PROSECUTION AND DEFENSE OF AN ACTION UNDER THE ILLINOIS DOMESTIC VIOLENCE ACT

 

PROSECUTION AND DEFENSE OF AN ACTION UNDER THE ILLINOIS DOMESTIC VIOLENCE ACT

CHARLESTON, SOUTH CAROLINA

 

MATTHEW KAPLAN

BRIAN O’HAGAN 

APRIL, 2018

  1. INTRODUCTION:
    1. PURPOSE OF THIS PRESENTATION IS TO GIVE YOU SOME INSIGHTS INTO:
      1. HOW TO PROSECUTE AN ACTION UNDER THE ILLINOIS DOMESTIC VIOLENCE ACT
      2. HOW TO DEFEND AGAINST A PETITION BROUGHT UNDER THE DOMESTIC VIOLENCE ACT, AND
      3. GIVE YOU SOME PRACTICE TIPS
    2. WE HAVE SOME PICTURES TO DEMONSTRATE THE CENTRAL POINT OF THIS PRESENTATION, WHICH IS: PROVING THE ELEMENT OF ABUSE IS ESSENTIAL TO YOUR CASE AND, IN PROVING YOUR CASE, A PICTURE CAN BE WORTH TEN THOUSAND WORDS; HERE’S A SHORT DEMONSTRATION
      • NOTE THE PICTURE OF JOHN KELLY; CURRENT WHITE HOUSE CHIEF OF STAFF
        •  
        • NOTE THE PICTURE OF ROB PORTER, FORMER WHITE HOUSE SECRETARY, HARVARD LAW GRADUATE
        • WRITTEN REPORTS HAD SURFACED THAT PORTER HAD PHYSICALLY ABUSED BOTH HIS EX-WIVES, BUT KELLY RESISTED FIRING HIM
        • THEN THIS PICTURE OF COLBIE HOLDERNESS WAS PUBLISHED; PORTER WAS GONE IN SHORT ORDER
        • THIS IS A DEMONSTRATION OF THE POWER OF A PICTURE; THE SAME REVULSION MOST OF YOU FELT WILL AFFECT THE JUDGE AND CAN EFFECTIVELY MAKE YOUR CASE
    3. WE USE SOME CONVENTIONS IN THIS PRESENTATION:
      1. WE WILL ALWAYS REFER TO THE PETITIONER AS “SHE” AND THE RESPONDENT AS “HE”
      2. THAT’S MERELY FOR ECONOMY
      3. WE’VE SEEN SOME TRULY FRIGHTENING WOMEN OVER THE YEARS, (SOME OF WHOM ARE IN THIS ROOM), BUT THE GREAT MAJORITY OF PETITIONERS IN DOMESTIC VIOLENCE CASES ARE WOMEN
    4. FIRST, AN OVERVIEW OF THE ILLINOIS DOMESTIC VIOLENCE ACT OF 1986, AS AMENDED: 750 ILCS 60/1 et seq.
      1. STATUTORY REMEDY:
        1. NO COMMON LAW PRECEDENT OR ELEMENT
        2. NO RIGHT TO JURY TRIAL (SEC. 206)
        3. CIVIL PRACTICE CODE APPLIES (SEC. 205-a)
          • PREVAILING STANDARD OF PROOF IS PREPONDERANCE OF EVIDENCE (Sec. 205-a); THERE ARE SOME SUBTLE VARIATIONS WE’LL DISCUSS
            • BURDEN OF PROOF THROUGHOUT DOMESTIC VIOLENCE PROCEEDINGS IS ON THE PETITIONER, EXCEPT:
              1. IN HEARINGS ON PETITION TO RE-HEAR THE ISSUANCE OF AN EMERGENCY ORDER, BROUGHT BEFORE THE SCHEDULED PLENARY HEARING, THE BURDEN SHIFTS TO RESPONDENT (Sec. 224(d)) (MORE DISCUSSION LATER)
              2. ALSO, THE BURDEN OF PROOF ON ANY MOTION TO MODIFY OR TERMINATE AN ORDER OF PROTECTION IS ON THE PARTY SEEKING THE MODIFICATION OR TERMINATION
            • PROCEDURAL QUESTION: IF RESPONDENT DOES NOT FILE A WRITTEN RESPONSE TO THE PETITION, IS THE COURT OBLIGATED TO DEEM THE ALLEGATIONS IN THE PETITION ADMITTED PURSUANT TO THE CODE OF CIVIL PROCEDURE ILCS 735 ILCS 2/603(a)? IT WOULD SEEM SO, BUT:
              1. IN PRACTICE, IT IS RARE FOR RESPONDENTS TO FILE WRITTEN RESPONSES TO PETITIONS FOR ORDERS OF PROTECTION;
              2. DESPITE 735 ILCS 2/603(a) (WHICH SAYS THAT ALL ALLEGATIONS NOT SPECIFICALLY DENIED ARE ADMITTED), WE HAVE NEVER SEEN A COURT DEEM THE ALLEGATIONS ADMITTED BECAUSE THE RESPONDENT FAILED TO FILE A RESPONSE; NONETHELESS, IT’S GOOD PRACTICE TO FILE A RESPONSE; WE’LL TOUCH ON THIS LATER
            • MANY RESPONDENTS HIRE THEIR ATTORNEY IN AN ACCOMPANYING CRIMINAL CASE TO REPRESENT THEM IN A DOMESTIC VIOLENCE CASE;
              • CRIMINAL COUNSEL MAY ASSERT THAT DOMESTIC VIOLENCE PROCEEDINGS ARE CRIMINAL OR QUASI-CRIMINAL, WITH HIGHER BURDENS OF PROOF, BUT THEY ARE NOT
              • DOMESTIC VIOLENCE CASES LACK THE PUNITIVE ELEMENT COMMON TO CRIMINAL AND CONTEMPT PROSECUTIONS
  1. STATUTORY BASIS: 750 ILCS 60/1 ET SEQ.
    1. IF YOU ARE GOING TO PRACTICE IN THE AREA OF DOMESTIC VIOLENCE, YOU NEED TO READ THE ENTIRE ACT
      1. BECOME FAMILIAR WITH THE PROCESS IN ORDER TO
      2. AVOID UNPLEASANT SURPRISES
    2. KEY PROVISION:
      1. SECTION 214(a) PROVIDES THAT, IF TRIAL COURT FINDS PETITIONER OR A PROTECTED PARTY HAS BEEN ABUSED BY A FAMILY OR HOUSEHOLD MEMBER, IT SHALL ISSUE AN ORDER OF PROTECTION PROHIBITING FURTHER ABUSE; “SHALL” IS USED IN THE MANDATORY SENSE (Best v. Best, 223 ILL2nd 342, 860 N.E2d 240, 307 ILL.DEC. 586 (2006)) THE CASE IS IN YOUR MATERIALS AS APPENDIX A
      2. THE FULL TEXT OF SECTION 214 IS IN YOUR MATERIALS AS APPENDIX B
