More and more divorced parents share physical custody of their children, moving them between households every few days or every other week. But many divorcing couples decide—or the court orders—that one parent should have sole physical custody (that is, the child lives with just one parent) and that the other should have regular visitation rights. Here are some basic questions about visitation arrangements.
1. What visitation rights does a noncustodial parent have?
A noncustodial parent has a right to reasonable visitation with the children. What's reasonable depends on the circumstances, including the children's ages. The custodial parent can get a court to restrict the other parent's visitation rights only by showing that it’s necessary for the child's well-being. Even in cases of serious abuse, the court is likely to permit some visitation, although it may order supervision or other restrictions to ensure the child’s safety.
Later, the court may modify the terms of visitation if a parent shows that circumstances have changed and that an alteration is in the child’s best interests—for example, a noncustodial parent who moves farther away from the child might request less frequent but longer visits.
2. When will a court restrict or prohibit visitation?
Visitation isn’t for the parents, it’s for the children, and the court’s primary concern is their welfare. Courts start with the assumption that normally, the best interests of the child are fostered by having a healthy and close relationship with both parents. As a result, Illinois law provides that a court may restrict a noncustodial parent’s visitation rights only if the court finds, after a hearing, that visitation would seriously endanger the child's physical, mental, moral, or emotional health.
The custodial parent must prove to the court that the proposed visitation with the noncustodial parent will endanger the child’s welfare. Even if one parent doesn’t like the other’s behavior, the court won’t take that into account, unless the behavior is shown to have an adverse effect on the child. If, however, the court finds that the child's well-being may be endangered because of the parent's behavior, it may restrict or prohibit visitation. For example, a parent may be denied the right to overnight visitation in the presence of one parent’s paramour if the court is concerned that the child's moral development could be influenced by the parent's choice of living arrangements. In such a case, overnight visitation might be allowed at the home of the child's grandparent.
Only extreme circumstances justify permanently depriving a parent of visitation. For example, mental illness or substance abuse is not, by itself, enough to restrict a parent's visitation rights, but must be considered along with all other relevant factors. Courts have preserved the visitation rights of a mother confined in a penitentiary for murdering her husband, and of a mother who had been arrested for disorderly conduct (in the presence of her children) and restrained for her own protection while hospitalized for psychiatric treatment.
3. How might a court restrict visitation?
If the court decides visitation should be restricted, it will tailor the restriction to the particular problem it has identified. For example, a court might:
- prohibit overnight visits
- require that visits occur in the custodial parent's home
- prohibit a parent from contact with a child while the parent is under the influence of mind-altering substances
- require that visits occur outside the home of the noncustodial parent, or
- require that that visits be supervised by a third party.
4. Can relatives get visitation rights?
Unlike parents, grandparents do not have a legal right to visitation. But under certain circumstances, a grandparent, great-grandparent, or sibling who has been denied reasonable visitation may file a request with the court asking for a visitation order. They can make such a request if:
- the child's parents are not currently living together on a permanent or an indefinite basis, or
- one of the parents is deceased or has been missing for more than three months.
The court will issue a visitation order if it determines that visitation is in the best interests of the child.
Other relatives, such as aunts, uncles, and cousins, do not have any legal right to visitation, even if the child has lived with them or been very close to them.
5. If the custodial parent denies the other parent visitation, can custody be changed?
Denial of visitation alone does not guarantee that a court will change custody of the children. Generally, courts don’t like to change custody because it can be so disruptive to children. If the custodial parent refuses, without justification, to let the other parent have court-ordered visitation, the court may order the custodial parent to comply with the terms of the visitation order.
If, however, the custodial parent interferes with visitation and takes other actions that appear to be intended to keep the child from having a relationship with the noncustodial parent, the court might alter the custody arrangement. For example, a custodial mother could lose sole custody if she denied the father the right to visit, sought to change the child's surname, and refused to let the child talk on the phone with the father.
6. If the noncustodial parent doesn’t pay child support, can the other parent deny visitation?
Child support and visitation rights are separate things, and even a parent who doesn’t pay his or her child support obligations is still entitled to regular visits with the child. Again, it’s all about the children, and courts presume, unless there’s evidence to the contrary, that children do better when they see both parents regularly. If you aren’t receiving court-ordered child support from your child’s other parent (the paying parent), contact Illinois Child Support Services or consult an attorney for help.