Family Law Newsletter
The newsletter of ISBA’s Section on Family Law

January 2013, vol. 56, no. 7

Orders of protection—The most “abused” area of the law?

It is the day before Thanksgiving, or any other major holiday for that matter, and you are mad at your ex for something he or she has done. It is your ex’s holiday with the kids, but you want to get even with him or her. What should you do??? It’s easy, just go to the courthouse and get an emergency order of protection. That way you can keep the kids for a week or two, and your ex can’t call you to complain about it.

Now obviously, I would not give this legal advice to any of my clients, and such a story sounds ludicrous, but I have personally witnessed this story play out dozens of times. First of all, I want to start out by saying that I abhor domestic violence, and the purpose of this article is not to make light of the serious issues that we have in our society regarding violence between partners and family members. Rather, I would like to offer some thoughts on ways to protect the abused while minimizing the abuse of the legal system.

What constitutes abuse? This is the first question that is often asked in order of protection cases. Section 103 of the Illinois Domestic Violence Act (750 ILCS 60/103) defines “abuse” as physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis. Section 103 goes on to state that “domestic violence” has the same meaning as “abuse.”

Now that we know what constitutes abuse, the next question is what individuals are protected under the Illinois Domestic Violence Act. Section 201(a) of the Act provides that the following persons are protected by the Act:

1. Any person abused by a family or household member;

2. Any high-risk adult with disabilities who is abused, neglected, or exploited by a family or household member;

3. Any minor child or dependent adult in the care of such person; and

4. Any person residing or employed at a private home or public shelter which is housing an abused family or household member.

Based upon my experience, very few order of protection cases involve high-risk adults. As such, most of the cases involve individuals seeking protection for themselves and their children. Generally, a petition for an order of protection is filed by the abused person, or by a family member on behalf of minor child. However, it is also interesting to note that under Section 201(b)(i) a petition for an order may be filed by any person on behalf of a minor child.

I recently had an interesting case that revolved around this very issue. My clients had a fifteen-year-old daughter who was dating a slightly older boy. My clients felt that he was a bad influence on their daughter, and they tried to stop the relationship. Of course, the daughter got mad and complained about her situation to her boyfriend’s grandmother, who decided to take matters into her own hands and file a petition for order of protection against my clients. The end result was that a judge entered an emergency order of protection that gave temporary possession of the minor to her boyfriend’s grandmother. As it turns out, the grandmother had been allowing the minors to drink alcohol at her residence, and as a result, the daughter got arrested for the illegal consumption of alcohol prior to the grandmother filing the petition for order of protection. Due to difficulties with the court schedule, two weeks passed before I was able to get a court date to get a rehearing on the emergency order of protection. Once the judge heard all the facts, he quickly dismissed the petition. I believe that this is just one example of the potential for abuse that exists under the provisions of the Illinois Domestic Violence Act.

These cases create very difficult decisions for judges because they must balance the need to protect children without overriding prior custody and visitation decisions in divorce or paternity cases, even if only on a temporary basis. There are several cases that have made it to the appellate level on these issues. One of the most cited (and arguably controversial) cases on the subject is Radke v. Radke, 349 Ill.App.3d 264; 812 N.E.2d 9; 285 Ill. Dec. 420 (3rd Dist. 2004). In a 2-to-1 decision, the Appellate Court in Radke held that:

Obtaining an order of protection is not the proper procedure for resolving child custody or visitation issues. Those issues should be resolved under the Illinois Marriage and Dissolution of Marriage Act (citing Wilson v. Jackson, 312 Ill.App.3d 1156, 728 N.E.2d 832, 245 Ill. Dec. 750 (2000), citing In re Marriage of Gordon, 233 Ill.App.3d 617, 599 N.E.2d 1151, 175 Ill. Dec. 137 (1992)).

The holding in Radke led several trial courts to rule that they would not address the issue of temporary custody in order of protection cases. One such case was Sutherlin v. Sutherlin, which ultimately went up on appeal to the Fifth District. Sutherlin v. Sutherlin, 363 Ill.App.3d 691; 843 N.E.2d 398; 300 Ill. Dec. 140 (5th Dist. 2006). In Sutherlin, the Appellate Court differentiated Radke from the instant case, and found as follows:

Unlike Radke, in the instant case there is no dispute that Amanda was seeking an order of protection based on abuse from Howard and not for the purpose of obtaining the temporary custody of their son. In fact, the circuit court found that Howard had abused Amanda, and that finding has not been challenged on appeal. Radke and the cases cited by Radke stand for the principle that visitation or custody issues should not be addressed at an order-of-protection hearing where the primary objective of the party seeking an order of protection is really to interfere with or change a child custody or visitation order. Id.

The Appellate Court in Sutherlin ultimately ruled that:

Because the action in the instant case was not a covert attempt to interfere with child custody or visitation, because the finding of abuse was fully supported by the record, and because the Domestic Violence Act specifically provides that the circuit court may address the issue of temporary child custody, we believe the circuit court erred when it refused to consider the issue of temporary child custody in this case. Id.

