96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5489

 

Introduced 2/5/2010, by Rep. Randy Ramey, Jr.

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/112A-14   from Ch. 38, par. 112A-14
725 ILCS 5/112A-17   from Ch. 38, par. 112A-17
750 ILCS 60/214   from Ch. 40, par. 2312-14

    Amends the Code of Criminal Procedure of 1963 and the Illinois Domestic Violence Act of 1986. Makes changes so that the civil and criminal statutes relating to remedies when the court issues an order of protection are consistent.


LRB096 17403 RLC 32756 b

 

 

A BILL FOR

 

HB5489 LRB096 17403 RLC 32756 b

1     AN ACT concerning orders of protection.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Code of Criminal Procedure of 1963 is
5 amended by changing Sections 112A-14 and 112A-17 as follows:
 
6     (725 ILCS 5/112A-14)  (from Ch. 38, par. 112A-14)
7     Sec. 112A-14. Order of protection; remedies.
8     (a) Issuance of order. If the court finds that petitioner
9 has been abused by a family or household member, as defined in
10 this Article, an order of protection prohibiting such abuse
11 shall issue; provided that petitioner must also satisfy the
12 requirements of one of the following Sections, as appropriate:
13 Section 112A-17 on emergency orders, Section 112A-18 on interim
14 orders, or Section 112A-19 on plenary orders. Petitioner shall
15 not be denied an order of protection because petitioner or
16 respondent is a minor. The court, when determining whether or
17 not to issue an order of protection, shall not require physical
18 manifestations of abuse on the person of the victim.
19 Modification and extension of prior orders of protection shall
20 be in accordance with this Article.
21     (b) Remedies and standards. The remedies to be included in
22 an order of protection shall be determined in accordance with
23 this Section and one of the following Sections, as appropriate:

 

 

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1 Section 112A-17 on emergency orders, Section 112A-18 on interim
2 orders, and Section 112A-19 on plenary orders. The remedies
3 listed in this subsection shall be in addition to other civil
4 or criminal remedies available to petitioner.
5         (1) Prohibition of abuse. Prohibit respondent's
6     harassment, interference with personal liberty,
7     intimidation of a dependent, physical abuse or willful
8     deprivation, as defined in this Article, if such abuse has
9     occurred or otherwise appears likely to occur if not
10     prohibited.
11         (2) Grant of exclusive possession of residence.
12     Prohibit respondent from entering or remaining in any
13     residence, or household, or premises of the petitioner,
14     including one owned or leased by respondent, if petitioner
15     has a right to occupancy thereof. The grant of exclusive
16     possession of the residence, household, or premises shall
17     not affect title to real property, nor shall the court be
18     limited by the standard set forth in Section 701 of the
19     Illinois Marriage and Dissolution of Marriage Act.
20             (A) Right to occupancy. A party has a right to
21         occupancy of a residence or household if it is solely
22         or jointly owned or leased by that party, that party's
23         spouse, a person with a legal duty to support that
24         party or a minor child in that party's care, or by any
25         person or entity other than the opposing party that
26         authorizes that party's occupancy (e.g., a domestic

 

 

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1         violence shelter). Standards set forth in subparagraph
2         (B) shall not preclude equitable relief.
3             (B) Presumption of hardships. If petitioner and
4         respondent each has the right to occupancy of a
5         residence or household, the court shall balance (i) the
6         hardships to respondent and any minor child or
7         dependent adult in respondent's care resulting from
8         entry of this remedy with (ii) the hardships to
9         petitioner and any minor child or dependent adult in
10         petitioner's care resulting from continued exposure to
11         the risk of abuse (should petitioner remain at the
12         residence or household) or from loss of possession of
13         the residence or household (should petitioner leave to
14         avoid the risk of abuse). When determining the balance
15         of hardships, the court shall also take into account
16         the accessibility of the residence or household.
17         Hardships need not be balanced if respondent does not
18         have a right to occupancy.
19             The balance of hardships is presumed to favor
20         possession by petitioner unless the presumption is
21         rebutted by a preponderance of the evidence, showing
22         that the hardships to respondent substantially
23         outweigh the hardships to petitioner and any minor
24         child or dependent adult in petitioner's care. The
25         court, on the request of petitioner or on its own
26         motion, may order respondent to provide suitable,

 

 

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1         accessible, alternate housing for petitioner instead
2         of excluding respondent from a mutual residence or
3         household.
4         (3) Stay away order and additional prohibitions. Order
5     respondent to stay away from petitioner or any other person
6     protected by the order of protection, or prohibit
7     respondent from entering or remaining present at
8     petitioner's school, place of employment, or other
9     specified places at times when petitioner is present, or
10     both, if reasonable, given the balance of hardships.
11     Hardships need not be balanced for the court to enter a
12     stay away order or prohibit entry if respondent has no
13     right to enter the premises.
14         If an order of protection grants petitioner exclusive
15     possession of the residence, or prohibits respondent from
16     entering the residence, or orders respondent to stay away
17     from petitioner or other protected persons, then the court
18     may allow respondent access to the residence to remove
19     items of clothing and personal adornment used exclusively
20     by respondent, medications, and other items as the court
21     directs. The right to access shall be exercised on only one
22     occasion as the court directs and in the presence of an
23     agreed-upon adult third party or law enforcement officer.
24         (4) Counseling. Require or recommend the respondent to
25     undergo counseling for a specified duration with a social
26     worker, psychologist, clinical psychologist, psychiatrist,

 

 

