Divorces are heated. Often, parents don’t agree on how to raise their children. Sometimes, parents, their relatives, and/or friends can even believe a child is in danger to the point where they call the authorities. In Illinois, the Department of Children And Family Services (DCFS) is responsible for investigating the possible endangerment of a child.
What happens if the report to DCFS is false? What are the consequences for the reporter and the reported parent?
What Happens When DCFS Receives A Report?
When DCFS receives a report they are obligated to investigate the allegations and, if necessary, act on those allegations.
“The Illinois Department of Children and Family Services shall, upon receiving reports made under this Act, protect the health, safety, and best interests of the child in all situations in which the child is vulnerable to child abuse or neglect, offer protective services in order to prevent any further harm to the child and to other children in the same environment or family, stabilize the home environment, and preserve family life whenever possible.” 325 ILCS 5/2
Upon receipt of a report, “the Department shall determine whether to conduct a family assessment or an investigation as appropriate to prevent or provide a remedy for child abuse or neglect.” 325 ILCS 5/7.4(a-5)
So, there are two courses of action DCFS can take upon receipt of a report: 1) family assessment and 2) investigation.
”[F]amily assessment” means a comprehensive assessment of child safety, risk of subsequent child maltreatment, and family strengths and needs that is applied to a child maltreatment report that does not allege substantial child endangerment. “Family assessment” does not include a determination as to whether child maltreatment occurred but does determine the need for services to address the safety of family members and the risk of subsequent maltreatment.” 325 ILCS 5/7.4(a-5)
Family assessments are a former an offer of help to the parents of the child. In a family assessment, there are no findings of abuse or subsequent steps if that help is refused.
An investigation is an inquiry, not just an offer of help.
“”[I]nvestigation” means fact-gathering related to the current safety of a child and the risk of subsequent abuse or neglect that determines whether a report of suspected child abuse or neglect should be indicated or unfounded and whether child protective services are needed.” 325 ILCS 5/7.4
If abuse gets discovered after the investigation, that investigation’s findings can be used as evidence in a divorce case.
If the abuse is so severe that the child remains in danger “[a] designated employee of the Department…may take or retain temporary protective custody of the child without the consent of the person responsible for the child’s welfare, if (1) he has reason to believe that the child cannot be cared for at home or in the custody of the person responsible for the child’s welfare without endangering the child’s health or safety; and (2) there is not time to apply for a court order under the Juvenile Court Act of 1987 for temporary custody of the child.” 325 ILCS 5/5
This means that DCFS can take away a child immediately without a court hearing if the DCFS employee believes the child’s health or safety is endangered.
What Happens When An Illinois DCFS Report Comes Back Unfounded?
“The Child Protective Service Unit shall determine, within 60 days, whether the report is “indicated” or “unfounded” and report it forthwith to the central register… In those cases in which the Child Protective Service Unit has made a final determination that a report is “indicated” or “unfounded”, the Department shall provide written notification of the final determination to the subjects of the report and to the alleged perpetrator, parents, personal guardian or legal guardian of the alleged child victim, and other persons required to receive notice by regular U.S. mail.” 325 ILCS 5/7.12
Unfounded reports are then locked away and can only be reviewed under two circumstances: 1) If subsequent abuse is reported or 2) If a false report is alleged.
“Unfounded reports may only be made available to the Child Protective Service Unit when investigating a subsequent report of suspected abuse or maltreatment involving a child named in the unfounded report” 325 ILCS 5/7.14
So, unfounded reports are locked away…until another probable unfounded report is made. Which may make the first unfounded report look like corroborative evidence of the second report (in fairness, the first unfounded report may help extinguish the second report).
If, however, the subject of the investigation alleges an intentional false report, DCFS will keep the unfounded report open for investigation into that false report.
“The Department shall maintain in the central register a listing of unfounded reports where the subject of the unfounded report requests that the record not be expunged because the subject alleges an intentional false report was made. Such a request must be made by the subject in writing to the Department, within 10 days of the investigation.” 325 ILCS 5/7.7
What Is The Penalty For Submitting A False Report To Illinois DCFS?
“Any person who knowingly transmits a false report to the Department commits the offense of disorderly conduct under subsection (a)(7) of Section 26-1 of the Criminal Code of 2012. A violation of this provision is a Class 4 felony.” 325 ILCS 5/4(m)
“For a Class 4 felony:
…
The sentence of imprisonment shall be a determinate sentence of not less than one year and not more than 3 years.” 730 ILCS 5/5-4.5-45
In addition, fines and restitution may be ordered. But, probation, parole and home/electronic monitoring can reduce the jail sentence.
