Abuse Laws
Illinois
2001
Article
2 Orders of Protection
Article
3 Law Enforcement Responsibilities
Address
Confidentiality for Victims of Domestic Violence Act
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GENERAL
PROVISIONS
(750
ILCS 60/103) Sec. 103. Definitions.
For the
purposes of this Act, the following terms shall have the following
meanings:
(1) "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.
(2) "Adult with disabilities" means
an elder adult with disabilities or a high-risk adult with
disabilities. A person may be an adult with disabilities for
purposes of this Act even though he or she has never been
adjudicated an incompetent adult. However, no court proceeding
may be initiated or continued on behalf of an adult with disabilities
over that adult's objection, unless such proceeding is approved
by his or her legal guardian, if any.
(3) "Domestic violence" means abuse
as defined in paragraph (1).
(4) "Elder adult with disabilities"
means an adult prevented by advanced age from taking appropriate
action to protect himself or herself from abuse by a family
or household member.
(5) "Exploitation" means the illegal,
including tortious, use of a high-risk adult with disabilities
or of the assets or resources of a high-risk adult with disabilities.
Exploitation includes, but is not limited to, the misappropriation
of assets or resources of a high-risk adult with disabilities
by undue influence, by breach of a fiduciary relationship,
by fraud, deception, or extortion, or the use of such assets
or resources in a manner contrary to law.
(6) "Family or household members"
include 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, and persons with disabilities and their personal
assistants. For purposes of this paragraph, neither a casual
acquaintanceship nor ordinary fraternization between 2 individuals
in business or social contexts shall be deemed to constitute
a dating relationship. In the case of a high-risk adult with
disabilities, "family or household members" includes any person
who has the responsibility for a high-risk adult as a result
of a family relationship or who has assumed responsibility
for all or a portion of the care of a high-risk adult with
disabilities voluntarily, or by express or implied contract,
or by court order.
(7) "Harassment" means knowing conduct
which 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:
(i)
creating a disturbance at petitioner's place of employment
or school;
(ii)
repeatedly telephoning petitioner's place of employment, home
or residence;
(iii)
repeatedly following petitioner about in a public place or
places;
(iv)
repeatedly keeping petitioner under surveillance by remaining
present outside his or her home, school, place of employment,
vehicle or other place occupied by petitioner or by peering
in petitioner's windows;
(v)
improperly concealing a minor child from petitioner, repeatedly
threatening to improperly remove a minor child of petitioner's
from the jurisdiction or from the physical care of petitioner,
repeatedly threatening to conceal a minor child from 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; or
(vi)
threatening physical force, confinement or restraint on one
or more occasions.
(8) "High-risk adult with disabilities"
means a person aged 18 or over whose physical or mental disability
impairs his or her ability to seek or obtain protection from
abuse, neglect, or exploitation.
(9) "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 she or he has a right to abstain
or to refrain from conduct in which she or he has a right
to engage.
(10) "Intimidation of a dependent"
means subjecting a person who is dependent because of age,
health or disability to participation in or the witnessing
of: physical force against another or physical confinement
or restraint of another which constitutes physical abuse as
defined in this Act, regardless of whether the abused person
is a family or household member.
(11) (A) "Neglect" means the failure
to exercise that degree of care toward a high-risk adult with
disabilities which a reasonable person would exercise under
the circumstances and includes but is not limited to:
(i)
the failure to take reasonable steps to protect a high-risk
adult with disabilities from acts of abuse;
(ii)
the repeated, careless imposition of unreasonable confinement;
(iii)
the failure to provide food, shelter, clothing, and personal
hygiene to a high-risk adult with disabilities who requires
such assistance;
(iv)
the failure to provide medical and rehabilitative care for
the physical and mental health needs of a high-risk adult
with disabilities; or
(v)
the failure to protect a high-risk adult with disabilities
from health and safety hazards.
(B) Nothing in this subsection (10)
shall be construed to impose a requirement that assistance
be provided to a high-risk adult with disabilities over his
or her objection in the absence of a court order, nor to create
any new affirmative duty to provide support to a high-risk
adult with disabilities.
(12) "Order of protection" means an
emergency order, interim order or plenary order, granted pursuant
to this Act, which includes any or all of the remedies authorized
by Section 214 of this Act.
(13) "Petitioner" may mean not only
any named petitioner for the order of protection and any named
victim of abuse on whose behalf the petition is brought, but
also any other person protected by this Act.
(14) "Physical abuse" includes sexual
abuse and means any of the following:
(i)
knowing or reckless use of physical force, confinement or
restraint;
(ii)
knowing, repeated and unnecessary sleep deprivation; or
(iii)
knowing or reckless conduct which creates an immediate risk
of physical harm.
(15) "Willful deprivation" means wilfully
denying a person who because of age, health or disability
requires medication, medical care, shelter, accessible shelter
or services, food, therapeutic device, or other physical assistance,
and thereby exposing that person to the risk of physical,
mental or emotional harm, except with regard to medical care
or treatment when the dependent person has expressed an intent
to forgo such medical care or treatment. This paragraph does
not create any new affirmative duty to provide support to
dependent persons.
(Source: P.A. 86-542; 87-1186.)
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ARTICLE
II ORDERS OF PROTECTION
(750
ILCS 60/201) Sec. 201. Persons protected by this Act.
(a)
The following persons are protected by this Act:
(i)
any person abused by a family or household member;
(ii)
any high-risk adult with disabilities who is abused, neglected,
or exploited by a family or household member;
(iii)
any minor child or dependent adult in the care of such person;
and
(iv)
any person residing or employed at a private home or public
shelter which is housing an abused family or household member.
(b) A petition for an order of protection
may be filed only: (i) by a person who has been abused by
a family or household member or by any person on behalf of
a minor child or an adult who has been abused by a family
or household member and who, because of age, health, disability,
or inaccessibility, cannot file the petition, or (ii) by any
person on behalf of a high-risk adult with disabilities who
has been abused, neglected, or exploited by a family or household
member. However, any petition properly filed under this Act
may seek protection for any additional persons protected by
this Act.
(Source: P.A. 86-542; 87-1186.)
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(750
ILCS 60/201.1) Sec. 201.1. Access of high-risk adults.
