Sen. Cheryl Axley
Filed: 3/21/2006
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1 | AMENDMENT TO HOUSE BILL 5216
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2 | AMENDMENT NO. ______. Amend House Bill 5216 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Firearm Owners Identification Card Act is | ||||||
5 | amended by changing Section 8 and by adding Section 8.2 as | ||||||
6 | follows:
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7 | (430 ILCS 65/8) (from Ch. 38, par. 83-8)
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8 | Sec. 8. The Department of State Police has authority to | ||||||
9 | deny an
application for or to revoke and seize a Firearm | ||||||
10 | Owner's Identification
Card previously issued under this Act | ||||||
11 | only if the Department finds that the
applicant or the person | ||||||
12 | to whom such card was issued is or was at the time
of issuance:
| ||||||
13 | (a) A person under 21 years of age who has been convicted | ||||||
14 | of a
misdemeanor other than a traffic offense or adjudged | ||||||
15 | delinquent;
| ||||||
16 | (b) A person under 21 years of age who does not have the | ||||||
17 | written consent
of his parent or guardian to acquire and | ||||||
18 | possess firearms and firearm
ammunition, or whose parent or | ||||||
19 | guardian has revoked such written consent,
or where such parent | ||||||
20 | or guardian does not qualify to have a Firearm Owner's
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21 | Identification Card;
| ||||||
22 | (c) A person convicted of a felony under the laws of this | ||||||
23 | or any other
jurisdiction;
| ||||||
24 | (d) A person addicted to narcotics;
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1 | (e) A person who has been a patient of a mental institution | ||||||
2 | within the
past 5 years;
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3 | (f) A person whose mental condition is of such a nature | ||||||
4 | that it poses
a clear and present danger to the applicant, any | ||||||
5 | other person or persons or
the community;
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6 | For the purposes of this Section, "mental condition" means | ||||||
7 | a state of
mind manifested by violent, suicidal, threatening or | ||||||
8 | assaultive behavior.
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9 | (g) A person who is mentally retarded;
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10 | (h) A person who intentionally makes a false statement in | ||||||
11 | the Firearm
Owner's Identification Card application;
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12 | (i) An alien who is unlawfully present in
the United States | ||||||
13 | under the laws of the United States;
| ||||||
14 | (i-5) An alien who has been admitted to the United States | ||||||
15 | under a
non-immigrant visa (as that term is defined in Section | ||||||
16 | 101(a)(26) of the
Immigration and Nationality Act (8 U.S.C. | ||||||
17 | 1101(a)(26))), except that this
subsection (i-5) does not apply | ||||||
18 | to any alien who has been lawfully admitted to
the United | ||||||
19 | States under a non-immigrant visa if that alien is:
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20 | (1) admitted to the United States for lawful hunting or | ||||||
21 | sporting purposes;
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22 | (2) an official representative of a foreign government | ||||||
23 | who is:
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24 | (A) accredited to the United States Government or | ||||||
25 | the Government's
mission to an international | ||||||
26 | organization having its headquarters in the United
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27 | States; or
| ||||||
28 | (B) en route to or from another country to which | ||||||
29 | that alien is
accredited;
| ||||||
30 | (3) an official of a foreign government or | ||||||
31 | distinguished foreign visitor
who has been so designated by | ||||||
32 | the Department of State;
| ||||||
33 | (4) a foreign law enforcement officer of a friendly | ||||||
34 | foreign government
entering the United States on official |
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1 | business; or
| ||||||
2 | (5) one who has received a waiver from the Attorney | ||||||
3 | General of the United
States pursuant to 18 U.S.C. | ||||||
4 | 922(y)(3);
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5 | (j) (Blank)
A person who is subject to an existing order of | ||||||
6 | protection prohibiting
him or her from possessing a firearm ;
| ||||||
7 | (k) A person who has been convicted within the past 5 years | ||||||
8 | of battery,
assault, aggravated assault, violation of an order | ||||||
9 | of protection, or a
substantially similar offense in another | ||||||
10 | jurisdiction, in which a firearm was
used or possessed;
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11 | (l) A person who has been convicted of domestic battery or | ||||||
12 | a substantially
similar offense in another jurisdiction | ||||||
13 | committed on or after January 1,
1998;
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14 | (m) A person who has been convicted within the past 5 years | ||||||
15 | of domestic
battery or a substantially similar offense in | ||||||
16 | another jurisdiction committed
before January 1, 1998;
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17 | (n) A person who is prohibited from acquiring or possessing
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18 | firearms or firearm ammunition by any Illinois State statute or | ||||||
19 | by federal
law;
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20 | (o) A minor subject to a petition filed under Section 5-520 | ||||||
21 | of the
Juvenile Court Act of 1987 alleging that the minor is a | ||||||
22 | delinquent minor for
the commission of an offense that if | ||||||
23 | committed by an adult would be a felony;
or
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24 | (p) An adult who had been adjudicated a delinquent minor | ||||||
25 | under the Juvenile
Court Act of 1987 for the commission of an | ||||||
26 | offense that if committed by an
adult would be a felony.
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27 | (Source: P.A. 92-854, eff. 12-5-02; 93-367, eff. 1-1-04 .)
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28 | (430 ILCS 65/8.2 new) | ||||||
29 | Sec. 8.2. Firearm Owner's Identification Card denial or | ||||||
30 | revocation. The Department of State Police shall deny an | ||||||
31 | application or shall revoke and seize a Firearm Owner's | ||||||
32 | Identification Card previously issued under this Act if the | ||||||
33 | Department finds that the applicant or person to whom such card |
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1 | was issued is or was at the time of issuance subject to an | ||||||
2 | existing order of protection.
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3 | Section 10. The Code of Criminal Procedure of 1963 is | ||||||
4 | amended by changing Section 112A-14 as follows:
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5 | (725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
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6 | Sec. 112A-14. Order of protection; remedies.
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7 | (a) Issuance of order. If the court finds that petitioner | ||||||
8 | has been
abused by a family or household member, as defined in | ||||||
9 | this Article, an
order of protection prohibiting such abuse | ||||||
10 | shall issue; provided that
petitioner must also satisfy the | ||||||
11 | requirements of one of the following
Sections, as appropriate: | ||||||
12 | Section 112A-17 on emergency orders, Section
112A-18 on interim | ||||||
13 | orders, or Section 112A-19 on
plenary orders.
Petitioner shall | ||||||
14 | not be denied an order of protection because petitioner or
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15 | respondent is a minor. The court, when determining whether or | ||||||
16 | not to issue
an order of protection, shall not require physical | ||||||
17 | manifestations of abuse
on the person of the victim. | ||||||
18 | Modification and extension of prior orders of
protection shall | ||||||
19 | be in accordance with this Article.
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20 | (b) Remedies and standards. The remedies to be included in | ||||||
21 | an order of
protection shall be determined in accordance with | ||||||
22 | this Section and one of
the following Sections, as appropriate: | ||||||
23 | Section 112A-17 on
emergency orders,
Section 112A-18 on interim | ||||||
24 | orders, and Section 112A-19 on
plenary orders.
The remedies | ||||||
25 | listed in this subsection shall be in addition to other civil
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26 | or criminal remedies available to petitioner.
