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May 15, 2017

Domestic Violence and Orders of Protection

domestic violence and orders of protectionO’Dekirk Allred and Associates in Joliet knows how important it is that you understand domestic violence and orders of protection in Illinois. If you are involved in a case involving these issues, we can help whether you’re facing a threatening situation or have an order of protection filed against you. During an initial consultation with us, we’ll help you understand the laws, as well as provide information regarding moving forward with our firm as your legal representation.

Legal Definition of Domestic Violence in Illinois

The State of Illinois defines the five types of domestic violence as: physical abuse, harassment, intimidation of a dependent, interference with personal liberty, and willful deprivation. Knowing the definitions of each type will help you understand if your situation may fit one or more of these categories. If you are uncertain, seeking legal assistance is a wise choice both for guidance and help.

  1. Physical abuse: This includes sexual abuse, physical abuse, confinement, and restraint. Physical abuse also encompasses actions that create a risk of physical and immediate harm as well as unnecessary, repeated, and purposeful sleep deprivation.
  2. Harassment: Necessary behavior that results in emotional distress such as creating a disturbance, repeated phone calls, following you, and keeping you under surveillance. Harassment can occur at your home, work, or school. Other types of harassment include threatening, confinement, or restraining you. Hiding your child or threatening to take your child away can also be a form of harassment. If someone is accused of doing this, but was fleeing from a domestically violent situation, there is an exception for such a circumstance.
  3. Intimidating a dependent: If an abuser forces a dependent to participate in or watch physical force, confinement, or restraint of another person, this is considered to be intimidation of a dependent.
  4. Interfering with personal freedom: Forcing you, by threatening intimidation, violence, suicide, deprivation, or restraint, to do something you don’t want or not allowing you to do something you have a right to do.
  5. Purposeful deprivation: Putting a person at risk of emotional, physical, or mental harm by willfully denying medical care, shelter, food, medication, or other necessary help.
 
Orders of Protection

If you or a loved one is experiencing domestic violence, there are several types of protection orders available. Orders of protection provide a legal safeguard from a household or family member who has committed domestic violence against you or a minor or dependent. Seek legal advice if you are uncertain which type you should pursue or if you need assistance.

Emergency Orders Emergency orders can be given by a judge based on just your testimony. In most situations, the abuser does not get any prior notice and is not required to be present in court for the order to be granted. These are granted if the harm you are trying to prevent would be likely to occur if the abuser were notified. To get an abuser out of your shared home, the judge must believe that the hardship to the abuser is outweighed by the immediate danger to you. The emergency order can allow you to obtain your personal property, if you have an immediate and pressing need, as part of this order or if the judge believes the abuser would likely get rid of the property once he or she discovered you were asking for it. Emergency orders can be filed on weekends, holidays, or even at night. The emergency order remains in effect until you can have a full hearing, often in 14-21 days, for a plenary order.

Interim Orders A full court hearing is not required for an interim order to be granted; however, the abuser must be notified of your court hearing date and the abuser or his or her lawyer must have made an appearance before the court. Interim orders can last for up to 30 days and are often used to fill the time between your emergency order and a plenary order.

Plenary Orders This type of order is good for up to two years and can be renewed as many times as is needed. A court hearing where both you and the abuser have an opportunity to present evidence is required. It is a good idea to have a lawyer present at plenary hearings, particularly if you suspect the abuser will bring a lawyer. Our lawyers here at O'Dekirk, Allred & Associates have represented both sides of plenary orders and are ready to take on your case.

Common Questions

Can an advocate come to court with me for support? In most cases, victims of abuse can use a domestic abuse advocate or lawyer to help you prepare your petition and you may have an advocate with you in court to confer with during your court hearing unless the judge does not allow it.

In which county am I allowed to file a protection order?

You may file for a protection order in the county you reside in, the county where the abuser resides, the county where the abuse took place or even where you are temporarily located. Filing in your temporary county is allowed if you left your home to avoid additional abuse and could not obtain safe temporary housing in the county of your residence.

