“Parents do not visit their children.” And starting January 1, 2016, this is the law in Illinois.
Since January 1, 2016, Illinois divorce law eliminated the term visitation throughout. “Visitation” is now a concept that only applies 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 — but directs the court to consider the best interests of the children in allocating parental time. Absent special circumstances, one parent cannot unilaterally determine whether the other parent will spent parenting time with the children once the court determines a visitation schedule.
What do you mean by special circumstances to restrict parenting time?
The 2016 Illinois law provides that a parent has established parentage but is not granted significant decision making responsibilities is entitled to reasonable parenting time unless “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, absolutely not. The law specifically states child support and parenting time allocation are not related. You can enforce your parenting time [visitation] despite owing child support. On the other hand, you can’t withhold child support because you are not receiving 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 allocating parenting time. There is no age at which a child can decide (until 18). It is not an excuse to contempt proceedings that the children do not want to spend time with their father (or mother).
But there should be a common sense approach; the parenting time allocation should be made enjoyable for the children, and especially as children grow older the father should allow for the fact that the children will often have commitments which interfere 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 or Saturday morning, 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;
- 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, punishable only by a fine which cannot exceed $1,000. After two convictions 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?
As of January 1, 2016, has new provisions for Abuse of Allocating Parenting Time. The new law provides that:
- There is to be an expedited procedure for enforcement (handled more quickly than other proceedings).
- 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 file per incident;
- Reimbursement of all 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 what normally happens is that the judge will make a finding of contempt and will order a jail sentence, but then the judge will stay the punishment (suspend the punishment) providing there is future obedience to the court order for parenting time. The court may also impose a fine of $500 for each finding of parenting time abuse.