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27 | (1) Prohibition of abuse. Prohibit respondent's | ||||||
28 | harassment,
interference with personal liberty, | ||||||
29 | intimidation of a dependent, physical
abuse or willful | ||||||
30 | deprivation, as defined in this Article, if such abuse has
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31 | occurred or otherwise appears likely to occur if not | ||||||
32 | prohibited.
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1 | (2) Grant of exclusive possession of residence. | ||||||
2 | Prohibit respondent
from entering or remaining in any | ||||||
3 | residence or household of the petitioner,
including one | ||||||
4 | owned or leased by respondent, if petitioner has a right
to | ||||||
5 | occupancy thereof. The grant of exclusive possession of the | ||||||
6 | residence
shall not affect title to real property, nor | ||||||
7 | shall the court be limited by
the standard set forth in | ||||||
8 | Section 701 of the Illinois Marriage and
Dissolution of | ||||||
9 | Marriage Act.
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10 | (A) Right to occupancy. A party has a right to | ||||||
11 | occupancy of a
residence or household if it is
solely | ||||||
12 | or jointly owned or leased by that party, that party's | ||||||
13 | spouse, a
person with a legal duty to support that | ||||||
14 | party or a minor child in that
party's care, or by any | ||||||
15 | person or entity other than the opposing party that
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16 | authorizes that party's occupancy (e.g., a domestic | ||||||
17 | violence shelter).
Standards set forth in subparagraph | ||||||
18 | (B) shall not preclude equitable relief.
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19 | (B) Presumption of hardships. If petitioner and | ||||||
20 | respondent
each has the right to occupancy of a | ||||||
21 | residence or household, the court
shall balance (i) the | ||||||
22 | hardships to respondent and any minor child or
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23 | dependent adult in respondent's care resulting from | ||||||
24 | entry of this remedy with (ii)
the hardships to | ||||||
25 | petitioner and any minor child or dependent adult in
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26 | petitioner's care resulting from continued exposure to | ||||||
27 | the risk of abuse (should
petitioner remain at the | ||||||
28 | residence or household) or from loss of possession
of | ||||||
29 | the residence or household (should petitioner leave to | ||||||
30 | avoid the risk
of abuse). When determining the balance | ||||||
31 | of hardships, the court shall also
take into account | ||||||
32 | the accessibility of the residence or household.
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33 | Hardships need not be balanced if respondent does not | ||||||
34 | have a right to occupancy.
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1 | The balance of hardships is presumed to favor | ||||||
2 | possession by
petitioner unless the presumption is | ||||||
3 | rebutted by a preponderance of the
evidence, showing | ||||||
4 | that the hardships to respondent substantially | ||||||
5 | outweigh
the hardships to petitioner and any minor | ||||||
6 | child or dependent adult in petitioner's
care. The | ||||||
7 | court, on the request of petitioner or on its own | ||||||
8 | motion,
may order respondent to provide suitable, | ||||||
9 | accessible, alternate housing
for petitioner instead | ||||||
10 | of
excluding respondent from a mutual residence or | ||||||
11 | household.
| ||||||
12 | (3) Stay away order and additional prohibitions.
Order | ||||||
13 | respondent to stay away from petitioner or any other person
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14 | protected by the order of protection, or prohibit | ||||||
15 | respondent from entering
or remaining present at | ||||||
16 | petitioner's school, place of employment, or other
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17 | specified places at times when petitioner is present, or | ||||||
18 | both, if
reasonable, given
the balance of hardships. | ||||||
19 | Hardships need not be balanced for the court
to enter a | ||||||
20 | stay away order or prohibit entry
if respondent has no | ||||||
21 | right to enter the premises.
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22 | If an order of protection grants petitioner exclusive | ||||||
23 | possession
of the residence, or prohibits respondent from | ||||||
24 | entering the residence,
or orders respondent to stay away | ||||||
25 | from petitioner or other
protected persons, then the court | ||||||
26 | may allow respondent access to the
residence to remove | ||||||
27 | items of clothing and personal adornment
used exclusively | ||||||
28 | by respondent, medications, and other items as the court | ||||||
29 | directs.
The right to access shall be exercised on only one | ||||||
30 | occasion as the court directs
and in the presence of an | ||||||
31 | agreed-upon adult third party or law enforcement officer.
| ||||||
32 | (4) Counseling. Require or recommend the respondent to | ||||||
33 | undergo
counseling for a specified duration with a social | ||||||
34 | worker, psychologist,
clinical psychologist, psychiatrist, |
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1 | family service agency, alcohol or
substance abuse program, | ||||||
2 | mental health center guidance counselor, agency
providing | ||||||
3 | services to elders, program designed for domestic violence
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4 | abusers or any other guidance service the court deems | ||||||
5 | appropriate.
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6 | (5) Physical care and possession of the minor child. In | ||||||
7 | order to protect
the minor child from abuse, neglect, or | ||||||
8 | unwarranted separation from the person
who has been the | ||||||
9 | minor child's primary caretaker, or to otherwise protect | ||||||
10 | the
well-being of the minor child, the court may do either | ||||||
11 | or both of the following:
(i) grant petitioner physical | ||||||
12 | care or possession of the minor child, or both, or
(ii) | ||||||
13 | order respondent to return a minor child to, or not remove | ||||||
14 | a minor child
from, the physical care of a parent or person | ||||||
15 | in loco parentis.
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16 | If a court finds, after a hearing, that respondent has | ||||||
17 | committed abuse
(as defined in Section 112A-3) of a minor | ||||||
18 | child, there shall be a
rebuttable presumption that | ||||||
19 | awarding physical care to respondent would not
be in the | ||||||
20 | minor child's best interest.
| ||||||
21 | (6) Temporary legal custody.
Award temporary legal | ||||||
22 | custody to petitioner in accordance with this Section,
the | ||||||
23 | Illinois Marriage
and Dissolution of Marriage Act, the | ||||||
24 | Illinois Parentage Act of 1984,
and this State's Uniform | ||||||
25 | Child-Custody
Jurisdiction and Enforcement Act.
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26 | If a court finds, after a hearing, that respondent
has | ||||||
27 | committed abuse (as defined in Section 112A-3) of a
minor | ||||||
28 | child, there shall be a rebuttable presumption that | ||||||
29 | awarding
temporary legal custody to respondent would not be | ||||||
30 | in the
child's best interest.
| ||||||
31 | (7) Visitation. Determine the
visitation rights, if | ||||||
32 | any, of respondent in any case in which the court
awards | ||||||
33 | physical care or temporary legal custody of a minor child | ||||||
34 | to
petitioner. The court shall restrict or deny |
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1 | respondent's visitation with
a minor child if
the court | ||||||
2 | finds that respondent has done or is likely to do any of | ||||||
3 | the
following: (i) abuse or endanger the minor child during | ||||||
4 | visitation; (ii) use the
visitation as an opportunity to | ||||||
5 | abuse or harass petitioner or
petitioner's family or | ||||||
6 | household members; (iii) improperly conceal or
detain the | ||||||
7 | minor child; or (iv) otherwise act in a manner that is not | ||||||
8 | in
the best interests of the minor child. The court shall | ||||||
9 | not be limited by the
standards set forth in Section 607.1 | ||||||
10 | of the Illinois Marriage and
Dissolution of Marriage Act. | ||||||
11 | If the court grants visitation, the order
shall specify | ||||||
12 | dates and times for the visitation to take place or other
| ||||||
13 | specific parameters or conditions that are appropriate. No | ||||||
14 | order for
visitation shall refer merely to the term | ||||||
15 | "reasonable visitation".
