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ILLINOIS DOMESTIC VIOLENCE ACT BOOKLET CONTENT.
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Chapter
1
Order Of Protection In Civil Court
Illinois Domestic Violence Act
Article
I
General Provisions
Purposes
(750 ILCS 60/102)
This Act shall be liberally construed and applied to promote its
underlying purposes, which are to:
(1) Recognize
domestic violence as a serious crime against the individual and
society which produces family disharmony in thousands of Illinois
families, promotes a pattern of escalating violence which frequently
culminates in intra-family homicide, and creates an emotional
atmosphere that is not conducive to healthy childhood development;
(2) Recognize
domestic violence against high risk adults with disabilities, who
are particularly vulnerable due to impairments in ability to seek or
obtain protection, as a serious problem which takes on many forms,
including physical abuse, sexual abuse, neglect, and exploitation,
and facilitate accessibility of remedies under the Act in order to
provide immediate and effective assistance and protection.
(3) Recognize
that the legal system has ineffectively dealt with family violence
in the past, allowing abusers to escape effective prosecution or
financial liability, and has not adequately acknowledged the
criminal nature of domestic violence; that, although many laws have
changed, in practice there is still widespread failure to
appropriately protect and assist victims;
(4) Support 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, so that victims are not trapped in abusive
situations by fear of retaliation, loss of a child, financial
dependence, or loss of accessible housing or services;
(5) Clarify the
responsibilities and support the efforts of law enforcement officers
to provide immediate, effective assistance and protection for
victims of domestic violence, recognizing that law enforcement
officers often become the secondary victims of domestic violence, as
evidenced by the high rates of police injuries and deaths that occur
in response to domestic violence calls; and
(6) Expand the
civil and criminal remedies for victims of domestic violence;
including, when necessary, the remedies which effect physical
separation of the parties to prevent further abuse.
Definitions
(750 ILCS 60/103)
For the purposes of this Act, 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) "Adult
with disabilities" means an elder adult with disabilities or a
high-risk adult with disabilities.
A person may be an adult with disabilities for purposes of
this Act even though he or she has never been adjudicated an
incompetent adult. However,
no court proceeding may be initiated or continued on behalf of an
adult with disabilities over that adult's objection, unless such
proceeding is approved by his or her legal guardian, if any.
(3)"Domestic
violence" means abuse as defined in paragraph (1).
(4)"Elder
adult with disabilities" means an adult prevented by advanced
age from taking appropriate action to protect himself or herself
from abuse by a family or household member.
(5) "Exploitation" means the illegal, including
tortious, use of a high-risk adult with disabilities or of the
assets or resources of a high-risk adult with disabilities.
Exploitation includes, but is not limited to, the misappropriation
of assets or resources of a high-risk adult with disabilities by
undue influence, by breach of a fiduciary relationship, by fraud,
deception, or extortion, or the use of such assets or resources in a
manner contrary to law.
(6) "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, and 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. In the case of
a high-risk adult with disabilities, "family or household
members" includes any person who has the responsibility for a
high-risk adult as a result of a family relationship or who has
assumed responsibility for all or a portion of the care of a
high-risk adult with disabilities voluntarily, or by express or
implied contract, or by court order.
(7) "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.
(8) "High-risk adult with disabilities"
means a person aged 18 or over whose physical or mental disability
impairs his or her ability to seek or obtain protection from abuse,
neglect, or exploitation.
(9) "Interference with personal
liberty" means committing or threatening physical abuse,
harassment, intimidation or wilful 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.
(10) "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 Act, regardless
of whether the abused person is a family or household member.
(11) (A) "Neglect" means the failure to
exercise that degree of care toward a high-risk adult with
disabilities which a reasonable person would exercise under the
circumstances and includes but is not limited to:
(i)
the failure to take reasonable steps to protect a high-risk
adult with disabilities from acts of abuse;
(ii) the repeated,
careless imposition of unreasonable confinement;
(iii) the failure to
provide food, shelter, clothing, and personal hygiene to a high-risk
adult with disabilities who requires such assistance;
(iv) the failure to
provide medical and rehabilitative care for the physical and mental
health needs of a high-risk adult with disabilities; or
(v) the failure to
protect a high-risk adult with disabilities from health and safety
hazards.
