Full Text of HB5928 96th General Assembly
HB5928 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB5928
Introduced 2/10/2010, by Rep. Emily McAsey SYNOPSIS AS INTRODUCED: |
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Creates the Uniform Child Abduction
Prevention Act.
Provides that a court on its own motion may order abduction prevention measures in a child custody proceeding if the court finds that the evidence establishes a credible risk of abduction of the child. Provides that a party to a child custody determination or another individual or entity having a right
under the law of this State or any other state to seek a child custody determination for the child may file a petition seeking abduction prevention measures to protect the child. Provides that a State's Attorney may seek a warrant
to take physical custody of a child or other appropriate prevention measures. Contains provisions concerning definitions, cooperation and communication among courts, jurisdiction, contents of petitions, factors to determine risk of abduction, measures to prevent abduction, warrants to take physical custody of a child, duration of abduction prevention order, uniformity of application and construction, and other matters.
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A BILL FOR
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HB5928 |
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| AN ACT concerning child abduction.
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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 1. Short title. This Act may be cited as the | 5 |
| Uniform Child Abduction
Prevention Act. | 6 |
| Section 2. Definitions. In this Act: | 7 |
| (1) "Abduction" means the wrongful removal or wrongful | 8 |
| retention of a child. | 9 |
| (2) "Child" means an unemancipated individual who is less | 10 |
| than 18 years of age. | 11 |
| (3) "Child-custody determination" means a judgment, | 12 |
| decree, or other order of a
court providing for the legal | 13 |
| custody, physical custody, or visitation with respect to a | 14 |
| child. The term includes a permanent, temporary, initial, and | 15 |
| modification order. | 16 |
| (4) "Child-custody proceeding" means a proceeding in which | 17 |
| legal custody,
physical custody, or visitation with respect to | 18 |
| a child is at issue. The term includes a proceeding for | 19 |
| divorce, dissolution of marriage, separation, neglect, abuse, | 20 |
| dependency, guardianship, paternity, termination of parental | 21 |
| rights, or protection from domestic violence.
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| (5) "Court" means an entity authorized under the law of a | 23 |
| state to establish,
enforce, or modify a child-custody |
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| determination. | 2 |
| (6) "Petition" includes a motion or its equivalent. | 3 |
| (7) "Record" means information that is inscribed on a | 4 |
| tangible medium or that is
stored in an electronic or other | 5 |
| medium and is retrievable in perceivable form. | 6 |
| (8) "State" means a state of the United States, the | 7 |
| District of Columbia, Puerto
Rico, the United States Virgin | 8 |
| Islands, or any territory or insular possession subject to the
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| jurisdiction of the United States. The term includes a | 10 |
| federally recognized Indian tribe or nation. | 11 |
| (9) "Travel document" means records relating to a travel | 12 |
| itinerary, including travel
tickets, passes, reservations for | 13 |
| transportation, or accommodations. The term does not include a | 14 |
| passport or visa. | 15 |
| (10) "Wrongful removal" means the taking of a child that | 16 |
| breaches rights of
custody or visitation given or recognized | 17 |
| under the law of this State. | 18 |
| (11) "Wrongful retention" means the keeping or concealing | 19 |
| of a child that
breaches rights of custody or visitation given | 20 |
| or recognized under the law of this State. | 21 |
| Section 3. Cooperation and communication among courts. | 22 |
| Sections 110, 111, and 112 of the Uniform Child-Custody | 23 |
| Jurisdiction and Enforcement Act apply to cooperation and | 24 |
| communications among courts in proceedings under this Act. |
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| Section 4. Actions for abduction prevention measures. | 2 |
| (a) A court on its own motion may order abduction | 3 |
| prevention measures in a child-custody proceeding if the court | 4 |
| finds that the evidence establishes a credible risk of | 5 |
| abduction of the child. | 6 |
| (b) A party to a child-custody determination or another | 7 |
| individual or entity having a right
under the law of this State | 8 |
