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91_HB1685
LRB9104775RCkb
1 AN ACT in relation to orders of protection.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Code of Criminal Procedure of 1963 is
5 amended by changing Sections 112A-14 and 112A-17 as follows:
6 (725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
7 Sec. 112A-14. Order of protection; remedies.
8 (a) Issuance of order. If the court finds that
9 petitioner has been abused by a family or household member,
10 as defined in this Article, an order of protection
11 prohibiting such abuse shall issue; provided that petitioner
12 must also satisfy the requirements of one of the following
13 Sections, as appropriate: Section 112A-17 on emergency
14 orders, Section 112A-18 on interim orders, or Section 112A-19
15 on plenary orders. Petitioner shall not be denied an order
16 of protection because petitioner or respondent is a minor.
17 The court, when determining whether or not to issue an order
18 of protection, shall not require physical manifestations of
19 abuse on the person of the victim. Modification and
20 extension of prior orders of protection shall be in
21 accordance with this Article.
22 (b) Remedies and standards. The remedies to be included
23 in an order of protection shall be determined in accordance
24 with this Section and one of the following Sections, as
25 appropriate: Section 112A-17 on emergency orders, Section
26 112A-18 on interim orders, and Section 112A-19 on plenary
27 orders. The remedies listed in this subsection shall be in
28 addition to other civil or criminal remedies available to
29 petitioner.
30 (1) Prohibition of abuse. Prohibit respondent's
31 harassment, interference with personal liberty,
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1 intimidation of a dependent, physical abuse or willful
2 deprivation, as defined in this Article, if such abuse
3 has 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 of the petitioner, including one
8 owned or leased by respondent, if petitioner has a right
9 to occupancy thereof. The grant of exclusive possession
10 of the residence shall not affect title to real property,
11 nor shall the court be limited by the standard set forth
12 in Section 701 of the Illinois Marriage and Dissolution
13 of Marriage Act.
14 (A) Right to occupancy. A party has a right
15 to occupancy of a residence or household if it is
16 solely or jointly owned or leased by that party,
17 that party's spouse, a person with a legal duty to
18 support that party or a minor child in that party's
19 care, or by any person or entity other than the
20 opposing party that authorizes that party's
21 occupancy (e.g., a domestic violence shelter).
22 Standards set forth in subparagraph (B) shall not
23 preclude equitable relief.
24 (B) Presumption of hardships. If petitioner
25 and respondent each has the right to occupancy of a
26 residence or household, the court shall balance (i)
27 the hardships to respondent and any minor child or
28 dependent adult in respondent's care resulting from
29 entry of this remedy with (ii) the hardships to
30 petitioner and any minor child or dependent adult in
31 petitioner's care resulting from continued exposure
32 to the risk of abuse (should petitioner remain at
33 the residence or household) or from loss of
34 possession of the residence or household (should
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1 petitioner leave to avoid the risk of abuse). When
2 determining the balance of hardships, the court
3 shall also take into account the accessibility of
4 the residence or household. Hardships need not be
5 balanced if respondent does not have a right to
6 occupancy.
7 The balance of hardships is presumed to favor
8 possession by petitioner unless the presumption is
9 rebutted by a preponderance of the evidence, showing
10 that the hardships to respondent substantially
11 outweigh the hardships to petitioner and any minor
12 child or dependent adult in petitioner's care. The
13 court, on the request of petitioner or on its own
14 motion, may order respondent to provide suitable,
15 accessible, alternate housing for petitioner instead
16 of excluding respondent from a mutual residence or
17 household.
18 (3) Stay away order and additional prohibitions.
19 Order respondent to stay away from petitioner or any
20 other person protected by the order of protection, or
21 prohibit respondent from entering or remaining present at
22 petitioner's school, place of employment, or other
23 specified places at times when petitioner is present, or
24 both, if reasonable, given the balance of hardships.
25 Hardships need not be balanced for the court to enter a
26 stay away order or prohibit entry if respondent has no
27 right to enter the premises.
28 If an order of protection grants petitioner
29 exclusive possession of the residence, or prohibits
30 respondent from entering the residence, or orders
31 respondent to stay away from petitioner or other
32 protected persons, then the court may allow respondent
33 access to the residence to remove items of clothing and
34 personal adornment used exclusively by respondent,
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1 medications, and other items as the court directs. The
2 right to access shall be exercised on only one occasion
3 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
6 respondent to undergo counseling for a specified duration
7 with a social worker, psychologist, clinical
8 psychologist, psychiatrist, family service agency,
9 alcohol or substance abuse program, mental health center
10 guidance counselor, agency providing services to elders,
11 program designed for domestic violence abusers or any
12 other guidance service the court deems appropriate.
13 (5) Physical care and possession of the minor
14 child. In order to protect the minor child from abuse,
15 neglect, or unwarranted separation from the person who
16 has been the minor child's primary caretaker, or to
17 otherwise protect the well-being of the minor child, the
18 court may do either or both of the following: (i) grant
19 petitioner physical care or possession of the minor
20 child, or both, or (ii) order respondent to return a
21 minor child to, or not remove a minor child from, the
22 physical care of a parent or person in loco parentis.
23 If a court finds, after a hearing, that respondent
24 has committed abuse (as defined in Section 112A-3) of a
25 minor child, there shall be a rebuttable presumption that
26 awarding physical care to respondent would not be in the
27 minor child's best interest.
28 (6) Temporary legal custody. Award temporary legal
29 custody to petitioner in accordance with this Section,
30 the Illinois Marriage and Dissolution of Marriage Act,
31 the Illinois Parentage Act of 1984, and this State's
32 Uniform Child Custody Jurisdiction Act.
33 If a court finds, after a hearing, that respondent
34 has committed abuse (as defined in Section 112A-3) of a
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1 minor child, there shall be a rebuttable presumption that
2 awarding temporary legal custody to respondent would not
3 be in the child's best interest.
