Sen. Cheryl Axley

Filed: 3/21/2006

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 5216

2     AMENDMENT NO. ______. Amend House Bill 5216 by replacing
3 everything after the enacting clause with the following:
 
4     "Section 5. The Firearm Owners Identification Card Act is
5 amended by changing Section 8 and by adding Section 8.2 as
6 follows:
 
7     (430 ILCS 65/8)  (from Ch. 38, par. 83-8)
8     Sec. 8. The Department of State Police has authority to
9 deny an application for or to revoke and seize a Firearm
10 Owner's Identification Card previously issued under this Act
11 only if the Department finds that the applicant or the person
12 to whom such card was issued is or was at the time of issuance:
13     (a) A person under 21 years of age who has been convicted
14 of a misdemeanor other than a traffic offense or adjudged
15 delinquent;
16     (b) A person under 21 years of age who does not have the
17 written consent of his parent or guardian to acquire and
18 possess firearms and firearm ammunition, or whose parent or
19 guardian has revoked such written consent, or where such parent
20 or guardian does not qualify to have a Firearm Owner's
21 Identification Card;
22     (c) A person convicted of a felony under the laws of this
23 or any other jurisdiction;
24     (d) A person addicted to narcotics;

 

 

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1     (e) A person who has been a patient of a mental institution
2 within the past 5 years;
3     (f) A person whose mental condition is of such a nature
4 that it poses a clear and present danger to the applicant, any
5 other person or persons or the community;
6     For the purposes of this Section, "mental condition" means
7 a state of mind manifested by violent, suicidal, threatening or
8 assaultive behavior.
9     (g) A person who is mentally retarded;
10     (h) A person who intentionally makes a false statement in
11 the Firearm Owner's Identification Card application;
12     (i) An alien who is unlawfully present in the United States
13 under the laws of the United States;
14     (i-5) An alien who has been admitted to the United States
15 under a non-immigrant visa (as that term is defined in Section
16 101(a)(26) of the Immigration and Nationality Act (8 U.S.C.
17 1101(a)(26))), except that this subsection (i-5) does not apply
18 to any alien who has been lawfully admitted to the United
19 States under a non-immigrant visa if that alien is:
20         (1) admitted to the United States for lawful hunting or
21     sporting purposes;
22         (2) an official representative of a foreign government
23     who is:
24             (A) accredited to the United States Government or
25         the Government's mission to an international
26         organization having its headquarters in the United
27         States; or
28             (B) en route to or from another country to which
29         that alien is accredited;
30         (3) an official of a foreign government or
31     distinguished foreign visitor who has been so designated by
32     the Department of State;
33         (4) a foreign law enforcement officer of a friendly
34     foreign government entering the United States on official

 

 

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1     business; or
2         (5) one who has received a waiver from the Attorney
3     General of the United States pursuant to 18 U.S.C.
4     922(y)(3);
5     (j) (Blank) A person who is subject to an existing order of
6 protection prohibiting him or her from possessing a firearm;
7     (k) A person who has been convicted within the past 5 years
8 of battery, assault, aggravated assault, violation of an order
9 of protection, or a substantially similar offense in another
10 jurisdiction, in which a firearm was used or possessed;
11     (l) A person who has been convicted of domestic battery or
12 a substantially similar offense in another jurisdiction
13 committed on or after January 1, 1998;
14     (m) A person who has been convicted within the past 5 years
15 of domestic battery or a substantially similar offense in
16 another jurisdiction committed before January 1, 1998;
17     (n) A person who is prohibited from acquiring or possessing
18 firearms or firearm ammunition by any Illinois State statute or
19 by federal law;
20     (o) A minor subject to a petition filed under Section 5-520
21 of the Juvenile Court Act of 1987 alleging that the minor is a
22 delinquent minor for the commission of an offense that if
23 committed by an adult would be a felony; or
24     (p) An adult who had been adjudicated a delinquent minor
25 under the Juvenile Court Act of 1987 for the commission of an
26 offense that if committed by an adult would be a felony.
27 (Source: P.A. 92-854, eff. 12-5-02; 93-367, eff. 1-1-04.)
 
28     (430 ILCS 65/8.2 new)
29     Sec. 8.2. Firearm Owner's Identification Card denial or
30 revocation. The Department of State Police shall deny an
31 application or shall revoke and seize a Firearm Owner's
32 Identification Card previously issued under this Act if the
33 Department finds that the applicant or person to whom such card

 

 

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1 was issued is or was at the time of issuance subject to an
2 existing order of protection.
 
3     Section 10. The Code of Criminal Procedure of 1963 is
4 amended by changing Section 112A-14 as follows:
 
5     (725 ILCS 5/112A-14)  (from Ch. 38, par. 112A-14)
6     Sec. 112A-14. Order of protection; remedies.
7     (a) Issuance of order. If the court finds that petitioner
8 has been abused by a family or household member, as defined in
9 this Article, an order of protection prohibiting such abuse
10 shall issue; provided that petitioner must also satisfy the
11 requirements of one of the following Sections, as appropriate:
12 Section 112A-17 on emergency orders, Section 112A-18 on interim
13 orders, or Section 112A-19 on plenary orders. Petitioner shall
14 not be denied an order of protection because petitioner or
15 respondent is a minor. The court, when determining whether or
16 not to issue an order of protection, shall not require physical
17 manifestations of abuse on the person of the victim.
18 Modification and extension of prior orders of protection shall
19 be in accordance with this Article.
20     (b) Remedies and standards. The remedies to be included in
21 an order of protection shall be determined in accordance with
22 this Section and one of the following Sections, as appropriate:
23 Section 112A-17 on emergency orders, Section 112A-18 on interim
24 orders, and Section 112A-19 on plenary orders. The remedies
25 listed in this subsection shall be in addition to other civil
26 or criminal remedies available to petitioner.
27         (1) Prohibition of abuse. Prohibit respondent's
28     harassment, interference with personal liberty,
29     intimidation of a dependent, physical abuse or willful
30     deprivation, as defined in this Article, if such abuse has
31     occurred or otherwise appears likely to occur if not
32     prohibited.

