Parents get time with their children before, during and after their Illinois divorce…until they do not.
The Illinois Marriage and Dissolution of Marriage Act provides two separate statutory schemes for allowing parents to see their children and, conversely, for forbidding parents from seeing their children. It is crucial that a parent understand those distinctions in order to see their own children and keep their children safe from an unreliable/dangerous co-parent.
Allocating Parenting Time In An Illinois Divorce Court
Everything regarding children in an Illinois divorce case is done to further the best interests of the child.
“The court shall allocate parenting time according to the child’s best interests” 750 ILCS 5/602.7(a)
“’Parenting time’ means the time during which a parent is responsible for exercising caretaking functions and non-significant decision-making responsibilities with respect to the child.” 750 ILCS 5/600(e)
If the parents are married, they are both presumed to be “fit parents.” Fit parents get parenting time WITHOUT restrictions.
“It is presumed both parents are fit and the court shall not place any restrictions on parenting time” 750 ILCS 5/602.7(b)
“Fit parents” get the presumption that they act in their children’s best interests. “[T]here is a presumption that fit parents act in the best interests of their children” Troxel v. Granville, 530 US 57 – Supreme Court 2000
Fit parents can agree to almost any kind of parenting time schedule and an Illinois divorce court will approve it. There is no need for court involvement if “the parents present a mutually agreed written parenting plan and that plan is approved by the court” 750 ILCS 5/602.7
If the parents cannot agree on parenting time, the details of this allocation of parenting time are determined based on the following 17 factors:
“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:
(1) the wishes of each parent seeking parenting time;(2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;(3) the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth;(4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;(5) the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests;(6) the child’s adjustment to his or her home, school, and community;(7) the mental and physical health of all individuals involved;(8) the child’s needs;(9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;(10) whether a restriction on parenting time is appropriate;(11) the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household;(12) the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;(13) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;(14) the occurrence of abuse against the child or other member of the child’s household;(15) whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);(16) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and(17) any other factor that the court expressly finds to be relevant.” 750 ILCS 5/602.7(b)
17 factors to determine parenting time for fit parents? This is not a math formula where parenting time can be estimated in advance. “Although a trial court must consider all relevant factors when determining the best interests of a child, it is not required to make an explicit finding or reference to each factor.” In re Custody of G.L., 2017 IL App (1st) 163171
An Illinois divorce court is going to use the evidence presented and the court’s own best judgment to determine who the child will be with at any given time.
“[A] best interests determination cannot be reduced to a simple bright-line test and…a ruling on the best interests of a child must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.” (Internal quotation marks omitted.) In re Marriage of Fatkin, 2019 IL 123602
Still, for fit parents, “liberal visitation [(parenting time)] is the rule and restricted visitation [(parenting time)] is the exception.” Heldebrandt v. Heldebrandt, 251 Ill. App. 3d 950, 957, 623 N.E.2d 780, 785 (1993)
Parental behavior that has no impact on the children will not be considered when allocating parenting time.
“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
The allocation of parenting time is broad and generous to both parents. The restriction of parenting time is narrow and onerous.
“[T]he legislature prescribed two different tests concerning the modification and restriction of visitation rights.” In re Marriage of Anderson, 130 Ill. App. 3d 684, 687 (Ill. App. Ct. 1985)
Restriction Of Parenting Time In An Illinois Divorce
A restriction of parenting time is not a loosey-goosey determination of parenting time based on 17 factors. A restriction on parenting time requires a finding of “serious endangerment” after a hearing and allows for specific relief after that finding.
“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 to 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 specific 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 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.” 750 ILCS 5/603.10(a)
“Under section 603.10(a), restricting parental responsibilities is a two-step process. The trial court must first make a factual determination the preponderance of the evidence demonstrates the parent has “engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development.” If the court finds the evidence presented is sufficient to make such a determination, it must then enter orders necessary to protect the child. Id. In doing so, the court must exercise its discretion in selecting appropriate restrictions to parenting responsibilities to provide for the child’s safety and welfare.” In re Marriage of Mayes, 2018 IL App (4th) 180149
The court does not need to wait until the children are actually harmed by this significant endangerment. “Measures to safeguard…children, whose lives have already been disrupted by the divorce of their parents, cannot have been intended to be delayed until there are tangible manifestations of damage to th[e children].” Jarrett v. Jarrett, 78 Ill. 2d 337, 349 (Ill. 1979)
The Difference Between An Allocation Of Parenting Time And A Restriction Of Parenting Time
Giving someone time with their child and restricting their time with their child are governed by two separate tests: the best interest standard and the serious endangerment standard (respectively)
For allocating parenting time, “[t]he best-interest-of-the-child standard governs…visiting rights…Whereas the endangerment standard governs the restriction of such rights where the court finds that the visitation as it exists seriously endangers the child’s physical, mental, moral, or emotional health” In re Marriage of Anderson, 130 Ill. App. 3d 684, 687 (Ill. App. Ct. 1985)
As discussed above, best interests are the consideration of 17 factors with no specifically required result based on that consideration.
