HB3269ham003 98TH GENERAL ASSEMBLY

Rep. Natalie A. Manley

Filed: 3/21/2014

 

 


 

 


 
09800HB3269ham003LRB098 07721 RLC 56843 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

 

 

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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.

 

 

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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

 

 

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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

 

 

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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.

 

 

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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

 

 

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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.

 

 

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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

 

 

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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.

 

 

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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

 

 

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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 a firearm, firearm
26        ammunition, stun gun, or taser may not lawfully possess

 

 

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1        weapons under Section 8.2 of the Firearm Owners
2        Identification Card Act.
3            (B) Any firearms, firearm ammunition, stun guns,
4        or tasers in the possession of the respondent, except
5        as provided in subparagraph (C) of this paragraph
6        (14.5), shall be ordered by the court to be turned over
7        to a person with a valid Firearm Owner's Identification
8        Card for safekeeping. The court shall issue an order
9        that the respondent's Firearm Owner's Identification
10        Card be turned over to the local law enforcement
11        agency, which in turn shall immediately mail the card
12        to the Department of State Police Firearm Owner's
13        Identification Card Office for safekeeping. The period
14        of safekeeping shall be for the duration of the order
15        of protection, interim order of protection, emergency
16        order of protection, or plenary order of protection.
17        The firearm or firearms and Firearm Owner's
18        Identification Card, if unexpired, shall at the
19        respondent's request be returned to the respondent at
20        expiration of the order of protection, interim order of
21        protection, emergency order of protection, or plenary
22        order of protection. It is the respondent's
23        responsibility to notify the Department of State
24        Police Firearm Owner's Identification Card Office.
25            (C) If the respondent is a peace officer as defined
26        in Section 2-13 of the Criminal Code of 2012, the court

 

 

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1        shall order that any firearms used by the respondent in
2        the performance of his or her duties as a peace officer
3        be surrendered to the chief law enforcement executive
4        of the agency in which the respondent is employed, who
5        shall retain the firearms for safekeeping for the
6        duration of the order of protection.
7            (D) Upon expiration of the period of safekeeping,
8        if the firearms or Firearm Owner's Identification Card
9        cannot be returned to respondent because respondent
10        cannot be located, fails to respond to requests to
11        retrieve the firearms, or is not lawfully eligible to
12        possess a firearm, upon petition from the local law
13        enforcement agency, the court may order the local law
14        enforcement agency to destroy the firearms, use the
15        firearms for training purposes, or for any other
16        application as deemed appropriate by the local law
17        enforcement agency; or that the firearms be turned over
18        to a third party who is lawfully eligible to possess
19        firearms, and who does not reside with respondent.
20        (15) Prohibition of access to records. If an order of
21    protection prohibits respondent from having contact with
22    the minor child, or if petitioner's address is omitted
23    under subsection (b) of Section 112A-5, or if necessary to
24    prevent abuse or wrongful removal or concealment of a minor
25    child, the order shall deny respondent access to, and
26    prohibit respondent from inspecting, obtaining, or

 

 

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1    attempting to inspect or obtain, school or any other
2    records of the minor child who is in the care of
3    petitioner.
4        (16) Order for payment of shelter services. Order
5    respondent to reimburse a shelter providing temporary
6    housing and counseling services to the petitioner for the
7    cost of the services, as certified by the shelter and
8    deemed reasonable by the court.
9        (17) Order for injunctive relief. Enter injunctive
10    relief necessary or appropriate to prevent further abuse of
11    a family or household member or to effectuate one of the
12    granted remedies, if supported by the balance of hardships.
13    If the harm to be prevented by the injunction is abuse or
14    any other harm that one of the remedies listed in
15    paragraphs (1) through (16) of this subsection is designed
16    to prevent, no further evidence is necessary to establish
17    that the harm is an irreparable injury.
18    (c) Relevant factors; findings.
19        (1) In determining whether to grant a specific remedy,
20    other than payment of support, the court shall consider
21    relevant factors, including but not limited to the
22    following:
23            (i) the nature, frequency, severity, pattern and
24        consequences of the respondent's past abuse of the
25        petitioner or any family or household member,
26        including the concealment of his or her location in

