Orders of protection, available at any courthouse, are easy to file even by non-lawyers, and rarely require any fees. The Illinois Domestic Violence Act permits non-attorney domestic-abuse advocates to sit at the counsel table and give confidential and privileged advice to the petitioner.
It's also much easier to get an order of protections, and once granted along with exclusive possession of the home, the law clearly favors the wife maintaining child custody and the home unless the husband is able to present a preponderance of evidence that the custody arrangement is a hardship to him. The divorce act gives no such preferential presumption.
Accusations of abuse and demands for an order of protection are extremely useful in denying child custody to the respondent. The Illinois Domestic Violence Act includes "a rebuttable presumption that awarding physical care to respondent would NOT be in the minor child's best interest."
The Illinois Domestic Violence Act requires that a petition for an order of protection be expedited, and judges typically allot only 15 or 20 minutes to each case, which is not enough time to hear all the relevant evidence. Resolving a custody decision in a divorce proceeding usually requires many months.
The Illinois Bar article concludes: "If a parent is willing to abuse the system, it is unlikely the trial court could discover (her) improper motives in an Order of Protection hearing."
Under the divorce law, a parent is entitled to "reasonable visitation rights." But he loses those rights in an order of protection hearing under the Illinois Domestic Violence Act because the standards of evidence do not apply and the court has "wide discretion to restrict visitation."
The greatest potential for abuse of the system is that a petitioner can circumvent the divorce law and thereby restrict visitation by the other parent. The longer a parent is able to retain temporary custody, the greater her opportunity to obtain permanent custody.
The use of orders of Protection is a "high stakes matter," not only because it can irrevocably affect the lives of the children, but because violating an order of protection is a crime for which the respondent can be jailed.
The law journal's advice to lawyers on how to prevent their clients from being railroaded as a victim of order of protection is pretty pathetic: "spend time and money."
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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