In the November 2007 issue of the Illinois Bar Journal, Scott A. Lerner, Esq., takes a critical look at the Illinois Domestic Violence Act (DVA) in his article “Sword or Shield: Combating Orders-of-Protection Abuse in Divorce” ( http://www.isba.org/IBJ/nov07lj/590%20Family%20Law.htm).

“There’s no question that victims need protection from abusers,” he writes. “But not all parties to divorce are above using OPs [orders-of-protection] not for their intended purpose but solely to gain advantage in a dissolution.” And “the greatest potential for abuse of the system,” in Lerner’s opinion, “is in visitation.”

As Lerner points out, “It is far easier to restrict visitation via an order of protection then by seeking the same relief under the IMDMA [the Illinois Marriage and Dissolution of Marriage Act]. Under the IMDMA, ‘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.’”

Under the DVA, however, “the trial court in an order of protection hearing has wide discretion to restrict visitation,” as “the serious-endangerment standard does not apply to the restriction of visitation under an order of protection.” Lerner’s opines: “This is an invitation for parents to use the DVA to circumvent the IMDMA.”

Lerner’s advise to defendants facing an order-of-protection-take the threat very seriously and fight it with everything you can afford-is sound, but unfortunately putting on a great defense is all for naught if the game is fixed, a possibility he only hints at (“Judges, certainly, have a responsibility to act as gatekeepers by making sure they do not grant an order of protection except to protect the petitioner or the children…. Still, abuse will happen.”).

The fact that the Illinois Bar Journal is addressing order-of-protection abuse is a very positive sign. Slowly but surely the word is getting out about the potential for abuse of domestic violence laws. It’s only a matter of time before legislatures take steps to reform a system out of control, and limit restraining order protection to actual victims, not those looking for leverage in a divorce.

Phyllis Schlafly provides a nice summary of the article in “Feminist Abuse of Domestic Violence Laws” ( http://theconservativevoice.com/articles/article.html?id=29491).

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Date of RADAR Release: December 4, 2007

R.A.D.A.R. – Respecting Accuracy in Domestic Abuse Reporting – is a non-profit, non-partisan organization of men and women working to improve the effectiveness of our nation’s approach to solving domestic violence. http://www.mediaradar.org.