Rep. Natalie A. Manley

Filed: 2/20/2014

 

 


 

 


 
09800HB3269ham002LRB098 07721 RLC 55889 a

1
AMENDMENT TO HOUSE BILL 3269

2    AMENDMENT NO. ______. Amend House Bill 3269 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Section 112A-14 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
9has been abused by a family or household member, as defined in
10this Article, an order of protection prohibiting such abuse
11shall issue; provided that petitioner must also satisfy the
12requirements of one of the following Sections, as appropriate:
13Section 112A-17 on emergency orders, Section 112A-18 on interim
14orders, or Section 112A-19 on plenary orders. Petitioner shall
15not be denied an order of protection because petitioner or
16respondent is a minor. The court, when determining whether or

 

 

09800HB3269ham002- 2 -LRB098 07721 RLC 55889 a

1not to issue an order of protection, shall not require physical
2manifestations of abuse on the person of the victim.
3Modification and extension of prior orders of protection shall
4be in accordance with this Article.
5    (b) Remedies and standards. The remedies to be included in
6an order of protection shall be determined in accordance with
7this Section and one of the following Sections, as appropriate:
8Section 112A-17 on emergency orders, Section 112A-18 on interim
9orders, and Section 112A-19 on plenary orders. The remedies
10listed in this subsection shall be in addition to other civil
11or criminal remedies available to petitioner.
12        (1) Prohibition of abuse. Prohibit respondent's
13    harassment, interference with personal liberty,
14    intimidation of a dependent, physical abuse or willful
15    deprivation, as defined in this Article, if such abuse has
16    occurred or otherwise appears likely to occur if not
17    prohibited.
18        (2) Grant of exclusive possession of residence.
19    Prohibit respondent from entering or remaining in any
20    residence, household, or premises of the petitioner,
21    including one owned or leased by respondent, if petitioner
22    has a right to occupancy thereof. The grant of exclusive
23    possession of the residence, household, or premises shall
24    not affect title to real property, nor shall the court be
25    limited by the standard set forth in Section 701 of the
26    Illinois Marriage and Dissolution of Marriage Act.

 

 

09800HB3269ham002- 3 -LRB098 07721 RLC 55889 a

1            (A) Right to occupancy. A party has a right to
2        occupancy of a residence or household if it is solely
3        or jointly owned or leased by that party, that party's
4        spouse, a person with a legal duty to support that
5        party or a minor child in that party's care, or by any
6        person or entity other than the opposing party that
7        authorizes that party's occupancy (e.g., a domestic
8        violence shelter). Standards set forth in subparagraph
9        (B) shall not preclude equitable relief.
10            (B) Presumption of hardships. If petitioner and
11        respondent each has the right to occupancy of a
12        residence or household, the court shall balance (i) the
13        hardships to respondent and any minor child or
14        dependent adult in respondent's care resulting from
15        entry of this remedy with (ii) the hardships to
16        petitioner and any minor child or dependent adult in
17        petitioner's care resulting from continued exposure to
18        the risk of abuse (should petitioner remain at the
19        residence or household) or from loss of possession of
20        the residence or household (should petitioner leave to
21        avoid the risk of abuse). When determining the balance
22        of hardships, the court shall also take into account
23        the accessibility of the residence or household.
24        Hardships need not be balanced if respondent does not
25        have a right to occupancy.
26            The balance of hardships is presumed to favor

 

 

09800HB3269ham002- 4 -LRB098 07721 RLC 55889 a

1        possession by petitioner unless the presumption is
2        rebutted by a preponderance of the evidence, showing
3        that the hardships to respondent substantially
4        outweigh the hardships to petitioner and any minor
5        child or dependent adult in petitioner's care. The
6        court, on the request of petitioner or on its own
7        motion, may order respondent to provide suitable,
8        accessible, alternate housing for petitioner instead
9        of excluding respondent from a mutual residence or
10        household.
11        (3) Stay away order and additional prohibitions. Order
12    respondent to stay away from petitioner or any other person
13    protected by the order of protection, or prohibit
14    respondent from entering or remaining present at
15    petitioner's school, place of employment, or other
16    specified places at times when petitioner is present, or
17    both, if reasonable, given the balance of hardships.
18    Hardships need not be balanced for the court to enter a
19    stay away order or prohibit entry if respondent has no
20    right to enter the premises.
21        If an order of protection grants petitioner exclusive
22    possession of the residence, or prohibits respondent from
23    entering the residence, or orders respondent to stay away
24    from petitioner or other protected persons, then the court
25    may allow respondent access to the residence to remove
26    items of clothing and personal adornment used exclusively

