093_HB2524sam001

 










                                     LRB093 09826 RLC 15616 a

 1                    AMENDMENT TO HOUSE BILL 2524

 2        AMENDMENT NO.     .  Amend House Bill 2524  by  replacing
 3    everything after the enacting clause with the following:

 4        "Section  5.  The  Illinois Domestic Violence Act of 1986
 5    is amended by changing Section 214 as follows:

 6        (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
 7        Sec. 214.  Order of protection; remedies.
 8        (a)  Issuance  of  order.   If  the  court   finds   that
 9    petitioner has been abused by a family or household member or
10    that  petitioner  is  a  high-risk adult who has been abused,
11    neglected, or exploited, as defined in this Act, an order  of
12    protection  prohibiting  the  abuse, neglect, or exploitation
13    shall issue; provided that petitioner must also  satisfy  the
14    requirements   of   one   of   the   following  Sections,  as
15    appropriate: Section 217 on emergency orders, Section 218  on
16    interim orders, or Section 219 on plenary orders.  Petitioner
17    shall not be denied an order of protection because petitioner
18    or respondent is a minor. The court, when determining whether
19    or  not  to  issue  an order of protection, shall not require
20    physical manifestations of abuse on the person of the victim.
21    Modification and extension  of  prior  orders  of  protection
22    shall be in accordance with this Act.
 
                            -2-      LRB093 09826 RLC 15616 a
 1        (b)  Remedies and standards.  The remedies to be included
 2    in  an  order of protection shall be determined in accordance
 3    with this Section and  one  of  the  following  Sections,  as
 4    appropriate:  Section 217 on emergency orders, Section 218 on
 5    interim orders, and  Section  219  on  plenary  orders.   The
 6    remedies  listed  in  this subsection shall be in addition to
 7    other civil or criminal remedies available to petitioner.
 8             (1)  Prohibition of abuse, neglect, or exploitation.
 9        Prohibit  respondent's  harassment,   interference   with
10        personal  liberty,  intimidation of a dependent, physical
11        abuse, or willful deprivation, neglect  or  exploitation,
12        as defined in this Act, or stalking of the petitioner, as
13        defined  in  Section 12-7.3 of the Criminal Code of 1961,
14        if such abuse, neglect,  exploitation,  or  stalking  has
15        occurred  or  otherwise  appears  likely  to occur if not
16        prohibited.
17             (2)  Grant of  exclusive  possession  of  residence.
18        Prohibit  respondent  from  entering  or remaining in any
19        residence or household of the petitioner,  including  one
20        owned  or leased by respondent, if petitioner has a right
21        to occupancy thereof. The grant of  exclusive  possession
22        of the residence shall not affect title to real property,
23        nor  shall the court be limited by the standard set forth
24        in Section 701 of the Illinois Marriage  and  Dissolution
25        of Marriage Act.
26                  (A)  Right  to  occupancy.  A party has a right
27             to occupancy of a residence or household  if  it  is
28             solely  or  jointly  owned  or leased by that party,
29             that party's spouse, a person with a legal  duty  to
30             support  that party or a minor child in that party's
31             care, or by any person  or  entity  other  than  the
32             opposing   party   that   authorizes   that  party's
33             occupancy  (e.g.,  a  domestic  violence   shelter).
34             Standards  set  forth  in subparagraph (B) shall not
 
                            -3-      LRB093 09826 RLC 15616 a
 1             preclude equitable relief.
 2                  (B)  Presumption of hardships.   If  petitioner
 3             and  respondent each has the right to occupancy of a
 4             residence or household, the court shall balance  (i)
 5             the  hardships  to respondent and any minor child or
 6             dependent adult in respondent's care resulting  from
 7             entry  of  this  remedy  with  (ii) the hardships to
 8             petitioner and any minor child or dependent adult in
 9             petitioner's care resulting from continued  exposure
10             to  the  risk  of abuse (should petitioner remain at
11             the  residence  or  household)  or  from   loss   of
12             possession  of  the  residence  or household (should
13             petitioner leave to avoid the risk of abuse).   When
14             determining  the  balance  of  hardships,  the court
15             shall also take into account  the  accessibility  of
16             the  residence  or  household. Hardships need not be
17             balanced if respondent does  not  have  a  right  to
18             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,
27             accessible, alternate housing for petitioner instead
28             of excluding respondent from a mutual  residence  or
29             household.
30             (3)  Stay  away  order  and additional prohibitions.
31        Order respondent to stay  away  from  petitioner  or  any
32        other  person  protected  by  the order of protection, or
33        prohibit respondent from entering or remaining present at
34        petitioner's  school,  place  of  employment,  or   other
 
