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Full Text of HB4747  101st General Assembly

HB4747 101ST GENERAL ASSEMBLY

  
  

 


 
101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4747

 

Introduced 2/18/2020, by Rep. Patrick Windhorst

 

SYNOPSIS AS INTRODUCED:
 
740 ILCS 21/20
740 ILCS 21/95
740 ILCS 22/202
740 ILCS 22/213
750 ILCS 60/202  from Ch. 40, par. 2312-2
750 ILCS 60/217  from Ch. 40, par. 2312-17

    Amends the Stalking No Contact Order Act, the Civil No Contact Order Act, and the Domestic Violence Act of 1986. Provides that when a petition for an emergency stalking no contact order, civil no contact order, or emergency order of protection is filed, the petition and file shall not be public and shall only be accessible to the court, petitioner, counsel of record for either party, and State's Attorney for the county until the petition is served on the respondent. Provides that when an emergency stalking no contact order, civil no contact order, emergency order of protection is granted, the petition, order, and file shall not be public and shall only be accessible to the court, petitioner, counsel of record for either party, and State's Attorney for the county until the order is served on the respondent. Effective immediately.


LRB101 17843 LNS 67278 b

 

 

A BILL FOR

 

HB4747LRB101 17843 LNS 67278 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Stalking No Contact Order Act is amended by
5changing Sections 20 and 95 as follows:
 
6    (740 ILCS 21/20)
7    Sec. 20. Commencement of action; filing fees.
8    (a) An action for a stalking no contact order is commenced:
9        (1) independently, by filing a petition for a stalking
10    no contact order in any civil court, unless specific courts
11    are designated by local rule or order; or
12        (2) in conjunction with a delinquency petition or a
13    criminal prosecution as provided in Article 112A of the
14    Code of Criminal Procedure of 1963.
15    (a-5) When a petition for an emergency stalking no contact
16order is filed, the petition and file shall not be public and
17shall be accessible only to the court, petitioner, counsel of
18record for either party, and State's Attorney for the county
19shall not be publicly available until the petition is served on
20the respondent.
21    (b) Withdrawal or dismissal of any petition for a stalking
22no contact order prior to adjudication where the petitioner is
23represented by the State shall operate as a dismissal without

 

 

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1prejudice. No action for a stalking no contact order shall be
2dismissed because the respondent is being prosecuted for a
3crime against the petitioner. For any action commenced under
4item (2) of subsection (a) of this Section, dismissal of the
5conjoined case (or a finding of not guilty) shall not require
6dismissal of the action for a stalking no contact order;
7instead, it may be treated as an independent action and, if
8necessary and appropriate, transferred to a different court or
9division.
10    (c) No fee shall be charged by the clerk of the court for
11filing petitions or modifying or certifying orders. No fee
12shall be charged by the sheriff for service by the sheriff of a
13petition, rule, motion, or order in an action commenced under
14this Section.
15    (d) The court shall provide, through the office of the
16clerk of the court, simplified forms for filing of a petition
17under this Section by any person not represented by counsel.
18(Source: P.A. 100-199, eff. 1-1-18; 101-255, eff. 1-1-20.)
 
19    (740 ILCS 21/95)
20    Sec. 95. Emergency stalking no contact order.
21    (a) An emergency stalking no contact order shall issue if
22the petitioner satisfies the requirements of this subsection
23(a). The petitioner shall establish that:
24        (1) the court has jurisdiction under Section 50;
25        (2) the requirements of Section 80 are satisfied; and

 

 

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1        (3) there is good cause to grant the remedy, regardless
2    of prior service of process or of notice upon the
3    respondent, because the harm which that remedy is intended
4    to prevent would be likely to occur if the respondent were
5    given any prior notice, or greater notice than was actually
6    given, of the petitioner's efforts to obtain judicial
7    relief.
8    An emergency stalking no contact order shall be issued by
9the court if it appears from the contents of the petition and
10the examination of the petitioner that the averments are
11sufficient to indicate stalking by the respondent and to
12support the granting of relief under the issuance of the
13stalking no contact order.
14    An emergency stalking no contact order shall be issued if
15the court finds that items (1), (2), and (3) of this subsection
16(a) are met.
17    (a-5) When a petition for an emergency stalking no contact
18order is granted, the petition, order, and file shall not be
19public and shall be accessible only to the court, petitioner,
20counsel of record of either party, and State's Attorney for the
21county shall not be publicly available until the order is
22served on the respondent.
23    (b) If the respondent appears in court for this hearing for
24an emergency order, he or she may elect to file a general
25appearance and testify. Any resulting order may be an emergency
26order, governed by this Section. Notwithstanding the