 

 

09800HB3269ham002- 5 -LRB098 07721 RLC 55889 a

1    by respondent, medications, and other items as the court
2    directs. The right to access shall be exercised on only one
3    occasion as the court directs and in the presence of an
4    agreed-upon adult third party or law enforcement officer.
5        (4) Counseling. Require or recommend the respondent to
6    undergo counseling for a specified duration with a social
7    worker, psychologist, clinical psychologist, psychiatrist,
8    family service agency, alcohol or substance abuse program,
9    mental health center guidance counselor, agency providing
10    services to elders, program designed for domestic violence
11    abusers or any other guidance service the court deems
12    appropriate. The court may order the respondent in any
13    intimate partner relationship to report to an Illinois
14    Department of Human Services protocol approved partner
15    abuse intervention program for an assessment and to follow
16    all recommended treatment.
17        (5) Physical care and possession of the minor child. In
18    order to protect the minor child from abuse, neglect, or
19    unwarranted separation from the person who has been the
20    minor child's primary caretaker, or to otherwise protect
21    the well-being of the minor child, the court may do either
22    or both of the following: (i) grant petitioner physical
23    care or possession of the minor child, or both, or (ii)
24    order respondent to return a minor child to, or not remove
25    a minor child from, the physical care of a parent or person
26    in loco parentis.

 

 

09800HB3269ham002- 6 -LRB098 07721 RLC 55889 a

1        If a court finds, after a hearing, that respondent has
2    committed abuse (as defined in Section 112A-3) of a minor
3    child, there shall be a rebuttable presumption that
4    awarding physical care to respondent would not be in the
5    minor child's best interest.
6        (6) Temporary legal custody. Award temporary legal
7    custody to petitioner in accordance with this Section, the
8    Illinois Marriage and Dissolution of Marriage Act, the
9    Illinois Parentage Act of 1984, and this State's Uniform
10    Child-Custody Jurisdiction and Enforcement Act.
11        If a court finds, after a hearing, that respondent has
12    committed abuse (as defined in Section 112A-3) of a minor
13    child, there shall be a rebuttable presumption that
14    awarding temporary legal custody to respondent would not be
15    in the child's best interest.
16        (7) Visitation. Determine the visitation rights, if
17    any, of respondent in any case in which the court awards
18    physical care or temporary legal custody of a minor child
19    to petitioner. The court shall restrict or deny
20    respondent's visitation with a minor child if the court
21    finds that respondent has done or is likely to do any of
22    the following: (i) abuse or endanger the minor child during
23    visitation; (ii) use the visitation as an opportunity to
24    abuse or harass petitioner or petitioner's family or
25    household members; (iii) improperly conceal or detain the
26    minor child; or (iv) otherwise act in a manner that is not

 

 

09800HB3269ham002- 7 -LRB098 07721 RLC 55889 a

1    in the best interests of the minor child. The court shall
2    not be limited by the standards set forth in Section 607.1
3    of the Illinois Marriage and Dissolution of Marriage Act.
4    If the court grants visitation, the order shall specify
5    dates and times for the visitation to take place or other
6    specific parameters or conditions that are appropriate. No
7    order for visitation shall refer merely to the term
8    "reasonable visitation".
9        Petitioner may deny respondent access to the minor
10    child if, when respondent arrives for visitation,
11    respondent is under the influence of drugs or alcohol and
12    constitutes a threat to the safety and well-being of
13    petitioner or petitioner's minor children or is behaving in
14    a violent or abusive manner.
15        If necessary to protect any member of petitioner's
16    family or household from future abuse, respondent shall be
17    prohibited from coming to petitioner's residence to meet
18    the minor child for visitation, and the parties shall
19    submit to the court their recommendations for reasonable
20    alternative arrangements for visitation. A person may be
21    approved to supervise visitation only after filing an
22    affidavit accepting that responsibility and acknowledging
23    accountability to the court.
24        (8) Removal or concealment of minor child. Prohibit
25    respondent from removing a minor child from the State or
26    concealing the child within the State.

