Understand Your Rights. Solve Your Legal Problems
A missing child is every parent's nightmare, and you can never be too careful about a minor's safety. But while parents and guardians do their best to prevent child kidnappings and abductions, it is estimated that over one million such cases happen worldwide annually, according to The International Centre for Missing and Exploited Children's Global Missing Child Network (GMCN).
Some individuals commit international parental child kidnapping to make it harder for the other parent to locate their children. International parental child abduction refers to transferring or retaining a minor committed illegally by a parent. This means the offending parent failed to secure the other parent's consent, which is a breach of the custody rights of the latter.
When this happens, it's best to act swiftly and inform authorities to find the child as soon as possible. More importantly, it's in a parent's best interest to hire a legal expert with experience in cross-county child abduction cases to deal with the situation.
Because of this, it’s best to arm yourself with basic information about this type of abduction. Read below to find valuable information on international parental child kidnapping.
Besides illegally transferring a child to a country, parental child kidnapping involves an underlying intention of establishing the destination country as the new residence for the kidnapped child.
The good news for left-behind parents is that they can rely on global regulatory safeguards to request access or bring their child back. For instance, a minor born and raised in the US and taken by a parent to Spain may hire lawyers who handle child kidnapping cases domestically and internationally. These legal counsels are experts at using local and international legal instruments and remedies to resolve cases swiftly.
Child kidnapping and abduction is a significant global issue that takes the heaviest toll on minors. For instance, Spain has 20,000 cases of missing children annually, per the International Centre for Missing and Exploited Children (ICMEC). Russia recorded 50,000 missing children in 2019, while Germany recorded 83,900 in 2021.
Similarly, about 2,300 children go missing in the United States daily for various reasons. Children may disappear due to parental and stranger abduction, conflicts, and getting lost, injured, or stranded, according to the National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART).
An international treaty known as the Hague Convention on the Civil Aspects of International Child Abduction, or the Hague Convention of 1980, is the primary legal instrument that handles international cases of parental child abduction.
Parents embroiled in such incidents can request the return of their children, 16 or below, granting that the minor was brought to a ratifying country. According to the Netherlands-based organization International Child Abduction Center (Center IKO), 93 countries have accepted the law.
As with other laws, the Hague Convention is only enforceable in nations that signed and recognized the treaty. A minor removed from a host country and retained in a new country illegally will be returned promptly to the former. However, it's important to note that the Convention does not decide on custodial issues. It merely determines where the custody case should be settled or identify the Court that has jurisdiction over the matter.
In European Union member-states, the Hague Convention of 1980 is supported by the Brussels II Bis Regulation, which supplements the elements not tackled by the treaty. It takes a step further by helping couples settle custody disputes involving more than one nation.
The Hague Convention of 1980 is far from perfect. As with different laws and international treaties, it does have limitations, as mentioned. Fortunately, there are other legal remedies available in pursuing such cases.
So, what happens if the child is taken to a country that hasn't recognized the treaty yet? It will be up to the expert counsel to find other legal remedies and instruments applicable to your situation.
For instance, your lawyer may use other relevant statutes like bilateral legal agreements signed between your country and the country where the minor currently resides. In other circumstances, international litigation may be instigated, or states and international non-profit groups may assist you with mediation or out-of-court settlement.
Parental kidnapping is challenging for parents to face domestically, but the involvement of two sovereign nations makes it even more daunting, as the situation has become an international concern. A child transported to another country becomes covered by the domestic family laws that apply to the said nation. Thus, a parent left in the originating country must also hire a lawyer specializing in international family laws and with experience in such matters.
Most cases of international parental kidnapping in the United States are common among married or unmarried couples in domestic disputes. They can also happen before, during, or after a divorce and when custodial rights are being questioned.
Most countries allow both parents to exercise parental authority over their minor children even after a divorce. But because family laws vary from country to country and state to state, these custodial rights may be impacted when domestic violence is involved.
Whether or not you wish to pursue a case, hiring a legal expert in international parental child kidnapping situations is crucial. Armed with their experience and knowledge in applicable international treaties, these attorneys will analyze all the case elements to provide valuable advice.
Moreover, parents undergoing tumultuous divorce proceedings and marital problems must consider which legal instruments can protect their children and uphold their custodial rights in international parental child kidnapping matters.
4 Effective Solutions to Domestic Violence
Unfortunately, this violence can go unchecked or unseen due to its prevalence in our society. Victims face a toxic combination of fear, confusion, embarrassment, and more when dealing with this abuse cycle.
Everyone needs to understand how domestic violence manifests and how we can take action to stop it in its tracks, and there are many ways you can fight back through prevention strategies and support services. Through collective efforts towards education, awareness-raising, policy reform, advocacy work, and direct services such as counseling, we have the power to help those affected by violence break the silence on the vicious cycle of abuse.
In this post, we will discuss effective solutions focusing on preventing domestic violence before it starts so that together we can create a safe environment for all.
If you are experiencing domestic violence, you should seek crisis intervention and support services. These services provide immediate assistance to those in need, such as emergency shelter, legal advocacy, counseling, and more. Not everyone feels comfortable going to the police when dealing with an abusive situation, so these services can offer victims a safe place to find support and help.
Hotlines and shelters are important sources of help for those affected by domestic violence. Hotlines can give victims access to legal advice, mental health services, and other resources they may need to stay safe and escape the abusive situation.
In some cases, the only way to stop an abuser from continuing the cycle of violence is through legal action. Depending on the situation and your state’s laws, you may be able to seek out a restraining order or file for divorce. If your case is being prosecuted, many resources are available to help victims stay safe throughout the process.
You can also consider filing a civil suit against an abuser, which can help you recover any losses you may have suffered due to the abuse. A domestic violence lawyer can ensure your rights are respected and help you get the justice you deserve. You may also be eligible for compensation if you win the case.
The best way to fight against domestic violence is to spread awareness and educate our communities on what it looks like, how to recognize it, and how to respond. By teaching people in our schools, workplaces, faith centers, and other organizations about domestic violence- we can empower them to take a stand against it and support victims of abuse.
In addition, we need to create an environment in which survivors feel safe to come forward about their experiences so that we can better understand the dynamics of domestic violence and adequately address it.
Domestic violence prevention programs focus on preventing the development of domestic violence in communities. These programs are designed to target those at risk for abuse, such as children and teens in high-risk populations, and provide them with the tools they need to recognize potential abusers and identify healthy relationships.
Additionally, these programs can help those affected by domestic violence to heal and develop the skills necessary to prevent future abuse. Investing in domestic violence prevention programs can help create a culture of safety and respect needed to end the cycle of violence.
Domestic violence is a serious issue that affects millions of people every year. We must all unite to fight against it and ensure victims get the support they need. By understanding and investing in the solutions mentioned above, we can create a world where everyone feels safe.
In early 2016, actor Johnny Depp and actress Amber Heard filed for divorce after 15 months of marriage. The case has since made headlines as the two have been battling it out in court.
While all the gossip may entertain the public, there are some essential things to learn from this messy situation. Here are some key takeaways from the Depp vs. Heard court case.
A high-profile domestic violence case is one in which the victim and perpetrator are famous or well-known public figures. The Depp vs. Heard case is one example of a high-profile domestic violence case. In this case, allegedly in 2016, the victim was actress Amber Heard, and the perpetrator was actor Johnny Depp.
