How To Get Your Children Back In Juvenile or Family Court
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FEDERAL DEFINITION OF CHILD ABUSE AND NEGLECT
Federal legislation provides guidance to States by identifying a minimum set of acts or behaviors that define child abuse and neglect. The Federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C.A. § 5106g), as amended by the CAPTA Reauthorization Act of 2010, defines child abuse and neglect as, at minimum:
- “Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation”; or
- “An act or failure to act which presents an imminent risk of serious harm.”
This definition of child abuse and neglect refers specifically to parents and other caregivers. A “child” under this definition generally means a person who is younger than age 18 or who is not an emancipated minor.
While CAPTA provides definitions for sexual abuse and the special cases of neglect related to withholding or failing to provide medically indicated treatment, it does not provide specific definitions for other types of maltreatment such as physical abuse, neglect, or emotional abuse. While Federal legislation sets minimum standards for States that accept CAPTA funding, each State provides its own definitions of maltreatment within civil and criminal statutes.
Did you notice that Federal law states that in order for the state to take your child/ren…..the harm must have been SERIOUS or the harm coming soon must be SERIOUS. The minimum harm done, or will be done to your child/ren MUST be SERIOUS.
Illinois Definitions of Child Abuse and Neglect
Current Through February 2016
Physical Abuse
‘Abused child’ means a child whose parent, immediate family member, any person responsible for the child’s welfare, any individual residing in the same home as the child, or a paramour of the child’s parent:
- Inflicts, causes or allows to be inflicted, or creates a substantial risk of physical injury by other than accidental means that causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function
- Commits or allows to be committed an act or acts of torture upon the child
- Inflicts excessive corporal punishment
- Commits or allows to be committed the offense of female genital mutilation
- Causes a controlled substance to be sold, transferred, distributed, or given to the child under age 18, in violation of the Illinois Controlled Substances Act or Methamphetamine Control and Community Protection Act
- Commits or allows to be committed the offense of involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons, as defined in chapter 720, § 5/10-9, against the child
Neglect
‘Neglected child’ means any child who:
- Is not receiving proper or necessary nourishment or medically indicated treatment, including food or care, that is not provided solely on the basis of the present or anticipated mental or physical impairment as determined by a physician, or otherwise is not receiving the proper or necessary support or medical or other remedial care as necessary for a child’s well-being
- Is not receiving other care necessary for his or her well-being, including adequate food, clothing, and shelter
- Is subjected to an environment that is injurious insofar as:
- The child’s environment creates a likelihood of harm to the child’s health, physical well-being, or welfare.
- The likely harm to the child is the result of a blatant disregard of parent or caregiver responsibilities.
- Has been provided with interim crisis intervention services under chapter 705, § 405/3-5 and whose parent, guardian, or custodian refuses to permit the child to return home and no other living arrangement agreeable to the parent, guardian, or custodian can be made, and the parent, guardian, or custodian has not made any other appropriate living arrangement for the child
- Is a newborn infant whose blood, urine, or meconium contains any amount of a controlled substance or a metabolite thereof
Sexual Abuse/Exploitation
The term ‘abused child’ includes a child whose parent, immediate family member, person responsible for the child’s welfare, individual residing in the same home as the child, or paramour of the child’s parent commits or allows to be committed any sex offense against the child, as such sex offenses are defined in the Criminal Code of 2012 [chapter 720, § 5/1-1, et seq.] or in the Wrongs to Children Act [chapter 720, § 150/0.01, et seq.], and extending those definitions of sex offenses to include children younger than age 18.
Emotional Abuse
The term ‘abused child’ includes impairment or substantial risk of impairment to the child’s emotional health.
Abandonment
Citation: Comp. Stat. Ch. 325, § 5/3
The term ‘neglected child’ includes a child who is abandoned by his or her parents or other person responsible for the child’s welfare without a proper plan of care.
Standards for Reporting
Citation: Comp. Stat. Ch. 325, § 5/4
A report is required when a mandatory reporter has reasonable cause to believe a child known to them in their professional or official capacity may be an abused child or a neglected child.
