Illinois Family Law Advocate : Peoria Family Lawyer & Attorney : Shahzad R. Khan Law Firm : Divorce, Child Support : Chicago, Bloomington, Normal & Sangamon

Visitation interference is where one parent consistently and habitually deprives or obstructs with the other parent’s parenting time. The result of this consistent and habitual conduct by the custodial parent can be profound. It could have the substantial effect of breaking the non-custodial parent’s relationship with their child. In essence, one parent’s actions will alienate the child from the other parent. This is commonly known as Parental Alienation Syndrome (PAS). There is plenty of literature on PAS, which can all be found via the internet.

In Illinois, there are three ways to combat unlawful visitation interference. One is through criminal court proceedings and the other two are through family court or civil court proceedings. The criminal statute, 720 ILCS 5/10-5.5, governing visitation interference can be found here. The civil statute, 750 ILCS 5/607.1, governing visitation interference can be found here.

In the criminal case, a person found guilty of unlawful visitation interference is guilty of a petty offense. A petty offense is an offense that is rectified by a fine. However, the statute does provide that if a person is convicted under this statute for two or more acts of unlawful visitation interference then they can be found guilty of Class A misdemeanor, which can subject them to a prison term of less than one year.

The civil case for unlawful visitation interference is usually brought in family law court under the divorce, paternity, or domestic violence case, whichever applies. It can be brought as a Petition for Rule to Show Cause under 750 ILCS 5/511 for violation of the terms of a court order or it can be brought under 750 ILCS 5/607.1 for unlawful visitation interference.

The penalty for a violation under sections 511 or 607.1 can normally be a finding of contempt and an order to comply with the court order with the threat of jail if there is no substantial compliance. If the party fails to comply or continues the behavior the court has the right to sentence the party to jail not to exceed six months.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I have represented my fair share of both men and women in family law disputes over the course of years.  Specifically, with regard to visitation something does not make sense to me.  Why do certain parents decide not to exercise their self petitioned and court ordered visitation orders. Usually, while the litigation is proceeding, these parents fight tooth and nail to get every kind of visitation possible. But when it comes time to exercise this visitation, they are no where to be found.  

There simply is no way to make someone exercise their visitation schedule.  You could file a Petition for Rule to Show Cause for their non-compliance with the court order.  Frankly, I've never seen that happen. You could move the court to terminate the parents visitation rights by showing that the lack of visitation is a substantial endangerment to the child's emotional, psychological and physical health. However, it's very difficult to meet the standard of substantial endangerment. 

Illinois law encourages visitation by stating "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."  In re Marriage of Reed, 100 Ill. App. 3d 873 (1981).  However, Illinois law also provides that a non-custodial parent cannot be forced to exercise his or her visitation rights.  Something simply doesn't make sense. 

When a parent fails to exercise his or her visitation rights, he or she doesn't realize the damage they are causing to their relationship with their child or children.  It is the child who waits around for the phone call on Saturday.  It is the child who sits by the door on Friday afternoon waiting for their other parent to spend the weekend with them.  It is the child who asks the custodial parent, why doesn't my mommy or daddy visit with me or see me more often.  In the end, it is the child who is left hurt and emotionally scarred.  

Take a moment to think about what is important to you in life.  If your family, child or children didn't enter your mind within the first few seconds of thinking about what is important to you, then you need to have your head checked.  

It is never too late to show love and affection and build a strong, loving relationship with your child or children.  So, make time and go call or visit your child or children.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Mother's Day is May 9, 2010.  Father's Day is June 20, 2010.  Both are fast approaching.  In addition, so is summer break.  

If you do not have a visitation schedule with your children granting you visitation on your applicable holiday, now is the time to act.  In addition, this is a great time to act to get visitation and parenting time with your children during their summer break.  

If you do have a visitation schedule that grants you visitation on Father's Day or Mother's Day, PLEASE do not ignore it.  This is a great opportunity for you to spend some quality time with your children.  Just remember that if it wasn't for your children, you wouldn't be celebrating a mother's day or a father's day. So enjoy your special day and enjoy the company of your children.  

If you do have a visitation schedule that grants you parenting time during your children's summer break, PLEASE do not ignore it.  This is a great opportunity for you to spend some quality time with your children without the distractions of school and extracurricular activities.  You have their full attention.  Take advantage of it. 

