Full Text of SB0098 94th General Assembly
SB0098 94TH GENERAL ASSEMBLY
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94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006 SB0098
Introduced 1/26/2005, by Sen. Wendell E. Jones SYNOPSIS AS INTRODUCED: |
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750 ILCS 5/601 |
from Ch. 40, par. 601 |
750 ILCS 5/602 |
from Ch. 40, par. 602 |
750 ILCS 5/602.1 |
from Ch. 40, par. 602.1 |
750 ILCS 5/604 |
from Ch. 40, par. 604 |
750 ILCS 5/604.5 |
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750 ILCS 5/605 |
from Ch. 40, par. 605 |
750 ILCS 5/607 |
from Ch. 40, par. 607 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that a guardian ad litem appointed in a child custody proceeding shall have completed 3 hours of training that relates to the functions and duties of a guardian ad litem and that includes training on the dynamics of domestic violence on partners and children. Requires a guardian ad litem in a child custody proceeding to investigate whether there is evidence that either partner engaged in domestic violence and to report to the court on the results of the investigation. Creates a rebuttable presumption that it is not in the best interest of the child for the court to grant sole or joint custody or visitation to a parent who: (i) has been adjudicated guilty of domestic violence as defined in the Illinois Domestic Violence Act of 1986 on multiple incidents of domestic violence or of a single incident of domestic violence that resulted in serious physical injury, as determined by the trier of fact, against the parent's partner or against the child; or (ii) has been convicted of violating an order of protection entered under the specified Sections of the Illinois Domestic Violence Act of 1986. Lists evidence that may be used to rebut the presumption. Provides that, in cases where the presumption is rebutted, the court shall state the evidence upon which the court determined that the presumption was rebutted and its findings relating to the reason that legal custody with that party is in the best interest of the child. Provides that, if there is a danger to the health or safety of a partner, joint mediation for custody shall not be required by the court. Requires that professional personnel, evaluators, and investigators, who advise the court concerning child interview or child custody, must have 3 hours of training in domestic violence and its effects on the partner and the child. Makes other changes. Effective immediately.
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A BILL FOR
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Illinois Marriage and Dissolution of | 5 |
| Marriage Act is amended by changing Sections 601, 602, 602.1, | 6 |
| 604, 604.5, 605, and 607 as follows:
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| (750 ILCS 5/601) (from Ch. 40, par. 601)
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| Sec. 601. Jurisdiction; Commencement of Proceeding.
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| (a) A court of this State competent to decide child custody | 10 |
| matters has
jurisdiction to make a child custody determination | 11 |
| in original or modification
proceedings as provided in Section | 12 |
| 201 of the Uniform
Child-Custody Jurisdiction and Enforcement | 13 |
| Act as
adopted by this State.
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| (b) A child custody proceeding is commenced in the court:
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| (1) by a parent, by filing a petition:
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| (i) for dissolution of marriage or legal | 17 |
| separation or declaration
of invalidity of marriage; | 18 |
| or
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| (ii) for custody of the child, in the county in | 20 |
| which he is
permanently resident or found;
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| (2) by a person other than a parent, by filing a | 22 |
| petition for
custody of the child in the county in which he | 23 |
| is permanently resident
or found, but only if he is not in | 24 |
| the physical custody of one of his
parents; or
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| (3) by a stepparent, by filing a petition, if all of | 26 |
| the following
circumstances are met:
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| (A) the child is at least 12 years old;
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| (B) the custodial parent and stepparent were | 29 |
| married for at least 5
years during which the child | 30 |
| resided with the parent and stepparent;
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| (C) the custodial parent is deceased or is disabled | 32 |
| and cannot perform
the duties of a parent to the child;
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| (D) the stepparent provided for the care, control, | 2 |
| and welfare to the
child prior to the initiation of | 3 |
| custody proceedings;
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| (E) the child wishes to live with the stepparent; | 5 |
| and
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| (F) it is alleged to be in the best interests and | 7 |
| welfare of the
child to live with the stepparent as | 8 |
| provided in Section 602 of this Act. | 9 |
| (4) When one of the parents is deceased, by a | 10 |
| grandparent who is a parent or stepparent of a deceased | 11 |
| parent, by filing a petition, if one or more of the | 12 |
| following existed at the time of the parent's death: | 13 |
| (A) the surviving parent had been absent from the | 14 |
| marital abode for more than one month without the | 15 |
| deceased spouse knowing his or her whereabouts; | 16 |
| (B) the surviving parent was in State or federal | 17 |
| custody; or | 18 |
| (C) the surviving parent had: (i) received | 19 |
| supervision for or been convicted of any violation of | 20 |
| Article 12 of the Criminal Code of 1961 directed | 21 |
| towards the deceased parent or the child; or (ii) | 22 |
| received supervision or been convicted of violating an | 23 |
| order of protection entered under Section 217, 218, or | 24 |
| 219 of the Illinois Domestic Violence Act of 1986 for | 25 |
| the protection of the deceased parent or the child.