If you are requesting the abuser be removed from your residence as part of your protection order, you can only file in the county of the residence or in a neighboring county or you must meet one of the following exceptions: you are filing for divorce and the order of protection; you have fled the county to avoid abuse and can only qualify for exclusive possession as part of an emergency order of protection.

Understanding the laws about domestic violence and orders of protection in Illinois can help you navigate your situation and ensure the best possible outcome. If you find yourself on either side of a domestic violence case and need legal assistance, advice, or support, contact O'Dekirk, Allred & Associates. We offer free consultations and if needed, thorough representation.

April 24, 2017

How to Get Your License Reinstated After a DUI in Illinois

How to Get Your License Reinstated After a DUI in IllinoisYou need to be able to drive, so if you want to know how to get your license reinstated after a DUI in Illinois, contact O’Dekirk, Allred and Associates in Joliet. Did you know in Illinois, if your driver’s license is revoked, there is no automatic reinstatement of your driving privileges? We understand the license reinstatement process and can help you get a restricted driver’s permit and then your driver’s license back.

If you are convicted of driving under the influence the Secretary of State is required to revoke your driver's license. Once your license is revoked, you can only get your license back through the Formal Administrative Hearing office at the Secretary of State.

The hearing process is not easy. You will be asked questions about your past and your DUI arrests as well as your current and past alcohol and drug usage. That’s why it helps to have one of our attorneys on your side.

At your hearing, you will be required to submit evaluations, treatment documents, even letters from witnesses who can attest to your character and/or behavior. The Secretary of State will look at your arrest reports, tickets, driving record, and court disposition sheets from your DUIs. You will be placed under oath and have to answer questions about what’s in these documents.

Formal and Informal Hearings

There are informal and formal hearings for license reinstatement. If you’ve only had one DUI, you can have an informal or a formal hearing, but if you’ve had two or more DUIs, or an offense involving a fatality, you must have a formal hearing. While each case is unique and laws may change, let’s take a look at some of the basics.

Basics of an Informal Hearing

Basics of a Formal Hearing

Risk Classification Levels

When it comes to how to get your license reinstated after a DUI in Illinois, these classification levels will have bearing on your hearing, including documentation required, and all steps you’ll need to take to be eligible to have your license reinstated in some format.

Level I Minimal Risk

Requirements

Level II Moderate Risk

Requirements

Level II Significant Risk

Requirements

Level III High Risk, Dependent

Requirements

Level III High-Risk, Non-Dependent

Requirements

Types of Restricted Driving Permits (RDP)

Instead of making your eligible to reinstate your license, the Secretary of State may issue you a restricted driving permit that allows you to drive certain places, including:

A driver's license revoked for a DUI makes daily living extremely difficult and can hamper both your family and work life. Let our attorneys at O’Dekirk, Allred and Associates in Joliet guide you through the process of how to get your license reinstated after a DUI in Illinois. We understand how important your driving rights are to you and will put you in the best position to succeed at your driver's license reinstatement hearing. Our goal is to get your life back on track.

March 28, 2017

Questions and Answers About Child Custody Law in Illinois

Questions and Answers About Child Custody Law in IllinoisDivorce and child custody are tough legal issues to go through for you and your family. Our attorneys at O’Dekirk, Allred and Associates in Joliet can discuss the important questions and answers about child custody law in Illinois and help you through the legal process.

Here are some commonly asked questions about child custody.

What happens if the parents live in different states or a parent has recently moved into or out of the state?

So that there won’t be conflicting custody opinions from courts in different states, the court that has jurisdiction will be decided by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law sets up the rules to determine what court will make the custody decision by deciding which state is the child's home state for custody matters and the court that will hear a custody case for that child. 

The Illinois divorce court has jurisdiction to hear a child custody case under these circumstances:

If you have questions about if your child custody case should be heard in Illinois or in another state, our attorneys can help you.

What things are considered in awarding child custody?

