LEGAL GUIDE
Written by attorney Sean Martin Mccumber | Oct 29, 2011

When a Parent Fails to Exercise His or Her Parenting Time

Generally, the Court presumes that the best interests of children are served by the maximum involvement and cooperation of both parents in the physical, mental, moral, and emotional well-being of their children. [1] Further, the Courts will grant reasonable parenting time rights to the non-custodial parent, unless the Court finds, after hearing, that such visitation or parenting time would seriously endanger the physical, mental, moral, and emotional health of their children. [3] When a custodial parent fails to permit parenting time, refuses to permit parenting time, or otherwise interferes with a valid parenting time order, the non-custodial parent has enforcement remedies. A non-custodial parent may file a Petition for Rule to Show Cause, requesting that the Court require the custodial parent to show cause why he or she failed to comply with a parenting time order, either pursuant to basic civil law or under the Illinois Marriage and Dissolution of Marriage Act (“IMDMA") provision regarding enforcement of visitation orders. [4] Under certain circumstances, the custodial parent may also face criminal sanctions for unlawful visitation interference. [5]

However, what is a custodial parent to do when the non-custodial parent fails to exercise his or her designated parenting time with the minor child(ren)? Some states have addressed this concern by statute. In Minnesota, under a generic and mutual provision of the parenting time statute, the Court, if it finds that a party has wrongfully failed to comply with a parenting time order or a binding agreement regarding parenting time, may order the following remedies: 1) impose a $500.00 civil penalty; 2) require a bond to be posted to secure compliance with the order; 3) award attorneys’ fees; 4) require the party who violated the parenting time order or binding agreement or decision of the parenting time expeditor to reimburse the other party for costs incurred as a result of the violation of the order or agreement or decision; or 5) award any other remedy that serves the best interests of the children. [7] California has a similar provision. [8] In Tennessee, a Court may deviate upward from statutory guideline support due to a non-custodial parent’s failure to exercise defined parenting time. [9] Not all states have agreed with this concept, and some courts have held that a Court cannot coerce a parent to become more involved by threatening a greater child support obligation. [10]

The Illinois Marriage and Dissolution of Marriage Act, as well as the Illinois Parentage Act of 1984 are silent on this issue. Some custodial parents may seek to modify a visitation order based upon a non-custodial parent’s failure to exercise defined parenting time. While this may be appropriate in certain circumstances, it is not the best or first course of action. In essence, reducing parenting time for failure to exercise that time may convey to the child that taking away time with the non-custodial parent is appropriate, a fact that may not be understood by children. In many instances, when a non-custodial parent fails to exercise parenting time, the goal should be to bring that parent back into the child’s life to ensure that both parents are as involved as possible with the lives of their children. When the non-custodial parent fails to exercise parenting time, certain dominoes fall. For example, the child(ren) may suffer the emotional stress or trauma of feeling unloved or unwanted. The children may act out in school, at home or in the neighborhood. The custodial parent must deal with this, but also must deal with filling the extra time with the children that would otherwise be covered by the other parent. When the custodial parent is a working parent, the burden is magnified. Moreover, the harsh reality of the situation is that parenting time with the non-custodial parent provides respite for the custodial parent to catch up on personal needs, adult social interaction, or other activities that cannot be accomplished when the children are around.

As the IMDMA has no counterpart to the remedy provisions of the Minnesota parenting time provision, the parties and the Court are left to fashion creative remedies. As mentioned above, children may suffer emotional and mental stress as a result of failure of a non-custodial parent to exercise defined parenting time. Counseling may be needed, and likely, be required. The Court has the authority to order counseling for a child and/or the parents, if the Court finds that the child’s emotional development is impaired, “including, but not limited to, a finding of visitation abuse." [11] In a joint parenting situations, the Court may order such counseling for violations by one or both of the parents with regard to conduct affecting or in the presence of the child. [12] Further, if the Court finds that one of the parties has violated an order of the court, as to custody, visitation, or joint parenting, the Court may assess the costs of counseling against the violating parent. [13] These are certainly strong remedies for that a Court may use to encourage a non-custodial parent to exercise his or her defined parenting time, and repair damage to a strained parent-child relationship at the same time.

