Rule 23 order filed                    NO. 5-04-0724
December 16, 2005;
Motion to publish granted                  IN THE
January 31, 2006.
                            APPELLATE COURT OF ILLINOIS
                              FIFTH DISTRICT
___________________________________________________________________________
AMANDA E. SUTHERLIN,                    )     Appeal from the
                                        )     Circuit Court of
      Petitioner-Appellant,       )     Jackson County.
                                        )
v.                                      )     No. 04-OP-119
                                        )
HOWARD R. SUTHERLIN,                    )     Honorable
                                        )     Thomas H. Jones,
      Respondent-Appellee.              )     Judge, presiding.
__________________________________________________________________________

       JUSTICE WELCH delivered the opinion of the court:

       The issue before this court is whether the circuit court erred in failing to address the

issue of temporary child custody at a hearing for a plenary order of protection. Because we

find that at the hearing the circuit court erred in failing to consider the issue of temporary

child custody, we affirm in part and reverse in part and remand for further proceedings.
       On September 28, 2004, Amanda Sutherlin filed a petition seeking an order of

protection from her husband, Howard. In the petition, she alleged that she had been the
victim of multiple instances of abuse by her husband, the most recent having occurred on

September 26, 2004, when Howard allegedly hit her in the face while she was driving

Howard to work and their four-month-old son was in the car. Following a hearing at which
both parties were present, the circuit court entered an emergency order of protection.
       On October 19, 2004, a hearing was conducted for a plenary order of protection.

Apparently, Howard was in custody at the time of the hearing, resulting from Amanda's most
recent allegation of abuse. However, Howard was able to attend the hearing.

       At the hearing, the circuit court asked Howard if he would agree to extending the

                                              1
order of protection. Howard responded, "What about visitation rights for my son?" The

court then asked if there was a divorce case filed, and Amanda's counsel informed the court
that no divorce case had been filed. The circuit court then responded: "We do custody,
support[,] and visitation in domestic relations cases. Somebody needs to file one, it sounds

like."
         Amanda's counsel then pointed out to the court that the petition filed by Amanda
seeking the order of protection also requested the temporary custody of the parties' son and

that it was proper to address the issue of temporary custody at the hearing. The court
responded that it would not address the issue of temporary custody in light of the appellate

court's decision in Radke v. Radke, 349 Ill. App. 3d 264 (2004). Amanda's counsel argued

that the Radke case is distinguishable, but the circuit court responded: "As I told you before, I

disagree with [your interpretation of Radke]. *** If you want to panel the Fifth District
Appellate Court to tell me what to do, you are more than welcome."

         The circuit court then entered a plenary order of protection, finding that Howard had

abused Amanda. The circuit court did not grant Amanda the temporary custody of the

parties' minor son and did not address the issue of temporary custody. Amanda now appeals
the circuit court's refusal to address the issue of temporary custody.
         We begin by noting that Amanda's petition seeking an order of protection was filed

under the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS
60/214 (West 2004)). The primary purpose of the Domestic Violence Act is to aid the
victims of domestic violence and to prevent further abuse. See generally 750 ILCS 60/102

(West 2004). However, section 214(b)(6) of the Domestic Violence Act (750 ILCS
60/214(b)(6) (West 2004)) specifically provides that the circuit court may enter an award of

temporary child custody to the petitioner as a remedy. Section 214(b)(6) states:
                "(b) Remedies and standards. The remedies to be included in an order of

                                               2
       protection shall be determined in accordance with this Section and one of the

       following Sections, as appropriate: *** Section 219 on plenary orders. The remedies
       listed in this subsection shall be in addition to other civil or criminal remedies
       available to petitioner.

                                            ***
                     (6) Temporary legal custody. Award temporary legal custody to
              petitioner in accordance with this Section, the Illinois Marriage and

              Dissolution of Marriage Act, the Illinois Parentage Act of 1984, and this
              State's Uniform Child-Custody Jurisdiction and Enforcement Act." 750 ILCS

              60/214(b)(6) (West 2004).

