For weeks, Daniel Williams looked forward to taking his 11-year-old son to a hockey tournament in Madison, Wis.–a departure from the divorced father’s usual visitation with his son every other weekend at his home in Carbondale.
Then, a few days before the trip, Williams’ ex-wife called to say her boyfriend of less than a year would be taking the boy instead, while she took Williams’ other son, age 14, to another tournament in Nashville. Williams would not be able to see either child on “his” weekend.
Furious and hurt, Williams turned to the local police, the state’s attorney and the Illinois State Police, but no authority would help–despite a law in effect in Illinois since 1994 that makes “interference with visitation” a criminal offense. The law was designed to make it faster and easier for non-custodial parents to quickly regain access to their children by being able to go straight to the police for enforcement, without having to go through a civil hearing in family court.
“I quoted the visitation statute to the police chief,” Williams explained, “but he said, `Nobody wants to enforce it’ . . . and wouldn’t get involved.”
Williams is not alone in finding law enforcement reluctant to enforce the law, according to other frustrated fathers and fathers’ rights attorneys in Illinois.
“Police say to take it to the judge, the judge says to go to the state’s attorney, the state’s attorney says to take it to the police,” said Rob Schramm, an Ottawa painter who has had trouble for years seeing his son by a former girlfriend.
“It’s really annoying to see that the court system doesn’t do anything. But if I don’t pay child support one month, they’d jump on me,” said Schramm, who estimates he has filed 50 to 60 police reports for visitation problems during the last seven years, watched his ex-girlfriend receive at least eight warnings from the judge to honor the visitation agreement, spent thousands of dollars on attorneys–and still is not able to see his son when he is supposed to.
Visitation interference isn’t only a problem for non-custodial fathers; mothers also have experienced it. However, more often it is fathers who are affected, primarily because mothers are more likely to have custody of children after a divorce.
According to the 2000 census, about 77.5 percent of single-parent families in the U.S. are headed by women. In Illinois, among the counties that reported visitation-interference violations in 1997-99, the vast majority of victims (73 percent) were men. Among those charged with the offense, 86 percent to 90 percent were women.
Jeffery Leving, a Chicago divorce attorney who has written a book called “Fathers’ Rights” (Basic Books, $14), believes that visitation interference is a problem more likely to affect fathers than mothers, due to the way in which men and women handle this type of conflict.
“In divorce, women often only have children to use as control and power tools, while fathers have only money. If a mom and dad get in a war, the dad uses his weapon–withholding child support–and the mom uses her weapon–withholding visitation,” Leving said.
“Generally, custodial fathers do not deny visitation because the children, when there is a conflict, are not their control tool.”
Dominic, a Frankfort engineer who didn’t want his last name used, said he has spent $30,000 in legal fees during the last decade trying to see his daughter. Since the unlawful-interference law was passed, he said, he has won four citations against his ex-wife.
Under the law, a parent not providing visitation can be found guilty of a petty offense (essentially a traffic ticket) for the first two offenses but hit with a Class A misdemeanor, punishable by as much as a year in jail, for subsequent violations. Nevertheless, Dominic said, this hasn’t happened to his ex-wife.
`Judges are reluctant’
“I’ve got four [citations], like trading cards, but when we go in front of the judge, the judges are reluctant. They scold her a little bit. Then it happens again.”
These fathers say they feel abandoned by the legal system, despite Illinois’ law. They worry about unwelcome changes in their children and see their relationships slipping apart as distance creeps in, but they feel powerless to maintain their role as parents.
“You can never make up for lost time,” Williams said. “The problem is that to do anything officially takes forever and still doesn’t get me to see my kids when I should see them.”
On the other hand, some custodial parents–usually mothers–say the visitation-interference law has been turned against them by “fathers’ rights” attorneys and vindictive ex-spouses who use it to harass and intimidate. Some say they have been forced to turn children over to abusive parents.
Jane, a Will County mother of a 3 1/2-year-old daughter who did not want her last name used, said she has been charged three times for visitation interference. She said she had good reasons to withhold her daughter from her ex-boyfriend, including suspicion that her daughter was being abused.