 

 

09800HB3269ham002- 8 -LRB098 07721 RLC 55889 a

1        (9) Order to appear. Order the respondent to appear in
2    court, alone or with a minor child, to prevent abuse,
3    neglect, removal or concealment of the child, to return the
4    child to the custody or care of the petitioner or to permit
5    any court-ordered interview or examination of the child or
6    the respondent.
7        (10) Possession of personal property. Grant petitioner
8    exclusive possession of personal property and, if
9    respondent has possession or control, direct respondent to
10    promptly make it available to petitioner, if:
11            (i) petitioner, but not respondent, owns the
12        property; or
13            (ii) the parties own the property jointly; sharing
14        it would risk abuse of petitioner by respondent or is
15        impracticable; and the balance of hardships favors
16        temporary possession by petitioner.
17        If petitioner's sole claim to ownership of the property
18    is that it is marital property, the court may award
19    petitioner temporary possession thereof under the
20    standards of subparagraph (ii) of this paragraph only if a
21    proper proceeding has been filed under the Illinois
22    Marriage and Dissolution of Marriage Act, as now or
23    hereafter amended.
24        No order under this provision shall affect title to
25    property.
26        (11) Protection of property. Forbid the respondent

 

 

09800HB3269ham002- 9 -LRB098 07721 RLC 55889 a

1    from taking, transferring, encumbering, concealing,
2    damaging or otherwise disposing of any real or personal
3    property, except as explicitly authorized by the court, if:
4            (i) petitioner, but not respondent, owns the
5        property; or
6            (ii) the parties own the property jointly, and the
7        balance of hardships favors granting this remedy.
8        If petitioner's sole claim to ownership of the property
9    is that it is marital property, the court may grant
10    petitioner relief under subparagraph (ii) of this
11    paragraph only if a proper proceeding has been filed under
12    the Illinois Marriage and Dissolution of Marriage Act, as
13    now or hereafter amended.
14        The court may further prohibit respondent from
15    improperly using the financial or other resources of an
16    aged member of the family or household for the profit or
17    advantage of respondent or of any other person.
18        (11.5) Protection of animals. Grant the petitioner the
19    exclusive care, custody, or control of any animal owned,
20    possessed, leased, kept, or held by either the petitioner
21    or the respondent or a minor child residing in the
22    residence or household of either the petitioner or the
23    respondent and order the respondent to stay away from the
24    animal and forbid the respondent from taking,
25    transferring, encumbering, concealing, harming, or
26    otherwise disposing of the animal.

 

 

09800HB3269ham002- 10 -LRB098 07721 RLC 55889 a

1        (12) Order for payment of support. Order respondent to
2    pay temporary support for the petitioner or any child in
3    the petitioner's care or custody, when the respondent has a
4    legal obligation to support that person, in accordance with
5    the Illinois Marriage and Dissolution of Marriage Act,
6    which shall govern, among other matters, the amount of
7    support, payment through the clerk and withholding of
8    income to secure payment. An order for child support may be
9    granted to a petitioner with lawful physical care or
10    custody of a child, or an order or agreement for physical
11    care or custody, prior to entry of an order for legal
12    custody. Such a support order shall expire upon entry of a
13    valid order granting legal custody to another, unless
14    otherwise provided in the custody order.
15        (13) Order for payment of losses. Order respondent to
16    pay petitioner for losses suffered as a direct result of
17    the abuse. Such losses shall include, but not be limited
18    to, medical expenses, lost earnings or other support,
19    repair or replacement of property damaged or taken,
20    reasonable attorney's fees, court costs and moving or other
21    travel expenses, including additional reasonable expenses
22    for temporary shelter and restaurant meals.
23            (i) Losses affecting family needs. If a party is
24        entitled to seek maintenance, child support or
25        property distribution from the other party under the
26        Illinois Marriage and Dissolution of Marriage Act, as

 

 

