Full Text of HB4895 93rd General Assembly
HB4895 93RD GENERAL ASSEMBLY
|
|
|
93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004 HB4895
Introduced 02/04/04, by Kevin Joyce, James D. Brosnahan SYNOPSIS AS INTRODUCED: |
|
705 ILCS 405/2-10 |
from Ch. 37, par. 802-10 |
705 ILCS 405/2-27 |
from Ch. 37, par. 802-27 |
705 ILCS 405/2-28 |
from Ch. 37, par. 802-28 |
750 ILCS 5/602 |
from Ch. 40, par. 602 |
750 ILCS 45/14 |
from Ch. 40, par. 2514 |
|
Amends the Illinois Marriage and Dissolution of Marriage Act, the Illinois Parentage Act of 1984, and the Juvenile Court Act of 1987. Provides that the court shall not make a custody determination in any custody proceeding in favor of any party against whom there are pending domestic violence charges, either under the Illinois Domestic Violence Act of 1986 or under the Criminal Code of 1961, until those pending charges have been resolved.
|
| |
|
|
A BILL FOR
|
|
|
|
|
HB4895 |
|
LRB093 19027 LCB 44762 b |
|
| 1 |
| AN ACT concerning child custody.
| 2 |
| Be it enacted by the People of the State of Illinois,
| 3 |
| represented in the General Assembly:
| 4 |
| Section 5. The Juvenile Court Act of 1987 is amended by | 5 |
| changing Sections 2-10, 2-27, and 2-28 as follows:
| 6 |
| (705 ILCS 405/2-10) (from Ch. 37, par. 802-10)
| 7 |
| Sec. 2-10. Temporary custody hearing. At the appearance of | 8 |
| the
minor before the court at the temporary custody hearing, | 9 |
| all
witnesses present shall be examined before the court in | 10 |
| relation to any
matter connected with the allegations made in | 11 |
| the petition.
| 12 |
| (1) If the court finds that there is not probable cause to | 13 |
| believe
that the minor is abused, neglected or dependent it | 14 |
| shall release
the minor and dismiss the petition.
| 15 |
| (2) If the court finds that there is probable cause to | 16 |
| believe that
the minor is abused, neglected or dependent, the | 17 |
| court shall state in writing
the factual basis supporting its | 18 |
| finding and the minor, his or her parent,
guardian, custodian | 19 |
| and other persons able to give relevant testimony
shall be | 20 |
| examined before the court. The Department of Children and
| 21 |
| Family Services shall give testimony concerning indicated | 22 |
| reports of abuse
and neglect, of which they are aware of | 23 |
| through the central registry,
involving the minor's parent, | 24 |
| guardian or custodian. After such
testimony, the court may, | 25 |
| consistent with
the health,
safety and best interests of the | 26 |
| minor,
enter an order that the minor shall be released
upon the | 27 |
| request of parent, guardian or custodian if the parent, | 28 |
| guardian
or custodian appears to take custody. The court shall | 29 |
| not release a minor to a parent, guardian, or custodian against | 30 |
| whom there is any pending domestic violence charge, either | 31 |
| under the Illinois Domestic Violence Act of 1986 or under the | 32 |
| Criminal Code of 1961, until that pending charge has been |
|
|
|
HB4895 |
- 2 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| resolved. Custodian shall include any agency of
the State which | 2 |
| has been given custody or wardship of the child. If it is
| 3 |
| consistent with the health, safety and best interests of the
| 4 |
| minor, the
court may also prescribe shelter care and
order that | 5 |
| the minor be kept in a suitable place designated by the court | 6 |
| or in
a shelter care facility designated by the Department of | 7 |
| Children and Family
Services or a licensed child welfare
| 8 |
| agency; however, a minor charged with a
criminal offense under | 9 |
| the Criminal Code of 1961 or adjudicated delinquent
shall not | 10 |
| be placed in the custody of or committed to the Department of
| 11 |
| Children and Family Services by any court, except a minor less | 12 |
| than 13
years of age and committed to the Department of | 13 |
| Children and Family Services
under Section 5-710 of this Act or | 14 |
| a minor for whom an independent
basis of
abuse, neglect, or | 15 |
| dependency exists, which must be defined by departmental
rule.
| 16 |
| In placing the minor, the Department or other
agency shall, to | 17 |
| the extent
compatible with the court's order, comply with | 18 |
| Section 7 of the Children and
Family Services Act.
In | 19 |
| determining
the health, safety and best interests of the minor | 20 |
| to prescribe shelter
care, the court must
find that it is a | 21 |
| matter of immediate and urgent necessity for the safety
and | 22 |
| protection
of the minor or of the person or property of another | 23 |
| that the minor be placed
in a shelter care facility or that he | 24 |
| or she is likely to flee the jurisdiction
of the court, and | 25 |
| must further find that reasonable efforts have been made or
| 26 |
| that, consistent with the health, safety and best interests of
| 27 |
| the minor, no efforts reasonably can be made to
prevent or | 28 |
| eliminate the necessity of removal of the minor from his or her
| 29 |
| home. The court shall require documentation from the Department | 30 |
| of Children and
Family Services as to the reasonable efforts | 31 |
| that were made to prevent or
eliminate the necessity of removal | 32 |
| of the minor from his or her home or the
reasons why no efforts | 33 |
| reasonably could be made to prevent or eliminate the
necessity | 34 |
| of removal. When a minor is placed in the home of a relative, | 35 |
| the
Department of Children and Family Services shall complete a | 36 |
| preliminary
background review of the members of the minor's |
|
|
|
HB4895 |
- 3 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| custodian's household in
accordance with Section 4.3 of the | 2 |
| Child Care Act of 1969 within 90 days of
that placement. If the | 3 |
| minor is ordered placed in a shelter care facility of
the | 4 |
| Department of Children and
Family Services or a licensed child | 5 |
| welfare agency, the court shall, upon
request of the | 6 |
| appropriate Department or other agency, appoint the
Department | 7 |
| of Children and Family Services Guardianship Administrator or
| 8 |
| other appropriate agency executive temporary custodian of the | 9 |
| minor and the
court may enter such other orders related to the | 10 |
| temporary custody as it
deems fit and proper, including the | 11 |
| provision of services to the minor or
his family to ameliorate | 12 |
| the causes contributing to the finding of probable
cause or to | 13 |
| the finding of the existence of immediate and urgent necessity.
| 14 |
| Acceptance of services shall not be considered an admission of | 15 |
| any
allegation in a petition made pursuant to this Act, nor may | 16 |
| a referral of
services be considered as evidence in any | 17 |
| proceeding pursuant to this Act,
except where the issue is | 18 |
| whether the Department has made reasonable
efforts to reunite | 19 |
| the family. In making its findings that it is
consistent with | 20 |
| the health, safety and best
interests of the minor to prescribe | 21 |
| shelter care, the court shall state in
writing (i) the factual | 22 |
| basis supporting its findings concerning the
immediate and | 23 |
| urgent necessity for the protection of the minor or of the | 24 |
| person
or property of another and (ii) the factual basis | 25 |
| supporting its findings that
reasonable efforts were made to | 26 |
| prevent or eliminate the removal of the minor
from his or her | 27 |
| home or that no efforts reasonably could be made to prevent or
| 28 |
| eliminate the removal of the minor from his or her home. The
| 29 |
| parents, guardian, custodian, temporary custodian and minor | 30 |
| shall each be
furnished a copy of such written findings. The | 31 |
| temporary custodian shall
maintain a copy of the court order | 32 |
| and written findings in the case record
for the child. The | 33 |
| order together with the court's findings of fact in
support | 34 |
| thereof shall be entered of record in the court.
