FAMILY LAW ISSUES RELATED

TO DOMESTIC VIOLENCE

Danielle Parisi Ruffatto

Director of Pro Bono and

Training

(312) 325-9160

druffatto@dvlcchicago.org

Brent Movitz

Supervising Attorney

Community Engagement

(312) 325-9162

bmovitz@dvlcchicago.org

DOMESTIC VIOLENCE LEGAL CLINIC

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 theIllinois 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

Divorce Cases

o Results in a “Dissolution of Marriage” that legal ends a marriage

o Addresses ALL things related to the marriage, including: custody, visitation, child support, maintenance/alimony, division of property and debt

o Arranged into 3 “Teams” and 8 Individual Calendars

Parentage Cases

o Encompass a variety of slightly different court actions

o Are usually filed when the parents are unmarried

o The court can address custody, visitation, child support, and related issues

o 7 individual calendars (and 1 hearing calendar)

DOMESTIC RELATIONS CASES

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 child-related 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 divorce2. Child custody and visitation3. Child support4. 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:

Bmovitz@dvlcchicago.org(312) 325-9162555 W Harrison St, Suite 1900Chicago, 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 ServicesP.O. Box 64629Chicago, IL 60664-0629

•Child support program services are free