If you are a parent of a child in Illinois, you have the right to see your child…eventually.
Without a petition on file, any attempt to exercise visitation rights with your child will have no authority of law. A call to the police will be met with the police officer instructing you to “go to court.”
First Step: Establishing That Your Are The Parent Of The Child
If you’re married to your child’s other parent, you are automatically presumed to be the legal parent of the child.
“A person is presumed to be the parent of a child if: The person and the mother of the child have entered into a marriage…and the child is born to the mother during the marriage” 750 ILCS 46/204
If you’re an unmarried father, then your paternity is determined by whether you signed the voluntary acknowledgment of paternity (VAP). “The parent-child relationship is established between a man and a child by… an effective voluntary acknowledgment of paternity by the man” 750 ILCS 46/201(b)(1)
Without a voluntary acknowledgement of paternity (which must be signed by both the mother and father), a court order, “An adjudication of the man’s parentage” 750 ILCS 46/201(a)(2), will be necessary to establish who an Illinois child’s father is.
You first must file a petition for dissolution of marriage or a petition to establish paternity and for parenting time (if you’re unmarried) in order to get an Illinois court to consider your request for visitation rights.
Upon establishing that you are the child’s parent, you can request immediate parenting time from the court.
Parenting Time Or Visitation In Illinois
Illinois courts “recognize the right of children to a healthy relationship with parents, and the responsibility of parents to ensure such a relationship” 750 ILCS 5/102(6)
The terms visitation or custody are not used in Illinois law anymore. Now we simply refer to time spent with a child as “parenting time”
If you come to an agreement with the child’s other parent, you can enter an agreed order and start visiting the child immediately.
If the other parent objects to visitation, you will have to ask a court to order parenting time.
“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a)
If the child was spending time with you recently, a court may award parenting time immediately based on that fact alone.
Otherwise, an Illinois court will proceed with caution and require a series of steps to be followed in advance of issuing an order for visitation.
A court will order the parents to mediate the issue of visitation.
“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan” 750 ILCS 5/602.10(c)
The court will also require each parent to propose a visitation schedule.
“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)
If the parents cannot agree on a parenting time schedule, the court will order a parenting time schedule based on the child’s best interests.
“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)
This is a lot of factors for a court to consider when ordering visitation. If one parent is truly so committed to preventing visitation by the other parent, the court will get to the bottom of their issue by appointing a Child Representative or a Guardian Ad Litem.
Child representatives and Guardian Ad Litems interview the parents, the child and any necessary third parties in order to determine what visitation would be in the child’s best interests.
“The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.” Ill. Sup. Ct. R. 907(c)
Expanding Parenting Time Or Visitation In Illinois
Upon receiving some visitation, a parent can expect to have the court make a future order granting more visitation.
“It [is] in the minor child’s best interests to maximize involvement of both parents.” In re Marriage of Perez, 2015 IL App (3d) 140876
The current order must be modified in order to obtain more visitation with a child.
“[T]he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)
There must be a substantial change in circumstances in order for a court to award more parenting time. That “substantial change” may simply be that the parent and the child have established a relationship.
While Illinois court lean towards more parenting time, Illinois courts do not automatically presume that 50/50 parenting time will be the end result of any modification of parenting time.
“[C]ourts have traditionally viewed 50/50 joint parenting time with caution” In re Marriage of Virgin, 2021 IL App (3d) 190650
Every day without your child is a day you will never get back. The best day to ask the court for visitation is today. Contact my Chicago, Illinois law office for a free consultation regarding how you can get visitation rights to your child as soon as possible.