Rep. Patricia Reid Lindner

Filed: 3/23/2004

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 4318

2     AMENDMENT NO. ______. Amend House Bill 4318 by replacing
3 everything after the enacting clause with the following:
 
4     "Section 5. The Illinois Marriage and Dissolution of
5 Marriage Act is amended by changing Section 607 as follows:
 
6     (750 ILCS 5/607)  (from Ch. 40, par. 607)
7     Sec. 607. Visitation.
8     (a) A parent not granted custody of the child is entitled
9 to reasonable visitation rights unless the court finds, after a
10 hearing, that visitation would endanger seriously the child's
11 physical, mental, moral or emotional health. If the custodian's
12 street address is not identified, pursuant to Section 708, the
13 court shall require the parties to identify reasonable
14 alternative arrangements for visitation by a non-custodial
15 parent, including but not limited to visitation of the minor
16 child at the residence of another person or at a local public
17 or private facility.
18     (a-5)(1) Except as otherwise provided in this subsection
19 (a-5), any grandparent, great-grandparent, or sibling may file
20 a petition for visitation rights to a minor child if there is
21 an unreasonable denial of visitation and at least one of the
22 following conditions exists:
23         (A) one parent of the child is incompetent as a matter
24 of law or deceased or has been sentenced to a period of

 

 

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1 imprisonment for more than 1 year;
2         (B) the child's mother and father are divorced or have
3 been legally separated from each other during the 3 month
4 period prior to the filing of the petition and at least one
5 parent does not object to the grandparent,
6 great-grandparent, or sibling having visitation with the
7 child. The visitation of the grandparent,
8 great-grandparent, or sibling must not diminish the
9 visitation of the parent who is not related to the
10 grandparent, great-grandparent, or sibling seeking
11 visitation;
12         (C) the court has terminated a parent-child
13 relationship and the grandparent, great-grandparent, or
14 sibling is the parent of the person whose parental rights
15 have been terminated, except in cases of adoption. The
16 visitation must not be used to allow the parent who lost
17 parental rights to unlawfully visit with the child;
18         (D) the child resided in the home of the grandparent,
19 great-grandparent, or sibling for a period of 6 consecutive
20 months or more and the grandparent, great-grandparent, or
21 sibling was the primary caregiver for the child within the
22 2 years prior to the filing of the petition;
23         (E) the child is illegitimate, the parents are not
24 living together, and the petitioner is a maternal
25 grandparent, great-grandparent, or sibling of the
26 illegitimate child; or
27         (F) the child is illegitimate, the parents are not
28 living together, the petitioner is a paternal grandparent,
29 great-grandparent, or sibling, and the paternity has been
30 established by a court of competent jurisdiction.
31     (2) The grandparent, great-grandparent, or sibling of a
32 parent whose parental rights have been terminated through an
33 adoption proceeding may not petition for visitation rights.
34     (3) In making a determination under this subsection (a-5),

 

 

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1 there is a rebuttable presumption that a fit parent's actions
2 and decisions regarding grandparent, great-grandparent, or
3 sibling visitation are not harmful to the child's mental,
4 physical, or emotional health. The burden is on the party
5 filing a petition under this Section to prove that the parent's
6 actions and decisions regarding visitation times are harmful to
7 the child's mental, physical, or emotional health.
8     (4) In determining whether to grant visitation, the court
9 shall consider the following:
10         (A) the preference of the child if the child is
11 determined to be of sufficient maturity to express a
12 preference;
13         (B) the mental and physical health of the child;
14         (C) the mental and physical health of the grandparent,
15 great-grandparent, or sibling;
16         (D) the length and quality of the prior relationship
17 between the child and the grandparent, great-grandparent,
18 or sibling;
19         (E) the good faith of the party in filing the petition;
20         (F) the good faith of the person denying visitation;
21         (G) the quantity of the visitation time requested and
22 the potential adverse impact that visitation would have on
23 the child's customary activities;
24         (H) whether the child resided with the petitioner for
25 at least 6 consecutive months with or without the current
26 custodian present;
27         (I) whether the petitioner had frequent or regular
28 contact with the child for at least 12 consecutive months;
29 and
30         (J) any other fact that establishes that the loss of
31 the relationship between the petitioner and the child is
32 likely to harm the child's mental, physical, or emotional
33 health.
34     (5) The court may order visitation rights for the