| 35 |
| Once the court finds that it is a matter of immediate and | 36 |
| urgent necessity
for the protection of the minor that the minor |
|
|
|
HB4895 |
- 4 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| be placed in a shelter care
facility, the minor shall not be | 2 |
| returned to the parent, custodian or guardian
until the court | 3 |
| finds that such placement is no longer necessary for the
| 4 |
| protection of the minor.
| 5 |
| If the child is placed in the temporary custody of the | 6 |
| Department of
Children
and Family
Services for his or her | 7 |
| protection, the court shall admonish the parents,
guardian,
| 8 |
| custodian or responsible relative that the parents must | 9 |
| cooperate with the
Department of Children and Family Services, | 10 |
| comply
with the terms of the service plans, and correct the | 11 |
| conditions which require
the child to be in care, or risk | 12 |
| termination of their parental
rights.
| 13 |
| (3) If prior to the shelter care hearing for a minor | 14 |
| described in Sections
2-3, 2-4, 3-3 and 4-3 the moving party is | 15 |
| unable to serve notice on the
party respondent, the shelter | 16 |
| care hearing may proceed ex-parte. A shelter
care order from an | 17 |
| ex-parte hearing shall be endorsed with the date and
hour of | 18 |
| issuance and shall be filed with the clerk's office and entered | 19 |
| of
record. The order shall expire after 10 days from the time | 20 |
| it is issued
unless before its expiration it is renewed, at a | 21 |
| hearing upon appearance
of the party respondent, or upon an | 22 |
| affidavit of the moving party as to all
diligent efforts to | 23 |
| notify the party respondent by notice as herein
prescribed. The | 24 |
| notice prescribed shall be in writing and shall be
personally | 25 |
| delivered to the minor or the minor's attorney and to the last
| 26 |
| known address of the other person or persons entitled to | 27 |
| notice. The
notice shall also state the nature of the | 28 |
| allegations, the nature of the
order sought by the State, | 29 |
| including whether temporary custody is sought,
and the | 30 |
| consequences of failure to appear and shall contain a notice
| 31 |
| that the parties will not be entitled to further written | 32 |
| notices or publication
notices of proceedings in this case, | 33 |
| including the filing of an amended
petition or a motion to | 34 |
| terminate parental rights, except as required by
Supreme Court | 35 |
| Rule 11; and shall explain the
right of
the parties and the | 36 |
| procedures to vacate or modify a shelter care order as
provided |
|
|
|
HB4895 |
- 5 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| in this Section. The notice for a shelter care hearing shall be
| 2 |
| substantially as follows:
| 3 |
| NOTICE TO PARENTS AND CHILDREN
| 4 |
| OF SHELTER CARE HEARING
| 5 |
| On ................ at ........., before the Honorable | 6 |
| ................,
(address:) ................., the State | 7 |
| of Illinois will present evidence
(1) that (name of child | 8 |
| or children) ....................... are abused,
neglected | 9 |
| or dependent for the following reasons:
| 10 |
| ..............................................
and (2) | 11 |
| that there is "immediate and urgent necessity" to remove | 12 |
| the child
or children from the responsible relative.
| 13 |
| YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN | 14 |
| PLACEMENT of the
child or children in foster care until a | 15 |
| trial can be held. A trial may
not be held for up to 90 | 16 |
| days. You will not be entitled to further notices
of | 17 |
| proceedings in this case, including the filing of an | 18 |
| amended petition or a
motion to terminate parental rights.
| 19 |
| At the shelter care hearing, parents have the following | 20 |
| rights:
| 21 |
| 1. To ask the court to appoint a lawyer if they | 22 |
| cannot afford one.
| 23 |
| 2. To ask the court to continue the hearing to | 24 |
| allow them time to
prepare.
| 25 |
| 3. To present evidence concerning:
| 26 |
| a. Whether or not the child or children were | 27 |
| abused, neglected
or dependent.
| 28 |
| b. Whether or not there is "immediate and | 29 |
| urgent necessity" to remove
the child from home | 30 |
| (including: their ability to care for the child,
| 31 |
| conditions in the home, alternative means of | 32 |
| protecting the child other
than removal).
| 33 |
| c. The best interests of the child.
| 34 |
| 4. To cross examine the State's witnesses.
| 35 |
| The Notice for rehearings shall be substantially as |
|
|
|
HB4895 |
- 6 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| follows:
| 2 |
| NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
| 3 |
| TO REHEARING ON TEMPORARY CUSTODY
| 4 |
| If you were not present at and did not have adequate | 5 |
| notice of the
Shelter Care Hearing at which temporary | 6 |
| custody of ............... was
awarded to | 7 |
| ................, you have the right to request a full | 8 |
| rehearing
on whether the State should have temporary | 9 |
| custody of ................. To
request this rehearing, | 10 |
| you must file with the Clerk of the Juvenile Court
| 11 |
| (address): ........................, in person or by | 12 |
| mailing a statement
(affidavit) setting forth the | 13 |
| following:
| 14 |
| 1. That you were not present at the shelter care | 15 |
| hearing.
| 16 |
| 2. That you did not get adequate notice (explaining | 17 |
| how the notice
was inadequate).
| 18 |
| 3. Your signature.
| 19 |
| 4. Signature must be notarized.
| 20 |
| The rehearing should be scheduled within 48 hours of | 21 |
| your filing this
affidavit.
| 22 |
| At the rehearing, your rights are the same as at the | 23 |
| initial shelter care
hearing. The enclosed notice explains | 24 |
| those rights.
| 25 |
| At the Shelter Care Hearing, children have the | 26 |
| following rights:
| 27 |
| 1. To have a guardian ad litem appointed.
| 28 |
| 2. To be declared competent as a witness and to | 29 |
| present testimony
concerning:
| 30 |
| a. Whether they are abused, neglected or | 31 |
| dependent.
| 32 |
| b. Whether there is "immediate and urgent | 33 |
| necessity" to be
removed from home.
| 34 |
| c. Their best interests.
| 35 |
| 3. To cross examine witnesses for other parties.
| 36 |
| 4. To obtain an explanation of any proceedings and |
|
|
|
HB4895 |
- 7 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| orders of the
court.
| 2 |
| (4) If the parent, guardian, legal custodian, responsible | 3 |
| relative,
minor age 8 or over, or counsel of the minor did not | 4 |
| have actual notice of
or was not present at the shelter care | 5 |
| hearing, he or she may file an
affidavit setting forth these | 6 |
| facts, and the clerk shall set the matter for
rehearing not | 7 |
| later than 48 hours, excluding Sundays and legal holidays,
| 8 |
| after the filing of the affidavit. At the rehearing, the court | 9 |
| shall
proceed in the same manner as upon the original hearing.
| 10 |
| (5) Only when there is reasonable cause to believe that the | 11 |
| minor
taken into custody is a person described in subsection | 12 |
| (3) of Section
5-105 may the minor be
kept or detained in a | 13 |
| detention home or county or municipal jail. This
Section shall | 14 |
| in no way be construed to limit subsection (6).