No person
shall obstruct or impede the access of a high-risk adult with
disabilities to any agency or organization authorized to file
a petition for an order of protection under Section 201 of
this Act for the purpose of a private visit relating to legal
rights, entitlements, claims and services under this Act and
Section 1 of "An Act in relation to domestic relations and
domestic violence shelters and service programs", approved
September 24,
1981, as now or hereafter amended. If a person does so obstruct
or impede such access of a high-risk adult with disabilities,
local law enforcement agencies shall take all appropriate
action to assist the party seeking access in petitioning for
a search warrant or an ex parte injunctive order. Such warrant
or order may issue upon a showing of probable cause to believe
that the high-risk adult with disabilities is the subject
of abuse, neglect, or exploitation which constitutes a criminal
offense or that any other criminal offense is occurring which
affects the interests or welfare of the high-risk adult with
disabilities. When, from the personal observations of a law
enforcement officer, it appears probable that delay of entry
in order to obtain a warrant or order would cause the high-risk
adult with disabilities to be in imminent danger of death
or great bodily harm, entry may be made by the law enforcement
officer after an announcement of the officer's authority and
purpose.
(Source: P.A. 86-542.)
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(750
ILCS 60/202) Sec. 202. Commencement of action; filing fees;
dismissal.
(a)
How to commence action. Actions for orders of protection are
commenced:
(1)
Independently: By filing a petition for an order of protection
in any civil court, unless specific courts are designated
by local rule or order.
(2)
In conjunction with another civil proceeding: By filing a
petition for an order of protection under the same case number
as another civil proceeding involving the parties, including
but not limited to: (i) any proceeding under the Illinois
Marriage and Dissolution of Marriage Act, Illinois Parentage
Act of 1984, Nonsupport of Spouse and Children Act, Revised
Uniform Reciprocal Enforcement of Support Act or an action
for nonsupport brought under Article 10 of the Illinois Public
Aid Code, provided that a petitioner and the respondent are
a party to or the subject of that proceeding or (ii) a guardianship
proceeding under the Probate Act of 1975, or a proceeding
for involuntary commitment under the Mental Health and Developmental
Disabilities Code, or any proceeding, other than a delinquency
petition, under the Juvenile Court Act of 1987, provided that
a petitioner or the respondent is a party to or the subject
of such proceeding.
(3)
In conjunction with a delinquency petition or a criminal prosecution:
By filing a petition for an order of protection, under the
same case number as the delinquency petition or criminal prosecution,
to be granted during pre-trial release of a defendant, with
any dispositional order issued under Section 5-710 of the
Juvenile Court Act of 1987 or as a condition of release, supervision,
conditional discharge, probation, periodic imprisonment, parole
or mandatory supervised release, or in conjunction with imprisonment
or a bond forfeiture warrant; provided that:
(i)
the violation is alleged in an information, complaint, indictment
or delinquency petition on file, and the alleged offender
and victim are family or household members or persons protected
by this Act; and
(ii)
the petition, which is filed by the State's Attorney, names
a victim of the alleged crime as a petitioner.
(b) Filing, certification, and service
fees. No fee shall be charged by the clerk for filing petitions
or certifying orders. No fee shall be charged by the sheriff
for service by the sheriff of a petition, rule, motion, or
order in an action commenced under this Section.
(c) Dismissal and consolidation. Withdrawal
or dismissal of any petition for an order of protection prior
to adjudication where the petitioner is represented by the
State shall operate as a dismissal without prejudice. No action
for an order of protection shall be dismissed because the
respondent is being prosecuted for a crime against the petitioner.
An independent action may be consolidated with another civil
proceeding, as provided by paragraph (2) of subsection (a)
of this Section. For any action commenced under paragraph
(2) or (3) of subsection (a) of this Section, dismissal of
the conjoined case (or a finding of not guilty) shall not
require dismissal of the action for the order of protection;
instead, it may be treated as an independent action and, if
necessary and appropriate, transferred to a different court
or division. Dismissal of any conjoined case shall not affect
the validity of any previously issued order of protection,
and thereafter subsections
(b)(1) and (b)(2) of Section 220 shall be inapplicable to
such order.
(d) Pro se petitions. The court shall
provide, through the office of the clerk of the court, simplified
forms and clerical assistance to help with the writing and
filing of a petition under this Section by any person not
represented by counsel. In addition, that assistance may be
provided by the state's attorney.
(Source: P.A. 90-590, eff. 1-1-99.)
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(750
ILCS 60/203) Sec. 203. Pleading; non-disclosure of address.
(a)
A petition for an order of protection shall be in writing
and verified or accompanied by affidavit and shall allege
that petitioner has been abused by respondent, who is a family
or household member. The petition shall further set forth
whether there is any other pending action between the parties.
During the pendency of this proceeding, each party has a continuing
duty to inform the court of any subsequent proceeding for
an order of protection in this or any other state.
(b) If the petition states that disclosure
of petitioner's address would risk abuse of petitioner or
any member of petitioner's family or household or reveal the
confidential address of a shelter for domestic violence victims,
that address may be omitted from all documents filed with
the court. If disclosure is necessary to determine jurisdiction
or consider any venue issue, it shall be made orally and in
camera. If petitioner has not disclosed an address under this
subsection, petitioner shall designate an alternative address
at which respondent may serve notice of any motions.
(Source: P.A. 87-1186.)
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(750
ILCS 60/204) Sec. 204. (Repealed).
(Source: Repealed by P.A. 88-306.)
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(750
ILCS 60/205) Sec. 205. Application of rules of civil procedure;
Domestic abuse advocates.
(a)
Any proceeding to obtain, modify, reopen or appeal an order
of protection, whether commenced alone or in conjunction with
a civil or criminal proceeding, shall be governed by the rules
of civil procedure of this State. The standard of proof in
such a proceeding is proof by a preponderance of the evidence,
whether the proceeding is heard in criminal or civil court.
The Code of Civil Procedure and Supreme Court and local court
rules applicable to civil proceedings, as now or hereafter
amended, shall apply, except as otherwise provided by this
law.
(b) (1) In all circuit court proceedings
under this Act, domestic abuse advocates shall be allowed
to attend and sit at counsel table and confer with the victim,
unless otherwise directed by the court.
