When adults with children separate, those adults govern their parenting time and parental decision-making with court orders. These court orders tell each parent when they are to pick up their children and what they can do with the children when the parent has custody of the child.
When one (or both) parents do not follow custody orders, the other parent has the right to enforce the custody orders.
Typically, the court orders will be enforced in a domestic relations court. Outside of court, at pick-up time, the judge is not present. Can the police be called to enforce a child custody order?
What Happens When You Call The Police To Enforce A Child Custody Order In Illinois?
Either parent can call the police at any time. The police will eventually arrive and talk to each parent. The police will listen to each parent and try to mediate and diffuse the situation.
The police will even read the court order (often a multiple page document) and opine and who is supposed to do what.
What the police will hardly ever do is enforce the court order. What did you expect? For the police to draw their guns and force one parent to turn the child over to the other parent?
If one parent simply takes the child into their home and closes the door, the police are not allowed to go into that house.
The Fourth Amendment of the United States Constitution guarantees that “[t]he right of the people to be secure in their . . . houses . . . shall not be violated.” U.S. Const. amend. IV.
“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505 at 511
“In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573 (1980)
What is transferring a child to another parent if not a “seizure of a person?” The police are never going into a house to get a child…without a warrant.
Getting A Warrant To Get A Child In Illinois
Issuing a civil warrant is a rarely used procedure which gives the police the authority they need to retrieve a child based on a court order.
While a parent is asking a court to enforce the child custody order, the parent can also ask the court to issue a warrant to effectuate that enforcement.
“Upon the filing of a petition seeking enforcement of a child-custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this State.” 750 ILCS 36/311(a)
“If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this State, it may issue a warrant to take physical custody of the child.” 750 ILCS 36/311(b)
A request for a warrant to turn over a child has the requirements of “immediately” and “imminently.” This means that the request will almost certainly also have to be filed as an emergency motion and meet the additional pleading requirements of an emergency motion based on local rules.
The warrant to take physical custody of a child allows the police to enter private property.
“A warrant to take physical custody of a child is enforceable throughout this State. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.” 750 ILCS 36/311(e)
“The application for the warrant must include the statements required by Section 308(b) [of the Uniform Child-Custody Jurisdiction and Enforcement Act]” 750 ILCS 36/311(a)
The required statements in the petition for the issuance of a civil warrant to take phsyical custody of a child are as follows:
“A petition for enforcement of a child-custody determination must state:
(1) whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
(2) whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision must be enforced under this Act and, if so, identify the court, the case number, and the nature of the proceeding;
(3) whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;
(4) the present physical address of the child and the respondent, if known;
(5) whether relief in addition to the immediate physical custody of the child and attorney’s fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and
(6) if the child-custody determination has been registered and confirmed under Section 305, the date and place of registration.” 750 ILCS 36/308(b)
Once the court authorizes a warrant to take physical custody of the child, the warrant must be written in a particular way to provide clear instructions to the police.
“A warrant to take physical custody of a child must:
(1) recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;
(2) direct law enforcement officers to take physical custody of the child immediately; and
(3) provide for the placement of the child pending final relief.” 750 ILCS 36/311(c)
Like any warrant, the other parent must get a copy of the warrant during the pick-up of the child.
“The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.” 750 ILCS 36/311(d)
Do not expect the police to arrange a SWAT team to break down the other parent’s door and raid the home. More likely, the police will explain to the other parent that “you are either bringing that child out…or we are coming in.” A parent who would decide on the latter option can expect their parenting time to be reduced significantly based on that decision (which is clearly against the child’s best interests).
Parents are adults. Adults are supposed to follow the rules. When adults do not follow the rules, the police get involved. This is not a surprise.
Alternatives To Issuing A Warrant To Get A Child
Issuing a warrant is an extreme step to enforce parenting time.
A warrant to take physical custody of a child will only be issued “If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective” 750 ILCS 36/311(e)
Alternatively, a parent can ask for a variety of forms of relief from the court when they ask the court to enforce parenting time.
“If the court finds by a preponderance of the evidence that a parent has not complied with allocated parenting time according to an approved parenting plan or a court order, the court, in the child’s best interests, shall issue an order that may include one or more of the following:
- an imposition of additional terms and conditions consistent with the court’s previous allocation of parenting time or other order;
- a requirement that either or both of the parties attend a parental education program at the expense of the non-complying parent;
- upon consideration of all relevant factors, particularly a history or possibility of domestic violence, a requirement that the parties participate in family or individual counseling, the expense of which shall be allocated by the court; if counseling is ordered, all counseling sessions shall be confidential, and the communications in counseling shall not be used in any manner in litigation nor relied upon by an expert appointed by the court or retained by any party;
- a requirement that the non-complying parent post a cash bond or other security to ensure future compliance, including a provision that the bond or other security may be forfeited to the other parent for payment of expenses on behalf of the child as the court shall direct;
- a requirement that makeup parenting time be provided for the aggrieved parent or child under the following conditions:(A) that the parenting time is of the same type and duration as the parenting time that was denied, including but not limited to parenting time during weekends, on holidays, and on weekdays and during times when the child is not in school;(B) that the parenting time is made up within 6 months after the noncompliance occurs, unless the period of time or holiday cannot be made up within 6 months, in which case the parenting time shall be made up within one year after the noncompliance occurs;
- a finding that the non-complying parent is in contempt of court;
- an imposition on the non-complying parent of an appropriate civil fine per incident of denied parenting time;
- a requirement that the non-complying parent reimburse the other parent for all reasonable expenses incurred as a result of the violation of the parenting plan or court order; and
- any other provision that may promote the child’s best interests.” 750 ILCS 5/607.5(c)
The final option allowing the court to order “any other provision that may promote the child’s best interests” is almost certainly going to be a change in custody based on the defiance of the existing order.
“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child” 750 ILCS 5/610.5(a)
After all, if a parent is not following the current order…the order must not be working for them.
Finally, enforcing a court order will cause the party who defied the court order to pay the enforcer’s attorney’s fees.
“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.” 750 ILCS 5/508(b)
If you are considering the need for police to enforce your parenting time…you have big problems. Contact my Chicago, Illinois divorce law firm to speak with an experienced Illinois family law attorney.