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1 | AN ACT concerning orders of protection.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
| |||||||||||||||||||||||
4 | Section 5. The Code of Criminal Procedure of 1963 is | |||||||||||||||||||||||
5 | amended by changing Sections 112A-14 and 112A-17 as follows:
| |||||||||||||||||||||||
6 | (725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
| |||||||||||||||||||||||
7 | Sec. 112A-14. Order of protection; remedies.
| |||||||||||||||||||||||
8 | (a) Issuance of order. If the court finds that petitioner | |||||||||||||||||||||||
9 | has been
abused by a family or household member, as defined in | |||||||||||||||||||||||
10 | this Article, an
order of protection prohibiting such abuse | |||||||||||||||||||||||
11 | shall issue; provided that
petitioner must also satisfy the | |||||||||||||||||||||||
12 | requirements of one of the following
Sections, as appropriate: | |||||||||||||||||||||||
13 | Section 112A-17 on emergency orders, Section
112A-18 on interim | |||||||||||||||||||||||
14 | orders, or Section 112A-19 on
plenary orders.
Petitioner shall | |||||||||||||||||||||||
15 | not be denied an order of protection because petitioner or
| |||||||||||||||||||||||
16 | respondent is a minor. The court, when determining whether or | |||||||||||||||||||||||
17 | not to issue
an order of protection, shall not require physical | |||||||||||||||||||||||
18 | manifestations of abuse
on the person of the victim. | |||||||||||||||||||||||
19 | Modification and extension of prior orders of
protection shall | |||||||||||||||||||||||
20 | be in accordance with this Article.
| |||||||||||||||||||||||
21 | (b) Remedies and standards. The remedies to be included in | |||||||||||||||||||||||
22 | an order of
protection shall be determined in accordance with | |||||||||||||||||||||||
23 | this Section and one of
the following Sections, as appropriate: |
| |||||||
| |||||||
1 | Section 112A-17 on
emergency orders,
Section 112A-18 on interim | ||||||
2 | orders, and Section 112A-19 on
plenary orders.
The remedies | ||||||
3 | listed in this subsection shall be in addition to other civil
| ||||||
4 | or criminal remedies available to petitioner.
| ||||||
5 | (1) Prohibition of abuse. Prohibit respondent's | ||||||
6 | harassment,
interference with personal liberty, | ||||||
7 | intimidation of a dependent, physical
abuse or willful | ||||||
8 | deprivation, as defined in this Article, if such abuse has
| ||||||
9 | occurred or otherwise appears likely to occur if not | ||||||
10 | prohibited.
| ||||||
11 | (2) Grant of exclusive possession of residence. | ||||||
12 | Prohibit respondent
from entering or remaining in any | ||||||
13 | residence , or household , or premises of the petitioner,
| ||||||
14 | including one owned or leased by respondent, if petitioner | ||||||
15 | has a right
to occupancy thereof. The grant of exclusive | ||||||
16 | possession of the residence , household, or premises
shall | ||||||
17 | not affect title to real property, nor shall the court be | ||||||
18 | limited by
the standard set forth in Section 701 of the | ||||||
19 | Illinois Marriage and
Dissolution of Marriage Act.
| ||||||
20 | (A) Right to occupancy. A party has a right to | ||||||
21 | occupancy of a
residence or household if it is
solely | ||||||
22 | or jointly owned or leased by that party, that party's | ||||||
23 | spouse, a
person with a legal duty to support that | ||||||
24 | party or a minor child in that
party's care, or by any | ||||||
25 | person or entity other than the opposing party that
| ||||||
26 | authorizes that party's occupancy (e.g., a domestic |
| |||||||
| |||||||
1 | violence shelter).
Standards set forth in subparagraph | ||||||
2 | (B) shall not preclude equitable relief.
| ||||||
3 | (B) Presumption of hardships. If petitioner and | ||||||
4 | respondent
each has the right to occupancy of a | ||||||
5 | residence or household, the court
shall balance (i) the | ||||||
6 | hardships to respondent and any minor child or
| ||||||
7 | dependent adult in respondent's care resulting from | ||||||
8 | entry of this remedy with (ii)
the hardships to | ||||||
9 | petitioner and any minor child or dependent adult in
| ||||||
10 | petitioner's care resulting from continued exposure to | ||||||
11 | the risk of abuse (should
petitioner remain at the | ||||||
12 | residence or household) or from loss of possession
of | ||||||
13 | the residence or household (should petitioner leave to | ||||||
14 | avoid the risk
of abuse). When determining the balance | ||||||
15 | of hardships, the court shall also
take into account | ||||||
16 | the accessibility of the residence or household.
| ||||||
17 | Hardships need not be balanced if respondent does not | ||||||
18 | have a right to occupancy.
| ||||||
19 | The balance of hardships is presumed to favor | ||||||
20 | possession by
petitioner unless the presumption is | ||||||
21 | rebutted by a preponderance of the
evidence, showing | ||||||
22 | that the hardships to respondent substantially | ||||||
23 | outweigh
the hardships to petitioner and any minor | ||||||
24 | child or dependent adult in petitioner's
care. The | ||||||
25 | court, on the request of petitioner or on its own | ||||||
26 | motion,
may order respondent to provide suitable, |
| |||||||
| |||||||
1 | accessible, alternate housing
for petitioner instead | ||||||
2 | of
excluding respondent from a mutual residence or | ||||||
3 | household.
| ||||||
4 | (3) Stay away order and additional prohibitions.
Order | ||||||
5 | respondent to stay away from petitioner or any other person
| ||||||
6 | protected by the order of protection, or prohibit | ||||||
7 | respondent from entering
or remaining present at | ||||||
8 | petitioner's school, place of employment, or other
| ||||||
9 | specified places at times when petitioner is present, or | ||||||
10 | both, if
reasonable, given
the balance of hardships. | ||||||
11 | Hardships need not be balanced for the court
to enter a | ||||||
12 | stay away order or prohibit entry
if respondent has no | ||||||
13 | right to enter the premises.
| ||||||
14 | If an order of protection grants petitioner exclusive | ||||||
15 | possession
of the residence, or prohibits respondent from | ||||||
16 | entering the residence,
or orders respondent to stay away | ||||||
17 | from petitioner or other
protected persons, then the court | ||||||
18 | may allow respondent access to the
residence to remove | ||||||
19 | items of clothing and personal adornment
used exclusively | ||||||
20 | by respondent, medications, and other items as the court | ||||||
21 | directs.
The right to access shall be exercised on only one | ||||||
22 | occasion as the court directs
and in the presence of an | ||||||
23 | agreed-upon adult third party or law enforcement officer.
| ||||||
24 | (4) Counseling. Require or recommend the respondent to | ||||||
25 | undergo
counseling for a specified duration with a social | ||||||
26 | worker, psychologist,
clinical psychologist, psychiatrist, |
| |||||||
| |||||||
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
| ||||||
4 | abusers or any other guidance service the court deems | ||||||
5 | appropriate. The court may order the respondent in any | ||||||
6 | intimate partner relationship to report to an Illinois | ||||||
7 | Department of Human Services protocol approved partner | ||||||
8 | abuse intervention program for an assessment and to follow | ||||||
9 | all recommended treatment.
| ||||||
10 | (5) Physical care and possession of the minor child. In | ||||||
11 | order to protect
the minor child from abuse, neglect, or | ||||||
12 | unwarranted separation from the person
who has been the | ||||||
13 | minor child's primary caretaker, or to otherwise protect | ||||||
14 | the
well-being of the minor child, the court may do either | ||||||
15 | or both of the following:
(i) grant petitioner physical | ||||||
16 | care or possession of the minor child, or both, or
(ii) | ||||||
17 | order respondent to return a minor child to, or not remove | ||||||
18 | a minor child
from, the physical care of a parent or person | ||||||
19 | in loco parentis.
| ||||||
20 | If a court finds, after a hearing, that respondent has | ||||||
21 | committed abuse
(as defined in Section 112A-3) of a minor | ||||||
22 | child, there shall be a
rebuttable presumption that | ||||||
23 | awarding physical care to respondent would not
be in the | ||||||
24 | minor child's best interest.
| ||||||
25 | (6) Temporary legal custody.
