Illinois Leg. Puts Teeth into Visitation Law

June 13th, 2012 by Robert Franklin, Esq.
The Illinois House and Senate have both unanimously passed a bill that would allow judges to punish visitation interference almost as harshly as failure to pay child support.  The vote in the Senate was 51 – 0; the vote in the House was 107 – 0 with two abstentions/absences.

SB 3823 was fought passionately by the Illinois State Bar Association whose principal complaint to legislators was that the bill was unconstitutional.
 How they figured that, I don’t know, but the bill actually provides less punitive measures for visitation interference than it does for failure to pay child support.  So if the laws on child support enforcement aren’t unconstitutional, I don’t know why the new law would be.  I’m sure the ISBA had its reasons, but pro-SB3823 forces put on a non-stop push for legislators and aides to simply ask “how is it unconstitutional?”  What followed was the passage of the bill in both houses without a single ‘no’ vote.  From that I conclude that the Bar Association didn’t have a very good answer to the question.

Here are the important parts of the new law:

8     Sec. 607.1. Enforcement of visitation orders; visitation
9 abuse.
10     (a) The circuit court shall provide an expedited procedure
11 for enforcement of court ordered visitation in cases of
12 visitation abuse. Visitation abuse occurs when a party has
13 willfully and without justification: (1) denied another party
14 visitation as set forth by the court; or (2) exercised his or
15 her visitation rights in a manner that is harmful to the child
16 or child's custodian.
17     (b) An Action may be commenced by filing a petition setting
18 forth: (i) the petitioner's name, residence address or mailing
19 address, and telephone number; (ii) respondent's name and place
20 of residence, place of employment, or mailing address; (iii)
21 the nature of the visitation abuse, giving dates and other
22 relevant information; (iv) that a reasonable attempt was made
23 to resolve the dispute; and (v) the relief sought.
24     Notice of the filing of the petitions shall be given as

1 provided in Section 511.
2     (c) After hearing all of the evidence, the court may order
3 one or more of the following:
4         (1) Modification of the visitation order to
5     specifically outline periods of visitation or restrict
6     visitation as provided by law.
7         (2) Supervised visitation with a third party or public
8     agency.
9         (3) Make up visitation of the same time period, such as
10     weekend for weekend, holiday for holiday.
11         (4) Counseling or mediation, except in cases where
12     there is evidence of domestic violence, as defined in
13     Section 1 of the Domestic Violence Shelters Act, occurring
14     between the parties.
15         (5) Other appropriate relief deemed equitable.
16     (c-1) When the court issues an order holding a party in
17 contempt for violation of a visitation order and finds that the
18 party engaged in visitation abuse, the court may order one or
19 more of the following:
20         (1) Suspension of a party's Illinois driving
21     privileges pursuant to Section 7-703 of the Illinois
22     Vehicle Code until the court determines that the party is
23     in compliance with the visitation order. The court may also
24     order that a party be issued a family financial
25     responsibility driving permit that would allow limited
26     driving privileges for employment, for medical purposes,

1     and to transport a child to or from scheduled visitation in
2     order to comply with a visitation order in accordance with
3     subsection (a-1) of Section 7-702.1 of the Illinois Vehicle
4     Code.
5         (2) Placement of a party on probation with such
6     conditions of probation as the court deems advisable.
7         (3) Sentencing of a party to periodic imprisonment for
8     a period not to exceed 6 months; provided, that the court
9     may permit the party to be released for periods of time
10     during the day or night to:
11             (A) work; or
12             (B) conduct a business or other self-employed
13         occupation.
14         (4) Find that a party in engaging in visitation abuse
15     is guilty of a petty offense and should be fined an amount
16     of no more than $500 for each finding of visitation abuse.

In short, a custodial parent who interferes with the visitation of the non-custodial parent “willingly and without justification,” can have her driver’s license suspended, be fined, jailed for up to six months, forced to post bond, etc.  The fact that the bill passed without a single dissenting vote should suggest to judges that the state’s General Assembly means business about visitation interference.

There’s one other good thing about the bill.  It requires courts to establish an “expedited procedure” for dealing with visitation interference.  With any luck that means the procedure will be as quick as the one for child support arrearages.  It’s long been one of the most serious, though least noticed, problems non-custodial parents face – the time it takes to get a hearing.  It’s certainly true when a downward modification of child support is sought, and it’s true in the case of visitation interference as well.  Often as not, by the time the hearing rolls around, the matter has gotten out of hand; Dad may not have seen his kid in months.  So with an expedited procedure Dad can get into court quickly with the hope of swift, sure action being taken.

Now, judges may still be hesitant to tag Mom with refusal to obey the visitation order “willingly and without justification.”  But with expedited court hearings, Dad can prove his case again and again in a relatively short time and the judge will get the message.

All in all, assuming the legislation is signed by the governor, it’s a step forward – not a large one, but a step nevertheless.  Look at Australia, for example.  There, as a matter of policy and precedent, family courts refuse to enforce their orders for contact.  In all other cases they exercise their contempt powers without hesitation, but when a father seeks to exercise the contact with his child the court “ordered,” and is refused by the mother, the court refuses to step in.  It’s as blatantly anti-father as possible, but that’s what they do.  In Illinois, the General Assembly has just announced loudly and clearly that judges in that state must behave differently and better.  There, fathers’ visitation with their kids has taken on a new importance.

Thanks to Michael, Ian and Ned for the heads-up.

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