Posted on January 3, 2022

Can My Ex Take My Child’s Phone After An Illinois Divorce?

Cell phones are ubiquitous nowadays…even for children.  

For the children of divorced parents, cell phones can let each parent have constant communication with the child. Children can use their phones in case of emergency to contact either parent.

But, a phone in the hands of a child can be a distracting arcade or a venue for communicating with God-knows-who.

Parents understandably want to control their children’s phone usage but how does a parent control or take away a child’s phone when the parents are no longer together and are governed by divorce court orders? What authority does either parent have to take a child’s phone away from the child?

Illinois Parenting Plans And Cell Phone Access

Every divorce with children in Illinois requires that the parties each propose a parenting plan.

“All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a)

“Parenting plan contents. At a minimum, a parenting plan must set forth the following:”

an allocation of significant decision-making responsibilities” 750 ILCS 5/602.10(1)

Decision-making responsibilities outlines which parent is responsible for what decisions. One decision-making responsibility could be “when does the child have access to a phone?”

A parenting plan must include a clause about phones but the statute is not specific as to what that clause must include.

A parenting plan must set forth “provisions for communications, including electronic communications, with the child during the other parent’s parenting time” 750 ILCS 5/602.10(f)(11)

This provision can be as broad as “each parent shall have liberal communication with the children at all reasonable times” or it can contain minute details of when the child will have access to their phone and for what purposes.

If the parents can agree on the terms of their parenting plan, “[t]he parenting plan must be in writing and signed by both parents.” 750 ILCS 5/602.10(d)

“The agreement is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence produced by the parties, that the agreement is not in the best interests of the child .” 750 ILCS 5/602.10(d)

Once the agreement is binding, each parent must follow the rules regarding telephone access or be subject to a petition for indirect contempt of court regarding any violation of the order.

If The Parents Cannot Agree On How To Allocate Decision-Making Regarding Phones

If the parents cannot agree on a mutually binding parenting plan, the parents must go to mediation.

“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist.” 750 ILCS 5/602.10(c)

If the parents still cannot agree after mediation on what the terms of the child’s phone use shall be then “[t]he court shall conduct a trial or hearing to determine a plan which maximizes the child’s relationship and access to both parents and shall ensure that the access and the overall plan are in the best interests of the child. The court shall take the parenting plans into consideration when determining parenting time and responsibilities at trial or hearing.” 750 ILCS 5/602.10

When an Illinois court makes decisions regarding who which parent will decide the children’s access to a phone, the court must consider the relevant best interest of the child factors such as:

“[T]he wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;” 750 ILCS 5/602.5(c)(1)

“[A]ny prior agreement or course of conduct between the parents relating to decision-making with respect to the child;” 750 ILCS 5/602.5(c)(6)

[T]he wishes of the parents;” 750 ILCS 5/602.5(c)(7)

[T]he child’s needs;” 750 ILCS 5/602.5(c)(8)

If you have strong feelings about when a child should have access to a phone and when they should not have access to a phone, you had better believe that an Illinois divorce judge also has strong feelings on the subject. That judge will then impute the judge’s values on you, your ex-spouse and your children instead of your family exercising their own values. Almost no one is ever happy with a judge-based decision.

Special Problems With Phone Access In An Illinois Parenting Plan

Parents rarely take issue with their children using their phone as an actual phone. The reality is that a phone is a computer. A computer with apps that are usually games or different ways to communicate with other children…or even strangers.

It is difficult to imagine a clause in a parenting plan that would adequately describe all the possible uses of a phone until the child turns 18. TikTok didn’t exist 4 years ago and now TikTok is the busiest website in the world.

Even if certain apps were managed or forbidden, a child can hide the app on their phone. Do you believe that you can outwit a teenager when it comes to technology?

Thankfully, there are numerous apps that allow parents to monitor their children’s phones. If the phone is an iphone start with Apple’s parental controls.

Monitoring a child’s becomes an issue itself as the child abandons all privacy (even as to their location). Would you have wanted your parents listening in on your phone calls when you were a child?

It is very difficult to strike the right balance between keeping a child safe and establishing healthy boundaries regarding privacy.

How A Child’s Phone Access Is Really Handled In An Illinois Divorce

Parents almost never think so far ahead as to include specific instructions regarding cell phones in their final parenting plans. So, when the other parent takes a child’s phone away from the child, both parents will find nothing in their parenting plan which prevents the removal of the phone.

Illinois law says that if a child is in the care of a parent, that parent can make the routine decisions during that parent’s parenting time.

“A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time” 750 ILCS 5/602.5(d)

Going back to court over whether a child should be able to use their phone when that child is at the other parent’s house seems like overkill…because it is.

Take this disagreement as an opportunity to revisit and renegotiate the entire parenting plan to fit the multitude of new situations that you, your ex and your children face in today’s world now that you know what co-parenting in separate homes really looks like.

Contact my Chicago, Illinois family law firm to learn more about how to propose such a renegotiation.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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