Illinois General Assembly - Full Text of HB4860
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Full Text of HB4860  98th General Assembly

HB4860eng 98TH GENERAL ASSEMBLY



 


 
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1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by changing
5Section 24-6 as follows:
 
6    (720 ILCS 5/24-6)  (from Ch. 38, par. 24-6)
7    Sec. 24-6. Confiscation and disposition of weapons.
8    (a) Upon conviction of an offense in which a weapon was
9used or possessed by the offender, any weapon seized shall be
10confiscated by the trial court.
11    (b) Any stolen weapon so confiscated, when no longer needed
12for evidentiary purposes, shall be returned to the person
13entitled to possession, if known. After the disposition of a
14criminal case or in any criminal case where a final judgment in
15the case was not entered due to the death of the defendant, and
16when a confiscated weapon is no longer needed for evidentiary
17purposes, and when in due course no legitimate claim has been
18made for the weapon, the court may transfer the weapon to the
19sheriff of the county who may proceed to destroy it, or may in
20its discretion order the weapon preserved as property of the
21governmental body whose police agency seized the weapon, or may
22in its discretion order the weapon to be transferred to the
23Department of State Police for use by the crime laboratory

 

 

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1system, for training purposes, or for any other application as
2deemed appropriate by the Department. A weapon transferred to a
3law enforcement agency under this Section may be sold by the
4law enforcement agency at public auction under Section 3 of the
5Law Enforcement Disposition of Property Act. If, after the
6disposition of a criminal case, a need still exists for the use
7of the confiscated weapon for evidentiary purposes, the court
8may transfer the weapon to the custody of the State Department
9of Corrections for preservation. The court may not order the
10transfer of the weapon to any private individual or private
11organization other than to return a stolen weapon to its
12rightful owner.
13    The provisions of this Section shall not apply to
14violations of the Fish and Aquatic Life Code or the Wildlife
15Code. Confiscation of weapons for Fish and Aquatic Life Code
16and Wildlife Code violations shall be only as provided in those
17Codes.
18    (c) Any mental hospital that admits a person as an
19inpatient pursuant to any of the provisions of the Mental
20Health and Developmental Disabilities Code shall confiscate
21any firearms in the possession of that person at the time of
22admission, or at any time the firearms are discovered in the
23person's possession during the course of hospitalization. The
24hospital shall, as soon as possible following confiscation,
25transfer custody of the firearms to the appropriate law
26enforcement agency. The hospital shall give written notice to

 

 

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1the person from whom the firearm was confiscated of the
2identity and address of the law enforcement agency to which it
3has given the firearm.
4    The law enforcement agency shall maintain possession of any
5firearm it obtains pursuant to this subsection for a minimum of
690 days. Thereafter, the firearm may be disposed of pursuant to
7the provisions of subsection (b) of this Section.
8(Source: P.A. 91-696, eff. 4-13-00.)
 
9    Section 10. The Code of Criminal Procedure of 1963 is
10amended by changing Section 112A-14 as follows:
 
11    (725 ILCS 5/112A-14)  (from Ch. 38, par. 112A-14)
12    Sec. 112A-14. Order of protection; remedies.
13    (a) Issuance of order. If the court finds that petitioner
14has been abused by a family or household member, as defined in
15this Article, an order of protection prohibiting such abuse
16shall issue; provided that petitioner must also satisfy the
17requirements of one of the following Sections, as appropriate:
18Section 112A-17 on emergency orders, Section 112A-18 on interim
19orders, or Section 112A-19 on plenary orders. Petitioner shall
20not be denied an order of protection because petitioner or
21respondent is a minor. The court, when determining whether or
22not to issue an order of protection, shall not require physical
23manifestations of abuse on the person of the victim.
24Modification and extension of prior orders of protection shall

 

 

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1be in accordance with this Article.
2    (b) Remedies and standards. The remedies to be included in
3an order of protection shall be determined in accordance with
4this Section and one of the following Sections, as appropriate:
5Section 112A-17 on emergency orders, Section 112A-18 on interim
6orders, and Section 112A-19 on plenary orders. The remedies
7listed in this subsection shall be in addition to other civil
8or criminal remedies available to petitioner.
9        (1) Prohibition of abuse. Prohibit respondent's
10    harassment, interference with personal liberty,
11    intimidation of a dependent, physical abuse or willful
12    deprivation, as defined in this Article, if such abuse has
13    occurred or otherwise appears likely to occur if not
14    prohibited.
15        (2) Grant of exclusive possession of residence.
16    Prohibit respondent from entering or remaining in any
17    residence, household, or premises of the petitioner,
18    including one owned or leased by respondent, if petitioner
19    has a right to occupancy thereof. The grant of exclusive
20    possession of the residence, household, or premises shall
21    not affect title to real property, nor shall the court be
22    limited by the standard set forth in Section 701 of the
23    Illinois Marriage and Dissolution of Marriage Act.
24            (A) Right to occupancy. A party has a right to
25        occupancy of a residence or household if it is solely
26        or jointly owned or leased by that party, that party's

 

 