 

 

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1requirements of this Section, if all requirements of Section
2100 have been met, the court may issue a plenary order.
3    (c) Emergency orders; court holidays and evenings.
4        (1) When the court is unavailable at the close of
5    business, the petitioner may file a petition for a 21-day
6    emergency order before any available circuit judge or
7    associate judge who may grant relief under this Act. If the
8    judge finds that there is an immediate and present danger
9    of abuse against the petitioner and that the petitioner has
10    satisfied the prerequisites set forth in subsection (a),
11    that judge may issue an emergency stalking no contact
12    order.
13        (2) The chief judge of the circuit court may designate
14    for each county in the circuit at least one judge to be
15    reasonably available to issue orally, by telephone, by
16    facsimile, or otherwise, an emergency stalking no contact
17    order at all times, whether or not the court is in session.
18        (3) Any order issued under this Section and any
19    documentation in support of the order shall be certified on
20    the next court day to the appropriate court. The clerk of
21    that court shall immediately assign a case number, file the
22    petition, order, and other documents with the court, and
23    enter the order of record and file it with the sheriff for
24    service, in accordance with Section 60. Filing the petition
25    shall commence proceedings for further relief under
26    Section 20. Failure to comply with the requirements of this

 

 

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1    paragraph (3) does not affect the validity of the order.
2(Source: P.A. 101-255, eff. 1-1-20.)
 
3    Section 10. The Civil No Contact Order Act is amended by
4changing Sections 202 and 213 as follows:
 
5    (740 ILCS 22/202)
6    Sec. 202. Commencement of action; filing fees.
7    (a) An action for a civil no contact order is commenced:
8        (1) independently, by filing a petition for a civil no
9    contact order in any civil court, unless specific courts
10    are designated by local rule or order; or
11        (2) in conjunction with a delinquency petition or a
12    criminal prosecution as provided in Article 112A of the
13    Code of Criminal Procedure of 1963.
14    (a-5) When a petition for a civil no contact order is
15filed, the petition and file shall not be public and shall be
16accessible only to the court, petitioner, counsel of record for
17either party, and State's Attorney for the county shall not be
18publicly available until the petition is served on the
19respondent.
20    (b) Withdrawal or dismissal of any petition for a civil no
21contact order prior to adjudication where the petitioner is
22represented by the State shall operate as a dismissal without
23prejudice. No action for a civil no contact order shall be
24dismissed because the respondent is being prosecuted for a

 

 

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1crime against the petitioner. For any action commenced under
2item (2) of subsection (a) of this Section, dismissal of the
3conjoined case (or a finding of not guilty) shall not require
4dismissal of the action for a civil no contact order; instead,
5it may be treated as an independent action and, if necessary
6and appropriate, transferred to a different court or division.
7    (c) No fee shall be charged by the clerk of the court for
8filing petitions or modifying or certifying orders. No fee
9shall be charged by the sheriff for service by the sheriff of a
10petition, rule, motion, or order in an action commenced under
11this Section.
12    (d) The court shall provide, through the office of the
13clerk of the court, simplified forms for filing of a petition
14under this Section by any person not represented by counsel.
15(Source: P.A. 100-199, eff. 1-1-18; 101-255, eff. 1-1-20.)
 
