Public Act 90-0392 of the 90th General Assembly

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Public Act 90-0392

HB1589 Enrolled                                LRB9004567SMdv

    AN ACT in relation to  emergency  orders  of  protection,
amending named Acts.

    Be  it  enacted  by  the People of the State of Illinois,
represented in the General Assembly:

    Section 5.  The Code of Criminal  Procedure  of  1963  is
amended by changing Sections 112A-17, 112A-22, and 112A-28 as
follows:

    (725 ILCS 5/112A-17) (from Ch. 38, par. 112A-17)
    Sec. 112A-17.  Emergency order of protection.
    (a)  Prerequisites.   An  emergency  order  of protection
shall issue if petitioner satisfies the requirements of  this
subsection  for  one  or more of the requested remedies.  For
each remedy requested, petitioner shall establish that:
         (1)  The  court  has  jurisdiction   under   Section
    112A-9;
         (2)  The   requirements   of   Section  112A-14  are
    satisfied; and
         (3)  There  is  good  cause  to  grant  the  remedy,
    regardless of prior service of process or of notice  upon
    the respondent, because:
              (i)  For the remedies of "prohibition of abuse"
         described in Section 112A-14(b)(1), "stay away order
         and  additional  prohibitions"  described in Section
         112A-14(b)(3),  "removal  or  concealment  of  minor
         child" described in Section 112A-14(b)(8), "order to
         appear"   described   in   Section    112A-14(b)(9),
         "physical  care  and  possession of the minor child"
         described in Section 112A-14(b)(5),  "protection  of
         property"   described   in  Section  112A-14(b)(11),
         "prohibition  of   entry"   described   in   Section
         112A-14(b)(14),  "prohibition  of access to records"
         described in Section 112A-14(b)(15), and "injunctive
         relief" described  in  Section  112A-14(b)(16),  the
         harm  which that remedy is intended to prevent would
         be likely to occur if the respondent were given  any
         prior  notice,  or  greater notice than was actually
         given,  of  the  petitioner's  efforts   to   obtain
         judicial relief;
              (ii)  For  the  remedy  of  "grant of exclusive
         possession  of  residence"  described   in   Section
         112A-14(b)(2), the immediate danger of further abuse
         of  petitioner  by respondent, if petitioner chooses
         or  had  chosen  to  remain  in  the  residence   or
         household  while  respondent  was  given  any  prior
         notice  or greater notice than was actually given of
         petitioner's  efforts  to  obtain  judicial  relief,
         outweighs  the  hardships  to   respondent   of   an
         emergency   order   granting   petitioner  exclusive
         possession of the  residence  or  household.    This
         remedy shall not be denied because petitioner has or
         could obtain temporary shelter elsewhere while prior
         notice  is given to respondent, unless the hardships
         to  respondent  from   exclusion   from   the   home
         substantially outweigh those to petitioner.
              (iii)  For   the   remedy   of  "possession  of
         personal    property"    described    in     Section
         112A-14(b)(10), improper disposition of the personal
         property would be likely to occur if respondent were
         given  any  prior notice, or greater notice than was
         actually given, of petitioner's  efforts  to  obtain
         judicial  relief, or petitioner has an immediate and
         pressing need for possession of that property.
    An emergency order may not include the counseling,  legal
custody,   payment   of   support  or  monetary  compensation
remedies.
    (b)  Appearance by respondent. If respondent  appears  in
court  for this hearing for an emergency order, he or she may
elect  to  file  a  general  appearance  and  testify.    Any
resulting  order  may be an emergency order, governed by this
Section.  Notwithstanding the requirements of  this  Section,
if  all  requirements  of  Section 112A-18 have been met, the
Court may issue a 30-day interim order.
    (c)  Emergency orders: court holidays and evenings.
         (1)  Prerequisites.  When the court  is  unavailable
    at  the  close  of  business,  the  petitioner may file a
    petition  for  a  21-day  emergency  order   before   any
    available  circuit judge or associate judge who may grant
    relief under this Article.  If the judge finds that there
    is an immediate and present danger of abuse to petitioner
    and that petitioner has satisfied the  prerequisites  set
    forth  in  subsection  (a) of Section 112A-17, that judge
    may issue an emergency order of protection.
         (1.5)  Issuance of order.  The chief  judge  of  the
    circuit  court  may  designate  for  each  county  in the
    circuit at least one judge to be reasonably available  to
    issue  orally,  by telephone, by facsimile, or otherwise,
    an emergency order of protection at all times, whether or
    not the court is in session.
         (2)  Certification and transfer.  Any  order  issued
    under  this  Section  and  any   documentation in support
    thereof shall be certified on the next court day  to  the
    appropriate   court.   The  clerk  of  that  court  shall
    immediately assign a  case  number,  file  the  petition,
    order  and  other  documents with the court and enter the
    order of record and file it with the sheriff for service,
    in accordance with Section 112A-22.  Filing the  petition
    shall  commence  proceedings  for  further  relief, under
    Section 112A-2.  Failure to comply with the  requirements
    of  this  subsection shall not affect the validity of the
    order.
(Source: P.A. 87-1186.)

