Full Text of HB3991 96th General Assembly
HB3991enr 96TH GENERAL ASSEMBLY
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HB3991 Enrolled |
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LRB096 08419 RLC 18532 b |
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| AN ACT concerning firearms.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Firearm Owners Identification Card Act is | 5 |
| amended by changing Section 8 and by adding Section 8.2 as | 6 |
| follows:
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| (430 ILCS 65/8) (from Ch. 38, par. 83-8)
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| Sec. 8. The Department of State Police has authority to | 9 |
| deny an
application for or to revoke and seize a Firearm | 10 |
| Owner's Identification
Card previously issued under this Act | 11 |
| only if the Department finds that the
applicant or the person | 12 |
| to whom such card was issued is or was at the time
of issuance:
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| (a) A person under 21 years of age who has been convicted | 14 |
| of a
misdemeanor other than a traffic offense or adjudged | 15 |
| delinquent;
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| (b) A person under 21 years of age who does not have the | 17 |
| written consent
of his parent or guardian to acquire and | 18 |
| possess firearms and firearm
ammunition, or whose parent or | 19 |
| guardian has revoked such written consent,
or where such parent | 20 |
| or guardian does not qualify to have a Firearm Owner's
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| Identification Card;
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| (c) A person convicted of a felony under the laws of this | 23 |
| or any other
jurisdiction;
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| (d) A person addicted to narcotics;
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| (e) A person who has been a patient of a mental institution | 3 |
| within the
past 5 years or has been adjudicated as a mental | 4 |
| defective;
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| (f) A person whose mental condition is of such a nature | 6 |
| that it poses
a clear and present danger to the applicant, any | 7 |
| other person or persons or
the community;
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| For the purposes of this Section, "mental condition" means | 9 |
| a state of
mind manifested by violent, suicidal, threatening or | 10 |
| assaultive behavior.
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| (g) A person who is mentally retarded;
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| (h) A person who intentionally makes a false statement in | 13 |
| the Firearm
Owner's Identification Card application;
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| (i) An alien who is unlawfully present in
the United States | 15 |
| under the laws of the United States;
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| (i-5) An alien who has been admitted to the United States | 17 |
| under a
non-immigrant visa (as that term is defined in Section | 18 |
| 101(a)(26) of the
Immigration and Nationality Act (8 U.S.C. | 19 |
| 1101(a)(26))), except that this
subsection (i-5) does not apply | 20 |
| to any alien who has been lawfully admitted to
the United | 21 |
| States under a non-immigrant visa if that alien is:
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| (1) admitted to the United States for lawful hunting or | 23 |
| sporting purposes;
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| (2) an official representative of a foreign government | 25 |
| who is:
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| (A) accredited to the United States Government or |
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| the Government's
mission to an international | 2 |
| organization having its headquarters in the United
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| States; or
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| (B) en route to or from another country to which | 5 |
| that alien is
accredited;
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| (3) an official of a foreign government or | 7 |
| distinguished foreign visitor
who has been so designated by | 8 |
| the Department of State;
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| (4) a foreign law enforcement officer of a friendly | 10 |
| foreign government
entering the United States on official | 11 |
| business; or
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| (5) one who has received a waiver from the Attorney | 13 |
| General of the United
States pursuant to 18 U.S.C. | 14 |
| 922(y)(3);
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| (j) (Blank) A person who is subject to an existing order of | 16 |
| protection prohibiting
him or her from possessing a firearm ;
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| (k) A person who has been convicted within the past 5 years | 18 |
| of battery,
assault, aggravated assault, violation of an order | 19 |
| of protection, or a
substantially similar offense in another | 20 |
| jurisdiction, in which a firearm was
used or possessed;
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| (l) A person who has been convicted of domestic battery or | 22 |
| a substantially
similar offense in another jurisdiction | 23 |
| committed on or after January 1,
1998;
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| (m) A person who has been convicted within the past 5 years | 25 |
| of domestic
battery or a substantially similar offense in | 26 |
| another jurisdiction committed
before January 1, 1998;
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| (n) A person who is prohibited from acquiring or possessing
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| firearms or firearm ammunition by any Illinois State statute or | 3 |
| by federal
law;
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| (o) A minor subject to a petition filed under Section 5-520 | 5 |
| of the
Juvenile Court Act of 1987 alleging that the minor is a | 6 |
| delinquent minor for
the commission of an offense that if | 7 |
| committed by an adult would be a felony;
or
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| (p) An adult who had been adjudicated a delinquent minor | 9 |
| under the Juvenile
Court Act of 1987 for the commission of an | 10 |
| offense that if committed by an
adult would be a felony.
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| (Source: P.A. 95-581, eff. 6-1-08 .)
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| (430 ILCS 65/8.2 new) | 13 |
| Sec. 8.2. Firearm Owner's Identification Card denial or | 14 |
| revocation. The Department of State Police shall deny an | 15 |
| application or shall revoke and seize a Firearm Owner's | 16 |
| Identification Card previously issued under this Act if the | 17 |
| Department finds that the applicant or person to whom such card | 18 |
| was issued is or was at the time of issuance subject to an | 19 |
| existing order of protection.
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| Section 10. The Code of Criminal Procedure of 1963 is | 21 |
| amended by changing Section 112A-14 as follows:
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| (725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
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| Sec. 112A-14. Order of protection; remedies.
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| (a) Issuance of order. If the court finds that petitioner | 2 |
| has been
abused by a family or household member, as defined in | 3 |
| this Article, an
order of protection prohibiting such abuse | 4 |
| shall issue; provided that
petitioner must also satisfy the | 5 |
| requirements of one of the following
Sections, as appropriate: | 6 |
| Section 112A-17 on emergency orders, Section
112A-18 on interim | 7 |
| orders, or Section 112A-19 on
plenary orders.
Petitioner shall | 8 |
| not be denied an order of protection because petitioner or
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| respondent is a minor. The court, when determining whether or | 10 |
| not to issue
an order of protection, shall not require physical | 11 |
| manifestations of abuse
on the person of the victim. | 12 |
| Modification and extension of prior orders of
protection shall | 13 |
| be in accordance with this Article.
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| (b) Remedies and standards. The remedies to be included in | 15 |
| an order of
protection shall be determined in accordance with | 16 |
| this Section and one of
the following Sections, as appropriate: | 17 |
| Section 112A-17 on
emergency orders,
Section 112A-18 on interim | 18 |
| orders, and Section 112A-19 on
plenary orders.
The remedies | 19 |
| listed in this subsection shall be in addition to other civil
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| or criminal remedies available to petitioner.
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| (1) Prohibition of abuse. Prohibit respondent's | 22 |
| harassment,
interference with personal liberty, | 23 |
| intimidation of a dependent, physical
abuse or willful | 24 |
| deprivation, as defined in this Article, if such abuse has
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| occurred or otherwise appears likely to occur if not | 26 |
| prohibited.
