Divorce & Custody
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Last updated: February 2008
Statute, Jurisdiction and Venue
Annulment
Legal Separation
Bigamy
Common-Law Marriage
Dissolution/Divorce
Statute
Overview
Residency Requirements
Grounds
Procedure
Joint Simplified Dissolution of Marriage
Relief Available
Maintenance
Factors Considered
Modification
Enforcement
Property
Marital Debts
Marital Residence
Pension Assets
Bankruptcy
Child Support
Amount
Enforcement
Modification
Termination
Custody
Jurisdiction
Standard
Standing
Joint Custody
Factors Considered
Custody Modification
Removal of Children from State
Visitation
Supervised Visitation
Grandparents
Visitation Modification
Enforcement
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Statute, Jurisdiction and Venue
Jurisdiction
An Illinois court has subject matter jurisdiction to enter a judgment of dissolution of marriage if either party has maintained Illinois residency for 90 days by the date of judgment. There is no pre-filing waiting period. 750 ILCS 5/401.
Venue
Proceedings shall take place in the county where either party resides. Venue is not jurisdictional and any objection must be made within the time for the respondent to respond. 750 ILCS 5/104.
Annulment (Declaration of Invalidity of Marriage)
Statute
Overview
Within certain constraints, a marriage can be annulled within certain specified time periods. As discussed below, even though a marriage is declared to be invalid, some of the consequences of marriage continue.
The reasons to declare a marriage invalid include:
- A party lacked the capacity to consent to the marriage, such as lack of mental capacity or incapacitation by drugs or alcohol;
- Marriage was prohibited by statute (750 ILCS 5/212);
- Marriage was induced by fraud or duress regarding the "essentials of marriage";
- Immigration fraud was involved;
- One of the parties married under age without consent.
Grounds for Annulment
1. A person lacked the capacity to consent at the time of the marriage ceremony for one of the following reasons:
- Mental incapacity or infirmity
- Influence of alcohol, drugs or other incapacitating substances
- Inducement of a party to enter a marriage by force, duress or fraud involving the essentials of the marriage
2. A party lacks the physical capacity to consummate the marriage by sexual intercourse and the other party did not know of the incapacity at the time of the marriage ceremony.
3. A party was age 16 or 17 and did not have parental or guardian consent or judicial approval.
4. The marriage is prohibited under 5/301(4) or 5/212(a)(1) – (4):
- The marriage was entered into prior to the dissolution of an earlier marriage of one of the parties;
- The marriage is between an ancestor and a descendant or between a brother and sister, whether the relationship is by the half or the whole blood or by adoption;
- The marriage is between an uncle and a niece or between an aunt and a nephew;
- The marriage is between first cousins unless:
- Both parties are 50 years of age or older;
- Either party produces at the time of application for marriage, a certificate signed by a licensed physician stating that the party is permanently and
irrevocably sterile.
Who Can Seek
The following are able to seek annulment:
- Either party or the legal representative of the party who lacked capacity if the grounds are lack of capacity
- Either party if the grounds are lack of physical capacity to consummate the marriage
- The under-age party, or his or her parent or guardian if the grounds are that the party was 16 or 17 and doesn’t have consent
- Either party, the legal spouse (in the case of a bigamous marriage), the State’s Attorney, or a child of either party, if the marriage is prohibited
Time Limit
The time limits for filing for annulment are as follows:
- 90 days after the petitioner obtained knowledge of the lack of capacity, if that is the ground
- No later than one year after the petitioner obtained knowledge that either party lacked physical capacity to consummate the marriage, if that is the ground
- Prior to the time the under-age party reaches the age at which he or she did not need consent to marry, if that is the ground
- At any time not to exceed three years following the death of the first party of the marriage to die if the ground is that the marriage is prohibited
Constraints on the Declaration of Invalidity
The following are limitations on the invalidity of the marriage:
- Children born or adopted are lawful children of the parties (5/303);
- Children whose parents marry after their birth are lawful children of the parties (5/303);
- Property is disposed of in accordance with the rules regarding dissolution of marriages only if a court has determined that justice demands the invalidity not be retroactive (5/304);
- Any person who (a) goes through a marriage ceremony, (b) has cohabited with the other person, and (c) in good faith believes that he or she is married to the other person is a putative spouse until he or she gains knowledge of the invalidity. If a spouse is putative they acquire the rights of legal spouse, including the right to maintenance following termination of his or her status. However, this section does not apply to common law marriages contracted in the State after June 30, 1905 (5/305).