Persons Responsible for the Child
A ‘person responsible for the child’s welfare’ includes:
- The child’s parent, guardian, foster parent, or relative caregiver
- Any person responsible for the child’s welfare in a public or private residential agency or institution
- Any person responsible for the child’s welfare within a public or private profit or not-for-profit child care facility
- Any other person responsible for the child’s welfare at the time of the alleged abuse or neglect, including any person that is the custodian of a child under age 18 who commits or allows to be committed against the child the offense of involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons for forced labor or services, as provided in chapter 720, § 5/10-9
- A person who came to know the child through an official capacity or position of trust, including but not limited to health-care professionals, educational personnel, recreational supervisors, members of the clergy, and volunteers or support personnel in any setting where children may be subject to abuse or neglect
Exceptions
A child shall not be considered abused or neglected if
- The child is a newborn who has been relinquished in accordance with the Abandoned Newborn Infant Protection Act.
- The presence of a controlled substance in a child or a newborn is the result of medical treatment.
- The child has been left in the care of an adult relative.
- The child’s parent relies on spiritual means through prayer for the treatment of disease.
- The child is not attending school as required by the School Act.
Definitions of Domestic Violence
Current Through August 2017
Defined in Domestic Violence Civil Laws
‘Abuse‘ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.
‘Domestic violence’ means abuse, as above.
‘Harassment‘ means knowing conduct that 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. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
- Creating a disturbance at the petitioner’s place of employment or school
- Repeatedly telephoning the petitioner’s place of employment, home, or residence
- Repeatedly following the petitioner about in a public place or places
- Repeatedly keeping the petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle, or other place occupied by the petitioner or by peering in the petitioner’s windows
- Improperly concealing a minor child from the petitioner, repeatedly threatening to improperly remove a minor child of the petitioner, repeatedly threatening to conceal a minor child from the petitioner, or 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
- Threatening physical force, confinement, or restraint on one or more occasions
‘Interference with personal liberty’ means committing or threatening physical abuse, harassment, intimidation, or willful deprivation so as to compel another to engage in conduct from which he or she has a right to abstain or to refrain from conduct in which he or she has a right to engage.
Defined in Child Abuse Reporting and Child Protection Laws
This issue is not addressed in the statutes reviewed.
Defined in Criminal Laws
A person commits ‘domestic battery’ if he or she intentionally or knowingly without legal justification by any means:
- Causes bodily harm to any family or household member
- Makes physical contact of an insulting or provoking nature with any family or household member
A person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm or permanent disability or disfigurement commits aggravated domestic battery. A person who, in committing a domestic battery, strangles another individual commits aggravated domestic battery. For the purposes of this subsection, ‘strangle’ means intentionally impeding the normal breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that individual or by blocking the nose or mouth of that individual.
‘Abuse,’ ‘domestic violence,’ and ‘harassment’ have the same meaning as defined in chapter 750, § 60/103, above.
Persons Included in the Definition
In civil and criminal law: ‘Family or household members’ include the following:
- Spouses, former spouses, parents, children, stepchildren, and other persons related by blood or by present or prior marriage
- Persons who share or formerly shared a common dwelling
- Persons who have or allegedly have a child in common
- Persons who share or allegedly share a blood relationship through a child
- Persons who have or have had a dating or engagement relationship
- Persons with disabilities and their personal assistants
- Caregivers, as defined in chapter 720, § 5/12-21 or § 5/12-4.4a
For purposes of this paragraph, neither a casual acquaintanceship nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute a dating relationship.
Child Witnesses to Domestic Violence
Current Through April 2016
Circumstances That Constitute Witnessing
In criminal law: For purposes of this section:
- ‘Child’ means a person under 18 years of age who is the defendant’s or victim’s child or stepchild or who is a minor child residing within or visiting the household of the defendant or victim.
- ‘In the presence of a child’ means in the physical presence of a child or knowing or having reason to know that a child is present and may see or hear an act constituting an offense.
Consequences
In addition to any other sentencing alternatives, a defendant who commits, in the presence of a child, a felony domestic battery, aggravated domestic battery, aggravated battery, unlawful restraint, or aggravated unlawful restraint against a family or household member shall be:
- Required to serve a mandatory minimum imprisonment of 10 days, perform 300 hours of community service, or both
- Liable for the cost of any counseling required for the child at the discretion of the court