Custody Help

[dadinIL]

My ex-wife has order of protection against her husband.   He is back living in the house with her and her children including my 8 year old son.

She has stated abuse has been ongoing for several years including abusive on her in front of the children.

I would like to challenge her for custody of my son and not subject him to domestic violence.

Anyone out there ever have a similar case?

Any Suggestions?

[MYSONSDAD]

He is in violation of the Order. Any chance of the cops catching him there? Wait until your sure, have someone, other then yourself, call it in.
How about her neighbors speaking on your behalf? Is your child included on the order?

I would also take a camera, take a picture of something, bank board, display the date and time, go directly by the house, take another picture of his being there, then go back to the bank and take a picture again of date and time displayed. When you have these pictures developed, do not allow them to cut the negatives. Keep it in one peice.

Do you have an attorney? If you know and can prove that man is still living there, I would think, you could refuse to allow your child to be subjected to a dangerous situation and keep him under an emergency order. But, ask an attorney on this first!

You could also check the local county court house, go into the public use computer and pull his name up. She may have signed a dismisal of the order. Get his background, it is all public record. Take paper and pen, many counties will not allow you to print this information out, just copy.

"Children learn what they live"

[MYSONSDAD]

LEA take Orders of Protection very seriously. Tell your son to call 911 if he feels at all in danger or in fear. Then tell him to call you immediately. You might even suggest he not call from the residence, call from a neighbors home.  With a child involved, DCFS will probably be called and you want to be present so that he will be placed with you until the investigation is complete. But again, check with an attorney educated in Family Law.

TGB's Links Pages - ILLINOIS
Links and resources for the State of Illinois.
URL: http://www.deltabravo.net/custody/tgbil.htm - size 3kb - 24 Oct 2003

http://www.deltabravo.net/cgi-bin/termination.cgi?state=il

This site is designed for women, the so-called 'only victims of DV.'  But you should be able to find information to help you.
http://www.ilcadv.org/legal/default.asp

http://www.ilcadv.org/legal/ActBooklet3.htm#bestinterest

7. Best interest of child (legal standard for child custody)
(750 ILCS 5/602)
    (a) The court shall determine custody in accordance with the best interest of the child.  The court shall consider all relevant factors including:

        (1) the wishes of the child's parent or parents as to his custody;

        (2) the wishes of the child as to his custodian;

        (3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

        (4) the child's adjustment to his home, school and community;

        (5) the mental and physical health of all individuals involved;

        (6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;

        (7) the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and

        (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

    In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.

    (b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.

    (c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child.  There shall be no presumption in favor of or against joint custody.

 

8. Joint custody
(750 ILCS 5/602.1)  
    (a) The dissolution of marriage, the declaration of invalidity of marriage, the legal separation of the parents, or the parents living separate and apart shall not diminish parental powers, rights, and responsibilities except as the court for good reason may determine under the standards of Section 602.

     (b) Upon the application of either or both parents, or upon its own motion, the court shall consider an award of joint custody.  Joint custody means custody determined pursuant to a Joint Parenting Agreement or a Joint  Parenting Order.  In such cases, the court shall initially request the parents to produce a Joint Parenting Agreement.  Such Agreement shall specify each parent's powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care, and religious training.  The Agreement shall further specify a procedure by which proposed changes, disputes and alleged breaches may be mediated or otherwise resolved and shall provide for a periodic review of its terms by the parents.  In producing a Joint Parenting Agreement, the parents shall be flexible in arriving at resolutions which further the policy of this State as expressed in Sections 102 and 602.  For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may order mediation and may direct that an investigation be conducted pursuant to the provisions of Section 605.  In the event the parents fail to produce a Joint Parenting Agreement, the court may enter an appropriate Joint Parenting Order under the standards of Section 602 which shall specify and contain the same elements as a Joint Parenting Agreement, or it may award sole custody under the standards of Sections 602, 607, and 608.

    (c) The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:

        (1) the ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child.  "Ability of the parents to cooperate" means the parents' capacity to substantially comply with a Joint Parenting Order.  The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child;

        (2) The residential circumstances of each parent; and

        (3) all other factors which may be relevant to the best interest of the child.

    (d) Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time.  The physical residence of the child in joint custodial situations shall be determined by:

        (1) express agreement of the parties; or

        (2) order of the court under the standards of this Section.

    (e) Notwithstanding any other provision of law, access to records and information pertaining to a child, including but not limited to medical, dental, child care and school records, shall not be denied to a parent for the reason that such parent is not the child's custodial parent; however, no parent shall have access to the school records of a child if the parent is prohibited by an order of protection from inspecting or obtaining such records pursuant to the Illinois Domestic Violence Act of 1986, as now or hereafter amended.

 

9. Visitation
(750 ILCS 5/607)  
    (a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral or emotional health.  If the custodian's street address is not identified, pursuant to Section 708, the court shall require the parties to identify reasonable alternative arrangements for visitation by a non-custodial parent, including but not limited to visitation of the minor child at the residence of another person or at a local public or private facility.