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1     family service agency, alcohol or substance abuse program,
2     mental health center guidance counselor, agency providing
3     services to elders, program designed for domestic violence
4     abusers or any other guidance service the court deems
5     appropriate. The court may order the respondent in any
6     intimate partner relationship to report to an Illinois
7     Department of Human Services protocol approved partner
8     abuse intervention program for an assessment and to follow
9     all recommended treatment.
10         (5) Physical care and possession of the minor child. In
11     order to protect the minor child from abuse, neglect, or
12     unwarranted separation from the person who has been the
13     minor child's primary caretaker, or to otherwise protect
14     the well-being of the minor child, the court may do either
15     or both of the following: (i) grant petitioner physical
16     care or possession of the minor child, or both, or (ii)
17     order respondent to return a minor child to, or not remove
18     a minor child from, the physical care of a parent or person
19     in loco parentis.
20         If a court finds, after a hearing, that respondent has
21     committed abuse (as defined in Section 112A-3) of a minor
22     child, there shall be a rebuttable presumption that
23     awarding physical care to respondent would not be in the
24     minor child's best interest.
25         (6) Temporary legal custody. Award temporary legal
26     custody to petitioner in accordance with this Section, the

 

 

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1     Illinois Marriage and Dissolution of Marriage Act, the
2     Illinois Parentage Act of 1984, and this State's Uniform
3     Child-Custody Jurisdiction and Enforcement Act.
4         If a court finds, after a hearing, that respondent has
5     committed abuse (as defined in Section 112A-3) of a minor
6     child, there shall be a rebuttable presumption that
7     awarding temporary legal custody to respondent would not be
8     in the child's best interest.
9         (7) Visitation. Determine the visitation rights, if
10     any, of respondent in any case in which the court awards
11     physical care or temporary legal custody of a minor child
12     to petitioner. The court shall restrict or deny
13     respondent's visitation with a minor child if the court
14     finds that respondent has done or is likely to do any of
15     the following: (i) abuse or endanger the minor child during
16     visitation; (ii) use the visitation as an opportunity to
17     abuse or harass petitioner or petitioner's family or
18     household members; (iii) improperly conceal or detain the
19     minor child; or (iv) otherwise act in a manner that is not
20     in the best interests of the minor child. The court shall
21     not be limited by the standards set forth in Section 607.1
22     of the Illinois Marriage and Dissolution of Marriage Act.
23     If the court grants visitation, the order shall specify
24     dates and times for the visitation to take place or other
25     specific parameters or conditions that are appropriate. No
26     order for visitation shall refer merely to the term

 

 

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1     "reasonable visitation".
2         Petitioner may deny respondent access to the minor
3     child if, when respondent arrives for visitation,
4     respondent is under the influence of drugs or alcohol and
5     constitutes a threat to the safety and well-being of
6     petitioner or petitioner's minor children or is behaving in
7     a violent or abusive manner.
8         If necessary to protect any member of petitioner's
9     family or household from future abuse, respondent shall be
10     prohibited from coming to petitioner's residence to meet
11     the minor child for visitation, and the parties shall
12     submit to the court their recommendations for reasonable
13     alternative arrangements for visitation. A person may be
14     approved to supervise visitation only after filing an
15     affidavit accepting that responsibility and acknowledging
16     accountability to the court.
17         (8) Removal or concealment of minor child. Prohibit
18     respondent from removing a minor child from the State or
19     concealing the child within the State.
20         (9) Order to appear. Order the respondent to appear in
21     court, alone or with a minor child, to prevent abuse,
22     neglect, removal or concealment of the child, to return the
23     child to the custody or care of the petitioner or to permit
24     any court-ordered interview or examination of the child or
25     the respondent.
26         (10) Possession of personal property. Grant petitioner

 

 

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1     exclusive possession of personal property and, if
2     respondent has possession or control, direct respondent to
3     promptly make it available to petitioner, if:
4             (i) petitioner, but not respondent, owns the
5         property; or
6             (ii) the parties own the property jointly; sharing
7         it would risk abuse of petitioner by respondent or is
8         impracticable; and the balance of hardships favors
9         temporary possession by petitioner.
10         If petitioner's sole claim to ownership of the property
11     is that it is marital property, the court may award
12     petitioner temporary possession thereof under the
13     standards of subparagraph (ii) of this paragraph only if a
14     proper proceeding has been filed under the Illinois
15     Marriage and Dissolution of Marriage Act, as now or
16     hereafter amended.
17         No order under this provision shall affect title to
18     property.
19         (11) Protection of property. Forbid the respondent
20     from taking, transferring, encumbering, concealing,
21     damaging or otherwise disposing of any real or personal
22     property, except as explicitly authorized by the court, if:
23             (i) petitioner, but not respondent, owns the
24         property; or
25             (ii) the parties own the property jointly, and the
26         balance of hardships favors granting this remedy.

 

 

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1         If petitioner's sole claim to ownership of the property
2     is that it is marital property, the court may grant
3     petitioner relief under subparagraph (ii) of this
4     paragraph only if a proper proceeding has been filed under
5     the Illinois Marriage and Dissolution of Marriage Act, as
6     now or hereafter amended.
7         The court may further prohibit respondent from
8     improperly using the financial or other resources of an
9     aged member of the family or household for the profit or
10     advantage of respondent or of any other person.
11         (11.5) Protection of animals. Grant the petitioner the
12     exclusive care, custody, or control of any animal owned,
13     possessed, leased, kept, or held by either the petitioner
14     or the respondent or a minor child residing in the
15     residence or household of either the petitioner or the
16     respondent and order the respondent to stay away from the
17     animal and forbid the respondent from taking,
18     transferring, encumbering, concealing, harming, or
19     otherwise disposing of the animal.
20         (12) Order for payment of support. Order respondent to
21     pay temporary support for the petitioner or any child in
22     the petitioner's care or custody, when the respondent has a
23     legal obligation to support that person, in accordance with
24     the Illinois Marriage and Dissolution of Marriage Act,
25     which shall govern, among other matters, the amount of
26     support, payment through the clerk and withholding of

 

 

