All parents say they want time with their children. But not all parents actually spend the time they are court ordered to have with their children. What happens when a parent skips the parenting time they’ve been awarded during and after an Illinois divorce or parentage case?
Parenting Time Orders In Illinois
Until there is an order entered by an Illinois domestic relations case, there is no right or obligation to exercise parenting time. Parenting time usually gets established almost immediately in a temporary hearing at the beginning of a divorce or parentage case.
“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)
The parties usually come to an agreement on parenting time on a temporary or permanent basis.
“Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time.” 750 ILCS 5/602.7(b)
Once the parenting time order is entered, the order can be enforced by either party in the court it was entered.
“Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered” 750 ILCS 5/511(a)
Obviously, enforcing the proper and timely turnover of a child pursuant to the order is of the highest importance to the court. But….what if a parent no longer exercises parenting time with their child?
Modification Of A Parenting Time Order In Illinois
The parent who actually does exercise time with their child could simply shrug their shoulders and enjoy the additional parenting time that the other parent has forfeited.
Sooner or later, that parent (and the child) will get tired of wondering if the other parent is going to show up on their allotted parenting time and modify the order to reduce or eliminate parenting time for the parent who is not showing up.
Illinois divorce and parentage courts typically do not like modifying Allocations of Parenting Time And Parental Responsibilities.
“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(b)
Is there any doubt that it is in the best interests of the child to change the ordered parenting time to what the parent will actually exercise? All that’s left is to prove the “changed circumstances.”
When a parent has voluntarily not seen their child or seen their child less than the order provides for a period of 6 months or more, that is good enough for the court to modify the order to reflect the new status quo.
“The court may modify a parenting plan or allocation judgment without a showing of changed circumstances if (i) the modification is in the child’s best interests; and (ii) any of the following are proven as to the modification:
(1) the modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification, provided that the arrangement is not the result of a parent’s acquiescence resulting from circumstances that negated the parent’s ability to give meaningful consent” 750 ILCS 5/610.5(e)
Simply taking full custody of a child with no consequence is not an option for many parents. The parent who remains in the child’s life still needs to arrange for childcare and other expenses incurred because they expected the other parent to care for the child per the order. In such cases, there are penalties for the parent who skips their parenting time.
Penalizing Parents Who Do Not Exercise Their Parenting Time In Illinois
If a parent is allocated parenting time and does not exercise that visitation, the other parent may impose financial penalties in a motion to enforce.
“An action for the enforcement of allocated parenting time may be commenced by a parent or a person appointed under Section 506 by filing a petition setting forth: (i) the petitioner’s name and residence address or mailing address, except that if the petition states that disclosure of petitioner’s address would risk abuse of petitioner or any member of petitioner’s family or household or reveal the confidential address of a shelter for domestic violence victims, that address may be omitted from the petition; (ii) the respondent’s name and place of residence, place of employment, or mailing address; (iii) the terms of the parenting plan or allocation judgment then in effect; (iv) the nature of the violation of the allocation of parenting time, giving dates and other relevant information; and (v) that a reasonable attempt was made to resolve the dispute.” 750 ILCS 5/607.5(b)
“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:
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 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.” 750 ILCS 5/607.5(c)(4),(8)
Daycare and babysitting costs incurred by a parent will be shifted to the parent who should have been watching the child.
Furthermore, 750 ILCS 5/607.5(c)(4) allows the court to force the other parent to post bond if they do not cooperate with the order as written (I have never seen this happen).
In reality, you can lead a horse to water…but you can’t make him drink. It is very sad when a parent will not physically be present for their child. With a motion to enforce, you can make the absent parent financially present.
Can You Hold A Parent Who Does Not Visit Their Children In Contempt In Illinois?
Most violations of a court order involve asking the court to hold the order violator in contempt.
When someone is held in contempt, they must correct the situation or, possibly, go to jail.
The contempt process is not a good solution for a parent who misses visitations.
“Civil contempt is a sanction or penalty designed to compel future compliance with a court order.” Felzak v. Hruby, 226 Ill. 2d 382, 391, 315 Ill.Dec. 338, 876 N.E.2d 650, 657 (2007)(Internal quotation marks omitted.)
“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…In other words, the contemnor must have an opportunity to purge himself of contempt by complying with the pertinent court order.” In re Marriage of Betts, 200 Ill. App. 3d 26, 49, 146 Ill.Dec. 441, 558 N.E.2d 404, 419 (1990).
The parent who doesn’t see his or her children will immediately purge the contempt when they begin seeing their children, rendering the contempt action moot.
There can be no penalty once the parent is visiting their child per the order. The court must stop the contempt action at that point.
“The penalties in a civil contempt case serve only to coerce the contemnor to comply with a court order, and they must cease when the contemnor complies.” People v. Covington, 395 Ill. App. 3d 996, 1006, 334 Ill.Dec. 792, 917 N.E.2d 618, 627 (2009)(quotations omitted)
For these reasons, contempt is not a viable enforcement mechanism to make a parent follow a court order regarding their own parenting time.
If your child’s other parent will exercise parenting time as granted in an order…I don’t know what to tell you. It is sad. It is pathetic. But, you need to move on with your life and your child’s life. File the appropriate motions to make the order reflect actual visitation and continue to force the parent to be financially responsible if nothing else.