The short answer is: more than likely.
If you are no longer with the other parent of your children, the court entered either a visitation schedule via a parenting agreement, or a parenting plan via an allocation judgment. This schedule should cover weekly visitation, as well as breaks, birthdays and holidays. What happens when the parent who has a child support obligation fails to pay? Can you just revoke that parents’ time with the children?
What does the law say?
According to the law, child support and time with the parent are completely unrelated. If your children’s other parent is under an obligation to pay support, and has not paid, you cannot withhold the children from visits in retaliation. In fact, doing so might subject you to a charge of visitation interference. Visitation interference is a criminal offense in Illinois. A person committing unlawful visitation or parenting time interference is guilty of a petty offense. Any person violating this Section after 2 prior convictions of unlawful visitation interference or unlawful visitation or parenting time interference, however, is guilty of a Class A misdemeanor.
So what do I do?
You send the children regularly for visits and deal with support through the proper channels with the court. If a parent is not paying support, you can seek help collecting from the States’ Attorney via the IV-D program. The advantage to the IV-D program is that it’s practically free. The disadvantage is that it takes significantly longer to get your case to a hearing than if you hire a private attorney.
If you choose to use a private attorney, you will have to pay a retainer up front, but the attorney can seek to have the other parent, who is violating the support order, reimburse you for your legal fees. The amount that is reimbursed is up to the judge, so it may not be the full amount of what you’ve had to spend to enforce your child support order.
If the other parents has failed to pay due to unemployment, the court can force that parent to keep a job diary, where that person comes to court and reports on job seeking efforts, usually on a weekly basis.
What if, after all this effort, the other parent still hasn’t paid?
When a parent has violated a court order to pay support, the person who is owed support can filed a pleading that asks the court to order the other parent to pay and get caught up. After a hearing, the court will set the amount owed, and will set a date by which that amount should be paid. This is called a purge. If a person has not paid the purge by the date set by the court, the judge can incarcerate the delinquent parent until he or she pays the purge.
Do you need assistance with modifying a visitation schedule or with collecting support? I practice in Cook, Lake and DuPage counties, and can help you. Give me a call at (708) 466-6912.