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1     income to secure payment. An order for child support may be
2     granted to a petitioner with lawful physical care or
3     custody of a child, or an order or agreement for physical
4     care or custody, prior to entry of an order for legal
5     custody. Such a support order shall expire upon entry of a
6     valid order granting legal custody to another, unless
7     otherwise provided in the custody order.
8         (13) Order for payment of losses. Order respondent to
9     pay petitioner for losses suffered as a direct result of
10     the abuse. Such losses shall include, but not be limited
11     to, medical expenses, lost earnings or other support,
12     repair or replacement of property damaged or taken,
13     reasonable attorney's fees, court costs and moving or other
14     travel expenses, including additional reasonable expenses
15     for temporary shelter and restaurant meals.
16             (i) Losses affecting family needs. If a party is
17         entitled to seek maintenance, child support or
18         property distribution from the other party under the
19         Illinois Marriage and Dissolution of Marriage Act, as
20         now or hereafter amended, the court may order
21         respondent to reimburse petitioner's actual losses, to
22         the extent that such reimbursement would be
23         "appropriate temporary relief", as authorized by
24         subsection (a)(3) of Section 501 of that Act.
25             (ii) Recovery of expenses. In the case of an
26         improper concealment or removal of a minor child, the

 

 

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1         court may order respondent to pay the reasonable
2         expenses incurred or to be incurred in the search for
3         and recovery of the minor child, including but not
4         limited to legal fees, court costs, private
5         investigator fees, and travel costs.
6         (14) Prohibition of entry. Prohibit the respondent
7     from entering or remaining in the residence or household
8     while the respondent is under the influence of alcohol or
9     drugs and constitutes a threat to the safety and well-being
10     of the petitioner or the petitioner's children.
11         (14.5) Prohibition of firearm possession.
12             (a) When a complaint is made under a request for an
13         order of protection, that the respondent has
14         threatened or is likely to use firearms illegally
15         against the petitioner, the court shall examine on oath
16         the petitioner, and any witnesses who may be produced.
17         If the court is satisfied that there is any danger of
18         the illegal use of firearms, and the respondent is
19         present in court, it shall issue an order that any
20         firearms in the possession of the respondent, except as
21         provided in subsection (b), be turned over to the local
22         law enforcement agency for safekeeping. If the court is
23         satisfied that there is any danger of the illegal use
24         of firearms, and the respondent is present in court, it
25         shall issue an order that the respondent's Firearm
26         Owner's Identification Card be turned over to the local

 

 

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1         law enforcement agency for safekeeping. If the court is
2         satisfied that there is any danger of the illegal use
3         of firearms, and if the respondent is not present in
4         court, the court shall issue a warrant for seizure of
5         the respondent's Firearm Owner's Identification Card
6         and any firearm in the possession of the respondent,
7         except as provided in subsection (b), be turned over to
8         the local law enforcement agency for safekeeping. The
9         period of safekeeping shall be for a stated period of
10         time not to exceed 2 years. The firearm or firearms
11         shall be returned to the respondent at the end of the
12         stated period or at expiration of the order of
13         protection, whichever is sooner.
14             (b) If the respondent is a peace officer as defined
15         in Section 2-13 of the Criminal Code of 1961, the court
16         shall order that any firearms used by the respondent in
17         the performance of his or her duties as a peace officer
18         be surrendered to the chief law enforcement executive
19         of the agency in which the respondent is employed, who
20         shall retain the firearms for safekeeping for the
21         stated period not to exceed 2 years as set forth in the
22         court order.
23             (c) Upon expiration of the period of safekeeping,
24         if the firearms or Firearm Owner's Identification Card
25         cannot be returned to respondent because respondent
26         cannot be located, fails to respond to requests to

 

 

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1         retrieve the firearms, or is not lawfully eligible to
2         possess a firearm, upon petition from the local law
3         enforcement agency, the court may order the local law
4         enforcement agency to destroy the firearms, use the
5         firearms for training purposes, or for any other
6         application as deemed appropriate by the local law
7         enforcement agency; or that the firearms be turned over
8         to a third party who is lawfully eligible to possess
9         firearms, and who does not reside with respondent.
10         (15) Prohibition of access to records. If an order of
11     protection prohibits respondent from having contact with
12     the minor child, or if petitioner's address is omitted
13     under subsection (b) of Section 112A-5, or if necessary to
14     prevent abuse or wrongful removal or concealment of a minor
15     child, the order shall deny respondent access to, and
16     prohibit respondent from inspecting, obtaining, or
17     attempting to inspect or obtain, school or any other
18     records of the minor child who is in the care of
19     petitioner.
20         (16) Order for payment of shelter services. Order
21     respondent to reimburse a shelter providing temporary
22     housing and counseling services to the petitioner for the
23     cost of the services, as certified by the shelter and
24     deemed reasonable by the court.
25         (17) Order for injunctive relief. Enter injunctive
26     relief necessary or appropriate to prevent further abuse of

 

 

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1     a family or household member or to effectuate one of the
2     granted remedies, if supported by the balance of hardships.
3     If the harm to be prevented by the injunction is abuse or
4     any other harm that one of the remedies listed in
5     paragraphs (1) through (16) of this subsection is designed
6     to prevent, no further evidence is necessary to establish
7     that the harm is an irreparable injury.
8     (c) Relevant factors; findings.
9         (1) In determining whether to grant a specific remedy,
10     other than payment of support, the court shall consider
11     relevant factors, including but not limited to the
12     following:
13             (i) the nature, frequency, severity, pattern and
14         consequences of the respondent's past abuse of the
15         petitioner or any family or household member,
16         including the concealment of his or her location in
17         order to evade service of process or notice, and the
18         likelihood of danger of future abuse to petitioner or
19         any member of petitioner's or respondent's family or
20         household; and
21             (ii) the danger that any minor child will be abused
22         or neglected or improperly removed from the
23         jurisdiction, improperly concealed within the State or
24         improperly separated from the child's primary
25         caretaker.
26         (2) In comparing relative hardships resulting to the

 

 