Illinois’ visitation-interference law includes exceptions for the custodial parent to keep the child from visitation if there is reason to believe the child could be in danger. Jane’s tickets were dismissed in court, but she had to spend money to hire an attorney.
Her daughter has been so affected she has gone into therapy, Jane said. “When she’s not feeling well [before a scheduled visit], she’ll say, `I have to go or Daddy gonna put Mommy and me in jail.’ She comes home saying, `I cried and cried for you, but I didn’t see you.'”
Even when the non-custodial parent isn’t abusive, children sometimes don’t want to go on visits for other reasons. Older children may be involved in school or sports activities with friends and not wish to be taken away from home.
Debbie Maher, Daniel Williams’ ex-wife, said her boys sometimes don’t want to go see him because they get bored.
Williams moved 90 miles away a few years ago, so the boys have to travel every other weekend for their scheduled visits.
“When you get to a certain age, you don’t want to spend your short weekend in a car, away from your friends, not doing anything together but sitting around,” Maher said.
“I think if you want to be a full-time parent, you have to live close to where the other spouse is. He made the choice to move away.”
LaSalle County State’s Atty. Joe Hettel said he has seen both sides.
“I’ve had clients completely taken advantage of by an ex-spouse using [the statute] as a power mechanism,” he said. “I’ve had some clients who have legitimate, serious concern for the safety of their child. In our office, it’s tough for us to sort out which case is which.”
This difficulty is a big reason some state’s attorneys do not choose to enforce the law aggressively. Too often, family disputes deteriorate into “he said, she said” disagreements that police and state’s attorneys don’t have time or resources to sort through and prosecute.
“We take the laws seriously, but it’s not at the top of the list of offenses we deal with,” Hettel said. “We only have so many resources. When you’re dealing with serious offenses in felony courtrooms and more traditional offenses in minor courtrooms, it’s difficult to extend the resources.”
Jackson County State’s Atty. Michael Wepsiec said he can’t “spend tons of money [prosecuting] a petty offense. It’s not exactly like Downstate Illinois is flush with cash. We don’t have $1 million homes and industry knocking on our door.
“I think it’s a bad statute. It forces prosecutors in Illinois to do the impossible for infinitesimally small societal gain,” Wepsiec said. “In my capacity as legal adviser to the sheriff, I suggested they not make arrests for this statute.”
Fathers’ rights attorneys charge that such attitudes reflect kowtowing by state’s attorneys to political pressure from feminist groups who oppose the statute, as well as laziness.
“It’s not politically popular,” said Ronald Isaacs, a Louisiana attorney who founded the Fathers Rights Foundation and tries cases in Illinois. “Militant feminists are so politically strong.”
The law represents “more work for [state’s attorneys],” Isaacs said. But, he said, the law still should be enforced. “How they think they have the right to decide what they will and won’t enforce is beyond me.”
Leving said too many police officers and state’s attorneys still don’t know the law exists. “This tells me the law is not being taken seriously.”
Illinois’ statute was written by former state Rep. Cal Skinner (R-Crystal Lake), current Libertarian candidate for governor, who got the idea for the law after being denied visitation himself after a bitter divorce.
Skinner said the law is needed to “balance the scales of justice a little.” Though non-payment of child support is a felony and parents who don’t get it can turn to the government for free collection services, he said, visitation interference hasn’t received the same treatment.
“There are two issues that are of major importance in a divorce: money and kids. Society has said money is important, but until my bill passed, it didn’t say kids were important,” Skinner said.
When things work out
Parents who regularly visit their children are more likely to pay child support on time, Skinner said, while children also benefit from regular contact with both parents.
The penalties provided by the law–criticized by some as being too weak–were the toughest he could get passed at the time, according to Skinner. He said a single charge should be enough to bring custodial parents into line, without having to get to the misdemeanor stage.
“I don’t want the mother to end up in jail, but I do want the custodial parent to know there is a consequence,” Skinner explained.