The case received significant public attention because both parties were celebrities. The lawsuit also generated a lot of discussion about the prevalence of domestic violence in relationships and the challenges involved in prosecuting such cases. As a result, the issue raised awareness that domestic violence can happen to anyone, regardless of social status or wealth.
The case resulted in a restraining order against Depp, who was ordered to pay $7 million to Heard. Did Depp pay the amount?
Interestingly, the answer is not clear. According to Heard's lawyers, Depp paid the whole amount shortly after the divorce was finalized. However, Depp's lawyers have said that he only paid $6 million, with the remaining $1 million in escrow pending the outcome of a defamation case that Heard filed against him (which she later dropped). So who is telling the truth?
It is impossible to know for sure. What we do know is that the $7 million payment was never made public, so it is likely that Depp did not pay the total amount. It is another aspect of the Hollywood stars' messy and contentious divorce.
The Depp-Heard case was a high-profile domestic violence case that captured international attention. Amber Heard accused her then-husband, actor Johnny Depp, of abusing her during their marriage. Depp denied the allegations, but a judge ultimately found that Heard was a victim of domestic violence and granted her a restraining order.
The case sparked a global conversation about domestic violence and its prevalence in society. It also highlighted the importance of breaking the silence around the issue. Victims of domestic violence have been afraid to speak out for too long, fearing that they will not be heard correctly or face retaliation from their abusers.
Did you know that domestic violence ranks as the most common form of abuse in women? According to World Health Organization (WHO), about 1 in 3 (30%) of women worldwide have experienced some type of physical or intimate abuse from their partner or non-partner in their lifetime.
While women are not the only victims of domestic abuse (children are typical sufferers, too), the Depp-Heard case showed that society is finally starting to listen to their stories and take their experiences seriously. It is a big step up in the fight against domestic violence.
Despite Heard's testimony and extensive documentation of the abuse, the judge in the case denied her request for a permanent restraining order. The Depp-Heard case highlights the many ways the legal system fails to protect victims of domestic violence.
For example, abusers can often use their financial resources to hire expensive lawyers who can delay or drag out proceedings. Victim blaming is still prevalent in many legal systems, making it difficult for victims to get a fair hearing.
The Depp Heard case serves as a reminder that there is still much work to be done to ensure that the legal system effectively protects victims of domestic violence.
After the dust has settled on the Depp-Heard case, there has been a renewed focus on domestic violence and the support available for victims. Unfortunately, many victims of domestic violence still face significant barriers to seeking help. It is partly because abuse often occurs behind closed doors, making it difficult for outsiders to intervene. Also, victims may be reluctant to come forward due to fears of retribution or being unsure whether someone will believe them.
Nevertheless, the Depp-Heard case has demonstrated that victims can speak out and receive society's support. Moving forward, we should work to break down the barriers that prevent victims from stepping forward and getting the help they need.
The Depp-Heard case is a prime example of how domestic violence can happen to anyone, regardless of social status or wealth. The Hollywood couple shared what many would consider a perfect life—they were both successful, attractive, and seemingly happy. However, behind closed doors, Johnny Depp was allegedly abusive toward his wife, Amber Heard.
The case ultimately resulted in a divorce, and it brought the issue of domestic violence into the public eye. It showed that domestic violence doesn't discriminate—it can happen to anyone, regardless of their circumstances.
If you are facing domestic violence, please know that you are not alone and help is available. You deserve a fearless and violence-free life.
Domestic violence can occur to people of all ages, races, and socioeconomic backgrounds. It can take many forms, including physical, emotional, sexual, financial, and verbal abuse. Domestic violence is often shrouded in silence, making it challenging to identify and address.
But it is important to remember that domestic violence is never the victim's fault. If you or someone is experiencing domestic violence, many resources are available. With the proper support, it is possible to break the cycle of violence and build a safe and healthy future.
Domestic violence can have a profound impact on its victims. If you are a victim of domestic violence, remember that it’s not a death sentence. There are various things you can work on to help you break the cycle of abuse and rebuild your life:
If you are in immediate danger, get to a safe place away from your abuser. It may mean leaving your home and staying with a friend or family member or going to a domestic violence shelter.
Should you find yourself defenseless, call the cops right away. The police can help assess the situation and provide you with protection if necessary.
If you have been harmed, seek medical help right away. Even if you do not have visible injuries, it is vital to get checked out by a doctor, as internal injuries may not be immediately apparent.
Domestic violence can take a toll on your mental and emotional health. Seeking counseling can help you to deal with the trauma of domestic violence and can help you to develop healthy coping mechanisms.
If you fear your abuser, you may consider getting a restraining order. A restraining order is a judge-issued court order that requires your abuser to stay away from you and refrain from contacting you.
Victims should never hesitate to reach out for help. Many people care and want to see others safe and sound.
Domestic violence is when one partner tries to control or dominate the other through fear and intimidation. It can be physical, emotional, financial, sexual, or psychological abuse. If you find yourself experiencing these abuses, it is important to get help.
Some common signs may indicate you are a victim of domestic violence, including:
Many resources ready to assist are available for victims of domestic abuse, so you don't have to suffer in silence. Need help getting a restraining order or planning to sue your perpetrator? Without question, Lawyer Monthly can help you. Contact us today and start saving yourself from a life of turmoil and mystery.
While violence can adversely affect the victims’ physical, psychological, spiritual, and reproductive health, a large chunk of the ordeal is preventable and survivable. No hope is lost after you’ve pulled through an abusive relationship. You can always start anew; repair your life and old relationships via counseling. Two key words: Rebuild yourself.
Part of your rehabilitation is regaining financial confidence. You may feel stagnant initially, but many recovered victims reclaim their lives, properties, relationships, and career after the hard blow. Building a business is a great way to keep busy while earning your way back to financial independence.
If you are a recovered victim of violence trying to start life from scratch and need business-building advice, reach out to doola today and kickstart your new journey! Doola makes starting your business as easy as 1-2-3 by providing all the services you need and getting everything done so you can focus on running your business and its day-to-day operations.
Over the course of her storied career, Avigal has been a legal consultant, a general counsel, a crisis centre response coordinator, and more besides. She shares the story of her professional development with us in this feature, along with her plans for the final stage of her work as a lawyer.
Graduating from law school in the mid-90s, I thought I had it all figured out. I wanted to be a prosecutor specialising in cases of domestic violence. I had interned for Casey Gwynn, a lead city attorney in San Diego at the time, who was brilliant and passionate and in whose footsteps I wanted to follow.
So much for dreaming!
Instead, I took what I could get – which was the first plaintiff firm that would hire me and help me pay back my student loans. I was seeing many kinds of cases in general civil litigation and family law, but it just was not doing it for me. I was newly engaged to my best friend and fellow law school classmate who was living and working in LA, which led me to my second job with an insurance defence firm in LA. I loved the fast pace of litigation, the depositions and arbitrations and court appearances, until I started a family.
The second chapter began with working a slightly modified schedule as a general counsel, focusing on employment practices, human resources and risk management. I learned that I loved operations and implementation of proactive policies to limit back-end liability exposure. During my tenure as general counsel, I enhanced corporate policies and procedures for national and international operations as well as the oversight and administration of all aspects of human resources and risk management compliance.
I took what I could get – which was the first plaintiff firm that would hire me and help me pay back my student loans.
Additionally, I was involved in business and employee development, corporate governance and licensing for Inter-Con’s corporate headquarters as well as operations in over a dozen countries on four different continents. Although I loved this job and was exposed to the most interesting issues with the highest learning curve, it was simply geographically undesirable. In a city where it can take over an hour to travel 12 miles, 30 miles could take an eternity. Having three daughters under the age of three, I just could not be in all places and give enough to all aspects of my life.