Legal Separation
The following rules apply to legal separation:
- A spouse living apart from his or her other spouse without fault may be able to obtain reasonable support and maintenance, so long as they live apart;
- To obtain a judgment for legal separation a person files a petition in the circuit court of the county in which the respondent resides or in which the parties last resided together as husband and wife. If the respondent cannot be found in this state, the petition may be filed in the county where the petitioner resides; or
- The requirements for a petition are the same as a petition for dissolution of marriage (5/403(a)).
Bigamy
Statute
Three elements are required to be a putative spouse:
- A marriage ceremony
- Cohabitation, and
- A good faith belief (s)he is legally married
A putative spouse acquires the same legal rights as a legal spouse, including maintenance, even if the marriage is prohibited by 750 ILCS 5/212, or invalidated by 750 ILCS 5/301 (5/702).
The status of putative spouse is eliminated by the knowledge of the fact that (s)he is not legally married, and no further acquisition of spousal rights is permitted.
If there is a legal spouse, or another putative spouse, the rights acquired by the putative spouse do not supersede the rights of the legal spouse, or other putative spouse. The court will apportion property, maintenance and support rights as appropriate in the interests of justice.
Common-Law Marriage
A common-law marriage is not valid in Illinois if entered into after June 30, 1905. If a marriage is valid in the state in which it was entered, it will be valid here, unless the marriage was intended to circumvent Illinois law.
Dissolution/Divorce
Statute
Overview
Under the Illinois Marriage and Dissolution of Marriage Act, a person who meets certain requirements can cause the marriage to be dissolved. There are grounds for dissolution that are based upon fault or upon irreconcilable differences between the parties. In addition, under certain circumstances parties wishing to divorce can take advantage of the joint simplified dissolution procedure.
Residency Requirements
One spouse must be a resident in Illinois for 90 days preceding a finding of dissolution of the marriage (5/401(a)). Thus, you can file for dissolution before you have lived in Illinois for 90 days. Residency meets the jurisdictional requirements for a judgment of dissolution, and personal jurisdiction over the other party is not required.
Grounds
Fault
The following are grounds for dissolution of marriage:
- Impotence at the time of the marriage and thereafter
- Bigamy
- Adultery committed subsequent to the marriage
- Willful desertion or absenting for one year
- Habitual drunkenness for a period of 2 years
- Gross habits caused by the excessive use of addictive drugs for 2 years
- Attempt on the other spouse’s life
- Extreme and repeated physical or mental cruelty
- Conviction of a felony or other infamous crime
- Infection of the other spouse with a communicable venereal disease
No Fault
No Fault dissolution can occur in two instances:
- Parties have lived separate and apart for two years, irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future efforts would be impracticable and not in the best interest of the family; or
- Parties have lived separate and apart for 6 months prior to the entry of judgment dissolving the marriage, and both parties agree to waive the two-year requirement.
Procedure
Commencement
A dissolution proceeding is commenced by filing a petition for dissolution of marriage or a praecipe for summons in which a petition must be filed within six months (5/411(a)).
Petition Requirements
The petition must set forth at a minimum the following information (5/403(a)(1) – (6)):
- The age, occupation and residence of each party and his or her length of residence in this state
- The date and place of the marriage
- That jurisdictional requirements are met
- The names, ages and addresses of all living children of the marriage and whether the wife is pregnant
- Any arrangements as to support, custody, and visitation of the children and maintenance of a spouse, and
- The relief sought
Conciliation
The court at the request of either party or on its own discretion can order conciliation (5/404(a)).
