Transcript Family Law Issues related to DV 2

FAMILY LAW ISSUES RELATED
TO DOMESTIC VIOLENCE
DOMESTIC VIOLENCE LEGAL CLINIC
Danielle Parisi Ruffatto
Brent Movitz
Director of Pro Bono and
Supervising Attorney
Training
Community Engagement
(312) 325-9160
(312) 325-9162
[email protected]
[email protected]
WHO IS A PARENT?
oIn naturally conceived children:
•Natural mother forms a “parent child relationship” by
giving birth
•Natural father needs to establish paternity under the
Illinois Parentage Act of 1984 (750 ILCS 45)
NOTE: There are also ways to establish in cases of
adoption, surrogacy, etc.
oIn order to have rights (visitation, custody) and
responsibilities (child support) in regard to the children, a
father needs to establish “legal paternity.” Without or
before establishing “legal” paternity, he has NO rights.
ESTABLISHING LEGAL PATERNITY
oIf the parents are married when the child is born and/or
conceived, the husband is presumed to be the legal father.
oIf the parents are unmarried when the child is born
and/or conceived, the father needs to take additional
steps to establish paternity:
 A “Voluntary Acknowledgement of Paternity/Parentage” (“VAP”)
can be signed
 Paternity can also be determined through administrative cases
(child support) or court proceedings
 If the parties are married later, the father’s name may be able to
be added to the birth certificate with his written consent.
oOnce legal paternity is established, the father’s name can
be put on the child’s birth certificate.
SIGNIFICANCE OF ESTABLISHING LEGAL
PATERNITY
o Establishing legal paternity gives the father/mother the
ability to directly petition the court for custody, visitation,
child support, without having to also determine paternity
in the court case.
oEstablishing legal paternity does NOT give a father to
have visits whenever he chooses.
There may be other issues with altogether refusing
visitation without a court order:
• Kidnapping statute
• How parent will appear in court
• Harm to the child
CUSTODY
oLegal custody - means legal decision making ability in a
few key areas (health, religion, education). In a court
order, this can be “sole” or “joint”. Generally what the
court means when it says “custody”
oResidential custody – the parent a child primarily resides
with, especially after a determination of joint custody
oPhysical care and control – who the child primarily
resides with, especially in an OP context
CUSTODY
oWho has legal custody?
• If no court order
 If married: NO ONE
 If unmarried: Child abduction statute creates a presumption that the
mother has custody.
oWho has physical care?
• If parties are unmarried, and no court order:
 Mom, by default, unless she abandoned the child (at least according to
the kidnapping statute)
• If parties are married, and no court order
 No one
HOW DOES FILING FOR AN OP CHANGE THE
SITUATION?
oIf legal paternity has been established/is presumed:
• The court can address all of the issues related to the children
oIf legal paternity has not been established:
• There probably will not be much of a change, except that the
Respondent can be prohibited from contacting the children
CHILDREN IN OPS
oCategories of children in OPs:
•Children from a prior relationship (not in common)
•Children the parties have in common (“minor children”)
 Children in common as to whom legal paternity has been
established
 Children in common as to whom legal paternity has not been
established
CHILDREN - REMEDIES
oALL children can be listed as “protected parties”.
oChildren in common, legal paternity
• Physical Care and Control (5a)
• Do not take from care (5b)
• Temporary Legal Custody (6)
• Visitation (7)
• No child snatching (8)
• Child support (12)
oChildren in common, no legal paternity
• May choose to select a few remedies (5b and 8)
PHYSICAL CARE AND POSSESSION/ ORDER TO RETURN
OR NOT REMOVE KIDS
oPhysical care means who the child stays with
oIDVA says: “In order to protect the minor child from
abuse, neglect, or unwarranted separation from the
person who has been the minor child's primary caretaker,
or to otherwise protect the well-being of the minor
child…”
TEMPORARY LEGAL CUSTODY
oLegal custody means who makes decisions about the child
oIt can be ordered in an OP, but only after service (POP).
oIDVA says:
• Look to other laws
 IMDMA– “best interest of the child”
• “If a court finds, after a hearing, that respondent has
committed abuse of a minor child, there shall be a rebuttable
presumption that awarding temporary legal custody to
respondent would not be in the child's best interest.”
