Posted on February 1, 2025

Does Bad Parenting Qualify As Abuse In An Illinois Divorce?

Some parents do really dumb things with their kids. It is possible that the dumb activity might be so dangerous or ill-conceived that the reckless activity may constitute abuse for the purpose of getting an order of protection against that parent.

“In any proceeding to obtain an order of protection, the central inquiry is whether the petitioner has been abused.” Best v. Best, 223 Ill. 2d 342, 348 (2006)

If abuse is found an order of protection shall issue. “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

The child need not file the petition for an order of protection to get protection from a “bad parent.” Literally, anyone can file a petition for an order of protection for a minor child.

“A petition for an order of protection may be filed only…household member or by any person on behalf of a minor child” 750 ILCS 60/201(a)

Determining whether abuse has occurred is not a high standard.

“The standard of proof in such a proceeding is proof by a preponderance of the evidence” 750 ILCS 60/205(a)

When the “standard of proof is only a preponderance of the evidence, [a Petitioner] must prove that it is more probably true than not true that [Respondent] was guilty of such acts of [abuse].” In re Marriage of Gordon, 599 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 1992

Abuse is defined by the Illinois Domestic Violence Act. The statute outlines 5 types of abuse: 1) physical abuse, 2) harassment, 3) intimidation of a dependent, 4) interference with personal liberty or 5) willfull deprivation.

The petition for an order of protection must specify which kind of abuse is being alleged.

“ ‘Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.” 750 ILCS 60/103(1) (emphasis added)

Whatever kind of abuse is being alleged, it will not be deemed actionable if the abuse is “reasonable direction of a minor child by a parent.”

Bad parenting that constitutes abuse of the child is invariably physical abuse under the statutory definition.

“Physical abuse” includes sexual abuse and means any of the following: (i) knowing or reckless use of physical force, confinement or restraint; (ii) knowing, repeated and unnecessary sleep deprivation; or (iii) knowing or reckless conduct which creates an immediate risk of physical harm.” 750 ILCS 60/103(14).

Physically striking a child or doing something that consistently keeps the child awake can easily be proven and will constitute abuse necessitating an order of protection.

Typically, bad parents don’t willfully hurt or torment their children. Instead, bad parents do really dumb things that put their children at risk. This “knowing or reckless conduct which creates immediate risk of physical harm” is more difficult to prove.

Some examples of “knowing or reckless conduct which creates immediate risk of physical harm” are:

Firing a gun at a car adjacent to a home placed the occupants of the home in immediate risk of physical harm. People v. Nixon, 2016 IL App (2d) 130514, ¶ 39

A destructive rampage involving upending furniture and throwing items created an immediate risk of physical harm to the children in the home. Frank v. Hawkins, 383 Ill. App. 3d 799, 815 (2008)

The parent need not be the abuser in fact. A parent who exposes their child to an abuser has created an immediate risk of physical harm.

A child was placed in immediate risk of physical harm where mother directed child to perform oral sex on various men and required child to beg for money and steal food. In re T.H., 354 Ill. App. 3d 301, 310 (2004) overruled on other grounds by Best v. Best, 223 Ill. 2d 342 (2006)

Physical harm need not occur to meet the abuse standard. The mere risk of harm is enough to allow an order of protection to issue.

“The potential for immediate physical harm, in [the mother] either bringing the children into the store or leaving them in a running car while committing a theft, is manifest.”. In re Marriage of Holtorf, 397 Ill. App. 3d 805, 811 (2010)

Most bad parenting that is NOT direct physical abuse or is NOT indirect abuse yet horrifying like in the cases of In re T.H. and In re Marriage of Holtorf will be chalked up to mere bad parenting and will NOT be qualified as abuse for the purposes of issuing an order of protection.

“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

Instead, the complaining parent will, likely, be advised to go to the family law court and file a motion to modify parenting time and/or parental responsibilities.

Parental responsibilities can only be modified if “there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/610.5(a)

“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a)

So, a child can be removed from a parent for bad parenting but the “bad parent” will still have a say in the child’s life unless serious endangerment has been proven.

In conclusion, bad parenting is always grounds for modifying an Illinois parenting plan but is only rarely grounds for an order of protection.

If you believe your child’s parent is abusing your child, contact my Chicago, Illinois family law firm to discuss your case with an experienced Illinois divorce attorney.

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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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