How Does Domestic Violence Affect Child Custody?

child custody, domestic violence, Illinois divorce attorneysEnding a marriage through divorce is a difficult process, and is filled with many mixed emotions. The process is made more complicated when children are involved, particularly when one parent has been accused or previously convicted of domestic violence. The existence of domestic violence raises several issues that the court may have to address.

What is Domestic Violence?

Under the Illinois Domestic Violence Act (IDVA), domestic violence is defined as physical abuse, harassment, forcing a dependent to witness physical abuse of another person, interference with personal liberty, or willfully depriving a person of necessary items, such as medication, medical care, shelter, or food. Physical abuse includes sexual abuse as well as any of the following:

  1. Knowing or reckless use of physical force, or confinement or restraint;
  2. Unnecessary sleep deprivation; or
  3. Conduct that creates an immediate risk of harm.

Harassment is defined as knowing conduct not necessary to accomplish a reasonable purpose that would and does cause emotional distress in a reasonable person. The following are presumed to cause emotional distress:

  1. Creating a disturbance at a person's place of employment or school;
  2. Repeatedly calling a person at work or at home;
  3. Repeatedly following a person in public;
  4. Repeatedly keeping a person under surveillance;
  5. Improperly keeping a minor child from a person with legal rights to the child; and
  6. Threatening physical force, or confinement or restraint.

Domestic Violence and Child Custody

During a divorce proceeding, the court will determine custody based on what is the in the best interests of the child. Pursuant to #602 of the Illinois Marriage and Dissolution Act, the court uses several factors in making this determination, including, but not limited to:

  1. The use or threat of use of physical violence by the child's potential guardian, whether against the child or another person;
  2. The occurrence of ongoing or repeated abuse as defined by the IDVA; and
  3. Whether either parent is a sex offender.

A presumption exists that the maximum involvement and cooperation of both parents is in the best interest of the child. This presumption is lost if the court finds the occurrence of ongoing abuse as defined by the IDVA. In such a case, the court may deny visitation rights if it would “endanger seriously the child's physical, mental, moral, or emotional health.” If visitation rights are granted, the court may order the street address of the custodial parent to not be disclosed if it is found that the physical, mental, or emotional health of that parent or a minor child would be seriously endangered. Under these circumstances, the court will require the parents to agree to an alternative arrangement to accommodate visitation by the non-custodial parent. Some of the alternatives include visitation at the residence of another person or at a local public or private facility. The court may also grant visitation on the condition that is be supervised.

Illinois Divorce Attorneys

The ending of a marriage is difficult for all people involved. Our skilled Illinois family law attorneys have the experience and knowledge necessary to help you with all aspects of a divorce proceeding. Contact us today at 630-665-7300 and allow us to help you protect your rights.

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In honor of the passing of our founder, Joseph F. Mirabella, Jr., our offices are closed Friday, January 31, 2020.I Agree