                            -4-      LRB093 09826 RLC 15616 a
 1        specified  places at times when petitioner is present, or
 2        both, if reasonable,  given  the  balance  of  hardships.
 3        Hardships  need  not be balanced for the court to enter a
 4        stay away order or prohibit entry if  respondent  has  no
 5        right to enter the premises.
 6             If   an   order   of  protection  grants  petitioner
 7        exclusive  possession  of  the  residence,  or  prohibits
 8        respondent  from  entering  the  residence,   or   orders
 9        respondent   to   stay  away  from  petitioner  or  other
10        protected persons, then the court  may  allow  respondent
11        access  to  the residence to remove items of clothing and
12        personal  adornment  used  exclusively   by   respondent,
13        medications,  and  other  items as the court directs. The
14        right to access shall be exercised on only  one  occasion
15        as   the   court  directs  and  in  the  presence  of  an
16        agreed-upon adult third party or law enforcement officer.
17             (4)  Counseling.    Require   or    recommend    the
18        respondent to undergo counseling for a specified duration
19        with    a    social    worker,   psychologist,   clinical
20        psychologist,  psychiatrist,   family   service   agency,
21        alcohol  or substance abuse program, mental health center
22        guidance counselor, agency providing services to  elders,
23        program  designed  for  domestic  violence abusers or any
24        other guidance service the court deems appropriate.
25             (5)  Physical  care  and  possession  of  the  minor
26        child.  In order to protect the minor child  from  abuse,
27        neglect,  or  unwarranted  separation from the person who
28        has been the  minor  child's  primary  caretaker,  or  to
29        otherwise  protect the well-being of the minor child, the
30        court may do either or both of the following:  (i)  grant
31        petitioner  physical  care  or  possession  of  the minor
32        child, or both, or (ii)  order  respondent  to  return  a
33        minor  child  to,  or  not remove a minor child from, the
34        physical care of a parent or person in loco parentis.
 
                            -5-      LRB093 09826 RLC 15616 a
 1             If a court finds, after a hearing,  that  respondent
 2        has  committed  abuse  (as  defined  in Section 103) of a
 3        minor child, there shall be a rebuttable presumption that
 4        awarding physical care to respondent would not be in  the
 5        minor child's best interest.
 6             (6)  Temporary  legal custody. Award temporary legal
 7        custody to petitioner in accordance  with  this  Section,
 8        the  Illinois  Marriage  and Dissolution of Marriage Act,
 9        the Illinois Parentage Act  of  1984,  and  this  State's
10        Uniform Child Custody Jurisdiction Act.
11             If  a  court finds, after a hearing, that respondent
12        has committed abuse (as defined  in  Section  103)  of  a
13        minor child, there shall be a rebuttable presumption that
14        awarding  temporary legal custody to respondent would not
15        be in the child's best interest.
16             (7)  Visitation.  Determine the  visitation  rights,
17        if  any,  of  respondent  in  any case in which the court
18        awards physical care or  temporary  legal  custody  of  a
19        minor  child  to petitioner.  The court shall restrict or
20        deny respondent's visitation with a minor  child  if  the
21        court  finds  that respondent has done or is likely to do
22        any of the following: (i) abuse  or  endanger  the  minor
23        child  during  visitation;  (ii) use the visitation as an
24        opportunity to abuse or harass petitioner or petitioner's
25        family or household members; (iii) improperly conceal  or
26        detain the minor child; or (iv) otherwise act in a manner
27        that  is  not  in  the best interests of the minor child.
28        The court shall not be limited by the standards set forth
29        in Section 607.1 of the Illinois Marriage and Dissolution
30        of Marriage Act.  If the  court  grants  visitation,  the
31        order shall specify dates and times for the visitation to
32        take  place  or  other  specific parameters or conditions
33        that are appropriate.   No  order  for  visitation  shall
34        refer merely to the term "reasonable visitation".
 
