A Primer on Visitation Interference in Illinois
A parent’s involvement with his or her children is an important factor in the development and wellbeing of the child. The non-custodial parent’s role in the child’s upbringing goes far beyond simply paying monetary support and providing tangible things. The relationship between parent and child not only involves the day to day details of the child’s life, but also shapes them into the man or woman they will become. With this consideration in mind, the Illinois Legislature has put laws into place to protect the rights of the non-custodial parent.
What is Visitation Interference:
Visitation interference is just that – Intended interference with the other parent’s court ordered visitation time. A party is in violation of a visitation order when they intend to frustrate the will of the court by denying or otherwise hampering the non-custodial parent’s time with the child. So, if a parent refuses to allow the child to see the non-custodial parent on a court ordered day, there is visitation interference. However, many people do not realize that interference does not have to be as direct as the custodial parent hiding the child or saying “no" when the other parent comes to pick the child up.
A parent can also engage in visitation interference when he or she schedules the child with so many activities that the child is unavailable for the ordered visitation. Even if these activities are school or family related, if a parent schedules these activities in such a way that it negatively impacts the non-custodial parent’s visitation time, there is visitation interference. The parties must obey the intent of the order, and should not try to circumvent it through other means.
Sometimes there is going to an activity that interferes with the court ordered visitation. If possible, it is usually best to come to an agreement beforehand so as to avoid later argument and misunderstanding. If reaching an agreement without court intervention is impossible, then be proactive and petition the court for a modification.
Where to enforce the visitation order:
Illinois provides two methods of enforcing child visitation orders. The first is the civil courts - many times the court that entered the original visitation order. The second is the criminal courts, where the state prosecutes violations of penal law. A parent who is being denied their court ordered visitation may chose either venue, but should have a basic understanding of the differences and what they can expect before they choose.
FAMILY LAW COURTS:
In Illinois, 750 ILCS 5/607.1 of the Illinois Marriage and Dissolution of Marriage Act addresses civil visitation interference. This section of the law states that visitation interference occurs when a parent denies court ordered visitation, or exercises their visitation in such a way that it harms the child or non-custodial parent. A violation can usually be addressed in the family law court through a contempt proceeding, where the harmed parent sets forth the details of the violation and their preferred relief.
Unlike the criminal courts, the family law court provides a greater choice of penalties to asses against the violator. Under the statute, a judge may order make-up visitation during the violator’s allotted time, modify the visitation order, order supervised visitation, counseling, or “other appropriate relief deemed equitable." That last part basically translates into whatever the court thinks is fair.
Because the facts of each case are different, and the courts decide remedies on a case by case basis, it is usually best to at least consult with an attorney before undertaking a contempt action in civil court. An experienced family law practitioner can greatly increase the odds of insuring visitation conformance in the future.
In the Illinois criminal courts, 720 ILCS 5/10-5.5 of the criminal code defines visitation interference as detaining or concealing a child with the intent to deprive another person of his or her rights to visitation. Similar to the civil remedy for visitation interference, there must be a court order for visitation and the violator must be acting with intent.
Criminal remedies are much more rigid than their civil counterparts. For the first two violations, the offender will be subject to a fine. After two violations, visitation interference becomes a Class A Misdemeanor, which can mean jail time. In the criminal courts, the remedy is not tailored to the case, instead following the specific terms of the statute.
If you utilize the criminal courts, it generally proceeds like any other penal violation. You would report the violation and the State’s Attorney’s office would prosecute. In this situation, you are not represented by the state, but would instead act as a witness. If found guilty, the violator would then be subject to the fine or misdemeanor, depending on previous violations.
When to Take Action:
Whether in the civil or criminal courts, judges take visitation interference seriously. If the other parent is violating the visitation order, it is best to take steps to enforce your rights sooner than later. The longer a violation goes on, the less immediacy it has when you take it before the judge.
That being said, visitation interference cases are all unique and it follows that the facts are different in every one. Only the aggrieved party can make the decision on whether to file. Generally, making an attempt to solve the problem on your own first is desirable, and shows the court you are serious about involving the other parent.
If you are unable to solve the problem on your own, and the violator continues to ignore the order, then you should consider taking it back to the court.
THIS PRIMER IS FOR INFORMATIONAL USE ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP. IF YOU NEED MORE INFORMATION OR ASSISTANCE, CONTACT A FAMILY LAW ATTORNEY WHO IS EXPERIENCED IN CHILD CUSTODY MATTERS.