(725 ILCS 5/112A‑2) (from Ch. 38, par. 112A‑2)
Sec. 112A‑2. Commencement of Actions.
(a) Actions for orders of protection are commenced in conjunction with a delinquency petition or a criminal prosecution by filing a petition for an order of protection, under the same case number as the delinquency petition or the criminal prosecution, to be granted during pre‑trial release of a defendant, with any dispositional order issued under Section 5‑710 of the Juvenile Court Act of 1987, or as a condition of release, supervision, conditional discharge, probation, periodic imprisonment, parole or mandatory supervised release, or in conjunction with imprisonment or a bond forfeiture warrant, provided that:
(i) the violation is alleged in an information, |
| complaint, indictment or delinquency petition on file, and the alleged offender and victim are family or household members; and | |
(ii) the petition, which is filed by the State's |
| Attorney, names a victim of the alleged crime as a petitioner. | |
(b) Withdrawal or dismissal of any petition for an order of protection prior to adjudication where the petitioner is represented by the state shall operate as a dismissal without prejudice.
(c) Voluntary dismissal or withdrawal of any delinquency petition or criminal prosecution or a finding of not guilty shall not require dismissal of the action for the order of protection; instead, in the discretion of the State's Attorney, it may be treated as an independent action and, if necessary and appropriate, transferred to a different court or division. Dismissal of any delinquency petition or criminal prosecution shall not affect the validity of any previously issued order of protection, and thereafter subsection (b) of Section 112A‑20 shall be inapplicable to that order.
(Source: P.A. 90‑590, eff. 1‑1‑99.) |
(725 ILCS 5/112A‑3) (from Ch. 38, par. 112A‑3)
Sec. 112A‑3. Definitions. For the purposes of this Article, the following terms shall have the following meanings:
(1) "Abuse" means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.
(2) "Domestic violence" means abuse as described in paragraph (1).
(3) "Family or household members" include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers as defined in paragraph (3) of subsection (b) of Section 12‑21 of the Criminal Code of 1961. For purposes of this paragraph, neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship.
(4) "Harassment" means knowing conduct which is not necessary to accomplish a purpose which 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 |
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(ii) repeatedly telephoning petitioner's place of |
| employment, home or residence; | |
(iii) repeatedly following petitioner about in a |
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(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 from an incident or pattern of domestic violence; or | |
(vi) threatening physical force, confinement or |
| restraint on one or more occasions. | |
(5) "Interference with personal liberty" means committing or threatening physical abuse, harassment, intimidation or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.
(6) "Intimidation of a dependent" means subjecting a person who is dependent because of age, health or disability to participation in or the witnessing of: physical force against another or physical confinement or restraint of another which constitutes physical abuse as defined in this Article, regardless of whether the abused person is a family or household member.
(7) "Order of protection" means an emergency order, interim order or plenary order, granted pursuant to this Article, which includes any or all of the remedies authorized by Section 112A‑14 of this Code.
(8) "Petitioner" may mean not only any named petitioner for the order of protection and any named victim of abuse on whose behalf the petition is brought, but also any other person protected by this Article.
(9) "Physical abuse" includes sexual abuse and means any of the following:
(i) knowing or reckless use of physical force, |
| confinement or restraint; | |
(ii) knowing, repeated and unnecessary sleep |
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(iii) knowing or reckless conduct which creates an |
| immediate risk of physical harm. | |
(9.5) "Stay away" means for the respondent to refrain from both physical presence and nonphysical contact with the petitioner whether direct, indirect (including, but not limited to, telephone calls, mail, email, faxes, and written notes), or through third parties who may or may not know about the order of protection.
(10) "Willful deprivation" means wilfully denying a person who because of age, health or disability requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device, or other physical assistance, and thereby exposing that person to the risk of physical, mental or emotional harm, except with regard to medical care and treatment when such dependent person has expressed the intent to forgo such medical care or treatment. This paragraph does not create any new affirmative duty to provide support to dependent persons.
(Source: P.A. 92‑253, eff. 1‑1‑02; 93‑811, eff. 1‑1‑05.) |
(725 ILCS 5/112A‑10) (from Ch. 38, par. 112A‑10)
Sec. 112A‑10. Process.