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| (c) Notice of a child custody proceeding, including an | 27 |
| action
for modification of a previous custody order, shall be | 28 |
| given to the
child's parents, guardian and custodian, who may | 29 |
| appear, be heard, and
file a responsive pleading. The court, | 30 |
| upon showing of good cause, may
permit intervention of other | 31 |
| interested parties.
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| (d) Proceedings for modification of a previous custody | 33 |
| order
commenced more than 30 days following the entry of a | 34 |
| previous custody order
must be initiated by serving a written | 35 |
| notice and a copy of the petition
for modification upon the | 36 |
| child's parent, guardian and custodian at least
30 days prior |
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| to hearing on the petition. Nothing in this Section shall
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| preclude a party in custody modification proceedings from | 3 |
| moving for a
temporary order under Section 603 of this Act.
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| (e) (Blank). | 5 |
| (f) The court shall, at the court's discretion or upon the | 6 |
| request of any party entitled to petition for custody of the | 7 |
| child, appoint a guardian ad litem to represent the best | 8 |
| interest of the child for the duration of the custody | 9 |
| proceeding or for any modifications of any custody orders | 10 |
| entered. The guardian ad litem shall have completed 3 hours of | 11 |
| training that relates to the functions and duties of a guardian | 12 |
| ad litem and that includes training on the dynamics of domestic | 13 |
| violence on partners and children. The guardian ad litem shall | 14 |
| investigate whether there is evidence that either partner | 15 |
| engaged in domestic violence and shall report to the court on | 16 |
| the results of the investigation. Nothing in this Section shall | 17 |
| be construed to prevent the court from appointing the same | 18 |
| guardian ad litem for 2 or more children that are siblings or | 19 |
| half-siblings.
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| (Source: P.A. 93-108, eff. 1-1-04; 93-1026, eff. 1-1-05.)
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| (750 ILCS 5/602) (from Ch. 40, par. 602)
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| Sec. 602. Best Interest of Child.
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| (a) The court shall determine
custody in accordance with | 24 |
| the best interest of the child. The court
shall consider all | 25 |
| relevant factors including:
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| (1) the wishes of the child's parent or parents as to | 27 |
| his custody;
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| (2) the wishes of the child as to his custodian;
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| (3) the interaction and interrelationship of the child | 30 |
| with his
parent or parents, his siblings and any other | 31 |
| person who may
significantly affect the child's best | 32 |
| interest;
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| (4) the child's adjustment to his home, school and | 34 |
| community;
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| (5) the mental and physical health of all individuals |
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| involved;
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| (6) the physical violence or threat of physical | 3 |
| violence by the child's
potential custodian, whether | 4 |
| directed against the child or directed against
another | 5 |
| person;
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| (7) the occurrence of ongoing abuse as defined in | 7 |
| Section 103 of the
Illinois Domestic Violence Act of 1986, | 8 |
| whether directed against the child
or directed against | 9 |
| another person; and
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| (8) the willingness and ability of each parent to | 11 |
| facilitate and
encourage a close and continuing | 12 |
| relationship between the other parent
and the child.
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| In the case of a custody proceeding in which a stepparent | 14 |
| has standing
under Section 601, it is presumed to be in the | 15 |
| best interest of the minor child
that the natural parent have | 16 |
| the custody of the minor child unless the
presumption is | 17 |
| rebutted by the stepparent.
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| (a-3) There is a rebuttable presumption that it is not in | 19 |
| the best interest of the child for the court to grant custody | 20 |
| to a parent who: (i) has been adjudicated guilty of domestic | 21 |
| violence as defined in Section 103 of the Illinois Domestic | 22 |
| Violence Act of 1986 on multiple incidents of domestic violence | 23 |
| or on a single incident of domestic violence that resulted in | 24 |
| serious physical injury, as determined by the trier of fact, | 25 |
| against the parent's partner or against the child; or (ii) has | 26 |
| been convicted of violating an order of protection entered | 27 |
| under Section 217, 218, or 219 of the Illinois Domestic | 28 |
| Violence Act of 1986. | 29 |
| (a-5) The presumption stated in subsection (a-3) of this | 30 |
| Section may be rebutted only by a preponderance of evidence | 31 |
| that: (i) the party who committed the abuse or domestic | 32 |
| violence has successfully completed treatment for abusers or | 33 |
| persons who have committed domestic violence provided through a | 34 |
| certified treatment program or by a certified treatment | 35 |
| provider and is not abusing alcohol or any other drug; (ii) it | 36 |
| is in the best interest of the child for the primary physical |
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| aggressor to be awarded sole custody based on a consideration | 2 |
| of the factors; and (iii) there is little likelihood of future | 3 |
| injury to the child resulting from an act of abuse or domestic | 4 |
| violence. | 5 |
| (a-7) In any case where the presumption is rebutted, the | 6 |
| court shall state in writing the evidence upon which the court | 7 |
| determined that the presumption was rebutted and its findings | 8 |
| relating to the reason that legal custody with that party is in | 9 |
| the best interest of the child.
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| (b) The court shall not consider conduct of a present or | 11 |
| proposed
custodian that does not affect his relationship to the | 12 |
| child.