(B)
Nothing in this subsection (10) shall be construed to impose a
requirement that assistance be provided to a high-risk adult with
disabilities over his or her objection in the absence of a court
order, nor to create any new affirmative duty to provide support to
a high-risk adult with disabilities.
(12)"Order of protection" means an
emergency order, interim order or plenary order, granted pursuant to
this Act, which includes any or all of the remedies authorized by
Section 214 of this Act.
(13) "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 Act.
(14) "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 deprivation; or
(iii) knowing or reckless
conduct which creates an immediate risk of physical harm.
(14.5) "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 the order of
protection.
(15) "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 or treatment when
the dependent person has expressed an intent to forgo such medical
care or treatment. This
paragraph does not create any new affirmative duty to provide
support to dependent persons.
Article
II
Orders of Protection
Persons
protected by this Act
(750 ILCS 60/201)
(a) The
following persons are protected by this Act:
(i) any person abused by a family or household member;
(ii) any high-risk adult with disabilities who is abused,
neglected, or exploited by a family or household member;
(iii) any minor child or dependent adult in the care of such
person; and
(iv) any person residing or employed at a private home or
public shelter which is housing an abused family or household
member.
(b)
A petition for an order of protection may be filed only:
(i) by a person who has been abused by a family or household
member or by any person on behalf of a minor child or an adult who
has been abused by a family or household member and who, because of
age, health, disability, or inaccessibility, cannot file the
petition, or
(ii) by any person on behalf of a high-risk adult with
disabilities who has been abused, neglected, or exploited by a
family or household member. However,
any petition properly filed under this Act may seek protection for
any additional persons protected by this Act.
Access of high-risk adults
(750 ILCS 60/201.1)
No person shall
obstruct or impede the access of a high-risk adult with disabilities
to any agency or organization authorized to file a petition for an
order of protection under Section 201 of this Act for the purpose of
a private visit relating to legal rights, entitlements, claims and
services under this Act and Section 1 of "An Act in relation to
domestic relations and domestic violence shelters and service
programs", approved September 24, 1981, as now or hereafter
amended. If a person
does so obstruct or impede such access of a high-risk adult with
disabilities, local law enforcement agencies shall take all
appropriate action to assist the party seeking access in petitioning
for a search warrant or an ex parte injunctive order.
Such warrant or order may issue upon a showing of probable
cause to believe that the high-risk adult with disabilities is the
subject of abuse, neglect, or exploitation which constitutes a
criminal offense or that any other criminal offense is occurring
which affects the interests or welfare of the high-risk adult with
disabilities. When,
from the personal observations of a law enforcement officer, it
appears probable that delay of entry in order to obtain a warrant or
order would cause the high-risk adult with disabilities to be in
imminent danger of death or great bodily harm, entry may be made by
the law enforcement officer after an announcement of the officer's
authority and purpose.
Commencement
of action; filing fees; dismissal
(750 ILCS 60/202)
(a) How to
commence action. Actions for orders of protection are commenced:
(1) Independently: By filing a petition for an order of
protection in any civil court, unless specific courts are designated
by local rule or order.
(2) In conjunction with another civil
proceeding: By filing a petition for an order of protection under
the same case number as another civil proceeding involving the
parties, including but not limited to: (i) any proceeding under the
Illinois Marriage and Dissolution of Marriage Act, Illinois
Parentage Act of 1984, Nonsupport of Spouse and Children Act,
Revised Uniform Reciprocal Enforcement of Support Act or an action
for nonsupport brought under Article 10 of the Illinois Public Aid
Code, provided that a petitioner and the respondent are a party to
or the subject of that proceeding or (ii) a guardianship proceeding
under the Probate Act of 1975, or a proceeding for involuntary
commitment under the Mental Health and Developmental Disabilities
Code, or any proceeding, other than a delinquency petition, under
the Juvenile Court Act of 1987, provided that a petitioner or the
respondent is a party to or the subject of such proceeding.
