Construction
(725 ILCS 5/112A-1)
This
Article shall be interpreted in accordance with the purposes and
rules of construction set forth in Section 102 of the Illinois
Domestic Violence Act of 1986. Each of the provisions of the
Illinois Domestic Violence Act of 1986 which are included in
this Article shall govern the issuance, recording and
enforcement of orders of protection in criminal proceedings.
Commencement
of Actions
(725 ILCS 5/112A-2)
(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.
Definitions
(725 ILCS 5/112A-3)
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, 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.
(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 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
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 deprivation; or
(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 non physical 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 willfully 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.
Persons
protected by this article
(725 ILCS 5/112A-4)
(a) The
following persons are protected by this Article:
(i)
any person abused by a family or household member;
(ii)
any minor child or dependent adult in the care of such person;
and
(iii) 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 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. However, any petition properly filed
under this Article may seek protection for any additional
persons protected by this Article.
Pleading;
non-disclosure of address
(725 ILCS 5/112A-5)
(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.
Application of rules of civil procedure; criminal law
(725 ILCS 5/112A-6)
(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 law. Civil law on
venue, discovery, and on penalties for untrue statements shall
not apply to order of protection proceedings heard under this
Article 112A.
(b)
Criminal law on discovery, venue, and on penalties for untrue
statements apply to orders of protection proceedings heard under
this Article 112A.
Trial by
jury
(725 ILCS 5/112A-7)
There
shall be no right to trial by jury in any proceeding to obtain,
modify, vacate or extend any order of protection under this
Article. However, nothing in this Section shall deny any
existing right to trial by jury in a criminal proceeding.
Subject
matter jurisdiction
(725 ILCS 5/112A-8)
Each of
the circuit courts shall have the power to issue orders of
protection.
Jurisdiction over persons
(725 ILCS 5/112A-9)
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.
Process
(725 ILCS 5/112A-10)
(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.
Service of
Notice of Hearings
(725
ILCS 5/112A-11)
A party
presenting a petition or motion to the court shall provide the
other parties with written notice of the date, time and place of
the hearing thereon, together with a copy of any petition,
motion or accompanying affidavit not yet served upon that party,
and shall file proof of that service, in accordance with Supreme
Court Rules 11 and 12, unless notice is excused by Section
112A-17 of this Article, or by the Code of Civil Procedure,
Supreme Court Rules or local rules.
Hearings
(725 ILCS 5/112A-12)
(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) A
criminal court 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.
(c) The
court shall transfer to the appropriate court or division any
issue it has declined to decide. Any court may transfer any
matter which must be tried by jury to a more appropriate
calendar or division.
(d) 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
(725 ILCS 5/112A-13)
(a)
Petitions for Emergency Orders. Petitions for emergency
remedies shall be granted or denied in accordance with the
standards of Section 217 of the Illinois Domestic Violence Act
of 1986, regardless of respondent's presence in
court or appearance.
(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.
Order of
protection; remedies
(725 ILCS 5/112A-14)
(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 [725 ILCS
5/112A-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.
(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 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.
(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 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.
(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. 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 include in the order of protection the
requirement 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 fails to appear, or refuses or fails to surrender his
or her firearms, 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 safekeeping for the
stated period not to exceed 2 years as set forth in the court
order.
(15)
Prohibition of access to records. If an order of protection
prohibits respondent from having contact with the minor child,
or if petitioner's address is omitted under subsection (b) of
Section 112A-5, or if necessary to prevent abuse or wrongful
removal or concealment of a minor child, the order shall deny
respondent access to, and prohibit respondent from inspecting,
obtaining, or attempting to inspect or obtain, school or any
other records of the minor child who is in the care of
petitioner.
(16)
Order for payment of shelter services. Order respondent to
reimburse a shelter providing temporary housing and counseling
services to the petitioner for the cost of the services, as
certified by the shelter and deemed reasonable by the court.
