December 2011 • Volume 99 • Number 12 • Page 604
Thank you for viewing this Illinois Bar Journal article. Please join the ISBA to access all of our IBJ articles and archives.
New bill eases substitute visitation for servicemembers; “visitation abuse” bill defeated
A bill to ease custody and visitation proceedings for deployed servicemembers has at presstime been sent to the governor for signature, and a bill to increase penalties for visitation abuse was effectively defeated.
The provisions of HB 1589
HB 1589 amends three paragraphs of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/606, 607, and 610. The amendments facilitate and expedite hearings on custody and visitation matters for servicemembers who are deployed or are about to be deployed, facilitate substitute visitation during the period of the parent's deployment with the parent's family or close friends, and make it clear that modifications of custody or visitation as a result of a parent's deployment are temporary.
The bill adds two subparagraphs to paragraph 606. New subparagraph (f) provides for expedited hearings of custody and visitation proceedings in which a parent is a member of the United States Armed Forces and deployed or having orders to be deployed. New subparagraph (g) requires the court to permit a deployed parent who is unavailable to appear for a custody or visitation proceeding to testify by telephone, audiovisual means, or other electronic means.
The bill adds a new subparagraph (h) to paragraph 607. On motion, a court may allow a parent who is deployed or who has orders to be deployed to designate a person known to the child, such as a grandparent, aunt, partner, or close friend, to exercise reasonable substitute visitation on the deployed parent's behalf. The standard for granting the motion will be whether the substitute visitation is in the child's best interest.
Finally, the bill deletes subparagraph (e) of paragraph 610 and adds subparagraphs (f) and (g). New subparagraph (f) provides that where the need for a custody or visitation modification arises as a result of a parent's deployment, a court may enter only a temporary modification of a custody or visitation order. An order entered under these circumstances must specify that deployment is its basis and must provide for custody or visitation during the deployed parent's leave as long as that provision meets the child's best interest.
Such an order must also reserve jurisdiction to the court to modify or terminate it on whatever terms and conditions the court finds are necessary to the best interests of the child at the end of the parent's deployment. New subparagraph (g) provides that a parent's absence, relocation, or failure to comply with orders regarding custody or visitation shall not be sufficient in themselves to warrant modifications to orders respecting custody, visitation, or parenting time.
Balancing the interest of children, deployed parents
St. Charles lawyer Rory T. Weiler, who was involved in the revision process for HB 1589, said, "This legislation is consistent with IRMO Sullivan [342 Ill App 3d 560, 795 NE2d 392 (2d D 2003)] in allowing the court to order substitute visitation by, for example, the grandparents of the deployed servicemember." In Sullivan, the appellate court reversed the trial court's dismissal of the father's petition to allow his family to visit with his son while he was deployed on active military duty, directing the trial court to conduct a hearing to determine whether such visitation would be in his son's best interest. "We think the bill successfully balances the best interests of children and the parental rights of deployed parents," said Weiler.
Weiler noted that the bill's drafters anticipated new SCR 241, Use of Video Conference Technology in Civil Cases, which permits the presentation of testimony in court by contemporaneous transmission from a different location, on good cause shown in compelling circumstances and with appropriate safeguards in place. For more on SCR 241, see The electronic courtroom: E-filing and videoconferencing, in last month's LawPulse.
Separately, HB 1604, also known as the Steven Watkins bill, was effectively defeated. ISBA has registered its opposition to that bill, which would amend the Illinois Vehicle Code and section 607.1 of the IMDMA to provide for suspension of driving privileges, suspension, or revocation of a professional license, a fine of up to $500, incarceration, and an automatic "change in circumstances" within the meaning of 750 ILCS 5/610(b) upon a finding that a party has engaged in visitation abuse.
As the bill's nickname suggests, its inspiration was the murder of Steven Watkins, who was shot and killed in November 2008 in his former wife's home in the course of attempting to exercise his court-ordered visitation. (For more on the Watkins matter, see "This is why we become lawyers": the Watkins counsel speak, in the June 2011 edition of LawPulse.)
For up-to-the-minute legislative developments, follow ISBA Legislative Affairs Chief James Covington's weekly video Statehouse Review summaries on Illinois Lawyer Now at http://iln.isba.org/blog/statehouse-review.