16    (740 ILCS 22/213)
17    Sec. 213. Civil no contact order; remedies.
18    (a) If the court finds that the petitioner has been a
19victim of non-consensual sexual conduct or non-consensual
20sexual penetration, a civil no contact order shall issue;
21provided that the petitioner must also satisfy the requirements
22of Section 214 on emergency orders or Section 215 on plenary
23orders. The petitioner shall not be denied a civil no contact
24order because the petitioner or the respondent is a minor. The
25court, when determining whether or not to issue a civil no

 

 

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1contact order, may not require physical injury on the person of
2the victim. Modification and extension of prior civil no
3contact orders shall be in accordance with this Act.
4    (a-5) When a petition for a civil no contact order is
5granted, the petition, order, and file shall not be public and
6shall be accessible only to the court, petitioner, counsel of
7record for either party, and State's Attorney shall not be
8publicly available until the order is served on the respondent.
9    (b) (Blank).
10    (b-5) The court may provide relief as follows:
11        (1) prohibit the respondent from knowingly coming
12    within, or knowingly remaining within, a specified
13    distance from the petitioner;
14        (2) restrain the respondent from having any contact,
15    including nonphysical contact, with the petitioner
16    directly, indirectly, or through third parties, regardless
17    of whether those third parties know of the order;
18        (3) prohibit the respondent from knowingly coming
19    within, or knowingly remaining within, a specified
20    distance from the petitioner's residence, school, day care
21    or other specified location;
22        (4) order the respondent to stay away from any property
23    or animal owned, possessed, leased, kept, or held by the
24    petitioner and forbid the respondent from taking,
25    transferring, encumbering, concealing, harming, or
26    otherwise disposing of the property or animal; and

 

 

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1        (5) order any other injunctive relief as necessary or
2    appropriate for the protection of the petitioner.
3    (b-6) When the petitioner and the respondent attend the
4same public or private elementary, middle, or high school, the
5court when issuing a civil no contact order and providing
6relief shall consider the severity of the act, any continuing
7physical danger or emotional distress to the petitioner, the
8educational rights guaranteed to the petitioner and respondent
9under federal and State law, the availability of a transfer of
10the respondent to another school, a change of placement or a
11change of program of the respondent, the expense, difficulty,
12and educational disruption that would be caused by a transfer
13of the respondent to another school, and any other relevant
14facts of the case. The court may order that the respondent not
15attend the public, private, or non-public elementary, middle,
16or high school attended by the petitioner, order that the
17respondent accept a change of placement or program, as
18determined by the school district or private or non-public
19school, or place restrictions on the respondent's movements
20within the school attended by the petitioner. The respondent
21bears the burden of proving by a preponderance of the evidence
22that a transfer, change of placement, or change of program of
23the respondent is not available. The respondent also bears the
24burden of production with respect to the expense, difficulty,
25and educational disruption that would be caused by a transfer
26of the respondent to another school. A transfer, change of

 

 

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1placement, or change of program is not unavailable to the
2respondent solely on the ground that the respondent does not
3agree with the school district's or private or non-public
4school's transfer, change of placement, or change of program or
5solely on the ground that the respondent fails or refuses to
6consent to or otherwise does not take an action required to
7effectuate a transfer, change of placement, or change of
8program. When a court orders a respondent to stay away from the
9public, private, or non-public school attended by the
10petitioner and the respondent requests a transfer to another
11attendance center within the respondent's school district or
12private or non-public school, the school district or private or
13non-public school shall have sole discretion to determine the
14attendance center to which the respondent is transferred. In
15the event the court order results in a transfer of the minor
16respondent to another attendance center, a change in the
17respondent's placement, or a change of the respondent's
18program, the parents, guardian, or legal custodian of the
19respondent is responsible for transportation and other costs
20associated with the transfer or change.
21    (b-7) The court may order the parents, guardian, or legal
22custodian of a minor respondent to take certain actions or to
23refrain from taking certain actions to ensure that the
24respondent complies with the order. In the event the court
25orders a transfer of the respondent to another school, the
26parents or legal guardians of the respondent are responsible

 

 

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1for transportation and other costs associated with the change
2of school by the respondent.
3    (c) Denial of a remedy may not be based, in whole or in
4part, on evidence that:
5        (1) the respondent has cause for any use of force,
6    unless that cause satisfies the standards for justifiable
7    use of force provided by Article 7 of the Criminal Code of
8    2012;
9        (2) the respondent was voluntarily intoxicated;
10        (3) the petitioner acted in self-defense or defense of
11    another, provided that, if the petitioner utilized force,
12    such force was justifiable under Article 7 of the Criminal
13    Code of 2012;
14        (4) the petitioner did not act in self-defense or
15    defense of another;
16        (5) the petitioner left the residence or household to
17    avoid further non-consensual sexual conduct or
18    non-consensual sexual penetration by the respondent; or
19        (6) the petitioner did not leave the residence or
20    household to avoid further non-consensual sexual conduct
21    or non-consensual sexual penetration by the respondent.
22    (d) Monetary damages are not recoverable as a remedy.
23(Source: P.A. 101-255, eff. 1-1-20.)
 