 

 

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1         (2) Grant of exclusive possession of residence.
2     Prohibit respondent from entering or remaining in any
3     residence or household of the petitioner, including one
4     owned or leased by respondent, if petitioner has a right to
5     occupancy thereof. The grant of exclusive possession of the
6     residence shall not affect title to real property, nor
7     shall the court be limited by the standard set forth in
8     Section 701 of the Illinois Marriage and Dissolution of
9     Marriage Act.
10             (A) Right to occupancy. A party has a right to
11         occupancy of a residence or household if it is solely
12         or jointly owned or leased by that party, that party's
13         spouse, a person with a legal duty to support that
14         party or a minor child in that party's care, or by any
15         person or entity other than the opposing party that
16         authorizes that party's occupancy (e.g., a domestic
17         violence shelter). Standards set forth in subparagraph
18         (B) shall not preclude equitable relief.
19             (B) Presumption of hardships. If petitioner and
20         respondent each has the right to occupancy of a
21         residence or household, the court shall balance (i) the
22         hardships to respondent and any minor child or
23         dependent adult in respondent's care resulting from
24         entry of this remedy with (ii) the hardships to
25         petitioner and any minor child or dependent adult in
26         petitioner's care resulting from continued exposure to
27         the risk of abuse (should petitioner remain at the
28         residence or household) or from loss of possession of
29         the residence or household (should petitioner leave to
30         avoid the risk of abuse). When determining the balance
31         of hardships, the court shall also take into account
32         the accessibility of the residence or household.
33         Hardships need not be balanced if respondent does not
34         have a right to occupancy.

 

 

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1             The balance of hardships is presumed to favor
2         possession by petitioner unless the presumption is
3         rebutted by a preponderance of the evidence, showing
4         that the hardships to respondent substantially
5         outweigh the hardships to petitioner and any minor
6         child or dependent adult in petitioner's care. The
7         court, on the request of petitioner or on its own
8         motion, may order respondent to provide suitable,
9         accessible, alternate housing for petitioner instead
10         of excluding respondent from a mutual residence or
11         household.
12         (3) Stay away order and additional prohibitions. Order
13     respondent to stay away from petitioner or any other person
14     protected by the order of protection, or prohibit
15     respondent from entering or remaining present at
16     petitioner's school, place of employment, or other
17     specified places at times when petitioner is present, or
18     both, if reasonable, given the balance of hardships.
19     Hardships need not be balanced for the court to enter a
20     stay away order or prohibit entry if respondent has no
21     right to enter the premises.
22         If an order of protection grants petitioner exclusive
23     possession of the residence, or prohibits respondent from
24     entering the residence, or orders respondent to stay away
25     from petitioner or other protected persons, then the court
26     may allow respondent access to the residence to remove
27     items of clothing and personal adornment used exclusively
28     by respondent, medications, and other items as the court
29     directs. The right to access shall be exercised on only one
30     occasion as the court directs and in the presence of an
31     agreed-upon adult third party or law enforcement officer.
32         (4) Counseling. Require or recommend the respondent to
33     undergo counseling for a specified duration with a social
34     worker, psychologist, clinical psychologist, psychiatrist,

 

 

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1     family service agency, alcohol or substance abuse program,
2     mental health center guidance counselor, agency providing
3     services to elders, program designed for domestic violence
4     abusers or any other guidance service the court deems
5     appropriate.
6         (5) Physical care and possession of the minor child. In
7     order to protect the minor child from abuse, neglect, or
8     unwarranted separation from the person who has been the
9     minor child's primary caretaker, or to otherwise protect
10     the well-being of the minor child, the court may do either
11     or both of the following: (i) grant petitioner physical
12     care or possession of the minor child, or both, or (ii)
13     order respondent to return a minor child to, or not remove
14     a minor child from, the physical care of a parent or person
15     in loco parentis.
16         If a court finds, after a hearing, that respondent has
17     committed abuse (as defined in Section 112A-3) of a minor
18     child, there shall be a rebuttable presumption that
19     awarding physical care to respondent would not be in the
20     minor child's best interest.
21         (6) Temporary legal custody. Award temporary legal
22     custody to petitioner in accordance with this Section, the
23     Illinois Marriage and Dissolution of Marriage Act, the
24     Illinois Parentage Act of 1984, and this State's Uniform
25     Child-Custody Jurisdiction and Enforcement Act.
26         If a court finds, after a hearing, that respondent has
27     committed abuse (as defined in Section 112A-3) of a minor
28     child, there shall be a rebuttable presumption that
29     awarding temporary legal custody to respondent would not be
30     in the child's best interest.
31         (7) Visitation. Determine the visitation rights, if
32     any, of respondent in any case in which the court awards
33     physical care or temporary legal custody of a minor child
34     to petitioner. The court shall restrict or deny

 

 

