What To Do If Your Spouse Threatens To Take Your Children During An Illinois Divorce
Hearing your spouse say, “I’m taking the children, and you will never see them again,” is one of the most frightening things that can happen during a divorce. When emotions are already high, threats about the children can quickly make things worse. It’s important to know that one parent usually cannot just decide to cut the other parent out of the children’s lives. Illinois courts decide parental responsibilities and parenting time based on what is best for the children, not on who demands more. Still, if you believe your spouse might actually try to remove, hide, relocate, or keep the children from you, take those threats seriously.
Illinois now uses the terms “parental responsibilities” and “parenting time” instead of “custody” and “visitation.” The main concern is still your relationship with your children. If your spouse is threatening to interfere with that relationship during a divorce, there are legal steps I can take to help protect your rights and get enforceable court orders.
Do Not Assume Your Spouse Can Decide Who Gets The Children
Sometimes, parents make threats during divorce because they think having the children with them gives them more legal power. But Illinois law does not decide parenting rights that way.
Under 750 ILCS 5/602.7, Illinois courts allocate parenting time according to the best interests of the child. Unless the parents have submitted an agreed parenting plan approved by the court, the judge can establish how parenting time will be divided. Illinois law also presumes that both parents are fit unless there is evidence supporting restrictions on parenting time.
The court looks at many things when deciding parenting time. These include each parent’s relationship with the child, how the child is doing at home and school, each parent’s past involvement, how far apart the parents live, what the child needs, and whether each parent supports the child’s relationship with the other parent.
A spouse therefore cannot ordinarily obtain sole control of the children simply by announcing that this is what will happen.
Document Every Threat Concerning The Children
If your spouse threatens to take the children, stop you from seeing them, move away, or not return them, make sure to keep any evidence of those threats.
I may need to look at text messages, emails, voicemails, social media posts, or other written statements about these threats. It also helps to know when the threats were made, if anyone else heard them, and if your spouse has done anything that shows they might act on the threat.
Documentation becomes especially important when a dispute reaches court. There is an important difference between telling a judge, “My spouse threatened to disappear with the children,” and presenting communications that show exactly what was said and when.
You should avoid responding with threats of your own. Angry messages can become evidence too. Keep your communications focused on the children and their welfare.
Consider Seeking A Temporary Parenting Order
A divorce can take months or longer to resolve. Parents do not necessarily have to wait until the final judgment before obtaining rules governing parenting time.
Under 750 ILCS 5/603.5, an Illinois court may enter a temporary allocation of parental responsibilities before the final allocation judgment when doing so serves the child’s best interests. The temporary allocation is determined under the standards contained in Sections 602.5 and 602.7 of the Illinois Marriage and Dissolution of Marriage Act.
A temporary order can provide structure while the divorce is pending. Depending upon the circumstances, it may establish where the children spend their time, when exchanges occur, how transportation will be handled, and other temporary parenting arrangements.
When a spouse is threatening to withhold the children, obtaining an enforceable temporary schedule may be considerably safer than relying on informal promises.
Understand How Illinois Determines Parental Decision-Making
Parenting disputes involve more than where children spend the night. Illinois courts may also determine which parent has responsibility for significant decisions involving the children.
Under 750 ILCS 5/602.5, significant decision-making responsibilities may include education, health care, religion, and extracurricular activities. Those responsibilities can be allocated to one parent or shared between the parents, depending upon the child’s best interests.
The court can consider the parents’ ability to cooperate, their previous participation in decisions affecting the child, their relationship with the child, the child’s needs, the distance between the households, and whether each parent is willing to encourage a continuing relationship between the child and the other parent.
This is another reason threats to cut the other parent out of a child’s life can matter. A parent’s willingness to foster the child’s relationship with the other parent is specifically relevant under Illinois law.
Take Threats To Leave Illinois Seriously
A threat to move the children to another state should receive immediate attention.
Illinois has specific relocation requirements under 750 ILCS 5/609.2. A parent who has the majority of parenting time, or either parent when parenting time is equal, may seek to relocate with a child. However, qualifying relocations are subject to statutory procedures. In applicable cases, the relocating parent must generally provide written notice at least 60 days before the relocation unless notice is impracticable or the court orders otherwise.
If the other parent objects or refuses to sign the relocation notice, the parent seeking relocation generally must file a petition asking the court for permission.
The judge then considers factors including why the move is proposed, why the other parent objects, each parent’s relationship with the child, educational opportunities, extended family relationships, the effect of the move on the child, and whether a reasonable parenting arrangement can remain in place.
A spouse therefore should not assume that filing for divorce gives that spouse unlimited authority to relocate the children.
Ask Whether Emergency Court Action Is Appropriate
Some threats are expressions of anger. Others indicate an immediate risk.