If the report involves hiding the actual abuse of a child (blaming someone else to hide your own abuse), the penalties get steeper.
“[I]f the person acted as part of a plan or scheme having as its object the prevention of discovery of an abused or neglected child by lawful authorities for the purpose of protecting or insulating any person or entity from arrest or prosecution, the person is guilty of a Class 4 felony for a first offense and a Class 3 felony for a second or subsequent offense.” 325 ILCS 5/4(m)
It is still a Class 4 felony if the crime a first offense but a second offense is a Class 3 felony.
“For a Class 3 felony:
…
The sentence of imprisonment shall be a determinate sentence of not less than 2 years and not more than 5 years.” 730 ILCS 5/5-4.5-40
| Penalties | Details |
|---|---|
| First-time false report to DCFS (Class 4 Felony) | 1 to 3 years imprisonment, fines, restitution, possible probation |
| Scheme to hide abuse (First Offense – Class 4 Felony) | 1 to 3 years imprisonment, fines, restitution, possible probation |
| Scheme to hide abuse (Second/Subsequent Offense – Class 3 Felony) | 2 to 5 years imprisonment, additional fines, restitution |
How Do You Report A False Allegation To DCFS In Illinois?
If you are the subject of a DCFS allegation which you believe to be false, you can tell DCFS directly. DCFS may then directly report the knowing transmission of a false report to the State’s Attorney of your County for subsequent prosecution.
If DCFS does not report the crime, you can contact your local police and/or State’s Attorney to report the crime.
Finally, you can bring the allegation to your divorce attorney who can then bring the false allegation and its surrounding circumstances to the attention of the divorce judge (and, possibly, Guardian Ad Litem) who may consider the false report as evidence in their final custody determination.
“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider”
…
the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;
…
the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” 750 ILCS 5/600(c)
Evidence of one lie can imply other lies via the impeachment process. Thereby, rendering the false accuser completely incredible throughout the rest of the divorce.
Can You Sue Someone For Defamation Because Of A False DCFS report?
A defamatory statement is “a statement that harms a person’s reputation to the extent it lowers the person in the eyes of the community or deters the community from associating with her or him.” Green v. Rogers, 234 Ill. 2d 478, 491 (2009)
People say horrible stuff all the time…yet this is also America where you are allowed to say anything (in theory). So, defamation exists but there are exceptions.
“Two classes of privileges have evolved as exceptions to the general rule of liability for defamatory communications.” Solaia Technology v. Specialty Pub. Co., 852 NE 2d 825 – Ill: Supreme Court 2006
There is an absolute privilege defense against defamation, where immunity to defamation actions is conferred without consideration of the defendant’s motive and is based on the principle that otherwise actionable conduct is shielded because the defendant is “acting in furtherance of some interest of social importance that is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation.” Weber v. Cueto, 209 Ill. App. 3d 936, 942 (1991)
This absolute privilege applies to anything remotely associated with any kind of litigation.
“The privilege applies to all communications made before, during, or after litigation and applies regardless of the defendant’s motive or the unreasonableness of his conduct. The only requirement for the litigation privilege to apply is that the communication must pertain to proposed or pending litigation.” Bedin v. Northwestern Memorial Hosp., 187 NE 3d 739 – Ill: Appellate Court, 1st Dist., 6th Div. 2021
Any statement remotely associated with litigation is covered by this absolute privilege.
Even if it’s not clear whether the defamatory statement was made in connection with litigation, a court will be “in favor of finding the communication pertinent to the litigation.” Doe v. Williams McCarthy, LLP, 2017 IL App (2d)
“[I]t is well settled in Illinois that statements made to law enforcement officials for the purpose of instituting criminal proceedings are absolutely privileged.” Bulluomini v. Zaryczny, 2014 IL App (1st) 122664, ¶ 11.
“[O]nce a privileged statement is made to law enforcement any subsequent restatements made in furtherance of an investigation fall under this privilege.” Razavi v. Walkuski, 2016 IL App (1st) 151435
I’ve been practicing divorce law for over 15 years. Leopards do not change their spots. Liars lie. Protect yourself and make them accountable for their lies. Contact my Chicago, Illinois family law firm to discuss the false reports to DCFS that you are experiencing and learn about what you can do to deter them and/or use them to your advantage.