| 15 |
| (6) No minor under 16 years of age may be confined in a | 16 |
| jail or place
ordinarily used for the confinement of prisoners | 17 |
| in a police station. Minors
under 17 years of age must be kept | 18 |
| separate from confined adults and may
not at any time be kept | 19 |
| in the same cell, room, or yard with adults confined
pursuant | 20 |
| to the criminal law.
| 21 |
| (7) If the minor is not brought before a judicial officer | 22 |
| within the
time period as specified in Section 2-9, the minor | 23 |
| must immediately be
released from custody.
| 24 |
| (8) If neither the parent, guardian or custodian appears | 25 |
| within 24
hours to take custody of a minor released upon | 26 |
| request pursuant to
subsection (2) of this Section, then the | 27 |
| clerk of the court shall set the
matter for rehearing not later | 28 |
| than 7 days after the original order and
shall issue a summons | 29 |
| directed to the parent, guardian or custodian to
appear. At the | 30 |
| same time the probation department shall prepare a report
on | 31 |
| the minor. If a parent, guardian or custodian does not appear | 32 |
| at such
rehearing, the judge may enter an order prescribing | 33 |
| that the minor be kept
in a suitable place designated by the | 34 |
| Department of Children and Family
Services or a licensed child | 35 |
| welfare agency.
| 36 |
| (9) Notwithstanding any other provision of this
Section any |
|
|
|
HB4895 |
- 8 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| interested party, including the State, the temporary
| 2 |
| custodian, an agency providing services to the minor or family | 3 |
| under a
service plan pursuant to Section 8.2 of the Abused and | 4 |
| Neglected Child
Reporting Act, foster parent, or any of their | 5 |
| representatives, on notice
to all parties entitled to notice, | 6 |
| may file a motion that it is in the best
interests of the minor | 7 |
| to modify or vacate a
temporary custody order on any of the | 8 |
| following grounds:
| 9 |
| (a) It is no longer a matter of immediate and urgent | 10 |
| necessity that the
minor remain in shelter care; or
| 11 |
| (b) There is a material change in the circumstances of | 12 |
| the natural
family from which the minor was removed and the | 13 |
| child can be cared for at
home without endangering the | 14 |
| child's health or safety; or
| 15 |
| (c) A person not a party to the alleged abuse, neglect | 16 |
| or dependency,
including a parent, relative or legal | 17 |
| guardian, is capable of assuming
temporary custody of the | 18 |
| minor; or
| 19 |
| (d) Services provided by the Department of Children and | 20 |
| Family Services
or a child welfare agency or other service | 21 |
| provider have been successful in
eliminating the need for | 22 |
| temporary custody and the child can be cared for at
home | 23 |
| without endangering the child's health or safety.
| 24 |
| In ruling on the motion, the court shall determine whether | 25 |
| it is consistent
with the health, safety and best interests of | 26 |
| the minor to modify
or vacate a temporary custody order.
| 27 |
| The clerk shall set the matter for hearing not later than | 28 |
| 14 days after
such motion is filed. In the event that the court | 29 |
| modifies or vacates a
temporary custody order but does not | 30 |
| vacate its finding of probable cause,
the court may order that | 31 |
| appropriate services be continued or initiated in
behalf of the | 32 |
| minor and his or her family.
| 33 |
| (10) When the court finds or has found that there is | 34 |
| probable cause to
believe a minor is an abused minor as | 35 |
| described in subsection (2) of Section
2-3
and that there is an | 36 |
| immediate and urgent necessity for the abused minor to be
|
|
|
|
HB4895 |
- 9 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| placed in shelter care, immediate and urgent necessity shall be | 2 |
| presumed for
any other minor residing in the same household as | 3 |
| the abused minor provided:
| 4 |
| (a) Such other minor is the subject of an abuse or | 5 |
| neglect petition
pending before the court; and
| 6 |
| (b) A party to the petition is seeking shelter care for | 7 |
| such other minor.
| 8 |
| Once the presumption of immediate and urgent necessity has | 9 |
| been raised, the
burden of demonstrating the lack of immediate | 10 |
| and urgent necessity shall be on
any party that is opposing | 11 |
| shelter care for the other minor.
| 12 |
| (Source: P.A. 89-21, eff. 7-1-95; 89-422 ; 89-582,
eff. 1-1-97; | 13 |
| 89-626, eff. 8-9-96; 90-28, eff. 1-1-98; 90-87, eff. 9-1-97;
| 14 |
| 90-590, eff. 1-1-99; 90-655, eff. 7-30-98.)
| 15 |
| (705 ILCS 405/2-27) (from Ch. 37, par. 802-27)
| 16 |
| Sec. 2-27. Placement; legal custody or guardianship.
| 17 |
| (1) If the court determines and puts in writing the factual | 18 |
| basis supporting
the determination of whether the parents, | 19 |
| guardian, or legal custodian of a
minor adjudged a ward of the | 20 |
| court are unfit or are unable, for some reason
other than | 21 |
| financial circumstances alone, to care for, protect, train or
| 22 |
| discipline the minor or are unwilling to do so, and that the
| 23 |
| health, safety, and best
interest of the minor will be | 24 |
| jeopardized if the minor remains in the custody
of his or her | 25 |
| parents, guardian or
custodian, the court may at this hearing | 26 |
| and at any later point:
| 27 |
| (a) place the minor in the custody of a suitable | 28 |
| relative or other person
as
legal custodian or guardian;
| 29 |
| (a-5) with the approval of the Department of Children | 30 |
| and Family
Services, place the minor in the subsidized | 31 |
| guardianship of a suitable relative
or
other person as | 32 |
| legal guardian; "subsidized guardianship" means a private
| 33 |
| guardianship arrangement for children for whom the | 34 |
| permanency goals of return
home and adoption have been | 35 |
| ruled out and who meet the qualifications for
subsidized |
|
|
|
HB4895 |
- 10 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| guardianship as defined by the Department of Children and | 2 |
| Family
Services in administrative rules;
| 3 |
| (b) place the minor under the guardianship of a | 4 |
| probation officer;
| 5 |
| (c) commit the minor to an agency for care or | 6 |
| placement, except an
institution under the authority of the | 7 |
| Department of Corrections or of
the Department of Children | 8 |
| and Family Services;
| 9 |
| (d) commit the minor to the Department of Children and | 10 |
| Family Services for
care and service; however, a minor | 11 |
| charged with a criminal offense under the
Criminal Code of | 12 |
| 1961 or adjudicated delinquent shall not be placed in the
| 13 |
| custody of or committed to the Department of Children and | 14 |
| Family Services by
any court, except a minor less than 13 | 15 |
| years of age and committed to the
Department of Children | 16 |
| and Family Services under Section 5-710 of this Act. The
| 17 |
| Department shall be given due notice of the pendency of the | 18 |
| action and the
Guardianship Administrator of the | 19 |
| Department of Children and Family Services
shall be | 20 |
| appointed guardian of the person of the minor. Whenever the | 21 |
| Department
seeks to discharge a minor from its care and | 22 |
| service, the Guardianship
Administrator shall petition the | 23 |
| court for an
order terminating guardianship. The | 24 |
| Guardianship Administrator may
designate one or more other | 25 |
| officers of the Department, appointed as
Department | 26 |
| officers by administrative order of the Department | 27 |
| Director,
authorized to affix the signature of the | 28 |
| Guardianship Administrator to
documents affecting the | 29 |
| guardian-ward relationship of children for whom
he or she | 30 |
| has been appointed guardian at such times as he or she is | 31 |
| unable to
perform
the duties of his or her office. The | 32 |
| signature authorization shall include but
not be limited to | 33 |
| matters of consent of marriage, enlistment in the
armed | 34 |
| forces, legal proceedings, adoption, major medical and | 35 |
| surgical
treatment and application for driver's license. | 36 |
| Signature authorizations
made pursuant to the provisions |
|
|
|
HB4895 |
- 11 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| of this paragraph shall be filed with
the Secretary of | 2 |
| State and the Secretary of State shall provide upon
payment | 3 |
| of the customary fee, certified copies of the authorization | 4 |
| to
any court or individual who requests a copy.
