In Illinois, it is very unusual for a family court to deny visitation to a parent entirely, even if that parent has legal problems. The presumption that having both parents in a child’s life is accorded a place of paramount importance by family court judges, and as such, it is becoming more and more common for visitation schedules to be worked out with incarcerated parents. While it is possible for your parenting time rights to be denied or terminated if you are incarcerated, it is also common to still be awarded at least some time with your children.
If You Are Incarcerated During Divorce
One of the most important things to be aware of is that if you are incarcerated before your divorce, your spouse automatically gains primary responsibility for your children unless there is a pressing reason not to follow this pattern. In other words, Illinois courts recognize a rebuttable presumption that an incarcerated parent will not be the more fit of the two. If you are able to demonstrate why your spouse should not necessarily have the majority of the parenting time, you may be able to obtain shared parental responsibilities but you must show that you can make decisions for your child.
If you are not awarded parenting time, or if you are only given a minimum amount, it is also very difficult to change the situation once you are released. Two years must pass, in most cases, before parenting time arrangements may be altered, and after those two years, you must be able to prove that it is demonstrably in the child’s best interest that the parenting time arrangement can be changed.
If You Are Incarcerated After Divorce
If your divorce finalized before your incarceration, your parental or visitation rights are easier to suspend. Illinois courts’ primary consideration is the best interests of the child, and depending on the crime you have been convicted of, it is easy for your spouse to file for a change in parenting time and allege that your children may experience negative effects from you being in their lives. If your spouse does not file, however, your parenting time may not change, unless you have been convicted of a violent felony.
One particular concern that may affect you is the matter of child support. Under current Illinois law, parents with no income—included those who are incarcerated—may have a “zero dollar” child support order entered for the duration of their incarceration.
Seek Experienced Legal Assistance
If you are concerned about losing your visitation rights or falling behind in your support obligations due to a possible prison sentence, contact an experienced Wheaton family law attorney. Call 630-871-1002 for a free consultation at any of our convenient office locations.