                            -6-      LRB093 09826 RLC 15616 a
 1             Petitioner  may  deny respondent access to the minor
 2        child  if,  when  respondent  arrives   for   visitation,
 3        respondent is under the influence of drugs or alcohol and
 4        constitutes  a  threat  to  the  safety and well-being of
 5        petitioner or petitioner's minor children or is  behaving
 6        in a violent or abusive manner.
 7             If  necessary  to protect any member of petitioner's
 8        family or household from future abuse,  respondent  shall
 9        be  prohibited  from  coming to petitioner's residence to
10        meet the minor child  for  visitation,  and  the  parties
11        shall  submit  to  the  court  their  recommendations for
12        reasonable alternative arrangements  for  visitation.   A
13        person may be approved to supervise visitation only after
14        filing  an  affidavit  accepting  that responsibility and
15        acknowledging accountability to the court.
16             (8)  Removal or concealment of minor child. Prohibit
17        respondent from removing a minor child from the State  or
18        concealing the child within the State.
19             (9)  Order  to  appear.   Order  the  respondent  to
20        appear  in court, alone or with a minor child, to prevent
21        abuse, neglect, removal or concealment of the  child,  to
22        return the child to the custody or care of the petitioner
23        or  to  permit any court-ordered interview or examination
24        of the child or the respondent.
25             (10)  Possession  of   personal   property.    Grant
26        petitioner exclusive possession of personal property and,
27        if   respondent   has   possession   or  control,  direct
28        respondent to promptly make it available  to  petitioner,
29        if:
30                  (i)  petitioner,  but  not respondent, owns the
31             property; or
32                  (ii)  the parties  own  the  property  jointly;
33             sharing   it  would  risk  abuse  of  petitioner  by
34             respondent or is impracticable; and the  balance  of
 
                            -7-      LRB093 09826 RLC 15616 a
 1             hardships favors temporary possession by petitioner.
 2             If  petitioner's  sole  claim  to  ownership  of the
 3        property is that it is marital property,  the  court  may
 4        award  petitioner  temporary possession thereof under the
 5        standards of subparagraph (ii) of this paragraph only  if
 6        a  proper  proceeding  has  been filed under the Illinois
 7        Marriage and Dissolution  of  Marriage  Act,  as  now  or
 8        hereafter amended.
 9             No  order under this provision shall affect title to
10        property.
11             (11)  Protection of property.  Forbid the respondent
12        from  taking,  transferring,   encumbering,   concealing,
13        damaging  or  otherwise disposing of any real or personal
14        property, except as explicitly authorized by  the  court,
15        if:
16                  (i)  petitioner,  but  not respondent, owns the
17             property; or
18                  (ii)  the parties own the property jointly, and
19             the  balance  of  hardships  favors  granting   this
20             remedy.
21             If  petitioner's  sole  claim  to  ownership  of the
22        property is that it is marital property,  the  court  may
23        grant  petitioner  relief under subparagraph (ii) of this
24        paragraph only if a  proper  proceeding  has  been  filed
25        under  the  Illinois Marriage and Dissolution of Marriage
26        Act, as now or hereafter amended.
27             The  court  may  further  prohibit  respondent  from
28        improperly using the financial or other resources  of  an
29        aged  member of the family or household for the profit or
30        advantage of respondent or of any other person.
31             (12)  Order   for   payment   of   support.    Order
32        respondent to pay temporary support for the petitioner or
33        any child in the petitioner's care or custody,  when  the
34        respondent has a legal obligation to support that person,
 