Award temporary legal | ||||||
26 | custody to petitioner in accordance with this Section,
the |
| |||||||
| |||||||
1 | Illinois Marriage
and Dissolution of Marriage Act, the | ||||||
2 | Illinois Parentage Act of 1984,
and this State's Uniform | ||||||
3 | Child-Custody
Jurisdiction and Enforcement Act.
| ||||||
4 | If a court finds, after a hearing, that respondent
has | ||||||
5 | committed abuse (as defined in Section 112A-3) of a
minor | ||||||
6 | child, there shall be a rebuttable presumption that | ||||||
7 | awarding
temporary legal custody to respondent would not be | ||||||
8 | in the
child's best interest.
| ||||||
9 | (7) Visitation. Determine the
visitation rights, if | ||||||
10 | any, of respondent in any case in which the court
awards | ||||||
11 | physical care or temporary legal custody of a minor child | ||||||
12 | to
petitioner. The court shall restrict or deny | ||||||
13 | respondent's visitation with
a minor child if
the court | ||||||
14 | finds that respondent has done or is likely to do any of | ||||||
15 | the
following: (i) abuse or endanger the minor child during | ||||||
16 | visitation; (ii) use the
visitation as an opportunity to | ||||||
17 | abuse or harass petitioner or
petitioner's family or | ||||||
18 | household members; (iii) improperly conceal or
detain the | ||||||
19 | minor child; or (iv) otherwise act in a manner that is not | ||||||
20 | in
the best interests of the minor child. The court shall | ||||||
21 | not be limited by the
standards set forth in Section 607.1 | ||||||
22 | of the Illinois Marriage and
Dissolution of Marriage Act. | ||||||
23 | If the court grants visitation, the order
shall specify | ||||||
24 | dates and times for the visitation to take place or other
| ||||||
25 | specific parameters or conditions that are appropriate. No | ||||||
26 | order for
visitation shall refer merely to the term |
| |||||||
| |||||||
1 | "reasonable visitation".
| ||||||
2 | Petitioner may deny respondent access to the minor | ||||||
3 | child if, when
respondent arrives for visitation, | ||||||
4 | respondent is under the influence of drugs
or alcohol and | ||||||
5 | constitutes a threat to the safety and well-being of
| ||||||
6 | petitioner or petitioner's minor children or is behaving in | ||||||
7 | a violent or abusive manner.
| ||||||
8 | If necessary to protect any member of petitioner's | ||||||
9 | family or
household from future abuse, respondent shall be | ||||||
10 | prohibited from coming to
petitioner's residence to meet | ||||||
11 | the minor child for visitation, and the
parties shall | ||||||
12 | submit to the court their recommendations for reasonable
| ||||||
13 | alternative arrangements for visitation. A person may be | ||||||
14 | approved to
supervise visitation only after filing an | ||||||
15 | affidavit accepting
that responsibility and acknowledging | ||||||
16 | accountability to the court.
| ||||||
17 | (8) Removal or concealment of minor child.
Prohibit | ||||||
18 | respondent from
removing a minor child from the State or | ||||||
19 | concealing the child within the
State.
| ||||||
20 | (9) Order to appear. Order the respondent to
appear in | ||||||
21 | court, alone
or with a minor child, to prevent abuse, | ||||||
22 | neglect, removal or concealment of
the child, to return the | ||||||
23 | child to the custody or care of the petitioner or
to permit | ||||||
24 | any court-ordered interview or examination of the child or | ||||||
25 | the
respondent.
| ||||||
26 | (10) Possession of personal property. Grant petitioner |
| |||||||
| |||||||
1 | exclusive
possession of personal property and, if | ||||||
2 | respondent has possession or
control, direct respondent to | ||||||
3 | promptly make it available to petitioner, if:
| ||||||
4 | (i) petitioner, but not respondent, owns the | ||||||
5 | property; or
| ||||||
6 | (ii) the parties own the property jointly; sharing | ||||||
7 | it would risk
abuse of petitioner by respondent or is | ||||||
8 | impracticable; and the balance of
hardships favors | ||||||
9 | temporary possession by petitioner.
| ||||||
10 | If petitioner's sole claim to ownership of the property | ||||||
11 | is that it is
marital property, the court may award | ||||||
12 | petitioner temporary possession
thereof under the | ||||||
13 | standards of subparagraph (ii) of this paragraph only if
a | ||||||
14 | proper proceeding has been filed under the Illinois | ||||||
15 | Marriage and
Dissolution of Marriage Act, as now or | ||||||
16 | hereafter amended.
| ||||||
17 | No order under this provision shall affect title to | ||||||
18 | property.
| ||||||
19 | (11) Protection of property. Forbid the respondent | ||||||
20 | from taking,
transferring, encumbering, concealing, | ||||||
21 | damaging or otherwise disposing of
any real or personal | ||||||
22 | property, except as explicitly authorized by the
court, if:
| ||||||
23 | (i) petitioner, but not respondent, owns the | ||||||
24 | property; or
| ||||||
25 | (ii) the parties own the property jointly,
and the | ||||||
26 | 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 | (11.5) Protection of animals. Grant the petitioner the | ||||||
12 | exclusive care, custody, or control of any animal owned, | ||||||
13 | possessed, leased, kept, or held by either the petitioner | ||||||
14 | or the respondent or a minor child residing in the | ||||||
15 | residence or household of either the petitioner or the | ||||||
16 | respondent and order the respondent to stay away from the | ||||||
17 | animal and forbid the respondent from taking, | ||||||
18 | transferring, encumbering, concealing, harming, or | ||||||
19 | otherwise disposing of the animal.
| ||||||
20 | (12) Order for payment of support. Order
respondent to | ||||||
21 | pay temporary
support for the petitioner or any child in | ||||||
22 | the petitioner's care or
custody, when the respondent has a | ||||||
23 | legal obligation to support that person,
in accordance with | ||||||
24 | the Illinois Marriage and Dissolution
of Marriage Act, | ||||||
25 | which shall govern, among other matters, the amount of
| ||||||
26 | support, payment through the clerk and withholding of |
| |||||||
| |||||||
1 | income to secure
payment. An order for child support may be | ||||||
2 | granted to a petitioner with
lawful physical care or | ||||||
3 | custody of a child, or an order or agreement for
physical | ||||||
4 | care or custody, prior to entry of an order for legal | ||||||
5 | custody.
