Technically speaking, these two concepts are completely unrelated. It is illegal for a custodial parent to deny or restrict visitation based on an alleged failure to pay child support, as such actions are tantamount to holding the children for ransom. On a practical level, however, it is important to scrutinize the rights and responsibilities of both parents in these two areas.
As an initial matter, some parents are tempted to make side agreements in these areas, perhaps reasoning that the judge will be impressed by their efforts to co-parent. For example, parents may agree to switch weekends to accommodate a fishing trip or make alternate arrangements for the payment of child support. While one-time matters, like the fishing trip, can sometimes be accommodated in this matter, long-term changes, like the child support payment, are a different issues.
According to the law, these side-agreements are completely unenforceable in family court. Enforcement in other venues may also be problematic, because these “agreements” are almost never signed and, especially if the pact was based on an exchange of emails or text messages, the parties were not even in the same room when the agreement was made.
Child Support Payments
The time to make long-term side agreements is before the final divorce order is entered, because they can be incorporated into the language of the order. Otherwise, the payments must be made in accordance with the decree.
If the amount paid does not match the amount due, the state or custodial parent can take several steps to recover the balance, including:
- Requiring the custodial parent to pay a bond against future payments,
- Increasing wage withholding, and
- Suspending a driver’s’ or professional license until the balance is paid or arrangements are made.
So, instead of a side agreement, a child support modification may be appropriate. An attorney can request a change if there is a substantial change in circumstances or if the obligor’s income has changed by more than 20 percent.
Illinois does not have a boilerplate “standard possession order” like some other states. Instead, most custody orders contain three parts:
- Residential Schedule: The non-custodial parent usually has possession of the children every other weekend and on one evening each week. There is quite a bit of flexibility; for example, many parents choose weekends that begin on Friday when school is dismissed and ends on Monday when school resumes, to minimize physical contact between the spouses.
- Holiday Schedule: Major holidays (such as Thanksgiving and Christmas) usually alternate by year. Special rules typically control minor holidays (Easter and Labor Day) as well as the children’s birthdays.
- Summer Break Schedule: In general, physical custody flips during the summer. The children spend most of their time with the non-custodial parent, and the custodial parent adheres to a residential visitation schedule.
A custody order can be modified based on changed circumstances. To change designation, the requesting parent essentially needs to prove that the current custodial parent is not fit for the role. Finally, a motion to modify can also include a demand for makeup visitation, if applicable.
For prompt assistance from an experienced Mokena family law attorney, contact attorney Brian W. Reidy today.