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1        spouse, a person with a legal duty to support that
2        party or a minor child in that party's care, or by any
3        person or entity other than the opposing party that
4        authorizes that party's occupancy (e.g., a domestic
5        violence shelter). Standards set forth in subparagraph
6        (B) shall not preclude equitable relief.
7            (B) Presumption of hardships. If petitioner and
8        respondent each has the right to occupancy of a
9        residence or household, the court shall balance (i) the
10        hardships to respondent and any minor child or
11        dependent adult in respondent's care resulting from
12        entry of this remedy with (ii) the hardships to
13        petitioner and any minor child or dependent adult in
14        petitioner's care resulting from continued exposure to
15        the risk of abuse (should petitioner remain at the
16        residence or household) or from loss of possession of
17        the residence or household (should petitioner leave to
18        avoid the risk of abuse). When determining the balance
19        of hardships, the court shall also take into account
20        the accessibility of the residence or household.
21        Hardships need not be balanced if respondent does not
22        have a right to occupancy.
23            The balance of hardships is presumed to favor
24        possession by petitioner unless the presumption is
25        rebutted by a preponderance of the evidence, showing
26        that the hardships to respondent substantially

 

 

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

 

 

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1    agreed-upon adult third party or law enforcement officer.
2        (4) Counseling. Require or recommend the respondent to
3    undergo counseling for a specified duration with a social
4    worker, psychologist, clinical psychologist, psychiatrist,
5    family service agency, alcohol or substance abuse program,
6    mental health center guidance counselor, agency providing
7    services to elders, program designed for domestic violence
8    abusers or any other guidance service the court deems
9    appropriate. The court may order the respondent in any
10    intimate partner relationship to report to an Illinois
11    Department of Human Services protocol approved partner
12    abuse intervention program for an assessment and to follow
13    all recommended treatment.
14        (5) Physical care and possession of the minor child. In
15    order to protect the minor child from abuse, neglect, or
16    unwarranted separation from the person who has been the
17    minor child's primary caretaker, or to otherwise protect
18    the well-being of the minor child, the court may do either
19    or both of the following: (i) grant petitioner physical
20    care or possession of the minor child, or both, or (ii)
21    order respondent to return a minor child to, or not remove
22    a minor child from, the physical care of a parent or person
23    in loco parentis.
24        If a court finds, after a hearing, that respondent has
25    committed abuse (as defined in Section 112A-3) of a minor
26    child, there shall be a rebuttable presumption that

 

 

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1    awarding physical care to respondent would not be in the
2    minor child's best interest.
3        (6) Temporary legal custody. Award temporary legal
4    custody to petitioner in accordance with this Section, the
5    Illinois Marriage and Dissolution of Marriage Act, the
6    Illinois Parentage Act of 1984, and this State's Uniform
7    Child-Custody Jurisdiction and Enforcement Act.
8        If a court finds, after a hearing, that respondent has
9    committed abuse (as defined in Section 112A-3) of a minor
10    child, there shall be a rebuttable presumption that
11    awarding temporary legal custody to respondent would not be
12    in the child's best interest.
13        (7) Visitation. Determine the visitation rights, if
14    any, of respondent in any case in which the court awards
15    physical care or temporary legal custody of a minor child
16    to petitioner. The court shall restrict or deny
17    respondent's visitation with a minor child if the court
18    finds that respondent has done or is likely to do any of
19    the following: (i) abuse or endanger the minor child during
20    visitation; (ii) use the visitation as an opportunity to
21    abuse or harass petitioner or petitioner's family or
22    household members; (iii) improperly conceal or detain the
23    minor child; or (iv) otherwise act in a manner that is not
24    in the best interests of the minor child. The court shall
25    not be limited by the standards set forth in Section 607.1
26    of the Illinois Marriage and Dissolution of Marriage Act.

 

 

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1    If the court grants visitation, the order shall specify
2    dates and times for the visitation to take place or other
3    specific parameters or conditions that are appropriate. No
4    order for visitation shall refer merely to the term
5    "reasonable visitation".
6        Petitioner may deny respondent access to the minor
7    child if, when respondent arrives for visitation,
8    respondent is under the influence of drugs or alcohol and
9    constitutes a threat to the safety and well-being of
10    petitioner or petitioner's minor children or is behaving in
11    a violent or abusive manner.
12        If necessary to protect any member of petitioner's
13    family or household from future abuse, respondent shall be
14    prohibited from coming to petitioner's residence to meet
15    the minor child for visitation, and the parties shall
16    submit to the court their recommendations for reasonable
17    alternative arrangements for visitation. A person may be
18    approved to supervise visitation only after filing an
19    affidavit accepting that responsibility and acknowledging
20    accountability to the court.
21        (8) Removal or concealment of minor child. Prohibit
22    respondent from removing a minor child from the State or
23    concealing the child within the State.
24        (9) Order to appear. Order the respondent to appear in
25    court, alone or with a minor child, to prevent abuse,
26    neglect, removal or concealment of the child, to return the

 

 

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

 

 

