093_HB3173

 
                                     LRB093 04569 RLC 11819 b

 1        AN ACT in relation to domestic violence.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section  5.  The Code of Criminal Procedure  of  1963  is
 5    amended by changing Section 112A-14 as follows:

 6        (725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
 7        Sec. 112A-14.  Order of protection; remedies.
 8        (a)  Issuance   of   order.   If  the  court  finds  that
 9    petitioner has been abused by a family or  household  member,
10    as   defined   in   this  Article,  an  order  of  protection
11    prohibiting such abuse shall issue; provided that  petitioner
12    must  also  satisfy  the requirements of one of the following
13    Sections,  as  appropriate:  Section  112A-17  on   emergency
14    orders, Section 112A-18 on interim orders, or Section 112A-19
15    on  plenary  orders.  Petitioner shall not be denied an order
16    of protection because petitioner or respondent  is  a  minor.
17    The  court, when determining whether or not to issue an order
18    of protection, shall not require physical  manifestations  of
19    abuse   on  the  person  of  the  victim.   Modification  and
20    extension  of  prior  orders  of  protection  shall   be   in
21    accordance  with  this Article. Whenever a court upon its own
22    motion or upon the motion of  any  party  determines  that  a
23    petitioner,  respondent,  or  other  necessary  party  is not
24    fluent in English to the extent he or she  will  sufficiently
25    understand an order of protection, the court shall order that
26    the  order  of  protection be translated into the language of
27    that party.  The court may determine a reasonable fee for the
28    translation services that shall be paid out of the  funds  of
29    the county or assessed as court costs.
30        (b)  Remedies and standards.  The remedies to be included
31    in  an  order of protection shall be determined in accordance
 
                            -2-      LRB093 04569 RLC 11819 b
 1    with this Section and  one  of  the  following  Sections,  as
 2    appropriate:  Section  112A-17  on  emergency orders, Section
 3    112A-18 on interim orders, and  Section  112A-19  on  plenary
 4    orders.    The remedies listed in this subsection shall be in
 5    addition to other civil or  criminal  remedies  available  to
 6    petitioner.
 7             (1)  Prohibition  of  abuse.   Prohibit respondent's
 8        harassment,   interference   with    personal    liberty,
 9        intimidation  of  a  dependent, physical abuse or willful
10        deprivation, as defined in this Article,  if  such  abuse
11        has  occurred or otherwise appears likely to occur if not
12        prohibited.
13             (2)  Grant of  exclusive  possession  of  residence.
14        Prohibit  respondent  from  entering  or remaining in any
15        residence or household of the petitioner,  including  one
16        owned  or leased by respondent, if petitioner has a right
17        to occupancy thereof.  The grant of exclusive  possession
18        of the residence shall not affect title to real property,
19        nor  shall the court be limited by the standard set forth
20        in Section 701 of the Illinois Marriage  and  Dissolution
21        of Marriage Act.
22                  (A)  Right  to  occupancy.  A party has a right
23             to occupancy of a residence or household  if  it  is
24             solely  or  jointly  owned  or leased by that party,
25             that party's spouse, a person with a legal  duty  to
26             support  that party or a minor child in that party's
27             care, or by any person  or  entity  other  than  the
28             opposing   party   that   authorizes   that  party's
29             occupancy  (e.g.,  a  domestic  violence   shelter).
30             Standards  set  forth  in subparagraph (B) shall not
31             preclude equitable relief.
32                  (B)  Presumption of hardships.   If  petitioner
33             and  respondent each has the right to occupancy of a
34             residence or household, the court shall balance  (i)
 
