April 8, 2010

Illinois Domestic Violence Act

The Illinois Domestic Violence Act is an important part of family law. The Act is designed to provide abused family members and their children with an expedited and safe means to obtain necessary legal protection from continued abuse or harassment.

My first work in the law was as a domestic violence prosecutor, and I appreciated how the law strove to provide protection for abused parents and their children, and criminal sanctions for the abusers.

In divorce and custody practice in Illinois, however, I have all too often seen the IDVA misused as a "sword" to undercut another parent in a custody case, rather than as a proper "shield" against abuse. In the space of one week , I helped a deserving parent obtain emergency relief and a change of custody, and thereby protect young children from a chaotic, abusive environment, and then, within about a day's time, on behalf of my client I successfully blocked an opposing party from litigating an EOP based on false, fabricated claims. Two IDVA cases, with two very different applications.

An article from 2008's Illinois Bar Journal discusses this phenomenon of improper use of the Illinois Domestic Violence Act in high conflict divorce and custody cases. The article presumes that the wronged party is a husband, and many times this is true, but I can say from my experience that false allegations of abuse in high conflict custody cases know no gender:

Orders of Protection, available at any courthouse, are easy to file, and rarely require any fees. The DVA permits non-attorney domestic-abuse advocates to sit at counsel table and give confidential and privileged advice to the petitioner.

It's also much easier to get an OP, and once granted along with exclusive possession of the home, the law clearly favors the wife maintaining child custody and the home unless the husband is able to present a preponderance of evidence that the custody arrangement is a hardship to HIM. The divorce act gives no such preferential presumption.

Accusations of abuse and demands for an OP are extremely useful in denying child custody to the respondent. The DVA includes "a rebuttable presumption that awarding physical care to respondent would NOT be in the minor child's best interest."

The DVA requires that a petition for an OP be expedited, and judges typically allot only 15 or 20 minutes to each case, which is not enough time to hear all the relevant evidence. Resolving a custody decision in a divorce proceeding usually requires many months.

The Illinois Bar article concludes: "If a parent is willing to abuse the system, it is unlikely the trial court could discover (her) improper motives in an Order of Protection hearing."

The Domestic Violence Act is an excellent and proper vehicle to provide safety and security for victims of abuse. When the Act is used as a sword against a fit and good parent in a custody case, no court sanction against the maker of the false allegations is strong enough.