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1            (i) petitioner, but not respondent, owns the
2        property; or
3            (ii) the parties own the property jointly, and the
4        balance of hardships favors granting this remedy.
5        If petitioner's sole claim to ownership of the property
6    is that it is marital property, the court may grant
7    petitioner relief under subparagraph (ii) of this
8    paragraph only if a proper proceeding has been filed under
9    the Illinois Marriage and Dissolution of Marriage Act, as
10    now or hereafter amended.
11        The court may further prohibit respondent from
12    improperly using the financial or other resources of an
13    aged member of the family or household for the profit or
14    advantage of respondent or of any other person.
15        (11.5) Protection of animals. Grant the petitioner the
16    exclusive care, custody, or control of any animal owned,
17    possessed, leased, kept, or held by either the petitioner
18    or the respondent or a minor child residing in the
19    residence or household of either the petitioner or the
20    respondent and order the respondent to stay away from the
21    animal and forbid the respondent from taking,
22    transferring, encumbering, concealing, harming, or
23    otherwise disposing of the animal.
24        (12) Order for payment of support. Order respondent to
25    pay temporary support for the petitioner or any child in
26    the petitioner's care or custody, when the respondent has a

 

 

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1    legal obligation to support that person, in accordance with
2    the Illinois Marriage and Dissolution of Marriage Act,
3    which shall govern, among other matters, the amount of
4    support, payment through the clerk and withholding of
5    income to secure payment. An order for child support may be
6    granted to a petitioner with lawful physical care or
7    custody of a child, or an order or agreement for physical
8    care or custody, prior to entry of an order for legal
9    custody. Such a support order shall expire upon entry of a
10    valid order granting legal custody to another, unless
11    otherwise provided in the custody order.
12        (13) Order for payment of losses. Order respondent to
13    pay petitioner for losses suffered as a direct result of
14    the abuse. Such losses shall include, but not be limited
15    to, medical expenses, lost earnings or other support,
16    repair or replacement of property damaged or taken,
17    reasonable attorney's fees, court costs and moving or other
18    travel expenses, including additional reasonable expenses
19    for temporary shelter and restaurant meals.
20            (i) Losses affecting family needs. If a party is
21        entitled to seek maintenance, child support or
22        property distribution from the other party under the
23        Illinois Marriage and Dissolution of Marriage Act, as
24        now or hereafter amended, the court may order
25        respondent to reimburse petitioner's actual losses, to
26        the extent that such reimbursement would be

 

 

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1        "appropriate temporary relief", as authorized by
2        subsection (a)(3) of Section 501 of that Act.
3            (ii) Recovery of expenses. In the case of an
4        improper concealment or removal of a minor child, the
5        court may order respondent to pay the reasonable
6        expenses incurred or to be incurred in the search for
7        and recovery of the minor child, including but not
8        limited to legal fees, court costs, private
9        investigator fees, and travel costs.
10        (14) Prohibition of entry. Prohibit the respondent
11    from entering or remaining in the residence or household
12    while the respondent is under the influence of alcohol or
13    drugs and constitutes a threat to the safety and well-being
14    of the petitioner or the petitioner's children.
15        (14.5) Prohibition of firearm possession.
16            (A) A person who is subject to an existing order of
17        protection, interim order of protection, emergency
18        order of protection, or plenary order of protection,
19        issued under this Code may not lawfully possess weapons
20        under Section 8.2 of the Firearm Owners Identification
21        Card Act.
22            (B) Any firearms in the possession of the
23        respondent, except as provided in subparagraph (C) of
24        this paragraph (14.5), shall be ordered by the court to
25        be turned over to a person with a valid Firearm Owner's
26        Identification Card for safekeeping. The court shall

 

 

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1        issue an order that the respondent's Firearm Owner's
2        Identification Card be turned over to the local law
3        enforcement agency, which in turn shall immediately
4        mail the card to the Department of State Police Firearm
5        Owner's Identification Card Office for safekeeping.
6        The period of safekeeping shall be for the duration of
7        the order of protection. The firearm or firearms and
8        Firearm Owner's Identification Card, if unexpired,
9        shall at the respondent's request be returned to the
10        respondent at expiration of the order of protection.
11            (C) If the respondent is a peace officer as defined
12        in Section 2-13 of the Criminal Code of 2012, the court
13        shall order that any firearms used by the respondent in
14        the performance of his or her duties as a peace officer
15        be surrendered to the chief law enforcement executive
16        of the agency in which the respondent is employed, who
17        shall retain the firearms for safekeeping for the
18        duration of the order of protection.
19            (D) Upon expiration of the period of safekeeping,
20        if the firearms or Firearm Owner's Identification Card
21        cannot be returned to respondent because respondent
22        cannot be located, fails to respond to requests to
23        retrieve the firearms, or is not lawfully eligible to
24        possess a firearm, upon petition from the local law
25        enforcement agency, the court may order the local law
26        enforcement agency to destroy the firearms, use the

 

 