                            -3-      LRB093 04569 RLC 11819 b
 1             the  hardships  to respondent and any minor child or
 2             dependent adult in respondent's care resulting  from
 3             entry  of  this  remedy  with  (ii) the hardships to
 4             petitioner and any minor child or dependent adult in
 5             petitioner's care resulting from continued  exposure
 6             to  the  risk  of abuse (should petitioner remain at
 7             the  residence  or  household)  or  from   loss   of
 8             possession  of  the  residence  or household (should
 9             petitioner leave to avoid the risk of abuse).   When
10             determining  the  balance  of  hardships,  the court
11             shall also take into account  the  accessibility  of
12             the  residence  or household.  Hardships need not be
13             balanced if respondent does  not  have  a  right  to
14             occupancy.
15                  The  balance  of hardships is presumed to favor
16             possession by petitioner unless the  presumption  is
17             rebutted by a preponderance of the evidence, showing
18             that   the  hardships  to  respondent  substantially
19             outweigh the hardships to petitioner and  any  minor
20             child  or dependent adult in petitioner's care.  The
21             court, on the request of petitioner or  on  its  own
22             motion,  may  order  respondent to provide suitable,
23             accessible, alternate housing for petitioner instead
24             of excluding respondent from a mutual  residence  or
25             household.
26             (3)  Stay  away  order  and additional prohibitions.
27        Order respondent to stay  away  from  petitioner  or  any
28        other  person  protected  by  the order of protection, or
29        prohibit respondent from entering or remaining present at
30        petitioner's  school,  place  of  employment,  or   other
31        specified  places at times when petitioner is present, or
32        both, if reasonable,  given  the  balance  of  hardships.
33        Hardships  need  not be balanced for the court to enter a
34        stay away order or prohibit entry if  respondent  has  no
 
                            -4-      LRB093 04569 RLC 11819 b
 1        right to enter the premises.
 2             If   an   order   of  protection  grants  petitioner
 3        exclusive  possession  of  the  residence,  or  prohibits
 4        respondent  from  entering  the  residence,   or   orders
 5        respondent   to   stay  away  from  petitioner  or  other
 6        protected persons, then the court  may  allow  respondent
 7        access  to  the residence to remove items of clothing and
 8        personal  adornment  used  exclusively   by   respondent,
 9        medications,  and  other items as the court directs.  The
10        right to access shall be exercised on only  one  occasion
11        as   the   court  directs  and  in  the  presence  of  an
12        agreed-upon adult third party or law enforcement officer.
13             (4)  Counseling.    Require   or    recommend    the
14        respondent to undergo counseling for a specified duration
15        with    a    social    worker,   psychologist,   clinical
16        psychologist,  psychiatrist,   family   service   agency,
17        alcohol  or substance abuse program, mental health center
18        guidance counselor, agency providing services to  elders,
19        program  designed  for  domestic  violence abusers or any
20        other guidance service the court deems appropriate.
21             (5)  Physical  care  and  possession  of  the  minor
22        child.  In order to protect the minor child  from  abuse,
23        neglect,  or  unwarranted  separation from the person who
24        has been the  minor  child's  primary  caretaker,  or  to
25        otherwise  protect the well-being of the minor child, the
26        court may do either or both of the following:  (i)  grant
27        petitioner  physical  care  or  possession  of  the minor
28        child, or both, or (ii)  order  respondent  to  return  a
29        minor  child  to,  or  not remove a minor child from, the
30        physical care of a parent or person in loco parentis.
31             If a court finds, after a hearing,  that  respondent
32        has  committed  abuse (as defined in Section 112A-3) of a
33        minor child, there shall be a rebuttable presumption that
34        awarding physical care to respondent would not be in  the
 