Such a support order shall expire upon entry of a | ||||||
6 | valid order granting
legal custody to another, unless | ||||||
7 | otherwise provided in the custody order.
| ||||||
8 | (13) Order for payment of losses. Order
respondent to | ||||||
9 | pay petitioner
for losses suffered as a direct result of | ||||||
10 | the abuse. Such losses shall
include, but not be limited | ||||||
11 | to, medical expenses, lost earnings or other
support, | ||||||
12 | repair or replacement of property damaged or taken, | ||||||
13 | reasonable
attorney's fees, court costs and moving or other | ||||||
14 | travel expenses, including
additional reasonable expenses | ||||||
15 | for temporary shelter and restaurant meals.
| ||||||
16 | (i) Losses affecting family needs. If a party is | ||||||
17 | entitled to seek
maintenance, child support or | ||||||
18 | property distribution from the other party
under the | ||||||
19 | Illinois Marriage and Dissolution of Marriage Act, as | ||||||
20 | now or
hereafter amended, the court may order | ||||||
21 | respondent to reimburse petitioner's
actual losses, to | ||||||
22 | the extent that such reimbursement would be | ||||||
23 | "appropriate
temporary relief", as authorized by | ||||||
24 | subsection (a)(3) of
Section 501 of that Act.
| ||||||
25 | (ii) Recovery of expenses. In the case of an | ||||||
26 | improper concealment
or removal of a minor child, the |
| |||||||
| |||||||
1 | court may order respondent to pay the reasonable
| ||||||
2 | expenses incurred or to be incurred in the search for | ||||||
3 | and recovery of the
minor child, including but not | ||||||
4 | limited to legal fees, court costs, private
| ||||||
5 | investigator fees, and travel costs.
| ||||||
6 | (14) Prohibition of entry. Prohibit the respondent | ||||||
7 | from entering or
remaining in the residence or household | ||||||
8 | while the respondent is under the
influence of alcohol or | ||||||
9 | drugs and constitutes a threat to the safety and
well-being | ||||||
10 | of the petitioner or the petitioner's children.
| ||||||
11 | (14.5) Prohibition of firearm possession. | ||||||
12 | (a) When a complaint is made
under a request for an | ||||||
13 | order of protection, that the respondent has | ||||||
14 | threatened
or is likely to use firearms illegally | ||||||
15 | against the petitioner, the court shall examine on oath | ||||||
16 | the petitioner, and any witnesses who
may be produced. | ||||||
17 | If the court is satisfied that there is any danger of | ||||||
18 | the
illegal use of firearms, and the respondent is | ||||||
19 | present in court, it shall issue an order that any | ||||||
20 | firearms in the
possession of the respondent, except as | ||||||
21 | provided in subsection (b), be turned
over to the local | ||||||
22 | law enforcement agency
for safekeeping. If the court is | ||||||
23 | satisfied that there is any danger of the illegal use | ||||||
24 | of firearms, and the respondent is present in court, it | ||||||
25 | shall issue an order that the respondent's Firearm | ||||||
26 | Owner's Identification Card be turned over to the local |
| |||||||
| |||||||
1 | law enforcement agency for safekeeping. If the court is | ||||||
2 | satisfied that there is any danger of the illegal use | ||||||
3 | of firearms, and if the respondent is not present in | ||||||
4 | court, the court shall
issue a warrant for seizure of | ||||||
5 | the respondent's Firearm Owner's Identification Card | ||||||
6 | and any firearm in the possession of the respondent, | ||||||
7 | except as provided in subsection (b), be turned over to | ||||||
8 | the local law enforcement agency for safekeeping.
The | ||||||
9 | period of safekeeping shall be for a stated period of | ||||||
10 | time not to exceed 2
years. The firearm or firearms | ||||||
11 | shall be returned to the respondent at the end
of the | ||||||
12 | stated period or at expiration of the order of | ||||||
13 | protection, whichever is
sooner.
| ||||||
14 | (b) If the respondent is a peace officer as defined | ||||||
15 | in Section 2-13 of
the
Criminal Code of 1961, the court | ||||||
16 | shall order that any firearms used by the
respondent in | ||||||
17 | the performance of his or her duties as a
peace officer | ||||||
18 | be surrendered to
the chief law enforcement executive | ||||||
19 | of the agency in which the respondent is
employed, who | ||||||
20 | shall retain the firearms for safekeeping for the | ||||||
21 | stated period
not to exceed 2 years as set forth in the | ||||||
22 | court order.
| ||||||
23 | (c) Upon expiration of the period of safekeeping, | ||||||
24 | if the firearms or Firearm Owner's Identification Card | ||||||
25 | cannot be returned to respondent because respondent | ||||||
26 | cannot be located, fails to respond to requests to |
| |||||||
| |||||||
1 | retrieve the firearms, or is not lawfully eligible to | ||||||
2 | possess a firearm, upon petition from the local law | ||||||
3 | enforcement agency, the court may order the local law | ||||||
4 | enforcement agency to destroy the firearms, use the | ||||||
5 | firearms for training purposes, or for any other | ||||||
6 | application as deemed appropriate by the local law | ||||||
7 | enforcement agency; or that the firearms be turned over | ||||||
8 | to a third party who is lawfully eligible to possess | ||||||
9 | firearms, and who does not reside with respondent.
| ||||||
10 | (15) Prohibition of access to records. If an order of | ||||||
11 | protection
prohibits respondent from having contact with | ||||||
12 | the minor child,
or if petitioner's address is omitted | ||||||
13 | under subsection (b) of
Section 112A-5, or if necessary to | ||||||
14 | prevent abuse or wrongful removal or
concealment of a minor | ||||||
15 | child, the order shall deny respondent access to, and
| ||||||
16 | prohibit respondent from inspecting, obtaining, or | ||||||
17 | attempting to
inspect or obtain, school or any other | ||||||
18 | records of the minor child
who is in the care of | ||||||
19 | petitioner.
| ||||||
20 | (16) Order for payment of shelter services. Order | ||||||
21 | respondent to
reimburse a shelter providing temporary | ||||||
22 | housing and counseling services to
the petitioner for the | ||||||
23 | cost of the services, as certified by the shelter
and | ||||||
24 | deemed reasonable by the court.
| ||||||
25 | (17) Order for injunctive relief. Enter injunctive | ||||||
26 | relief necessary
or appropriate to prevent further abuse of |
| |||||||
| |||||||
1 | a family or household member or
to effectuate one of the | ||||||
2 | granted remedies, if supported by the balance of
hardships. | ||||||
3 | If the harm to be prevented by the injunction is abuse or | ||||||
4 | any
other harm that one of the remedies listed in | ||||||
5 | paragraphs (1) through (16)
of this subsection is designed | ||||||
6 | to prevent, no further evidence is necessary
to establish | ||||||
7 | that the harm is an irreparable injury.
| ||||||
8 | (c) Relevant factors; findings.
| ||||||
9 | (1) In determining whether to grant a
specific remedy, | ||||||
10 | other than payment of support, the
court shall consider | ||||||
11 | relevant factors, including but not limited to the
| ||||||
12 | following:
| ||||||
13 | (i) the nature, frequency, severity, pattern and | ||||||
14 | consequences of the
respondent's past abuse of the | ||||||
15 | petitioner or any family or household
member, | ||||||
16 | including the concealment of his or her location in | ||||||
17 | order to evade
service of process or notice, and the | ||||||
18 | likelihood of danger of future abuse to
petitioner or
| ||||||
19 | any member of petitioner's or respondent's family or | ||||||
20 | household; and
| ||||||
21 | (ii) the danger that any minor child will be abused | ||||||
22 | or neglected or
improperly removed from the | ||||||
23 | jurisdiction, improperly concealed within the
State or | ||||||
24 | improperly separated from the child's primary | ||||||
25 | caretaker.
| ||||||
26 | (2) In comparing relative hardships resulting to the |
| |||||||
| |||||||
1 | parties from loss
of possession of the family home, the | ||||||
2 | court shall consider relevant
factors, including but not | ||||||
3 | limited to the following:
| ||||||
4 | (i) availability, accessibility, cost, safety, | ||||||
5 | adequacy, location and other
characteristics of | ||||||
6 | alternate housing for each party and any minor child or
| ||||||
7 | dependent adult in the party's care;
| ||||||
8 | (ii) the effect on the party's employment; and
| ||||||
9 | (iii) the effect on the relationship of the party, | ||||||
10 | and any minor
child or dependent adult in the party's | ||||||
11 | care, to family, school, church
and community.
