Sword or shield?
Combating 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
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
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
Although domestic abuse or harassment can certainly jeopardize the physical
and mental well being of the occupants of the home, that might not be
the case for a one-time incident. In In re Marriage of Lima, the
second district reversed the trial court and held that a drop in blood
sugar related to the wife's diabetes was not enough to conclude that the
husband being in the home jeopardized her physical or mental well being.
The wife also claimed that on a single occasion she felt "used"
after sexual intercourse; the appellate court found that was not enough
to conclude that the husband being in the home jeopardized her physical
or mental well being.8 Also,
under the IMDMA notice and a full hearing are required prior to giving
a party exclusive use of the home.
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
The statute goes on to say as follows:
Unless the court finds the occurrence of ongoing abuse as defined in
Section 103 of the Illinois Domestic Violence Act of 1986, the court
shall presume that the maximum involvement and cooperation of both parents
regarding the physical, mental, moral, and emotional well-being of their
child is in the best interest of the child. There shall be no presumption
in favor of or against joint custody.15
This, however, does not create the same "rebuttable presumption"
in favor of one party.
Expedited timetable under DVA favors petitioners
On a practical level, the time frames set forth in the DVA further hamper
a parent from presenting the same type of evidence in an order of protection
hearing as in a divorce proceeding. Under the statute, a petition for
an order of protection shall be treated as an expedited proceeding.16
Thus a court may be making a decision without hearing all of the relevant
evidence. Time is needed to obtain witnesses and to investigate claims
There have been recent efforts to expedite matters of child custody proceedings
under the IMDMA. Under Supreme Court Rule 922, all child custody proceedings
shall be resolved within eighteen months from the date of service of the
petition unless the court finds that good cause has been shown not to
Under the IMDMA, in any proceedings involving the support, custody, visitation,
education, parentage, property interest, or general welfare of a minor
or dependent child, the court may, on its own motion or that of any party,
appoint an attorney to represent the child's interests.18
The court could further obtain the opinion of professional personnel or
even obtain psychological evaluations of the people involved.19
Thus courts in dissolution cases when making decisions of custody and
visitation tend to be more informed than courts hearing orders of protection.
If a parent is willing to abuse the system, it is unlikely the trial court
could discover their improper motives in an order of protection hearing.
If a case involved parental alienation syndrome, mental illness, or drug
use on the part of the petitioner that caused him or her to misinterpret
events, it would be difficult for a court to discover the problem in an
expedited proceeding under the DVA.
Visitation: the greatest potential for OP abuse
The greatest potential for abuse of the system is in visitation. It is
far easier to restrict visitation via an order of protection then by seeking
the same relief under the IMDMA. Under the IMDMA, "A parent not granted
custody of the child is entitled to reasonable visitation rights unless
the court finds, after a hearing, that visitation would endanger seriously
the child's physical, mental, moral or emotional health."20
In Heldebrandt v Heldebrandt21
the fourth district reversed the trial court for restricting visitation
based on the best interests of the child rather than the more stringent
serious endangerment standard:
A trial court must hold a hearing on the issue of restricted visitation
and should grant restricted visitation only after making the extraordinary
finding that visitation would seriously endanger the child's physical,
mental, moral, or emotional health. The serious endangerment standard
contained in section 607(c) of the Act is "onerous, stringent,
and rigorous" to meet because liberal visitation is the rule and
restricted visitation is the exception.22
In Griffiths v Griffiths,23 the
fourth district states as follows:
The Illinois courts have held that where the proceeding is by a custodial
parent to restrict or deny the visitation, the burden is upon the custodial
parent to prove by a preponderance that the visitation then provided
endangers the welfare of the children. [Cite]. However, where the non-custodial
parent seeks to modify visitation rights which have been originally
granted in the dissolution decree, the burden of proof is upon such
parent to show that the modification is in the "best interest"
of the child or children.24
Under the DVA, the order can protect not only the alleged victim but
also "any minor child or dependent adult in the care of such person."25
In the case of In re Marriage of McCoy,26
the fourth district makes it clear the trial court in an order of protection
hearing has wide discretion to restrict visitation:
We do not read Hazelwonder27
as circumscribing a court's power to restrict visitation through an
order of protection until such time as the child or children are directly
harmed. [Cite]. We reject any claim that evidence of abuse of the custodial
spouse is an insufficient basis to support an order prohibiting unauthorized
contact and potential abuse of the children in the custodian's care.