The court does not focus on who is the best parent, but instead makes a decision in the child's best interest, considering all relevant factors, including these and other considerations:

These factors and others go into the court’s decision for custody. One thing the court cannot consider is a parent’s conduct unless it affects that parent's relationship with the child. 

What types of custody arrangements are there?

In Illinois like other states, there is a difference between legal and physical custody. Physical custody is where the child lives. 

Legal custody gives the parent the right to make important decisions about raising the child, like the child’s school, health care, and religious training. The noncustodial parent can ask the court to specifically limit the custodian's authority if it’s in the best interest of the child. 

Are joint custody arrangements preferred? 

A court can give joint custody to both parents or sole custody to either. Unless these has been domestic violence, Illinois courts presume that the maximum involvement and cooperation of both parents in their child's physical and emotional well-being will be in a child’s best interest. 

Do parents have equal rights in a child custody decision?

Yes. Parents have equal rights to the custody of their children. A parent's fitness is only one element to be considered in determining what is in a child's best interest. 

How important is stability and continuity in a court's custody decision?

If the children are well-adjusted and the custody situation is working, a court will not want to disrupt it. The court takes into consideration the importance of maintaining stability and continuity in a young child's environment. On the other hand, courts will remove a child from an unstable environment if it believes the child is not thriving.

Do parent's psychological problems affect the custody decision?

Just because a parent has a mental illness, psychological problem, or substance abuse issue does not make them unfit for custody, but it may be a factor to be considered by the court in deciding the best interest of the child if it affects their ability to parent. Despite positive steps toward treatment, the court must consider what impact the parent's problems will have on the child. 

How does a parent's new spouse, live-in companion, or other person sharing the home impact a custody decision?

Another person living in the home may be a factor in the decision if there is a concern that they negatively affect the stability of the child's environment, or there are concerns with the mental condition and character of that person. If that person is a sex offender, the other parent must be notified.

Will siblings be kept together?

It is usually considered to be in the best interest to keep siblings together. Sometimes there are exceptions.

Can children voice an opinion in custody decisions?

Yes, but it is just one factor to consider. The court may put more weight on the choice of older children when it is based on sound reasoning, and relates to their best interests, like wanting to remain with friends, attend their school, and remain in the same place. 

Does spousal abuse affect the child custody decision?

In Illinois, if there has been ongoing abuse, the court does not need to presume that the involvement and cooperation of both parents in raising the child is in the child's best interest. On the other hand, the court doesn’t have to deny a parent’s custody based on spousal abuse.

Under what circumstances can you modify a custody decision?

There must be new or previously unknown facts justifying a change. A parent can ask a court to modify a custody order in these circumstances: when both parents agree to the change, when the child's present environment may seriously endanger the child's physical or mental health, or if at least two years have passed from date of the custody order, a change has happened in the circumstances of the child or parent(s), and a modification to the child custody order is required to serve the best interest of the child. 

What if the child decides he or she wants to live with the other parent?

Even if the child's preference of who they want to live with changes, it still needs to be shown that the welfare of the child is adversely affected by the present custodial arrangements.

What happens if the custodial parent dies or is incarceration?

If the custodial parent dies, usually the other parent gains legal custody of the child. If the custodial parent is incarcerated, the noncustodial parent has a right to petition for a change of custody.

Can you get a custody modification based on a custodial parent's misconduct?

Yes, if the parent's behavior affects the child and seriously endangers the mental or emotional health of the child.

Can a custodial parent move out of state with the child?

A child can’t be removed permanently from the state without a court order. The custodial parent must prove that the move is in the best interest of the child.

Can a parent take a child out of Illinois temporarily?

Yes, but the parent responsible must tell the other parent, or the other parent's attorney, and give the telephone number and address where they can be reached while they are out of state, and the date when the child will return to Illinois.

Can a custodial parent move the child within the state?

A custodial parent may remove the children to another part of the state without a court order unless there is written agreement not to. This may, however, be grounds to petition for custody modification.

