How Domestic Violence Affects Child Custody in Illinois

Learn how domestic violence impacts child custody rights in Illinois.

By , Attorney · Harvard Law School
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Domestic violence causes harm to thousands of Illinois families each year. The state legislature believes that domestic violence promotes a pattern of escalating violence and creates an emotional atmosphere that is not healthy for childhood development. Because of this, Illinois courts pay special attention to claims of domestic violence when deciding child custody.

This article explains how Illinois defines domestic violence and how a history of abuse affects custody decisions. If you have additional questions after reading this article, you should consult a local family law attorney for help.

Child Custody in Illinois

In Illinois custody cases, the court must decide both "legal custody," or which parent has the responsibility to make major decisions for the child, and "physical custody," or the child's legal residence and visitation schedule with each parent.

Illinois judges can consider all of the following factors when deciding child custody:

  • the child's parents' wishes
  • the child's wishes
  • the child's relationship with his or her parents, siblings, and other people that affect the child's best interest
  • the child's adjustment to his or her home, school, and community
  • the parents' and child's physical and mental health
  • each parent's willingness to encourage the child's relationship with the other parent
  • whether either parent is a sex offender
  • a parent's physical violence towards the other parent or child, and
  • either parent's abuse of a child or any other person.

What is Domestic Violence?

Illinois defines domestic violence as injuring, threatening, harassing, or interfering with the personal freedom (such as kidnapping or unlawfully restraint) of another family or household member. Illinois defines family or household members as:

  • family members related by blood
  • people who are married or used to be married
  • people who live or used to live together
  • people who have a child in common, and
  • people who are dating or used to date.

What to Do When There is Domestic Violence

If you have just experienced domestic violence, or are in fear of immediate violence, you should dial 911 for assistance.

If you are not in immediate danger, but are in fear of future domestic violence, you should apply for an "Order of Protection." An order of protection is a court order that prohibits your abuser from further domestic violence, and has the ability to:

  • prohibit the abuser from entering your residence, even if it is owned or leased by the abuser
  • order the abuser to stay away from you, your school, place of employment, or other places where you are present
  • require the abuser to attend counseling with a social worker, psychologist, psychiatrist, family service agency, or other mental health worker
  • require the abuser to attend an alcohol or substance abuse program, if necessary
  • require the abuser to attend a program for domestic violence abusers
  • grant you custody of any children
  • order the abuser to pay child support
  • prohibit the abuser from owning a firearm
  • grant you possession of any personal property and/or pets, and
  • order any other provision the judge believes necessary to protect you and your household.

You can apply for an order of protection by visiting your county circuit court clerk's office. Ask the clerk for a "Verified Petition for an Emergency Order of Protection." After you complete the petition, you'll meet with a judge, who can issue the emergency order of protection if he or she believes you are in danger. The emergency order of protection lasts for 21 days.

The court will then schedule a hearing where you and your abuser must appear and testify about any domestic violence. If the court believes you are still in danger, the court will issue a "Plenary Order of Protection," which can last for up to two years. If your abuser violates the plenary order of protection, he or she can go to jail for up to 364 days and pay a fine.

The Illinois Department of Human Services has a 24-hour hotline you can call for advice if you or someone in your household is a victim of domestic violence. There are also domestic violence agencies you can contact in most Illinois cities.

Impact of Domestic Violence on Custody Decisions

Illinois custody cases involving domestic violence start with the presumption that it is in the child's best interest not to live or have visitation with the abusive parent. At the beginning of every custody case, each parent must notify the judge of any court proceedings involving either parent that relate to domestic violence, protective orders, or termination of parental rights.

The judge won't grant a parent visitation if that parent would endanger the child's physical, mental, moral, or emotional health. The court can restrict or deny the abuser visitation if the judge believes the abuser is likely to:

  • abuse or endanger the child during visitation
  • use visitation as an opportunity to harass you or someone in your household
  • improperly hide or refuse to return the child, or
  • act in a manner against the child's best interest.

The court won't grant an abusive parent visitation without ensuring that the other parent and child are adequately protected. If the judge does grant visitation to an abusive parent, he or she can put in place protections for you and your household. The court can take any of the following actions:

  • order that your address remain confidential from the other parent
  • prohibit the other parent from coming to your residence to meet the child for visitation
  • order that visitation take place at the residence of another person, or at a public or private facility, and
  • order that the abusive parent have "electronic communication" with the child rather than visitation, such as by telephone, email, instant message, video-conference, or other electronic means.

The court will never grant visitation to a parent who has been convicted of first-degree murder of the parent, grandparent, great-grandparent, or sibling of the child.

Supervised Visitation

Illinois courts can order supervised visitation to protect a child and the child's other parent from an abuser. The judge may order that visitation take place at a supervised visitation agency, and can order that the abuser pay the supervision fees.

The court may also allow visitation to be supervised by a friend or family member. If visitation is supervised by anyone other than a supervising agency, that person must file an affidavit with the court taking responsibility to supervise all visitation between the child and abusive parent.

Termination of Parental Rights

The court may terminate parental rights if it is in the child's best interest to end the child-parent relationship. For a judge to terminate a parent's parental rights, he or she must believe that parent is unfit to care for the child. The court will only terminate parental rights in rare cases when the abuse is extremely dangerous to the child's health and well-being, and is likely to continue.

If you have other questions about domestic violence and child custody in Illinois, contact a local family law attorney.

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