| ||||||
12 | (3) Subject to the exceptions set forth in paragraph | ||||||
13 | (4) of this
subsection, the court shall make its findings | ||||||
14 | in an official record or in
writing, and shall at a minimum | ||||||
15 | set forth the following:
| ||||||
16 | (i) That the court has considered the applicable | ||||||
17 | relevant factors
described in paragraphs (1) and (2) of | ||||||
18 | this subsection.
| ||||||
19 | (ii) Whether the conduct or actions of respondent, | ||||||
20 | unless
prohibited, will likely cause irreparable harm | ||||||
21 | or continued abuse.
| ||||||
22 | (iii) Whether it is necessary to grant the | ||||||
23 | requested relief in order
to protect petitioner or | ||||||
24 | other alleged abused persons.
| ||||||
25 | (4) For purposes of issuing an ex parte emergency order | ||||||
26 | of protection,
the court, as an alternative to or as a |
| |||||||
| |||||||
1 | supplement to making the findings
described in paragraphs | ||||||
2 | (c)(3)(i) through (c)(3)(iii) of this subsection, may use
| ||||||
3 | the following procedure:
| ||||||
4 | When a verified petition for an emergency order of | ||||||
5 | protection in
accordance with the requirements of Sections | ||||||
6 | 112A-5 and 112A-17 is
presented to the court, the court | ||||||
7 | shall examine petitioner on oath or
affirmation. An | ||||||
8 | emergency order of protection shall be issued by the court
| ||||||
9 | if it appears from the contents of the petition and the | ||||||
10 | examination of
petitioner that the averments are | ||||||
11 | sufficient to indicate abuse by
respondent and to support | ||||||
12 | the granting of relief under the issuance of the
emergency | ||||||
13 | order of protection.
| ||||||
14 | (5) Never married parties. No rights or | ||||||
15 | responsibilities for a minor
child born outside of marriage | ||||||
16 | attach to a putative father until a father and
child | ||||||
17 | relationship has been established under the Illinois | ||||||
18 | Parentage Act of
1984. Absent such an adjudication, no | ||||||
19 | putative father shall be granted
temporary custody of the | ||||||
20 | minor child, visitation with the minor child, or
physical | ||||||
21 | care
and possession of the minor child, nor shall
an order | ||||||
22 | of payment for support of the minor child be entered.
| ||||||
23 | (d) Balance of hardships; findings. If the court finds that | ||||||
24 | the balance
of hardships does not support the granting of a | ||||||
25 | remedy governed by
paragraph (2), (3), (10), (11), or (16) of
| ||||||
26 | subsection (b) of this Section,
which may require such |
| |||||||
| |||||||
1 | balancing, the court's findings shall so
indicate and shall | ||||||
2 | include a finding as to whether granting the remedy will
result | ||||||
3 | in hardship to respondent that would substantially outweigh the | ||||||
4 | hardship
to petitioner
from denial of the remedy. The findings | ||||||
5 | shall be an official record or in
writing.
| ||||||
6 | (e) Denial of remedies. Denial of any remedy shall not be | ||||||
7 | based, in
whole or in part, on evidence that:
| ||||||
8 | (1) Respondent has cause for any use of force, unless | ||||||
9 | that cause
satisfies the standards for justifiable use of | ||||||
10 | force provided by Article
VII of the Criminal Code of 1961;
| ||||||
11 | (2) Respondent was voluntarily intoxicated;
| ||||||
12 | (3) Petitioner acted in self-defense or defense of | ||||||
13 | another, provided
that, if petitioner utilized force, such | ||||||
14 | force was justifiable under
Article VII of the Criminal | ||||||
15 | Code of 1961;
| ||||||
16 | (4) Petitioner did not act in self-defense or defense | ||||||
17 | of another;
| ||||||
18 | (5) Petitioner left the residence or household to avoid | ||||||
19 | further abuse
by respondent;
| ||||||
20 | (6) Petitioner did not leave the residence or household | ||||||
21 | to avoid further
abuse by respondent;
| ||||||
22 | (7) Conduct by any family or household member excused | ||||||
23 | the abuse by
respondent, unless that same conduct would | ||||||
24 | have excused such abuse if the
parties had not been family | ||||||
25 | or household members.
| ||||||
26 | (Source: P.A. 95-234, eff. 1-1-08; 95-773, eff. 1-1-09; 96-701, |
| |||||||
| |||||||
1 | eff. 1-1-10.)
| ||||||
2 | (725 ILCS 5/112A-17) (from Ch. 38, par. 112A-17)
| ||||||
3 | Sec. 112A-17. Emergency order of protection.
| ||||||
4 | (a) Prerequisites. An emergency order of protection shall | ||||||
5 | issue if
petitioner
satisfies the requirements of this | ||||||
6 | subsection for one or more of the requested
remedies. For each | ||||||
7 | remedy requested, petitioner shall establish that:
| ||||||
8 | (1) The court has jurisdiction under Section 112A-9;
| ||||||
9 | (2) The requirements of Section 112A-14 are satisfied; | ||||||
10 | and
| ||||||
11 | (3) There is good cause to grant the remedy, regardless | ||||||
12 | of prior service
of process or of notice upon the | ||||||
13 | respondent, because:
| ||||||
14 | (i) For the remedies of "prohibition of abuse" | ||||||
15 | described in
Section 112A-14(b)(1), "stay away order | ||||||
16 | and additional prohibitions" described
in Section
| ||||||
17 | 112A-14(b)(3), "removal or concealment of minor child" | ||||||
18 | described in Section
112A-14(b)(8), "order to appear" | ||||||
19 | described in Section 112A-14(b)(9), "physical
care and | ||||||
20 | possession of the minor child" described in Section | ||||||
21 | 112A-14(b)(5),
"protection of property" described in | ||||||
22 | Section 112A-14(b)(11), "prohibition
of entry" | ||||||
23 | described in Section 112A-14(b)(14), "prohibition of | ||||||
24 | firearm possession" described in Section | ||||||
25 | 112A-14(b)(14.5), "prohibition of access to
records" |
| |||||||
| |||||||
1 | described in Section 112A-14(b)(15), and "injunctive | ||||||
2 | relief"
described in Section 112A-14(b)(16), the harm | ||||||
3 | which that remedy
is intended to prevent would be | ||||||
4 | likely to occur if the respondent were given
any prior | ||||||
5 | notice, or greater notice than was actually given, of | ||||||
6 | the petitioner's
efforts to obtain judicial relief;
| ||||||
7 | (ii) For the remedy of "grant of exclusive | ||||||
8 | possession of residence"
described in Section | ||||||
9 | 112A-14(b)(2), the immediate danger of further
abuse | ||||||
10 | of petitioner by respondent,
if petitioner chooses or | ||||||
11 | had chosen to remain in the residence or household
| ||||||
12 | while respondent was given any prior notice or greater | ||||||
13 | notice than was
actually given of petitioner's efforts | ||||||
14 | to obtain judicial relief,
outweighs the hardships to | ||||||
15 | respondent of an emergency order
granting petitioner | ||||||
16 | exclusive possession of the residence or household.
| ||||||
17 | This remedy shall not be denied because petitioner has | ||||||
18 | or could obtain temporary
shelter elsewhere while | ||||||
19 | prior notice is given to respondent, unless the
| ||||||
20 | hardships to respondent from exclusion from the home | ||||||
21 | substantially outweigh
those to petitioner.
| ||||||
22 | (iii) For the remedy of "possession of personal | ||||||
23 | property"
described in
Section 112A-14(b)(10), | ||||||
24 | improper disposition of the
personal property would be | ||||||
25 | likely
to occur if respondent were given any prior | ||||||
26 | notice, or greater notice than
was actually given, of |
| |||||||
| |||||||
1 | petitioner's efforts to obtain judicial relief, or
| ||||||
2 | petitioner has an immediate and pressing need for | ||||||
3 | possession of that property.
| ||||||
4 | An emergency order may not include the counseling, legal | ||||||
5 | custody, payment
of support or monetary compensation remedies.
| ||||||
6 | (b) Appearance by respondent.
