How can I enforce my
visitation rights?
By Joseph G. Phelps
The first step in enforcing your visitation rights is to make sure that
your judgment or court order provides for specific visitation, i.e., visitation on
specific days and at specific times.
For purposes of this answer, the person with custody will be referred
to as "mother" and the person with visitation rights will be referred to as
"father." I do realize in many cases the roles are reversed.
A problem often encountered in the field of visitation enforcement is
that the visitation order provides language like "the father will have reasonable
visitation with the children" or "the father will have such reasonable
visitation with the children as agreed upon by the father and mother." These
types of orders cannot be enforced because they do not provide the court with a benchmark
to determine whether a violation has occurred. There would always be disagreements
as to what is "reasonable," or whether or not the parties had "agreed"
to the visitation. So, if your court order or judgment provides for similar
visitation, it is highly recommended that you petition the court and obtain a specific
visitation schedule that can be enforced.
Assuming that you have a specific visitation schedule that can be
enforced, you have two methods to choose from in enforcing your visitation rights –
civil and criminal actions. I will first address the civil actions.
CIVIL REMEDIES:
One civil remedy for visitation violations is set forth in the Illinois
Marriage and Dissolution of Marriage Act at 750 ILCS 5/607.1 which provides as follows:
(a) The circuit
court shall provide an expedited procedure for enforcement of court ordered visitation in
cases of visitation abuse. Visitation abuse
occurs when a party has willfully and without justification: (1) denied another party
visitation as set forth by the court; or (2) exercised his or her visitation rights in a
manner that is harmful to the child or child's custodian.
(b) An Action may be
commenced by filing a petition setting forth: (i) the petitioner's name, residence address
or mailing address, and telephone number; (ii) respondent's name and place of residence,
place of employment, or mailing address; (iii) the nature of the visitation abuse; giving
dates and other relevant information; (iv) that a reasonable attempt was made to resolve
the dispute; and (v) the relief sought.
Notice
of filing of the petitions shall be given as provided in Section 511.
(c) After
hearing all of the evidence, the court may order one or more of the following:
1. Modification
of the visitation order to specifically outline periods of visitation or restrict
visitation as provided by law.
2. Supervised
visitation with a third party or public agency.
3. Make
up visitation of the same time period, such as weekend for weekend, holiday for holiday.
4. Counseling
or mediation, except in cases where there is evidence of domestic violence, as defined in
Section 1 of the Domestic Violence Shelters Act occurring between the parties.
5. Other
appropriate relief deemed equitable.
(d) Nothing contained
in this Section shall be construed to limit the court's contempt power, except as provided
in subsection (g) of this Section.
(e) When the
court issues an order holding a party in contempt of court for violation of a visitation
order, the clerk shall transmit a copy of the contempt order to the sheriff of the county. The sheriff shall furnish a copy of each contempt
order to the Department of State of Police on a daily basis in the form and manner
required by the Department. The Department shall maintain a complete record and
index of the contempt orders and make this data available to all local law enforcement
agencies.
(f) Attorney
fees and costs shall be assessed against a party if the court finds that the enforcement
action is vexatious and constitutes harassment.
(g)
A person convicted of unlawful visitation interference under Section 10-5.5 of the
Criminal Code of 1961 shall not be subject to the provisions of this Section and the Court
may not enter a contempt order for visitation abuse against any person for the same
conduct for which the person was convicted of unlawful visitation interference or subject
that person to the sanctions provided for in this Section.
P.A. 88-96, effective January 1, 1994.
As you can see from the Statute, you must commence your action by
filing a petition setting forth the information required in paragraph 607.1(b). But prior
to the filing of the petition, you and the ex-spouse must make a reasonable attempt to
resolve the dispute.
The petition can be filed in the county in which your judgment or order
for visitation was entered. Notice of your
petition must be sent by you to the other parent.
Note, that Section 607.1 is in addition to, and not a substitute for,
the contempt power of the court. This
introduces the second method of civil
enforcement – the petition for rule to show cause.