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16 | Petitioner may deny respondent access to the minor | ||||||
17 | child if, when
respondent arrives for visitation, | ||||||
18 | respondent is under the influence of drugs
or alcohol and | ||||||
19 | constitutes a threat to the safety and well-being of
| ||||||
20 | petitioner or petitioner's minor children or is behaving in | ||||||
21 | a violent or abusive manner.
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22 | If necessary to protect any member of petitioner's | ||||||
23 | family or
household from future abuse, respondent shall be | ||||||
24 | prohibited from coming to
petitioner's residence to meet | ||||||
25 | the minor child for visitation, and the
parties shall | ||||||
26 | submit to the court their recommendations for reasonable
| ||||||
27 | alternative arrangements for visitation. A person may be | ||||||
28 | approved to
supervise visitation only after filing an | ||||||
29 | affidavit accepting
that responsibility and acknowledging | ||||||
30 | accountability to the court.
| ||||||
31 | (8) Removal or concealment of minor child.
Prohibit | ||||||
32 | respondent from
removing a minor child from the State or | ||||||
33 | concealing the child within the
State.
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34 | (9) Order to appear. Order the respondent to
appear in |
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1 | court, alone
or with a minor child, to prevent abuse, | ||||||
2 | neglect, removal or concealment of
the child, to return the | ||||||
3 | child to the custody or care of the petitioner or
to permit | ||||||
4 | any court-ordered interview or examination of the child or | ||||||
5 | the
respondent.
| ||||||
6 | (10) Possession of personal property. Grant petitioner | ||||||
7 | exclusive
possession of personal property and, if | ||||||
8 | respondent has possession or
control, direct respondent to | ||||||
9 | promptly make it available to petitioner, if:
| ||||||
10 | (i) petitioner, but not respondent, owns the | ||||||
11 | property; or
| ||||||
12 | (ii) the parties own the property jointly; sharing | ||||||
13 | it would risk
abuse of petitioner by respondent or is | ||||||
14 | impracticable; and the balance of
hardships favors | ||||||
15 | temporary possession by petitioner.
| ||||||
16 | If petitioner's sole claim to ownership of the property | ||||||
17 | is that it is
marital property, the court may award | ||||||
18 | petitioner temporary possession
thereof under the | ||||||
19 | standards of subparagraph (ii) of this paragraph only if
a | ||||||
20 | proper proceeding has been filed under the Illinois | ||||||
21 | Marriage and
Dissolution of Marriage Act, as now or | ||||||
22 | hereafter amended.
| ||||||
23 | No order under this provision shall affect title to | ||||||
24 | property.
| ||||||
25 | (11) Protection of property. Forbid the respondent | ||||||
26 | from taking,
transferring, encumbering, concealing, | ||||||
27 | damaging or otherwise disposing of
any real or personal | ||||||
28 | property, except as explicitly authorized by the
court, if:
| ||||||
29 | (i) petitioner, but not respondent, owns the | ||||||
30 | property; or
| ||||||
31 | (ii) the parties own the property jointly,
and the | ||||||
32 | balance of hardships favors granting this remedy.
| ||||||
33 | If petitioner's sole claim to ownership of the property | ||||||
34 | is that it is
marital property, the court may grant |
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| |||||||
1 | petitioner relief under subparagraph
(ii) of this | ||||||
2 | paragraph only if a proper proceeding has been filed under | ||||||
3 | the
Illinois Marriage and Dissolution of Marriage Act, as | ||||||
4 | now or hereafter amended.
| ||||||
5 | The court may further prohibit respondent from | ||||||
6 | improperly using the
financial or other resources of an | ||||||
7 | aged member of the family or household
for the profit or | ||||||
8 | advantage of respondent or of any other person.
| ||||||
9 | (12) Order for payment of support. Order
respondent to | ||||||
10 | pay temporary
support for the petitioner or any child in | ||||||
11 | the petitioner's care or
custody, when the respondent has a | ||||||
12 | legal obligation to support that person,
in accordance with | ||||||
13 | the Illinois Marriage and Dissolution
of Marriage Act, | ||||||
14 | which shall govern, among other matters, the amount of
| ||||||
15 | support, payment through the clerk and withholding of | ||||||
16 | income to secure
payment. An order for child support may be | ||||||
17 | granted to a petitioner with
lawful physical care or | ||||||
18 | custody of a child, or an order or agreement for
physical | ||||||
19 | care or custody, prior to entry of an order for legal | ||||||
20 | custody.
Such a support order shall expire upon entry of a | ||||||
21 | valid order granting
legal custody to another, unless | ||||||
22 | otherwise provided in the custody order.
| ||||||
23 | (13) Order for payment of losses. Order
respondent to | ||||||
24 | pay petitioner
for losses suffered as a direct result of | ||||||
25 | the abuse. Such losses shall
include, but not be limited | ||||||
26 | to, medical expenses, lost earnings or other
support, | ||||||
27 | repair or replacement of property damaged or taken, | ||||||
28 | reasonable
attorney's fees, court costs and moving or other | ||||||
29 | travel expenses, including
additional reasonable expenses | ||||||
30 | for temporary shelter and restaurant meals.
| ||||||
31 | (i) Losses affecting family needs. If a party is | ||||||
32 | entitled to seek
maintenance, child support or | ||||||
33 | property distribution from the other party
under the | ||||||
34 | Illinois Marriage and Dissolution of Marriage Act, as |
| |||||||
| |||||||
1 | now or
hereafter amended, the court may order | ||||||
2 | respondent to reimburse petitioner's
actual losses, to | ||||||
3 | the extent that such reimbursement would be | ||||||
4 | "appropriate
temporary relief", as authorized by | ||||||
5 | subsection (a)(3) of
Section 501 of that Act.
| ||||||
6 | (ii) Recovery of expenses. In the case of an | ||||||
7 | improper concealment
or removal of a minor child, the | ||||||
8 | court may order respondent to pay the reasonable
| ||||||
9 | expenses incurred or to be incurred in the search for | ||||||
10 | and recovery of the
minor child, including but not | ||||||
11 | limited to legal fees, court costs, private
| ||||||
12 | investigator fees, and travel costs.
| ||||||
13 | (14) Prohibition of entry. Prohibit the respondent | ||||||
14 | from entering or
remaining in the residence or household | ||||||
15 | while the respondent is under the
influence of alcohol or | ||||||
16 | drugs and constitutes a threat to the safety and
well-being | ||||||
17 | of the petitioner or the petitioner's children.
