Full Text of HB5425 98th General Assembly
HB5425 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB5425 Introduced , by Rep. John M. Cabello SYNOPSIS AS INTRODUCED: |
| 750 ILCS 5/102 | from Ch. 40, par. 102 | 750 ILCS 5/602.1 | from Ch. 40, par. 602.1 | 750 ILCS 5/602.4 new | | 750 ILCS 5/607 | from Ch. 40, par. 607 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. To the list of purposes of the Act, adds: (i) continuing existing child-parent relationships; and (ii) recognizing that the involvement of each parent for equal time and not less than 35% of residential parenting time per week is presumptively in the children's best interests. Provides that the court shall allocate parenting time according to the child's best interests and that it is presumed that it is in the child's best interests to award equal time to each parent. Provides that unless the parents present a mutually agreed written and notarized parenting plan within 90 days of both parties filing an appearance, the court shall allocate parenting time. Provides that it is presumed that both parents are fit and the court shall not place any restrictions on parenting time unless it finds by clear and convincing evidence that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral, or emotional health. Provides that in cases where the court finds that it is not in the best interests of the child for the parents to have equal time or that it is not possible for both parents to share time equally, a minimum of 35% residential time per week should be ordered for the non-custodial parent. Provides that the non-custodial parent may waive his or her right to a 35% minimum residential time per week. Provides that parents may agree to an alternate parenting schedule, subject to the court's approval. Provides that the term "visitation" includes parenting time. Provides that the parties shall implement an order allocating parenting time no more than 60 days after the entry of the order. Makes corresponding changes.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Illinois Marriage and Dissolution of | 5 | | Marriage Act is amended by changing Sections 102, 602.1, and | 6 | | 607 and by adding Section 602.4 as follows:
| 7 | | (750 ILCS 5/102) (from Ch. 40, par. 102)
| 8 | | Sec. 102. Purposes; Rules of Construction. This Act shall | 9 | | be liberally
construed and applied to promote its underlying | 10 | | purposes, which are to:
| 11 | | (1) provide adequate procedures for the solemnization and | 12 | | registration
of marriage;
| 13 | | (2) strengthen and preserve the integrity of marriage and | 14 | | safeguard family
relationships;
| 15 | | (3) promote the amicable settlement of disputes that have | 16 | | arisen between
parties to a marriage;
| 17 | | (4) mitigate the potential harm to the spouses and their | 18 | | children caused
by the process of legal dissolution of | 19 | | marriage;
| 20 | | (5) make reasonable provision for spouses and minor | 21 | | children during and
after litigation, including provision for | 22 | | timely awards of interim fees to
achieve substantial parity in | 23 | | parties' access to funds for litigation costs;
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| 1 | | (6) eliminate the consideration of marital misconduct in | 2 | | the adjudication
of rights and duties incident to the legal | 3 | | dissolution of marriage, legal
separation and declaration of | 4 | | invalidity of marriage;
| 5 | | (7) continue existing parent-child relationships, and | 6 | | secure the maximum involvement and cooperation of both parents | 7 | | regarding
the physical, mental, moral , and emotional | 8 | | well-being of the children during
and after the litigation; and
| 9 | | (8) make provision for the preservation and conservation of | 10 | | assets
during the litigation ; and .
| 11 | | (9) recognize that the involvement of each parent for equal | 12 | | time and not less than 35% of residential parenting time per | 13 | | week is presumptively in the children's best interests. | 14 | | (Source: P.A. 89-712, eff. 6-1-97.)
| 15 | | (750 ILCS 5/602.1) (from Ch. 40, par. 602.1)
| 16 | | Sec. 602.1. (a) The dissolution of marriage, the | 17 | | declaration of
invalidity of marriage, the legal separation of | 18 | | the parents, or the parents
living separate and apart shall not | 19 | | diminish parental powers, rights, and
responsibilities except | 20 | | as the court for good reason may determine under
the standards | 21 | | of Section 602.
| 22 | | (b) Upon the application of either or both parents, or upon | 23 | | its own motion,
the court shall consider an award of joint | 24 | | custody. Joint custody means
custody determined pursuant to a | 25 | | Joint Parenting Agreement or a Joint Parenting
Order. In such |
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| 1 | | cases, the court shall initially request the parents to produce
| 2 | | a Joint Parenting Agreement. Such Agreement shall specify each | 3 | | parent's
powers, rights and responsibilities for the personal | 4 | | care of the child and
for major decisions such as education, | 5 | | health care, and religious training.