 

 

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1        order to evade service of process or notice, and the
2        likelihood of danger of future abuse to petitioner or
3        any member of petitioner's or respondent's family or
4        household; and
5            (ii) the danger that any minor child will be abused
6        or neglected or improperly removed from the
7        jurisdiction, improperly concealed within the State or
8        improperly separated from the child's primary
9        caretaker.
10        (2) In comparing relative hardships resulting to the
11    parties from loss of possession of the family home, the
12    court shall consider relevant factors, including but not
13    limited to the following:
14            (i) availability, accessibility, cost, safety,
15        adequacy, location and other characteristics of
16        alternate housing for each party and any minor child or
17        dependent adult in the party's care;
18            (ii) the effect on the party's employment; and
19            (iii) the effect on the relationship of the party,
20        and any minor child or dependent adult in the party's
21        care, to family, school, church and community.
22        (3) Subject to the exceptions set forth in paragraph
23    (4) of this subsection, the court shall make its findings
24    in an official record or in writing, and shall at a minimum
25    set forth the following:
26            (i) That the court has considered the applicable

 

 

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1        relevant factors described in paragraphs (1) and (2) of
2        this subsection.
3            (ii) Whether the conduct or actions of respondent,
4        unless prohibited, will likely cause irreparable harm
5        or continued abuse.
6            (iii) Whether it is necessary to grant the
7        requested relief in order to protect petitioner or
8        other alleged abused persons.
9        (4) For purposes of issuing an ex parte emergency order
10    of protection, the court, as an alternative to or as a
11    supplement to making the findings described in paragraphs
12    (c)(3)(i) through (c)(3)(iii) of this subsection, may use
13    the following procedure:
14        When a verified petition for an emergency order of
15    protection in accordance with the requirements of Sections
16    112A-5 and 112A-17 is presented to the court, the court
17    shall examine petitioner on oath or affirmation. An
18    emergency order of protection shall be issued by the court
19    if it appears from the contents of the petition and the
20    examination of petitioner that the averments are
21    sufficient to indicate abuse by respondent and to support
22    the granting of relief under the issuance of the emergency
23    order of protection.
24        (5) Never married parties. No rights or
25    responsibilities for a minor child born outside of marriage
26    attach to a putative father until a father and child

 

 

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1    relationship has been established under the Illinois
2    Parentage Act of 1984. Absent such an adjudication, no
3    putative father shall be granted temporary custody of the
4    minor child, visitation with the minor child, or physical
5    care and possession of the minor child, nor shall an order
6    of payment for support of the minor child be entered.
7    (d) Balance of hardships; findings. If the court finds that
8the balance of hardships does not support the granting of a
9remedy governed by paragraph (2), (3), (10), (11), or (16) of
10subsection (b) of this Section, which may require such
11balancing, the court's findings shall so indicate and shall
12include a finding as to whether granting the remedy will result
13in hardship to respondent that would substantially outweigh the
14hardship to petitioner from denial of the remedy. The findings
15shall be an official record or in writing.
16    (e) Denial of remedies. Denial of any remedy shall not be
17based, in whole or in part, on evidence that:
18        (1) Respondent has cause for any use of force, unless
19    that cause satisfies the standards for justifiable use of
20    force provided by Article 7 of the Criminal Code of 2012;
21        (2) Respondent was voluntarily intoxicated;
22        (3) Petitioner acted in self-defense or defense of
23    another, provided that, if petitioner utilized force, such
24    force was justifiable under Article 7 of the Criminal Code
25    of 2012;
26        (4) Petitioner did not act in self-defense or defense

 

 

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1    of another;
2        (5) Petitioner left the residence or household to avoid
3    further abuse by respondent;
4        (6) Petitioner did not leave the residence or household
5    to avoid further abuse by respondent;
6        (7) Conduct by any family or household member excused
7    the abuse by respondent, unless that same conduct would
8    have excused such abuse if the parties had not been family
9    or household members.
10(Source: P.A. 97-158, eff. 1-1-12; 97-1131, eff. 1-1-13;
1197-1150, eff. 1-25-13; 98-63, eff. 7-9-13.)
 
