the child in the county in which he | 23 |
| is permanently resident
or found, but only if he is not in |
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| the physical custody of one of his
parents; or
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| (3) by a stepparent, by filing a petition, if all of | 3 |
| the following
circumstances are met:
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| (A) the child is at least 12 years old;
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| (B) the custodial parent and stepparent were | 6 |
| married for at least 5
years during which the child | 7 |
| resided with the parent and stepparent;
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| (C) the custodial parent is deceased or is disabled | 9 |
| and cannot perform
the duties of a parent to the child;
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| (D) the stepparent provided for the care, control, | 11 |
| and welfare to the
child prior to the initiation of | 12 |
| custody proceedings;
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| (E) the child wishes to live with the stepparent; | 14 |
| and
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| (F) it is alleged to be in the best interests and | 16 |
| welfare of the
child to live with the stepparent as | 17 |
| provided in Section 602 of this Act. | 18 |
| (3.5) by a stepparent, by filing a petition, | 19 |
| notwithstanding that one or more of the circumstances | 20 |
| described in subparagraphs (A) through (F) in paragraph (3) | 21 |
| are not met, if all of the following circumstances are met: | 22 |
| (A) the child's age is consistent with an order of | 23 |
| stepparent custody; | 24 |
| (B) the length of the marriage of the custodial | 25 |
| parent and the stepparent and the nature and length of | 26 |
| the child's previous residency arrangements with the |
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| parent and
stepparent are consistent with an order of | 2 |
| stepparent custody; | 3 |
| (C) the parent's physical and mental condition as | 4 |
| it relates to the parent's ability
to care for the | 5 |
| child is consistent with an order of stepparent | 6 |
| custody; the parent's lack of
competence, | 7 |
| incarceration, absence (with his or her whereabouts | 8 |
| unknown), or the parent being otherwise unable or
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| unavailable to care for the child is consistent with an | 10 |
| order of stepparent custody; or the
parent is deceased; | 11 |
| (D) the child's wishes concerning stepparent | 12 |
| custody are consistent with an order of stepparent | 13 |
| custody; | 14 |
| (E) the stepparent's care, control, and provision | 15 |
| for the welfare of the child prior to the initiation of | 16 |
| the petition for custody are consistent with an order | 17 |
| of stepparent custody; | 18 |
| (F) other conditions exist that are consistent | 19 |
| with an order of stepparent custody; and | 20 |
| (G) it is in the best interests and welfare of the | 21 |
| child, as provided in Section 602 of this Act, to live | 22 |
| with the stepparent.
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| (4) When one of the parents is deceased, by a | 24 |
| grandparent who is a parent or stepparent of a deceased | 25 |
| parent, by filing a petition, if one or more of the | 26 |
| following existed at the time of the parent's death: |
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| (A) the surviving parent had been absent from the | 2 |
| marital abode for more than one month without the | 3 |
| deceased spouse knowing his or her whereabouts; | 4 |
| (B) the surviving parent was in State or federal | 5 |
| custody; or | 6 |
| (C) the surviving parent had: (i) received | 7 |
| supervision for or been convicted of any violation of | 8 |
| Article 12 of the Criminal Code of 1961 directed | 9 |
| towards the deceased parent or the child; or (ii) | 10 |
| received supervision or been convicted of violating an | 11 |
| order of protection entered under Section 217, 218, or | 12 |
| 219 of the Illinois Domestic Violence Act of 1986 for | 13 |
| the protection of the deceased parent or the child.
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| (c) Notice of a child custody proceeding, including an | 15 |
| action
for modification of a previous custody order, shall be | 16 |
| given to the
child's parents, guardian and custodian, who may | 17 |
| appear, be heard, and
file a responsive pleading. The court, | 18 |
| upon showing of good cause, may
permit intervention of other | 19 |
| interested parties.
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| (d) Proceedings for modification of a previous custody | 21 |
| order
commenced more than 30 days following the entry of a | 22 |
| previous custody order
must be initiated by serving a written | 23 |
| notice and a copy of the petition
for modification upon the | 24 |
| child's parent, guardian and custodian at least
30 days prior | 25 |
| to hearing on the petition. Nothing in this Section shall
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| preclude a party in custody modification proceedings from |
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| moving for a
temporary order under Section 603 of this Act.
