The right to see your children is fundamental to the entire Illinois family law system. That being said, some parents just don’t feel their children are safe when the children are with the other parent. How can we balance the need to keep children safe and the need for a child to have regular contact with both parents? Usually the temporary answer is to impose some kind of supervised visitation until one parent’s fears are calmed and the other parent has proved their diligence and safety. So, how does supervised visitation work in an Illinois divorce or custody case?
What Is the Default Parenting Time In Illinois?
There is no default parenting time in Illinois. There is no assumption that the both parents shall receive 50/50 custody in Illinois, every other weekend or any kind of parenting scheme.
The Illinois statute tells us what steps should be taken to determine parenting time.
“[T]he parents present a mutually agreed written parenting plan and that plan is approved by the court” 750 ILCS 5/602.7(b)
If the parents agree, any parenting schedule will likely be approved by the court. The court only steps in if parents propose something blatantly unreasonable such as “hand-offs of the children will be at 2 AM”
If the two parents cannot agree on a parenting schedule “[t]he court shall allocate parenting time according to the child’s best interests”740 ILCS 5/602.7(a)
When allocating parenting time the court shall deem that “[i]t is presumed both parents are fit and the court shall not place any restrictions on parenting time.” 750 ILCS 5/602.7(b)
So, the default parenting time in Illinois is assuming that both parents are good people who will work this out amongst themselves with little to no help from an Illinois family law court.
Temporary Parenting Time
Before the parents come to a final agreement regarding parenting time or the court considers all the facts before entering an allocation of parenting time and parenting responsibilities, the court can make some very initial temporary parenting orders until all of those facts are appropriately gathered.
“A court may order a temporary allocation of parental responsibilities in the child’s best interests before the entry of a final allocation judgment.” 750 ILCS 5/603.5(a)
But these temporary orders shall be made using the same considerations as permanent orders.
“Any temporary allocation shall be made in accordance with the standards set forth in Sections 602.5 and 602.7: (i) after a hearing; or (ii) if there is no objection, on the basis of a parenting plan that, at a minimum, complies with subsection (f) of Section 602.10.” 750 ILCS 5/603.5(a)
These standards require a lot of information for a short temporary hearing. Because of this, a guardian ad litem is usually appointed to gather and present that information to the judge.
Guardian Ad Litem’s And Parenting Time In An Illinois Divorce or Custody Case.
Once you’ve come to terms that your children will spend time with the other parent in some capacity, you can start focusing on how to limit that parenting time in such a way that your children’s mental, emotional and physical health shall be preserved.
This almost always means appointing a guardian ad litem in your case.
While you will point out the other parents flaws and the other parent will paint themselves as a saint, the Illinois family law judge will not have enough time to get to the bottom of the situation while they wrap up the other 50 court calls on that days court calendar.
“The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506
The guardian ad litem is an attorney who represents the children’s best interests NOT either parent’s interests. But, the parents have to pay for the guardian ad litem usually based on a proportion of their respective incomes.
The guardian ad litem gathers information via interviews and home visits and can testify to the judge about what they’ve learned and even provide an opinion as to what the judge should do. The judge will almost always adopt the guardian ad litem’s opinion.
Restricting Parenting Time
If the parents cannot agree on a parenting time schedule that means, effectively, that one parent wants to restrict the parenting time of the other parent.
When the court determines the parenting schedule for a pair of parents they do so by considering “the best interests of the child.” These best interests shall be based on a series of considerations which include
• Wishes of the parent
• Wishes of the child
• Actual parenting time within the last 2 years
• Any prior agreements the parents had
• Ability to spend time with siblings
• The child’s relationship to their school, neighborhood and community
• The mental and physical health of the child AND of the parents
• The child’s needs
• The distance between the parents’ homes.
• Whether a restriction on parenting time is appropriate
• Physical violence in either household
• The willingness of each parent to put the child’s needs ahead of theirs.
• The willingness of each parent to allow the child to have a relationship with the other parent.
• Abuse of the child in either household
• Whether there is a convicted sex offender in either household
• Either parent’s military schedule.
• Any other reason the court deems relevant. 750 ILCS 5/602.7(b)
As you can see, this is effectively a list of reasons to limit the parenting time of one parent should they run afoul of one or more of these considerations.
This provides an opportunity for one parent to list out all of the other parent’s sins, errors and failures as both a parent and a human being in the hopes of restricting their parenting time.
The court, however, is tempered by immediate next clause of the statute.
“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
“Parental conduct that does not adversely affect the child is not to be considered in the custody determination.” In re Marriage of Stone, 164 Ill. App. 3d 1046, 1053 (1987)
Much like the grounds for divorce, in Illinois the court simply does not care about a parent’s character as a spouse or partner. Adultery, alcohol, gambling, guns, etc. If the matter does not affect the children directly, the court will not consider that matter when awarding parenting time.
Even a parent who is deemed so irresponsible that they should not make ANY decisions for the child shall be allowed parenting time with the child.