12    Section 10. The Illinois Domestic Violence Act of 1986 is
13amended by changing Section 214 as follows:
 
14    (750 ILCS 60/214)  (from Ch. 40, par. 2312-14)
15    Sec. 214. Order of protection; remedies.
16    (a) Issuance of order. If the court finds that petitioner
17has been abused by a family or household member or that
18petitioner is a high-risk adult who has been abused, neglected,
19or exploited, as defined in this Act, an order of protection
20prohibiting the abuse, neglect, or exploitation shall issue;
21provided that petitioner must also satisfy the requirements of
22one of the following Sections, as appropriate: Section 217 on
23emergency orders, Section 218 on interim orders, or Section 219
24on plenary orders. Petitioner shall not be denied an order of

 

 

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1protection because petitioner or respondent is a minor. The
2court, when determining whether or not to issue an order of
3protection, shall not require physical manifestations of abuse
4on the person of the victim. Modification and extension of
5prior orders of protection shall be in accordance with this
6Act.
7    (b) Remedies and standards. The remedies to be included in
8an order of protection shall be determined in accordance with
9this Section and one of the following Sections, as appropriate:
10Section 217 on emergency orders, Section 218 on interim orders,
11and Section 219 on plenary orders. The remedies listed in this
12subsection shall be in addition to other civil or criminal
13remedies available to petitioner.
14        (1) Prohibition of abuse, neglect, or exploitation.
15    Prohibit respondent's harassment, interference with
16    personal liberty, intimidation of a dependent, physical
17    abuse, or willful deprivation, neglect or exploitation, as
18    defined in this Act, or stalking of the petitioner, as
19    defined in Section 12-7.3 of the Criminal Code of 2012, if
20    such abuse, neglect, exploitation, or stalking has
21    occurred or otherwise appears likely to occur if not
22    prohibited.
23        (2) Grant of exclusive possession of residence.
24    Prohibit respondent from entering or remaining in any
25    residence, household, or premises of the petitioner,
26    including one owned or leased by respondent, if petitioner

 

 

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

 

 

09800HB3269ham003- 21 -LRB098 07721 RLC 56843 a

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

 

 

09800HB3269ham003- 22 -LRB098 07721 RLC 56843 a

1        exclusive possession of the residence, or prohibits
2        respondent from entering the residence, or orders
3        respondent to stay away from petitioner or other
4        protected persons, then the court may allow respondent
5        access to the residence to remove items of clothing and
6        personal adornment used exclusively by respondent,
7        medications, and other items as the court directs. The
8        right to access shall be exercised on only one occasion
9        as the court directs and in the presence of an
10        agreed-upon adult third party or law enforcement
11        officer.
12            (B) When the petitioner and the respondent attend
13        the same public, private, or non-public elementary,
14        middle, or high school, the court when issuing an order
15        of protection and providing relief shall consider the
16        severity of the act, any continuing physical danger or
17        emotional distress to the petitioner, the educational
18        rights guaranteed to the petitioner and respondent
19        under federal and State law, the availability of a
20        transfer of the respondent to another school, a change
21        of placement or a change of program of the respondent,
22        the expense, difficulty, and educational disruption
23        that would be caused by a transfer of the respondent to
24        another school, and any other relevant facts of the
25        case. The court may order that the respondent not
26        attend the public, private, or non-public elementary,

 

 

