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Restricting Visitation

by Julie Galassi

Parents often ask whether they can stop their child’s visits with the non-custodial parent. This question can come up for a variety of reasons. A parent may have a drinking problem, anger issues or just ignore the child during visitation. Whatever the reason, a concerned parent can only limit or restrict visitation after a judge enters an order to do so.

The Illinois Marriage and Dissolution of Marriage Act provides that a non-custodial parent is entitled to reasonable visitation unless “that visitation would endanger seriously the child's physical, mental, moral or emotional health.” 755 ILCS 5/607. Without such a finding, a judge is generally prohibited from restricting visitation. Further, any requirement for supervised visitation “must meet the serious-endangerment standard.” In re Marriage of Ross, 355 Ill.App.3d 1162, 824 N.E.2d 1108 (5th Dist. 2005). As you can see from the various cases below, judges are reluctant to restrict visitation except in the direst circumstances. The following is a summary of Illinois cases where courts have dealt with visitation restrictions.

Case - In re Marriage of Gocal, 216 Ill.App.3d 221, 576 N.E.2d 946 (1st Dist. 1991).
Grounds - Father hospitalized twice for manic episodes. Psychiatrist testified that when Father suffered manic episodes he became aggressive and out of control. Child's attorney recommended that father's visitation with child be supervised temporarily.
Age of Minor(s) - 6
Trial Court Order -
Restricted to supervised visitation with reevaluation in 12 months.
Appellate Court Action - Upheld as within trial court's discretion.

Case - In re Marriage of Campbell, 261 Ill.App.3d 483, 633 N.E.2d 797 (1st Dist. 1993).
Grounds - Mother testified that father had thrown object which landed on child, was lewd in child's presence (but not toward the child), and slammed door in child's face (no physical harm); mother did not suggest fear of physical or sexual abuse; psychiatrist recommended supervised visitation.
Age of Minor(s) - 5
Trial Court Order -
Supervised visitation in mother's home state until child turned eight years old.
Appellate Court Action - Upheld.

Case - In re Marriage of Lombaer, 200 Ill.App.3d 712, 558 N.E.2d 388 (1 Dist. 1990).
Grounds - Mother exhibited weird behavior and was hospitalized for mental condition and failed to take medication prescribed upon release; no expert testimony that the medication was necessary to prevent her from harming herself or others; Father acknowledge that Mother had been a good mother over the years; and Mother testified that she was not required to take the medication.
Age of Minor(s) - 2 and 6
Trial Court Order -
Supervised visitation until further order.
Appellate Court Action - Overturned - evidence was "insufficient to meet the onerous standard of serious endangerment."

Case - In re Marriage of Rink, 136 Ill.App.3d 252, 483 N.E.2d 316 (1 Dist. 1985).
Grounds - Father was blind from birth, Mother tried to show that child had suffered injuries while visiting him, but she did not seek medical attention for them and there was testimony that Father was capable of supervising the child.
Age of Minor(s) - 27 months
Trial Court Order -
Ordered that Father have "sighted" person of his choice present during all visitation.
Appellate Court Action - Upheld as neither "manifestly unjust" nor dangerous to the child.

Case - In re Marriage of Johnson, 100 Ill.App.3d 767, 427 N.E.2d 374 (5th Dist. 1981).
Grounds - Father offered expert testimony that although Father had admitted to use of recreational drugs, he was dropping the habit and there was no danger to the child.  Mother testified that Father had abused her extensively but had not injured the child beyond occasional spanking, and had made remarks about killing himself, the mother and the child.
Age of Minor(s) - 4
Trial Court Order -
All visitation would be supervised for period of six months and that at end of such time order would be reviewed.
Appellate Court Action - Upheld, noting that the court was attempting to give the father an opportunity to rehabilitate himself in a relatively short time. No error in the trial court's ruling.