If respondent appears in | ||||||
7 | court for this hearing for an emergency order,
he or she may | ||||||
8 | elect to file a general appearance and testify. Any
resulting | ||||||
9 | order may be an emergency order, governed by this Section. | ||||||
10 | Notwithstanding the
requirements of this Section, if all | ||||||
11 | requirements of Section 112A-18 have been
met, the Court may | ||||||
12 | issue a 30-day interim order.
| ||||||
13 | (c) Emergency orders: court holidays and evenings.
| ||||||
14 | (1) Prerequisites. When the court is unavailable at the | ||||||
15 | close of
business, the petitioner may file a petition for a | ||||||
16 | 21-day emergency order
before any available circuit judge | ||||||
17 | or associate judge who may grant relief
under this Article. | ||||||
18 | If the judge finds that there is an immediate and present
| ||||||
19 | danger of abuse to petitioner and that petitioner has | ||||||
20 | satisfied the
prerequisites set forth in subsection (a) of | ||||||
21 | Section 112A-17, that judge
may issue an emergency order of | ||||||
22 | protection.
| ||||||
23 | (1.5) Issuance of order. The chief judge of the circuit | ||||||
24 | court
may designate for each county in the circuit at least | ||||||
25 | one judge to be
reasonably available to
issue orally, by | ||||||
26 | telephone, by facsimile, or otherwise, an emergency
order |
| |||||||
| |||||||
1 | of protection at all times, whether or not the court is in | ||||||
2 | session.
| ||||||
3 | (2) Certification and transfer. Any order issued under | ||||||
4 | this Section and
any documentation in support thereof shall | ||||||
5 | be certified on the next court
day to the appropriate | ||||||
6 | court. The clerk of that court shall immediately
assign a | ||||||
7 | case number, file the petition, order and other documents | ||||||
8 | with the
court and enter the order of record and file it | ||||||
9 | with the sheriff for
service, in accordance with Section | ||||||
10 | 112A-22. Filing the petition shall
commence proceedings | ||||||
11 | for further relief, under Section 112A-2.
Failure to comply | ||||||
12 | with the requirements of this subsection shall not affect
| ||||||
13 | the validity of the order.
| ||||||
14 | (Source: P.A. 90-392, eff. 1-1-98.)
| ||||||
15 | Section 10. The Illinois Domestic Violence Act of 1986 is | ||||||
16 | amended by changing Section 214 as follows:
| ||||||
17 | (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
| ||||||
18 | Sec. 214. Order of protection; remedies.
| ||||||
19 | (a) Issuance of order. If the court finds that petitioner | ||||||
20 | has been
abused by a family or household member or that | ||||||
21 | petitioner is a high-risk
adult who has been abused, neglected, | ||||||
22 | or exploited, as defined in this Act,
an order of protection | ||||||
23 | prohibiting the abuse, neglect, or exploitation
shall issue; | ||||||
24 | provided that petitioner must also satisfy the requirements of
|
| |||||||
| |||||||
1 | one of the following Sections, as appropriate: Section 217 on | ||||||
2 | emergency
orders, Section 218 on interim orders, or Section 219 | ||||||
3 | on plenary orders.
Petitioner shall not be denied an order of | ||||||
4 | protection because petitioner or
respondent is a minor. The | ||||||
5 | court, when determining whether or not to issue
an order of | ||||||
6 | protection, shall not require physical manifestations of abuse
| ||||||
7 | on the person of the victim. Modification and extension of | ||||||
8 | prior
orders of protection shall be in accordance with this | ||||||
9 | Act.
| ||||||
10 | (b) Remedies and standards. The remedies to be included in | ||||||
11 | an order of
protection shall be determined in accordance with | ||||||
12 | this Section and one of
the following Sections, as appropriate: | ||||||
13 | Section 217 on emergency orders,
Section 218 on interim orders, | ||||||
14 | and Section 219 on plenary orders. The
remedies listed in this | ||||||
15 | subsection shall be in addition to other civil or
criminal | ||||||
16 | remedies available to petitioner.
| ||||||
17 | (1) Prohibition of abuse, neglect, or exploitation. | ||||||
18 | Prohibit
respondent's harassment, interference with | ||||||
19 | personal liberty, intimidation
of a dependent, physical | ||||||
20 | abuse, or willful deprivation, neglect or
exploitation, as | ||||||
21 | defined in this Act, or stalking of the petitioner, as | ||||||
22 | defined
in Section 12-7.3 of the Criminal Code of 1961, if | ||||||
23 | such abuse, neglect,
exploitation, or stalking has | ||||||
24 | occurred or otherwise appears likely to occur if
not | ||||||
25 | prohibited.
| ||||||
26 | (2) Grant of exclusive possession of residence. |
| |||||||
| |||||||
1 | Prohibit respondent from
entering or remaining in any | ||||||
2 | residence, household, or premises of the petitioner,
| ||||||
3 | including one owned or leased by respondent, if petitioner | ||||||
4 | has a right to
occupancy thereof. The grant of exclusive | ||||||
5 | possession of the residence, household, or premises shall | ||||||
6 | not
affect title to real property, nor shall the court be | ||||||
7 | limited by the standard
set forth in Section 701 of the | ||||||
8 | Illinois Marriage and Dissolution of Marriage
Act.
| ||||||
9 | (A) Right to occupancy. A party has a right to | ||||||
10 | occupancy of a
residence or household if it is solely | ||||||
11 | or jointly owned or leased by that
party, that party's | ||||||
12 | spouse, a person with a legal duty to support that | ||||||
13 | party or
a minor child in that party's care, or by any | ||||||
14 | person or entity other than the
opposing party that | ||||||
15 | authorizes that party's occupancy (e.g., a domestic
| ||||||
16 | violence shelter). Standards set forth in subparagraph | ||||||
17 | (B) shall not preclude
equitable relief.
| ||||||
18 | (B) Presumption of hardships. If petitioner and | ||||||
19 | respondent
each has the right to occupancy of a | ||||||
20 | residence or household, the court
shall balance (i) the | ||||||
21 | hardships to respondent and any minor child or
| ||||||
22 | dependent adult in respondent's care resulting from | ||||||
23 | entry of this remedy with
(ii) the hardships to | ||||||
24 | petitioner and any minor child or dependent adult in
| ||||||
25 | petitioner's care resulting from continued exposure to | ||||||
26 | the risk of abuse
(should petitioner remain at the |
| |||||||
| |||||||
1 | residence or household) or from loss of
possession of | ||||||
2 | the residence or household (should petitioner leave to | ||||||
3 | avoid the
risk of abuse). When determining the balance | ||||||
4 | of hardships, the court shall
also take into account | ||||||
5 | the accessibility of the residence or household.
| ||||||
6 | Hardships need not be balanced if respondent does not | ||||||
7 | have a right to
occupancy.
| ||||||
8 | The balance of hardships is presumed to favor | ||||||
9 | possession by
petitioner unless the presumption is | ||||||
10 | rebutted by a preponderance of the
evidence, showing | ||||||
11 | that the hardships to respondent substantially | ||||||
12 | outweigh
the hardships to petitioner and any minor | ||||||
13 | child or dependent adult in
petitioner's care. The | ||||||
14 | court, on the request of petitioner or on its own
| ||||||
15 | motion, may order respondent to provide suitable, | ||||||
16 | accessible, alternate housing
for petitioner instead | ||||||
17 | of excluding respondent from a mutual residence or
| ||||||
18 | household.
| ||||||
19 | (3) Stay away order and additional prohibitions.