| ||||||
18 | (14.5) Prohibition of firearm possession. (a) When a | ||||||
19 | complaint is made
under a request for an order of | ||||||
20 | protection, that the respondent has threatened
or is likely | ||||||
21 | to use firearms illegally against the petitioner, and the
| ||||||
22 | respondent is present in court, or has failed to appear | ||||||
23 | after receiving actual
notice, the court shall examine on | ||||||
24 | oath the petitioner, and any witnesses who
may be produced. | ||||||
25 | If the court is satisfied that there is any danger of the
| ||||||
26 | illegal use of firearms, it shall include in the order of | ||||||
27 | protection the
requirement that any firearms and any | ||||||
28 | Firearm Owner's Identification Card in the
possession of | ||||||
29 | the respondent, except as provided in subsection (b), be | ||||||
30 | turned
over to the local law enforcement agency
for | ||||||
31 | safekeeping. If the respondent fails to appear, or refuses | ||||||
32 | or fails to
surrender his or her firearms or Firearm | ||||||
33 | Owner's Identification Card , the court shall
issue a | ||||||
34 | warrant for seizure of any firearm and any Firearm Owner's |
| |||||||
| |||||||
1 | Identification Card in the possession of the respondent.
| ||||||
2 | The period of safekeeping shall be for a stated period of | ||||||
3 | time not to exceed 2
years. The firearm or firearms and any | ||||||
4 | Firearm Owner's Identification Card shall be returned to | ||||||
5 | the respondent at the end
of the stated period or at | ||||||
6 | expiration of the order of protection, whichever is
sooner.
| ||||||
7 | (b) If the respondent is a peace officer as defined in | ||||||
8 | Section 2-13 of the
Criminal Code of 1961, the court shall | ||||||
9 | order that any firearms used by the
respondent in the | ||||||
10 | performance of his or her duties as a peace officer be
| ||||||
11 | surrendered to the chief law enforcement executive of the | ||||||
12 | agency in which the
respondent is employed, who shall | ||||||
13 | retain the firearms for safekeeping for the
stated period | ||||||
14 | not to exceed 2 years as set forth in the court order.
| ||||||
15 | (15) Prohibition of access to records. If an order of | ||||||
16 | protection
prohibits respondent from having contact with | ||||||
17 | the minor child,
or if petitioner's address is omitted | ||||||
18 | under subsection (b) of
Section 112A-5, or if necessary to | ||||||
19 | prevent abuse or wrongful removal or
concealment of a minor | ||||||
20 | child, the order shall deny respondent access to, and
| ||||||
21 | prohibit respondent from inspecting, obtaining, or | ||||||
22 | attempting to
inspect or obtain, school or any other | ||||||
23 | records of the minor child
who is in the care of | ||||||
24 | petitioner.
| ||||||
25 | (16) Order for payment of shelter services. Order | ||||||
26 | respondent to
reimburse a shelter providing temporary | ||||||
27 | housing and counseling services to
the petitioner for the | ||||||
28 | cost of the services, as certified by the shelter
and | ||||||
29 | deemed reasonable by the court.
| ||||||
30 | (17) Order for injunctive relief. Enter injunctive | ||||||
31 | relief necessary
or appropriate to prevent further abuse of | ||||||
32 | a family or household member or
to effectuate one of the | ||||||
33 | granted remedies, if supported by the balance of
hardships. | ||||||
34 | If the harm to be prevented by the injunction is abuse or |
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| |||||||
1 | any
other harm that one of the remedies listed in | ||||||
2 | paragraphs (1) through (16)
of this subsection is designed | ||||||
3 | to prevent, no further evidence is necessary
to establish | ||||||
4 | that the harm is an irreparable injury.
| ||||||
5 | (c) Relevant factors; findings.
| ||||||
6 | (1) In determining whether to grant a
specific remedy, | ||||||
7 | other than payment of support, the
court shall consider | ||||||
8 | relevant factors, including but not limited to the
| ||||||
9 | following:
| ||||||
10 | (i) the nature, frequency, severity, pattern and | ||||||
11 | consequences of the
respondent's past abuse of the | ||||||
12 | petitioner or any family or household
member, | ||||||
13 | including the concealment of his or her location in | ||||||
14 | order to evade
service of process or notice, and the | ||||||
15 | likelihood of danger of future abuse to
petitioner or
| ||||||
16 | any member of petitioner's or respondent's family or | ||||||
17 | household; and
| ||||||
18 | (ii) the danger that any minor child will be abused | ||||||
19 | or neglected or
improperly removed from the | ||||||
20 | jurisdiction, improperly concealed within the
State or | ||||||
21 | improperly separated from the child's primary | ||||||
22 | caretaker.
| ||||||
23 | (2) In comparing relative hardships resulting to the | ||||||
24 | parties from loss
of possession of the family home, the | ||||||
25 | court shall consider relevant
factors, including but not | ||||||
26 | limited to the following:
| ||||||
27 | (i) availability, accessibility, cost, safety, | ||||||
28 | adequacy, location and other
characteristics of | ||||||
29 | alternate housing for each party and any minor child or
| ||||||
30 | dependent adult in the party's care;
| ||||||
31 | (ii) the effect on the party's employment; and
| ||||||
32 | (iii) the effect on the relationship of the party, | ||||||
33 | and any minor
child or dependent adult in the party's | ||||||
34 | care, to family, school, church
and community.
|
| |||||||
| |||||||
1 | (3) Subject to the exceptions set forth in paragraph | ||||||
2 | (4) of this
subsection, the court shall make its findings | ||||||
3 | in an official record or in
writing, and shall at a minimum | ||||||
4 | set forth the following:
| ||||||
5 | (i) That the court has considered the applicable | ||||||
6 | relevant factors
described in paragraphs (1) and (2) of | ||||||
7 | this subsection.
| ||||||
8 | (ii) Whether the conduct or actions of respondent, | ||||||
9 | unless
prohibited, will likely cause irreparable harm | ||||||
10 | or continued abuse.
| ||||||
11 | (iii) Whether it is necessary to grant the | ||||||
12 | requested relief in order
to protect petitioner or | ||||||
13 | other alleged abused persons.
| ||||||
14 | (4) For purposes of issuing an ex parte emergency order | ||||||
15 | of protection,
the court, as an alternative to or as a | ||||||
16 | supplement to making the findings
described in paragraphs | ||||||
17 | (c)(3)(i) through (c)(3)(iii) of this subsection, may use
| ||||||
18 | the following procedure:
| ||||||
19 | When a verified petition for an emergency order of | ||||||
20 | protection in
accordance with the requirements of Sections | ||||||
21 | 112A-5 and 112A-17 is
presented to the court, the court | ||||||
22 | shall examine petitioner on oath or
affirmation. An | ||||||
23 | emergency order of protection shall be issued by the court
| ||||||
24 | if it appears from the contents of the petition and the | ||||||
25 | examination of
petitioner that the averments are | ||||||
26 | sufficient to indicate abuse by
respondent and to support | ||||||
27 | the granting of relief under the issuance of the
emergency | ||||||
28 | order of protection.
| ||||||
29 | (5) Never married parties. No rights or | ||||||
30 | responsibilities for a minor
child born outside of marriage | ||||||
31 | attach to a putative father until a father and
child | ||||||
32 | relationship has been established under the Illinois | ||||||
33 | Parentage Act of
1984. Absent such an adjudication, no | ||||||
34 | putative father shall be granted
temporary custody of the |
| |||||||
| |||||||
1 | minor child, visitation with the minor child, or
physical | ||||||
2 | care
and possession of the minor child, nor shall
an order | ||||||
3 | of payment for support of the minor child be entered.