Allocating parenting time “looks at the child’s best interests directly, while a restriction looks at the suitability of the parent whose visitation would be curtailed” In re Marriage of Chehaiber, 394 Ill. App. 3d 690, 697 (Ill. App. Ct. 2009)
A restriction on parenting time is far more specific than an allocation of parenting time.
“A visitation restriction, thus, must meet the serious-endangerment standard, which is more onerous than the best-interests standard…Examples of restrictions include a termination of visitation, a prohibition on overnight visitation, or a requirement of supervised visitation.” In re Parentage of K.E.B., 2014 IL App (2d) 131332
This is confusing! What is the difference between giving a parent a specific time with their child and denying a parent a specific time with their child? The difference between an allocation of parenting time and a restriction on parenting time is the purpose for the change in (or initial order of) parenting time.
“[I]t is not the result–the actual change in visitation–that distinguishes a restriction from a modification; it is the purpose for the change.” In re Marriage of Chehaiber, 394 Ill. App. 3d 690, 697 (2009)
When you understand this distinction, you can argue which standard that you, the parent, should be subject to.
A parenting allocation that limits your time with your child can be objected to as being based on some alleged failure of yours that must rise to the standard required for a restriction of parenting time: serious endangerment.
Remind the court that “[t]he endangerment standard…has been described as onerous, stringent, and rigorous.” In re Marriage of Diehl, 221 Ill. App. 3d 410, 429 (Ill. App. Ct. 1991)
The court may rebut, “I’m not restricting your parenting time, I’m merely establishing or modifying your parenting time.”
Some parenting schedules are presumptively restrictions on parenting time.
“A restriction of visitation is an action which limits, restrains, or confines visitation within bounds. A termination of visitation is a restriction, 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 noncustodial parent is a restriction… A termination of visitation is a restriction, as is a prohibition on overnight visitation.” In re Marriage of Lee, 615 NE 2d 1314 – Ill: Appellate Court, 4th Dist. 1993
“A termination of visitation is a restriction, as is a prohibition on overnight visitation. A requirement that visitation be supervised, occur in the home of the custodial parent, or outside the home of the noncustodial parent is a restriction.” In re Marriage of Wycoff, 639 NE 2d 897 – Ill: Appellate Court, 4th Dist. 1994
It is a restriction of parenting time for the court to insist that a parent not “exercise…parenting time further than one hour from [the other parent’s] home” In re Custody of G.L., 2017 IL App (1st) 163171
Every decision about what, exactly, is a restriction of parenting time comes with a distinction about what is not a restriction of parenting time.
“However, liminating one day from a weekend visitation or shortening a summer visitation due to the activities of the child is not a restriction” In re Marriage of Lee, 615 NE 2d 1314 – Ill: Appellate Court, 4th Dist. 1993
“However, a reduction of weekend visitation from 50 hours to 31, and reduction of summer visitation from four weeks to two weeks (because of the children’s activities), is not a restriction which had to meet the serious endangerment standard.” In re Marriage of Wycoff, 639 NE 2d 897 – Ill: Appellate Court, 4th Dist. 1994
Once a restriction on parenting time is ordered, the process to undo the restriction is not as rigorous as the process to impose the restriction. The court need only find that the best interests of the child require a lifting of the restriction on parenting time.
“The court may modify an order restricting parental responsibilities if, after a hearing, the court finds by a preponderance of the evidence that a modification is in the child’s best interests based on (i) a change of circumstances that occurred after the entry of an order restricting parental responsibilities; or (ii) conduct of which the court was previously unaware that seriously endangers the child.” 750 ILCS 5/603.10(b)
If the serious endangerment continues even as a mere possibility, the court can maintain those restrictions. An “ongoing risk of [endangerment] supports the trial court’s finding of serious endangerment.” In re Marriage of Hipes, 2023 IL App (1st) 230953
In conclusion, when seeking more time with a child in Illinois allege that any time you are granted is in the best interest of the child and allege that any time you do NOT have with the child is a restriction on your parenting time. The difference is, per In re Marriage of Chehaiber, in the intent of the court ordering parenting time…which only the court knows. So, make sure that the court writes its intent in the order…so you can appeal that decision if necessary.
There is a method to the madness that is family law. If you would like more “method” and less “madness” in your family law case, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.