Domestic Violence

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Author: Recent Revisions by Danielle Parisi Ruffatto, Domestic Violence Legal Clinic
Last updated: May 2015

Statute
Protected Persons
Venue
Remedies
Procedures
Types of Orders
Enforcement
Practice Notes

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Statute

750 ILCS 60/201 et seq.

Overview

The Illinois Domestic Act of 1986 (IDVA)(an Order of Protection. An Order of Protection is intended to protect victims of domestic violence by preventing further abuse. (750 ILCS 60/102) Orders of Protection contain a variety of different remedies to achieve this goal (60/214).

Family or Household Members

An Order of Protection “shall issue” if the court finds that a person has been abused, or a high-risk adult with disabilities has been abused, neglected, or exploited, by a “family or household member”(60/214). The following people are defined as family or household members (60/103):

  • Parents, children, and other persons related by blood
  • Spouses, stepchildren, and other persons related by current or prior marriage
  • Persons who are or have lived together
  • Persons who have or allegedly have child in common
  • Persons who have or allegedly have a blood relationship through a child
  • Persons with disabilities and their caretakers
  • Persons who have engaged in a dating or engagement relationship 

Protected Persons

750 ILCS 60/201

A Petition for Order of Protection can be filed by:

  • Anyone abused by a family or household member
  • Anyone on behalf of a minor or adult who has been abused by a family or household member and is unable to file due to age, health, disability, or inaccessibility
  • Any high risk adult with disabilities who is abused, neglected or exploited by a family or household member

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)).

An Order of Protection can protect:

  • Victims of abuse
  • Minors or dependent adults in their care
  • Anyone who lives at or is employed at their place of residence

Forms of Abuse

To obtain an Order of Protection, the Petitioner needs to allege one of the following forms of abuse: physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation. (60/103) High risk adults with disabilities are also eligible if they have experienced neglect or exploitation (60/214).

"Physical abuse" means:

  • Using physical force, confinement or restraint;
  • Sexual abuse
  • Sleep deprivation
  • Creating an immediate risk of physical harm

"Harassment" means knowing, unnecessary, and unreasonable conduct that would and does cause emotional distress. Certain activities are presumed to cause emotional distress:

  • Making a disturbance at work or school
  • Calling repeatedly
  • Stalking, such as following Petitioner or putting him/her under surveillance
  • Snatching a child, repeatedly threatening to do so, or threatening after snatching or attempting to snatch a child
  • Threatening physical violence, confinement or restraint

"Interference with personal liberty" means forcing a person to do something or preventing them from doing something they otherwise would, through actual or threatened physical abuse, harassment, intimidation or willful deprivation.
"Intimidation of a dependent" means involving or engaging in physical abuse of another in front of a dependent.

“Willful deprivation” means willfully denying someone the care they need due to their disability, age or health, and therefore exposing them to potential harm. Examples of such assistance includes food, shelter, medical care, and physical help.

"Neglect" means the failure to exercise a reasonable person's degree of care towards a high risk adult with disabilities 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

Venue

750 ILCS 60/209
Venue exists in the County where:

  • Petitioner resides, or
  • Respondent resides, or
  • Abuse occurred, or
  • Petitioner is temporarily after fleeing abuse, when he/she could not find 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.

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 on the part of the petitioner.  The judge will give the notice to the Sheriff.  The Sheriff will deliver that notice to the respondent.
  • 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.

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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
  • Order, deny, or restrict 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
  • 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

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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

There is no filing fee for commencing an action (60/202(b))

There is no fee for service by the sheriff (60/202 (b)). Courts are required to provide at the office of the clerk, simplified forms and clerical assistance for pro se petitioners.

The standard of proof is preponderance of the evidence, regardless of if the case is heard in civil or criminal court. The Code of Civil Procedure and other civil court rules apply.

Mutual orders of protection are prohibited. Correlative separate orders require that both parties have properly filed written pleadings, proved past abuse by the other party and provided notice.

An Order shall not be denied because the Petitioner or Respondent is a minor.

 

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 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 most 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
  • Personal service is required for these section 214 remedies:
    • Counseling
    • Payment of support
    • Payment of shelter services
    • Payment of losses

Some special requirements attach to remedy 14.5, Prohibition of Firearm Possession (60/214(14.5). An Order of Protection must:

  • Have been granted at a hearing of which the Respondent had “actual notice” and an opportunity to participate;
  • Restrain certain behavior (harassing, stalking, threatening, or otherwise placing in “reasonable fear of bodily injury”) against an “intimate partner” or that person’s child
  • Include a finding that the Respondent is a credible threat to the physical safety of, or prohibits physical force that would reasonably be expected to cause bodily injury to, the “intimate partner” or that person’s child.
     

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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 that the petitioner has been abused by a family or household 
  • 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)

  • Notice of the hearing must be served upon the respondent 
  • 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 or household member 
  • Must establish other prerequisites for remedies set forth in section 214
  • In effect for thirty days
  • 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 that a general appearance has been made by the respondent or the petitioner can show that process was served
  • Must establish that the petitioner has been abused by a family or household member
  • Must establish other prerequisites for remedies set forth in section 214.
Duration of Plenary OP
  • An independent Plenary can be issued for up to two years.
  • 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).
  • An Order of Protection can be extended until vacated or modified (60/220(e)).

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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 addresses.
  • Call the police and inform them of the Order of Protection.
  • 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 police report.
     
  • 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.

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Practice Notes

  • Where the client calls and wants an order of protection but does not qualify as a protected person, she/he may qualify for another type of order. The client may also contact the police and the state’s attorney to file criminal charges for abuse.
  • Make sure the client has the 24 hour Domestic Violence Help Line: 1-877-863-6388 in case abuse escalates.  The Help Line can refer the client to a shelter, counseling, or other services to help the clientbecome 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. 

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