| ||||||
4 | (d) Balance of hardships; findings. If the court finds that | ||||||
5 | the balance
of hardships does not support the granting of a | ||||||
6 | remedy governed by
paragraph (2), (3), (10), (11), or (16) of
| ||||||
7 | subsection (b) of this Section,
which may require such | ||||||
8 | balancing, the court's findings shall so
indicate and shall | ||||||
9 | include a finding as to whether granting the remedy will
result | ||||||
10 | in hardship to respondent that would substantially outweigh the | ||||||
11 | hardship
to petitioner
from denial of the remedy. The findings | ||||||
12 | shall be an official record or in
writing.
| ||||||
13 | (e) Denial of remedies. Denial of any remedy shall not be | ||||||
14 | based, in
whole or in part, on evidence that:
| ||||||
15 | (1) Respondent has cause for any use of force, unless | ||||||
16 | that cause
satisfies the standards for justifiable use of | ||||||
17 | force provided by Article
VII of the Criminal Code of 1961;
| ||||||
18 | (2) Respondent was voluntarily intoxicated;
| ||||||
19 | (3) Petitioner acted in self-defense or defense of | ||||||
20 | another, provided
that, if petitioner utilized force, such | ||||||
21 | force was justifiable under
Article VII of the Criminal | ||||||
22 | Code of 1961;
| ||||||
23 | (4) Petitioner did not act in self-defense or defense | ||||||
24 | of another;
| ||||||
25 | (5) Petitioner left the residence or household to avoid | ||||||
26 | further abuse
by respondent;
| ||||||
27 | (6) Petitioner did not leave the residence or household | ||||||
28 | to avoid further
abuse by respondent;
| ||||||
29 | (7) Conduct by any family or household member excused | ||||||
30 | the abuse by
respondent, unless that same conduct would | ||||||
31 | have excused such abuse if the
parties had not been family | ||||||
32 | or household members.
| ||||||
33 | (Source: P.A. 93-108, eff. 1-1-04.)
|
| |||||||
| |||||||
1 | Section 15. The Illinois Domestic Violence Act of 1986 is | ||||||
2 | amended by changing Section 214 as follows:
| ||||||
3 | (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
| ||||||
4 | Sec. 214. Order of protection; remedies.
| ||||||
5 | (a) Issuance of order. If the court finds that petitioner | ||||||
6 | has been
abused by a family or household member or that | ||||||
7 | petitioner is a high-risk
adult who has been abused, neglected, | ||||||
8 | or exploited, as defined in this Act,
an order of protection | ||||||
9 | prohibiting the abuse, neglect, or exploitation
shall issue; | ||||||
10 | provided that petitioner must also satisfy the requirements of
| ||||||
11 | one of the following Sections, as appropriate: Section 217 on | ||||||
12 | emergency
orders, Section 218 on interim orders, or Section 219 | ||||||
13 | on plenary orders.
Petitioner shall not be denied an order of | ||||||
14 | protection because petitioner or
respondent is a minor. The | ||||||
15 | court, when determining whether or not to issue
an order of | ||||||
16 | protection, shall not require physical manifestations of abuse
| ||||||
17 | on the person of the victim. Modification and extension of | ||||||
18 | prior
orders of protection shall be in accordance with this | ||||||
19 | Act.
| ||||||
20 | (b) Remedies and standards. The remedies to be included in | ||||||
21 | an order of
protection shall be determined in accordance with | ||||||
22 | this Section and one of
the following Sections, as appropriate: | ||||||
23 | Section 217 on emergency orders,
Section 218 on interim orders, | ||||||
24 | and Section 219 on plenary orders. The
remedies listed in this | ||||||
25 | subsection shall be in addition to other civil or
criminal | ||||||
26 | remedies available to petitioner.
| ||||||
27 | (1) Prohibition of abuse, neglect, or exploitation. | ||||||
28 | Prohibit
respondent's harassment, interference with | ||||||
29 | personal liberty, intimidation
of a dependent, physical | ||||||
30 | abuse, or willful deprivation, neglect or
exploitation, as | ||||||
31 | defined in this Act, or stalking of the petitioner, as | ||||||
32 | defined
in Section 12-7.3 of the Criminal Code of 1961, if | ||||||
33 | such abuse, neglect,
exploitation, or stalking has |
| |||||||
| |||||||
1 | occurred or otherwise appears likely to occur if
not | ||||||
2 | prohibited.
| ||||||
3 | (2) Grant of exclusive possession of residence. | ||||||
4 | Prohibit respondent from
entering or remaining in any | ||||||
5 | residence or household of the petitioner,
including one | ||||||
6 | owned or leased by respondent, if petitioner has a right to
| ||||||
7 | occupancy thereof. The grant of exclusive possession of the | ||||||
8 | residence shall not
affect title to real property, nor | ||||||
9 | shall the court be limited by the standard
set forth in | ||||||
10 | Section 701 of the Illinois Marriage and Dissolution of | ||||||
11 | Marriage
Act.
| ||||||
12 | (A) Right to occupancy. A party has a right to | ||||||
13 | occupancy of a
residence or household if it is solely | ||||||
14 | or jointly owned or leased by that
party, that party's | ||||||
15 | spouse, a person with a legal duty to support that | ||||||
16 | party or
a minor child in that party's care, or by any | ||||||
17 | person or entity other than the
opposing party that | ||||||
18 | authorizes that party's occupancy (e.g., a domestic
| ||||||
19 | violence shelter). Standards set forth in subparagraph | ||||||
20 | (B) shall not preclude
equitable relief.
| ||||||
21 | (B) Presumption of hardships. If petitioner and | ||||||
22 | respondent
each has the right to occupancy of a | ||||||
23 | residence or household, the court
shall balance (i) the | ||||||
24 | hardships to respondent and any minor child or
| ||||||
25 | dependent adult in respondent's care resulting from | ||||||
26 | entry of this remedy with
(ii) the hardships to | ||||||
27 | petitioner and any minor child or dependent adult in
| ||||||
28 | petitioner's care resulting from continued exposure to | ||||||
29 | the risk of abuse
(should petitioner remain at the | ||||||
30 | residence or household) or from loss of
possession of | ||||||
31 | the residence or household (should petitioner leave to | ||||||
32 | avoid the
risk of abuse). When determining the balance | ||||||
33 | of hardships, the court shall
also take into account | ||||||
34 | the accessibility of the residence or household.
|
| |||||||
| |||||||
1 | Hardships need not be balanced if respondent does not | ||||||
2 | have a right to
occupancy.
| ||||||
3 | The balance of hardships is presumed to favor | ||||||
4 | possession by
petitioner unless the presumption is | ||||||
5 | rebutted by a preponderance of the
evidence, showing | ||||||
6 | that the hardships to respondent substantially | ||||||
7 | outweigh
the hardships to petitioner and any minor | ||||||
8 | child or dependent adult in
petitioner's care. The | ||||||
9 | court, on the request of petitioner or on its own
| ||||||
10 | motion, may order respondent to provide suitable, | ||||||
11 | accessible, alternate housing
for petitioner instead | ||||||
12 | of excluding respondent from a mutual residence or
| ||||||
13 | household.
| ||||||
14 | (3) Stay away order and additional prohibitions.
