People who get divorced get in fights. It is not unusual for a fight between a married couple to result in one spouse filing a Petition For An Order of Protection against the other spouse.
For divorces with children, a Petition for an Order of Protection can cause one parent to be denied time from their children for months. The alleged abuser will have to win back the trust of court system, the children’s other parent and even the children themselves before the alleged abuser can see their own children again.
How do you prevent a Petition for an Order of Protection from being abused? How do you prevent an Order of Protection from being a tool to determine the custody before the divorce papers are even filed?
What Is An Order Of Protection?
A Petition for an Order of Protection is far different from the subsequent Petition For Dissolution of Marriage. The requirements are different and the results are different. Understanding the differences between the two types of Petitions will help you preserve your rights in an Illinois divorce court.
“If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214
“Abuse” is all that’s required to prove in order to get an order of protection that covers the petitioner and the party’s children.
“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)
While “physical abuse” will require some kind of proof of physical contact between the two parties, “harassment” is almost anything.
“Harassment” means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:(i) creating a disturbance at petitioner’s place of employment or school;(ii) repeatedly telephoning petitioner’s place of employment, home or residence;(iii) repeatedly following petitioner about in a public place or places;(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner’s windows;(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner’s from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence; or(vi) threatening physical force, confinement or restraint on one or more occasions.” 750 ILCS 60/103(7)
Furthermore, a petition for an order of protection can be granted on an emergency basis.
“An emergency order of protection shall be issued by the court if it appears from the contents of the petition and the examination of petitioner that the averments are sufficient to indicate abuse by respondent” 750 ILCS 60/214(d)
The reader will note that the Respondent’s testimony is not mentioned as a requirement in determining whether to grant an Emergency Petition for an Order of Protection. That is because in an Emergency Petition for an Order of Protection, it is presumed that the alleged abuser will NOT be there and the hearing will be done ex parte.
Ex parte means “done or made at the instance and for the benefit of one party only, and without notice to or argument by, anyone having an adverse interest.” Black’s Law Dictionary (11th ed. 2019).
Without any defense presented by the Respondent to the Emergency Petition for an Order of Protection, the Petitioner, if they share children, can ask that the Respondent be denied access to their children.
After an Order of Protection is entered an Illinois court may “[d]etermine the parenting time, if any, of respondent in any case in which the court awards physical care or allocates temporary significant decision-making responsibility of a minor child to petitioner.” 750 ILCS 60/214(b)(7)
Furthermore, the court can award or deny parenting time through an Order of Protection without considering the best interests of the child as required by the Illinois Marriage and Dissolution of Marriage Act.
In a hearing on a Petition for an Order of Protection “[t]he court shall not be limited by the standards set forth in Section 603.10 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 60/214(b)(7)(emphasis mine)
Once an order of protection is issued (when you were not even present) and that Order of Protection limits parenting time, how do you get parenting time back?
You must allege an abuse of the of the Domestic Violence Act.
Abuse Of An Order Of Protection In An Illinois Divorce
What is done is done. The order of protection was entered. You were not even there when it got entered. Now you must amend the order of protection so that you can see your own children (we’ll worry about vacating the order of protection later)
“Upon motion by petitioner or respondent, the court may modify any prior order of protection’s remedy for custody, visitation or payment of support in accordance with the relevant provisions of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 60/224(b)
Now is your chance to tell your story and your children’s story to the judge.
The first order of business is to remind the judge that they are not to consider any evidence that was presented in the ex parte hearing that got the order of protection entered in the first place.
“[I]t [is] improper for the judge to consider the evidence heard at the ex parte hearing” In re Marriage of Gordon, 233 Ill. App. 3d 617, 649 (Ill. App. Ct. 1992)
You get to start anew and remind the court that you are presumed to be a fit parent.
“It is presumed both parents are fit and the court shall not place any restrictions on parenting time… unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.” 750 ILCS 5/602.7(b)
Parenting time for fit parents should be determined according to the children’s best interests.
“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)
After you have established that the children’s best interests require you to exercise significant parenting time, you can inform the court of the other parent’s attempt to abuse the Domestic Violence Act’s true purpose in order to obtain an immediate custody order.