                            -5-      LRB093 04569 RLC 11819 b
 1        minor child's best interest.
 2             (6)  Temporary  legal custody. Award temporary legal
 3        custody to petitioner in accordance  with  this  Section,
 4        the  Illinois  Marriage  and Dissolution of Marriage Act,
 5        the Illinois Parentage Act  of  1984,  and  this  State's
 6        Uniform Child Custody Jurisdiction Act.
 7             If  a  court finds, after a hearing, that respondent
 8        has committed abuse (as defined in Section 112A-3)  of  a
 9        minor child, there shall be a rebuttable presumption that
10        awarding  temporary legal custody to respondent would not
11        be in the child's best interest.
12             (7)  Visitation.  Determine the  visitation  rights,
13        if  any,  of  respondent  in  any case in which the court
14        awards physical care or  temporary  legal  custody  of  a
15        minor  child  to petitioner.  The court shall restrict or
16        deny respondent's visitation with a minor  child  if  the
17        court  finds  that respondent has done or is likely to do
18        any of the following: (i) abuse  or  endanger  the  minor
19        child  during  visitation;  (ii) use the visitation as an
20        opportunity to abuse or harass petitioner or petitioner's
21        family or household members; (iii) improperly conceal  or
22        detain the minor child; or (iv) otherwise act in a manner
23        that  is  not  in  the best interests of the minor child.
24        The court shall not be limited by the standards set forth
25        in Section 607.1 of the Illinois Marriage and Dissolution
26        of Marriage Act.  If the  court  grants  visitation,  the
27        order shall specify dates and times for the visitation to
28        take  place  or  other  specific parameters or conditions
29        that are appropriate.   No  order  for  visitation  shall
30        refer merely to the term "reasonable visitation".
31             Petitioner  may  deny respondent access to the minor
32        child  if,  when  respondent  arrives   for   visitation,
33        respondent is under the influence of drugs or alcohol and
34        constitutes  a  threat  to  the  safety and well-being of
 
                            -6-      LRB093 04569 RLC 11819 b
 1        petitioner or petitioner's minor children or is  behaving
 2        in a violent or abusive manner.
 3             If  necessary  to protect any member of petitioner's
 4        family or household from future abuse,  respondent  shall
 5        be  prohibited  from  coming to petitioner's residence to
 6        meet the minor child  for  visitation,  and  the  parties
 7        shall  submit  to  the  court  their  recommendations for
 8        reasonable alternative arrangements  for  visitation.   A
 9        person may be approved to supervise visitation only after
10        filing  an  affidavit  accepting  that responsibility and
11        acknowledging accountability to the court.
12             (8)  Removal  or   concealment   of   minor   child.
13        Prohibit  respondent from removing a minor child from the
14        State or concealing the child within the State.
15             (9)  Order  to  appear.   Order  the  respondent  to
16        appear in court, alone or with a minor child, to  prevent
17        abuse,  neglect,  removal or concealment of the child, to
18        return the child to the custody or care of the petitioner
19        or to permit any court-ordered interview  or  examination
20        of the child or the respondent.
21             (10)  Possession   of   personal   property.   Grant
22        petitioner exclusive possession of personal property and,
23        if  respondent  has   possession   or   control,   direct
24        respondent  to  promptly make it available to petitioner,
25        if:
26                  (i)  petitioner, but not respondent,  owns  the
27             property; or
28                  (ii)  the  parties  own  the  property jointly;
29             sharing  it  would  risk  abuse  of  petitioner   by
30             respondent  or  is impracticable; and the balance of
31             hardships favors temporary possession by petitioner.
32             If petitioner's  sole  claim  to  ownership  of  the
33        property  is  that  it is marital property, the court may
34        award petitioner temporary possession thereof  under  the
 
                            -7-      LRB093 04569 RLC 11819 b
 1        standards  of subparagraph (ii) of this paragraph only if
 2        a proper proceeding has been  filed  under  the  Illinois
 3        Marriage  and  Dissolution  of  Marriage  Act,  as now or
 4        hereafter amended.
 5             No order under this provision shall affect title  to
 6        property.
 7             (11)  Protection of property.  Forbid the respondent
 8        from   taking,   transferring,  encumbering,  concealing,
 9        damaging or otherwise disposing of any real  or  personal
10        property,  except  as explicitly authorized by the court,
11        if:
12                  (i)  petitioner, but not respondent,  owns  the
13             property; or
14                  (ii)  the parties own the property jointly, and
15             the   balance  of  hardships  favors  granting  this
16             remedy.
17             If petitioner's  sole  claim  to  ownership  of  the
18        property  is  that  it is marital property, the court may
19        grant petitioner relief under subparagraph (ii)  of  this
20        paragraph  only  if  a  proper  proceeding has been filed
21        under the Illinois Marriage and Dissolution  of  Marriage
22        Act, as now or hereafter amended.
23             The  court  may  further  prohibit  respondent  from
24        improperly  using  the financial or other resources of an
25        aged member of the family or household for the profit  or
26        advantage of respondent or of any other person.
27             (12)  Order   for   payment   of   support.    Order
28        respondent to pay temporary support for the petitioner or
29        any  child  in the petitioner's care or custody, when the
30        respondent has a legal obligation to support that person,
31        in accordance with the Illinois Marriage and  Dissolution
32        of Marriage Act, which shall govern, among other matters,
33        the  amount  of  support,  payment  through the clerk and
34        withholding of income to secure payment.   An  order  for
 
