Posted on December 10, 2023

Custody Of Children And Orders Of Protection In Illinois

I have told clients for years that the family law system is slow but it is fair. There is one part of the system that is rapid by design…and has instant results to the benefit of one parent and the detriment of the other parent: orders of protection.

Orders Of Protection Lead To Immediate Temporary Custody Orders In Illinois

Orders of protection happen fast. In fact, orders of protection are usually always initially filed as emergencies and heard the same day or the next day.

“If the court finds that petitioner has been abused by a family or household member or that petitioner is a high-risk adult who has been abused, neglected, or exploited, as defined in this Act, an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214(a)

“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)

Once a finding of abuse is made an order of protection SHALL be granted.

“[If an order of protection is granted t]he remedies to be included in an order of protection shall be determined in accordance with this Section” 750 ILCS 60/214

The remedies listed in the Illinois Domestic Violence Act include immediate rulings regarding the parenting time and parental decision-making (formerly known as “custody”) of the children.

“Physical care and possession of the minor child. In order to protect the minor child from abuse, neglect, or unwarranted separation from the person who has been the minor child’s primary caretaker, or to otherwise protect the well-being of the minor child, the court may do either or both of the following: (i) grant petitioner physical care or possession of the minor child, or both, or (ii) order respondent to return a minor child to, or not remove a minor child from, the physical care of a parent or person in loco parentis.”

“Temporary allocation of parental responsibilities: significant decision-making. Award temporary decision-making responsibility to petitioner in accordance with this Section, the Illinois Marriage and Dissolution of Marriage Act, the Illinois Parentage Act of 2015, and this State’s Uniform Child-Custody Jurisdiction and Enforcement Act.” 750 ILCS 60/214(b)(6)

An Illinois domestic violence court can provide a parenting schedule for the respondent and the child after an order of protection is entered.

“Parenting time. Determine 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. The court shall restrict or deny respondent’s parenting time with a minor child if the court finds that respondent has done or is likely to do any of the following: (i) abuse or endanger the minor child during parenting time; (ii) use the parenting time as an opportunity to abuse or harass petitioner or petitioner’s family or household members; (iii) improperly conceal or detain the minor child; or (iv) otherwise act in a manner that is not in the best interests of the minor child. The court shall not be limited by the standards set forth in Section 603.10 of the Illinois Marriage and Dissolution of Marriage Act. If the court grants parenting time, the order shall specify dates and times for the parenting time to take place or other specific parameters or conditions that are appropriate. No order for parenting time shall refer merely to the term “reasonable parenting time”. 750 ILCS 60/214(b)(7)

The respondent is going to have to be on their best behavior for all future visits with the child.

“Petitioner may deny respondent access to the minor child if, when respondent arrives for parenting time, respondent is under the influence of drugs or alcohol and constitutes a threat to the safety and well-being of petitioner or petitioner’s minor children or is behaving in a violent or abusive manner.” 750 ILCS 60/214(b)(7)

The respondent is definitely not picking up the child from the abused parent’s home (and causing more trouble)

“If necessary to protect any member of petitioner’s family or household from future abuse, respondent shall be prohibited from coming to petitioner’s residence to meet the minor child for parenting time, and the parties shall submit to the court their recommendations for reasonable alternative arrangements for parenting time. A person may be approved to supervise parenting time only after filing an affidavit accepting that responsibility and acknowledging accountability to the court.” 750 ILCS 60/214(b)(7)

If the child suffered any kind of abuse at the hands of the respondent, the court MUST deny the respondent any parenting time or decision-making power.

“If a court finds, after a hearing, that respondent has committed abuse (as defined in Section 103) of a minor child, there shall be a rebuttable presumption that awarding [physical care/temporary significant decision-making responsibility] to respondent would not be in the child’s best interest.” 750 ILCS 60/214(b)(5),(6)

But, wait! Orders of protection are, typically, initially filed and heard in domestic violence court. Should a domestic violence court be making all these decisions about which parent a child should stay with? There’s a whole other court and set of laws that determine parenting time and parental decision making (formerly known together as “custody”)

The Limits Of A Domestic Violence Court In Determining Custody Of A Child In Illinois

For the most part, domestic violence courts not only CAN determine temporary custody of a child but a domestic violence court MUST make custody determinations if issuing an order of protection.

“Because the action in the instant case was not a covert attempt to interfere with child custody or visitation, because the finding of abuse was fully supported by the record, and because the Domestic Violence Act specifically provides that the circuit court may address the issue of temporary child custody, we believe the circuit court erred when it refused to consider the issue of temporary child custody in this case.” Sutherlin v. Sutherlin, 843 NE 2d 398 – Ill: Appellate Court, 5th Dist. 2006

However, the final resolution of a child’s custody in Illinois should be resolved by divorce and parentage courts using the Illinois Marriage And Dissolution Of Marriage Act.

“Obtaining an order of protection is not the proper procedure for resolving child custody or visitation issues. Those issues should be resolved under the Illinois Marriage and Dissolution of Marriage Act” Radke ex rel. Radke v. Radke, 812 NE 2d 9 – Ill: Appellate Court, 3rd Dist. 2004

This does not mean that every order of protection that makes custody decisions are void under the Radke case. If, however, the motivation of the parent who filed the petition for order of protection was to really acquire custody of the children, then that order of protection is void.

“Radke and the cases cited by Radke stand for the principle that visitation or custody issues should not be addressed at an order-of-protection hearing where the primary objective of the party seeking an order of protection is really to interfere with or change a child custody or visitation order.” Sutherlin v. Sutherlin, 843 NE 2d 398 – Ill: Appellate Court, 5th Dist. 2006

Even if an order of protection makes custody determinations, sooner or later, the case is going to go before a parentage or divorce judge.

In Cook County, the transfer of an order of protection’s jurisdiction is automatic the moment a divorce or parentage action is filed.

“When a petition for an order of protection is filed…there is a domestic relations matter pending….the order of protection shall be consolidated with the pending domestic relations matter after the hearing on an emergency order of protection.” Cook County Court Rules 13.3(i), (ii)

Without a pending divorce or parentage action, the current court must soon apply the myriad of rules under the Illinois Marriage And Dissolution Of Marriage Act.

While a custody order pursuant to an order of protection is legitimate, courts should “expeditiously conduct a hearing pursuant to the Marriage Act to determine the children’s best interest” In re Marriage of Potenza and Wereko, 189 NE 3d 418 – Ill: Appellate Court, 1st Dist., 1st Div. 2020

In fact, after a custody decision is made pursuant to a petition for order of protection, the parties can always come back to court on a motion to modify the terms of the order of protection (including the custody provisions).

“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)

The Illinois Marriage And Dissolution of Marriage Act’s requirement that the courts make a finding of a “substantial change in circumstances” in order to modify an order of protection’s custody findings. The subsequent change in custody itself is a substantial change in circumstances that needs to be investigated. It is “in the best interests of such children that the trial court conduct a further hearing regarding their removal from [one parent’s custody]. A change of circumstances has ensued and further evidence should be adduced as to the present situation of the children as to housing, education, financial well being, health, moral atmosphere and as to the preference of the children.” Reddig v. Reddig, 299 NE 2d 353 – Ill: Appellate Court, 3rd Dist. 1973

A parent can gain or lose custody in the blink of an eye when an order of protection is filed. Therefore, the parent losing custody should file a divorce or parentage action as soon as possible after the entry of an order of protection. The methods of recovering parenting time are numerous and fair in a divorce or parentage action. In an order of protection…they are governed by the mere few hundred words I have quoted above.

If you have children and you have a pending or plenary order of protection, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney today.  

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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