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1        firearms for training purposes, or for any other
2        application as deemed appropriate by the local law
3        enforcement agency, including a sale at public auction
4        under the provisions of the Law Enforcement
5        Disposition of Property Act; or that the firearms be
6        turned over to a third party who is lawfully eligible
7        to possess firearms, and who does not reside with
8        respondent.
9        (15) Prohibition of access to records. If an order of
10    protection prohibits respondent from having contact with
11    the minor child, or if petitioner's address is omitted
12    under subsection (b) of Section 112A-5, or if necessary to
13    prevent abuse or wrongful removal or concealment of a minor
14    child, the order shall deny respondent access to, and
15    prohibit respondent from inspecting, obtaining, or
16    attempting to inspect or obtain, school or any other
17    records of the minor child who is in the care of
18    petitioner.
19        (16) Order for payment of shelter services. Order
20    respondent to reimburse a shelter providing temporary
21    housing and counseling services to the petitioner for the
22    cost of the services, as certified by the shelter and
23    deemed reasonable by the court.
24        (17) Order for injunctive relief. Enter injunctive
25    relief necessary or appropriate to prevent further abuse of
26    a family or household member or to effectuate one of the

 

 

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

 

 

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1    court shall consider relevant factors, including but not
2    limited to the following:
3            (i) availability, accessibility, cost, safety,
4        adequacy, location and other characteristics of
5        alternate housing for each party and any minor child or
6        dependent adult in the party's care;
7            (ii) the effect on the party's employment; and
8            (iii) the effect on the relationship of the party,
9        and any minor child or dependent adult in the party's
10        care, to family, school, church and community.
11        (3) Subject to the exceptions set forth in paragraph
12    (4) of this subsection, the court shall make its findings
13    in an official record or in writing, and shall at a minimum
14    set forth the following:
15            (i) That the court has considered the applicable
16        relevant factors described in paragraphs (1) and (2) of
17        this subsection.
18            (ii) Whether the conduct or actions of respondent,
19        unless prohibited, will likely cause irreparable harm
20        or continued abuse.
21            (iii) Whether it is necessary to grant the
22        requested relief in order to protect petitioner or
23        other alleged abused persons.
24        (4) For purposes of issuing an ex parte emergency order
25    of protection, the court, as an alternative to or as a
26    supplement to making the findings described in paragraphs

 

 

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1    (c)(3)(i) through (c)(3)(iii) of this subsection, may use
2    the following procedure:
3        When a verified petition for an emergency order of
4    protection in accordance with the requirements of Sections
5    112A-5 and 112A-17 is presented to the court, the court
6    shall examine petitioner on oath or affirmation. An
7    emergency order of protection shall be issued by the court
8    if it appears from the contents of the petition and the
9    examination of petitioner that the averments are
10    sufficient to indicate abuse by respondent and to support
11    the granting of relief under the issuance of the emergency
12    order of protection.
13        (5) Never married parties. No rights or
14    responsibilities for a minor child born outside of marriage
15    attach to a putative father until a father and child
16    relationship has been established under the Illinois
17    Parentage Act of 1984. Absent such an adjudication, no
18    putative father shall be granted temporary custody of the
19    minor child, visitation with the minor child, or physical
20    care and possession of the minor child, nor shall an order
21    of payment for support of the minor child be entered.
22    (d) Balance of hardships; findings. If the court finds that
23the balance of hardships does not support the granting of a
24remedy governed by paragraph (2), (3), (10), (11), or (16) of
25subsection (b) of this Section, which may require such
26balancing, the court's findings shall so indicate and shall

 

 

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1include a finding as to whether granting the remedy will result
2in hardship to respondent that would substantially outweigh the
3hardship to petitioner from denial of the remedy. The findings
4shall be an official record or in writing.
5    (e) Denial of remedies. Denial of any remedy shall not be
6based, in whole or in part, on evidence that:
7        (1) Respondent has cause for any use of force, unless
8    that cause satisfies the standards for justifiable use of
9    force provided by Article 7 of the Criminal Code of 2012;
10        (2) Respondent was voluntarily intoxicated;
11        (3) Petitioner acted in self-defense or defense of
12    another, provided that, if petitioner utilized force, such
13    force was justifiable under Article 7 of the Criminal Code
14    of 2012;
15        (4) Petitioner did not act in self-defense or defense
16    of another;
17        (5) Petitioner left the residence or household to avoid
18    further abuse by respondent;
19        (6) Petitioner did not leave the residence or household
20    to avoid further abuse by respondent;
21        (7) Conduct by any family or household member excused
22    the abuse by respondent, unless that same conduct would
23    have excused such abuse if the parties had not been family
24    or household members.
25(Source: P.A. 97-158, eff. 1-1-12; 97-1131, eff. 1-1-13;
2697-1150, eff. 1-25-13; 98-63, eff. 7-9-13.)
 