| 5 |
| (1.5) In making a determination under this Section, the | 6 |
| court shall also
consider
whether, based on health, safety, and | 7 |
| the best interests of the minor,
| 8 |
| (a) appropriate services aimed
at family preservation | 9 |
| and family reunification have been unsuccessful in
| 10 |
| rectifying the conditions that have led to a finding of | 11 |
| unfitness or inability
to care for, protect, train, or | 12 |
| discipline the minor, or
| 13 |
| (b) no family preservation or family reunification
| 14 |
| services would be appropriate,
| 15 |
| and if the petition or amended petition
contained an allegation | 16 |
| that the
parent is an unfit
person as defined in subdivision | 17 |
| (D) of Section 1 of the Adoption Act, and the
order of
| 18 |
| adjudication
recites that parental unfitness was established | 19 |
| by clear and convincing
evidence, the court
shall, when | 20 |
| appropriate and in the best interest of the minor, enter an
| 21 |
| order terminating parental rights and
appointing a guardian | 22 |
| with
power to
consent to adoption in accordance with Section | 23 |
| 2-29.
| 24 |
| When making a placement, the court, wherever possible, | 25 |
| shall
require the Department of Children and Family Services to | 26 |
| select a person
holding the same religious belief as that of | 27 |
| the minor or a private agency
controlled by persons of like | 28 |
| religious faith of the minor and shall require
the Department | 29 |
| to otherwise comply with Section 7 of the Children and Family
| 30 |
| Services Act in placing the child. In addition, whenever | 31 |
| alternative plans for
placement are available, the court shall | 32 |
| ascertain and consider, to the extent
appropriate in the | 33 |
| particular case, the views and preferences of the minor.
| 34 |
| (2) When a minor is placed with a suitable relative or | 35 |
| other
person pursuant to item (a) of subsection (1),
the court | 36 |
| shall appoint him or her the legal custodian or guardian of the
|
|
|
|
HB4895 |
- 12 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| person of the minor. When a minor is committed to any agency, | 2 |
| the court
shall appoint the proper officer or representative | 3 |
| thereof as legal
custodian or guardian of the person of the | 4 |
| minor. Legal custodians and
guardians of the person of the | 5 |
| minor have the respective rights and duties set
forth in | 6 |
| subsection (9) of Section 1-3 except as otherwise provided by | 7 |
| order
of court; but no guardian of the person may consent to | 8 |
| adoption of the
minor unless that authority is conferred upon | 9 |
| him or her in accordance with
Section 2-29. An agency whose | 10 |
| representative is appointed guardian of the
person or legal | 11 |
| custodian of the minor may place the minor in any child care
| 12 |
| facility, but the facility must be licensed under the Child | 13 |
| Care Act of
1969 or have been approved by the Department of | 14 |
| Children and Family Services
as meeting the standards | 15 |
| established for such licensing. No agency may
place a minor | 16 |
| adjudicated under Sections 2-3 or 2-4 in a child care facility
| 17 |
| unless the placement is in compliance with the rules and | 18 |
| regulations
for placement under this Section promulgated by the | 19 |
| Department of Children
and Family Services under Section 5 of | 20 |
| the Children and Family Services
Act. Like authority and | 21 |
| restrictions shall be conferred by the court upon
any probation | 22 |
| officer who has been appointed guardian of the person of a | 23 |
| minor.
| 24 |
| (2.5) The court shall not make a custody determination in | 25 |
| any custody proceeding in favor of a party against whom there | 26 |
| is any pending domestic violence charge, either under the | 27 |
| Illinois Domestic Violence Act of 1986 or under the Criminal | 28 |
| Code of 1961, until that pending charge has been resolved.
| 29 |
| (3) No placement by any probation officer or agency whose | 30 |
| representative
is appointed guardian of the person or legal | 31 |
| custodian of a minor may be
made in any out of State child care | 32 |
| facility unless it complies with the
Interstate Compact on the | 33 |
| Placement of Children. Placement with a parent,
however, is not | 34 |
| subject to that Interstate Compact.
| 35 |
| (4) The clerk of the court shall issue to the legal | 36 |
| custodian or
guardian of the person a certified copy of the |
|
|
|
HB4895 |
- 13 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| order of court, as proof
of his authority. No other process is | 2 |
| necessary as authority for the
keeping of the minor.
| 3 |
| (5) Custody or guardianship granted under this Section | 4 |
| continues until
the court otherwise directs, but not after the | 5 |
| minor reaches the age
of 19 years except as set forth in | 6 |
| Section 2-31.
| 7 |
| (6) (Blank).
| 8 |
| (Source: P.A. 90-27, eff. 1-1-98; 90-28, eff. 1-1-98; 90-512, | 9 |
| eff. 8-22-97;
90-590, eff. 1-1-99; 90-608, eff. 6-30-98; | 10 |
| 90-655, eff. 7-30-98; 91-357, eff.
7-29-99.)
| 11 |
| (705 ILCS 405/2-28) (from Ch. 37, par. 802-28)
| 12 |
| Sec. 2-28. Court review.
| 13 |
| (1) The court may require any legal custodian or guardian | 14 |
| of the person
appointed under this Act to report periodically | 15 |
| to the court or may cite
him into court and require him or his | 16 |
| agency, to make a full and
accurate report of his or its doings | 17 |
| in behalf of the minor. The
custodian or guardian, within 10 | 18 |
| days after such citation, shall make
the report, either in | 19 |
| writing verified by affidavit or orally under oath
in open | 20 |
| court, or otherwise as the court directs. Upon the hearing of
| 21 |
| the report the court may remove the custodian or guardian and | 22 |
| appoint
another in his stead or restore the minor to the | 23 |
| custody of his parents
or former guardian or custodian. | 24 |
| However, custody of the minor shall
not be restored to any | 25 |
| parent, guardian or legal custodian in any case
in which the | 26 |
| minor is found to be neglected or abused under Section 2-3 or
| 27 |
| dependent under Section 2-4 of this
Act, unless the minor can | 28 |
| be cared for at home without endangering the
minor's health or | 29 |
| safety and it is in the best interests of the minor, and
if | 30 |
| such neglect,
abuse, or dependency is found by the court under | 31 |
| paragraph (1)
of Section 2-21 of
this Act to have come about | 32 |
| due to the acts or omissions or both of such
parent, guardian
| 33 |
| or legal custodian, until such time as an investigation is made | 34 |
| as provided in
paragraph (5) and a hearing is held on the issue | 35 |
| of the fitness of such parent,
guardian or legal custodian to |
|
|
|
HB4895 |
- 14 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| care for the minor and the court enters an order
that such | 2 |
| parent, guardian or legal custodian is fit to care for the | 3 |
| minor.
| 4 |
| (1.5) The court shall not restore custody of a minor to a | 5 |
| parent, guardian, or custodian against whom there is any | 6 |
| pending domestic violence charge, either under the Illinois | 7 |
| Domestic Violence Act of 1986 or under the Criminal Code of | 8 |
| 1961, until that pending charge has been resolved.
| 9 |
| (2) The first permanency hearing shall be
conducted by the | 10 |
| judge. Subsequent permanency hearings may be
heard by a judge | 11 |
| or by hearing officers appointed or approved by the court in
| 12 |
| the manner set forth in Section 2-28.1 of this Act.