Order | ||||||
20 | respondent to stay away from petitioner or any other person
| ||||||
21 | protected by the order of protection, or prohibit | ||||||
22 | respondent from entering
or remaining present at | ||||||
23 | petitioner's school, place of employment, or other
| ||||||
24 | specified places at times when petitioner is present, or | ||||||
25 | both, if
reasonable, given the balance of hardships. | ||||||
26 | Hardships need not be balanced for
the court to enter a |
| |||||||
| |||||||
1 | stay away order or prohibit entry if respondent has no
| ||||||
2 | right to enter the premises.
| ||||||
3 | If an order of protection grants petitioner exclusive | ||||||
4 | possession
of the residence, or prohibits respondent from | ||||||
5 | entering the residence,
or orders respondent to stay away | ||||||
6 | from petitioner or other
protected persons, then the court | ||||||
7 | may allow respondent access to the
residence to remove | ||||||
8 | items of clothing and personal adornment
used exclusively | ||||||
9 | by respondent, medications, and other items as the court
| ||||||
10 | directs. The right to access shall be exercised on only one | ||||||
11 | occasion as the
court directs and in the presence of an | ||||||
12 | agreed-upon adult third party or law
enforcement officer.
| ||||||
13 | (4) Counseling. Require or recommend the respondent to | ||||||
14 | undergo
counseling for a specified duration with a social | ||||||
15 | worker, psychologist,
clinical psychologist, psychiatrist, | ||||||
16 | family service agency, alcohol or
substance abuse program, | ||||||
17 | mental health center guidance counselor, agency
providing | ||||||
18 | services to elders, program designed for domestic violence
| ||||||
19 | abusers or any other guidance service the court deems | ||||||
20 | appropriate. The Court may order the respondent in any | ||||||
21 | intimate partner relationship to report to an Illinois | ||||||
22 | Department of Human Services protocol approved partner | ||||||
23 | abuse intervention program for an assessment and to follow | ||||||
24 | all recommended treatment.
| ||||||
25 | (5) Physical care and possession of the minor child. In | ||||||
26 | order to protect
the minor child from abuse, neglect, or |
| |||||||
| |||||||
1 | unwarranted separation from the person
who has been the | ||||||
2 | minor child's primary caretaker, or to otherwise protect | ||||||
3 | the
well-being of the minor child, the court may do either | ||||||
4 | or both of the
following: (i) grant petitioner physical | ||||||
5 | care or possession of the minor child,
or both, or (ii) | ||||||
6 | order respondent to return a minor child to, or not remove | ||||||
7 | a
minor child from, the physical care of a parent or person | ||||||
8 | in loco parentis.
| ||||||
9 | If a court finds, after a hearing, that respondent has | ||||||
10 | committed abuse
(as defined in Section 103) of a minor | ||||||
11 | child, there shall be a
rebuttable presumption that | ||||||
12 | awarding physical care to respondent would not
be in the | ||||||
13 | minor child's best interest.
| ||||||
14 | (6) Temporary legal custody. Award temporary legal | ||||||
15 | custody to petitioner
in accordance with this Section, the | ||||||
16 | Illinois Marriage and Dissolution of
Marriage Act, the | ||||||
17 | Illinois Parentage Act of 1984, and this State's Uniform
| ||||||
18 | Child-Custody Jurisdiction and Enforcement Act.
| ||||||
19 | If a court finds, after a hearing, that respondent has | ||||||
20 | committed abuse (as
defined in Section 103) of a minor | ||||||
21 | child, there shall be a rebuttable
presumption that | ||||||
22 | awarding temporary legal custody to respondent would not be | ||||||
23 | in
the child's best interest.
| ||||||
24 | (7) Visitation. Determine the visitation rights, if | ||||||
25 | any, of respondent in
any case in which the court awards | ||||||
26 | physical care or temporary legal custody of
a minor child |
| |||||||
| |||||||
1 | to petitioner. The court shall restrict or deny | ||||||
2 | respondent's
visitation with a minor child if the court | ||||||
3 | finds that respondent has done or is
likely to do any of | ||||||
4 | the following: (i) abuse or endanger the minor child during
| ||||||
5 | visitation; (ii) use the visitation as an opportunity to | ||||||
6 | abuse or harass
petitioner or petitioner's family or | ||||||
7 | household members; (iii) improperly
conceal or detain the | ||||||
8 | minor child; or (iv) otherwise act in a manner that is
not | ||||||
9 | in the best interests of the minor child. The court shall | ||||||
10 | not be limited
by the standards set forth in Section 607.1 | ||||||
11 | of the Illinois Marriage and
Dissolution of Marriage Act. | ||||||
12 | If the court grants visitation, the order shall
specify | ||||||
13 | dates and times for the visitation to take place or other | ||||||
14 | specific
parameters or conditions that are appropriate. No | ||||||
15 | order for visitation shall
refer merely to the term | ||||||
16 | "reasonable visitation".
| ||||||
17 | Petitioner may deny respondent access to the minor | ||||||
18 | child if, when
respondent arrives for visitation, | ||||||
19 | respondent is under the influence of drugs
or alcohol and | ||||||
20 | constitutes a threat to the safety and well-being of
| ||||||
21 | petitioner or petitioner's minor children or is behaving in | ||||||
22 | a violent or
abusive manner.
| ||||||
23 | If necessary to protect any member of petitioner's | ||||||
24 | family or
household from future abuse, respondent shall be | ||||||
25 | prohibited from coming to
petitioner's residence to meet | ||||||
26 | the minor child for visitation, and the
parties shall |
| |||||||
| |||||||
1 | submit to the court their recommendations for reasonable
| ||||||
2 | alternative arrangements for visitation. A person may be | ||||||
3 | approved to
supervise visitation only after filing an | ||||||
4 | affidavit accepting
that responsibility and acknowledging | ||||||
5 | accountability to the court.
| ||||||
6 | (8) Removal or concealment of minor child. Prohibit | ||||||
7 | respondent from
removing a minor child from the State or | ||||||
8 | concealing the child within the State.
| ||||||
9 | (9) Order to appear. Order the respondent to appear in | ||||||
10 | court, alone
or with a minor child, to prevent abuse, | ||||||
11 | neglect, removal or concealment of
the child, to return the | ||||||
12 | child to the custody or care of the petitioner or
to permit | ||||||
13 | any court-ordered interview or examination of the child or | ||||||
14 | the
respondent.
| ||||||
15 | (10) Possession of personal property. Grant petitioner | ||||||
16 | exclusive
possession of personal property and, if | ||||||
17 | respondent has possession or
control, direct respondent to | ||||||
18 | promptly make it available to petitioner, if:
| ||||||
19 | (i) petitioner, but not respondent, owns the | ||||||
20 | property; or
| ||||||
21 | (ii) the parties own the property jointly; sharing | ||||||
22 | it would risk
abuse of petitioner by respondent or is | ||||||
23 | impracticable; and the balance of
hardships favors | ||||||
24 | temporary possession by petitioner.
| ||||||
25 | If petitioner's sole claim to ownership of the property | ||||||
26 | is that it is
marital property, the court may award |
| |||||||
| |||||||
1 | petitioner temporary possession
thereof under the | ||||||
2 | standards of subparagraph (ii) of this paragraph only if
a | ||||||
3 | proper proceeding has been filed under the Illinois | ||||||
4 | Marriage and
Dissolution of Marriage Act, as now or | ||||||
5 | hereafter amended.
| ||||||
6 | No order under this provision shall affect title to | ||||||
7 | property.