09800HB3269ham003- 23 -LRB098 07721 RLC 56843 a

1        middle, or high school attended by the petitioner,
2        order that the respondent accept a change of placement
3        or change of program, as determined by the school
4        district or private or non-public school, or place
5        restrictions on the respondent's movements within the
6        school attended by the petitioner. The respondent
7        bears the burden of proving by a preponderance of the
8        evidence that a transfer, change of placement, or
9        change of program of the respondent is not available.
10        The respondent also bears the burden of production with
11        respect to the expense, difficulty, and educational
12        disruption that would be caused by a transfer of the
13        respondent to another school. A transfer, change of
14        placement, or change of program is not unavailable to
15        the respondent solely on the ground that the respondent
16        does not agree with the school district's or private or
17        non-public school's transfer, change of placement, or
18        change of program or solely on the ground that the
19        respondent fails or refuses to consent or otherwise
20        does not take an action required to effectuate a
21        transfer, change of placement, or change of program.
22        When a court orders a respondent to stay away from the
23        public, private, or non-public school attended by the
24        petitioner and the respondent requests a transfer to
25        another attendance center within the respondent's
26        school district or private or non-public school, the

 

 

09800HB3269ham003- 24 -LRB098 07721 RLC 56843 a

1        school district or private or non-public school shall
2        have sole discretion to determine the attendance
3        center to which the respondent is transferred. In the
4        event the court order results in a transfer of the
5        minor respondent to another attendance center, a
6        change in the respondent's placement, or a change of
7        the respondent's program, the parents, guardian, or
8        legal custodian of the respondent is responsible for
9        transportation and other costs associated with the
10        transfer or change.
11            (C) The court may order the parents, guardian, or
12        legal custodian of a minor respondent to take certain
13        actions or to refrain from taking certain actions to
14        ensure that the respondent complies with the order. In
15        the event the court orders a transfer of the respondent
16        to another school, the parents, guardian, or legal
17        custodian of the respondent is responsible for
18        transportation and other costs associated with the
19        change of school by the respondent.
20        (4) Counseling. Require or recommend the respondent to
21    undergo counseling for a specified duration with a social
22    worker, psychologist, clinical psychologist, psychiatrist,
23    family service agency, alcohol or substance abuse program,
24    mental health center guidance counselor, agency providing
25    services to elders, program designed for domestic violence
26    abusers or any other guidance service the court deems

 

 

09800HB3269ham003- 25 -LRB098 07721 RLC 56843 a

1    appropriate. The Court may order the respondent in any
2    intimate partner relationship to report to an Illinois
3    Department of Human Services protocol approved partner
4    abuse intervention program for an assessment and to follow
5    all recommended treatment.
6        (5) Physical care and possession of the minor child. In
7    order to protect the minor child from abuse, neglect, or
8    unwarranted separation from the person who has been the
9    minor child's primary caretaker, or to otherwise protect
10    the well-being of the minor child, the court may do either
11    or both of the following: (i) grant petitioner physical
12    care or possession of the minor child, or both, or (ii)
13    order respondent to return a minor child to, or not remove
14    a minor child from, the physical care of a parent or person
15    in loco parentis.
16        If a court finds, after a hearing, that respondent has
17    committed abuse (as defined in Section 103) of a minor
18    child, there shall be a rebuttable presumption that
19    awarding physical care to respondent would not be in the
20    minor child's best interest.
21        (6) Temporary legal custody. Award temporary legal
22    custody to petitioner in accordance with this Section, the
23    Illinois Marriage and Dissolution of Marriage Act, the
24    Illinois Parentage Act of 1984, and this State's Uniform
25    Child-Custody Jurisdiction and Enforcement Act.
26        If a court finds, after a hearing, that respondent has

 

 

