Restraining Order Abuse > TRO > IL Bar J. ***
Posted by: "DADS in FAMILY COURT"
dadsinfamilycourt@yahoogroups.com dadsinfc
Thu Dec 6, 2007 4:01 pm (PST)
Illinois Bar Journal Exposes Restraining Order Abuse
December 4th, 2007
In the November 2007 issue of the Illinois Bar Journal,
Scott A. Lerner, Esq., takes a critical look at the
Illinois Domestic Violence Act (DVA) in his article
"Sword or Shield: Combating Orders-of-Protection Abuse
in Divorce"
http://www.isba.org/IBJ/nov07lj/590%20Family%20Law.htm .
[Enclosed herein for archival reference.]
"There's no question that victims need protection from
abusers," he writes. "But not all parties to divorce are
above using OPs [orders-of-protection] not for their
intended purpose but solely to gain advantage in a
dissolution." And "the greatest potential for abuse
of the system," in Lerner's opinion, "is in visitation."
As Lerner points out, "It is far easier to restrict
visitation via an order of protection then by seeking
the same relief under the IMDMA [the Illinois Marriage
and Dissolution of Marriage Act]. Under the IMDMA,
`A parent not granted custody of the child is entitled
to reasonable visitation rights unless the court finds,
after a hearing, that visitation would endanger seriously
the child's physical, mental, moral or emotional health.'"
Under the DVA, however, "the trial court in an order of
protection hearing has wide discretion to restrict
visitation," as "the serious-endangerment standard
does not apply to the restriction of visitation under
an order of protection." Lerner's opines: "This is an
invitation for parents to use the DVA to circumvent
the IMDMA."
Lerner's advise to defendants facing an order-of-protection
-take the threat very seriously and fight it with everything
you can afford-is sound, but unfortunately putting on a
great defense is all for naught if the game is fixed,
a possibility he only hints at ("Judges, certainly, have
a responsibility to act as gatekeepers by making sure
they do not grant an order of protection except to protect
the petitioner or the children…. Still, abuse will happen.").
The fact that the Illinois Bar Journal is addressing
order-of-protection abuse is a very positive sign.
Slowly but surely the word is getting out about the
potential for abuse of domestic violence laws. It's only
a matter of time before legislatures take steps to reform
a system out of control, and limit restraining order
protection to actual victims, not those looking for
leverage in a divorce.
Phyllis Schlafly provides a nice summary of the article
in "Feminist Abuse of Domestic Violence
____
Differences in the order-of-protection process under the IMDMA and
the Illinois Domestic Violence Act create an opportunity for
petitioners to gain an unfair advantage in divorce, this author says.
Find out what counsel for the respondent can do in such cases.
____
Sword or shield?
Combating of-Protection Abuse in Divorce
By Scott A. Lerner
In order of protection (OP) can be used as a sword as well as a
shield in divorce. There's no question that victims need protection
from abusers. But not all parties to divorce are above using OPs not
for their intended purpose but solely to gain advantage in a
dissolution.
How? The petitioner can use an OP to restrict visitation, gain
exclusive use of the home, and obtain custody in an expedited manner.
This article compares the OP process under the Illinois Marriage and
Dissolution of Marriage Act (IMDMA) with the Illinois Domestic
Violence Act (DVA). It explains how differences in the acts, and
particularly the petitioner-friendly nature of the DVA, create an
opportunity for OP abuse in divorce. It also presents ways to
challenge these abuses in court.
OPs are easy to get, use under the DVA
Orders of protection are easy to file. The forms are available at any
courthouse and can be completed by nonlawyers. In most counties,
there are organizations to help complete the forms and appear in
court with the alleged victim free of charge.