(2) In criminal proceedings in circuit
courts, domestic abuse advocates shall be allowed to accompany
the victim and confer with the victim, unless otherwise directed
by the court.
(3) Court administrators shall allow
domestic abuse advocates to assist victims of domestic violence
in the preparation of petitions for orders of protection.
(4) Domestic abuse advocates are not
engaged in the unauthorized practice of law when providing
assistance of the types specified in this subsection (b).
(Source: P.A. 87-1186; 87-1255; 88-45.)
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(750
ILCS 60/206) Sec. 206. Trial by jury.
There
shall be no right to trial by jury in any proceeding to obtain,
modify, vacate or extend any order of protection under this
Act. However, nothing in this Section shall deny any existing
right to trial by jury in a criminal proceeding.
(Source: P.A. 87-1186.)
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(750
ILCS 60/207) Sec. 207. Subject matter jurisdiction.
Each
of the circuit courts shall have the power to issue orders
of protection.
(Source: P.A. 84-1305.)
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(750
ILCS 60/208) Sec. 208. Jurisdiction over persons.
In
child custody proceedings, the court's personal jurisdiction
is determined by this State's Uniform Child Custody Jurisdiction
Act, as now or hereafter amended. Otherwise, the courts of
this State have jurisdiction to bind (i) State residents and
(ii) non-residents having minimum contacts with this State,
to the extent permitted by the long-arm statute, Section 2-209
of the Code of Civil Procedure, as now or hereafter amended.
(Source: P.A. 84-1305.)
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(750
ILCS 60/209) Sec. 209. Venue.
(a)
Filing. A petition for an order of protection may be filed
in any county where (i) petitioner resides, (ii) respondent
resides, (iii) the alleged abuse occurred or (iv) the petitioner
is temporarily located if petitioner left petitioner's residence
to avoid further abuse and could not obtain safe, accessible,
and adequate temporary housing in the county of that residence.
(b) Exclusive Possession. With respect
to requests for exclusive possession of the residence under
this Act, venue is proper only in the county where the residence
is located, except in the following circumstances:
(1)
If a request for exclusive possession of the residence is
made under this Act in conjunction with a proceeding under
the Illinois Marriage and Dissolution of Marriage Act, venue
is proper in the county or judicial circuit where the residence
is located or in a contiguous county or judicial circuit.
(2)
If a request for exclusive possession of the residence is
made under this Act in any other proceeding, provided the
petitioner meets the requirements of item (iv) of subsection
(a), venue is proper in the county or judicial circuit where
the residence is located or in a contiguous county or judicial
circuit. In such case, however, if the court is not located
in the county where the residence is located, it may grant
exclusive possession of the residence under subdivision (b)(2)
of Section 214 only in an emergency order under Section 217,
and such grant may be extended thereafter beyond the maximum
initial period only by a court located in the county where
the residence is located.
(c) Inconvenient forum. If an order
of protection is issued by a court in a county in which neither
of the parties resides, the court may balance hardships to
the parties and accordingly transfer any proceeding to extend,
modify, re-open, vacate or enforce any such order to a county
wherein a party resides.
(d) Objection. Objection to venue
is waived if not made within such time as respondent's response
is due, except as otherwise provided in subsection (b). In
no event shall venue be deemed jurisdictional.
(Source: P.A. 86-966; 87-1186.)
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(750
ILCS 60/210) Sec. 210. Process.
(a)
Summons. Any action for an order of protection, whether commenced
alone or in conjunction with another proceeding, is a distinct
cause of action and requires that a separate summons be issued
and served, except that in pending cases the following methods
may be used:
(1)
By delivery of the summons to respondent personally in open
court in pending civil or criminal cases.
(2)
By notice in accordance with Section 210.1 in civil cases
in which the defendant has filed a general appearance. The
summons shall be in the form prescribed by Supreme Court Rule
101(d), except that it shall require respondent to answer
or appear within 7 days. Attachments to the summons or notice
shall include the petition for order of protection and supporting
affidavits, if any, and any emergency order of protection
that has been issued. The enforcement of an order of protection
under Section 223 shall not be affected by the lack of service,
delivery, or notice, provided the requirements of subsection
(d) of that Section are otherwise met.
(b) Blank.
(c) Expedited service. The summons
shall be served by the sheriff or other law enforcement officer
at the earliest time and shall take precedence over other
summonses except those of a similar emergency nature. Special
process servers may be appointed at any time, and their designation
shall not affect the responsibilities and authority of the
sheriff or other official process servers.
(d) Remedies requiring actual notice.
The counseling, payment of support, payment of shelter services,
and payment of losses remedies provided by paragraphs 4, 12,
13, and 16 of subsection (b) of Section
214 may be granted only if respondent has been personally
served with process, has answered or has made a general appearance.
(e) Remedies upon constructive notice.
Service of process on a member of respondent's household or
by publication shall be adequate for the remedies provided
by paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 14,
15, and 17 of subsection (b) of Section 214, but only if:
(i) petitioner has made all reasonable efforts to accomplish
actual service of process personally upon respondent, but
respondent cannot be found to effect such service and (ii)
petitioner files an affidavit or presents sworn testimony
as to those efforts.
(f) Default. A plenary order of protection
may be entered by default as follows:
(1)
For any of the remedies sought in the petition, if respondent
has been served or given notice in accordance with subsection
(a) and if respondent then fails to appear as directed or
fails to appear on any subsequent appearance or hearing date
agreed to by the parties or set by the court; or
(2)
For any of the remedies provided in accordance with subsection
(e), if respondent fails to answer or appear in accordance
with the date set in the publication notice or the return
date indicated on the service of a household member.
(Source: P.A. 87-1186; 88-306.)
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(750
ILCS 60/210.1) Sec. 210.1. Service of notice in conjunction
with a pending civil case.
