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VISITATION |
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(For the purpose of this Q&A it is assumed the mother is the child's custodian because this is the usual case.) |
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The mother tells me I cannot visit until I am current in my child support payments. Is she right? |
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Can visitation be withheld because the children say they do not want to visit? |
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What visitation is customarily ordered by the court, or agreed upon by the parents? |
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What is the most effective way of enforcing visitation? |
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Do these rules regarding visitation also apply to non-marital children? |
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Is the custodian usually sentenced straight to jail if she is found in contempt for visitation denial? |
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Can the custodian's attempts to frustrate visitation result in a transfer of custody? |
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| Q: |
The mother tells me I cannot visit until I am current in my child support payments. Is she right? |
| A: |
No, absolutely not. The law specifically states child support and visitation are not related. You can enforce your visitation despite owing child support. On the other hand, you can't withhold child support because you are not receiving visitation. |
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| Q: |
Can visitation be withheld because the children say they do not want to visit? |
| A: |
No. A child and the custodian must obey the court ordered visitation. There is no age at which a child can decide (until 18). It is not an excuse to contempt proceedings against the custodian that the children do not want to visit. In fact, it may be possible to also have older children held in contempt. But there should be a common sense approach; the visitation should be made enjoyable for the children, and especially as children grow older the father should allow for the fact that the children will sometimes have commitment which interfere with visitation. |
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| Q: |
What visitation is customarily ordered by the court, or agreed upon by the parents? |
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(1) Alternating weekends starting Saturday morning, to Sunday evening; or sometimes from after school/work Friday with a return to school/home Monday morning.
(2) Alternating legal holidays; split or alternating Christmas and spring holidays; special arrangements for Christmas Eve, Christmas Day and children's birthdays.
(3) Not less than two weeks during the summer, but in exceptional cases, a substantial part of the summer vacation. |
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| Q: |
What is the most effective way of enforcing visitation? |
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Yes, but so far contempt proceedings have been more effective. The crime of "Unlawful Visitation Interference" may be reported to any law enforcement officer. The first police officer issues a notice to the children's custodian to appear in court. The first two convictions are petty offenses, punishable only by a fine which cannot exceed $1,000. After two convictions the offense is a Class A misdemeanor punishable by up to one year in jail and a fine of not more than $2,500. |
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| Q: |
Do these rules regarding visitation also apply to non-marital children? |
| A: |
Yes, as long as there is court ordered visitation. |
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| Q: |
Is the custodian usually sentenced straight to jail if she is found in contempt for visitation denial? |
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No. Judges do not like to send people to jail, so they give the custodian a second chance. The judge will make a finding of contempt and will order a jail sentence, but then the judge will stay the punishment (suspend the punishment) providing there is future obedience to the court order for visitation.. |
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| Q: |
Can the custodian's attempts to frustrate visitation result in a transfer of custody? |
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No, not usually. A transfer of custody must be based on the best interest of the child. A transfer of custody should be not used to punish the custodian. In cases of extreme visitation denial and the custodian alienating the children from the other parent, there have been a few cases allowing a transfer of custody. [See Gitlin on Divorce: A Guide to Illinois Matrimonial Law, Ch. 17, Sec. 17-3(3)(1).] |
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