 

 

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1    Section 15. The Illinois Domestic Violence Act of 1986 is
2amended 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
6has been abused by a family or household member or that
7petitioner is a high-risk adult who has been abused, neglected,
8or exploited, as defined in this Act, an order of protection
9prohibiting the abuse, neglect, or exploitation shall issue;
10provided that petitioner must also satisfy the requirements of
11one of the following Sections, as appropriate: Section 217 on
12emergency orders, Section 218 on interim orders, or Section 219
13on plenary orders. Petitioner shall not be denied an order of
14protection because petitioner or respondent is a minor. The
15court, when determining whether or not to issue an order of
16protection, shall not require physical manifestations of abuse
17on the person of the victim. Modification and extension of
18prior orders of protection shall be in accordance with this
19Act.
20    (b) Remedies and standards. The remedies to be included in
21an order of protection shall be determined in accordance with
22this Section and one of the following Sections, as appropriate:
23Section 217 on emergency orders, Section 218 on interim orders,
24and Section 219 on plenary orders. The remedies listed in this

 

 

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1subsection shall be in addition to other civil or criminal
2remedies available to petitioner.
3        (1) Prohibition of abuse, neglect, or exploitation.
4    Prohibit respondent's harassment, interference with
5    personal liberty, intimidation of a dependent, physical
6    abuse, or willful deprivation, neglect or exploitation, as
7    defined in this Act, or stalking of the petitioner, as
8    defined in Section 12-7.3 of the Criminal Code of 2012, if
9    such abuse, neglect, exploitation, or stalking has
10    occurred or otherwise appears likely to occur if not
11    prohibited.
12        (2) Grant of exclusive possession of residence.
13    Prohibit respondent from entering or remaining in any
14    residence, household, or premises of the petitioner,
15    including one owned or leased by respondent, if petitioner
16    has a right to occupancy thereof. The grant of exclusive
17    possession of the residence, household, or premises shall
18    not affect title to real property, nor shall the court be
19    limited by the standard set forth in Section 701 of the
20    Illinois Marriage and Dissolution of Marriage Act.
21            (A) Right to occupancy. A party has a right to
22        occupancy of a residence or household if it is solely
23        or jointly owned or leased by that party, that party's
24        spouse, a person with a legal duty to support that
25        party or a minor child in that party's care, or by any
26        person or entity other than the opposing party that

 

 

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1        authorizes that party's occupancy (e.g., a domestic
2        violence shelter). Standards set forth in subparagraph
3        (B) shall not preclude equitable relief.
4            (B) Presumption of hardships. If petitioner and
5        respondent each has the right to occupancy of a
6        residence or household, the court shall balance (i) the
7        hardships to respondent and any minor child or
8        dependent adult in respondent's care resulting from
9        entry of this remedy with (ii) the hardships to
10        petitioner and any minor child or dependent adult in
11        petitioner's care resulting from continued exposure to
12        the risk of abuse (should petitioner remain at the
13        residence or household) or from loss of possession of
14        the residence or household (should petitioner leave to
15        avoid the risk of abuse). When determining the balance
16        of hardships, the court shall also take into account
17        the accessibility of the residence or household.
18        Hardships need not be balanced if respondent does not
19        have a right to occupancy.
20            The balance of hardships is presumed to favor
21        possession by petitioner unless the presumption is
22        rebutted by a preponderance of the evidence, showing
23        that the hardships to respondent substantially
24        outweigh the hardships to petitioner and any minor
25        child or dependent adult in petitioner's care. The
26        court, on the request of petitioner or on its own

 

 

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

 

 

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1            (B) When the petitioner and the respondent attend
2        the same public, private, or non-public elementary,
3        middle, or high school, the court when issuing an order
4        of protection and providing relief shall consider the
5        severity of the act, any continuing physical danger or
6        emotional distress to the petitioner, the educational
7        rights guaranteed to the petitioner and respondent
8        under federal and State law, the availability of a
9        transfer of the respondent to another school, a change
10        of placement or a change of program of the respondent,
11        the expense, difficulty, and educational disruption
12        that would be caused by a transfer of the respondent to
13        another school, and any other relevant facts of the
14        case. The court may order that the respondent not
15        attend the public, private, or non-public elementary,
16        middle, or high school attended by the petitioner,
17        order that the respondent accept a change of placement
18        or change of program, as determined by the school
19        district or private or non-public school, or place
20        restrictions on the respondent's movements within the
21        school attended by the petitioner. The respondent
22        bears the burden of proving by a preponderance of the
23        evidence that a transfer, change of placement, or
24        change of program of the respondent is not available.
25        The respondent also bears the burden of production with
26        respect to the expense, difficulty, and educational

 

 

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

 

 

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1        legal custodian of a minor respondent to take certain
2        actions or to refrain from taking certain actions to
3        ensure that the respondent complies with the order. In
4        the event the court orders a transfer of the respondent
5        to another school, the parents, guardian, or legal
6        custodian of the respondent is responsible for
7        transportation and other costs associated with the
8        change of school by the respondent.
9        (4) Counseling. Require or recommend the respondent to
10    undergo counseling for a specified duration with a social
11    worker, psychologist, clinical psychologist, psychiatrist,
12    family service agency, alcohol or substance abuse program,
13    mental health center guidance counselor, agency providing
14    services to elders, program designed for domestic violence
15    abusers or any other guidance service the court deems
16    appropriate. The Court may order the respondent in any
17    intimate partner relationship to report to an Illinois
18    Department of Human Services protocol approved partner
19    abuse intervention program for an assessment and to follow
20    all recommended treatment.
21        (5) Physical care and possession of the minor child. In
22    order to protect the minor child from abuse, neglect, or
23    unwarranted separation from the person who has been the
24    minor child's primary caretaker, or to otherwise protect
25    the well-being of the minor child, the court may do either
26    or both of the following: (i) grant petitioner physical