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| (2) Grant of exclusive possession of residence. | 2 |
| Prohibit respondent
from entering or remaining in any | 3 |
| residence or household of the petitioner,
including one | 4 |
| owned or leased by respondent, if petitioner has a right
to | 5 |
| occupancy thereof. The grant of exclusive possession of the | 6 |
| residence
shall not affect title to real property, nor | 7 |
| shall the court be limited by
the standard set forth in | 8 |
| Section 701 of the Illinois Marriage and
Dissolution of | 9 |
| Marriage Act.
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| (A) Right to occupancy. A party has a right to | 11 |
| occupancy of a
residence or household if it is
solely | 12 |
| or jointly owned or leased by that party, that party's | 13 |
| spouse, a
person with a legal duty to support that | 14 |
| party or a minor child in that
party's care, or by any | 15 |
| person or entity other than the opposing party that
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| authorizes that party's occupancy (e.g., a domestic | 17 |
| violence shelter).
Standards set forth in subparagraph | 18 |
| (B) shall not preclude equitable relief.
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| (B) Presumption of hardships. If petitioner and | 20 |
| respondent
each has the right to occupancy of a | 21 |
| residence or household, the court
shall balance (i) the | 22 |
| hardships to respondent and any minor child or
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| dependent adult in respondent's care resulting from | 24 |
| entry of this remedy with (ii)
the hardships to | 25 |
| petitioner and any minor child or dependent adult in
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| petitioner's care resulting from continued exposure to |
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| the risk of abuse (should
petitioner remain at the | 2 |
| residence or household) or from loss of possession
of | 3 |
| the residence or household (should petitioner leave to | 4 |
| avoid the risk
of abuse). When determining the balance | 5 |
| of hardships, the court shall also
take into account | 6 |
| the accessibility of the residence or household.
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| Hardships need not be balanced if respondent does not | 8 |
| have a right to occupancy.
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| The balance of hardships is presumed to favor | 10 |
| possession by
petitioner unless the presumption is | 11 |
| rebutted by a preponderance of the
evidence, showing | 12 |
| that the hardships to respondent substantially | 13 |
| outweigh
the hardships to petitioner and any minor | 14 |
| child or dependent adult in petitioner's
care. The | 15 |
| court, on the request of petitioner or on its own | 16 |
| motion,
may order respondent to provide suitable, | 17 |
| accessible, alternate housing
for petitioner instead | 18 |
| of
excluding respondent from a mutual residence or | 19 |
| household.
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| (3) Stay away order and additional prohibitions.
Order | 21 |
| respondent to stay away from petitioner or any other person
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| protected by the order of protection, or prohibit | 23 |
| respondent from entering
or remaining present at | 24 |
| petitioner's school, place of employment, or other
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| specified places at times when petitioner is present, or | 26 |
| both, if
reasonable, given
the balance of hardships. |
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| Hardships need not be balanced for the court
to enter a | 2 |
| stay away order or prohibit entry
if respondent has no | 3 |
| right to enter the premises.
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| If an order of protection grants petitioner exclusive | 5 |
| possession
of the residence, or prohibits respondent from | 6 |
| entering the residence,
or orders respondent to stay away | 7 |
| from petitioner or other
protected persons, then the court | 8 |
| may allow respondent access to the
residence to remove | 9 |
| items of clothing and personal adornment
used exclusively | 10 |
| by respondent, medications, and other items as the court | 11 |
| directs.
The right to access shall be exercised on only one | 12 |
| occasion as the court directs
and in the presence of an | 13 |
| agreed-upon adult third party or law enforcement officer.
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| (4) Counseling. Require or recommend the respondent to | 15 |
| undergo
counseling for a specified duration with a social | 16 |
| worker, psychologist,
clinical psychologist, psychiatrist, | 17 |
| family service agency, alcohol or
substance abuse program, | 18 |
| mental health center guidance counselor, agency
providing | 19 |
| services to elders, program designed for domestic violence
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| abusers or any other guidance service the court deems | 21 |
| appropriate. The court may order the respondent in any | 22 |
| intimate partner relationship to report to an Illinois | 23 |
| Department of Human Services protocol approved partner | 24 |
| abuse intervention program for an assessment and to follow | 25 |
| all recommended treatment.
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| (5) Physical care and possession of the minor child. In |
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| order to protect
the minor child from abuse, neglect, or | 2 |
| unwarranted separation from the person
who has been the | 3 |
| minor child's primary caretaker, or to otherwise protect | 4 |
| the
well-being of the minor child, the court may do either | 5 |
| or both of the following:
(i) grant petitioner physical | 6 |
| care or possession of the minor child, or both, or
(ii) | 7 |
| order respondent to return a minor child to, or not remove | 8 |
| a minor child
from, the physical care of a parent or person | 9 |
| in loco parentis.
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| If a court finds, after a hearing, that respondent has | 11 |
| committed abuse
(as defined in Section 112A-3) of a minor | 12 |
| child, there shall be a
rebuttable presumption that | 13 |
| awarding physical care to respondent would not
be in the | 14 |
| minor child's best interest.
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| (6) Temporary legal custody.
Award temporary legal | 16 |
| custody to petitioner in accordance with this Section,
the | 17 |
| Illinois Marriage
and Dissolution of Marriage Act, the | 18 |
| Illinois Parentage Act of 1984,
and this State's Uniform | 19 |
| Child-Custody
Jurisdiction and Enforcement Act.
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| 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
temporary legal custody to respondent would not be | 24 |
| in the
child's best interest.
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| (7) Visitation. Determine the
visitation rights, if | 26 |
| any, of respondent in any case in which the court
awards |
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| physical care or temporary legal custody of a minor child | 2 |
| to
petitioner. The court shall restrict or deny | 3 |
| respondent's visitation with
a minor child if
the court | 4 |
| finds that respondent has done or is likely to do any of | 5 |
| the
following: (i) abuse or endanger the minor child during | 6 |
| visitation; (ii) use the
visitation as an opportunity to | 7 |
| abuse or harass petitioner or
petitioner's family or | 8 |
| household members; (iii) improperly conceal or
detain the | 9 |
| minor child; or (iv) otherwise act in a manner that is not | 10 |
| in
the best interests of the minor child. The court shall | 11 |
| not be limited by the
standards set forth in Section 607.1 | 12 |
| of the Illinois Marriage and
Dissolution of Marriage Act. | 13 |
| If the court grants visitation, the order
shall specify | 14 |
| dates and times for the visitation to take place or other
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| specific parameters or conditions that are appropriate. No | 16 |
| order for
visitation shall refer merely to the term | 17 |
| "reasonable visitation".
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| Petitioner may deny respondent access to the minor | 19 |
| child if, when
respondent arrives for visitation, | 20 |
| respondent is under the influence of drugs
or alcohol and | 21 |
| constitutes a threat to the safety and well-being of
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| petitioner or petitioner's minor children or is behaving in | 23 |
| a violent or abusive manner.