If you are considering a divorce and are worried about child custody issues, please contact our attorneys at O’Dekirk, Allred and Associates in Joliet. We can discuss the important questions and answers about child custody law in Illinois during a free initial consultation.

February 24, 2017

Understanding New Illinois Child Support Rules 2017

Understanding New Illinois Child Support Rules 2017It’s hard enough dealing with all the legal aspects of getting divorced, but determining child support can be confusing for most people. But just when you think you understand it, on July 1 the child support rules are going to change. If you need help understanding the effect of the new Illinois child support rules in 2017 our attorneys at O’Dekirk, Allred and Associates in Joliet can help you figure it all out and represent you as you go through this difficult process.

The passage of Public Act 99-764 will bring some significant changes in child support obligations for Illinois families. On August 12, 2016, Governor Rauner signed Illinois House Bill (HB) 3982, which amends the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Forty other states and now Illinois have adopted a new model for child support called income-shares. For Illinois, it will become effective on July 1, 2017. 

The Income-Shares Model

Let’s take a look at how this new model determines how child support obligations will be decided. The new Illinois child support rules are based on the idea that both parents have a duty to support the children and that the children should receive the same amount of support they would otherwise enjoy if both parents lived in the same house.

The purpose of the new rules is to create a state-wide standard of support based on both parents’ ability to pay. The goals are to make awards more equitable, make the court process more efficient, encourage settlements between the parents, give both parents a responsibility to support the child based on the children’s needs, and decide physical care arrangements of the children in determining child support.

For a long time, Illinois-based child support on the noncustodial parent’s net (after tax) income. It was calculated by percentages based on the number of children: 20%, 28%, 32%, etc. But now, starting in July 2017, Illinois child support will be a function of both parents’ incomes, using the income-shares model of calculating it.

The Illinois Department of Healthcare and Family Services (IDHS) will be developing worksheets to help in child support calculations. IDHS will create a table that shows the percentage of combined net income that parents living in the same household normally spend on their children. Using the benchmarks that IDHS will determine, each parent will be allocated a percentage of child support responsibility based on their portion of the combined net income.

There are three main factors that will be considered in the new income-shares model.

  1. Basic Child Support Obligation - As we said, this is based on a combined value of child support owed by both parents together. This is divided proportionally between the parents depending on their individual contribution to the combined household net income. It's calculated based on state guidelines, the Illinois schedule.

  2. Additional Expenses - There may be other costs that the court factors in on top of the basic child support obligation. These might be child care costs, extracurricular activities and medical or health insurance expenses.

  3. Parenting Time - Parenting time for each parent is a part of the new model. This will decide which parent gets child support. But we know that shared parenting situations may lead to some variations when calculating child support based on the new income shares formula.

Child Support Calculations

IDHS is in the process of creating official schedules, worksheets, and formulas to calculate child support obligations. While the specific order of operations for calculating child support hasn’t been finalized yet, there is a general formula:

(Basic Child Support Obligation x Percent Contributed to Combined Net Income)
+
(Additional Expenses x Percent Contributed to Combined Net Income)

Total Child Support Obligation Per Parent

Here’s an example using the income-shares formula.

Once the new law goes into effect, the Illinois schedule for basic child support obligation will be provided. At this point, we will be able to fully calculate the total child support obligation per parent, along with parenting time and additional expenses, at which point the parent with the greater responsibility pays the difference in support to the other parent.

Parenting Time

Another change to the child support statute that you may be interested in is the codification of parenting time as a consideration for determining child support. The current benchmark for shared custody is 146 nights or 40% of the time. If both parents have at least 146 nights, the court will now multiply the basic child support obligation by 1.5 and allocate it according to the percentage of overnights per parent.

This is a big difference in the way child support obligations will be determined. It’s possible this may add another layer to the child support tussle if parents try to negotiate parenting time as a way to get a more favorable child support obligation amount. This already happens and the new rules may make it even more of a factor in divorce proceedings when children are involved.