(a) Summons. Any action for an order of protection, whether commenced alone or in conjunction with another proceeding, is a distinct cause of action and requires that a separate summons be issued and served, except that in pending criminal cases, the summons may be delivered to respondent in open court. The summons shall be in the form prescribed by Supreme Court Rule 101(d), except that it shall require respondent to answer or appear within 7 days, and shall be accompanied by the petition for the order of protection, any supporting affidavits, if any, and any emergency order of protection that has been issued. The enforcement of an order of protection under Section 112A‑23 shall not be affected by the lack of service or delivery, provided the requirements of subsection (a) of that Section are otherwise met.
(b) Fees. No fee shall be charged for service of summons.
(c) Expedited service. The summons shall be served by the sheriff or other law enforcement officer at the earliest time and shall take precedence over other summonses except those of a similar emergency nature. Special process servers may be appointed at any time, and their designation shall not affect the responsibilities and authority of the sheriff or other official process servers. Process shall not be served in court.
(d) Remedies requiring actual notice. The counseling, payment of support, payment of shelter services, and payment of losses remedies provided by paragraphs 4, 12, 13, and 16 of subsection (b) of Section 112A‑14 may be granted only if respondent has been personally served with process, has answered or has made a general appearance.
(e) Remedies upon constructive notice. Service of process on a member of respondent's household or by publication, in accordance with Sections 2‑203, 2‑206 and 2‑207 of the Code of Civil Procedure, as now or hereafter amended, shall be adequate for the remedies provided by paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 14, 15, and 17 of subsection (b) of Section 112A‑14, but only if: (i) petitioner has made all reasonable efforts to accomplish actual service of process personally upon respondent, but respondent cannot be found to effect such service; and (ii) petitioner files an affidavit or presents sworn testimony as to those efforts.
(f) Default. A plenary order of protection may be entered by default (1) for any of the remedies sought in the petition, if respondent has been served with documents in accordance with subsection (a) and if respondent then fails to appear on the specified return date or on any subsequent hearing date agreed to by the parties or set by the court; or (2) for any of the remedies provided under subsection (e), if the defendant fails to answer or appear in accordance with the date set in the publication notice or the return date indicated on the service of a household member.
(Source: P.A. 87‑1186.) |
(725 ILCS 5/112A‑14) (from Ch. 38, par. 112A‑14)
Sec. 112A‑14. Order of protection; remedies.
(a) Issuance of order. If the court finds that petitioner has been abused by a family or household member, as defined in this Article, an order of protection prohibiting such abuse shall issue; provided that petitioner must also satisfy the requirements of one of the following Sections, as appropriate: Section 112A‑17 on emergency orders, Section 112A‑18 on interim orders, or Section 112A‑19 on plenary orders. Petitioner shall not be denied an order of protection because petitioner or respondent is a minor. The court, when determining whether or not to issue an order of protection, shall not require physical manifestations of abuse on the person of the victim. Modification and extension of prior orders of protection shall be in accordance with this Article.
(b) Remedies and standards. The remedies to be included in an order of protection shall be determined in accordance with this Section and one of the following Sections, as appropriate: Section 112A‑17 on emergency orders, Section 112A‑18 on interim orders, and Section 112A‑19 on plenary orders. The remedies listed in this subsection shall be in addition to other civil or criminal remedies available to petitioner.
(1) Prohibition of abuse. Prohibit respondent's |
| harassment, interference with personal liberty, intimidation of a dependent, physical abuse or willful deprivation, as defined in this Article, if such abuse has occurred or otherwise appears likely to occur if not prohibited. |
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(2) Grant of exclusive possession of residence. |
| Prohibit respondent from entering or remaining in any residence, household, or premises of the petitioner, including one owned or leased by respondent, if petitioner has a right to occupancy thereof. The grant of exclusive possession of the residence, household, or premises shall not affect title to real property, nor shall the court be limited by the standard set forth in Section 701 of the Illinois Marriage and Dissolution of Marriage Act. |
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(A) Right to occupancy. A party has a right to |
| occupancy of a residence or household if it is solely or jointly owned or leased by that party, that party's spouse, a person with a legal duty to support that party or a minor child in that party's care, or by any person or entity other than the opposing party that authorizes that party's occupancy (e.g., a domestic violence shelter). Standards set forth in subparagraph (B) shall not preclude equitable relief. |
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(B) Presumption of hardships. If petitioner and |
| respondent each has the right to occupancy of a residence or household, 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 (should petitioner remain at the residence or household) or from loss of possession of the residence or household (should petitioner leave to avoid the risk of abuse). When determining the balance of hardships, the court shall also take into account the accessibility of the residence or household. Hardships need not be balanced if respondent does not have a right to occupancy. |
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The balance of hardships is presumed to favor |
