94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2595

 

Introduced 1/20/2006, by Sen. William R. Haine - Pamela J. Althoff - Cheryl Axley - Wendell E. Jones

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/602   from Ch. 40, par. 602
750 ILCS 5/602.1   from Ch. 40, par. 602.1

    Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that there is a rebuttable presumption that it is not in the best interest of a child to award custody to a parent who has been convicted of a crime that is in one of several designated categories (including battery, unlawful restraint, and stalking), convicted of a crime that resulted in serious physical injury to a family or household member, or determined by a court order to have violated an order of protection. The presumption can be rebutted by a preponderance of the evidence that the parent has completed a partner abuse program; alcohol and drug screening, if the court deems the screening to be appropriate, and alcohol or drug counseling or treatment, if applicable; all of the factors weigh in the parent's favor; and there is little likelihood of any future injury to the child. If the presumption is rebutted, the court shall state the evidence relied upon. If the presumption is not rebutted, custody shall be with the other parent, provided that is in the best interest of the child. If the presumptions for both parents are not rebutted, the court may award custody to one parent, if to do so is in the best interest of the child. Deletes from the list of relevant factors to consider in the determination of the best interest of the child, the willingness and ability of each parent to facilitate and encourage a continuing relationship between the other parent and the child.


LRB094 15644 AJO 53921 b

 

 

A BILL FOR

 

SB2595 LRB094 15644 AJO 53921 b

1     AN ACT concerning civil law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Illinois Marriage and Dissolution of
5 Marriage Act is amended by changing Sections 602 and 602.1 as
6 follows:
 
7     (750 ILCS 5/602)  (from Ch. 40, par. 602)
8     Sec. 602. Best Interest of Child.
9     (a) The court shall determine custody in accordance with
10 the best interest of the child. The court shall consider all
11 relevant factors including:
12         (1) the wishes of the child's parent or parents as to
13     his custody;
14         (2) the wishes of the child as to his custodian;
15         (3) the interaction and interrelationship of the child
16     with his parent or parents, his siblings and any other
17     person who may significantly affect the child's best
18     interest;
19         (4) the child's adjustment to his home, school and
20     community;
21         (5) the mental and physical health of all individuals
22     involved;
23         (6) the physical violence or threat of physical
24     violence by the child's potential custodian, whether
25     directed against the child or directed against another
26     person;
27         (7) the occurrence of ongoing or repeated abuse as
28     defined in Section 103 of the Illinois Domestic Violence
29     Act of 1986, whether directed against the child or directed
30     against another person; and
31         (8) (Blank). the willingness and ability of each parent
32     to facilitate and encourage a close and continuing

 

 

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1     relationship between the other parent and the child; and
2         (9) whether one of the parents is a sex offender.
3     In the case of a custody proceeding in which a stepparent
4 has standing under Section 601, it is presumed to be in the
5 best interest of the minor child that the natural parent have
6 the custody of the minor child unless the presumption is
7 rebutted by the stepparent.
8     (b) The court shall not consider conduct of a present or
9 proposed custodian that does not affect his relationship to the
10 child.
11     (c)(Blank). Unless the court finds the occurrence of
12 ongoing abuse as defined in Section 103 of the Illinois
13 Domestic Violence Act of 1986, the court shall presume that the
14 maximum involvement and cooperation of both parents regarding
15 the physical, mental, moral, and emotional well-being of their
16 child is in the best interest of the child. There shall be no
17 presumption in favor of or against joint custody.
18     (d) (1) There is a rebuttable presumption that it is not in
19     the best interest of the child for the court to grant
20     custody, either joint or sole, to a parent:
21             (A) if that parent was convicted of a crime under
22         the Criminal Code of 1961, that is included in this
23         list of offenses: unlawful restraint, aggravated
24         unlawful restraint, aggravated assault, battery,
25         domestic battery, aggravated domestic battery,
26         aggravated battery, heinous battery, aggravated
27         battery of a child, stalking, aggravated stalking, or
28         cyberstalking;
29             (B) if that parent was convicted of any crime that
30         resulted in serious physical injury to any family or
31         household member, as that term is defined by the
32         Illinois Domestic Violence Act of 1986; or
33             (C) if a court order determined that the parent
34         violated an order of protection entered under the
35         Illinois Domestic Violence Act of 1986, or violated an
36         order of protection entered under the Code of Criminal

 

 

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1         Procedure of 1963, or
2             (D) if that parent was convicted of a crime
3         pursuant to a statute of another state, tribe, or
4         United States territory that is substantially similar
5         to a crime described in subparagraph (A) or
6         subparagraph (B) of paragraph 1 of subsection (d); or
7             (E) if a court order determined that the parent
8         violated an order of protection or a substantially
9         similar order entered under a statute of another state,
10         tribe, or United States territory that is
11         substantially similar to the Illinois Domestic
12         Violence Act of 1986 or Article 112A Domestic Violence;
13         Order of Protection in the Code of Criminal Procedure
14         of 1963.
15         (2) This presumption may be rebutted only by a
16     preponderance of the evidence that:
17             (A) the parent who was convicted of one of the
18         crimes described in subparagraph (A) or subparagraph
19         (B) of paragraph 1 of subsection (d) has successfully
20         completed, since the conviction, a Partner Abuse
21         Intervention Program that is in compliance with the
22         Illinois Department of Human Services State standards;
23             (B) complete alcohol and drug screening
24         assessments, if the court finds that it is appropriate
25         for the parent to complete alcohol and drug screening
26         assessments by a certified substance abuse counselor
27         or program, and
28                 (1) either or both screening assessments
29             recommend counseling, treatment, or other measures
30             and the parent has successfully met all of the
31             recommendations that were made to the parent, or
32                 (2) the alcohol and drug screening assessments
33             conclude that there is no need for that parent to
34             undergo any counseling, treatment, or other
35             measures;
36             (C) all of the factors in Section 602 and the