(3)
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 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 or persons protected by
this Act; and
(ii) the petition, which is filed by the State's Attorney,
names a victim of the alleged crime as a petitioner.
(b)
Filing, certification, and service fees.
No fee shall be charged by the clerk for filing, amending,
vacating, certifying, or photocopying petitions or orders; or for
issuing alias summons; or for any related filing service. No
fee shall be charged by the sheriff for service by the sheriff of a
petition, rule, motion, or order in an action commenced under this
Section.
(c) Dismissal
and consolidation. 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.
No action for an order of protection shall be dismissed
because the respondent is being prosecuted for a crime against the
petitioner. An
independent action may be consolidated with another civil
proceeding, as provided by paragraph (2) of subsection (a) of this
Section. For any action commenced under paragraph (2) or (3) of
subsection (a) of this Section, dismissal of the conjoined case (or
a finding of not guilty) shall not require dismissal of the action
for the order of protection; instead, it may be treated as an
independent action and, if necessary and appropriate, transferred to
a different court or division.
Dismissal of any conjoined case shall not affect the validity
of any previously issued order of protection, and thereafter
subsections (b)(1) and (b)(2) of Section 220 shall be inapplicable
to such order.
(d)
Pro se petitions. The
court shall provide, through the office of the clerk of the court,
simplified forms and clerical assistance to help with the writing
and filing of a petition under this Section by any person not
represented by counsel. In
addition, that assistance may be provided by the state's attorney.
Pleading;
non-disclosure of address:
non-disclosure of schools.
(750 ILCS 60/203)
(a) A petition
for an order of protection shall be in writing and verified or
accompanied by affidavit and shall allege that petitioner has been
abused by respondent, who is a family or household member. The
petition shall further set forth whether there is any other pending
action between the parties. During
the pendency of this proceeding, each party has a continuing duty to
inform the court of any subsequent proceeding for an order of
protection in this or any other state.
(b) If the
petition states that disclosure of petitioner's address would risk
abuse of petitioner or any member of petitioner's family or
household or reveal the confidential address of a shelter for
domestic violence victims, that address may be omitted from all
documents filed with the court.
If disclosure is necessary to determine jurisdiction or
consider any venue issue, it shall be made orally and in camera. If
petitioner has not disclosed an address under this subsection,
petitioner shall designate an alternative address at which
respondent may serve notice of any motions.
(c) If the
petitioner is seeking to have a child protected by the order of
protection, and if that child is enrolled in any day-care facility,
pre-school, pre-kindergarten, private school, public school
district, college, or university, the petitioner may provide the
name and address of the day-care facility, pre-school,
pre-kindergarten, private school, public school district, college,
or university to the court. However, if the petition states that
disclosure of this information would risk abuse to the petitioner or
to the child protected under the order, this information may be
omitted from all documents filed with the court.
Application
of rules of civil procedure; Domestic abuse advocates
(750 ILCS 60/205)
(a) Any
proceeding to obtain, modify, reopen or appeal an order of
protection, whether commenced alone or in conjunction with a civil
or criminal proceeding, shall be governed by the rules of civil
procedure of this State. The
standard of proof in such a proceeding is proof by a preponderance
of the evidence, whether the proceeding is heard in criminal or
civil court. The Code
of Civil Procedure and Supreme Court and local court rules
applicable to civil proceedings, as now or hereafter amended, shall
apply, except as otherwise provided by this law.
(b)(1)
In all circuit court proceedings under this Act, domestic abuse
advocates shall be allowed to attend and sit at counsel table and
confer with the victim, unless otherwise directed by the court.
(2) In criminal proceedings in circuit courts, domestic abuse
advocates shall be allowed to accompany the victim and confer with
the victim, unless otherwise directed by the court.