 

 

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1    care or possession of the minor child, or both, or (ii)
2    order respondent to return a minor child to, or not remove
3    a minor child from, the physical care of a parent or person
4    in loco parentis.
5        If a court finds, after a hearing, that respondent has
6    committed abuse (as defined in Section 103) of a minor
7    child, there shall be a rebuttable presumption that
8    awarding physical care to respondent would not be in the
9    minor child's best interest.
10        (6) Temporary legal custody. Award temporary legal
11    custody to petitioner in accordance with this Section, the
12    Illinois Marriage and Dissolution of Marriage Act, the
13    Illinois Parentage Act of 1984, and this State's Uniform
14    Child-Custody Jurisdiction and Enforcement Act.
15        If a court finds, after a hearing, that respondent has
16    committed abuse (as defined in Section 103) of a minor
17    child, there shall be a rebuttable presumption that
18    awarding temporary legal custody to respondent would not be
19    in the child's best interest.
20        (7) Visitation. Determine the visitation rights, if
21    any, of respondent in any case in which the court awards
22    physical care or temporary legal custody of a minor child
23    to petitioner. The court shall restrict or deny
24    respondent's visitation with a minor child if the court
25    finds that respondent has done or is likely to do any of
26    the following: (i) abuse or endanger the minor child during

 

 

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

 

 

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1    accountability to the court.
2        (8) Removal or concealment of minor child. Prohibit
3    respondent from removing a minor child from the State or
4    concealing the child within the State.
5        (9) Order to appear. Order the respondent to appear in
6    court, alone or with a minor child, to prevent abuse,
7    neglect, removal or concealment of the child, to return the
8    child to the custody or care of the petitioner or to permit
9    any court-ordered interview or examination of the child or
10    the respondent.
11        (10) Possession of personal property. Grant petitioner
12    exclusive possession of personal property and, if
13    respondent has possession or control, direct respondent to
14    promptly make it available to petitioner, if:
15            (i) petitioner, but not respondent, owns the
16        property; or
17            (ii) the parties own the property jointly; sharing
18        it would risk abuse of petitioner by respondent or is
19        impracticable; and the balance of hardships favors
20        temporary possession by petitioner.
21        If petitioner's sole claim to ownership of the property
22    is that it is marital property, the court may award
23    petitioner temporary possession thereof under the
24    standards of subparagraph (ii) of this paragraph only if a
25    proper proceeding has been filed under the Illinois
26    Marriage and Dissolution of Marriage Act, as now or

 

 

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1    hereafter amended.
2        No order under this provision shall affect title to
3    property.
4        (11) Protection of property. Forbid the respondent
5    from taking, transferring, encumbering, concealing,
6    damaging or otherwise disposing of any real or personal
7    property, except as explicitly authorized by the court, if:
8            (i) petitioner, but not respondent, owns the
9        property; or
10            (ii) the parties own the property jointly, and the
11        balance of hardships favors granting this remedy.
12        If petitioner's sole claim to ownership of the property
13    is that it is marital property, the court may grant
14    petitioner relief under subparagraph (ii) of this
15    paragraph only if a proper proceeding has been filed under
16    the Illinois Marriage and Dissolution of Marriage Act, as
17    now or hereafter amended.
18        The court may further prohibit respondent from
19    improperly using the financial or other resources of an
20    aged member of the family or household for the profit or
21    advantage of respondent or of any other person.
22        (11.5) Protection of animals. Grant the petitioner the
23    exclusive care, custody, or control of any animal owned,
24    possessed, leased, kept, or held by either the petitioner
25    or the respondent or a minor child residing in the
26    residence or household of either the petitioner or the

 

 

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1    respondent and order the respondent to stay away from the
2    animal and forbid the respondent from taking,
3    transferring, encumbering, concealing, harming, or
4    otherwise disposing of the animal.
5        (12) Order for payment of support. Order respondent to
6    pay temporary support for the petitioner or any child in
7    the petitioner's care or custody, when the respondent has a
8    legal obligation to support that person, in accordance with
9    the Illinois Marriage and Dissolution of Marriage Act,
10    which shall govern, among other matters, the amount of
11    support, payment through the clerk and withholding of
12    income to secure payment. An order for child support may be
13    granted to a petitioner with lawful physical care or
14    custody of a child, or an order or agreement for physical
15    care or custody, prior to entry of an order for legal
16    custody. Such a support order shall expire upon entry of a
17    valid order granting legal custody to another, unless
18    otherwise provided in the custody order.
19        (13) Order for payment of losses. Order respondent to
20    pay petitioner for losses suffered as a direct result of
21    the abuse, neglect, or exploitation. Such losses shall
22    include, but not be limited to, medical expenses, lost
23    earnings or other support, repair or replacement of
24    property damaged or taken, reasonable attorney's fees,
25    court costs and moving or other travel expenses, including
26    additional reasonable expenses for temporary shelter and

 

 