(a)
Notice. When an action for an order of protection is sought
in conjunction with a pending civil case in which the court
has obtained jurisdiction over respondent, and respondent
has filed a general appearance, then a separate summons need
not issue. Original notice of a hearing on a petition for
an order of protection may be given, and the documents served,
in accordance with Illinois Supreme Court Rules 11 and
12. When, however, an emergency order of protection is sought
in such a case on an ex parte application, then the procedure
set forth in subsection (a) of Section 210 (other than in
subsection (a)(2)) shall be followed. If an order of protection
is issued using the notice provisions of this Section, then
the order of protection or extensions of that order may survive
the disposition of the main civil case. The enforcement of
any order of protection under Section 223 shall not be affected
by the lack of notice under this Section, provided the requirements
of subsection (d) of that Section are otherwise met.
(b) Default. The form of notice described
in subsection (a) shall include the following language directed
to the respondent: A 2-year plenary order of protection may
be entered by default for any of the remedies sought in the
petition if you fail to appear on the specified hearing date
or on any subsequent hearing date agreed to by the parties
or set by the court.
(c) Party to give notice. Notice in
the pending civil case shall be given (i) by either party
under this Section, with respect to extensions, modifications,
hearings, or other relief pertinent to an order of protection,
in accordance with Illinois Supreme Court Rules 11 and 12
or (ii) by the respondent as provided in subsection (c) of
Section 224.
(Source: P.A. 87-1186.)
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(750
ILCS 60/211) Sec. 211. Service of notice of hearings.
Except as provided in Sections 210 and 210.1, notice of hearings
on petitions or motions shall be served in accordance with
Supreme Court Rules 11 and 12, unless notice is excused by
Section 217 of this Act, or by the Code of Civil Procedure,
Supreme Court Rules, or local rules, as now or hereafter amended.
(Source: P.A. 87-1186.)
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(750
ILCS 60/212) Sec. 212. Hearings.
(a)
A petition for an order of protection shall be treated as
an expedited proceeding, and no court shall transfer or otherwise
decline to decide all or part of such petition except as otherwise
provided herein. Nothing in this Section shall prevent the
court from reserving issues when jurisdiction or notice requirements
are not met.
(b) Any court or a division thereof
which ordinarily does not decide matters of child custody
and family support may decline to decide contested issues
of physical care, custody, visitation, or family support unless
a decision on one or more of those contested issues is necessary
to avoid the risk of abuse, neglect, removal from the state
or concealment within the state of the child or of separation
of the child from the primary caretaker. If the court or division
thereof has declined to decide any or all of these issues,
then it shall transfer all undecided issues to the appropriate
court or division. In the event of such a transfer, a government
attorney involved in the criminal prosecution may, but need
not, continue to offer counsel to petitioner on transferred
matters.
(c) If the court transfers or otherwise
declines to decide any issue, judgment on that issue shall
be expressly reserved and ruling on other issues shall not
be delayed or declined.
(Source: P.A. 87-1186.)
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(750
ILCS 60/213) Sec. 213. Continuances.
(a)
Petitions for emergency orders. Petitions for emergency remedies
shall be granted or denied in accordance with the standards
of Section 217, regardless of respondent's appearance or presence
in court.
(b) Petitions for interim and plenary
orders. Any action for an order of protection is an expedited
proceeding. Continuances should be granted only for good cause
shown and kept to the minimum reasonable duration, taking
into account the reasons for the continuance. If the continuance
is necessary for some, but not all, of the remedies requested,
hearing on those other remedies shall not be delayed.
(Source: P.A. 87-1186.)
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(750
ILCS 60/213.1) Sec. 213.1. Hearsay exception.
In an action for an order of protection on behalf of a high-risk
adult with disabilities, a finding of lack of capacity to
testify shall not render inadmissible any statement as long
as the reliability of the statement is ensured by circumstances
bringing it within the scope of a hearsay exception. The following
evidence shall be admitted as an exception to the hearsay
rule whether or not the declarant is available as a witness:
(1) A statement relating to a startling
event or condition made spontaneously while the declarant
was under the contemporaneous or continuing stress of excitement
caused by the event or condition.
(2) A statement made for the purpose
of obtaining, receiving, or promoting medical diagnosis or
treatment, including psychotherapy, and describing medical
history, or past or present symptoms, pain, or sensations,
or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis
or treatment. For purposes of obtaining a protective order,
the identity of any person inflicting abuse or neglect as
defined in this Act shall be deemed reasonably pertinent to
diagnosis or treatment.
(3) A statement not specifically covered
by any of the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that
(A) the statement is offered as evidence of a material fact,
and (B) the statement is more probative on the point for which
it is offered than any other evidence which the proponent
can procure through reasonable efforts. Circumstantial guarantees
of trustworthiness include:
(1) the credibility of the witness
who testifies the statement was made;
(2) assurance of the declarant's personal
knowledge of the event;
(3) the declarant's interest or bias
and the presence or absence of capacity or motive to fabricate;
(4) the presence or absence of suggestiveness
or prompting at the time the statement was made;
(5) whether the declarant has ever
reaffirmed or recanted the statement; and
(6) corroboration by physical evidence
or behavioral changes in the declarant. The record shall reflect
the court's findings of fact and conclusions of law as to
the trustworthiness requirement. A statement shall not be
admitted under the exception set forth in this Section unless
its proponent gives written notice stating his or her intention
to offer the statement and the particulars of it to the adverse
party sufficiently in advance of offering the statement to
provide the adverse party with a fair opportunity to prepare
to meet the statement.
(Source: P.A. 86-542.)
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(750
ILCS 60/213.2) Sec. 213.2. Waiver of privilege.
When the
subject of any proceeding under this Act is a high-risk adult
with disabilities for whom no guardian has been appointed,
no party other than the high-risk adult or the attorney for
the high-risk adult shall be entitled to invoke or waive a
common law or statutory privilege on behalf of the high-risk
adult which results in the exclusion of evidence.
(Source: P.A. 86-542.)
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(750
ILCS 60/213.3) Sec. 213.3. Independent counsel; temporary
substitute guardian.
If
the petitioner is a high-risk adult with disabilities for
whom a guardian has been appointed, the court shall appoint
independent counsel other than a guardian ad litem and, may
appoint a temporary substitute guardian under the provisions
of Article XIa of the Probate Act of 1975. The court shall
appoint a temporary substitute guardian if the guardian is
named as a respondent in a petition under this Act.
(Source: P.A. 86-542.)
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(750
ILCS 60/214) Sec. 214. Order of protection; remedies.
