If you do not receive primary residential responsibilities regarding your children during your divorce, you will almost certainly be awarded visitation rights, now referred to as parenting time. However, all visitation is not created equal, especially if there have been alleged problems with your conduct toward the children or your former spouse. It is a good idea to try and familiarize yourself with the types of restrictions on your parenting time that you may face if you have encountered allegations of being a danger to your child.

Supervised Visitation

By far the most common type of restriction placed on the exercise of parenting time is supervision, meaning that the other parent or a third party must be present at all times during the restricted parent’s parenting time. Generally, if any allegation of dangerous conduct is made during divorce proceedings, a hearing will be held on the subject. If the conduct is proved by a preponderance of the evidence and that the child’s physical, mental or emotional health would be endangered by unsupervised parenting time with that person, supervision is the most common remedy assessed. The Department of Children & Family Services (DCFS) has the right to oversee continuing supervised visitation, if it is deemed warranted.

Illinois law states that the both of a child’s parents are entitled, at the very least, to a reasonable amount of time with the child unless the court finds that visits would be dangerous to the child (physically, mentally, emotionally or otherwise). However, the only other familial relations that are even granted standing (permission) to apply for visitation rights are grandparents, great-grandparents, stepparents, and siblings (including step-siblings).

Grandparents, stepparents, and siblings may petition the court to be granted visitation with a minor child, but they are only likely to be successful in certain situations. Even if a child has lived with them or been close with them for a long time, these family members are not entitled to visitation as a matter of law. The two situations in which these select non-parents are most likely to be granted visitation rights are (1) if one or both parents of the minor child have been missing for at least three months, or are deceased or otherwise incompetent; and (2) if the child’s parents are not living together, either on a permanent or indefinite basis. To establish a case for visitation being permitted, non-parents must establish that the parent’s decision to deny visitation is “unreasonable” and that the child has suffered or will suffer harm as a result of that decision. This is, as one might guess, very difficult to establish.OK

Aunts, uncles and other family members that may once have been close to the child have no standing to even apply for visitation privileges. Their ability to see the child in question is entirely left to the judgment of the parent or legal guardian.

Following your divorce, it can be difficult to truly understand the role you are expected to play in the life of your child. Of course, you want to be an active parent and maintain a healthy, ongoing relationship with your child, but your legal responsibilities may be a little unclear. This may be especially true if the other parent has been granted a majority of the parenting time with your child. If he or she spends more time with your child, it must be up to him or her to make most of the decisions about how your child will be raised, right? Not necessarily. According to Illinois law, and recently upheld in an appellate court ruling, parenting time and parental decision-making authority are two separate concepts which may be allocated independently by the court.

Petition to Hyphenate a Child’s Name

The case in question—In re Marriage of Piegari—came out of the Circuit Court of DuPage County and involved the pending divorce of a couple with three children. While the divorce has not yet been finalized, an agreed upon parenting plan was entered in which the mother was allocated the majority of the parenting time, while the mother and father were granted equal authority for parental decision-making.

There are a wide variety of reasons why you and your child’s other parent may not live in the same home. Whatever drove you apart—if you were ever really together—following your break-up or divorce, you and the other parent will need to develop a cooperative parenting plan that outlines each of your duties and responsibilities regarding your child. As part of your plan, you will also need to include direction over the time that each of you will spend with your child. Once known as visitation, the law in Illinois now refers to this as parenting time and recognizes the importance of quality parenting time in helping to foster a strong relationship between the child and both parents.

Get It in Writing and Get It Approved

If you are or were married to the other parent, Illinois law mandates that your divorce proceedings will need to account for your child. The court will not enter a finalized divorce judgment until there is an approved parenting plan in place or, if necessary, an order for the allocation of parental responsibilities has been issued.

A number of posts on this blog over the last few months have discussed some of the family law changes that took effect in Illinois this week. The Illinois Marriage and Dissolution of Marriage Act was recently amended to update the state’s approach to divorce, child custody, and parental relocation. Included in the changes to the child custody statutes is a new way of thinking about parental visitation and the rights of a parent to have access to his or her child.

Change in Language

Many of the statutory changes are based on the power of the words being used and the often intangible effect of language. For many years, a parent who was not granted legal custody was known under the law as a non-custodial parent, a phrase that resonates a negative connotation. To make matters worse, a non-custodial parent was presumed to have only "reasonable rights of visitation" with their child. In effect, the law considered a parent’s time with his or her child to be a temporary visit, not terribly different from spending a day with an uncle or grandparent.