In addition to, the remedies set forth in Section 607.1, the courts
have the inherent power to enforce any of its orders. An aggrieved party can file a
petition for indirect civil contempt of court. The petition will allege that, for
purposes of this answer. the mother willfully disregarded the court order in not granting
visitation. In the initial phase of a petition for indirect civil contempt, the
court should issue a "rule to show cause" requiring the alleged contemnor (i.e.
the mother) to show cause, if any she can, why she should not be held in indirect civil
contempt of court and punished for her failure to comply with the visitation provisions of
the court order or judgment. Upon the return
of the rule, the alleged contemnor would be able to offer a defense as to why she did not
provide the court ordered visitation. However, if the court determines that the
failure to provide visitation was willful and contumacious, the court can order the
contemnor to jail for a period not to exceed six months.
However, the court must also enter at that time a purge provision. A "purge provision" is a means by which
the contemnor can purge her contempt and stay out of jail. In cases of visitation
violations, the purge provision is usually, but not always, an order by the court that the
contemnor comply fully with the visitation order for a specified period of time, e.g., six
months. If the contemnor again violates a visitation provision, the judge then would
likely incarcerate the contemnor for whatever term of incarceration the judge determined.
CRIMINAL REMEDIES:
The third method of enforcing a visitation order is to use the Criminal
Code of the State of Illinois. The relevant
provision is found at 720 ILCS 5/10-5.5 which provides as follows:
(a)
As used in
this Section, the terms "child", "detain", and "lawful
custodian" shall have the meanings ascribed to them in Section 10-5 of this Code.
(b)
Every
person who, in violation of the visitation provisions of a court order relating to child
custody, detains or conceals a child with the intent to deprive another person of his or
her rights to visitation shall be guilty of unlawful visitation interference.
(c)
A person
committing unlawful visitation interference is guilty of a petty offense. However, any person violating this Section after 2
prior convictions of unlawful visitation interference is guilty of a Class A misdemeanor.
(d)
Any law
enforcement officer who has probable cause to believe that a person has committed or is
committing an act in violation of this Section shall issue to that person a notice to
appear.
(e)
The notice
shall:
(1) be in writing;
(2) state the name of
the person and his address, if known;
(3) set forth the
nature of the offense;
(4) be signed by the
officer issuing the notice; and
(5) request the
person to appear before a court at a certain time and place
(f)
Upon
failure of the person to appear, a summons or warrant of arrest may be issued.
(g)
It
is an affirmative defense that:
(1) a person or
lawful custodian committed the act to protect the child from imminent physical harm,
provided that the defendant's belief that the there was physical harm imminent was
reasonable and that the defendant's conduct in withholding visitation rights was a
reasonable response to the harm believed imminent;
(2) the act was
committed with the mutual consent of all parties having a right to custody and visitation
of the child; or
(3) the act was
otherwise authorized by law.
(h)
A
person convicted of unlawful visitation interference shall not be subject to a civil
contempt citation for the same conduct for violating visitation provisions of a court
issued under the Illinois Marriage and Dissolution of Marriage Act.
This process begins with the father calling a police officer to come to
the home to verify that court-ordered visitation is not occurring. Be sure to have
with you a certified copy of your visitation order to show to the police officer. If
the police officer determines that the mother is not complying with the court order, that
police officer should issue a notice to her. It has been our experience that many
police officers do not, in fact, issue the notice. Many times it is necessary for
the father to ask that a Sergeant come to the scene to pressure the police officer to
issue the notice.
When the mother appears in court, she has available to her certain
affirmative defenses that are sent forth in the statute at 720 ILCS 5/10-5.5 (g).
For the first violation, and if found guilty, the person can only sentenced as a petty
offense. A petty offense is defined under Illinois law at 730 ILCS 5/5-1-17.
The maximum penalty for a petty offense is a fine. However, as the statute states,
after two prior convictions of unlawful visitation interference, the person would be
guilty of Class A misdemeanor. The sentence of imprisonment for any Class A
misdemeanor is less than one year see 730 ILCS 5/5-8-2.
Therefore, in conclusion, a person has three possible methods to
enforce visitation rights. First, a petition pursuant to 750 ILCS 5/607.1. Second, a petition for rule to show cause to issue
for indirect civil contempt which can be brought separately or as part of the 607.1
petition. Lastly, a criminal action in the criminal court seeking conviction for a
petty offense, or if the third or more time, for a Class A misdemeanor. While there
are other methods of enforcement, these three are the most common. But once again I
wish to stress that the key to the successful enforcement
of visitation rights is a visitation order that specifically sets forth the dates and
times.
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