Full Text of HB4232 102nd General Assembly
HB4232 102ND GENERAL ASSEMBLY |
| | 102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022 HB4232 Introduced 1/5/2022, by Rep. Mark Batinick SYNOPSIS AS INTRODUCED: |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that, in determining whether to grant visitation to a non-parent, the court shall consider whether denying visitation will result in the loss of knowledge of genetic history or health information necessary for future preventive health care measures of the child. Allows a grandparent, great-grandparent, step-parent, or sibling of a minor child to bring a petition for visitation and electronic communication if there is an unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child and if a parent of the child is a threat to the physical, mental, or emotional safety of either of the parents or the child.
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| | A BILL FOR |
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| 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 Section 602.9 as follows: | 6 | | (750 ILCS 5/602.9) | 7 | | Sec. 602.9. Visitation by certain non-parents. | 8 | | (a) As used in this Section: | 9 | | (1) "electronic communication" means time that a | 10 | | grandparent, great-grandparent, sibling, or step-parent | 11 | | spends with a child during which the child is not in the | 12 | | person's actual physical custody, but which is facilitated | 13 | | by the use of communication tools such as the telephone, | 14 | | electronic mail, instant messaging, video conferencing or | 15 | | other wired or wireless technologies via the Internet, or | 16 | | another medium of communication; | 17 | | (2) "sibling" means a brother or sister either of the | 18 | | whole blood or the half blood, stepbrother, or stepsister | 19 | | of the minor child; | 20 | | (3) "step-parent" means a person married to a child's | 21 | | parent, including a person married to the child's parent | 22 | | immediately prior to the parent's death; and | 23 | | (4) "visitation" means in-person time spent between a |
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| 1 | | child and the child's grandparent, great-grandparent, | 2 | | sibling, step-parent, or any person designated under | 3 | | subsection (d) of Section 602.7. In appropriate | 4 | | circumstances, visitation may include electronic | 5 | | communication under conditions and at times determined by | 6 | | the court. | 7 | | (b) General provisions. | 8 | | (1) An appropriate person, as identified in subsection | 9 | | (c) of this Section, may bring an action in circuit court | 10 | | by petition, or by filing a petition in a pending | 11 | | dissolution proceeding or any other proceeding that | 12 | | involves parental responsibilities or visitation issues | 13 | | regarding the child, requesting visitation with the child | 14 | | pursuant to this Section. If there is not a pending | 15 | | proceeding involving parental responsibilities or | 16 | | visitation with the child, the petition for visitation | 17 | | with the child must be filed in the county in which the | 18 | | child resides. Notice of the petition shall be given as | 19 | | provided in subsection (c) of Section 601.2 of this Act. | 20 | | (2) This Section does not apply to a child: | 21 | | (A) in whose interests a petition is pending under | 22 | | Section 2-13 of the Juvenile Court Act of 1987; or | 23 | | (B) in whose interests a petition to adopt by an | 24 | | unrelated person is pending under the Adoption Act; or | 25 | | (C) who has been voluntarily surrendered by the | 26 | | parent or parents, except for a surrender to the |
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| 1 | | Department of Children and Family Services or a foster | 2 | | care facility; or | 3 | | (D) who has been previously adopted by an | 4 | | individual or individuals who are not related to the | 5 | | biological parents of the child or who is the subject | 6 | | of a pending adoption petition by an individual or | 7 | | individuals who are not related to the biological | 8 | | parents of the child; or | 9 | | (E) who has been relinquished pursuant to the | 10 | | Abandoned Newborn Infant Protection Act. | 11 | | (3) A petition for visitation may be filed under this | 12 | | Section only if there has been an unreasonable denial of | 13 | | visitation by a parent and the denial has caused the child | 14 | | undue mental, physical, or emotional harm. | 15 | | (4) There is a rebuttable presumption that a fit | 16 | | parent's actions and decisions regarding grandparent, | 17 | | great-grandparent, sibling, or step-parent visitation are | 18 | | not harmful to the child's mental, physical, or emotional | 19 | | health. The burden is on the party filing a petition under | 20 | | this Section to prove that the parent's actions and | 21 | | decisions regarding visitation will cause undue harm to | 22 | | the child's mental, physical, or emotional health. | 23 | | (5) In determining whether to grant visitation, the | 24 | | court shall consider the following: | 25 | | (A) the wishes of the child, taking into account | 26 | | the child's maturity and ability to express reasoned |
