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Withholding or Denying Parenting Time In Illinois
When your child’s parent is not allowing parenting time, you can always call the police and show the police officers the court order. If the police are willing to read a 12 page Allocation of Parenting Time and Parental Responsibilities and then interpret that language based on the facts in front of them…then the police will force the other parent to turn over the child.
Often, Illinois parenting plans are not crystal clear and the police will simply tell you to “go to court.”
More likely, you will not want to begin every visitation with your child by calling the police. In lieu of the police, you can before an Illinois court to enforce your parenting time.
In Illinois, when a temporary order awarding parenting time is entered or an allocation of parenting time or parental responsibilities is entered, those orders have the full authority of law. Illinois parents must follow those parenting time orders (within reason).
When a parent does not follow those the parenting time orders, there can be severe consequences…but only if the other parent demands consequences.
Is Denial Of Parenting Time A Crime In Illinois?
Withholding a child from another parent in violation of a court order is a crime in Illinois.
“Every person who, in violation of the visitation, parenting time, or custody time provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation, parenting time, or custody time commits the offense of unlawful visitation or parenting time interference.” 720 ILCS 5/10-5.5(b)
Withholding parenting time is a petty offense in Illinois.
“A person committing unlawful visitation or parenting time interference is guilty of a petty offense” 720 ILCS 5/10-5.5(c)
A petty offense is not a big deal. A petty offense is just a fine with no jail time.
“Unless otherwise specified by law, the minimum fine is $75. A defendant may be sentenced to pay a fine not to exceed $1,000 for each offense or the amount specified in the offense, whichever is less.” 730 ILCS 5/5-4.5-75
It’s only on the third violation of a visitation order that a criminal court has the power to (maybe) imprison someone.
“Any person violating this Section after 2 prior convictions of unlawful visitation interference or unlawful visitation or parenting time interference, however, is guilty of a Class A misdemeanor.” 720 ILCS 5/10-5.5(c)
Almost any defense will be sufficient to void a charge of unlawful visitation or parenting time interference.
“It is an affirmative defense that:…a person or lawful custodian committed the act to protect the child from imminent physical harm, provided that the defendant’s belief that there was physical harm imminent was reasonable and that the defendant’s conduct in withholding visitation rights, parenting time, or custody time was a reasonable response to the harm believed imminent…[or] the act was committed with the mutual consent of all parties having a right to custody and visitation of the child or parenting time with the child” 720 ILCS 5/10-5.5(g)
A parent saying, “I didn’t think it was safe for my child to be with the other parent” or “I could have sworn we agreed that it wasn’t his weekend” will be sufficient to avoid…a $75 find.
Clearly, prosecuting withholding parenting time in the criminal courts is not a worthwhile endeavor. Any parent whose parenting time is being denied should complain in the civil domestic relations courts.
Keeping A Parent From Seeing A Child Before A Parenting Schedule Is Entered In Illinois
Even before a visitation or parenting time order is entered, both parents still have a right to see their children.
Once a divorce is served on the other parent (or they file their appearance), both parents cannot actively keep the children from the other parent.
“Upon service of a summons and petition or praecipe filed under the Illinois Marriage and Dissolution of Marriage Act or upon the filing of the respondent’s appearance in the proceeding, whichever first occurs, a dissolution action stay shall be in effect against both parties, without bond or further notice, until a final judgement is entered, the proceeding is dismissed, or until further order of the court:
- restraining both parties from physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party; and
- restraining both parties from concealing a minor child of either party from the child’s other parent.” 750 ILCS 5/501/1(a) (emphasis mine)
“’Interference with personal liberty’ means committing or threatening physical abuse, harassment, intimidation or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.” 750 ILCS 103(9)
If either parent keeps the child from the other parent or does something which makes the other parent not want to see their child…that is a violation of the dissolution action stay.
In my 16 years of practice, I have never seen anyone invoke the dissolution action stay. The warning is right on the official summons!