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1    restaurant meals.
2            (i) Losses affecting family needs. If a party is
3        entitled to seek maintenance, child support or
4        property distribution from the other party under the
5        Illinois Marriage and Dissolution of Marriage Act, as
6        now or hereafter amended, the court may order
7        respondent to reimburse petitioner's actual losses, to
8        the extent that such reimbursement would be
9        "appropriate temporary relief", as authorized by
10        subsection (a)(3) of Section 501 of that Act.
11            (ii) Recovery of expenses. In the case of an
12        improper concealment or removal of a minor child, the
13        court may order respondent to pay the reasonable
14        expenses incurred or to be incurred in the search for
15        and recovery of the minor child, including but not
16        limited to legal fees, court costs, private
17        investigator fees, and travel costs.
18        (14) Prohibition of entry. Prohibit the respondent
19    from entering or remaining in the residence or household
20    while the respondent is under the influence of alcohol or
21    drugs and constitutes a threat to the safety and well-being
22    of the petitioner or the petitioner's children.
23        (14.5) Prohibition of firearm possession.
24            (a) Prohibit a respondent against whom an order of
25        protection was issued from possessing any firearms
26        during the duration of the order if the order:

 

 

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1                (1) was issued after a hearing of which such
2            person received actual notice, and at which such
3            person had an opportunity to participate;
4                (2) restrains such person from harassing,
5            stalking, or threatening an intimate partner of
6            such person or child of such intimate partner or
7            person, or engaging in other conduct that would
8            place an intimate partner in reasonable fear of
9            bodily injury to the partner or child; and
10                (3)(i) includes a finding that such person
11            represents a credible threat to the physical
12            safety of such intimate partner or child; or (ii)
13            by its terms explicitly prohibits the use,
14            attempted use, or threatened use of physical force
15            against such intimate partner or child that would
16            reasonably be expected to cause bodily injury.
17        Any Firearm Owner's Identification Card in the
18        possession of the respondent, except as provided in
19        subsection (b), shall be ordered by the court to be
20        turned over to the local law enforcement agency. The
21        local law enforcement agency shall immediately mail
22        the card to the Department of State Police Firearm
23        Owner's Identification Card Office for safekeeping.
24        The court shall issue a warrant for seizure of any
25        firearm in the possession of the respondent, to be kept
26        by the local law enforcement agency for safekeeping,

 

 

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1        except as provided in subsection (b). The period of
2        safekeeping shall be for the duration of the order of
3        protection. The firearm or firearms and Firearm
4        Owner's Identification Card, if unexpired, shall at
5        the respondent's request, be returned to the
6        respondent at the end of the order of protection. It is
7        the respondent's responsibility to notify the
8        Department of State Police Firearm Owner's
9        Identification Card Office.
10            (b) If the respondent is a peace officer as defined
11        in Section 2-13 of the Criminal Code of 2012, 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        duration of the order of protection.
18            (c) Upon expiration of the period of safekeeping,
19        if the firearms or Firearm Owner's Identification Card
20        cannot be returned to respondent because respondent
21        cannot be located, fails to respond to requests to
22        retrieve the firearms, or is not lawfully eligible to
23        possess a firearm, upon petition from the local law
24        enforcement agency, the court may order the local law
25        enforcement agency to destroy the firearms, use the
26        firearms for training purposes, or for any other

 

 

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1        application as deemed appropriate by the local law
2        enforcement agency, including a sale at public auction
3        under the provisions of the Law Enforcement
4        Disposition of Property Act; or that the firearms be
5        turned over to a third party who is lawfully eligible
6        to possess firearms, and who does not reside with
7        respondent.
8        (15) Prohibition of access to records. If an order of
9    protection prohibits respondent from having contact with
10    the minor child, or if petitioner's address is omitted
11    under subsection (b) of Section 203, or if necessary to
12    prevent abuse or wrongful removal or concealment of a minor
13    child, the order shall deny respondent access to, and
14    prohibit respondent from inspecting, obtaining, or
15    attempting to inspect or obtain, school or any other
16    records of the minor child who is in the care of
17    petitioner.
18        (16) Order for payment of shelter services. Order
19    respondent to reimburse a shelter providing temporary
20    housing and counseling services to the petitioner for the
21    cost of the services, as certified by the shelter and
22    deemed reasonable by the court.
23        (17) Order for injunctive relief. Enter injunctive
24    relief necessary or appropriate to prevent further abuse of
25    a family or household member or further abuse, neglect, or
26    exploitation of a high-risk adult with disabilities or to

 

 

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

 

 

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1    court shall consider relevant factors, including but not
2    limited to the following:
3            (i) availability, accessibility, cost, safety,
4        adequacy, location and other characteristics of
5        alternate housing for each party and any minor child or
6        dependent adult in the party's care;
7            (ii) the effect on the party's employment; and
8            (iii) the effect on the relationship of the party,
9        and any minor child or dependent adult in the party's
10        care, to family, school, church and community.
11        (3) Subject to the exceptions set forth in paragraph
12    (4) of this subsection, the court shall make its findings
13    in an official record or in writing, and shall at a minimum
14    set forth the following:
15            (i) That the court has considered the applicable
16        relevant factors described in paragraphs (1) and (2) of
17        this subsection.
18            (ii) Whether the conduct or actions of respondent,
19        unless prohibited, will likely cause irreparable harm
20        or continued abuse.
21            (iii) Whether it is necessary to grant the
22        requested relief in order to protect petitioner or
23        other alleged abused persons.
24        (4) For purposes of issuing an ex parte emergency order
25    of protection, the court, as an alternative to or as a
26    supplement to making the findings described in paragraphs