Ultimately, I believe the Appellate Courts made the correct rulings in the Radke and Sutherlin cases based upon the different fact scenarios in each case. Nevertheless, these cases underline the difficulty that judges have when they are asked to rule on temporary custody matters in order of protection cases. The cases also show the potential for abuse of the judicial system when a petitioner attempts to seek relief under Illinois Domestic Violence Act instead of under the Illinois Marriage and Dissolution of Marriage Act or the Parentage Act.

Judges are under extreme pressure in these cases because of the potential fallout from denying an emergency order of protection. For example, what if a petition for an emergency order of protection is denied, and that person’s spouse kills the petitioner and/or the parties’ minor children. Would you want to be the judge who denied the emergency order of protection? On the other hand, even if a judge grants an emergency order of protection, a piece of paper is not going to stop an abuser from killing or severely injuring the abused party. I have also been involved in cases where the respondent becomes more irate and irrational when served with an emergency order of protection, which creates a difficult situation for law enforcement. Ultimately, judges are put in the position where they must decide the best remedy to protect the innocent parties, while at the same time diffusing the situation.

In addition to all of the foregoing issues, there are also severe ramifications that the respondent faces when a frivolous order of protection is filed. Employment issues can certainly arise, and the Illinois State Police will be quick to act revoke the respondent’s Firearm Owner’s Identification (FOID) card. The respondent will usually have to miss work and will likely have the added cost of retaining an attorney. In addition, these files are available for public inspection at the circuit clerk’s office, and questions remain as to how a respondent can get these records sealed or expunged.

So, what steps can be taken to protect the abused while at the same time minimizing the abuse of the judicial system?

Filing Fees

One possible solution is to require petitioners to pay filing and service fees. Under the current rules in Section 202(b) of the Illinois Domestic Violence Act , no fees can be charged by the clerk for filing, amending, vacating, certifying, or photocopying petitions or orders; or for issuing alias summons; or for any related filing service. In addition, no fee shall be charged by the sheriff for service by the sheriff of a petition, rule, motion, or order in an order of protection case.

I primarily practice in Richland County, which is a county in southeastern Illinois with a population of around 16,000 people. On average, there are over 150 order of protection cases filed each year in Richland County alone. Each case generates a substantial amount expense for the county, both in the Circuit Clerk’s office and the Sheriff’s Department. I believe that charging a filing fee would make people think twice about filing frivolous pleadings. In addition, the county would be able to recoup some of the costs incurred in these cases. So, what about petitioners who are indigent? They could request to have their fees and costs waived as is already allowed in other civil cases.

Ask for Reasonable Expenses and Attorney Fees

Section 226 of the Act provides that “allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee.” (750 ILCS 60/226) While some judges are reluctant to assess costs against pro se petitioners, I have had several cases where the judges did award attorney’s fees for my clients when the judges found that the pleadings were frivolous. In those cases, the petitioners never refiled another order of protection case against my clients.

If petitioners knew ahead of time that they could be financially liable for filing frivolous pleadings, I believe that they would reconsider filing questionable cases. If fewer frivolous cases were filed, the courts could better focus on the petitioners who truly need protection. That being said, I would strongly encourage judges to sanction parties that file frivolous pleadings in order of protection cases in order to limit the abuse that occurs under the Act.

Establish ways to Expunge or Seal Frivolous Cases

There has recently been some discussion on ways for a respondent to have frivolous cases expunged or sealed so they do not create problems for the respondent in the future. I believe that this should be strongly encouraged, especially in cases where the petitioner fails to appear in court for the plenary hearing. There are processes in place to expunge and seal criminal cases, and I believe that these could be used as models for expunging and sealing order of protection cases that are dismissed.

These are a few of my ideas that I have on this topic. If you have additional ideas or would like to discuss any of these matters, feel free to e-mail me at ■

Member Comments

Personally I have a very difficult time with Ex-parte OPs. 1st, it takes too long to get into court to contest them. There is statutory authority to have an expedited hearing with 2 days notice to the petitioner, 224(d), but many judges have taken the position that the language means they have 2 days to set a new hearing date. 2nd, many EOPs are filed when there are dissolutions proceeding, notice should be given in those cases unless there is clear and convincing evidence of some physical abuse, i.e. bruising, cuts, scrapes, medical reports, etc. 3rd, costs, expenses and attorney fees should be automatic, i.e. shall be paid, if the petitioner fails to appear at the hearing for interim or plenary hearing and respondent does or the court finds the petition is frivolous. 4th, proof for entry of a plenary OP should be the same as a criminal charge, beyond a reasonable doubt. Why? well because when an OP is entered the respondent looses his constitutional right to keep and bear arms. I simply believe that it should take more than a preponderance or clear and convincing evidence to take that right away.