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1     respondent's visitation with a minor child if the court
2     finds that respondent has done or is likely to do any of
3     the following: (i) abuse or endanger the minor child during
4     visitation; (ii) use the visitation as an opportunity to
5     abuse or harass petitioner or petitioner's family or
6     household members; (iii) improperly conceal or detain the
7     minor child; or (iv) otherwise act in a manner that is not
8     in the best interests of the minor child. The court shall
9     not be limited by the standards set forth in Section 607.1
10     of the Illinois Marriage and Dissolution of Marriage Act.
11     If the court grants visitation, the order shall specify
12     dates and times for the visitation to take place or other
13     specific parameters or conditions that are appropriate. No
14     order for visitation shall refer merely to the term
15     "reasonable visitation".
16         Petitioner may deny respondent access to the minor
17     child if, when respondent arrives for visitation,
18     respondent is under the influence of drugs or alcohol and
19     constitutes a threat to the safety and well-being of
20     petitioner or petitioner's minor children or is behaving in
21     a violent or abusive manner.
22         If necessary to protect any member of petitioner's
23     family or household from future abuse, respondent shall be
24     prohibited from coming to petitioner's residence to meet
25     the minor child for visitation, and the parties shall
26     submit to the court their recommendations for reasonable
27     alternative arrangements for visitation. A person may be
28     approved to supervise visitation only after filing an
29     affidavit accepting that responsibility and acknowledging
30     accountability to the court.
31         (8) Removal or concealment of minor child. Prohibit
32     respondent from removing a minor child from the State or
33     concealing the child within the State.
34         (9) Order to appear. Order the respondent to appear in

 

 

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1     court, alone or with a minor child, to prevent abuse,
2     neglect, removal or concealment of the child, to return the
3     child to the custody or care of the petitioner or to permit
4     any court-ordered interview or examination of the child or
5     the respondent.
6         (10) Possession of personal property. Grant petitioner
7     exclusive possession of personal property and, if
8     respondent has possession or control, direct respondent to
9     promptly make it available to petitioner, if:
10             (i) petitioner, but not respondent, owns the
11         property; or
12             (ii) the parties own the property jointly; sharing
13         it would risk abuse of petitioner by respondent or is
14         impracticable; and the balance of hardships favors
15         temporary possession by petitioner.
16         If petitioner's sole claim to ownership of the property
17     is that it is marital property, the court may award
18     petitioner temporary possession thereof under the
19     standards of subparagraph (ii) of this paragraph only if a
20     proper proceeding has been filed under the Illinois
21     Marriage and Dissolution of Marriage Act, as now or
22     hereafter amended.
23         No order under this provision shall affect title to
24     property.
25         (11) Protection of property. Forbid the respondent
26     from taking, transferring, encumbering, concealing,
27     damaging or otherwise disposing of any real or personal
28     property, except as explicitly authorized by the court, if:
29             (i) petitioner, but not respondent, owns the
30         property; or
31             (ii) the parties own the property jointly, and the
32         balance of hardships favors granting this remedy.
33         If petitioner's sole claim to ownership of the property
34     is that it is marital property, the court may grant

 

 

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1     petitioner relief under subparagraph (ii) of this
2     paragraph only if a proper proceeding has been filed under
3     the Illinois Marriage and Dissolution of Marriage Act, as
4     now or hereafter amended.
5         The court may further prohibit respondent from
6     improperly using the financial or other resources of an
7     aged member of the family or household for the profit or
8     advantage of respondent or of any other person.
9         (12) Order for payment of support. Order respondent to
10     pay temporary support for the petitioner or any child in
11     the petitioner's care or custody, when the respondent has a
12     legal obligation to support that person, in accordance with
13     the Illinois Marriage and Dissolution of Marriage Act,
14     which shall govern, among other matters, the amount of
15     support, payment through the clerk and withholding of
16     income to secure payment. An order for child support may be
17     granted to a petitioner with lawful physical care or
18     custody of a child, or an order or agreement for physical
19     care or custody, prior to entry of an order for legal
20     custody. Such a support order shall expire upon entry of a
21     valid order granting legal custody to another, unless
22     otherwise provided in the custody order.
23         (13) Order for payment of losses. Order respondent to
24     pay petitioner for losses suffered as a direct result of
25     the abuse. Such losses shall include, but not be limited
26     to, medical expenses, lost earnings or other support,
27     repair or replacement of property damaged or taken,
28     reasonable attorney's fees, court costs and moving or other
29     travel expenses, including additional reasonable expenses
30     for temporary shelter and restaurant meals.
31             (i) Losses affecting family needs. If a party is
32         entitled to seek maintenance, child support or
33         property distribution from the other party under the
34         Illinois Marriage and Dissolution of Marriage Act, as

 

 

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1         now or hereafter amended, the court may order
2         respondent to reimburse petitioner's actual losses, to
3         the extent that such reimbursement would be
4         "appropriate temporary relief", as authorized by
5         subsection (a)(3) of Section 501 of that Act.
6             (ii) Recovery of expenses. In the case of an
7         improper concealment or removal of a minor child, the
8         court may order respondent to pay the reasonable
9         expenses incurred or to be incurred in the search for
10         and recovery of the minor child, including but not
11         limited to legal fees, court costs, private
12         investigator fees, and travel costs.
13         (14) Prohibition of entry. Prohibit the respondent
14     from entering or remaining in the residence or household
15     while the respondent is under the influence of alcohol or
16     drugs and constitutes a threat to the safety and well-being
17     of the petitioner or the petitioner's children.
18         (14.5) Prohibition of firearm possession. (a) When a
19     complaint is made under a request for an order of
20     protection, that the respondent has threatened or is likely
21     to use firearms illegally against the petitioner, and the
22     respondent is present in court, or has failed to appear
23     after receiving actual notice, the court shall examine on
24     oath the petitioner, and any witnesses who may be produced.
25     If the court is satisfied that there is any danger of the
26     illegal use of firearms, it shall include in the order of
27     protection the requirement that any firearms and any
28     Firearm Owner's Identification Card in the possession of
29     the respondent, except as provided in subsection (b), be
30     turned over to the local law enforcement agency for
31     safekeeping. If the respondent fails to appear, or refuses
32     or fails to surrender his or her firearms or Firearm
33     Owner's Identification Card, the court shall issue a
34     warrant for seizure of any firearm and any Firearm Owner's