| ||||||
8 | (11) Protection of property. Forbid the respondent | ||||||
9 | from taking,
transferring, encumbering, concealing, | ||||||
10 | damaging or otherwise disposing of
any real or personal | ||||||
11 | property, except as explicitly authorized by the
court, if:
| ||||||
12 | (i) petitioner, but not respondent, owns the | ||||||
13 | property; or
| ||||||
14 | (ii) the parties own the property jointly,
and the | ||||||
15 | balance of hardships favors granting this remedy.
| ||||||
16 | If petitioner's sole claim to ownership of the property | ||||||
17 | is that it is
marital property, the court may grant | ||||||
18 | petitioner relief under subparagraph
(ii) of this | ||||||
19 | paragraph only if a proper proceeding has been filed under | ||||||
20 | the
Illinois Marriage and Dissolution of Marriage Act, as | ||||||
21 | now or hereafter amended.
| ||||||
22 | The court may further prohibit respondent from | ||||||
23 | improperly using the
financial or other resources of an | ||||||
24 | aged member of the family or household
for the profit or | ||||||
25 | advantage of respondent or of any other person.
| ||||||
26 | (11.5) Protection of animals. Grant the petitioner the |
| |||||||
| |||||||
1 | exclusive care, custody, or control of any animal owned, | ||||||
2 | possessed, leased, kept, or held by either the petitioner | ||||||
3 | or the respondent or a minor child residing in the | ||||||
4 | residence or household of either the petitioner or the | ||||||
5 | respondent and order the respondent to stay away from the | ||||||
6 | animal and forbid the respondent from taking, | ||||||
7 | transferring, encumbering, concealing, harming, or | ||||||
8 | otherwise disposing of the animal.
| ||||||
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, neglect, or exploitation.
Such losses shall | ||||||
26 | include, but not be limited to, medical expenses, lost
|
| |||||||
| |||||||
1 | earnings or other support, repair or replacement of | ||||||
2 | property damaged or taken,
reasonable attorney's fees, | ||||||
3 | court costs and moving or other travel expenses,
including | ||||||
4 | additional reasonable expenses for temporary shelter and | ||||||
5 | restaurant
meals.
| ||||||
6 | (i) Losses affecting family needs. If a party is | ||||||
7 | entitled to seek
maintenance, child support or | ||||||
8 | property distribution from the other party
under the | ||||||
9 | Illinois Marriage and Dissolution of Marriage Act, as | ||||||
10 | now or
hereafter amended, the court may order | ||||||
11 | respondent to reimburse petitioner's
actual losses, to | ||||||
12 | the extent that such reimbursement would be | ||||||
13 | "appropriate
temporary relief", as authorized by | ||||||
14 | subsection (a)(3) of Section 501 of
that Act.
| ||||||
15 | (ii) Recovery of expenses. In the case of an | ||||||
16 | improper concealment
or removal of a minor child, the | ||||||
17 | court may order respondent to pay the
reasonable | ||||||
18 | expenses incurred or to be incurred in the search for | ||||||
19 | and recovery
of the minor child, including but not | ||||||
20 | limited to legal fees, court costs,
private | ||||||
21 | investigator fees, and travel costs.
| ||||||
22 | (14) Prohibition of entry. Prohibit the respondent | ||||||
23 | from entering or
remaining in the residence or household | ||||||
24 | while the respondent is under the
influence of alcohol or | ||||||
25 | drugs and constitutes a threat to the safety and
well-being | ||||||
26 | of the petitioner or the petitioner's children.
|
| |||||||
| |||||||
1 | (14.5) Prohibition of firearm possession.
| ||||||
2 | (a) When a complaint is made
under a request for an | ||||||
3 | order of protection, that the respondent has | ||||||
4 | threatened
or is likely to use firearms illegally | ||||||
5 | against the petitioner, and the
respondent is present | ||||||
6 | in court, or has failed to appear after receiving | ||||||
7 | actual
notice, the court shall examine on oath the | ||||||
8 | petitioner, and any witnesses who
may be produced. If | ||||||
9 | the court is satisfied that there is any danger of the
| ||||||
10 | illegal use of firearms, and the respondent is present | ||||||
11 | in court, it shall issue an order that any firearms and | ||||||
12 | any Firearm Owner's Identification Card in the
| ||||||
13 | possession of the respondent, except as provided in | ||||||
14 | subsection (b), be turned
over to the local law | ||||||
15 | enforcement agency
for safekeeping. If the court is | ||||||
16 | satisfied that there is any danger of the illegal use | ||||||
17 | of firearms, and if If the respondent is not present in | ||||||
18 | court has failed to appear , the court shall
issue a | ||||||
19 | warrant for seizure of any firearm and Firearm Owner's | ||||||
20 | Identification Card in the possession of the | ||||||
21 | respondent , to be kept by the local law enforcement | ||||||
22 | agency for safekeeping, except as provided in | ||||||
23 | subsection (b) .
The period of safekeeping shall be for | ||||||
24 | a stated period of time not to exceed 2
years. The | ||||||
25 | firearm or firearms and Firearm Owner's Identification | ||||||
26 | Card shall be returned to the respondent at the end
of |
| |||||||
| |||||||
1 | the stated period or at expiration of the order of | ||||||
2 | protection, whichever is
sooner.
| ||||||
3 | (b) If the respondent is a peace officer as defined | ||||||
4 | in Section 2-13 of
the
Criminal Code of 1961, the court | ||||||
5 | shall order that any firearms used by the
respondent in | ||||||
6 | the performance of his or her duties as a
peace officer | ||||||
7 | be surrendered to
the chief law enforcement executive | ||||||
8 | of the agency in which the respondent is
employed, who | ||||||
9 | shall retain the firearms for safekeeping for the | ||||||
10 | stated period
not to exceed 2 years as set forth in the | ||||||
11 | court order.
| ||||||
12 | (c) Upon expiration of the period of safekeeping, | ||||||
13 | if the firearms or Firearm Owner's Identification Card | ||||||
14 | cannot be returned to respondent because respondent | ||||||
15 | cannot be located, fails to respond to requests to | ||||||
16 | retrieve the firearms, or is not lawfully eligible to | ||||||
17 | possess a firearm, upon petition from the local law | ||||||
18 | enforcement agency, the court may order the local law | ||||||
19 | enforcement agency to destroy the firearms, use the | ||||||
20 | firearms for training purposes, or for any other | ||||||
21 | application as deemed appropriate by the local law | ||||||
22 | enforcement agency; or that the firearms be turned over | ||||||
23 | to a third party who is lawfully eligible to possess | ||||||
24 | firearms, and who does not reside with respondent.
| ||||||
25 | (15) Prohibition of access to records. If an order of | ||||||
26 | protection
prohibits respondent from having contact with |
| |||||||
| |||||||
1 | the minor child,
or if petitioner's address is omitted | ||||||
2 | under subsection (b) of
Section 203, or if necessary to | ||||||
3 | prevent abuse or wrongful removal or
concealment of a minor | ||||||
4 | child, the order shall deny respondent access to, and
| ||||||
5 | prohibit respondent from inspecting, obtaining, or | ||||||
6 | attempting to
inspect or obtain, school or any other | ||||||
7 | records of the minor child
who is in the care of | ||||||
8 | petitioner.
| ||||||
9 | (16) Order for payment of shelter services. Order | ||||||
10 | respondent to
reimburse a shelter providing temporary | ||||||
11 | housing and counseling services to
the petitioner for the | ||||||
12 | cost of the services, as certified by the shelter
and | ||||||
13 | deemed reasonable by the court.