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| (e) (Blank). | 3 |
| (f) The court shall, at the court's discretion or upon the | 4 |
| request of any party entitled to petition for custody of the | 5 |
| child, appoint a guardian ad litem to represent the best | 6 |
| interest of the child for the duration of the custody | 7 |
| proceeding or for any modifications of any custody orders | 8 |
| entered. Nothing in this Section shall be construed to prevent | 9 |
| the court from appointing the same guardian ad litem for 2 or | 10 |
| more children that are siblings or half-siblings.
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| (Source: P.A. 93-108, eff. 1-1-04; 93-1026, eff. 1-1-05.)
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| (750 ILCS 5/607) (from Ch. 40, par. 607)
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| Sec. 607. Visitation.
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| (a) A parent not granted custody of the child
is entitled | 15 |
| to reasonable visitation rights unless the court finds,
after a | 16 |
| hearing, that visitation would endanger seriously the child's
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| physical, mental, moral or emotional health. If the custodian's | 18 |
| street
address is not identified, pursuant to Section 708, the | 19 |
| court shall require
the parties to identify reasonable | 20 |
| alternative arrangements for visitation
by a non-custodial | 21 |
| parent, including but not limited to visitation of the
minor | 22 |
| child at the residence of another person or at a local public | 23 |
| or
private facility.
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| (a-3) Grandparents, great-grandparents, and siblings of a | 25 |
| minor child, who is one year old or older, have standing to |
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| bring an action in circuit court by petition, requesting | 2 |
| visitation in accordance with this Section. The term "sibling" | 3 |
| in this Section means a brother, sister, stepbrother, or | 4 |
| stepsister of the minor child. Grandparents, | 5 |
| great-grandparents, and siblings also have standing to file a | 6 |
| petition for visitation rights in a pending dissolution | 7 |
| proceeding or any other proceeding that involves custody or | 8 |
| visitation issues, requesting visitation in accordance with | 9 |
| this Section. A petition for visitation with a child by a | 10 |
| person other than a parent must be filed in the county in which | 11 |
| the child resides. Nothing in this subsection (a-3) and | 12 |
| subsection (a-5) of this Section shall apply to a child in | 13 |
| whose interests a petition is pending under Section 2-13 of the | 14 |
| Juvenile Court Act of 1987 or a petition to adopt an unrelated | 15 |
| child is pending under the Adoption Act. | 16 |
| (a-5)(1) Except as otherwise provided in this subsection | 17 |
| (a-5), any grandparent, great-grandparent, or sibling may file | 18 |
| a
petition for
visitation rights to a minor child if there is | 19 |
| an unreasonable denial of visitation by a parent and at least | 20 |
| one
of the
following conditions exists: | 21 |
| (A) (Blank); | 22 |
| (A-5) the child's other parent is deceased or has been | 23 |
| missing for at least 3 months. For the purposes of this | 24 |
| Section a parent is considered to be missing if the | 25 |
| parent's location has not been determined and the parent | 26 |
| has been reported as missing to a law enforcement agency;
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| (A-10) a parent of the child is incompetent as a matter | 2 |
| of law;
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| (A-15) a parent has been incarcerated in jail or prison | 4 |
| during the 3 month period preceding the filing of the | 5 |
| petition;
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| (B) the child's mother and father are divorced or have | 7 |
| been legally separated from
each other or there is pending | 8 |
| a dissolution proceeding involving a parent of the child or | 9 |
| another court proceeding involving custody or visitation | 10 |
| of the child (other than any adoption proceeding of an | 11 |
| unrelated child) and at least one parent does not object to | 12 |
| the grandparent, great-grandparent, or sibling having | 13 |
| visitation with the child. The visitation of the | 14 |
| grandparent, great-grandparent, or sibling must not | 15 |
| diminish the visitation of the parent who is not related to | 16 |
| the grandparent, great-grandparent, or sibling seeking | 17 |
| visitation; | 18 |
| (C) (Blank); | 19 |
| (D) the child is born out of wedlock, the parents are | 20 |
| not living together, and the petitioner is a maternal | 21 |
| grandparent, great-grandparent, or sibling of the child | 22 |
| born out of wedlock; or | 23 |
| (E) the child is born out of wedlock, the parents are | 24 |
| not living together, the petitioner is a paternal | 25 |
| grandparent, great-grandparent, or sibling, and the | 26 |
| paternity has been established by a court of competent |
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| jurisdiction. | 2 |
| (2) Any visitation rights granted pursuant to this Section | 3 |
| before the filing of a petition for adoption of a child shall | 4 |
| automatically terminate by operation of law upon the entry of | 5 |
| an order terminating parental rights or granting the adoption | 6 |
| of the child, whichever is earlier. If the person or persons | 7 |
| who adopted the child are related to the child, as defined by | 8 |
| Section 1 of the Adoption Act, any person who was related to | 9 |
| the child as grandparent, great-grandparent, or sibling prior | 10 |
| to the adoption shall have standing to bring an action pursuant | 11 |
| to this Section requesting visitation with the child.