4 (7) Visitation. Determine the visitation rights,
5 if any, of respondent in any case in which the court
6 awards physical care or temporary legal custody of a
7 minor child to petitioner. The court shall restrict or
8 deny respondent's visitation with a minor child if the
9 court finds that respondent has done or is likely to do
10 any of the following: (i) abuse or endanger the minor
11 child during visitation; (ii) use the visitation as an
12 opportunity to abuse or harass petitioner or petitioner's
13 family or household members; (iii) improperly conceal or
14 detain the minor child; or (iv) otherwise act in a manner
15 that is not in the best interests of the minor child.
16 The court shall not be limited by the standards set forth
17 in Section 607.1 of the Illinois Marriage and Dissolution
18 of Marriage Act. If the court grants visitation, the
19 order shall specify dates and times for the visitation to
20 take place or other specific parameters or conditions
21 that are appropriate. No order for visitation shall
22 refer merely to the term "reasonable visitation".
23 Petitioner may deny respondent access to the minor
24 child if, when respondent arrives for visitation,
25 respondent is under the influence of drugs or alcohol and
26 constitutes a threat to the safety and well-being of
27 petitioner or petitioner's minor children or is behaving
28 in a violent or abusive manner.
29 If necessary to protect any member of petitioner's
30 family or household from future abuse, respondent shall
31 be prohibited from coming to petitioner's residence to
32 meet the minor child for visitation, and the parties
33 shall submit to the court their recommendations for
34 reasonable alternative arrangements for visitation. A
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1 person may be approved to supervise visitation only after
2 filing an affidavit accepting that responsibility and
3 acknowledging accountability to the court.
4 (8) Removal or concealment of minor child.
5 Prohibit respondent from removing a minor child from the
6 State or concealing the child within the State.
7 (9) Order to appear. Order the respondent to
8 appear in court, alone or with a minor child, to prevent
9 abuse, neglect, removal or concealment of the child, to
10 return the child to the custody or care of the petitioner
11 or to permit any court-ordered interview or examination
12 of the child or the respondent.
13 (10) Possession of personal property. Grant
14 petitioner exclusive possession of personal property and,
15 if respondent has possession or control, direct
16 respondent to promptly make it available to petitioner,
17 if:
18 (i) petitioner, but not respondent, owns the
19 property; or
20 (ii) the parties own the property jointly;
21 sharing it would risk abuse of petitioner by
22 respondent or is impracticable; and the balance of
23 hardships favors temporary possession by petitioner.
24 If petitioner's sole claim to ownership of the
25 property is that it is marital property, the court may
26 award petitioner temporary possession thereof under the
27 standards of subparagraph (ii) of this paragraph only if
28 a proper proceeding has been filed under the Illinois
29 Marriage and Dissolution of Marriage Act, as now or
30 hereafter amended.
31 No order under this provision shall affect title to
32 property.
33 (11) Protection of property. Forbid the respondent
34 from taking, transferring, encumbering, concealing,
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1 damaging or otherwise disposing of any real or personal
2 property, except as explicitly authorized by the court,
3 if:
4 (i) petitioner, but not respondent, owns the
5 property; or
6 (ii) the parties own the property jointly, and
7 the balance of hardships favors granting this
8 remedy.
9 If petitioner's sole claim to ownership of the
10 property is that it is marital property, the court may
11 grant petitioner relief under subparagraph (ii) of this
12 paragraph only if a proper proceeding has been filed
13 under the Illinois Marriage and Dissolution of Marriage
14 Act, as now or hereafter amended.
15 The court may further prohibit respondent from
16 improperly using the financial or other resources of an
17 aged member of the family or household for the profit or
18 advantage of respondent or of any other person.
19 (12) Order for payment of support. Order
20 respondent to pay temporary support for the petitioner or
21 any child in the petitioner's care or custody, when the
22 respondent has a legal obligation to support that person,
23 in accordance with the Illinois Marriage and Dissolution
24 of Marriage Act, which shall govern, among other matters,
25 the amount of support, payment through the clerk and
26 withholding of income to secure payment. An order for
27 child support may be granted to a petitioner with lawful
28 physical care or custody of a child, or an order or
29 agreement for physical care or custody, prior to entry of
30 an order for legal custody. Such a support order shall
31 expire upon entry of a valid order granting legal custody
32 to another, unless otherwise provided in the custody
33 order.
34 (13) Order for payment of losses. Order respondent
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1 to pay petitioner for losses suffered as a direct result
2 of the abuse. Such losses shall include, but not be
3 limited to, medical expenses, lost earnings or other
4 support, repair or replacement of property damaged or
5 taken, reasonable attorney's fees, court costs and moving
6 or other travel expenses, including additional reasonable
7 expenses for temporary shelter and restaurant meals.
8 (i) Losses affecting family needs. If a party
9 is entitled to seek maintenance, child support or
10 property distribution from the other party under the
11 Illinois Marriage and Dissolution of Marriage Act,
12 as now or hereafter amended, the court may order
13 respondent to reimburse petitioner's actual losses,
14 to the extent that such reimbursement would be
15 "appropriate temporary relief", as authorized by
16 subsection (a)(3) of Section 501 of that Act.
17 (ii) Recovery of expenses. In the case of an
18 improper concealment or removal of a minor child,
19 the court may order respondent to pay the reasonable
20 expenses incurred or to be incurred in the search
21 for and recovery of the minor child, including but
22 not limited to legal fees, court costs, private
23 investigator fees, and travel costs.
24 (14) Prohibition of entry. Prohibit the respondent
25 from entering or remaining in the residence or household
26 while the respondent is under the influence of alcohol or
27 drugs and constitutes a threat to the safety and
28 well-being of the petitioner or the petitioner's
29 children.
