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Overview of Illinois Law Regarding Visitation

Author: LegalEase Solutions 

  1. If the parent is denied custody, the non-custodial parent is entitled to visitation rights.

Visitation is granted to parents who do not have custody.  This is stated in 750 ILCS 5/607.  That statute reads as follows, “Sec. 607 Visitation. (a) A parent not granted custody of the child is entitled to reasonable visitation rights.”  (Emphasis added).  In the case of  Wenzelman v. Bennett, 322 Ill. App. 3d 262, 255 Ill. Dec. 196, 748 N.E.2d 1266, 2001 Ill. App. LEXIS 365 (3 Dist. 2001), the court stated that parents are entitled to visitation.  The court said: “all biological parents enjoy a presumption that they are entitled to visitation with their children.”

  1. The BIC is also the standard in awarding visitation rights.

In the case of Malone v. Malone, 5 Ill. App. 2d 425, 126 N.E.2d 505 (4 Dist. 1955), the court said, “any visitation rights must be consistent with the best interests of the children at all times.”   The Illinois courts also said, “In matters of visitation, the primary concern of the court is the welfare of the child.” In re Blanchard, 162 Ill. App. 3d 202, 113 Ill. Dec. 197, 514 N.E.2d 1208 (5 Dist. 1987).

The Illinois statute titled “visitation” found at 750 ILCS 5/607 enumerates many factors that should be considered in determining the BIC; the relevant section reads as follows:

(4) In determining whether to grant visitation, the court shall consider the following:
(A) the preference of the child if the child is determined to be of sufficient maturity to express a preference;
(B) the mental and physical health of the child;
(C) the mental and physical health of the grandparent, great-grandparent, or sibling;
(D) the length and quality of the prior relationship between the child and the grandparent, great-grandparent, or sibling;
(E) the good faith of the party in filing the petition;
(F) the good faith of the person denying visitation;
(G) the quantity of the visitation time requested and the potential adverse impact that visitation would have on the child’s customary activities;
(H) whether the child resided with the petitioner for at least 6 consecutive months with or without the current custodian present;
(I) whether the petitioner had frequent or regular contact with the child for at least 12 consecutive months; and
(J) any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to harm the child’s mental, physical, or emotional health.

750 ILCS 5/607 (emphasis added).
Visitation cannot be denied unless the parent is unfit and there are extreme circumstances.

A non-custodial parent is entitled to visitation rights unless the custodial parent proves that visitation is harmful to the child.  In the case of In re Diehl, the court said, “The custodial parent bears the burden of proving by a preponderance of the evidence that visitation with the noncustodial parent would seriously endanger the child.” In re Diehl, 221 Ill. App. 3d 410, 164 Ill. Dec. 73, 582 N.E.2d 281 (2 Dist. 1991), cert. denied, 144 Ill. 2d 632, 169 Ill. Dec. 140, 591 N.E.2d 20 (1992) (emphasis added).

Also note section 607, supra, pertaining to visitation.  The statute states that a parent is entitled to visitation rights “unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health.” (emphasis added).

The court has even described the standard using the terms “extreme circumstances.”  In the case of In re L. R., 202 Ill. App. 3d 69, 147 Ill. Dec. 439, 559 N.E.2d 779 (1 Dist. 1990), the court said that “parents have a natural or inherent right of access to their children, and because sound public policy encourages the maintenance of strong family relationships, even in post-divorce situations only extreme circumstances allow courts to deprive a parent of visitation.”

  1. Public policy favors liberal visitation rights.

The court in In re L.R., supra, stated that sound public policy favors strong family relationships, and thus liberal visitation.  Id.   The Illinois court has also said, “Courts favor liberal visitation for the noncustodial parent because the child is entitled to a healthy, close relationship with both parents.” In re Dobey, 258 Ill. App. 3d 874, 196 Ill. Dec. 267, 629 N.E.2d 812 (4 Dist. 1994).  In the case In re Diehl, supra, the court announced that liberal visitation is the rule, and that restricting visitation is the exception.  Finally, see also the case In re Blanchard, 162 Ill. App. 3d 202, 113 Ill. Dec. 197, 514 N.E.2d 1208 (5 Dist. 1987) where the court held that a close relationship with both parents is in the BIC.

  1. The father is entitled to joint custody; and in the alternative, the father is entitled to liberal visitation rights.

The case is quite clear.  The tender year presumption has been abolished and the unwed father has rights assuming he can prove his fatherhood.  He is entitled to joint custody unless the mother can prove that he is unfit and granting him custody is not in the BIC.  But, this will be difficult to prove.  More facts are needed; for example, whether the father is abusive, has convictions, is overtly sexual in the home, and his ability to facilitate a relationship between the child and the mother.

If the father does not have extremely severe limitations physically, economically, and does not have a violent criminal background, the father should be awarded joint custody at least.

If the court finds that it is in the BIC to deny the father custody, he should definitely be awarded liberal visitation given the favorable public policy.  To deny visitation, the mother must prove that the father is unfit, or extreme circumstances exist that will cause visitation to harm the child.  Again, more facts are needed.