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THIRD DISTRICT

JUSTICE SLATER delivered the opinion of the court:

Kathryn was granted residential custody of the parties' 12-year-old daughter, Laine Radke, following the dissolution of theirmarriage. Ross was granted extensive visitation, including the firstweekend of each month and every week from Tuesday through Thursday.

Kathryn filed a petition for an order of protection on behalfof Laine on January 9, 2003. Kathryn sought, among other things, anorder prohibiting Ross from abusing, harassing or intimidating Laine. The trial court issued an emergency order of protection ex parte.

At the subsequent hearing on the petition, Laine testified thatshe went to her father's house for visitation on January 7, 2003. She informed Ross that she did not enjoy spending time at his home,and she wanted to go back to Kathryn's house. According to Laine,Ross told her that she was insane and he was going to take her to ahospital. Laine became afraid and tried to call Kathryn on thetelephone. When she tried to make the phone call, Ross ripped thetelephone off of the wall and told her that she was grounded. Whenquestioned about her claim that the phone was "ripped" from the wall,Laine explained that there were three phones that "were all attachedto one thing and he took the one thing all out." Laine later triedto use the phone three additional times to call her mother or thepolice, and each time her father unplugged the phone she tried touse.

Laine later left the house to walk back to her mother's house. According to Laine, Ross followed her outside, held her arms behindher back, pushed her in the door and pushed her into her room. Rossalso tried to punch her twice, but she avoided contact by movingbackward. Laine testified that she suffered a bruise on her arm as aresult of this incident.

On cross-examination, Laine testified that she screamed andcursed during this incident. She believed that she had to curse andscream at Ross to communicate with him. She also kicked Ross in thegroin, but claimed she did so in self-defense. Additionally, shetestified that she had missed or cut short her visitation with Rosson several occasions in December 2002 and January 2003. The dayafter the incident, Laine went with her mother to the police stationto make a complaint against her father. The police observed nobruises or marks on Laine. When asked why she wanted an order ofprotection, Laine responded that she did not want her father to touchher again and she wanted to be able to see him only when she wantedto see him. She felt that she had too much visitation with herfather and she did not feel welcome at his home.

Laine's brother, Bryce Radke, testified that he observed asmall bruise on Laine's arm after she returned from visitation. Kathryn testified that she observed a bruise on Laine's arm andswelling on her hand. Kathryn also testified that it was her idea toseek an order of protection, because Laine had begged her never tosend her back to her father. Kathryn admitted that she used theorder of protection to temporarily suspend visitation.

Ross's wife, Debbie Radke, testified that Laine screamed andcursed at Ross on January 7, 2003. Ross told Laine to go to her roomand grounded her from using the telephone or the computer. Lainethen tried to leave her room several times. At one point, Laine ranoutside. Ross responded by escorting Laine back to her room byholding her arms. Laine kicked Ross while he was escorting her toher room. Debbie also testified that she and Ross had receivedseveral e-mails from Laine that contained profanity.

Debbie's son, Josh Williams, testified that he observed part ofthis incident. He testified that Laine kicked, hit and cursed atRoss. Ross unplugged the telephone and told Laine to go to her room,but he did not strike or kick Laine.

Ross testified that prior to the incident, he had allowed Laineto miss some visits at her request. On January 7, he told Laine thathe would call the police to enforce the visitation if she did notcome over. Laine's mother had done the same thing a year earlierwhen Laine had refused to go back to her mother's house. Laine had ahistory of being on good terms with only one parent and thenswitching preferences.

Ross further testified that after Laine arrived she becameupset, cursed at him, and he told her to go to her room. She cameback out of her room, told him that she was going home and continuedto curse at him for several minutes. Ross refused to allow Laine touse the telephone to call Kathryn. Laine then kicked him in thegroin and punched him in the face. Ross responded by placing hishand on Laine's back and pushing her down the hallway to her room.

Laine continued to leave her room to attempt to use thetelephone. Ross unplugged the telephone and escorted her back to herroom. Ross testified that he did not rip the telephone off of thewall or strike Laine.

Ross also testified that he tape recorded the incident. Afterhe told Laine that he was recording, Laine admitted that he had nothurt her. The audiotape was played during the hearing, but was notreported in the report of proceedings or admitted into evidence.

On rebuttal, Laine testified that Ross had previously slappedher because she did not give Debbie a present or call her on Mother'sDay. Laine testified that she suffered a "fat lip" as a result ofthis incident. During his testimony, Ross denied slapping Laine.