    (725 ILCS 5/112A-22) (from Ch. 38, par. 112A-22)
    Sec. 112A-22.  Notice of orders.
    (a)  Entry and issuance.  Upon issuance of any  order  of
protection, the clerk shall immediately, or on the next court
day  if  an  emergency  order  is  issued  in accordance with
subsection (c) of Section 112A-17, (i) enter the order on the
record and file it  in  accordance  with  the  circuit  court
procedures  and (ii) provide a file stamped copy of the order
to respondent, if present, and to petitioner.
    (b)  Filing with sheriff.  The clerk of the issuing judge
shall, or the petitioner may, on the same day that  an  order
of  protection  is issued, file a copy of that order with the
sheriff or  other  law  enforcement  officials  charged  with
maintaining  Department  of  State  Police records or charged
with serving the order upon  respondent.  If  the  order  was
issued  in accordance with subsection (c) of Section 112A-17,
the clerk shall on the next court day, file a certified  copy
of  the  order  with  the  Sheriff  or  other law enforcement
officials charged with maintaining Department of State Police
records.
    (c)  Service by sheriff.  Unless respondent  was  present
in  court  when  the order was issued, the sheriff, other law
enforcement official or special process server shall promptly
serve that order upon  respondent  and  file  proof  of  such
service,  in  the  manner  provided for service of process in
civil proceedings.  If process has not yet been  served  upon
the respondent, it shall be served with the order.
    (c-5)  If the person against whom the order of protection
is  issued  is  arrested  and  the written order is issued in
accordance  with  subsection  (c)  of  Section  112A-17   and
received  by  the custodial law enforcement agency before the
respondent  or  arrestee  is  released  from   custody,   the
custodial  law  enforcement  agent  shall  promptly serve the
order upon the respondent or arrestee before  the  respondent
or  arrestee  is  released  from  custody.  In no event shall
detention of the  respondent  or  arrestee  be  extended  for
hearing on the petition for order of protection or receipt of
the order issued under Section 112A-17 of this Code.
    (d)  Extensions,   modifications  and  revocations.   Any
order  extending,  modifying  or  revoking   any   order   of
protection  shall  be promptly recorded, issued and served as
provided in this Section.
(Source: P.A. 87-1186.)

    (725 ILCS 5/112A-28) (from Ch. 38, par. 112A-28)
    Sec.  112A-28.  Data  maintenance  by   law   enforcement
agencies.
    (a)  All  sheriffs  shall  furnish  to  the Department of
State Police, daily, in the form and  detail  the  Department
requires,  copies of any recorded orders of protection issued
by the court and transmitted to the sheriff by the  clerk  of
the  court  pursuant  to subsection (b) of Section 112A-22 of
this Act. Each order of protection shall be  entered  in  the
Law  Enforcement  Automated Data System on the same day it is
issued by the court. If an emergency order of protection  was
issued  in accordance with subsection (c) of Section 112A-17,
the order shall be entered in the Law  Enforcement  Automated
Data System as soon as possible after receipt from the clerk.
    (b)  The  Department  of  State  Police  shall maintain a
complete and systematic record and index  of  all  valid  and
recorded  orders  of  protection issued pursuant to this Act.
The data shall be used to  inform  all  dispatchers  and  law
enforcement  officers  at the scene of an alleged incident of
abuse or violation of an order of protection of any  recorded
prior  incident  of  abuse involving the abused party and the
effective  dates  and  terms  of  any   recorded   order   of
protection.
    (c)  The  data,  records  and transmittals required under
this Section shall pertain to any valid emergency, interim or
plenary order of protection, whether issued  in  a  civil  or
criminal proceeding.
(Source: P.A. 87-1186.)