09800HB3269ham003- 26 -LRB098 07721 RLC 56843 a

1    committed abuse (as defined in Section 103) of a minor
2    child, there shall be a rebuttable presumption that
3    awarding temporary legal custody to respondent would not be
4    in the child's best interest.
5        (7) Visitation. Determine the visitation rights, if
6    any, of respondent in any case in which the court awards
7    physical care or temporary legal custody of a minor child
8    to petitioner. The court shall restrict or deny
9    respondent's visitation with a minor child if the court
10    finds that respondent has done or is likely to do any of
11    the following: (i) abuse or endanger the minor child during
12    visitation; (ii) use the visitation as an opportunity to
13    abuse or harass petitioner or petitioner's family or
14    household members; (iii) improperly conceal or detain the
15    minor child; or (iv) otherwise act in a manner that is not
16    in the best interests of the minor child. The court shall
17    not be limited by the standards set forth in Section 607.1
18    of the Illinois Marriage and Dissolution of Marriage Act.
19    If the court grants visitation, the order shall specify
20    dates and times for the visitation to take place or other
21    specific parameters or conditions that are appropriate. No
22    order for visitation shall refer merely to the term
23    "reasonable visitation".
24        Petitioner may deny respondent access to the minor
25    child if, when respondent arrives for visitation,
26    respondent is under the influence of drugs or alcohol and

 

 

09800HB3269ham003- 27 -LRB098 07721 RLC 56843 a

1    constitutes a threat to the safety and well-being of
2    petitioner or petitioner's minor children or is behaving in
3    a violent or abusive manner.
4        If necessary to protect any member of petitioner's
5    family or household from future abuse, respondent shall be
6    prohibited from coming to petitioner's residence to meet
7    the minor child for visitation, and the parties shall
8    submit to the court their recommendations for reasonable
9    alternative arrangements for visitation. A person may be
10    approved to supervise visitation only after filing an
11    affidavit accepting that responsibility and acknowledging
12    accountability to the court.
13        (8) Removal or concealment of minor child. Prohibit
14    respondent from removing a minor child from the State or
15    concealing the child within the State.
16        (9) Order to appear. Order the respondent to appear in
17    court, alone or with a minor child, to prevent abuse,
18    neglect, removal or concealment of the child, to return the
19    child to the custody or care of the petitioner or to permit
20    any court-ordered interview or examination of the child or
21    the respondent.
22        (10) Possession of personal property. Grant petitioner
23    exclusive possession of personal property and, if
24    respondent has possession or control, direct respondent to
25    promptly make it available to petitioner, if:
26            (i) petitioner, but not respondent, owns the

 

 

09800HB3269ham003- 28 -LRB098 07721 RLC 56843 a

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

 

 

09800HB3269ham003- 29 -LRB098 07721 RLC 56843 a

1    the Illinois Marriage and Dissolution of Marriage Act, as
2    now or hereafter amended.
3        The court may further prohibit respondent from
4    improperly using the financial or other resources of an
5    aged member of the family or household for the profit or
6    advantage of respondent or of any other person.
7        (11.5) Protection of animals. Grant the petitioner the
8    exclusive care, custody, or control of any animal owned,
9    possessed, leased, kept, or held by either the petitioner
10    or the respondent or a minor child residing in the
11    residence or household of either the petitioner or the
12    respondent and order the respondent to stay away from the
13    animal and forbid the respondent from taking,
14    transferring, encumbering, concealing, harming, or
15    otherwise disposing of the animal.
16        (12) Order for payment of support. Order respondent to
17    pay temporary support for the petitioner or any child in
18    the petitioner's care or custody, when the respondent has a
19    legal obligation to support that person, in accordance with
20    the Illinois Marriage and Dissolution of Marriage Act,
21    which shall govern, among other matters, the amount of
22    support, payment through the clerk and withholding of
23    income to secure payment. An order for child support may be
24    granted to a petitioner with lawful physical care or
25    custody of a child, or an order or agreement for physical
26    care or custody, prior to entry of an order for legal

 

 

09800HB3269ham003- 30 -LRB098 07721 RLC 56843 a

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

 

 