But there may be some unique situations that do not fit neatly into the formula. For example, how would the calculations work if one parent works days and the other parent works nights and they alternate caregiver functions to save child care costs? In that case, using overnights may not be an effective way to determine the calculations. How that would be handled is not clear.

What's Next

There are obviously still a lot of unanswered questions. But we’ll have to wait to see what IDHS comes up with before we can fully know how it will affect you. For example, it is still unknown how other expenses for the children will be allocated, such as child care, health insurance, extra-curricular, and school expenses. And we are yet to see the new definitions and clarifications regarding gross and net incomes and determining incomes for self-employed individuals.

When the new rules are released, we can tell you with more detail how they will impact child support and parenting time cases. Understanding the effect of the new Illinois Child Support rules in 2017 will be important for families trying to navigate through the legal process of a divorce. If you need help, our attorneys at O’Dekirk, Allred and Associates in Joliet will fight on your behalf. Call for a free initial consultation about your case.

January 11, 2017

27 New Laws for Illinois in 2017

27 New Laws for Illinois in 2017Laws change every year, including 27 new laws for Illinois in 2017. That’s why our attorneys at O’Dekirk, Allred and Associates in Joliet stay on top of those changes, whether it involves criminal charges, divorce, child support, custody, personal injury, residential real estate, driver's license reinstatement, or anything in between. Our firm is committed to fighting relentlessly for every client. Let’s take a look at 27 new laws that took effect on January 1 of this year. 

Honorary Highway Designation for Veterans

HB 4344-Senate Sponsor: Sen. Jennifer Bertino-Tarrant, D-Joliet

This law makes it easier for families of veterans killed in action to apply for an honorary designation on state roadways.

Password Privacy for Social Media

HB 4999-Senate Sponsor: Sen. Michael Connelly, R-Lisle

This law strengthens our current law which prohibits employers from accessing employees’ social media passwords.

Adoption of Police Dogs

SB 3129-Senate Sponsor: Sen. Tom Cullerton, D-Villa Park

This law gives police officers the first preference to adopt their police dogs. This is intended to ensure retiring police dogs can remain a part of the officer’s family.

Fines for Failure to Stop at Railroad Crossing

SB 2806-Senate Sponsor: Sen. Karen McConnaughay, R-St. Charles

This law increases fines for failing to stop at a railroad crossing when the warning gates and lights are activated.

Domestic Violence Training for Cosmetologists

HB 4264-Senate Sponsor-Sen. Bill Cunningham, D-Chicago

This law trains cosmetologists, nail technicians, hair braiders, and estheticians to look for signs of domestic violence. As part of their licensure renewal process, it requires them to take a one-hour continuing education class studying domestic violence and sexual assault.

Visitation Rights for Grandparents

HB 5656-Senate Sponsor: Sen. Pamela Althoff, R-Crystal Lake

This law gives grandparents and great-grandparents visitation with their grandkids who are in DCFS custody.

Tax on Feminine Products

SB 2746-Senate Sponsor: Sen. Melinda Bush, D-Grayslake

This law updates the Illinois tax codes to ensure that essential women’s health products like feminine pads and tampons are not charged the same sales tax as shampoo.

Increasing Eligibility for School Breakfast Program

SB 2393-Senate Sponsor: Sen. Don Harmon, D-Oak Park

This law creates a Breakfast after the Bell program which enables more students to be eligible for school breakfast.

Minors and Hunting Laws

SB 2410-Senate Sponsor: Sen. Neil Anderson, R-East Moline

This law lets minors trap game without taking the hunter training course if they have someone who is at least 21-years-old with them.

Fishing for Catfish

HB 5788-Senate Sponsor: Sen. David Luechtefeld, R-Okawville

The law allows people fishing to use a pitchfork, underwater spear gun, or a bow and arrow to catch catfish.

Access and Training for Epinephrine

HB 4462-Senate Sponsor: Sen. Chris Nybo, R-Elmhurst

This law creates increased access and training for the use of epinephrine auto-injectors.

