Abuse of Allocated Parenting Time & Enforcement

by Wes Cowell; updated 27 April 2016 -- suggest a correction

Allocated parenting time may be enforced through the court.  Aggrieved parents may seek make-up time, posting bond to ensure future compliance, fines, driver's license suspension, jail time, and more.  Grandparents and others have only "contempt sanctions" to enforce "visitation."  "Visitation Interference" is a crime, in Illinois.  There are plenty of ways to enforce parenting time and visitation rights . . . and they all start in court.  Hire a lawyer.  Need advice? Callleave your info, or schedulescheduleschedule a consult.

 

Illinois law offers avenues in both criminal court and family court for divorced parents (and parents who were never married) to enforce their rights to "allocated parenting time."  The law applies to both the non-custodial parent denied parenting time and the custodial parent who must deal with a parent who refuses to return the children timely. 

 

Civil Enforcement and Criminal Prosecution -- No Double Jeopardy:  Where court-ordered parenting time is withheld, Illinois law provides for both civil remedies and criminal prosecution.  A parent who thwarts court-ordered parenting time may be coerced by the family court to ensure future compliance AND punished in criminal court for past violations.  It is not considered to be double jeopardy. 

 

Expedited Processing:  Illinois' new parenting time law (750 ILCS 5/607.5(a)) requires the court to handle parenting time abuse cases on an "expedited basis."  In the old days it could take six months to get parenting time violations addressed.  Now, thanks to the new law, I often can get a remedy in a few days or weeks.

 

Civil Enforcement:  When a child misses out on parenting time, the matter may be brought to the judge's attention by either parent or even the child through the child's G.A.L., child rep, or attorney (750 ILCS 5/607.5(b)). Remedies include:

 

  • a revision of the existing parenting time order to clarify any muddled issues (like who must pick-up, drop-off, making more specific transfer protocols, etc.) (750 ILCS 5/607(c)(1));

  • sending the offending parent (or both parents) to a parenting class at the expense of the offending parent (750 ILCS 5/607.5(c)(2));

  • sending both parents to individual or family counseling (750 ILCS 5/607.5(c)(3));

  • requiring the offending parent to post a cash bond (paid to the Clerk of the Court) to ensure future compliance (if the offending parent violates the parenting schedule again, the bond may be forfeited to the other parent to reimburse for expenses for the child; i.e. for having to hire a babysitter (750 ILCS 5/607.5(c)(4)).

  • make up parenting time of the same type (weekend, weeknight, holiday) and of the same duration (750 ILCS 5/607.2(c)(5));

  • find the offending parent to be in "indirect, civil contempt of court" (750 ILCS 5/607.5(c)(6))which:

    • automatically requires reimbursement of attorney's fees,

    • allows for the suspension of the offending parent's Illinois driver's license (750 ILCS 5/607.5(f)(1)),

    • allows the court to place the offending parent on probation (750 ILCS 5/607.5(f)(2)) -- meaning the court places "conditions" on the probation, the offending parent will have to report to a Probation Officer in the Sheriff's Department, and a violation of the conditions of probation, or another violation of the parenting schedule, will result in jail time,

    • jail time of up to 6 months (750 ILCS 5/607.5(f)(3)) (Family law judges sent obstreperous visitation violators to jail even before the 1/1/16 change in the law – like the mother who was sentenced to 180 days in jail merely for thwarting a weekend visit between the father and the children. In re:  Marriage of Kneitz, No. 2-02-0807 (2d Dist., 2003)).

    • enter a finding that the offending party is guilty of a (criminal) petty offense (like a parking ticket) and fined up to $500 per offense.  750 ILCS 5/607.5((f)(4).

  • a civil fine (paid to the Clerk of the Court -- not the other parent) (750 ILCS 5/607.5(c)(7));

  • reimbursement of expenses related to the violation (hiring a babysitter, after-school late pick-up charges, etc.) (750 ILCS 5/607.5(c)(8));

  • notifying the State Police (they maintain a data base of the history of all parenting order violations and make it available to all local law enforcement agencies so, if you get into a future squabble away from your usual law enforcement friendlies, the cop on the beat can look up the history on the laptop in his patrol car).

  • reimbursement of attorney's fees, court costs, and related legal expenses (750 ILCS 5/607.5(d));

  • any other provision that may promote the child's best interests! (750 ILCS 5/607.5(c)(9).