 

 

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1 grandparent, great-grandparent, or sibling that include
2 reasonable access without requiring overnight or possessory
3 visitation.
4     (a-7)(1) Unless by stipulation of the parties, no motion to
5 modify a grandparent, great-grandparent, or sibling visitation
6 order may be made earlier than 2 years after the date the order
7 was filed, unless the court permits it to be made on the basis
8 of affidavits that there is reason to believe the child's
9 present environment may endanger seriously the child's mental,
10 physical, or emotional health.
11     (2) The court shall not modify a prior grandparent,
12 great-grandparent, or sibling visitation order unless it finds
13 by clear and convincing evidence, upon the basis of facts that
14 have arisen since the prior visitation order or that were
15 unknown to the court at the time of entry of the prior
16 visitation, that a change has occurred in the circumstances of
17 the child or his or her custodian, and that the modification is
18 necessary to protect the mental, physical, or emotional health
19 of the child. The court shall state in its decision specific
20 findings of fact in support of its modification or termination
21 of the grandparent, great-grandparent, or sibling visitation.
22     (3) Attorney fees and costs shall be assessed against a
23 party seeking modification of the visitation order if the court
24 finds that the modification action is vexatious and constitutes
25 harassment.
26     (4) Notice under this subsection (a-7) shall be given as
27 provided in subsections (c) and (d) of Section 601.
28     (b) (1) (Blank.) The court may grant reasonable visitation
29 privileges to a grandparent, great-grandparent, or sibling of
30 any minor child upon petition to the court by the grandparents
31 or great-grandparents or on behalf of the sibling, with notice
32 to the parties required to be notified under Section 601 of
33 this Act, if the court determines that it is in the best
34 interests and welfare of the child, and may issue any necessary

 

 

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1 orders to enforce such visitation privileges. Except as
2 provided in paragraph (2) of this subsection (b), a petition
3 for visitation privileges may be filed under this paragraph (1)
4 whether or not a petition pursuant to this Act has been
5 previously filed or is currently pending if one or more of the
6 following circumstances exist:
7         (A) the parents are not currently cohabiting on a
8 permanent or an indefinite basis;
9         (B) one of the parents has been absent from the marital
10 abode for more than one month without the spouse knowing
11 his or her whereabouts;
12         (C) one of the parents is deceased;
13         (D) one of the parents joins in the petition with the
14 grandparents, great-grandparents, or sibling; or
15         (E) a sibling is in State custody.
16     (1.5) The Court may grant reasonable visitation privileges
17 to a stepparent upon petition to the court by the stepparent,
18 with notice to the parties required to be notified under
19 Section 601 of this Act, if the court determines that it is in
20 the best interests and welfare of the child, and may issue any
21 necessary orders to enforce those visitation privileges. A
22 petition for visitation privileges may be filed under this
23 paragraph (1.5) whether or not a petition pursuant to this Act
24 has been previously filed or is currently pending if the
25 following circumstances are met:
26         (A) the child is at least 12 years old;
27         (B) the child resided continuously with the parent and
28 stepparent for at least 5 years;
29         (C) the parent is deceased or is disabled and is unable
30 to care for the child;
31         (D) the child wishes to have reasonable visitation with
32 the stepparent; and
33         (E) the stepparent was providing for the care, control,
34 and welfare to the child prior to the initiation of the

 

 

