As you can imagine, this issue has been arising in child custody cases around the country. I have received this question from several clients, like yourself, who are concerned about court ordered parenting time agreements. While there is no clear law on it since this is an unprecedented global health crisis, I will inform you of the relevant laws in Illinois and some suggestions.
Although court orders and parenting plans are still in effect, it is also important that you follow the advice of your doctor, your government officials, and the Center for Disease Control (“CDC”).
Generally speaking, a parent who withholds parenting time from the parent who has parenting time per court order or stipulation could be in violation; thus, the other parent who is withholding parenting time or refusing to return a child to the residential parent could be found in contempt. As of 2016, there is a law in Illinois more specific than a contempt law, called the “Abuse of Allocated Parenting Time.” See 750 ILCS 607.5. Under this Abuse of Allocated Parenting Time statute, a parent can seek the following remedies:
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Revision of the existing parenting time order to clarify any muddled issues;
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Ordering the offending parent (or both parents) to a parenting class at the expense of the offending parent;
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Ordering both parents to individual or family counseling;
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Requiring the offending parent to post a cash bond (paid to the Clerk of the Court) to ensure future compliance (if the offending parent violates the parenting schedule again, the bond may be forfeited to the other parent to reimburse for expenses for the child; i.e. for having to hire a babysitter;
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Order “make-up” parenting time of the same type (weekend, weeknight, holiday) and of the same duration;
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Find the offending parent to be in “indirect, civil contempt of court” under 750 ILCS 5/607.5(c)(6) which automatically requires reimbursement of attorney’s fees, allows for the suspension of the offending parent’s Illinois driver’s license, allows the court to place the offending parent on probation or order jail time of up to 6 months, or enter a finding that the offending party is guilty of a (criminal) petty offense (like a parking ticket) and fined up to $500 per offense;
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Issue a civil fine (paid to the Clerk of the Court — not the other parent;
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Pay reimbursement of expenses related to the violation (hiring a babysitter, after-school late pick-up charges, etc.);
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Notify the State Police (they maintain a data base of the history of all parenting order violations and make it available to all local law enforcement agencies so, if you get into a future squabble away from your usual law enforcement friendlies, the cop on the beat can look up the history on the laptop in his patrol car);
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Order reimbursement of attorney’s fees, court costs, and related legal expenses); and
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Any other provision that may promote the child’s best interests.
To prove contempt, one must show that the offending party acted willfully and “contumaciously.” Contumacious conduct is that which is “calculated to embarrass, hinder, or obstruct a court in its administration of justice or lessening the authority and dignity of the court.” In re Marriage of Charous, 305 Ill. App.3d 99 (2d Dist. 2006).
The COVID-19 pandemic is a case of first impression; however, at this time I would urge you to discuss possible quarantine procedures with your co-parent and document discussions regarding same via email, text message or summarize teleconferences in a journal.
First you should speak to your co-parent, or have me to speak to his or her attorney, with the consideration of your child’s safety being the primary concern. Providing accurate location information and contact between the absent parent should be maintained. You and your co-parent should also discuss other children and adults in the house, who the children and other people in the household might be exposed to especially if one works in the healthcare field and has been working or may be called into work.
You should also discuss the potential for either parent’s location or household being quarantined. For instance, who will care for the child? What happens if the parent gets sick? What happens if the child gets sick? Keep in mind that these can change based on how far the parents live from each other as well.
The best way would be to work this out with some sort of agreement, and then transfer this agreement to a temporary order or parenting plan for future similar situations (that hopefully never happen again!). If would suggest Skype or FaceTime (or other video conferencing programs) during parenting time that is being withheld or offering “make-up” time once this pandemic is contained and the counties in which you and the other parent live are back to school, playgrounds are re-opened, etc. Similarly, with regard to any planned Spring Break vacations which may have been planned this week or next, I would advise offering some time during the summer months.
Ultimately, this is your family and you want to do what is best for him or her taking into account his or her current location, other children and adults in the home, the type of work each adult in the home is involved in (for example those working in the healthcare field), among other things.
If you are withhold parenting time, and even more so if you do not attempt to propose a solution for “make-up” time or liberal Skyping or FaceTime, or if you refuse to return your child to his or her other parent, you could face consequences with contempt or parenting time abuse. I cannot tell you clearly where the judge will fall on this issue based on these exigent circumstances.