When parents split up they must immediately make arrangements to keep the children’s lives and schedules as stable as possible. Maintaining a consistent schedule for the children is difficult in the opening phases of a divorce. Typically, one parent disappears from the home at the initial stages of the divorce and is absent from the children’s lives until further orders are made for temporary visitation and then final custody.
What happens to visitation and custody at the beginning of a divorce or parentage action before any orders are entered?
It first has to be determined whether the courts even consider the parents to have any rights over the child.
Determining Who Is A Parent When There Is No Court Order In Illinois
If the parties are not married, the father is not deemed to have any presumptive rights until a court has adjudicated him to be the parent.
To adjudicate Is to “rule on judicially” Black’s Law Dictionary (11th ed. 2019).
“An individual may not be adjudicated to be a parent unless the court has personal jurisdiction over the individual” 750 ILCS 46/603(b)
The father will not be deemed a parent with rights until an order is issued by the court confirming they are the father. Until the unmarried father of a child declares himself the father via court order…he has no rights to that child. Declaring yourself the father is as simple as signing the Voluntary Acknowledgment of Paternity.
“Voluntary acknowledgment. A parent-child relationship may be established voluntarily by the signing and witnessing of a voluntary acknowledgment” 750 ILCS 46/301
Mothers (due to biology) are automatically conferred rights to the child.
“The parent-child relationship is established between a woman and a child by:(1) the woman having given birth to the child” 750 ILCS 46/201(a)
Married parents are presumed to the parent of the child without a court order.
“A person is presumed to be the parent of a child if:(1) the person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship” 750 ILCS 46/204(a)
If the parties are married…nothing happens before an order is entered. If the parents are married, the court presumes both parents have their children’s best interests. The court won’t intercede regarding a married couple’s parenting time until asked.
“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)
Determining the custody of a child before an order is entered is really determining the parenting time of each parent until the final issues are adjudicated.
Parenting Time Before A Court Order Is Entered In Illinois
Parents who are legally presumed to be the parents of the child without a court order still don’t have an automatic visitation schedule….even if they are presumed to be a fit parent.
Parents can agree to a temporary parenting schedule at any moment once a divorce or parentage action is filed.
“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, if you could agree on a parenting schedule…you probably would not need a court order.
Parents who cannot agree on a schedule before a court order is entered must manage their best (after all, they are the grown ups) while the file and wait on a motion for temporary parenting time to be entered.
A motion for temporary parenting time will not be heard immediately. In Cook County, Illinois, you cannot bring parenting time motions before the court as an emergency.
“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)
You will have to co-parent for some time before the court issues an order for visitation. This time between filing the petition for temporary parenting time and the court ordering parenting time is crucial…because it will show the court how you behave when there are no orders.
When awarding 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)
The parent who denies parenting time to the other parent in the absence of the order can expect that singular factor to weigh heavily in the mind of the court.
“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)
Furthermore, an Illinois domestic relations court will likely appoint a Guardian Ad Litem or Child Representative to investigate the parenting dynamic before ordering parenting time.
“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
A parent’s behavior before and after an order is entered will be in that Guardian Ad Litem’s report to the judge.
Subsequent Orders For Parenting Time In An Illinois Divorce Or Parentage Action.
Temporary parenting time orders are NOT final. A temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)
Each parent must submit a proposed final parenting plan within 120 days of filing their petition for dissolution or petition for parentage.
“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)
Eventually the court will propose or agree to a final schedule with the child based on the parent’s best interests. “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)
If that final parenting time order never gets entered…any temporary orders get extinguished and you are back to square one.
“A temporary order allocating parental responsibilities shall be deemed vacated when the action in which it was granted is dismissed, unless a parent moves to continue the action for allocation of parental responsibilities filed under Section 601.5.” 750 ILCS 5/603.5(b)
Kidnapping And Abduction When There Is No Parenting Time Order In Illinois
If one parent takes the child without the other parent’s permission, that is not kidnapping.
Kidnapping in Illinois is the “[c]onfinement of a child under the age of 13 years is against his will within the meaning of this Section if such confinement is without the consent of his parent or legal guardian.” 720 ILCS 5/10 1(d)
A parent who has the child is consenting to whatever is going on…even if the other parent does not consent. You cannot kidnap your own child.
But, a parent who withholds a child in the absence of a court order can be guilty of child abduction.
“A person commits the offense of child abduction when he or she does any one of the following:
Being a parent of the child, and if the parents of the child are or have been married and there has been no court order of custody, knowingly conceals, detains, or removes the child with physical force or threat of physical force.” 720 ILCS 5/10-5(b)(7)
Child abduction is a class 4 felony in Illinois (1 to 3 years in prison). So, both parents (if legally deemed parents) must endeavor to agree to a parenting schedule so as to not technically commit child abduction.
The possibility of either parent being charged with child abduction is a work around that allows for emergency orders despite Cook County’s approbation against emergency custody orders.
The definition of “detains” in the absence of a child custody order is simply too broad. ““Detains” means taking or retaining physical custody of a child, whether or not the child resists or objects”. 720 ILCS 5/10-5(a)(2)
Either parent could be guilty of a class 4 felony if the court does not enter a parenting time order immediately. If that’s not an emergency…what is?
Coming to a temporary parenting agreement is not that hard. Each parent used to see the child regularly….just keep doing that. If you cannot agree to a parenting schedule in spirit or in writing, you must go to court.
Contact my Chicago, Illinois family law firm to learn more about how to obtain parenting time before and after a court order is entered.