Order | ||||||
15 | respondent to stay away from petitioner or any other person
| ||||||
16 | protected by the order of protection, or prohibit | ||||||
17 | respondent from entering
or remaining present at | ||||||
18 | petitioner's school, place of employment, or other
| ||||||
19 | specified places at times when petitioner is present, or | ||||||
20 | both, if
reasonable, given the balance of hardships. | ||||||
21 | Hardships need not be balanced for
the court to enter a | ||||||
22 | stay away order or prohibit entry if respondent has no
| ||||||
23 | right to enter the premises.
| ||||||
24 | If an order of protection grants petitioner exclusive | ||||||
25 | possession
of the residence, or prohibits respondent from | ||||||
26 | entering the residence,
or orders respondent to stay away | ||||||
27 | from petitioner or other
protected persons, then the court | ||||||
28 | may allow respondent access to the
residence to remove | ||||||
29 | items of clothing and personal adornment
used exclusively | ||||||
30 | by respondent, medications, and other items as the court
| ||||||
31 | directs. The right to access shall be exercised on only one | ||||||
32 | occasion as the
court directs and in the presence of an | ||||||
33 | agreed-upon adult third party or law
enforcement officer.
| ||||||
34 | (4) Counseling. Require or recommend the respondent to |
| |||||||
| |||||||
1 | undergo
counseling for a specified duration with a social | ||||||
2 | worker, psychologist,
clinical psychologist, psychiatrist, | ||||||
3 | family service agency, alcohol or
substance abuse program, | ||||||
4 | mental health center guidance counselor, agency
providing | ||||||
5 | services to elders, program designed for domestic violence
| ||||||
6 | abusers or any other guidance service the court deems | ||||||
7 | appropriate.
| ||||||
8 | (5) Physical care and possession of the minor child. In | ||||||
9 | order to protect
the minor child from abuse, neglect, or | ||||||
10 | unwarranted separation from the person
who has been the | ||||||
11 | minor child's primary caretaker, or to otherwise protect | ||||||
12 | the
well-being of the minor child, the court may do either | ||||||
13 | or both of the
following: (i) grant petitioner physical | ||||||
14 | care or possession of the minor child,
or both, or (ii) | ||||||
15 | order respondent to return a minor child to, or not remove | ||||||
16 | a
minor child from, the physical care of a parent or person | ||||||
17 | in loco parentis.
| ||||||
18 | If a court finds, after a hearing, that respondent has | ||||||
19 | committed abuse
(as defined in Section 103) of a minor | ||||||
20 | child, there shall be a
rebuttable presumption that | ||||||
21 | awarding physical care to respondent would not
be in the | ||||||
22 | minor child's best interest.
| ||||||
23 | (6) Temporary legal custody. Award temporary legal | ||||||
24 | custody to petitioner
in accordance with this Section, the | ||||||
25 | Illinois Marriage and Dissolution of
Marriage Act, the | ||||||
26 | Illinois Parentage Act of 1984, and this State's Uniform
| ||||||
27 | Child-Custody Jurisdiction and Enforcement Act.
| ||||||
28 | If a court finds, after a hearing, that respondent has | ||||||
29 | committed abuse (as
defined in Section 103) of a minor | ||||||
30 | child, there shall be a rebuttable
presumption that | ||||||
31 | awarding temporary legal custody to respondent would not be | ||||||
32 | in
the child's best interest.
| ||||||
33 | (7) Visitation. Determine the visitation rights, if | ||||||
34 | any, of respondent in
any case in which the court awards |
| |||||||
| |||||||
1 | physical care or temporary legal custody of
a minor child | ||||||
2 | to petitioner. The court shall restrict or deny | ||||||
3 | respondent's
visitation with a minor child if the court | ||||||
4 | finds that respondent has done or is
likely to do any of | ||||||
5 | the following: (i) abuse or endanger the minor child during
| ||||||
6 | visitation; (ii) use the visitation as an opportunity to | ||||||
7 | abuse or harass
petitioner or petitioner's family or | ||||||
8 | household members; (iii) improperly
conceal or detain the | ||||||
9 | minor child; or (iv) otherwise act in a manner that is
not | ||||||
10 | in the best interests of the minor child. The court shall | ||||||
11 | not be limited
by the standards set forth in Section 607.1 | ||||||
12 | of the Illinois Marriage and
Dissolution of Marriage Act. | ||||||
13 | If the court grants visitation, the order shall
specify | ||||||
14 | dates and times for the visitation to take place or other | ||||||
15 | specific
parameters or conditions that are appropriate. No | ||||||
16 | order for visitation shall
refer merely to the term | ||||||
17 | "reasonable visitation".
| ||||||
18 | Petitioner may deny respondent access to the minor | ||||||
19 | child if, when
respondent arrives for visitation, | ||||||
20 | respondent is under the influence of drugs
or alcohol and | ||||||
21 | constitutes a threat to the safety and well-being of
| ||||||
22 | petitioner or petitioner's minor children or is behaving in | ||||||
23 | a violent or
abusive manner.
| ||||||
24 | If necessary to protect any member of petitioner's | ||||||
25 | family or
household from future abuse, respondent shall be | ||||||
26 | prohibited from coming to
petitioner's residence to meet | ||||||
27 | the minor child for visitation, and the
parties shall | ||||||
28 | submit to the court their recommendations for reasonable
| ||||||
29 | alternative arrangements for visitation. A person may be | ||||||
30 | approved to
supervise visitation only after filing an | ||||||
31 | affidavit accepting
that responsibility and acknowledging | ||||||
32 | accountability to the court.
| ||||||
33 | (8) Removal or concealment of minor child. Prohibit | ||||||
34 | respondent from
removing a minor child from the State or |
| |||||||
| |||||||
1 | concealing the child within the State.
| ||||||
2 | (9) Order to appear. Order the respondent to appear in | ||||||
3 | court, alone
or with a minor child, to prevent abuse, | ||||||
4 | neglect, removal or concealment of
the child, to return the | ||||||
5 | child to the custody or care of the petitioner or
to permit | ||||||
6 | any court-ordered interview or examination of the child or | ||||||
7 | the
respondent.
| ||||||
8 | (10) Possession of personal property. Grant petitioner | ||||||
9 | exclusive
possession of personal property and, if | ||||||
10 | respondent has possession or
control, direct respondent to | ||||||
11 | promptly make it available to petitioner, if:
| ||||||
12 | (i) petitioner, but not respondent, owns the | ||||||
13 | property; or
| ||||||
14 | (ii) the parties own the property jointly; sharing | ||||||
15 | it would risk
abuse of petitioner by respondent or is | ||||||
16 | impracticable; and the balance of
hardships favors | ||||||
17 | temporary possession by petitioner.
| ||||||
18 | If petitioner's sole claim to ownership of the property | ||||||
19 | is that it is
marital property, the court may award | ||||||
20 | petitioner temporary possession
thereof under the | ||||||
21 | standards of subparagraph (ii) of this paragraph only if
a | ||||||
22 | proper proceeding has been filed under the Illinois | ||||||
23 | Marriage and
Dissolution of Marriage Act, as now or | ||||||
24 | hereafter amended.
| ||||||
25 | No order under this provision shall affect title to | ||||||
26 | property.