(a)
Issuance of order. If the court finds that petitioner has
been abused by a family or household member or that petitioner
is a high-risk adult who has been abused, neglected, or exploited,
as defined in this Act, an order of protection prohibiting
the abuse, neglect, or exploitation shall issue; provided
that petitioner must also satisfy the requirements of one
of the following Sections, as appropriate: Section
217 on emergency orders, Section 218 on interim orders, or
Section 219 on plenary orders. Petitioner shall not be denied
an order of protection because petitioner or respondent is
a minor. The court, when determining whether or not to issue
an order of protection, shall not require physical manifestations
of abuse on the person of the victim. Modification and extension
of prior orders of protection shall be in accordance with
this Act.
(b) Remedies and standards. The remedies
to be included in an order of protection shall be determined
in accordance with this Section and one of the following Sections,
as appropriate: Section 217 on emergency orders, Section 218
on interim orders, and Section 219 on plenary orders. The
remedies listed in this subsection shall be in addition to
other civil or criminal remedies available to petitioner.
(1)
Prohibition of abuse, neglect, or exploitation. Prohibit respondent's
harassment, interference with personal liberty, intimidation
of a dependent, physical abuse, or willful deprivation, neglect
or exploitation, as defined in this Act, or stalking of the
petitioner, as defined in Section 12-7.3 of the Criminal Code
of
1961, if such abuse, neglect, exploitation,
or stalking has occurred or otherwise appears likely to occur
if not prohibited.
(2)
Grant of exclusive possession of residence. Prohibit respondent
from entering or remaining in any residence or household of
the petitioner, including one owned or leased by respondent,
if petitioner has a right to occupancy thereof. The grant
of exclusive possession of the residence shall not affect
title to real property, nor shall the court be limited by
the standard set forth in Section
701 of the Illinois Marriage and Dissolution
of Marriage Act.
(A)
Right to occupancy. A party has a right to occupancy of a
residence or household if it is solely or jointly owned or
leased by that party, that party's spouse, a person with a
legal duty to support that party or a minor child in that
party's care, or by any person or entity other than the opposing
party that authorizes that party's occupancy (e.g., a domestic
violence shelter). Standards set forth in subparagraph
(B)
shall not preclude equitable relief.
(B)
Presumption of hardships. If petitioner and respondent each
has the right to occupancy of a residence or household, the
court shall balance (i) the hardships to respondent and any
minor child or dependent adult in respondent's care resulting
from entry of this remedy with (ii) the hardships to petitioner
and any minor child or dependent adult in petitioner's care
resulting from continued exposure to the risk of abuse (should
petitioner remain at the residence or household) or from loss
of possession of the residence or household (should petitioner
leave to avoid the risk of abuse). When determining the balance
of hardships, the court shall also take into account the accessibility
of the residence or household. Hardships need not be balanced
if respondent does not have a right to occupancy. The balance
of hardships is presumed to favor possession by petitioner
unless the presumption is rebutted by a preponderance of the
evidence, showing that the hardships to respondent substantially
outweigh the hardships to petitioner and any minor child or
dependent adult in petitioner's care. The court, on the request
of petitioner or on its own motion, may order respondent to
provide suitable, accessible, alternate housing for petitioner
instead of excluding respondent from a mutual residence or
household.
(3)
Stay away order and additional prohibitions. Order respondent
to stay away from petitioner or any other person protected
by the order of protection, or prohibit respondent from entering
or remaining present at petitioner's school, place of employment,
or other specified places at times when petitioner is present,
or both, if reasonable, given the balance of hardships. Hardships
need not be balanced for the court to enter a stay away order
or prohibit entry if respondent has no right to enter the
premises. If an order of protection grants petitioner exclusive
possession of the residence, or prohibits respondent from
entering the residence, or orders respondent to stay away
from petitioner or other protected persons, then the court
may allow respondent access to the residence to remove items
of clothing and personal adornment used exclusively by respondent,
medications, and other items as the court directs. The right
to access shall be exercised on only one occasion as the court
directs and in the presence of an agreed-upon adult third
party or law enforcement officer.
(4)
Counseling. Require or recommend the respondent to undergo
counseling for a specified duration with a social worker,
psychologist, clinical psychologist, psychiatrist, family
service agency, alcohol or substance abuse program, mental
health center guidance counselor, agency providing services
to elders, program designed for domestic violence abusers
or any other guidance service the court deems appropriate.
(5)
Physical care and possession of the minor child. In order
to protect the minor child from abuse, neglect, or unwarranted
separation from the person who has been the minor child's
primary caretaker, or to otherwise protect the well-being
of the minor child, the court may do either or both of the
following: (i) grant petitioner physical care or possession
of the minor child, or both, or (ii) order respondent to return
a minor child to, or not remove a minor child from, the physical
care of a parent or person in loco parentis. If a court finds,
after a hearing, that respondent has committed abuse (as defined
in Section 103) of a minor child, there shall be a rebuttable
presumption that awarding physical care to respondent would
not be in the minor child's best interest.
(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
Act. If a court finds, after a hearing, that respondent has
committed abuse (as defined in Section 103) of a minor child,
there shall be a rebuttable presumption that awarding temporary
legal custody to respondent would not be in the child's best
interest.
(7)
Visitation. Determine the visitation rights, if any, of respondent
in any case in which the court awards physical care or temporary
legal custody of a minor child to petitioner. The court shall
restrict or deny respondent's visitation with a minor child
if the court finds that respondent has done or is likely to
do any of the following: (i) abuse or endanger the minor child
during visitation; (ii) use the visitation as an opportunity
to abuse or harass petitioner or petitioner's family or household
members; (iii) improperly conceal or detain the minor child;
or (iv) otherwise act in a manner that is not in the best
interests of the minor child. The court shall not be limited
by the standards set forth in Section
607.1 of the Illinois Marriage and
Dissolution of Marriage Act. If the court grants visitation,
the order shall specify dates and times for the visitation
to take place or other specific parameters or conditions that
are appropriate. No order for visitation shall refer merely
to the term "reasonable visitation". Petitioner may deny respondent
access to the minor child if, when respondent arrives for
visitation, respondent is under the influence of drugs or
alcohol and constitutes a threat to the safety and well-being
of petitioner or petitioner's minor children or is behaving
in a violent or abusive manner. If necessary to protect any
member of petitioner's family or household from future abuse,
respondent shall be prohibited from coming to petitioner's
residence to meet the minor child for visitation, and the
parties shall submit to the court their recommendations for
reasonable alternative arrangements for visitation. A person
may be approved to supervise visitation only after filing
an affidavit accepting that responsibility and acknowledging
accountability to the court.