Chapter Three took a little time to figure out. Over many brainstorming sessions with my husband, we tried to capture how to utilise the skills I had garnered thus far through litigation and my experience in business, particularly regarding exposure to operations and oversight of employment practices, human resources and risk management. I found a huge gap in small to mid-sized businesses that did not have full-time human resource departments or access to legal oversight.
As such, I formed AH Consulting Group and became an outsourced human resource and legal department for small to mid-sized local businesses. It was more transactional in nature, which meant that I could do my work from anywhere and at any time. The only start-up cost I incurred was a highly functional laptop, business cards and professional liability insurance. While I was successfully developing customised policies and procedures and employee handbooks unique to the businesses I was representing, I also facilitated recruiting and safely separating employees. Additionally, I began performing investigations related to claims in the workplace for any genre of harassment.
Having three daughters under the age of three, I just could not be in all places and give enough to all aspects of my life.
After one particularly nasty and intense sexual harassment investigation, my client, a city, asked for me to consult almost full-time to assess employment practices across their entire organisation. Basically, I was on site, auditing all aspects of their employment practices and making suggestions and recommendations for implementation. Eventually, that same client hired me full-time as a city attorney to implement my recommendations and to oversee the human resources department and their risk manager. This city had few residents and was run more like a business, which also gave me additional insights into business practices and operations.
After working at the city and having worked in litigation, a for-profit business, it was now time for me to explore the business of non-profit organisations and return to my initial passion and concern for victims of domestic violence. Hence began Chapter Four.
Having graduated with massive amounts of debt from my undergraduate university and law school education which took 17 years to pay off, I was ready to give back to my community full-time. I had spent a significant amount of time on the board of a domestic violence shelter and had been involved in many philanthropic activities with my children over the years, but I wanted to understand the actual business side of the non-profit world.
In 2013, I began working as the outreach and education provider for 1736 Family Crisis Center (1736) and coordinated all community response and relations on behalf of the agency. In that role, I prepared and presented educational presentations on issues of domestic violence, youth homelessness and human trafficking to wide-ranging audiences, including health and human service providers, service clubs and government officials. Through these efforts, I helped raise public awareness of these critical issues, advocated for stronger community collaboration and provided linkages to 1736’s various programs and resources for homeless and at-risk youth, homeless veterans, victims of domestic violence, victims of labour and sex trafficking, and low-income families.
Over many brainstorming sessions with my husband, we tried to capture how to utilise the skills I had garnered thus far through litigation and my experience in business.
During my time at 1736 I had the opportunity to help create a federally funded street outreach program that focused on homeless youths between the ages of 16 and 26. It was so inspiring and impactful that it only confirmed my desire to start a foundation of my own. I left 1736 in December 2019, just before the pandemic hit.
Chapter 5 is where I am currently. During the first two years of the pandemic, and while I was slowly building out the concepts for my foundation, I agreed to work part-time as a fractional general counsel for Technology Management Concepts, a sales and consulting firm based in El Segundo, California. I had maintained my relationship with them as an employment practices consultant since 2008. Additionally, I continued to handle the employment practices at Donahue & Horrow LLC, a firm handling bad faith insurance and medical malpractice that is also located in El Segundo, California.
What I was not expecting was for my involvement to grow in both businesses as much as it did. The rules regarding employment practices in light of the pandemic were changing daily. Having always had a passion for operations, I became an integral part of TMC and began to oversee the outside marketing firm for D&H in addition to the employment practices that had always been my specialty.
At TMC, the business avenue for selling and implementing Microsoft business solutions that enhanced the ability for virtual communications was doubling in customers and consequently in employees. I was reviewing and negotiating contracts daily as well as on-boarding and integrating new employees into a virtual world at record speed. Furthermore, in light of their success, their CEO was smart enough to realize that although success was natural due to external circumstances, it was time to implement strategic management practices to intentionally create the continued success they were having. As such, I was fortunate enough to become part of their executive team to aid in learning and planning for their continued success.
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At D&H, I worked on a weekly basis with one of their three partners, their office manager and an outside marketing firm to learn and create methods for letting the world know about their extraordinary litigation skills and successes, even during the pandemic – demonstrating how they could be virtual and still give great care to each and every client on every level. I learned how to promote and maintain the firm’s integrity, morality and humility while sharing client testimonials that could speak for themselves.
The final chapter begins now that there have been great achievements and developments in how to protect our first responders and patients from COVID-19, it is time for me to return to my mission of pursuing my final chapter: launching my legacy of a giving circle in the South Bay of Los Angeles. This circle will be formed with and by a group of people who value civic engagement and education regarding the issues that face our less fortunate communities on a daily basis – and for whom things got exponentially worse during and in the aftermath of the pandemic. The goal of the giving circle will be to educate each other about the issues facing less fortunate communities in the South Bay of Los Angeles, to inspire philanthropy and to create an impact by pooling funds and making annual grants that will change those communities one life at a time.
I am hoping to launch the giving circle in September or October 2022. Mindy Friedman, the founder of the SAM Initiative, an amazingly successful giving circle formed 10 years ago on the west side of Los Angeles, has been a huge source of inspiration and a mentor in this process.
I am so grateful and excited for this last chapter – to take everything I have learned during this journey, together with the help of my family, closest friends and my community, to make a lasting difference, which will be the epilogue of my story.
Avigal Horrow, Founder
Tel: +1 310-999-4009
E: avigal@ahconsultinggroup.com
Avigal Horrow has worked in various capacities as a licensed attorney for over thirty years. She first worked as a litigation associate for Fonda, Garrard, Hilberman & Davis and then Prestholt, Kleeger et al, specializing in public entity and insurance defense litigation. Avigal has gone on to serve as general counsel for Inter-Con Security Systems, thereby gaining further experience in litigation, arbitration and mediation. She has also enhanced corporate policies and procedures for national and international operations, as well as the oversight and administration of all aspects of human resources and risk management compliance. Avigal also performs non-legal work in furtherance of her commitment to social justice and human rights.
AH Consulting Group is owned and operated by Avigal Horrow and has been assisting businesses with employment practices, contracts, risk management and human resources from both a legal and business operation perspective for thirteen years. Clients have been from both the private and public sectors as well as non-profit organisations and have included litigation as well as transactional work.
In this feature we hear from Elizabeth Voorhees, a family law attorney and a specialist in domestic violence issues, on the challenges that violent abuse creates during divorce proceedings and how legal counsel can best equip victims to handle them.
In 1993, California passed its own version of the Domestic Violence Prevention Act, following in the footsteps of the federal Violence Against Women Act amendments to the Family Violence Prevention and Services Act, which was initially enacted as Title II of the Child Abuse Amendments of 1984. FVPSA and VAWA give funds to shelters across the United States that meet certain criteria and engage in educational and awareness programs across the country, primarily addressing issues of domestic violence, dating violence and, more recently, stalking.
In 2021, the California legislature passed SB1141 into law, adding crucial new language to the definition of “coercive control” in intimate partner and other familial relationships. Examples of coercive control include things like controlling the partner’s movements, monitoring mileage on the odometer of the partner’s car, tracking the partner via cell phone to “punish” them for straying out of bounds and isolating the partner from friends and family in an attempt to seize control over all their social interactions.