 

 

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1     Identification Card in the possession of the respondent.
2     The period of safekeeping shall be for a stated period of
3     time not to exceed 2 years. The firearm or firearms and any
4     Firearm Owner's Identification Card shall be returned to
5     the respondent at the end of the stated period or at
6     expiration of the order of protection, whichever is sooner.
7     (b) If the respondent is a peace officer as defined in
8     Section 2-13 of the Criminal Code of 1961, the court shall
9     order that any firearms used by the respondent in the
10     performance of his or her duties as a peace officer be
11     surrendered to the chief law enforcement executive of the
12     agency in which the respondent is employed, who shall
13     retain the firearms for safekeeping for the stated period
14     not to exceed 2 years as set forth in the court order.
15         (15) Prohibition of access to records. If an order of
16     protection prohibits respondent from having contact with
17     the minor child, or if petitioner's address is omitted
18     under subsection (b) of Section 112A-5, or if necessary to
19     prevent abuse or wrongful removal or concealment of a minor
20     child, the order shall deny respondent access to, and
21     prohibit respondent from inspecting, obtaining, or
22     attempting to inspect or obtain, school or any other
23     records of the minor child who is in the care of
24     petitioner.
25         (16) Order for payment of shelter services. Order
26     respondent to reimburse a shelter providing temporary
27     housing and counseling services to the petitioner for the
28     cost of the services, as certified by the shelter and
29     deemed reasonable by the court.
30         (17) Order for injunctive relief. Enter injunctive
31     relief necessary or appropriate to prevent further abuse of
32     a family or household member or to effectuate one of the
33     granted remedies, if supported by the balance of hardships.
34     If the harm to be prevented by the injunction is abuse or

 

 

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1     any other harm that one of the remedies listed in
2     paragraphs (1) through (16) of this subsection is designed
3     to prevent, no further evidence is necessary to establish
4     that the harm is an irreparable injury.
5     (c) Relevant factors; findings.
6         (1) In determining whether to grant a specific remedy,
7     other than payment of support, the court shall consider
8     relevant factors, including but not limited to the
9     following:
10             (i) the nature, frequency, severity, pattern and
11         consequences of the respondent's past abuse of the
12         petitioner or any family or household member,
13         including the concealment of his or her location in
14         order to evade service of process or notice, and the
15         likelihood of danger of future abuse to petitioner or
16         any member of petitioner's or respondent's family or
17         household; and
18             (ii) the danger that any minor child will be abused
19         or neglected or improperly removed from the
20         jurisdiction, improperly concealed within the State or
21         improperly separated from the child's primary
22         caretaker.
23         (2) In comparing relative hardships resulting to the
24     parties from loss of possession of the family home, the
25     court shall consider relevant factors, including but not
26     limited to the following:
27             (i) availability, accessibility, cost, safety,
28         adequacy, location and other characteristics of
29         alternate housing for each party and any minor child or
30         dependent adult in the party's care;
31             (ii) the effect on the party's employment; and
32             (iii) the effect on the relationship of the party,
33         and any minor child or dependent adult in the party's
34         care, to family, school, church and community.

 

 

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1         (3) Subject to the exceptions set forth in paragraph
2     (4) of this subsection, the court shall make its findings
3     in an official record or in writing, and shall at a minimum
4     set forth the following:
5             (i) That the court has considered the applicable
6         relevant factors described in paragraphs (1) and (2) of
7         this subsection.
8             (ii) Whether the conduct or actions of respondent,
9         unless prohibited, will likely cause irreparable harm
10         or continued abuse.
11             (iii) Whether it is necessary to grant the
12         requested relief in order to protect petitioner or
13         other alleged abused persons.
14         (4) For purposes of issuing an ex parte emergency order
15     of protection, the court, as an alternative to or as a
16     supplement to making the findings described in paragraphs
17     (c)(3)(i) through (c)(3)(iii) of this subsection, may use
18     the following procedure:
19         When a verified petition for an emergency order of
20     protection in accordance with the requirements of Sections
21     112A-5 and 112A-17 is presented to the court, the court
22     shall examine petitioner on oath or affirmation. An
23     emergency order of protection shall be issued by the court
24     if it appears from the contents of the petition and the
25     examination of petitioner that the averments are
26     sufficient to indicate abuse by respondent and to support
27     the granting of relief under the issuance of the emergency
28     order of protection.
29         (5) Never married parties. No rights or
30     responsibilities for a minor child born outside of marriage
31     attach to a putative father until a father and child
32     relationship has been established under the Illinois
33     Parentage Act of 1984. Absent such an adjudication, no
34     putative father shall be granted temporary custody of the

 

 

