Question:
I was served with an order of protection based on nothing but lies. We had a verbal argument with my father as a witness, and an hour and a half later I had two police officers at my door.
No charges were filed, but I am currently not able to see my two little girls (7 and 3 years old) that I have seen or talked to every day since the day they were born.
I have no money to hire an attorney. What would you recommend I do to get my children back in my life?
Answer:
Your question covers several different possible legal scenarios.
You advise that the police arrived and no charges were filed. The failure of the police to pursue criminal charges is positive, but does not directly affect the order of protection issue, as the order of protection is a civil matter governed by a less stringent standard of proof than criminal matters.
An emergency order of protection can usually be obtained based solely on one person’s testimony, but the court sets a second hearing date in order to get the full story from both parties within a short time of the emergency order – such as 7 to 30 days. If you have already appeared before a judge and told your side and the judge entered a permanent order keeping you from your children, you need to hire an attorney to seek to re-open the case. If you have not had the hearing on the permanent order, you should have your father present (and any other witnesses) to testify and having an attorney is strongly advised to address the evidence issues which arise in such cases.
You do not advise who obtained the order of protection and whether the allegations included claims as to harm to the children. An order of protection case usually is only concerned with protecting people from immediate harm, not addressing the long term custody issues. Assuming the mother (or other legal guardian) of the children obtained the order of protection and asserted harm to the children, you may need to proceed with a family law case to address your permanent custody and visitation rights. The order of protection should then be consolidated with the family law case to provide a comprehensive review of the best interests of the children. The family court can then decide how best to resolve any issues with your involvement with your children raised by the order of protection complaint.
Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.
Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.
DUI Divorce
When evaluating child custody issues, clients may need to separate the considerations as to the issue of decision making authority (legal custody) of each parent from the issue of the time each parent spends with the children (physical custody). The factual issues which impact whether both parents can cooperate on decision making may be different then the circumstances affecting the schedule of the time each parent spends with the children.
For example, the facts surrounding her DUI convictions may not have much bearing on her current ability to cooperate in joint decision making, but may demonstrate problems for physical custody such as your priorities of social life/drinking versus children, your poor judgment as evidenced by driving while intoxicated, and perhaps concerns as to you driving with the children.
The issues as to physical custody schedules include the home environments each parent will provide, the schedules of the parents and the children with regard to assuring the children are properly supervised and prepared for school, and the abilities of each parent to provide the appropriate parenting during their period of physical custody. As noted, your DUI history may have some bearing on these issues.
You should consult an experienced domestic litigation firm, such as Cordell & Cordell, to review how your history may influence your case.
I need to know how to get my children back after i had a dwi?