| possession by petitioner unless the presumption is rebutted by a preponderance of the evidence, showing that the hardships to respondent substantially outweigh the hardships to petitioner and any minor child or dependent adult in petitioner's care. The court, on the request of petitioner or on its own motion, may order respondent to provide suitable, accessible, alternate housing for petitioner instead of excluding respondent from a mutual residence or household. |
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(3) Stay away order and additional prohibitions. |
| Order respondent to stay away from petitioner or any other person protected by the order of protection, or prohibit respondent from entering or remaining present at petitioner's school, place of employment, or other specified places at times when petitioner is present, or both, if reasonable, given the balance of hardships. Hardships need not be balanced for the court to enter a stay away order or prohibit entry if respondent has no right to enter the premises. |
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If an order of protection grants petitioner exclusive |
| possession of the residence, or prohibits respondent from entering the residence, or orders respondent to stay away from petitioner or other protected persons, then the court may allow respondent access to the residence to remove items of clothing and personal adornment used exclusively by respondent, medications, and other items as the court directs. The right to access shall be exercised on only one occasion as the court directs and in the presence of an agreed‑upon adult third party or law enforcement officer. |
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(4) Counseling. Require or recommend the respondent |
| to undergo counseling for a specified duration with a social worker, psychologist, clinical psychologist, psychiatrist, family service agency, alcohol or substance abuse program, mental health center guidance counselor, agency providing services to elders, program designed for domestic violence abusers or any other guidance service the court deems appropriate. The court may order the respondent in any intimate partner relationship to report to an Illinois Department of Human Services protocol approved partner abuse intervention program for an assessment and to follow all recommended treatment. |
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(5) Physical care and possession of the minor child. |
| In order to protect the minor child from abuse, neglect, or unwarranted separation from the person who has been the minor child's primary caretaker, or to otherwise protect the well‑being of the minor child, the court may do either or both of the following: (i) grant petitioner physical care or possession of the minor child, or both, or (ii) order respondent to return a minor child to, or not remove a minor child from, the physical care of a parent or person in loco parentis. |
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If a court finds, after a hearing, that respondent |
| has committed abuse (as defined in Section 112A‑3) of a minor child, there shall be a rebuttable presumption that awarding physical care to respondent would not be in the minor child's best interest. |
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(6) Temporary legal custody. Award temporary legal |
| custody to petitioner in accordance with this Section, the Illinois Marriage and Dissolution of Marriage Act, the Illinois Parentage Act of 1984, and this State's Uniform Child‑Custody Jurisdiction and Enforcement Act. |
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If a court finds, after a hearing, that respondent |
| has committed abuse (as defined in Section 112A‑3) of a minor child, there shall be a rebuttable presumption that awarding temporary legal custody to respondent would not be in the child's best interest. |
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(7) Visitation. Determine the visitation rights, if |
| any, of respondent in any case in which the court awards physical care or temporary legal custody of a minor child to petitioner. The court shall restrict or deny respondent's visitation with a minor child if the court finds that respondent has done or is likely to do any of the following: (i) abuse or endanger the minor child during visitation; (ii) use the visitation as an opportunity to abuse or harass petitioner or petitioner's family or household members; (iii) improperly conceal or detain the minor child; or (iv) otherwise act in a manner that is not in the best interests of the minor child. The court shall not be limited by the standards set forth in Section 607.1 of the Illinois Marriage and Dissolution of Marriage Act. If the court grants visitation, the order shall specify dates and times for the visitation to take place or other specific parameters or conditions that are appropriate. No order for visitation shall refer merely to the term "reasonable visitation". |
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Petitioner may deny respondent access to the minor |
| child if, when respondent arrives for visitation, respondent is under the influence of drugs or alcohol and constitutes a threat to the safety and well‑being of petitioner or petitioner's minor children or is behaving in a violent or abusive manner. |
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If necessary to protect any member of petitioner's |
| family or household from future abuse, respondent shall be prohibited from coming to petitioner's residence to meet the minor child for visitation, and the parties shall submit to the court their recommendations for reasonable alternative arrangements for visitation. A person may be approved to supervise visitation only after filing an affidavit accepting that responsibility and acknowledging accountability to the court. |
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(8) Removal or concealment of minor child. Prohibit |
| respondent from removing a minor child from the State or concealing the child within the State. |
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(9) Order to appear. Order the respondent to appear |
| in court, alone or with a minor child, to prevent abuse, neglect, removal or concealment of the child, to return the child to the custody or care of the petitioner or to permit any court‑ordered interview or examination of the child or the respondent. |
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