VISITS
oTechnically can be ordered in an EOP, but…
• Problems?
oIDVA says: “The court shall restrict or deny respondent's
visitation with a minor child if the court finds that
respondent has done or is likely to do any of the
following: (i) abuse or endanger the minor child during
visitation; (ii) use the visitation as an opportunity to abuse
or harass petitioner or petitioner's family or household
members; (iii) improperly conceal or detain the minor
child; or (iv) otherwise act in a manner that is not in the
best interests of the minor child.”
oSpecifically says the court is NOT limited by the IMDMA
standards (visits unless “serious endangerment”).
CHILD SUPPORT
oCan be ordered in an OP, but only after service (POP)
oUsually is a percentage of the non-custodial parent’s net
income
• 1 child = 20%
• 2 children = 28%
• 3 children = 32%
• 4 children = 40%
• 5 children = 45%
• 6 or more = 50%
VISITATION SAFETY CONSIDERATIONS
•Be clear: Set specific days, times, and a start date
•Determine exchanges (location and who will handle)
•Consider restricted visitation for safety reasons
(supervised at a site or by family; at a public location;
no overnights; prohibitions against driving with kids)
•Identify a means for contact in emergencies (via text
message or third party)
•Ensure that order does not contradict itself
CHILD ABDUCTION
When taking or keeping a child is a crime:
•If the parties are not married, it is presumed the mother
has custody unless there is a court order (or a narrow
exception applies). The father cannot:
 violate a court order by removing or not returning the child
 remove the child without consent (if no court order yet)
•If the parties are married, and there is no court order,
neither parent can:
 conceal for 15 days without telling the other parent where the
child is or allowing contact or visitation with the child
 EXCEPT if that parent goes to a DV shelter
 removes or conceals with physical force or threat of force
DOMESTIC RELATIONS CASES
oCustody, visitation, and child support in relation to children in
common with an abuser can be addressed in Domestic Relations
Court
oCook County takes an unusual approach to child support and
parenting issue litigation by assigning cases based upon
whether the child’s parents have ever been married to each
other.
Cook County DR cases: Daley Center
50 W Washington St, Chicago, IL 60602
oDivorce Filings: Room 802
• Court rooms primarily on floors 16, 19, and 30.
oParentage Filings:
• 28 N. Clark, 2nd Floor
• Courtrooms in Concourse Level of the Daley Center
DOMESTIC RELATIONS CASES
Divorce Cases
Parentage Cases
o Results in a “Dissolution of
Marriage” that legal ends
a marriage
o Encompass a variety of
slightly different court
actions
o Addresses ALL things
related to the marriage,
including: custody, visitation,
child support,
maintenance/alimony,
division of property and
debt
o Are usually filed when the
parents are unmarried
o Arranged into 3 “Teams”
and 8 Individual Calendars
o The court can address
custody, visitation, child
support, and related issues
o 7 individual calendars (and
1 hearing calendar)
PARENTAGE COURT
oEither Parent may bring paternity actions to determine if
a certain man is the father of the child.
• To establish paternity, the suspected father will be asked to
undergo a DNA test which is then analyzed. The court will
establish a Father-Child relationship if there is a DNA match.
 Once parentage is determined, a father's legal rights and responsibilities
are the same whether he is or was married to the mother or not.
• Once the relationship is established, court can hear issues
regarding visitation, custody, child support.
 Governed by the Illinois Parentage Act (750 ILCS 45) in conjunction with
applicable provisions of the IMDMA.
• Court can send parties to mediation, order home study,
appoint a child representative/GAL, and all other childrelated tools available to divorce cases.
DIVORCE COURT
oAn Illinois divorce case starts when one of the parties files a
“Petition for Dissolution of Marriage” briefly stating the facts of
the marriage.