24    Section 15. The Illinois Domestic Violence Act of 1986 is
25amended by changing Sections 202 and 217 as follows:
 

 

 

HB4747- 11 -LRB101 17843 LNS 67278 b

1    (750 ILCS 60/202)  (from Ch. 40, par. 2312-2)
2    Sec. 202. Commencement of action; filing fees; dismissal.
3    (a) How to commence action. Actions for orders of
4protection are commenced:
5        (1) Independently: By filing a petition for an order of
6    protection in any civil court, unless specific courts are
7    designated by local rule or order.
8        (2) In conjunction with another civil proceeding: By
9    filing a petition for an order of protection under the same
10    case number as another civil proceeding involving the
11    parties, including but not limited to: (i) any proceeding
12    under the Illinois Marriage and Dissolution of Marriage
13    Act, Illinois Parentage Act of 2015, Nonsupport of Spouse
14    and Children Act, Revised Uniform Reciprocal Enforcement
15    of Support Act or an action for nonsupport brought under
16    Article X of the Illinois Public Aid Code, provided that a
17    petitioner and the respondent are a party to or the subject
18    of that proceeding or (ii) a guardianship proceeding under
19    the Probate Act of 1975, or a proceeding for involuntary
20    commitment under the Mental Health and Developmental
21    Disabilities Code, or any proceeding, other than a
22    delinquency petition, under the Juvenile Court Act of 1987,
23    provided that a petitioner or the respondent is a party to
24    or the subject of such proceeding.
25        (3) In conjunction with a delinquency petition or a

 

 

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1    criminal prosecution as provided in Section 112A-20 of the
2    Code of Criminal Procedure of 1963.
3    (a-5) When a petition for an emergency order of protection
4is filed, the petition and file shall not be public and shall
5be accessible only to the court, petitioner, counsel for either
6party, and State's Attorney for the county shall not be
7publicly available until the petition is served on the
8respondent.
9    (b) Filing, certification, and service fees. No fee shall
10be charged by the clerk for filing, amending, vacating,
11certifying, or photocopying petitions or orders; or for issuing
12alias summons; or for any related filing service. No fee shall
13be charged by the sheriff for service by the sheriff of a
14petition, rule, motion, or order in an action commenced under
15this Section.
16    (c) Dismissal and consolidation. Withdrawal or dismissal
17of any petition for an order of protection prior to
18adjudication where the petitioner is represented by the State
19shall operate as a dismissal without prejudice. No action for
20an order of protection shall be dismissed because the
21respondent is being prosecuted for a crime against the
22petitioner. An independent action may be consolidated with
23another civil proceeding, as provided by paragraph (2) of
24subsection (a) of this Section. For any action commenced under
25paragraph (2) or (3) of subsection (a) of this Section,
26dismissal of the conjoined case (or a finding of not guilty)

 

 

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1shall not require dismissal of the action for the order of
2protection; instead, it may be treated as an independent action
3and, if necessary and appropriate, transferred to a different
4court or division. Dismissal of any conjoined case shall not
5affect the validity of any previously issued order of
6protection, and thereafter subsections (b)(1) and (b)(2) of
7Section 220 shall be inapplicable to such order.
8    (d) Pro se petitions. The court shall provide, through the
9office of the clerk of the court, simplified forms and clerical
10assistance to help with the writing and filing of a petition
11under this Section by any person not represented by counsel. In
12addition, that assistance may be provided by the state's
13attorney.
14    (e) As provided in this subsection, the administrative
15director of the Administrative Office of the Illinois Courts,
16with the approval of the administrative board of the courts,
17may adopt rules to establish and implement a pilot program to
18allow the electronic filing of petitions for temporary orders
19of protection and the issuance of such orders by audio-visual
20means to accommodate litigants for whom attendance in court to
21file for and obtain emergency relief would constitute an undue
22hardship or would constitute a risk of harm to the litigant.
23        (1) As used in this subsection:
24            (A) "Electronic means" means any method of
25        transmission of information between computers or other
26        machines designed for the purpose of sending or