This remedy of awarding temporary child custody furthers one of the express purposes of the

Domestic Violence Act, which is to "[s]upport the efforts of victims of domestic violence to
avoid further abuse by promptly entering and diligently enforcing court orders which prohibit

abuse and, when necessary, reduce the abuser's access to the victim and address any related

issues of child custody and economic support, so that victims are not trapped in abusive

situations by fear of retaliation, loss of a child, financial dependence, or loss of accessible
housing or services." (Emphasis added.) 750 ILCS 60/102(4) (West 2004). Although the
statute seems to expressly permit the circuit court to address the issue of temporary child

custody at the plenary hearing, the circuit court refused to do so in light of the appellate
court's decision in Radke. We now turn to Radke.
       In Radke, following the dissolution of the parties' marriage, the petitioner was granted

the residential custody of the parties' daughter, and the respondent was granted extensive
visitation. Sometime after the dissolution, the parties' daughter felt that she was subject to

too much visitation with the respondent, that she was not welcome in the respondent's home,
and that she should see the respondent only when she wanted to see him. Radke v. Radke,

                                              3
349 Ill. App. 3d 264, 265 (2004). The petitioner then filed a petition for an order of

protection on behalf of the parties' daughter, based on an incident that occurred while the
parties' daughter was with the respondent when the respondent would not allow the parties'
daughter to use the telephone to call the petitioner. The petition sought an order of protection

seeking to prohibit the respondent from "abusing, harassing[,] or intimidating" the parties'
daughter. Radke v. Radke, 349 Ill. App. 3d 264, 265 (2004).
       At a hearing on the petition, evidence was presented that the parties' daughter had

informed the respondent that she did not enjoy spending time with the respondent. The
respondent allegedly told her that she was insane and that he was going to take her to a

hospital. The parties' daughter then became afraid and attempted to call the petitioner on the

telephone. According to the parties' daughter, the respondent ripped the telephone off the

wall and told her that she was grounded. In addition to these allegations, there was an
allegation of a physical confrontation. Radke v. Radke, 349 Ill. App. 3d 264, 265 (2004).

       After hearing the evidence, the circuit court did not find that there had been any

physical abuse. However, the circuit court did find that because the respondent had denied

the parties' daughter access to the telephone to contact the petitioner, this constituted
harassment under the statute. As a result, the circuit court entered a plenary order of
protection that required the respondent to refrain from physical abuse, harassment,

intimidation, or interference with the personal liberty of the parties' daughter for two years.
The circuit court refused to address the issue of visitation, noting that the purpose of an order
of protection is to protect and not to effectuate changes in visitation. Radke v. Radke, 349 Ill.

App. 3d 264, 267 (2004).
       On review, the Third District Appellate Court in Radke reversed the decision of the

circuit court. In so doing, the Radke court held that the respondent's refusal to allow the
parties' daughter to use the telephone to contact the petitioner did not constitute harassment

                                               4
under the statute. Accordingly, the Radke court held that the order should be vacated. Radke

v. Radke, 349 Ill. App. 3d 264, 268 (2004).
       However, after making this finding that effectively resolved the appeal, the Radke
court went on to address an argument raised by the respondent that the order of protection

should also be vacated because any action to restrict visitation should be taken under the
existing dissolution action rather than through the process of obtaining an order of protection.
Radke v. Radke, 349 Ill. App. 3d 264, 268 (2004). The Radke court agreed with the

respondent and stated the following:
       "Obtaining an order of protection is not the proper procedure for resolving child

       custody or visitation issues. Those issues should be resolved under the Illinois

       Marriage and Dissolution of Marriage Act [citation]." Radke v. Radke, 349 Ill. App.

       3d 264, 269 (2004).
The Radke court then noted that the petitioner admitted that the reason she had obtained the

order of protection was to temporarily suspend visitation and that the parties' daughter had

sought the order so that she could see the respondent only when she wanted to see him.

