Electronic Communication With A Child 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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Virtual Or Electronic Parenting Time In Illinois

Electronic Communication With A Child In Illinois

Being apart from one’s children is the worst part of a divorce. Thankfully, modern technology allows for regular phone calls, FaceTime and Zoom between parents and children during the other parent’s parenting time.

When is this electronic or virtual parenting time allowed after an Illinois divorce?

Virtual/Electronic Communication Between A Child And A Parent Is Governed By The Parenting Plan After An Illinois Divorce.

When the parents of a child have a divorce or parentage action pending in an Illinois divorce court, both parents must submit a proposed parenting plan.

“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)

A parenting plan must include “provisions for communications, including electronic communications, with the child during the other parent’s parenting time” 750 ILCS 5/602.10(f)(11)

Those provisions for electronic communication are up to each individual parent to propose and negotiate amongst themselves.

“[T]he parents may agree upon and submit a parenting plan at any time after the commencement of a proceeding until prior to the entry of a judgment of dissolution of marriage.” 750 ILCS 5/602.10(d)

If the parents cannot come to an agreement regarding electronic communication (or anything else regarding parenting) the parents must go to mediation.

“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist.” 750 ILCS 5/602.10(c)

If there’s no agreement regarding electronic parenting time (or any other parenting issue), the court will conduct a full evidentiary hearing to determine parenting time.

“In the absence of filing of one or more parenting plans, the court must conduct an evidentiary hearing to allocate parental responsibilities.” 750 ILCS 5/602.10(b)

An Illinois divorce court will always award electronic or virtual parenting time on a reasonable basis because “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 court doesn’t even have to adopt the parents’ electronic parenting time agreement if the court thinks the agreement is not in the child’s best interests. For example, the court can intervene when the parents agree to a nightly phone call that the judge thinks is past the child’s bedtime.

“If the court does not approve the parenting plan, the court shall make express findings of the reason or reasons for its refusal to approve the plan. The court, on its own motion, may conduct an evidentiary hearing to determine whether the parenting plan is in the child’s best interests.” 750 ILCS 5/602.10(d)

Parents often have unrealistic expectations of how long a child can maintain a phone call or a video call.

“Electronic communication is helpful in these situations, but a 4-year-old child has little patience for or understanding of the technology. Adults are better suited to using electronic communication with each other, even though doing so…is an inconvenience for the couple.” PD v. JACK A., 87 NE 3d 1040 – Ill: Appellate Court, 2nd Dist. 2017

Courts have seen overly cumbersome electronic communication agreements and will quickly modify them to accommodate the reality of the situation.

If the parties and the court forget to include language regarding electronic communication in the parenting plan, then whoever is exercising parenting time with the child will have complete control of the child’s communication with everyone…including the other parent while the child is in their care.

“A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time” 750 ILCS 5/602.5(d)

How To Enforce Electronic Or Virtual Parenting Time In Illinois

The parent who is exercising physical parenting time has a duty to follow the parenting plan and ensure that their child is communicating with the other parent pursuant to the parenting plan.

A failure to allow the child to communicate with the other parent will result in the court making a finding of indirect contempt against that parent.

Invariably, the parent who is frustrating the communication will blame the child. “Johnny doesn’t want to talk to his dad.”

Without further investigation, this will actually relieve the parent frustrating communication of any finding of contempt.

The parent frustrating the communication must merely show that “the violation was not willful and contumacious and that he or she had a valid excuse for failing to follow the order.” In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 50, 65 N.E.3d 878.

The admission that the child does not want to talk to the other parent allows other remedies, however. A court can make radical changes in a child’s schedule in order to re-establish a relationship with the parent they will not communicate with.

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)

“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider”

the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;

the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” (emphasis mine) 750 ILCS 5/600(c)

“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:

[P]ersistent 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.” (emphasis mine) 750 ILCS 5/603.10(b)

The parents must encourage their children to communicate with both parents or face radical changes in custody as a remedy for what may be perceived as parental alienation.

Electronic Parenting Time Is NOT a Substitute For In-Person Parenting Time In Illinois

While a phone call or a video call is great, it is not real parenting time. A parent should not accept electronic or virtual communication as a substitute for actual, in-person parenting time.

A “court may not use the availability of electronic communication as a factor in support of a removal of a child by the custodial parent from Illinois.” 750 ILCS 5/609(c) (West 2010)

If a court cannot consider electronic parenting time when allowing the removal of a child from Illinois, the court should not consider electronic parenting time as any kind of substitute for parenting time.

Electronic Or Virtual Parenting Time As A Substitute For In-Person Parenting Time

Sometimes something horrible happens where a child is no longer considered safe with in the direct presence and custody of a parent. If, God forbid, something terrible happens, the other parent will attempt to limit in-person parenting time to exclusively electronic or virtual parenting time for the sake of the child’s physical safety.

“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:

(1) 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)

Electronic or virtual communication may be the only reasonable substitute for a parent who is able to communicate with their child in a healthy way but is not able to guarantee that child’s safety in their presence.

If you are seeking electronic or virtual communication with your child or you are seeking electronic or virtual communication for your child and their other parent, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.