    Section  10.   The Illinois Domestic Violence Act of 1986
is amended by changing Sections 217, 222, and 302 as follows:

    (750 ILCS 60/217) (from Ch. 40, par. 2312-17)
    Sec. 217.  Emergency order of protection.
    (a)  Prerequisites.  An  emergency  order  of  protection
shall  issue if petitioner satisfies the requirements of this
subsection for one or more of the  requested  remedies.   For
each remedy requested, petitioner shall establish that:
         (1)  The court has jurisdiction under Section 208;
         (2)  The  requirements of Section 214 are satisfied;
    and
         (3)  There  is  good  cause  to  grant  the  remedy,
    regardless of prior service of process or of notice  upon
    the respondent, because:
              (i)  For    the  remedies  of  "prohibition  of
         abuse"  described  in  Section 214(b)(1), "stay away
         order  and  additional  prohibitions"  described  in
         Section 214(b)(3), "removal or concealment of  minor
         child"  described  in  Section  214(b)(8), "order to
         appear" described in  Section  214(b)(9),  "physical
         care and possession of the minor child" described in
         Section    214(b)(5),   "protection   of   property"
         described in  Section  214(b)(11),  "prohibition  of
         entry" described in Section 214(b)(14), "prohibition
         of   access   to   records"   described  in  Section
         214(b)(15), and  "injunctive  relief"  described  in
         Section  214(b)(16),  the  harm which that remedy is
         intended to prevent would be likely to occur if  the
         respondent  were  given any prior notice, or greater
         notice than was actually given, of the  petitioner's
         efforts to obtain judicial relief;
              (ii)  For  the  remedy  of  "grant of exclusive
         possession  of  residence"  described   in   Section
         214(b)(2),  the immediate danger of further abuse of
         petitioner by respondent, if petitioner  chooses  or
         had  chosen  to remain in the residence or household
         while respondent  was  given  any  prior  notice  or
         greater   notice   than   was   actually   given  of
         petitioner's  efforts  to  obtain  judicial  relief,
         outweighs  the  hardships  to   respondent   of   an
         emergency   order   granting   petitioner  exclusive
         possession of the  residence  or  household.    This
         remedy shall not be denied because petitioner has or
         could obtain temporary shelter elsewhere while prior
         notice  is given to respondent, unless the hardships
         to  respondent  from   exclusion   from   the   home
         substantially outweigh those to petitioner;
              (iii)  For   the   remedy   of  "possession  of
         personal property" described in Section  214(b)(10),
         improper  disposition of the personal property would
         be likely to occur  if  respondent  were  given  any
         prior  notice,  or  greater notice than was actually
         given, of petitioner's efforts  to  obtain  judicial
         relief,  or petitioner has an immediate and pressing
         need for possession of that property.
    An emergency order may not include the counseling,  legal
custody,   payment   of   support  or  monetary  compensation
remedies.
    (b)  Appearance by respondent. If respondent  appears  in
court  for this hearing for an emergency order, he or she may
elect to file a general appearance and testify. Any resulting
order may be an emergency order, governed  by  this  Section.
Notwithstanding  the  requirements  of  this  Section, if all
requirements of Section 218 have  been  met,  the  court  may
issue a 30-day interim order.
    (c)  Emergency orders:  court holidays and evenings.
         (1)  Prerequisites.   When  the court is unavailable
    at the close of  business,  the  petitioner  may  file  a
    petition   for   a  21-day  emergency  order  before  any
    available circuit judge or associate judge who may  grant
    relief  under this Act.  If the judge finds that there is
    an immediate and present danger of  abuse  to  petitioner
    and  that  petitioner has satisfied the prerequisites set
    forth in subsection (a) of Section 217,  that  judge  may
    issue an emergency order of protection.
         (1.5)  Issuance  of  order.   The chief judge of the
    circuit court  may  designate  for  each  county  in  the
    circuit  at least one judge to be reasonably available to
    issue orally, by telephone, by facsimile,  or  otherwise,
    an emergency order of protection at all times, whether or
    not the court is in session.
         (2)  Certification  and  transfer.  Any order issued
    under this  Section  and  any  documentation  in  support
    thereof  shall  be certified on the next court day to the
    appropriate  court.   The  clerk  of  that  court   shall
    immediately  assign  a  case  number,  file the petition,
    order and other documents with the court, and  enter  the
    order of record and file it with the sheriff for service,
    in  accordance  with  Section  222.   Filing the petition
    shall  commence  proceedings  for  further  relief  under
    Section 202. Failure to comply with the  requirements  of
    this  subsection  shall  not  affect  the validity of the
    order.
(Source: P.A. 86-966; 87-1186.)