There are several California Family Code sections that pertain specifically to different outcomes in awards of child custody and spousal support. For example, in Cal. Fam. Code §4320, there are 23 different factors the Court must consider when deciding whether and how much to award spousal support to a lower-earning spouse. One of those factors specifically addresses any domestic violence history in the marriage. Cal. Fam. Code §4325 (a) provides that if the lower-earning spouse has a criminal conviction for domestic violence within five years prior to the filing of the divorce proceeding, or at any time after that, a rebuttable presumption kicks in, affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse which would be otherwise available to him/her should not be made. This protects spouses who are abused from having to pay monthly spousal support to their abusers.
The code section related to the DVPA which has the most immediate effect on custody disputes is Cal. Fam. Code §3044. This code section creates a rebuttable presumption that the abusive parent is not fit to share joint legal or joint physical custody with the victim spouse or partner.
There are several California Family Code sections that pertain specifically to different outcomes in awards of child custody and spousal support.
This presumption can be overcome by the abusive spouse showing that they have done one of the following: demonstrated that it is in the best interests of the child/ren for them to have custody; successfully completed a batterer’s intervention program (typically a 52-week course); successfully completed an appropriate parenting class; if the abuser is on probation or parole, whether they have successfully completed the terms of that probation or parole; where there is a restraining order of any kind, whether the parent has complied with the terms and conditions of that order; and whether that abuser has committed any further acts of abuse.
California law has a very strong presumption in favour of children having “frequent and continuing contact” with both parents (Cal. Fam. Code §3020.). Therefore, the aim of the §3044 presumption is to hold the abusive parent accountable and to encourage them to get help to add different and more constructive tools to their parenting toolbox before moving them to a more equal timeshare with the children.
In terms of a spouse protecting themselves during a divorce, I only recommend seeking a restraining order under the DVPA if there has been a pattern of coercive control or violence. Seeking a restraining order against their partner often keeps spouses intertwined with their abuser in terms of repeated court hearings, etc. I always advise my clients to first make a safety plan, which includes packing essential items like passports, birth certificates and changes of clothing for themselves and the children into a “go-bag” and hiding that bag with a friend or relative. I encourage them to plan to be away from home for two to three weeks and to block their social media accounts. If the violence is particularly frightening to them or to the children, I tell them to leave their cell phone in the house and pick up a burner phone so that they cannot be tracked.
My county has very good domestic violence shelters for women and children, but these shelters do not house men who are abused and typically do not allow boys over the age of 13 to stay there, so I do not always send my clients to shelters. As far as I know, there are no shelters for men who are victims of domestic violence in the Bay Area at this time. I advise my male clients in the same way in terms of safety planning and hiding for a time until we can file the restraining order, if needed, and get their partner served with process.
As far as I know, there are no shelters for men who are victims of domestic violence in the Bay Area at this time.
I always advise a clean break with the abuser, but that is something that is particularly challenging for people to do. It takes domestic violence victims an average of seven tries to successfully leave their abuser, and if you really think about it, that makes some sense. This is a person you have been completely open and vulnerable with; a person you love. When that person tells you that s/he is sorry and will do better (“It will never happen again”), there is a strong pull to believe them. I tell my clients: “You can always re-marry this person, but right now, it is time to act decisively and deliver the message that it is not okay for them to treat you abusively by setting firm boundaries and following through with the divorce.”
There are several reasons why it is important for people to divulge their marital dynamics to their divorce lawyer. We cannot help clients if we only have half the story. Often, coercive control plays a major role in the inter-personal dynamics of the marriage, and the spouse on the receiving end of that control is unaware that they are even in an abusive relationship.
Whether there has been domestic violence in the relationship should be on every family law attorney’s intake form, but not just the blatant question. Attorneys should ask things like: who controls the money in the relationship? How often do you (the client) see your family and friends? Are you given an “allowance” to spend by your partner? Who makes the rules for the household? Who disciplines the children? These questions get to the heart of controlling behaviours that the client may not even understand are problematic and enable the attorney to plan the case with a keener awareness of the marital dynamics.
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Domestic violence throughout the marriage can affect support and custody in myriad ways. We owe it to our clients to provide them with the most effective advocacy we can muster and we cannot fully prosecute their case without all the facts.
Elizabeth Voorhees, Senior Attorney
6840 Via Del Oro Suite 265, San Jose, CA 95119
Tel: +1 408-212-7915
E: elizabeth@seabrooklawoffices.com
About Elizabeth Voorhees
“My name is Elizabeth Voorhees, and I have been a licenced attorney in California since November of 2004. Prior to that time, I served as a state-certified Domestic Violence Advocate for seven years with various non-profit organisations in Santa Cruz County. My firm is Seabrook Law Offices, Inc. We are a relatively new family law firm serving Silicon Valley, Santa Cruz County and other communities in the Bay Area. Our firm employs four attorneys and the best support staff in the Bay Area!”
How does mental health impact family law cases?
Mental health concerns may be particularly impactful in family law because this is the area of law that guides married couples through their divorce and unmarried parents through child custody and child support battles when they separate. Ending a marriage or a relationship may cause any person, even if they do not suffer from a diagnosed mental disorder, to become distressed, depressed, or abnormally anxious for a significant period of time. If you add this stressor onto someone’s plate when they already suffer from a mental illness, they may react in a range of ways, some of which will negatively impact their case either temporarily or permanently. For instance, a clinically depressed party, without proper treatment, may start to self-medicate with drugs or alcohol, causing the other parent to point out their sudden shift in behaviour, using their consumption as justification to limit that parent’s time with his or her children. This result may further exacerbate and prolong a problem that was situational and temporary. In family law cases, it is commonplace for people to be at their lowest just as the stakes are highest.
Have you seen a shift in how family law attorneys and judges approach the topic of mental health and if so, how has this impacted the family law cases you work on?
There has been some progress in how our industry approaches this topic, but it is not as discerning or consistent as it could ideally be. Some attorneys are better equipped to handle clients with mental illness than are others, and the same goes for judges. Some attorneys understand that their clients may be suffering from a mental disorder even though clients will not voluntarily confirm it, or even know they are likely suffering from a diagnosable and treatable condition. Overall, I believe that societal efforts to lessen the stigma around mental illness have enabled clients to be more willing to participate in individual therapy, co-parenting counselling and reunification therapy, or seek other professional behavioural help for themselves or their children when they agree that would benefit them or their children. There also seems to be more widespread openness amongst family law attorneys to encourage their clients to seek professional assistance, tempered sometimes by worries about how receiving help may make clients “look”.
Some attorneys are better equipped to handle clients with mental illness than are others, and the same goes for judges.
Have you noticed any instances when mental health considerations are used as a tool to impact the trajectory of a family law case? What impact can this have on clients?
Definitely. Many litigants are quick to throw around terms like “psychopath”, “unstable”, “crazy”, or “bipolar”, even when there is little in that person’s history or behavioural patterns to support such a description. People are understandably emotional and upset once they get to a family law attorney, but these labels are frequently used without medical merit. When litigants use these descriptions of their exes in written pleadings, they are usually incorporated with the intent to paint the exes as abusers, unfit parents, or both. Ironically, in cases where one or both parties have actually been diagnosed with a mental health disorder, those parties rarely reference it in their pleadings and judges will rarely come to know that mental illness is a factor in the case. Oftentimes litigants seek that their ex undergo a mental health evaluation just so they can plant a seed of concern about their opponent’s ability to parent in the judge’s mind. This can trigger unnecessary animosity between parties, prolong cases, and deflect from the most important issues in a case.