| ||||||
27 | (11) Protection of property. Forbid the respondent | ||||||
28 | from taking,
transferring, encumbering, concealing, | ||||||
29 | damaging or otherwise disposing of
any real or personal | ||||||
30 | property, except as explicitly authorized by the
court, if:
| ||||||
31 | (i) petitioner, but not respondent, owns the | ||||||
32 | property; or
| ||||||
33 | (ii) the parties own the property jointly,
and the | ||||||
34 | balance of hardships favors granting this remedy.
|
| |||||||
| |||||||
1 | If petitioner's sole claim to ownership of the property | ||||||
2 | is that it is
marital property, the court may grant | ||||||
3 | petitioner relief under subparagraph
(ii) of this | ||||||
4 | paragraph only if a proper proceeding has been filed under | ||||||
5 | the
Illinois Marriage and Dissolution of Marriage Act, as | ||||||
6 | now or hereafter amended.
| ||||||
7 | The court may further prohibit respondent from | ||||||
8 | improperly using the
financial or other resources of an | ||||||
9 | aged member of the family or household
for the profit or | ||||||
10 | advantage of respondent or of any other person.
| ||||||
11 | (12) Order for payment of support. Order respondent to | ||||||
12 | pay temporary
support for the petitioner or any child in | ||||||
13 | the petitioner's care or
custody, when the respondent has a | ||||||
14 | legal obligation to support that person,
in accordance with | ||||||
15 | the Illinois Marriage and Dissolution
of Marriage Act, | ||||||
16 | which shall govern, among other matters, the amount of
| ||||||
17 | support, payment through the clerk and withholding of | ||||||
18 | income to secure
payment. An order for child support may be | ||||||
19 | granted to a petitioner with
lawful physical care or | ||||||
20 | custody of a child, or an order or agreement for
physical | ||||||
21 | care or custody, prior to entry of an order for legal | ||||||
22 | custody.
Such a support order shall expire upon entry of a | ||||||
23 | valid order granting
legal custody to another, unless | ||||||
24 | otherwise provided in the custody order.
| ||||||
25 | (13) Order for payment of losses. Order respondent to | ||||||
26 | pay petitioner for
losses suffered as a direct result of | ||||||
27 | the abuse, neglect, or exploitation.
Such losses shall | ||||||
28 | include, but not be limited to, medical expenses, lost
| ||||||
29 | earnings or other support, repair or replacement of | ||||||
30 | property damaged or taken,
reasonable attorney's fees, | ||||||
31 | court costs and moving or other travel expenses,
including | ||||||
32 | additional reasonable expenses for temporary shelter and | ||||||
33 | restaurant
meals.
| ||||||
34 | (i) Losses affecting family needs. If a party is |
| |||||||
| |||||||
1 | entitled to seek
maintenance, child support or | ||||||
2 | property distribution from the other party
under the | ||||||
3 | Illinois Marriage and Dissolution of Marriage Act, as | ||||||
4 | now or
hereafter amended, the court may order | ||||||
5 | respondent to reimburse petitioner's
actual losses, to | ||||||
6 | the extent that such reimbursement would be | ||||||
7 | "appropriate
temporary relief", as authorized by | ||||||
8 | subsection (a)(3) of Section 501 of
that Act.
| ||||||
9 | (ii) Recovery of expenses. In the case of an | ||||||
10 | improper concealment
or removal of a minor child, the | ||||||
11 | court may order respondent to pay the
reasonable | ||||||
12 | expenses incurred or to be incurred in the search for | ||||||
13 | and recovery
of the minor child, including but not | ||||||
14 | limited to legal fees, court costs,
private | ||||||
15 | investigator fees, and travel costs.
| ||||||
16 | (14) Prohibition of entry. Prohibit the respondent | ||||||
17 | from entering or
remaining in the residence or household | ||||||
18 | while the respondent is under the
influence of alcohol or | ||||||
19 | drugs and constitutes a threat to the safety and
well-being | ||||||
20 | of the petitioner or the petitioner's children.
| ||||||
21 | (14.5) Prohibition of firearm possession.
| ||||||
22 | (a) When a complaint is made
under a request for an | ||||||
23 | order of protection, that the respondent has | ||||||
24 | threatened
or is likely to use firearms illegally | ||||||
25 | against the petitioner, and the
respondent is present | ||||||
26 | in court, or has failed to appear after receiving | ||||||
27 | actual
notice, the court shall examine on oath the | ||||||
28 | petitioner, and any witnesses who
may be produced. If | ||||||
29 | the court is satisfied that there is any danger of the
| ||||||
30 | illegal use of firearms, it shall issue an order that | ||||||
31 | any firearms and any Firearm Owner's Identification | ||||||
32 | Card in the
possession of the respondent, except as | ||||||
33 | provided in subsection (b), be turned
over to the local | ||||||
34 | law enforcement agency
for safekeeping. If the |
| |||||||
| |||||||
1 | respondent has failed to appear, the court shall
issue | ||||||
2 | a warrant for seizure of any firearm and Firearm | ||||||
3 | Owner's Identification Card in the possession of the | ||||||
4 | respondent.
The period of safekeeping shall be for a | ||||||
5 | stated period of time not to exceed 2
years. The | ||||||
6 | firearm or firearms and Firearm Owner's Identification | ||||||
7 | Card shall be returned to the respondent at the end
of | ||||||
8 | the stated period or at expiration of the order of | ||||||
9 | protection, whichever is
sooner.
| ||||||
10 | (b) If the respondent is a peace officer as defined | ||||||
11 | in Section 2-13 of
the
Criminal Code of 1961, the court | ||||||
12 | shall order that any firearms used by the
respondent in | ||||||
13 | the performance of his or her duties as a
peace officer | ||||||
14 | be surrendered to
the chief law enforcement executive | ||||||
15 | of the agency in which the respondent is
employed, who | ||||||
16 | shall retain the firearms for safekeeping for the | ||||||
17 | stated period
not to exceed 2 years as set forth in the | ||||||
18 | court order.
| ||||||
19 | (15) Prohibition of access to records. If an order of | ||||||
20 | protection
prohibits respondent from having contact with | ||||||
21 | the minor child,
or if petitioner's address is omitted | ||||||
22 | under subsection (b) of
Section 203, or if necessary to | ||||||
23 | prevent abuse or wrongful removal or
concealment of a minor | ||||||
24 | child, the order shall deny respondent access to, and
| ||||||
25 | prohibit respondent from inspecting, obtaining, or | ||||||
26 | attempting to
inspect or obtain, school or any other | ||||||
27 | records of the minor child
who is in the care of | ||||||
28 | petitioner.
| ||||||
29 | (16) Order for payment of shelter services. Order | ||||||
30 | respondent to
reimburse a shelter providing temporary | ||||||
31 | housing and counseling services to
the petitioner for the | ||||||
32 | cost of the services, as certified by the shelter
and | ||||||
33 | deemed reasonable by the court.
| ||||||
34 | (17) Order for injunctive relief. Enter injunctive |
| |||||||
| |||||||
1 | relief necessary
or appropriate to prevent further abuse of | ||||||
2 | a family or household member
or further abuse, neglect, or | ||||||
3 | exploitation of a high-risk adult with
disabilities or to | ||||||
4 | effectuate one of the granted remedies, if supported by the
| ||||||
5 | balance of hardships. If the harm to be prevented by the | ||||||
6 | injunction is abuse
or any other harm that one of the | ||||||
7 | remedies listed in paragraphs (1) through
(16) of this | ||||||
8 | subsection is designed to prevent, no further evidence is
| ||||||
9 | necessary that the harm is an irreparable injury.