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| If necessary to protect any member of petitioner's | 25 |
| family or
household from future abuse, respondent shall be | 26 |
| prohibited from coming to
petitioner's residence to meet |
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| the minor child for visitation, and the
parties shall | 2 |
| submit to the court their recommendations for reasonable
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| alternative arrangements for visitation. A person may be | 4 |
| approved to
supervise visitation only after filing an | 5 |
| affidavit accepting
that responsibility and acknowledging | 6 |
| accountability to the court.
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| (8) Removal or concealment of minor child.
Prohibit | 8 |
| respondent from
removing a minor child from the State or | 9 |
| concealing the child within the
State.
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| (9) Order to appear. Order the respondent to
appear in | 11 |
| court, alone
or with a minor child, to prevent abuse, | 12 |
| neglect, removal or concealment of
the child, to return the | 13 |
| child to the custody or care of the petitioner or
to permit | 14 |
| any court-ordered interview or examination of the child or | 15 |
| the
respondent.
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| (10) Possession of personal property. Grant petitioner | 17 |
| exclusive
possession of personal property and, if | 18 |
| respondent has possession or
control, direct respondent to | 19 |
| promptly make it available to petitioner, if:
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| (i) petitioner, but not respondent, owns the | 21 |
| property; or
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| (ii) the parties own the property jointly; sharing | 23 |
| it would risk
abuse of petitioner by respondent or is | 24 |
| impracticable; and the balance of
hardships favors | 25 |
| temporary possession by petitioner.
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| If petitioner's sole claim to ownership of the property |
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| is that it is
marital property, the court may award | 2 |
| petitioner temporary possession
thereof under the | 3 |
| standards of subparagraph (ii) of this paragraph only if
a | 4 |
| proper proceeding has been filed under the Illinois | 5 |
| Marriage and
Dissolution of Marriage Act, as now or | 6 |
| hereafter amended.
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| No order under this provision shall affect title to | 8 |
| property.
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| (11) Protection of property. Forbid the respondent | 10 |
| from taking,
transferring, encumbering, concealing, | 11 |
| damaging or otherwise disposing of
any real or personal | 12 |
| property, except as explicitly authorized by the
court, if:
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| (i) petitioner, but not respondent, owns the | 14 |
| property; or
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| (ii) the parties own the property jointly,
and the | 16 |
| balance of hardships favors granting this remedy.
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| If petitioner's sole claim to ownership of the property | 18 |
| is that it is
marital property, the court may grant | 19 |
| petitioner relief under subparagraph
(ii) of this | 20 |
| paragraph only if a proper proceeding has been filed under | 21 |
| the
Illinois Marriage and Dissolution of Marriage Act, as | 22 |
| now or hereafter amended.
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| The court may further prohibit respondent from | 24 |
| improperly using the
financial or other resources of an | 25 |
| aged member of the family or household
for the profit or | 26 |
| advantage of respondent or of any other person.
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| (11.5) Protection of animals. Grant the petitioner the | 2 |
| exclusive care, custody, or control of any animal owned, | 3 |
| possessed, leased, kept, or held by either the petitioner | 4 |
| or the respondent or a minor child residing in the | 5 |
| residence or household of either the petitioner or the | 6 |
| respondent and order the respondent to stay away from the | 7 |
| animal and forbid the respondent from taking, | 8 |
| transferring, encumbering, concealing, harming, or | 9 |
| otherwise disposing of the animal.
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| (12) Order for payment of support. Order
respondent to | 11 |
| pay temporary
support for the petitioner or any child in | 12 |
| the petitioner's care or
custody, when the respondent has a | 13 |
| legal obligation to support that person,
in accordance with | 14 |
| the Illinois Marriage and Dissolution
of Marriage Act, | 15 |
| which shall govern, among other matters, the amount of
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| support, payment through the clerk and withholding of | 17 |
| income to secure
payment. An order for child support may be | 18 |
| granted to a petitioner with
lawful physical care or | 19 |
| custody of a child, or an order or agreement for
physical | 20 |
| care or custody, prior to entry of an order for legal | 21 |
| custody.
Such a support order shall expire upon entry of a | 22 |
| valid order granting
legal custody to another, unless | 23 |
| otherwise provided in the custody order.
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| (13) Order for payment of losses. Order
respondent to | 25 |
| pay petitioner
for losses suffered as a direct result of | 26 |
| the abuse. Such losses shall
include, but not be limited |
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| to, medical expenses, lost earnings or other
support, | 2 |
| repair or replacement of property damaged or taken, | 3 |
| reasonable
attorney's fees, court costs and moving or other | 4 |
| travel expenses, including
additional reasonable expenses | 5 |
| for temporary shelter and restaurant meals.
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| (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.
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| (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.
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| (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.
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HB3991 Enrolled |
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LRB096 08419 RLC 18532 b |
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| (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 in | 12 |
| the
possession of the respondent, except as provided in | 13 |
| subsection (b), be turned
over to the local law | 14 |
| enforcement agency
for safekeeping. If the court is | 15 |
| satisfied that there is any danger of the illegal use | 16 |
| of firearms, and the respondent is present in court, it | 17 |
| shall issue an order that the respondent's Firearm | 18 |
| Owner's Identification Card be turned over to the local | 19 |
| law enforcement agency for safekeeping. If the court is | 20 |
| satisfied that there is any danger of the illegal use | 21 |
| of firearms, and if If the respondent is not present in | 22 |
| court has failed to appear , the court shall
issue a | 23 |
| warrant for seizure of the respondent's Firearm | 24 |
| Owner's Identification Card and any firearm in the | 25 |
| possession of the respondent , except as provided in | 26 |
| subsection (b), be turned over to the local law |
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LRB096 08419 RLC 18532 b |
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| enforcement agency for safekeeping .
The period of | 2 |
| safekeeping shall be for a stated period of time not to | 3 |
| exceed 2
years. The firearm or firearms shall be | 4 |
| returned to the respondent at the end
of the stated | 5 |
| period or at expiration of the order of protection, | 6 |
| whichever is
sooner.
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| (b) If the respondent is a peace officer as defined | 8 |
| in Section 2-13 of
the
Criminal Code of 1961, 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 |
| stated period
not to exceed 2 years as set forth in the | 15 |
| court order.
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| (c) Upon expiration of the period of safekeeping, | 17 |
| if the firearms or Firearm Owner's Identification Card | 18 |
| cannot be returned to respondent because respondent | 19 |
| cannot be located, fails to respond to requests to | 20 |
| retrieve the firearms, or is not lawfully eligible to | 21 |
| possess a firearm, upon petition from the local law | 22 |
| enforcement agency, the court may order the local law | 23 |
| enforcement agency to destroy the firearms, use the | 24 |
| firearms for training purposes, or for any other | 25 |
| application as deemed appropriate by the local law | 26 |
| enforcement agency; or that the firearms be turned over |
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HB3991 Enrolled |
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LRB096 08419 RLC 18532 b |
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| to a third party who is lawfully eligible to possess | 2 |
| firearms, and who does not reside with respondent.
