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How Does Family Violence Affect An Illinois Child Custody Case?

Family Violence and Child Custody

Statistically, the family violence numbers are frightening. According to the National Coalition Against Domestic Violence, one-fourth of women have experienced “severe intimate partner physical violence.” However, this statistic has no date reference.

The incident could have been a week ago or a decade ago. Furthermore, NCAD defines “severe” as “injury, fearfulness, post-traumatic stress disorder, use of victim services, and contraction of sexually transmitted diseases.” These effects, especially fear, are rather vague.

This discussion should not, in any way, minimize the problem. Instead, it shows that there are usually two sides to the story in these situations.

Technically, family violence is just one item in a long list of child custody factors in Illinois. Pragmatically, family violence is often a much heavier factor than the preference of the parents or other items on this list. If the family violence was recent, the child was a victim or eyewitness, and there are no extenuating circumstances, family violence could quite possibly derail a custody case.

The bottom line is that family violence could have a significant impact on a child custody case. Whether you are the alleged victim or the alleged aggressor, you need an experienced Naperville child custody lawyer in your corner.

Parallel Proceedings

When their officers respond to domestic dispute calls, most law enforcement agencies in Chicagoland have mandatory arrest policies. Officers determine which party “started it,” and they immediately take that party to jail. Usually, the county places a twenty-four-hour hold on these individuals.

Additionally, the law usually requires officers to inform alleged victims of their right to request a restraining order. That order could be a civil or a criminal matter.

In other words, if physical violence is an issue in a child custody case, there is usually a parallel proceeding in another court. Non-physical violence, such as emotional or verbal abuse, could also trigger such proceedings.

Protective Orders

Spouses, who are also alleged victims, are nearly always the applicant in protective order cases. A few other protected classes are available as well, such as current or former dating partners and current or former roommates.

Initially, the judge could grant an ex parte protective order based solely on the applicant’s affidavit. Many judges grant such applications without asking too many questions. That’s especially true if the alleged victim does not ask for extraordinary relief, such as a kick-out order which is an order directing the alleged abuser to vacate a shared residence.

However, if the affidavit does not mention any witnesses or is not very compelling, an applicant that asks for extraordinary relief may not get it. Or, if there is a pending family law case, many judges hesitate to issue such orders.

The judge will sign the order if s/he believes the alleged aggressor would harm the alleged victim if the alleged abuser had notice of the proceeding. The burden of proof is slightly higher for extraordinary relief, like a kick-out order or property award. Once issued, ex parte protective orders usually last about two weeks.

After a full hearing, during which the judge hears from both parties and their Naperville child custody lawyers, the judge could extend the protective order for up to two years. The judge might also issue additional orders, such as a counseling requirement and financial support payment requirement.

SNC (Stalking No Contact) Orders

Protective order could apply to any kind of relationship violence. But they nearly always apply to one-time extreme acts. Stalking No Contact orders are available if the alleged victim shows a pattern of lesser conduct. A “pattern” is two or more incidents like:

  • Following, monitoring, or observing the alleged victim in a public place.
  • Threatening the alleged victim at any place.
  • Unconsented touching.
  • Ignoring a request to cease physical contact,
  • Interfering with personal property, including a pet.

The alleged stalking victim must also prove that s/he was afraid or suffered emotional distress due to the stalking.

Procedurally, SNC orders are a lot like protective orders. Temporary and long-term orders are available. The biggest difference is that extraordinary relief is unavailable in SNC cases.

Effect on Temporary Orders in Pending Child Custody Cases

Typically, judges make important decisions in child custody temporary hearings based on very little evidence. There is not much an attorney can do about the decisions made. However, an attorney can present the right kind of proof at a temporary hearing.

Judges usually like to keep these hearings very brief. They do not want to spend an afternoon rehashing the events of an alleged domestic assault. However, they must be informed of the key facts. In this context, that’s an attorney’s job.