30 (14.5) Prohibition of firearm possession. (a) When
31 a complaint is made under a request for an order of
32 protection, that the respondent has threatened or is
33 likely to use firearms illegally against the petitioner,
34 and the respondent is present in court, or has failed to
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1 appear after receiving actual notice, the court shall
2 examine on oath the petitioner, and any witnesses who may
3 be produced. If the court is satisfied that there is any
4 danger of the illegal use of firearms, it shall include
5 in the order of protection the requirement that any
6 firearms in the possession of the respondent, unless the
7 firearms are used by the respondent in the performance of
8 his or her duties as a peace officer, except as provided
9 in subsection (b), be turned over to the local law
10 enforcement agency for safekeeping. If the respondent is
11 a peace officer as defined in Section 2-13 of the
12 Criminal Code of 1961, the court shall order that any
13 firearms used by the respondent in the performance of his
14 or her duties as a peace officer be surrendered to the
15 chief law enforcement executive of the agency in which
16 the respondent is employed, who shall retain the firearms
17 for safekeeping. If the respondent fails to appear, or
18 refuses or fails to surrender his or her firearms, the
19 court shall issue a warrant for seizure of any firearm in
20 the possession of the respondent. The period of
21 safekeeping shall be for a stated period of time not to
22 exceed 2 years. The firearm or firearms shall be
23 returned to the respondent at the end of the stated
24 period or at expiration of the order of protection,
25 whichever is sooner. (b) (Blank.) If the respondent is a
26 peace officer as defined in Section 2-13 of the Criminal
27 Code of 1961, the court shall order that any firearms
28 used by the respondent in the performance of his or her
29 duties as a peace officer be surrendered to the chief law
30 enforcement executive of the agency in which the
31 respondent is employed, who shall retain the firearms for
32 safekeeping for the stated period not to exceed 2 years
33 as set forth in the court order.
34 (15) Prohibition of access to records. If an order
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1 of protection prohibits respondent from having contact
2 with the minor child, or if petitioner's address is
3 omitted under subsection (b) of Section 112A-5, or if
4 necessary to prevent abuse or wrongful removal or
5 concealment of a minor child, the order shall deny
6 respondent access to, and prohibit respondent from
7 inspecting, obtaining, or attempting to inspect or
8 obtain, school or any other records of the minor child
9 who is in the care of petitioner.
10 (16) Order for payment of shelter services. Order
11 respondent to reimburse a shelter providing temporary
12 housing and counseling services to the petitioner for the
13 cost of the services, as certified by the shelter and
14 deemed reasonable by the court.
15 (17) Order for injunctive relief. Enter injunctive
16 relief necessary or appropriate to prevent further abuse
17 of a family or household member or to effectuate one of
18 the granted remedies, if supported by the balance of
19 hardships. If the harm to be prevented by the injunction
20 is abuse or any other harm that one of the remedies
21 listed in paragraphs (1) through (16) of this subsection
22 is designed to prevent, no further evidence is necessary
23 to establish that the harm is an irreparable injury.
24 (c) Relevant factors; findings.
25 (1) In determining whether to grant a specific
26 remedy, other than payment of support, the court shall
27 consider relevant factors, including but not limited to
28 the following:
29 (i) the nature, frequency, severity, pattern
30 and consequences of the respondent's past abuse of
31 the petitioner or any family or household member,
32 including the concealment of his or her location in
33 order to evade service of process or notice, and the
34 likelihood of danger of future abuse to petitioner
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1 or any member of petitioner's or respondent's family
2 or household; and
3 (ii) the danger that any minor child will be
4 abused or neglected or improperly removed from the
5 jurisdiction, improperly concealed within the State
6 or improperly separated from the child's primary
7 caretaker.
8 (2) In comparing relative hardships resulting to
9 the parties from loss of possession of the family home,
10 the court shall consider relevant factors, including but
11 not limited to the following:
12 (i) availability, accessibility, cost, safety,
13 adequacy, location and other characteristics of
14 alternate housing for each party and any minor child
15 or dependent adult in the party's care;
16 (ii) the effect on the party's employment; and
17 (iii) the effect on the relationship of the
18 party, and any minor child or dependent adult in the
19 party's care, to family, school, church and
20 community.
21 (3) Subject to the exceptions set forth in
22 paragraph (4) of this subsection, the court shall make
23 its findings in an official record or in writing, and
24 shall at a minimum set forth the following:
25 (i) That the court has considered the
26 applicable relevant factors described in paragraphs
27 (1) and (2) of this subsection.
28 (ii) Whether the conduct or actions of
29 respondent, unless prohibited, will likely cause
30 irreparable harm or continued abuse.
31 (iii) Whether it is necessary to grant the
32 requested relief in order to protect petitioner or
33 other alleged abused persons.
34 (4) For purposes of issuing an ex parte emergency
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1 order of protection, the court, as an alternative to or
2 as a supplement to making the findings described in
3 paragraphs (c)(3)(i) through (c)(3)(iii) of this
4 subsection, may use the following procedure:
5 When a verified petition for an emergency order of
6 protection in accordance with the requirements of
7 Sections 112A-5 and 112A-17 is presented to the court,
8 the court shall examine petitioner on oath or
9 affirmation. An emergency order of protection shall be
10 issued by the court if it appears from the contents of
11 the petition and the examination of petitioner that the
12 averments are sufficient to indicate abuse by respondent
13 and to support the granting of relief under the issuance
14 of the emergency order of protection.
15 (5) Never married parties. No rights or
16 responsibilities for a minor child born outside of
17 marriage attach to a putative father until a father and
18 child relationship has been established under the
19 Illinois Parentage Act of 1984. Absent such an
20 adjudication, no putative father shall be granted
21 temporary custody of the minor child, visitation with the
22 minor child, or physical care and possession of the minor
23 child, nor shall an order of payment for support of the
24 minor child be entered.
25 (d) Balance of hardships; findings. If the court finds
26 that the balance of hardships does not support the granting
27 of a remedy governed by paragraph (2), (3), (10), (11), or
28 (16) of subsection (b) of this Section, which may require
29 such balancing, the court's findings shall so indicate and
30 shall include a finding as to whether granting the remedy
31 will result in hardship to respondent that would
32 substantially outweigh the hardship to petitioner from denial
33 of the remedy. The findings shall be an official record or
34 in writing.