09800HB3269ham002- 11 -LRB098 07721 RLC 55889 a

1        now or hereafter amended, the court may order
2        respondent to reimburse petitioner's actual losses, to
3        the extent that such reimbursement would be
4        "appropriate temporary relief", as authorized by
5        subsection (a)(3) of Section 501 of that Act.
6            (ii) Recovery of expenses. In the case of an
7        improper concealment or removal of a minor child, the
8        court may order respondent to pay the reasonable
9        expenses incurred or to be incurred in the search for
10        and recovery of the minor child, including but not
11        limited to legal fees, court costs, private
12        investigator fees, and travel costs.
13        (14) Prohibition of entry. Prohibit the respondent
14    from entering or remaining in the residence or household
15    while the respondent is under the influence of alcohol or
16    drugs and constitutes a threat to the safety and well-being
17    of the petitioner or the petitioner's children.
18        (14.5) Prohibition of firearm possession.
19            (A) A person who is subject to an existing order of
20        protection, interim order of protection, emergency
21        order of protection, or plenary order of protection,
22        issued under this Code or a substantially similar order
23        of protection issued by any other state, possession, or
24        territory of the United States, or the District of
25        Columbia may not lawfully possess weapons under
26        Section 8.2 of the Firearm Owners Identification Card

 

 

09800HB3269ham002- 12 -LRB098 07721 RLC 55889 a

1        Act.
2            (B) Any firearms in the possession of the
3        respondent, except as provided in subparagraph (C) of
4        this paragraph (14.5), shall be ordered by the court to
5        be turned over to a person with a valid Firearm Owner's
6        Identification Card for safekeeping. The court shall
7        issue an order that the respondent's Firearm Owner's
8        Identification Card be turned over to the local law
9        enforcement agency, which in turn shall immediately
10        mail the card to the Department of State Police Firearm
11        Owner's Identification Card Office for safekeeping.
12        The period of safekeeping shall be for the duration of
13        the order of protection. The firearm or firearms and
14        Firearm Owner's Identification Card, if unexpired,
15        shall at the respondent's request be returned to the
16        respondent at expiration of the order of protection.
17            (C) If the respondent is a peace officer as defined
18        in Section 2-13 of the Criminal Code of 2012, the court
19        shall order that any firearms used by the respondent in
20        the performance of his or her duties as a peace officer
21        be surrendered to the chief law enforcement executive
22        of the agency in which the respondent is employed, who
23        shall retain the firearms for safekeeping for the
24        duration of the order of protection.
25            (D) Upon expiration of the period of safekeeping,
26        if the firearms or Firearm Owner's Identification Card

 

 

09800HB3269ham002- 13 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 14 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 15 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 16 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 17 -LRB098 07721 RLC 55889 a

1remedy governed by paragraph (2), (3), (10), (11), or (16) of
2subsection (b) of this Section, which may require such
3balancing, the court's findings shall so indicate and shall
4include a finding as to whether granting the remedy will result
5in hardship to respondent that would substantially outweigh the
6hardship to petitioner from denial of the remedy. The findings
7shall be an official record or in writing.
8    (e) Denial of remedies. Denial of any remedy shall not be
9based, in whole or in part, on evidence that:
10        (1) Respondent has cause for any use of force, unless
11    that cause satisfies the standards for justifiable use of
12    force provided by Article 7 of the Criminal Code of 2012;
13        (2) Respondent was voluntarily intoxicated;
14        (3) Petitioner acted in self-defense or defense of
15    another, provided that, if petitioner utilized force, such
16    force was justifiable under Article 7 of the Criminal Code
17    of 2012;
18        (4) Petitioner did not act in self-defense or defense
19    of another;
20        (5) Petitioner left the residence or household to avoid
21    further abuse by respondent;
22        (6) Petitioner did not leave the residence or household
23    to avoid further abuse by respondent;
24        (7) Conduct by any family or household member excused
25    the abuse by respondent, unless that same conduct would
26    have excused such abuse if the parties had not been family

 

 

09800HB3269ham002- 18 -LRB098 07721 RLC 55889 a

1    or household members.
2(Source: P.A. 97-158, eff. 1-1-12; 97-1131, eff. 1-1-13;
397-1150, eff. 1-25-13; 98-63, eff. 7-9-13.)
 