 

Civil actions may be brought as either a "Parenting Time Abuse" Petition, or a "Petition for Rule to Show Cause" ("contempt of court”).  because a finding of contempt may be granted within the relief provided under the Pareting TIime abuse statute, however, the better practice is to file for Parenting time Abuse under 750 ILCS 5/607.5.  To prove contempt, you must show that the offending party acted willfully and “contumaciously.”  Contumacious conduct is that which is “calculated to embarrass, hinder, or obstruct a court in its administration of justice or lessening the authority and dignity of the court.” IRMO Charous, 855 N.E.2d 953, 305 Ill.Dec. 437 (2d Dist., 2006).

 

Criminal Prosecution:  In addition to going back tot he family law judge, aggrieved parents may work with the State's Attorney to prosecute the offending parnt in the criminal court system.  Under the criminal law (720 ILCS 5/10-5.5), we don't call it "parenting time abuse," we call it unlawful visitation interference."  It is a "petty offence" (like a traffic ticket) for the first two violations and fines are capped at $500 per offense for the first two strikes.  After that, however, the stakes are raised and the charge becomes a Class A misdemeanor which means punishment may be in the form of imprisonment for up to one year or a fine of up to $2,500.

 

Because the petty-offence-for-the-first-two-strikes is also available in the civil (domestic relations) court -- along with a host of other remedies -- most people deal with these issues in the family court system using the Abuse of Allocated Parenting Time law (750 ILCS 5/607.5). If you have an opposing party who repeatedly violates the parenting order and you want a jail term longer than six months, you'll have to go to criminal court and work with the State's Attorney to seek a misdemeanor conviction.  Given the case load and resources of most S/A offices, you're not going to get very far. 

 

Parenting Time Abuse vs. "Dance Card Booking:”  In its simplest form, parenting time abuse is easy to recognize: a parent goes to pick up the children but they’re not where they’re supposed to be at the prescribed time.  Parenting time abuse can, however, come in disguises.  The most common ploy is to “book the child’s dance card.”  One parent registers the child for every conceivable extra-curricular activity, lesson, or social event that, not so coincidentally, falls during the time scheduled for the other parent.  Although “dance card booking” has not been found to violate the criminal parenting time interference law, it has been used as the basis for contempt citations in (civil) family court.  IRMO Charous, 855 N.E.2d 953, 305 Ill.Dec. 437 (2d Dist., 2006).  Cases come down both ways, though: sometimes the court will tell the non-custodial parent to take the child to scheduled extracurricular activities during parenting time, and other times the court will declare that “visitation time is visitation time and is not to be infringed upon by extracurricular activities.”  IRMO LaTour, 241 Il.App.3d 500 (1983).  See my article on Extra-Curricular Activities and Parenting Time.

 

When in doubt, obey court orders in letter and spirit.  One mother thought extracurricular activities should take priority over the parenting schedule.  In the case that ultimately found her unilateral decisions to have been willful and contumacious, the court said “In the event that the children’s extracurricular activities unduly interfered with [the custodial parent]’s ability to comply with the court-ordered visitation schedule, then the appropriate action [she] should have taken was to seek modification of the . . . visitation order rather than to ignore its provision.”  IRMO Charous, No.:  855 N.E.2d 953, 305 Ill.Dec. 437 (2d Dist., 2006).

 

If you have concerns about dance card booking, call my office to learn how your case stacks up – we have the experience to help guide you to a favorable resolution. 

 

When Children Refuse to Visit:  Occasionally a parent will claim that the kids “just don’t want to spend time with the other parent.”  Illinois courts look upon such claims with GREAT suspicion.  If your child objects to spending time with the other parent, call my office immediately to seek a court-approved modification, supervision, or termination, of the parenting schedule. 

 

Illinois courts have held that a parent may not disregard parenting schedules merely because the children do not desire to visit the other parent.  IRMO Marshall, 278 Ill.App.3d 1071, 1082-83 (1996), Doggett v. Doggett, 51 Ill.App.3d 868, 871-71 (1977).  One court said:  “the custodial parent cannot escape his or her duty to comply with the visitation provisions by attempting to shift this burden to the discretion of [his or] her children.”  Doggett v. Doggett, 51 Ill.App.3d 868, 871-71 (1977).  Another court said “[a] parent must comply with court-ordered visitation even where the child has expressed hostility toward the other parent.”  IRMO Reed, 100 Ill.App.3d 873, 877 (1981).  That court went on to explain that the experience of parenting time affords the children and the parent the opportunity to communicate and, thus, diminish hostilities and foster an atmosphere in which a renewal of affection may take place.

 

Technically, the court has personal jurisdiction over the children.  Where children petulantly demand that they be excused from the parenting schedule, and the responsible parent fails to either motivate them or seek to modify or terminate the schedule, the court may order  the children to visit with the other parent and may even cite them for contempt.  In one notorious case, a Will County judge sent two sisters to jail for refusing to visit with their father.

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