In rendering its decision, the trial court stated that issuesof visitation would not be addressed in the order of protection. Thecourt specifically noted that it would not restrict Ross'svisitation, correctly recognizing that the purpose of an order ofprotection "is to protect, not to effectuate changes in visitation." The court found that Laine was "basically a very believable witness,"but it did not make a specific finding of physical abuse. The courtaccepted Laine's testimony that physical force was used to preventher from returning to her mother's house, but it also noted that "thestatute says there can be reasonable directions of a child by aparent. I understand a parent has a right to punish a child." Thecourt concluded that "when there's allegations of abuse, whether itbe physical or emotional, the one thing that I don't think you can dois deny them access to their other parent or to the police by phone. If you want to punish them and say you can't call your friends on thephone, that's one thing. But when you tell them that you're denyingthem access to either their other parent or to the police, I thinkthat's harassment under the statute." The court then entered aplenary order of protection requiring Ross to refrain from physicalabuse, harassment, intimidation or interference with the personalliberty of Laine for two years from the date of the order.

Ross contends that the trial court abused its discretion ingranting the order of protection because the evidence did notestablish that he had harassed Laine. We agree.

The Illinois Domestic Violence Act of 1986 (Act) provides thatprotective orders may be entered against persons who have abused achild in their care. See 750 ILCS 60/214(a) (West 2002). "Abuse" isdefined to include physical abuse, harassment, or intimidation of achild but does not include reasonable direction of a child by aparent. 750 ILCS 60/103(1) (West 2002). The Act defines"harassment" as knowing conduct which is not necessary to accomplisha purpose that is reasonable under the circumstances; would cause areasonable person emotional distress; and does cause emotionaldistress to the person. 750 ILCS 60/103(7) (West 2002).

The court has broad discretion to decide whether abuse, asdefined in the Act, occurred. In re Marriage of Lichtenstein, 263Ill. App. 3d 266, 637 N.E.2d 1258 (1994). The trial court's decisionwill not be reversed on appeal absent an abuse of discretion. Peckv. Otten, 329 Ill. App. 3d 266, 768 N.E.2d 769 (2002); Whitten v.Whitten, 292 Ill. App. 3d 780, 686 N.E.2d 19 (1997).

In this case the trial court found that not allowing Laine totelephone her mother or the police constituted harassment. Under theAct, conduct is not harassment if it is necessary to accomplish apurpose that is reasonable under the circumstances. See 750 ILCS60/103(7) (West 2002). Was it reasonable for Laine's father to notallow her to call her mother after she made it clear that she did notwant to be there and wanted to go back to her mother's home? Laineonly went to her father's home after he threatened to call the policeto enforce visitation. Whether this was wise is not at issue, but itclearly contributed to an atmosphere ripe for conflict. Under thosecircumstances, Ross could have reasonably believed that allowingLaine to call her mother, perhaps to request her to come and pick herup, would only exacerbate the situation. Certainly, after Lainescreamed and cursed at her father and kicked him in the groin,denying her use of the phone was not unreasonable. It was alsojustifiable as "reasonable direction" of a child, a circumstancespecifically excluded from the definition of abuse under the Act. 750 ILCS 60/103(1) (West 2002).

In re Marriage of Blistein, 212 Ill. App. 3d 124, 569 N.E.2d1357 (1991), relied on by Kathryn, is clearly distinguishable. InBlistein an order of protection based on harassment was upheld wherethe husband pulled three phone cords from the wall during the courseof an argument to prevent his wife from calling the police. Conductbetween spouses does not, of course, fall within the statutoryexception for reasonable direction of a child. In addition,reasonable restrictions imposed by a parent on a child might be quiteunreasonable in the context of an adult relationship.

We emphasize that we are not disturbing the trial court'sfactual findings; the court is in the best position to evaluate thecredibility of the witnesses. People ex rel. Minteer v. Kozin, 297Ill. App. 3d 1038, 697 N.E.2d 891 (1998). While the court foundLaine to be "basically a very believable witness" it did not indicatethat it was accepting her testimony in its entirety. Indeed, inmaking no finding of physical abuse, it appears to have implicitlyrejected some of it. In any event, our ruling is based on arejection of the trial court's legal conclusion that denying Lainethe ability to use the phones, under the circumstances, constitutedharassment.

Ross also contends that the order of protection should bevacated because any action to restrict his visitation with Laineshould have been taken under the existing dissolution action ratherthan by obtaining an order of protection. We agree.