      3. IN ADDITION TO THE PROHIBITION OF ABUSE: SECTION 214(b) PROVIDES FOR 20 REMEDIES THAT CAN BE APPLIED AT THE COURT’S DISCRETION, ONCE THE BASIC FINDING OF ABUSE HAS BEEN MADE:
        1. EXCLUSIVE POSSESSION OF A RESIDENCE
          • HOWEVER, TO OBTAIN EXCLUSIVE POSSESSION IN AN EMERGENCY HEARING WITHOUT NOTICE WILL REQUIRE A SHOWING OF MORE SEVERE ABUSE OR EXTREME HARDSHIP TO PETITIONER
          • TRIAL COURT WILL WEIGH HARDSHIPS
          • ALTERNATIVE IS 750 ILCS 5/501(c-2); REQUIRES PROOF OF THREAT TO MENTAL OR PHYSICAL WELL-BEING, NOT PROOF OF ABUSE
        2. ORDER TO STAY AWAY FROM THE PROTECTED PARTY’S SCHOOL OR WORKPLACE
        3. KEEP IN MIND THAT, OF THE 20 REMEDIES IN 214(b), THERE ARE SOME WHICH AREN’T AVAILABLE ELSEWHERE IN FAMILY CASES, SUCH AS:
          • COUNSELING
          • PROTECTION OF ANIMALS
          • PROHIBITION OF FIREARM POSSESSION; THIS CAN BE VERY TOUGH IF RESPONDENT IS A POLICE OFFICER
          • TRANSFER OF TELEPHONE SERVICE
  • IN HANDLING A DOMESTIC VIOLENCE CASE, THE MOST COMMON ISSUES ARE:
    1. WHAT IS ABUSE? RESPONDENT’S CONDUCT MUST FALL WITHIN ONE OR MORE OF THE CATEGORIES OF ABUSE DEFINED IN SECTION 103:
      1. PHYSICAL ABUSE (SEC. 103(14):
        1. KNOWING OR RECKLESS USE OF PHYSICAL FORCE
        2. KNOWING, REPEATED AND UNNECESSARY SLEEP DEPRIVATION; OR
        3. KNOWING OR RECKLESS CONDUCT WHICH CREATES AN IMMEDIATE RISK OF PHYSICAL HARM (SEE E.G. IN RE MARRIAGE OF HOLTORF, 397 ILL.APP.3D 805, FURTHER DEFINES POTENTIAL HARM: COURT HELD THE POTENTIAL FOR IMMEDIATE PHYSICAL HARM, IN EITHER BRINGING THE CHILDREN INTO THE STORE OR LEAVING THEM IN A RUNNING AUTO WHILE COMMITTING A THEFT, WAS ABUSE.
      2. HARRASSMENT (SEC 103(7)):
        1. STATUTORY DEFINITION IS SOMEWHAT GENERAL; IT’S CONDUCT:
          • NOT NECESSARY TO ACCOMPLISH A PURPOSE REASONABLE UNDER THE CIRCUMSTANCES
          • WOULD CAUSE A REASONABLE PERSON EMOTIONAL DISTRESS, AND;
          • ACTUALLY DID CAUSE EMOTIONAL DISTRESS
        2. STATUTE GOES ON TO SPECIFY SOME ITEMS WHICH ARE PRESUMPTIVELY HARRASSING CONDUCT:
          • CREATING DISTURBANCE AT PETITIONER’S EMPLOYER OR SCHOOL (ONCE IS ENOUGH)
          • REPEATED TELEPHONING PETITIONER
          • REPEATEDLY FOLLOWING PETITIONER
          • REPEATED SURVEILLANCE
          • REMOVAL OR THREAT TO REMOVE CHILD FROM PETITIONER
          • THREAT OF PHYSICAL FORCE, CONFINEMENT, OR RESTRAINT (ONCE IS ENOUGH)
        3. INTERFERENCE WITH PERSONAL LIBERTY (SEC. 103(9)):
          • EXAMPLES INCLUDE: PREVENTING PETITIONER FROM USING THE TELEPHONE TO CALL FOR HELP; ISOLATING THE PETITIONER FROM FAMILY AND FRIENDS; CONTROLLING PETITIONER’S MOVEMENTS, MONITORING TO WHOM THE PETITIONER TALKS OR WHERE PETITIONER GOES. See In re Marriage of Healy, 263 Ill.App.3d 596
        4. INTIMIDATION OF A DEPENDENT (DEFINED IN SEC. 103(10):
          • GENERALLY, CONDUCT FRIGHTENING TO CHILDREN
          • SEE FRANK V. HAWKINS, 383 ILL.APP.3D 799. CHILDREN WITNESSED RESPONDENT GO INTO RAGES, THROWING OBJECTS, WITNESSING THE AFTERMATH OF THE RAMPAGES AS WELL AS HISTORY OF DOMESTIC VIOLENCE AGAINST WIFE/MOTHER.  THE COURT FOUND THAT RESPONDENT’S BEHAVIOR CONSTITUTED PSYCHOLOGICAL ABUSE (FEARING THE UNKNOWN FUTURE BEHAVIOR/VIOLENT ACTS).
        5. OTHER SEC. 103 DEFINITIONS OF ABUSE ARE: WILLFUL DEPRIVATION (defined in sec. 103(15))
        6. NEGLECT (defined in sec. 103(11)(A))
        7. EXPLOITATION: (defined in sec. 103(5))
        8. STALKING NOTE: THE DEFINITION OF STALKING AS FOUND IN 12-7.3(A) OF THE CRIMINAL CODE HAS BEEN DECLARED UNCONSTITUTIONAL PER THE HOLDING OF PEOPLE V. RELERFORD, 2016 IL APP (1ST) 132531, WHICH WAS UPHELD IN AN AS-YET UNRELEASED SUPREME COURT OPINION 2017 IL 121094; MAY NOT VITIATE THE STALKING PROVISIONS OF IDVA AND SNC ACT, BECAUSE THE POINT ON WHICH THE RELERFORD COURT STRUCK DOWN THE CRIMINAL CODE SECTION WAS STATUTORY LACK OF MENS REA, THAT DOES NOT AFFECT THE VALIDITY OF THE STALKING DEFINITION ADOPTED IN THE IDVA
      3. BEHAVIOR THAT IS MERELY IRRITATING IS NOT SUFFICIENT FOR A FINDING OF ABUSE
      4. TO GET AN ORDER OF PROTECTION, THE VICTIM HAS TO BE “FAMILY OR HOUSEHOLD MEMBER”; THE STATUTE PROVIDES AN EXPANSIVE DEFINITION OF THAT PHRASE; IT INCLUDES:
        1. IMMEDIATE FAMILY MEMBERS