                            -8-      LRB093 04569 RLC 11819 b
 1        child  support may be granted to a petitioner with lawful
 2        physical care or custody of  a  child,  or  an  order  or
 3        agreement for physical care or custody, prior to entry of
 4        an  order  for legal custody.  Such a support order shall
 5        expire upon entry of a valid order granting legal custody
 6        to another, unless  otherwise  provided  in  the  custody
 7        order.
 8             (13)  Order  for payment of losses. Order respondent
 9        to pay petitioner for losses suffered as a direct  result
10        of  the  abuse.   Such  losses  shall include, but not be
11        limited to, medical  expenses,  lost  earnings  or  other
12        support,  repair  or  replacement  of property damaged or
13        taken, reasonable attorney's fees, court costs and moving
14        or other travel expenses, including additional reasonable
15        expenses for temporary shelter and restaurant meals.
16                  (i)  Losses affecting family needs.  If a party
17             is entitled to seek maintenance,  child  support  or
18             property distribution from the other party under the
19             Illinois  Marriage  and Dissolution of Marriage Act,
20             as now or hereafter amended,  the  court  may  order
21             respondent  to reimburse petitioner's actual losses,
22             to the  extent  that  such  reimbursement  would  be
23             "appropriate  temporary  relief",  as  authorized by
24             subsection (a)(3) of Section 501 of that Act.
25                  (ii)  Recovery of expenses.  In the case of  an
26             improper  concealment  or  removal of a minor child,
27             the court may order respondent to pay the reasonable
28             expenses incurred or to be incurred  in  the  search
29             for  and  recovery of the minor child, including but
30             not limited to  legal  fees,  court  costs,  private
31             investigator fees, and travel costs.
32             (14)  Prohibition of entry.  Prohibit the respondent
33        from  entering or remaining in the residence or household
34        while the respondent is under the influence of alcohol or
 
                            -9-      LRB093 04569 RLC 11819 b
 1        drugs  and  constitutes  a  threat  to  the  safety   and
 2        well-being   of   the   petitioner  or  the  petitioner's
 3        children.
 4             (14.5)  Prohibition of firearm possession.
 5                  (a)  Prohibit the  respondent  from  possessing
 6             any  firearms  during  the  period  of  the order of
 7             protection.  The court  When  a  complaint  is  made
 8             under a request for an order of protection, that the
 9             respondent  has  threatened  or  is  likely  to  use
10             firearms  illegally  against the petitioner, and the
11             respondent is present in court,  or  has  failed  to
12             appear  after  receiving  actual  notice,  the court
13             shall  examine  on  oath  the  petitioner,  and  any
14             witnesses who may be  produced.   If  the  court  is
15             satisfied  that  there  is any danger of the illegal
16             use of firearms, it shall include in  the  order  of
17             protection  the requirement that any firearms in the
18             possession of the respondent, except as provided  in
19             subsection  (b),   be  turned  over to the local law
20             enforcement agency for safekeeping during the period
21             of the order of protection.  If the respondent fails
22             to appear, or refuses or fails to surrender  his  or
23             her  firearms,  the  court shall issue a warrant for
24             seizure of any firearm  in  the  possession  of  the
25             respondent.  The  period of safekeeping shall be for
26             the duration of the order  of  protection  a  stated
27             period  of  time not to exceed 2 years.  The firearm
28             or firearms shall be returned to the  respondent  at
29             the end of the stated period or at expiration of the
30             order of protection, whichever is sooner.
31                  (b)  If  the  respondent  is a peace officer as
32             defined in Section 2-13  of  the  Criminal  Code  of
33             1961,  the  court shall order that any firearms used
34             by the respondent in the performance of his  or  her
 
