Visitation interference occurs when the custodial parent in some way interferes with your ability to spend time with your child, or visit with them.
A parent has a couple of options in Illinois when the other parent interferes with their parenting time. You may proceed with a criminal prosecution or file a motion in the civil court, or do both.
To proceed in a criminal court, you first have to convince the police to press charges and write up the report. The State’s Attorney would then prosecute the other parent, and would essentially be your lawyer. They would not represent you per se, but they would be enforcing the law and you would not be required to stand before the court and present the case. Visitation interference is a “petty offence” (like a traffic ticket), and after the parent has been prosecuted for the first two violations, the punishment becomes more severe. Eventually the charge becomes a Class A misdemeanor which means punishment may be in the form of imprisonment for up to one year or a fine of up to $2,500.
You may also proceed in the civil courtroom. Visitation interference (parenting agreement now refer to visitation as “parenting time” since parents don’t “visit” their children) is taken seriously in the civil courts, but you need to take certain steps to ensure that your order is clear enough. Different attorneys will attack this problem in several ways. Should a Petition for Rule (sometimes known as a Petition for Adjudication of Contempt) be filed to hold the other parent in contempt? Or should the parenting agreement itself be modified?
For a Petition for Rule, you have to have a clear order, detailing out your parenting time. That is why the courts do not allow parenting agreements to say, “The non-custodial parent is entitled to reasonable parenting time.” What is reasonable to one parent is not reasonable to the other. So you need clarity. Dates, times, who is responsible for picking up the child, and where is the exchange supposed to happen?
If you have a clear order, then proceed with your Petition for Rule. You will need to state exactly what part of the order the other parent is in violation of, such as failure to drop the minor child off. This is the hardest part of the case, as the other parent will nearly always say that you are mistaken somehow, or that they were in fact there, but you weren’t. Now you know the other parent is not being truthful, so how do you prove your allegations? Your burden when filing the Petition for Rule is to establish that the parenting agreement was not adhered to, and you also need to show that their failure to abide by the court’s order was done willfully and contumaciously. If you cannot meet that burden, they you might elect to modify the existing parenting agreement instead.
If the other parent did not come to the exchange time because your son was at his baseball practice, then a modification of the agreement needs to say that no activities can be scheduled during your parenting time unless you agree. Other parents will take their child to church, let them go to Girl Scouts, or attend a friend’s birthday party before taking them for visitation, stating that these activities are important to the child. Of course the non-custodial parent’s visitation time is important too, but this type of excuse may allow a custodial parent to skirt the contempt finding. Modifications of the parenting agreement need to take into account these types of excuses and prevent them from interfering with your parenting time.