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1     parties from loss of possession of the family home, the
2     court shall consider relevant factors, including but not
3     limited to the following:
4             (i) availability, accessibility, cost, safety,
5         adequacy, location and other characteristics of
6         alternate housing for each party and any minor child or
7         dependent adult in the party's care;
8             (ii) the effect on the party's employment; and
9             (iii) the effect on the relationship of the party,
10         and any minor child or dependent adult in the party's
11         care, to family, school, church and community.
12         (3) Subject to the exceptions set forth in paragraph
13     (4) of this subsection, the court shall make its findings
14     in an official record or in writing, and shall at a minimum
15     set forth the following:
16             (i) That the court has considered the applicable
17         relevant factors described in paragraphs (1) and (2) of
18         this subsection.
19             (ii) Whether the conduct or actions of respondent,
20         unless prohibited, will likely cause irreparable harm
21         or continued abuse.
22             (iii) Whether it is necessary to grant the
23         requested relief in order to protect petitioner or
24         other alleged abused persons.
25         (4) For purposes of issuing an ex parte emergency order
26     of protection, the court, as an alternative to or as a

 

 

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1     supplement to making the findings described in paragraphs
2     (c)(3)(i) through (c)(3)(iii) of this subsection, may use
3     the following procedure:
4         When a verified petition for an emergency order of
5     protection in accordance with the requirements of Sections
6     112A-5 and 112A-17 is presented to the court, the court
7     shall examine petitioner on oath or affirmation. An
8     emergency order of protection shall be issued by the court
9     if it appears from the contents of the petition and the
10     examination of petitioner that the averments are
11     sufficient to indicate abuse by respondent and to support
12     the granting of relief under the issuance of the emergency
13     order of protection.
14         (5) Never married parties. No rights or
15     responsibilities for a minor child born outside of marriage
16     attach to a putative father until a father and child
17     relationship has been established under the Illinois
18     Parentage Act of 1984. Absent such an adjudication, no
19     putative father shall be granted temporary custody of the
20     minor child, visitation with the minor child, or physical
21     care and possession of the minor child, nor shall an order
22     of payment for support of the minor child be entered.
23     (d) Balance of hardships; findings. If the court finds that
24 the balance of hardships does not support the granting of a
25 remedy governed by paragraph (2), (3), (10), (11), or (16) of
26 subsection (b) of this Section, which may require such

 

 

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1 balancing, the court's findings shall so indicate and shall
2 include a finding as to whether granting the remedy will result
3 in hardship to respondent that would substantially outweigh the
4 hardship to petitioner from denial of the remedy. The findings
5 shall be an official record or in writing.
6     (e) Denial of remedies. Denial of any remedy shall not be
7 based, in whole or in part, on evidence that:
8         (1) Respondent has cause for any use of force, unless
9     that cause satisfies the standards for justifiable use of
10     force provided by Article VII of the Criminal Code of 1961;
11         (2) Respondent was voluntarily intoxicated;
12         (3) Petitioner acted in self-defense or defense of
13     another, provided that, if petitioner utilized force, such
14     force was justifiable under Article VII of the Criminal
15     Code of 1961;
16         (4) Petitioner did not act in self-defense or defense
17     of another;
18         (5) Petitioner left the residence or household to avoid
19     further abuse by respondent;
20         (6) Petitioner did not leave the residence or household
21     to avoid further abuse by respondent;
22         (7) Conduct by any family or household member excused
23     the abuse by respondent, unless that same conduct would
24     have excused such abuse if the parties had not been family
25     or household members.
26 (Source: P.A. 95-234, eff. 1-1-08; 95-773, eff. 1-1-09; 96-701,

 

 

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1 eff. 1-1-10.)
 
2     (725 ILCS 5/112A-17)  (from Ch. 38, par. 112A-17)
3     Sec. 112A-17. Emergency order of protection.
4     (a) Prerequisites. An emergency order of protection shall
5 issue if petitioner satisfies the requirements of this
6 subsection for one or more of the requested remedies. For each
7 remedy requested, petitioner shall establish that:
8         (1) The court has jurisdiction under Section 112A-9;
9         (2) The requirements of Section 112A-14 are satisfied;
10     and
11         (3) There is good cause to grant the remedy, regardless
12     of prior service of process or of notice upon the
13     respondent, because:
14             (i) For the remedies of "prohibition of abuse"
15         described in Section 112A-14(b)(1), "stay away order
16         and additional prohibitions" described in Section
17         112A-14(b)(3), "removal or concealment of minor child"
18         described in Section 112A-14(b)(8), "order to appear"
19         described in Section 112A-14(b)(9), "physical care and
20         possession of the minor child" described in Section
21         112A-14(b)(5), "protection of property" described in
22         Section 112A-14(b)(11), "prohibition of entry"
23         described in Section 112A-14(b)(14), "prohibition of
24         firearm possession" described in Section
25         112A-14(b)(14.5), "prohibition of access to records"

 

 

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1         described in Section 112A-14(b)(15), and "injunctive
2         relief" described in Section 112A-14(b)(16), the harm
3         which that remedy is intended to prevent would be
4         likely to occur if the respondent were given any prior
5         notice, or greater notice than was actually given, of
6         the petitioner's efforts to obtain judicial relief;
7             (ii) For the remedy of "grant of exclusive
8         possession of residence" described in Section
9         112A-14(b)(2), the immediate danger of further abuse
10         of petitioner by respondent, if petitioner chooses or
11         had chosen to remain in the residence or household
12         while respondent was given any prior notice or greater
13         notice than was actually given of petitioner's efforts
14         to obtain judicial relief, outweighs the hardships to
15         respondent of an emergency order granting petitioner
16         exclusive possession of the residence or household.
17         This remedy shall not be denied because petitioner has
18         or could obtain temporary shelter elsewhere while
19         prior notice is given to respondent, unless the
20         hardships to respondent from exclusion from the home
21         substantially outweigh those to petitioner.
22             (iii) For the remedy of "possession of personal
23         property" described in Section 112A-14(b)(10),
24         improper disposition of the personal property would be
25         likely to occur if respondent were given any prior
26         notice, or greater notice than was actually given, of

 

 