Is the legal industry equipped to determine when mental illness plays a part in family law cases?
Not as much as it could be. I think parties would benefit more in the long term if the law differentiated between people with and without mental health disorders, particularly when it comes to certain remedies offered by Domestic Violence Restraining Orders. If a party seeks a Domestic Violence Restraining Order against someone they live with, the court can order the non-applicant to move out immediately. This happens frequently. It is undeniable that this remedy is appropriate and necessary in many situations to help prevent against real and serious harm. I do not wish to downplay their importance or usefulness - Domestic Violence Restraining Orders save lives. However, currently, the law does not treat a true abuser differently from someone experiencing a psychotic break or someone experiencing a temporary mental breakdown.
Many litigants are quick to throw around terms like “psychopath”, “unstable”, “crazy”, or “bipolar”, even when there is little in that person’s history or behavioural patterns to support such a description.
Imagine a couple of limited means – Jane and Joe - have lived together for years, maybe even decades. Joe begins experiencing symptoms of mental illness, and these symptoms eventually become more pronounced. In response to Joe’s foreign behaviour, Jane seeks a Domestic Violence Restraining Order against Joe and requests a move out order. Because the burden of proof is low and because the Domestic Violence Protection Act defines “abuse” very broadly, it is likely that the court will grant Jane’s request and order Joe to move out immediately. To comply with the court’s order, Joe needs to move out immediately, or, if he is served while outside his home, he is forbidden from returning to the home at all, pending the hearing.
For someone experiencing a mental hardship, this remedy is particularly harsh, and will likely worsen their condition. Without a home to return to and without a support system, people with serious mental disorders who have been expelled from their homes may end up homeless, turn to substance abuse, and may suffer worsening symptoms. It would be great if our laws could differentiate between those with and without mental illness so that laws designed to protect people do not end up hurting others.
The United States Congress passed legislation to designate 988 as a national mental health crisis hotline. What impact do you think this will have?
I think this will have a tremendous effect on getting people – family law litigants or not – more appropriate help, which will hopefully improve how parents take care of themselves, each other, and their children in the course of their family law case and beyond. As it stands, people call 911 for any and all emergencies, and sometimes for no emergency at all. Slated to go into effect near the end of 2022, people experiencing suicidality, or any range of mental health or substance abuse crises will be able to call 988 to receive a more nuanced crisis response. From those experiencing a mental break to others experiencing situational depression or anxiety, this new resource will be designed to connect them to appropriate care, giving people the opening to receive treatment and get better, if they are open to it.
Though it is hard to predict how exactly this will impact the practice of family law in the future, I believe it will change how litigants act, how lawyers advise their clients, and how courts view a case with a 988 history. I hope that introducing this nationwide resource will help the public better understand the severity of mental illness, its pervasiveness, and that it will make litigants think twice before they involve law enforcement and crisis response teams as a way to create a paper trail against their opponent in their family law case.
How should family lawyers be approaching these changes in order better serve their clients?
Family law attorneys should try to follow major changes like this one and inform their clients of their options, once these options become available. Unlike other areas of law, family law litigants may be particularly in need of other professional help, and it makes sense for family law attorneys to inform their clients of the range of options and help that exist.
What more needs to be done or changed to help family law cases progress in the most appropriate manner for clients?
The shortcomings of family law practice and litigation in preserving the interests of those with mental health disorders seems to stem, at least partially, from a lack of understanding of the nature of chronic mental illness, the ways such illnesses can manifest, and what can aggravate their symptoms. One in five people in the United States suffers from a mental illness. This means that many litigants, attorneys, and judges that preside over these cases have experienced, or know someone who has experienced mental illness. Taking the initiative to educate ourselves about mental illness will go a long way towards understanding how to better counsel clients in crisis and will allow us to better discern when litigants are using someone’s plight to further their strategic interests.
Monica Nemec, Senior Associate
Hoover Krepelka LLP
Address: 1520 The Alameda Suite 200, San Jose, CA 95126, United States
Tel: +1 408 947 7600
Fax: +1 408 947 7603
Email: Monica@hooverkrepelka.com
Hoover Krepelka is a service-oriented family law firm based in San Jose, California. The largest law firm in Silicon Valley that tackles family law exclusively, their lawyers share a combined 130+ years of experience and strive to deliver excellence in client service.
Monica Nemec: I am a Senior Associate at Hoover Krepelka, LLP. I am a first generation American, born to two Czech parents, and a native Californian. I am a native Czech speaker, but also speak French fluently as a result of attending bilingual schools through the end of high school. I have always been interested in people’s personal lives and interpersonal dynamics, so, very early on in law school, I knew that family law was the natural choice for me. I practiced family law for two years after graduating before returning to school to complete my master’s degree in Public Policy. I wanted to understand how the laws that lawyers are required to interpret and apply, were made. My interest in behavioural health led me to become the Director of National Policy for one of the nation’s leading behavioural health providers for a couple of years in Washington, DC. Deciding to return to the practice of family law, I now have a heightened interest in how mental health plays a role in family law litigation.
In some cases, if both parties fail to agree on each other’s settlement, the help of a family lawyer is essential. They are professionals who specialise in matters of family law. Handling legal issues concerning the members of the family is their expertise, and these include divorce, child custody and support, alimony, domestic violence, and a lot more.
Many individuals attempt to resolve the issues among themselves without bringing the matter to judicial authority, which triggers further disagreements. They also perceive that it’s quite expensive to get guidance from experts. This article will help you to gauge the vital role of a lawyer in family disputes and how it can help you with your stressful situation.
This is a sensitive matter and a traumatic experience for every family member, especially children. Domestic violence can be a form of emotional and physical abuse, as can damage to a person’s property, and threatening behaviour. Having the guidance of family lawyers can help you avoid some hostile interactions, and you’ll have the appropriate care you need. Look for a non-profit law firm where services are more affordable since no partners or shareholders are making a profit from your concern. A lawyer can also voice your point of view without you having to be there personally in front of the abuser. You’ll get help to take the necessary steps to protect yourself and any children who may also be affected.
This is probably one of the most draining experiences your family can face. Emotions tend to get in the way, and it’s almost impossible to settle calmly. In the middle of heated arguments and peak emotions, a family lawyer can be a mediator, helping couples to look at the issue rationally and in line with the law. You can expect long term and sustainable solutions to your concerns.
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Part of the process and difficult results of a divorce is determining what will happen to the children. Family issues are also tough for children, especially if it involves the separation of their parents. Couple need to agree on arrangements for taking care of them. A family lawyer can help to draft such an agreement with the best interests of the children in mind, where both parents have to accommodate the terms. Legal experts can provide a parenting plan wherein children can still feel the love and care of both parents.
A will is a legal document where a person states how they would like their property to be managed by family members after death. A family lawyer can help you out in drafting this document to avoid possible disagreements between family members. In some complicated situations and family conflicts, there’s a need to contest the will of a deceased person as their wishes may not seem truly reflected due to incapacity. A family lawyer can help to challenge the validity of the will and go through the legal steps.
The vital role of a lawyer in family disputes is immeasurable. Clients go through a very stressful experience, and appropriate support is particularly helpful in understanding their rights. Lawyers help to balance things and act as a mediator in family conflicts to come up with reasonable arrangements.
Simon Fisher, Partner in the family law team at Gardner Leader LLP solicitors, offers his thoughts to Lawyer Monthly on the changes he expects COVID-19 to bring to family law.