“A parent who has established parentage under the laws of this State and who is not granted significant decision-making responsibilities for a child is entitled to reasonable parenting time with the child 750 ILCS 5/602.7(d)
A full-blown court hearing with witnesses and exhibits is required to limit what would be otherwise reasonable parenting time.
Reasonable parenting time shall be allocated “unless the court finds, after a hearing, that the parenting time would seriously endanger the child’s mental, moral, or physical health or significantly impair the child’s emotional development” 750 ILCS 5/602.7(d)
So, initially, a parent is going to get full unsupervised parenting time with their child in Illinois unless you can make a serious showing that it would be inappropriate and, in fact, a danger to the child.
“The courts of this State have been reluctant to deny visitation rights because of the principle that parents have a natural or inherent right of access to their children, and because sound public policy encourages the maintenance of strong family relationships” In re Marriage of L.R., 202 Ill. App. 3d 69, 85 (1990)
How To Get Supervised Parenting Time in an Illinois Divorce or Custody Case?
There is going to have to be an incident at some point which is so egregious that it demands supervised visitation of one parent with the child.
One of the purposes of the Illinois Marriage and Dissolution of Marriage Act is to “protect children from exposure to conflict and violence.” 750 ILCS 5/102(4)
You will need to point to that incident and present evidence of the incident to the Illinois family court judge in a full and formal hearing.
“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.” 750 ILCS 5/603.10(a)
Once an Illinois family law court deems that the child is in some kind of danger when with the other parent, the Illinois court has enormous powers to strip that parent of their parenting time. The Illinois court may order 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” 750 ILCS 5/603.10(a)(1)
Visitation is likely to go to zero for the offending parent until the guardian ad litem can determine what steps are necessary to ensure that the child is safe with the parent and that the parent has completed those steps.
“[S]upervision” 750 ILCS 5/603.10(a)(2)
Supervised visitation becomes the most likely immediate result after a hearing under 603.10. The supervisor is usually a friend or family member that both parties approve of. If the parties cannot approve or someone jointly, they must hire someone who is approved by the courts.
“[R]equiring the exchange of the child between the parents through an intermediary or in a protected setting” 750 ILCS 5/603.10(a)(3)
This almost always means exchanging the child in the lobby of a police station. This should only be when there has been an incidence of domestic violence but people often resort to this extreme measure out of vitriol for the other parent.
“[R]estraining a parent’s communication with or proximity to the other parent or the child” 750 ILCS 5/603.10(a)(4)
This is the most extreme result of all. To ban a parent’s communication with a child is to effectively erase the parent from the child. I have honestly never seen an order doing this.
However, I have seen numerous orders restricting what the parent can say to a child. Specifically, a parent should never discuss their divorce or custody case with the child.
“[R]equiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time” 750 ILCS 5/603.10(a)(5)
In my experience as a divorce lawyer, conflict between parties is either the result of drugs and alcohol and or a personality disorder. Often, when drugs and alcohol are eliminated so are the problems with co-parenting.
If drugs and alcohol were so easy to quit, everyone would just quit. So, the court can also require treatment for drug and alcohol abuse.
“[R]equiring a parent to complete a treatment program for perpetrators of abuse, for drug or alcohol abuse” 750 ILCS 5/603.10(a)(8)
The court can also enter an order “[R]estricting the presence of specific persons while a parent is exercising parenting time with the child” 750 ILCS 5/603.10(a)(5)
Often, the personality disorder that is aggravating the co-parenting doesn’t even belong to one of the parents but rather the issue is a new boyfriend, girlfriend, spouse or family member. Again, when the aggravating factor is removed, parenting time seems to go back to normal.
“[R]equiring a parent to post a bond to secure the return of the child following the parent’s exercise of parenting time or to secure other performance required by the court” 750 ILCS 5/603.10(10)(a)(6)
I have, personally, never seen nor heard of a parent having to post a pond to see their own children but the second clause of this portion of the statute “Requiring a parent…to secure other performance required by the court” essentially allows the court to make any kind of benchmark required before allowing a parent to see a child again.
The last portion of the statute also allows a court to order whatever they deem fit in regards to restricting parenting time by allowing a court to order “any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare” 750 ILCS 5/603.10(a)(9)
These restrictions on parenting time don’t need to be requested after something happens to the child. Pre-emptive restrictions on parenting time are allowed “even if the child has yet to suffer the adverse effects of those changes [in circumstances]” In re Marriage of Rogers, 2015 IL App (4th) 140765
So, if you want supervision or any other kind of limitation or restriction on the other parent…just ask the court. The worst they can do is say “no”
How To Defend Against A Petition For Restricted or Supervised Visitation In Illinois
If someone is trying to restrict your parenting time you must underscore that the presumption is that you are a fit parent. “[i]t is presumed both parents are fit and the court shall not place any restrictions on parenting time.” 750 ILCS 5/602.7(b)
If there is a previously entered allocation of parenting time and parenting responsibilities, there is probably a clause in that order that says “both parents are fit”. That is an official “finding of the court” and a subsequent court can’t just “un-find” it. Marriage of LaTour, In re, 608 N.E.2d 1339, 241 Ill.App.3d 500, 181 Ill.Dec. 865 (Ill. App. 1993)
You can insist that if your parenting is restricted that the allocation of parenting time and parenting responsibilities also needs to be modified to find you “unfit” otherwise the court cannot overcome the previous finding of fitness which subsequently prevents any restrictions on parenting time per the statute.