                            -10-     LRB093 04569 RLC 11819 b
 1             duties  as  a  peace  officer  be surrendered to the
 2             chief law enforcement executive  of  the  agency  in
 3             which  the  respondent is employed, who shall retain
 4             the firearms for safekeeping for the duration of the
 5             order of protection stated period not  to  exceed  2
 6             years as set forth in the court order.
 7             (15)  Prohibition of access to records.  If an order
 8        of  protection  prohibits  respondent from having contact
 9        with the minor  child,  or  if  petitioner's  address  is
10        omitted  under  subsection  (b)  of Section 112A-5, or if
11        necessary  to  prevent  abuse  or  wrongful  removal   or
12        concealment  of  a  minor  child,  the  order  shall deny
13        respondent  access  to,  and  prohibit  respondent   from
14        inspecting,   obtaining,  or  attempting  to  inspect  or
15        obtain, school or any other records of  the  minor  child
16        who is in the care of petitioner.
17             (16)  Order  for payment of shelter services.  Order
18        respondent to reimburse  a  shelter  providing  temporary
19        housing and counseling services to the petitioner for the
20        cost  of  the  services,  as certified by the shelter and
21        deemed reasonable by the court.
22             (17)  Order for injunctive relief.  Enter injunctive
23        relief necessary or appropriate to prevent further  abuse
24        of  a  family or household member or to effectuate one of
25        the granted remedies, if  supported  by  the  balance  of
26        hardships.  If the harm to be prevented by the injunction
27        is  abuse  or  any  other  harm  that one of the remedies
28        listed in paragraphs (1) through (16) of this  subsection
29        is  designed to prevent, no further evidence is necessary
30        to establish that the harm is an irreparable injury.
31        (c)  Relevant factors; findings.
32             (1)  In determining  whether  to  grant  a  specific
33        remedy,  other  than  payment of support, the court shall
34        consider relevant factors, including but not  limited  to
 
                            -11-     LRB093 04569 RLC 11819 b
 1        the following:
 2                  (i)  the  nature,  frequency, severity, pattern
 3             and consequences of the respondent's past  abuse  of
 4             the  petitioner  or  any family or household member,
 5             including the concealment of his or her location  in
 6             order to evade service of process or notice, and the
 7             likelihood  of  danger of future abuse to petitioner
 8             or any member of petitioner's or respondent's family
 9             or household; and
10                  (ii)  the danger that any minor child  will  be
11             abused  or  neglected or improperly removed from the
12             jurisdiction, improperly concealed within the  State
13             or  improperly  separated  from  the child's primary
14             caretaker.
15             (2)  In comparing relative  hardships  resulting  to
16        the  parties  from loss of possession of the family home,
17        the court shall consider relevant factors, including  but
18        not limited to the following:
19                  (i)  availability, accessibility, cost, safety,
20             adequacy,  location  and  other  characteristics  of
21             alternate housing for each party and any minor child
22             or dependent adult in the party's care;
23                  (ii)  the effect on the party's employment; and
24                  (iii)  the  effect  on  the relationship of the
25             party, and any minor child or dependent adult in the
26             party's  care,  to  family,   school,   church   and
27             community.
28             (3)  Subject   to   the   exceptions  set  forth  in
29        paragraph (4) of this subsection, the  court  shall  make
30        its  findings  in  an  official record or in writing, and
31        shall at a minimum set forth the following:
32                  (i)  That  the   court   has   considered   the
33             applicable  relevant factors described in paragraphs
34             (1) and (2) of this subsection.
 