The initial | 13 |
| hearing shall be held (a) within 12 months from the date
| 14 |
| temporary
custody was taken, (b) if the parental rights of both | 15 |
| parents have been
terminated in accordance with the procedure | 16 |
| described in subsection (5) of
Section 2-21, within
30 days of | 17 |
| the order for termination of parental rights and appointment of
| 18 |
| a guardian with power to consent to adoption, or (c) in | 19 |
| accordance with
subsection
(2) of Section 2-13.1. Subsequent | 20 |
| permanency hearings
shall be held every 6 months
or more | 21 |
| frequently if necessary in the court's determination following | 22 |
| the
initial permanency hearing, in accordance with the | 23 |
| standards set forth in this
Section, until the court determines | 24 |
| that the plan and goal have been achieved.
Once the plan and | 25 |
| goal have been achieved, if the minor remains in substitute
| 26 |
| care, the case shall be reviewed at least every 6 months | 27 |
| thereafter, subject to
the provisions of this Section, unless | 28 |
| the minor is placed in the guardianship
of a suitable relative | 29 |
| or other person and the court determines that further
| 30 |
| monitoring by the court does not further the health, safety or | 31 |
| best interest of
the child and that this is a stable permanent | 32 |
| placement.
The permanency hearings must occur within the time | 33 |
| frames set forth in this
subsection and may not be delayed in | 34 |
| anticipation of a report from any source or due to the agency's | 35 |
| failure to timely file its written report (this
written report | 36 |
| means the one required under the next paragraph and does not
|
|
|
|
HB4895 |
- 15 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| mean the service plan also referred to in that paragraph).
| 2 |
| The public agency that is the custodian or guardian of the | 3 |
| minor, or another
agency responsible for the minor's care, | 4 |
| shall ensure that all parties to the
permanency hearings are | 5 |
| provided a copy of the most recent
service plan prepared within | 6 |
| the prior 6 months
at least 14 days in advance of the hearing. | 7 |
| If not contained in the plan, the
agency shall also include a | 8 |
| report setting forth (i) any special
physical, psychological, | 9 |
| educational, medical, emotional, or other needs of the
minor or | 10 |
| his or her family that are relevant to a permanency or | 11 |
| placement
determination and (ii) for any minor age 16 or over, | 12 |
| a written description of
the programs and services that will | 13 |
| enable the minor to prepare for independent
living. The | 14 |
| agency's written report must detail what progress or lack of
| 15 |
| progress the parent has made in correcting the conditions | 16 |
| requiring the child
to be in care; whether the child can be | 17 |
| returned home without jeopardizing the
child's health, safety, | 18 |
| and welfare, and if not, what permanency goal is
recommended to | 19 |
| be in the best interests of the child, and why the other
| 20 |
| permanency goals are not appropriate. The caseworker must | 21 |
| appear and testify
at the permanency hearing. If a permanency | 22 |
| hearing has not previously been
scheduled by the court, the | 23 |
| moving party shall move for the setting of a
permanency hearing | 24 |
| and the entry of an order within the time frames set forth
in | 25 |
| this subsection.
| 26 |
| At the permanency hearing, the court shall determine the | 27 |
| future status
of the child. The court shall set one of the | 28 |
| following permanency goals:
| 29 |
| (A) The minor will be returned home by a specific date | 30 |
| within 5
months.
| 31 |
| (B) The minor will be in short-term care with a
| 32 |
| continued goal to return home within a period not to exceed | 33 |
| one
year, where the progress of the parent or parents is | 34 |
| substantial giving
particular consideration to the age and | 35 |
| individual needs of the minor.
| 36 |
| (B-1) The minor will be in short-term care with a |
|
|
|
HB4895 |
- 16 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| continued goal to return
home pending a status hearing. | 2 |
| When the court finds that a parent has not made
reasonable | 3 |
| efforts or reasonable progress to date, the court shall | 4 |
| identify
what actions the parent and the Department must | 5 |
| take in order to justify a
finding of reasonable efforts or | 6 |
| reasonable progress and shall set a status
hearing to be | 7 |
| held not earlier than 9 months from the date of | 8 |
| adjudication nor
later than 11 months from the date of | 9 |
| adjudication during which the parent's
progress will again | 10 |
| be reviewed.
| 11 |
| (C) The minor will be in substitute care pending court
| 12 |
| determination on termination of parental rights.
| 13 |
| (D) Adoption, provided that parental rights have been | 14 |
| terminated or
relinquished.
| 15 |
| (E) The guardianship of the minor will be transferred | 16 |
| to an individual or
couple on a permanent basis provided | 17 |
| that goals (A) through (D) have
been ruled out.
| 18 |
| (F) The minor over age 15 will be in substitute care | 19 |
| pending
independence.
| 20 |
| (G) The minor will be in substitute care because he or | 21 |
| she cannot be
provided for in a home environment due to | 22 |
| developmental
disabilities or mental illness or because he | 23 |
| or she is a danger to self or
others, provided that goals | 24 |
| (A) through (D) have been ruled out.
| 25 |
| In selecting any permanency goal, the court shall indicate | 26 |
| in writing the
reasons the goal was selected and why the | 27 |
| preceding goals were ruled out.
Where the court has selected a | 28 |
| permanency goal other than (A), (B), or (B-1),
the
Department | 29 |
| of Children and Family Services shall not provide further
| 30 |
| reunification services, but shall provide services
consistent | 31 |
| with the goal
selected.
| 32 |
| The court shall set a
permanency
goal that is in the best | 33 |
| interest of the child. The court's determination
shall include | 34 |
| the following factors:
| 35 |
| (1) Age of the child.
| 36 |
| (2) Options available for permanence.
|
|
|
|
HB4895 |
- 17 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| (3) Current placement of the child and the intent of | 2 |
| the family regarding
adoption.
| 3 |
| (4) Emotional, physical, and mental status or | 4 |
| condition of the child.
| 5 |
| (5) Types of services previously offered and whether or | 6 |
| not
the services were successful and, if not successful, | 7 |
| the reasons the services
failed.
| 8 |
| (6) Availability of services currently needed and | 9 |
| whether the services
exist.
| 10 |
| (7) Status of siblings of the minor.
| 11 |
| The court shall consider (i) the permanency goal contained | 12 |
| in the service
plan, (ii) the appropriateness of the
services | 13 |
| contained in the plan and whether those services have been
| 14 |
| provided, (iii) whether reasonable efforts have been made by | 15 |
| all
the parties to the service plan to achieve the goal, and | 16 |
| (iv) whether the plan
and goal have been achieved. All evidence
| 17 |
| relevant to determining these questions, including oral and | 18 |
| written reports,
may be admitted and may be relied on to the | 19 |
| extent of their probative value.
| 20 |
| If the goal has been achieved, the court shall enter orders | 21 |
| that are
necessary to conform the minor's legal custody and | 22 |
| status to those findings.
| 23 |
| If, after receiving evidence, the court determines that the | 24 |
| services
contained in the plan are not reasonably calculated to | 25 |
| facilitate achievement
of the permanency goal, the court shall | 26 |
| put in writing the factual basis
supporting the determination | 27 |
| and enter specific findings based on the evidence.