(3) Court administrators shall allow domestic abuse advocates
to assist victims of domestic violence in the preparation of
petitions for orders of protection.
(4) Domestic abuse advocates are not engaged in the
unauthorized practice of law when providing assistance of the types
specified in this subsection (b).
Trial
by jury
(750 ILCS 60/206)
There
shall be no right to trial by jury in any proceeding to obtain,
modify, vacate or extend any order of protection under this Act. However, nothing in this Section shall deny any existing
right to trial by jury in a criminal proceeding.
Subject
matter jurisdiction
(750 ILCS 60/207)
Each of
the circuit courts shall have the power to issue orders of
protection.
Jurisdiction
over persons
(750 ILCS 60/208)
In child
custody proceedings, the court's personal jurisdiction is determined
by this State's Uniform Child-Custody Jurisdiction and Enforcement Act, as now or
hereafter amended. Otherwise,
the courts of this State have jurisdiction to bind (i) State
residents and (ii) non-residents having minimum contacts with this
State, to the extent permitted by the long-arm statute, Section
2-209 of the Code of Civil Procedure, as now or hereafter amended.
Venue
(750 ILCS 60/209)
(a) Filing.
A petition for an order of protection may be filed in any
county where (i) petitioner resides, (ii) respondent resides, (iii)
the alleged abuse occurred or (iv) the petitioner is temporarily
located if petitioner left petitioner's residence to avoid further
abuse and could not obtain safe, accessible, and adequate temporary
housing in the county of that residence.
(b) Exclusive
Possession. With
respect to requests for exclusive possession of the residence under
this Act, venue is proper only in the county where the residence is
located, except in the following circumstances:
(1) If a request for exclusive possession of the residence is
made under this Act in conjunction with a proceeding under the
Illinois Marriage and Dissolution of Marriage Act, venue is proper
in the county or judicial circuit where the residence is located or
in a contiguous county or judicial circuit.
(2) If a request for exclusive possession of the residence is
made under this Act in any other proceeding, provided the petitioner
meets the requirements of item (iv) of subsection (a), venue is
proper in the county or judicial circuit where the residence is
located or in a contiguous county or judicial circuit.
In such case, however, if the court is not located in the
county where the residence is located, it may grant exclusive
possession of the residence under subdivision (b)(2) of Section 214
only in an emergency order under Section 217, and such grant may be
extended thereafter beyond the maximum initial period only by a
court located in the county where the residence is located.
(c) Inconvenient
forum. If an order of
protection is issued by a court in a county in which neither of the
parties resides, the court may balance hardships to the parties and
accordingly transfer any proceeding to extend, modify, re-open,
vacate or enforce any such order to a county wherein a party
resides.
(d) Objection.
Objection to venue is waived if not made within such time as
respondent's response is due, except as otherwise provided in
subsection (b). In no
event shall venue be deemed jurisdictional.
Process
(750 ILCS 60/210)
(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 cases the following methods may be used:
(1) By delivery of the summons to respondent personally in
open court in pending civil or criminal cases.
(2) By notice in accordance with Section 210.1 in civil cases
in which the defendant has
filed a general appearance.
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.
Attachments to the summons or notice shall include the
petition for order of protection and supporting affidavits, if any,
and any emergency order of protection that has been issued.
The enforcement of an order of protection under Section 223
shall not be affected by the lack of service, delivery, or notice,
provided the requirements of subsection (d) of that Section are
otherwise met.
(b) Blank.
(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.
(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 214 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 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 214, 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 as
follows:
(1) For any of the remedies sought in the petition, if
respondent has been served or given notice in accordance with
subsection (a) and if respondent then fails to appear as directed or
fails to appear on any subsequent appearance or hearing date agreed
to by the parties or set by the court; or
(2) For any of the remedies provided in accordance with
subsection (e), if respondent 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.
Service
of notice in conjunction with a pending civil case
(750 ILCS 60/210.1)
(a) Notice.