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| 1 | | and independent preferences as to visitation; | 2 | | (B) the mental and physical health of the child; | 3 | | (C) the mental and physical health of the | 4 | | grandparent, great-grandparent, sibling, or | 5 | | step-parent; | 6 | | (D) the length and quality of the prior | 7 | | relationship between the child and the grandparent, | 8 | | great-grandparent, sibling, or step-parent; | 9 | | (E) the good faith of the party in filing the | 10 | | petition; | 11 | | (F) the good faith of the person denying | 12 | | visitation; | 13 | | (G) the quantity of the visitation time requested | 14 | | and the potential adverse impact that visitation would | 15 | | have on the child's customary activities; | 16 | | (H) any other fact that establishes that the loss | 17 | | of the relationship between the petitioner and the | 18 | | child is likely to unduly harm the child's mental, | 19 | | physical, or emotional health; and | 20 | | (I) whether visitation can be structured in a way | 21 | | to minimize the child's exposure to conflicts between | 22 | | the adults ; and | 23 | | (J) whether denial of visitation will result in | 24 | | the loss of knowledge of genetic history or health | 25 | | information necessary for future preventive health | 26 | | care measures of the child . |
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| 1 | | (6) Any visitation rights granted under this Section | 2 | | before the filing of a petition for adoption of the child | 3 | | shall automatically terminate by operation of law upon the | 4 | | entry of an order terminating parental rights or granting | 5 | | the adoption of the child, whichever is earlier. If the | 6 | | person or persons who adopted the child are related to the | 7 | | child, as defined by Section 1 of the Adoption Act, any | 8 | | person who was related to the child as grandparent, | 9 | | great-grandparent, or sibling prior to the adoption shall | 10 | | have standing to bring an action under this Section | 11 | | requesting visitation with the child. | 12 | | (7) The court may order visitation rights for the | 13 | | grandparent, great-grandparent, sibling, or step-parent | 14 | | that include reasonable access without requiring overnight | 15 | | or possessory visitation. | 16 | | (c) Visitation by grandparents, great-grandparents, | 17 | | step-parents, and siblings. | 18 | | (1) Grandparents, great-grandparents, step-parents, | 19 | | and siblings of a minor child who is one year old or older | 20 | | may bring a petition for visitation and electronic | 21 | | communication under this Section if there is an | 22 | | unreasonable denial of visitation by a parent that causes | 23 | | undue mental, physical, or emotional harm to the child and | 24 | | if at least one of the following conditions exists: | 25 | | (A) the child's other parent is deceased or has | 26 | | been missing for at least 90 days. For the purposes of |
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| 1 | | this subsection a parent is considered to be missing | 2 | | if the parent's location has not been determined and | 3 | | the parent has been reported as missing to a law | 4 | | enforcement agency; or | 5 | | (B) a parent of the child is incompetent as a | 6 | | matter of law; or | 7 | | (C) a parent has been incarcerated in jail or | 8 | | prison for a period in excess of 90 days immediately | 9 | | prior to the filing of the petition; or | 10 | | (D) the child's parents have been granted a | 11 | | dissolution of marriage or have been legally separated | 12 | | from each other or there is pending a dissolution | 13 | | proceeding involving a parent of the child or another | 14 | | court proceeding involving parental responsibilities | 15 | | or visitation of the child (other than an adoption | 16 | | proceeding of an unrelated child, a proceeding under | 17 | | Article II of the Juvenile Court Act of 1987, or an | 18 | | action for an order of protection under the Illinois | 19 | | Domestic Violence Act of 1986 or Article 112A of the | 20 | | Code of Criminal Procedure of 1963) and at least one | 21 | | parent does not object to the grandparent, | 22 | | great-grandparent, step-parent, or sibling having | 23 | | visitation with the child. The visitation of the | 24 | | grandparent, great-grandparent, step-parent, or | 25 | | sibling must not diminish the parenting time of the | 26 | | parent who is not related to the grandparent, |
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| 1 | | great-grandparent, step-parent, or sibling seeking | 2 | | visitation; or | 3 | | (E) (i) the child is born to parents who are not | 4 | | married to each other; (ii) the parents are not living | 5 | | together; (iii) the petitioner is a grandparent, | 6 | | great-grandparent, step-parent, or sibling of the | 7 | | child; and (iv) the parent-child relationship has been | 8 | | legally established. For purposes of this subdivision | 9 | | (E), if the petitioner is a grandparent or | 10 | | great-grandparent, the parent-child relationship need | 11 | | be legally established only with respect to the parent | 12 | | who is related to the grandparent or | 13 | | great-grandparent. For purposes of this subdivision | 14 | | (E), if the petitioner is a step-parent, the | 15 | | parent-child relationship need be legally established | 16 | | only with respect to the parent who is married to the | 17 | | petitioner or was married to the petitioner | 18 | | immediately before the parent's death ; or | 19 | | (F) a parent of the child is a threat to the | 20 | | physical, mental, or emotional safety of either of the | 21 | | parents or the child . | 22 | | (2) In addition to the factors set forth in | 23 | | subdivision (b)(5) of this Section, the court should | 24 | | consider: | 25 | | (A) whether the child resided with the petitioner | 26 | | for at least 6 consecutive months with or without a |