        2. EXTENDED FAMILY, TOO; COUSINS, UNCLES
        3. RELATIONS BY MARRIAGE
        4. AND THE COURTS HAVE TAKEN IT EVEN FURTHER: DATING RELATIONSHIP; REFER YOU TO ALISON V. WESTCOTT, 343 ILL. APP. 3D 648 FOR A GOOD SUMMARY OF THE ELEMENTS OF A DATING RELATIONSHIP:
        5. CIVIL NO CONTACT STATUTE (740 ILCS 22/1 et. seq.) ALLOWS INDIVIDUALS WHO DO NOT QUALIFY FOR DVOP BECAUSE THEY LACK THE REQUISITE RELATIONSHIP TO SEEK COMPARABLE PROTECTION (740 ILCS 22/214(a)) INCLUDES PROTECTION FROM A PERPETRATOR OF “NON-CONSENSUAL SEXUAL CONDUCT” OR “NONCONSENSUAL SEXUAL PENETRATION BY RESPONDENT”
      5. AGAIN, BECAUSE OF THE WAY THE STATUTE IS STRUCTURED, YOU MUST ESTABLISH THE RELATIONSHIP, AND UNDER THE BEST CASE, ESSENTIAL FACTUAL ELEMENTS OF ABUSE
      6. WHAT OTHER REMEDIES, OTHER THAN BASIC PROHIBITION OF ABUSE, SHOULD BE SOUGHT?
        1. CASE BY CASE DETERMINATION;
        2. THE TWENTY REMEDIES PROVIDED FOR IN 214(b) HAVE DETAILED REQUIREMENTS; LOOK TO THE STATUTE FOR EACH ONE
      7. CAN YOU GET AN EXTENSION OF A PLENARY ORDER BEYOND TWO YEARS?
        1. 220(e) ALLOWS EXTENSION OF PLENARY ORDERS OF PROTECTION, UPON GOOD CAUSE SHOWN; THE EXTENSION CAN BE INDEFINITE; SECTION 750 ILCS 60/220(e)
        2. NO STATUTORY DEFINITION OF GOOD CAUSE
        3. PROBABLE ELEMENTS:
          1. REPEATED VIOLATIONS OF PLENARY ORDER; SEE, E.G. STAPP V. JANSEN, 370 ILL. APP. 3D 286 (EXTENDING ORDER OF PROTECTION FOLLOWING TRIAL ON RESPONDENT’S CONTINUED ONLINE CONTACT WITH PETITIONER IN VIOLATION OF ORDER OF PROTECTION.)
          2. INCARCERATION OF RESPONDENT FOR LONGER THAN 2 YEARS
          3. OTHER EVIDENCE OF RESPONDENT’S UNREMITTING PROPENSITY TO VIOLENCE.
            • EXTENSIONS GENERALLY: See Lutz v. Lutz, 313 Ill. App. 3d 286 FOR A GOOD SUMMARY OF GROUNDS FOR EXTENSION;
  • WHAT ARE AN ATTORNEY’S DUTIES WHEN TAKING ON A DOMESTIC VIOLENCE CASE?
    1. PETITIONER’S CASE
      1. CAREFUL PRACTICE STARTS WITH THE INITIAL INTERVIEW
        1. PROTECT YOURSELF
          • BEFORE THE PROSPECTIVE CLIENT STARTS TO TELL YOU WHAT HAPPENED, YOU MUST:
            • GIVE THE STANDARD ADVICE RE CONFIDENTIALITY
            • INFORM THE CLIENT THAT AN ATTORNEY IS PROHIBITED FROM PRESENTING PERJURED TESTIMONY
            • WARN THE PROSPECTIVE CLIENT THAT, IF HE OR SHE STARTS TO LIE ON THE WITNESS STAND, YOU WILL HAVE TO STOP THE PROCEEDINGS AND IMMEDIATELY ASK TO WITHDRAW AS ATTORNEY; ALTHOUGH YOU MAY NOT HAVE TO TELL THE JUDGE WHY YOU MUST WITHDRAW, THE JUDGE WILL FIGURE IT OUT IMMEDIATELY.
            • SEE SUPREME COURT RULE OF CONDUCT 3.3
          • ONLY AFTER THOSE WARNINGS SHOULD YOU ASK THE CLIENT WHAT HAPPENED:
          • DETERMINE WHETHER SUFFICIENT FACTS EXIST TO SUSTAIN A FINDING OF ABUSE
          • DO NOT TAKE ON A FRIVOLOUS CASE
          • YOU HAVE A CONTINUING DUTY TO INQUIRE.
          • STOP PURSUING ACTION IF YOU RECOGNIZE YOU DO NOT HAVE A CASE
          • APPENDIX C IS A “DOMESTIC VIOLENCE MODULE” WITH A GOOD SET OF QUESTIONS FOR INTERVIEW
        2. DEALING WITH THE CLIENT:
          1. MANY DOMESTIC VIOLENCE VICTIMS ARE FRAGILE
            1. AMBIVALENT ABOUT PURSUING LEGAL REMEDIES
            2. DIMINISHED CONFIDENCE IN THEIR DECISIONS
          2. A LAWYER IS IN A POWERFUL POSITION IN RELATION TO THE CLIENT; YOU HAVE TO BE CAREFUL:
            1. NOT TO IMPOSE YOUR DECISIONS ON THE CLIENT’S
            2. YOU CAN’T MAKE THE DECISIONS FOR THEM, BUT:
          3. YOU CAN GUIDE THEM BY GIVING GOOD ADVICE AND ASKING IMPORTANT QUESTIONS, LIKE:
            1. “CAN YOU SEE YOURSELF STILL LIVING LIKE THIS WITH HIM TWO YEARS FROM NOW?”
            2. “ARE YOUR CHILDREN COMING TO ACCEPT THIS BEHAVIOR AS NORMAL?”
          4. IF YOU DETERMINE, BASED ON YOUR CLIENT’S CREDIBLE ACCOUNT, THAT THE CLIENT HAS BEEN ABUSED BY A FAMILY OR HOUSEHOLD MEMBER, THE NEXT STEP IS TO DECIDE HOW TO FILE:
            1. IF THERE’S A CURRENTLY PENDING DISSOLUTION OF MARRIAGE, PARENTAGE, SUPPORT, RURESA, PROBATE, OR JUVENILE CASE, 202(a)(2) ALLOWS THAT THE PETITION FOR ORDER OF PROTECTION MAY BE FILED IN THAT CASE, WITH THAT CASE NUMBER AND CAPTION
            2. IF THE DOMESTIC VIOLENCE CASE GETS FILED FIRST AND EITHER PARTY LATER FILES DISSOLUTION OR OTHER ACTION, THE CASES MAY BE CONSOLIDATED.
          5. CASE LAW:

 

  1. THE SEMINAL CASE IN THE DOMESTIC VIOLENCE AREA IS BEST V BEST, ISSUED BY THE ILLINOIS SUPREME COURT IN 2006:
    1. BASIC RULING: IF TRIAL COURT FINDS PETITIONER HAS BEEN ABUSED BY RESPONDENT, IT MUST ENTER AN ORDER OF PROTECTION PROHIBITING FURTHER ABUSE.
    2. IF THE TRIAL COURT MAKES THE FINDING OF ABUSE, THEN IT HAS NO DISCRETION NOT TO ISSUE AN ORDER PROHIBITING FURTHER ABUSE
      1. IF YOU WISH TO HEAR HOW THAT CASE MADE IT TO THE SUPREME COURT, YOU WILL HAVE TO BUY ME A DRINK AFTER THE SEMINAR.
      2. BEST RULING FOLLOWED DIRECTLY FROM SIMPLE LANGUAGE OF THE OPENING PORTION OF SEC. 214(a)
      3. BEST ESTABLISHED THE DOMINANCE OF THE FACTUAL PRESENTATION OF THE CASE; THIS CONSIDERATION DOMINATES YOUR PREPARATION AND PRESENTATION OF THE CASE
    3. IF YOU DON’T GET A FINDING OF ABUSE, THE ENTIRE CASE FAILS AND YOUR PETITION IS DENIED; THE FINDING IS ESSENTIAL
    4. HOWEVER, BEST DID NOT DIMINISH THE BROAD LATITUDE VESTED IN THE TRIAL COURT TO DETERMINE WHAT FACTUALLY CONSTITUTES ABUSE;
    5. AND, BESIDES ESTABLISHING THE FINDING OF ABUSE AS A REQUIREMENT FOR ANY RELIEF, THE BEST CASE DID NOT AFFECT THE APPLICATION OF THE TWENTY DISCRETIONARY REMEDIES UNDER SEC. 214(b)
  • 214(b) REMEDIES; GENERALLY
    1. PROHIBITION OF ABUSE, NEGLECT OR EXPLOITATION (214(B)(1)); HOW IS THIS DIFFERENT FROM 214(a)?
      1. 214(a) PROHIBITION IS AGAINST FURTHER ABUSE OF THE KIND THAT WAS INFLICTED
      2. UNDER 214(b)(1), THE COURT CAN PROHIBIT NEW, OTHER, CREATIVE KINDS OF ABUSE
    2. EXCLUSIVE POSSESSION (214(b)(2))
      1. PETITION ASKING FOR EXCLUSIVE POSSESSION MUST BE FILED IN COUNTY IN WHICH THE RESIDENCE IS LOCATED (Sec. 209(b))
      2. PETITIONER MUST FIRST ESTABLISH THAT SHE HERSELF HAS THE RIGHT TO OCCUPY THE RESIDENCE;
        1. See Sec. 214(b)(2)(A) FOR OCCUPANCY RIGHT ELEMENTS
        2. YOU CAN’T USE IDVA TO GET POSSESSION OF A RESIDENCE WHICH YOU HAVE NO PRE-EXISTING RIGHT TO OCCUPY
      3. IF PETITIONER’S RIGHT TO OCCUPY THE RESIDENCE IS ESTABLISHED, THEN THE COURT WILL BALANCE HARDSHIPS, INCLUDING THE INTERESTS OF MINOR CHILDREN; LOOK AT (214(b)(2)(B) FOR THE FACTORS
      4. PRESUMPTION OF HARDSHIPS – ONCE ABUSE HAS BEEN ESTABLISHED, THERE IS A STATUTORY PRESUMPTION IN FAVOR OF PETITIONER IN DETERMINING EXCLUSIVE POSSESSION; THE PRESUMPTION MAY BE REBUTTED BY A PREPONDERANCE OF THE EVIDENCE THAT THE HARDSHIPS TO RESPONDENT SUBSTANTIALLY OUTWEIGH THE PETITIONER’S.
      5. (214(b)(3)) PROVIDES FOR STAY AWAY ORDERS
        1. ORDER TO STAY AWAY FROM PROTECTED PARTY, WHEREVER SHE MAY BE OR;
        2. ORDER TO STAY AWAY FROM A SPECIFIED PLACE WHEN A PROTECTED PARTY IS PRESENT (SEE PEOPLE V. GEE, 276 ILL.APP.3D 198)
          • IN DETERMINING A VIOLATION OF A STAY AWAY ORDER, THE COURT WILL CERTAIN FACTORS WHICH ARE STATED IN YOUR MATERIALS; GENERALLY, RESPONDENT’S ACCIDENTAL PRESENCE IS NOT A VIOLATION: SEE PEOPLE V. MANDIC, 325 ILL.APP.3D 544
        3. UNDER (214(b)(4)) THE COURT MAY ORDER COUNSELING AND OTHER THERAPIES, SUCH AS SUBSTANCE ABUSE AND ANGER MANAGEMENT TREATMENT; THESE ARE REMEDIES RARE IN OTHER AREAS OF LAW
        4. UNDER 214(b)(5), THE COURT CAN AWARD PHYSICAL CARE AND POSSESSION OF MINOR CHILD IN AN EMERGENCY ORDER
        5. UNDER 214(b)(6), THE COURT CAN TEMPORARILY ALLOCATE PARENTAL RESPONSIBILITIES
          1. IN THE STATUTE, THIS IS EXPLICITLY A TEMPORARY REMEDY; THE ULTIMATE ALLOCATION IS SUPPOSED TO BE DONE IN THE FAMILY COURTS
          2. ALLOCATION NOT AVAILABLE IN AN EX PARTE ORDER; ONLY PLENARY, AFTER NOTICE TO RESPONDENT