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1         petitioner's efforts to obtain judicial relief, or
2         petitioner has an immediate and pressing need for
3         possession of that property.
4     An emergency order may not include the counseling, legal
5 custody, payment of support or monetary compensation remedies.
6     (b) Appearance by respondent. If respondent appears in
7 court for this hearing for an emergency order, he or she may
8 elect to file a general appearance and testify. Any resulting
9 order may be an emergency order, governed by this Section.
10 Notwithstanding the requirements of this Section, if all
11 requirements of Section 112A-18 have been met, the Court may
12 issue a 30-day interim order.
13     (c) Emergency orders: court holidays and evenings.
14         (1) Prerequisites. When the court is unavailable at the
15     close of business, the petitioner may file a petition for a
16     21-day emergency order before any available circuit judge
17     or associate judge who may grant relief under this Article.
18     If the judge finds that there is an immediate and present
19     danger of abuse to petitioner and that petitioner has
20     satisfied the prerequisites set forth in subsection (a) of
21     Section 112A-17, that judge may issue an emergency order of
22     protection.
23         (1.5) Issuance of order. The chief judge of the circuit
24     court may designate for each county in the circuit at least
25     one judge to be reasonably available to issue orally, by
26     telephone, by facsimile, or otherwise, an emergency order

 

 

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1     of protection at all times, whether or not the court is in
2     session.
3         (2) Certification and transfer. Any order issued under
4     this Section and any documentation in support thereof shall
5     be certified on the next court day to the appropriate
6     court. The clerk of that court shall immediately assign a
7     case number, file the petition, order and other documents
8     with the court and enter the order of record and file it
9     with the sheriff for service, in accordance with Section
10     112A-22. Filing the petition shall commence proceedings
11     for further relief, under Section 112A-2. Failure to comply
12     with the requirements of this subsection shall not affect
13     the validity of the order.
14 (Source: P.A. 90-392, eff. 1-1-98.)
 
15     Section 10. The Illinois Domestic Violence Act of 1986 is
16 amended by changing Section 214 as follows:
 
17     (750 ILCS 60/214)  (from Ch. 40, par. 2312-14)
18     Sec. 214. Order of protection; remedies.
19     (a) Issuance of order. If the court finds that petitioner
20 has been abused by a family or household member or that
21 petitioner is a high-risk adult who has been abused, neglected,
22 or exploited, as defined in this Act, an order of protection
23 prohibiting the abuse, neglect, or exploitation shall issue;
24 provided that petitioner must also satisfy the requirements of

 

 

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1 one of the following Sections, as appropriate: Section 217 on
2 emergency orders, Section 218 on interim orders, or Section 219
3 on plenary orders. Petitioner shall not be denied an order of
4 protection because petitioner or respondent is a minor. The
5 court, when determining whether or not to issue an order of
6 protection, shall not require physical manifestations of abuse
7 on the person of the victim. Modification and extension of
8 prior orders of protection shall be in accordance with this
9 Act.
10     (b) Remedies and standards. The remedies to be included in
11 an order of protection shall be determined in accordance with
12 this Section and one of the following Sections, as appropriate:
13 Section 217 on emergency orders, Section 218 on interim orders,
14 and Section 219 on plenary orders. The remedies listed in this
15 subsection shall be in addition to other civil or criminal
16 remedies available to petitioner.
17         (1) Prohibition of abuse, neglect, or exploitation.
18     Prohibit respondent's harassment, interference with
19     personal liberty, intimidation of a dependent, physical
20     abuse, or willful deprivation, neglect or exploitation, as
21     defined in this Act, or stalking of the petitioner, as
22     defined in Section 12-7.3 of the Criminal Code of 1961, if
23     such abuse, neglect, exploitation, or stalking has
24     occurred or otherwise appears likely to occur if not
25     prohibited.
26         (2) Grant of exclusive possession of residence.

 

 

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1     Prohibit respondent from entering or remaining in any
2     residence, household, or premises of the petitioner,
3     including one owned or leased by respondent, if petitioner
4     has a right to occupancy thereof. The grant of exclusive
5     possession of the residence, household, or premises shall
6     not affect title to real property, nor shall the court be
7     limited by the standard set forth in Section 701 of the
8     Illinois Marriage and Dissolution of Marriage Act.
9             (A) Right to occupancy. A party has a right to
10         occupancy of a residence or household if it is solely
11         or jointly owned or leased by that party, that party's
12         spouse, a person with a legal duty to support that
13         party or a minor child in that party's care, or by any
14         person or entity other than the opposing party that
15         authorizes that party's occupancy (e.g., a domestic
16         violence shelter). Standards set forth in subparagraph
17         (B) shall not preclude equitable relief.
18             (B) Presumption of hardships. If petitioner and
19         respondent each has the right to occupancy of a
20         residence or household, the court shall balance (i) the
21         hardships to respondent and any minor child or
22         dependent adult in respondent's care resulting from
23         entry of this remedy with (ii) the hardships to
24         petitioner and any minor child or dependent adult in
25         petitioner's care resulting from continued exposure to
26         the risk of abuse (should petitioner remain at the

 

 

HB5489 - 24 - LRB096 17403 RLC 32756 b

1         residence or household) or from loss of possession of
2         the residence or household (should petitioner leave to
3         avoid the risk of abuse). When determining the balance
4         of hardships, the court shall also take into account
5         the accessibility of the residence or household.
6         Hardships need not be balanced if respondent does not
7         have a right to occupancy.
8             The balance of hardships is presumed to favor
9         possession by petitioner unless the presumption is
10         rebutted by a preponderance of the evidence, showing
11         that the hardships to respondent substantially
12         outweigh the hardships to petitioner and any minor
13         child or dependent adult in petitioner's care. The
14         court, on the request of petitioner or on its own
15         motion, may order respondent to provide suitable,
16         accessible, alternate housing for petitioner instead
17         of excluding respondent from a mutual residence or
18         household.
19         (3) Stay away order and additional prohibitions. Order
20     respondent to stay away from petitioner or any other person
21     protected by the order of protection, or prohibit
22     respondent from entering or remaining present at
23     petitioner's school, place of employment, or other
24     specified places at times when petitioner is present, or
25     both, if reasonable, given the balance of hardships.
26     Hardships need not be balanced for the court to enter a

 

 

