Articles Posted in Orders of Protection

In many custody disputes, allegations of abuse against children are thrown around.  Sometimes, people use this simply as a means of mudslinging to gain an upper hand in the court’s eyes against the opposing party.  However, other times, even the slightest indication of abuse can reveal a Pandora’s Box, leading to a full blow investigation to ensure a child’s safety.  In DuPage County, allegations of abuse against children are taken very seriously, and the County specifically set up an investigative body to handle such allegations.

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In 1987, Illinois’ first (and the country’s fifth) Children’s Center was opened in DuPage County.  In 2001, it was incorporated into the DuPage County Office of the State’s Attorney.  The DuPage Children’s Center is distinct from schools and local police departments, and it aims to uncover and collect evidence regarding abuse of children to find the truth.  Once the DuPage Children’s Center has corroborating evidence, it will present a case to the Assistant State’s Attorney for review and possible charges.

 

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It is no secret that emotions run high during a divorce or custody proceeding.  Sometimes parties seek orders of protection from one another to prohibit acts of abuse or harassment from occurring.

 

Imagine this scenario:

 

Chris and his girlfriend Rhianna are having an argument about who will have custody of their daughter after they split up.  Chris gets really angry, punches Rhianna in the face, and smashes her face on the dashboard of his car.  In turn, Rhianna files for an emergency petition for an order of protection against Chris.

Rhianna beaten up

In court, the judge orders Chris to stay away from Rhianna.  Furthermore, he is prohibited from communicating with her, except regarding issues related to their daughter.  A week later, Chris calls Rhianna and when she answers, she clicks the “record” button on her iPhone.  Chris proceeds to tell her how sorry he is and how he just wants another chance.  He says “I love you, I’m coming over right now to show you how much I love you and you better let me in, or else.”  When she hangs up, Rhianna calls the police, plays the recording for them, and has Chris arrested for violating the order of protection.

 

Prior to March 2014, Rhianna would not have been able to use that recording to prove that Chris had violated the order of protection by harassing communication.  The old version of the Illinois Eavesdropping Act provided that a person could be arrested for recording someone, private or public, without their knowledge or consent.  The law was one of the most restrictive in the United States. The law not only restricted recording of private individuals but also public individuals and occurrences.  As a result, under the old law, it was illegal to record, for example, public debates, protests, or interactions between the public and police officers.

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Question: Can your prior acts of violence, abuse, or harassment be used against you in an order of protection hearing?
Answer: It depends on which side of the litigation you are on.

 

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Just kidding.

 

An order of protection is a civil remedy in which a person can ask a judge for protection from an abusive family member or significant other. Generally speaking, in order to obtain an order of protection, a person must show that he or she has been abused or harassed, and that such abuse or harassment is not likely to stop unless the court takes action. An order of protection can help to stop abuse and prohibit contact as well as make someone stay-away, attend counseling, pay child support, or vacate your home, among other things. If a person violates an order of protection, he or she can be arrested and charged with a crime.

 

Because orders of protection often entail allegations of violence, it is not unusual for each of the parties to want to talk about all of the bad things that the other person did in the past.

 

As an example, let’s assume that Britney files for an order of protection against Kevin. Britney is therefore the “petitioner,” and Kevin is the “respondent.” In her petition, she details five prior incidents over the last few months in which Kevin has physically abused her, sometimes in the presence of their two children. Moreover, Kevin has a history. Last year, Kevin’s ex-girlfriend filed a police report because Kevin broke into her house and punched her. However, she did not press charges.

 

Kevin would like to point out that Britney is not that innocent, either. About three years ago, Britney pled guilty to misdemeanor battery for slapping her then-boyfriend, Justin.

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In Illinois, courts are authorized to issue orders of protection under the Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq. ( “the Act”). The purpose of the Act is to support victims of domestic violence and to help them avoid further abuse. The Act aims to “reduce the abuser’s access to the victim. . . so that victims are not trapped in abusive situations” (750 ILCS 60/102(4)).

An order of protection can include a broad range of remedies, including but not limited to the following:

• Prohibit harassment, interference with personal liberty, physical abuse, or stalking;
• Prohibit intimidation of a dependent;
• Require an abuser to stay away from the victim’s home, car, or workplace;
• In cases where a child is a protected party, the order can require the abuser to stay away from the child’s school and after-school care facilities; and
• Restrict or deny visitation rights;

In cases where a child has been abused, a parent may file a petition for an order of protection against the other parent on behalf of a minor child. In order to obtain an order of protection, the parent seeking the order of protection (the “petitioner”) must prove that the other parent (the “respondent”) has abused the child, and that an order of protection is the appropriate remedy to prevent further abuse.

What happens if a parent doesn’t necessarily abuse a child, but simply neglects him? Can an order of protection be obtained against a parent who simply leaves a child unsupervised? As silly as it may sound, according to the Illinois Appellate Court, the answer is clearly no, unless of course the “neglect” was actually “abuse.”
Follow that? Of course you do. If not, allow me to explain.

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