Tuesday, June 10, 2008

Illinois Order of Protection

Many divorce cases begin with one party obtaining an order of protection.

It is important to determine what remedies to look for the person filing for the order of protection.

Order-of-protection remedies available under the Illinois Domestic Violence Act (IDVA).
750 ILCS 60/101

One purpose of the statute is to "[s]upport the efforts of victims of domestic violence to avoid further abuse by promptly entering and diligently enforcing court orders which prohibit abuse and, when necessary, reduce the abuser's access to the victim and address any related issues of child custody and economic support."

The 19 remedies can give the plaintiff a significant advantage in a divorce proceeding, especially in child custody.

General remedies
Prohibiting abuse, neglect, harassment, and exploitation.
"Abuse" is vaguely defined under the IDVA as "physical abuse, harassment, intimidation of a dependent..."

"Harassment" means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
(i) creating a disturbance at petitioner's place of employment or school;
(ii) repeatedly telephoning petitioner's place of employment, home or residence;
(iii) repeatedly following petitioner about in a public place or places;
(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner's windows;
(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner's from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence; or
(vi) threatening physical force, confinement or restraint on one or more occasions.

"Neglect" is also prohibited by the IDVA.
Exclusive possession of residence. The court has power to evict one party from the home, regardless of whose name is on the title or whether it is "marital property."

The court shall balance (i) the hardships to respondent and any minor child or dependent adult in respondent's care resulting from entry of this remedy with (ii) the hardships to petitioner and any minor child or dependent adult in petitioner's care resulting from continued exposure to the risk of abuse....The balance of hardships is presumed to favor possession by petitioner unless the presumption is rebutted by a preponderance of the evidence.

Stay-away orders.
If the court grants the order of protection, it can require the defendant to stay away from plaintiff or any other person protected by the order. Unlike exclusive possession, the stay-away remedy provides for no balancing of hardships. Order-of-protection forms typically let the plaintiff specify how many feet away the defendant must stay. There is no set amount of space that must be given under current statutes or case law. Innocent encounters in public locations are not a violation.

Personal property.
Damages from abuse.
The IDVA allows plaintiffs to seek damages for actual losses suffered as a result of defendant's abuse, including lost earnings, medical expenses, etc.

Entry while intoxicated, under the influence. The IDVA can prohibit the defendant from entering or staying in the home "while the respondent is under the influence of alcohol or drugs and constitutes a threat to the safety and well-being of the petitioner and petitioner's children."

Firearm possession
. The IDVA requires the defendant to turn over weapons and guns to the police to hold "if the court is satisfied that there is any danger of illegal use of firearms."

Payment of shelter services. The defendant could be ordered to pay for the costs of a shelter that provided temporary housing to the abused.

Injunctive relief. The "order of injunctive relief" section is the catch-all "other appropriate relief" section of the statute.

Animals. Pursuant to Public Act 095-0234 signed by Governor Blagojevich on August 17, 2007, effective January 1, 2008, pets are also included as part of the remedies available in orders of protection as follows:

Protection of animals.Grant the petitioner the exclusive care, custody or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent and order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, harming, or otherwise disposing of the animal.

Child-related remedies

Physical care and possession, temporary legal custody of minor child.
In an emergency order of protection, where there is no notice to the defendant, the court can only grant possession of the children, not custody.

Denying, restricting visitatio
n. Under the IDVA, the court may deny or restrict visitation if the court finds that visitation presents an additional opportunity for the defendant to abuse the petitioner or other protected persons.

Child support. The IDVA allows the remedy of child support.
Removal or concealment of a minor child. This IDVA remedy is also automatic upon the service of a summons and petition or praecipe filed under the IMDMA under the dissolution action stay.

Ordering defendant to appear in court
. The defendant could be ordered to appear in court either alone or with the minor child who has been wrongfully concealed from the plaintiff.

Prohibiting access to child's records.
If the order of protection prohibits defendant from having contact with the minor child, school or other records of the child may also be kept from the defendant.

Order of protection hearings are usually expedited as much as possible.

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