The court | 28 |
| also shall enter an order for the Department to develop and
| 29 |
| implement a new service plan or to implement changes to the | 30 |
| current service
plan consistent with the court's findings. The | 31 |
| new service plan shall be filed
with the court and served on | 32 |
| all parties within 45 days of the date of the
order. The court | 33 |
| shall continue the matter until the new service plan is
filed. | 34 |
| Unless otherwise specifically authorized by law, the court is | 35 |
| not
empowered under this subsection (2) or under subsection (3) | 36 |
| to order specific
placements, specific services, or specific |
|
|
|
HB4895 |
- 18 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| service providers to be included in
the plan.
| 2 |
| A guardian or custodian appointed by the court pursuant to | 3 |
| this Act shall
file updated case plans with the court every 6 | 4 |
| months.
| 5 |
| Rights of wards of the court under this Act are enforceable | 6 |
| against
any public agency by complaints for relief by mandamus | 7 |
| filed in any
proceedings brought under this Act.
| 8 |
| (3) Following the permanency hearing, the court shall enter | 9 |
| a written order
that includes the determinations required under | 10 |
| subsection (2) of this
Section and sets forth the following:
| 11 |
| (a) The future status of the minor, including the | 12 |
| permanency goal, and
any order necessary to conform the | 13 |
| minor's legal custody and status to such
determination; or
| 14 |
| (b) If the permanency goal of the minor cannot be | 15 |
| achieved immediately,
the specific reasons for continuing | 16 |
| the minor in the care of the Department of
Children and | 17 |
| Family Services or other agency for short term placement, | 18 |
| and the
following determinations:
| 19 |
| (i) (Blank).
| 20 |
| (ii) Whether the services required by the court
and | 21 |
| by any service plan prepared within the prior 6 months
| 22 |
| have been provided and (A) if so, whether the services | 23 |
| were reasonably
calculated to facilitate the | 24 |
| achievement of the permanency goal or (B) if not
| 25 |
| provided, why the services were not provided.
| 26 |
| (iii) Whether the minor's placement is necessary, | 27 |
| and appropriate to the
plan and goal, recognizing the | 28 |
| right of minors to the least restrictive (most
| 29 |
| family-like) setting available and in close proximity | 30 |
| to the parents' home
consistent with the health, | 31 |
| safety, best interest and special needs of the
minor | 32 |
| and, if the minor is placed out-of-State, whether the | 33 |
| out-of-State
placement continues to be appropriate and | 34 |
| consistent with the health, safety,
and best interest | 35 |
| of the minor.
| 36 |
| (iv) (Blank).
|
|
|
|
HB4895 |
- 19 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| (v) (Blank).
| 2 |
| Any order entered pursuant to this subsection (3) shall be | 3 |
| immediately
appealable as a matter of right under Supreme Court | 4 |
| Rule 304(b)(1).
| 5 |
| (4) The minor or any person interested in the minor may | 6 |
| apply to the
court for a change in custody of the minor and the | 7 |
| appointment of a new
custodian or guardian of the person or for | 8 |
| the restoration of the minor
to the custody of his parents or | 9 |
| former guardian or custodian.
| 10 |
| When return home is not selected as the permanency goal:
| 11 |
| (a) The Department, the minor, or the current
foster | 12 |
| parent or relative
caregiver seeking private guardianship | 13 |
| may file a motion for private
guardianship of the minor. | 14 |
| Appointment of a guardian under this Section
requires | 15 |
| approval of the court.
| 16 |
| (b) The State's Attorney may file a motion to terminate | 17 |
| parental rights of
any parent who has failed to make | 18 |
| reasonable efforts to correct the conditions
which led to | 19 |
| the removal of the child or reasonable progress toward the | 20 |
| return
of the child, as defined in subdivision (D)(m) of | 21 |
| Section 1 of the Adoption Act
or for whom any other | 22 |
| unfitness ground for terminating parental rights as
| 23 |
| defined in subdivision (D) of Section 1 of the Adoption Act | 24 |
| exists.
| 25 |
| Custody of the minor shall not be restored to any parent, | 26 |
| guardian or legal
custodian in any case in which the minor is | 27 |
| found to be neglected or abused
under Section 2-3 or dependent | 28 |
| under Section 2-4 of this Act, unless the
minor can be cared | 29 |
| for at home
without endangering his or her health or safety and | 30 |
| it is in the best
interest of the minor,
and if such neglect, | 31 |
| abuse, or dependency is found by the court
under paragraph (1) | 32 |
| of Section 2-21 of this Act to have come
about due to the acts | 33 |
| or omissions or both of such parent, guardian or legal
| 34 |
| custodian, until such time as an investigation is made as | 35 |
| provided in
paragraph (5) and a hearing is held on the issue of | 36 |
| the health,
safety and
best interest of the minor and the |
|
|
|
HB4895 |
- 20 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| fitness of such
parent, guardian or legal custodian to care for | 2 |
| the minor and the court
enters an order that such parent, | 3 |
| guardian or legal custodian is fit to
care for the minor. In | 4 |
| the event that the minor has attained 18 years
of age and the | 5 |
| guardian or custodian petitions the court for an order
| 6 |
| terminating his guardianship or custody, guardianship or | 7 |
| custody shall
terminate automatically 30 days after the receipt | 8 |
| of the petition unless
the court orders otherwise. No legal | 9 |
| custodian or guardian of the
person may be removed without his | 10 |
| consent until given notice and an
opportunity to be heard by | 11 |
| the court.
| 12 |
| The court shall not restore custody of a minor to a parent, | 13 |
| guardian, or custodian against whom there is any pending | 14 |
| domestic violence charge, either under the Illinois Domestic | 15 |
| Violence Act of 1986 or under the Criminal Code of 1961, until | 16 |
| that pending charge has been resolved.
| 17 |
| When the court orders a child restored to the custody of | 18 |
| the parent or
parents, the court shall order the parent or | 19 |
| parents to cooperate with the
Department of Children and Family | 20 |
| Services and comply with the terms of an
after-care plan, or | 21 |
| risk the loss of custody of the child and possible
termination | 22 |
| of their parental rights. The court may also enter an order of
| 23 |
| protective supervision in accordance with Section 2-24.
| 24 |
| (5) Whenever a parent, guardian, or legal custodian files a | 25 |
| motion for
restoration of custody of the minor, and the minor | 26 |
| was adjudicated
neglected, abused, or dependent as a result of | 27 |
| physical abuse,
the court shall cause to be
made an | 28 |
| investigation as to whether the movant has ever been charged
| 29 |
| with or convicted of any criminal offense which would indicate | 30 |
| the
likelihood of any further physical abuse to the minor. | 31 |
| Evidence of such
criminal convictions shall be taken into | 32 |
| account in determining whether the
minor can be cared for at | 33 |
| home without endangering his or her health or safety
and | 34 |
| fitness of the parent, guardian, or legal custodian.