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| (3) In making a determination under this subsection (a-5), | 13 |
| there is a
rebuttable
presumption that a fit parent's actions | 14 |
| and decisions regarding grandparent,
great-grandparent, or | 15 |
| sibling visitation are not harmful to the child's mental, | 16 |
| physical, or emotional health. The
burden is on the
party | 17 |
| filing a petition under this Section to prove that the
parent's | 18 |
| actions and
decisions regarding visitation times are harmful to | 19 |
| the child's mental, physical, or emotional health. | 20 |
| (4) In determining whether to grant visitation, the court | 21 |
| shall consider the following:
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| (A) the preference of the child if the child is | 23 |
| determined to be of sufficient maturity to express a | 24 |
| preference; | 25 |
| (B) the mental and physical health of the child; | 26 |
| (C) the mental and physical health of the grandparent, |
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| great-grandparent, or sibling; | 2 |
| (D) the length and quality of the prior relationship | 3 |
| between the child and the grandparent, great-grandparent, | 4 |
| or sibling;
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| (E) the good faith of the party in filing the petition;
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| (F) the good faith of the person denying visitation; | 7 |
| (G) the quantity of the visitation time requested and | 8 |
| the potential adverse impact that visitation would have on | 9 |
| the child's customary activities; | 10 |
| (H) whether the child resided with the petitioner for | 11 |
| at least
6 consecutive months with or without the current | 12 |
| custodian present; | 13 |
| (I) whether the petitioner had frequent or regular | 14 |
| contact or visitation with the child for at least 12 | 15 |
| consecutive months;
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| (J) any other fact that establishes that the loss of | 17 |
| the relationship between the petitioner and the child is | 18 |
| likely to harm the child's mental, physical, or emotional | 19 |
| health; and | 20 |
| (K) whether the grandparent, great-grandparent, or | 21 |
| sibling was a primary caretaker of the child for a period | 22 |
| of not less than 6 consecutive months.
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| (5) The court may order visitation rights for the | 24 |
| grandparent, great-grandparent, or sibling that include | 25 |
| reasonable access without requiring overnight or possessory | 26 |
| visitation.