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| (15) Prohibition of access to records. If an order of | 4 |
| protection
prohibits respondent from having contact with | 5 |
| the minor child,
or if petitioner's address is omitted | 6 |
| under subsection (b) of
Section 112A-5, or if necessary to | 7 |
| prevent abuse or wrongful removal or
concealment of a minor | 8 |
| child, the order shall deny respondent access to, and
| 9 |
| prohibit respondent from inspecting, obtaining, or | 10 |
| attempting to
inspect or obtain, school or any other | 11 |
| records of the minor child
who is in the care of | 12 |
| petitioner.
| 13 |
| (16) Order for payment of shelter services. Order | 14 |
| respondent to
reimburse a shelter providing temporary | 15 |
| housing and counseling services to
the petitioner for the | 16 |
| cost of the services, as certified by the shelter
and | 17 |
| deemed reasonable by the court.
| 18 |
| (17) Order for injunctive relief. Enter injunctive | 19 |
| relief necessary
or appropriate to prevent further abuse of | 20 |
| a family or household member or
to effectuate one of the | 21 |
| granted remedies, if supported by the balance of
hardships. | 22 |
| If the harm to be prevented by the injunction is abuse or | 23 |
| any
other harm that one of the remedies listed in | 24 |
| paragraphs (1) through (16)
of this subsection is designed | 25 |
| to prevent, no further evidence is necessary
to establish | 26 |
| that the harm is an irreparable injury.
|
|
|
|
HB3991 Enrolled |
- 18 - |
LRB096 08419 RLC 18532 b |
|
| 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 of the | 8 |
| petitioner or any family or household
member, | 9 |
| including the concealment of his or her location in | 10 |
| order to evade
service of process or notice, and the | 11 |
| likelihood of danger of future abuse to
petitioner or
| 12 |
| any member of petitioner's or respondent's family or | 13 |
| 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;
|
|
|
|
HB3991 Enrolled |
- 19 - |
LRB096 08419 RLC 18532 b |
|
| 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 |
| 112A-5 and 112A-17 is
presented to the court, the court | 26 |
| shall examine petitioner on oath or
affirmation. An |
|
|
|
HB3991 Enrolled |
- 20 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| emergency order of protection shall be issued by the court
| 2 |
| if it 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. Absent such an adjudication, no | 12 |
| putative father shall be granted
temporary custody of the | 13 |
| minor child, visitation with the minor child, or
physical | 14 |
| care
and possession of the minor child, nor shall
an order | 15 |
| of payment for support of the minor child be entered.
| 16 |
| (d) Balance of hardships; findings. If the court finds that | 17 |
| the balance
of hardships does not support the granting of a | 18 |
| remedy governed by
paragraph (2), (3), (10), (11), or (16) of
| 19 |
| subsection (b) of this Section,
which may require such | 20 |
| balancing, the court's findings shall so
indicate and shall | 21 |
| include a finding as to whether granting the remedy will
result | 22 |
| in hardship to respondent that would substantially outweigh the | 23 |
| hardship
to petitioner
from denial of the remedy. The findings | 24 |
| shall be an official record or in
writing.
| 25 |
| (e) Denial of remedies. Denial of any remedy shall not be | 26 |
| based, in
whole or in part, on evidence that:
|
|
|
|
HB3991 Enrolled |
- 21 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| (1) Respondent has cause for any use of force, unless | 2 |
| that cause
satisfies the standards for justifiable use of | 3 |
| force provided by Article
VII of the Criminal Code of 1961;
| 4 |
| (2) Respondent was voluntarily intoxicated;
| 5 |
| (3) Petitioner acted in self-defense or defense of | 6 |
| another, provided
that, if petitioner utilized force, such | 7 |
| force was justifiable under
Article VII of the Criminal | 8 |
| Code of 1961;
| 9 |
| (4) Petitioner did not act in self-defense or defense | 10 |
| of another;
| 11 |
| (5) Petitioner left the residence or household to avoid | 12 |
| further abuse
by respondent;
| 13 |
| (6) Petitioner did not leave the residence or household | 14 |
| to avoid further
abuse by respondent;
| 15 |
| (7) Conduct by any family or household member excused | 16 |
| the abuse by
respondent, unless that same conduct would | 17 |
| have excused such abuse if the
parties had not been family | 18 |
| or household members.
| 19 |
| (Source: P.A. 95-234, eff. 1-1-08; 95-773, eff. 1-1-09.)
| 20 |
| Section 15. The Illinois Domestic Violence Act of 1986 is | 21 |
| amended by changing Sections 214 and 217 as follows:
| 22 |
| (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
| 23 |
| Sec. 214. Order of protection; remedies.
| 24 |
| (a) Issuance of order. If the court finds that petitioner |
|
|
|
HB3991 Enrolled |
- 22 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| has been
abused by a family or household member or that | 2 |
| petitioner is a high-risk
adult who has been abused, neglected, | 3 |
| or exploited, as defined in this Act,
an order of protection | 4 |
| prohibiting the abuse, neglect, or exploitation
shall issue; | 5 |
| provided that petitioner must also satisfy the requirements of
| 6 |
| one of the following Sections, as appropriate: Section 217 on | 7 |
| emergency
orders, Section 218 on interim orders, or Section 219 | 8 |
| on plenary orders.
Petitioner shall not be denied an order of | 9 |
| protection because petitioner or
respondent is a minor. The | 10 |
| court, when determining whether or not to issue
an order of | 11 |
| protection, shall not require physical manifestations of abuse
| 12 |
| on the person of the victim. Modification and extension of | 13 |
| prior
orders of protection shall be in accordance with this | 14 |
| Act.
| 15 |
| (b) Remedies and standards. The remedies to be included in | 16 |
| an order of
protection shall be determined in accordance with | 17 |
| this Section and one of
the following Sections, as appropriate: | 18 |
| Section 217 on emergency orders,
Section 218 on interim orders, | 19 |
| and Section 219 on plenary orders. The
remedies listed in this | 20 |
| subsection shall be in addition to other civil or
criminal | 21 |
| remedies available to petitioner.
| 22 |
| (1) Prohibition of abuse, neglect, or exploitation. | 23 |
| Prohibit
respondent's harassment, interference with | 24 |
| personal liberty, intimidation
of a dependent, physical | 25 |
| abuse, or willful deprivation, neglect or
exploitation, as | 26 |
| defined in this Act, or stalking of the petitioner, as |
|
|
|
HB3991 Enrolled |
- 23 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| defined
in Section 12-7.3 of the Criminal Code of 1961, if | 2 |
| such abuse, neglect,
exploitation, or stalking has | 3 |
| occurred or otherwise appears likely to occur if
not | 4 |
| prohibited.