Law firms like Gardner Leader LLP have had to swiftly adapt to a new normal way of working, operating remotely to support clients using progressive technology like video conferencing. Gardner Leader also introduced a secure and confidential app where clients can communication with solicitors remotely.
Despite firms having to close their offices to visitors in line with the government guidance, divorce solicitors up and down the country – including Baroness Shackleton of Belgravia – predicted a surge in divorce enquiries caused by the pressures of self-imposed confinement.
This surge appears to have occurred sooner than imagined. Searches for 'I want a divorce' remain popular, with some firms claiming to see a 154% increase in Google searches and a 40% increase in divorce enquiries immediately after lockdown.
Wealthy individuals using the opportunity of a lowered asset base to get a more advantageous divorce before the economy bounces back, and the pressure of quarantine and financial uncertainty, are among the reasons given by solicitors for enquiries increasing during this period.
Searches for 'I want a divorce' remain popular, with some firms claiming to see a 154% increase in Google searches and a 40% increase in divorce enquiries immediately after lockdown.
These figures suggest that for those in a struggling relationship – where there’s no way back – lockdown has not restricted couples from taking the first steps in the divorce process. Furthermore, as lockdown restrictions begin to ease, we too have seen enquiries at Gardner Leader increase by 48% as the UK follows suit with other parts of the world such as Shenzhen, China. With the pandemic ebbing, in April around 3,500 divorces were reported in Shenzhen, accounting for around 84% of marriage registrations, compared to a previously yearly average of around 30%.
As the UK continues to ease out of lockdown, UK law firms are bracing for another wave in divorce enquiries.
Where lockdown has had its most damaging impact is to those in abusive relationships. According to the WHO, reports of domestic violence in Europe rose by 60% in April compared to the same month last year, some attributed to the stress and anxiety of lockdown.
There are mechanisms to break lockdown restrictions for victims. The courts are open for urgent non molestation and occupation order applications (albeit via video or telephone) but as the data from the WHO shows, COVID-19 is sadly still causing incidents to increase.
Individuals can often find themselves trapped in struggling relationships but without an ability to move on. In such a difficult time, associated problems such as mental health can often come to the forefront. However, being confined with limited prospect of a resolution at this stage could have a deep effect on parties both now and in the future. The full effect is unknown but the warning signs are there.
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One positive outcome from lockdown is that it has forced parties to consider alternative options to the traditional court process to resolve their dispute. Rather than waiting for a hearing that might not take place, parties can use ADR methods such as Arbitration, Collaborative Law or private FDRs; options that were available before COVID-19 but were often wrongly treated as secondary options by lawyers and clients alike. This can no longer be the case and the inevitable use of these options is only a positive to keep disputes out of the courts and to reduce costs.
Meanwhile, court hearings have also been modernised, with the courts and judges providing guidance as to the digital filing of bundles, and the provision for future remote hearings including some precedent orders by High Court Judge of England and Wales, Mr Justice Mostyn. In fact, during the initial weeks of lockdown, video and telephone hearings including Family Dispute Resolution hearings were still taking place.
The trouble is, the swift move by some courts to commendably adapt to a new remote way of life has left a slight confused and inconsistent family court system, with various family court locations around the UK adopting contrasting approaches. Some hearings are taking place on paper, some by telephone or video and some proceedings are just generally being adjourned. This depends on the location, staffing and availability of the Judiciary, among other factors.
Often, hearings taking place are organised by the court the day before or morning of the hearing by different remote means. This causes uncertainty for family law practitioners and clients alike, particularly as family lawyers cannot give a clear answer if the hearing will proceed or not. This likely won't get any better in the future once lockdown is lifted; the courts will likely be backlogged with hearings, with lawyers wondering how or when these matters will be listed.
Often, hearings taking place are organised by the court the day before or morning of the hearing by different remote means.
Then there’s the digitalisation of courts. While recent steps were underway with digitalisation of online divorce and financial orders, the family courts have often been reluctant to use remote hearings – despite being used successfully in civil hearings for many years.
The COVID-19 lockdown has bought the use of remote hearings to the forefront. Not all hearings have taken place as scheduled, and some like final hearings need parties in attendance. However, there have been a number of successful video and remote hearings showing that this is something that could be implemented to save legal and court costs and time.
Let’s hope this is the case, so at least we can say one key positive change has emerged from the disruption and turmoil inflicted on the family legal system by COVID-19.
Talking to Suanne Honey, she explains the different avenues abused partners can take, and why despite being in the midst of high emotions, children must be considered first and foremost.
What protections does the abused spouse get when undergoing a divorce in this case?
he biggest advantage of a protective order (also called a Domestic Violence Restraining Order After Hearing) is that the order is entered into the CLETS program.
The abused spouse gets a piece of paper when the judicial officer grants a domestic violence restraining order. All too often, the abused spouse thinks that piece of paper is a shield that will protect them from physical harm: it is only a piece of paper. The biggest advantage of a protective order (also called a Domestic Violence Restraining Order After Hearing) is that the order is entered into the CLETS program. The CLETS is a computer program used by all police agencies in California and if the abuser violates the terms of the restraining order, a call to the police will take higher priority over other calls. The protected or abused spouse needs to only say to the dispatcher or 911 that she or he has a restraining order and that the restrained party is violating the terms of the order. This will generate an immediate response as the police are trained that these are potentially very dangerous situations.
Problems can arise when the abused spouse somehow assumes that the abuser will comply with the order just because it was issued and served on the abuser. If abusers were rule followers, they would not have done the things that caused the judicial officer to issue the restraining order in the first place. The abused spouse needs to be aware of his/her surroundings, not put themselves in vulnerable situations to the extent that they can foresee harm and not – under any circumstances – reach out to talk to the restrained party unless the box is marked that they can have peaceful contact regarding the children. Even with this exception, the communication cannot be about property matters or other things as long as the restraining order is in place.
Having children come into Court to testify against a parent can be devastating to a child and should be the last resort, but, sometimes, it is necessary.
What accounts towards evidence for domestic abuse?
Photographs of injuries inflicted by the abuser are the best evidence. Text messages and email communications by the abuser may be relevant if they are harassing or contain admissions of harm. Often abusers apologize which counts as an admission. Credible witness testimony can sometimes be sufficient evidence.; portions of police reports can also be evidence. Sometimes the evidence can just come from the abused person and the abuser. Obviously the more evidence available, the more likely the Court will find a basis to issue the restraining order.
How easy is it to obtain such evidence?
Every case is different. Sometimes there is an abundance of evidence. People talk too much on social media; bruises, cuts and broken bones can be proven by photographs and medical records. Sometimes there is nothing but the testimony of the two parties involved. Although, unfortunately sometimes children witness the abuse.; abuse by one parent to the other parent in the presence of the children is considered abuse on the child. The difficulty is how to get that evidence before the Court. Having children come into Court to testify against a parent can be devastating to a child and should be the last resort, but, sometimes, it is necessary.
What are the different types of restraining orders?
In California, in the family court, there are different types of restraining orders.
When people are highly emotional, they rarely make good judgment calls and work against their own self interests, as well as the best interests of the children.
How long does a divorce process take if domestic violence is a factor?
Domestic violence usually does not prolong a divorce case much longer than if domestic violence was not involved. Sometimes it can slow down the process, especially if the parties and children are undergoing counselling or reunification services. Things that tend to prolong the dissolution process involve business and other property valuations, getting disclosures and discovery. The thing that usually is one of the biggest delays is the emotional process of dissolving the marriage. It is the death of a relationship and has the same processes as the death of a family member. Parents not only have to deal with their own emotional issues but also those of the children. It is painful to see your spouse in another relationship even if you are the one that wanted the divorce in the first place.