The scope of the Act provides broad categories of abuse and prohibited
conduct sufficient to impose an order of protection. (See 750 ILCS 60/214
(West Supp 1993).) Once one member of a household is abused, the court
has maximum discretionary power to fashion the scope of an order of
protection to include other household members or relatives who may be
at risk of retaliatory acts by the abuser.28
The court in McCoy seems to find that the serious-endangerment
standard does not apply to the restriction of visitation under an order
of protection. This is an invitation for parents to use the DVA to circumvent
When "temporary custody" becomes permanent
Courts are understandably wary of denying an order of protection. No
one wants to put a parent or a child at risk. Yet as more parents become
aware they can gain a substantial advantage in divorce by obtaining an
order of protection, the risk of abuse of the process increases.
Children need stability. If one parent gets exclusive use of the marital
home and temporary custody of the children while the other has restricted
visitation, that latter parent is unlikely to win sole custody of the
children. Children adapt to their environment, and it is harmful to move
The legislation seems to support this idea, requiring that "no motion
to modi fy a custody judgment may be made earlier than 2 years after its
date, unless the court permits it to be made on the basis of affidavits
that there is reason to believe the child's present environment may endanger
seriously his physical, mental, moral or emotional health."29
Courts have to address the difficulty of changing custody after a child
has spent a lengthy stay with a temporary custodian. This issue was addressed
by the third district in Wurm v Howard:30
As already stated, the final decision on custody was a result of concern
for the stability and continuity of the children's lives, and it would
not have served their best interests for the court to have ignored the
fact that they had been residing with their mother and step-father in
Champaign for well over two years. It must be accepted that their residence
in Champaign for that time was the result of the decision on temporary
custody and the delay caused by the appeal. However, all factors which
relate to the best interests of the children should be considered by
the court. Contrary to the dire warnings of consequences if the court's
decision is upheld, we perceive no basis for concluding, on the record
in this case, that our decision will unfairly advantage the parent who
first obtains custody in the determination of the best interests of
In In re Marriage of Hefer,32
the fourth district specifically found that "[a] court may consider
the period of time that a child has spent with a parent by virtue of a
temporary custody order."33
It is clear that it cannot be in a child's best interests to move him
or her from a stable environment. Thus, the longer a parent is able to
retain temporary custody, the greater their opportunity to later obtain
Appellate judges respond
The appellate court is hardly blind to the abuse of orders of protection.
In Radke v Radke, for example, the third district reversed the
trial court that granted a plenary order of protection.34
The court concluded that
[t]he Domestic Violence Act is not the appropriate vehicle for resolving
such issues. We note that the order of protection did not restrict Ross's
visitation or contact with Laine. The court narrowly drafted the order
to prohibit physical abuse, harassment, interference with personal liberty
or intimidation. Nevertheless, based on this record, we believe that
Kathryn misused the Domestic Violence Act for the purpose of attempting
to alter Ross's visitation with Laine. For that reason, and because
we find that no harassment occurred, we reverse the judgment of the
circuit court and vacate the order of protection.35
The court in In re Marriage of Gordon also addressed the problem
of the misuse of the DVA to obtain orders of protection.36
The court wrote as follows:
Robert has not advanced any reason, nor can we find one, to justify
his proceeding under the Domestic Violence Act rather than the Marriage
Act. Whatever the relief he sought - extended visitation, injunction
or custody - he could have received under section 610 of the Marriage
Act. To approve the procedure followed in this case would be an open
invitation to parties disappointed in a custody dispute to file a separate
action under the Domestic Violence Act and call it something other than
a claim for custody.37
The Gordon court went on to say that "[i]n this case...the
Domestic Violence Act was misused and was a subterfuge to circumvent the
requirements of the Marriage Act."38
What can you do to combat OP abuse?