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| (c) Unless the court finds the occurrence of ongoing abuse | 14 |
| as defined
in Section 103 of the Illinois Domestic Violence Act | 15 |
| of 1986, the court
shall presume that the maximum involvement | 16 |
| and cooperation
of both parents regarding the physical, mental, | 17 |
| moral, and emotional
well-being of
their child is in the best | 18 |
| interest of the child. There shall be no
presumption in favor | 19 |
| of or against joint custody.
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| (Source: P.A. 90-782, eff. 8-14-98.)
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| (750 ILCS 5/602.1) (from Ch. 40, par. 602.1)
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| Sec. 602.1. (a) The dissolution of marriage, the | 23 |
| declaration of
invalidity of marriage, the legal separation of | 24 |
| the parents, or the parents
living separate and apart shall not | 25 |
| diminish parental powers, rights, and
responsibilities except | 26 |
| as the court for good reason may determine under
the standards | 27 |
| of Section 602.
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| (b) Upon the application of either or both parents, or upon | 29 |
| its own motion,
the court shall consider an award of joint | 30 |
| custody. Joint custody means
custody determined pursuant to a | 31 |
| Joint Parenting Agreement or a Joint Parenting
Order. In such | 32 |
| cases, the court shall initially request the parents to produce
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| a Joint Parenting Agreement. Such Agreement shall specify each | 34 |
| parent's
powers, rights and responsibilities for the personal | 35 |
| care of the child and
for major decisions such as education, |
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| health care, and religious training.
The Agreement shall | 2 |
| further specify a procedure by which proposed changes,
disputes | 3 |
| and alleged breaches may be mediated or otherwise resolved and
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| shall provide for a periodic review of its terms by the | 5 |
| parents. In
producing a Joint Parenting Agreement, the parents | 6 |
| shall be flexible in
arriving at resolutions which further the | 7 |
| policy of this State as expressed
in Sections 102 and 602. For | 8 |
| the purpose of assisting the court in making
a determination | 9 |
| whether an award of joint custody is appropriate, the court
may | 10 |
| order mediation and may direct that an investigation be | 11 |
| conducted
pursuant to the provisions of Section 605. If there | 12 |
| is a danger to the health or safety of a partner, joint | 13 |
| mediation shall not be required by the court. In the event the | 14 |
| parents fail
to produce a Joint Parenting Agreement, the court | 15 |
| may enter an appropriate
Joint Parenting Order under the | 16 |
| standards of Section 602 which shall
specify and contain the | 17 |
| same elements as a Joint Parenting Agreement, or it
may award | 18 |
| sole custody under the standards of Sections 602, 607, and 608.
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| (c) The court may enter an order of joint custody if it | 20 |
| determines
that joint custody would be in the best interests of | 21 |
| the child, taking into
account the following:
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| (1) the ability of the parents to cooperate effectively | 23 |
| and
consistently in matters that directly affect the joint | 24 |
| parenting of the child.
"Ability of the parents
to | 25 |
| cooperate" means the parents' capacity to substantially | 26 |
| comply with a Joint
Parenting Order. The court shall not | 27 |
| consider the inability of the parents to
cooperate | 28 |
| effectively and consistently in matters that do not | 29 |
| directly affect
the joint parenting of the child;
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| (2) The residential circumstances of each parent; and
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| (3) all other factors which may be relevant to the best | 32 |
| interest of the
child.
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| (c-3) There is a rebuttable presumption that it is not in | 34 |
| the best interest of the child for the court to grant joint | 35 |
| custody to a party who: (i) has been adjudicated guilty of | 36 |
| domestic violence as defined in Section 103 of the Illinois |
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| Domestic Violence Act of 1986 on multiple incidents of domestic | 2 |
| violence or on a single incident of domestic violence that | 3 |
| resulted in serious physical injury, as determined by the trier | 4 |
| of fact, against the parent's partner or against the child; or | 5 |
| (ii) has been convicted of violating an order of protection | 6 |
| entered under Section 217, 218, or 219 of the Illinois Domestic | 7 |
| Violence Act of 1986. | 8 |
| (c-5) The presumption stated in subsection (c-3) of this | 9 |
| Section may be rebutted only by a preponderance of evidence | 10 |
| that: (i) the abuser or person who has committed the domestic | 11 |
| violence has successfully completed treatment for abusers or | 12 |
| persons who have committed domestic violence provided through a | 13 |
| certified treatment program or by a certified treatment | 14 |
| provider and is not abusing alcohol or any other drug; (ii) it | 15 |
| is in the best interest of the child for the party who | 16 |
| committed the abuse or domestic violence to be awarded joint | 17 |
| custody based on a consideration of the factors; and (iii) | 18 |
| there is little likelihood of future injury to the child | 19 |
| resulting from an act of abuse or domestic violence. | 20 |
| (c-9) In any case where the presumption is rebutted, the | 21 |
| court shall state in writing the evidence upon which the court | 22 |
| determined that the presumption was rebutted and its findings | 23 |
| relating to the reason that joint custody is in the best | 24 |
| interest of the child.