About Suanne:
Clients who are severely emotionally distressed (and everyone is distressed to some degree), often use children as footballs to gain advantage over the other spouse or to hurt the other spouse. What is amazing is that these parents love their children but love to fight with each other more than they love their children. When people are highly emotional, they rarely make good judgment calls and work against their own self interests, as well as the best interests of the children. The biggest challenge is to get them to understand the harm they are doing not only to themselves but to their children. Mental-health professionals are invaluable in this process. Too many people feel shame at having to get professional help which makes no sense. There is no shame to go to an oncologist when you have cancer. This is a form of cancer of the emotions. This does not necessarily mean they have a mental illness or are crazy. It is just a way to get resources and help on how to deal with the process and a difficult other parent and their own emotions.
What goes around comes around. I also believe that once you love someone, that love never totally goes away. It doesn’t mean you can continue to be married to that person or even tolerate them any longer. If people could just get in touch with that part of their feelings and memories, greater peace would surround the family.
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When I first started practicing family law, I mistakenly believed that some parents were so harmful to the children that they just shouldn’t be around them any longer. People have a strong urge to know their biological parents. When a parent is missing from the child’s life, abandonment issues develop. Children turn to unhealthy promiscuous premarital relationships and street or prescription drugs to close this gap. They have difficult romantic relationships and other social skill problems. Every child should have some type of relationship with the biological parents. Sometimes that relationship needs to be in a safe and healthy environment.
The other thing is that parents need to accept that each parent brings something to the child. If the parent is difficult, the child will learn to navigate difficult teachers or difficult bosses and difficulties in life. If one parent coddles the child and the other parent tells the child to get back on the bike bleeding or not and just keep going, parents need to appreciate that both of these are important lessons of love for a child, one is not better than the other. Both are important. We have over-protected our children doing them a disservice making them less able to take life’s hardships as an adult. Let the children stumble and fall and be hurt while they have parents to guide and love them through the process.
If you are considering going into family law or estate planning, look into Collaborative Law. It is a peaceful way to resolve all issues. It is a cost-effective way for the entire family to resolve their own issues with the guidance of a professional team. The burnout rate for lawyers is less as they see they are helping the families rather than hurling allegations through the courtroom that can never be “unheard”.
Law school teaches students to zealously advocate for their clients. This is true for most areas of law but not family law matters. This area of law is a highly emotionally charged process that can and does adversely affect the entire family including the children. If you practice in family law, use peacemaking methods when possible, while protecting your clients’ rights and the best interests of the children and at all times be professional.
Do not take on the emotionality of your clients. This is sometimes hard to do. You serve your clients better by being detached from your clients while still allowing them to be heard.
Suanne I. Honey
Attorney at Law, 1605 E. 4th Street, Suite 250, Santa Ana, CA 92701-8301
Telephone: 714/259-1555
Fax: 714/259-1554
E-mail: honey@honeylaw.com
I have been practicing law continuously for 29 years. Current primary area of practice is in the area of family law: dissolution of marriage (divorce), paternity actions, child custody, child support, spousal support (alimony), domestic violence, division of assets and debts, pre-marital agreements (prenups), modification of child support and spousal support among other issues, collaborative law and mediation services.
During her observations as a Court law clerk intern for the late Honorable Judge, Willard Lassers, in the Domestic Relations Division of the Circuit Court of Cook County, Wendy assisted in case development, and documentation which gave her a behind the scenes view into some very traumatic times in people’s lives. Shocked at how often people were not getting proper counsel to get through very critical processes, Wendy began her journey into family law.
The Illinois Domestic Violence Act was passed by the Illinois Legislature in 1982 and was updated in 2012. It is under the Illinois Domestic Violence Act (hereafter “IDVA”) for which we petition for Orders of Protection (or, the “Order”). It can be found in Chapter 750 Illinois Compiled Statutes (ILCS) Section 60/103 et seq.).
The IDVA is intended to protect a person abused by a family or household member, a high-risk adult with disabilities who is abused, neglected, or exploited by a family or household member, any minor child or dependent in the care of such person, and any person residing or employed at a private home or public shelter which is housing an abused family or household member.
The term "abuse" means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.
An Order of Protection may be filed by a person who has been abused by a family or household member, or filed by any person on behalf of a minor child or any adult who has been abused by a family or household member and due to age, health, disability, or inaccessibility, who cannot file the petition themselves. It can also be filed by any person on behalf of a high risk adult with disabilities who has been abused, neglected, or exploited by a family or household member. [1]
The term "abuse" means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation. “Family” or “household member” includes spouses, parents, children, stepchildren, and other persons related by blood or by present or prior marriage, persons who have or allegedly have a child in common or share a blood relationship through a child, persons who have or had a dating or engagement relationship, and persons with disabilities and their personal assistants, and caregivers. [2]
Actions which are sufficient for the Court to grant an Order of Protection cover a wide range of behaviors.
The issue of what constitutes a shared household has been interpreted by the Courts over the years and the Courts have been more lenient in recent times in interpreting this issue. In the case of Glatzer v. Fabianich, the Court found that a same sex couple living together for as little as seven days constituted the sharing of a "common dwelling” under the Domestic Violence Act. [3]
Once the standing requirement is met, the next question is what actions constitute domestic violence. Under the IDVA, a domestic violence action requires a finding of "abuse" to apply for an Order of Protection.
Actions which are sufficient for the Court to grant an Order of Protection cover a wide range of behaviors. Initially, we consider “physical abuse”. “Physical abuse” includes any of these following actions: (i) knowing or reckless use of physical force, confinement or restraint; (ii) knowing repeated and unnecessary sleep deprivation; or (iii) knowing or reckless conduct which creates an immediate risk of physical harm and sexual abuse. [4]
Representing clients in this field can be difficult. There are clients who are so abused that they do not want to recognize the above conduct as abusive.
Other behavior which is sufficient for the Court to grant an Order of Protection is “harassment”. The IDVA defines this very broadly as conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances, would cause a reasonable person distress, and does cause emotional distress to the petitioner. The IDVA gives 6 examples (meant to be illustrative and not all inclusive) of harassment. Those examples include: creating a disturbance at the victim’s place of work or school, repeatedly telephoning the victim’s place of work, home, or residence, repeatedly following the victim about in a public place or places, repeatedly keeping the victim under surveillance by remaining present outside his or her home school, work, car or other place occupied by the victim, peering through the victim’s windows, various forms of concealing or threatening to conceal a minor child from the petitioner, and threatening physical force, confinement, or restraint of one or more occasions. This also covers a wide range of behaviors. [5]
The Interference with Personal Liberty of Another is also conduct which meets the criteria under the IDVA. This is defined as committing or threatening physical abuse, harassment, intimidation or willful deprivation, so as to compel another to engage in conduct from which she or he has a right to do, abstain or to refrain from doing. Lastly, there is willful deprivation which is defined as willfully denying a person, who, because of age, health or disability, requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device or other physical assistance and thereby exposing that person to the risk of physical, mental or emotional harm.
Evidence of abuse is necessary to obtain an emergency, interim, or plenary order of protection.