Joint Simplified Dissolution of Marriage
Requirements
Both parties must appear, and:
- Neither party is dependent on the other for support or each party is willing to waive a right to support;
- Either party has met the residency requirement;
- Irreconcilable differences, with six months of separation;
- No children were born of the relationship, no adoptions occurred during the marriage and the wife is not, to her knowledge, pregnant;
- At the time of filing, the marriage was of eight years or less in duration;
- Neither party has an interest in real property;
- Each party has waived any rights to maintenance;
- All marital property has a fair market value of less than $10,000 after deducting encumbrances, the combined gross annual income from all sources is less than $35,000 and neither spouse earns more than $20,000 per year;
- Each party has fully disclosed all assets and tax returns to the other for all the years of the marriage;
- Written agreement has been executed dividing all assets in excess of $100 in value, and responsibility has been allocated for debts and liability. The agreement cannot be unconscionable.
Procedure
To file for the Joint Simplified Dissolution of Marriage:
- Use the forms provided by the court;
- File the petition with the clerk;
- Both parties must appear before the court;
- File an affidavit at the hearing executed by both parties stating that all property has been divided in accordance with the agreement and that they have executed all necessary documents (5/454).
Relief Available
Temporary Relief
To get temporary relief:
- Personal jurisdiction is required. Residency alone is not sufficient;
- Either party can move for temporary maintenance or temporary child support; and
- Either party can move for a temporary restraining order or preliminary injunction for the following:
- Preventing the other party from transferring, encumbering, concealing or otherwise disposing of any property
- Preventing the other party from removing a child from jurisdiction of the court
- Preventing the other party from striking or interfering with personal liberty of party or any child
Dissolution Action Stay
Either the service of a summons and petition or praecipe operates to stay against both parties and their agents until judgment is entered, the case dismissed or further order the following:
- Transferring, encumbering, concealing, destroying, spending, damaging, or in any way disposing of any property without consent
- Physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or their children, or
- Removing any minor child of either party from the state or from concealing a child from the other party
A party needs personal jurisdiction to enforce a dissolution action stay.
Maintenance
Statute
Factors Considered
The court needs personal jurisdiction to order maintenance.
The court has discretion to order temporary or permanent maintenance to either spouse without regard to marital misconduct in an amount that takes into account a number of factors including the following:
- The income and property of each party
- Each party’s needs
- The present and future earning capacity of each party
- The standard of living established during the marriage
- Any impairment to present and future earning power due to devotion of time to domestic duties or foregoing education or training due to the marriage
- The duration of the marriage, and
- The age, physical and emotional condition of both parties
As a practical matter most courts only award rehabilitative (time limited) maintenance in long term marriages.
Modification (of Maintenance)
Standard: To modify a judgment, the party must show a substantial change in circumstances (5/510(a)).
Notice: Modification is effective only upon installments accruing after notice to other party (5/510(a)).
Cessation: Unless otherwise agreed upon and incorporated into the judgment, an obligation to pay maintenance ceases upon the death of either party or the remarriage of the party receiving maintenance or if the party receiving maintenance cohabits with another person on a conjugal basis (5/510(c)).
Procedure (In State): File a petition to modify maintenance in the judicial district where such judgment was entered with notice or summons to the respondent. If neither party remains in the judicial district, file in the district where the recipient of such support resides (5/511(a)). If payment is made to the clerk and neither party continues to reside in the judicial district, either party or the court itself can transfer collection to the clerk of the court in the other county (5/511(d)).
Procedure (Out of State): A modification action is commenced by filing a petition to enroll the judgment of the other state, attaching a copy of the judgment to the petition and providing notice of the filing to the clerk of the court where the judgment was entered or last modified (5/511(c)).
