Sooner or later, a parenting time schedule is going to be entered during an Illinois divorce. Each parent will have certain days and nights with the children. Eventually, “life” will happen and one parent will not be able to turn over the children on the specific date and time as required by the order.
Hopefully, the other parent will only miss a few hours. If a parent misses a whole night, hopefully, the missing parenting time only happens once.
If the missing parenting time is repeated or extended, the other parent may request make up time so they can spend more time with their children to make up for the time they lost with their children.
Make up parenting time is done in three ways: 1) By oral agreement, 2) By written agreement or 3) By order of the court.
Make Up Parenting Time By Oral Agreement
Life happens. People are late. People miss planes. Practices go long. It’s just as likely to happen to you as it is to the other parent. After all, you are both looking after the same children with the same activities, etc.
Just shrug off the missing time and hope the other parent will understand if they miss parenting time.
In the alternative, suggest some make up parenting time in the very near future to even out the parenting time.
There is no need to get lawyers involved if you are in and oral agreement and that oral agreement will be satisfied within a few weeks.
Make Up Parenting Time By Written Agreement
You and the other parent will have entered into an Allocation for Parenting Time and Parental Responsibilities. The Allocation for Parenting Time and Parental Responsibilities can include a clause that regulates make up parenting time. An example of such a clause is as follows.
“If either party is not able to make the child(ren) available on the proscribed times for a period of 4 hours or more, the other parent may elect to extend their parenting time by an additional period of time equivalent to the parenting time lost at the beginning or the end of their next two periods of parenting time. Failure to exercise this extension in the next two periods of parenting time shall serve as a forfeiture to make up any parenting time that was lost.”
If there is not language for make up parenting time in your Allocation for Parenting Time and Parental Responsibilities, you could enter a court order memorializing your agreement to provide make up time. However, it probably makes more sense to amend your Allocation for Parenting Time and Parental Responsibilities to include a make up parenting time clause.
Make Up Parenting Time By Court Order
If the lost parenting time has been extensive and repetitive, perhaps an Illinois domestic relations judge will need to weigh in on what make up time, if any, is necessary.
“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:
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” 750 ILCS 5/607.5(c)(5)
Furthermore, non-compliance with an order is usually cause for a Petition For Indirect Civil Contempt of Court.
“Indirect contempt occurs outside the presence of the court and must therefore be proved by extrinsic evidence. Where an element of the offense is not observed by the judge and must be proved by testimony from third parties, then the accused contemnor must be given notice, a fair hearing and an opportunity to be heard” Weglarz v. Bruck, 470 N.E.2d 21 (Ill. App. Ct. 1984)
Failure to make a child available for the other parent’s parenting time is contemptuous behavior outside the presence of the court. The extrinsic evidence necessary to prove the contemptuous behavior is merely testimony, “I went to pick up my child and no one was there.”
Once found in contempt, the court must specify what the parent who didn’t provide the child must do to purge the contempt.
“Whether for direct or indirect civil contempt, the order must specify what the contemnor is required to do, so that by compliance contemnor can purge himself of contempt.” Pancotto v. Mayes, 304 Ill. App. 3d 108, 112, 709 N.E.2d 287, 290 (1999)
The purge of contempt for missing parenting time is not make up parenting time, however.
A purge of contempt cannot be “makeup parenting time the court ordered…[because] that provision also require[s the other parent’s] participation and cooperation. As a result…it [is] not [a] proper [purge] because [the contemnor parent’s] ability to purge [their] contempt [is] not left solely within [their] own control.” In re AM, 179 NE 3d 269 – Ill: Appellate Court, 4th Dist. 2020
Still, even in an action for enforcement, you can ask for attorney’s fees. After all, you wouldn’t even be going to court if the other parent had properly complied with the parenting time schedule.
“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 508(b)
An inability to follow a parenting plan probably means the parenting plan needs to be modified. Longer parenting times with less exchanges mean less opportunity to be late or miss pick ups and/or drop offs.
If you would like to get make up time, enforce your parenting time or modify your current parenting plan, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.