By: Jeffery M. Leving; Matrimonial Attorney
Did you ever yell at your spouse in a heated argument or touch your partner’s arm to emphasize a point in contention? If you’re like me and millions of others, you have, and you have also subjected yourself to being served with an order of protection. Some partners would misuse such an incident to gain an unfair advantage in a divorce or child custody court proceeding.
Allegations of domestic violence or abuse as part of divorce and separation proceedings are all too common across Illinois and around the country. In some cases, these allegations are backed by facts or evidence, and they should properly be considered by family courts making important custody and support decisions. But in many cases one party—commonly the parental alienator of the relationship—makes completely false and unsubstantiated claims of abuse as a way to “game the system” and better their chances of getting the outcome they want.
Under the Illinois Domestic Violence Act, the term “abuse” goes beyond physical abuse and includes harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation. Standing in the pathway during a heated argument and yelling or touching your wife while saying, “Please stop. I love you!” may just land you in jail.
Once an allegation of domestic abuse or violence has been made, a judge can issue an emergency “order of protection.” The legal standard for issuing such an order is surprisingly low considering the huge impact that it could have in both the short and long-term. An order of protection is usually a “no-contact” order, meaning that the person accused could be ordered by the court to leave the couple’s shared home and prevented from having any contact with the accuser or the children.
After an order of protection is issued, even a mere allegation of a violation of an order of protection by the petitioning party (for example, having your friend talk to the petitioning party to rethink their petition) can land a respondent in jail. He can be arrested on a criminal charge—more specifically, a Class A Misdemeanor—the most serious misdemeanor in Illinois, punishable by up to one year in jail and fined. The tremendous consequence is that a civil order of protection may quickly turn into jail time and loss of liberty for an innocent person who retained ineffective assistance of counsel or no attorney at all. Defeating an order of protection and clearing your name is of utmost importance.
In some instances, supervised visitation could be allowed in spite of an order of protection, but oftentimes, the person facing the abuse allegations and the children are kept apart entirely (at least initially). This is where a false allegation could potentially be bootstrapped into a disastrous result in a custody case. If the children are being legally prevented from spending time with their father, then their mother potentially has an unfair advantage in a contested custody proceeding.
You can see why it is so important to swiftly and effectively move to have an order of protection dismissed, vacated or at least modified to allow extensive visitation in order to re-level the playing field in a contested custody proceeding.
Orders of protection can be broader than just stay away orders. For example, an order of protection can not only order the accused to stay away from a particular person or location (a residence, the accuser’s workplace, child’s school, etc.), but also forbid the disposal of real or personal property or one party from taking the children outside the jurisdiction. In that way, these orders could be a very dangerous and wrongful tool if used improperly.
The impact of an order of protection, if based on false allegations, can be broad-reaching in a separation, divorce or child custody proceeding. Clearing your name and putting your best arguments and evidence before the court are crucial in getting the outcome that is best for your family. That is why, if you have been accused of domestic violence in conjunction with any family court matter, you need the skill and experience of attorneys who have fought these battles many times before and have the ability and confidence to win no matter the odds. If you find yourself facing such a crisis, don’t give up hope.
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