Siblings and divorce in Illinois

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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Sibling Visitation Rights in Illinois

Siblings and divorce in Illinois

A family is not just a mom, a dad and a kid.  There are usually other kids. A child’s relationship to his or her siblings is a close bond that’s worth preserving. But, sometimes those siblings don’t live with mom or dad anymore. Sometimes siblings don’t even have the same mom and dad. This can create a conundrum where an Illinois divorce or parentage court must determine the time the child spends with his or her parents and the time the child should spend with his or her siblings.  What are sibling visitation rights in Illinois?

Siblings As A Factor In The Allocation of Parenting Time and Parenting Responsibilities.

Every parentage action and every divorce that involves children in Illinois must prepare and enter an Allocation of Parenting Time And Parenting Responsibilities.

Divorce “[j]udgment[s] shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for the allocation of parental responsibilities” 750 ICLS 5/401(b)

Parentage “judgment[s]…may contain provisions concerning the allocation of parental responsibilities or guardianship of the child, [and] parenting time” 750 ILCS 46/802

Parenting time is the schedule a child has with each respective parent.  Parenting time in Illinois is defined as “time during which a parent is responsible for exercising caretaking functions” 750 ILCS 5/600(e)

“Caretaking functions” is subsequently defined by the statute as “helping a child develop and maintain appropriate interpersonal relationships with peers, siblings, and other family members” 750 ILCS 5/600(c)(5)

So, when Illinois law talks about parenting time, the statute is simultaneously talking about time with siblings.

When allocating parenting time, Illinois family law courts make decisions based on the “best interests of the child.” To determine the best interests of the chlld, the family law judge will look at a number of factors. One of those factors is the children’s relationship with their siblings.

“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider…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” 750 ILCS 5/602.7(b)

This is just one out of 17 factors that an Illinois family court judge can determine when allocating parenting time but I can tell you, from experience, this is one of the most important.

Illinois family law judges are loath to separate siblings from each other in a custody dispute.  This seems natural in a custody dispute where the siblings share the same parents. In 15 years of practice I’ve never seen an allocation that says, “Mom gets Billy on the first week and Dad gets Suzy on the first week.  Then parties shall switch the next week.”  It is just plainly a terrible idea to separate siblings during a hard time like their parent’s separation.

Half-siblings and step-siblings make things much more complicated. A child that is not the child of a couple in a custody dispute is not under the jurisdiction of that divorce or parentage judge.  Therefore, the judge cannot say, “and make sure he sees his half-brother.”

An Illinois domestic relations judge who is trying to maintain a relationship between half-siblings and/or step-siblings must accommodate a completely different Allocation of Parenting Time And Parenting Responsibilities (if it exists at all) that governs that half-sibling or step-sibling.

This is difficult set of facts but, in my experience, Illinois family law judges and guardian ad litems will try to make work for EVERYONE if possible.  That is why the sibling factor is probably the most important when determining a child’s schedule during a divorce or custody dispute.

What If The Sibling Is A Bad Influence On A Child Or A Danger To A Child?

If one sibling is particularly troubled, it may be prudent to remove that sibling from the presence of the other children.  While this is sad, it may indeed be in the “best interests of the child”

The parent of both children never wants to separate the troubled child from the other child and there’s nothing the court can do about that…initially.

“There is a rebuttable presumption that a fit parent’s actions and decisions regarding ….sibling…visitation are not harmful to the child’s mental, physical, or emotional health” 750 ILCS 5/602.9

Obviously, some horrible incident would have to precede such a ruling. The Illinois statute provides that “[a]fter 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;

restricting the presence of specific persons while a parent is exercising parenting time with the child.” 750 ILCS 5/603.10

If that “specific person” is a child’s sibling, half-sibling or step-sibling, that may be the necessary precaution for the court to order.

Can A Sibling Ask For Visitation Themselves?

A sibling (presumably an adult sibling) can petition an Illinois family law court directly for the right to visit their sibling should the child’s parent not allow that visitation.

“Siblings of a minor child who is one year old or older may bring a petition for visitation and electronic communication under this Section if there is an unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child “ 750 ILCS 5/602.9(c)(1)

For a sibling to truly allege that their absence causes a minor child “undue mental, physical, or emotional harm” is going to be a stretch.  Even despite what I wrote above about courts trying to keep siblings together.  In this scenario, the petitioning sibling is clearly going to be much older (10+ years) than the minor child and will culturally be treated more like an uncle or aunt…and uncles and aunts have no visitation rights under Illinois law.

Even if it was deemed that the absence of the petitioning sibling “causes undue mental, physical or emotion harm to the child” there are still a lot of prerequisites to filing a sibling visitation order that include the death of a parent, the incarceration of a parent, etc.  Essentially, that sibling has to have been a parental figure to the child at some point in order to get ongoing visitation with that child. 

Finally, the right to parent your children and make decisions for your children is a fundamental right per the Supreme Court Of The United States. Troxel v. Granville, 530 U.S. 57 (2000).  The mere invocation of this case in any sibling, grandparent or third-party visitation case turns a visitation petition into a constitutional battle…which the sibling, grandparent or third-party will always lose. 

“[A] fit parent’s constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents — not judges — should be the ones to decide with whom their children will and will not associate.” Wickham v. Byrne, 769 NE 2d 1 – Ill: Supreme Court 2002

The Real Solution To A Sibling Visitation Issue In Illinois

There is no legal solution to sibling visitation.  Part of the Illinois statute says that time with siblings is integral to the best interests of the child.  Another part essentially neuters any sibling visitation.  No Illinois divorce or custody court is going to provide you with a definitive answer or result. 

Any matter involving sibling visitation needs to go to mediation.  In Cook County, You’re actually required to go to mediation regarding anything that could determine or change your Allocation of Parenting Time and Parenting Responsibilities.

“For the following categories of contested issues, mediation is mandatory unless an impediment to mediation exists (1) initial determinations of allocation of parental responsibilities; (2) modification of allocation of parental responsibilities;… 4) non-parent visitation and third party allocation of parental responsibilities.” Cook County Court Rule 13.4(e)(ii)(b)

If you can’t reach an agreement after mediation, litigation is going to be a complete crapshoot and you’d better hire a really good family law attorney