Navigating Domestic Violence In Your Divorce Case

 Posted on May 16, 2022 in Divorce

While unfortunate, it is extremely common for divorce, orders of protection, and criminal domestic violence cases to be intertwined. In many situations, divorce and/or parentage cases begin with the filing of a civil order of protection, typically an emergency petition and mostly without notice to the other party. Orders of protection are governed by the Illinois Domestic Violence Act of 1986. Orders of protection protect family or household members from the actions of another. In order to obtain an order of protection, the petitioner must prove: a) that the respondent is a relative or household member, b) that the respondent has abused the petitioner, and c) that the Court has jurisdiction of the matter. “Abuse” is a broad term under the Illinois Domestic Violence Act, and is defined as: physical abuse, harassment, interference with personal liberty, intimidation of a dependent, or willful deprivation.  What classifies as abuse under these broad definitions varies case by case and is impacted by both the severity and frequency of the circumstances.

A party seeking an order of protection against a spouse, fiancé, or partner may ask the court to protect not only themselves from the other party, but also the children as well, but only if the children have been subject or witness to the abuse.  To do this, the person seeking the order of protection (the petitioner or victim) must list the children as “protected parties” and state any abuse that the children may have witness or fell victim to by the other party (the respondent or abuser).   As a remedy for an order of protection, in addition to prohibiting contact of any kind between the petitioner and the respondent, the court can also prohibit the respondent from having any contact with the minor children, suspend any and all parenting time between the respondent and the children or establish a supervised or other reasonable parenting schedule. Additionally, the court can grant the petitioner exclusive possession of the shared residence, meaning that the respondent would be prohibited from entering the residence until further order of court. The court also has the authority on a plenary order of protection to order the abuser to attend counseling and turn over any firearms. 

Although many orders of protection are civil in nature, the State’s Attorney’s Office can decide whether or not to prosecute the respondent for the crime of domestic violence as a result of any physical abuse that occurred, provided the victim wishes to press charges. If that happens, the court will set conditions of the respondent’s bond. Most of the time, those bond conditions include no contact of any kind with the petitioner and no contact of any kind with the children. Additionally, the bond conditions can prohibit a respondent from leaving the State of Illinois.

In some instances, there is a pending divorce or parentage case, a civil order of protection case, and a criminal case that has been filed against the respondent. It can be tricky to navigate all of these cases while dealing with the many attorneys and different laws in place. To add to the complexity of it all, typically the petitioner is the main witness in the domestic violence case and will need to testify against the respondent at the trial. If the petitioner does not show up to the trial and there are no other witnesses, the State will not prosecute the case, and the domestic violence charges will be dismissed. However, this does not mean that a civil order of protection will not remain in place. Rather, the two cases are treated entirely separate from one another and may result in different outcomes. If an emergency order of protection is granted, it is in effect for 30 days and set for hearing on a “plenary” order of protection, where the respondent is ordered to appear. If a plenary order of protection is granted, it can stay in effect for a period of up to two years.

The reason that these cases can result in different outcomes is because there are different burdens of proof. In an order of protection, the burden of proof is a “preponderance of the evidence” which means “more likely than not.” The petitioner in an order of protection case must show that the abuse alleged is more likely than not to be true. Sometimes, orders of protection are heavily based on statements made by the child or children. Those statements are, by definition, hearsay. There is an exception to hearsay for statements made by children under the age of 13 (735 ILCS 5/115-10). However, there are many exceptions and nuances to this rule. Because it can be so difficult to get a child’s statements of abuse into evidence, and issues with a young child’s credibility, there may be no other choice but to have the child testify in court against a parent. This can be very psychologically damaging to a child, and most courts will not want a child testifying in open court. So, instead of an order of protection, the parties may instead agree to enter into a mutual restraining order or temporary restraining order, which is a court order telling the parties that they must do something or refrain from doing something. A provision of a temporary restraining order might be that the parents must stay 1,000 feet away from each other at all times, have no contact, do pick ups and drop offs curbside, and the like. If one parent violates a restraining order, it is not a criminal offense (police enforceable) like it would be for a violation of an order of protection. So, it is important to keep in mind that the punishment for violating an order of protection is much more serious than a violation of a restraining order, which is indirect civil contempt.

Domestic violence plays a role in many domestic relations cases, and there can be many players and moving parts that can have a significant effect on you, your spouse, and your children. It is best that you consult with an attorney to discuss your options and understand how to appropriately address any domestic violence issues you may be dealing with. If you have questions about domestic violence, divorce and/or parentage cases, please contact our firm for a free consultation.