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1     minor child, visitation with the minor child, or physical
2     care and possession of the minor child, nor shall an order
3     of payment for support of the minor child be entered.
4     (d) Balance of hardships; findings. If the court finds that
5 the balance of hardships does not support the granting of a
6 remedy governed by paragraph (2), (3), (10), (11), or (16) of
7 subsection (b) of this Section, which may require such
8 balancing, the court's findings shall so indicate and shall
9 include a finding as to whether granting the remedy will result
10 in hardship to respondent that would substantially outweigh the
11 hardship to petitioner from denial of the remedy. The findings
12 shall be an official record or in writing.
13     (e) Denial of remedies. Denial of any remedy shall not be
14 based, in whole or in part, on evidence that:
15         (1) Respondent has cause for any use of force, unless
16     that cause satisfies the standards for justifiable use of
17     force provided by Article VII of the Criminal Code of 1961;
18         (2) Respondent was voluntarily intoxicated;
19         (3) Petitioner acted in self-defense or defense of
20     another, provided that, if petitioner utilized force, such
21     force was justifiable under Article VII of the Criminal
22     Code of 1961;
23         (4) Petitioner did not act in self-defense or defense
24     of another;
25         (5) Petitioner left the residence or household to avoid
26     further abuse by respondent;
27         (6) Petitioner did not leave the residence or household
28     to avoid further abuse by respondent;
29         (7) Conduct by any family or household member excused
30     the abuse by respondent, unless that same conduct would
31     have excused such abuse if the parties had not been family
32     or household members.
33 (Source: P.A. 93-108, eff. 1-1-04.)
 

 

 

09400HB5216sam001 - 16 - LRB094 18261 RLC 57387 a

1     Section 15. The Illinois Domestic Violence Act of 1986 is
2 amended by changing Section 214 as follows:
 
3     (750 ILCS 60/214)  (from Ch. 40, par. 2312-14)
4     Sec. 214. Order of protection; remedies.
5     (a) Issuance of order. If the court finds that petitioner
6 has been abused by a family or household member or that
7 petitioner is a high-risk adult who has been abused, neglected,
8 or exploited, as defined in this Act, an order of protection
9 prohibiting the abuse, neglect, or exploitation shall issue;
10 provided that petitioner must also satisfy the requirements of
11 one of the following Sections, as appropriate: Section 217 on
12 emergency orders, Section 218 on interim orders, or Section 219
13 on plenary orders. Petitioner shall not be denied an order of
14 protection because petitioner or respondent is a minor. The
15 court, when determining whether or not to issue an order of
16 protection, shall not require physical manifestations of abuse
17 on the person of the victim. Modification and extension of
18 prior orders of protection shall be in accordance with this
19 Act.
20     (b) Remedies and standards. The remedies to be included in
21 an order of protection shall be determined in accordance with
22 this Section and one of the following Sections, as appropriate:
23 Section 217 on emergency orders, Section 218 on interim orders,
24 and Section 219 on plenary orders. The remedies listed in this
25 subsection shall be in addition to other civil or criminal
26 remedies available to petitioner.
27         (1) Prohibition of abuse, neglect, or exploitation.
28     Prohibit respondent's harassment, interference with
29     personal liberty, intimidation of a dependent, physical
30     abuse, or willful deprivation, neglect or exploitation, as
31     defined in this Act, or stalking of the petitioner, as
32     defined in Section 12-7.3 of the Criminal Code of 1961, if
33     such abuse, neglect, exploitation, or stalking has

 

 

09400HB5216sam001 - 17 - LRB094 18261 RLC 57387 a

1     occurred or otherwise appears likely to occur if not
2     prohibited.
3         (2) Grant of exclusive possession of residence.
4     Prohibit respondent from entering or remaining in any
5     residence or household of the petitioner, including one
6     owned or leased by respondent, if petitioner has a right to
7     occupancy thereof. The grant of exclusive possession of the
8     residence shall not affect title to real property, nor
9     shall the court be limited by the standard set forth in
10     Section 701 of the Illinois Marriage and Dissolution of
11     Marriage Act.
12             (A) Right to occupancy. A party has a right to
13         occupancy of a residence or household if it is solely
14         or jointly owned or leased by that party, that party's
15         spouse, a person with a legal duty to support that
16         party or a minor child in that party's care, or by any
17         person or entity other than the opposing party that
18         authorizes that party's occupancy (e.g., a domestic
19         violence shelter). Standards set forth in subparagraph
20         (B) shall not preclude equitable relief.
21             (B) Presumption of hardships. If petitioner and
22         respondent each has the right to occupancy of a
23         residence or household, the court shall balance (i) the
24         hardships to respondent and any minor child or
25         dependent adult in respondent's care resulting from
26         entry of this remedy with (ii) the hardships to
27         petitioner and any minor child or dependent adult in
28         petitioner's care resulting from continued exposure to
29         the risk of abuse (should petitioner remain at the
30         residence or household) or from loss of possession of
31         the residence or household (should petitioner leave to
32         avoid the risk of abuse). When determining the balance
33         of hardships, the court shall also take into account
34         the accessibility of the residence or household.

