The Illinois domestic violence statute governs “Orders of Protection,” in Chicagoland and throughout the state. This statute, known as §750 ILCS 60, Article II covers any individual victims “abused by a family or household members.”
Unlike some states, the Illinois Order of Protection Statute may protect minor children. That means you may be able to assist your child in obtaining an order of protection (sometimes referred to as a restraining order) against your ex-spouse, or any other “family or household member” that may be violating this statute. This type of relief is different from the child abuse statutes and may apply to non-residential “family members.” In other words, those who are family members but do not live with the child some or all of the time.
Here we will provide an overview of how the statute may apply to minor victims, what you can do to assist your minor child in these types of situations, and exactly what types of relief and support an order of protection offers. First, let’s determine who may be considered a valid defendant under this act.
Who Qualifies as a Family Member in an Order of Protection?
Orders of Protection may apply to romantic relationships or familial relationships. If your child is a minor in an abusive relationship, or being harmed by a parent or family member, then you may need to assist them in obtaining an Order of Protection.
A common situation that may arise is when your child is being harassed or otherwise harmed by a family member, such as a sibling, your ex-spouse, and so on. Under this Act, family may also include adopted parents, stepparents, stepsiblings, or court-appointed guardians. An Order of Protection may work alone or in tandem with child abuse law. Additional relief may also be available through the family courts. Although an Order of Protection Act will apply to adults as well as children, for purposes of this blog post we are focusing on Orders of Protections for minors.
Orders of Protection and Changes in Custody
Each parent has an obligation to promote the safety and welfare of their minor children. When an Order of Protection is ordered against an ex-spouse, or a third party residing in that home, you may also wish to seek changes in custody and visitation. Even if a third party is to blame, if abuse occurs under your ex’s roof, then they may be held responsible. Moreover, an Order of Protection may mean that your minor child will not be subjected to being in the presence of offending individuals again, or in the case of a parent, granting only supervised visitation time.
At the time an Order of Protection is granted for your child, you should consider seeking additional sanctions and relief, such as a modification of custody, parenting time, and child support.
Even if such relief is not granted, you may subsequently use the Order of Protection to seek such relief through a separate Family Court action. For instance, if the court hearing the order of protection action does not “ordinarily decide matters of child custody and family support,” then they may decline to rule on issues of custody, visitation, and support. But that doesn’t mean your request is denied, just that you’ll need to bring it to the attention of a family law court.
Remember, courts will often view a successful action for protection as grounds for revisiting custody and parenting time agreements or orders. However, it’s important to not delay when this occurs. You don’t want the courts or child welfare agencies to worry you are not doing what is appropriate to protect your children’s safety and welfare.
If the order occurred during the duration of a divorce, then you may also need to seek temporary relief. For instance, if your soon to be ex-spouse is found responsible for domestic violence against your minor child, then you should be granted “exclusive possession” of the marital home, the same as if the domestic violence occurred against you.
Courts will frown, however, if a party attempts to misuse this statute. So please be mindful that these types of actions should not be filed lightly.
Shield, Not Sword
Sometimes parents attempt to use Orders of Protection for minors as a litigation tactic. Family court judges see gamesmanship every day, and they are increasingly tired of it. Attempting to use domestic violence statutes as a “sword” rather than a “shield” may have negative impacts on your case.
Just as courts endeavor to protect children in abusive or harmful situations, they will also seek to protect a child’s right to a loving relationship with both responsible parents. Many a time filing a false or misleading Order of Protection action has misfired, and our firm has experience helping both legitimate victims in need, and those falsely accused under these laws.
In cases of legitimate abuse, you will need to work immediately to protect your child. Below we will discuss what you can do to move this matter along as efficiently as possible.
Assisting Your Child in Obtaining an Order of Protection
As a minor, your child will be counting on you to help. Court systems and laws can be complex. In some venues—such as Cooke County—a minor may not be able to file an action unless an adult parent or guardian signs off on the filing.
Orders of Protection are considered quasi-criminal actions, which means they are not prosecuted by the state on your behalf. Each filing will require a formal complaint, similar to what is filed in family courts or other civil litigation. And the relief granted will straddle between criminal type sanctions and civil or family court relief. For that reason, the “burden of proof” in protective order hearings is a “preponderance of the evidence.” A victim must prove it is “more likely than not” that the abuse occurred, and that the relief is necessary. Some types of evidence may include testimony, pictures, videos, electronic communications, and so on.
The best thing you can do to assist your minor child in these difficult circumstances is to provide them with the best legal advice possible. Although there are helpful websites, advocacy groups, and the like, nothing can replace retaining a knowledgeable law firm experienced in prosecuting orders of protection on your behalf.
When vetting law firms, you should inquire if they have experience in representing minors in Orders of Protection cases.
Contact The Law Offices of Jonathan Merel, P.C.Today
If you’re assisting your minor child in obtaining an Order of Protection, don’t go it alone. Our committed and experienced attorneys are here to help. Call (312) 487-2795 or complete an online contact form to schedule a consultation with the Law Offices of Jonathan Merel, P.C.
We stand ready to discuss these important matters with you.