Most people seem to want to lock down an actual parenting schedule before enforcing their time with their children.
Denying Parenting Time And Contempt Of Court In Illinois
An order granting parenting time was signed by a judge. Violating that order is an affront to that judge and the dignity of the court.
Someone who violates a parenting order diminishes the “dignity and authority of the court” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 173 N.E.2d 417 (Ill. 1961)
Judges are not going to be happy with someone who violates their orders. Violating a judge’s order outside of the courtroom is called “indirect civil contempt of court.” The question is…what can they do about it?
“Civil contempt is a sanction or penalty designed to compel future compliance with a court order.” Felzak v. Hruby, 226 Ill. 2d 382, 391, 876 N.E.2d 650, 657 (2007)
An Illinois judge can do virtually ANYTHING in order to enforce his or her orders. An Illinois divorce judge can order compliance, fines, even jail time.
But, a civil contempt action can only go so far in order to enforce the order for parenting time.
“Civil contempt proceedings have two fundamental attributes: (1) The contemnor must be capable of taking the action sought to be coerced and (2) no further contempt sanctions are imposed upon the contemnor’s compliance with the pertinent court order.” Betts, 200 Ill. App. 3d at 44. “In other words, the contemnor must have an opportunity to purge himself of contempt by complying with the pertinent court order.” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 410 (Ill. 1961)
A parent can’t really deny parenting time if they’re in jail…so, it’s kind of an empty threat to throw the parent in jail for a violation of a parenting time order.
“They are imprisoned only until they comply with the orders of the court, and this they may do at any time. They carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 460 (8th Cir. 1902)
The worst that will really happen in a contempt action is that the violating parent will have their wrist slapped by a “finding of contempt” and then be responsible for the attorney’s fees associated with the contempt action.
“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.” 750 ILCS 508(b)
How To Address The Abuse Of Parenting Time In Illinois
“In addition to the trial court’s inherent power to enforce its orders through contempt, the legislature enacted section 607.5 of the Dissolution Act, setting forth expedited procedures for the enforcement of allocated parenting time.” In re AM, 2020 IL App (4th) 190645 – Ill: Appellate Court, 4th Dist. 2020
Filing a petition to enforce parenting time under the Illinois statute 750 ILCS 5/607.5 has everything you need to fight the denial of your court ordered visitation.
“If the court finds by a preponderance of the evidence that a parent has not complied with allocated parenting time according to an approved parenting plan or a court order, the court, in the child’s best interests, shall issue an order that may include one or more of the following:
- an imposition of additional terms and conditions consistent with the court’s previous allocation of parenting time or other order;
- a requirement that either or both of the parties attend a parental education program at the expense of the non-complying parent;
- upon consideration of all relevant factors, particularly a history or possibility of domestic violence, a requirement that the parties participate in family or individual counseling, the expense of which shall be allocated by the court; if counseling is ordered, all counseling sessions shall be confidential, and the communications in counseling shall not be used in any manner in litigation nor relied upon by an expert appointed by the court or retained by any party;
- a requirement that the non-complying parent post a cash bond or other security to ensure future compliance, including a provision that the bond or other security may be forfeited to the other parent for payment of expenses on behalf of the child as the court shall direct;
- a requirement that makeup parenting time be provided for the aggrieved parent or child under the following conditions:(A) that the parenting time is of the same type and duration as the parenting time that was denied, including but not limited to parenting time during weekends, on holidays, and on weekdays and during times when the child is not in school;(B) that the parenting time is made up within 6 months after the noncompliance occurs, unless the period of time or holiday cannot be made up within 6 months, in which case the parenting time shall be made up within one year after the noncompliance occurs;
- a finding that the non-complying parent is in contempt of court;
- an imposition on the non-complying parent of an appropriate civil fine per incident of denied parenting time;
- a requirement that the non-complying parent reimburse the other parent for all reasonable expenses incurred as a result of the violation of the parenting plan or court order; and
- any other provision that may promote the child’s best interests.” 750 ILCS 5/607.5(c)
The abuse of allocated parenting time statute has all the powers of a finding of contempt: fines, attorney fees…even a finding of contempt. In addition, make up time and even a modification of parenting time may be provided by the court after a hearing under the abuse of allocated parenting time statute.
