Confronting an Order of Protection in the Wake of a Divorce

By Natalie Bower

Attorney, Cordell & Cordell, P.C.

Note: This is Part 2 of a two-part series on orders of protection. Click here to read Part 1.

In the midst of a contested divorce case, some people resort to using Orders of Protection as an expedited means of obtaining custody of the children or exclusive possession of the marital home while their divorce case is pending.

Having knowledge of what an Order of Protection entails and what it can potentially add to a contested custody case enables clients to be better prepared for addressing the Order of Protection itself and keeping focused on the bigger picture of what is truly at stake.

 

It is crucial for clients to remember that they cannot contact the person(s) protected by the Order of Protection as long as the Order is in place.  This means that the protected party does not have the authority to change the terms of the Order, and the parties cannot agree among themselves to have contact without the Order itself being dismissed or modified by the court.  The judge is the only person who has the authority to lift the Order of Protection or modify its terms.

When an Order of Protection is entered in conjunction with a custody or divorce case, many complications can arise.  If the Petition for an Order of Protection was filed on behalf of a minor child and the allegations involve the child, the Department of Children and Family Services (DCFS) may be alerted to the conduct and become involved by conducting an investigation.  Criminal charges may also be filed separately by the State’s attorney if the allegations rise to the level warranting criminal action.  It is beneficial to have your attorney present during an interview with DCFS because any statement made during an investigation by DCFS could potentially be used at a hearing.  Likewise, evidence and testimony introduced at a hearing can potentially be used at a later hearing (e.g., criminal hearing, subsequent Order of Protection hearing, custody hearing, etc.), making full preparation and disclosure key when discussing the Order of Protection and your options with your attorney.

When faced with an order of Protection or contemplating filing for an Order of Protection yourself, you may wish to review other alternatives available to you with your attorney.  A violation of an Order of Protection can have criminal repercussions.  Additionally, Orders of Protection can affect the defending party’s employment or military career.  Some family law courts have civil orders or injunctive orders that prohibit the parties from abusing, harassing, or otherwise threatening the other party or child.

Even prior to filing for divorce, remember to avoid any heated arguments and remove yourself from a situation that has the potential to become threatening or abusive.  In some cases, it may be helpful to have an adult witness present or even a police officer accompany you if you sense that a situation may escalate.  Being aware of the dangers of an Order of Protection and alert to any signs of heated confrontations throughout the divorce process can aid in defending an Order of Protection and ultimately prevent further complications with your pending divorce case.

 

Note: This is Part 2 of a two-part series on orders of protection. Click here to read Part 1.

 

Natalie Hinton is a Associate Attorney for the Edwardsville, Illinois office of Cordell & Cordell, P.C. She is licensed to practice in the state of Illinois. Ms. Hinton graduated from the University of Missouri-Columbia with dual degrees, a B.A. in Psychology and a B.A. in French. She received her Juris Doctor from The John Marshall Law School in Chicago.

Prior to pursuing her law degree Ms. Hinton worked as a Legal Assistant with Cordell & Cordell, P.C. in St. Louis, Missouri. It was during this time that she was inspired to attend law school.

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