| 35 |
| (a) Any agency of this State or any subdivision thereof | 36 |
| shall
co-operate with the agent of the court in providing |
|
|
|
HB4895 |
- 21 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| any information
sought in the investigation.
| 2 |
| (b) The information derived from the investigation and | 3 |
| any
conclusions or recommendations derived from the | 4 |
| information shall be
provided to the parent, guardian, or | 5 |
| legal custodian seeking restoration
of custody prior to the | 6 |
| hearing on fitness and the movant shall have
an opportunity | 7 |
| at the hearing to refute the information or contest its
| 8 |
| significance.
| 9 |
| (c) All information obtained from any investigation | 10 |
| shall be confidential
as provided in Section 5-150 of this | 11 |
| Act.
| 12 |
| (Source: P.A. 91-357, eff. 7-29-99; 92-320, eff. 1-1-02 .)
| 13 |
| Section 10. The Illinois Marriage and Dissolution of | 14 |
| Marriage Act is amended by changing Section 602 as follows:
| 15 |
| (750 ILCS 5/602) (from Ch. 40, par. 602)
| 16 |
| Sec. 602. Best Interest of Child.
| 17 |
| (a) The court shall determine
custody in accordance with | 18 |
| the best interest of the child. The court
shall consider all | 19 |
| relevant factors including:
| 20 |
| (1) the wishes of the child's parent or parents as to | 21 |
| his custody;
| 22 |
| (2) the wishes of the child as to his custodian;
| 23 |
| (3) the interaction and interrelationship of the child | 24 |
| with his
parent or parents, his siblings and any other | 25 |
| person who may
significantly affect the child's best | 26 |
| interest;
| 27 |
| (4) the child's adjustment to his home, school and | 28 |
| community;
| 29 |
| (5) the mental and physical health of all individuals | 30 |
| involved;
| 31 |
| (6) the physical violence or threat of physical | 32 |
| violence by the child's
potential custodian, whether | 33 |
| directed against the child or directed against
another | 34 |
| person;
|
|
|
|
HB4895 |
- 22 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| (7) the occurrence of ongoing abuse as defined in | 2 |
| Section 103 of the
Illinois Domestic Violence Act of 1986, | 3 |
| whether directed against the child
or directed against | 4 |
| another person; and
| 5 |
| (8) the willingness and ability of each parent to | 6 |
| facilitate and
encourage a close and continuing | 7 |
| relationship between the other parent
and the child.
| 8 |
| In the case of a custody proceeding in which a stepparent | 9 |
| has standing
under Section 601, it is presumed to be in the | 10 |
| best interest of the minor child
that the natural parent have | 11 |
| the custody of the minor child unless the
presumption is | 12 |
| rebutted by the stepparent.
| 13 |
| (b) The court shall not consider conduct of a present or | 14 |
| proposed
custodian that does not affect his relationship to the | 15 |
| child.
| 16 |
| (c) Unless the court finds the occurrence of ongoing abuse | 17 |
| as defined
in Section 103 of the Illinois Domestic Violence Act | 18 |
| of 1986, the court
shall presume that the maximum involvement | 19 |
| and cooperation
of both parents regarding the physical, mental, | 20 |
| moral, and emotional
well-being of
their child is in the best | 21 |
| interest of the child. There shall be no
presumption in favor | 22 |
| of or against joint custody. | 23 |
| (d) The court shall not make a custody determination in any | 24 |
| custody proceeding in favor of a party against whom there is | 25 |
| any pending domestic violence charge, either under the Illinois | 26 |
| Domestic Violence Act of 1986 or under the Criminal Code of | 27 |
| 1961, until that pending charge has been resolved.
| 28 |
| (Source: P.A. 90-782, eff. 8-14-98.)
| 29 |
| Section 15. The Illinois Parentage Act of 1984 is amended | 30 |
| by changing Section 14 as follows:
| 31 |
| (750 ILCS 45/14) (from Ch. 40, par. 2514)
| 32 |
| Sec. 14. Judgment.
| 33 |
| (a) (1) The judgment shall contain or explicitly reserve
| 34 |
| provisions concerning any duty and amount of child support
and |
|
|
|
HB4895 |
- 23 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| may contain provisions concerning the custody and
guardianship | 2 |
| of the child, visitation privileges with the child, the
| 3 |
| furnishing of bond or other security for the payment of the | 4 |
| judgment,
which the court shall determine in accordance with | 5 |
| the relevant factors
set forth in the Illinois Marriage and | 6 |
| Dissolution of Marriage
Act and any other applicable law of | 7 |
| Illinois,
to guide the court in a finding in the best interests | 8 |
| of the child.
In determining custody, joint custody, removal, | 9 |
| or visitation, the court
shall apply
the relevant standards of | 10 |
| the Illinois Marriage and Dissolution of Marriage
Act, | 11 |
| including Section 609. The court shall not make a custody | 12 |
| determination in favor of a party against whom there is any | 13 |
| pending domestic violence charge, either under the Illinois | 14 |
| Domestic Violence Act of 1986 or under the Criminal Code of | 15 |
| 1961, until that pending charge has been resolved. | 16 |
| Specifically, in determining the amount of any
child support | 17 |
| award, the
court shall use the guidelines and standards set | 18 |
| forth in subsection (a) of
Section 505 and in Section 505.2 of | 19 |
| the Illinois Marriage and Dissolution of
Marriage Act. For | 20 |
| purposes of Section
505 of the Illinois Marriage and | 21 |
| Dissolution of Marriage Act,
"net income" of the non-custodial | 22 |
| parent shall include any benefits
available to that person | 23 |
| under the Illinois Public Aid Code or from other
federal, State | 24 |
| or local government-funded programs. The court shall, in
any | 25 |
| event and regardless of the amount of the non-custodial | 26 |
| parent's net
income, in its judgment order the non-custodial | 27 |
| parent to pay child support
to the custodial parent in a | 28 |
| minimum amount of not less than $10 per month.
In an action | 29 |
| brought within 2 years after a child's birth, the judgment or
| 30 |
| order may direct either parent to pay the reasonable expenses | 31 |
| incurred by
either parent related to the mother's pregnancy and | 32 |
| the delivery of the
child. The judgment or order shall contain | 33 |
| the father's social security number,
which the father shall | 34 |
| disclose to the court; however, failure to include the
father's | 35 |
| social security number on the judgment or order does not | 36 |
| invalidate
the judgment or order.
|
|
|
|
HB4895 |
- 24 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| (2) If a judgment of parentage contains no explicit award | 2 |
| of custody,
the establishment of a support obligation or of | 3 |
| visitation rights in one
parent shall be considered a judgment | 4 |
| granting custody to the other parent.
If the parentage judgment | 5 |
| contains no such provisions, custody shall be
presumed to be | 6 |
| with the mother;
however, the presumption shall not apply if | 7 |
| the father has had
physical custody for at least 6
months prior | 8 |
| to the date that the mother seeks to enforce custodial rights.
| 9 |
| (b) The court shall order all child support payments, | 10 |
| determined in
accordance with such guidelines, to commence with | 11 |
| the date summons is
served. The level of current periodic | 12 |
| support payments shall not be
reduced because of payments set | 13 |
| for the period prior to the date of entry
of the support order. | 14 |
| The Court may order any child support payments to be
made for a
| 15 |
| period prior to the commencement of the action.