The Agreement shall | 6 | | further specify a procedure by which proposed changes,
disputes | 7 | | and alleged breaches may be mediated or otherwise resolved and
| 8 | | shall provide for a periodic review of its terms by the | 9 | | parents. In
producing a Joint Parenting Agreement, the parents | 10 | | shall be flexible in
arriving at resolutions which further the | 11 | | policy of this State as expressed
in Sections 102 and 602. For | 12 | | the purpose of assisting the court in making
a determination | 13 | | whether an award of joint custody is appropriate, the court
may | 14 | | order mediation and may direct that an investigation be | 15 | | conducted
pursuant to the provisions of Section 605. If there | 16 | | is a danger to the health or safety of a partner, joint | 17 | | mediation shall not be required by the court. In the event the | 18 | | parents fail
to produce a Joint Parenting Agreement, the court | 19 | | may enter an appropriate
Joint Parenting Order under the | 20 | | standards of Section 602 which shall
specify and contain the | 21 | | same elements as a Joint Parenting Agreement, or it
may award | 22 | | sole custody under the standards of Sections 602, 607, and 608.
| 23 | | (c) The court may enter an order of joint custody if it | 24 | | determines
that joint custody would be in the best interests of | 25 | | the child, taking into
account the following:
| 26 | | (1) the ability of the parents to cooperate effectively |
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| 1 | | and
consistently in matters that directly affect the joint | 2 | | parenting of the child.
"Ability of the parents
to | 3 | | cooperate" means the parents' capacity to substantially | 4 | | comply with a Joint
Parenting Order. The court shall not | 5 | | consider the inability of the parents to
cooperate | 6 | | effectively and consistently in matters that do not | 7 | | directly affect
the joint parenting of the child;
| 8 | | (2) The residential circumstances of each parent; and
| 9 | | (3) all other factors which may be relevant to the best | 10 | | interest of the
child.
| 11 | | (d) Nothing within this section shall imply or presume that | 12 | | joint
custody shall necessarily mean equal parenting time. The | 13 | | physical
residence of the child in joint custodial situations | 14 | | shall be determined by:
| 15 | | (1) express agreement of the parties; or
| 16 | | (2) order of the court under the standards of this | 17 | | Section.
| 18 | | (e) Notwithstanding any other provision of law, access to | 19 | | records and
information pertaining to a child, including but | 20 | | not limited to medical,
dental, child care and school records, | 21 | | shall not be denied to a parent for
the reason that such parent | 22 | | is not the child's custodial parent; however,
no parent shall | 23 | | have access to the school records of a child if the parent
is | 24 | | prohibited by an order of protection from inspecting or | 25 | | obtaining such
records pursuant to the Illinois Domestic | 26 | | Violence Act of 1986, as now or
hereafter amended or pursuant |
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| 1 | | to the Code of Criminal Procedure of 1963. No parent who is a | 2 | | named respondent in an order of protection issued pursuant to | 3 | | the Illinois Domestic Violence Act of 1986 or the Code of | 4 | | Criminal Procedure of 1963 shall have access to the health care | 5 | | records of a child who is a protected person under that order | 6 | | of protection.
| 7 | | (Source: P.A. 95-912, eff. 1-1-09; 96-651, eff. 1-1-10.)