Since it is a business record, the police report is usually admissible in civil court. So, there’s no need to subpoena the officers to testify, except in unusual cases.

Additionally, alleged victims might want to show the judge their hospital bills or pictures of their injuries. Once again, since they are business records, hospital bills are usually easier to admit than photographs.

Alleged abusers usually focus on extenuating circumstances. Prior incidents which didn’t result in an arrest and their lack of witnesses, especially child witnesses, spring immediately to mind. Additionally, the before-and-after defense usually works well, in this and other contexts. For example, “I had an alcohol problem at that time but now I’m in rehab.” Everyone, including DuPage County family law judges, loves comeback stories.

At this stage, if there is any indication that physical abuse might have happened, the judge will most likely at least restrict visitation privileges. These orders, like final orders, can be modified later. Or, the parties could simply wait for them to expire.

How Family Violence Affects Final Orders

Largely, thanks to a lawsuit’s discovery phase, additional evidence is usually available at the final hearing. It can also be present during the negotiations leading up to the final agreement. This additional proof usually includes:

  • Social Services Report: Judges normally order these investigations and reports in contested child custody matters. Social workers thoroughly investigate abuse allegations and fully account for them in their custody and visitation recommendations.
  • Witness Depositions: Eyewitnesses tell their stories to police officers that respond to a domestic situation while they are still under the stress of the moment. Five or six months later, these individuals usually recall things differently. That doesn’t mean they were lying earlier. That’s just the way the brain works.
  • Additional Medical Records: Domestic abuse cases are notoriously under-reported. Most people don’t call the police in these situations. However, they do see the doctor if they are injured. Previous injury-related visits, like broken bones, could indicate previous abuse. Conversely, the lack of such evidence indicates a lack of previous abuse.

Common visitation restrictions in family law child custody orders include:

  • Reduced periods of contact.
  • Neutral or supervised exchange.
  • Counseling or medical treatment requirements.

Modification Matters

Onset or removal of a disability is one of the most common grounds for child custody order modification. Family violence-related matters are about the most significant disability possible in this area.

Frequently, a one-year waiting period applies in modification matters. Parents usually cannot bring motions to modify for at least one year unless changed circumstances could significantly affect the child’s health, safety, or welfare. Certain kinds of assault certainly qualify as such. As mentioned, that’s especially true if the child was a victim or witness. If the child heard about the assault through a third party, especially if that third party was the other parent, the effect is significantly less.

Removal of disability usually includes the aforementioned before-and-after defense. Usually, when judges order counseling or similar activities, there is no express provision that visitation will be expanded once the service is complete. But there is definitely an implied contract. Additionally, domestic violence usually has a half-life, as outlined below. The effect never goes away. But it does fade over time.

Future Matters

Statistically, most people remarry after a divorce. Once again, statistically, most of these marriages end in divorce. So, after one child custody matter is resolved, there’s a good chance that the alleged abuser might be back in family court again within a few years.

Many people assume that family violence matters eventually drop off their permanent records, especially if they do not result in criminal convictions. But even much later and with a different family, domestic violence is still relevant in Illinois child custody matters. Both parties often make mistakes when it comes to dealing with old arrests or convictions.

Former alleged assailants often assume that remote incidents are not a big deal, and they convey that attitude to the judge. Instead, domestic violence is much like alcoholism in some ways. There is no such thing as a “recovered” alcoholic. There are only “recovering” alcoholics. Likewise, there’s no such thing as a “former” domestic abuser. We are all just trying to get better.

The opposite party in future matters often tries to blow prior domestic violence incidents out of proportion. Instead, as mentioned, these incidents have a half-life. Eventually, the domestic violence becomes more like the child’s current living environment or any of the other child custody factors. It’s just another item on the list.

Reach Out To A Diligent DuPage County Child Custody Lawyer

Domestic violence incidents significantly affect current and future family law matters. For a free consultation with an experienced Naperville child custody attorney, contact Keller Legal Services by calling 630-505-1515. Convenient payment plans are available.