Modification of Visitation Orders
Over time, the needs of children change, and so do the circumstances of their families’ lives. Children grow older. Parents move, change jobs, and their work schedules change. Sometimes, children grow closer to the non-custodial parent, sometimes they drift apart. It may even be the case that one or both parents haven’t been following the visitation order currently in place. As a result, the visitation schedule that had been best for the child in the past may now be unworkable. In such cases, modification of visitation orders may be necessary.
Illinois law allows visitation schedules to be modified by the court whenever the modification would serve the best interests of the child or children. The burden of proof is on the party seeking the modification. Although there is no statutory requirement that the petitioning party show a change in circumstances from the last order, generally speaking, this is a practical requirement. Courts will presume that the previous order was in the best interests of the child. If nothing has changed, it will be difficult for the parent seeking the modification to articulate why the modification is best for the child.
If the parties are able to reach an agreement regarding visitation, court must still approve of the agreement in order for it to be legally enforceable. If the parties are unable to reach an agreement on their own, in most cases, the court will require the parties to attend mediation in an effort to resolve the issue. If mediation is unsuccessful, the court may appoint a guardian ad litem, attorney for the child, child’s representative, or in some cases, a custody evaluator. In each of those cases, the court would be seeking the participation of a third party in order to determine the visitation schedule that serves the child’s best interests.
The “best interests” factors are the same for custody as they are for visitation, and can be summarized below as follows:
- The wishes of each parent on the issue of custody;
- The wishes of the child on the issue of custody;
- The child’s interaction and interrelationship with the parent(s), siblings, and any other person who may significantly affect the child’s best interest;
- The child’s adjustment to his home, school and community;
- The mental and physical health of all individuals involved;
- Any physical violence of threat of physical violence by the child’s potential custodian, whether directed against the child or another person;
- The occurrence of ongoing or repeated abuse as defined by the Illinois Domestic Violence Act;
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
- Whether either of the parents is a sex offender; and
- The military status of the parents
In addition to those factors, the court can also consider any other factor that it deems relevant to the best interests of the child. Accordingly, the courts have broad discretion in determining whether or not a modification is appropriate.
If you require a review of your current visitation schedule or parenting plan, you should speak with a knowledgeable family law attorney to assess your options and determine the best strategy for your case. At Kollias & Giese, P.C., we know that every family has different schedules, and that what works best for one family may not work best for yours. We have decades of experience negotiating and drafting a wide spectrum of custody and visitation plans for clients throughout the greater Chicago area. In cases where restrictions are appropriate, we have experience successfully litigating such cases to ensure the safety of the children.