A child needs both parents in their life. If one parent has a drug problem or a personality disorder, it may be in the child’s best interest that they have limited or no contact whatsoever with the offending parent.
Normally in an Illinois divorce court, “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)
In fact, it is presumed that both parents are “fit” and therefore shouldn’t have any restrictions or prohibitions from contacting their children.
“It is presumed both parents are fit and the court shall not place any restrictions on parenting time… unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.” 750 ILCS 5/602.7(b)
While the presumption may be that parents are “fit” and visitation should be “liberal,” Illinois divorce courts are not restricted by these standards. Illinois trial courts are “vested with wide discretion in resolving visitation [(parenting time)] issues.” In re Marriage of Anderson, 130 Ill. App. 3d 684, 688, 474 N.E.2d 911, 913 (1985)
Not every denial of parenting time is an impermissible restriction of parenting time.
“A restriction of visitation, which must meet the serious-endangerment standard, is an action that limits, restrains, or confines visitation; for example, a termination of visitation, a prohibition on overnight visitation, or a requirement of supervised visitation. A reduction of weekend and summer visitation is not considered a restriction of visitation.” In re Marriage of Ross, 355 Ill. App. 3d 1162, 1167 (2005).
In an Illinois divorce, Illinois courts’ primary concern is 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)
“A determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.” In re Marriage of Eckert, 119 Ill. 2d 316, 326, 518 N.E.2d 1041, 1045 (1988).
In furtherance of those best interests, an Illinois divorce court may reduce or prohibit parenting time.
“Orders necessary to protect a child may include, inter alia, a reduction in parenting time, supervision, and/or a requirement to complete a treatment program for behavior that served as the basis for restricting parental responsibilities.” In re Marriage of Mayes, 2018 IL App (4th) 180149
If an incident happens, one parent may petition an Illinois divorce court to restrict or eliminate parenting time or even any parental contact whatsoever.
“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
a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;
… restraining a parent’s communication with or proximity to the other parent or the child” 750 ILCS 5/603.10(a)
Unless the incident that caused the motion to restrict parenting time is so shocking, the decision to prohibit or restrict a parent’s time with their child will require a great deal of evidence from additional parties such as a Guardian Ad Litem and/or a psychiatrist.
“If the court finds the evidence presented is sufficient to make such a determination [of restricted or prohibited contact], it must then enter orders necessary to protect the child. 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
This new order restricting contact between a parent and a child will be in place until a subsequent order is entered.
“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. In determining whether to modify an order under this subsection, the court must consider factors that include, but need not be limited to, the following
- abuse, neglect, or abandonment of the child;
- abusing or allowing abuse of another person that had an impact upon the child;
- use of drugs, alcohol, or any other substance in a way that interferes with the parent’s ability to perform caretaking functions with respect to the child; and
- persistent continuing interference with the other parent’s access to the child, except for actions taken with a reasonable, good-faith belief that they are necessary to protect the child’s safety pending adjudication of the facts underlying that belief, provided that the interfering parent initiates a proceeding to determine those facts as soon as practicable.” 750 ILCS 5/603.10(b)
Because restricting time between a parent and a child is not taken lightly, the removal of any such restrictions will be similarly intensively investigated.
Illinois law presumes the restrictions are valid and in the best interests of the child to such an extent that if the remaining parent allows the child to see the parent who is forbidden from seeing the child…the remaining parent MAY ALSO be restricted from contacting the child.
“An order granting parenting time to a parent or visitation to another person may be revoked by the court if that parent or other person is found to have knowingly used his or her parenting time or visitation to facilitate contact between the child and a parent who has been barred from contact with the child or to have knowingly used his or her parenting time or visitation to facilitate contact with the child that violates any restrictions imposed on a parent’s parenting time by a court of competent jurisdiction. Nothing in this subsection limits a court’s authority to enforce its orders in any other manner authorized by law.” 750 ILCS 5/603.10(c)
This begs the question, what happens when both parents are prohibited or restricted from seeing their children in an Illinois divorce or parentage case? Well, someone has to watch the child and that person will also have their time with the child revoked should they allow a restricted parent to contact the child.
“If parenting time of a parent is restricted, an order granting visitation to a non-parent with a child or an order granting parenting time to the other parent shall contain the following language:
“If a person granted parenting time or visitation under this order uses that time to facilitate contact between the child and a parent whose parenting time is restricted, or if such a person violates any restrictions placed on parenting time or visitation by the court, the parenting time or visitation granted under this order shall be revoked until further order of court.” 750 ILCS 5/603.10(e)
Once a trial court has restricted or prohibited parenting time, it takes a lot to modify that finding. Furthermore, an appeals court is unlikely to reverse that finding.
“On appeal, this court will not reverse a trial court’s decision concerning modification of visitation unless it is against the manifest weight of the evidence or an abuse of discretion.” Heldebrandt v. Heldebrandt, 251 Ill. App. 3d 950, 954 (Ill. App. Ct. 1993)
“ ‘In child custody cases, there is a strong and compelling presumption in favor of the result reached by the trial court because it is in a superior position to evaluate the evidence and determine the best interests of the child.’ ” Young v. Herman, 2018 IL App (4th) 170001, ¶ 64, 92 N.E.3d 1070 (quoting In re Marriage of Agers, 2013 IL App (5th) 120375, ¶ 25, 991 N.E.2d 944)
Restricting or prohibiting contact between a parent and a child is big deal…and undoing those restrictions is also a comprehensive process. Be sure that you are prepared to prove your case either way with an experienced Illinois divorce lawyer.