| ||||||
14 | (17) Order for injunctive relief. Enter injunctive | ||||||
15 | relief necessary
or appropriate to prevent further abuse of | ||||||
16 | a family or household member
or further abuse, neglect, or | ||||||
17 | exploitation of a high-risk adult with
disabilities or to | ||||||
18 | effectuate one of the granted remedies, if supported by the
| ||||||
19 | balance of hardships. If the harm to be prevented by the | ||||||
20 | injunction is abuse
or any other harm that one of the | ||||||
21 | remedies listed in paragraphs (1) through
(16) of this | ||||||
22 | subsection is designed to prevent, no further evidence is
| ||||||
23 | necessary that the harm is an irreparable injury.
| ||||||
24 | (c) Relevant factors; findings.
| ||||||
25 | (1) In determining whether to grant a specific remedy, | ||||||
26 | other than
payment of support, the court shall consider
|
| |||||||
| |||||||
1 | relevant factors, including but not limited to the | ||||||
2 | following:
| ||||||
3 | (i) the nature, frequency, severity, pattern and | ||||||
4 | consequences of the
respondent's past abuse, neglect | ||||||
5 | or exploitation of the petitioner or
any family or | ||||||
6 | household member, including the concealment of his or | ||||||
7 | her
location in order to evade service of process or | ||||||
8 | notice, and the likelihood of
danger of future abuse, | ||||||
9 | neglect, or exploitation to petitioner or any member of
| ||||||
10 | petitioner's or respondent's family or household; and
| ||||||
11 | (ii) the danger that any minor child will be abused | ||||||
12 | or neglected or
improperly removed from the | ||||||
13 | jurisdiction, improperly concealed within the
State or | ||||||
14 | improperly separated from the child's primary | ||||||
15 | caretaker.
| ||||||
16 | (2) In comparing relative hardships resulting to the | ||||||
17 | parties from loss
of possession of the family home, the | ||||||
18 | court shall consider relevant
factors, including but not | ||||||
19 | limited to the following:
| ||||||
20 | (i) availability, accessibility, cost, safety, | ||||||
21 | adequacy, location and
other characteristics of | ||||||
22 | alternate housing for each party and any minor child
or | ||||||
23 | dependent adult in the party's care;
| ||||||
24 | (ii) the effect on the party's employment; and
| ||||||
25 | (iii) the effect on the relationship of the party, | ||||||
26 | and any minor
child or dependent adult in the party's |
| |||||||
| |||||||
1 | care, to family, school, church
and community.
| ||||||
2 | (3) Subject to the exceptions set forth in paragraph | ||||||
3 | (4) of this
subsection, the court shall make its findings | ||||||
4 | in an official record or in
writing, and shall at a minimum | ||||||
5 | set forth the following:
| ||||||
6 | (i) That the court has considered the applicable | ||||||
7 | relevant factors
described in paragraphs (1) and (2) of | ||||||
8 | this subsection.
| ||||||
9 | (ii) Whether the conduct or actions of respondent, | ||||||
10 | unless
prohibited, will likely cause irreparable harm | ||||||
11 | or continued abuse.
| ||||||
12 | (iii) Whether it is necessary to grant the | ||||||
13 | requested relief in order
to protect petitioner or | ||||||
14 | other alleged abused persons.
| ||||||
15 | (4) For purposes of issuing an ex parte emergency order | ||||||
16 | of protection,
the court, as an alternative to or as a | ||||||
17 | supplement to making the findings
described in paragraphs | ||||||
18 | (c)(3)(i) through (c)(3)(iii) of this subsection, may
use | ||||||
19 | the following procedure:
| ||||||
20 | When a verified petition for an emergency order of | ||||||
21 | protection in
accordance with the requirements of Sections | ||||||
22 | 203 and 217 is
presented to the court, the court shall | ||||||
23 | examine petitioner on oath or
affirmation. An emergency | ||||||
24 | order of protection shall be issued by the court
if it | ||||||
25 | appears from the contents of the petition and the | ||||||
26 | examination of
petitioner that the averments are |
| |||||||
| |||||||
1 | sufficient to indicate abuse by
respondent and to support | ||||||
2 | the granting of relief under the issuance of the
emergency | ||||||
3 | order of protection.
| ||||||
4 | (5) Never married parties. No rights or | ||||||
5 | responsibilities for a minor
child born outside of marriage | ||||||
6 | attach to a putative father until a father and
child | ||||||
7 | relationship has been established under the Illinois | ||||||
8 | Parentage Act of
1984, the Illinois Public Aid Code, | ||||||
9 | Section 12 of the Vital Records Act, the
Juvenile Court Act | ||||||
10 | of 1987, the Probate Act of 1985, the Revised Uniform
| ||||||
11 | Reciprocal Enforcement of Support Act, the Uniform | ||||||
12 | Interstate Family Support
Act, the Expedited Child Support | ||||||
13 | Act of 1990, any judicial, administrative, or
other act of | ||||||
14 | another state or territory, any other Illinois statute, or | ||||||
15 | by any
foreign nation establishing the father and child | ||||||
16 | relationship, any other
proceeding substantially in | ||||||
17 | conformity with the Personal Responsibility and
Work | ||||||
18 | Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), | ||||||
19 | or where both
parties appeared in open court or at an | ||||||
20 | administrative hearing acknowledging
under
oath or | ||||||
21 | admitting by affirmation the existence of a father and | ||||||
22 | child
relationship.
Absent such an adjudication, finding, | ||||||
23 | or acknowledgement, no putative
father shall be granted
| ||||||
24 | temporary custody of the minor child, visitation with the | ||||||
25 | minor child, or
physical care and possession of the minor | ||||||
26 | child, nor shall an order of payment
for support of the |
| |||||||
| |||||||
1 | minor child be entered.
| ||||||
2 | (d) Balance of hardships; findings. If the court finds that | ||||||
3 | the balance
of hardships does not support the granting of a | ||||||
4 | remedy governed by
paragraph (2), (3), (10), (11), or (16) of | ||||||
5 | subsection (b) of this Section,
which may require such | ||||||
6 | balancing, the court's findings shall so
indicate and shall | ||||||
7 | include a finding as to whether granting the remedy will
result | ||||||
8 | in hardship to respondent that would substantially outweigh the | ||||||
9 | hardship
to petitioner from denial of the remedy. The findings | ||||||
10 | shall be an official
record or in writing.
| ||||||
11 | (e) Denial of remedies. Denial of any remedy shall not be | ||||||
12 | based, in
whole or in part, on evidence that:
| ||||||
13 | (1) Respondent has cause for any use of force, unless | ||||||
14 | that cause
satisfies the standards for justifiable use of | ||||||
15 | force provided by Article
VII of the Criminal Code of 1961;
| ||||||
16 | (2) Respondent was voluntarily intoxicated;
| ||||||
17 | (3) Petitioner acted in self-defense or defense of | ||||||
18 | another, provided
that, if petitioner utilized force, such | ||||||
19 | force was justifiable under
Article VII of the Criminal | ||||||
20 | Code of 1961;
| ||||||
21 | (4) Petitioner did not act in self-defense or defense | ||||||
22 | of another;
| ||||||
23 | (5) Petitioner left the residence or household to avoid | ||||||
24 | further abuse,
neglect, or exploitation by respondent;
| ||||||
25 | (6) Petitioner did not leave the residence or household | ||||||
26 | to avoid further
abuse, neglect, or exploitation by |
| |||||||
| |||||||
1 | respondent;
| ||||||
2 | (7) Conduct by any family or household member excused | ||||||
3 | the abuse,
neglect, or exploitation by respondent, unless | ||||||
4 | that same conduct would have
excused such abuse, neglect, | ||||||
5 | or exploitation if the parties had not been
family or | ||||||
6 | household members.
| ||||||
7 | (Source: P.A. 95-234, eff. 1-1-08; 95-773, eff. 1-1-09; 96-701, | ||||||
8 | eff. 1-1-10.)
|