| 5 |
| (2) Grant of exclusive possession of residence. | 6 |
| Prohibit respondent from
entering or remaining in any | 7 |
| residence , or household , or premises of the petitioner,
| 8 |
| including one owned or leased by respondent, if petitioner | 9 |
| has a right to
occupancy thereof. The grant of exclusive | 10 |
| possession of the residence , household, or premises shall | 11 |
| not
affect title to real property, nor shall the court be | 12 |
| limited by the standard
set forth in Section 701 of the | 13 |
| Illinois Marriage and Dissolution of Marriage
Act.
| 14 |
| (A) Right to occupancy. A party has a right to | 15 |
| occupancy of a
residence or household if it is solely | 16 |
| or jointly owned or leased by that
party, that party's | 17 |
| spouse, a person with a legal duty to support that | 18 |
| party or
a minor child in that party's care, or by any | 19 |
| person or entity other than the
opposing party that | 20 |
| authorizes that party's occupancy (e.g., a domestic
| 21 |
| violence shelter). Standards set forth in subparagraph | 22 |
| (B) shall not preclude
equitable relief.
| 23 |
| (B) Presumption of hardships. If petitioner and | 24 |
| respondent
each has the right to occupancy of a | 25 |
| residence or household, the court
shall balance (i) the | 26 |
| hardships to respondent and any minor child or
|
|
|
|
HB3991 Enrolled |
- 24 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| dependent adult in respondent's care resulting from | 2 |
| entry of this remedy with
(ii) the hardships to | 3 |
| petitioner and any minor child or dependent adult in
| 4 |
| petitioner's care resulting from continued exposure to | 5 |
| the risk of abuse
(should petitioner remain at the | 6 |
| residence or household) or from loss of
possession of | 7 |
| the residence or household (should petitioner leave to | 8 |
| avoid the
risk of abuse). When determining the balance | 9 |
| of hardships, the court shall
also take into account | 10 |
| the accessibility of the residence or household.
| 11 |
| Hardships need not be balanced if respondent does not | 12 |
| have a right to
occupancy.
| 13 |
| The balance of hardships is presumed to favor | 14 |
| possession by
petitioner unless the presumption is | 15 |
| rebutted by a preponderance of the
evidence, showing | 16 |
| that the hardships to respondent substantially | 17 |
| outweigh
the hardships to petitioner and any minor | 18 |
| child or dependent adult in
petitioner's care. The | 19 |
| court, on the request of petitioner or on its own
| 20 |
| motion, may order respondent to provide suitable, | 21 |
| accessible, alternate housing
for petitioner instead | 22 |
| of excluding respondent from a mutual residence or
| 23 |
| household.
| 24 |
| (3) Stay away order and additional prohibitions.
Order | 25 |
| respondent to stay away from petitioner or any other person
| 26 |
| protected by the order of protection, or prohibit |
|
|
|
HB3991 Enrolled |
- 25 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| respondent from entering
or remaining present at | 2 |
| petitioner's school, place of employment, or other
| 3 |
| specified places at times when petitioner is present, or | 4 |
| both, if
reasonable, given the balance of hardships. | 5 |
| Hardships need not be balanced for
the court to enter a | 6 |
| stay away order or prohibit entry if respondent has no
| 7 |
| right to enter the premises.
| 8 |
| If an order of protection grants petitioner exclusive | 9 |
| possession
of the residence, or prohibits respondent from | 10 |
| entering the residence,
or orders respondent to stay away | 11 |
| from petitioner or other
protected persons, then the court | 12 |
| may allow respondent access to the
residence to remove | 13 |
| items of clothing and personal adornment
used exclusively | 14 |
| by respondent, medications, and other items as the court
| 15 |
| directs. The right to access shall be exercised on only one | 16 |
| occasion as the
court directs and in the presence of an | 17 |
| agreed-upon adult third party or law
enforcement officer.
| 18 |
| (4) Counseling. Require or recommend the respondent to | 19 |
| undergo
counseling for a specified duration with a social | 20 |
| worker, psychologist,
clinical psychologist, psychiatrist, | 21 |
| family service agency, alcohol or
substance abuse program, | 22 |
| mental health center guidance counselor, agency
providing | 23 |
| services to elders, program designed for domestic violence
| 24 |
| abusers or any other guidance service the court deems | 25 |
| appropriate. The Court may order the respondent in any | 26 |
| intimate partner relationship to report to an Illinois |
|
|
|
HB3991 Enrolled |
- 26 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| Department of Human Services protocol approved partner | 2 |
| abuse intervention program for an assessment and to follow | 3 |
| all recommended treatment.
| 4 |
| (5) Physical care and possession of the minor child. In | 5 |
| order to protect
the minor child from abuse, neglect, or | 6 |
| unwarranted separation from the person
who has been the | 7 |
| minor child's primary caretaker, or to otherwise protect | 8 |
| the
well-being of the minor child, the court may do either | 9 |
| or both of the
following: (i) grant petitioner physical | 10 |
| care or possession of the minor child,
or both, or (ii) | 11 |
| order respondent to return a minor child to, or not remove | 12 |
| a
minor child from, the physical care of a parent or person | 13 |
| in loco parentis.
| 14 |
| If a court finds, after a hearing, that respondent has | 15 |
| committed abuse
(as defined in Section 103) of a minor | 16 |
| child, there shall be a
rebuttable presumption that | 17 |
| awarding physical care to respondent would not
be in the | 18 |
| minor child's best interest.
| 19 |
| (6) Temporary legal custody. Award temporary legal | 20 |
| custody to petitioner
in accordance with this Section, the | 21 |
| Illinois Marriage and Dissolution of
Marriage Act, the | 22 |
| Illinois Parentage Act of 1984, and this State's Uniform
| 23 |
| Child-Custody Jurisdiction and Enforcement Act.
| 24 |
| If a court finds, after a hearing, that respondent has | 25 |
| committed abuse (as
defined in Section 103) of a minor | 26 |
| child, there shall be a rebuttable
presumption that |
|
|
|
HB3991 Enrolled |
- 27 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| awarding temporary legal custody to respondent would not be | 2 |
| in
the child's best interest.
| 3 |
| (7) Visitation. Determine the visitation rights, if | 4 |
| any, of respondent in
any case in which the court awards | 5 |
| physical care or temporary legal custody of
a minor child | 6 |
| to petitioner. The court shall restrict or deny | 7 |
| respondent's
visitation with a minor child if the court | 8 |
| finds that respondent has done or is
likely to do any of | 9 |
| the following: (i) abuse or endanger the minor child during
| 10 |
| visitation; (ii) use the visitation as an opportunity to | 11 |
| abuse or harass
petitioner or petitioner's family or | 12 |
| household members; (iii) improperly
conceal or detain the | 13 |
| minor child; or (iv) otherwise act in a manner that is
not | 14 |
| in the best interests of the minor child. The court shall | 15 |
| not be limited
by the standards set forth in Section 607.1 | 16 |
| of the Illinois Marriage and
Dissolution of Marriage Act. | 17 |
| If the court grants visitation, the order shall
specify | 18 |
| dates and times for the visitation to take place or other | 19 |
| specific
parameters or conditions that are appropriate. No | 20 |
| order for visitation shall
refer merely to the term | 21 |
| "reasonable visitation".