                            -12-     LRB093 04569 RLC 11819 b
 1                  (ii)  Whether  the  conduct   or   actions   of
 2             respondent,  unless  prohibited,  will  likely cause
 3             irreparable harm or continued abuse.
 4                  (iii)  Whether it is  necessary  to  grant  the
 5             requested  relief  in order to protect petitioner or
 6             other alleged abused persons.
 7             (4)  For purposes of issuing an ex  parte  emergency
 8        order  of  protection, the court, as an alternative to or
 9        as a supplement  to  making  the  findings  described  in
10        paragraphs   (c)(3)(i)   through   (c)(3)(iii)   of  this
11        subsection, may use the following procedure:
12             When a verified petition for an emergency  order  of
13        protection   in   accordance  with  the  requirements  of
14        Sections 112A-5 and 112A-17 is presented  to  the  court,
15        the   court   shall   examine   petitioner   on  oath  or
16        affirmation.  An emergency order of protection  shall  be
17        issued  by  the  court if it appears from the contents of
18        the petition and the examination of petitioner  that  the
19        averments  are sufficient to indicate abuse by respondent
20        and to support the granting of relief under the  issuance
21        of the emergency order of protection.
22             (5)  Never    married   parties.    No   rights   or
23        responsibilities  for  a  minor  child  born  outside  of
24        marriage attach to a putative father until a  father  and
25        child   relationship   has  been  established  under  the
26        Illinois  Parentage  Act  of  1984.    Absent   such   an
27        adjudication,   no   putative  father  shall  be  granted
28        temporary custody of the minor child, visitation with the
29        minor child, or physical care and possession of the minor
30        child, nor shall an order of payment for support  of  the
31        minor child be entered.
32        (d)  Balance  of hardships; findings.  If the court finds
33    that the balance of hardships does not support  the  granting
34    of  a  remedy  governed by paragraph (2), (3), (10), (11), or
 
                            -13-     LRB093 04569 RLC 11819 b
 1    (16) of subsection (b) of this  Section,  which  may  require
 2    such  balancing,  the  court's findings shall so indicate and
 3    shall include a finding as to  whether  granting  the  remedy
 4    will   result   in   hardship   to   respondent   that  would
 5    substantially outweigh the hardship to petitioner from denial
 6    of the remedy.  The findings shall be an official  record  or
 7    in writing.
 8        (e)  Denial  of remedies.  Denial of any remedy shall not
 9    be based, in whole or in part, on evidence that:
10             (1)  Respondent has cause  for  any  use  of  force,
11        unless that cause satisfies the standards for justifiable
12        use of force provided by Article VII of the Criminal Code
13        of 1961;
14             (2)  Respondent was voluntarily intoxicated;
15             (3)  Petitioner  acted in self-defense or defense of
16        another, provided that,  if  petitioner  utilized  force,
17        such  force  was  justifiable  under  Article  VII of the
18        Criminal Code of 1961;
19             (4)  Petitioner  did  not  act  in  self-defense  or
20        defense of another;
21             (5)  Petitioner left the residence or  household  to
22        avoid further abuse by respondent;
23             (6)  Petitioner  did  not  leave  the  residence  or
24        household to avoid further abuse by respondent;
25             (7)  Conduct  by  any  family  or  household  member
26        excused the abuse by respondent, unless that same conduct
27        would have excused such abuse if the parties had not been
28        family or household members.
29    (Source: P.A. 89-367, eff. 1-1-96.)