| or any other state to seek a child-custody determination for | 9 |
| the child may file a petition seeking abduction prevention | 10 |
| measures to protect the child under this Act. | 11 |
| (c) A State's Attorney or other appropriate public official | 12 |
| designated under Section 315 of the Uniform Child-Custody | 13 |
| Jurisdiction and Enforcement Act may seek a warrant
to take | 14 |
| physical custody of a child under Section 9 of this Act or | 15 |
| other appropriate prevention measures. | 16 |
| Section 5. Jurisdiction. | 17 |
| (a) A petition under this Act may be filed only in a court | 18 |
| that has jurisdiction to make a
child-custody determination | 19 |
| with respect to the child at issue under the Uniform | 20 |
| Child-Custody Jurisdiction and Enforcement Act. | 21 |
| (b) A court of this State has temporary emergency | 22 |
| jurisdiction under Section 204 of the Uniform Child-Custody | 23 |
| Jurisdiction and Enforcement Act if the court finds a credible | 24 |
| risk of abduction. |
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| Section 6. Contents of petition. A petition under this Act | 2 |
| must be verified and include a copy of any existing | 3 |
| child-custody determination, if available. The petition must | 4 |
| specify the risk factors for abduction, including the relevant | 5 |
| factors described in Section 7. Subject to any other law | 6 |
| providing for the confidentiality of procedures, addresses, | 7 |
| and other identifying information, if reasonably | 8 |
| ascertainable, the petition must contain: | 9 |
| (1) the name, date of birth, and gender of the child; | 10 |
| (2) the customary address and current physical | 11 |
| location of the child; | 12 |
| (3) the identity, customary address, and current | 13 |
| physical location of the respondent; | 14 |
| (4) a statement of whether a prior action to prevent | 15 |
| abduction or domestic violence
has been filed by a party or | 16 |
| other individual or entity having custody of the child, and | 17 |
| the date, location, and disposition of the action; | 18 |
| (5) a statement of whether a party to the proceeding | 19 |
| has been arrested for a crime
related to domestic violence, | 20 |
| stalking, or child abuse or neglect, and the date, | 21 |
| location, and disposition of the case; and | 22 |
| (6) any other information required to be submitted to | 23 |
| the court for a child-custody
determination under Section | 24 |
| 209 of the Uniform Child-Custody Jurisdiction and | 25 |
| Enforcement Act. |
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| Section 7. Factors to determine risk of abduction. | 2 |
| (a) In determining whether there is a credible risk of | 3 |
| abduction of a child, the court shall
consider any evidence | 4 |
| that the petitioner or respondent: | 5 |
| (1) has previously abducted or attempted to abduct the | 6 |
| child; | 7 |
| (2) has threatened to abduct the child; | 8 |
| (3) has recently engaged in activities that may | 9 |
| indicate a planned abduction,
including: | 10 |
| (A) abandoning employment; | 11 |
| (B) selling a primary residence; | 12 |
| (C) terminating a lease; | 13 |
| (D) closing bank or other financial management | 14 |
| accounts, liquidating assets, hiding or destroying | 15 |
| financial documents, or conducting any unusual | 16 |
| financial activities; | 17 |
| (E) applying for a passport or visa or obtaining | 18 |
| travel documents for the respondent, a family member, | 19 |
| or the child; or | 20 |
| (F) seeking to obtain the child's birth | 21 |
| certificate or school or medical records; | 22 |
| (4) has engaged in domestic violence, stalking, or | 23 |
| child abuse or neglect; | 24 |
| (5) has refused to follow a child-custody | 25 |
| determination; | 26 |
| (6) lacks strong familial, financial, emotional, or |
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| cultural ties to the state or the
United States;
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| (7) has strong familial, financial, emotional, or | 3 |
| cultural ties to another state or
country; | 4 |
| (8) is likely to take the child to a country that: | 5 |
| (A) is not a party to the Hague Convention on the | 6 |
| civil aspects of international child abduction and | 7 |
| does not provide for the extradition of an abducting | 8 |
| parent or for the return of an abducted child; | 9 |
| (B) is a party to the Hague Convention on the civil | 10 |
| aspects of international child abduction but: | 11 |
| (i) the Hague Convention on the civil aspects | 12 |
| of international child abduction is not in force | 13 |
| between the United States and that country; | 14 |
| (ii) is noncompliant according to the most | 15 |
