Help with a divorce or custody case when there is abuse
Abuse changes how a divorce or parenting case is handled. It can lead to an order of protection, a decision about who lives in the home while the case is pending and limits on parenting time, and it shapes how the parenting plan is written. Chicago Family Attorneys LLC represents clients in these family cases in Chicago and Cook, DuPage, Lake and Will Counties.
The firm can work with you on:
- asking for an order of protection as part of the divorce, or responding to one;
- a temporary order about the home, support and a parenting schedule while the case is pending;
- a parenting plan with safer exchanges and, where the facts support it, restrictions on parenting time; and
- the rest of the divorce, including property, debts, maintenance and child support.
The firm practices family law only. If the same events led to a criminal charge, such as domestic battery, the criminal case is separate and needs a criminal defense lawyer. No lawyer can promise a particular result, and outcomes depend on the facts and the evidence.
Can I get an order of protection while my divorce is pending?
Yes. Under 750 ILCS 60/202(a)(2), a petition for an order of protection can be filed under the same case number as a pending divorce, and the Circuit Court of Cook County's Domestic Relations Division hears civil orders of protection filed in conjunction with a pending domestic relations case.
An order of protection can also be requested on its own, without a divorce. Illinois charges no clerk fee to file an order of protection petition and no sheriff fee to serve it (750 ILCS 60/202(b)).
The remedies a court can include, from stay away terms to possession of the home and temporary parenting terms, are listed in 750 ILCS 60/214. The firm's order of protection lawyer page explains the emergency, interim and plenary stages, and orders of protection in Illinois child custody cases covers how an order fits with a parenting case. For a request outside court hours, see emergency orders of protection after hours.
Who stays in the home during the divorce?
The court decides that question on request, and Illinois law provides two separate routes: a temporary order in the divorce case under 750 ILCS 5/501(c-2), or exclusive possession of the residence in an order of protection under 750 ILCS 60/214(b)(2).
In the divorce case
Under 750 ILCS 5/501(c-2), on a verified petition, the court may give one spouse exclusive possession of the marital residence while the case is pending only when the physical or mental well-being of either spouse or the children is jeopardized by both spouses living there. The order requires due notice and a full hearing, unless the court waives that requirement on good cause shown, and the court must balance the hardships to both spouses. The order does not affect either spouse's homestead estate in the property.
Under an order of protection
Under 750 ILCS 60/214(b)(2), an order of protection can bar the respondent from entering or staying in the petitioner's residence, even one the respondent owns or leases, if the petitioner has a right to live there. It does not change who owns the property, and the court is not limited by the 501(c-2) standard. When both spouses have a right to live in the home, the court balances the hardships. The statute presumes the balance favors the petitioner. The respondent can overcome that presumption only by showing, by a preponderance of the evidence, that the respondent's hardships substantially outweigh the hardships to the petitioner and to any minor child or dependent adult in the petitioner's care (750 ILCS 60/214(b)(2)(B)).
If the order gives the petitioner the home, the court may allow the respondent one visit, with an agreed adult or a law enforcement officer present, to collect clothing, medications and other items the court directs (750 ILCS 60/214(b)(3)(A)).
The two routes have different standards, and an order of protection carries other remedies as well, so ask which fits your facts before you file. See what a motion for temporary relief asks the court to do.
How does abuse affect parenting time and decision-making?
Abuse is one of the factors an Illinois court must consider when it allocates parenting time and decision-making, and it can lead the court to restrict a parent's time to protect a child.
In allocating parenting time, the court considers all relevant factors, including physical violence or the threat of physical violence by a parent directed against the child or another member of the child's household, and the occurrence of abuse against the child or another member of the child's household (750 ILCS 5/602.7(b)(11) and (14)). The factors for significant decision-making include physical violence or the threat of it by a parent directed against the child, and abuse against the child or another member of the child's household (750 ILCS 5/602.5(c)(12) and (13)).
Illinois presumes both parents are fit. The court does not restrict parenting time unless it finds, by a preponderance of the evidence, that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral or emotional health (750 ILCS 5/602.7(b)).