| 22 |
| Petitioner may deny respondent access to the minor | 23 |
| child if, when
respondent arrives for visitation, | 24 |
| respondent is under the influence of drugs
or alcohol and | 25 |
| constitutes a threat to the safety and well-being of
| 26 |
| petitioner or petitioner's minor children or is behaving in |
|
|
|
HB3991 Enrolled |
- 28 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| a violent or
abusive manner.
| 2 |
| If necessary to protect any member of petitioner's | 3 |
| family or
household from future abuse, respondent shall be | 4 |
| prohibited from coming to
petitioner's residence to meet | 5 |
| the minor child for visitation, and the
parties shall | 6 |
| submit to the court their recommendations for reasonable
| 7 |
| alternative arrangements for visitation. A person may be | 8 |
| approved to
supervise visitation only after filing an | 9 |
| affidavit accepting
that responsibility and acknowledging | 10 |
| accountability to the court.
| 11 |
| (8) Removal or concealment of minor child. Prohibit | 12 |
| respondent from
removing a minor child from the State or | 13 |
| concealing the child within the State.
| 14 |
| (9) Order to appear. Order the respondent to appear in | 15 |
| court, alone
or with a minor child, to prevent abuse, | 16 |
| neglect, removal or concealment of
the child, to return the | 17 |
| child to the custody or care of the petitioner or
to permit | 18 |
| any court-ordered interview or examination of the child or | 19 |
| the
respondent.
| 20 |
| (10) Possession of personal property. Grant petitioner | 21 |
| exclusive
possession of personal property and, if | 22 |
| respondent has possession or
control, direct respondent to | 23 |
| promptly make it available to petitioner, if:
| 24 |
| (i) petitioner, but not respondent, owns the | 25 |
| property; or
| 26 |
| (ii) the parties own the property jointly; sharing |
|
|
|
HB3991 Enrolled |
- 29 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| it would risk
abuse of petitioner by respondent or is | 2 |
| impracticable; and the balance of
hardships favors | 3 |
| temporary possession by petitioner.
| 4 |
| If petitioner's sole claim to ownership of the property | 5 |
| is that it is
marital property, the court may award | 6 |
| petitioner temporary possession
thereof under the | 7 |
| standards of subparagraph (ii) of this paragraph only if
a | 8 |
| proper proceeding has been filed under the Illinois | 9 |
| Marriage and
Dissolution of Marriage Act, as now or | 10 |
| hereafter amended.
| 11 |
| No order under this provision shall affect title to | 12 |
| property.
| 13 |
| (11) Protection of property. Forbid the respondent | 14 |
| from taking,
transferring, encumbering, concealing, | 15 |
| damaging or otherwise disposing of
any real or personal | 16 |
| property, except as explicitly authorized by the
court, if:
| 17 |
| (i) petitioner, but not respondent, owns the | 18 |
| property; or
| 19 |
| (ii) the parties own the property jointly,
and the | 20 |
| balance of hardships favors granting this remedy.
| 21 |
| If petitioner's sole claim to ownership of the property | 22 |
| is that it is
marital property, the court may grant | 23 |
| petitioner relief under subparagraph
(ii) of this | 24 |
| paragraph only if a proper proceeding has been filed under | 25 |
| the
Illinois Marriage and Dissolution of Marriage Act, as | 26 |
| now or hereafter amended.
|
|
|
|
HB3991 Enrolled |
- 30 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| The court may further prohibit respondent from | 2 |
| improperly using the
financial or other resources of an | 3 |
| aged member of the family or household
for the profit or | 4 |
| advantage of respondent or of any other person.
| 5 |
| (11.5) Protection of animals. Grant the petitioner the | 6 |
| exclusive care, custody, or control of any animal owned, | 7 |
| possessed, leased, kept, or held by either the petitioner | 8 |
| or the respondent or a minor child residing in the | 9 |
| residence or household of either the petitioner or the | 10 |
| respondent and order the respondent to stay away from the | 11 |
| animal and forbid the respondent from taking, | 12 |
| transferring, encumbering, concealing, harming, or | 13 |
| otherwise disposing of the animal.
| 14 |
| (12) Order for payment of support. Order respondent to | 15 |
| pay temporary
support for the petitioner or any child in | 16 |
| the petitioner's care or
custody, when the respondent has a | 17 |
| legal obligation to support that person,
in accordance with | 18 |
| the Illinois Marriage and Dissolution
of Marriage Act, | 19 |
| which shall govern, among other matters, the amount of
| 20 |
| support, payment through the clerk and withholding of | 21 |
| income to secure
payment. An order for child support may be | 22 |
| granted to a petitioner with
lawful physical care or | 23 |
| custody of a child, or an order or agreement for
physical | 24 |
| care or custody, prior to entry of an order for legal | 25 |
| custody.
Such a support order shall expire upon entry of a | 26 |
| valid order granting
legal custody to another, unless |
|
|
|
HB3991 Enrolled |
- 31 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| otherwise provided in the custody order.
| 2 |
| (13) Order for payment of losses. Order respondent to | 3 |
| pay petitioner for
losses suffered as a direct result of | 4 |
| the abuse, neglect, or exploitation.
Such losses shall | 5 |
| include, but not be limited to, medical expenses, lost
| 6 |
| earnings or other support, repair or replacement of | 7 |
| property damaged or taken,
reasonable attorney's fees, | 8 |
| court costs and moving or other travel expenses,
including | 9 |
| additional reasonable expenses for temporary shelter and | 10 |
| restaurant
meals.
| 11 |
| (i) Losses affecting family needs. If a party is | 12 |
| entitled to seek
maintenance, child support or | 13 |
| property distribution from the other party
under the | 14 |
| Illinois Marriage and Dissolution of Marriage Act, as | 15 |
| now or
hereafter amended, the court may order | 16 |
| respondent to reimburse petitioner's
actual losses, to | 17 |
| the extent that such reimbursement would be | 18 |
| "appropriate
temporary relief", as authorized by | 19 |
| subsection (a)(3) of Section 501 of
that Act.
| 20 |
| (ii) Recovery of expenses. In the case of an | 21 |
| improper concealment
or removal of a minor child, the | 22 |
| court may order respondent to pay the
reasonable | 23 |
| expenses incurred or to be incurred in the search for | 24 |
| and recovery
of the minor child, including but not | 25 |
| limited to legal fees, court costs,
private | 26 |
| investigator fees, and travel costs.
