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Understanding Child Custody Laws in Illinois

Though they lived in two different eras, two brave individuals who were willing to make extreme sacrifices for their children largely shaped today’s family laws in the Prairie State.

In 19th century England, Caroline Norton married a prominent British politician. He was physically abusive to the point that household staff often had to separate the two or he might have killed his wife. Ms. Norton left her husband twice, but came back each time for the sake of the children. Back then, married women had absolutely no legal or property rights, so divorce meant permanent separation between mothers and children. In 1858, largely thanks to her tireless efforts, Parliament passed the Divorce Act. This law laid the groundwork for modern family laws in England, the United States, and other common law countries.

Ms. Norton never would have dreamt it possible, but a hundred years later, the tables would turn. For much of the 20th century, divorcing women almost always received full custody of the children, often with no questions asked. In those days, “full custody” meant just that. Divorced fathers could only visit their children if their ex-wives allowed it; courts never intervened in these disputes. Men who challenged the system were almost literally laughed out of court, until Californian James Cook pressured the legislature to pass a joint custody law in 1980.

Child Custody in Illinois

For a number of years, child psychologists and other professionals believed that joint custody was the best thing since sliced bread. However, over the past few decades, their zeal for such laws has diminished in the face of new evidence that many children, especially youngsters, need to “live” with one parent and “visit” another one. Now, joint custody in Illinois is little more than a rather weak legal presumption. Many families are searching for a better way.

One alternative began in California. In the “empty nest” visitation arrangement, the children always stay in the same place, which is usually the family residence. Mother and father rotate between addresses, perhaps between the family home and a nearby one-bedroom apartment.

Empty nest arrangements work well in many cases, but there are some big “ifs.” The parents must live close to each other and the children must have a good relationship with each parent. Mom and Dad do not have to be friends, but they do have to be civil towards one another at almost all times. Most significantly, both parents must want to spend extended time with the children. That is not true in all cases.

Modifying Child Custody or Visitation in Illinois

The Prairie State has a “no-fault” modification procedure that is much like the no-fault divorce process. If the parents agree in writing, most judges approve changes without asking too many questions. In contested cases, a Chicago judge will alter parenting time provisions based on changed circumstances. That could include:

  • Remarriage: The remarriage must affect the children in some way. If Dad simply does not like Mom’s new husband, a judge will probably do nothing, but if Mom’s new husband has a domestic violence criminal record, then Dad may have a case.
  • Job Change: These changes often involve different hours and longer or shorter commutes. Frequently, such changes also mean income adjustments, and that means child support modification.
  • Disability: If Mom quits drinking, she can petition the court for more parenting time with her children. Likewise, if Dad starts drinking, his ex-wife can ask a judge to reduce his parenting time.

As a rule of thumb, most Illinois divorce decrees need to be modified once every three or four years to keep up with changes in the family unit.

Team Up with Experienced Lawyers

Child custody arrangements must always put the best interests of the children at the forefront. For a confidential consultation with an experienced family law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Kevin Gent)

Facebook Live Shooting Suspect Faces Domestic Battery and Other Charges

A 29-year-old woman surrendered to Chicago Police Department officials a day after she shot another woman during a fight that was streamed live on social media.

The alleged victim, a 27-year-old, said she streamed the encounter because she expected an argument. The victim said she was surprised that the other woman brandished a handgun and shocked when she fired. The round landed in her shoulder, but “if I wouldn’t have turned around I would have got shot in my chest, my face, my neck or something,” she said.

A police spokesperson remarked that there is no threat to the public “as this [incident] stemmed from an earlier interaction between the two of them”.

Domestic Battery Basics in Illinois

Essentially, 720 ILCS 5/12-3.2 is a codified form of common law battery with some enhancements designed to protect certain people. Battery is a harmful or offensive touch, so a person can be charged with domestic battery even if the alleged attacked does not cause a physical injury. These protected classes are:

  • Current or former spouses,
  • Persons related by blood or marriage,
  • Current or former dating partners,
  • Persons who have a child in common,
  • Current or former roommates, and
  • Disabled persons and their caregivers.

Many of these relationships are very subjective, a point that is discussed below.

Normally, domestic battery is a Class A misdemeanor that carries a maximum 12 months in jail and a $2,500 fine. If the victim sustains a serious injury, the defendant had a prior domestic battery conviction, or there is another aggravating factor, prosecutors will increase charges to a Class 4 felony (one to three years in prison).

Domestic battery cases are not eligible for court supervision. So, defendants who are found guilty of this offense, or who plead guilty, always have convictions. The convictions stay on their records permanently, because domestic battery convictions cannot be expunged in Illinois.