Enforcement
The following rules rules apply to enforcement of maintenance;
- A party may enforce a maintenance order by filing a rule to show cause why the non-complying party should not be held in contempt of court for failing to file the court’s order;
- If the court finds that failure to comply with a maintenance order was without "cause or justification," the court shall order the violating party to pay the costs and reasonable attorneys fees of the prevailing party;
- Maintenance can also be enforced through an Order/Notice of Withholding. It does not have to be signed by a judge, and can be served by mail upon new employers;
- If the person responsible for maintenance is or becomes unemployed, the court may order the person to seek employment and to report periodically to the court on his or her efforts. The court may also order the person to report to the Illinois Department of Employment Security (IDES) for job search services or to make an application with the local Jobs Training Partnership Act provider (5/505.1).
Property
Statute
Marital Property
All property acquired during the marriage is presumed to be marital property. Marital property is subject to a fair but not necessarily equal distribution, without regard to marital misconduct.
Non-Marital Property
Non-marital property is not subject to distribution. 5/503 defines non-marital property to include the following categories:
- Acquired after judgment of legal separation
- Excluded by valid agreement
- Acquired before marriage
- Acquired by gift or legacy
Marital Debts
Debts from the marriage are subject to equitable division. Third-party creditors are not bound by the judgment and may still pursue either spouse.
Marital Residence
The court considers the needs of the children, the needs of the custodial parent, and contribution of the parties to the acquisition and maintenance of the home.
In determining the division of marital property, the court is required under 5/503(d) to consider the desirability of awarding the family home, or the right to live in the home for reasonable periods, to the spouse having custody of the children.
Pension Assets
Pensions acquired by either spouse after the marriage and before a judgment of dissolution is entered are presumed to be marital property. Each client should make sure the judgment specifies who is to draw up and pay for the QDRO (Qualified Domestic Relations Order) dividing this asset, or refuse to sign the judgment until the QDRO is done, since drafting a QDRO involves additional fees.
Bankruptcy
If either party anticipates filing for bankruptcy, both should file jointly before filing for dissolution. Otherwise, one party could file post-decree and leave the other responsible for marital debts. Maintenance and support are not dischargeable.
Child Support
Amount
The court determines the minimum amount of child support that a non-custodial spouse is required to pay. The statute establishes the following guidelines, based on the net income of the non-custodial parent:
|
# OF CHILDREN |
% OF NET INCOME |
|
1 |
20 |
|
2 |
28 |
|
3 |
32 |
|
4 |
40 |
|
5 |
45 |
|
6 or more |
50 |
Exceptions
The court shall apply statutory guidelines unless the court makes a finding that application of the guidelines would be inappropriate after considering the best interests of the child in light of evidence that includes, but is not limited to, a number of stated factors:
- Financial resources and needs of the child
- Financial resources and needs of the custodial parent
- Standard of living of the child if the marriage had not been dissolved
- Physical and emotional condition of the child, and the child's educational needs, and
- Financial resources and needs of the non-custodial parent.
Net Income Defined
Net income is income from all sources (including second jobs, overtime, holiday pay, etc.) minus the following deductions:
- Federal income tax (which has been properly calculated)
- State income tax (which has been properly calculated)
- Social Security (FICA payments)
- Mandatory retirement contributions required by law or as a condition of employment
- Union dues
- Dependent and individual health/hospitalization insurance premiums
- Prior obligations of support or maintenance actually paid pursuant to a court order
- Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts
Public Benefit Income
Federal benefits based on remuneration for employment, including Social Security Disability Insurance, are subject to withholding to enforce child support orders. 42 USC §659(a). However, section 659 does not apply to SSI, which is a needs-based program. SSI benefits are not assignable or subject to garnishment or other legal process. 42 USC §407(a); 42 USC §1383(d). The Illinois Appellate Court has held that section 407(a) prohibits a state court from ordering a party to pay child support out of an SSI allowance. Lozada v. Rivera, 324 Ill. App.3d 476, 755 N.E.2d 548, 258 Ill. Dec. 165 (2nd Dist. 2001).