| 8 | | (750 ILCS 5/602.4 new) | 9 | | Sec. 602.4. Parenting time. | 10 | | (a) The court shall allocate parenting time according to | 11 | | the child's best interests. It is presumed that it is in the | 12 | | child's best interests to award equal time to each parent. | 13 | | (b) Unless the parents present a mutually agreed written | 14 | | and notarized parenting plan within 90 days of both parties | 15 | | filing an appearance, the court shall allocate parenting time. | 16 | | It is presumed that both parents are fit and the court shall | 17 | | not place any restrictions on parenting time unless it finds by | 18 | | clear and convincing evidence that a parent's exercise of | 19 | | parenting time would seriously endanger the child's physical, | 20 | | mental, moral, or emotional health. | 21 | | (c) In cases where the court finds that it is not in the | 22 | | best interests of the child for the parents to have equal time | 23 | | or that it is not possible for both parents to share time | 24 | | equally, a minimum of 35% residential time per week should be | 25 | | ordered for the non-custodial parent. The non-custodial parent |
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| 1 | | may waive his or her right to a 35% minimum residential time | 2 | | per week. | 3 | | (d) The parents may agree to an alternate parenting | 4 | | schedule, subject to the court's approval. | 5 | | (e) The parties shall implement an order allocating | 6 | | parenting time entered under this Section no more than 60 days | 7 | | after the entry of the order.
| 8 | | (750 ILCS 5/607) (from Ch. 40, par. 607)
| 9 | | Sec. 607. Visitation.
| 10 | | (a) A parent not granted custody of the child
is entitled | 11 | | to reasonable visitation rights unless the court finds,
after a | 12 | | hearing, that visitation would endanger seriously the child's
| 13 | | physical, mental, moral or emotional health. If the custodian's | 14 | | street
address is not identified, pursuant to Section 708, the | 15 | | court shall require
the parties to identify reasonable | 16 | | alternative arrangements for visitation
by a non-custodial | 17 | | parent, including but not limited to visitation of the
minor | 18 | | child at the residence of another person or at a local public | 19 | | or
private facility.
| 20 | | (1) "Visitation" means in-person time spent between a | 21 | | child and the child's parent. In appropriate | 22 | | circumstances, it may include electronic communication | 23 | | under conditions and at times determined by the court. | 24 | | "Visitation" includes parenting time under Section 602.4 | 25 | | of this Act. |
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| 1 | | (2) "Electronic communication" means time that a | 2 | | parent spends with his or her child during which the child | 3 | | is not in the parent's actual physical custody, but which | 4 | | is facilitated by the use of communication tools such as | 5 | | the telephone, electronic mail, instant messaging, video | 6 | | conferencing or other wired or wireless technologies via | 7 | | the Internet, or another medium of communication.
| 8 | | (a-3) Grandparents, great-grandparents, and siblings of a | 9 | | minor child, who is one year old or older, have standing to | 10 | | bring an action in circuit court by petition, requesting | 11 | | visitation in accordance with this Section. The term "sibling" | 12 | | in this Section means a brother, sister, stepbrother, or | 13 | | stepsister of the minor child. Grandparents, | 14 | | great-grandparents, and siblings also have standing to file a | 15 | | petition for visitation and any electronic communication
| 16 | | rights in a pending dissolution proceeding or any other | 17 | | proceeding that involves custody or visitation issues, | 18 | | requesting visitation in accordance with this Section. A | 19 | | petition for visitation with a child by a person other than a | 20 | | parent must be filed in the county in which the child resides. | 21 | | Nothing in this subsection (a-3) and subsection (a-5) of this | 22 | | Section shall apply to a child in whose interests a petition is | 23 | | pending under Section 2-13 of the Juvenile Court Act of 1987 or | 24 | | a petition to adopt an unrelated child is pending under the | 25 | | Adoption Act. | 26 | | (a-5)(1) Except as otherwise provided in this subsection |
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| 1 | | (a-5), any grandparent, great-grandparent, or sibling may file | 2 | | a
petition for
visitation rights to a minor child if there is | 3 | | an unreasonable denial of visitation by a parent and at least | 4 | | one
of the