Some Domestic Battery Defenses in Chicago

Several years ago, Illinois and most other states changed their domestic violence laws. Prosecutors can now force the victim to testify against the defendant, even if the two are husband and wife. So, the old “spousal immunity” defense has fallen by the wayside.

There are a number of other defenses available in Illinois. One approach involves attacking the relationship between the two people. As illustrated in the above story, if the persons knew each other at all, prosecutors nearly always bring domestic battery charges and then try to shoehorn the relationship into one of the protected classes.

This area is extremely gray. For example, engaged people are clearly dating partners, two people who only split an appetizer at a Kane County Chili’s are clearly not dating partners, and everyone else falls somewhere in between. Many people, including the two people in the above story, may qualify as “roommates,” but this label probably requires more than a night or two on the couch or a toothbrush in the medicine cabinet.

Self-defense may apply, as well. If defendants used an amount of force reasonably necessary to protect themselves or others, this doctrine probably applies.

These defenses, and others like them, may at least be enough to convince Chicago prosecutors to reduce the charges to simple battery, which is a court supervision-eligible offense. If the defense is strong enough, the judge may even throw out the charges altogether.

Contact Assertive Lawyers

There are many possible defenses in domestic battery prosecutions. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Tim Graf)

Illinois HB 3718 Goes into Effect

One of the spate of new laws to take effect on January 1 alters and consolidates the protective order process in Chicago.

The changes are largely procedural and designed to streamline this area of the law. The measure largely does away with the distinction between “civil” and “criminal” protective orders, so most protective order violations are now criminal law matters. The changes have significance for both alleged abusers, who now always have the right to counsel, and alleged victims, who may be better protected under criminal laws than civil ones.

The new protective order statute does not allow for any hearing. The statute specifically provides that a prima facie case is made by the filing of any complaint indictment or petition for juvenile delinquency. That means that if you are arrested, it is a foregone conclusion that a protective order shall issue in the case as the statute is currently written.

The offices of Glasgow & Olsson are currently litigating the constitutionality of this statute in Illinois courts as it is our belief that it is a due process violation to enter a protective order and curtail both proprietary rights and personal freedoms without due process of a court hearing. It allows the executive branch and the police to determinate if a protective order should issue rather than the courts and offers no opportunity to contest the evidence, cross examine the witnesses, or test the evidence.

It also has the potential for misuse. One can imagine a vindictive soon-to-be-ex-spouse who is going to file for divorce making up allegations about a soon-to-be-ex-spouse in order to gain the advantage of sole possession of the house, the children, and establishment of maintenance and child support without a Court hearing.

Under this statute in a State that has a zero tolerance policy for any domestic violence complaint, arrest and a protective order is a foregone conclusion if a complaint is made to the police by one of the parties.

Types of Protective Orders in Illinois

State law basically defines domestic violence as either a forcible assault or a pattern of conduct designed to harass, annoy, frighten, or otherwise harm the alleged victim. In either case, there must be a specific relationship between the parties. The protected relationships include:

  • Spouses: People who are divorced or had their marriages annulled, even if the divorce or annulment occurred decades ago, are still “spouses” for the purposes of domestic violence laws in Illinois.
  • Blood or Marriage Relationship: This list includes bonds like parents and children, aunts and uncles, stepchildren and stepparents, or grandparents and parents. Typically, the two people must be in the same “household,” a word that is somewhat subjective.
  • Dating Partners or Roommates: These categories are quite vague, as there is no hard-and-fast rule as to how many dates constitutes a “dating relationship” and how many overnights makes two people “roommates.”
  • Caregivers and Disabled Individuals: This type of relationship usually only applies to anti-assault protective orders, as a judge is unlikely to issue a stalking-no contact order in these cases.

To obtain a protective order, the alleged victims must essentially show that they reasonably fear for their physical safety. As a result, such orders commonly contain provisions that:

  • Prohibit Physical Violence: While the protective order itself obviously cannot prevent such acts, violation of a protective order is now almost always a serious criminal offense, so many people may think twice about violating one.
  • Establish Buffer Zones: Most protective orders prohibit alleged abusers from coming too close to an alleged victim’s residence, place of work, or other such place. The order usually only applies to people named in the protective order..
  • Exclude Defendants from Residences: Even if the alleged abuser pays the rent and is the only person named on the lease, some protective orders may include “kick-out” orders if the judge believes that such an order is necessary..

Some protective orders also include counselling requirements, directives to pay financial support, instructions to surrender firearms, and other such protective measures.

Stalking/no contact orders prohibit things like following the alleged victims, going near their workplaces or property, calling them repeatedly, or delivering things to them. HB 3781 also closed a loophole, so alleged abusers who convince other people to stalk alleged victims violated their protective orders.

Contact Tenacious Lawyers

Despite the new law, protective order law in Illinois is still very complex. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Rene Bohmer)