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| 1 | | parent present; | 2 | | (B) whether the child had frequent and regular | 3 | | contact or visitation with the petitioner for at least | 4 | | 12 consecutive months; and | 5 | | (C) whether the grandparent, great-grandparent, | 6 | | sibling, or step-parent was a primary caretaker of the | 7 | | child for a period of not less than 6 consecutive | 8 | | months within the 24-month period immediately | 9 | | preceding the commencement of the proceeding. | 10 | | (3) An order granting visitation privileges under this | 11 | | Section is subject to subsections (c) and (d) of Section | 12 | | 603.10. | 13 | | (4) A petition for visitation privileges may not be | 14 | | filed pursuant to this subsection (c) by the parents or | 15 | | grandparents of a parent of the child if parentage between | 16 | | the child and the related parent has not been legally | 17 | | established. | 18 | | (d) Modification of visitation orders. | 19 | | (1) Unless by stipulation of the parties, no motion to | 20 | | modify a grandparent, great-grandparent, sibling, or | 21 | | step-parent visitation order may be made earlier than 2 | 22 | | years after the date the order was filed, unless the court | 23 | | permits it to be made on the basis of affidavits that there | 24 | | is reason to believe the child's present environment may | 25 | | endanger seriously the child's mental, physical, or | 26 | | emotional health. |
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| 1 | | (2) The court shall not modify an order that grants | 2 | | visitation to a grandparent, great-grandparent, sibling, | 3 | | or step-parent unless it finds by clear and convincing | 4 | | evidence, upon the basis of facts that have arisen since | 5 | | the prior visitation order or that were unknown to the | 6 | | court at the time of entry of the prior visitation order, | 7 | | that a change has occurred in the circumstances of the | 8 | | child or his or her parent, and that the modification is | 9 | | necessary to protect the mental, physical, or emotional | 10 | | health of the child. The court shall state in its decision | 11 | | specific findings of fact in support of its modification | 12 | | or termination of the grandparent, great-grandparent, | 13 | | sibling, or step-parent visitation. A child's parent may | 14 | | always petition to modify visitation upon changed | 15 | | circumstances when necessary to promote the child's best | 16 | | interests. | 17 | | (3) Notice of a motion requesting modification of a | 18 | | visitation order shall be provided as set forth in | 19 | | subsection (c) of Section 601.2 of this Act. | 20 | | (4) Attorney's fees and costs shall be assessed | 21 | | against a party seeking modification of the visitation | 22 | | order if the court finds that the modification action is | 23 | | vexatious and constitutes harassment. | 24 | | (e) No child's grandparent, great-grandparent, sibling, or | 25 | | step-parent, or any person to whom the court is considering | 26 | | granting visitation privileges pursuant to subsection (d) of |
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| 1 | | Section 602.7, who was convicted of any offense involving an | 2 | | illegal sex act perpetrated upon a victim less than 18 years of | 3 | | age including, but not limited to, offenses for violations of | 4 | | Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, | 5 | | or Article 12 of the Criminal Code of 1961 or the Criminal Code | 6 | | of 2012, is entitled to visitation while incarcerated or while | 7 | | on parole, probation, conditional discharge, periodic | 8 | | imprisonment, or mandatory supervised release for that | 9 | | offense, and upon discharge from incarceration for a | 10 | | misdemeanor offense or upon discharge from parole, probation, | 11 | | conditional discharge, periodic imprisonment, or mandatory | 12 | | supervised release for a felony offense. Visitation shall be | 13 | | denied until the person successfully completes a treatment | 14 | | program approved by the court. Upon completion of treatment, | 15 | | the court may deny visitation based on the factors listed in | 16 | | subdivision (b)(5) of this Section. | 17 | | (f) No child's grandparent, great-grandparent, sibling, or | 18 | | step-parent, or any person to whom the court is considering | 19 | | granting visitation privileges pursuant to subsection (d) of | 20 | | Section 602.7, may be granted visitation if he or she has been | 21 | | convicted of first degree murder of a parent, grandparent, | 22 | | great-grandparent, or sibling of the child who is the subject | 23 | | of the visitation request. Pursuant to a motion to modify | 24 | | visitation, the court shall revoke visitation rights | 25 | | previously granted to any person who would otherwise be | 26 | | entitled to petition for visitation rights under this Section |
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| 1 | | or granted visitation under subsection (d) of Section 602.7, | 2 | | if the person has been convicted of first degree murder of a | 3 | | parent, grandparent, great-grandparent, or sibling of the | 4 | | child who is the subject of the visitation order. Until an | 5 | | order is entered pursuant to this subsection, no person may | 6 | | visit, with the child present, a person who has been convicted | 7 | | of first degree murder of the parent, grandparent, | 8 | | great-grandparent, or sibling of the child without the consent | 9 | | of the child's parent, other than a parent convicted of first | 10 | | degree murder as set forth herein, or legal guardian.
| 11 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; | 12 | | 100-706, eff. 1-1-19 .)
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