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1 (e) Denial of remedies. Denial of any remedy shall not
2 be based, in whole or in part, on evidence that:
3 (1) Respondent has cause for any use of force,
4 unless that cause satisfies the standards for justifiable
5 use of force provided by Article VII of the Criminal Code
6 of 1961;
7 (2) Respondent was voluntarily intoxicated;
8 (3) Petitioner acted in self-defense or defense of
9 another, provided that, if petitioner utilized force,
10 such force was justifiable under Article VII of the
11 Criminal Code of 1961;
12 (4) Petitioner did not act in self-defense or
13 defense of another;
14 (5) Petitioner left the residence or household to
15 avoid further abuse by respondent;
16 (6) Petitioner did not leave the residence or
17 household to avoid further abuse by respondent;
18 (7) Conduct by any family or household member
19 excused the abuse by respondent, unless that same conduct
20 would have excused such abuse if the parties had not been
21 family or household members.
22 (Source: P.A. 89-367, eff. 1-1-96.)
23 (725 ILCS 5/112A-17) (from Ch. 38, par. 112A-17)
24 Sec. 112A-17. Emergency order of protection.
25 (a) Prerequisites. An emergency order of protection
26 shall issue if petitioner satisfies the requirements of this
27 subsection for one or more of the requested remedies. For
28 each remedy requested, petitioner shall establish that:
29 (1) The court has jurisdiction under Section
30 112A-9;
31 (2) The requirements of Section 112A-14 are
32 satisfied; and
33 (3) There is good cause to grant the remedy,
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1 regardless of prior service of process or of notice upon
2 the respondent, because:
3 (i) For the remedies of "prohibition of abuse"
4 described in Section 112A-14(b)(1), "stay away order
5 and additional prohibitions" described in Section
6 112A-14(b)(3), "removal or concealment of minor
7 child" described in Section 112A-14(b)(8), "order to
8 appear" described in Section 112A-14(b)(9),
9 "physical care and possession of the minor child"
10 described in Section 112A-14(b)(5), "protection of
11 property" described in Section 112A-14(b)(11),
12 "prohibition of entry" described in Section
13 112A-14(b)(14), "prohibition of access to records"
14 described in Section 112A-14(b)(15), and "injunctive
15 relief" described in Section 112A-14(b)(16), the
16 harm which that remedy is intended to prevent would
17 be likely to occur if the respondent were given any
18 prior notice, or greater notice than was actually
19 given, of the petitioner's efforts to obtain
20 judicial relief;
21 (ii) For the remedy of "grant of exclusive
22 possession of residence" described in Section
23 112A-14(b)(2), the immediate danger of further abuse
24 of petitioner by respondent, if petitioner chooses
25 or had chosen to remain in the residence or
26 household while respondent was given any prior
27 notice or greater notice than was actually given of
28 petitioner's efforts to obtain judicial relief,
29 outweighs the hardships to respondent of an
30 emergency order granting petitioner exclusive
31 possession of the residence or household. This
32 remedy shall not be denied because petitioner has or
33 could obtain temporary shelter elsewhere while prior
34 notice is given to respondent, unless the hardships
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1 to respondent from exclusion from the home
2 substantially outweigh those to petitioner.
3 (iii) For the remedy of "possession of
4 personal property" described in Section
5 112A-14(b)(10), improper disposition of the personal
6 property would be likely to occur if respondent were
7 given any prior notice, or greater notice than was
8 actually given, of petitioner's efforts to obtain
9 judicial relief, or petitioner has an immediate and
10 pressing need for possession of that property.
11 An emergency order may not include the counseling, legal
12 custody, payment of support or monetary compensation
13 remedies. An emergency order of protection may not include
14 the surrendering of firearms by a respondent who is a peace
15 officer under Section 112A-14(b)(14.5)(a) unless the
16 respondent is present in court or has been given actual
17 notice of the emergency hearing.
18 (b) Appearance by respondent. If respondent appears in
19 court for this hearing for an emergency order, he or she may
20 elect to file a general appearance and testify. Any
21 resulting order may be an emergency order, governed by this
22 Section. Notwithstanding the requirements of this Section,
23 if all requirements of Section 112A-18 have been met, the
24 Court may issue a 30-day interim order.
25 (c) Emergency orders: court holidays and evenings.
26 (1) Prerequisites. When the court is unavailable
27 at the close of business, the petitioner may file a
28 petition for a 21-day emergency order before any
29 available circuit judge or associate judge who may grant
30 relief under this Article. If the judge finds that there
31 is an immediate and present danger of abuse to petitioner
32 and that petitioner has satisfied the prerequisites set
33 forth in subsection (a) of Section 112A-17, that judge
34 may issue an emergency order of protection.
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1 (1.5) Issuance of order. The chief judge of the
2 circuit court may designate for each county in the
3 circuit at least one judge to be reasonably available to
4 issue orally, by telephone, by facsimile, or otherwise,
5 an emergency order of protection at all times, whether or
6 not the court is in session.
7 (2) Certification and transfer. Any order issued
8 under this Section and any documentation in support
9 thereof shall be certified on the next court day to the
10 appropriate court. The clerk of that court shall
11 immediately assign a case number, file the petition,
12 order and other documents with the court and enter the
13 order of record and file it with the sheriff for service,
14 in accordance with Section 112A-22. Filing the petition
15 shall commence proceedings for further relief, under
16 Section 112A-2. Failure to comply with the requirements
17 of this subsection shall not affect the validity of the
18 order.
19 (Source: P.A. 90-392, eff. 1-1-98.)