 

 

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1        receiving electronic transmission and that allows for
2        the recipient of information to reproduce the
3        information received in a tangible medium of
4        expression.
5            (B) "Independent audio-visual system" means an
6        electronic system for the transmission and receiving
7        of audio and visual signals, including those with the
8        means to preclude the unauthorized reception and
9        decoding of the signals by commercially available
10        television receivers, channel converters, or other
11        available receiving devices.
12            (C) "Electronic appearance" means an appearance in
13        which one or more of the parties are not present in the
14        court, but in which, by means of an independent
15        audio-visual system, all of the participants are
16        simultaneously able to see and hear reproductions of
17        the voices and images of the judge, counsel, parties,
18        witnesses, and any other participants.
19        (2) Any pilot program under this subsection (e) shall
20    be developed by the administrative director or his or her
21    delegate in consultation with at least one local
22    organization providing assistance to domestic violence
23    victims. The program plan shall include but not be limited
24    to:
25            (A) identification of agencies equipped with or
26        that have access to an independent audio-visual system

 

 

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1        and electronic means for filing documents; and
2            (B) identification of one or more organizations
3        who are trained and available to assist petitioners in
4        preparing and filing petitions for temporary orders of
5        protection and in their electronic appearances before
6        the court to obtain such orders; and
7            (C) identification of the existing resources
8        available in local family courts for the
9        implementation and oversight of the pilot program; and
10            (D) procedures for filing petitions and documents
11        by electronic means, swearing in the petitioners and
12        witnesses, preparation of a transcript of testimony
13        and evidence presented, and a prompt transmission of
14        any orders issued to the parties; and
15            (E) a timeline for implementation and a plan for
16        informing the public about the availability of the
17        program; and
18            (F) a description of the data to be collected in
19        order to evaluate and make recommendations for
20        improvements to the pilot program.
21        (3) In conjunction with an electronic appearance, any
22    petitioner for an ex parte temporary order of protection
23    may, using the assistance of a trained advocate if
24    necessary, commence the proceedings by filing a petition by
25    electronic means.
26            (A) A petitioner who is seeking an ex parte

 

 

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1        temporary order of protection using an electronic
2        appearance must file a petition in advance of the
3        appearance and may do so electronically.
4            (B) The petitioner must show that traveling to or
5        appearing in court would constitute an undue hardship
6        or create a risk of harm to the petitioner. In granting
7        or denying any relief sought by the petitioner, the
8        court shall state the names of all participants and
9        whether it is granting or denying an appearance by
10        electronic means and the basis for such a
11        determination. A party is not required to file a
12        petition or other document by electronic means or to
13        testify by means of an electronic appearance.
14            (C) Nothing in this subsection (e) affects or
15        changes any existing laws governing the service of
16        process, including requirements for personal service
17        or the sealing and confidentiality of court records in
18        court proceedings or access to court records by the
19        parties to the proceedings.
20        (4) Appearances.
21            (A) All electronic appearances by a petitioner
22        seeking an ex parte temporary order of protection under
23        this subsection (e) are strictly voluntary and the
24        court shall obtain the consent of the petitioner on the
25        record at the commencement of each appearance.
26            (B) Electronic appearances under this subsection

 

 

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1        (e) shall be recorded and preserved for transcription.
2        Documentary evidence, if any, referred to by a party or
3        witness or the court may be transmitted and submitted
4        and introduced by electronic means.
5(Source: P.A. 100-199, eff. 1-1-18; 100-201, eff. 8-18-17;
6101-255, eff. 1-1-20.)
 