4    Section 10. The Illinois Domestic Violence Act of 1986 is
5amended by changing Section 214 as follows:
 
6    (750 ILCS 60/214)  (from Ch. 40, par. 2312-14)
7    Sec. 214. Order of protection; remedies.
8    (a) Issuance of order. If the court finds that petitioner
9has been abused by a family or household member or that
10petitioner is a high-risk adult who has been abused, neglected,
11or exploited, as defined in this Act, an order of protection
12prohibiting the abuse, neglect, or exploitation shall issue;
13provided that petitioner must also satisfy the requirements of
14one of the following Sections, as appropriate: Section 217 on
15emergency orders, Section 218 on interim orders, or Section 219
16on plenary orders. Petitioner shall not be denied an order of
17protection because petitioner or respondent is a minor. The
18court, when determining whether or not to issue an order of
19protection, shall not require physical manifestations of abuse
20on the person of the victim. Modification and extension of
21prior orders of protection shall be in accordance with this
22Act.
23    (b) Remedies and standards. The remedies to be included in
24an order of protection shall be determined in accordance with

 

 

09800HB3269ham002- 19 -LRB098 07721 RLC 55889 a

1this Section and one of the following Sections, as appropriate:
2Section 217 on emergency orders, Section 218 on interim orders,
3and Section 219 on plenary orders. The remedies listed in this
4subsection shall be in addition to other civil or criminal
5remedies available to petitioner.
6        (1) Prohibition of abuse, neglect, or exploitation.
7    Prohibit respondent's harassment, interference with
8    personal liberty, intimidation of a dependent, physical
9    abuse, or willful deprivation, neglect or exploitation, as
10    defined in this Act, or stalking of the petitioner, as
11    defined in Section 12-7.3 of the Criminal Code of 2012, if
12    such abuse, neglect, exploitation, or stalking has
13    occurred or otherwise appears likely to occur if not
14    prohibited.
15        (2) Grant of exclusive possession of residence.
16    Prohibit respondent from entering or remaining in any
17    residence, household, or premises of the petitioner,
18    including one owned or leased by respondent, if petitioner
19    has a right to occupancy thereof. The grant of exclusive
20    possession of the residence, household, or premises shall
21    not affect title to real property, nor shall the court be
22    limited by the standard set forth in Section 701 of the
23    Illinois Marriage and Dissolution of Marriage Act.
24            (A) Right to occupancy. A party has a right to
25        occupancy of a residence or household if it is solely
26        or jointly owned or leased by that party, that party's

 

 

09800HB3269ham002- 20 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 21 -LRB098 07721 RLC 55889 a

1        outweigh the hardships to petitioner and any minor
2        child or dependent adult in petitioner's care. The
3        court, on the request of petitioner or on its own
4        motion, may order respondent to provide suitable,
5        accessible, alternate housing for petitioner instead
6        of excluding respondent from a mutual residence or
7        household.
8        (3) Stay away order and additional prohibitions. Order
9    respondent to stay away from petitioner or any other person
10    protected by the order of protection, or prohibit
11    respondent from entering or remaining present at
12    petitioner's school, place of employment, or other
13    specified places at times when petitioner is present, or
14    both, if reasonable, given the balance of hardships.
15    Hardships need not be balanced for the court to enter a
16    stay away order or prohibit entry if respondent has no
17    right to enter the premises.
18            (A) If an order of protection grants petitioner
19        exclusive possession of the residence, or prohibits
20        respondent from entering the residence, or orders
21        respondent to stay away from petitioner or other
22        protected persons, then the court may allow respondent
23        access to the residence to remove items of clothing and
24        personal adornment used exclusively by respondent,
25        medications, and other items as the court directs. The
26        right to access shall be exercised on only one occasion

 

 

09800HB3269ham002- 22 -LRB098 07721 RLC 55889 a

1        as the court directs and in the presence of an
2        agreed-upon adult third party or law enforcement
3        officer.
4            (B) When the petitioner and the respondent attend
5        the same public, private, or non-public elementary,
6        middle, or high school, the court when issuing an order
7        of protection and providing relief shall consider the
8        severity of the act, any continuing physical danger or
9        emotional distress to the petitioner, the educational
10        rights guaranteed to the petitioner and respondent
11        under federal and State law, the availability of a
12        transfer of the respondent to another school, a change
13        of placement or a change of program of the respondent,
14        the expense, difficulty, and educational disruption
15        that would be caused by a transfer of the respondent to
16        another school, and any other relevant facts of the
17        case. The court may order that the respondent not
18        attend the public, private, or non-public elementary,
19        middle, or high school attended by the petitioner,
20        order that the respondent accept a change of placement
21        or change of program, as determined by the school
22        district or private or non-public school, or place
23        restrictions on the respondent's movements within the
24        school attended by the petitioner. The respondent
25        bears the burden of proving by a preponderance of the
26        evidence that a transfer, change of placement, or

