Illinois law recognizes the importance of the relationship between the non-custodial parent and the child. Thus, the state has adopted laws to protect parents who have been subject to visitation interference. Visitation interference occurs when a parent intentionally frustrates the court-order visitation schedule of the other parent.
If visitation time between a parent and child has been blocked by the other parent, Illinois offers remedies in both the civil and criminal form. In terms of civil relief, a parent may seek to have the non-compliant parent held in contempt of court for violating a visitation order.
In order to prove a case for contempt of court, the aggrieved parent must be able to show that there was an order for visitation, the terms of the order were clear, and that the other parent wilfully violated the terms of the order without compelling cause or justification. If the court finds the non-compliant parent in contempt, it may order additional visitation to make up for the time missed. The court may also order the non-compliant parent to pay the other parent’s attorney fees. In cases where there is a persistent, ongoing pattern of non-compliance with visitation orders, the court may even order a change of custody.
A parent may also seek a finding of visitation abuse under Section 607.1 of the Illinois Marriage and Dissolution of Marriage Act, which provides that such cases should be heard on an expedited basis.
In order to succeed on a civil claim of visitation abuse, the petitioning party must show that he or she was denied visitation as set forth in the order, or that the other parent exercised their own visitation rights in a harmful manner. The complaining party must prove that the non-compliant parent acted willfully and intentionally. In order to do so, it is typically necessary to prove a pattern of improper conduct. Visitation abuse often does not manifest itself directly, such as cases where one parent refuses to allow the other to take the child. In fact, visitation interference is typically indirect. For example, a parent may intentionally schedule activities or social events for the child on the non-custodial parent’s time. In other cases, a parent might fail to encourage the visitation, thereby improperly empowering the child to refuse to go.
In addition to civil remedies, a non-custodial parent who has been subject to constant and severe visitation interference by the custodial parent may also have remedies in the criminal court. If a court order for visitation has been blatantly violated, the police or State’s Attorney’s Office can charge the offending parent with visitation interference.
A first time violator of the criminal visitation statute is charged with a petty crime. In such cases, he or she is typically only required to pay a fine if found guilty. However, if multiple offenses occur, visitation interference may be charged as a misdemeanor. There are only a handful of legal defenses to a visitation interference charge, specifically as follows:
- Protecting the child from imminent physical harm;
- Mutual consent of all parties; or
- Otherwise authorized by law.
Some courts have taken the position that a criminal visitation interference charge is only available in cases where one party has sole custody, and not in cases where the parents have joint custody. Additionally, a criminal charge for visitation interference may have a serious impact on the outcome of a pending divorce or paternity case.
If you believe your visitation rights have been improperly interfered with, or if you find yourself defending an accusation of visitation interference, you should contact the experienced attorneys of Kollias P.C. for a free, 30-minute consultation to assess your legal rights and obligations.