Judges, certainly, have a responsibility to act as gatekeepers by making
sure they do not grant an order of protection except to protect the petitioner
or the children. Lawyers, also, should take their ethical responsibility
as officers of the court seriously and refuse to file an order of protection
for any other reason.
Still, abuse will happen. What can you do as counsel for the respondent?
Be ready to spend time and money. An order of protection is a
high-stakes matter. The OP hearing could produce a result that will irrevocably
affect the divorce and the lives of children. Violating an order of protection
is a crime, and your client can be jailed for doing so. If you need an
expert witness, don't hesitate to hire one.
Often, courts set multiple plenary orders of protection, leaving only
15 or 20 minutes for each case. Don't let your case be rushed. The judge
may get angry, but you owe your client the best representation possible,
even if it crowds the schedule.
Bring a motion to modify or dismiss. If you represent the respondent
in a case where the OP is being used inappropriately, you should bring
a motion to modify the emergency order of protection or a motion to dismiss
the order of protection and apprise the court that the petitioner is trying
to use the DVA to circumvent the IMDMA. You should also file a motion
to consolidate the OP and divorce cases.
Scott Lerner is a 1992 graduate from the University
of Illinois College of Law and is currently an associate at the Lerner Law
1. 750 ILCS 60/205(b)(1).
2. 750 ILCS 60/227.
3. 750 ILCS 60/202(b).
4. 750 ILCS 60/214(b)(2)(A).
5. 750 ILCS 60/214(b)(2)(B).
6. 750 ILCS 60/214(b)(2).
7. 750 ILCS 5/701.
8. 265 Ill App 3d 753, 638 NE2d 1186 (2d D 1994).
9. 750 ILCS 60/214(b)(5).
10. 336 Ill App 3d 368, 374, 783 NE2d 180, 185 (4th D
2003), quoting 750 ILCS 60/214(b)(5).
11. 750 ILCS 60/214-2(B)6.
12. 363 Ill App 3d 691, 843 NE2d 398 (5th D 2006).
13. 750 ILCS 5/602.
14. 750 ILCS 5/602(a)(6) and (7).
15. 750 ILCS 5/602(a)(9)(c).
16. 750 ILCS 60/212(a).
17. SCR 922
18. 750 ILCS 5/506.
19. 750 ILCS 5/604; 750 ILCS 5/604.5
20. 750 ILCS 5/607(a).
21. 251 Ill App 3d 950, 623 NE2d 780 (4th D 1993).
22. Id at 957, 623 NE2d at 784-85, quoting In re Marriage
of Diehl, 221 Ill App 3d 410, 429, 582 NE2d 281, 294 (2d D 1991).
23. 127 Ill App 3d 126, 468 NE2d 482 (4th D 1984).
24. Id at 129, 468 NE2d at 485.
25. 750 ILCS 60/201(a)(iii).
26. 253 Ill App 3d 958, 625 NE2d 883 (4th D 1993).
27. People v Hazelwonder, 138 Ill App 3d 213,
485 NE2d 1211 (4th D 1985).
28. McCoy at 963, 625 NE2d at 886.
29. 750 ILCS 5/610(a).
30. 82 Ill App 3d 116, 402 NE2d 407 (3d D 1980).
31. Id at 122, 402 NE2d at 411-12.
32. 282 Ill App 3d 73, 667 NE2d 1094 (4th D 1996).
33. Id at 78, 667 NE2d at 1098.
34. 349 Ill App 3d 264, 812 NE2d 9 (3d D 2004).
35. Id at 269, 812 NE2d at 13.
36. 233 Ill App 3d 617, 599 NE2d 1151 (1st D 1992).
37. Id at 648, 599 NE2d at 1172.