 

 

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1         Hardships need not be balanced if respondent does not
2         have a right to occupancy.
3             The balance of hardships is presumed to favor
4         possession by petitioner unless the presumption is
5         rebutted by a preponderance of the evidence, showing
6         that the hardships to respondent substantially
7         outweigh the hardships to petitioner and any minor
8         child or dependent adult in petitioner's care. The
9         court, on the request of petitioner or on its own
10         motion, may order respondent to provide suitable,
11         accessible, alternate housing for petitioner instead
12         of excluding respondent from a mutual residence or
13         household.
14         (3) Stay away order and additional prohibitions. Order
15     respondent to stay away from petitioner or any other person
16     protected by the order of protection, or prohibit
17     respondent from entering or remaining present at
18     petitioner's school, place of employment, or other
19     specified places at times when petitioner is present, or
20     both, if reasonable, given the balance of hardships.
21     Hardships need not be balanced for the court to enter a
22     stay away order or prohibit entry if respondent has no
23     right to enter the premises.
24         If an order of protection grants petitioner exclusive
25     possession of the residence, or prohibits respondent from
26     entering the residence, or orders respondent to stay away
27     from petitioner or other protected persons, then the court
28     may allow respondent access to the residence to remove
29     items of clothing and personal adornment used exclusively
30     by respondent, medications, and other items as the court
31     directs. The right to access shall be exercised on only one
32     occasion as the court directs and in the presence of an
33     agreed-upon adult third party or law enforcement officer.
34         (4) Counseling. Require or recommend the respondent to

 

 

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1     undergo counseling for a specified duration with a social
2     worker, psychologist, clinical psychologist, psychiatrist,
3     family service agency, alcohol or substance abuse program,
4     mental health center guidance counselor, agency providing
5     services to elders, program designed for domestic violence
6     abusers or any other guidance service the court deems
7     appropriate.
8         (5) Physical care and possession of the minor child. In
9     order to protect the minor child from abuse, neglect, or
10     unwarranted separation from the person who has been the
11     minor child's primary caretaker, or to otherwise protect
12     the well-being of the minor child, the court may do either
13     or both of the following: (i) grant petitioner physical
14     care or possession of the minor child, or both, or (ii)
15     order respondent to return a minor child to, or not remove
16     a minor child from, the physical care of a parent or person
17     in loco parentis.
18         If a court finds, after a hearing, that respondent has
19     committed abuse (as defined in Section 103) of a minor
20     child, there shall be a rebuttable presumption that
21     awarding physical care to respondent would not be in the
22     minor child's best interest.
23         (6) Temporary legal custody. Award temporary legal
24     custody to petitioner in accordance with this Section, the
25     Illinois Marriage and Dissolution of Marriage Act, the
26     Illinois Parentage Act of 1984, and this State's Uniform
27     Child-Custody Jurisdiction and Enforcement Act.
28         If a court finds, after a hearing, that respondent has
29     committed abuse (as defined in Section 103) of a minor
30     child, there shall be a rebuttable presumption that
31     awarding temporary legal custody to respondent would not be
32     in the child's best interest.
33         (7) Visitation. Determine the visitation rights, if
34     any, of respondent in any case in which the court awards

 

 

09400HB5216sam001 - 20 - LRB094 18261 RLC 57387 a

1     physical care or temporary legal custody of a minor child
2     to petitioner. The court shall restrict or deny
3     respondent's visitation with a minor child if the court
4     finds that respondent has done or is likely to do any of
5     the following: (i) abuse or endanger the minor child during
6     visitation; (ii) use the visitation as an opportunity to
7     abuse or harass petitioner or petitioner's family or
8     household members; (iii) improperly conceal or detain the
9     minor child; or (iv) otherwise act in a manner that is not
10     in the best interests of the minor child. The court shall
11     not be limited by the standards set forth in Section 607.1
12     of the Illinois Marriage and Dissolution of Marriage Act.
13     If the court grants visitation, the order shall specify
14     dates and times for the visitation to take place or other
15     specific parameters or conditions that are appropriate. No
16     order for visitation shall refer merely to the term
17     "reasonable visitation".
18         Petitioner may deny respondent access to the minor
19     child if, when respondent arrives for visitation,
20     respondent is under the influence of drugs or alcohol and
21     constitutes a threat to the safety and well-being of
22     petitioner or petitioner's minor children or is behaving in
23     a violent or abusive manner.
24         If necessary to protect any member of petitioner's
25     family or household from future abuse, respondent shall be
26     prohibited from coming to petitioner's residence to meet
27     the minor child for visitation, and the parties shall
28     submit to the court their recommendations for reasonable
29     alternative arrangements for visitation. A person may be
30     approved to supervise visitation only after filing an
31     affidavit accepting that responsibility and acknowledging
32     accountability to the court.
33         (8) Removal or concealment of minor child. Prohibit
34     respondent from removing a minor child from the State or

 

 

09400HB5216sam001 - 21 - LRB094 18261 RLC 57387 a

1     concealing the child within the State.
2         (9) Order to appear. Order the respondent to appear in
3     court, alone or with a minor child, to prevent abuse,
4     neglect, removal or concealment of the child, to return the
5     child to the custody or care of the petitioner or to permit
6     any court-ordered interview or examination of the child or
7     the respondent.
8         (10) Possession of personal property. Grant petitioner
9     exclusive possession of personal property and, if
10     respondent has possession or control, direct respondent to
11     promptly make it available to petitioner, if:
12             (i) petitioner, but not respondent, owns the
13         property; or
14             (ii) the parties own the property jointly; sharing
15         it would risk abuse of petitioner by respondent or is
16         impracticable; and the balance of hardships favors
17         temporary possession by petitioner.
18         If petitioner's sole claim to ownership of the property
19     is that it is marital property, the court may award
20     petitioner temporary possession thereof under the
21     standards of subparagraph (ii) of this paragraph only if a
22     proper proceeding has been filed under the Illinois
23     Marriage and Dissolution of Marriage Act, as now or
24     hereafter amended.
25         No order under this provision shall affect title to
26     property.
27         (11) Protection of property. Forbid the respondent
28     from taking, transferring, encumbering, concealing,
29     damaging or otherwise disposing of any real or personal
30     property, except as explicitly authorized by the court, if:
31             (i) petitioner, but not respondent, owns the
32         property; or
33             (ii) the parties own the property jointly, and the
34         balance of hardships favors granting this remedy.