 

 

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1    (c)(3)(i) through (c)(3)(iii) of this subsection, may use
2    the following procedure:
3        When a verified petition for an emergency order of
4    protection in accordance with the requirements of Sections
5    203 and 217 is presented to the court, the court shall
6    examine petitioner on oath or affirmation. An emergency
7    order of protection shall be issued by the court if it
8    appears from the contents of the petition and the
9    examination of petitioner that the averments are
10    sufficient to indicate abuse by respondent and to support
11    the granting of relief under the issuance of the emergency
12    order of protection.
13        (5) Never married parties. No rights or
14    responsibilities for a minor child born outside of marriage
15    attach to a putative father until a father and child
16    relationship has been established under the Illinois
17    Parentage Act of 1984, the Illinois Public Aid Code,
18    Section 12 of the Vital Records Act, the Juvenile Court Act
19    of 1987, the Probate Act of 1985, the Revised Uniform
20    Reciprocal Enforcement of Support Act, the Uniform
21    Interstate Family Support Act, the Expedited Child Support
22    Act of 1990, any judicial, administrative, or other act of
23    another state or territory, any other Illinois statute, or
24    by any foreign nation establishing the father and child
25    relationship, any other proceeding substantially in
26    conformity with the Personal Responsibility and Work

 

 

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1    Opportunity Reconciliation Act of 1996 (Pub. L. 104-193),
2    or where both parties appeared in open court or at an
3    administrative hearing acknowledging under oath or
4    admitting by affirmation the existence of a father and
5    child relationship. Absent such an adjudication, finding,
6    or acknowledgement, no putative father shall be granted
7    temporary custody of the minor child, visitation with the
8    minor child, or physical care and possession of the minor
9    child, nor shall an order of payment for support of the
10    minor child be entered.
11    (d) Balance of hardships; findings. If the court finds that
12the balance of hardships does not support the granting of a
13remedy governed by paragraph (2), (3), (10), (11), or (16) of
14subsection (b) of this Section, which may require such
15balancing, the court's findings shall so indicate and shall
16include a finding as to whether granting the remedy will result
17in hardship to respondent that would substantially outweigh the
18hardship to petitioner from denial of the remedy. The findings
19shall be an official record or in writing.
20    (e) Denial of remedies. Denial of any remedy shall not be
21based, in whole or in part, on evidence that:
22        (1) Respondent has cause for any use of force, unless
23    that cause satisfies the standards for justifiable use of
24    force provided by Article 7 of the Criminal Code of 2012;
25        (2) Respondent was voluntarily intoxicated;
26        (3) Petitioner acted in self-defense or defense of

 

 

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1    another, provided that, if petitioner utilized force, such
2    force was justifiable under Article 7 of the Criminal Code
3    of 2012;
4        (4) Petitioner did not act in self-defense or defense
5    of another;
6        (5) Petitioner left the residence or household to avoid
7    further abuse, neglect, or exploitation by respondent;
8        (6) Petitioner did not leave the residence or household
9    to avoid further abuse, neglect, or exploitation by
10    respondent;
11        (7) Conduct by any family or household member excused
12    the abuse, neglect, or exploitation by respondent, unless
13    that same conduct would have excused such abuse, neglect,
14    or exploitation if the parties had not been family or
15    household members.
16(Source: P.A. 96-701, eff. 1-1-10; 96-1239, eff. 1-1-11;
1797-158, eff. 1-1-12; 97-294, eff. 1-1-12; 97-813, eff. 7-13-12;
1897-1131, eff. 1-1-13; 97-1150, eff. 1-25-13.)
 
19    Section 20. The Law Enforcement Disposition of Property Act
20is amended by changing Section 2 as follows:
 
21    (765 ILCS 1030/2)  (from Ch. 141, par. 142)
22    Sec. 2. (a) Such property believed to be abandoned, lost or
23stolen or otherwise illegally possessed shall be retained in
24custody by the sheriff, chief of police or other principal

 

 

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1official of the law enforcement agency, which shall make
2reasonable inquiry and efforts to identify and notify the owner
3or other person entitled to possession thereof, and shall
4return the property after such person provides reasonable and
5satisfactory proof of his ownership or right to possession and
6reimburses the agency for all reasonable expenses of such
7custody.
8    (b) Weapons that have been confiscated as a result of
9having been abandoned or illegally possessed may be sold at
10public auction under Section 3 of this Act; or transferred to
11the Department of State Police for use by the crime laboratory
12system, for training purposes, or for any other application as
13deemed appropriate by the Department, if no legitimate claim is
14made for the confiscated weapon within 6 months of the date of
15confiscation, or within 6 months of final court disposition if
16such confiscated weapon was used for evidentiary purposes.
17(Source: P.A. 85-632.)