HB5489 - 25 - LRB096 17403 RLC 32756 b

1     stay away order or prohibit entry if respondent has no
2     right to enter the premises.
3         If an order of protection grants petitioner exclusive
4     possession of the residence, or prohibits respondent from
5     entering the residence, or orders respondent to stay away
6     from petitioner or other protected persons, then the court
7     may allow respondent access to the residence to remove
8     items of clothing and personal adornment used exclusively
9     by respondent, medications, and other items as the court
10     directs. The right to access shall be exercised on only one
11     occasion as the court directs and in the presence of an
12     agreed-upon adult third party or law enforcement officer.
13         (4) Counseling. Require or recommend the respondent to
14     undergo counseling for a specified duration with a social
15     worker, psychologist, clinical psychologist, psychiatrist,
16     family service agency, alcohol or substance abuse program,
17     mental health center guidance counselor, agency providing
18     services to elders, program designed for domestic violence
19     abusers or any other guidance service the court deems
20     appropriate. The Court may order the respondent in any
21     intimate partner relationship to report to an Illinois
22     Department of Human Services protocol approved partner
23     abuse intervention program for an assessment and to follow
24     all recommended treatment.
25         (5) Physical care and possession of the minor child. In
26     order to protect the minor child from abuse, neglect, or

 

 

HB5489 - 26 - LRB096 17403 RLC 32756 b

1     unwarranted separation from the person who has been the
2     minor child's primary caretaker, or to otherwise protect
3     the well-being of the minor child, the court may do either
4     or both of the following: (i) grant petitioner physical
5     care or possession of the minor child, or both, or (ii)
6     order respondent to return a minor child to, or not remove
7     a minor child from, the physical care of a parent or person
8     in loco parentis.
9         If a court finds, after a hearing, that respondent has
10     committed abuse (as defined in Section 103) of a minor
11     child, there shall be a rebuttable presumption that
12     awarding physical care to respondent would not be in the
13     minor child's best interest.
14         (6) Temporary legal custody. Award temporary legal
15     custody to petitioner in accordance with this Section, the
16     Illinois Marriage and Dissolution of Marriage Act, the
17     Illinois Parentage Act of 1984, and this State's Uniform
18     Child-Custody Jurisdiction and Enforcement Act.
19         If a court finds, after a hearing, that respondent has
20     committed abuse (as defined in Section 103) of a minor
21     child, there shall be a rebuttable presumption that
22     awarding temporary legal custody to respondent would not be
23     in the child's best interest.
24         (7) Visitation. Determine the visitation rights, if
25     any, of respondent in any case in which the court awards
26     physical care or temporary legal custody of a minor child

 

 

HB5489 - 27 - LRB096 17403 RLC 32756 b

1     to petitioner. The court shall restrict or deny
2     respondent's visitation with a minor child if the court
3     finds that respondent has done or is likely to do any of
4     the following: (i) abuse or endanger the minor child during
5     visitation; (ii) use the visitation as an opportunity to
6     abuse or harass petitioner or petitioner's family or
7     household members; (iii) improperly conceal or detain the
8     minor child; or (iv) otherwise act in a manner that is not
9     in the best interests of the minor child. The court shall
10     not be limited by the standards set forth in Section 607.1
11     of the Illinois Marriage and Dissolution of Marriage Act.
12     If the court grants visitation, the order shall specify
13     dates and times for the visitation to take place or other
14     specific parameters or conditions that are appropriate. No
15     order for visitation shall refer merely to the term
16     "reasonable visitation".
17         Petitioner may deny respondent access to the minor
18     child if, when respondent arrives for visitation,
19     respondent is under the influence of drugs or alcohol and
20     constitutes a threat to the safety and well-being of
21     petitioner or petitioner's minor children or is behaving in
22     a violent or abusive manner.
23         If necessary to protect any member of petitioner's
24     family or household from future abuse, respondent shall be
25     prohibited from coming to petitioner's residence to meet
26     the minor child for visitation, and the parties shall

 

 

HB5489 - 28 - LRB096 17403 RLC 32756 b

1     submit to the court their recommendations for reasonable
2     alternative arrangements for visitation. A person may be
3     approved to supervise visitation only after filing an
4     affidavit accepting that responsibility and acknowledging
5     accountability to the court.
6         (8) Removal or concealment of minor child. Prohibit
7     respondent from removing a minor child from the State or
8     concealing the child within the State.
9         (9) Order to appear. Order the respondent to appear in
10     court, alone or with a minor child, to prevent abuse,
11     neglect, removal or concealment of the child, to return the
12     child to the custody or care of the petitioner or to permit
13     any court-ordered interview or examination of the child or
14     the respondent.
15         (10) Possession of personal property. Grant petitioner
16     exclusive possession of personal property and, if
17     respondent has possession or control, direct respondent to
18     promptly make it available to petitioner, if:
19             (i) petitioner, but not respondent, owns the
20         property; or
21             (ii) the parties own the property jointly; sharing
22         it would risk abuse of petitioner by respondent or is
23         impracticable; and the balance of hardships favors
24         temporary possession by petitioner.
25         If petitioner's sole claim to ownership of the property
26     is that it is marital property, the court may award

 

 

HB5489 - 29 - LRB096 17403 RLC 32756 b

1     petitioner temporary possession thereof under the
2     standards of subparagraph (ii) of this paragraph only if a
3     proper proceeding has been filed under the Illinois
4     Marriage and Dissolution of Marriage Act, as now or
5     hereafter amended.
6         No order under this provision shall affect title to
7     property.
8         (11) Protection of property. Forbid the respondent
9     from taking, transferring, encumbering, concealing,
10     damaging or otherwise disposing of any real or personal
11     property, except as explicitly authorized by the court, if:
12             (i) petitioner, but not respondent, owns the
13         property; or
14             (ii) the parties own the property jointly, and the
15         balance of hardships favors granting this remedy.
16         If petitioner's sole claim to ownership of the property
17     is that it is marital property, the court may grant
18     petitioner relief under subparagraph (ii) of this
19     paragraph only if a proper proceeding has been filed under
20     the Illinois Marriage and Dissolution of Marriage Act, as
21     now or hereafter amended.
22         The court may further prohibit respondent from
23     improperly using the financial or other resources of an
24     aged member of the family or household for the profit or
25     advantage of respondent or of any other person.
26         (11.5) Protection of animals. Grant the petitioner the