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| (d) Nothing within this section shall imply or presume that | 26 |
| joint
custody shall necessarily mean equal parenting time. The | 27 |
| physical
residence of the child in joint custodial situations | 28 |
| shall be determined by:
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| (1) express agreement of the parties; or
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| (2) order of the court under the standards of this | 31 |
| Section.
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| (e) Notwithstanding any other provision of law, access to | 33 |
| records and
information pertaining to a child, including but | 34 |
| not limited to medical,
dental, child care and school records, | 35 |
| shall not be denied to a parent for
the reason that such parent | 36 |
| is not the child's custodial parent; however,
no parent shall |
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| have access to the school records of a child if the parent
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| prohibited by an order of protection from inspecting or | 3 |
| obtaining such
records pursuant to the Illinois Domestic | 4 |
| Violence Act of 1986, as now or
hereafter amended.
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| (Source: P.A. 88-409.)
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| (750 ILCS 5/604) (from Ch. 40, par. 604)
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| Sec. 604. Interviews.) (a) The court may interview the | 8 |
| child in chambers
to ascertain the child's wishes as to his | 9 |
| custodian and as to visitation.
Counsel shall be present at the | 10 |
| interview unless otherwise agreed upon by
the parties. The | 11 |
| court shall cause a court reporter to be present who shall
make | 12 |
| a complete record of the interview instantaneously to be part | 13 |
| of the
record in the case.
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| (b) The court may seek the advice of professional | 15 |
| personnel, whether or
not employed by the court on a regular | 16 |
| basis. The professional personnel must have completed 3 hours | 17 |
| of training in domestic violence and its effects on the partner | 18 |
| and the child. The advice given shall be
in writing and made | 19 |
| available by the court to counsel. Counsel may examine,
as a | 20 |
| witness, any professional personnel consulted by the court, | 21 |
| designated
as a court's witness.
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| (Source: P.A. 80-923.)
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| (750 ILCS 5/604.5)
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| Sec. 604.5. Evaluation of child's best interest.
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| (a) In a proceeding for custody, visitation, or removal of | 26 |
| a child from
Illinois, upon notice
and motion made within a | 27 |
| reasonable time before trial, the court may order an
evaluation | 28 |
| concerning the best interest of the child as it relates to | 29 |
| custody,
visitation, or removal. All evaluators must have | 30 |
| completed 3 hours of training in domestic violence and its | 31 |
| effects on the partner and the child. The motion may be made by | 32 |
| a party, a parent, the
child's
custodian, the attorney for the | 33 |
| child, the child's guardian ad litem, or the
child's | 34 |
| representative. The requested evaluation may be in place of or |
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| in
addition to an evaluation conducted under subsection (b) of | 2 |
| Section 604.
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| The
motion shall state the identity of the proposed | 4 |
| evaluator and set forth the
evaluator's specialty or | 5 |
| discipline. The court may refuse to
order an evaluation by the | 6 |
| proposed evaluator, but in that event, the court may
permit the | 7 |
| party seeking the evaluation to propose one or more other
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| evaluators.
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| (b) An order for an evaluation shall fix the time, place, | 10 |
| conditions, and
scope of the evaluation and shall designate the | 11 |
| evaluator.
A party or person shall not be required to travel an | 12 |
| unreasonable distance for
the evaluation.
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| (c) The person requesting an evaluator shall pay the fee | 14 |
| for the evaluation
unless otherwise ordered by the court.
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| (d) Within 21 days after the completion of the evaluation, | 16 |
| if the moving
party or person intends to call the evaluator as | 17 |
| a witness, the evaluator shall
prepare and mail or deliver to | 18 |
| the attorneys of record duplicate originals of
the written | 19 |
| evaluation. The evaluation shall set forth the evaluator's
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| findings, the results
of all tests administered, and the | 21 |
| evaluator's conclusions and recommendations.
If
the
written | 22 |
| evaluation is not delivered or mailed to the attorneys within | 23 |
| 21 days
or within any extensions or modifications granted by | 24 |
| the court, the written
evaluation and the evaluator's | 25 |
| testimony, conclusions, and recommendations may
not be | 26 |
| received into evidence.
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| (e) The person calling an evaluator to testify at trial
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| shall
disclose the evaluator as an opinion
witness in | 29 |
| accordance with the Supreme Court Rules.
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| (f) Subject to compliance with the Supreme
Court Rules, | 31 |
| nothing in this Section bars a person who did not request the
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| evaluation from calling the evaluator as a witness. In that | 33 |
| case, however,
that person shall
pay the evaluator's fee for | 34 |
| testifying unless otherwise ordered by the
court.
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| (Source: P.A. 91-746, eff. 6-2-00.)
