Court Ordered Visitation/ Parenting Time: What if the Children Don’t Want to Go?

What happens if you have a court-ordered parenting schedule, but the children don’t

want to go with the other parent?

Do they still have to go, or can you refuse to send them?

The short answers is: you still have to follow the court order.

While every case outcome turns on a unique set of facts and circumstances, Illinois law

is clear that kids don’t call the shots when it comes to following a court order for

parenting time.

“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.” IRMO: Charous, 368 Ill.App.3d 99 (2 nd Dist. 2006)

“A parent must comply with court-ordered visitation even where the child has expressed

hostility toward the other parent.” Id.

If you’re being denied parenting time due to this excuse, you can and should take

action.

750 ILCS 5/607.5 Allows parties to file a Petition seeking a finding from the court of

“Abuse of Allocated Parenting Time”

The requirements are:

• A court order establishing a set parenting schedule

• A factual allegation that one party to the order broke the rules

If the court finds by a preponderance of the evidence (more likely than not) that one

parent didn’t comply with the court order, it can issue an order including one or all of the

following:

(1) an imposition of additional terms and conditions consistent with the court's previous allocation of parenting time or other order;

        (2) a requirement that either or both of the parties attend a parental education program at the expense of the non- complying parent;

        (3) 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.

Counseling ordered under this Section is subject to the Mental Health and Developmental Disabilities Confidentiality Act and the federal Health Insurance Portability and Accountability Act of 1996;

        (4) 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;

        (5) 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 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;

        (6) a finding that the non-complying parent is in contempt of court;

        (7) an imposition on the non-complying parent of an appropriate civil fine per incident of denied parenting time;

        (8) 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

        (9) any other provision that may promote the child's best interests.

    (d) In addition to any other order entered under subsection (c),

except for good cause shown, the court shall order a parent who has

failed to provide allocated parenting time or to exercise allocated

parenting time to pay the aggrieved party his or her reasonable attorney's fees, court costs, and expenses associated with an action brought under this Section. 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.

The court’s powers don’t stop there. If the court finds the offending parent has willfully

violated the prior order without a good reason, the court can suspend that parent’s

driver’s license, place them on probation, and even imprison them for set periods of

time:

 (f) 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:

        (1) 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.

         (2) Placement of a party on probation with such conditions of probation as the court deems advisable.

         (3) 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.

         (4) 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.

If you don’t hold the other parent accountable, your relationship with your children will

pay the price. Proving the other side isn’t following the rules can entitle you to attorney

fees and additional relief.

If you’re the parent allowing the children to dictate their own schedule in the face of a

court order, you need to be aware of the potential consequences. The better course of

action may be to ask the court to change the parenting schedule to something that

serves your children’s best interests.

”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.” Id.

Going to court can be expensive and stressful. Going to court without a strategy, or

worse yet, a flawed strategy, is an invitation for disaster.

A skilled family law attorney can put you back in the driver’s seat. Don’t play games

with court orders when one phone call can save you from persistent aggravation and

heartache.