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