09800HB3269ham003- 31 -LRB098 07721 RLC 56843 a

1        limited to legal fees, court costs, private
2        investigator fees, and travel costs.
3        (14) Prohibition of entry. Prohibit the respondent
4    from entering or remaining in the residence or household
5    while the respondent is under the influence of alcohol or
6    drugs and constitutes a threat to the safety and well-being
7    of the petitioner or the petitioner's children.
8        (14.5) Prohibition of firearm possession.
9            (a) A person who is subject to an existing order of
10        protection, interim order of protection, emergency
11        order of protection, or plenary order of protection,
12        issued under this Act or a substantially similar order
13        of protection issued by any other state, possession, or
14        territory of the United States, or the District of
15        Columbia may not lawfully possess firearms, firearm
16        ammunition, stun guns, or tasers under Section 8.2 of
17        the Firearm Owners Identification Card Act, Prohibit a
18        respondent against whom an order of protection was
19        issued from possessing any firearms during the
20        duration of the order if the order:
21                (1) was issued after a hearing of which such
22            person received actual notice, and at which such
23            person had an opportunity to participate;
24                (2) restrains such person from harassing,
25            stalking, or threatening an intimate partner of
26            such person or child of such intimate partner or

 

 

09800HB3269ham003- 32 -LRB098 07721 RLC 56843 a

1            person, or engaging in other conduct that would
2            place an intimate partner in reasonable fear of
3            bodily injury to the partner or child; and
4                (3)(i) includes a finding that such person
5            represents a credible threat to the physical
6            safety of such intimate partner or child; or (ii)
7            by its terms explicitly prohibits the use,
8            attempted use, or threatened use of physical force
9            against such intimate partner or child that would
10            reasonably be expected to cause bodily injury.
11        Any firearms, firearm ammunition, stun guns, or tasers
12        in the possession of the respondent, except as provided
13        in item (b) of this paragraph (14.5), shall be ordered
14        by the court to be turned over to a person with a valid
15        Firearm Owner's Identification Card for safekeeping.
16        The court shall order that the respondent's Firearm
17        Owner's Identification Card be turned over to the local
18        law enforcement agency, which shall immediately mail
19        the card to the Department of State Police Firearm
20        Owner's Identification Card Office for safekeeping.
21        The period of safekeeping shall be for the duration of
22        the order of protection, interim order of protection,
23        emergency order of protection, or plenary order of
24        protection. The firearms, firearm ammunition, stun
25        guns, or tasers and Firearm Owner's Identification
26        Card, if unexpired, shall at the respondent's request,

 

 

09800HB3269ham003- 33 -LRB098 07721 RLC 56843 a

1        be returned to the respondent at expiration of the
2        order of protection, interim order of protection,
3        emergency order of protection, or plenary order of
4        protection. Any Firearm Owner's Identification Card in
5        the possession of the respondent, except as provided in
6        subsection (b), shall be ordered by the court to be
7        turned over to the local law enforcement agency. The
8        local law enforcement agency shall immediately mail
9        the card to the Department of State Police Firearm
10        Owner's Identification Card Office for safekeeping.
11        The court shall issue a warrant for seizure of any
12        firearm in the possession of the respondent, to be kept
13        by the local law enforcement agency for safekeeping,
14        except as provided in subsection (b). The period of
15        safekeeping shall be for the duration of the order of
16        protection. The firearm or firearms and Firearm
17        Owner's Identification Card, if unexpired, shall at
18        the respondent's request, be returned to the
19        respondent at the end of the order of protection. It is
20        the respondent's responsibility to notify the
21        Department of State Police Firearm Owner's
22        Identification Card Office.
23            (b) If the respondent is a peace officer as defined
24        in Section 2-13 of the Criminal Code of 2012, the court
25        shall order that any firearms used by the respondent in
26        the performance of his or her duties as a peace officer

 

 