 

 

HB5489 - 30 - LRB096 17403 RLC 32756 b

1     exclusive care, custody, or control of any animal owned,
2     possessed, leased, kept, or held by either the petitioner
3     or the respondent or a minor child residing in the
4     residence or household of either the petitioner or the
5     respondent and order the respondent to stay away from the
6     animal and forbid the respondent from taking,
7     transferring, encumbering, concealing, harming, or
8     otherwise disposing of the animal.
9         (12) Order for payment of support. Order respondent to
10     pay temporary support for the petitioner or any child in
11     the petitioner's care or custody, when the respondent has a
12     legal obligation to support that person, in accordance with
13     the Illinois Marriage and Dissolution of Marriage Act,
14     which shall govern, among other matters, the amount of
15     support, payment through the clerk and withholding of
16     income to secure payment. An order for child support may be
17     granted to a petitioner with lawful physical care or
18     custody of a child, or an order or agreement for physical
19     care or custody, prior to entry of an order for legal
20     custody. Such a support order shall expire upon entry of a
21     valid order granting legal custody to another, unless
22     otherwise provided in the custody order.
23         (13) Order for payment of losses. Order respondent to
24     pay petitioner for losses suffered as a direct result of
25     the abuse, neglect, or exploitation. Such losses shall
26     include, but not be limited to, medical expenses, lost

 

 

HB5489 - 31 - LRB096 17403 RLC 32756 b

1     earnings or other support, repair or replacement of
2     property damaged or taken, reasonable attorney's fees,
3     court costs and moving or other travel expenses, including
4     additional reasonable expenses for temporary shelter and
5     restaurant meals.
6             (i) Losses affecting family needs. If a party is
7         entitled to seek maintenance, child support or
8         property distribution from the other party under the
9         Illinois Marriage and Dissolution of Marriage Act, as
10         now or hereafter amended, the court may order
11         respondent to reimburse petitioner's actual losses, to
12         the extent that such reimbursement would be
13         "appropriate temporary relief", as authorized by
14         subsection (a)(3) of Section 501 of that Act.
15             (ii) Recovery of expenses. In the case of an
16         improper concealment or removal of a minor child, the
17         court may order respondent to pay the reasonable
18         expenses incurred or to be incurred in the search for
19         and recovery of the minor child, including but not
20         limited to legal fees, court costs, private
21         investigator fees, and travel costs.
22         (14) Prohibition of entry. Prohibit the respondent
23     from entering or remaining in the residence or household
24     while the respondent is under the influence of alcohol or
25     drugs and constitutes a threat to the safety and well-being
26     of the petitioner or the petitioner's children.

 

 

HB5489 - 32 - LRB096 17403 RLC 32756 b

1         (14.5) Prohibition of firearm possession.
2             (a) When a complaint is made under a request for an
3         order of protection, that the respondent has
4         threatened or is likely to use firearms illegally
5         against the petitioner, and the respondent is present
6         in court, or has failed to appear after receiving
7         actual notice, the court shall examine on oath the
8         petitioner, and any witnesses who may be produced. If
9         the court is satisfied that there is any danger of the
10         illegal use of firearms, and the respondent is present
11         in court, it shall issue an order that any firearms and
12         any Firearm Owner's Identification Card in the
13         possession of the respondent, except as provided in
14         subsection (b), be turned over to the local law
15         enforcement agency for safekeeping. If the court is
16         satisfied that there is any danger of the illegal use
17         of firearms, and if If the respondent is not present in
18         court has failed to appear, the court shall issue a
19         warrant for seizure of any firearm and Firearm Owner's
20         Identification Card in the possession of the
21         respondent, to be kept by the local law enforcement
22         agency for safekeeping, except as provided in
23         subsection (b). The period of safekeeping shall be for
24         a stated period of time not to exceed 2 years. The
25         firearm or firearms and Firearm Owner's Identification
26         Card shall be returned to the respondent at the end of

 

 

HB5489 - 33 - LRB096 17403 RLC 32756 b

1         the stated period or at expiration of the order of
2         protection, whichever is sooner.
3             (b) If the respondent is a peace officer as defined
4         in Section 2-13 of the Criminal Code of 1961, the court
5         shall order that any firearms used by the respondent in
6         the performance of his or her duties as a peace officer
7         be surrendered to the chief law enforcement executive
8         of the agency in which the respondent is employed, who
9         shall retain the firearms for safekeeping for the
10         stated period not to exceed 2 years as set forth in the
11         court order.
12             (c) Upon expiration of the period of safekeeping,
13         if the firearms or Firearm Owner's Identification Card
14         cannot be returned to respondent because respondent
15         cannot be located, fails to respond to requests to
16         retrieve the firearms, or is not lawfully eligible to
17         possess a firearm, upon petition from the local law
18         enforcement agency, the court may order the local law
19         enforcement agency to destroy the firearms, use the
20         firearms for training purposes, or for any other
21         application as deemed appropriate by the local law
22         enforcement agency; or that the firearms be turned over
23         to a third party who is lawfully eligible to possess
24         firearms, and who does not reside with respondent.
25         (15) Prohibition of access to records. If an order of
26     protection prohibits respondent from having contact with

 

 