| recent compliance report issued by the United | 16 |
| States department of state; or | 17 |
| (iii) lacks legal mechanisms for immediately | 18 |
| and effectively enforcing a return order under the | 19 |
| Hague Convention on the civil aspects of | 20 |
| international child abduction; | 21 |
| (C) poses a risk that the child's physical or | 22 |
| emotional health or safety would
be endangered in the | 23 |
| country because of specific circumstances relating to | 24 |
| the child or because of human rights violations | 25 |
| committed against children; | 26 |
| (D) has laws or practices that would: |
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| (i) enable the respondent, without due cause, | 2 |
| to prevent the
petitioner from contacting the | 3 |
| child; | 4 |
| (ii) restrict the petitioner from freely | 5 |
| traveling to or exiting from the
country because of | 6 |
| the petitioner's gender, nationality, marital | 7 |
| status, or religion; or | 8 |
| (iii) restrict the child's ability legally to | 9 |
| leave the country after the
child reaches the age | 10 |
| of majority because of a child's gender, | 11 |
| nationality, or religion; | 12 |
| (E) is included by the United States Department of | 13 |
| State on a current list of
state sponsors of terrorism; | 14 |
| (F) does not have an official United States | 15 |
| diplomatic presence in the country; or | 16 |
| (G) is engaged in active military action or war, | 17 |
| including a civil war, to
which the child may be | 18 |
| exposed; | 19 |
| (9) is undergoing a change in immigration or | 20 |
| citizenship status that would
adversely affect the | 21 |
| respondent's ability to remain in the United States | 22 |
| legally; | 23 |
| (10) has had an application for United States | 24 |
| citizenship denied; | 25 |
| (11) has forged or presented misleading or false | 26 |
| evidence on government forms or
supporting documents to |
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| obtain or attempt to obtain a passport, a visa, travel | 2 |
| documents, a Social Security Card, a driver's license, or | 3 |
| other government-issued identification card or has made a | 4 |
| misrepresentation to the United States government; | 5 |
| (12) has used multiple names to attempt to mislead or | 6 |
| defraud; or | 7 |
| (13) has engaged in any other conduct the court | 8 |
| considers relevant to the risk of
abduction. | 9 |
| (b) In the hearing on a petition under this Act, the court | 10 |
| shall consider any evidence that
the respondent believed in | 11 |
| good faith that the respondent's conduct was necessary to avoid | 12 |
| imminent harm to the child or respondent and any other evidence | 13 |
| that may be relevant to whether the respondent may be permitted | 14 |
| to remove or retain the child. | 15 |
| Section 8. Provisions and measures to prevent abduction. | 16 |
| (a) If a petition is filed under this Act, the court may | 17 |
| enter an order that must include: | 18 |
| (1) the basis for the court's exercise of jurisdiction; | 19 |
| (2) the manner in which notice and opportunity to be | 20 |
| heard were given to the
people entitled to notice of the | 21 |
| proceeding; | 22 |
| (3) a detailed description of each party's custody and | 23 |
| visitation rights and
residential arrangements for the | 24 |
| child; | 25 |
| (4) a provision stating that a violation of the order |
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| may subject the party in
violation to civil and criminal | 2 |
| penalties; and | 3 |
| (5) identification of the child's country of habitual | 4 |
| residence at the time of the
issuance of the order. | 5 |
| (b) If, at a hearing on a petition under this Act or on the | 6 |
| court's own motion, the court after reviewing the evidence | 7 |
| finds a credible risk of abduction of the child, the court | 8 |
| shall enter an abduction prevention order. The order must | 9 |
| include the provisions required by subsection (a) and measures | 10 |
| and conditions, including those in subsections (c), (d), and | 11 |
| (e), that are reasonably calculated to prevent abduction of the | 12 |
| child, giving due consideration to the custody and visitation | 13 |
| rights of the parties. The court shall consider the age of the | 14 |
| child, the potential harm to the child from an abduction, the | 15 |
| legal and practical difficulties of returning the child to the | 16 |
| jurisdiction if abducted, and the reasons for the potential | 17 |
| abduction, including evidence of domestic violence, stalking, | 18 |
| or child abuse or neglect. | 19 |
| (c) An abduction prevention order may include one or more | 20 |
| of the following: | 21 |
| (1) an imposition of travel restrictions that require | 22 |