“[P]roceedings under the Domestic Violence Act for protective orders are not, strictly speaking, “contested custody proceedings.” The primary purposes of the Act are to aid the victims of domestic violence and prevent further abuse. Nevertheless, one of the remedies available to a petitioner seeking an order of protection is temporary legal custody. An award of custody under section [750 ILCS 60/]214 is to be made “in accordance with” the Marriage Act. Therefore, because temporary custody may be awarded under the Domestic Violence Act, and because the Act makes specific reference to the Marriage Act, we believe that a court in a domestic violence case could order a home study pursuant to section 605 of the Marriage Act. We further believe, however, that such a study should only be ordered in exceptional cases because of the substantial possibility of causing delay. An action for an order of protection is an expedited proceeding which should not be prolonged unless clearly necessary.” Wilson v. Jackson, 312 Ill. App. 3d 1156, 1163-64 (Ill. App. Ct. 2000)(Citations Omitted)
“An emergency order may not include the counseling, legal custody, payment of support or monetary compensation remedies.” 750 ILCS 60/217(a)(3)(iii)
“While petitioner’s desire to be a part of his child’s life is laudable, obtaining an order of protection is not the proper procedure for establishing visitation.” Wilson v. Jackson, 312 Ill. App. 3d 1156, 1164-65 (Ill. App. Ct. 2000)
“We repeat that the primary purpose of the Domestic Violence Act is to aid victims of domestic violence and prevent further abuse, not resolve issues of visitation and custody.” Wilson v. Jackson, 312 Ill. App. 3d 1156, 1166 (Ill. App. Ct. 2000)
“To approve the procedure followed in this case would be an open invitation to parties disappointed in a custody dispute to file a separate action under the Domestic Violence Act and call it something other than a claim for custody.” In re Marriage of Gordon, 233 Ill. App. 3d 617, 648 (Ill. App. Ct. 1992)
Hopefully, at this point you’ve already filed a Petition For Dissolution of Marriage and have consolidated the Order of Protection matter into the divorce. Every county in Illinois has a different consolidation procedure.
For example, Rule 13.3(g)(i) and (ii) of the Cook County Local Rules requires that “the order of protection shall be consolidated with the pending domestic relations matter after the hearing on an emergency order of protection.”
“[P]roceedings may be maintained under both the Marriage Act and the Domestic Violence Act.” In re Marriage of Gordon, 233 Ill. App. 3d 617, 648 (Ill. App. Ct. 1992)
The focus of divorce law in Illinois is children’s well-being whereas the focus of domestic violence law is safety.
“The Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides parents with certain safeguards and protections which they are not afforded under the Domestic Violence Act. Under the IMDMA, in order to modify a parent’s custodial rights, proper notice must be given and a subsequent hearing must be held.” In re Marriage of Gilbert, 822 NE 2d 116 – Ill: Appellate Court, 1st Dist., 4th Div. 2004
If the court finds that the Petition for Order of Protection was really a ruse to keep a parent away from their children, the order of protection will be denied or vacated.
If a petitioner “misused the Domestic Violence Act for the purpose of attempting to alter [respondent’s] visitation with [the child]…[and] no harassment occurred [it is appropriate to] [deny or] vacate the order of protection.” Radke ex rel. Radke v. Radke, 812 NE 2d 9 – Ill: Appellate Court, 3rd Dist. 2004
The court could consider almost anything in determining that there was abuse to warrant the issuance of an Emergency Order of Protection. Likewise, the court can consider almost anything in determining that the Petition for an Order of Protection was fraudulent in nature.
An Illinois court has “broad discretion in determining whether abuse occurred under the Act, should evaluate the credibility of the witnesses, the conduct described, and the tension among household members.” In re Marriage of Lichtenstein, 637 NE 2d 1258 – Ill: Appellate Court, 2nd Dist. 1994
Lies In A Petition For An Order Of Protection In Illinois
If an order of protection is properly dismissed or modified, I typically advise my clients to consider the denied/vacated order of protection a win and proceed with the underlying divorce. The would-be accuser is still the other parent of your children and you will have to deal with them until your children are 18.
A request for make-up time with your children will be sympathetically heard by the court. You can remind the court that if the court had ordered parenting time in lieu of an order of protection, you would be entitled to make-up time with your children under the Illinois Marriage and Dissolution of Marriage Act.
If there already was an order for parenting time a court may order that “makeup parenting time be provided for the aggrieved parent or child under the following conditions:(A) that the parenting time is of the same type and duration as the parenting time that was denied, including but not limited to parenting time during weekends, on holidays, and on weekdays and during times when the child is not in school;(B) that the parenting time is made up within 6 months after the noncompliance occurs, unless the period of time or holiday cannot be made up within 6 months, in which case the parenting time shall be made up within one year after the noncompliance occurs” 750 ILCS 5/607.5(c)(5)
If the Petition For An Order Of Protection is rife with provable lies, you may ask the court to force the other parent to pay the attorney’s fees required to dismiss or modify the order of protection.
“If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137(a)
“The purpose of the rule is to penalize attorneys and parties who abuse the judicial process by filing frivolous or false matters without a basis in law or fact or for purposes of harassment.” In re Marriage of Petrik, 973 NE 2d 474 – Ill: Appellate Court, 2nd Dist. 2012
The Illinois Domestic Violence Act of 1986 gives a very short window for the filing a petition for fees for false statements in relation to a Petition for an Order of Protection.
“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal, as provided in Supreme Court Rule 137.” 750 ILCS 60/226
Both Rule 137 and 750 ILCS 6/226 motions for fees must be made within 30 days of the entry or dismissal of the underlying order of protection.
“Motions brought pursuant to [Rule 137]must be filed within 30 days of the entry of final judgment, or if a timely post-judgment motion is filed, within 30 days of the ruling on the post-judgment motion.” , Ill. Sup. Ct. R. 137
If your divorce has begun with an order of protection, you are in the midst of a highly contested divorce. You need effective representation…before it happens again. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.