Since January 1, 2016, Illinois divorce law has eliminated the term visitation. Illinois law only applies the concept of “visitation” to grandparents and third parties–not to the parents in divorce cases. Illinois divorce law gives the courts broad discretion in deciding how parenting time will be allocated while directing the court to consider the children’s best interests in allocating parental time. Absent special circumstances, one parent cannot unilaterally determine whether the other parent will spent parenting time with the children.
What do you mean by special circumstances to restrict parenting time?
The 2016 Illinois law provides that a parent who has established parentage but is not granted significant decision making responsibilities is entitled to reasonable parenting time. Illinois law contains an exception. It exception allows the court to restrict parenting time if “the court finds, after a hearing, that the parenting time would seriously endanger the child’s mental, moral, or physical health or significantly impair the child’s emotional development.”
The mother tells me I cannot “visit” until I am current in my child support payments. Is she right?
No. Illinois law specifically states child support and parenting time are not related. You can enforce your parenting time [visitation] despite owing child support. On the other hand, you can’t withhold child support even if the other parent interferes with your allocated parenting time.
Can parenting time be withheld because the children say they do not want to “visit”?
No. A child and the parent allocated primarily decision making responsibilities [read the primary residential custodian under previous parenting plans] must obey the court ordered parenting plan for how it allocates parenting time. There is no age at which a child can decide (until 18). Historically, if one parent did not allow parenting time (read visitation) to the other parent, the visiting parenting would bring contempt proceedings. If the primary residential parent does not allow parenting time, in Illinois one brings a petition alleging abuse of allocated parenting time.
While the children’s wishes do not control, there there should be a common-sense approach. The parenting time allocation should be made enjoyable for the children, and especially as children grow older. Both parents should understand that the children will often have commitments that may interfere from time to time with scheduled parenting time.
What parenting schedule is customarily ordered by the court, or agreed upon by the parents in cases where one parent is awarded a significant majority of the parenting time?
- Alternating weekends starting Friday afternoon to Sunday evening; or sometimes with a return to school/home Monday morning.
- One evening per week, whether overnight or non-overnight and occasionally one evening one week and two evenings the next week, whether overnight or non-overnight.
- Alternating legal holidays; split or alternating Christmas and spring holidays; special arrangements for Christmas Eve, Christmas Day and children’s birthdays.
- Not less than two weeks during the summer, but in some parenting plans, a substantial part of the summer vacation.
What is the most effective way of enforcing parenting time?
Historically, contempt proceedings have been more effective. The crime of “Unlawful Visitation or Parenting Time Interference” may be reported to any law enforcement officer. The police officer issues a notice to the parent to appear in court. The first two convictions are petty offenses. These are only punishable by a fine that cannot exceed $1,000. After two convictions, however, the offense is a Class A misdemeanor punishable by up to one year in jail and a fine of not more than $2,500.
Do these rules regarding parenting time also apply to non-marital children – children subject to parentage proceedings?
Yes, as long as there is court ordered parenting time.
Other than contempt, how else can I deal with the failure to abide by an order regarding parenting time?
Use the provisions of the Abuse of Allocating Parenting Time in Illinois divorce law.
- This provision of Illinois divorce and custody law provides an expedited procedure for enforcement. Illinois law gives priority to these petitions.
- Relief available (in addition to contempt) includes:
- Terms and conditions consistent with the court’s earlier allocation of parenting time;
- A requirement that the non-complying parent attend a parenting program at that non-complying parent’s own expense;
- Family or individual counseling;
- Bond or future security to enforce compliance;
- Make-up parenting time;
- A civil fine per incident;
- Reimbursement of reasonable expenses; and
- An award of attorney’s fees.
Where there is a finding of contempt there is also the ability to seek to have driving privileges restricted. In cases of alleged contempt, normally the judge will make a finding of contempt while staying any punishment for a certain period of time. This allows the non-complying parent to comply with specific certain requirements in order to purge herself or himself of contempt.