(8)
Removal or concealment of minor child. Prohibit respondent
from removing a minor child from the State or concealing the
child within the State.
(9)
Order to appear. Order the respondent to appear in court,
alone or with a minor child, to prevent abuse, neglect, removal
or concealment of the child, to return the child to the custody
or care of the petitioner or to permit any court-ordered interview
or examination of the child or the respondent.
(10)
Possession of personal property. Grant petitioner exclusive
possession of personal property and, if respondent has possession
or control, direct respondent to promptly make it available
to petitioner, if:
(i)
petitioner, but not respondent, owns the property; or
(ii)
the parties own the property jointly; sharing it would risk
abuse of petitioner by respondent or is impracticable; and
the balance of hardships favors temporary possession by petitioner.
If petitioner's sole claim to ownership of the property is
that it is marital property, the court may award petitioner
temporary possession thereof under the standards of subparagraph
(ii) of this paragraph only if a proper proceeding has been
filed under the Illinois Marriage and Dissolution of Marriage
Act, as now or hereafter amended. No order under this provision
shall affect title to property.
(11)
Protection of property. Forbid the respondent from taking,
transferring, encumbering, concealing, damaging or otherwise
disposing of any real or personal property, except as explicitly
authorized by the court, if:
(i)
petitioner, but not respondent, owns the property; or
(ii)
the parties own the property jointly, and the balance of hardships
favors granting this remedy. If petitioner's sole claim to
ownership of the property is that it is marital property,
the court may grant petitioner relief under subparagraph (ii)
of this paragraph only if a proper proceeding has been filed
under the Illinois Marriage and Dissolution of Marriage Act,
as now or hereafter amended. The court may further prohibit
respondent from improperly using the financial or other resources
of an aged member of the family or household for the profit
or advantage of respondent or of any other person.
(12)
Order for payment of support. Order respondent to pay temporary
support for the petitioner or any child in the petitioner's
care or custody, when the respondent has a legal obligation
to support that person, in accordance with the Illinois Marriage
and Dissolution of Marriage Act, which shall govern, among
other matters, the amount of support, payment through the
clerk and withholding of income to secure payment. An order
for child support may be granted to a petitioner with lawful
physical care or custody of a child, or an order or agreement
for physical care or custody, prior to entry of an order for
legal custody. Such a support order shall expire upon entry
of a valid order granting legal custody to another, unless
otherwise provided in the custody order.
(13)
Order for payment of losses. Order respondent to pay petitioner
for losses suffered as a direct result of the abuse, neglect,
or exploitation. Such losses shall include, but not be limited
to, medical expenses, lost earnings or other support, repair
or replacement of property damaged or taken, reasonable attorney's
fees, court costs and moving or other travel expenses, including
additional reasonable expenses for temporary shelter and restaurant
meals.
(i)
Losses affecting family needs. If a party is entitled to seek
maintenance, child support or property distribution from the
other party under the Illinois Marriage and Dissolution of
Marriage Act, as now or hereafter amended, the court may order
respondent to reimburse petitioner's actual losses, to the
extent that such reimbursement would be
"appropriate
temporary relief", as authorized by subsection
(a)(3)
of Section 501 of that Act.
(ii)
Recovery of expenses. In the case of an improper concealment
or removal of a minor child, the court may order respondent
to pay the reasonable expenses incurred or to be incurred
in the search for and recovery of the minor child, including
but not limited to legal fees, court costs, private investigator
fees, and travel costs.
(14)
Prohibition of entry. Prohibit the respondent from entering
or remaining in the residence or household while the respondent
is under the influence of alcohol or drugs and constitutes
a threat to the safety and well-being of the petitioner or
the petitioner's children.
(14.5)
Prohibition of firearm possession.
(a)
When a complaint is made under a request for an order of protection,
that the respondent has threatened or is likely to use firearms
illegally against the petitioner, and the respondent is present
in court, or has failed to appear after receiving actual notice,
the court shall examine on oath the petitioner, and any witnesses
who may be produced. If the court is satisfied that there
is any danger of the illegal use of firearms, it shall issue
an order that any firearms in the possession of the respondent,
except as provided in subsection
(b),
be turned over to the local law enforcement agency for safekeeping.
If the respondent has failed to appear, the court shall issue
a warrant for seizure of any firearm in the possession of
the respondent. The period of safekeeping shall be for a stated
period of time not to exceed 2 years. The firearm or firearms
shall be returned to the respondent at the end of the stated
period or at expiration of the order of protection, whichever
is sooner.
(b)
If the respondent is a peace officer as defined in Section
2-13 of the Criminal Code of 1961, the court shall order that
any firearms used by the respondent in the performance of
his or her duties as a peace officer be surrendered to the
chief law enforcement executive of the agency in which the
respondent is employed, who shall retain the firearms for
safekeeping for the stated period not to exceed 2 years as
set forth in the court order.
(15)
Prohibition of access to records. If an order of protection
prohibits respondent from having contact with the minor child,
or if petitioner's address is omitted under subsection (b)
of Section 203, or if necessary to prevent abuse or wrongful
removal or concealment of a minor child, the order shall deny
respondent access to, and prohibit respondent from inspecting,
obtaining, or attempting to inspect or obtain, school or any
other records of the minor child who is in the care of petitioner.
(16)
Order for payment of shelter services. Order respondent to
reimburse a shelter providing temporary housing and counseling
services to the petitioner for the cost of the services, as
certified by the shelter and deemed reasonable by the court.
(17)
Order for injunctive relief. Enter injunctive relief necessary
or appropriate to prevent further abuse of a family or household
member or further abuse, neglect, or exploitation of a high-risk
adult with disabilities or to effectuate one of the granted
remedies, if supported by the balance of hardships. If the
harm to be prevented by the injunction is abuse or any other
harm that one of the remedies listed in paragraphs (1) through
(16) of this subsection is designed to prevent, no further
evidence is necessary that the harm is an irreparable injury.