 

 

09400HB5216sam001 - 22 - LRB094 18261 RLC 57387 a

1         If petitioner's sole claim to ownership of the property
2     is that it is marital property, the court may grant
3     petitioner relief under subparagraph (ii) of this
4     paragraph only if a proper proceeding has been filed under
5     the Illinois Marriage and Dissolution of Marriage Act, as
6     now or hereafter amended.
7         The court may further prohibit respondent from
8     improperly using the financial or other resources of an
9     aged member of the family or household for the profit or
10     advantage of respondent or of any other person.
11         (12) Order for payment of support. Order respondent to
12     pay temporary support for the petitioner or any child in
13     the petitioner's care or custody, when the respondent has a
14     legal obligation to support that person, in accordance with
15     the Illinois Marriage and Dissolution of Marriage Act,
16     which shall govern, among other matters, the amount of
17     support, payment through the clerk and withholding of
18     income to secure payment. An order for child support may be
19     granted to a petitioner with lawful physical care or
20     custody of a child, or an order or agreement for physical
21     care or custody, prior to entry of an order for legal
22     custody. Such a support order shall expire upon entry of a
23     valid order granting legal custody to another, unless
24     otherwise provided in the custody order.
25         (13) Order for payment of losses. Order respondent to
26     pay petitioner for losses suffered as a direct result of
27     the abuse, neglect, or exploitation. Such losses shall
28     include, but not be limited to, medical expenses, lost
29     earnings or other support, repair or replacement of
30     property damaged or taken, reasonable attorney's fees,
31     court costs and moving or other travel expenses, including
32     additional reasonable expenses for temporary shelter and
33     restaurant meals.
34             (i) Losses affecting family needs. If a party is

 

 

09400HB5216sam001 - 23 - LRB094 18261 RLC 57387 a

1         entitled to seek maintenance, child support or
2         property distribution from the other party under the
3         Illinois Marriage and Dissolution of Marriage Act, as
4         now or hereafter amended, the court may order
5         respondent to reimburse petitioner's actual losses, to
6         the extent that such reimbursement would be
7         "appropriate temporary relief", as authorized by
8         subsection (a)(3) of Section 501 of that Act.
9             (ii) Recovery of expenses. In the case of an
10         improper concealment or removal of a minor child, the
11         court may order respondent to pay the reasonable
12         expenses incurred or to be incurred in the search for
13         and recovery of the minor child, including but not
14         limited to legal fees, court costs, private
15         investigator fees, and travel costs.
16         (14) Prohibition of entry. Prohibit the respondent
17     from entering or remaining in the residence or household
18     while the respondent is under the influence of alcohol or
19     drugs and constitutes a threat to the safety and well-being
20     of the petitioner or the petitioner's children.
21         (14.5) Prohibition of firearm possession.
22             (a) When a complaint is made under a request for an
23         order of protection, that the respondent has
24         threatened or is likely to use firearms illegally
25         against the petitioner, and the respondent is present
26         in court, or has failed to appear after receiving
27         actual notice, the court shall examine on oath the
28         petitioner, and any witnesses who may be produced. If
29         the court is satisfied that there is any danger of the
30         illegal use of firearms, it shall issue an order that
31         any firearms and any Firearm Owner's Identification
32         Card in the possession of the respondent, except as
33         provided in subsection (b), be turned over to the local
34         law enforcement agency for safekeeping. If the

 

 

09400HB5216sam001 - 24 - LRB094 18261 RLC 57387 a

1         respondent has failed to appear, the court shall issue
2         a warrant for seizure of any firearm and Firearm
3         Owner's Identification Card in the possession of the
4         respondent. The period of safekeeping shall be for a
5         stated period of time not to exceed 2 years. The
6         firearm or firearms and Firearm Owner's Identification
7         Card shall be returned to the respondent at the end of
8         the stated period or at expiration of the order of
9         protection, whichever is sooner.
10             (b) If the respondent is a peace officer as defined
11         in Section 2-13 of the Criminal Code of 1961, the court
12         shall order that any firearms used by the respondent in
13         the performance of his or her duties as a peace officer
14         be surrendered to the chief law enforcement executive
15         of the agency in which the respondent is employed, who
16         shall retain the firearms for safekeeping for the
17         stated period not to exceed 2 years as set forth in the
18         court order.
19         (15) Prohibition of access to records. If an order of
20     protection prohibits respondent from having contact with
21     the minor child, or if petitioner's address is omitted
22     under subsection (b) of Section 203, or if necessary to
23     prevent abuse or wrongful removal or concealment of a minor
24     child, the order shall deny respondent access to, and
25     prohibit respondent from inspecting, obtaining, or
26     attempting to inspect or obtain, school or any other
27     records of the minor child who is in the care of
28     petitioner.
29         (16) Order for payment of shelter services. Order
30     respondent to reimburse a shelter providing temporary
31     housing and counseling services to the petitioner for the
32     cost of the services, as certified by the shelter and
33     deemed reasonable by the court.
34         (17) Order for injunctive relief. Enter injunctive

 

 