          3. THERE’S ARE PRESUMPTIONS IN 214(b)(6 AND 7) THAT, IF A CHILD HAS BEEN ABUSED, THE ABUSER DOES NOT GET SIGNIFICANT DECISION-MAKING POWER OR PHYSICAL CARE OF THE CHILD
          4. PRACTICE TIP: CASELAW SHOWS THAT TEMPORARY ALLOCATION OF PARENTAL RESPONSIBILITY DECISIONS SHOULD BE MADE UNDER THE STANDARDS IN ALLOCATION STATUTES
          5. CASELAW: IDVA IS NOT TO BE USED AS SUBTERFUGE TO GAIN CUSTODY. A GOOD (PRE-BEST) EXAMPLE OF THIS IS WILSON V. JACKSON  312 ILL.APP.3d 1156, 728 N.E.2d 832, 245 ILL.DEC. 750 (2000).
            • WHAT THE RESPONDENT DID TO THE PETITIONER SOUNDS LIKE ABUSE; SHE PUSHED HIM, HIT HIM IN THE FACE, CHEST, AND SHOULDERS.
            • HOWEVER, THE PETITIONER WAS A MAN WHO HAD NOT YET BEEN ADJUDICATED THE FATHER OF RESPONDENT’S CHILD;
            • HE HAD COME TO RESPONDENT’S HOUSE AND TRIED TO TAKE THE CHILD AWAY WITH HIM;
            • RESPONDENT TOLD HIM REPEATEDLY TO LEAVE WITHOUT THE CHILD, WHEN HE DIDN’T, SHE HIT HIM REPEATEDLY AND YANKED THE CHILD FROM HIM
            • IN WILSON V. JACKSON, THE APPELLATE COURT RULED:
              1. THAT THE TRIAL COURT’S FINDING OF ABUSE WAS AN ABUSE OF DISCRETION (THIS WAS BEFORE THE BEST CASE WAS ISSUED);
              2. THAT THE PETITIONER, WHOSE PATERNITY AND PARENTAL RIGHTS HAD YET TO BE ESTABLISHED, HAD USED THE IDVA TO PRE-EMPTIVELY GET CUSTODY, AND;
  • REVERSED THE TRIAL COURT’S ISSUANCE OF A PLENARY ORDER OF PROTECTION
  1. (SEC 214(b)(7)) RE PARENTING TIME REQUIRES THAT ANY ORDER TEMPORARILY ALLOCATING PARENTING TIME BE SPECIFIC AS TO DATES, TIMES, AND OTHER PARAMETERS.
    • THE USE OF THE PHRASE “REASONABLE PARENTING TIME” IS EXPLCITLY BARRED IN THE STATUTE.
    • THE COURT CAN IMPOSE RESTRICTIONS OR SUPERVISION ON PARENTING TIME (SEC. 214(7))
    • THE COURT IS NOT LIMITED TO THE STANDARDS STATED IN 750 ILCS 5/603.10; THE STANDARDS STATED IN 214(7) ARE SOMEWHAT LOOSER
  2. 214(b)(9) ORDER TO APPEAR
  3. 214(b)(10) ORDER TO TURN OVER POSSESSION OF PERSONAL PROPERTY
  4. 214(b)(11) PROTECTION OF PROPERTY
  5. 214(b)(12) ORDER FOR PAYMENT OF SUPPORT – NOT AVAILABLE EX PARTE
  6. 214(b)(13) ORDER FOR PAYMENT OF LOSSES – NOT EX-PARTE; IN A PLENARY ORDER, YOU CAN GET:
    1. MEDICAL COSTS
    2. LOST EARNINGS OR OTHER LOSSES, INCLUDING ATTORNEY’S FEES
    3. REPAIR/REPLACEMENT OF PROPERTY DAMAGED/TAKEN
    4. COURT COSTS
    5. MOVING OR OTHER TRAVEL EXPENSES
    6. REASONABLE EXPENSES FOR TEMPORARY SHELTER AND RESTAURANT MEALS
    7. IF THE PARTIES IN AN O/P ACTION ARE MARRIED: THE COURT CAN ORDER THE PAYMENT OF ACTUAL LOSSES OR EXPENDITURES AS IF IT WERE TEMPORARY RELIEF IN AN IMDMA ACTION, SUCH AS MAINTENANCE AND CHILD SUPPORT, EVEN IF NO DIVORCE SUIT HAS BEEN FILED (SEC. 214(b)(13)(i))
  7. OTHER 214(b) INJUNCTIVE REMEDIES:
    1. EVEN IF EXCLUSIVE POSSESSION ISN’T GRANTED, THE COURT (UNDER SEC. 214(b)(14) CAN PROHIBIT THE RESPONDENT FROM BEING IN THE RESIDENCE IF INTOXICATED; I WOULD DISCOURAGE USING THIS REMEDY UNLESS YOU ARE CONFIDENT THE RESPONDENT CAN ACTUALLY CONTROL HIS DRINKING
    2. PROHIBIT FIREARM POSSESSION; TURNOVER OF FOID CARD
    3. PROHIBIT ACCESS TO RECORDS RE CHILDREN OR PETITIONER
  8. ORDER FOR PAYMENT OF SHELTER SERVICES
  9. ORDER FOR OTHER UNSPECIFIED INJUNCTIVE RELIEF (SEC. 214(b)(17)
  10. AN AWARENESS OF ALL THE 214(b) REMEDIES IS ESSENTIAL TO GOOD PRACTICE IN THIS AREA
  • IN PREPARING A CASE FOR AN ORDER OF PROTECTION:
    1. START WITH THE PETITION
      1. MOST DOMESTIC VIOLENCE PROCEEDINGS BEGIN WITH A REQUEST FOR AN EMERGENCY ORDER OF PROTECTION, WITHOUT NOTICE
