Text of IL HB 5369 (2010)

96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 HB5369 Introduced 2/5/2010, by Rep. Eddie Washington SYNOPSIS AS INTRODUCED: 750 ILCS 5/601 from Ch. 40, par. 601 750 ILCS 5/606 from Ch. 40, par. 606 755 ILCS 5/11-8 from Ch. 110 1/2, par. 11-8 755 ILCS 5/11-10.1 from Ch. 110 1/2, par. 11-10.1 Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that a child custody proceeding may be commenced by a person who provides "kinship care", by filing a petition that alleges that it is in the best interest of the child to live with him or her, if the person is the "de facto custodian" of the child. Provides that "de facto custodian" means the person who has been the primary caregiver for, and financial supporter of, a child who has resided with the person: for a period of 6 months or more, if the child is under 3 years of age; or for a period of one year or more, if the child is 3 years of age or older. Provides that "kinship care" means the care, nurturing, and protection of a child by a relative, grandparent, godparent, stepparent, or any adult who has physical custody and a kinship bond with a child. Provides that any notice of hearing in the proceeding shall be served by personal service or sent by certified or registered mail to all persons who have appeared of record in the proceeding. Amends the Probate Act of 1975. Provides that unless excused by the court for good cause shown, a petition for guardianship of a minor and a notice of hearing on the petition shall be given by personal service or by certified or registered mail to the minor, the minor's relatives, and the person having custody of the minor (instead of giving notice of the hearing on the petition, in person or by mail, to the minor and to the minor's relatives). Provides that the requirement that a copy of the petition and notice be served on or delivered to the person having custody of the minor is jurisdictional, but failure to provide copies to any relative is not jurisdictional (instead of providing that the failure to provide copies to any relative is not jurisdictional). Provides that a notice of hearing in a proceeding concerning guardianship of a minor shall be sent by certified or registered mail, return receipt requested, to all persons who have appeared of record in the proceeding. LRB096 19322 AJO 34713 b A BILL FOR HB5369 LRB096 19322 AJO 34713 b 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 601 and 606 as 6 follows: 7 (750 ILCS 5/601) (from Ch. 40, par. 601) 8 Sec. 601. Jurisdiction; Commencement of Proceeding. 9 (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. 14 (b) A child custody proceeding is commenced in the court: 15 (1) By by a parent, by filing a petition: 16 (i) for dissolution of marriage or legal 17 separation or declaration of invalidity of marriage; 18 or 19 (ii) for custody of the child, in the county in 20 which he is permanently resident or found. ; 21 (2) By 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 HB5369 - 2 - LRB096 19322 AJO 34713 b 1 the physical custody of one of his parents. ; or 2 (3) By by a stepparent, by filing a petition, if all of 3 the following circumstances are met: 4 (A) the child is at least 12 years old; 5 (B) the custodial parent and stepparent were 6 married for at least 5 years during which the child 7 resided with the parent and stepparent; 8 (C) the custodial parent is deceased or is disabled 9 and cannot perform the duties of a parent to the child; 10 (D) the stepparent provided for the care, control, 11 and welfare to the child prior to the initiation of 12 custody proceedings; 13 (E) the child wishes to live with the stepparent; 14 and 15 (F) it is alleged to be in the best interests and 16 welfare of the child to live with the stepparent as 17 provided in Section 602 of this Act. 18 (3.1) By a person who provides "kinship care" to the 19 child, by filing a petition that alleges that it is in the 20 best interest of the child to live with the person as 21 provided in Section 602 of this Act, if the person is the 22 "de facto" custodian of the child. 23 For purposes of this paragraph (3.1): 24 "De facto custodian" means the person who has been the 25 primary caregiver for, and the financial supporter of, a 26 child who has resided with the person: (i) for a period of HB5369 - 3 - LRB096 19322 AJO 34713 b 1 6 months or more, if the child is under 3 years of age; or 2 (ii) for a period of one year or more, if the child is 3 3 years of age or older. 4 "Kinship care" means the care, nurturing, and 5 protection of a child by a relative, grandparent, 6 godparent, stepparent, or any adult who has physical 7 custody and a kinship bond with the child. 8 (4) When one of the parents is deceased, by a 9 grandparent who is a parent or stepparent of a deceased 10 parent, by filing a petition, if one or more of the 11 following existed at the time of the parent's death: 12 (A) the surviving parent had been absent from the 13 marital abode for more than one month without the 14 deceased spouse knowing his or her whereabouts; 15 (B) the surviving parent was in State or federal 16 custody; or 17 (C) the surviving parent had: (i) received 18 supervision for or been convicted of any violation of 19 Article 12 of the Criminal Code of 1961 directed 20 towards the deceased parent or the child; or (ii) 21 received supervision or been convicted of violating an 22 order of protection entered under Section 217, 218, or 23 219 of the Illinois Domestic Violence Act of 1986 for 24 the protection of the deceased parent or the child. 25 (c) Notice of a child custody proceeding, including an 26 action for modification of a previous custody order, shall be HB5369 - 4 - LRB096 19322 AJO 34713 b 1 given to the child's parents, guardian, and de facto custodian, 2 who may appear, be heard, and file a responsive pleading. The 3 court, upon showing of good cause, may permit intervention of 4 other interested parties. 5 (d) Proceedings for modification of a previous custody 6 order commenced more than 30 days following the entry of a 7 previous custody order must be initiated by serving a written 8 notice and a copy of the petition for modification upon the 9 child's parent, guardian and custodian at least 30 days prior 10 to hearing on the petition. Nothing in this Section shall 11 preclude a party in custody modification proceedings from 12 moving for a temporary order under Section 603 of this Act. 13 (e) (Blank). 