Illinois Child Custody: Birthdays, Holidays and School Breaks

July 28, 2012

The divorce process can be so intense for parents. Some days, it's all they can do to just put one foot in front of the other, and it's easy to lose focus on the children. To be fair, it is clearly in the kids' interest to make sure mom and dad are each financially and emotionally sound enough to keep all the balls in the air that are required to juggle the kids' lives.

So when divorcing parents are focused on broader divorce issues that affect where the kids will live, who will drive them (and in what car) to their activities, and how all of this will get paid for and accomplished -- when it's likely parents may have to work more to finance two households -- the parents really still are thinking about the kids.

Tradition Brings Stability

One aspect of childhood can get overlooked to the children's detriment. For kids, a key to getting through the marital split can be retaining a sense of tradition. Many families do the same things yearly for every birthday, holiday and school break, and when divorce cuts into these traditional activities, kids can suffer -- like the predictable rhythms of life that provided their ongoing security have vanished.

Until it's too late, a divorcing parent may not understand the depth of how changing family traditions can affect children. So, in the flurry and stress of negotiating a divorce settlement or dissolving a marriage in court, the provisions for these details in the settlement agreement or court order need to receive the attention they deserve.

It behooves any divorcing parent to take time to sit down with his or her children early in the process and talk about the family traditions. The kids may provide unexpected and important information about what is significant to them and what isn't. And it might not be what mom or dad expected to hear, so probing for this information can be crucial before the divorce proceeds.

Don't Forget the Details

The specifics that become part of the final divorce can include:
- How will children's birthdays be celebrated, with whom and where?
- Who gets the kids for school breaks, short and long? Will traveling and vacations be part of the plan? What about when holidays or birthdays fall during school breaks?
- With which parent will holidays be spent? What if there is religious significance to particular holidays for either or both sides of families? What about the inclusion of extended family members?
- As the children age, will they have any input and control over the details of how they spend these important times?

How Illinois Visitation Law Matters

The question of where children will be on special days is legally one of custody and visitation, in other words, where will they live and how much will they see each parent. In essence, the question is: what is the parenting schedule? In many divorces, the details of these special days are very specifically provided for.

Broadly, visitation is the right of the parent with whom the child is not living to be allowed time with the son or daughter. Illinois statute says that this parent is entitled to reasonable visitation, and Illinois bestows noncustodial parents with strong visitation rights. Specifically, visitation rights may be denied only if after a court hearing, the court believes that visitation time would "endanger seriously the child's physical, mental, moral or emotional health."

Who Will Decide?

If the divorcing spouses cannot come to a visitation agreement through negotiation, it will be left to the judge to decide. He or she has wide discretion in Illinois to create a reasonable schedule for the family and the order will be binding unless the judge abuses his or her discretion, which basically means it would have to be an unreasonable decision, a tough standard to challenge.

Possible Intervening Factors

The Illinois visitation statute has a couple other provisions that could potentially affect where a child spends a holiday. First, stepparents, grandparents, great-grandparents and siblings can be granted visitation rights in certain circumstances. Second, if a parent is away on military assignment, he or she can appoint someone to exercise his or her visitation rights during that time.

Later Modification of the Divorce Order

Visitation orders can be modified by the Illinois court as circumstances evolve and either parent may file a motion to modify the provisions. But a divorced parent who does not want a child to spend a holiday or break with the other parent as agreed to or ordered by the court must move the court for a modification with plenty of time for resolution before the particular date in question.

A parent must take care not to deprive the other parent of previously granted visitation without a legal modification because Illinois recognizes the crime of "unlawful visitation or parenting time interference." The first and second convictions are "petty offenses," but the third would be a Class A misdemeanor.

One possible defense to keeping the child from the other parent is if there is a reasonable belief of "imminent physical harm." But most arguments between divorced parents about where the kids will be on special days do not rise to this level of concern, so the best approach would be to file a motion for modification early enough for a timely decision.

Don't let a last-minute dispute have more negative impact on the kids in an already challenging situation.

Solutions

Many creative solutions exist. Parents may alternate certain events, or particular special times could be spent in one household or the other each year. For example, it may make sense for the kids to celebrate a religious holiday that only one parent observes with that parent every year. The scheduling answers are as numerous as the number of unique divorcing families.

Illinois law also includes "electronic communication" within its definition of visitation. If one parent is with the child physically for a holiday, birthday or break, part of the family's arrangement could be that the absent parent at least have virtual visitation by having time to talk to the child via a webcam program like Skype or through another method of electronic communication like cell phone contact or e-mail.

And sometimes the solution includes the creation of new traditions for the children, as well.

Legal Counsel

Issues related to child custody and visitation can be complex under Illinois law, and anyone facing the question of where the children will spend special days in a divorce or separation should get advice from an experienced Illinois family law attorney.

Article provided by The Divorce and Family Law Offices of Wakenight and Associates P.C.
Visit us at www.dedicatedtofamlaw.com