Locating Income
The client should do what s/he can to determine a spouse’s source of income. If the spouse has "side jobs" and income is undeclared, it is difficult to get an order of withholding.
There is a rebuttable presumption that the supporting party’s net income for any prior period of time was the same as his or her net income at the time a child support order for current support is entered.
If the net income of the supporting party cannot be ascertained because of default or any other reason, the Court shall order support in an amount considered reasonable in the particular case. This is frequently called “needs based” order. Generally, a needs based order tends to be more than a guideline support order. Therefore, providing accurate pay records is to the supporting parent’s financial benefit.
Enforcement
A party may enforce an existing support order through one of the following methods:
- The Department of Health and Human Services, through the State’s Attorney Child Support Enforcement Division, will represent the State in collecting past due child support;
- The client can file a motion for enforcement (rule to show cause) pro se at the Clerk of the Court’s office;
- Child support can also be enforced through an order/notice of withholding. It does not have to be signed by a judge and can be served by mail upon new employers.
The Department of Health and Human Services will file a claim for any state resident who is seeking support, whether married or unmarried. If the petitioner is collecting cash assistance and the supporting parent is ordered to pay, the payment goes to the state and the recipient gets an extra $50. For the expedited Child Support Hearing procedure, see 750 ILCS 25/7.
Interstate Enforcement
UIFSA (Uniform Interstate Family Support Act) has been adopted in Illinois. The Act governs enforcement and modification of child support orders of another state.
Enforcement of Order of Another State
An income withholding order from another state may be sent by first class mail to the obligor or employer and shall create obligation without registration or the support order or income withholding order may be registered with the appropriate Illinois tribunal. The procedure for registration is found at 750 ILCS 22/602.
Modification
A court may modify support where there is a substantial change in the circumstances of the parties or needs of the children.
Note: Where a client cannot pay support due to unemployment or a reduction in income, the client should seek modification. Otherwise, the support obligation continues.
Termination
Support terminates upon emancipation of the child unless otherwise specified. A support obligation does not terminate upon the death of the supporting parent, although a claim must be filed against the estate of the decedent.
Under 750 ILCS 5/513, the court may order post-majority payments where a child is disabled or incurring educational expenses.
Custody
Note: The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), enacted with an effective date of January 1, 2004, repealed the Uniform Child Custody Jurisdiction Act (UCCJA).
For a detailed discussion of the differences between the UCCJA and the UCCJEA click on the title below:
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
To view a video training on the UCCJEA and the differences between the UCCJA and the UCCJEA click on the title below:
How to Utilize the Uniform Child Custody and Enforcement Act
Jurisdiction
Custody is governed by 750 ILCS 36/101 et seq., the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Standard (UCCJEA)
750 ILCS 36/101 et seq.
Under the Illinois UCCJEA, Illinois courts have jurisdiction to originally determine custody (including visitation) if:
- Illinois is the home state of the child on the date of commencement of the proceeding or the child is not in Illinois but Illinois was the child’s home state within six months of the proceeding and a parent or a person acting as parent is living in Illinois. If Illinois does not have home state jurisdiction but some other state does, then an Illinois court does not have jurisdiction to make a custody determination;
- No state, including Illinois, has home state jurisdiction or a state with home state jurisdiction declines to exercise its jurisdiction because it determines that it is not a convenient forum to determine jurisdiction or that a party seeking to assert jurisdiction in that state engaged in unjustified conduct, and the child and at least one parent have significant connection with Illinois and substantial evidence on the issues exists in Illinois;
- Other states that would have either home state jurisdiction or significant connection jurisdiction have declined to exercise jurisdiction on the ground that their state is not a convenient forum or because of unjustified conduct by the party.
No other state would have jurisdiction under any of the above bases.
Note: Under the UCCJEA home state jurisdiction is the jurisdictional basis of top priority. This is in contrast to the UCCJA which did not assign priority to any of the four bases.
