Last week, the Young Professionals Boards of LAF and the Family Defense Center (FDC) co-hosted a panel discussion on domestic violence (DV) and family law at the University of Chicago Law School. Moderated by FDC Staff Attorney Líadan Donnelly, the panel included LAF Staff Attorney Teresa Sullivan, former LAF attorney Elise Tincher who now works as Chicago Pro Bono Counsel at Kirkland & Ellis, and Ashley Parr, an associate at Barnes & Thornburg who recently represented a survivor of domestic violence in an important pro bono case with FDC.
Ashley’s client was a young mother and survivor of DV charged with neglect for endangering her child by being in an abusive relationship. Their child had never been subjected to his abuse, but the Department of Child and Family Services (DCFS) found both parents equally responsible for creating a dangerous environment and charged them both with neglect. Ashley and FDC got involved and represented the mother in her appeals hearing. “DCFS argued their neglect finding was appropriate because she didn’t move out immediately, didn’t do enough to keep her child safe,” Ashley explains. But she had been looking for work, calling shelters, going to police stations to get information on obtaining an Order of Protection—all of which are measures she took to keep her child safe. “Their finding of neglect would just ensure she has a more difficult time providing for her child on her own,” says Ashley. The judge agreed, overturning DCFS’ finding of neglect and removing it from the young mom’s record. In her decision, the judge incorporated many of the actions their client took that Ashley’s team identified as precautionary measures, meaning survivors blamed for neglect can rely on them as evidence in future cases.
For most people with any understanding of DV issues, punishing the survivor for not being able to break free from abuse seems entirely backwards. “Something I hear a lot from clients is, ‘I was so happy when DCFS showed up at my door—I thought they were going to help me. But I’m never calling the police again because now I might lose custody of my kids’,” Líadan says. “If the judge doesn’t understand the dynamics of DV and the fact that it’s a cycle, they might say, ‘you should have left immediately’ or you should have done this or that—which is we we’re trying more and more to bring in DV experts who can explain these dynamics to the judges.”
That’s why private firms, legal aid organizations, and advocacy groups have been on the front lines fighting to change how we protect survivors. In fact, Illinois recently replaced a DCFS rule known as Allegation 60, which criminalized survivors to an even greater extent. Kirkland & Ellis was one group at the helm of that advocacy work. “We had close to 50 of our attorneys from 7 different offices working on a 50-state survey to assist with changing Allegation 60 and getting better support for survivors of DV through the DCFS process,” says Elise. The new rule took effect in 2014 and requires DCFS to demonstrate that a parent blatantly disregarded their duty to protect their child by failing to take “reasonable precautionary measures,” like those that Ashley’s client took while she was fighting to break free from abuse.
And while it’s easy to forget, the Illinois Domestic Violence Act is actually one of best DV laws in the country—it provides survivors exclusive possession of their residence and charges police officers with an “affirmative duty” to help them when presented with domestic violence situations. In fact, LAF recently filed an amicus brief for a case in which police officers failed to carry out that duty when a victim’s son called the police for help. “All the police did was ask one question: are you scared? She didn’t respond, so they didn’t offer to take her to get an OP or connect her with any resources,” Teresa explains. The trial court essentially held that because the son didn’t use the magic words ‘domestic violence,’ police didn’t have an affirmative duty to offer her help. “But that affirmative duty is set up because DV victims tend not to self-identify. They often don’t affirmatively seek help,” Teresa says. “We think the law is set up appropriately but are advocating it be applied more universally, to help victims and survivors get the resources they need.”