For those parents who do have a specific court ordered visitation schedule whether for the summer or for Mother's Day or Father's Day and often times do not get to exercise their visitation due to an outright denial of visitation or interference of their visitation rights by their former spouse or former significant other, now is the time to take action and have the court order their compliance.  Take action now.  Do it for your kids. Fight to be with them.  Believe me, they will thank you for it.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Recently, I had the opportunity to observe a situation that many of my clients have gone through with the births of their children. I went to celebrate the birth of a child with a friend and his girl friend. While I was present, a hospital worker came into my friends hospital room and asked whether he was married to the woman who gave birth to his child. In this case, he was not married to the woman and as such was provided a form known as a Voluntary Acknowledgment of Paternity.

A Voluntary Acknowledgment of Paternity (VAP) is a form provided by the state that essentially creates a legal relationship between father and child when signed.  The significance of signing this document is known as paternity by consent.  If this document is signed then the father waives his right to a DNA test and it also creates an obligation for child support. In addition in Illinois, signing a VAP awards sole custody by default to the mother of the child.

Essentially this document bypasses the court system on the issues of paternity and custody. If the father wants visitation with the child, then he has to petition the court to establish that right.  If the father wants custody, he has to petition the court to modify custody.  Instead of starting out disadvantaged, why not have everything established in court. If you are going to be there for one issue, why not be there for all the issues in your case and start out on an even playing field with the mother of the child. 

In the United States alone, approximately 40% of all births are to unmarried parents. That percentage continues to grow each year. I do not know whether there are any figures on how many VAPs are signed each year to determine paternity administratively. But it happens quite often and quite often the new father has second thoughts.

DO NOT SIGN IT, unless you are absolutely sure you are the father!

Do Not be pressured into a situation that you may later regret. Do Not let your emotions get in the way. If you are not sure, do not sign it. I cannot stress that anymore. Its that simple.

If you have signed it and the emotions of the birth have passed and you have come back to your senses and you realize that you might not be the father of the child, you do have a sixty day grace period, after signing the VAP, to rescind your VAP in Illinois. After sixty days have passed, you are on the hook for the next eighteen years plus the possibility of college.  Think about that for a second!

Challenging a VAP after the expiration of the sixty day period is possible but very difficult.  A VAP may be challenged on the grounds of fraud, duress or material mistake of fact.  The burden of proving this is on the party challenging the VAP.  

In the cases that I have litigated, the Courts have focused in on whether the act of the father signing the VAP was voluntary and whether the father had any doubts about his paternity at the time of signing the VAP.  If he still signed the VAP with those doubts in mind, the court was not inclined to vacate the VAP.  This is because even though he harbored doubts about his paternity, he still committed a voluntary act by signing the document declaring himself to be the father, regardless of whether there were facts that supported a conclusion that a fraud had been committed against the particular father.

Paternity fraud is a serious issue and will be discussed in a later submission.  A recent New York Times Magazine article titled: Who Knew I was Not the Father, by Ruth Padawer, is a great place to get acquainted with this topic. 

In getting back to our topic, of whether to sign the VAP, DO NOT succumb to pressure, threats and emotions. Do Not give in to anyone. BECAUSE: YOU HAVE RIGHTS! You have the right to a DNA test. You also have the right to have a judge resolve all together the issues of paternity, custody, visitation and child support. The best thing to do in this situation is to consult an attorney to discuss your rights so that you can start out on an even playing field.

Important things to remember:

• Signing a VAP is a voluntary act. Do not sign it, therefore do not commit a voluntary act unless you are absolutely sure you are the father of the child.  In an age where DNA tests are now available over the counter, it's best to side with caution and determine with certainty whether the child is yours.
• If you are in Illinois it is best to have a judge oversee your case and resolve the issues of paternity, custody, visitation and child support rather than having some of the issues resolved through one administrative act.  
• Signing a VAP creates a legal relationship by consent of the parties.  
• Signing a VAP waives your right to a DNA test and puts you in a disadvantaged position on the issue of custody.  
• Preferably before the birth of the child, consult a family law attorney to discuss your rights, obligations and options. If the child is already here, consult a family law attorney as soon as possible. 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

A common misconception among former clients and many litigants is that payment of child support guarantees visitation. Child support has nothing to do with visitation and vice versa in Illinois. If an order provides that you are to pay child support based upon statutory guidelines, you must do so. If a separate order provides that you also have certain detailed and specific visitation rights, then you should exercise those rights.