20 Section 10. The Illinois Domestic Violence Act of 1986
21 is 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
25 petitioner has been abused by a family or household member or
26 that petitioner is a high-risk adult who has been abused,
27 neglected, or exploited, as defined in this Act, an order of
28 protection prohibiting the abuse, neglect, or exploitation
29 shall issue; provided that petitioner must also satisfy the
30 requirements of one of the following Sections, as
31 appropriate: Section 217 on emergency orders, Section 218 on
32 interim orders, or Section 219 on plenary orders. Petitioner
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1 shall not be denied an order of protection because petitioner
2 or respondent is a minor. The court, when determining whether
3 or not to issue an order of protection, shall not require
4 physical manifestations of abuse on the person of the victim.
5 Modification and extension of prior orders of protection
6 shall be in accordance with this Act.
7 (b) Remedies and standards. The remedies to be included
8 in an order of protection shall be determined in accordance
9 with this Section and one of the following Sections, as
10 appropriate: Section 217 on emergency orders, Section 218 on
11 interim orders, and Section 219 on plenary orders. The
12 remedies listed in this subsection shall be in addition to
13 other civil or criminal remedies 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,
18 as defined in this Act, or stalking of the petitioner, as
19 defined in Section 12-7.3 of the Criminal Code of 1961,
20 if 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 or household of the petitioner, including one
26 owned or leased by respondent, if petitioner has a right
27 to occupancy thereof. The grant of exclusive possession
28 of the residence shall not affect title to real property,
29 nor shall the court be limited by the standard set forth
30 in Section 701 of the Illinois Marriage and Dissolution
31 of Marriage Act.
32 (A) Right to occupancy. A party has a right
33 to occupancy of a residence or household if it is
34 solely or jointly owned or leased by that party,
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1 that party's spouse, a person with a legal duty to
2 support that party or a minor child in that party's
3 care, or by any person or entity other than the
4 opposing party that authorizes that party's
5 occupancy (e.g., a domestic violence shelter).
6 Standards set forth in subparagraph (B) shall not
7 preclude equitable relief.
8 (B) Presumption of hardships. If petitioner
9 and respondent each has the right to occupancy of a
10 residence or household, the court shall balance (i)
11 the hardships to respondent and any minor child or
12 dependent adult in respondent's care resulting from
13 entry of this remedy with (ii) the hardships to
14 petitioner and any minor child or dependent adult in
15 petitioner's care resulting from continued exposure
16 to the risk of abuse (should petitioner remain at
17 the residence or household) or from loss of
18 possession of the residence or household (should
19 petitioner leave to avoid the risk of abuse). When
20 determining the balance of hardships, the court
21 shall also take into account the accessibility of
22 the residence or household. Hardships need not be
23 balanced if respondent does not have a right to
24 occupancy.
25 The balance of hardships is presumed to favor
26 possession by petitioner unless the presumption is
27 rebutted by a preponderance of the evidence, showing
28 that the hardships to respondent substantially
29 outweigh the hardships to petitioner and any minor
30 child or dependent adult in petitioner's care. The
31 court, on the request of petitioner or on its own
32 motion, may order respondent to provide suitable,
33 accessible, alternate housing for petitioner instead
34 of excluding respondent from a mutual residence or
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1 household.
2 (3) Stay away order and additional prohibitions.
3 Order respondent to stay away from petitioner or any
4 other person protected by the order of protection, or
5 prohibit respondent from entering or remaining present at
6 petitioner's school, place of employment, or other
7 specified places at times when petitioner is present, or
8 both, if reasonable, given the balance of hardships.
9 Hardships need not be balanced for the court to enter a
10 stay away order or prohibit entry if respondent has no
11 right to enter the premises.
12 If an order of protection grants petitioner
13 exclusive possession of the residence, or prohibits
14 respondent from entering the residence, or orders
15 respondent to stay away from petitioner or other
16 protected persons, then the court may allow respondent
17 access to the residence to remove items of clothing and
18 personal adornment used exclusively by respondent,
19 medications, and other items as the court directs. The
20 right to access shall be exercised on only one occasion
21 as the court directs and in the presence of an
22 agreed-upon adult third party or law enforcement officer.
23 (4) Counseling. Require or recommend the
24 respondent to undergo counseling for a specified duration
25 with a social worker, psychologist, clinical
26 psychologist, psychiatrist, family service agency,
27 alcohol or substance abuse program, mental health center
28 guidance counselor, agency providing services to elders,
29 program designed for domestic violence abusers or any
30 other guidance service the court deems appropriate.
31 (5) Physical care and possession of the minor
32 child. In order to protect the minor child from abuse,
33 neglect, or unwarranted separation from the person who
34 has been the minor child's primary caretaker, or to
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1 otherwise protect the well-being of the minor child, the
2 court may do either or both of the following: (i) grant
3 petitioner physical care or possession of the minor
4 child, or both, or (ii) order respondent to return a
5 minor child to, or not remove a minor child from, the
6 physical care of a parent or person in loco parentis.
7 If a court finds, after a hearing, that respondent
8 has committed abuse (as defined in Section 103) of a
9 minor child, there shall be a rebuttable presumption that
10 awarding physical care to respondent would not be in the
11 minor child's best interest.
12 (6) Temporary legal custody. Award temporary legal
13 custody to petitioner in accordance with this Section,
14 the Illinois Marriage and Dissolution of Marriage Act,
15 the Illinois Parentage Act of 1984, and this State's
16 Uniform Child Custody Jurisdiction Act.
17 If a court finds, after a hearing, that respondent
18 has committed abuse (as defined in Section 103) of a
19 minor child, there shall be a rebuttable presumption that
20 awarding temporary legal custody to respondent would not
21 be in the child's best interest.
22 (7) Visitation. Determine the visitation rights,
23 if any, of respondent in any case in which the court
24 awards physical care or temporary legal custody of a
25 minor child to petitioner. The court shall restrict or
26 deny respondent's visitation with a minor child if the
27 court finds that respondent has done or is likely to do
28 any of the following: (i) abuse or endanger the minor
29 child during visitation; (ii) use the visitation as an
30 opportunity to abuse or harass petitioner or petitioner's
31 family or household members; (iii) improperly conceal or
32 detain the minor child; or (iv) otherwise act in a manner
33 that is not in the best interests of the minor child.