                            -8-      LRB093 09826 RLC 15616 a
 1        in  accordance with the Illinois Marriage and Dissolution
 2        of Marriage Act, which shall govern, among other matters,
 3        the amount of support,  payment  through  the  clerk  and
 4        withholding  of  income  to secure payment.  An order for
 5        child support may be granted to a petitioner with  lawful
 6        physical  care  or  custody  of  a  child, or an order or
 7        agreement for physical care or custody, prior to entry of
 8        an order for legal custody.  Such a support  order  shall
 9        expire upon entry of a valid order granting legal custody
10        to  another,  unless  otherwise  provided  in the custody
11        order.
12             (13)  Order for payment of losses. Order  respondent
13        to  pay petitioner for losses suffered as a direct result
14        of the abuse, neglect,  or  exploitation.    Such  losses
15        shall  include,  but not be limited to, medical expenses,
16        lost earnings or other support, repair or replacement  of
17        property  damaged  or  taken, reasonable attorney's fees,
18        court  costs  and  moving  or  other   travel   expenses,
19        including  additional  reasonable  expenses for temporary
20        shelter and restaurant meals.
21                  (i)  Losses affecting family needs.  If a party
22             is entitled to seek maintenance,  child  support  or
23             property distribution from the other party under the
24             Illinois  Marriage  and Dissolution of Marriage Act,
25             as now or hereafter amended,  the  court  may  order
26             respondent  to reimburse petitioner's actual losses,
27             to the  extent  that  such  reimbursement  would  be
28             "appropriate  temporary  relief",  as  authorized by
29             subsection (a)(3) of Section 501 of that Act.
30                  (ii)  Recovery of expenses.  In the case of  an
31             improper  concealment  or  removal of a minor child,
32             the court may order respondent to pay the reasonable
33             expenses incurred or to be incurred  in  the  search
34             for  and  recovery of the minor child, including but
 
                            -9-      LRB093 09826 RLC 15616 a
 1             not limited to  legal  fees,  court  costs,  private
 2             investigator fees, and travel costs.
 3             (14)  Prohibition of entry.  Prohibit the respondent
 4        from  entering or remaining in the residence or household
 5        while the respondent is under the influence of alcohol or
 6        drugs  and  constitutes  a  threat  to  the  safety   and
 7        well-being   of   the   petitioner  or  the  petitioner's
 8        children.
 9             (14.5)  Prohibition of firearm possession.
10                  (a)  When a complaint is made under  a  request
11             for  an order of protection, that the respondent has
12             threatened or is likely to  use  firearms  illegally
13             against   the  petitioner,  and  the  respondent  is
14             present in court, or  has  failed  to  appear  after
15             receiving  actual notice, the court shall examine on
16             oath the petitioner, and any witnesses  who  may  be
17             produced.   If  the court is satisfied that there is
18             any danger of the illegal use of firearms, it  shall
19             issue  an  order that any firearms in the possession
20             of the respondent, except as provided in  subsection
21             (b),  be  turned  over  to the local law enforcement
22             agency  for  safekeeping.   If  the  respondent  has
23             failed to appear, the court shall  issue  a  warrant
24             for  seizure of any firearm in the possession of the
25             respondent. The period of safekeeping shall be for a
26             stated period of time not to exceed  2  years.   The
27             firearm   or  firearms  shall  be  returned  to  the
28             respondent at the end of the  stated  period  or  at
29             expiration  of the order of protection, whichever is
30             sooner.
31                  (b)  If the respondent is a  peace  officer  as
32             defined  in  Section  2-13  of  the Criminal Code of
33             1961, the court shall order that any  firearms  used
34             by  the  respondent in the performance of his or her
 