Enforcement of the statute varies across the state, according to a legislative research report prepared last month using Illinois State Police data. Because the statute does not fall under the Uniform Crime Reporting Act, counties don’t have to report how often the law is invoked. Some have done so voluntarily. Of those counties reporting it between 1997 and 2000, the number of cases grew during that time, rising 41 percent, to 557 cases from 394 cases. Similarly, the number of people charged with visitation interference also increased, from 263 in 1997 to 349 in 2000. No figures after 2000 are available.
Civil court
Before 1994, visitation-interference complaints in Illinois were handled in civil court, with family court judges issuing contempt citations against parents who didn’t comply. Illinois’ law is part of a national trend to stiffen visitation laws, said Jeff Atkinson, adjunct professor at DePaul University College of Law, and author of a book on custody law.
“Part of the impetus for this was the trend in the ’70s and ’80s to enhance laws for child-support enforcement,” Atkinson said. “The states concluded that as a matter of equity they should enforce visitation orders as well.”
Atkinson said other states have a variety of penalties. Michigan suspends driver’s licenses for violators; Florida requires community service be performed; others require parents to post a bond that will be forfeited if visitation doesn’t occur.
Illinois is not unique in setting up criminal penalties for failure to abide by visitation orders, said Atkinson, who estimated that 5 to 10 states have such statutes.
Skinner said Illinois was first. “I’ve gotten inquiries about my law from as far away as France,” he said.
Eileen King, director of Justice for Children, a non-profit child-advocacy group, opposes visitation-interference laws like Illinois’.
In most cases where there are serious visitation disagreements, she said, custodial parents fear abuse. Judges too often award visitation even if there are indications of child or domestic abuse, King said.
“Judges say, `I don’t care if he’s been abused, he’s going to have a relationship with’ ” him or her.
Children can be further harmed by laws that could result in a custodial parent being jailed.
“What kind of a message are we sending to children through that?” King said. “That they are responsible for putting a parent in jail?”
Indeed, child psychologists say the trauma of a visitation battle can inflict permanent scars on children.
“There are very few things we know are really bad for kids, who are fairly resilient,” said Jay Lebow, a psychologist and senior staff therapist at the Family Institute in Evanston. “This kind of protracted conflict between parents about whether a child should or should not be with a parent is one in which children almost universally cope badly.
“Even the ones who might not show a lot of symptoms at the time, years later they’re very likely to go into therapy. Protracted conflict between parents is so psychonoxious for kids.”
Mediation as an answer
Chicago psychologist and family mediator Mark A. Rogers suggests that mediation be considered more often as a way to resolve visitation disputes.
“What I favor instead of trying to invoke visitation interference is for parents to try to work with a neutral party to identify what the real problem is here.”
Hettel agreed that mediation is a better solution, if possible, than using the courts to arbitrate visitation problems.
“You have two parents fighting over their kids. It definitely has an effect on the children–an effect they are not going to be able to escape no matter how civil or concerned these parents are. They are not agreeing about the main thing that affects these kids’ lives. The idea of an adversarial process trying to sort this out is ridiculous.”
Mediation, however, requires both parents to agree to go, which often is problematic in contentious post-divorce relationships where neither side can agree to anything.
What can be done to make the visitation-interference law more effective?
Some lawyers such as Leving suggest that penalties need to be made much stiffer, such as a misdemeanor penalty for a first offense. Others call for different modifications.
Michael Roe, a Naperville family lawyer and mediator, suggests that Illinois’ statute be changed to include a finding from the civil court before criminal action can occur.
“The statute allows a divorced parent to call police and say there’s been a violation of my visitation. That’s an enormous prosecutorial tool that I don’t think should be in the hand of embittered divorced people, without some preliminary factual finding at the domestic-relations level,” Roe said.
Others, such as Wepsiec, believe the law should be tossed out. “It’s trying to criminalize what belongs in postdivorce court. It should disappear.”
Rogers isn’t sure where he stands. “Some days I think it’s good and should stay in place. Other days I waffle and think it’s another bureaucratic mess we’ve gotten ourselves into.
“For the most part, it raises an issue that needs to be addressed.”