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| (750 ILCS 5/605) (from Ch. 40, par. 605)
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| Sec. 605. Investigations and Reports. (a) In contested | 3 |
| custody proceedings,
and in other custody proceedings if a | 4 |
| parent or the child's custodian so
requests, the court may | 5 |
| order an investigation and report concerning custodial
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| arrangements for the child. The investigation and report may be | 7 |
| made by
a child welfare agency approved by the Department of | 8 |
| Children and
Family Services, but shall not be made by that | 9 |
| Department
unless the court determines either that there is no | 10 |
| child welfare agency
available or that the parent or the | 11 |
| child's custodian is financially unable
to pay for the | 12 |
| investigation or report.
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| (b) An investigator who makes a report to the court must | 14 |
| have completed 3 hours of accepted training in domestic | 15 |
| violence and its effects on the partner and the child. In | 16 |
| preparing his report concerning a child, the investigator may | 17 |
| consult
any person who may have information about the child and | 18 |
| his potential custodial
arrangements. Under order of the court, | 19 |
| the investigator may refer the child
to professional personnel | 20 |
| for diagnosis. The investigator may consult with
and obtain | 21 |
| information from medical, psychiatric or other expert persons
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| who have served the child in the past, without obtaining the | 23 |
| consent of
the parent or the child's custodian. The child's | 24 |
| consent must be obtained if
he has reached the age of 16, | 25 |
| unless the court finds that he lacks mental
capacity to | 26 |
| consent.
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| (c) The investigator shall mail the report to counsel, and | 28 |
| to any party
not represented by counsel, at least 10 days prior | 29 |
| to the hearing. The court
may examine and consider the | 30 |
| investigator's report
in determining custody. The investigator | 31 |
| shall make available to counsel,
and to any party not | 32 |
| represented by counsel, the investigator's file of
underlying | 33 |
| data, reports, and the complete texts of diagnostic reports
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| made to the investigator pursuant to the provisions of | 35 |
| subsection (b) of
this Section, and the names and addresses of | 36 |
| all persons whom the
investigator has consulted. Any party to |
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| the proceeding may call the
investigator, or any person whom he | 2 |
| has consulted, as a court's witness,
for cross-examination. A | 3 |
| party may not waive his right of cross-examination
prior to the | 4 |
| hearing.
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| (Source: P.A. 86-659.)
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| (750 ILCS 5/607) (from Ch. 40, par. 607)
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| Sec. 607. Visitation.
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| (a) A parent not granted custody of the child
is entitled | 9 |
| to reasonable visitation rights unless the court finds,
after a | 10 |
| hearing, that visitation would endanger seriously the child's
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| physical, mental, moral or emotional health. If the custodian's | 12 |
| street
address is not identified, pursuant to Section 708, the | 13 |
| court shall require
the parties to identify reasonable | 14 |
| alternative arrangements for visitation
by a non-custodial | 15 |
| parent, including but not limited to visitation of the
minor | 16 |
| child at the residence of another person or at a local public | 17 |
| or
private facility.
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| (a-3) Nothing in subsection (a-5) of this Section shall | 19 |
| apply to a child in whose interests a petition under Section | 20 |
| 2-13 of the Juvenile Court Act of 1987 is pending. | 21 |
| (a-5)(1) Except as otherwise provided in this subsection | 22 |
| (a-5), any grandparent, great-grandparent, or sibling may file | 23 |
| a
petition for
visitation rights to a minor child if there is | 24 |
| an unreasonable denial of visitation by a parent and at least | 25 |
| one
of the
following conditions exists: | 26 |
| (A) one parent of the child is incompetent as a matter | 27 |
| of law or deceased or has been sentenced to a period of | 28 |
| imprisonment for more than 1 year; | 29 |
| (B) the child's mother and father are divorced or have | 30 |
| been legally separated from
each other during the 3 month | 31 |
| period prior to the filing of the petition and at least one | 32 |
| parent does not object to the grandparent, | 33 |
| great-grandparent, or sibling having visitation with the | 34 |
| child. The visitation of the grandparent, | 35 |
| great-grandparent, or sibling must not diminish the |
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| 1 |
| visitation of the parent who is not related to the | 2 |
| grandparent, great-grandparent, or sibling seeking | 3 |
| visitation; | 4 |
| (C) the court, other than a Juvenile Court, has | 5 |
| terminated a parent-child relationship and the | 6 |
| grandparent, great-grandparent, or sibling is the parent | 7 |
| of the person whose parental rights have been terminated, | 8 |
| except in cases of adoption. The visitation must not be | 9 |
| used to allow the parent who lost parental rights to | 10 |
| unlawfully visit with the child; | 11 |
| (D) the child is illegitimate, the parents are not | 12 |
| living together, and the petitioner is a maternal | 13 |
| grandparent, great-grandparent, or sibling of the | 14 |
| illegitimate child; or | 15 |
| (E) the child is illegitimate, the parents are not | 16 |
| living together, the petitioner is a paternal grandparent, | 17 |
| great-grandparent, or sibling, and the paternity has been | 18 |
| established by a court of competent jurisdiction. | 19 |
| (2) The grandparent, great-grandparent, or sibling of a | 20 |
| parent whose parental rights have been terminated through an | 21 |
| adoption proceeding may not petition for visitation rights.