The primary purpose of the Domestic Violence Act is to aidvictims of domestic violence and to prevent further violence. 750ILCS 60/102 (West 2002); Wilson v. Jackson, 312 Ill. App. 3d 1156,728 N.E.2d 832 (2000). Obtaining an order of protection is not theproper procedure for resolving child custody or visitation issues. Those issues should be resolved under the Illinois Marriage andDissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2002)). Wilson, 312 Ill. App. 3d 1156, 728 N.E.2d 832 (citing In re Marriageof Gordon, 233 Ill. App. 3d 617, 599 N.E.2d 1151 (1992)).

In Wilson, this court found that the petitioner's primarypurpose in seeking an order of protection was to obtain visitationand custody of his child rather than to prevent abuse. We vacatedthe order of protection granted by the trial court due to thepetitioner's misuse of the Act, as well as insufficient evidence ofabuse. Wilson, 312 Ill. App. 3d 1156, 728 N.E.2d 832.

In this case, Kathryn admitted that she obtained the order ofprotection to temporarily suspend visitation. Laine also indicatedthat the order of protection was sought so that she could see herfather only when she wanted to see him. The Domestic Violence Act isnot the appropriate vehicle for resolving such issues. We note thatthe order of protection did not restrict Ross's visitation or contactwith Laine. The court narrowly drafted the order to prohibit physical abuse, harassment, interference with personal liberty orintimidation. Nevertheless, based on this record, we believe thatKathryn misused the Domestic Violence Act for the purpose ofattempting to alter Ross's visitation with Laine. For that reason,and because we find that no harassment occurred, we reverse thejudgment of the circuit court and vacate the order of protection.

For the reasons stated above, the judgment of the circuit isreversed and the order of protection is vacated.

Reversed; order vacated.

HOLDRIDGE, P.J., concurs.

JUSTICE McDADE, dissenting:

At issue in this appeal is whether the court abused itsdiscretion when it, in essence, converted an earlier ex parte orderof protection to a plenary order following an evidentiary hearing. The majority finds (1) there was no harassment by Ross Radke thatwould warrant such an action by the court, and (2) because Laine andher mother, Kathryn, had an improper purpose in seeking the originalorder, the court's entry of an order prohibiting harassment must beset aside, even though it was grounded in evidence adduced at a fullhearing and it rejected any restriction on respondent's visitation.

Even a cursory reading of the facts clearly, in my opinion,demonstrates that neither Ross nor Laine Radke was acting reasonably. The girl freely admitted that she screamed, cursed, and kicked at herfather during the visitation incident because she wanted to go home. The father, after letting such conduct continue without disciplinaryefforts for several months, apparently decided to cure Laine'sproblems all at once through the use of threats and intimidation. Neither was behaving appropriately in my view. Irrational conduct ofa 12-year-old girl, while it cannot be condoned, is easier tounderstand and to explain than is that of her adult father.

Looking only at Ross's testimony, he admitted to threatening tocall the police if Laine did not come for her scheduled visitation onJanuary 7, 2003; admitted to refusing to let her use the phone tocall her mother or the police; admitted to disabling the phones bydisconnecting them from their wall outlets; admitted to threateningLaine that he could hit her if he wanted because he was a black belt;admitted to pushing her down the hallway but denied throwing heracross the room.

When you add Laine's version of events, which the trial judgefound to be credible, you end up with conduct that I do not believecan be fairly characterized as "reasonable direction" to a child. Nor, accepting the correctness of the trial court's assessment ofLaine's credibility, does it appear that Ross and his new wife gavedue or fair consideration to Laine's complaints of unkindness andlack of respect when she was in their home.

So, does any of this support the trial court's finding thatLaine was "harassed" by her father? I believe it does. The IllinoisDomestic Violence Act protects against "abuse," which includesphysical abuse, harassment, or intimidation. "Harassment" is definedas knowing conduct which is not necessary to accomplish a reasonablepurpose under the circumstances; would cause a reasonable person tofeel distress, and does cause distress to the person. 750 ILCS60/103 (7) (West 2002). A rebuttable presumption of emotionaldistress arises when a respondent improperly conceals a child fromthe petitioner, or threatens physical force, confinement orrestraint. 750 ILCS 60/103 (7) (v), (vi) (West 2002). (Emphasisadded.)