      2. BESIDES THE INFORMATION SPECIFICALLY CALLED FOR IN THE CHECK BOXES AND LINES ON THE FORM, YOU NEED TO SET OUT A DETAILED AND COMPELLING ACCOUNT OF ABUSE
      3. SOME IMPORTANT POINTS FOR DESCRIPTION OF ABUSE ARE:
        1. FOR EACH EVENT:
          • DATE
          • WITNESSES
          • SPECIFIC CONDUCT
          • EFFECT ON VICTIMS
            • INJURIES
            • FEAR
            • OTHER CONSEQUENCES
  1. FACTOR OF RECENCY
    • IF NO RECENT ABUSE, URGENCY IS LOST, AND APPARENT NECESSITY FOR ENTRY OF EMERGENCY ORDER WITHOUT NOTICE IS REDUCED
  2. SEVERITY
    • BRUISES ARE CONVINCING; PICTURES HELP, BUT PROOF OF PHYSICAL VIOLENCE (MARKS) NOT REQUIRED: SEC. 214(a)
    • MEDICAL TREATMENT
    • REPORT TO POLICE
    • ARREST
  3. PETITIONER’S FEAR OF RECURRENCE
    • DESCRIBE THE HISTORY OF ABUSE
      • ONE ACT IS SUFFICIENT TO SUPPORT ENTRY OF ORDER, BUT;
      • HISTORY OF REPEATED ABUSE SHOWS LIKELIHOOD OF RECURRENCE, A FACTOR WEIGHED BY THE COURT IN EMERGENCY AND PLENARY HEARINGS
      • ESPECIALLY IMPORTANT IN EMERGENCY HEARINGS, WHERE RELIEF WITHOUT NOTICE WILL BE GRANTED ONLY IF THE COURT FINDS THAT ABUSE IS LIKELY TO RECUR IF NOTICE WERE GIVEN
  1. THE FORMAL BURDEN IS A PREPONDERANCE OF THE EVIDENCE, BUT, YOU HEAR IT TIME AND AGAIN, AN ORDER OF PROTECTION IS AN EXTREME REMEDY; YOU NEED TO MAKE A COMPLETE AND COMPELLING CASE
  1. PREPARATION FOR HEARINGS:
    1. EMERGENCY HEARING:
      1. ESSENTIAL TO HAVE CLIENT PREPARED TO ANSWER QUESTIONS FROM THE COURT;
      2. HAVE THE CLIENT REVIEW PETITION PRIOR TO HEARING
      3. SATISFY YOURSELF THAT THE FACTS STATED IN THE PETITION ARE SUFFICIENT FOR A FINDING OF ABUSE, BOTH AT THE EMERGENCY HEARING AND AT THE HEARING ON THE ISSUANCE OF A PLENARY ORDER
    2. PLENARY HEARING
      1. OFTEN, YOU WILL BE HIRED ONLY AFTER THE PETITIONER HAS GOTTEN AN EMERGENCY ORDER, ON A PETITION THAT WAS PREPARED BY THE DOMESTIC ABUSE ADVOCATES OR THE PETITIONER HERSELF
      2. HAVE CLIENT REVIEW PETITION AGAIN, PARTICULARLY AS TO HISTORY OF ABUSE
    3. MAKE YOUR OWN INDEPENDENT ASSESSMENT THAT THE CASE STATED IN THE PETITION IS SUFFICIENT
      1. EMERGENCY OP WILL OFTEN BE GRANTED, ESPECIALLY IF IT’S AFTER HOURS BEFORE THE EMERGENCY COURT, BUT
      2. THE PETITION MAY NOT BE SUFFICIENT TO SUPPORT THE ISSUANCE OF A PLENARY OP, ESPECIALLY IF THE RESPONDENT SHOWS UP WITH AN ATTORNEY WITH SOME TRIAL SKILLS
      3. WHAT TO DO IF THE PETITION IS THIN…
        • AMEND THE PETITION, WITH NOTICE, TO FULLY FLESH OUT THE CASE, OR,
        • IF THE CASE IS INSUFFICIENT IN YOUR ASSESSMENT, LOOK FOR ANOTHER REMEDY IN THE DIVORCE COURTS OR AN ALTERNATE REMEDY UNDER:
          • THE CIVIL NO CONTACT ACT
          • THE STALKING NO CONTACT ACT
        • IF ABUSE TO CHILDREN IS INVOLVED, YOU CAN USE:
          • THE PARENTAL ALLOCATION PROVISIONS OF THE IMDMA
          • AS A VERY LAST RESORT, THE ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES
  1. PREPARATION FOR HEARING ON PLENARY
    1. GATHER AND INTERVIEW WITNESSES, IF ANY
      • CORROBORATION IS POWERFUL, BUT:
      • MOST DOMESTIC VIOLENCE INCIDENTS ARE SET IN A HOME
        • ONLY THE PARTIES, AND PERHAPS THE CHILDREN, ARE WITNESSES
        • PROBLEMS WITH CHILDREN AS WITNESSES
          1. COACHING
          2. LOYALTY OF THE CHILD TO THE ABUSER
  • WEIGHING BENEFIT OF TESTIMONY AGAINST DAMAGE TO CHILD
  1. IF THERE IS A PRIOR JOINT PARENTING AGREEMENT, MAY REQUIRE BOTH PARTIES’ ASSENT TO CHILD’S TESTIMONY
  2. JUDGE MAY SIMPLY NOT ALLOW CHILD’S TESTIMONY AND TELL YOU TO SEEK YOUR REMEDY IN THE FAMILY COURTS