• Controlling law: IMDMA (750 ILCS 5)
• If the parties do not agree on the any of following issues, the divorce
will be considered contested:
1. Grounds for divorce
2. Child custody and visitation
3. Child support
4. Spousal support (called maintenance, formerly known as alimony)
5. Division of marital property and debts
• Court can send parties to mediation, order home study, appoint a
child representative/GAL, and all other child-related tools available
to parentage cases.
DOMESTIC RELATIONS COURT PROCESS
oCourts CAN (and absolutely should) address these issues in an
OP. But:
• Some OP judges are really reluctant to deal with these issues, and
view their role very narrowly. Judges in the DR Division expect to be
very involved
• There is case law saying an OP is the appropriate remedy when
there is a safety issue, but not to get a strategic advantage for
custody purposes
• An OP is a temporary remedy, not a permanent solution
Positives and negatives to filing in Domestic Relations court:
• Process is much slower in comparison to OPs at 555
• Service, time to respond, and discovery all take more time
• Additional services like the help desk, mediation, child attorneys,
home visits, drug tests, evaluations, etc.
• Willingness of judges to be involved (more than here)
• Settlement process
CUSTODY IN DOMESTIC RELATIONS COURT
oSection 14 of the Parentage Act combines the relevant criteria set forth in the IMDMA
along with “any other applicable law of Illinois” to direct the court in determining the
child’s best interests with respect to a judgment. 750 ILCS 45/14(a).
oIMDMA Standard: Best Interest of Child (750 ILCS 5/602)
• The court considers all relevant factors including:
(1) wishes of the child's parent or parents as to his custody
(2) wishes of the child as to his custodian;
(3) interaction of the child with his parents, his siblings or other person;
(4) child's adjustment to his home, school and community;
(5) mental and physical health of all individuals involved;
(6) physical violence or threat of physical violence by the child's potential custodian,
(7) occurrence of ongoing or repeated abuse (domestic violence)
(8) willingness/ability of parent encourage relationship with other parent and child
(9) whether one of the parents is a sex offender;
(10) Terms of military family-care plan that parent completed before deployment
VISITATION IN DOMESTIC RELATIONS
oIMDMA Standard (750 ILCS 5/607) provides for liberal
visitation assumed unless “visitation would endanger
seriously the child's physical, mental, moral or emotional
health.”
oIDVA states: “The court shall restrict or deny respondent's
visitation with a minor child if the court finds that
respondent has done or is likely to do any of the
following:
(i) abuse or endanger the minor child during visitation;
(ii) use the visitation as an opportunity to abuse or harass
petitioner or petitioner's family or household members;
(iii) improperly conceal or detain the minor child;
(iv) otherwise act in a manner that is not in the best
interests of the minor child.”
DOMESTIC VIOLENCE LEGAL CLINIC
oDomestic Violence Legal Clinic's mission is to provide free legal services
and referrals to low-income Cook County residents who have been
subjected to domestic violence to help them achieve safety from abusive
relationships.
oThe following factors would make us more likely to accept a case:
• Client has or had an OP or Petitioned for an OP against the opposing party.
• Client is Spanish speaking, or not proficient in English and resources allow for
interpretation assistance
• Opposing party has an attorney.
• Opposing party has reported client to DCFS leading to unfounded reports.
• Custody of the child or children, restriction or schedule of visitation will be
contested
• Client has any immigration status concern for herself or for her children
• Referral from a partner organization
• Client makes less than 125% of the applicable Federal Poverty Guidelines
• Urgency and immediacy of need to dissolve the legal relationship
oWe do not place any preference on whether the case is divorce or
parentage
DOMESTIC VIOLENCE LEGAL CLINIC
To refer clients to DVLC:
• Have the client fill out a family law intake form
 Be sure to indicate PBP Referral at the top
Feel free to contact me:
[email protected]
(312) 325-9162
555 W Harrison St, Suite 1900
Chicago, IL 60607
CHILD SUPPORT ASSISTANCE
State’s Attorney with the Child Support Program of the
Department of Healthcare and Family Services
800-477-4278
ww.childsupportillinois.com
Division of Child Support Services
P.O. Box 64629
Chicago, IL 60664-0629
• Child support program services are free