These nonattorney domestic abuse advocates are permitted by the
legislature to sit at counsel table and give advice.1 Indeed,
conversations between the advocate and the petitioner are
confidential and privileged.2
There are no filing or process-service fees for an order of
protection3 (though the respondent in some counties is required to
pay a fee to the circuit clerk to respond to or deny a petition). As
a result, it is far less expensive and easier to file a petition
seeking an order of protection than to file documents seeking similar
relief in a divorce proceeding
It is also easier to obtain the relief requested. An order of
protection requires a finding by the preponderance of the evidence
the petitioner was abused or harassed. If the order is granted and
the petitioner requests exclusive possession of the home, it is
presumed the balance of hardships favors the petitioner.4 The statute
reads as follows:
The balance of hardships is presumed to favor possession by
petitioner unless the presumption is rebutted by a preponderance of
the evidence, showing that the hardships to respondent substantially
outweigh the hardships to petitioner and any minor child or dependent
adult in petitioner's care. The court, on the request of petitioner
or on its own motion, may order respondent to provide suitable,
accessible, alternate housing for petitioner instead of excluding
respondent from a mutual residence or household.5
The DVA specifically states that "[t]he grant of exclusive possession
of the residence shall not affect title to real property, nor shall
the court be limited by the standard set forth in Section 701 of the
Illinois Marriage and Dissolution of Marriage Act."6
For those seeking the same relief under the IMDMA there is no such
presumption. Under section 701 of the IMDMA it states as follows:
Where there is on file a verified complaint or verified petition
seeking temporary eviction from the marital residence, the court may,
during the pendency of the proceeding, only in cases where the
physical or mental well being of either spouse or their children is
jeopardized by occupancy of the marital residence by both spouses,
and only upon due notice and full hearing, unless waived by the court
on good cause shown, enter orders of injunction, mandatory or
restraining, granting the exclusive possession of the marital
residence to either spouse, by eviction from, or restoration of, the
marital residence, until the final determination of the cause.7
Although domestic abuse or harassment can certainly jeopardize the
physical and mental well being of the occupants of the home, that
might not be the case for a one-time incident. In In re Marriage of
Lima, the second district reversed the trial court and held that a
drop in blood sugar related to the wife's diabetes was not enough to
conclude that the husband being in the home jeopardized her physical
or mental well being. The wife also claimed that on a single occasion
she felt "used" after sexual intercourse; the appellate court found
that was not enough to conclude that the husband being in the home
jeopardized her physical or mental well being.8 Also, under the IMDMA
notice and a full hearing are required prior to giving a party
exclusive use of the home.
Custody: Advantage to petitioner under the DVA
There are also differences between the IMDMA and the DVA when it
comes to custody. Under the DVA, "there shall be a rebuttable
presumption that awarding physical care to respondent would not be in
the minor child's best interest."9 The fourth district appellate
court in Mowen v Holland points out that "[t]o protect a minor from
abuse or neglect or to protect the well-being of the minor, the trial
court may award the party filing the petition the physical care
and 'possession' of the minor."10
According to the DVA, "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
temporary legal custody to respondent would not be in the child's
best interest."11 In Sutherlin v Sutherlin, the fifth district
reversed the trial court's decision not to grant temporary custody to
the petitioner after granting an order of protection.12
Under the IMDMA, before granting custody the court must consider the
best interests of the child or children based on a number of
factors.13 The statute does, of course, allow the court in a custody
hearing to consider abuse. The statute lists two factors specifically
addressing abuse, "(6) the physical violence or threat of physical
violence by the child's potential custodian, whether directed against
the child or directed against another person; [and] (7) the
occurrence of ongoing or repeated abuse as defined in Section 103 of
the Illinois Domestic Violence Act of 1986, whether directed against
the child or directed against another person."14
The statute goes on to say as follows:
Unless the court finds the occurrence of ongoing abuse as defined in
Section 103 of the Illinois Domestic Violence Act of 1986, the court
shall presume that the maximum involvement and cooperation of both
parents regarding the physical, mental, moral, and emotional well-
being of their child is in the best interest of the child. There
shall be no presumption in favor of or against joint custody.15
This, however, does not create the same "rebuttable presumption" in
favor of one party.
Expedited timetable under DVA favors petitioners
On a practical level, the time frames set forth in the DVA further
hamper a parent from presenting the same type of evidence in an order
of protection hearing as in a divorce proceeding. Under the statute,
a petition for an order of protection shall be treated as an
expedited proceeding.16 Thus a court may be making a decision without
hearing all of the relevant evidence. Time is needed to obtain
witnesses and to investigate claims of abuse.