Case - In re Neat, 101 Ill. App. 3d 1046 (1st. Dist. 1981).
Grounds - Dad gained custody in divorce proceeding and no visitation provisions were discussed since mom was not present and in the hospital at time of divorce.  Two years later mom filed petition for visitation.  She had a prior history of arrests for disorderly conduct and a hospitalization to restrain her for her own protection.
Age of Minor(s) - Unknown
Trial Court Order -
Denied Mother’s Petition for Visitation; the trial judge noted that "the lady here has been swaying back and forth. Her eyes are glazed. She is under medication. The [social worker] was holding her elbow." 
Appellate Court Action - Reversed.  Appellate court recognized the primacy of the parent-child relationship in the area of visitation rights over the trial judge’s observations in the courtroom and the past conduct of the mother. 

Case - Aud v. Etienne, 47 Ill.2d 110 (Supreme Ct. 1970).
Grounds - Mother abandoned husband and children and filed for divorce one year after leaving.  She failed to exercise visitation for some time thereafter.  She visited the children approximately eight times over the next five years. Father argued (unsuccessfully) that she waived visitation rights forever.
Age of Minor(s) - 9 & 11
Trial Court Order -
Gave mother reasonable visitation rights. 
Appellate Court Action - Upheld Appellate and Trial Court rulings stating that an absolute denial of divorced parents to rights of visitation would be inequitable and unjust.   Court stated that it is not the past conduct of the petitioner that is controlling in an action for visitation rights, but rather the present circumstances and the present welfare of the children. 

Case - In re Blanchard, 162 Ill.App.3d 202 (5th Dist. 1987).
Grounds - The father’s testimony and the in chambers interview with the three children led the trial judge to conclude that very little visitation was actually exercised, the mother failed to give gifts during the holidays, and the children were disappointed with how visitation was going.  Also, the children were suffering academically. 
Age of Minor(s) - 12, 10, 9
Trial Court Order -
Terminated mother’s visitation rights holding that the visitation seriously disturbed the children's emotional health.  
Appellate Court Action - Reversed trial court order holding that disappointment was an occasional aspect in every child's life and the absence of gifts or broken promises did not endanger the children's health.  

Case - In re Dunn, 155 Ill.App.3d 247 (4th Dist. 1987).
Grounds - Father filed contempt against mother for denying visitation.  Mother argued that Father had abused their daughter.  Trial court did not find mother in contempt and that father had not abused daughter.  Father filed a second contempt motion against mother for denying visitation.  Mother asserted again that Father was sexually abusive and filed a petition to terminate visitation.  This time the trial court found that the father was sexually abusive and granted the mother’s petition to terminate visitation. 
Age of Minor(s) - 4
Trial Court Order -
Terminated father’s visitation after trial court found that father was sexually abusive towards daughter.  
Appellate Court Action - Reversed trial court order finding that the trial court’s judgment terminating his visitation rights was an abuse of discretion and against the manifest weight of the evidence.   

Case - Frail v. Frail, 54 Ill. App.3d 1013 (3d Dist. 1977).
Grounds - Mother was given custody upon the parties obtaining a divorce.  Subsequent to her divorce she remarried and was eventually incarcerated for the murder of her husband.  Father gained custody of the children after the murder.  Mother sought to exercise reasonable visitation at the penitentiary while she was incarcerated. 
Age of Minor(s) - Two children but do not know their ages.
Trial Court Order -
Granted mother’s request for reasonable visitation at the penitentiary.  
Appellate Court Action -Upheld Trial court decision.   

Case - People v. Ferrell, 326 Ill.App.3d 1110 (4th Dist. 2002).
Grounds - The mother was a diagnosed schizophrenic. Expert testimony indicated that the condition was chronic, had existed for over 10 years, and would continue indefinitely. Her history included a suicide attempt, unusual behavior, and difficulties in communication.
Age of Minor(s) - 9 months old when taken away from mother (about 4 years old at time of appeal); About 10 years old at time of appeal.
Trial Court Order -
The trial court terminated the mother’s parental rights to both the younger and the older child.  
Appellate Court Action -The appellate court held the trial court properly terminated the mother's parental rights to the younger child.  The appellate court held the trial court erred in terminating parental rights to the older child. The mother and the older child had an ongoing relationship. Supervised visitation was unlikely to present any harm to the child.   

As you can see, even under the most horrendous circumstances a parent rarely loses visitation rights. The moral of the story is that, if the behavior of a non-custodial parent during visitation concerns you, you need to call a family law attorney to discuss how best to present the matter to a judge.