    (750 ILCS 60/222) (from Ch. 40, par. 2312-22)
    Sec. 222.  Notice of orders.
    (a)  Entry and issuance.  Upon issuance of any  order  of
protection, the clerk shall immediately, or on the next court
day  if  an  emergency  order  is  issued  in accordance with
subsection (c) of Section 217, (i) enter  the  order  on  the
record  and  file  it  in  accordance  with the circuit court
procedures and (ii) provide a file stamped copy of the  order
to respondent, if present, and to petitioner.
    (b)  Filing with sheriff.  The clerk of the issuing judge
shall,  or  the petitioner may, on the same day that an order
of protection is issued, file a certified copy of that  order
with  the  sheriff or other law enforcement officials charged
with  maintaining  Department  of  State  Police  records  or
charged with serving the order upon respondent. If the  order
was  issued in accordance with subsection (c) of Section 217,
the clerk shall on the next court day, file a certified  copy
of  the  order  with  the  Sheriff  or  other law enforcement
officials charged with maintaining Department of State Police
records.
    (c)  Service by sheriff.  Unless respondent  was  present
in  court  when  the order was issued, the sheriff, other law
enforcement official or special process server shall promptly
serve that order upon  respondent  and  file  proof  of  such
service,  in  the  manner  provided for service of process in
civil proceedings.  If process has not yet been  served  upon
the  respondent, it shall be served with the order.  A single
fee may be charged for service of an order obtained in  civil
court, or for service of such an order together with process,
unless waived or deferred under Section 210.
    (c-5)  If the person against whom the order of protection
is  issued  is  arrested  and  the written order is issued in
accordance with subsection (c) of Section 217 and received by
the custodial law enforcement agency before the respondent or
arrestee  is  released  from  custody,  the   custodial   law
enforcement  agent  shall  promptly  serve the order upon the
respondent or arrestee before the respondent or  arrestee  is
released  from  custody.   In no event shall detention of the
respondent  or  arrestee  be  extended  for  hearing  on  the
petition for order of protection  or  receipt  of  the  order
issued under Section 217 of this Act.
    (d)  Extensions,   modifications  and  revocations.   Any
order  extending,  modifying  or  revoking   any   order   of
protection  shall  be promptly recorded, issued and served as
provided in this Section.
    (e)  Notice to schools.  Upon request the  clerk  of  the
issuing  judge  shall  file  a  certified copy of an order of
protection  with  the  private  school  or  schools  or   the
principal  office  of the public school district or districts
in which any children of the petitioner are enrolled.
    (f)  Disclosure by schools.  After receiving a  certified
copy  of an order of protection that prohibits a respondent's
access to records, neither a public or private school nor its
employees shall allow a  respondent  access  to  a  protected
child's  records  or  release information in those records to
the respondent.  The school shall file the copy of the  order
of  protection  in  the records of a child who is a protected
person under the order of protection.
(Source: P.A. 88-306; 89-106, eff. 7-7-95.)

    (750 ILCS 60/302) (from Ch. 40, par. 2313-2)
    Sec. 302.  Data maintenance by law enforcement  agencies.
    (a)  All  sheriffs  shall  furnish  to  the Department of
State Police, on the same day as received, in  the  form  and
detail  the  Department  requires,  copies  of  any  recorded
emergency,  interim,  or plenary  orders of protection issued
by the court and transmitted to the sheriff by the  clerk  of
the  court  pursuant to subsection (b) of Section 222 of this
Act. Each order of protection shall be  entered  in  the  Law
Enforcement  Automated  Data  System  on  the  same day it is
issued by the court. If an emergency order of protection  was
issued  in accordance with subsection (c) of Section 217, the
order shall be entered in the Law Enforcement Automated  Data
System as soon as possible after receipt from the clerk.
    (b)  The  Department  of  State  Police  shall maintain a
complete and systematic record and index  of  all  valid  and
recorded  orders  of  protection issued pursuant to this Act.
The data shall be used to  inform  all  dispatchers  and  law
enforcement  officers  at the scene of an alleged incident of
abuse, neglect, or exploitation or violation of an  order  of
protection  of any recorded prior incident of abuse, neglect,
or exploitation involving the abused, neglected, or exploited
party and the effective dates and terms of any recorded order
of protection.
    (c)  The data, records and  transmittals  required  under
this Section shall pertain to any valid emergency, interim or
plenary  order  of  protection,  whether issued in a civil or
criminal proceeding.
(Source: P.A. 86-542; 87-1186.)

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