There have been recent efforts to expedite matters of child custody
proceedings under the IMDMA. Under Supreme Court Rule 922, all child
custody proceedings shall be resolved within eighteen months from the
date of service of the petition unless the court finds that good
cause has been shown not to do so.17
Under the IMDMA, in any proceedings involving the support, custody,
visitation, education, parentage, property interest, or general
welfare of a minor or dependent child, the court may, on its own
motion or that of any party, appoint an attorney to represent the
child's interests.18 The court could further obtain the opinion of
professional personnel or even obtain psychological evaluations of
the people involved.19
Thus courts in dissolution cases when making decisions of custody and
visitation tend to be more informed than courts hearing orders of
protection. If a parent is willing to abuse the system, it is
unlikely the trial court could discover their improper motives in an
order of protection hearing. If a case involved parental alienation
syndrome, mental illness, or drug use on the part of the petitioner
that caused him or her to misinterpret events, it would be difficult
for a court to discover the problem in an expedited proceeding under
the DVA.
Visitation: the greatest potential for OP abuse
The greatest potential for abuse of the system is in visitation. It
is far easier to restrict visitation via an order of protection then
by seeking the same relief under the IMDMA. Under the IMDMA, "A
parent not granted custody of the child is entitled to reasonable
visitation rights unless the court finds, after a hearing, that
visitation would endanger seriously the child's physical, mental,
moral or emotional health."20
In Heldebrandt v Heldebrandt21 the fourth district reversed the trial
court for restricting visitation based on the best interests of the
child rather than the more stringent serious endangerment standard:
A trial court must hold a hearing on the issue of restricted
visitation and should grant restricted visitation only after making
the extraordinary finding that visitation would seriously endanger
the child's physical, mental, moral, or emotional health. The serious
endangerment standard contained in section 607(c) of the Act
is "onerous, stringent, and rigorous" to meet because liberal
visitation is the rule and restricted visitation is the exception.22
When "temporary custody" becomes permanent
Courts are understandably wary of denying an order of protection. No
one wants to put a parent or a child at risk. Yet as more parents
become aware they can gain a substantial advantage in divorce by
obtaining an order of protection, the risk of abuse of the process
increases.
Children need stability. If one parent gets exclusive use of the
marital home and temporary custody of the children while the other
has restricted visitation, that latter parent is unlikely to win sole
custody of the children. Children adapt to their environment, and it
is harmful to move them.
The legislation seems to support this idea, requiring that "no motion
to modi fy a custody judgment may be made earlier than 2 years after
its date, unless the court permits it to be made on the basis of
affidavits that there is reason to believe the child's present
environment may endanger seriously his physical, mental, moral or
emotional health."29
Courts have to address the difficulty of changing custody after a
child has spent a lengthy stay with a temporary custodian. This issue
was addressed by the third district in Wurm v Howard:30
As already stated, the final decision on custody was a result of
concern for the stability and continuity of the children's lives, and
it would not have served their best interests for the court to have
ignored the fact that they had been residing with their mother and
step-father in Champaign for well over two years. It must be accepted
that their residence in Champaign for that time was the result of the
decision on temporary custody and the delay caused by the appeal.
However, all factors which relate to the best interests of the
children should be considered by the court. Contrary to the dire
warnings of consequences if the court's decision is upheld, we
perceive no basis for concluding, on the record in this case, that
our decision will unfairly advantage the parent who first obtains
custody in the determination of the best interests of the children.31
In In re Marriage of Hefer,32 the fourth district specifically found
that "[a] court may consider the period of time that a child has
spent with a parent by virtue of a temporary custody order."33 It is
clear that it cannot be in a child's best interests to move him or
her from a stable environment. Thus, the longer a parent is able to
retain temporary custody, the greater their opportunity to later
obtain permanent custody.
Appellate judges respond
The appellate court is hardly blind to the abuse of orders of
protection.