09800HB3269ham003- 34 -LRB098 07721 RLC 56843 a

1        be surrendered to the chief law enforcement executive
2        of the agency in which the respondent is employed, who
3        shall retain the firearms for safekeeping for the
4        duration of the order of protection.
5            (c) Upon expiration of the period of safekeeping,
6        if the firearms or Firearm Owner's Identification Card
7        cannot be returned to respondent because respondent
8        cannot be located, fails to respond to requests to
9        retrieve the firearms, or is not lawfully eligible to
10        possess a firearm, upon petition from the local law
11        enforcement agency, the court may order the local law
12        enforcement agency to destroy the firearms, use the
13        firearms for training purposes, or for any other
14        application as deemed appropriate by the local law
15        enforcement agency; or that the firearms be turned over
16        to a third party who is lawfully eligible to possess
17        firearms, and who does not reside with respondent.
18        (15) Prohibition of access to records. If an order of
19    protection prohibits respondent from having contact with
20    the minor child, or if petitioner's address is omitted
21    under subsection (b) of Section 203, or if necessary to
22    prevent abuse or wrongful removal or concealment of a minor
23    child, the order shall deny respondent access to, and
24    prohibit respondent from inspecting, obtaining, or
25    attempting to inspect or obtain, school or any other
26    records of the minor child who is in the care of

 

 

09800HB3269ham003- 35 -LRB098 07721 RLC 56843 a

1    petitioner.
2        (16) Order for payment of shelter services. Order
3    respondent to reimburse a shelter providing temporary
4    housing and counseling services to the petitioner for the
5    cost of the services, as certified by the shelter and
6    deemed reasonable by the court.
7        (17) Order for injunctive relief. Enter injunctive
8    relief necessary or appropriate to prevent further abuse of
9    a family or household member or further abuse, neglect, or
10    exploitation of a high-risk adult with disabilities or to
11    effectuate one of the granted remedies, if supported by the
12    balance of hardships. If the harm to be prevented by the
13    injunction is abuse or any other harm that one of the
14    remedies listed in paragraphs (1) through (16) of this
15    subsection is designed to prevent, no further evidence is
16    necessary that the harm is an irreparable injury.
17    (c) Relevant factors; findings.
18        (1) In determining whether to grant a specific remedy,
19    other than payment of support, the court shall consider
20    relevant factors, including but not limited to the
21    following:
22            (i) the nature, frequency, severity, pattern and
23        consequences of the respondent's past abuse, neglect
24        or exploitation of the petitioner or any family or
25        household member, including the concealment of his or
26        her location in order to evade service of process or

 

 

09800HB3269ham003- 36 -LRB098 07721 RLC 56843 a

1        notice, and the likelihood of danger of future abuse,
2        neglect, or exploitation to petitioner or any member of
3        petitioner's or respondent's family or household; and
4            (ii) the danger that any minor child will be abused
5        or neglected or improperly removed from the
6        jurisdiction, improperly concealed within the State or
7        improperly separated from the child's primary
8        caretaker.
9        (2) In comparing relative hardships resulting to the
10    parties from loss of possession of the family home, the
11    court shall consider relevant factors, including but not
12    limited to the following:
13            (i) availability, accessibility, cost, safety,
14        adequacy, location and other characteristics of
15        alternate housing for each party and any minor child or
16        dependent adult in the party's care;
17            (ii) the effect on the party's employment; and
18            (iii) the effect on the relationship of the party,
19        and any minor child or dependent adult in the party's
20        care, to family, school, church and community.
21        (3) Subject to the exceptions set forth in paragraph
22    (4) of this subsection, the court shall make its findings
23    in an official record or in writing, and shall at a minimum
24    set forth the following:
25            (i) That the court has considered the applicable
26        relevant factors described in paragraphs (1) and (2) of

 

 