                            -10-     LRB093 09826 RLC 15616 a
 1             duties as a peace  officer  be  surrendered  to  the
 2             chief  law  enforcement  executive  of the agency in
 3             which the respondent is employed, who  shall  retain
 4             the  firearms  for safekeeping for the stated period
 5             not to exceed 2 years as  set  forth  in  the  court
 6             order.
 7             (15)  Prohibition of access to records.  If an order
 8        of  protection  prohibits  respondent from having contact
 9        with the minor  child,  or  if  petitioner's  address  is
10        omitted  under  subsection  (b)  of  Section  203,  or if
11        necessary  to  prevent  abuse  or  wrongful  removal   or
12        concealment  of  a  minor  child,  the  order  shall deny
13        respondent  access  to,  and  prohibit  respondent   from
14        inspecting,   obtaining,  or  attempting  to  inspect  or
15        obtain, school or any other records of  the  minor  child
16        who is in the care of petitioner.
17             (16)  Order  for payment of shelter services.  Order
18        respondent to reimburse  a  shelter  providing  temporary
19        housing and counseling services to the petitioner for the
20        cost  of  the  services,  as certified by the shelter and
21        deemed reasonable by the court.
22             (17)  Order for injunctive relief.  Enter injunctive
23        relief necessary or appropriate to prevent further  abuse
24        of  a  family  or  household  member  or  further  abuse,
25        neglect,  or  exploitation  of  a  high-risk  adult  with
26        disabilities   or   to  effectuate  one  of  the  granted
27        remedies, if supported by the balance of  hardships.   If
28        the  harm  to  be prevented by the injunction is abuse or
29        any other  harm  that  one  of  the  remedies  listed  in
30        paragraphs   (1)  through  (16)  of  this  subsection  is
31        designed to prevent, no  further  evidence  is  necessary
32        that the harm is an irreparable injury.
33        (c)  Relevant factors; findings.
34             (1)  In  determining  whether  to  grant  a specific
 
                            -11-     LRB093 09826 RLC 15616 a
 1        remedy, other than payment of support,  the  court  shall
 2        consider  relevant  factors, including but not limited to
 3        the following:
 4                  (i)  the nature, frequency,  severity,  pattern
 5             and  consequences  of  the  respondent's past abuse,
 6             neglect or exploitation of  the  petitioner  or  any
 7             family    or   household   member,   including   the
 8             concealment of his or her location in order to evade
 9             service of process or notice, and the likelihood  of
10             danger  of future abuse, neglect, or exploitation to
11             petitioner  or  any  member   of   petitioner's   or
12             respondent's family or household; and
13                  (ii)  the  danger  that any minor child will be
14             abused or neglected or improperly removed  from  the
15             jurisdiction,  improperly concealed within the State
16             or improperly separated  from  the  child's  primary
17             caretaker.
18             (2)  In  comparing  relative  hardships resulting to
19        the parties from loss of possession of the  family  home,
20        the  court shall consider relevant factors, including but
21        not limited to the following:
22                  (i)  availability, accessibility, cost, safety,
23             adequacy,  location  and  other  characteristics  of
24             alternate housing for each party and any minor child
25             or dependent adult in the party's care;
26                  (ii)  the effect on the party's employment; and
27                  (iii)  the effect on the  relationship  of  the
28             party, and any minor child or dependent adult in the
29             party's   care,   to   family,  school,  church  and
30             community.
31             (3)  Subject  to  the  exceptions   set   forth   in
32        paragraph  (4)  of  this subsection, the court shall make
33        its findings in an official record  or  in  writing,  and
34        shall at a minimum set forth the following:
 