In Radke v Radke, for example, the third district reversed the trial
court that granted a plenary order of protection.34
The court concluded that
[t]he Domestic Violence Act is not the appropriate vehicle for
resolving such issues. We note that the order of protection did not
restrict Ross's visitation or contact with Laine. The court narrowly
drafted the order to prohibit physical abuse, harassment,
interference with personal liberty or intimidation. Nevertheless,
based on this record, we believe that Kathryn misused the Domestic
Violence Act for the purpose of attempting to alter Ross's visitation
with Laine. For that reason, and because we find that no harassment
occurred, we reverse the judgment of the circuit court and vacate the
order of protection.35
The court in In re Marriage of Gordon also addressed the problem of
the misuse of the DVA to obtain orders of protection.36 The court
wrote as follows:
Be ready to spend time and money. An order of protection is a high-
stakes matter. The OP hearing could produce a result that will
irrevocably affect the divorce and the lives of children. Violating
an order of protection is a crime, and your client can be jailed for
doing so. If you need an expert witness, don't hesitate to hire one.
Often, courts set multiple plenary orders of protection, leaving only
15 or 20 minutes for each case. Don't let your case be rushed. The
judge may get angry, but you owe your client the best representation
possible, even if it crowds the schedule.
Bring a motion to modify or dismiss. If you represent the respondent
in a case where the OP is being used inappropriately, you should
bring a motion to modify the emergency order of protection or a
motion to dismiss the order of protection and apprise the court that
the petitioner is trying to use the DVA to circumvent the IMDMA. You
should also file a motion to consolidate the OP and divorce cases.
Scott Lerner is a 1992 graduate from the University of Illinois
College of Law and is currently an associate at the Lerner Law
Office.
1. 750 ILCS 60/205(b)(1).
2. 750 ILCS 60/227.
3. 750 ILCS 60/202(b).
4. 750 ILCS 60/214(b)(2)(A).
5. 750 ILCS 60/214(b)(2)(B).
6. 750 ILCS 60/214(b)(2).
7. 750 ILCS 5/701.
8. 265 Ill App 3d 753, 638 NE2d 1186 (2d D 1994).
9. 750 ILCS 60/214(b)(5).
10. 336 Ill App 3d 368, 374, 783 NE2d 180, 185 (4th D 2003), quoting
750 ILCS 60/214(b)(5).
11. 750 ILCS 60/214-2(B)6.
12. 363 Ill App 3d 691, 843 NE2d 398 (5th D 2006).
13. 750 ILCS 5/602.
14. 750 ILCS 5/602(a)(6) and (7).
15. 750 ILCS 5/602(a)(9)(c).
16. 750 ILCS 60/212(a).
17. SCR 922
18. 750 ILCS 5/506.
19. 750 ILCS 5/604; 750 ILCS 5/604.5
20. 750 ILCS 5/607(a).
21. 251 Ill App 3d 950, 623 NE2d 780 (4th D 1993).
22. Id at 957, 623 NE2d at 784-85, quoting In re Marriage of Diehl,
221 Ill App 3d 410, 429, 582 NE2d 281, 294 (2d D 1991).
23. 127 Ill App 3d 126, 468 NE2d 482 (4th D 1984).
24. Id at 129, 468 NE2d at 485.
25. 750 ILCS 60/201(a)(iii).
26. 253 Ill App 3d 958, 625 NE2d 883 (4th D 1993).
27. People v Hazelwonder, 138 Ill App 3d 213, 485 NE2d 1211 (4th D
1985).
28. McCoy at 963, 625 NE2d at 886.
29. 750 ILCS 5/610(a).
30. 82 Ill App 3d 116, 402 NE2d 407 (3d D 1980).
31. Id at 122, 402 NE2d at 411-12.
32. 282 Ill App 3d 73, 667 NE2d 1094 (4th D 1996).
33. Id at 78, 667 NE2d at 1098.
34. 349 Ill App 3d 264, 812 NE2d 9 (3d D 2004).
35. Id at 269, 812 NE2d at 13.
36. 233 Ill App 3d 617, 599 NE2d 1151 (1st D 1992).
37. Id at 648, 599 NE2d at 1172.
38. Id.
Source:
www.isba.org/IBJ/nov07lj/590%20Family%20Law.htm