As mentioned before, some states provide for upward deviations from statutory child support based upon a non-custodial parent’s failure to exercise his or her defined parent time. Deviations from statutory guideline support are permissible under the IMDMA, provided the Court finds, after considering all relevant factors, that: 1) the guidelines would be inappropriate; 2) after considering the best interests of the child in light of the evidence. [14] The Court shall consider the financial resources and needs of the child; the financial resources and needs of the custodial parent; the financial resources and needs of the non-custodial parent; the standard of living for the child; and the physical and emotional condition of the child. [15] The Court must surmount the principle that parenting time and child support are to be separate and that failure to live up to one obligation does not eliminate, nor give the right to eliminate the other.

To that end, the unanswered question is whether the Courts in Illinois can provide for an upward deviation in child support based upon the non-custodial parent’s failure to exercise his or her defined parenting time. In considering the financial needs of the child, the child is not likely to have additional financial needs based upon a failure to visit by the non-custodial parent. Likewise, the standard of living for the child is not directly affected by said failure of the non-custodial parent. The custodial parent may have to work certain job hours, or seek additional employment to cover added expenses from having the child(ren) ever present. The child may have a more fragile emotional condition, as stated above, resulting from the non-custodial parent’s failure to exercise his or her defined parenting time. The custodial parent may have an argument on this point, provided the custodial parent can demonstrate that a higher amount of child support would serve the child’s best interests. This could include the costs of counseling or therapy, the costs of camps and programs to cover for the unexercised parenting time, and the costs of activities with “big brother" programs to fill emotional needs for the child resulting from unexercised parenting time.

In considering the financial resources and needs of the custodial parent, unexercised parenting time has costs. Perhaps the custodial parent may miss out on additional employment opportunities. Perhaps the custodial parent will incur increased babysitting and childcare costs resulting from the unexercised parenting time. Lastly, the custodial parent may incur missed appointment fees, such as for cancelled doctor visits. These added costs cut into the financial resources of the custodial parent. For the non-custodial parent, there appears to be little financial costs resulting from his or her failure to exercise defined parenting time. However, in determining whether to deviate upwards, the income and assets available to the non-custodial parent may weigh against an upward deviation, especially in light of the tight economy.

As an upward deviation may not occur, should the Court impose a babysitting cost penalty on the non-custodial parent who fails to exercise parenting time? It is possible and plausible that the Court may find that payment of babysitting costs is an appropriate remedy for a parent who shirks his or her parenting duties. However, the IMDMA is notably silent on this topic. In addressing this problem, as to the imposition of a “babysitting" penalty on the non-custodial parent, the Court’s focus should always stay on the best interests of the children. This is not a revenge situation, nor should it be used in such a fashion that it further drives the non-custodial parent away from the children. One goal of this remedy is to ensure that proper care is available to the minor child in a dignified matter. Another goal of this remedy is to bring the children and non-custodial parent together to strengthen their bond.

[1] 750 ILCS 5/602(c) (West 2010).

[3] 750 ILCS 5/607(a) (West 2010).

[4] 750 ILCS 5/607.1 (West 2010).

[5] 720 ILCS 5/10-5.5 (West 2010)

[7] Minn. Stat. 518.175, subd 6(c) (2010).

[8] Calif. Fam. Code § 3028 (2010).

[9] See Wright v. Quillen, 909 S.W.2d 804 (Tenn. Ct. App. 1995).

[10] See Elkin v. Sabo, 310 N.J. Super. 462, 708 A.2d 1225 (App. Div. 1998); Hamilton v. Hamilton, 107 Ohio App. 3d 132, 667 N.E.2d 1256 (1995); Dana v. Dana, 789 P.2d 726 (Utah Ct. App. 1990); and Division of Child Support Enforcement ex rel. Reese v. Shuba, 585 A.2d 1316 (Del. Fam. Ct. 1988).

[11] 750 ILCS 5/608(c)(2) (West 2010).

[12] 750 ILCS 5/608(c)(3) (West 2010).

[13] 750 ILCS 5/608(d) (West 2010).

[14] 750 ILCS 5/505(a)(2) (West 2010).

[15] Id.

Additional resources provided by the author

Co-authored with the Honorable Harry Clem, Champaign County Judge

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