Lead Levels

SB 2300-Senate Sponsor: Sen. Donne Trotter, D-Chicago

This law prevents the release or sale of properties with high lead levels until it’s mitigated and the property is safe. Older homes are more likely to contain lead and children are more susceptible to poisoning.

Birth Control Coverage

HB 5576- Senate Sponsor: Sen. Toi Hutchinson, D-Steger

This law makes a seamless process for all women to access birth control without additional costs by making Illinois insurance companies provide coverage for almost all FDA-approved contraceptive choices. Insurance companies must cover up to 12 months of contraceptives at a time.

Lobbying Groups and Taxpayer-Funded Pensions.

HB 4259-Senate Sponsor: Sen. Jennifer Bertino-Tarrant, D-Joliet

This law makes lobbying groups ineligible to receive taxpayer-funded pensions.

Legal Counsel for Minors Charged with Murder

SB 2370-Senate Sponsor: Sen. Patricia Van Pelt, D-Chicago

This law requires legal counsel during the interrogation of minors who are under the age of 15 and charged with murder.

Forbids Medical Providers Refusing Treatments for Religious Objections

SB 1564-Senate Sponsor: Sen. Daniel Biss, D-Evanston

This law updates the Illinois’ Health Care Right of Conscience law, which forbids medical providers from refusing certain medical treatments based on religious objections. Under this new law, medical patients and women in particular, will be better informed about their medical care.

Sexual Assault Crimes Prosecution

SB 3096-Senate Sponsor: Sen. Scott Bennett, D-Chicago

This law improves and increases reporting, investigation, and prosecution of sexual assault crimes in Illinois. It provides a longer time for victims to request a rape kit, speeds up forensic testing, and requires more detailed reporting of sexual assault cases by law enforcement.

Flexibility in Employee Sick Time

HB 6162-Senate Sponsor: Sen. Jacqueline Y. Collins, D-Chicago

This law makes employers give their workers greater flexibility in using their sick time. A company giving sick leave to employees must allow them to use up to half of their allotted time to attend to the medical needs of family members.

Video Recording Allowed

SB 629- Senate Sponsor: Sen. Daniel Biss, D-Evanston

This law lets vehicles that transport people or goods on a contractual basis to have a video recorder operating, but they must post a notice letting passengers know their conversations may be recorded.

Prohibiting Non-Compete Agreements

SB 3163- Senate Sponsor: Sen. Patricia Van Pelt, D-Chicago

This law prevents any company from asking a worker paid less than $13.50 an hour to sign a non-compete agreement.

Excused from School to Play Taps

HB 4432- Senate Sponsor: Sen. Chuck Weaver, R-Peoria

This law excuses students from school to play Taps at a military funeral.

Probation for Non-Violent Offenders

SB 3164-Senate Sponsor: Sen. Michael Connelly, R-Lisle

This law gives more flexibility in granting probation for certain non-violent offenders.

No Bath Salts

SB 210-Senate Sponsor: Sen. Andy Manar, D-Bunker Hill

This law stops retailers from selling the type of drug known as bath salts.

Court Closed Circuit TV for Children Testifying

SB 2880-Senate Sponsor: Sen. Michael Connelly, R-Lisle

This law lets child victims of battery or domestic abuse testify using closed circuit television, instead of being in the courtroom.

Cash to Post Bail

SB 2907-Senate Sponsor: Sen. Steve Stadelman, D-Rockford

This law makes law enforcement officials accept cash to post bail. This law was in response to a credit card machine malfunction at a county jail keeping a man locked up over a weekend for a minor offense.

If you have any questions about these 27 new laws for Illinois in 2017 or any legal concerns, contact our attorneys at O’Dekirk, Allred and Associates in Joliet who have experience and extensive knowledge. We specialize in criminal cases, divorce, child support, custody, personal injury, residential real estate, driver's license reinstatement, and everything in between. We will vigorously fight on your behalf. Contact us today so we can discuss your specific legal needs.

 

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