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.
 

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[I do not know what this man was thinking.  From what he did, I can tell you that he has scrambled eggs for brains.  Judge McJoynt is one of the nicest, most reasonable and fair judges you will ever meet. I cannot understand what possesses a person to pull off a stunt like this.  People cease to amaze me.]

March 24, 2010
SUN-TIMES MEDIA WIRE

(WHEATON) A 40-year-old west suburban man was arrested Wednesday morning after he allegedly threw a raw egg at a judge during a child support hearing at the DuPage County Courthouse.

Agim Demiri of Naperville was in court for a child support case when he got upset and threw a raw egg at the presiding judge, according to a release from the DuPage County Sheriff's office. Demiri was immediately taken into custody by a sheriff's deputy in the courtroom.

The judge was not injured, sheriff's office spokeswoman Dawn Domrose said.

He was charged with one count of direct criminal contempt and remanded immediately to the DuPage County Jail for seven days, the release said. He is due back in court at 1:30 p.m. Wednesday.

The incident is still under investigation and more charges may be filed.

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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.

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Section 505 of the Illinois Marriage and Dissolution of Marriage Act imposes an obligation for support of a child on either one parent or both parents. Either one or both parents can be required to pay the necessary and reasonable expenses of the minor child including reasonable and necessary expenses pertaining to the child’s physical, mental and emotional health. This obligation to support the child continues until the child emancipates under Illinois law.

The obligation of support applies to all parents including parents who are self employed, employed by an employer, underemployed or unemployed. It even applies to those who are disabled and therefore unable to earn a living. 

Is this fair? The simple answer is yes. 

Why? Because the needs of the child need to be satisfied. The only people who should be responsible for making sure those needs are met are the parents of the child or children.

So how does a parent who is disabled pay support? If the disabled, non-custodial parent has applied for social security disability benefits, that parent will likely receive a lump sum payment that is retroactive to their initial filing with the Social Security Administration. It is also possible that the custodial parent may receive their own lump sum payment for the benefit of the child. This lump sum payment would represent the support that the non-custodial parent would have paid over the course of months since the non-custodial parent filed his claim with the Social Security Administration.

In addition, the lump sum payment made to the custodial parent would be used to satisfy any child support arrearages that may exist. However, if the arrearages are not completely satisfied by the lump sum payment paid to the custodial parent, then the lump sum paid to the disabled or non-custodial parent can be used to satisfy this debt.

In addition, the non-custodial parent is not relieved of his obligation to pay future support just because he or she is on social security disability. The non-custodial parent will continue to receive his monthly benefit as will each of his dependents through a dependent allotment that will be paid directly to the custodial parent and which will satisfy his or her obligation for child support. 

The rationale behind requiring a disabled person on Social Security Disability to pay child support is that the benefits that the disabled parent receives are a derivative of their employment over the course of years. Therefore the amount of benefits they receive are accumulated from income that they earned over the years of their work history. As such, this benefit that they are receiving is considered income for purposes of child support. 

The process of receiving Social Security Disability benefits is a long and arduous process. It's not as simple as I have written it above. Lump sums are not handed out freely. The process can take from several months to a year or more. Sometimes people get rejected and have to refile. Most clients who I have represented in family law matters involving child support have other attorneys representing them before the Social Security Administration. It's always advisable to have your family attorney work with your disability attorney so that information is made available to the family law attorney and to the family law court. This helps to prevents Rules to Show Cause, contempt findings and helps to keep the litigant out of jail.

Important points to remember:

• Social Security Disability benefits are subject to a child support obligation because they are derived from your income over the course of your work history. 
• If you are disabled consult a disability attorney to determine your rights;
• If you have on-going family law issues pertaining to child support, consult a family law attorney to determine your rights and obligations under Illinois law; 
• Execute consent forms to allow your disability attorney and your family law attorney to talk to one another and coordinate a proper strategy so that you do not get in trouble in court;
• Results vary. The process of obtaining social security benefits can take from several months to a year or more. Sometimes people have to reapply for benefits. 
• If awarded a lump sum, DO NOT spend or hide your lump sum payment to avoid paying down back child support arrears. This will get you in a lot of trouble. You may found yourself in a jail cell. 

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