Lawyer Monthly Magazine - January 2019 Edition

46 SUPER LAWYERS JAN 2019 www. lawyer-monthly .com Court to award “possession and control” of the minor children under an Emergency Order of Protection and to order custody in a Plenary Order of Protection, can have a long-term effect on later actions related to parental allocation between the parties in a dissolution of marriage, legal separation or parentage action. These orders often affect the eventual permanent Orders of Parental Allocation. Persons have abused and used Orders of Protection as a mere tactic to gain possession and control of the minor children at the beginning of a pre-decree dissolution or parentage action or to gain an advantage in a post decree action. The Illinois Courts have made clear that Orders of Protection are not to be used as a vehicle to obtain custody and are not a proper method of changing or determining child custody, now termed, “Parental Allocation” 11 . A person served with a Petition for an Order of Protection should not ignore or take lightly the Petition and the Emergency Order, as there are far reaching effects of an Order of Protection being in place against a person. Once any type of an Order of Protection is entered, whether it be Emergency, Interim or Plenary, the Order is placed in the Law Enforcement Assistance Data Service, known as LEADS, a national data base used to provide information to law enforcement on individual “offenders”. This data is available for any background checks the respondent may be subject to, for employment or other purposes. It can lead to an application for a Firearms Owner’s Identification Card being denied. It can affect the renewal or granting of professional licenses in areas where the respondent would be in charge of persons who would qualify as, “at risk”; time of the incident and try to press criminal charges. An arrest of domestic battery will require the case to be prosecuted by the State, and the State will be obtaining evidence to support the incident of abuse as well. InorderfortheCourttodetermine that the matter is an emergency, it is necessary to proceed within a very short period of time after the alleged incident of abuse occurs. It is recommended that it be pursued no more than a week after the incident, if possible; otherwise there is a risk that that Court will find that the matter is not an emergency and/or that there is no factual basis to believe that imminent harm and/or risk of further harm is warranted. The case can be filed in any county where the petitioner resides, respondent resides, the alleged abuse occurred, or where the petitioner is temporarily located if they left the residence to avoid further abuse and could not obtain safe, accessible, and adequate temporary housing in the county of that residence 7 . The rules of civil procedure are applicable in Order of Protection proceedings 8 . In most cases, prior notice to the abuser is not provided for the emergency hearing and the hearing will be on an ex-parte basis. The rule is that if prior notice will cause a jeopardy of harm or injury to the petitioner or other person sought to be protected, then notice is excused 9 . The petitioning party needs to be present for the emergency hearing and will have to be prepared to testify as to the factual allegations which serve as a basis for the Court to find abuse under the IDVA for the Court to issue the Emergency Order of Protection. The abuser will have to be served with such as, licenses for certain health care providers, licenses to carry a gun and security jobs, law enforcement jobs, certain driver jobs, and other types of employment. Criminal convictions of domestic abuse can also cause significant problems with such licenses and jobs. Defending the Petition is essential to limit the impact it will have on your client’s life if you are representing the Respondent. Unfortunately, there are many situations where a spouse or ex- spouse, or the dad or mom in a paternity case, will provoke an incident and use it to improperly obtain an Order of Protection. When the allegations are trumped up or are not accurate, a contested hearing of the action needs to be pursued by the attorney representing the Respondent. If a divorce or legal separation has not yet been filed, the filing of such an action will allow the attorney to pursue to consolidate the case into the divorce or legal separation action. In the venue of the domestic relations division, there are many more options than in Domestic Violence and criminal Court and they should be pursued. Domestic Violence and criminal Courts are not equipped to deal with parenting and other issues so critical to the life and livelihood of the Respondent and the issue of parental allocation in a divorce or legal separation case. Particularly because the Respondent's parenting issues are often impacted by the Order of Protection, it is necessary that the attorney takes a strong stance at the onset to force a trial or obtain an agreement to terminate, vacate, and / dismiss the Order of Protection. This kind of negotiation can also be in favor of a temporary restraining order which will govern the summons by a sheriff, or in some cases, by a process server if approved by the Court. The Emergency Order may provide for exclusive possession of the household or residence by the petitioning party, if the Court determines that the presumption of hardships favors the granting of exclusive possession and it is necessary to protect the individual and/or children from further abuse. The Court will require the return date for the hearing on the further extension of the Emergency Order of Protection to be within 21 days of the entry of the Emergency Order of Protection. Until the alleged abuser is served with the Order, the Court will have to continue the Emergency Order of Protection for an additional 21 days. Once the alleged abuser is served, that person can request a rehearing as early as within two business days or wait until the case comes up for hearing on a Plenary Order of Protection. The Court can also grant an Interim Order of Protection for 30 days, or it can be granted by agreement of the parties once the alleged abuser has been served and appears but is either not ready to participate in a Plenary hearing or for some other reason is not able to proceed to a Plenary hearing. A Plenary hearing is a full, evidentiary hearing requiring due process to the accused. At the end of a full evidentiary hearing, if the Court finds by a preponderance of the evidence that the abuse occurred, the Court may enter a Plenary Order of Protection for a period of up to two years against the accused 10 . Orders of Protection, whether emergency, interim, or plenary, are not supposed to be used as a vehicle to obtain or modify child custody. Unfortunately, the authority and ability of the