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1 petition for visitation.
2     (2)(A) A petition for visitation privileges shall not be
3 filed pursuant to this subsection (b) by the parents or
4 grandparents of a putative father if the paternity of the
5 putative father has not been legally established.
6     (B) A petition for visitation privileges may not be filed
7 under this subsection (b) if the child who is the subject of
8 the grandparents' or great-grandparents' petition has been
9 voluntarily surrendered by the parent or parents, except for a
10 surrender to the Illinois Department of Children and Family
11 Services or a foster care facility, or has been previously
12 adopted by an individual or individuals who are not related to
13 the biological parents of the child or is the subject of a
14 pending adoption petition by an individual or individuals who
15 are not related to the biological parents of the child.
16     (3) (Blank). When one parent is deceased, the surviving
17 parent shall not interfere with the visitation rights of the
18 grandparents.
19     (c) The court may modify an order granting or denying
20 visitation rights of a parent whenever modification would serve
21 the best interest of the child; but the court shall not
22 restrict a parent's visitation rights unless it finds that the
23 visitation would endanger seriously the child's physical,
24 mental, moral or emotional health. The court may modify an
25 order granting, denying, or limiting visitation rights of a
26 grandparent, great-grandparent, or sibling of any minor child
27 whenever a change of circumstances has occurred based on facts
28 occurring subsequent to the judgment and the court finds by
29 clear and convincing evidence that the modification is in the
30 best interest of the minor child.
31     (d) If any court has entered an order prohibiting a
32 non-custodial parent of a child from any contact with a child
33 or restricting the non-custodial parent's contact with the
34 child, the following provisions shall apply:

 

 

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1         (1) If an order has been entered granting visitation
2 privileges with the child to a grandparent or
3 great-grandparent who is related to the child through the
4 non-custodial parent, the visitation privileges of the
5 grandparent or great-grandparent may be revoked if:
6             (i) a court has entered an order prohibiting the
7 non-custodial parent from any contact with the child,
8 and the grandparent or great-grandparent is found to
9 have used his or her visitation privileges to
10 facilitate contact between the child and the
11 non-custodial parent; or
12             (ii) a court has entered an order restricting the
13 non-custodial parent's contact with the child, and the
14 grandparent or great-grandparent is found to have used
15 his or her visitation privileges to facilitate contact
16 between the child and the non-custodial parent in a
17 manner that violates the terms of the order restricting
18 the non-custodial parent's contact with the child.
19         Nothing in this subdivision (1) limits the authority of
20 the court to enforce its orders in any manner permitted by
21 law.
22         (2) Any order granting visitation privileges with the
23 child to a grandparent or great-grandparent who is related
24 to the child through the non-custodial parent shall contain
25 the following provision:
26         "If the (grandparent or great-grandparent, whichever
27 is applicable) who has been granted visitation privileges
28 under this order uses the visitation privileges to
29 facilitate contact between the child and the child's
30 non-custodial parent, the visitation privileges granted
31 under this order shall be permanently revoked."
32     (e) No parent, not granted custody of the child, or
33 grandparent, or great-grandparent, or stepparent, or sibling
34 of any minor child, convicted of any offense involving an

 

 

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1 illegal sex act perpetrated upon a victim less than 18 years of
2 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
6 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.
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
27 child without the consent of the child's parent, other than a
28 parent convicted of first degree murder as set forth herein, or
29 legal guardian.
30     (g) If an order has been entered limiting, for cause, a
31 minor child's contact or visitation with a grandparent,
32 great-grandparent, or sibling on the grounds that it was in the
33 best interest of the child to do so, that order may be modified
34 only upon a showing of a substantial change in circumstances

 

 

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1 occurring subsequent to the entry of the order with proof by
2 clear and convincing evidence that modification is in the best
3 interest of the minor child.
4 (Source: P.A. 90-782, eff. 8-14-98; 90-801, eff. 6-1-99;
5 91-357, eff. 7-29-99; 91-610, eff. 8-19-99.)".