Since no one ever knows when or if the abuse will escalate or continue, if any of the above conduct set forth below are occurring in the household, it’s time to consider an Order of Protection. The IDVA is drafted in such a way as to allow an individual to obtain an Order of Protection to prevent the harm of physical abuse and/or to prevent continued or escalated imminent harm and/or physical abuse. A person who is experiencing any of the above conduct, should give serious consideration to obtaining an Order of Protection.
Representing clients in this field can be difficult. There are clients who are so abused that they do not want to recognize the above conduct as abusive. Or there are others who are in denial and/or are embarrassed and humiliated by an abusive spouse and do not want to publicize the event. Over the years, I have found persons in this category include many professional persons. Others are afraid pursuing an Order of Protection will harm the spouse or ex-spouse or will cause them to lose their job, which will impact on child support and/or maintenance. Often times it also takes a long time for a client or prospective client to open up and relay the abusive conduct. An experienced attorney must ask the right questions in the right manner for each person and if the signs are there, they need to pursue the matter in an empathetic and patient manner to promote the individual to open up about the abuse. However, even if the attorney is able to do that, often times the individual will not pursue the matter for the reasons set forth above.
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
The process to obtain an Emergency Order of Protection involves the preparation of an Emergency Petition for the Order, which also sets forth the specific factual allegations which warrant the finding of abuse by a Judge under the Domestic Violence Act. The attorney must also prepare a proposed emergency Order of Protection, a summons for the Respondent and complete other necessary forms. The Petition must also include the remedies being requested of the Court, some of which are not available at hearings for Emergency Orders of Protection, but all remedies you want to pursue should be included here. Child custody and child support are two of the remedies not available in emergency orders, (only possession of the minor children is available). However, you should still request this remedy in order for the Court to hear it at the hearing on the interim and plenary order. [6]
Evidence of abuse, as discussed above, is necessary to obtain an emergency, interim, or plenary Order of Protection. Good evidence can be marks on a person's body proving an act of physical abuse occurred. A person should be encouraged to take pictures of these marks. For such injury and other injuries, the individual should also be encouraged to obtain emergency care and/or care of a doctor and then there will be medical records as well as potential professional testimony available. Mental injury is more difficult to prove, but going to a mental health professional can also be utilized. Inquire if there are witnesses or cameras in public places where incidents took place. It is also important to encourage clients or potential clients to call the police at the 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.
Orders of Protection, whether emergency, interim, or plenary, are not supposed to be used as a vehicle to obtain custody.
In order for the Court to determine 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 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 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”; 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.
When a criminal case is underlying, defending an Order of Protection can be more difficult.
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 conduct of both parties and put your client back on an equal footing with the other spouse for parenting and other issues in the case. It may enable the Respondent to come back to the marital home and/or enable another peaceful status quo to be established which will not endanger the Respondent's livelihood, professional license, parenting and other critical issues of the case. There are also times when marriage counseling and/or co-parenting or family counseling can be considered. This provides the parties to have an opportunity to explore resolutions and to finally deal with some of the underlying problems of the marriage as well as anger management issues, drug or alcohol treatment, and/or the need for therapy and counseling for the parent, spouse, and/or children involved. In some cases, this can also lead to reconciliation of the marriage or relationship.
When a criminal case is underlying, defending an Order of Protection can be more difficult. In a criminal case, the burden of proof is beyond a reasonable doubt, contrasted to an Order which is only a preponderance of the evidence. An attorney should not have their client testify in an Order of Protection hearing when there is a criminal case pending, since it is much easier to obtain a finding of abuse in the civil order of protection hearing, than in the criminal case and you may be jeopardizing your client’s interests in the criminal case to allow such testimony in the civil case. In the criminal case, if the case cannot be dismissed, and particularly if the Respondent is guilty, one can explore the reduction of the charge to a misdemeanor battery or other lower misdemeanor charge and the Respondent can agree to a plea of guilty and to go to anger management and/or other therapy and obtain supervision, which is not available in a domestic battery case and will not jeopardize the Respondent's professional license or job.
The most important qualities to look for when seeking an attorney to represent you to either seek an Order of Protection or defend against one are extensive experience in family law litigation, in general, and in dealing with litigation of Orders of Protection in particular. The extensive experience in family law and in representing clients in order of protection litigation should provide the attorney with the ability to determine the best strategy for the client under the specific individual circumstances. There are many options and a client needs this kind of highly experienced professional to assist in the determination, and execute what is needed to carry it out to represent the client’s best interests.
If you are representing the petitioner, you need to take a strong stance to best protect your client from any further abuse or jeopardy to them and/or the children involved.
To achieve the best results for your client you need to know what the reasonable goals of the individual client are, after you have educated the client as to what can reasonably be accomplished. An attorney also needs to remain flexible throughout the process while also being empathetic, objective, and directive with the client to properly guide the client. This is the case whether it regards preparing and going to trial or pursuing negotiations for a restraining order, or other solutions and remedies to meet the often-changing nature of the situation as it unfolds, while being always ever conscious of the impact the Order of Protection will have on parenting and all other issues involved in a divorce or legal separation.
If you are representing the Petitioner, you need to take a strong stance to best protect your client from any further abuse or jeopardy to them and/or the children involved. If there is clear and repeated abuse, a restraining order may not be appropriate and going to trial and obtaining a Plenary Order of Protection may be what is needed to best protect the interests of your client and the children involved, as well as other remedies in domestic relations divisions, particularly if drugs or alcohol abuse is also involved.
[1] 750 ILCS 60/201.
[2] 750 ILCS 60/103 and 201.
[3] Glater v. Fabianich, 252 Ill. App. 3d 372, 625 N.E. 2d 96 (1st Dist. 1993.
[4] 750 ILCS 60/103.
[5] 750 ILCS 60/103
[6] 750 ILCS 60/202, 203, 210 et seq.
[7] 750 ILCS 60/209.
[8] 750 ILCS 60/205.
[9] 750 ILCS 60/217.
[10] 750 ILCS 60/210-219.
[11] In Re: Marriage of Paclik, 371 Ill. App. 3d 890, 864 N.E. 2d 274, (5th Dist. 2007), Radke ex. Rel. Radke v. Radke, 349 Ill. App. 3d 264, 812 N.E. 2d 9 (3rd Dist. 2004) with many recent relevant opinions as unpublished under Rule 23-ie. In Re; Marriage of Yost, 2018 IL App (4th) 180283-U, 2018, Ibisevic v. Ibisevic 2016 IL App. (2d) 151179-U, 2016
Wendy R. Morgan is the Founder, Owner, and CEO of The Law Firm of Wendy R. Morgan, established in 1981. Judges and attorneys have praised Wendy for her ardent advocacy and her ability to “find the angle” in even the most difficult and complex cases and when all other lawyers fail. Wendy is an expert and experienced litigation attorney. Wendy is also an extremely skilled negotiator; successfully negotiating favorable settlements for untold numbers of clients over the years. Wendy is also known for her compassion for her clients and the ability to know what they need and how to successfully strategize to accomplish their goals.
Divorce and other family issues can turn a person’s world upside down. The fight determines how life is going to be when it’s all over. It is a very difficult time and proper support is critical. This means educating clients about every option at their fingertips and then helping them to make the best, most educated decision for themselves and their families. Detailed evaluation and full disclosure are so important when someone is about to start the process of going through a divorce, order of protection or other family law issues. Wendy offers clients a complete analysis of their case to provide them a full understanding of all of their rights, choices, and possible outcomes that helps drive costs down. The firm also takes pride in an ability to take on emergency and extremely complex cases and situations to find reasonable solutions and assist in determining a status quo for the situation at hand.
