Letters to the Editor
Parson Jim
Published Letters: 582 Editor's Choice: 7
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Orders of Protection: Sword or Shield
[Read the article: The question of self-defense in domestic violence]
[Read more letters about this article: Here]False domestic violence charges are brought all the time by women in the midst of divorce. There's no downside and huge upside. This situation seems to sit well with many of the posters, sadly enough.
http://www.isba.org/IBJ/nov07lj/590%20Family%20Law.htm
Family Law
Sword or shield?
Combating Order-of-Protection Abuse in Divorce
By Scott A. Lerner
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.
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...
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...
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Very sad
[Read the article: Girl abused in all-male jail]
[Read more letters about this article: Here]And a female judge, at that.
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Get it right
[Read the article: Girl murdered over hijab?]
[Read more letters about this article: Here]Her first name is Aqsa, not "Asqa".