Be careful what you wish for! The court may follow your instructions and modify your allocation of parenting time and parenting responsibilities in ways you never wanted…or imagined.
Some Restrictions On Parenting Time Are Not A Big Deal
A “fit parent” cannot have his or her time restricted per the statute. But parenting schedule changes are going to happen and those schedule changes should not be formally considered as a restriction on parenting time in Illinois.
The Illinois appellate case In re Marriage of LaTour sheds light on what is a restriction and what is just a schedule modification.
“A restriction on visitation is action which limits, restrains, or confines visitation within bounds. (In re Marriage of Tisckos (1987), 161 Ill.App.3d 302, 310, 112 Ill.Dec. 860, 865, 514 N.E.2d 523, 528.) A termination of visitation is a restriction (In re Marriage of Dunn (1987), 155 Ill.App.3d 247, 254, 108 Ill.Dec. 89, 94, 508 N.E.2d 250, 255), as is a prohibition on overnight visitation. Likewise, a requirement that visitation be supervised, occur in the home of the custodial parent, or outside the home of the noncustodial parent is a restriction. (Tisckos, 161 Ill.App.3d at 310, 112 Ill.Dec. at 865, 514 N.E.2d at 528.) Eliminating one day from a weekend visitation or shortening a summer visitation due to the activities of the child is not a restriction. (See Gibson v. Barton (1983), 118 Ill.App.3d 576, 579-80, 74 Ill.Dec. 252, 254-55, 455 N.E.2d 282, 284-85.) Nor is the interruption of a weekend visitation, so that the child may attend religious services, a restriction. Tisckos, 161 Ill.App.3d at 311, 112 Ill.Dec. at 865-66, 514 N.E.2d at 528-29.” Marriage of LaTour, In re, 608 N.E.2d 1339, 241 Ill.App.3d 500, 181 Ill.Dec. 865 (Ill. App. 1993)
So, you have to point out if the proposed change is an actual restriction (which is, therefore, impermissible) or an “interruption” which is allowed.
How To Remove A Supervised Visitation Order In Illinois?
An action to restrict or supervise parenting time in Illinois is never permanent. The statute presumes that the parent will do what it takes to restore normal parenting time with their children.
“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” 750 ILCS 5/603.10(b)
So, if your visitation was restricted or supervised, you should have asked the court to outline what exactly you need to do to have those restrictions or supervision removed.
An Illinois family law judge is usually not eager to put something in an order that ensures a future decision. Judges prefer to make their decisions unconstrained by previous orders.
But, you can get a guardian ad litem to lay out benchmarks which you need to achieve in order to remove restrictions or supervised visitation. Your lawyer should get those in writing and then have the guardian ad litem admit to those conditions at the subsequent court hearing.
Be careful, though! Modifying an order that restricted your parenting time can go both ways. You might get even more restrictions if something else happens or is revealed. An Illinois court can impose new restrictive orders if it is shown “conduct of which the court was previously unaware that seriously endangers the child.”750 ILCS 5/603.10(b)
The new allegations can’t be something minor. The statute elaborates on what those additional undiscovered malevolent factors should be.
“(1) abuse, neglect, or abandonment of the child;
(2) abusing or allowing abuse of another person that had an impact upon the child;
(3) 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
(4) 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)
These are all pretty extreme so further restrictions should be held to a similar standard of extreme behavior and not just “he forgot the diaper bag” type objections.
The Real Solution To Restricted and Supervised Visitations And Parenting Time.
If someone is trying to restrict or supervise parenting time, then the current status quo regarding the children just isn’t working out.
The allocation of parenting time and parenting responsibilities must include “provisions for future modifications of the parenting plan, if specified events occur” 750 ILCS 4/602.10
Follow those provisions for modification. They almost always require mediation. If it doesn’t “The court shall order mediation to assist the parents in formulating or modifying a parenting plan” 750 ILCS 5/602.10
No matter what, you need a change to your current parenting schedule and to get a change, you need mediation.
You don’t have to resolve everything at mediation but you can resolve a lot. Perhaps you have just one or two remaining issues that you can allow a judge to resolve in a pre-trial (an informal discussion of the issues) without the added expense of a guardian ad litem.
If you’d like to have your children’s other parent’s parenting time modified, restricted or supervised contact my Chicago family law firm to learn more about your options.
If your children’s other parent is trying to keep you from seeing your children or enforcing requirements such as supervision in order to see your children, contact my office to discuss your matter with an experienced Chicago divorce lawyer.