Sometimes, divorces go badly. It is sadly not unheard of for a person to become violent or dangerous toward his or her ex-spouse, harassing or threatening to a point where an order of protection—sometimes called a restraining order—becomes necessary. If you are pushed to the point where you have had to obtain one, or if you have been served with one, it is necessary to understand how they may affect your co-parenting arrangement.
Anatomy of an Order of Protection
Orders of protection are issued by judges when necessary after a victim files a petition with the Clerk of the Circuit Court in the appropriate county—usually where the victim or the alleged abuser lives. In the petition, the victim must explain why he or she feels a restraining order is necessary and go into detail about the abuse or harassment he or she has suffered. The decision of whether or not to grant the order will be up to the judge, but if one is granted, it will probably be an emergency order of protection—at least in the beginning.
Emergency orders of protection are usually granted without advance notice to the alleged abuser and may last for up to 21 days. They are granted in situations where continued abuse is considered probable, as most judges weigh the possible inconvenience of a temporary order of protection granted wrongly against the very real possibility that abuse would escalate in that time span. Judges tend to err on the side of caution. Emergency orders may contain many of the same limitations and restrictions as a standard plenary order of protection, but they only last for a short time.
Plenary orders of protection are the longer ones—valid for up to two years—and are issued after a hearing in front of a judge. They can do a variety of things such as prohibit contact with the former spouse or children, enforce a boundary limit on how close you can get to their home or school. If the full hearing for a plenary order of protection cannot be held before the emergency order expires, an interim order of protection may be granted. The alleged abuser is given the opportunity to state his or her case, however, before an interim order will be issued.
The parties in a new divorce case have an obligation to disclose any incidents of abuse at the outset. However, if your divorce has already been concluded, you are not out of luck. You can reopen the proceedings for the allocation for parental responsibilities by filing a motion to show there is a valid reason for doing so.
In any case that involves allegations of abuse, a judge operates under a presumption that it would not be in the child’s best interest to place a child in a situation where he or she is unsupervised with an abusive parent. If there is sufficient reason for the judge to believe that allegations of abuse are true, the abusive parent’s parenting time will be severely limited and may require supervision.
Keep in mind that an order of protection may be used as evidence toward a parental proclivity for abuse. This can be true even if the restraining order granted does not reference the couple’s children. Illinois case law has several examples of restraining orders being granted against husbands, who then later were denied custody of their children because of alleged histories of abuse.
Protect Your Rights
If you have been served with an order of protection, you need to know your options. If you need to request one, it can be difficult to do alone. Either way, the help of an experienced legal professional can make all the difference. The knowledgeable St. Charles family law attorneys at Bochte, Kuzniar & Navigato, P.C. can help ensure you have the best plan possible to obtain your desired result. Contact us today for a free consultation.