The custodial parent, namely your ex-spouse, ex-girlfriend, ex-boyfriend or ex-significant other cannot deny you the right to have visitation with your child or children, if you do not pay child support. Not paying child support pursuant to court order is a violation of that court order, which can result in a finding of contempt and further result in fines, penalties and imprisonment. The same goes for a violation of a visitation order. The person who violates an order for visitation can have a finding of contempt issued against them and therefore be subject to similar fines, penalties and also eventually imprisonment.

You, as the custodial parent, may hate the fact that you are not receiving child support as ordered. However, you cannot take the law into your own hands and arbitrarily modify the order so that the non-custodial parent has no visitation. The only person entitled to curtail visitation rights is the circuit court judge assigned to your case. That's it. You as a litigant do not have that right.

Important points to remember:

• If you are under an order to pay child support - you as the non-custodial parent must continue to pay support per the order until that order is modified or terminated. 
• If an order for visitation exists - the custodial parent must timely make sure the children are available for visitation at the designated transition location.
• If an order for visitation exists -  the non-custodial parent must timely appear for visitation at the designated transition location and must return the children on a timely manner at the same or specified transition location. 
• You are NOT the judge - You are a litigant.  You do not have the ability to terminate or modify orders. So you cannot terminate or modify your child support obligation arbitrarily.  Similarly, you cannot terminate, cut short or modify a parents visitation just because he or she has not paid child support.
• Rules to Show Cause - There is proper procedure to rectify the violation of any court order, including visitation and child support orders.  Civil contempt, penalties, fines and imprisonment may apply if you are successful in proving your case.  However, in Illinois a violation of a visitation order can also result in criminal prosecution.

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

As we have just concluded one holiday, there is another set of holidays on their way: Christmas Eve, Christmas, New Years Eve and New Years Day.

While Brian Galbraith over at, "Ontario Family Law Blog" suggested things to remember while spending your first post-divorce holiday alone, that got me thinking about the boundaries of holiday visitation.

In most cases, a properly written parenting agreement will provide the necessary parameters for such holiday visitation. But sometimes, the parenting agreement is lacking in substance or sometimes the parties are at a stage in the litigation where the issue of holiday visitation has not hit the surface and no parenting agreement exists. 

In either case, if you don't have a holiday visitation schedule you better act fast. Having practiced throughout the state, I have come to know that many judges have their own arbitrary deadlines with regards to holiday visitation. This means that these judges will not consider a motion for holiday visitation after a set date. 

Be aware that some of those deadlines may have already passed. It is wise to check with your judge’s clerk to determine whether your judge has a policy regarding holiday visitation. It would be unwise to file an emergency motion seeking holiday visitation in a courtroom where a judge has set a deadline for holiday visitation and that deadline has already passed. You and your attorney will get an earful. I guarantee it. The judge will ask you why you didn’t think of seeking holiday visitation earlier in the year, as you were well aware that Christmas Eve, Christmas, New Year’s Eve and New Years Day are all holidays whose dates are known well in advance. In addition, your motion will probably be denied. 

However, if the judges in your county do not set deadlines, you still must act fast. Christmas is only a few weeks away and people tend to leave town to be with family and friends. Judges are people like you and me and they also leave town as well. Although an emergency judge may be available in your county during the week of a particular holiday, seeking holiday visitation on an emergency basis is not a good idea and will make the judge very unhappy with you and your attorney. 

Issues pertaining to visitation are usually not considered emergencies unless there is some danger to a child. Therefore, it is prudent to act fast and get the matter in court as soon as possible.

Important points to remember: 

• Plan ahead of time - these days you can get calendars for upcoming years well in advance.
• Contact the clerk for your particular judge to determine his or her specific requirements as to holiday visitation. 
• Do Not seek holiday visitation after such a deadline has passed. 
• Remember if you fail to act fast, you deprive yourself of a opportunity to spend some quality time with your children without the distractions of school and extracurricular activities.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link