In 2016, Illinois law regarding restricting parenting time significantly changed. Historically, the focus was merely on whether there was serious endangerment and then restrictions usually were defined as prohibiting overnight visitation or requiring visitation to be supervised. This changes significantly in 2016.
What are the standards if parenting time / responsibilities is restricted?
The 2016 law arguably makes it more difficult to restrict parenting time. For the first time, Illinois law defines what is meant by restrictions. It provides, “Restriction of parenting time” means any limitation or condition placed on parenting time, including supervision.” It then presumes that both parents are “fit” and provides that, “the court shall not place any restrictions on parenting time…, unless it finds … that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. [750 ILCS 5/602.7(b), 2016.]
More specifically, Illinois law in divorce and paternity cases provides that if a parent has “engaged in conduct that seriously endangered the child … or significantly impaired the child’s emotional development, then the court shall enter such orders as are necessary to protect the child.”
Can you explain what is meant by the court entering orders as are necessary to protect the child?
Illinois law then provides an example of the sorts of orders as “necessary to protect the child.” While there are 8 specific factors in this list the first 6 are:
- a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;
- supervision *** ;
- requiring the exchange of the child between the parents through an intermediary or in a protected setting;
- restraining a parent’s communication with or proximity to the other parent or the child;
- requiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time;
- restricting the presence of specific persons while a parent is exercising parenting time with the child; ***
The final “catch all is: “any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare.”
But remember, that first that court has to find the parent engaged in conduct that serious endangered the child or significantly impaired the child’s emotional development.”
How does this differ from what was traditionally considered to be restrictions on parenting time?
Traditionally, restricted visitation was considered to be supervised visitation. That third person was responsible for observing and ensuring the safety of those involved. In such cases visitations can be held at either parent’s home, or in a neutral setting such as a park, church, library, or any other court approved setting. If a person is hired as the visitation supervisor, it is up to the judge to determine who will pay for the supervisor. Because restrictions are now defined as any limitation or condition placed on parenting time (including supervision) it is clear that the types of restrictions are potentially more broad. But keep in mind that first, there needs to be the finding of what is essentially “serious endangerment” and that historically this standard has been a high standard to meet.
What Sorts of Things are Normally within a Parent’s Authority if Parenting Time is Not Restricted?
Caretaking functions are now defined as:
- satisfying a child’s nutritional needs; managing a child’s bedtime and wake-up routines; caring for a child when the child is sick or injured; being attentive to a child’s personal hygiene needs, including washing, grooming, and dressing; playing with a child and ensuring the child attends scheduled extracurricular activities; protecting a child’s physical safety; and providing transportation for a child;
- directing a child’s various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence, and maturation;
- providing discipline, giving instruction in manners, assigning and supervising chores, and performing other tasks that attend to a child’s needs for behavioral control and self-restraint;
- ensuring the child attends school, including remedial and special services appropriate to the child’s needs and interests, communicating with teachers and counselors, and supervising homework;
- helping a child develop and maintain appropriate interpersonal relationships with peers, siblings, and other family members;
- ensuring the child attends medical appointments and is available for medical follow-up and meeting the medical needs of the child in the home;
- providing moral and ethical guidance for a child; and
- arranging alternative care for a child by a family member, babysitter, or other child care provider or facility, including investigating such alternatives, communicating with providers, and supervising such care.
Next, consider the definition of “parenting time.” This means “the time during which a parent is responsible for exercising caretaking functions and non-significant decision-making responsibilities with respect to the child.” So, unless there is a finding of serious endangerment starting January 1, 2016 this list provides examples of the types of parental activities that cannot be restricted.
Can you provide examples from case law for what might constitute serious endangerment?
Serious endangerment has been found to exist where there is a history of driving while intoxicated, drug use, physical or sexual abuse, or a realistic threat that the non-custodial parent may abscond with the child.
How hard is this to prove?
Historically it is has been quite hard and expensive to prove. The proof you would need to present to the court might include medical evidence, the testimony of mental health professionals, evidence of neglect or abuse, etc. Because of the expansion of what is defined as “restrictions,” perhaps courts will be more lenient as to what may constitute “conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development.” Because this is a new law in 2016, how the new legislation plays out in practice remains to be seen.
What could happen to me if I deny my ex-husband parenting time?
You could be found in contempt of court and punished by imprisonment or fine (plus attorney’s fees). If one is held in civil contempt, that person is allowed to purge yourself by allowing the ordered parenting time. Because of the possibility of imprisonment the proceedings are somewhat technical to assure there is no imprisonment without just cause. For this reason, it is highly advisable that both parties are represented by lawyers in contempt proceedings.
You also might be charged with the crime of “Unlawful Visitation or Parenting Time Interference.” The first time a police officer is called, he issues a notice to the child’s custodian 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.
Finally, there is a new law in 2016 at Section 607.5 Titled, “Abuse of Allocated Parenting Time.” For those held in contempt and where there is a finding of parenting time abuse, it is also possible for driving privileges to be limited, which allows one to transport a child back and forth to comply with an order for parenting time.