following conditions exists: | 5 | | (A) (Blank); | 6 | | (A-5) the child's other parent is deceased or has been | 7 | | missing for at least 3 months. For the purposes of this | 8 | | Section a parent is considered to be missing if the | 9 | | parent's location has not been determined and the parent | 10 | | has been reported as missing to a law enforcement agency;
| 11 | | (A-10) a parent of the child is incompetent as a matter | 12 | | of law;
| 13 | | (A-15) a parent has been incarcerated in jail or prison | 14 | | during the 3 month period preceding the filing of the | 15 | | petition;
| 16 | | (B) the child's mother and father are divorced or have | 17 | | been legally separated from
each other or there is pending | 18 | | a dissolution proceeding involving a parent of the child or | 19 | | another court proceeding involving custody or visitation | 20 | | of the child (other than any adoption proceeding of an | 21 | | unrelated child) and at least one parent does not object to | 22 | | the grandparent, great-grandparent, or sibling having | 23 | | visitation with the child. The visitation of the | 24 | | grandparent, great-grandparent, or sibling must not | 25 | | diminish the visitation of the parent who is not related to | 26 | | the grandparent, great-grandparent, or sibling seeking |
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| 1 | | visitation; | 2 | | (C) (Blank); | 3 | | (D) the child is born out of wedlock, the parents are | 4 | | not living together, and the petitioner is a maternal | 5 | | grandparent, great-grandparent, or sibling of the child | 6 | | born out of wedlock; or | 7 | | (E) the child is born out of wedlock, the parents are | 8 | | not living together, the petitioner is a paternal | 9 | | grandparent, great-grandparent, or sibling, and the | 10 | | paternity has been established by a court of competent | 11 | | jurisdiction. | 12 | | (2) Any visitation rights granted pursuant to this Section | 13 | | before the filing of a petition for adoption of a child shall | 14 | | automatically terminate by operation of law upon the entry of | 15 | | an order terminating parental rights or granting the adoption | 16 | | of the child, whichever is earlier. If the person or persons | 17 | | who adopted the child are related to the child, as defined by | 18 | | Section 1 of the Adoption Act, any person who was related to | 19 | | the child as grandparent, great-grandparent, or sibling prior | 20 | | to the adoption shall have standing to bring an action pursuant | 21 | | to this Section requesting visitation with the child.
| 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 |
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| 1 | | filing a petition under this Section to prove that the
parent's | 2 | | actions and
decisions regarding visitation times are harmful to | 3 | | the child's mental, physical, or emotional health. | 4 | | (4) In determining whether to grant visitation, the court | 5 | | shall consider the following:
| 6 | | (A) the preference of the child if the child is | 7 | | determined to be of sufficient maturity to express a | 8 | | preference; | 9 | | (B) the mental and physical health of the child; | 10 | | (C) the mental and physical health of the grandparent, | 11 | | great-grandparent, or sibling; | 12 | | (D) the length and quality of the prior relationship | 13 | | between the child and the grandparent, great-grandparent, | 14 | | or sibling;
| 15 | | (E) the good faith of the party in filing the petition;
| 16 | | (F) the good faith of the person denying visitation; | 17 | | (G) the quantity of the visitation time requested and | 18 | | the potential adverse impact that visitation would have on | 19 | | the child's customary activities; | 20 | | (H) whether the child resided with the petitioner for | 21 | | at least
6 consecutive months with or without the current | 22 | | custodian present; | 23 | | (I) whether the petitioner had frequent or regular | 24 | | contact or visitation with the child for at least 12 | 25 | | consecutive months;
| 26 | | (J) any other fact that establishes that the loss of |
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| 1 | | the relationship between the petitioner and the child is | 2 | | likely to harm the child's mental, physical, or emotional | 3 | | health; and | 4 | | (K) whether the grandparent, great-grandparent, or | 5 | | sibling was a primary caretaker of the child for a period | 6 | | of not less than 6 consecutive months.
| 7 | | (5) The court may order visitation rights for the | 8 | | grandparent, great-grandparent, or sibling that include | 9 | | reasonable access without requiring overnight or possessory | 10 | | visitation.