If I believe there is credible evidence that a parent intends to remove the children improperly, hide them, expose them to danger, or substantially interfere with the other parent’s rights, I can evaluate whether expedited court relief is appropriate.
The available remedy depends upon the circumstances. Courts are generally reluctant to impose severe parenting restrictions based solely upon accusations. Evidence matters.
Under 750 ILCS 5/603.10, however, a court that finds after a hearing that a parent’s conduct seriously endangered a child’s mental, moral, or physical health, or significantly impaired the child’s emotional development, must enter appropriate protective orders. Those orders can include reducing or restricting parenting time, requiring supervision, or imposing conditions on exchanges.
When domestic violence, abuse, threats of violence, substance abuse, or other safety issues are involved, additional remedies may also need to be considered.
Do Not Withhold The Children Just To Protect Your Position
When one parent threatens to take the children, the other parent’s instinct may be to strike first by refusing to allow any contact. That strategy can create its own problems.
If a court order is already in effect, both parents should normally comply with it unless there is a legitimate safety emergency or a court modifies the order.
Illinois law provides procedures for enforcing parenting time. Under 750 ILCS 5/607.5, courts provide an expedited procedure for claims involving violations of allocated parenting time. When a court determines that a parent failed to comply with an approved parenting plan or court order, available remedies can include additional conditions, makeup parenting time, security or bond requirements, reimbursement of certain expenses, and other relief appropriate to the situation.
If you believe following the existing order would place your child in genuine danger, I would rather address that concern through appropriate legal procedures than have you unilaterally disregard the order without understanding the possible consequences.
Keep The Children Out Of The Dispute
Children should not become messengers, witnesses, or weapons during divorce.
Do not ask your children to choose between parents. Avoid criticizing the other parent in front of them. Do not tell them that the other parent is trying to “steal” them unless there is a compelling safety reason for discussing the situation in an age-appropriate manner.
Courts focus heavily on the child’s welfare and the parents’ ability to support healthy relationships. A parent who repeatedly involves children in adult disputes may damage both the children and that parent’s position in the case.
I encourage clients to communicate through appropriate adult channels and keep children as insulated from the litigation as circumstances permit.
Illinois Divorce Frequently Asked Questions
Can My Spouse Take My Children And Refuse To Let Me See Them During Our Illinois Divorce?
One parent does not ordinarily have unilateral authority to permanently prevent the other parent from seeing the children. Illinois courts allocate parenting time according to the children’s best interests under 750 ILCS 5/602.7. If a parenting order is already in place, a parent who intentionally violates that order may face enforcement proceedings.
What Should I Do If My Spouse Says They Are Taking The Children Out Of Illinois?
Preserve any written or recorded evidence of the threat and contact a family law attorney promptly. Do not assume that a parent can permanently move the children simply because that parent currently has substantial parenting time.
Can I Keep The Children From My Spouse If I Think They Might Not Return Them?
You should be cautious about violating an existing parenting order based solely on suspicion. If parenting time has already been established by court order, intentionally refusing to comply can lead to enforcement proceedings under 750 ILCS 5/607.5.
Can A Judge Restrict A Parent’s Parenting Time Because Of Threats?
Potentially, but Illinois imposes a meaningful legal standard before parenting time is restricted.
Under 750 ILCS 5/603.10, the court may impose restrictions when it finds by a preponderance of the evidence that a parent’s conduct seriously endangered the child’s mental, moral, or physical health or significantly impaired the child’s emotional development. Restrictions can include supervised parenting time, reduced parenting time, conditions on exchanges, or other safeguards.
Will The Judge Care If My Spouse Is Trying To Turn The Children Against Me?
The court can consider conduct affecting the child’s relationship with either parent. Under 750 ILCS 5/602.5 and 750 ILCS 5/602.7, a parent’s willingness and ability to encourage a close and continuing relationship between the child and the other parent can be relevant when determining parental responsibilities and parenting time.
Speak With Our Schaumburg Family Law Attorney About Threats Involving Your Children
Threats involving children can make an Illinois divorce significantly more stressful, particularly when you do not know whether your spouse intends to carry them out. You should not assume that your spouse can dictate where the children will live, eliminate your parenting time, or move the children wherever they choose. Illinois courts make decisions concerning parental responsibilities and parenting time based upon the children’s best interests and the circumstances of each family.
At the Law Office of Fedor Kozlov, I represent clients on either side of divorce proceedings involving parenting time, parental decision-making, visitation disputes, paternity, relocation, enforcement of parenting orders, and other Illinois family law matters. If your spouse has threatened to take your children, interfere with your parenting time, or move them without your agreement, I can review the situation and explain the legal options available to you.
Contact our Schaumburg divorce lawyer at the Law Office of Fedor Kozlov by calling (847) 241-1299 to receive a consultation. The firm represents clients in Schaumburg and throughout Chicago, Illinois, in divorce and family law matters involving children and parental rights.