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| (a-7)(1) Unless by stipulation of the parties, no motion to | 2 |
| modify a grandparent, great-grandparent, or sibling visitation | 3 |
| order may be made earlier than 2 years after the date the order | 4 |
| was filed, unless the court permits it to be made on the basis | 5 |
| of affidavits that there is reason to believe the child's | 6 |
| present environment may endanger seriously the child's mental, | 7 |
| physical, or emotional health. | 8 |
| (2) The court shall not modify an order that grants | 9 |
| visitation to a grandparent, great-grandparent, or sibling | 10 |
| unless it finds by clear and convincing evidence, upon the | 11 |
| basis of facts that have arisen since the prior visitation | 12 |
| order or that were unknown to the court at the time of entry of | 13 |
| the prior visitation, that a change has occurred in the | 14 |
| circumstances of the child or his or her custodian, and that | 15 |
| the modification is necessary to protect the mental, physical, | 16 |
| or emotional health of the child. The court shall state in its | 17 |
| decision specific findings of fact in support of its | 18 |
| modification or termination of the grandparent, | 19 |
| great-grandparent, or sibling visitation. A child's parent may | 20 |
| always petition to modify visitation upon changed | 21 |
| circumstances when necessary to promote the child's best | 22 |
| interest. | 23 |
| (3) Attorney fees and costs shall be assessed against a | 24 |
| party seeking modification of the visitation order if the court | 25 |
| finds that the modification action is vexatious and constitutes | 26 |
| harassment. |
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| (4) Notice under this subsection (a-7) shall be given as | 2 |
| provided in subsections (c) and (d) of Section 601.
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| (b) (1) (Blank.)
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| (1.5) The Court may grant reasonable visitation privileges | 5 |
| to a stepparent
upon petition to the court by the stepparent, | 6 |
| with notice to the parties
required to be notified under | 7 |
| Section 601 of this Act, if the court determines
that it is in | 8 |
| the best interests and welfare of the child, and may issue any
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| necessary orders to enforce those visitation privileges.
A | 10 |
| petition for visitation privileges may be filed under this | 11 |
| paragraph (1.5)
whether or not a petition pursuant to this Act | 12 |
| has been previously filed or is
currently pending if the | 13 |
| following
circumstances are met:
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| (A) the child is at least 12 years old;
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| (B) the child resided continuously with the parent and | 16 |
| stepparent for at
least 5 years;
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| (C) the parent is deceased or is disabled and is unable | 18 |
| to care for the
child;
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| (D) the child wishes to have reasonable visitation with | 20 |
| the stepparent;
and
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| (E) the stepparent was providing for the care, control, | 22 |
| and welfare to the
child prior to the initiation of the | 23 |
| petition for visitation.
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| Notwithstanding that one or more of the circumstances | 25 |
| described in subparagraphs (A) through (E) in this paragraph | 26 |
| (1.5) are not met, a stepparent may file a petition for |
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| visitation privileges if the stepparent shows:
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| (F) the child's age; | 3 |
| (G) the nature and length of the child's previous | 4 |
| residency arrangements with the parent and step-parent;
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| (H) the parent's physical and mental condition as it | 6 |
| relates to the parent's ability to care for the child; | 7 |
| whether the parent is incompetent, incarcerated, absent | 8 |
| (with his or her whereabouts unknown), or otherwise unable | 9 |
| or unavailable to care for the child; or the parent is | 10 |
| deceased;
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| (I) the child's wishes concerning visitation with the | 12 |
| stepparent;
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| (J) the circumstances that exist concerning the | 14 |
| stepparent's care, control, and provision for the welfare | 15 |
| of the child prior to the initiation of the petition for | 16 |
| visitation; and
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| (K) other circumstances that exist that show that | 18 |
| granting visitation privileges to the stepparent is in the | 19 |
| best interests and welfare of the child.
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| (2)(A) A petition for visitation privileges shall not be | 21 |
| filed pursuant
to this subsection (b) by the parents or | 22 |
| grandparents of a putative father
if the paternity of the | 23 |
| putative father has not been legally established.
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| (B) A petition for visitation privileges may not be filed | 25 |
| under
this subsection (b) if the child who is the subject of | 26 |
| the
grandparents' or great-grandparents' petition has been |
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| voluntarily
surrendered by the parent or parents, except for a | 2 |
| surrender to the
Illinois Department of Children and Family | 3 |
| Services or a foster care
facility, or has been previously | 4 |
| adopted by an individual or individuals
who are not related to | 5 |
| the biological parents of the child or is the
subject of a | 6 |
| pending adoption petition by an individual or individuals who
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| are not related to the biological parents of the child.
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| (3) (Blank).
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| (c) The court may modify an order granting or denying | 10 |
| visitation
rights of a parent whenever modification would serve | 11 |
| the best interest of
the child;
but the court shall not | 12 |
| restrict a parent's visitation rights unless it
finds that the | 13 |
| visitation would endanger seriously the child's physical,
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| mental, moral or emotional health.