(c) Relevant factors; findings.
(1)
In determining whether to grant a specific remedy, other than
payment of support, the court shall consider relevant factors,
including but not limited to the following:
(i)
the nature, frequency, severity, pattern and consequences
of the respondent's past abuse, neglect or exploitation of
the petitioner or any family or household member, including
the concealment of his or her location in order to evade service
of process or notice, and the likelihood of danger of future
abuse, neglect, or exploitation to petitioner or any member
of petitioner's or respondent's family or household; and
(ii)
the danger that any minor child will be abused or neglected
or improperly removed from the jurisdiction, improperly concealed
within the State or improperly separated from the child's
primary caretaker.
(2)
In comparing relative hardships resulting to the parties from
loss of possession of the family home, the court shall consider
relevant factors, including but not limited to the following:
(i)
availability, accessibility, cost, safety, adequacy, location
and other characteristics of alternate housing for each party
and any minor child or dependent adult in the party's care;
(ii)
the effect on the party's employment; and
(iii)
the effect on the relationship of the party, and any minor
child or dependent adult in the party's care, to family, school,
church and community.
(3)
Subject to the exceptions set forth in paragraph (4) of this
subsection, the court shall make its findings in an official
record or in writing, and shall at a minimum set forth the
following:
(i)
That the court has considered the applicable relevant factors
described in paragraphs (1) and (2) of this subsection.
(ii)
Whether the conduct or actions of respondent, unless prohibited,
will likely cause irreparable harm or continued abuse.
(iii)
Whether it is necessary to grant the requested relief in order
to protect petitioner or other alleged abused persons.
(4)
For purposes of issuing an ex parte emergency order of protection,
the court, as an alternative to or as a supplement to making
the findings described in paragraphs (c)(3)(i) through
(c)(3)(iii) of this subsection, may
use the following procedure: When a verified petition for
an emergency order of protection in accordance with the requirements
of Sections 203 and 217 is presented to the court, the court
shall examine petitioner on oath or affirmation. An emergency
order of protection shall be issued by the court if it appears
from the contents of the petition and the examination of petitioner
that the averments are sufficient to indicate abuse by respondent
and to support the granting of relief under the issuance of
the emergency order of protection.
(5)
Never married parties. No rights or responsibilities for a
minor child born outside of marriage attach to a putative
father until a father and child relationship has been established
under the Illinois Parentage Act of 1984, the Illinois Public
Aid Code, Section 12 of the Vital Records Act, the Juvenile
Court Act of 1987, the Probate Act of 1985, the Revised Uniform
Reciprocal Enforcement of Support Act, the Uniform Interstate
Family Support Act, the Expedited Child Support Act of 1990,
any judicial, administrative, or other act of another state
or territory, any other Illinois statute, or by any foreign
nation establishing the father and child relationship, any
other proceeding substantially in conformity with the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 (Pub. L. 104-193), or where both parties appeared in
open court or at an administrative hearing acknowledging under
oath or admitting by affirmation the existence of a father
and child relationship. Absent such an adjudication, finding,
or acknowledgement, no putative father shall be granted temporary
custody of the minor child, visitation with the minor child,
or physical care and possession of the minor child, nor shall
an order of payment for support of the minor child be entered.
(d) Balance of hardships; findings.
If the court finds that the balance of hardships does not
support the granting of a remedy governed by paragraph (2),
(3), (10), (11), or (16) of subsection (b) of this Section,
which may require such balancing, the court's findings shall
so indicate and shall include a finding as to whether granting
the remedy will result in hardship to respondent that would
substantially outweigh the hardship to petitioner from denial
of the remedy. The findings shall be an official record or
in writing.
(e) Denial of remedies. Denial of
any remedy shall not be based, in whole or in part, on evidence
that:
(1)
Respondent has cause for any use of force, unless that cause
satisfies the standards for justifiable use of force provided
by Article VII of the Criminal Code of 1961;
(2)
Respondent was voluntarily intoxicated;
(3)
Petitioner acted in self-defense or defense of another, provided
that, if petitioner utilized force, such force was justifiable
under Article VII of the Criminal Code of 1961;
(4)
Petitioner did not act in self-defense or defense of another;
(5)
Petitioner left the residence or household to avoid further
abuse, neglect, or exploitation by respondent;
(6)
Petitioner did not leave the residence or household to avoid
further abuse, neglect, or exploitation by respondent;
(7)
Conduct by any family or household member excused the abuse,
neglect, or exploitation by respondent, unless that same conduct
would have excused such abuse, neglect, or exploitation if
the parties had not been family or household members.
(Source: P.A. 89-367, eff. 1-1-96; 90-118, eff. 1-1-98.)
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(750
ILCS 60/215) Sec. 215. Mutual orders of protection; correlative
separate orders.
Mutual
orders of protection are prohibited. Correlative separate
orders of protection undermine the purposes of this Act and
are prohibited unless both parties have properly filed written
pleadings, proved past abuse by the other party, given prior
written notice to the other party unless excused under Section
217, satisfied all prerequisites for the type of order and
each remedy granted, and otherwise complied with this Act.
In these cases, the court shall hear relevant evidence, make
findings, and issue separate orders in accordance with Sections
214 and
221. The fact that correlative separate orders are issued
shall not be a sufficient basis to deny any remedy to petitioner
or to prove that the parties are equally at fault or equally
endangered.
(Source: P.A. 87-1186.)
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(750
ILCS 60/216) Sec. 216. Accountability for Actions of Others.
For
the purposes of issuing an order of protection, deciding what
remedies should be included and enforcing the order, Article
5 of the Criminal Code of 1961 shall govern whether respondent
is legally accountable for the conduct of another person.
(Source: P.A. 84-1305.)
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(750
ILCS 60/217) Sec. 217. Emergency order of protection.