34 The court shall not be limited by the standards set forth
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1 in Section 607.1 of the Illinois Marriage and Dissolution
2 of Marriage Act. If the court grants visitation, the
3 order shall specify dates and times for the visitation to
4 take place or other specific parameters or conditions
5 that are appropriate. No order for visitation shall
6 refer merely to the term "reasonable visitation".
7 Petitioner may deny respondent access to the minor
8 child if, when respondent arrives for visitation,
9 respondent is under the influence of drugs or alcohol and
10 constitutes a threat to the safety and well-being of
11 petitioner or petitioner's minor children or is behaving
12 in a violent or abusive manner.
13 If necessary to protect any member of petitioner's
14 family or household from future abuse, respondent shall
15 be prohibited from coming to petitioner's residence to
16 meet the minor child for visitation, and the parties
17 shall submit to the court their recommendations for
18 reasonable alternative arrangements for visitation. A
19 person may be approved to supervise visitation only after
20 filing an affidavit accepting that responsibility and
21 acknowledging accountability to the court.
22 (8) Removal or concealment of minor child. Prohibit
23 respondent from removing a minor child from the State or
24 concealing the child within the State.
25 (9) Order to appear. Order the respondent to
26 appear in court, alone or with a minor child, to prevent
27 abuse, neglect, removal or concealment of the child, to
28 return the child to the custody or care of the petitioner
29 or to permit any court-ordered interview or examination
30 of the child or the respondent.
31 (10) Possession of personal property. Grant
32 petitioner exclusive possession of personal property and,
33 if respondent has possession or control, direct
34 respondent to promptly make it available to petitioner,
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1 if:
2 (i) petitioner, but not respondent, owns the
3 property; or
4 (ii) the parties own the property jointly;
5 sharing it would risk abuse of petitioner by
6 respondent or is impracticable; and the balance of
7 hardships favors temporary possession by petitioner.
8 If petitioner's sole claim to ownership of the
9 property is that it is marital property, the court may
10 award petitioner temporary possession thereof under the
11 standards of subparagraph (ii) of this paragraph only if
12 a proper proceeding has been filed under the Illinois
13 Marriage and Dissolution of Marriage Act, as now or
14 hereafter amended.
15 No order under this provision shall affect title to
16 property.
17 (11) Protection of property. Forbid the respondent
18 from taking, transferring, encumbering, concealing,
19 damaging or otherwise disposing of any real or personal
20 property, except as explicitly authorized by the court,
21 if:
22 (i) petitioner, but not respondent, owns the
23 property; or
24 (ii) the parties own the property jointly, and
25 the balance of hardships favors granting this
26 remedy.
27 If petitioner's sole claim to ownership of the
28 property is that it is marital property, the court may
29 grant petitioner relief under subparagraph (ii) of this
30 paragraph only if a proper proceeding has been filed
31 under the Illinois Marriage and Dissolution of Marriage
32 Act, as now or hereafter amended.
33 The court may further prohibit respondent from
34 improperly using the financial or other resources of an
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1 aged member of the family or household for the profit or
2 advantage of respondent or of any other person.
3 (12) Order for payment of support. Order
4 respondent to pay temporary support for the petitioner or
5 any child in the petitioner's care or custody, when the
6 respondent has a legal obligation to support that person,
7 in accordance with the Illinois Marriage and Dissolution
8 of Marriage Act, which shall govern, among other matters,
9 the amount of support, payment through the clerk and
10 withholding of income to secure payment. An order for
11 child support may be granted to a petitioner with lawful
12 physical care or custody of a child, or an order or
13 agreement for physical care or custody, prior to entry of
14 an order for legal custody. Such a support order shall
15 expire upon entry of a valid order granting legal custody
16 to another, unless otherwise provided in the custody
17 order.
18 (13) Order for payment of losses. Order respondent
19 to pay petitioner for losses suffered as a direct result
20 of the abuse, neglect, or exploitation. Such losses
21 shall include, but not be limited to, medical expenses,
22 lost earnings or other support, repair or replacement of
23 property damaged or taken, reasonable attorney's fees,
24 court costs and moving or other travel expenses,
25 including additional reasonable expenses for temporary
26 shelter and restaurant meals.
27 (i) Losses affecting family needs. If a party
28 is entitled to seek maintenance, child support or
29 property distribution from the other party under the
30 Illinois Marriage and Dissolution of Marriage Act,
31 as now or hereafter amended, the court may order
32 respondent to reimburse petitioner's actual losses,
33 to the extent that such reimbursement would be
34 "appropriate temporary relief", as authorized by
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1 subsection (a)(3) of Section 501 of that Act.
2 (ii) Recovery of expenses. In the case of an
3 improper concealment or removal of a minor child,
4 the court may order respondent to pay the reasonable
5 expenses incurred or to be incurred in the search
6 for and recovery of the minor child, including but
7 not limited to legal fees, court costs, private
8 investigator fees, and travel costs.
9 (14) Prohibition of entry. Prohibit the respondent
10 from entering or remaining in the residence or household
11 while the respondent is under the influence of alcohol or
12 drugs and constitutes a threat to the safety and
13 well-being of the petitioner or the petitioner's
14 children.
15 (14.5) Prohibition of firearm possession.
16 (a) When a complaint is made under a request
17 for an order of protection, that the respondent has
18 threatened or is likely to use firearms illegally
19 against the petitioner, and the respondent is
20 present in court, or has failed to appear after
21 receiving actual notice, the court shall examine on
22 oath the petitioner, and any witnesses who may be
23 produced. If the court is satisfied that there is
24 any danger of the illegal use of firearms, it shall
25 issue an order that any firearms in the possession
26 of the respondent, except as provided in subsection
27 (b), be turned over to the local law enforcement
28 agency for safekeeping unless the firearms are used
29 by the respondent in the performance of his or her
30 duties as a peace officer. If the respondent is a
31 peace officer as defined in Section 2-13 of the
32 Criminal Code of 1961, the court shall order that
33 any firearms used by the respondent in the
34 performance of his or her duties as a peace officer
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1 be surrendered to the chief law enforcement
2 executive of the agency in which the respondent is
3 employed, who shall retain the firearms for
4 safekeeping. If the respondent has failed to
5 appear, the court shall issue a warrant for seizure
6 of any firearm in the possession of the respondent.
