Illinois Divorce and Family Law Weblog

Helping You and Your Family get through DivorceSM.
Weblog of DuPage County Attorney Raiford D. Palmer, focusing on divorce and family law.
(Copyright© 2005-2008 by Raiford D. Palmer. All rights reserved.) This blog is for advertising only and the contents are not legal advice.

Tuesday, February 19, 2008

Illinois Child Visitation - Divorce - Denial of Visitation Can't be Blamed on the Kids

In Illinois, a custodial parent cannot deny visitation to the other parent claiming that the kids don't want to visit the non custodial parent. The Second District Appellate Court stated in Marriage of David Charous and Jodi Charous, 368 Ill.App.3d 99, 110 (2006):

Illinois courts have held that a custodial parent may not disregard the visitation requirements of a dissolution judgment merely because his or her children do not desire to visit the noncustodial parent. See In re Marriage of Marshall, 278 Ill. App. 3d 1071, 1082-83 (1996); Doggett v. Doggett, 51 Ill. App. 3d 868, 871-72 (1977). Where a dissolution judgment places the ultimate responsibility for compliance with the visitation provisions upon the custodial parent, the custodial parent cannot escape his or her duty to comply with the visitation provisions by "attempting to shift this burden to the discretion of [his or] her children." Doggett, 51 Ill. App. 3d at 872 (affirming trial court's contempt finding against parent who failed to comply with visitation provisions because the children did not want to visit noncustodial parent). A parent must comply with court-ordered visitation even where the child has expressed hostility toward the other parent. In re Marriage of Reed, 100 Ill. App. 3d 873, 877 (1981) (noting that visitation affords members of a family the opportunity to communicate with each other, and thus diminish hostilities and foster an atmosphere in which a renewal of affection may take place).

The bottom line: "The kids don't want to see you tonight" is no excuse. The custodial parent must see to it that visitation takes place. Children oftentimes don't want to do anything other than what they are doing, and it is the parents' responsibility to make them visit the other parent for the good of the kids. The custodial parent also must take into account the effect scheduling activities will have on the other parent's visitation, and depending on the parenting agreement, might need to obtain permission in advance from the non custodial (or non-residential) parent.

The Charous case is also a good example of what can go wrong with visitation after entry of a divorce decree, and what the non-custodial parent was forced to do to get compliance. The case also discussed other violations of the parenting agreement: mother communicating financial disputes with father through the kids; mother planning events for the kids during father's visitation time without his consent; and mother unilaterally removing the father from the school contact list. All were disapproved by the Appellate Court.

If you have an Illinois visitation or custody matter, trial, or appeal, please contact us. We concentrate in DuPage, Cook, and Will Counties and would be happy to meet with you. Call 630.434.0400 Ext. 165, or email.

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Thursday, January 17, 2008

Britney Spears' Custody Problems - and Illinois Child Custody

This story provides an update on the pathetic story of Britney Spears. Ex-husband Kevin Federline now has sole custody of the former couple's two children--and Ms. Spears still is denied any visitation. The Court denied Ms. Spears visitation (parenting time) with the children due to her recent, much publicized obnoxious behavior and reported drug use. On January 4, 2008, the Court terminated her visitation rights and awarded custody of the children to Mr. Federline. Her counsel attempted to restore visitation with the young children, but the Court denied the petition after a hearing--a hearing Ms. Spears failed to attend.

Many clients ask about Illinois sole custody and limits to visitation in Illinois. They would like to know what kind of rules exist regarding an award of sole custody in Illinois, or regarding limitations on visitation (parenting time). The Courts in Illinois (and across the country) always uses the "best interest of the child" standard when deciding these difficult issues.

This case provides a classic example of "don'ts" for a custodial parent - drug use, wild behavior, alcohol abuse, et cetera all all the types of behavior a court will consider very strongly in awarding sole custody to a parent, even following a settlement or judgment entered following trial of a case. The Court is always looking out for the best interests of the children, and will take this kind of misbehavior into account in considering changing the custody of children and in limiting or cutting off visitation. Finally - don't miss a court hearing when your lawyers ask you to appear - typically your appearance is required so you can testify on your own behalf and speak up for yourself. Or, you may need to be available to negotiate a resolution of a problem. Without a witness present in court to testify, a petition is worthless.

In most cases the petition may not even be argued and heard in a full hearing, but the threat of the hearing (with the client and/or other witnesses present) is enough to motivate the parties to attempt to settle the issue and avoid a hearing entirely.

If you have an Illinois child custody or visitation case, in DuPage, Cook, or Will County, please call us at 630.434.0400 Ext. 165, or email.

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