| that a party traveling with the
child outside a designated | 23 |
| geographical area provide the other party with the | 24 |
| following: | 25 |
| (A) the travel itinerary of the child; | 26 |
| (B) a list of physical addresses and telephone |
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| numbers at which the child can be reached at specified | 2 |
| times; and | 3 |
| (C) copies of all travel documents; | 4 |
| (2) a prohibition of the respondent directly or | 5 |
| indirectly: | 6 |
| (A) removing the child from this State, the United | 7 |
| States, or another
geographic area without permission | 8 |
| of the court or the petitioner's written consent; | 9 |
| (B) removing or retaining the child in violation of | 10 |
| a child-custody determination; | 11 |
| (C) removing the child from school or a child-care | 12 |
| or similar facility; or | 13 |
| (D) approaching the child at any location other | 14 |
| than a site designated for
supervised visitation; | 15 |
| (3) a requirement that a party to register the order in | 16 |
| another state as a prerequisite
to allowing the child to | 17 |
| travel to that state; | 18 |
| (4) with regard to the child's passport: | 19 |
| (A) a direction that the petitioner to place the | 20 |
| child's name in the United
States Department Of State's | 21 |
| child passport issuance alert program; | 22 |
| (B) a requirement that the respondent surrender to | 23 |
| the court or the
petitioner's attorney any United | 24 |
| States or foreign passport issued in the child's name, | 25 |
| including a passport issued in the name of both the | 26 |
| parent and the child; and |
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| (C) a prohibition upon the respondent from | 2 |
| applying on behalf of the child
for a new or | 3 |
| replacement passport or visa; | 4 |
| (5) as a prerequisite to exercising custody or | 5 |
| visitation, a requirement that the
respondent provide: | 6 |
| (A) to the United States Department of State Office | 7 |
| of Children's Issues and
the relevant foreign | 8 |
| consulate or embassy, an authenticated copy of the | 9 |
| order detailing passport and travel restrictions for | 10 |
| the child; | 11 |
| (B) to the court: | 12 |
| (i) proof that the respondent has provided the | 13 |
| information in
subparagraph (A); and
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| (ii) an acknowledgment in a record from the | 15 |
| relevant foreign
consulate or embassy that no | 16 |
| passport application has been made, or passport | 17 |
| issued, on behalf of the child; | 18 |
| (C) to the petitioner, proof of registration with | 19 |
| the United States embassy or
other United States | 20 |
| diplomatic presence in the destination country and | 21 |
| with the central authority for the Hague Convention on | 22 |
| the civil aspects of international child abduction, if | 23 |
| that Convention is in effect between the United States | 24 |
| and the destination country, unless one of the parties | 25 |
| objects; and | 26 |
| (D) a written waiver under the Privacy Act, 5 |
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| U.S.C. Section 552a, as
amended, with respect to any | 2 |
| document, application, or other information pertaining | 3 |
| to the child authorizing its disclosure to the court | 4 |
| and the petitioner; and | 5 |
| (6) upon the petitioner's request, a requirement that | 6 |
| the respondent obtain an order
from the relevant foreign | 7 |
| country containing terms identical to the child-custody | 8 |
| determination issued in the United States. | 9 |
| (d) In an abduction prevention order, the court may impose | 10 |
| conditions on the exercise of
custody or visitation that: | 11 |
| (1) limit visitation or require that visitation with | 12 |
| the child by the respondent be
supervised until the court | 13 |
| finds that supervision is no longer necessary and order the | 14 |
| respondent to pay the costs of supervision; | 15 |
| (2) require the respondent to post a bond or provide | 16 |
| other security in an amount
sufficient to serve as a | 17 |
| financial deterrent to abduction, the proceeds of which may | 18 |
| be used to pay for the reasonable expenses of recovery of | 19 |
| the child, including reasonable attorney's fees and costs | 20 |
| if there is an abduction; and | 21 |
| (3) require the respondent to obtain education on the | 22 |
| potentially harmful effects to
the child from abduction. | 23 |
| (e) To prevent imminent abduction of a child, a court may: | 24 |
| (1) issue a warrant to take physical custody of the | 25 |
| child under Section 9, or the law of this State other than | 26 |
| this Act; |
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| (2) direct the use of law enforcement to take any | 2 |