  1. PREPARE ALL WITNESSES, BUT ESPECIALLY YOUR CLIENT, FOR CROSS-EXAMINATION; TEST CLIENT ON EXPECTED POINTS OF ATTACK
    • TOLERANCE OF ABUSE OVER LONG PERIOD; COUNTER: SOUGHT PROTECTION AFTER CHILDREN STARTED MIMICKING ABUSIVE BEHAVIOR…
    • NO POLICE REPORT OR MEDICAL TREATMENT; EXPLANATIONS:
      • SHAME
      • PERSONAL HISTORY OF PRIOR ABUSE
      • ECONOMIC CONSIDERATIONS
  1. YOUR CLIENT’S PRESENTATION DURING CROSS-EXAMINATION AND REHABILITATION MAY CONFIRM TO THE COURT HER GENUINE FEAR OF THE RESPONDENT AND HER ACCOUNT OF ABUSE
  • DEFENDING AGAINST A PETITION FOR ORDER OF PROTECTION
    1. INITIAL INTERVIEW OF CLIENT
      1. SAME ADMONITIONS REGARDING CONFIDENTIALITY AND TRUTHFULNESS THAT YOU’D GIVE TO A PETITIONER
      2. ONLY THEN ASK: DO YOU WANT TO TELL ME WHAT HAPPENED?
      3. IF CLIENT ADMITS THE ABUSE, THEN THE NEXT ESSENTIAL QUESTION: WHAT HAPPENED JUST BEFORE?
        1. POSSIBLE THAT PETITIONER INITIATED VIOLENCE; BUT THAT MAY NOT BE A DEFENSE. SEE SEC. 214(e), FOR ITEMS THAT CANNOT BE USED AS DEFENSES.
      4. SHOULD YOU PREPARE A WRITTEN RESPONSE TO PETITION?
        1. GOOD PRACTICE: SEE 735 ILCS 5/2-610(b); ALLEGATIONS NOT SPECIFICALLY DENIED ARE TO BE DEEMED ADMITTED
        2. FORM OF RESPONSE:
          1. COURT’S PETITION FORM, APPROVED BY THE COUNCIL OF CHIEF JUDGES, VIOLATES 735 ILCS 5/2-603(b); IT NOT ONLY LACKS CONSECUTIVELY NUMBERED PARAGRAPHS, IT MIXES PRAYERS FOR RELIEF AMONG THE FACTUAL ALLEGATIONS
          2. THE FORM PETITION MAKES IT VERY DIFFICULT TO FORMULATE A COMPREHENSIVE WRITTEN RESPONSE TO THE ENTIRE PETITION, BUT:
          3. IT’S USUALLY NECESSARILY ONLY TO DENY ALLEGATIONS REGARDING:
            • ABUSE
            • IF APPROPRIATE, IDENTITY OF PRIMARY CAREGIVER
          4. A FORM FOR AN ECONOMICAL RESPONSE TO A PETITION FOR ORDER OF PROTECTION IS AMONG YOUR MATERIALS; APPENDIX D
        3. ISSUES WITH PARALLEL CRIMINAL PROSECUTION
          1. FIFTH AMENDMENT ISSUES:
            1. ADMISSIONS IN THE DV MATTER MAY BE USED IN THE CRIMINAL PROSECUTION
            2. THE COURT, IN THE DOMESTIC VIOLENCE CASE, IS ALLOWED TO USE THE RESPONDENT’S INVOCATION OF HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION AS THE BASIS FOR AN INFERENCE THAT HE DID, IN FACT, COMMIT THE ABUSE ALLEGED.
          2. DEFENSE STRATEGIES
            1. REQUEST TO CONTINUE THE PLENARY HEARING UNTIL AFTER DISPOSITION OF CRIMINAL MATTER
            2. IF CRIMINAL CONDUCT IS GENUINELY AT ISSUE IN THE CRIMINAL MATTER, AND DOMESTIC VIOLENCE HEARING IS NOT CONTINUED, YOUR CLIENT MAY HAVE TO REFUSE TO TESTIFY, DESPITE THE INFERENCES THE DOMESTIC VIOLENCE JUDGE MAY MAKE
            3. YOU CAN BARGAIN FOR A SHORTER-TERM INTERIM OR PLENARY ORDER
          3. IF A RESPONDENT COMES TO YOU AFTER HE’S BEEN SERVED WITH AN EMERGENCY ORDER, AND HE DENIES HAVING COMMITTED ABUSE, HE HAS SOME AN INTERESTING DECISIONS TO MAKE REGARDING ATTACKING THE EMERGENCY ORDER. HE CAN:
            1. WAIT FOR HEARING ON PLENARY AT EXPIRATION OF EMERGENCY, USUALLY 21 DAYS AFTER THE EMERGENCY WAS ISSUED, OR
            2. FILE A PETITION FOR RE-HEARING UNDER SEC. 224(d)
            3. ELEMENTS REQUIRED FOR PETITION TO RE-HEAR: (SEC. 224(d))
              • LACK OF NOTICE, AND
              • MERITORIOUS DEFENSE
            4. NOTICE ON PETITION TO RE-HEAR: 2 DAYS
            5. IN YOUR VERIFIED PETITION TO RE-HEAR, IT’S BEST TO FULLY SET OUT FACTS OF YOUR CLIENT’S DEFENSE.
