Suspending, Restricting, and Supervising Parenting Time
by Wes Cowell; updated 26 June 2016 -- suggest a correction.
The court has the power to order "supervised" visitation . . . but only where the children face "serious endangerment" — and that's HARD to prove. Can't find the answer? Need advice? Call, leave your info, or scheduleschedule a consult.
General: Illinois law gives the court wide lattitude to restrict and restructure parenting time to protect kids. The law says:
750 ILCS 5/603.10: Restriction of Parental Responsibilities
(a) After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child's mental, moral, or physical health or that significantly impaired the child's emotional development, the court shall enter orders as necessary t protect the child. Such orders may include, but are not limited to, orders for one or more of the following:
(1) a reduction, elimination, or other adjustment of the parent's decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;
(2) supervision, including ordering the Department of Children and Family Services to exercise continuing supervision under Section 5 of the Children and Family Services Act;
(3) requiring the exchange of the child between the parents through an intermediary or in a protected setting;
(4) restraining a parent's communication with or proximity to the other parent or the child;
(5) 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;
(6) restricting the presence of specified persons while a parent is exercising parenting time with the child;
(7) requiring a parent to post a bond to secure the return of the child following the parent's exercise of parenting time or to secure other performance required by the court;
(8) requiring a parent to complete a treatment program for the perpetrators of abuse, for drug or alcohol abuse, or for other behavior that is the basis for restricting parental responsibilities under this Section; and
(9) any other constraints or conditions that the court deems necessary to provide for the child's safety or welfare.
Presumption of "Fitness" in Divorce and Post-Decree, but NOT Never-Married: Illinois law (750 ILCS 5/602.7) says a divorced parent is presumed to be "fit and the court shall not place any restrictions on parenting time . . . unless it finds by a preponderance of the evidence that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral, or emotional heath." 750 ILCS 5/602.7 (b).
"Fitness" Proscribes Parenting Time Restrictions: The "fitness" presumption is important. If the presumption is not rebutted, reasonable parenting time must be awarded and cannot be restricted because a finding of "serious endangerment" cannot be made where a parent is "fit." The appellate court has said "the court did not make a finding of serious endangerment, nor would such a finding have been possible since the parties stipulated [the father] was a fit and proper person, and his home was an appropriate place for visitation." In re: Marriage of LaTour, 241 Ill.App.3d 500, 181 Ill.Dec. 865, 608 N.E.2d 1339 (4th Dist., 1993). With a finding of "fitness," restrictions are impossible.
Parenting Time Standards for Never-Married Parents: Parents who never marry but establish parentage are "entitled" to reasonable parenting time with their child. That "entitlement" is a big deal. Before 1 January 2016, unmarried parents first had to prove that contact with the child would be in the child's best interest. Only if they passed that test could they try to prove a reasonable schedule based on the child's best interst. Today, the law entitles never-married parents to parenting time with their children, subject to the same "serious endangerent" protections checking divorced parents. Since never-married parents are not presumed by the law to be "fit," however, they still can be forced to jump through that extra hoop, unlike divorced parents.
"Restriction" Defined: The law defines "Restriction of Parenting time" as "any limitation or condition placed on parenting time, including supervision." 750 ILCS 5/600 (i). The courts have said:
"A restriction on [parenting time] is action which limits, restrains, or confines [parenting time] within bounds." (IRMO Tisckos, 161 Ill.App.3d 302, 310, 112 Ill.Dec. 860, 865, 514 N.E.2d 523, 528 (4th Dist., 1987). Termination of visitation is a restriction (IRMO Dunn, 155 Ill.App.3d 247, 49 Ill.Dec. 879, 508 N.E.2d 250 (4th Dist., 1987), as is a prohibition on overnight visitation. Likewise, a requirement that visitation be supervised, occur in the home of the custodial parent, or outside the home of the non-custodial parent is a restriction. (IRMO Tisckos, 161 Ill.App.3d at 310, 112 Ill.Dec. at 865, 514 N.E.2d 523 at 528 (4th Dist., 1987). Eliminating one day from a weekend [parenting time] or shortening a summer [parenting schedule] due to the activities of the child, is not considered a restriction. (See, Gibson v. Barton, 118 Ill.App.3d 576, 579-80, 74 Ill.Dec. 252, 254-55, 455 N.E.2d 282, 284-85, (4th Dist., 1983). Nor is the interruption os a weekend visitation, so that the child may attend religious services, a restriction. IRMO Tisckos, 161 Ill.App.3d at 311, 112 Ill.Dec. at 865-66, 514 N.E.2d at 528-29 (4th Dist., 1987).
IRMO LaTour, 241 Ill.App.3d 500, 181 Ill.Dec. 865, 608 N.E.2d 1339 (4th Dist., 1993)
"Supervision" Defined: Supervision is defined as "the presence of a third party during a parent's exercise of parenting time. 750 ILCS 5/600 (m). Supervised parenting time is a form of "restriction" and may be imposed only in cases where the court, after hearing, finds the child's physical, mental, moral or emotional health is "seriously endangered." When the court requires parenting time to be supervised, a supervisor (a trained professional, a therapist, psychologist, psychiatrist, case worker, or even an approved friend or relative) is present with the child and parent at all times to ensure that no harm comes to the child's physical, mental, moral, or emotional well-being. The parties may agree on a supervisor --- usually a relative they both feel comfortable with -- but the court must approve any such nomination. Professional supervisors cost money -- friends and relatives don't. If you think your case requires a parenting time supervisor, call my office and talk with a knowledgeable attorney to learn what protections the law will afford and what pitfalls to avoid.
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