Posted on December 16, 2023

Visitation And An Absent Parent In An Illinois Divorce

When people break up, one parent usually leaves the home…and the children, too. In the midst of a break up, parents usually do not automatically craft a parenting schedule. Instead, the absent parent sees the children haphazardly…or not at all.

Children are usually angry at the absent parent no matter whose fault the absence is. When the parent wants to re-engage with the children, certain steps must be taken for the well-being of the children and to ensure the visitations go smoothly.

Under Illinois law, there are numerous tools that lawyers and courts can use to ensure that the renewed visitation by a parent is healthy for the children and the parent-child relationship.

Before A Court Order Is Entered

Illinois domestic relations court is available to all parents who cannot agree to their children’s parenting time. Illinois domestic relations courts schedule hearings to determine the best interests of the children when allocating parenting time. Parenting time hearings can take months to be finally heard.

In the interim, the parents must agree on a schedule for their children. The failure to agree will usually result in…nothing. A call to the police will simply result in the police officer directing the parents to file something in court.

Illinois courts can enter temporary parenting schedules before all the other issues in the divorce or parentage action are resolved.

“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)

Parenting time issues will NOT be heard by a court on an immediate (i.e. emergency) basis.

“Absent the risk of imminent harm or severe prejudice, the following matters will generally not be heard as an emergency:

Motions to establish or modify custody, set child support, paternity, or visitation, unless risk of imminent harm to child” Cook County Domestic Relations Administrative Order 2021 AO 3(2)

By the time an Illinois domestic relations court is willing to make a decision about the children’s parenting time, the children may have developed emotional issues which are preventing them from willingly spending time with that parent. In such a case, the Illinois courts need to accommodate the children in their transition back to spending time with both parents.

Guardian Ad Litems And Children Who Do Not Want To See A Parent

When children are angry at a parent, afraid of a parent or emotional to the point where they cannot let themselves be with a parent, the court needs to find out why the children have these emotions and what is in their best interests.

A domestic relations judge is overseeing more than 50 cases a day. A domestic relations judge has neither the time nor the ability to adequately investigate the inner emotional lives of the children caught between two feuding parents. Therefore, Illinois domestic relations judges often appoint a Guardian Ad Litem (usually referred to by the acronym “GAL”) or a Child Representative.

“A GAL is the ‘eyes and ears’ of the court.” In re Marriage of Wycoff, 266 Ill. App. 3d 408, 415 (1994)

A Guardian Ad Litem or a Child Representative have specific responsibilities to the children, the parents and the court.

“Every child representative, attorney for a minor child and guardian ad litem shall have the right to interview his or her client(s) without any limitation or impediment. Upon appointment of a child representative, attorney for the child or guardian ad litem, the trial court shall enter an order to allow access to the child and all relevant documents.
(c) As soon as practicable, the child representative, attorney for the child or guardian ad litem shall interview the child, or if the child is too young to be interviewed, the attorney should, at a minimum, observe the child. The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.
(d) The child representative, attorney for the child or guardian ad litem shall take whatever reasonable steps are necessary to determine what services the family needs to address the custody or allocation of parental responsibilities dispute, make appropriate recommendations to the parties, and seek appropriate relief in court, if required, in order to serve the best interest of the child.
(e) The child representative, attorney for the child or guardian ad litem shall determine whether a settlement of the custody or allocation of parental responsibilities dispute can be achieved by agreement, and, to the extent feasible, shall attempt to resolve such disputes by an agreement that serves the best interest of the child.” Ill. Sup. Ct. R. 907(b-e)

You will notice that the Guardian Ad Litem’s and Child Representatives have both an investigatory purpose, an instructive purpose and a conciliatory purpose.

Guardian Ad Litems and Child Representatives will do what they can, but usually they need the input and help of a therapist to resolve parenting issues when children have not seen a parent for an extended period of time.

Reintegrative Therapy And Children Who Have Not Seen A Parent In An Illinois Divorce

People with emotional problems seek therapy. Children with emotional issues such as the complete detachment from a parent who not been recently present in their lives also need therapy.

