Domestic Violence

PrintPrint   EmailEmail   

Author: Attorney Desk Reference Manual
Last updated: December 2004

Statute
Protected Persons
Remedies
Procedures
Types of Orders
Enforcement
Practice Notes

Back to Family Law Table of Contents
Back to Attorney Desk Reference Manual Table of Contents

 

Statute

750 ILCS 60/201 et seq.

Venue

750 ILCS 60/209

Venue exists in the County where:

  • Petitioner resides, or
  • Respondent resides, or
  • Abuse occurred, or
  • Petitioner has fled if s/he could not find a safe and adequate place in the county of residence.

Generally, a request asking for exclusive possession of the residence must be filed in the county where the residence is located, unless:

  • In conjunction with a divorce or separation, the request may be made in a contiguous county or judicial district, or
  • If filed in the jurisdiction to which the petitioner has fled, possession will be granted only in the emergency order.  An extension of the emergency order must be granted in the county where the residence is located.

Back to Top

Protected Persons

750 ILCS 60/201

  • Related by blood or marriage
  • Household or have lived together
  • Any high risk adult with disabilities who is abused, neglected or exploited by a family or household member (60/201 (a) (ii)
  • Any minor child
  • Person with disabilities and their caretakers
  • Have, or allegedly have child in common

A "high risk adult with disabilities" is a person aged 18 or over whose physical or mental disability impairs his or her ability to seek or obtain protection from abuse, neglect or exploitation.  (60/103 (8)).

Criminal Order of Protection (OP)

Used where the victim also presses criminal charges. The Order is good until the disposition changes or charges are dropped.  The State’s Attorney will represent the client.

Civil OP

  • Can be filed independent of any other action.
  • Can be filed in another civil proceeding involving the parties.

3 levels:

  • Emergency--750 ILCS 60/217: When the court is unavailable and there is an immediate and present danger.  Valid for 21 days.  No notice to respondent is necessary.
  • Interim--750 ILCS 60 218: Valid for up to 30 days.  Service or a diligent attempt is required.  May not include monetary provisions unless respondent is served or filed a general appearance.
  • Plenary--750 ILCS 60/219: Respondent must be served or defaulted.  Good up to 2 years.

Back to Top

Remedies Available

750 ILCS 60/214

  • Prohibition of abuse, neglect, or exploitation
  • Grant of exclusive possession of residence
  • Stay away order
  • Prohibition of entry to other specified places
  • Counseling for respondent
  • Physical care and possession of child
  • Order to return child
  • Temporary legal custody and set or supervised visitation
  • Prohibition of removal or concealment of child
  • Order to Appear
  • Exclusive possession of personal property
  • Protection of Property 
  • Order for payment of support
  • Order for payment of losses, inter alia
  • Prohibition of entry to residence when under influence of drugs or alcohol if constitute a threat
  • Prohibition of firearm possession
  • Prohibition of access to records
  • Order for payment of shelter services
  • Order for injunctive relief
  • In the case of a "high risk adult with disabilities," only in addition to the above, neglect and exploitation.

"Neglect" means the failure to exercise a reasonable person's degree of care towards such a person and includes (60/103 (11) (A)):

  • Failure to take reasonable steps to protect against abuse
  • Repeated, careless imposition of unreasonable confinement
  • Failure to provide food, shelter, clothing, and personal hygiene
  • Failure to provide medical and rehabilitative care
  • Failure to protect from health and safety hazards.

"Exploitation" means illegal use or use of assets.  (60/103 (5)).  It includes the following:

  • Misappropriation of assets or resources by undue influence
  • Breach of fiduciary relationship
  • Fraud, deception, or extortion
  • Use of assets or resources in a manner contrary to law.

Back to Top

Procedures for Obtaining an Order of Protection

Commencing an Action

750 ILCS 60/202

Who can bring the action. (60/201 (b)):

  • A person who has been abused
  • Any person on behalf of a minor child
  • Any person on behalf of an adult who because of age, health, disability, or inaccessibility cannot file the petition
  • Any person on behalf of a high risk adult with disabilities:

°    Can file a petition for an order of protection in any civil court  (60/202 (a) (1))
°    Can file a petition for order of protection in conjunction with another civil proceeding such as a proceeding under the Illinois Marriage and Dissolution of Marriage Act  (60/202 (a) (2))
°    There is no filing fee for commencing an action  (60/202 (b))
°    Courts are required to provide at the office of the clerk, simplified forms and clerical assistance for pro se petitioners. Such assistance may be provided by the state’s attorney. (60/202 (d)).

The Petition

750 ILCS 60/203

  • The Petition must be verified or accompanied by an affidavit.
  • The Petition must state whether there is any other pending action between the parties.  Each party has a continuing obligation to inform the court of any subsequent proceeding for an order of protection in this or any state.
  • The Address of petitioner may be omitted from the petition if the petition states that disclosure would risk abuse of the petitioner or any member of the family or household.  An alternative address for service must be supplied.