| ||||||
10 | (c) Relevant factors; findings.
| ||||||
11 | (1) In determining whether to grant a specific remedy, | ||||||
12 | other than
payment of support, the court shall consider
| ||||||
13 | relevant factors, including but not limited to the | ||||||
14 | following:
| ||||||
15 | (i) the nature, frequency, severity, pattern and | ||||||
16 | consequences of the
respondent's past abuse, neglect | ||||||
17 | or exploitation of the petitioner or
any family or | ||||||
18 | household member, including the concealment of his or | ||||||
19 | her
location in order to evade service of process or | ||||||
20 | notice, and the likelihood of
danger of future abuse, | ||||||
21 | neglect, or exploitation to petitioner or any member of
| ||||||
22 | petitioner's or respondent's family or household; and
| ||||||
23 | (ii) the danger that any minor child will be abused | ||||||
24 | or neglected or
improperly removed from the | ||||||
25 | jurisdiction, improperly concealed within the
State or | ||||||
26 | improperly separated from the child's primary | ||||||
27 | caretaker.
| ||||||
28 | (2) In comparing relative hardships resulting to the | ||||||
29 | parties from loss
of possession of the family home, the | ||||||
30 | court shall consider relevant
factors, including but not | ||||||
31 | limited to the following:
| ||||||
32 | (i) availability, accessibility, cost, safety, | ||||||
33 | adequacy, location and
other characteristics of | ||||||
34 | alternate housing for each party and any minor child
or |
| |||||||
| |||||||
1 | dependent adult in the party's care;
| ||||||
2 | (ii) the effect on the party's employment; and
| ||||||
3 | (iii) the effect on the relationship of the party, | ||||||
4 | and any minor
child or dependent adult in the party's | ||||||
5 | care, to family, school, church
and community.
| ||||||
6 | (3) Subject to the exceptions set forth in paragraph | ||||||
7 | (4) of this
subsection, the court shall make its findings | ||||||
8 | in an official record or in
writing, and shall at a minimum | ||||||
9 | set forth the following:
| ||||||
10 | (i) That the court has considered the applicable | ||||||
11 | relevant factors
described in paragraphs (1) and (2) of | ||||||
12 | this subsection.
| ||||||
13 | (ii) Whether the conduct or actions of respondent, | ||||||
14 | unless
prohibited, will likely cause irreparable harm | ||||||
15 | or continued abuse.
| ||||||
16 | (iii) Whether it is necessary to grant the | ||||||
17 | requested relief in order
to protect petitioner or | ||||||
18 | other alleged abused persons.
| ||||||
19 | (4) For purposes of issuing an ex parte emergency order | ||||||
20 | of protection,
the court, as an alternative to or as a | ||||||
21 | supplement to making the findings
described in paragraphs | ||||||
22 | (c)(3)(i) through (c)(3)(iii) of this subsection, may
use | ||||||
23 | the following procedure:
| ||||||
24 | When a verified petition for an emergency order of | ||||||
25 | protection in
accordance with the requirements of Sections | ||||||
26 | 203 and 217 is
presented to the court, the court shall | ||||||
27 | examine petitioner on oath or
affirmation. An emergency | ||||||
28 | order of protection shall be issued by the court
if it | ||||||
29 | appears from the contents of the petition and the | ||||||
30 | examination of
petitioner that the averments are | ||||||
31 | sufficient to indicate abuse by
respondent and to support | ||||||
32 | the granting of relief under the issuance of the
emergency | ||||||
33 | order of protection.
| ||||||
34 | (5) Never married parties. No rights or |
| |||||||
| |||||||
1 | responsibilities for a minor
child born outside of marriage | ||||||
2 | attach to a putative father until a father and
child | ||||||
3 | relationship has been established under the Illinois | ||||||
4 | Parentage Act of
1984, the Illinois Public Aid Code, | ||||||
5 | Section 12 of the Vital Records Act, the
Juvenile Court Act | ||||||
6 | of 1987, the Probate Act of 1985, the Revised Uniform
| ||||||
7 | Reciprocal Enforcement of Support Act, the Uniform | ||||||
8 | Interstate Family Support
Act, the Expedited Child Support | ||||||
9 | Act of 1990, any judicial, administrative, or
other act of | ||||||
10 | another state or territory, any other Illinois statute, or | ||||||
11 | by any
foreign nation establishing the father and child | ||||||
12 | relationship, any other
proceeding substantially in | ||||||
13 | conformity with the Personal Responsibility and
Work | ||||||
14 | Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), | ||||||
15 | or where both
parties appeared in open court or at an | ||||||
16 | administrative hearing acknowledging
under
oath or | ||||||
17 | admitting by affirmation the existence of a father and | ||||||
18 | child
relationship.
Absent such an adjudication, finding, | ||||||
19 | or acknowledgement, no putative
father shall be granted
| ||||||
20 | temporary custody of the minor child, visitation with the | ||||||
21 | minor child, or
physical care and possession of the minor | ||||||
22 | child, nor shall an order of payment
for support of the | ||||||
23 | minor child be entered.
| ||||||
24 | (d) Balance of hardships; findings. If the court finds that | ||||||
25 | the balance
of hardships does not support the granting of a | ||||||
26 | remedy governed by
paragraph (2), (3), (10), (11), or (16) of | ||||||
27 | subsection (b) of this Section,
which may require such | ||||||
28 | balancing, the court's findings shall so
indicate and shall | ||||||
29 | include a finding as to whether granting the remedy will
result | ||||||
30 | in hardship to respondent that would substantially outweigh the | ||||||
31 | hardship
to petitioner from denial of the remedy. The findings | ||||||
32 | shall be an official
record or in writing.
| ||||||
33 | (e) Denial of remedies. Denial of any remedy shall not be | ||||||
34 | based, in
whole or in part, on evidence that:
|
| |||||||
| |||||||
1 | (1) Respondent has cause for any use of force, unless | ||||||
2 | that cause
satisfies the standards for justifiable use of | ||||||
3 | force provided by Article
VII of the Criminal Code of 1961;
| ||||||
4 | (2) Respondent was voluntarily intoxicated;
| ||||||
5 | (3) Petitioner acted in self-defense or defense of | ||||||
6 | another, provided
that, if petitioner utilized force, such | ||||||
7 | force was justifiable under
Article VII of the Criminal | ||||||
8 | Code of 1961;
| ||||||
9 | (4) Petitioner did not act in self-defense or defense | ||||||
10 | of another;
| ||||||
11 | (5) Petitioner left the residence or household to avoid | ||||||
12 | further abuse,
neglect, or exploitation by respondent;
| ||||||
13 | (6) Petitioner did not leave the residence or household | ||||||
14 | to avoid further
abuse, neglect, or exploitation by | ||||||
15 | respondent;
| ||||||
16 | (7) Conduct by any family or household member excused | ||||||
17 | the abuse,
neglect, or exploitation by respondent, unless | ||||||
18 | that same conduct would have
excused such abuse, neglect, | ||||||
19 | or exploitation if the parties had not been
family or | ||||||
20 | household members.
| ||||||
21 | (Source: P.A. 93-108, eff. 1-1-04.)".
|