|
|
|
|
HB3991 Enrolled |
- 32 - |
LRB096 08419 RLC 18532 b |
|
| 1 |
| (14) Prohibition of entry. Prohibit the respondent | 2 |
| from entering or
remaining in the residence or household | 3 |
| while the respondent is under the
influence of alcohol or | 4 |
| drugs and constitutes a threat to the safety and
well-being | 5 |
| of the petitioner or the petitioner's children.
| 6 |
| (14.5) Prohibition of firearm possession.
| 7 |
| (a) When a complaint is made
under a request for an | 8 |
| order of protection, that the respondent has | 9 |
| threatened
or is likely to use firearms illegally | 10 |
| against the petitioner, and the
respondent is present | 11 |
| in court, or has failed to appear after receiving | 12 |
| actual
notice, the court shall examine on oath the | 13 |
| petitioner, and any witnesses who
may be produced. If | 14 |
| the court is satisfied that there is any danger of the
| 15 |
| illegal use of firearms, it shall issue an order that | 16 |
| any firearms and any Firearm Owner's Identification | 17 |
| Card in the
possession of the respondent, except as | 18 |
| provided in subsection (b), be turned
over to the local | 19 |
| law enforcement agency
for safekeeping. If the | 20 |
| respondent has failed to appear, the court shall
issue | 21 |
| a warrant for seizure of any firearm and Firearm | 22 |
| Owner's Identification Card in the possession of the | 23 |
| respondent.
The period of safekeeping shall be for a | 24 |
| 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 |
|
|
|
HB3991 Enrolled |
- 33 - |
LRB096 08419 RLC 18532 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 |
| (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 203, 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.
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LRB096 08419 RLC 18532 b |
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| 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 further abuse, neglect, or | 4 |
| exploitation of a high-risk adult with
disabilities or to | 5 |
| effectuate one of the granted remedies, if supported by the
| 6 |
| balance of hardships. If the harm to be prevented by the | 7 |
| injunction is abuse
or any other harm that one of the | 8 |
| remedies listed in paragraphs (1) through
(16) of this | 9 |
| subsection is designed to prevent, no further evidence is
| 10 |
| necessary that the harm is an irreparable injury.
| 11 |
| (c) Relevant factors; findings.
| 12 |
| (1) In determining whether to grant a specific remedy, | 13 |
| other than
payment of support, the court shall consider
| 14 |
| relevant factors, including but not limited to the | 15 |
| following:
| 16 |
| (i) the nature, frequency, severity, pattern and | 17 |
| consequences of the
respondent's past abuse, neglect | 18 |
| or exploitation of the petitioner or
any family or | 19 |
| household member, including the concealment of his or | 20 |
| her
location in order to evade service of process or | 21 |
| notice, and the likelihood of
danger of future abuse, | 22 |
| neglect, or exploitation to petitioner or any member of
| 23 |
| petitioner's or respondent's family or household; and
| 24 |
| (ii) the danger that any minor child will be abused | 25 |
| or neglected or
improperly removed from the | 26 |
| jurisdiction, improperly concealed within the
State or |
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| improperly separated from the child's primary | 2 |
| caretaker.
| 3 |
| (2) In comparing relative hardships resulting to the | 4 |
| parties from loss
of possession of the family home, the | 5 |
| court shall consider relevant
factors, including but not | 6 |
| limited to the following:
| 7 |
| (i) availability, accessibility, cost, safety, | 8 |
| adequacy, location and
other characteristics of | 9 |
| alternate housing for each party and any minor child
or | 10 |
| dependent adult in the party's care;
| 11 |
| (ii) the effect on the party's employment; and
| 12 |
| (iii) the effect on the relationship of the party, | 13 |
| and any minor
child or dependent adult in the party's | 14 |
| care, to family, school, church
and community.
| 15 |
| (3) Subject to the exceptions set forth in paragraph | 16 |
| (4) of this
subsection, the court shall make its findings | 17 |
| in an official record or in
writing, and shall at a minimum | 18 |
| set forth the following:
| 19 |
| (i) That the court has considered the applicable | 20 |
| relevant factors
described in paragraphs (1) and (2) of | 21 |
| this subsection.
| 22 |
| (ii) Whether the conduct or actions of respondent, | 23 |
| unless
prohibited, will likely cause irreparable harm | 24 |
| or continued abuse.
| 25 |
| (iii) Whether it is necessary to grant the | 26 |
| requested relief in order
to protect petitioner or |
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| other alleged abused persons.
| 2 |
| (4) For purposes of issuing an ex parte emergency order | 3 |
| of protection,
the court, as an alternative to or as a | 4 |
| supplement to making the findings
described in paragraphs | 5 |
| (c)(3)(i) through (c)(3)(iii) of this subsection, may
use | 6 |
| the following procedure:
| 7 |
| When a verified petition for an emergency order of | 8 |
| protection in
accordance with the requirements of Sections | 9 |
| 203 and 217 is
presented to the court, the court shall | 10 |
| examine petitioner on oath or
affirmation. An emergency | 11 |
| order of protection shall be issued by the court
if it | 12 |
| appears from the contents of the petition and the | 13 |
| examination of
petitioner that the averments are | 14 |
| sufficient to indicate abuse by
respondent and to support | 15 |
| the granting of relief under the issuance of the
emergency | 16 |
| order of protection.
| 17 |
| (5) Never married parties. No rights or | 18 |
| responsibilities for a minor
child born outside of marriage | 19 |
| attach to a putative father until a father and
child | 20 |
| relationship has been established under the Illinois | 21 |
| Parentage Act of
1984, the Illinois Public Aid Code, | 22 |
| Section 12 of the Vital Records Act, the
Juvenile Court Act | 23 |
| of 1987, the Probate Act of 1985, the Revised Uniform
| 24 |
| Reciprocal Enforcement of Support Act, the Uniform | 25 |
| Interstate Family Support
Act, the Expedited Child Support | 26 |
| Act of 1990, any judicial, administrative, or
other act of |
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| another state or territory, any other Illinois statute, or | 2 |
| by any
foreign nation establishing the father and child | 3 |
| relationship, any other
proceeding substantially in | 4 |
| conformity with the Personal Responsibility and
Work | 5 |
| Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), | 6 |
| or where both
parties appeared in open court or at an | 7 |
| administrative hearing acknowledging
under
oath or | 8 |
| admitting by affirmation the existence of a father and | 9 |
| child
relationship.