HB5489 - 34 - LRB096 17403 RLC 32756 b

1     the minor child, or if petitioner's address is omitted
2     under subsection (b) of Section 203, or if necessary to
3     prevent abuse or wrongful removal or concealment of a minor
4     child, the order shall deny respondent access to, and
5     prohibit respondent from inspecting, obtaining, or
6     attempting to inspect or obtain, school or any other
7     records of the minor child who is in the care of
8     petitioner.
9         (16) Order for payment of shelter services. Order
10     respondent to reimburse a shelter providing temporary
11     housing and counseling services to the petitioner for the
12     cost of the services, as certified by the shelter and
13     deemed reasonable by the court.
14         (17) Order for injunctive relief. Enter injunctive
15     relief necessary or appropriate to prevent further abuse of
16     a family or household member or further abuse, neglect, or
17     exploitation of a high-risk adult with disabilities or to
18     effectuate one of the granted remedies, if supported by the
19     balance of hardships. If the harm to be prevented by the
20     injunction is abuse or any other harm that one of the
21     remedies listed in paragraphs (1) through (16) of this
22     subsection is designed to prevent, no further evidence is
23     necessary that the harm is an irreparable injury.
24     (c) Relevant factors; findings.
25         (1) In determining whether to grant a specific remedy,
26     other than payment of support, the court shall consider

 

 

HB5489 - 35 - LRB096 17403 RLC 32756 b

1     relevant factors, including but not limited to the
2     following:
3             (i) the nature, frequency, severity, pattern and
4         consequences of the respondent's past abuse, neglect
5         or exploitation of the petitioner or any family or
6         household member, including the concealment of his or
7         her location in order to evade service of process or
8         notice, and the likelihood of danger of future abuse,
9         neglect, or exploitation to petitioner or any member of
10         petitioner's or respondent's family or household; and
11             (ii) the danger that any minor child will be abused
12         or neglected or improperly removed from the
13         jurisdiction, improperly concealed within the State or
14         improperly separated from the child's primary
15         caretaker.
16         (2) In comparing relative hardships resulting to the
17     parties from loss of possession of the family home, the
18     court shall consider relevant factors, including but not
19     limited to the following:
20             (i) availability, accessibility, cost, safety,
21         adequacy, location and other characteristics of
22         alternate housing for each party and any minor child or
23         dependent adult in the party's care;
24             (ii) the effect on the party's employment; and
25             (iii) the effect on the relationship of the party,
26         and any minor child or dependent adult in the party's

 

 

HB5489 - 36 - LRB096 17403 RLC 32756 b

1         care, to family, school, church and community.
2         (3) Subject to the exceptions set forth in paragraph
3     (4) of this subsection, the court shall make its findings
4     in an official record or in writing, and shall at a minimum
5     set forth the following:
6             (i) That the court has considered the applicable
7         relevant factors described in paragraphs (1) and (2) of
8         this subsection.
9             (ii) Whether the conduct or actions of respondent,
10         unless prohibited, will likely cause irreparable harm
11         or continued abuse.
12             (iii) Whether it is necessary to grant the
13         requested relief in order to protect petitioner or
14         other alleged abused persons.
15         (4) For purposes of issuing an ex parte emergency order
16     of protection, the court, as an alternative to or as a
17     supplement to making the findings described in paragraphs
18     (c)(3)(i) through (c)(3)(iii) of this subsection, may use
19     the following procedure:
20         When a verified petition for an emergency order of
21     protection in accordance with the requirements of Sections
22     203 and 217 is presented to the court, the court shall
23     examine petitioner on oath or affirmation. An emergency
24     order of protection shall be issued by the court if it
25     appears from the contents of the petition and the
26     examination of petitioner that the averments are

 

 

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1     sufficient to indicate abuse by respondent and to support
2     the granting of relief under the issuance of the emergency
3     order of protection.
4         (5) Never married parties. No rights or
5     responsibilities for a minor child born outside of marriage
6     attach to a putative father until a father and child
7     relationship has been established under the Illinois
8     Parentage Act of 1984, the Illinois Public Aid Code,
9     Section 12 of the Vital Records Act, the Juvenile Court Act
10     of 1987, the Probate Act of 1985, the Revised Uniform
11     Reciprocal Enforcement of Support Act, the Uniform
12     Interstate Family Support Act, the Expedited Child Support
13     Act of 1990, any judicial, administrative, or other act of
14     another state or territory, any other Illinois statute, or
15     by any foreign nation establishing the father and child
16     relationship, any other proceeding substantially in
17     conformity with the Personal Responsibility and Work
18     Opportunity Reconciliation Act of 1996 (Pub. L. 104-193),
19     or where both parties appeared in open court or at an
20     administrative hearing acknowledging under oath or
21     admitting by affirmation the existence of a father and
22     child relationship. Absent such an adjudication, finding,
23     or acknowledgement, no putative father shall be granted
24     temporary custody of the minor child, visitation with the
25     minor child, or physical care and possession of the minor
26     child, nor shall an order of payment for support of the

 

 

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1     minor child be entered.
2     (d) Balance of hardships; findings. If the court finds that
3 the balance of hardships does not support the granting of a
4 remedy governed by paragraph (2), (3), (10), (11), or (16) of
5 subsection (b) of this Section, which may require such
6 balancing, the court's findings shall so indicate and shall
7 include a finding as to whether granting the remedy will result
8 in hardship to respondent that would substantially outweigh the
9 hardship to petitioner from denial of the remedy. The findings
10 shall be an official record or in writing.
11     (e) Denial of remedies. Denial of any remedy shall not be
12 based, in whole or in part, on evidence that:
13         (1) Respondent has cause for any use of force, unless
14     that cause satisfies the standards for justifiable use of
15     force provided by Article VII of the Criminal Code of 1961;
16         (2) Respondent was voluntarily intoxicated;
17         (3) Petitioner acted in self-defense or defense of
18     another, provided that, if petitioner utilized force, such
19     force was justifiable under Article VII of the Criminal
20     Code of 1961;
21         (4) Petitioner did not act in self-defense or defense
22     of another;
23         (5) Petitioner left the residence or household to avoid
24     further abuse, neglect, or exploitation by respondent;
25         (6) Petitioner did not leave the residence or household
26     to avoid further abuse, neglect, or exploitation by

 

 

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1     respondent;
2         (7) Conduct by any family or household member excused
3     the abuse, neglect, or exploitation by respondent, unless
4     that same conduct would have excused such abuse, neglect,
5     or exploitation if the parties had not been family or
6     household members.
7 (Source: P.A. 95-234, eff. 1-1-08; 95-773, eff. 1-1-09; 96-701,
8 eff. 1-1-10.)