The above factors may be determined in a phone conference by judges in the different jurisdictions.
An Illinois court shall not take jurisdiction of a custody matter for purposes of modifying a custody determination made by a court of another state if there is a custody proceeding pending in another state exercising jurisdiction under the UCCJEA. This is true unless the Illinois court has jurisdiction to make an initial custody determination and the court of the other state determines that the Illinois court may assume jurisdiction or the court of the other state or the Illinois court determines that neither the child nor the child's parents presently reside in the other state.
An Illinois court that is informed of a pending custody proceeding in another state that has jurisdiction under the UCCJEA during the course of an Illinois custody proceeding shall stay the Illinois proceeding and communicate with the court in the other state. If the court of the other state does not determine that Illinois is the more appropriate forum, the Illinois court must dismiss the custody proceeding.
An Illinois court may enforce a custody determination made by a court of another state that has jurisdiction under the UCCJEA if after communicating with the court of that state, it authorizes such enforcement. Enforcement of a custody order proceeds on an expedited basis much like a habeas corpus proceeding.
Standing
A child custody proceeding can be brought by a parent or a person other than the parent if the child is not in the physical custody of the parent. 750 ILCS 5/601(b).
A person other than the natural parent who seeks custody based upon having "physical custody" has to show more than mere possession of the child.
"Physical custody" has been defined by the Illinois Supreme Court to mean that the parent has "voluntarily and indefinitely relinquished custody" of his or her child. In re Petition of Kirchner, 164 Ill.2d 468, 491, 649 N.E.2d 324, 334, 208 Ill. Dec. 268, 278, (1995), cert. denied, 515 U.S. 1152, 115 S. Ct. 2599, 132 L. Ed. 2d 846 (1995); overruled in part on other grounds by Timmons ex rel. R.L.S. v. L.S. (In re R.L.S.), 218 Ill. 2d 428, 844 N.E.2d 22, 300 Ill. Dec. 350 (2006).
Joint Custody
Joint custody requires that parents be able to cooperate "effectively and consistently" in matters relating to joint parenting. Joint custody requires creation of a "Joint Parenting Agreement."
A child’s time is generally not split equally between the residential and non-residential parent. Parents together determine the child’s educational, health-care, religious training, and other major decisions pursuant to the "Joint Parenting Agreement."
Sole Custody
The custodial parent alone determines the child’s educational, health-care, and religious training.
Factors Determining Custody
Best Interest
The "best interest of the child" is the sole determining factor used by the court and contains the following considerations:
- The wishes of the parents
- The wishes of the child depending on the child's age, maturity, and education
- The interaction of the child with the parents, siblings and other relevant persons
- The child’s adjustment to home, school, and the community
- The mental and physical health of all parties
- Any acts of violence or threats of violence by the parties
- The occurrence of abuse as defined by the Illinois Domestic Violence Act
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
- Whether one party is a sex offender
The court shall not consider the conduct of a present or proposed custodian, if such conduct does not affect his/her relationship with the child.
Some practical matters include:
- At about age 14, the child’s wishes are very significant;
- Courts don’t generally like to split siblings;
- The "primary caretaker" of the children historically gets prime consideration for custody;
- The marital residence generally follows the award of custody. However, this may vary in different parts of the state. In some counties, the preference is to allow the custodial parent to reside in the marital home only until all children turn 18.
Temporary Custody
Temporary custody is awarded by the same standards as permanent. The final custody hearing should be de novo, but some judges tend to make their temporary order permanent unless good cause for a change is shown. The client should get temporary custody as soon as possible in proceedings.
Representation of Child
A guardian ad litem (GAL) may be appointed for children. The parents pay for the GAL.
Expense
Custody fights generally cost thousands of dollars. Experts are brought in, and all parties’ lives are examined.
Violation
See Child Abduction
Custody Modification
Unless stipulated by the parties:
- Less than two years from the original judgment:
- Not modifiable "unless the present environment may seriously endanger the child’s mental and emotional health" - More than two years after judgment:
- Modifiable if there is a substantial change in circumstances of the child or custodian and in the best interest of the child.