14 (f) The court shall, at the court's discretion or upon the 15 request of any party entitled to petition for custody of the 16 child, appoint a guardian ad litem to represent the best 17 interest of the child for the duration of the custody 18 proceeding or for any modifications of any custody orders 19 entered. Nothing in this Section shall be construed to prevent 20 the court from appointing the same guardian ad litem for 2 or 21 more children that are siblings or half-siblings. 22 (Source: P.A. 93-108, eff. 1-1-04; 93-1026, eff. 1-1-05.) 23 (750 ILCS 5/606) (from Ch. 40, par. 606) 24 Sec. 606. Hearings. 25 (a) Custody proceedings shall receive priority in being set HB5369 - 5 - LRB096 19322 AJO 34713 b 1 for hearing. Any notice of hearing in a custody proceeding 2 shall be served by personal service or sent by certified or 3 registered mail, return receipt requested, to all who have 4 appeared of record in the custody proceeding. 5 (b) The court may tax as costs the payment of necessary 6 travel and other expenses incurred by any person whose presence 7 at the hearing the court deems necessary to determine the best 8 interest of the child. 9 (c) The court, without a jury, shall determine questions of 10 law and fact. If it finds that a public hearing may be 11 detrimental to the child's best interest, the court may exclude 12 the public from a custody hearing, but may admit any person who 13 has a direct and legitimate interest in the particular case or 14 a legitimate educational or research interest in the work of 15 the court. 16 (d) If the court finds it necessary, in order to protect 17 the child's welfare, that the record of any interview, report, 18 investigation, or testimony in a custody proceeding be kept 19 secret, the court may make an appropriate order sealing the 20 record. 21 (e) Previous statements made by the child relating to any 22 allegations that the child is an abused or neglected child 23 within the meaning of the Abused and Neglected Child Reporting 24 Act, or an abused or neglected minor within the meaning of the 25 Juvenile Court Act of 1987, shall be admissible in evidence in 26 a hearing concerning custody of or visitation with the child. HB5369 - 6 - LRB096 19322 AJO 34713 b 1 No such statement, however, if uncorroborated and not subject 2 to cross-examination, shall be sufficient in itself to support 3 a finding of abuse or neglect. 4 (Source: P.A. 87-1081.) 5 Section 10. The Probate Act of 1975 is amended by changing 6 Sections 11-8 and 11-10.1 as follows: 7 (755 ILCS 5/11-8) (from Ch. 110 1/2, par. 11-8) 8 Sec. 11-8. Petition for guardian of minor. 9 (a) The petition for appointment of a guardian of the 10 estate, or of both the person and estate, of a minor, or for 11 appointment of the guardian of the person only of a minor or 12 minors must state, if known: (1) the name, date of birth and 13 residence of the minor; (2) the names and post office addresses 14 of the nearest relatives of the minor in the following order: 15 (i) the spouse, if any; if none, (ii) the parents and adult 16 brothers and sisters, if any; if none, (iii) the nearest adult 17 kindred; (3) the name and post office address of the person 18 having the custody of the minor; (4) the approximate value of 19 the personal estate; (5) the amount of the anticipated gross 20 annual income and other receipts; (6) the name, post office 21 address and, in case of an individual, the age and occupation 22 of the proposed guardian; (7) the facts concerning the 23 execution or admission to probate of the written designation of 24 the guardian, if any, a copy of which shall be attached to or HB5369 - 7 - LRB096 19322 AJO 34713 b 1 filed with the petition; and (8) the facts concerning any 2 juvenile, adoption, parentage, dissolution, or guardianship 3 court actions pending concerning the minor or the parents of 4 the minor and whether any guardian is currently acting for the 5 minor. In addition, if the petition seeks the appointment of a 6 previously appointed standby guardian as guardian of the minor, 7 the petition must also state: (9) the facts concerning the 8 standby guardian's previous appointment and (10) the date of 9 death of the minor's parent or parents or the facts concerning 10 the consent of the minor's parent or parents to the appointment 11 of the standby guardian as guardian, or the willingness and 12 ability of the minor's parent or parents to make and carry out 13 day-to-day child care decisions concerning the minor. 14 (b) A single petition for appointment of only a guardian of 15 the person of a minor may include more than one minor. The 16 statements required in items (1) and (2) of subsection (a) 17 shall be listed separately for each minor. 18 (c) Any notice of hearing in a guardianship proceeding 19 under this Section shall be served by personal service or sent 20 by certified or registered mail, return receipt requested, to 21 all persons who have appeared of record in the guardianship 22 proceeding. 23 (Source: P.A. 90-796, eff. 12-15-98.) 24 (755 ILCS 5/11-10.1) (from Ch. 110 1/2, par. 11-10.1) 25 Sec. 11-10.1. Procedure for appointment of a standby HB5369 - 8 - LRB096 19322 AJO 34713 b 1 guardian or a guardian of a minor. 2 (a) Unless excused by the court for good cause shown, it is 3 the duty of the petitioner to provide a copy of the petition 4 and give notice of the time and place of the hearing on the 5 petition by personal service or by certified or registered 6 mail, return receipt requested, in person or by mail, to the 7 minor, if the minor is 14 years, or older, and to the relatives 8 of the minor, and to the person having custody of the minor 9 whose names and addresses are stated in the petition, not less 10 than 3 days before the hearing. , The requirement that a copy of 11 the petition and notice be served on or delivered to the person 12 having custody of the minor is jurisdictional, but failure to 13 provide a copy of the petition and give notice to any relative 14 is not jurisdictional. 15 (b) In any proceeding for the appointment of a standby 16 guardian or a guardian the court may appoint a guardian ad 17 litem to represent the minor in the proceeding. 18 (Source: P.A. 88-529.)