Bischof Law Impedes Fathers’ Constitutional Rights

The “Cindy Bischof Law,” signed into law on August 4, 2008, by the Governor of Illinois, has the potential for victimizing innocent Illinois fathers falsely accused of domestic violence and may spread nationwide. The Bischof Law is a draconian measure that will allow judges to order anyone, mostly men and fathers, to wear a GPS tracking device if they are simply accused of violating an order of protection, even though they have not been convicted of the violation in a court after a full and complete trial. The law carries a presumption of guilt without the benefit of a trial, yet the foundation of our entire criminal justice system is based on a defendant being presumed innocent until proven guilty.

Perhaps such a drastic measure would be warranted if the men forced to wear the devices had meaningful and fair trials, and were found to be guilty of violent or dangerous crimes. However, the Bischof Law empowers judges with the ability to mandate the GPS tracking device on anyone who is accused of violating an order of protection without being convicted of the violation – and orders of protection are widely granted with minimal evidence of the potential for violence.

In the 1970’s, orders of protection (also commonly referred to as “restraining orders”) became a tool to help protect battered women. However, in the rush to protect the abused, the rights of the accused have been violated on a large scale.
According to the Justice Department, two million restraining orders are issued annually in the United States. The vast majority of these are related to domestic violence allegations, yet research shows that these orders often do not involve an accusation of actual violence. Usually all that is needed to obtain an order is a claim that the person to be restrained “acted in a way that scared me” or was “verbally abusive” – what’s known as “shout at your spouse, lose your house.”
Such orders are generally done ex parte, without the accused’s knowledge and with no opportunity afforded for him to defend himself. When an order is issued, the man is booted out of his own home and can even be jailed if he tries to contact his own children. In this way, divorcing women get their husbands out of their houses and position themselves as their children’s sole caretakers – which helps them win custody.

A restrained person does have the opportunity to contest the orders at a later hearing. However, these proceedings are often just a formality for which little time is generally allotted, and the evidence standard is low. Illinois orders of protection are granted for 21 days and can last up to two years.

Nationally, many family law experts are raising concerns about this violation of civil liberties. A recent article by two leaders of the State Bar of California’s Family Law Section asserts that “protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody…[the orders are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence.”

Such orders have become so commonplace that the Illinois Bar Journal calls them “part of the gamesmanship of divorce.”

Another problem with restraining orders is that it is common for men to violate them through no fault of their own. A man can accidently be in the same park or mall as his ex-wife/girlfriend, and the electronic monitoring device could lead to his arrest even if he never actually saw her. Some men have even been tricked into violating the orders by former spouses. The device will make this easier – a woman could call her estranged husband, tell him she needs him to come to her house because of a crisis with their children, and then have an electronic record of his violation.

Electronic tagging devices can be appropriate as a condition of parole or probation. The Cindy Bischof Law goes far beyond this, placing long-term electronic tags on men who have never been found guilty of a crime.

Immigrant Family Law Rights

By Shahzad R. Khan, Esq.

People come to America seeking new opportunities, new ways of life, and seeking new forms of freedoms. They come with a certain understanding of America. But, they do not understand everything. They come with certain misconceptions that they heard from family members or friends who had previously made the journey. But the most common thing about all immigrants is that they come to America, or to any other new country, with a fear of the unknown.

When the pilgrims left for the new world, they feared what lied ahead. The immigrants who passed through Ellis Island had those same fears. And immigrants arriving today through JFK, O’Hare, LAX or any of the hundreds of ports of entry share many of the same fears as the first immigrants of this country did.

I know these fears, because both my parents were immigrants. I also know these fears because my wife is an immigrant. There is a real fear of the unknown. There is a fear about asking questions. There is a fear about taking action. And there is a great fear that if I do take action, there will be a penalty. Sometimes people from all sorts of cultural communities remain silent about an injustice because of the fear of retribution and the fear that if I ask questions or raise questions that scrutiny will be focused on me and that somehow my immigration status will be jeopardized.

Whether you are a green card holder, a person with asylum status, a person with refugee status or no status at all you do still have rights. You have human rights and rights under the laws of this country and its 50 states.

In family law, the area that I practice in, you have the following legal rights regardless of your immigration status:

Obtaining a Divorce: A divorce is the process by which two people terminate a marriage. Whether you were married in India, Pakistan, Bangladesh or any other country in the world you can petition the court for a divorce in the State of Illinois or any of the other states where appropriate. Remember a person’s immigration status is usually irrelevant when seeking a divorce. There are technical issues that need to be considered before you file for divorce such as residency requirements for the individual state, issues pertaining to whether your current immigration status may be affected by divorce, and grounds necessary to dissolve the marriage. It is important that you consult an attorney before you make a decision to proceed in this direction.

Obtaining an Order of Protection: An Order of Protection is a court order that protects a person who has been abused physically, emotionally, or sexually by a family member, a former or current spouse or significant other or a member of the household. Orders of Protection are not only obtained for adults, but also for the protection of children. Again, no matter what your immigration status may be, there is no restriction in obtaining an order of protection for protection against domestic violence.

Paternity and Child Support: You have the right to determine whether you are the father of a minor child born out of wedlock. The process of determining fatherhood is done through the use of DNA testing of the mother, the alleged father and the child. If paternity is determined, meaning the alleged male is determined to be the father of the minor child, then the custodial parent of that child has the right to seek child support from the non-custodial parent. The non-custodial parent has the right to seek visitation, custody (joint or sole custody) to meet the best interests of the minor child. Again, no matter what your immigration status may be, there is no restriction on filing a petition to determine parentage and to establish parental rights.

Besides the rights stated above, there a numerous other rights that immigrants possess in not only family law but in other areas of law. The key here is to ask questions and not be afraid to ask for help. It is not what you know that can hurt you, but what you do not know. Therefore, study the legal system and educate yourself so you do not end up a target looking for an arrow. Should you need help in any family law matter or you just have some general questions, please contact Attorney Shahzad R. Khan at the Law Offices of Jeffery M. Leving, Ltd., to discuss your rights.