Usually, the threat of attorney’s fees and make up time are enough to ensure compliance with the court order. If the other parent still refuses to comply with a parenting time order, then the court has enormous punitive powers available under this statute.
“When the court issues an order holding a party in contempt for violation of a parenting time order and finds that the party engaged in parenting time abuse, the court may order one or more of the following:
- Suspension of a party’s Illinois driving privileges pursuant to Section 7-703 of the Illinois Vehicle Code until the court determines that the party is in compliance with the parenting time order. The court may also order that a party be issued a family financial responsibility driving permit that would allow limited driving privileges for employment, for medical purposes, and to transport a child to or from scheduled parenting time in order to comply with a parenting time order in accordance with subsection (a-1) of Section 7-702.1 of the Illinois Vehicle Code.
- Placement of a party on probation with such conditions of probation as the court deems advisable.
- Sentencing of a party to periodic imprisonment for a period not to exceed 6 months; provided, that the court may permit the party to be released for periods of time during the day or night to:(A) work; or(B) conduct a business or other self-employed occupation.
- Find that a party in engaging in parenting time abuse is guilty of a petty offense and should be fined an amount of no more than $500 for each finding of parenting time abuse.” 750 ILCS 5/607.5(f)
Proceeding under 750 ILCS 5/607.5, abuse of allocated parenting time has all the power of a criminal charge, a contempt charge and a motion for modification of parenting time.
Abuse Of Allocated Parenting Time As A Cure For Parental Alienation In Illinois
One of the purposes of the Illinois Marriage and Defense of Marriage Act is to “recognize the right of children to a healthy relationship with parents, and the responsibility of parents to ensure such a relationship” 750 ILCS 5/102(6)
“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
Once that parenting time has been established by an Illinois court of law, the parent denying the parenting time (by any means) must be held accountable.
Invoking 750 ILCS 5/607.5, Abuse Of Allocation Of Parenting Time, will be a sufficient conduit to establish that something akin to parental alienation is occurring.
You do not need a psychiatrist or anyone to describe a “syndrome” in order to get the parenting time you deserve. You just have to show that you’re being denied the parenting time you’ve been awarded.
This, coupled with a motion to modify parenting time based on the substantial change in circumstance of the denial of parenting time should be sufficient to gain enough time with your child to reestablish a parent-child relationship no matter what the other parent does.
How To Fight A Charge Of Withholding Parenting Time In Illinois?
If the court order requires parenting time that you believe is no longer in the child’s best interest, you must file a motion to modify the parenting time requesting that the other parent’s visitation be limited appropriately.
Until then, you must follow the order. There is no exception in 750 ILCS 5/607.5 for “they had a good reason.”
If your child is truly in danger from a visit with the other parent, you need to file a petition for an emergency order of protection where an Illinois court must find “that there is an immediate and present danger of abuse” 750 ILCS 60/217
If you are accused of withholding parenting time and are able to convince an Illinois court after a full evidentiary hearing that you did not violate the order, you may be awarded attorney’s fees.
“If the court finds that the respondent in an action brought under this Section has not violated the allocated parenting time, the court may order the petitioner to pay the respondent’s reasonable attorney’s fees, court costs, and expenses incurred in the action.” 750 ILCS 5/607.5(d)
If your child’s other parent is denying your court ordered parenting time, it will not enough to show up at the parent’s house with a court order. Eventually, you will need to appear before a judge to get full and permanent compliance from your child’s other parent. Make the other parent take you seriously! Go to court with an experienced Chicago divorce attorney. Contact my Illinois family law firm today for a free consultation.