HB5369 96TH GENERAL ASSEMBLY

LRB096 19322 AJO 34713 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5369

Introduced 2/5/2010, by Rep. Eddie Washington

SYNOPSIS AS INTRODUCED:

750 ILCS 5/601	from Ch. 40, par. 601
750 ILCS 5/606	from Ch. 40, par. 606
755 ILCS 5/11-8	from Ch. 110 1/2, par. 11-8
755 ILCS 5/11-10.1	from Ch. 110 1/2, par. 11-10.1

Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that a child custody proceeding may be commenced by a person who provides "kinship care", by filing a petition that alleges that it is in the best interest of the child to live with him or her, if the person is the "de facto custodian" of the child. Provides that "de facto custodian" means the person who has been the primary caregiver for, and financial supporter of, a child who has resided with the person: for a period of 6 months or more, if the child is under 3 years of age; or for a period of one year or more, if the child is 3 years of age or older. Provides that "kinship care" means the care, nurturing, and protection of a child by a relative, grandparent, godparent, stepparent, or any adult who has physical custody and a kinship bond with a child. Provides that any notice of hearing in the proceeding shall be served by personal service or sent by certified or registered mail to all persons who have appeared of record in the proceeding. Amends the Probate Act of 1975. Provides that unless excused by the court for good cause shown, a petition for guardianship of a minor and a notice of hearing on the petition shall be given by personal service or by certified or registered mail to the minor, the minor's relatives, and the person having custody of the minor (instead of giving notice of the hearing on the petition, in person or by mail, to the minor and to the minor's relatives). Provides that the requirement that a copy of the petition and notice be served on or delivered to the person having custody of the minor is jurisdictional, but failure to provide copies to any relative is not jurisdictional (instead of providing that the failure to provide copies to any relative is not jurisdictional). Provides that a notice of hearing in a proceeding concerning guardianship of a minor shall be sent by certified or registered mail, return receipt requested, to all persons who have appeared of record in the proceeding.

A BILL FOR

AN ACT concerning civil law.

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

Section 5. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Sections 601 and 606 as follows:

(750 ILCS 5/601) (from Ch. 40, par. 601)

Sec. 601. Jurisdiction; Commencement of Proceeding.

(a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination in original or modification proceedings as provided in Section 201 of the Uniform Child-Custody Jurisdiction and Enforcement Act as adopted by this State.

(b) A child custody proceeding is commenced in the court:

(1) By by a parent, by filing a petition:

(i) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or

(ii) for custody of the child, in the county in which he is permanently resident or found. ;

(2) By by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents. ; or

(3) By by a stepparent, by filing a petition, if all of the following circumstances are met:

(A) the child is at least 12 years old;

(B) the custodial parent and stepparent were married for at least 5 years during which the child resided with the parent and stepparent;

(C) the custodial parent is deceased or is disabled and cannot perform the duties of a parent to the child;

(D) the stepparent provided for the care, control, and welfare to the child prior to the initiation of custody proceedings;

(E) the child wishes to live with the stepparent; and

(F) it is alleged to be in the best interests and welfare of the child to live with the stepparent as provided in Section 602 of this Act.

(3.1) By a person who provides "kinship care" to the child, by filing a petition that alleges that it is in the best interest of the child to live with the person as provided in Section 602 of this Act, if the person is the "de facto" custodian of the child.

For purposes of this paragraph (3.1):

"De facto custodian" means the person who has been the primary caregiver for, and the financial supporter of, a child who has resided with the person: (i) for a period of 6 months or more, if the child is under 3 years of age; or (ii) for a period of one year or more, if the child is 3 years of age or older.

"Kinship care" means the care, nurturing, and protection of a child by a relative, grandparent, godparent, stepparent, or any adult who has physical custody and a kinship bond with the child.

(4) When one of the parents is deceased, by a grandparent who is a parent or stepparent of a deceased parent, by filing a petition, if one or more of the following existed at the time of the parent's death:

(A) the surviving parent had been absent from the marital abode for more than one month without the deceased spouse knowing his or her whereabouts;

(B) the surviving parent was in State or federal custody; or

(C) the surviving parent had: (i) received supervision for or been convicted of any violation of Article 12 of the Criminal Code of 1961 directed towards the deceased parent or the child; or (ii) received supervision or been convicted of violating an order of protection entered under Section 217, 218, or 219 of the Illinois Domestic Violence Act of 1986 for the protection of the deceased parent or the child.

(c) Notice of a child custody proceeding, including an action for modification of a previous custody order, shall be given to the child's parents, guardian, and de facto custodian, who may appear, be heard, and file a responsive pleading. The court, upon showing of good cause, may permit intervention of other interested parties.