                            -12-     LRB093 09826 RLC 15616 a
 1                  (i)  That   the   court   has   considered  the
 2             applicable relevant factors described in  paragraphs
 3             (1) and (2) of this subsection.
 4                  (ii)  Whether   the   conduct   or  actions  of
 5             respondent, unless  prohibited,  will  likely  cause
 6             irreparable harm or continued abuse.
 7                  (iii)  Whether  it  is  necessary  to grant the
 8             requested relief in order to protect  petitioner  or
 9             other alleged abused persons.
10             (4)  For  purposes  of issuing an ex parte emergency
11        order of protection, the court, as an alternative  to  or
12        as  a  supplement  to  making  the  findings described in
13        paragraphs  (c)(3)(i)   through   (c)(3)(iii)   of   this
14        subsection, may use the following procedure:
15             When  a  verified petition for an emergency order of
16        protection  in  accordance  with  the   requirements   of
17        Sections 203 and 217 is presented to the court, the court
18        shall  examine  petitioner  on  oath  or affirmation.  An
19        emergency order of protection  shall  be  issued  by  the
20        court if it appears from the contents of the petition and
21        the  examination  of  petitioner  that  the averments are
22        sufficient to indicate abuse by respondent and to support
23        the  granting  of  relief  under  the  issuance  of   the
24        emergency order of protection.
25             (5)  Never    married   parties.    No   rights   or
26        responsibilities  for  a  minor  child  born  outside  of
27        marriage attach to a putative father until a  father  and
28        child   relationship   has  been  established  under  the
29        Illinois Parentage Act of 1984, the Illinois  Public  Aid
30        Code,  Section  12 of the Vital Records Act, the Juvenile
31        Court Act of 1987, the Probate Act of 1985,  the  Revised
32        Uniform   Reciprocal  Enforcement  of  Support  Act,  the
33        Uniform Interstate  Family  Support  Act,  the  Expedited
34        Child  Support Act of 1990, any judicial, administrative,
 
                            -13-     LRB093 09826 RLC 15616 a
 1        or other act of another state  or  territory,  any  other
 2        Illinois  statute,  or by any foreign nation establishing
 3        the father and child relationship, any  other  proceeding
 4        substantially    in    conformity   with   the   Personal
 5        Responsibility and Work Opportunity Reconciliation Act of
 6        1996 (Pub. L. 104-193), or where both parties appeared in
 7        open court or at an administrative hearing  acknowledging
 8        under   oath or admitting by affirmation the existence of
 9        a  father  and  child  relationship.   Absent   such   an
10        adjudication,  finding,  or  acknowledgement, no putative
11        father shall be granted temporary custody  of  the  minor
12        child,  visitation with the minor child, or physical care
13        and possession of the minor child, nor shall an order  of
14        payment for support of the minor child be entered.
15        (d)  Balance  of hardships; findings.  If the court finds
16    that the balance of hardships does not support  the  granting
17    of  a  remedy  governed by paragraph (2), (3), (10), (11), or
18    (16) of subsection (b) of this  Section,  which  may  require
19    such  balancing,  the  court's findings shall so indicate and
20    shall include a finding as to  whether  granting  the  remedy
21    will   result   in   hardship   to   respondent   that  would
22    substantially outweigh the hardship to petitioner from denial
23    of the remedy. The findings shall be an official record or in
24    writing.
25        (e)  Denial of remedies.  Denial of any remedy shall  not
26    be based, in whole or in part, on evidence that:
27             (1)  Respondent  has  cause  for  any  use of force,
28        unless that cause satisfies the standards for justifiable
29        use of force provided by Article VII of the Criminal Code
30        of 1961;
31             (2)  Respondent was voluntarily intoxicated;
32             (3)  Petitioner acted in self-defense or defense  of
33        another,  provided  that,  if  petitioner utilized force,
34        such force was  justifiable  under  Article  VII  of  the
 
                            -14-     LRB093 09826 RLC 15616 a
 1        Criminal Code of 1961;
 2             (4)  Petitioner  did  not  act  in  self-defense  or
 3        defense of another;
 4             (5)  Petitioner  left  the residence or household to
 5        avoid  further  abuse,  neglect,   or   exploitation   by
 6        respondent;
 7             (6)  Petitioner  did  not  leave  the  residence  or
 8        household   to   avoid   further   abuse,   neglect,   or
 9        exploitation by respondent;
10             (7)  Conduct  by  any  family  or  household  member
11        excused   the   abuse,   neglect,   or   exploitation  by
12        respondent, unless that same conduct would  have  excused
13        such  abuse,  neglect, or exploitation if the parties had
14        not been family or household members.
15    (Source: P.A. 89-367, eff. 1-1-96; 90-118, eff. 1-1-98.)".