 

* * *

    (b)(2)(A) A petition for visitation privileges shall not be filed pursuant to this subsection (b) by the parents or grandparents of a putative father if the paternity of the putative father has not been legally established.

             (B) A petition for visitation privileges may not be filed under this subsection (b) if the child who is the subject of the grandparents' or great-grandparents' petition has been voluntarily surrendered by the parent or parents, except for a surrender to the Illinois Department of Children and Family Services or a foster care facility, or has been previously adopted by an individual or individuals who are not related to the biological parents of the child or is the subject of a pending adoption petition by an individual or individuals who are not related to the biological parents of the child.

    (b)(3) When one parent is deceased, the surviving parent shall not interfere with the visitation rights of the grandparents.

    (c) The court may modify an order granting or denying visitation rights of a parent whenever modification would serve the best interest of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral or emotional health.

 

* * *

    (d) If any court has entered an order prohibiting a non-custodial parent of a child from any contact with a child or restricting the non-custodial parent's contact with the child, the following provisions shall apply:

        (1) If an order has been entered granting visitation privileges with the child to a grandparent or great-grandparent who is related to the child through the non-custodial parent, the visitation privileges of the grandparent or great-grandparent may be revoked if:

            (i) a court has entered an order prohibiting the non-custodial parent from any contact with the child, and the grandparent or great-grandparent is found to have used his or her visitation privileges to facilitate contact between the child and the non-custodial parent; or

            (ii) a court has entered an order restricting the non-custodial parent's contact with the child, and the grandparent or great-grandparent is found to have used his or her visitation privileges to facilitate contact between the child and the non-custodial parent in a manner that violates the terms of the order restricting the non-custodial parent's contact with the child.

        Nothing in this subdivision (1) limits the authority of the court to enforce its orders in any manner permitted by law.

grandparent or great-grandparent who is related to the child through the non-custodial parent shall contain the following provision:

        "If the (grandparent or great-grandparent, whichever is applicable) who has been granted visitation privileges under this order uses the visitation privileges to facilitate contact between the child and the child's non-custodial parent, the visitation privileges granted under this order shall be permanently revoked."

            (2) Any order granting visitation privileges with the child to a (e) No parent, not granted custody of the child, or grandparent, or great-grandparent, or stepparent, or sibling of any minor child, convicted of any offense involving an illegal sex act perpetrated upon a victim less than 18 years of age including but not limited to offenses for violations of Article 12 of the Criminal Code of 1961, is entitled to visitation rights while incarcerated or while on parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for that offense, and upon discharge from incarceration for a misdemeanor offense or upon discharge from parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for a felony offense, visitation shall be denied until the person successfully completes a treatment program approved by the court.

    (f) Unless the court determines, after considering all relevant factors, including but not limited to those set forth in Section 602(a), that it would be in the best interests of the child to allow visitation, the court shall not enter an order providing visitation rights and pursuant to a motion to modify visitation shall revoke visitation rights previously granted to any person who would otherwise be entitled to petition for visitation rights under this Section who has been convicted of first degree murder of the parent, grandparent, great-grandparent, or sibling of the child who is the subject of the order.  Until an order is entered pursuant to this subsection, no person shall visit, with the child present, a person who has been convicted of first degree murder of the parent, grandparent, great-grandparent, or sibling of the child without the consent of the child's parent, other than a parent convicted of first degree murder as set forth herein, or legal guardian.

    (g) If an order has been entered limiting, for cause, a minor child's contact or visitation with a grandparent, great-grandparent, or sibling on the grounds that it was in the best interest of the child to do so, that order may be modified only upon a showing of a substantial change in circumstances occurring subsequent to the entry of the order with proof by clear and convincing evidence that modification is in the best interest of the minor child.

 

10. Enforcement of visitation orders; visitation abuse
(750 ILCS 5/607.1)  
    (a) The circuit court shall provide an expedited procedure for enforcement of court ordered visitation in cases of visitation abuse. Visitation abuse occurs when a party has willfully and without justification:  (1) denied another party visitation as set forth by the court; or (2) exercised his or her visitation rights in a manner that is harmful to the child or child's custodian.

* * *

    (c) After hearing all of the evidence, the court may order one or more of the following:

        (1) Modification of the visitation order to specifically outline periods of visitation or restrict visitation as provided by law.

        (2) Supervised visitation with a third party or public agency.

        (3) Make up visitation of the same time period, such as weekend for weekend, holiday for holiday.

        (4) Counseling or mediation, except in cases where there is evidence of domestic violence, as defined in Section 1 of the Domestic Violence Shelters Act, occurring between the parties.

        (5) Other appropriate relief deemed equitable.

    (d) Nothing contained in this Section shall be construed to limit the court's contempt power, except as provided in subsection (g) of this Section.

* * *

11. Leave to remove children (children being moved to another state)
(750 ILCS 5/609)  

    (a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children.  The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal.  When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.

    (b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal shall inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.

    The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection.

 
12. Modification of custody
(750 ILCS 5/610)  
    (a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.

    (b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child.  In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child's best interest.  The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.

    (c) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.

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Good luck!
"Children learn what they live"