7    (750 ILCS 60/217)  (from Ch. 40, par. 2312-17)
8    Sec. 217. Emergency order of protection.
9    (a) Prerequisites. An emergency order of protection shall
10issue if petitioner satisfies the requirements of this
11subsection for one or more of the requested remedies. For each
12remedy requested, petitioner shall establish that:
13        (1) The court has jurisdiction under Section 208;
14        (2) The requirements of Section 214 are satisfied; and
15        (3) There is good cause to grant the remedy, regardless
16    of prior service of process or of notice upon the
17    respondent, because:
18            (i) For the remedies of "prohibition of abuse"
19        described in Section 214(b)(1), "stay away order and
20        additional prohibitions" described in Section
21        214(b)(3), "removal or concealment of minor child"
22        described in Section 214(b)(8), "order to appear"
23        described in Section 214(b)(9), "physical care and
24        possession of the minor child" described in Section
25        214(b)(5), "protection of property" described in

 

 

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1        Section 214(b)(11), "prohibition of entry" described
2        in Section 214(b)(14), "prohibition of firearm
3        possession" described in Section 214(b)(14.5),
4        "prohibition of access to records" described in
5        Section 214(b)(15), and "injunctive relief" described
6        in Section 214(b)(16), the harm which that remedy is
7        intended to prevent would be likely to occur if the
8        respondent were given any prior notice, or greater
9        notice than was actually given, of the petitioner's
10        efforts to obtain judicial relief;
11            (ii) For the remedy of "grant of exclusive
12        possession of residence" described in Section
13        214(b)(2), the immediate danger of further abuse of
14        petitioner by respondent, if petitioner chooses or had
15        chosen to remain in the residence or household while
16        respondent was given any prior notice or greater notice
17        than was actually given of petitioner's efforts to
18        obtain judicial relief, outweighs the hardships to
19        respondent of an emergency order granting petitioner
20        exclusive possession of the residence or household.
21        This remedy shall not be denied because petitioner has
22        or could obtain temporary shelter elsewhere while
23        prior notice is given to respondent, unless the
24        hardships to respondent from exclusion from the home
25        substantially outweigh those to petitioner;
26            (iii) For the remedy of "possession of personal

 

 

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1        property" described in Section 214(b)(10), improper
2        disposition of the personal property would be likely to
3        occur if respondent were given any prior notice, or
4        greater notice than was actually given, of
5        petitioner's efforts to obtain judicial relief, or
6        petitioner has an immediate and pressing need for
7        possession of that property.
8    An emergency order may not include the counseling, legal
9custody, payment of support or monetary compensation remedies.
10    (a-5) When a petition for an emergency order of protection
11is granted, the petition, order, and file shall not be public
12and shall be accessible only to the court, petitioner, counsel
13of record of either party, and State's Attorney for the county
14shall not be publicly available until the order is served on
15the respondent.
16    (b) Appearance by respondent. If respondent appears in
17court for this hearing for an emergency order, he or she may
18elect to file a general appearance and testify. Any resulting
19order may be an emergency order, governed by this Section.
20Notwithstanding the requirements of this Section, if all
21requirements of Section 218 have been met, the court may issue
22a 30-day interim order.
23    (c) Emergency orders: court holidays and evenings.
24        (1) Prerequisites. When the court is unavailable at the
25    close of business, the petitioner may file a petition for a
26    21-day emergency order before any available circuit judge

 

 

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1    or associate judge who may grant relief under this Act. If
2    the judge finds that there is an immediate and present
3    danger of abuse to petitioner and that petitioner has
4    satisfied the prerequisites set forth in subsection (a) of
5    Section 217, that judge may issue an emergency order of
6    protection.
7        (1.5) Issuance of order. The chief judge of the circuit
8    court may designate for each county in the circuit at least
9    one judge to be reasonably available to issue orally, by
10    telephone, by facsimile, or otherwise, an emergency order
11    of protection at all times, whether or not the court is in
12    session.
13        (2) Certification and transfer. The judge who issued
14    the order under this Section shall promptly communicate or
15    convey the order to the sheriff to facilitate the entry of
16    the order into the Law Enforcement Agencies Data System by
17    the Department of State Police pursuant to Section 302. Any
18    order issued under this Section and any documentation in
19    support thereof shall be certified on the next court day to
20    the appropriate court. The clerk of that court shall
21    immediately assign a case number, file the petition, order
22    and other documents with the court, and enter the order of
23    record and file it with the sheriff for service, in
24    accordance with Section 222. Filing the petition shall
25    commence proceedings for further relief under Section 202.
26    Failure to comply with the requirements of this subsection

 

 

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1    shall not affect the validity of the order.
2(Source: P.A. 101-255, eff. 1-1-20.)
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.