7 The period of safekeeping shall be for a stated
8 period of time not to exceed 2 years. The firearm
9 or firearms shall be returned to the respondent at
10 the end of the stated period or at expiration of the
11 order of protection, whichever is sooner.
12 (b) (Blank.) If the respondent is a peace
13 officer as defined in Section 2-13 of the Criminal
14 Code of 1961, the court shall order that any
15 firearms used by the respondent in the performance
16 of his or her duties as a peace officer be
17 surrendered to the chief law enforcement executive
18 of the agency in which the respondent is employed,
19 who shall retain the firearms for safekeeping for
20 the stated period not to exceed 2 years as set forth
21 in the court order.
22 (15) Prohibition of access to records. If an order
23 of protection prohibits respondent from having contact
24 with the minor child, or if petitioner's address is
25 omitted under subsection (b) of Section 203, or if
26 necessary to prevent abuse or wrongful removal or
27 concealment of a minor child, the order shall deny
28 respondent access to, and prohibit respondent from
29 inspecting, obtaining, or attempting to inspect or
30 obtain, school or any other records of the minor child
31 who is in the care of petitioner.
32 (16) Order for payment of shelter services. Order
33 respondent to reimburse a shelter providing temporary
34 housing and counseling services to the petitioner for the
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1 cost of the services, as certified by the shelter and
2 deemed reasonable by the court.
3 (17) Order for injunctive relief. Enter injunctive
4 relief necessary or appropriate to prevent further abuse
5 of a family or household member or further abuse,
6 neglect, or exploitation of a high-risk adult with
7 disabilities or to effectuate one of the granted
8 remedies, if supported by the balance of hardships. If
9 the harm to be prevented by the injunction is abuse or
10 any other harm that one of the remedies listed in
11 paragraphs (1) through (16) of this subsection is
12 designed to prevent, no further evidence is necessary
13 that the harm is an irreparable injury.
14 (c) Relevant factors; findings.
15 (1) In determining whether to grant a specific
16 remedy, other than payment of support, the court shall
17 consider relevant factors, including but not limited to
18 the following:
19 (i) the nature, frequency, severity, pattern
20 and consequences of the respondent's past abuse,
21 neglect or exploitation of the petitioner or any
22 family or household member, including the
23 concealment of his or her location in order to evade
24 service of process or notice, and the likelihood of
25 danger of future abuse, neglect, or exploitation to
26 petitioner or any member of petitioner's or
27 respondent's family or household; and
28 (ii) the danger that any minor child will be
29 abused or neglected or improperly removed from the
30 jurisdiction, improperly concealed within the State
31 or improperly separated from the child's primary
32 caretaker.
33 (2) In comparing relative hardships resulting to
34 the parties from loss of possession of the family home,
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1 the court shall consider relevant factors, including but
2 not limited to the following:
3 (i) availability, accessibility, cost, safety,
4 adequacy, location and other characteristics of
5 alternate housing for each party and any minor child
6 or dependent adult in the party's care;
7 (ii) the effect on the party's employment; and
8 (iii) the effect on the relationship of the
9 party, and any minor child or dependent adult in the
10 party's care, to family, school, church and
11 community.
12 (3) Subject to the exceptions set forth in
13 paragraph (4) of this subsection, the court shall make
14 its findings in an official record or in writing, and
15 shall at a minimum set forth the following:
16 (i) That the court has considered the
17 applicable relevant factors described in paragraphs
18 (1) and (2) of this subsection.
19 (ii) Whether the conduct or actions of
20 respondent, unless prohibited, will likely cause
21 irreparable harm or continued abuse.
22 (iii) Whether it is necessary to grant the
23 requested relief in order to protect petitioner or
24 other alleged abused persons.
25 (4) For purposes of issuing an ex parte emergency
26 order of protection, the court, as an alternative to or
27 as a supplement to making the findings described in
28 paragraphs (c)(3)(i) through (c)(3)(iii) of this
29 subsection, may use the following procedure:
30 When a verified petition for an emergency order of
31 protection in accordance with the requirements of
32 Sections 203 and 217 is presented to the court, the court
33 shall examine petitioner on oath or affirmation. An
34 emergency order of protection shall be issued by the
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1 court if it appears from the contents of the petition and
2 the examination of petitioner that the averments are
3 sufficient to indicate abuse by respondent and to support
4 the granting of relief under the issuance of the
5 emergency order of protection.
6 (5) Never married parties. No rights or
7 responsibilities for a minor child born outside of
8 marriage attach to a putative father until a father and
9 child relationship has been established under the
10 Illinois Parentage Act of 1984, the Illinois Public Aid
11 Code, Section 12 of the Vital Records Act, the Juvenile
12 Court Act of 1987, the Probate Act of 1985, the Revised
13 Uniform Reciprocal Enforcement of Support Act, the
14 Uniform Interstate Family Support Act, the Expedited
15 Child Support Act of 1990, any judicial, administrative,
16 or other act of another state or territory, any other
17 Illinois statute, or by any foreign nation establishing
18 the father and child relationship, any other proceeding
19 substantially in conformity with the Personal
20 Responsibility and Work Opportunity Reconciliation Act of
21 1996 (Pub. L. 104-193), or where both parties appeared in
22 open court or at an administrative hearing acknowledging
23 under oath or admitting by affirmation the existence of
24 a father and child relationship. Absent such an
25 adjudication, finding, or acknowledgement, no putative
26 father shall be granted temporary custody of the minor
27 child, visitation with the minor child, or physical care
28 and possession of the minor child, nor shall an order of
29 payment for support of the minor child be entered.