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1        this subsection.
2            (ii) Whether the conduct or actions of respondent,
3        unless prohibited, will likely cause irreparable harm
4        or continued abuse.
5            (iii) Whether it is necessary to grant the
6        requested relief in order to protect petitioner or
7        other alleged abused persons.
8        (4) For purposes of issuing an ex parte emergency order
9    of protection, the court, as an alternative to or as a
10    supplement to making the findings described in paragraphs
11    (c)(3)(i) through (c)(3)(iii) of this subsection, may use
12    the following procedure:
13        When a verified petition for an emergency order of
14    protection in accordance with the requirements of Sections
15    203 and 217 is presented to the court, the court shall
16    examine petitioner on oath or affirmation. An emergency
17    order of protection shall be issued by the court if it
18    appears from the contents of the petition and the
19    examination of petitioner that the averments are
20    sufficient to indicate abuse by respondent and to support
21    the granting of relief under the issuance of the emergency
22    order of protection.
23        (5) Never married parties. No rights or
24    responsibilities for a minor child born outside of marriage
25    attach to a putative father until a father and child
26    relationship has been established under the Illinois

 

 

09800HB3269ham003- 38 -LRB098 07721 RLC 56843 a

1    Parentage Act of 1984, the Illinois Public Aid Code,
2    Section 12 of the Vital Records Act, the Juvenile Court Act
3    of 1987, the Probate Act of 1985, the Revised Uniform
4    Reciprocal Enforcement of Support Act, the Uniform
5    Interstate Family Support Act, the Expedited Child Support
6    Act of 1990, any judicial, administrative, or other act of
7    another state or territory, any other Illinois statute, or
8    by any foreign nation establishing the father and child
9    relationship, any other proceeding substantially in
10    conformity with the Personal Responsibility and Work
11    Opportunity Reconciliation Act of 1996 (Pub. L. 104-193),
12    or where both parties appeared in open court or at an
13    administrative hearing acknowledging under oath or
14    admitting by affirmation the existence of a father and
15    child relationship. Absent such an adjudication, finding,
16    or acknowledgement, no putative father shall be granted
17    temporary custody of the minor child, visitation with the
18    minor child, or physical care and possession of the minor
19    child, nor shall an order of payment for support of the
20    minor child be entered.
21    (d) Balance of hardships; findings. If the court finds that
22the balance of hardships does not support the granting of a
23remedy governed by paragraph (2), (3), (10), (11), or (16) of
24subsection (b) of this Section, which may require such
25balancing, the court's findings shall so indicate and shall
26include a finding as to whether granting the remedy will result

 

 

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1in hardship to respondent that would substantially outweigh the
2hardship to petitioner from denial of the remedy. The findings
3shall be an official record or in writing.
4    (e) Denial of remedies. Denial of any remedy shall not be
5based, in whole or in part, on evidence that:
6        (1) Respondent has cause for any use of force, unless
7    that cause satisfies the standards for justifiable use of
8    force provided by Article 7 of the Criminal Code of 2012;
9        (2) Respondent was voluntarily intoxicated;
10        (3) Petitioner acted in self-defense or defense of
11    another, provided that, if petitioner utilized force, such
12    force was justifiable under Article 7 of the Criminal Code
13    of 2012;
14        (4) Petitioner did not act in self-defense or defense
15    of another;
16        (5) Petitioner left the residence or household to avoid
17    further abuse, neglect, or exploitation by respondent;
18        (6) Petitioner did not leave the residence or household
19    to avoid further abuse, neglect, or exploitation by
20    respondent;
21        (7) Conduct by any family or household member excused
22    the abuse, neglect, or exploitation by respondent, unless
23    that same conduct would have excused such abuse, neglect,
24    or exploitation if the parties had not been family or
25    household members.
26(Source: P.A. 96-701, eff. 1-1-10; 96-1239, eff. 1-1-11;

 

 

09800HB3269ham003- 40 -LRB098 07721 RLC 56843 a

197-158, eff. 1-1-12; 97-294, eff. 1-1-12; 97-813, eff. 7-13-12;
297-1131, eff. 1-1-13; 97-1150, eff. 1-25-13.)".