The therapy necessary for a child to reconnect with an absent parent can have many names: reintegrative therapy, conciliatory therapy, or reintroduction therapy. There are numerous therapists throughout Illinois who provide such services.

Illinois domestic relations courts can order therapy.

“The court may order individual counseling for the child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties, if it finds one or more of the following:(1) both parents or all parties agree to the order; (2) the child’s physical health is endangered or that the child’s emotional development is impaired” 750 ILCS 5/607.6(a)

Therapy is not free and the costs of the children’s therapy will be divided amongst the parents.

“The court may apportion the costs of counseling between the parties as appropriate.” 750 ILCS 5/607.6(b)

Hopefully, therapy will allow the children to feel safe again with the parent who they had not seen. This can allow the Guardian Ad Litem or Child Representative to make a recommendation to the court that parenting time commence with the once absent parent.

Also, hopefully, the other parent will allow and encourage that parenting time. Sadly, it is often the case that the other parent is the cause of the children’s hesitancy to see the absent parent.

Can A Parent Demand To See Their Children After An Absence In An Illinois Divorce?

Illinois domestic relations courts must allocate parenting time between parents.

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

If an agreement cannot be reached between the parents, the parent who does not have parenting time can insist on a hearing to allocate parenting time.

Parents who have little to no parenting time need to invoke a different standard than the “best interests” standard. Parents with little to no parenting time should get parenting time unless their presence is a serious endangerment to the child.

If the court is proposing a visitation that has less than overnights, that is a restriction on parenting time.

“A visitation restriction, thus, must meet the serious-endangerment standard, which is more onerous than the best-interests standard…Examples of restrictions include a termination of visitation, a prohibition on overnight visitation, or a requirement of supervised visitation.” In re Parentage of K.E.B., 2014 IL App (2d) 131332

When an Illinois domestic relations court is ordering restricted parenting time, that court must first conduct a hearing. Any time an Illinois statute requires a hearing, an Illinois court must provide that hearing.  In re Marriage of Flannery, 328 Ill. App. 3d 602, 605 (2002)

The Illinois Marriage And Dissolution Of Marriage Act requires a hearing for a court to enter a reduced parenting time order.

“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 603.10(a)

After that hearing, the court is going to have to make findings that the parent requesting time with the children engaged in “conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development.” Otherwise, that parent is getting overnights…at a minimum.

“A restriction of visitation is an action which limits, restrains, or confines visitation within bounds. A termination of visitation is a restriction, as is a prohibition on overnight visitation.” In re Marriage of Lee, 615 NE 2d 1314 – Ill: Appellate Court, 4th Dist. 1993

When One Parent Is Convincing The Children Not Spend Time With The Other Parent

Being an absent parent whose children are upset is one thing. Having a parent who turns those children against the absent parent is another.

When allocating  temporary and permanent parenting time, an Illinois domestic relations court will consider the “[t]he willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” 750 ILCS 5/602.5(c)(11) and 750 ILCS 5/602.7(b)(13)

One parent’s failure to encourage a relationship with the other parent can result in extreme orders from an Illinois domestic relations court.

In one Illinois appellate decision “after hearing testimony from both parents, the court awarded the father sole custody, finding that the mother lacked credibility and that she had engaged in a pattern of interference and otherwise sought to alienate the child from a healthy relationship with her father and his family.” MARRIAGE OF DOWD AND DOWD, 2016 IL App (1st) 160098 – Ill: Appellate Court, 1st Dist., 6th Div. 2016 (quotations omitted)

While the term “parental alienation” is not scientifically accepted, the term is still a useful concept to explain a parent who has convinced a child that that they do not need to see their other parent.

Illinois domestic relations courts can find that a child “need[s] to spend an uninterrupted extended period of time with [the alienated parent], with less interference from [the other parent], to thwart the parental alienation caused by [the other parent]” In re Marriage of Divelbiss, 719 NE 2d 375 – Ill: Appellate Court, 2nd Dist. 1999

If you have been absent from your children’s lives and are now trying to be the parent they deserve, you should be commended. While it is unfortunate that you must turn to the court, I would be happy to help you and your children re-establish the bond you once had.

Contact my Chicago, Illinois family law firm to speak with an experienced Illinois family law attorney.

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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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