| 22 |
| (3) In making a determination under this subsection (a-5), | 23 |
| there is a
rebuttable
presumption that a fit parent's actions | 24 |
| and decisions regarding grandparent,
great-grandparent, or | 25 |
| sibling visitation are not harmful to the child's mental, | 26 |
| physical, or emotional health. The
burden is on the
party | 27 |
| filing a petition under this Section to prove that the
parent's | 28 |
| actions and
decisions regarding visitation times are harmful to | 29 |
| the child's mental, physical, or emotional health. | 30 |
| (4) In determining whether to grant visitation, the court | 31 |
| shall consider the following:
| 32 |
| (A) the preference of the child if the child is | 33 |
| determined to be of sufficient maturity to express a | 34 |
| preference; | 35 |
| (B) the mental and physical health of the child; | 36 |
| (C) the mental and physical health of the grandparent, |
|
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| great-grandparent, or sibling; | 2 |
| (D) the length and quality of the prior relationship | 3 |
| between the child and the grandparent, great-grandparent, | 4 |
| or sibling;
| 5 |
| (E) the good faith of the party in filing the petition;
| 6 |
| (F) the good faith of the person denying visitation; | 7 |
| (G) the quantity of the visitation time requested and | 8 |
| the potential adverse impact that visitation would have on | 9 |
| the child's customary activities; | 10 |
| (H) whether the child resided with the petitioner for | 11 |
| at least 6 consecutive months with or without the current | 12 |
| custodian present; | 13 |
| (I) whether the petitioner had frequent or regular | 14 |
| contact with the child for at least 12 consecutive months; | 15 |
| and
| 16 |
| (J) any other fact that establishes that the loss of | 17 |
| the relationship between the petitioner and the child is | 18 |
| likely to harm the child's mental, physical, or emotional | 19 |
| health. | 20 |
| (5) The court may order visitation rights for the | 21 |
| grandparent, great-grandparent, or sibling that include | 22 |
| reasonable access without requiring overnight or possessory | 23 |
| visitation.
| 24 |
| (a-7)(1) Unless by stipulation of the parties, no motion to | 25 |
| modify a grandparent, great-grandparent, or sibling visitation | 26 |
| order may be made earlier than 2 years after the date the order | 27 |
| was filed, unless the court permits it to be made on the basis | 28 |
| of affidavits that there is reason to believe the child's | 29 |
| present environment may endanger seriously the child's mental, | 30 |
| physical, or emotional health. | 31 |
| (2) The court shall not modify a prior grandparent, | 32 |
| great-grandparent, or sibling visitation order unless it finds | 33 |
| by clear and convincing evidence, upon the basis of facts that | 34 |
| have arisen since the prior visitation order or that were | 35 |
| unknown to the court at the time of entry of the prior | 36 |
| visitation, that a change has occurred in the circumstances of |
|
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| the child or his or her custodian, and that the modification is | 2 |
| necessary to protect the mental, physical, or emotional health | 3 |
| of the child. The court shall state in its decision specific | 4 |
| findings of fact in support of its modification or termination | 5 |
| of the grandparent, great-grandparent, or sibling visitation. | 6 |
| (3) Attorney fees and costs shall be assessed against a | 7 |
| party seeking modification of the visitation order if the court | 8 |
| finds that the modification action is vexatious and constitutes | 9 |
| harassment. | 10 |
| (4) Notice under this subsection (a-7) shall be given as | 11 |
| provided in subsections (c) and (d) of Section 601.
| 12 |
| (b) (1) (Blank.)
| 13 |
| (1.5) The Court may grant reasonable visitation privileges | 14 |
| to a stepparent
upon petition to the court by the stepparent, | 15 |
| with notice to the parties
required to be notified under | 16 |
| Section 601 of this Act, if the court determines
that it is in | 17 |
| the best interests and welfare of the child, and may issue any
| 18 |
| necessary orders to enforce those visitation privileges.
A | 19 |
| petition for visitation privileges may be filed under this | 20 |
| paragraph (1.5)
whether or not a petition pursuant to this Act | 21 |
| has been previously filed or is
currently pending if the | 22 |
| following
circumstances are met:
| 23 |
| (A) the child is at least 12 years old;
| 24 |
| (B) the child resided continuously with the parent and | 25 |
| stepparent for at
least 5 years;
| 26 |
| (C) the parent is deceased or is disabled and is unable | 27 |
| to care for the
child;
| 28 |
| (D) the child wishes to have reasonable visitation with | 29 |
| the stepparent;
and
| 30 |
| (E) the stepparent was providing for the care, control, | 31 |
| and welfare to the
child prior to the initiation of the | 32 |
| petition for visitation.
| 33 |
| (2)(A) A petition for visitation privileges shall not be | 34 |
| filed pursuant
to this subsection (b) by the parents or | 35 |
| grandparents of a putative father
if the paternity of the | 36 |
| putative father has not been legally established.