| 11 | | (a-7)(1) Unless by stipulation of the parties, no motion to | 12 | | modify a grandparent, great-grandparent, or sibling visitation | 13 | | order may be made earlier than 2 years after the date the order | 14 | | was filed, unless the court permits it to be made on the basis | 15 | | of affidavits that there is reason to believe the child's | 16 | | present environment may endanger seriously the child's mental, | 17 | | physical, or emotional health. | 18 | | (2) The court shall not modify an order that grants | 19 | | visitation to a grandparent, great-grandparent, or sibling | 20 | | unless it finds by clear and convincing evidence, upon the | 21 | | basis of facts that have arisen since the prior visitation | 22 | | order or that were unknown to the court at the time of entry of | 23 | | the prior visitation, that a change has occurred in the | 24 | | circumstances of the child or his or her custodian, and that | 25 | | the modification is necessary to protect the mental, physical, | 26 | | or emotional health of the child. The court shall state in its |
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| 1 | | decision specific findings of fact in support of its | 2 | | modification or termination of the grandparent, | 3 | | great-grandparent, or sibling visitation. A child's parent may | 4 | | always petition to modify visitation upon changed | 5 | | circumstances when necessary to promote the child's best | 6 | | interest. | 7 | | (3) Attorney fees and costs shall be assessed against a | 8 | | party seeking modification of the visitation order if the court | 9 | | finds that the modification action is vexatious and constitutes | 10 | | harassment. | 11 | | (4) Notice under this subsection (a-7) shall be given as | 12 | | provided in subsections (c) and (d) of Section 601.
| 13 | | (b) (1) (Blank.)
| 14 | | (1.5) The Court may grant reasonable visitation privileges | 15 | | to a stepparent
upon petition to the court by the stepparent, | 16 | | with notice to the parties
required to be notified under | 17 | | Section 601 of this Act, if the court determines
that it is in | 18 | | the best interests and welfare of the child, and may issue any
| 19 | | necessary orders to enforce those visitation privileges.
A | 20 | | petition for visitation privileges may be filed under this | 21 | | paragraph (1.5)
whether or not a petition pursuant to this Act | 22 | | has been previously filed or is
currently pending if the | 23 | | following
circumstances are met:
| 24 | | (A) the child is at least 12 years old;
| 25 | | (B) the child resided continuously with the parent and | 26 | | stepparent for at
least 5 years;
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| 1 | | (C) the parent is deceased or is disabled and is unable | 2 | | to care for the
child;
| 3 | | (D) the child wishes to have reasonable visitation with | 4 | | the stepparent;
and
| 5 | | (E) the stepparent was providing for the care, control, | 6 | | and welfare to the
child prior to the initiation of the | 7 | | petition for visitation.
| 8 | | (2)(A) A petition for visitation privileges shall not be | 9 | | filed pursuant
to this subsection (b) by the parents or | 10 | | grandparents of a putative father
if the paternity of the | 11 | | putative father has not been legally established.
| 12 | | (B) A petition for visitation privileges may not be filed | 13 | | under
this subsection (b) if the child who is the subject of | 14 | | the
grandparents' or great-grandparents' petition has been | 15 | | voluntarily
surrendered by the parent or parents, except for a | 16 | | surrender to the
Illinois Department of Children and Family | 17 | | Services or a foster care
facility, or has been previously | 18 | | adopted by an individual or individuals
who are not related to | 19 | | the biological parents of the child or is the
subject of a | 20 | | pending adoption petition by an individual or individuals who
| 21 | | are not related to the biological parents of the child.
| 22 | | (3) (Blank).
| 23 | | (c) The court may modify an order granting or denying | 24 | | visitation
rights of a parent whenever modification would serve | 25 | | the best interest of
the child;
but the court shall not | 26 | | restrict a parent's visitation rights unless it
finds that the |
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| 1 | | visitation would endanger seriously the child's physical,
| 2 | | mental, moral or emotional health.
| 3 | | (d) If any court has entered an order prohibiting a | 4 | | non-custodial parent
of a child from any contact with a child
| 5 | | or restricting the non-custodial parent's contact with the | 6 | | child, the
following provisions shall apply:
| 7 | | (1) If an order has been entered granting visitation | 8 | | privileges with the
child to a grandparent or | 9 | | great-grandparent who is related to the child through
the | 10 | | non-custodial parent, the visitation privileges of the | 11 | | grandparent or
great-grandparent may be revoked if:
| 12 | | (i) a court has entered an order prohibiting the | 13 | | non-custodial parent
from any contact with the child, | 14 | | and the grandparent or great-grandparent is
found to | 15 | | have used his or her visitation privileges to | 16 | | facilitate contact
between the child and the | 17 | | non-custodial parent; or
| 18 | | (ii) a court has entered an order restricting the | 19 | | non-custodial parent's
contact with the child, and the | 20 | | grandparent or great-grandparent is found to
have used | 21 | | his or her visitation privileges to facilitate contact
| 22 | | between the child and the non-custodial parent in a | 23 | | manner that violates the
terms of the order restricting | 24 | | the non-custodial parent's contact with the
child.
