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If you or your child has been the victim of violence from a family member, you may be considering getting a restraining order to help protect yourself and other family members at risk of being victims of violence. Indeed, it is important to have a basic understanding of domestic violence and restraining order laws in Illinois.
What is a Restraining Order?
A restraining order, formally called an “Order of Protection,” prohibits a person from engaging in abusive or harassing behavior. Orders of protection are issued after there has been evidence of domestic violence. In Illinois, domestic violence is defined as abuse by one family or household member against another family or household member. “Family or household member” includes a spouse or ex-spouse, children, stepchildren, people who share a child, parents, people who are dating each other or used to date, and people who live together or used to live together. Domestic violence also includes a person with disabilities and his or her caretaker.
The news came out of Chicago recently that the court has denied Amanda and Leo Ware custody of their three children. Amanda, known at the time as Amanda Hamm, had spent five years in prison for child endangerment after she watched the father of her three children drown the six-year-old, three-year-old, and 23-month-old. News reports say that he allegedly wanted to kill the children because they interfered with the couple’s lifestyle of drugs and sex.
After serving her sentence, Amanda Ware married Leo Ware and had three children together. They had custody of the children until state authorities became aware that Amanda was the person involved in the previous drowning case. The couple was brought to the attention of the Illinois Department of Child and Family Services when a doctor recognized Amanda while she was delivering her most recent child. DCFS then took the three children into state custody.
Earlier this month Cook County Circuit Judge Demetrios Kottaras ruled against the Wares in their application for custody. The judge found that the couple was still unable to care for their children, but could continue supervised visitation with a permanency planning hearing scheduled every six months. In the meantime, the children will remain in foster care.
It is every parent’s worst nightmare: a knock on the door and an investigation by the Department of Child and Family Services (DCFS) accusing you of child abuse. Even parents that have nothing to hide and have not mistreated their children at all still fear that a wrongful allegation will have ongoing consequences. Hopefully, at the end of the day, the truth will win, but it is important to have some idea of the process to know what you are up against.
Someone Calls DCFS
The Illinois Department of Child and Family Services is the agency that is responsible for investigating claims of child abuse and neglect. DCFS has a hotline that anyone can call to report suspected abuse or neglect of children. There are also people called “mandated reporters”, such as doctors and teachers, that are required by law to inform DCFS if they have any suspicion of child abuse.
Once someone calls DCFS about you or your family, this may be enough to start an investigation. The person who answers the phone call will decide whether there is enough evidence to begin an investigation.
While children are not often named parties in family law litigation, they are frequently greatly affected by the outcome of family court matters such as parenting time and visitation.
Illinois family law has three different ways that the interests of children can be represented. The three types of attorneys are: attorney for the child, child representative, and guardian ad litem. While each may sound similar, there are important differences between these roles and the nuances should be understood.
Attorney for the Child
An attorney for the child is one kind of child representation lawyer. An attorney for the child advocates for the wishes of the child. Unlike the kinds of child representation lawyers listed below, an attorney for the child is not supposed to put his or her own thoughts or feelings into his or her representation and is only to represent a child’s wishes. This is closest to the type of relationship that an adult would have with his or her attorney.
NOTE: As of July 2017, the law governing child support in Illinois has changed. Please see our Child Support page for more information.
State Senator Michael Hastings (D-Tinley Park) sponsored legislation that would change the way child support is calculated. According to the Chicago Tribune, Senator Hastings said, "Illinois has a lot of archaic laws. The child support laws on the books do not consider the modern family when determining the necessary child support for many families." HB 3982 would change the child support laws from taking into account just one parent’s income, to using both parents’ incomes to determine the amount of child support that should be paid. Most states do take into account the income of both parents.
Current Child Support Laws
Couples sign prenuptial agreements before marriage so they are able to determine, in advance, how assets will be divided if there is a divorce. The Illinois Uniform Premarital Agreement Act governs prenuptial agreements. Couples enter into prenuptial agreements assuming that the court will enforce them if there is a divorce. However, there are situations that make a prenuptial agreement, or some of the provisions in a prenup, invalid.
When preparing and signing a prenuptial agreement, it is important to have a knowledgeable prenuptial agreement attorney to ensure that you do not accidentally have your agreement invalidated in whole or in part.
Duress
For a prenuptial agreement to be valid, both parties must sign the agreement willingly. There cannot be coercion or duress on either party to sign the agreement. One spouse saying that he or she will not get married without a signed prenuptial agreement is not necessarily enough to be duress in itself. However, the court will look at the amount of time before the wedding that the prenuptial agreement was signed. If an agreement was signed immediately before the wedding, then there may be a case for duress. Duress is generally when one person does not feel like he or she has any other options but to sign the agreement.
On January 1, 2016, Illinois family law went through a major overhaul, and changes to the Illinois Marriage and Dissolution of Marriage Act went into effect. One major change was the way child custody was divided. Prior to the change, there was child custody and visitation; however, now the law discusses parental responsibility and parenting time.
What is Parental Responsibility?
In the past, custody was divided into two concepts: physical custody and legal custody. Physical custody referred to with whom the child lived. Legal custody referred to the individual who made the important decisions for the child. Examples of decisions included extracurricular activities, health decisions, and religious observance. Now, the term parental responsibility is used and is similar to legal custody—it defines who gets to make the decisions for the child.
Lawmakers in Illinois ended the session without passing a budget. Therefore, without a budget, several programs in Illinois are running a shortfall or are at risk of closing. The Child Support Services Program, a program which helps many people, especially low income families, get the child support to which they are entitled, is being adversely affected by the stalemate.
Budget Issues
As of the evening of May 31, it appears that Illinois will go a second year in a row without passing a budget. ABC 7 Chicago reports that an agreement for an actual budget is unlikely to happen by the deadline between the Democrats and the Republicans in the government. The deadlock has resulted in Illinois working without a budget for the last 11 months. In the meantime, stopgap measures will likely be voted into place to make sure the government keeps going. However, the lack of an official budget is wreaking havoc on government programs, including the Child Support Services Program.
In order for a father to retain the legal rights and responsibilities of parenthood, paternity needs to be established. In the absence of an adoption or other extenuating circumstances, if the mother of the child is married to a man at the time that she got pregnant and/or the time that she gives birth to the child, then her husband is the presumptive father. In all other cases, paternity needs to be established.
Alleged Father
When a woman gives birth and she is not married now and was not married when the child was conceived, she will name a person as the “alleged father.” The alleged father is not considered the legal father until other conditions are met. If the alleged father agrees that he is the father and he is around and available, then both parties will complete a Voluntary Acknowledgement of Paternity form. This form needs to be signed by both parties in front of a witness. This is generally the easiest way for paternity to be established, but it requires both parties’ consent.
The Chicago Tribune recently reported that a woman from Lake Geneva, Wisconsin was arrested and charged with several felonies and misdemeanors for taking her three children out of state.
The woman, recently divorced, had parental responsibilities of the children, though her ex-husband was granted visitation. She and her three children, ages 14, 12 and 10, were discovered in Georgia when another Lake Geneva resident, who was also vacationing in George, noticed the family and called the police.
Police and other authorities had been looking for the woman and her children after they were declared missing several days prior.
The woman was charged with three counts of felony for interfering with child custody, three misdemeanor counts of contributing to truancy, and another misdemeanor count of disorderly conduct. Georgia is likely to extradite the woman back to Wisconsin where she will face the charges.
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