 

 

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1         recent history of the parent outweighs the violation of
2         an order of protection, the criminal conviction, and,
3         if applicable, the reasons for the assessments'
4         recommendations for alcohol or drug counseling,
5         treatment, or other measures; and
6             (D) there is little likelihood of future injury to
7         the child or other party, notwithstanding the
8         violation of an order of protection, conviction of the
9         parent for a crime described in subparagraph (A) or
10         subparagraph (B) of paragraph 1 of subsection (d), or,
11         if applicable, the reasons for the assessments'
12         recommendations for alcohol or drug counseling,
13         treatment, or other measures.
14     (3) In a case where the presumption described in paragraph
15 (1) of subsection (d) is rebutted, the court shall state in
16 writing the evidence upon which the court relied for the
17 determination that the presumption was rebutted and the
18 findings of the court relating to the reason that custody with
19 that parent, if so determined by the court, is in the best
20 interest of the child.
21     (4) If there is no evidence against either parent of a
22 conviction of a listed crime or a court order that determined
23 that either parent's violated an order of protection, and
24 whenever it appears that both parents are fit, the court may
25 enter an order of joint custody taking into account the best
26 interest of the child and the other applicable provisions of
27 this Act. If a rebuttable presumption under paragraph (1) of
28 subsection (d) exists and that presumption is not rebutted,
29 sole custody shall be granted to the other parent, provided
30 that no unrebutted presumption exists as to the other parent
31 and no other evidence leads the court to conclude that an order
32 of sole custody with that parent would be contrary to the best
33 interest of the child. If a rebuttable presumption exists as to
34 each parent under paragraph (1) of subsection (d) and that
35 presumption is not rebutted as to either parent, sole custody
36 may be granted to one of the parents taking into account the

 

 

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1 best interest of the child, other applicable provisions of this
2 Act and, provided that no unrebutted presumption exists as to
3 the other parent and no other evidence leads the court to
4 conclude that an order of sole custody with that parent would
5 be contrary to the best interest of the child.
6 (Source: P.A. 94-377, eff. 7-29-05; 94-643, eff. 1-1-06;
7 revised 8-29-05.)
 
8     (750 ILCS 5/602.1)  (from Ch. 40, par. 602.1)
9     Sec. 602.1. (a) The dissolution of marriage, the
10 declaration of invalidity of marriage, the legal separation of
11 the parents, or the parents living separate and apart shall not
12 diminish parental powers, rights, and responsibilities except
13 as the court for good reason may determine under the standards
14 of Section 602.
15     (b) Upon the application of either or both parents, or upon
16 its own motion, the court shall consider an award of joint
17 custody. Joint custody means custody determined pursuant to a
18 Joint Parenting Agreement or a Joint Parenting Order. In such
19 cases, the court shall initially request the parents to produce
20 a Joint Parenting Agreement. Such Agreement shall specify each
21 parent's powers, rights and responsibilities for the personal
22 care of the child and for major decisions such as education,
23 health care, and religious training. The Agreement shall
24 further specify a procedure by which proposed changes, disputes
25 and alleged breaches may be mediated or otherwise resolved and
26 shall provide for a periodic review of its terms by the
27 parents. In producing a Joint Parenting Agreement, the parents
28 shall be flexible in arriving at resolutions which further the
29 policy of this State as expressed in Sections 102 and 602. For
30 the purpose of assisting the court in making a determination
31 whether an award of joint custody is appropriate, the court may
32 order mediation and may direct that an investigation be
33 conducted pursuant to the provisions of Section 605. If there
34 is a danger to the health or safety of a partner, joint
35 mediation shall not be required by the court. In the event the

 

 

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1 parents fail to produce a Joint Parenting Agreement, the court
2 may enter an appropriate Joint Parenting Order under the
3 standards of Section 602 which shall specify and contain the
4 same elements as a Joint Parenting Agreement, or it may award
5 sole custody under the standards of Sections 602, 607, and 608.
6     (c) (Blank). The court may enter an order of joint custody
7 if it determines that joint custody would be in the best
8 interests of the child, taking into account the following:
9         (1) the ability of the parents to cooperate effectively
10     and consistently in matters that directly affect the joint
11     parenting of the child. "Ability of the parents to
12     cooperate" means the parents' capacity to substantially
13     comply with a Joint Parenting Order. The court shall not
14     consider the inability of the parents to cooperate
15     effectively and consistently in matters that do not
16     directly affect the joint parenting of the child;
17         (2) The residential circumstances of each parent; and
18         (3) all other factors which may be relevant to the best
19     interest of the child.
20     (d) Nothing within this section shall imply or presume that
21 joint custody shall necessarily mean equal parenting time. The
22 physical residence of the child in joint custodial situations
23 shall be determined by:
24         (1) express agreement of the parties; or
25         (2) order of the court under the standards of this
26     Section.
27     (e) Notwithstanding any other provision of law, access to
28 records and information pertaining to a child, including but
29 not limited to medical, dental, child care and school records,
30 shall not be denied to a parent for the reason that such parent
31 is not the child's custodial parent; however, no parent shall
32 have access to the school records of a child if the parent is
33 prohibited by an order of protection from inspecting or
34 obtaining such records pursuant to the Illinois Domestic
35 Violence Act of 1986, as now or hereafter amended.
36 (Source: P.A. 94-377, eff. 7-29-05.)