In determining | 16 |
| whether and the extent to which the
payments shall be made for | 17 |
| any prior period, the court shall consider all
relevant facts, | 18 |
| including the factors for determining the amount of support
| 19 |
| specified in the Illinois Marriage and Dissolution of Marriage
| 20 |
| Act and other equitable factors
including but not limited to:
| 21 |
| (1) The father's prior knowledge of the fact and | 22 |
| circumstances of the
child's birth.
| 23 |
| (2) The father's prior willingness or refusal to help | 24 |
| raise or
support the child.
| 25 |
| (3) The extent to which the mother or the public agency | 26 |
| bringing the
action previously informed the father of the | 27 |
| child's needs or attempted
to seek or require his help in | 28 |
| raising or supporting the child.
| 29 |
| (4) The reasons the mother or the public agency did not | 30 |
| file the
action earlier.
| 31 |
| (5) The extent to which the father would be prejudiced | 32 |
| by the delay in
bringing the action.
| 33 |
| For purposes of determining the amount of child support to | 34 |
| be paid for any
period before the date the order for current | 35 |
| child support is entered, there is
a
rebuttable presumption | 36 |
| that the father's net income for the prior period was
the same |
|
|
|
HB4895 |
- 25 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| as his net income at the time the order for current child | 2 |
| support is
entered.
| 3 |
| If (i) the non-custodial parent was properly served with a | 4 |
| request for
discovery of
financial information relating to the | 5 |
| non-custodial parent's ability to provide
child support, (ii)
| 6 |
| the non-custodial parent failed to comply with the request, | 7 |
| despite having been
ordered to
do so by the court, and (iii) | 8 |
| the non-custodial parent is not present at the
hearing to
| 9 |
| determine support despite having received proper notice, then | 10 |
| any relevant
financial
information concerning the | 11 |
| non-custodial parent's ability to provide child
support
that | 12 |
| was
obtained pursuant to subpoena and proper notice shall be | 13 |
| admitted into evidence
without
the need to establish any | 14 |
| further foundation for its admission.
| 15 |
| (c) Any new or existing support order entered by the court | 16 |
| under this
Section shall be deemed to be a series of judgments
| 17 |
| against the person obligated to pay support thereunder, each | 18 |
| judgment
to be in the amount of each payment or installment of | 19 |
| support and each such
judgment to be deemed entered as of the | 20 |
| date the corresponding payment or
installment becomes due under | 21 |
| the terms of the support order. Each
judgment shall have the | 22 |
| full force, effect and attributes of any other
judgment of this | 23 |
| State, including the ability to be enforced.
A lien arises by | 24 |
| operation of law against the real and personal property of
the | 25 |
| noncustodial parent for each installment of overdue support | 26 |
| owed by the
noncustodial parent.
| 27 |
| (d) If the judgment or order of the court is at variance | 28 |
| with the child's
birth certificate, the court shall order that | 29 |
| a new birth certificate be
issued under the Vital Records Act.
| 30 |
| (e) On request of the mother and the father, the court | 31 |
| shall order a
change in the child's name. After hearing | 32 |
| evidence the court may stay
payment of support during the | 33 |
| period of the father's minority or period of
disability.
| 34 |
| (f) If, upon a showing of proper service, the father fails | 35 |
| to appear in
court, or
otherwise appear as provided by law, the | 36 |
| court may proceed to hear the
cause upon testimony of the |
|
|
|
HB4895 |
- 26 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| mother or other parties taken in open court and
shall enter a | 2 |
| judgment by default. The court may reserve any order as to
the | 3 |
| amount of child support until the father has received notice, | 4 |
| by
regular mail, of a hearing on the matter.
| 5 |
| (g) A one-time charge of 20% is imposable upon the amount | 6 |
| of past-due
child support owed on July 1, 1988 which has | 7 |
| accrued under a support order
entered by the court. The charge | 8 |
| shall be imposed in accordance with the
provisions of Section | 9 |
| 10-21 of the Illinois Public Aid Code and shall be
enforced by | 10 |
| the court upon petition.
| 11 |
| (h) All orders for support, when entered or
modified, shall | 12 |
| include a provision requiring the non-custodial parent
to
| 13 |
| notify the court and, in cases in which party is receiving | 14 |
| child
support enforcement services under Article X of the | 15 |
| Illinois Public Aid Code,
the
Illinois Department of Public | 16 |
| Aid, within 7 days, (i) of the name and
address of any new | 17 |
| employer of the non-custodial parent, (ii) whether the
| 18 |
| non-custodial
parent has access to health insurance coverage | 19 |
| through the employer or other
group coverage and, if so, the | 20 |
| policy name and number and the names of
persons
covered under | 21 |
| the policy, and (iii) of any new residential or mailing address
| 22 |
| or telephone
number of the non-custodial parent. In any | 23 |
| subsequent action to enforce a
support order, upon a sufficient | 24 |
| showing that a diligent effort has been made
to ascertain the | 25 |
| location of the non-custodial parent, service of process or
| 26 |
| provision of notice necessary in the case may be made at the | 27 |
| last known
address of the non-custodial parent in any manner | 28 |
| expressly provided by the
Code of Civil Procedure or this Act, | 29 |
| which service shall be sufficient for
purposes of due process.
| 30 |
| (i) An order for support shall include a date on which the | 31 |
| current
support obligation terminates. The termination date | 32 |
| shall be no earlier
than
the date on which the child covered by | 33 |
| the order will attain the age of
18. However, if the child will | 34 |
| not graduate from high school until after
attaining the age
of | 35 |
| 18, then the termination date shall be no earlier than the | 36 |
| earlier of the
date on which
the child's high school graduation |
|
|
|
HB4895 |
- 27 - |
LRB093 19027 LCB 44762 b |
|
| 1 |
| will occur or the date on which the child
will attain the
age | 2 |
| of 19.
The order
for
support shall state that
the termination | 3 |
| date does not apply to any arrearage that may remain unpaid on
| 4 |
| that date. Nothing in this subsection shall be construed to | 5 |
| prevent the court
from modifying the order
or terminating the | 6 |
| order in the event the child is otherwise emancipated.
| 7 |
| (j) An order entered under this Section shall include a | 8 |
| provision
requiring the obligor to report to the obligee and to | 9 |
| the clerk of court within
10 days each time the obligor obtains | 10 |
| new employment, and each time the
obligor's employment is | 11 |
| terminated for any reason.
The report shall be in writing and | 12 |
| shall, in the case of new employment,
include the name and | 13 |
| address of the new employer.
Failure to report new employment | 14 |
| or
the termination of current employment, if coupled with | 15 |
| nonpayment of support
for a period in excess of 60 days, is | 16 |
| indirect criminal contempt. For
any obligor arrested for | 17 |
| failure to report new employment bond shall be set in
the | 18 |
| amount of the child support that should have been paid during | 19 |
| the period of
unreported employment. An order entered under | 20 |
| this Section shall also include
a provision requiring the | 21 |
| obligor and obligee parents to advise each other of a
change in | 22 |
| residence within 5 days of the change
except when the court | 23 |
| finds that the physical, mental, or emotional health
of a party | 24 |
| or that of a minor child, or both, would be seriously | 25 |
| endangered by
disclosure of the party's address.
| 26 |
| (Source: P.A. 92-590, eff. 7-1-02; 92-876, eff. 6-1-03; 93-139, | 27 |
| eff. 7-10-03;
revised 9-15-03.)
|
|