09400HB5216sam001 - 25 - LRB094 18261 RLC 57387 a

1     relief necessary or appropriate to prevent further abuse of
2     a family or household member or further abuse, neglect, or
3     exploitation of a high-risk adult with disabilities or to
4     effectuate one of the granted remedies, if supported by the
5     balance of hardships. If the harm to be prevented by the
6     injunction is abuse or any other harm that one of the
7     remedies listed in paragraphs (1) through (16) of this
8     subsection is designed to prevent, no further evidence is
9     necessary that the harm is an irreparable injury.
10     (c) Relevant factors; findings.
11         (1) In determining whether to grant a specific remedy,
12     other than payment of support, the court shall consider
13     relevant factors, including but not limited to the
14     following:
15             (i) the nature, frequency, severity, pattern and
16         consequences of the respondent's past abuse, neglect
17         or exploitation of the petitioner or any family or
18         household member, including the concealment of his or
19         her location in order to evade service of process or
20         notice, and the likelihood of danger of future abuse,
21         neglect, or exploitation to petitioner or any member of
22         petitioner's or respondent's family or household; and
23             (ii) the danger that any minor child will be abused
24         or neglected or improperly removed from the
25         jurisdiction, improperly concealed within the State or
26         improperly separated from the child's primary
27         caretaker.
28         (2) In comparing relative hardships resulting to the
29     parties from loss of possession of the family home, the
30     court shall consider relevant factors, including but not
31     limited to the following:
32             (i) availability, accessibility, cost, safety,
33         adequacy, location and other characteristics of
34         alternate housing for each party and any minor child or

 

 

09400HB5216sam001 - 26 - LRB094 18261 RLC 57387 a

1         dependent adult in the party's care;
2             (ii) the effect on the party's employment; and
3             (iii) the effect on the relationship of the party,
4         and any minor child or dependent adult in the party's
5         care, to family, school, church and community.
6         (3) Subject to the exceptions set forth in paragraph
7     (4) of this subsection, the court shall make its findings
8     in an official record or in writing, and shall at a minimum
9     set forth the following:
10             (i) That the court has considered the applicable
11         relevant factors described in paragraphs (1) and (2) of
12         this subsection.
13             (ii) Whether the conduct or actions of respondent,
14         unless prohibited, will likely cause irreparable harm
15         or continued abuse.
16             (iii) Whether it is necessary to grant the
17         requested relief in order to protect petitioner or
18         other alleged abused persons.
19         (4) For purposes of issuing an ex parte emergency order
20     of protection, the court, as an alternative to or as a
21     supplement to making the findings described in paragraphs
22     (c)(3)(i) through (c)(3)(iii) of this subsection, may use
23     the following procedure:
24         When a verified petition for an emergency order of
25     protection in accordance with the requirements of Sections
26     203 and 217 is presented to the court, the court shall
27     examine petitioner on oath or affirmation. An emergency
28     order of protection shall be issued by the court if it
29     appears from the contents of the petition and the
30     examination of petitioner that the averments are
31     sufficient to indicate abuse by respondent and to support
32     the granting of relief under the issuance of the emergency
33     order of protection.
34         (5) Never married parties. No rights or

 

 

09400HB5216sam001 - 27 - LRB094 18261 RLC 57387 a

1     responsibilities for a minor child born outside of marriage
2     attach to a putative father until a father and child
3     relationship has been established under the Illinois
4     Parentage Act of 1984, the Illinois Public Aid Code,
5     Section 12 of the Vital Records Act, the Juvenile Court Act
6     of 1987, the Probate Act of 1985, the Revised Uniform
7     Reciprocal Enforcement of Support Act, the Uniform
8     Interstate Family Support Act, the Expedited Child Support
9     Act of 1990, any judicial, administrative, or other act of
10     another state or territory, any other Illinois statute, or
11     by any foreign nation establishing the father and child
12     relationship, any other proceeding substantially in
13     conformity with the Personal Responsibility and Work
14     Opportunity Reconciliation Act of 1996 (Pub. L. 104-193),
15     or where both parties appeared in open court or at an
16     administrative hearing acknowledging under oath or
17     admitting by affirmation the existence of a father and
18     child relationship. Absent such an adjudication, finding,
19     or acknowledgement, no putative father shall be granted
20     temporary custody of the minor child, visitation with the
21     minor child, or physical care and possession of the minor
22     child, nor shall an order of payment for support of the
23     minor child be entered.
24     (d) Balance of hardships; findings. If the court finds that
25 the balance of hardships does not support the granting of a
26 remedy governed by paragraph (2), (3), (10), (11), or (16) of
27 subsection (b) of this Section, which may require such
28 balancing, the court's findings shall so indicate and shall
29 include a finding as to whether granting the remedy will result
30 in hardship to respondent that would substantially outweigh the
31 hardship to petitioner from denial of the remedy. The findings
32 shall be an official record or in writing.
33     (e) Denial of remedies. Denial of any remedy shall not be
34 based, in whole or in part, on evidence that:

 

 

09400HB5216sam001 - 28 - LRB094 18261 RLC 57387 a

1         (1) Respondent has cause for any use of force, unless
2     that cause satisfies the standards for justifiable use of
3     force provided by Article VII of the Criminal Code of 1961;
4         (2) Respondent was voluntarily intoxicated;
5         (3) Petitioner acted in self-defense or defense of
6     another, provided that, if petitioner utilized force, such
7     force was justifiable under Article VII of the Criminal
8     Code of 1961;
9         (4) Petitioner did not act in self-defense or defense
10     of another;
11         (5) Petitioner left the residence or household to avoid
12     further abuse, neglect, or exploitation by respondent;
13         (6) Petitioner did not leave the residence or household
14     to avoid further abuse, neglect, or exploitation by
15     respondent;
16         (7) Conduct by any family or household member excused
17     the abuse, neglect, or exploitation by respondent, unless
18     that same conduct would have excused such abuse, neglect,
19     or exploitation if the parties had not been family or
20     household members.
21 (Source: P.A. 93-108, eff. 1-1-04.)".