 

 

09800HB3269ham002- 23 -LRB098 07721 RLC 55889 a

1        change of program of the respondent is not available.
2        The respondent also bears the burden of production with
3        respect to the expense, difficulty, and educational
4        disruption that would be caused by a transfer of the
5        respondent to another school. A transfer, change of
6        placement, or change of program is not unavailable to
7        the respondent solely on the ground that the respondent
8        does not agree with the school district's or private or
9        non-public school's transfer, change of placement, or
10        change of program or solely on the ground that the
11        respondent fails or refuses to consent or otherwise
12        does not take an action required to effectuate a
13        transfer, change of placement, or change of program.
14        When a court orders a respondent to stay away from the
15        public, private, or non-public school attended by the
16        petitioner and the respondent requests a transfer to
17        another attendance center within the respondent's
18        school district or private or non-public school, the
19        school district or private or non-public school shall
20        have sole discretion to determine the attendance
21        center to which the respondent is transferred. In the
22        event the court order results in a transfer of the
23        minor respondent to another attendance center, a
24        change in the respondent's placement, or a change of
25        the respondent's program, the parents, guardian, or
26        legal custodian of the respondent is responsible for

 

 

09800HB3269ham002- 24 -LRB098 07721 RLC 55889 a

1        transportation and other costs associated with the
2        transfer or change.
3            (C) The court may order the parents, guardian, or
4        legal custodian of a minor respondent to take certain
5        actions or to refrain from taking certain actions to
6        ensure that the respondent complies with the order. In
7        the event the court orders a transfer of the respondent
8        to another school, the parents, guardian, or legal
9        custodian of the respondent is responsible for
10        transportation and other costs associated with the
11        change of school by the respondent.
12        (4) Counseling. Require or recommend the respondent to
13    undergo counseling for a specified duration with a social
14    worker, psychologist, clinical psychologist, psychiatrist,
15    family service agency, alcohol or substance abuse program,
16    mental health center guidance counselor, agency providing
17    services to elders, program designed for domestic violence
18    abusers or any other guidance service the court deems
19    appropriate. The Court may order the respondent in any
20    intimate partner relationship to report to an Illinois
21    Department of Human Services protocol approved partner
22    abuse intervention program for an assessment and to follow
23    all recommended treatment.
24        (5) Physical care and possession of the minor child. In
25    order to protect the minor child from abuse, neglect, or
26    unwarranted separation from the person who has been the

 

 

09800HB3269ham002- 25 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 26 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 27 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 28 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 29 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 30 -LRB098 07721 RLC 55889 a

1    property damaged or taken, reasonable attorney's fees,
2    court costs and moving or other travel expenses, including
3    additional reasonable expenses for temporary shelter and
4    restaurant meals.
5            (i) Losses affecting family needs. If a party is
6        entitled to seek maintenance, child support or
7        property distribution from the other party under the
8        Illinois Marriage and Dissolution of Marriage Act, as
9        now or hereafter amended, the court may order
10        respondent to reimburse petitioner's actual losses, to
11        the extent that such reimbursement would be
12        "appropriate temporary relief", as authorized by
13        subsection (a)(3) of Section 501 of that Act.
14            (ii) Recovery of expenses. In the case of an
15        improper concealment or removal of a minor child, the
16        court may order respondent to pay the reasonable
17        expenses incurred or to be incurred in the search for
18        and recovery of the minor child, including but not
19        limited to legal fees, court costs, private
20        investigator fees, and travel costs.
21        (14) Prohibition of entry. Prohibit the respondent
22    from entering or remaining in the residence or household
23    while the respondent is under the influence of alcohol or
24    drugs and constitutes a threat to the safety and well-being
25    of the petitioner or the petitioner's children.
26        (14.5) Prohibition of firearm, firearm ammunition,

 

 