When an action for an order of protection is sought in
conjunction with a pending civil case in which the court has
obtained jurisdiction over respondent, and respondent has filed a
general appearance, then a separate summons need not issue.
Original notice of a hearing on a petition for an order of
protection may be given, and the documents served, in accordance
with Illinois Supreme Court Rules 11 and 12.
When, however, an emergency order of protection is sought in
such a case on an ex parte application, then the procedure set forth
in subsection (a) of Section 210 (other than in subsection (a)(2))
shall be followed. If an order of protection is issued using the
notice provisions of this Section, then the order of protection or
extensions of that order may survive the disposition of the main
civil case. The
enforcement of any order of protection under Section 223 shall not
be affected by the lack of notice under this Section, provided the
requirements of subsection (d) of that Section are otherwise met.
(b) Default.
The form of notice described in subsection (a) shall include
the following language directed to the respondent:
A 2-year plenary
order of protection may be entered by default for any of the
remedies sought in the petition if you fail to appear on the
specified hearing date or on any subsequent hearing date agreed to
by the parties or set by the court.
(c) Party to
give notice. Notice in
the pending civil cases shall be given (i) by either party under
this Section, with respect to extensions, modifications, hearings,
or other relief pertinent to an order of protection, in accordance
with Illinois Supreme Court Rules 11 and 12 or (ii) by the
respondent as provided in subsection (c) of Section 224.
Service of notice of hearings
(750 ILCS 60/211)
Except as
provided in Sections 210 and 210.1, notice of hearings on petitions
or motions shall be served in accordance with Supreme Court Rules 11
and 12, unless notice is excused by Section 217 of this Act, or by
the Code of Civil Procedure, Supreme Court Rules, or local rules, as
now or hereafter amended.
Hearings
(750 ILCS 60/212)
(a) A petition
for an order of protection shall be treated as an expedited
proceeding, and no court shall transfer or otherwise decline to
decide all or part of such petition except as otherwise provided
herein. Nothing in this
Section shall prevent the court from reserving issues when
jurisdiction or notice requirements are not met.
(b) Any court or
a division thereof which ordinarily does not decide matters of child
custody and family support may decline to decide contested issues of
physical care, custody, visitation, or family support unless a
decision on one or more of those contested issues is necessary to
avoid the risk of abuse, neglect, removal from the state or
concealment within the state of the child or of separation of the
child from the primary caretaker.
If the court or division thereof has declined to decide any
or all of these issues, then it shall transfer all undecided issues
to the appropriate court or division.
In the event of such a transfer, a government attorney
involved in the criminal prosecution may, but need not, continue to
offer counsel to petitioner on transferred matters.
(c) If the court
transfers or otherwise declines to decide any issue, judgment on
that issue shall be expressly reserved and ruling on other issues
shall not be delayed or declined.
Continuances
(750 ILCS 60/213)
(a) Petitions
for emergency orders. Petitions
for emergency remedies shall be granted or denied in accordance with
the standards of Section 217, regardless of respondent's appearance
or presence in court.
(b) Petitions
for interim and plenary orders.
Any action for an order of protection is an expedited
proceeding. Continuances
should be granted only for good cause shown and kept to the minimum
reasonable duration, taking into account the reasons for the
continuance. If the
continuance is necessary for some, but not all, of the remedies
requested, hearing on those other remedies shall not be delayed.
Hearsay
exception
(750 ILCS 60/213.1)
In an action for
an order of protection on behalf of a high-risk adult with
disabilities, a finding of lack of capacity to testify shall not
render inadmissible any statement as long as the reliability of the
statement is ensured by circumstances bringing it within the scope
of a hearsay exception. The
following evidence shall be admitted as an exception to the hearsay
rule whether or not the declarant is available as a witness:
(1) A statement
relating to a startling event or condition made spontaneously while
the declarant was under the contemporaneous or continuing stress of
excitement caused by the event or condition.
