Steven W. v. Meeli W., 2021 IL App (2d) 200652 (“Steven W.”)
Typically, custody determinations should be addressed through the custody process set forth in the Marriage and Dissolution of Marriage Act and the Paternity Act (collectively, the “Custody Laws”). The Illinois Domestic Violence Act, however, authorizes a court to alter custody arrangements, if domestic violence involves the child or children. Reconciling these two sets of laws is extremely important. The Domestic Violence Act should not be used to circumnavigate Custody Laws. Orders of Protection that are granted under the Domestic Violence Act are blunt instruments that carry with them significant consequences for the affected parties. The Second District’s decision in Steven W. rejected a broad interpretation of the word “harassment” under the Domestic Violence Act in order to have this difficult custody matter addressed through the Custody Laws.
The Facts in Steven W. v. Meeli W
The parties were married in Estonia in 2012. That same year, they had their first child (J.W.). The parties and J.W. moved to Illinois in 2015. Their second child was born in Downers Grove in 2016. Between 2015 and 2020 the parties traveled to Estonia with the children on “several occasions.” During each of these trips, the parties purchased round-trip tickets.
In 2020, the parties again traveled to Estonia. As with their prior trips, the parties purchased round-trip tickets. What actually occurred in Estonia is not clear, and conflicting testimony was presented at the hearing on the petition for an order of protection. Steven testified, as did Meeli’s father (who lives in Estonia). Meeli did not return to Illinois, and she was not allowed to testify.
What is clear is that after Meeli, Steven and the children arrived in Estonia, Meeli did not want to return to Illinois. Steven claimed that after Meeli told him that she did not want to return to Illinois with the minor children, she and her parents prevented him from seeing the children. Meeli’s father testified, however, that Steven was able to see the children when he was in Estonia.
Meeli’s father (“Tarmo”) testified that it was understood before the parties arrived in Estonia that the children and Meeli would remain in Estonia. Tarmo also testified that Steven was supposed to complete his business in the United States and would then move back to Estonia as well.
Further, there was evidence that Steven had signed two documents that allegedly established residency for the minor children in Estonia. Steven claimed that the documents did not establish residency, but instead simply told the police where the children were staying in the event that they got lost. When Steven was asked if he signed the documents, he initially stated that the signature on the documents could be his.
The Second District’s Analysis
Steven filed a number of petitions, one of which was a petition for the entry of an order of protection. Steven alleged that Meeli wrongfully removed the children from Illinois because when the parties left for Estonia, Meeli had no intention of returning to Illinois. Steven alleged that Meeli’s conduct constituted “harassment” under Section 103(7)(v) of the Domestic Violence Act. The Circuit Court agreed and entered a plenary order of protection.
The Second District reversed the Circuit Court’s decision on the ground that Meeli’s conduct did not constitute “harassment” as that word is used in the Domestic Violence Act.
The Second District started its analysis by quoting the general definition of harassment by the Domestic Violence Act as “knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner.” Section 103(7)(v) of the Domestic Violence Act, on which Steven relied, further defines harassment in the context of concealing children or threatening to conceal children from one parent. Section 103(7)(v) defines four different types of conduct that can constitute harassment:
(a) “improperly concealing a minor child from petitioner,”
(b) “repeatedly threatening to improperly remove a minor child of petitioner from the jurisdiction or from the physical care of petitioner,”
(c) “repeatedly threatening to conceal a minor child from petitioner,” or
(d) “making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence.”
The Second District reversed the Circuit Court because there were no facts in the record to support a finding of harassment under Section 103(7)(v).
The Second District pointed out that with regard to the Domestic Violence Act, the critical issue was not whether Meeli wrongfully removed the children from Illinois. The Marriage and Dissolution of Marriage Act expressly deals with wrongful removal, and wrongful removal of a child from Illinois is not defined as per se abusive conduct under the Domestic Violence Act. The Second District pointed out that even if Meeli did wrongfully remove the children from Illinois, wrongfully removing a child from Illinois is not harassment under Section 103(7)(v).
While Steven argued that Meeli and her parents concealed the children from him, the Circuit Court rejected this claim. The Second District refused to overturn the Circuit Court’s finding with respect to concealment.
The remaining three types of harassment defined under Section 103(7)(v) require some type of threat. Steven testified that Meeli was reluctant to speak with him about the children after she expressed to him that she did not want to return to Illinois. Steven also testified that Meeli’s decision surprised him. The Second District found this to be inconsistent with a suggestion that Meeli threatened to conceal the children from him or to remove the children from Illinois.
The Second District, however, did not hold that wrongfully removing a child from Illinois could never support the entry of an order of protection. The Second District pointed out that Steven framed his case around Section 103(7)(v), which addresses harassment, and he did not raise any other provisions contained within the Domestic Violence Act. While the Second District did not close the door to such claims, it did not identify such a pathway either.
The Second District was troubled by what it saw as an effort by Steven to circumvent pending custody litigation between him and Meeli by invoking the Domestic Violence Act. The Second District stated that “Steven’s responses plainly show that the primary motivation behind his petition for a plenary order of protection was to obtain custody of the children” and that Steven “admitted that obtaining such an order was one step that he needed to take in order to obtain a favorable custody determination in Estonia.” The court concluded that “Steven has misused the Act, and such a misapplication should not be rewarded through the issuance of a plenary order of protection.”
Overall, Steven faced a difficult custody situation and seeking a plenary order of protection to help his custody case backfired. Plenary orders of protection are supposed to help the victims of actual domestic violence. They are not supposed to be used as an alternative to a proper custody determination. The Second District’s decision shows that interpreting the Domestic Violence Act too broadly can open the Act up to abuse by parents seeking short-cuts around the Custody Laws. Custody litigation would become chaotic if parents could easily use to the Domestic Violence Act whenever they thought the custody proceeding was not moving quickly enough or in the direction they wanted. Here the Second District addressed these concerns by pointing out the limited scope of Section 103(7)(v), while also leaving the door open for other plenary orders of protection in other removal situations.
Steven’s misuse of the Domestic Violence Act did not help him get the children back to Illinois, may have delayed his custody proceeding, increased the cost of the litigation, and the Second District’s decision may have actually harmed his efforts to get custody. The facts in Steven W showcase the strong temptation to invoke the Domestic Violence Act as a tool in a hotly contested custody case. Petitions seeking an order of protection will typically receive close scrutiny, and if they are not based on solid facts and legal principals, they can create problems for the party who filed the petition. At the Law Offices of George M. Sanders, we are committed to helping our clients navigate complex custody issues and fight for the best interests of their children. Don’t go at it alone, get in touch with us today.