ARTICLES

Battered Woman and Child Support

Basics: In Illinois, violence is one form of abuse. Illinois also recognizes emotional and verbal abuse as well as harassment. If you are in an abusive relationship, there is plenty of help available. You can call our office to start. 

Emergency Contacts: Here some phone numbers for emergency services in cases of domestic violence. 24 HOUR HOTLINES are in BOLD.

Exclusive Use of the Home: One of the things a court can do is to award the abused spouse the exclusive use of the home. The abusive spouse if forced to move out the same day eliminating any domestic violence. If the abusive spouse ever returns to the home, simply call the police and the abuser goes to jail for violating the Order. There has to be a balancing test, however. That means that the court must be given evidence of the immediate danger of future abuse and the hardship to the Respondent of being dispossessed of the residence. The court must balance those two factors. If evidence is lacking, any issued Order of Protection is erroneous and should be reversed on appeal.¹

When The Defendant “Takes the Fifth”: The Constitution of the United States, and of the State of Illinois allow individuals the right to not be forced to give testimony against themselves. Even in civil cases, defendants can refuse to answer questions if the answer may lead to incriminating information.

When a defendant stands silent in a criminal case, the court is not allowed to infer anything from the refusal to answer. In a civil case, the court is allowed to draw a negative inference from the defendant’s silence. Without additional evidence, however, a court hearing a civil case may not issue an Order of Protection against a defendant exercising his or her Fifth Amendment right against self-incrimination. That is, an Order of Protection may not be issued based solely on the negative inference drawn from the defendant’s refusal to testify.²

Hearsay Statements of Minor Child: Sometimes it’s important to make a judge aware of a child’s statements.  But what can you do when the child is very young or, for some other reason, cannot or should not be put on the witness stand. Our system of justice requires that a party to a lawsuit be permitted to face accusers and opposing witnesses and to cross examine them. That’s not always possible when the accuser or witness is a young child.

Consider the case of the 3-year-old girl in the Flannery divorce.³ She told her mother, other family members, and a social worker that her father had sexually abused her. The mother sought to obtain an Order of Protection to keep the child away from the allegedly abusive father. The mother understood that a 3-year-old obviously is too young to take the witness stand and undergo a rigorous cross-examination. So, in court, the mother wanted to testify about what the child had told her – and she wanted her other family members and the social worker to testify about what the child had told them. But to permit the relatives to testify about the statements would violate the evidentiary rule against “hearsay” and deprive the father of any meaningful cross examination

Imagine you’re the judge... what do you? How do you balance the right of the accused to confront an accuser when the “accuser” is a 3-year-old girl? Should the “hearsay rule” be waived when the allegation is that a small child was sexually abused?

In that particular case, the trial court allowed the mother, the social worker, and the other relatives to all testify about what the little girl had told them. The court relied on one small sub-paragraph of Illinois law⁴ in making its decision. Unfortunately, it was the wrong law and was incorrectly applied. The Flannery case was reversed on appeal.

The out-of-court statements of minor children can be brought before the trial judge – without placing the child on the witness stand – but very strict standards must be satisfied. Those standards are clearly spelled out in Illinois law.

question
name
phone