(17)
Order for injunctive relief. Enter injunctive relief necessary
or appropriate to prevent further abuse of a family or household
member or to effectuate one of the granted remedies, if
supported by the balance of hardships. If the harm to be
prevented by the injunction is abuse or any other harm that one
of the remedies listed in paragraphs (1) through (16) of this
subsection is designed to prevent, no further evidence is
necessary to establish that the harm is an irreparable injury.
(c)
Relevant factors; findings.
(1)
In determining whether to grant a specific remedy, other than
payment of support, the court shall consider relevant factors,
including but not limited to the following:
(i) the nature, frequency, severity, pattern and consequences of
the respondent's past abuse of the petitioner or any family or
household member, including the concealment of his or her
location in order to evade service of process or notice, and the
likelihood of danger of future abuse to petitioner or any member
of petitioner's or respondent's family or household; and
(ii) the danger that any minor child will be abused or neglected
or improperly removed from the jurisdiction, improperly
concealed within the State or improperly separated from the
child's primary caretaker.
(2)
In comparing relative hardships resulting to the parties from
loss of possession of the family home, the court shall consider
relevant factors, including but not limited to the following:
(i) availability, accessibility, cost, safety, adequacy,
location and other characteristics of alternate housing for each
party and any minor child or dependent adult in the party's
care;
(ii) the effect on the party's employment; and
(iii) the effect on the relationship of the party, and any minor
child or dependent adult in the party's care, to family, school,
church and community.
(3)
Subject to the exceptions set forth in paragraph (4) of this
subsection, the court shall make its findings in an official
record or in writing, and shall at a minimum set forth the
following:
(i) That the court has considered the applicable relevant
factors described in paragraphs (1) and (2) of this subsection.
(ii) Whether the conduct or actions of respondent, unless
prohibited, will likely cause irreparable harm or continued
abuse.
(iii) Whether it is necessary to grant the requested relief in
order to protect petitioner or other alleged abused persons.
(4)
For purposes of issuing an ex parte emergency order of
protection, the court, as an alternative to or as a supplement
to making the findings described in paragraphs (c)(3)(i) through
(c)(3)(iii) of this subsection, may use the following procedure:
When a
verified petition for an emergency order of protection in
accordance with the requirements of Sections 112A-5 and 112A-17
is presented to the court, the court shall examine petitioner on
oath or affirmation. An emergency order of protection shall be
issued by the court if it appears from the contents of the
petition and the examination of petitioner that the averments
are sufficient to indicate abuse by respondent and to support
the granting of relief under the issuance of the emergency order
of protection.
(5)
Never married parties. No rights or responsibilities for a
minor child born outside of marriage attach to a putative father
until a father and child relationship has been established under
the Illinois Parentage Act of 1984. Absent such an
adjudication, no putative father shall be granted temporary
custody of the minor child, visitation with the minor child, or
physical care and possession of the minor child, nor shall an
order of payment for support of the minor child be entered.
(d)
Balance of hardships; findings. If the court finds that the
balance of hardships does not support the granting of a remedy
governed by paragraph (2), (3), (10), (11), or (16) of
subsection (b) of this Section, which may require such
balancing, the court's findings shall so indicate and shall
include a finding as to whether granting the remedy will result
in hardship to respondent that would substantially outweigh the
hardship to petitioner from denial of the remedy. The findings
shall be an official record or in writing.
(e)
Denial of remedies. Denial of any remedy shall not be based, in
whole or in part, on evidence that:
(1)
Respondent has cause for any use of force, unless that cause
satisfies the standards for justifiable use of force provided by
Article VII of the Criminal Code of 1961;
(2)
Respondent was voluntarily intoxicated;
(3)
Petitioner acted in self-defense or defense of another, provided
that, if petitioner utilized force, such force was justifiable
under Article VII of the Criminal Code of 1961;
(4)
Petitioner did not act in self-defense or defense of another;
(5)
Petitioner left the residence or household to avoid further
abuse by respondent;
(6)
Petitioner did not leave the residence or household to avoid
further abuse by respondent;
(7)
Conduct by any family or household member excused the abuse by
respondent, unless that same conduct would have excused such
abuse if the parties had not been family or household members.
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