The standard of proof is clear and convincing evidence.
Custody must be modified in the state where the original judgment was entered unless that state no longer has jurisdiction or has declined jurisdiction and another state currently has jurisdiction, under 28 USCS 1738(A)(f) (see Jurisdiction, above).
Removal of Children from State
The court may approve removal from the state if the move is in the child’s best interests. The burden of proof that removal is in best interests is on the party seeking to remove. Relevant considerations to determine best interest (In Re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988)) include the following:
- Whether the move enhances the general quality of life for the custodial parent and the children
- Whether custodial parent has a good motive
- Whether non-custodial parent has a good motive in resisting removal
- Whether it is in the child’s best interest to have a close relationship with both parents and other family member(s), and
- The effect of the move on visitation
Visitation
Parental Right
The following rules apply to parents' rights:
- No right exists before paternity is established or presumed pursuant to the Illinois Parentage Act. A paternity finding by itself does not establish visitation rights. The order must provide for visitation;
- The court will force a child to visit;
- Visitation may not be withheld because support has not been paid.
Parental Obligation
A parent has an obligation to foster the relationship between the child and ex-spouse. This obligation may be taken into consideration in the award of child custody.
Supervised Visitation
The burden of proof falls upon the custodial parent to show that unsupervised visitation would pose a "serious endangerment of the child’s physical, mental, moral, or emotional health." Courts are reluctant to impose supervised visitation.
Grandparents / Relative Visitation
Currently, a grand-parent, great-grandparent or sibling may only petition a Court for visitation if there is an "unreasonable denial of visitation." The relative must then satisfy one of the following conditions:
- The child's other parent is deceased or has been missing for at least 3 months;
- A parent of the child is incompetent as a matter of law;
- A parent has been incarcerated in jail or prison during the 3 month period preceding the filing of the petition;
- The parents are divorced, legally separated or a custody or visitation case is pending and at least one parent doesn't object to the relative having visitation; or
- The child was born out of wedlock, the parents are not living together, and the petitioner is a maternal relative or sibling of the child or if the petitioner is a paternal relative and paternity has been established.
If the above conditions are met the court must still consider a list of 11 factors relevant to the interests of the child and the type of relationship between the child and the relative.
The burden is on the party filing a petition under this Section, as according to Illinois Supreme Court precedent a parent's decision in this fundamental rearing issue is presumed to be proper.
Sex Offense
A parent shall not have visitation rights if convicted of any offense involving an illegal sex act perpetrated upon a victim less than 18 years of age while incarcerated, on parole, or a mandatory supervised release program and thereafter, until that person completes a treatment program approved by the court (5/607(e)).
Visitation Modification
Visitation can be modified at any time if it serves the best interest of the child.
Enforcement
Violation of a visitation order can be enforced by filing a petition for rule to show cause why the offending party should not be held in contempt.
In addition, there is available an expedited procedure in the case of visitation abuse. Visitation abuse occurs when a party has willfully and without justification either:
- Denied visitation as ordered by the court, or
- Exercised his or her visitation rights in a manner that is harmful to the child or the child’s custodian
If the court finds that visitation abuse has occurred, it may order one or more of the following:
- Modification of visitation to specify periods of visitation or restrictions on visitation
- Supervised visitation with a third party or public agency present
- Make-up visitation
- Counseling or mediation, or
- Other appropriate relief
The court shall award attorneys fees and costs if it finds that the enforcement action is vexatious and constitutes harassment (5/607.1(g)).
Visitation Interference
Visitation Interference is when a party "detain(s) or conceal(s) a child with the intent to deprive another of his or her rights to visitation." The police can criminally enforce against unlawful visitation interference under the provisions of 720 ILCS 5/10-5.5. Unlawful Visitation Interference is a petty offense. Violation of a court order establishing visitation rights is required before a complaint may be filed.
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