The court heard all of the evidence and made a determination,which we cannot dispute, that Laine's testimony was credible. Thejudge apparently credited her allegations that her father told herthat she was insane and that he was going to take her to a hospital;that this threat frightened her and she tried to call her mother;that he repeatedly prevented her from making the calls; that, whenshe left the house, he held her arms behind her back, pushed her intoa door and pushed her into her room; that he tried to punch hertwice, and that she suffered a bruise on her arm during thisincident; and that he had slapped her on a previous occasion, causingan injury to her lip.

A reasonable person could conclude that these actions were notnecessary to accomplish the purpose of disciplining Laine. Inparticular, the court could (and did) conclude that denial of the useof the telephone to call her mother or police officers was notnecessary to accomplish this purpose. Additionally, a reasonableperson could conclude that telling Laine that she was insane,disconnecting (or ripping out) the phones, and trying (orthreatening) to punch her were not actions necessary to discipline a12-year-old child -- even an offensive and obstreperous one.

In sum, a reasonable person could conclude that Ross's actionsconstituted harassment as that term is defined by the Act. Cf. Peckv. Otten, 329 Ill. App. 3d 266, 768 N.E.2d 769 (2002); In re Marriageof Blitstein, 212 Ill. App. 3d 124, 569 N.'E.2d 1357 (1991). Accordingly, I would find that the trial court did not abuse itsdiscretion in entering the order of protection against Ross. Themajority has rejected Blitstein as irrelevant because theparticipants in the domestic conflict in that case were a husband andwife, not a father and daughter. While the case is certainlyfactually distinguishable on that basis, it does not necessarilyfollow that its basic principle does not apply. The refusal to allowany frightened family member -- even a child -- access to aprotector, particularly the other parent, could be reasonablycharacterized as harassment under the domestic violence statute, andI do not believe that the decision of the trial judge to that effectconstitutes an abuse of discretion.

The challenge Ross has asserted to the entry of the plenaryorder of protection presents questions that are, for me, moretroubling. It is clear from her own testimony that Laine wanted theorder of protection as an instrument to remove any future obligationto have visitation in her father's home unless she wanted to go. Insome contrast, Kathryn testified that she obtained and used theinterim protective order to keep Laine and her father separatedbetween the date of its entry and January 30. It appears, if hertestimony is credited, that she was seeking a cooling off periodbecause of the conduct involved in the incident, not an end tovisitation. Nonetheless, her use of the domestic violence statute toaccomplish that end was no more appropriate than its use to furtherthe goal of her daughter. The trial judge firmly and quite properlyfound that the motives of both petitioners created an abuse of thestatute.

It is also of major concern that orders of protection areconfrontational and divisive in nature and they should not becommonly or routinely employed in matters involving the discipline ofchildren. Having said that, however, there certainly may besituations -- hopefully rare -- where the use of such an order wouldbe appropriate.

Turning to the specifics of this case, it appears to me that,if we accept the credibility determination of the trial judge, thecourt's actual conclusion that there was harassment and that theplenary order was warranted could not be found to be eitherunreasonable or an abuse of discretion. The majority argues that thetrial court implicitly rejected some of Laine's testimony because itdid not make an explicit finding of physical abuse. It appears tome, however, that the judge, by finding that prohibiting the girl'suse of the phone was harassment in light of her allegations, at leastimplicitly credited those allegations. At any rate, the statute doesnot require that the trial court find both physical abuse andharassment -- the cognizable forms of abuse justifying an order ofprotection are stated in the disjunctive.

The majority also asserts that the plenary order should not beaffirmed because of the petitioners' wrongful purpose in seeking theex parte interim order of protection. I would agree with thatposition if the court had merely converted the order based on thepetitioners' original representations. He did not, however. He hada full-fledged evidentiary hearing and made his decision based on thetestimony of all of the relevant actors and spectators. It isunfortunate to inject an order of protection into relations betweenparents and children. I would suggest, however, that it would beirresponsible for the trial court, in the face of its belief that theconduct at issue posed some threat to the child if allowed tocontinue or recur, to refuse to order protection for her because theinterim order was improperly motivated. The plenary order does nothave any impact on the right of the father to the extensivevisitation he has previously enjoyed nor does it give Laine theability to pick and choose whether or when she will spend time withher father in his home. It also does not enjoin Ross from anyconduct with respect to his daughter that would not be inappropriateeven without the order.

In the trial court's order, I see a concerned and restrainedresponse to volatile conduct in an uncontrolled family situation; Ido not see an abuse of discretion. I would affirm.