|
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| (B) A petition for visitation privileges may not be filed | 2 |
| under
this subsection (b) if the child who is the subject of | 3 |
| the
grandparents' or great-grandparents' petition has been | 4 |
| voluntarily
surrendered by the parent or parents, except for a | 5 |
| surrender to the
Illinois Department of Children and Family | 6 |
| Services or a foster care
facility, or has been previously | 7 |
| adopted by an individual or individuals
who are not related to | 8 |
| the biological parents of the child or is the
subject of a | 9 |
| pending adoption petition by an individual or individuals who
| 10 |
| are not related to the biological parents of the child.
| 11 |
| (3) (Blank).
| 12 |
| (c) The court may modify an order granting or denying | 13 |
| visitation
rights of a parent whenever modification would serve | 14 |
| the best interest of
the child;
but the court shall not | 15 |
| restrict a parent's visitation rights unless it
finds that the | 16 |
| visitation would endanger seriously the child's physical,
| 17 |
| mental, moral or emotional health.
The court may modify an | 18 |
| order granting, denying, or limiting visitation
rights of a | 19 |
| grandparent, great-grandparent, or sibling of any minor child
| 20 |
| whenever a change of circumstances has occurred based on facts | 21 |
| occurring
subsequent to the judgment and the court finds by | 22 |
| clear and convincing evidence
that the modification is in the | 23 |
| best interest of the minor child.
| 24 |
| (c-3) There is a rebuttable presumption that it is not in | 25 |
| the best interest of the child for the court to grant | 26 |
| visitation to a partner who has been adjudicated guilty of | 27 |
| domestic violence as defined in Section 103 of the Illinois | 28 |
| Domestic Violence Act of 1986 on multiple incidents of domestic | 29 |
| violence or on a single incident of domestic violence that | 30 |
| resulted in serious physical injury, as determined by the trier | 31 |
| of fact, against the partner or the child or has been convicted | 32 |
| of violating an order of protection entered under Section 217, | 33 |
| 218, or 219 of the same Act.
| 34 |
| (c-5) The presumption stated in subsection (c-3) of this | 35 |
| Section may be rebutted only by a preponderance of evidence | 36 |
| that: (i) the abuser or person who has committed the domestic |
|
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| violence has successfully completed treatment for abusers or | 2 |
| persons who have committed domestic violence provided through a | 3 |
| certified treatment program or by a certified treatment | 4 |
| provider and is not abusing alcohol or any other drug; (ii) it | 5 |
| is in the best interest of the child for the party who | 6 |
| committed the abuse or domestic violence to be awarded | 7 |
| visitation based on a consideration of the factors; and (iii) | 8 |
| there is little likelihood of future injury to the child | 9 |
| resulting from an act of abuse or domestic violence. In any | 10 |
| case where the presumption is rebutted, the court shall state | 11 |
| in writing the evidence upon which the court determined that | 12 |
| the presumption was rebutted and its findings relating to the | 13 |
| reason why visitation is in the best interest of the child.
| 14 |
| (c-7) If the court finds that a party has engaged in a | 15 |
| pattern or serious incident of abuse or domestic violence and | 16 |
| the court awards visitation to the party who has committed the | 17 |
| domestic violence or abuse, the court shall provide for the | 18 |
| safety and well-being of the child and for the safety and well | 19 |
| being of the party who was the victim of domestic violence or | 20 |
| abuse. For that purpose, the court, giving consideration to the | 21 |
| availability of services or programs and to the ability of the | 22 |
| party who committed the domestic violence or abuse to pay for | 23 |
| those services or programs, shall impose one or more of the | 24 |
| following, as appropriate: | 25 |
| (1) Requiring the exchange of the child to occur in a | 26 |
| protected setting or in the presence of an appropriate | 27 |
| third party who agrees by affidavit or other supporting | 28 |
| evidence to assume the responsibility assigned by the court | 29 |
| and to be accountable to the court for his or her actions | 30 |
| with respect to the responsibility. | 31 |
| (2) Requiring the child's periods of visitation with | 32 |
| the party who committed the abuse or domestic violence to | 33 |
| be supervised by an appropriate third party who agrees by | 34 |
| affidavit or other supporting evidence to assume the | 35 |
| responsibility assigned by the court and to be accountable | 36 |
| to the court for his or her actions with respect to the |
|
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| responsibility. | 2 |
| (3) Requiring the partner who committed the abuse or | 3 |
| domestic violence to pay the costs of supervised | 4 |
| visitation. | 5 |
| (4)
Requiring the party who committed the abuse or | 6 |
| domestic violence to attend and complete, to the | 7 |
| satisfaction of the court, treatment for abusers or persons | 8 |
| who have committed domestic violence provided through a | 9 |
| certified treatment program or by a certified treatment | 10 |
| provider as a condition of exercising his or her | 11 |
| visitation. | 12 |
| (5) If the party who committed the abuse or domestic | 13 |
| violence has a significant problem with alcohol or drug | 14 |
| abuse, prohibiting that party from being under the | 15 |