| action reasonably necessary to locate the child, obtain | 3 |
| return of the child, or enforce a custody determination | 4 |
| under this Act or the
law of this State other than this | 5 |
| Act; or | 6 |
| (3) grant any other relief allowed under the law of | 7 |
| this State other than this Act. | 8 |
| (f) The remedies provided in this Act are cumulative and do | 9 |
| not affect the availability of
other remedies to prevent | 10 |
| abduction. | 11 |
| Section 9. Warrant to take physical custody of child. | 12 |
| (a) If a petition under this Act contains allegations, and | 13 |
| the court finds that there is a
credible risk that the child is | 14 |
| imminently likely to be wrongfully removed, the court may issue | 15 |
| an ex parte warrant to take physical custody of the child. | 16 |
| (b) The respondent on a petition under subsection (a) must | 17 |
| be afforded an opportunity to be heard at the earliest possible | 18 |
| time after the ex parte warrant is executed, but not later than | 19 |
| the next judicial day unless a hearing on that date is | 20 |
| impossible. In that event, the court shall hold the hearing on | 21 |
| the first judicial day possible. | 22 |
| (c) An ex parte warrant under subsection (a) to take | 23 |
| physical custody of a child must: | 24 |
| (1) recite the facts upon which a determination of a | 25 |
| credible risk of imminent
wrongful removal of the child is |
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| based; | 2 |
| (2) direct law enforcement officers to take physical | 3 |
| custody of the child
immediately; | 4 |
| (3) state the date and time for the hearing on the | 5 |
| petition; and | 6 |
| (4) provide for the safe interim placement of the child | 7 |
| pending further order of the
court. | 8 |
| (d) If feasible, before issuing a warrant and before | 9 |
| determining the placement of the child
after the warrant is | 10 |
| executed, the court may order a search of the relevant | 11 |
| databases of the national crime information center system and | 12 |
| similar state databases to determine if either the petitioner | 13 |
| or
respondent has a history of domestic violence, stalking, or | 14 |
| child abuse or neglect. | 15 |
| (e) The petition and warrant must be served on the | 16 |
| respondent when or immediately after
the child is taken into | 17 |
| physical custody. | 18 |
| (f) A warrant to take physical custody of a child, issued | 19 |
| by this State or another state, is
enforceable throughout this | 20 |
| State. If the court finds that a less intrusive remedy will not | 21 |
| be
effective, it may authorize law enforcement officers to | 22 |
| enter private property to take physical custody of the child. | 23 |
| If required by exigent circumstances, the court may authorize | 24 |
| law enforcement officers to make a forcible entry at any hour. | 25 |
| (g) If the court finds, after a hearing, that a petitioner | 26 |
| sought an ex parte warrant under
subsection (a) for the purpose |
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| of harassment or in bad faith, the court may award the | 2 |
| respondent reasonable attorney's fees, costs, and expenses. | 3 |
| (h) This Act does not affect the availability of relief | 4 |
| allowed under the law of this State
other than this Act. | 5 |
| Section 10. Duration of abduction prevention order. An | 6 |
| abduction prevention order remains in effect until the earliest | 7 |
| of: | 8 |
| (1) the time stated in the order; | 9 |
| (2) the emancipation of the child; | 10 |
| (3) the child's attaining 18 years of age; or | 11 |
| (4) the time the order is modified, revoked, vacated, | 12 |
| or superseded by a court with
jurisdiction under Sections | 13 |
| 201 through 203 of the Uniform Child-Custody Jurisdiction | 14 |
| and Enforcement Act. | 15 |
| Section 11. Uniformity of application and construction. In | 16 |
| applying and construing this uniform Act, consideration must be | 17 |
| given to
the need to promote uniformity of the law with respect | 18 |
| to its subject matter among states that enact it. | 19 |
| Section 12. Relation to the Electronic Signatures in
Global | 20 |
| and National Commerce Act. This Act modifies, limits, and | 21 |
| supersedes the federal Electronic Signatures in
Global and | 22 |
| National Commerce Act, 15 U.S.C. Section 7001, et seq., but | 23 |
| does not modify, limit, or supersede Section 101(c) of the Act, |
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| 15 U.S.C. Section 7001(c), or authorize electronic delivery of | 2 |
| any of the notices described in Section 103(b) of that Act, 15 | 3 |
| U.S.C. Section 7003(b).
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