If the court finds after a hearing that a parent's conduct seriously endangered the child's mental, moral or physical health or significantly impaired the child's emotional development, it enters orders to protect the child. Under 750 ILCS 5/603.10(a), those orders can include:
- reducing, eliminating or otherwise adjusting the parent's decision-making responsibilities or parenting time;
- supervision, which can include continuing supervision by the Department of Children and Family Services;
- exchanges of the child through an intermediary or in a protected setting;
- limits on a parent's communication with or nearness to the other parent or the child; and
- completion of a treatment program for perpetrators of abuse.
When an order of protection addresses children
If an order of protection gives the petitioner physical care of a child or temporary decision-making, the court must restrict or deny the respondent's parenting time if it finds that the respondent has done, or is likely to do, any of these: abuse or endanger the child during parenting time; use parenting time to abuse or harass the petitioner or the petitioner's family or household members; improperly conceal or detain the child; or otherwise act against the child's best interests. Any parenting time it grants must be spelled out with dates and times or other specific conditions (750 ILCS 60/214(b)(7)).
If the court finds after a hearing that the respondent abused the child, the statute presumes that giving the respondent physical care or temporary significant decision-making would not be in the child's best interest, and the respondent can try to rebut that presumption (750 ILCS 60/214(b)(5) and (6)).
Evidence matters at each step: dated notes, messages, photos, police report numbers and any records connected to the events. The firm's child custody and emergency child custody pages explain the parenting case itself.
What is the dissolution action stay?
It is a set of restraints that Illinois Supreme Court Rule 101(e) requires every divorce summons to include, with a notice on the back of the summons that the stay is in effect once the summons is served.
The stay restrains both spouses from physically abusing, harassing, intimidating, striking or interfering with the personal liberty of the other spouse or either spouse's minor children, and from concealing a minor child from the child's other parent. A person who disobeys it may be held in contempt of court. The rule also says the stay does not make any remedy under the Illinois Domestic Violence Act unavailable, so an order of protection can still be requested while the stay is in place.
Addresses, mediation and relocation notices
Several parts of Illinois parenting law make room for safety concerns:
- At a minimum, a parenting plan must include the child's address for school enrollment, each parent's address, phone number and workplace, and a requirement of at least 60 days' written notice before a parent changes residence, with limited exceptions. That personal information is not required if there is evidence of, or the plan states, a history of domestic violence or abuse (750 ILCS 5/602.10(f)).
- The court orders mediation of parenting issues unless it determines that impediments to mediation exist (750 ILCS 5/602.10(c)). If there has been abuse, tell your lawyer and the court before mediation is scheduled.
- A parent who intends a relocation with a child, as Illinois law defines it, must give the other parent written notice, and the court may waive or seal some or all of the information in that notice if there is a history of domestic violence (750 ILCS 5/609.2(c)).
Raise these points when the parenting plan is being drafted, and bring any existing orders to the consultation.
Fees
Illinois charges no clerk fee to file an order of protection petition (750 ILCS 60/202(b)). Attorney fees depend on the help you need:
- Limited scope help: drafting from $500; one hearing appearance from $1,200.
- Full representation: an initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active.
Other court filing costs, service costs and the fees of outside professionals are separate; the client pays them and the firm does not advance them. Your fee and scope are confirmed in writing before you engage the firm. See order of protection lawyer cost in Chicago and the family law pricing overview.
Talk with a family law attorney
Consultations are by phone; a free weekend consultation is available by Zoom. If it is not safe for someone to see your messages or call history, tell us the safest number and time to reach you, and share the details of the abuse during the call rather than in the website's contact form.
To make the call useful, have ready:
- any summons, petition, order of protection and hearing notice;
- a dated list of incidents, with any police report numbers;
- messages, photos or records connected to those dates; and
- any existing divorce, parenting or support orders.
Call 312-965-5618 or book a consultation online. If you need an order of protection outside court hours, see emergency orders of protection after hours.
If you are in danger now
Call 911 if you are in immediate danger.
The Illinois Domestic Violence Hotline is (877) 863-6338, or TTY (877) 863-6339. It is a free, confidential, 24-hour line for support, information and referrals, and you do not need to leave your home to get help from it.
The National Domestic Violence Hotline is (800) 799-7233, or TTY (800) 787-3224.