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| (d) If any court has entered an order prohibiting a | 16 |
| non-custodial parent
of a child from any contact with a child
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| or restricting the non-custodial parent's contact with the | 18 |
| child, the
following provisions shall apply:
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| (1) If an order has been entered granting visitation | 20 |
| privileges with the
child to a grandparent or | 21 |
| great-grandparent who is related to the child through
the | 22 |
| non-custodial parent, the visitation privileges of the | 23 |
| grandparent or
great-grandparent may be revoked if:
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| (i) a court has entered an order prohibiting the | 25 |
| non-custodial parent
from any contact with the child, | 26 |
| and the grandparent or great-grandparent is
found to |
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| have used his or her visitation privileges to | 2 |
| facilitate contact
between the child and the | 3 |
| non-custodial parent; or
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| (ii) a court has entered an order restricting the | 5 |
| non-custodial parent's
contact with the child, and the | 6 |
| grandparent or great-grandparent is found to
have used | 7 |
| his or her visitation privileges to facilitate contact
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| between the child and the non-custodial parent in a | 9 |
| manner that violates the
terms of the order restricting | 10 |
| the non-custodial parent's contact with the
child.
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| Nothing in this subdivision (1) limits the authority of | 12 |
| the court to
enforce its orders in any manner permitted by | 13 |
| law.
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| (2) Any order granting visitation privileges with the | 15 |
| child to a
grandparent or great-grandparent who is related | 16 |
| to the child through the
non-custodial parent shall contain | 17 |
| the following provision:
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| "If the (grandparent or great-grandparent, whichever | 19 |
| is applicable) who has
been granted visitation privileges | 20 |
| under this order uses the visitation
privileges to | 21 |
| facilitate contact between the child and the child's
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| non-custodial parent, the visitation privileges granted | 23 |
| under this order shall
be permanently revoked."
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| (e) No parent, not granted custody of the child, or | 25 |
| grandparent, or
great-grandparent, or stepparent, or sibling | 26 |
| of any minor child, convicted
of any offense
involving an |
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| illegal sex act perpetrated upon a victim less than 18 years of
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| age including but not limited to offenses for violations of | 3 |
| Article 12 of the
Criminal Code of 1961, is entitled to | 4 |
| visitation rights while incarcerated
or while on parole, | 5 |
| probation, conditional discharge, periodic
imprisonment, or
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| mandatory supervised release for that offense, and upon | 7 |
| discharge from
incarceration for a misdemeanor offense or upon | 8 |
| discharge from parole,
probation, conditional discharge, | 9 |
| periodic imprisonment,
or mandatory supervised release for a | 10 |
| felony offense, visitation shall be
denied until the person | 11 |
| successfully completes a treatment program approved
by the | 12 |
| court.
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| (f) Unless the court determines, after considering all | 14 |
| relevant factors,
including but not limited to those set forth | 15 |
| in Section 602(a), that it would
be in the best interests of | 16 |
| the child to allow visitation, the court shall not
enter an | 17 |
| order providing visitation rights and pursuant to a motion to | 18 |
| modify
visitation shall revoke visitation rights previously | 19 |
| granted to any
person who would otherwise be entitled to | 20 |
| petition for visitation rights under
this Section who has been | 21 |
| convicted of first degree murder of the parent,
grandparent, | 22 |
| great-grandparent, or sibling of the child who is the subject | 23 |
| of
the order. Until an order is entered pursuant to this | 24 |
| subsection, no person
shall visit, with
the child present, a | 25 |
| person who has been convicted of first degree murder of
the | 26 |
| parent, grandparent, great-grandparent, or sibling of the |
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| child
without the consent of the child's parent, other than a | 2 |
| parent convicted of
first degree murder as set forth herein, or | 3 |
| legal
guardian.
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| (g) (Blank).
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| (Source: P.A. 93-911, eff. 1-1-05; 94-229, eff. 1-1-06; | 6 |
| 94-1026, eff. 1-1-07 .)
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