(2) A statement
made for the purpose of obtaining, receiving, or promoting medical
diagnosis or treatment, including psychotherapy, and describing
medical history, or past or present symptoms, pain, or sensations,
or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or
treatment. For purposes
of obtaining a protective order, the identity of any person
inflicting abuse or neglect as defined in this Act shall be deemed
reasonably pertinent to diagnosis or treatment.
(3) A statement
not specifically covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of trustworthiness, if
the court determines that (A) the statement is offered as evidence
of a material fact, and (B) the statement is more probative on the
point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts.
Circumstantial
guarantees of trustworthiness include:
(1) the credibility of the witness who testifies the
statement was made;
(2) assurance of the declarant's personal knowledge of the
event;
(3) the declarant's interest or bias and the presence or
absence of capacity or motive to fabricate;
(4) the presence or absence of suggestiveness or prompting at
the time the statement was made;
(5) whether the declarant has ever reaffirmed or recanted the
statement; and
(6) corroboration by physical evidence or behavioral changes
in the declarant.
The record shall
reflect the court's findings of fact and conclusions of law as to
the trustworthiness requirement.
A statement
shall not be admitted under the exception set forth in this Section
unless its proponent gives written notice stating his or her
intention to offer the statement and the particulars of it to the
adverse party sufficiently in advance of offering the statement to
provide the adverse party with a fair opportunity to prepare to meet
the statement.
Waiver
of privilege
(750 ILCS 60/213.2)
When the
subject of any proceeding under this Act is a high-risk adult with
disabilities for whom no guardian has been appointed, no party other
than the high-risk adult or the attorney for the high-risk adult
shall be entitled to invoke or waive a common law or statutory
privilege on behalf of the high-risk adult which results in the
exclusion of evidence.
Independent
counsel; temporary substitute guardian
(750 ILCS 60/213.3)
If the
petitioner is a high-risk adult with disabilities for whom a
guardian has been appointed, the court shall appoint independent
counsel other than a guardian ad litem and, may appoint a temporary
substitute guardian under the provisions of Article XIa of the
Probate Act of 1975. The
court shall appoint a temporary substitute guardian if the guardian
is named as a respondent in a petition under this Act.
Order
of protection; remedies
(750 ILCS 60/214)
(a) Issuance of
order. If the court
finds that petitioner has been abused by a family or household
member or that petitioner is a high-risk adult who has been abused,
neglected, or exploited, as defined in this Act, an order of
protection prohibiting the abuse, neglect, or exploitation shall
issue; provided that petitioner must also satisfy the requirements
of one of the following Sections, as appropriate: Section 217 on
emergency orders, Section 218 on interim orders, or Section 219 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 Act.
(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 217 on emergency orders, and Section 218 on interim orders, and
Section 219 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, neglect, or exploitation.
Prohibit respondent's harassment, interference with personal
liberty, intimidation of a dependent, physical abuse, or willful
deprivation, neglect or exploitation, as defined in this Act, or
stalking of the petitioner, as defined in Section 12-7.3 of the
Criminal Code of 1961, if such abuse, neglect, exploitation, or
stalking has occurred or otherwise appears likely to occur if not
prohibited.
(2) Grant of exclusive possession of residence.
Prohibit respondent from entering or remaining in any
residence or household 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 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.
(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.
(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.
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.
(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.
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.
(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.
(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.
If a court
finds, after a hearing, that respondent has committed abuse (as
defined in Section 103) 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.
(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.
If a court finds, after a hearing, that
respondent has committed abuse (as defined in Section 103) 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.
(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".
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.
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.
(8) Removal or
concealment of minor child. Prohibit
respondent from removing a minor child from the State or concealing
the child within the State.
(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.
(10) Possession of
personal property. Grant
petitioner exclusive possession of personal property and, if
respondent has possession or control, direct respondent to promptly
make it available to petitioner, if:
(i)
petitioner, but not respondent, owns the property; or
(ii)
the parties own the property jointly; sharing it would risk abuse of
petitioner by respondent or is impracticable; and the balance of
hardships favors temporary possession by petitioner.