| 25 | | Nothing in this subdivision (1) limits the authority of | 26 | | the court to
enforce its orders in any manner permitted by |
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| 1 | | law.
| 2 | | (2) Any order granting visitation privileges with the | 3 | | child to a
grandparent or great-grandparent who is related | 4 | | to the child through the
non-custodial parent shall contain | 5 | | the following provision:
| 6 | | "If the (grandparent or great-grandparent, whichever | 7 | | is applicable) who has
been granted visitation privileges | 8 | | under this order uses the visitation
privileges to | 9 | | facilitate contact between the child and the child's
| 10 | | non-custodial parent, the visitation privileges granted | 11 | | under this order shall
be permanently revoked."
| 12 | | (e) No parent, not granted custody of the child, or | 13 | | grandparent, or
great-grandparent, or stepparent, or sibling | 14 | | of any minor child, convicted
of any offense
involving an | 15 | | illegal sex act perpetrated upon a victim less than 18 years of
| 16 | | age including but not limited to offenses for violations of | 17 | | Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, | 18 | | or Article 12 of the
Criminal Code of 1961 or the Criminal Code | 19 | | of 2012, is entitled to visitation rights while incarcerated
or | 20 | | while on parole, probation, conditional discharge, periodic
| 21 | | imprisonment, or
mandatory supervised release for that | 22 | | offense, and upon discharge from
incarceration for a | 23 | | misdemeanor offense or upon discharge from parole,
probation, | 24 | | conditional discharge, periodic imprisonment,
or mandatory | 25 | | supervised release for a felony offense, visitation shall be
| 26 | | denied until the person successfully completes a treatment |
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| 1 | | program approved
by the court.
| 2 | | (f) Unless the court determines, after considering all | 3 | | relevant factors,
including but not limited to those set forth | 4 | | in Section 602(a), that it would
be in the best interests of | 5 | | the child to allow visitation, the court shall not
enter an | 6 | | order providing visitation rights and pursuant to a motion to | 7 | | modify
visitation shall revoke visitation rights previously | 8 | | granted to any
person who would otherwise be entitled to | 9 | | petition for visitation rights under
this Section who has been | 10 | | convicted of first degree murder of the parent,
grandparent, | 11 | | great-grandparent, or sibling of the child who is the subject | 12 | | of
the order. Until an order is entered pursuant to this | 13 | | subsection, no person
shall visit, with
the child present, a | 14 | | person who has been convicted of first degree murder of
the | 15 | | parent, grandparent, great-grandparent, or sibling of the | 16 | | child
without the consent of the child's parent, other than a | 17 | | parent convicted of
first degree murder as set forth herein, or | 18 | | legal
guardian.
| 19 | | (g) (Blank).
| 20 | | (h) Upon motion, the court may allow a parent who is | 21 | | deployed or who has orders to be deployed as a member of the | 22 | | United States Armed Forces to designate a person known to the | 23 | | child to exercise reasonable substitute visitation on behalf of | 24 | | the deployed parent, if the court determines that substitute | 25 | | visitation is in the best interest of the child. In determining | 26 | | whether substitute visitation is in the best interest of the |
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| 1 | | child, the court shall consider all of the relevant factors | 2 | | listed in subsection (a) of Section 602 and apply those factors | 3 | | to the person designated as a substitute for the deployed | 4 | | parent for visitation purposes. | 5 | | (Source: P.A. 96-331, eff. 1-1-10; 97-659, eff. 6-1-12; | 6 | | 97-1150, eff. 1-25-13 .)
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