09800HB3269ham002- 31 -LRB098 07721 RLC 55889 a

1    stun gun, and taser possession.
2            (a) A resident who is subject to an existing order
3        of protection, interim order of protection, emergency
4        order of protection, or plenary order of protection,
5        issued under this Act or a substantially similar order
6        of protection issued by any other state, possession, or
7        territory of the United States, or the District of
8        Columbia may not lawfully possess firearms, firearm
9        ammunition, stun guns, and tasers under Section 8.2 of
10        the Firearm Owners Identification Card Act. Prohibit a
11        respondent against whom an order of protection was
12        issued from possessing any firearms during the
13        duration of the order if the order:
14                (1) was issued after a hearing of which such
15            person received actual notice, and at which such
16            person had an opportunity to participate;
17                (2) restrains such person from harassing,
18            stalking, or threatening an intimate partner of
19            such person or child of such intimate partner or
20            person, or engaging in other conduct that would
21            place an intimate partner in reasonable fear of
22            bodily injury to the partner or child; and
23                (3)(i) includes a finding that such person
24            represents a credible threat to the physical
25            safety of such intimate partner or child; or (ii)
26            by its terms explicitly prohibits the use,

 

 

09800HB3269ham002- 32 -LRB098 07721 RLC 55889 a

1            attempted use, or threatened use of physical force
2            against such intimate partner or child that would
3            reasonably be expected to cause bodily injury.
4        Any firearms, firearm ammunition, stun guns, and
5        tasers Firearm Owner's Identification Card in the
6        possession of the respondent, except as provided in
7        subsection (b), shall be ordered by the court to be
8        turned over to a person with a valid Firearm Owner's
9        Identification Card for safekeeping. The court shall
10        order that the respondent's Firearm Owner's
11        Identification Card be turned over to the local law
12        enforcement agency, which in turn the local law
13        enforcement agency. The local law enforcement agency
14        shall immediately mail the card to the Department of
15        State Police Firearm Owner's Identification Card
16        Office for safekeeping. The court shall issue a warrant
17        for seizure of any firearm in the possession of the
18        respondent, to be kept by the local law enforcement
19        agency for safekeeping, except as provided in
20        subsection (b). The period of safekeeping shall be for
21        the duration of the order of protection, interim order
22        of protection, emergency order of protection, or
23        plenary order of protection. The firearms, firearm
24        ammunition, stun guns, and tasers firearm or firearms
25        and Firearm Owner's Identification Card, if unexpired,
26        shall at the respondent's request, be returned to the

 

 

09800HB3269ham002- 33 -LRB098 07721 RLC 55889 a

1        respondent at the end of the order of protection,
2        interim order of protection, emergency order of
3        protection, or plenary order of protection. It is the
4        respondent's responsibility to notify the Department
5        of State Police Firearm Owner's Identification Card
6        Office.
7            (b) If the respondent is a peace officer as defined
8        in Section 2-13 of the Criminal Code of 2012, the court
9        shall order that any firearms used by the respondent in
10        the performance of his or her duties as a peace officer
11        be surrendered to the chief law enforcement executive
12        of the agency in which the respondent is employed, who
13        shall retain the firearms for safekeeping for the
14        duration of the order of protection.
15            (c) Upon expiration of the period of safekeeping,
16        if the firearms or Firearm Owner's Identification Card
17        cannot be returned to respondent because respondent
18        cannot be located, fails to respond to requests to
19        retrieve the firearms, or is not lawfully eligible to
20        possess a firearm, upon petition from the local law
21        enforcement agency, the court may order the local law
22        enforcement agency to destroy the firearms, use the
23        firearms for training purposes, or for any other
24        application as deemed appropriate by the local law
25        enforcement agency; or that the firearms be turned over
26        to a third party who is lawfully eligible to possess

 

 