(a)
Prerequisites. An emergency order of protection shall issue
if petitioner satisfies the requirements of this subsection
for one or more of the requested remedies. For each remedy
requested, petitioner shall establish that:
(1)
The court has jurisdiction under Section 208;
(2)
The requirements of Section 214 are satisfied; and
(3)
There is good cause to grant the remedy, regardless of prior
service of process or of notice upon the respondent, because:
(i)
For the remedies of "prohibition of abuse" described in Section
214(b)(1), "stay away order and additional prohibitions" described
in Section 214(b)(3), "removal or concealment of minor child"
described in Section 214(b)(8),
"order
to appear" described in Section 214(b)(9), "physical care
and possession of the minor child" described in Section
214(b)(5),
"protection of property" described in Section
214(b)(11),
"prohibition of entry" described in Section
214(b)(14),
"prohibition of access to records" described in Section 214(b)(15),
and "injunctive relief" described in Section 214(b)(16), the
harm which that remedy is intended to prevent would be likely
to occur if the respondent were given any prior notice, or
greater notice than was actually given, of the petitioner's
efforts to obtain judicial relief;
(ii)
For the remedy of "grant of exclusive possession of residence"
described in Section 214(b)(2), the immediate danger of further
abuse of petitioner by respondent, if petitioner chooses or
had chosen to remain in the residence or household while respondent
was given any prior notice or greater notice than was actually
given of petitioner's efforts to obtain judicial relief, outweighs
the hardships to respondent of an emergency order granting
petitioner exclusive possession of the residence or household.
This remedy shall not be denied because petitioner has or
could obtain temporary shelter elsewhere while prior notice
is given to respondent, unless the hardships to respondent
from exclusion from the home substantially outweigh those
to petitioner;
(iii)
For the remedy of "possession of personal property" described
in Section 214(b)(10), improper disposition of the personal
property would be likely to occur if respondent were given
any prior notice, or greater notice than was actually given,
of petitioner's efforts to obtain judicial relief, or petitioner
has an immediate and pressing need for possession of that
property. An emergency order may not include the counseling,
legal custody, payment of support or monetary compensation
remedies.
(b) Appearance by respondent. If respondent
appears in court for this hearing for an emergency order,
he or she may elect to file a general appearance and testify.
Any resulting order may be an emergency order, governed by
this Section. Notwithstanding the requirements of this Section,
if all requirements of Section 218 have been met, the court
may issue a 30-day interim order.
(c) Emergency orders: court holidays
and evenings.
(1)
Prerequisites. When the court is unavailable at the close
of business, the petitioner may file a petition for a 21-day
emergency order before any available circuit judge or associate
judge who may grant relief under this Act. If the judge finds
that there is an immediate and present danger of abuse to
petitioner and that petitioner has satisfied the prerequisites
set forth in subsection (a) of Section 217, that judge may
issue an emergency order of protection.
(1.5)
Issuance of order. The chief judge of the circuit court may
designate for each county in the circuit at least one judge
to be reasonably available to issue orally, by telephone,
by facsimile, or otherwise, an emergency order of protection
at all times, whether or not the court is in session.
(2)
Certification and transfer. Any order issued under this Section
and any documentation in support thereof shall be certified
on the next court day to the appropriate court. The clerk
of that court shall immediately assign a case number, file
the petition, order and other documents with the court, and
enter the order of record and file it with the sheriff for
service, in accordance with Section 222. Filing the petition
shall commence proceedings for further relief under Section
202. Failure to comply with the requirements of this subsection
shall not affect the validity of the order.
(Source: P.A. 90-392, eff. 1-1-98.)
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(750
ILCS 60/218) Sec. 218. 30-Day interim order of protection.
(a)
Prerequisites. An interim order of protection shall issue
if petitioner has served notice of the hearing for that order
on respondent, in accordance with Section 211, and satisfies
the requirements of this subsection for one or more of the
requested remedies. For each remedy requested, petitioner
shall establish that:
(1)
The court has jurisdiction under Section 208;
(2)
The requirements of Section 214 are satisfied; and
(3)
A general appearance was made or filed by or for respondent;
or process was served on respondent in the manner required
by Section 210; or the petitioner is diligently attempting
to complete the required service of process. An interim order
may not include the counseling, payment of support or monetary
compensation remedies, unless the respondent has filed a general
appearance or has been personally served.
(b) Appearance by respondent. If respondent
appears in court for this hearing for an interim order, he
or she may elect to file a general appearance and testify.
Any resulting order may be an interim order, governed by this
Section. Notwithstanding the requirements of this Section,
if all requirements of Section 219 have been met, the Court
may issue a plenary order of protection.
(Source: P.A. 87-1186.)
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(750
ILCS 60/219) Sec. 219. Plenary Order of Protection.
A plenary
order of protection shall issue if petitioner has served notice
of the hearing for that order on respondent, in accordance
with Section 211, and satisfies the requirements of this Section
for one or more of the requested remedies. For each remedy
requested, petitioner must establish that:
(1) The court has jurisdiction under
Section 208;
(2) The requirements of Section 214
are satisfied; and
(3) A general appearance was made
or filed by or for respondent or process was served on respondent
in the manner required by Section 210; and
(4) Respondent has answered or is
in default.
(Source: P.A. 84-1305.)
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(750
ILCS 60/220) Sec. 220. Duration and extension of orders.
(a)
Duration of emergency and interim orders. Unless re-opened
or extended or voided by entry of an order of greater duration:
(1)
Emergency orders issued under Section 217 shall be effective
for not less than 14 nor more than 21 days;
(2)
Interim orders shall be effective for up to 30 days.
(b) Duration of plenary orders. Except
as otherwise provided in this Section, a plenary order of
protection shall be valid for a fixed period of time, not
to exceed two years.
(1)
A plenary order of protection entered in conjunction with
another civil proceeding shall remain in effect as follows:
(i)
if entered as preliminary relief in that other proceeding,
until entry of final judgment in that other proceeding;
(ii)
if incorporated into the final judgment in that other proceeding,
until the order of protection is vacated or modified; or
(iii)
if incorporated in an order for involuntary commitment, until
termination of both the involuntary commitment and any voluntary
commitment, or for a fixed period of time not exceeding 2
years.
(2)
A plenary order of protection entered in conjunction with
a criminal prosecution shall remain in effect as follows:
(i)
if entered during pre-trial release, until disposition, withdrawal,
or dismissal of the underlying charge; if, however, the case
is continued as an independent cause of action, the order's
