Child Custody and Illinois Orders of Protection Explained

Child Custody and Orders of Protection | Illinois Allocation of Parenting Time and Responsibility

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
November 1, 2019

In this article, we explain allocation of parenting time and responsibility as a remedy in Illinois Order of Protection hearings.  Orders of Protection are court orders intended to protect the petitioner, the petitioner’s children, or other protected parties from abuse at the hands of a family or household member.  (For some foundational information about Orders of Protection, check out our article, Illinois Orders of Protection Explained.)  

Courts have discretion to order a wide range of remedies in an Order of Protection, including exclusive possession of a shared residence or requiring that the respondent stay away from the petitioner or other protected parties.  One of the issues that courts may resolve in an Order of Protection proceeding is the allocation of parenting time and responsibility. (Allocation of parenting time and responsibility is more commonly known as “child custody” and “visitation.”  However, recent changes in Illinois law have moved courts away from use of this language.)   

Can Allocation of Parenting Time And Responsibility be Ordered in an Emergency Order of Protection?

Emergency Orders of Protection are temporary orders intended to prevent harm to the petitioner before the respondent can be served with notice of the petition for order of protection or a hearing can be conducted.  No notice to the respondent is necessary to obtain an Emergency Order of Protection, and an emergency order can be granted ex parte (without the respondent being present).  Plenary Orders of Protection, on the other hand, are final orders that are entered after the respondent has been served with process and a hearing has been conducted.  

Allocation of parental time and responsibility is not an available remedy for Emergency Orders of Protection.  This type of relief may only be granted in a Plenary Order of Protection, after the respondent has been afforded notice and the opportunity to be heard.  

However, Emergency Orders of Protection can grant the petitioner physical care or possession of a minor child or order the respondent to return a minor child to the petitioner.  The distinction is that granting physical care and possession of the minor child is a temporary situation, while allocation of parental time and responsibility is a longer-term adjudication of parental rights.    

How Do Illinois Courts Decide How to Allocate Parental Responsibility in Order of Protection Hearings?

The test that Illinois courts use to determine how to allocate parental responsibilities is the “best interest of the child.”  Courts will look at the particular facts of each case to determine what would be the best situation for the child.  

If the court finds that the respondent in an Order of Protection hearing has committed “abuse” of a minor child, a rebuttable presumption arises that awarding parental responsibilities is against the best interests of the child.  You should be aware that the definition of “abuse” is much broader than simply physical abuse.   

How Do Courts Decide Custody Issues in Order of Protection Hearings?

Illinois courts also use the “best interest of the child” standard to determine how to allocate parenting time in Order of Protection hearings.  The court will restrict the respondent’s parenting time if the court finds that the respondent did or is likely to do any of the following:

  • Abuse or endanger the child;
  • Use parenting time to harass the petitioner;
  • Improperly conceal the child from the petitioner;
  • Act in any other manner against the best interests of the child.

Restricted Parenting Time and Supervised Parenting Time and Orders of Protection

In Order of Protection hearings, courts may place restrictions and other conditions on parenting time, such as specifying a particular location for dropping the child off or explicitly requiring that the respondent not be intoxicated during parenting time.  

Courts may also order supervised parenting time.  This means that the respondent’s parenting time will be supervised by a specific individual or entity.  If the parties cannot come to an agreement as to who will supervise, the parties may use a supervised parenting time center for a fee.

The standard that courts use to determine whether to order supervised or restricted parenting time is whether unsupervised or unrestricted parenting time would seriously endanger the child’s physical, mental, moral or emotional health.

Allocation of Parental Rights and Responsibilities for Children Born Outside of Marriage and Orders of Protection

Unless paternity has been established, fathers of children born outside of marriage do not have any rights to allocation of parenting time and responsibility.  For more information in Illinois paternity proceedings, check out our article: Illinois Paternity Law Explained.  

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Can Allocation of Parenting Time And Responsibility be Ordered in an Emergency Order of Protection?

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