It is indisputable that many lives across the country are torn apart by domestic violence. Domestic violence has a terrible and lasting impact on every life it touches, whether the affected person is a witness or victim of the abuse. In the past, domestic violence often was treated as a private matter to be handled discreetly within the family. However, society’s willingness to overlook abuse in the home has changed. With the change in societal attitude have come corresponding changes in the law.
The unfortunate consequence of passing tougher laws to protect victims of domestic violence has been a willingness among some people to take advantage of these laws and use them for their own gain. This has been particularly true in cases of divorce and child custody disputes.
Factors Affecting Child Custody in Illinois
In Illinois, the court will base its custody decision on the best interests of the child. Thus, the court will review the individual circumstances of the parents and child and determine what living and visitation arrangement will best meet and further the child’s, rather than the parents’, interests.
Although Illinois family courts have the authority to consider any relevant factor in determining what is in the best interests of the child, they generally look at the following eight factors before making a custody decision:
- What are the parents’ wishes
- What are the child’s wishes
- What type of interactions and relationships does the child have with each parent, any siblings or other family members
- How well adjusted is the child to his or her home, school and community
- How is the mental and physical health of each parent and the child
- Has there been any physical violence or the potential for violence in the home, whether the violence was directed at the child or another person
- Are both parents willing and able to facilitate and encourage an ongoing relationship between the child and the other parent or is there animosity between the parents
- Have there been any occurrences of ongoing abuse, whether directed at the child or another person
There is a presumption that it is in the child’s best interests to maintain as much contact and interaction as possible with both parents. However, this presumption is abandoned in cases where claims of domestic abuse and/or sexual abuse have been made against one of the parents. In these cases, it is presumed not to be in the child’s best interest to live with the accused parent. Depending on the extent of the abuse alleged, the parent also may not be granted visitation rights, or the visitation may have to be supervised.
False Allegations of Abuse
Regrettably, many parents have discovered that alleging their soon-to-be ex-spouses abused them or the children is a surefire way to influence custody decisions. The Illinois Domestic Abuse Act (IDAA) – a law that was meant to protect victims of abuse – unwittingly has become a powerful tool for parents seeking to get custody of their children through whatever means necessary.
Under the IDAA, domestic abuse is defined quite liberally as any “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.” While what constitutes physical abuse is more straightforward, the definitions of harassment, intimidation and interference with personal liberty are very subjective and open-ended, giving the court wide latitude to determine what is and is not domestic abuse under state law.
If a person successfully claims domestic abuse under the IDAA, he or she can receive a protection order against the alleged abuser. The protection order will entitle the accuser to sole occupation of the home, if they share a residence. Protection orders have been successfully used in custody hearings to deprive parents of not only physical custody of their children, but also visitation rights.
This is not to say that every allegation of abuse is false or fabricated. Certainly, there are parents and children who have suffered violence and sexual abuse in their homes.
However, this does not mean that every claim of domestic violence is legitimate or that there may not be an ulterior motive for making the claim. When people use false allegations of domestic violence as a tool to get what they want, it undermines the protections of the legal system and delegitimizes the valid claims of true victims of abuse. It also has the unacceptable consequence of stripping good, well-meaning parents of their rights to be involved as much as possible in their children’s lives.
There are ways to fight against false allegations of domestic violence and protect your rights to be involved in your child’s life. From attacking claims of abuse to bringing witnesses to testify on your behalf to raising questions about the true motivations for the allegations, a claim of domestic abuse does not have to be the end of your fight to get custody of your children. For more information, contact an attorney experienced in handling child custody and domestic violence matters.