              1. IF THE RESPONDENT FILES A PETITION FOR RE-HEARING, THERE IS GREATER RISK OF LOSING THE CASE BECAUSE THE BURDEN OF PROOF SHIFTS TO THE RESPONDENT; THE RESPONDENT, NOT THE PETITIONER, HAS TO PROVE THE TWO ELEMENTS OF HIS CASE
                • AS TO THE LACK OF NOTICE: RESPONDENT’S TESTIMONY WILL SUFFICE
                • PROVING A MERITORIOUS DEFENSE
                  • MUST PLEAD AND PROVE DEFENSE; RESPONDENT GOES FIRST
                  • A BULLET-PROOF ALIBI, SUCH AS CREDIT CARD RECEIPTS SHOWIN THAT YOUR CLIENT WAS IN LAS VEGAS WHEN THE ALLEGED ABUSE OCCURRED, WILL SUPPORT A PETITION TO RE-HEAR
                  • IN A CLOSE FACTUAL CASE, THE RESPONDENT MAY FAIL TO PROVE HE DIDN’T COMMIT ABUSE BY A PREPONDERANCE IN A CASE WHERE PETITIONER MIGHT HAVE FAILED TO PROVE HER ABUSE CASE AT THE PLENARY HEARING.
                • FOR A RESPONDENT, IT IS OFTEN PREFERABLE TO WAIT UNTIL SCHEDULED PLENARY HEARING, SO THAT THE PETITIONER WILL HAVE THE BURDEN OF PROOF, DESPITE
                  • INCONVENIENCE AND LOSS OF RESIDENCE TO RESPONDENT IN WAITING FOR HEARING
                  • LOSS OF CONTACT WITH CHILDREN
                  • LACK OF ACCESS TO PERSONAL PROPERTY, DOCUMENTS, COMPUTERS
                • IN PREPARING A PETITION TO RE-HEAR, LOOK AT SECTION 214(e), WHICH ENUMERATES A NUMBER OF FACTUAL ITEMS THAT DO NOT ESTABLISH A DEFENSE; BE AWARE OF SEC. 215, WHICH BARS MUTUAL ORDERS OF PROTECTION AND DISCOURAGES THE ENTRY OF CORRELATIVE ORDERS OF PROTECTION
              2. IF YOU RUN THE HEARING ON YOUR PETITION TO RE-HEAR, DON’T BE SURPRISED IF, UPON DENIAL OF THE PETITION TO RE-HEAR, THE COURT, HAVING HEARD THE ENTIRE CASE, IMMEDIATELY ISSUES A PLENARY ORDER OF PROTECTION
            6. IF YOU ARE RESPONDENT’S ATTORNEY AT HEARING, EITHER ON PLENARY OR PETITION TO RE-HEAR, THE EVIDENTIARY POINTS TO STRESS ARE:
              1. WEAKNESSES IN PETITIONER’S ACCOUNT OF EVENTS
                1. TIME LAPSE BETWEEN ABUSE AND FILING OF PETITION
                2. NO POLICE REPORT
                3. NO MEDICAL TREATMENT
                4. LACK OF CORROBORATION
                5. MINIMAL NATURE OF ALLEGED ABUSE
                6. TEMPORAL OR OTHER INCONSISTENCIES IN TESTIMONY
              2. YOU MUST KEEP YOUR CLIENT FROM BLAMING THE PETITIONER FOR ABUSE; “SHE JUST WOULD NOT SHUT UP…”
              3. ATTACK PETITIONER’S MOTIVATION:
                1. FINANCIAL
                2. OUTSIDE RELATIONSHIP
                3. MASKING OF PERSONAL MISBEHAVIOR
                  • DRUGS
                  • ALCOHOL
                  • NEGLECT OF CHILDREN
                4. ALIENATION OF CHILDREN FROM RESPONDENT: PRE-EMPTIVE CUSTODY STRIKE
              4. IF IT LOOKS LIKE PETITIONER MAY HAVE A SOLID CASE, TRY NEGOTIATING DOWN FROM A PLENARY ORDER OF PROTECTION: FREQUENTLY A PETITIONER WILL ACCEPT INJUNCTIVE REMEDIES UNDER THE IMDMA IN PLACE OF AN ORDER OF PROTECTION, TO AVOID ROLLING THE DICE WITH THE TRIAL JUDGE, ESPECIALLY IF HER FACTUAL CASE IS WEAK; THOSE IMDMA REMEDIES CAN BE:
                1. AN EXCLUSIVE POSSESSION ORDER UNDER IMDMA 501(c-2)
                2. AN INJUNCTION AGAINST ABUSE, HARASSMENT, INTIMIDATION, STRIKING, AND INTERFERING WITH PERSONAL LIBERTY UNDER IMDMA 501.1(a)(1).
                3. A TEMPORARY ALLOCATION OF PARENTING RESPONSIBILITY
                4. OFFER TO HAVE YOUR CLIENT GO THROUGH APPROPRIATE ANGER MANAGEMENT OR SUBSTANCE ABUSE TREATMENT DURING AN EXTENSION OF THE EMERGENCY ORDER
              5. CLOSE: WE HOPE THAT THIS HAS BEEN HELPFUL; ANY QUESTIONS?

 

 

 

18-04-12 Charleston Presentation v. 12

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