09800HB3269ham002- 34 -LRB098 07721 RLC 55889 a

1        firearms, and who does not reside with respondent.
2        (15) Prohibition of access to records. If an order of
3    protection prohibits respondent from having contact with
4    the minor child, or if petitioner's address is omitted
5    under subsection (b) of Section 203, or if necessary to
6    prevent abuse or wrongful removal or concealment of a minor
7    child, the order shall deny respondent access to, and
8    prohibit respondent from inspecting, obtaining, or
9    attempting to inspect or obtain, school or any other
10    records of the minor child who is in the care of
11    petitioner.
12        (16) Order for payment of shelter services. Order
13    respondent to reimburse a shelter providing temporary
14    housing and counseling services to the petitioner for the
15    cost of the services, as certified by the shelter and
16    deemed reasonable by the court.
17        (17) Order for injunctive relief. Enter injunctive
18    relief necessary or appropriate to prevent further abuse of
19    a family or household member or further abuse, neglect, or
20    exploitation of a high-risk adult with disabilities or to
21    effectuate one of the granted remedies, if supported by the
22    balance of hardships. If the harm to be prevented by the
23    injunction is abuse or any other harm that one of the
24    remedies listed in paragraphs (1) through (16) of this
25    subsection is designed to prevent, no further evidence is
26    necessary that the harm is an irreparable injury.

 

 

09800HB3269ham002- 35 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 36 -LRB098 07721 RLC 55889 a

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

 

 

09800HB3269ham002- 37 -LRB098 07721 RLC 55889 a

1    order of protection shall be issued by the court if it
2    appears from the contents of the petition and the
3    examination of petitioner that the averments are
4    sufficient to indicate abuse by respondent and to support
5    the granting of relief under the issuance of the emergency
6    order of protection.
7        (5) Never married parties. No rights or
8    responsibilities for a minor child born outside of marriage
9    attach to a putative father until a father and child
10    relationship has been established under the Illinois
11    Parentage Act of 1984, the Illinois Public Aid Code,
12    Section 12 of the Vital Records Act, the Juvenile Court Act
13    of 1987, the Probate Act of 1985, the Revised Uniform
14    Reciprocal Enforcement of Support Act, the Uniform
15    Interstate Family Support Act, the Expedited Child Support
16    Act of 1990, any judicial, administrative, or other act of
17    another state or territory, any other Illinois statute, or
18    by any foreign nation establishing the father and child
19    relationship, any other proceeding substantially in
20    conformity with the Personal Responsibility and Work
21    Opportunity Reconciliation Act of 1996 (Pub. L. 104-193),
22    or where both parties appeared in open court or at an
23    administrative hearing acknowledging under oath or
24    admitting by affirmation the existence of a father and
25    child relationship. Absent such an adjudication, finding,
26    or acknowledgement, no putative father shall be granted

 

 

09800HB3269ham002- 38 -LRB098 07721 RLC 55889 a

1    temporary custody of the minor child, visitation with the
2    minor child, or physical care and possession of the minor
3    child, nor shall an order of payment for support of the
4    minor child be entered.
5    (d) Balance of hardships; findings. If the court finds that
6the balance of hardships does not support the granting of a
7remedy governed by paragraph (2), (3), (10), (11), or (16) of
8subsection (b) of this Section, which may require such
9balancing, the court's findings shall so indicate and shall
10include a finding as to whether granting the remedy will result
11in hardship to respondent that would substantially outweigh the
12hardship to petitioner from denial of the remedy. The findings
13shall be an official record or in writing.
14    (e) Denial of remedies. Denial of any remedy shall not be
15based, in whole or in part, on evidence that:
16        (1) Respondent has cause for any use of force, unless
17    that cause satisfies the standards for justifiable use of
18    force provided by Article 7 of the Criminal Code of 2012;
19        (2) Respondent was voluntarily intoxicated;
20        (3) Petitioner acted in self-defense or defense of
21    another, provided that, if petitioner utilized force, such
22    force was justifiable under Article 7 of the Criminal Code
23    of 2012;
24        (4) Petitioner did not act in self-defense or defense
25    of another;
26        (5) Petitioner left the residence or household to avoid

 

 

09800HB3269ham002- 39 -LRB098 07721 RLC 55889 a

1    further abuse, neglect, or exploitation by respondent;
2        (6) Petitioner did not leave the residence or household
3    to avoid further abuse, neglect, or exploitation by
4    respondent;
5        (7) Conduct by any family or household member excused
6    the abuse, neglect, or exploitation by respondent, unless
7    that same conduct would have excused such abuse, neglect,
8    or exploitation if the parties had not been family or
9    household members.
10(Source: P.A. 96-701, eff. 1-1-10; 96-1239, eff. 1-1-11;
1197-158, eff. 1-1-12; 97-294, eff. 1-1-12; 97-813, eff. 7-13-12;
1297-1131, eff. 1-1-13; 97-1150, eff. 1-25-13.)".