| influence of alcohol or any controlled substance when the | 16 |
| parties exchange the child for visitation and from | 17 |
| possessing or consuming alcohol or any controlled | 18 |
| substance during his or her periods of visitation. | 19 |
| (6) Prohibiting the party who committed the abuse or | 20 |
| domestic violence from having overnight visitation with | 21 |
| the child. | 22 |
| (7) Requiring the party who committed the abuse or | 23 |
| domestic violence to post bond for the return and safety of | 24 |
| the child. | 25 |
| (8) Imposing any other condition that the court | 26 |
| determines is necessary for the safety and well-being of | 27 |
| the child or the safety of the party who was the victim of | 28 |
| the abuse or domestic violence. | 29 |
| (d) If any court has entered an order prohibiting a | 30 |
| non-custodial parent
of a child from any contact with a child
| 31 |
| or restricting the non-custodial parent's contact with the | 32 |
| child, the
following provisions shall apply:
| 33 |
| (1) If an order has been entered granting visitation | 34 |
| privileges with the
child to a grandparent or | 35 |
| great-grandparent who is related to the child through
the | 36 |
| non-custodial parent, the visitation privileges of the |
|
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| grandparent or
great-grandparent may be revoked if:
| 2 |
| (i) a court has entered an order prohibiting the | 3 |
| non-custodial parent
from any contact with the child, | 4 |
| and the grandparent or great-grandparent is
found to | 5 |
| have used his or her visitation privileges to | 6 |
| facilitate contact
between the child and the | 7 |
| non-custodial parent; or
| 8 |
| (ii) a court has entered an order restricting the | 9 |
| non-custodial parent's
contact with the child, and the | 10 |
| grandparent or great-grandparent is found to
have used | 11 |
| his or her visitation privileges to facilitate contact
| 12 |
| between the child and the non-custodial parent in a | 13 |
| manner that violates the
terms of the order restricting | 14 |
| the non-custodial parent's contact with the
child.
| 15 |
| Nothing in this subdivision (1) limits the authority of | 16 |
| the court to
enforce its orders in any manner permitted by | 17 |
| law.
| 18 |
| (2) Any order granting visitation privileges with the | 19 |
| child to a
grandparent or great-grandparent who is related | 20 |
| to the child through the
non-custodial parent shall contain | 21 |
| the following provision:
| 22 |
| "If the (grandparent or great-grandparent, whichever | 23 |
| is applicable) who has
been granted visitation privileges | 24 |
| under this order uses the visitation
privileges to | 25 |
| facilitate contact between the child and the child's
| 26 |
| non-custodial parent, the visitation privileges granted | 27 |
| under this order shall
be permanently revoked."
| 28 |
| (e) No parent, not granted custody of the child, or | 29 |
| grandparent, or
great-grandparent, or stepparent, or sibling | 30 |
| of any minor child, convicted
of any offense
involving an | 31 |
| illegal sex act perpetrated upon a victim less than 18 years of
| 32 |
| age including but not limited to offenses for violations of | 33 |
| Article 12 of the
Criminal Code of 1961, is entitled to | 34 |
| visitation rights while incarcerated
or while on parole, | 35 |
| probation, conditional discharge, periodic
imprisonment, or
| 36 |
| mandatory supervised release for that offense, and upon |
|
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| discharge from
incarceration for a misdemeanor offense or upon | 2 |
| discharge from parole,
probation, conditional discharge, | 3 |
| periodic imprisonment,
or mandatory supervised release for a | 4 |
| felony offense, visitation shall be
denied until the person | 5 |
| successfully completes a treatment program approved
by the | 6 |
| court.
| 7 |
| (f) Unless the court determines, after considering all | 8 |
| relevant factors,
including but not limited to those set forth | 9 |
| in Section 602(a), that it would
be in the best interests of | 10 |
| the child to allow visitation, the court shall not
enter an | 11 |
| order providing visitation rights and pursuant to a motion to | 12 |
| modify
visitation shall revoke visitation rights previously | 13 |
| granted to any
person who would otherwise be entitled to | 14 |
| petition for visitation rights under
this Section who has been | 15 |
| convicted of first degree murder of the parent,
grandparent, | 16 |
| great-grandparent, or sibling of the child who is the subject | 17 |
| of
the order. Until an order is entered pursuant to this | 18 |
| subsection, no person
shall visit, with
the child present, a | 19 |
| person who has been convicted of first degree murder of
the | 20 |
| parent, grandparent, great-grandparent, or sibling of the | 21 |
| child
without the consent of the child's parent, other than a | 22 |
| parent convicted of
first degree murder as set forth herein, or | 23 |
| legal
guardian.
| 24 |
| (g) If an order has been entered limiting, for cause, a | 25 |
| minor child's
contact or
visitation with a grandparent, | 26 |
| great-grandparent, or sibling on the grounds
that it was in the | 27 |
| best interest of the child to do so, that order may be
modified | 28 |
| only upon a showing of a substantial change in circumstances | 29 |
| occurring
subsequent to the entry of the order with proof by | 30 |
| clear and convincing
evidence that modification is in the best | 31 |
| interest of the minor child.
| 32 |
| (Source: P.A. 93-911, eff. 1-1-05.)
| 33 |
| Section 99. Effective date. This Act takes effect upon | 34 |
| becoming law.
|
|