Dangerous Visits: Seeking Restrictions on Parenting Time

Are your child's visits with the other parent doing more harm than good? You may be able to seek restrictions on their parenting time.

In Illinois, family court judges may modify a child custody and visitation agreement based on what's in the child's best interest. But judges may only restrict visitation, such as curtailing overnight visits or ordering supervised visits, following a hearing and a finding by a preponderance of the evidence that a parent engaged in conduct that "seriously endangered the child's mental, moral, or physical health or that significantly impaired the child's emotional development." 750 ILCS 5/603.10(a).

Orders judges may issue to protect the child include reducing, eliminating, or making other adjustments to the parent's decision-making responsibilities or parenting time. The court may also order supervision by the Department of Children and Family Services, according to the "Restriction of parental responsibilities" section of the Illinois Marriage and Dissolution of Marriage Act.

Children deserve the love and support of both parents, and public policy encourages the maintenance of familial bonds. "Therefore, liberal visitation is the rule; restricted visitation is the exception." In re Marriage of Diehl, 582 N.E.2d 281, 294 (Ill. App 2d 1991). As such, appellate courts have been clear that when lower courts restrict parenting time, they must use the more stringent serious endangerment standard rather than best interest standard. See O'Halleran v. Harder, 2016 IL App (1st) 151990-U, in which the appellate court faulted the lower court for restricting a father's parenting time to supervised visitation even after finding no serious endangerment to his child.

What constitutes child endangerment? In addition to obvious conduct such as physical or sexual abuse, courts have found a range of activities, from a mentally ill parent's failure to comply with psychiatric treatment to a parent's incarceration, to seriously endanger a child's mental and moral health or emotional development. (See Berkebile v. Berkebile, 2017 IL App (2d) 1600689-U and Barber v. Doom 2018 IL App (4th) 170840-U.)

One court found that the totality of a father's actions, which included using profanity, bad-mouthing the mother and threatening his children with dangerous punishment, was having a significant emotional and mental toll on his children. In re Marriage of Mayes, 109 N.E. 3d 942, 950-951 (Ill App 4th 2018). In Mayes, the teenage daughter testified about feeling unsafe and feeling responsible for protecting her younger brother from her father. In describing the children's demeanor following a visit with their dad, the mother testified that the older child was withdrawn and the younger child would often cry. Incidences clearly demonstrating harm to children compel courts to act.