30 (d) Balance of hardships; findings. If the court finds
31 that the balance of hardships does not support the granting
32 of a remedy governed by paragraph (2), (3), (10), (11), or
33 (16) of subsection (b) of this Section, which may require
34 such balancing, the court's findings shall so indicate and
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1 shall include a finding as to whether granting the remedy
2 will result in hardship to respondent that would
3 substantially outweigh the hardship to petitioner from denial
4 of the remedy. The findings shall be an official record or in
5 writing.
6 (e) Denial of remedies. Denial of any remedy shall not
7 be based, in whole or in part, on evidence that:
8 (1) Respondent has cause for any use of force,
9 unless that cause satisfies the standards for justifiable
10 use of force provided by Article VII of the Criminal Code
11 of 1961;
12 (2) Respondent was voluntarily intoxicated;
13 (3) Petitioner acted in self-defense or defense of
14 another, provided that, if petitioner utilized force,
15 such force was justifiable under Article VII of the
16 Criminal Code of 1961;
17 (4) Petitioner did not act in self-defense or
18 defense of another;
19 (5) Petitioner left the residence or household to
20 avoid further abuse, neglect, or exploitation by
21 respondent;
22 (6) Petitioner did not leave the residence or
23 household to avoid further abuse, neglect, or
24 exploitation by respondent;
25 (7) Conduct by any family or household member
26 excused the abuse, neglect, or exploitation by
27 respondent, unless that same conduct would have excused
28 such abuse, neglect, or exploitation if the parties had
29 not been family or household members.
30 (Source: P.A. 89-367, eff. 1-1-96; 90-118, eff. 1-1-98.)
31 (750 ILCS 60/217) (from Ch. 40, par. 2312-17)
32 Sec. 217. Emergency order of protection.
33 (a) Prerequisites. An emergency order of protection
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1 shall issue if petitioner satisfies the requirements of this
2 subsection for one or more of the requested remedies. For
3 each remedy requested, petitioner shall establish that:
4 (1) The court has jurisdiction under Section 208;
5 (2) The requirements of Section 214 are satisfied;
6 and
7 (3) There is good cause to grant the remedy,
8 regardless of prior service of process or of notice upon
9 the respondent, because:
10 (i) For the remedies of "prohibition of
11 abuse" described in Section 214(b)(1), "stay away
12 order and additional prohibitions" described in
13 Section 214(b)(3), "removal or concealment of minor
14 child" described in Section 214(b)(8), "order to
15 appear" described in Section 214(b)(9), "physical
16 care and possession of the minor child" described in
17 Section 214(b)(5), "protection of property"
18 described in Section 214(b)(11), "prohibition of
19 entry" described in Section 214(b)(14), "prohibition
20 of access to records" described in Section
21 214(b)(15), and "injunctive relief" described in
22 Section 214(b)(16), the harm which that remedy is
23 intended to prevent would be likely to occur if the
24 respondent were given any prior notice, or greater
25 notice than was actually given, of the petitioner's
26 efforts to obtain judicial relief;
27 (ii) For the remedy of "grant of exclusive
28 possession of residence" described in Section
29 214(b)(2), the immediate danger of further abuse of
30 petitioner by respondent, if petitioner chooses or
31 had chosen to remain in the residence or household
32 while respondent was given any prior notice or
33 greater notice than was actually given of
34 petitioner's efforts to obtain judicial relief,
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1 outweighs the hardships to respondent of an
2 emergency order granting petitioner exclusive
3 possession of the residence or household. This
4 remedy shall not be denied because petitioner has or
5 could obtain temporary shelter elsewhere while prior
6 notice is given to respondent, unless the hardships
7 to respondent from exclusion from the home
8 substantially outweigh those to petitioner;
9 (iii) For the remedy of "possession of
10 personal property" described in Section 214(b)(10),
11 improper disposition of the personal property would
12 be likely to occur if respondent were given any
13 prior notice, or greater notice than was actually
14 given, of petitioner's efforts to obtain judicial
15 relief, or petitioner has an immediate and pressing
16 need for possession of that property.
17 An emergency order may not include the counseling, legal
18 custody, payment of support or monetary compensation
19 remedies. An emergency order of protection may not include
20 the surrendering of firearms by a respondent who is a peace
21 officer under Section 214(b)(14.5)(a) unless the respondent
22 is present in court or has been given actual notice of the
23 emergency hearing.
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
27 order may be an emergency order, governed by this Section.
28 Notwithstanding the requirements of this Section, if all
29 requirements of Section 218 have been met, the court may
30 issue a 30-day interim order.
31 (c) Emergency orders: court holidays and evenings.
32 (1) Prerequisites. When the court is unavailable
33 at the close of business, the petitioner may file a
34 petition for a 21-day emergency order before any
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1 available circuit judge or associate judge who may grant
2 relief under this Act. If the judge finds that there is
3 an immediate and present danger of abuse to petitioner
4 and that petitioner has satisfied the prerequisites set
5 forth in subsection (a) of Section 217, that judge may
6 issue an emergency order of protection.
7 (1.5) Issuance of order. The chief judge of the
8 circuit court may designate for each county in the
9 circuit at least one judge to be reasonably available to
10 issue orally, by telephone, by facsimile, or otherwise,
11 an emergency order of protection at all times, whether or
12 not the court is in session.
13 (2) Certification and transfer. Any order issued
14 under this Section and any documentation in support
15 thereof shall be certified on the next court day to the
16 appropriate court. The clerk of that court shall
17 immediately assign a case number, file the petition,
18 order and other documents with the court, and enter the
19 order of record and file it with the sheriff for service,
20 in accordance with Section 222. Filing the petition
21 shall commence proceedings for further relief under
22 Section 202. Failure to comply with the requirements of
23 this subsection shall not affect the validity of the
24 order.
25 (Source: P.A. 90-392, eff. 1-1-98.)