If petitioner's sole claim to ownership of the
property is that it is marital property, the court may award
petitioner temporary possession thereof under the standards of
subparagraph (ii) of this paragraph only if a proper proceeding has
been filed under the Illinois Marriage and Dissolution of Marriage
Act, as now or hereafter amended.
No order under this provision shall affect title to property.
(11) Protection of
property. Forbid the respondent from taking, transferring, encumbering,
concealing, damaging or otherwise disposing of any real or personal
property, except as explicitly authorized by the court, if:
(i)
petitioner, but not respondent, owns the property; or
(ii)
the parties own the property jointly, and the balance of hardships
favors granting this remedy.
If petitioner's sole claim to ownership of the
property is that it is marital property, the court may grant
petitioner relief under subparagraph (ii) of this paragraph only if
a proper proceeding has been filed under the Illinois Marriage and
Dissolution of Marriage Act, as now or hereafter amended.
The court may further prohibit respondent from
improperly using the financial or other resources of an aged member
of the family or household for the profit or advantage of respondent
or of any other person.
(12)
Order for payment of support. Order
respondent to pay temporary support for the petitioner or any child
in the petitioner's care or custody, when the respondent has a legal
obligation to support that person, in accordance with the Illinois
Marriage and Dissolution of Marriage Act, which shall govern, among
other matters, the amount of support, payment through the clerk and
withholding of income to secure payment.
An order for child support may be granted to a petitioner
with lawful physical care or custody of a child, or an order or
agreement for physical care or custody, prior to entry of an order
for legal custody. Such
a support order shall expire upon entry of a valid order granting
legal custody to another, unless otherwise provided in the custody
order.
(13) Order for payment of
losses. Order respondent to pay petitioner for losses suffered as a
direct result of the abuse, neglect, or exploitation. Such losses shall include, but not be limited to, medical
expenses, lost earnings or other support, repair or replacement of
property damaged or taken, reasonable attorney's fees, court costs
and moving or other travel expenses, including additional reasonable
expenses for temporary shelter and restaurant meals.
(i)
Losses affecting family needs.
If a party is entitled to seek maintenance, child support or
property distribution from the other party under the Illinois
Marriage and Dissolution of Marriage Act, as now or hereafter
amended, the court may order respondent to reimburse petitioner's
actual losses, to the extent that such reimbursement would be
"appropriate temporary relief", as authorized by
subsection (a)(3) of Section 501 of that Act.
(ii)
Recovery of expenses. In the case of an improper concealment or removal of a minor
child, the court may order respondent to pay the reasonable expenses
incurred or to be incurred in the search for and recovery of the
minor child, including but not limited to legal fees, court costs,
private investigator fees, and travel costs.
(14) Prohibition of
entry. Prohibit the
respondent from entering or remaining in the residence or household
while the respondent is under the influence of alcohol or drugs and
constitutes a threat to the safety and well-being of the petitioner
or the petitioner's children.
(14.5)
Prohibition of firearm possession. (a) When a complaint is made
under a request for an order of protection, that the respondent has
threatened or is likely to use firearms illegally against the
petitioner, and the respondent is present in court, or has failed to
appear after receiving actual notice, the court shall examine on
oath the petitioner, and any witnesses who may be produced.
If the court is satisfied that there is any danger of the
illegal use of firearms, it shall issue an order that any firearms
in the possession of the respondent, except as provided in
subsection (b), be turned over to the local law enforcement agency
for safekeeping. If the respondent has failed to appear, the court
shall issue a warrant for seizure of any firearm in the possession
of the respondent. The
period of safekeeping shall be for a stated period of time not to
exceed 2 years. The
firearm or firearms shall be returned to the respondent at the end
of the stated period or at expiration of the order of protection,
whichever is sooner. (b) If the respondent is a peace officer as
defined in Section 2-13 of the Criminal Code of 1961, the court
shall order that any firearms used by the respondent in the
performance of his or her duties as a peace officer be surrendered
to the chief law enforcement executive of the agency in which the
respondent is employed, who shall retain the firearms for | 