Radke v. Radke, 349 Ill. App. 3d 264, 269 (2004). In light of this evidence, the Radke court
found that the petitioner had misused the Domestic Violence Act for the purpose of
attempting to alter the respondent's visitation and that the Domestic Violence Act is not the

appropriate vehicle for resolving that issue. Radke v. Radke, 349 Ill. App. 3d 264, 269
(2004).
       First, we believe that Radke is limited to its facts and distinguishable from the instant

case. Unlike Radke, in the instant case there is no dispute that Amanda was seeking an order
of protection based on abuse from Howard and not for the purpose of obtaining the

temporary custody of their son. In fact, the circuit court found that Howard had abused
Amanda, and that finding has not been challenged on appeal. Radke and the cases cited by

                                               5
Radke stand for the principle that visitation or custody issues should not be addressed at an

order-of-protection hearing where the primary objective of the party seeking an order of
protection is really to interfere with or change a child custody or visitation order. Radke v.
Radke, 349 Ill. App. 3d 264, 269 (2004); see also Wilson v. Jackson, 312 Ill. App. 3d 1156,

1164 (2000) (cited in Radke); In re Marriage of Gordon, 233 Ill. App. 3d 617, 626 (1992)
(cited in Radke). Because there is no evidence that Amanda had any motive other than trying
to protect herself from an abusive husband, there is no evidence of any ulterior motive.

       In her petition, Amanda set forth several allegations of physical abuse that had
occurred over the previous several months. The circuit court found that her petition was

supported by the evidence. In fact, at the first hearing, which occurred very shortly after the

alleged date of the most recent abuse, the circuit court made the comment, "[S]omebody is

going to have to figure out what caused her face to look the way it looks." The evidence
fully supports the conclusion that abuse occurred in the instant case. As mentioned above,

the Domestic Violence Act specifically provides that one of the remedies that a petitioner

may seek under the Domestic Violence Act is that of temporary child custody, so that

"victims are not trapped in abusive situations by fear of retaliation[] [or] loss of a child." 750
ILCS 60/102(4) (West 2004). The Domestic Violence Act also provides, in section 210,
which codifies "process," "Any action for an order of protection, whether commenced alone

or in conjunction with another proceeding, is a distinct cause of action ***." 750 ILCS
60/210(a) (West 2004). Because the action in the instant case was not a covert attempt to
interfere with child custody or visitation, because the finding of abuse was fully supported by

the record, and because the Domestic Violence Act specifically provides that the circuit court
may address the issue of temporary child custody, we believe the circuit court erred when it

refused to consider the issue of temporary child custody in this case.
       Accordingly, the order of the circuit court is affirmed in part and reversed in part, and

                                                6
the cause is remanded to the circuit court to address the issue of temporary child custody.



       Affirmed in part and reversed in part; cause remanded.



       DONOVAN and McGLYNN, JJ., concur.




                                             7
                                        NO. 5-04-0724
                                            IN THE

                              APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      AMANDA E. SUTHERLIN,                  )     Appeal from the
                                            )     Circuit Court of
           Petitioner-Appellant,       )    Jackson County.
                                            )
      v.                                    )     No. 04-OP-119
                                            )
      HOWARD R. SUTHERLIN,                  )     Honorable
                                            )     Thomas H. Jones,
           Respondent-Appellee.             )     Judge, presiding.
___________________________________________________________________________________
Rule 23 Order Filed:        December 16, 2005
Motion to Publish Granted:  January 31, 2006
Opinion Filed:              January 31, 2006
___________________________________________________________________________________

Justices:          Honorable Thomas M. Welch, J.
                 Honorable James K. Donovan, J., and
                 Honorable Stephen P. McGlynn, J.,
                 Concur
___________________________________________________________________________________

Attorney         Gail Thomas, SIUC Legal Clinic, Room 104 Lesar Law Building, Southern Illinois
for              University, Carbondale, IL 62901
Appellant
___________________________________________________________________________________
Attorney (Pro se) Howard R. Sutherlin, Reg. No.: B-84381, DuQuoin Impact Incarceration, 275 Agra
for               Land Acres, P.O. Box 470, DuQuoin, IL 62832
Appellee
___________________________________________________________________________________