Absent such an adjudication, finding, | 10 |
| or acknowledgement, no putative
father shall be granted
| 11 |
| temporary custody of the minor child, visitation with the | 12 |
| minor child, or
physical care and possession of the minor | 13 |
| child, nor shall an order of payment
for support of the | 14 |
| minor child be entered.
| 15 |
| (d) Balance of hardships; findings. If the court finds that | 16 |
| the balance
of hardships does not support the granting of a | 17 |
| remedy governed by
paragraph (2), (3), (10), (11), or (16) of | 18 |
| subsection (b) of this Section,
which may require such | 19 |
| balancing, the court's findings shall so
indicate and shall | 20 |
| include a finding as to whether granting the remedy will
result | 21 |
| in hardship to respondent that would substantially outweigh the | 22 |
| hardship
to petitioner from denial of the remedy. The findings | 23 |
| shall be an official
record or in writing.
| 24 |
| (e) Denial of remedies. Denial of any remedy shall not be | 25 |
| based, in
whole or in part, on evidence that:
| 26 |
| (1) Respondent has cause for any use of force, unless |
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| that cause
satisfies the standards for justifiable use of | 2 |
| force provided by Article
VII of the Criminal Code of 1961;
| 3 |
| (2) Respondent was voluntarily intoxicated;
| 4 |
| (3) Petitioner acted in self-defense or defense of | 5 |
| another, provided
that, if petitioner utilized force, such | 6 |
| force was justifiable under
Article VII of the Criminal | 7 |
| Code of 1961;
| 8 |
| (4) Petitioner did not act in self-defense or defense | 9 |
| of another;
| 10 |
| (5) Petitioner left the residence or household to avoid | 11 |
| further abuse,
neglect, or exploitation by respondent;
| 12 |
| (6) Petitioner did not leave the residence or household | 13 |
| to avoid further
abuse, neglect, or exploitation by | 14 |
| respondent;
| 15 |
| (7) Conduct by any family or household member excused | 16 |
| the abuse,
neglect, or exploitation by respondent, unless | 17 |
| that same conduct would have
excused such abuse, neglect, | 18 |
| or exploitation if the parties had not been
family or | 19 |
| household members.
| 20 |
| (Source: P.A. 95-234, eff. 1-1-08; 95-773, eff. 1-1-09.)
| 21 |
| (750 ILCS 60/217) (from Ch. 40, par. 2312-17)
| 22 |
| Sec. 217. Emergency order of protection.
| 23 |
| (a) Prerequisites. An emergency order of protection shall | 24 |
| issue if
petitioner satisfies the requirements of this | 25 |
| subsection for one or more of the
requested remedies. For each |
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LRB096 08419 RLC 18532 b |
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| remedy requested, petitioner shall establish
that:
| 2 |
| (1) The court has jurisdiction under Section 208;
| 3 |
| (2) The requirements of Section 214 are satisfied; and
| 4 |
| (3) There is good cause to grant the remedy, regardless | 5 |
| of prior service
of process or of notice upon the | 6 |
| respondent, because:
| 7 |
| (i) For
the remedies of "prohibition of abuse" | 8 |
| described in
Section 214(b)(1), "stay away order and | 9 |
| additional prohibitions" described in
Section
| 10 |
| 214(b)(3), "removal or concealment of minor child" | 11 |
| described in Section
214(b)(8), "order to appear" | 12 |
| described in Section 214(b)(9), "physical
care and | 13 |
| possession of the minor child" described in Section | 14 |
| 214(b)(5),
"protection of property" described in | 15 |
| Section 214(b)(11), "prohibition
of entry" described | 16 |
| in Section 214(b)(14), "prohibition of firearm | 17 |
| possession" described in Section 214(b)(14.5), | 18 |
| "prohibition of access to
records" described in | 19 |
| Section 214(b)(15), and "injunctive relief"
described | 20 |
| in Section 214(b)(16), the harm which that remedy
is | 21 |
| intended to prevent would be likely to occur if the | 22 |
| respondent were given
any prior notice, or greater | 23 |
| notice than was actually given, of the
petitioner's | 24 |
| efforts to obtain judicial relief;
| 25 |
| (ii) For the remedy of "grant of exclusive | 26 |
| possession of
residence" described in Section |
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LRB096 08419 RLC 18532 b |
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| 214(b)(2), the immediate danger of further
abuse of | 2 |
| petitioner by respondent,
if petitioner chooses or had | 3 |
| chosen to remain in the residence or household
while | 4 |
| respondent was given any prior notice or greater notice | 5 |
| than was
actually given of petitioner's efforts to | 6 |
| obtain judicial relief,
outweighs the hardships to | 7 |
| respondent of an emergency order
granting petitioner | 8 |
| exclusive possession of the residence or household.
| 9 |
| This remedy shall not be denied because petitioner has | 10 |
| or could obtain
temporary shelter elsewhere while | 11 |
| prior notice is given to respondent, unless
the
| 12 |
| hardships to respondent from exclusion from the home | 13 |
| substantially outweigh
those to petitioner;
| 14 |
| (iii) For the remedy of "possession of personal | 15 |
| property"
described in
Section 214(b)(10), improper | 16 |
| disposition of the personal
property would be likely
to | 17 |
| occur if respondent were given any prior notice, or | 18 |
| greater notice than
was actually given, of | 19 |
| petitioner's efforts to obtain judicial relief, or
| 20 |
| petitioner has an immediate and pressing need for | 21 |
| possession of that property.
| 22 |
| An emergency order may not include the counseling, legal | 23 |
| custody, payment
of support or monetary compensation remedies.
| 24 |
| (b) Appearance by respondent.
If respondent appears in | 25 |
| court for this hearing for an emergency order,
he or she may | 26 |
| elect to file a general appearance and testify.
Any resulting |
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| order may be an emergency order, governed
by this Section.
| 2 |
| Notwithstanding the requirements of this Section, if all | 3 |
| requirements of
Section 218 have been met, the court may issue | 4 |
| a 30-day interim order.
| 5 |
| (c) Emergency orders: court holidays and evenings.
| 6 |
| (1) Prerequisites. When the court is unavailable at the | 7 |
| close of
business, the petitioner may file a petition for a | 8 |
| 21-day emergency order
before any available circuit judge | 9 |
| or associate judge who may grant relief
under this Act. If | 10 |
| the judge finds that there is an immediate and present
| 11 |
| danger of abuse to petitioner and that petitioner has | 12 |
| satisfied the
prerequisites set forth in subsection (a) of | 13 |
| Section 217, that judge may
issue an emergency order of | 14 |
| protection.
| 15 |
| (1.5) Issuance of order. The chief judge of the circuit | 16 |
| court
may designate for each county in the circuit at least | 17 |
| one judge to be
reasonably available to
issue orally, by | 18 |
| telephone, by facsimile, or otherwise, an emergency
order | 19 |
| of protection at all times, whether or not the court is in | 20 |
| session.
| 21 |
| (2) Certification and transfer. Any order issued under | 22 |
| this Section and
any documentation in support thereof shall | 23 |
| be certified on the next court
day to the appropriate | 24 |
| court. The clerk of that court shall immediately
assign a | 25 |
| case number, file the petition, order and other documents | 26 |
| with the
court, and enter the order of record and file it |
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| with the sheriff for
service, in accordance with Section | 2 |
| 222. Filing the petition
shall commence proceedings for | 3 |
| further relief under Section 202.
Failure to comply with | 4 |
| the requirements of this subsection shall not
affect the | 5 |
| validity of the order.
| 6 |
| (Source: P.A. 90-392, eff. 1-1-98.)
|
|