Process

750 ILCS 60/210

  • Action for order of protection is a distinct cause of action and requires service of summons in accordance with Code of Civil Procedure with the following exceptions:

°     By delivery of summons personally in open court in a pending civil or criminal matter
°     By notice in conjunction with a pending civil case in which the court has obtained jurisdiction over the respondent and the respondent has filed a general appearance.

  • Summons shall be served by the sheriff at the earliest time possible and takes precedence over other summonses except other emergency ones.
  • One can get certain remedies enumerated in section 214 by serving on a member of respondent’s household or by publication (60/210 (e)).

°    Prohibition of abuse, neglect, or exploitation
°    Grant of exclusive possession of residence
°    Stay away of minor child
°    Temporary legal custody
°    Visitation
°    Prohibition of removal or concealment of child
°    Possession of personal property
°    Protection of property
°    Prohibition of entry
°    Prohibition of access to records
°    Order for injunctive relief

  • For other section 214 remedies you need actual personal service.

Back to Top

Types of Orders

750 ILCS 60/217, 218, 219

Mutual orders of protection are prohibited unless both parties have properly filed written pleadings, proved past abuse by the other party and provided notice (60/215).

Emergency Order of Protection (60/217)

  • Order can be obtained ex parte
  • Must establish the court’s jurisdiction
  • Must establish that the petitioner has been abused by a family member or that the petitioner is a high risk adult who has been abused, neglected, or exploited
  • Must establish other prerequisites for remedies set forth in section 214
  • Must establish there is good cause to grant remedy regardless of prior service or notice
  • Order effective for not less than 14 nor more than 21 days.

Interim Order of Protection (60/218)

  • Must establish the court’s jurisdiction
  • Must establish that a general appearance has been made by respondent or petitioner who can show that process was served or that petitioner is diligently attempting to complete service
  • Must establish that petitioner has been abused by a family member or that petitioner is a high risk adult who has been abused, neglected, or exploited
  • Must establish other prerequisites for remedies set forth in section 214
  • Can’t get remedies of counseling, payment of support or monetary compensation without personal service or filing of general appearance by respondent.

Plenary Order of Protection (60/219)

  • Must establish the court’s jurisdiction
  • Must establish that a general appearance has been made by the respondent or the petitioner can show that process was served
  • Must establish that the respondent has answered or is in default
  • Must establish that the petitioner has been abused by a family member or that the petitioner is a high risk adult who has been abused, neglected, or exploited
  • Must establish other prerequisites for remedies set forth in section 214.
Duration of Plenary OP
  • A Plenary order is valid for up to two years except if entered in conjunction with another civil proceeding.
  • If entered as preliminary relief in another civil proceeding, the order of protection remains in effect until the entry of final judgment in the other proceeding.  (60/220 (b) (1) (I)).
  • If incorporated into the final judgement in another civil proceeding, the order remains in effect until vacated or modified. (60/220 (b) (1) (ii)).
  • There are also durational rules for plenary orders issued in criminal cases set forth at section 220 (b) (2).

Back to Top

Enforcement

720 ILCS 60/223

  • Client should have a copy of the order on her/his person at all times.  It is helpful to have copies at school, work, and other protected areas.
  • Call the Police when a violation occurs.
  • Violation of an OP is a crime.  720 ILCS 5/12 et seq.
  • If the police do not make arrest or if abuser flees, the client should file a complaint with police.
  • Violation of an order of protection can also be enforced through contempt of court.
     
  • The state’s attorney can prosecute a violation of an order of protection in criminal court:

°    if the respondent knowingly violates remedies in an order of protection either prohibiting abuse, granting exclusive possession of the residence, directing the respondent to stay away or prohibiting entry to the residence or household,
°    the respondent knowingly violates any other remedy in an order of protection and the act of violation itself violates the Criminal Code (720 ILCS 5/1-1), or
°    the respondent commits the crime of child abduction (720 ILCS 5/10-5) by violating remedies in an order of protection granting petitioner physical care of a child, awarding petitioner temporary legal custody, or prohibiting the removal or concealment of a child.  The victim would need to contact the office of the state’s attorney to request prosecution of these violations.

  • Violation of an order of protection can be enforced in civil court for any violation through contempt procedures.  (60/223 (b)).  A petition for rule to show cause for violation of an order of protection is to be expedited.

Back to Top

Practice Notes

  • Where the client calls and wants an order of protection but does not qualify as a protected person, she/he should contact the police and the state’s attorney to file criminal charges for abuse.
  • Make sure the client has a shelter referral in case abuse escalates.  The shelter may also provide counseling and help the client to become self-sufficient, both emotionally and economically.
  • Give a call-back number and encourage the client to use it.
  • If the client is indigent and from out-of-state, the Department of Healthcare and Family Services (HFS) has a program to return her/him to the home state.

 

Back to Top
Back to Family Law Table of Contents
Back to Attorney Desk Reference Manual Table of Contents

Printed from: www.illinoislegaladvocate.org/index.cfm?fuseaction=home.dsp_content&contentID=308

Feedback

We welcome your comments and suggestions