(d) Proceedings for modification of a previous custody order commenced more than 30 days following the entry of a previous custody order must be initiated by serving a written notice and a copy of the petition for modification upon the child's parent, guardian and custodian at least 30 days prior to hearing on the petition. Nothing in this Section shall preclude a party in custody modification proceedings from moving for a temporary order under Section 603 of this Act.

(e) (Blank).

(f) The court shall, at the court's discretion or upon the request of any party entitled to petition for custody of the child, appoint a guardian ad litem to represent the best interest of the child for the duration of the custody proceeding or for any modifications of any custody orders entered. Nothing in this Section shall be construed to prevent the court from appointing the same guardian ad litem for 2 or more children that are siblings or half-siblings.

(Source: P.A. 93-108, eff. 1-1-04; 93-1026, eff. 1-1-05.)

(750 ILCS 5/606) (from Ch. 40, par. 606)

Sec. 606. Hearings.

(a) Custody proceedings shall receive priority in being set for hearing. Any notice of hearing in a custody proceeding shall be served by personal service or sent by certified or registered mail, return receipt requested, to all who have appeared of record in the custody proceeding.

(b) The court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court deems necessary to determine the best interest of the child.

(c) The court, without a jury, shall determine questions of law and fact. If it finds that a public hearing may be detrimental to the child's best interest, the court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the court.

(d) If the court finds it necessary, in order to protect the child's welfare, that the record of any interview, report, investigation, or testimony in a custody proceeding be kept secret, the court may make an appropriate order sealing the record.

(e) Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act, or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987, shall be admissible in evidence in a hearing concerning custody of or visitation with the child. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.

(Source: P.A. 87-1081.)

Section 10. The Probate Act of 1975 is amended by changing Sections 11-8 and 11-10.1 as follows:

(755 ILCS 5/11-8) (from Ch. 110 1/2, par. 11-8)

Sec. 11-8. Petition for guardian of minor.

(a) The petition for appointment of a guardian of the estate, or of both the person and estate, of a minor, or for appointment of the guardian of the person only of a minor or minors must state, if known: (1) the name, date of birth and residence of the minor; (2) the names and post office addresses of the nearest relatives of the minor in the following order: (i) the spouse, if any; if none, (ii) the parents and adult brothers and sisters, if any; if none, (iii) the nearest adult kindred; (3) the name and post office address of the person having the custody of the minor; (4) the approximate value of the personal estate; (5) the amount of the anticipated gross annual income and other receipts; (6) the name, post office address and, in case of an individual, the age and occupation of the proposed guardian; (7) the facts concerning the execution or admission to probate of the written designation of the guardian, if any, a copy of which shall be attached to or filed with the petition; and (8) the facts concerning any juvenile, adoption, parentage, dissolution, or guardianship court actions pending concerning the minor or the parents of the minor and whether any guardian is currently acting for the minor. In addition, if the petition seeks the appointment of a previously appointed standby guardian as guardian of the minor, the petition must also state: (9) the facts concerning the standby guardian's previous appointment and (10) the date of death of the minor's parent or parents or the facts concerning the consent of the minor's parent or parents to the appointment of the standby guardian as guardian, or the willingness and ability of the minor's parent or parents to make and carry out day-to-day child care decisions concerning the minor.

(b) A single petition for appointment of only a guardian of the person of a minor may include more than one minor. The statements required in items (1) and (2) of subsection (a) shall be listed separately for each minor.

(c) Any notice of hearing in a guardianship proceeding under this Section shall be served by personal service or sent by certified or registered mail, return receipt requested, to all persons who have appeared of record in the guardianship proceeding.

(Source: P.A. 90-796, eff. 12-15-98.)

(755 ILCS 5/11-10.1) (from Ch. 110 1/2, par. 11-10.1)

Sec. 11-10.1. Procedure for appointment of a standby guardian or a guardian of a minor.

(a) Unless excused by the court for good cause shown, it is the duty of the petitioner to provide a copy of the petition and give notice of the time and place of the hearing on the petition by personal service or by certified or registered mail, return receipt requested, in person or by mail, to the minor, if the minor is 14 years, or older, and to the relatives of the minor, and to the person having custody of the minor whose names and addresses are stated in the petition, not less than 3 days before the hearing. , The requirement that a copy of the petition and notice be served on or delivered to the person having custody of the minor is jurisdictional, but failure to provide a copy of the petition and give notice to any relative is not jurisdictional.

(b) In any proceeding for the appointment of a standby guardian or a guardian the court may appoint a guardian ad litem to represent the minor in the proceeding.

(Source: P.A. 88-529.)