30        Section   10.  The Illinois Domestic Violence Act of 1986
31    is amended by changing Section 214 as follows:

32        (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
 
                            -14-     LRB093 04569 RLC 11819 b
 1        Sec. 214.  Order of protection; remedies.
 2        (a)  Issuance  of  order.   If  the  court   finds   that
 3    petitioner has been abused by a family or household member or
 4    that  petitioner  is  a  high-risk adult who has been abused,
 5    neglected, or exploited, as defined in this Act, an order  of
 6    protection  prohibiting  the  abuse, neglect, or exploitation
 7    shall issue; provided that petitioner must also  satisfy  the
 8    requirements   of   one   of   the   following  Sections,  as
 9    appropriate: Section 217 on emergency orders, Section 218  on
10    interim orders, or Section 219 on plenary orders.  Petitioner
11    shall not be denied an order of protection because petitioner
12    or respondent is a minor. The court, when determining whether
13    or  not  to  issue  an order of protection, shall not require
14    physical manifestations of abuse on the person of the victim.
15    Modification and extension  of  prior  orders  of  protection
16    shall  be  in accordance with this Act. Whenever a court upon
17    its own motion or upon the motion  of  any  party  determines
18    that  a  petitioner,  respondent, or other necessary party is
19    not  fluent  in  English  to  the  extent  he  or  she   will
20    sufficiently  understand  an  order  of protection, the court
21    shall order that the order of protection be  translated  into
22    the  language  of  that  party.   The  court  may determine a
23    reasonable fee for the translation  services  that  shall  be
24    paid  out  of  the  funds  of the county or assessed as court
25    costs.
26        (b)  Remedies and standards.  The remedies to be included
27    in an order of protection shall be determined  in  accordance
28    with  this  Section  and  one  of  the following Sections, as
29    appropriate: Section 217 on emergency orders, Section 218  on
30    interim  orders,  and  Section  219  on  plenary orders.  The
31    remedies listed in this subsection shall be  in  addition  to
32    other civil or criminal remedies available to petitioner.
33             (1)  Prohibition of abuse, neglect, or exploitation.
34        Prohibit   respondent's   harassment,  interference  with
 
                            -15-     LRB093 04569 RLC 11819 b
 1        personal liberty, intimidation of a  dependent,  physical
 2        abuse,  or  willful deprivation, neglect or exploitation,
 3        as defined in this Act, or stalking of the petitioner, as
 4        defined in Section 12-7.3 of the Criminal Code  of  1961,
 5        if  such  abuse,  neglect,  exploitation, or stalking has
 6        occurred or otherwise appears  likely  to  occur  if  not
 7        prohibited.
 8             (2)  Grant  of  exclusive  possession  of residence.
 9        Prohibit respondent from entering  or  remaining  in  any
10        residence  or  household of the petitioner, including one
11        owned or leased by respondent, if petitioner has a  right
12        to  occupancy  thereof. The grant of exclusive possession
13        of the residence shall not affect title to real property,
14        nor shall the court be limited by the standard set  forth
15        in  Section  701 of the Illinois Marriage and Dissolution
16        of Marriage Act.
17                  (A)  Right to occupancy.  A party has  a  right
18             to  occupancy  of  a residence or household if it is
19             solely or jointly owned or  leased  by  that  party,
20             that  party's  spouse, a person with a legal duty to
21             support that party or a minor child in that  party's
22             care,  or  by  any  person  or entity other than the
23             opposing  party   that   authorizes   that   party's
24             occupancy   (e.g.,  a  domestic  violence  shelter).
25             Standards set forth in subparagraph  (B)  shall  not
26             preclude equitable relief.
27                  (B)  Presumption  of  hardships.  If petitioner
28             and respondent each has the right to occupancy of  a
29             residence  or household, the court shall balance (i)
30             the hardships to respondent and any minor  child  or
31             dependent  adult in respondent's care resulting from
32             entry of this remedy  with  (ii)  the  hardships  to
33             petitioner and any minor child or dependent adult in
34             petitioner's  care resulting from continued exposure
 
                            -16-     LRB093 04569 RLC 11819 b
 1             to the risk of abuse (should  petitioner  remain  at
 2             the   residence   or  household)  or  from  loss  of
 3             possession of the  residence  or  household  (should
 4             petitioner  leave to avoid the risk of abuse).  When
 5             determining the  balance  of  hardships,  the  court
 6             shall  also  take  into account the accessibility of
 7             the residence or household. Hardships  need  not  be
 8             balanced  if  respondent  does  not  have a right to
 9             occupancy.
10                  The balance of hardships is presumed  to  favor
11             possession  by  petitioner unless the presumption is
12             rebutted by a preponderance of the evidence, showing
13             that  the  hardships  to  respondent   substantially
14             outweigh  the  hardships to petitioner and any minor
15             child or dependent adult in petitioner's care.   The
16             court,  on  the  request of petitioner or on its own
17             motion, may order respondent  to  provide  suitable,
18             accessible, alternate housing for petitioner instead
19             of  excluding  respondent from a mutual residence or
20             household.
21             (3)  Stay away order  and  additional  prohibitions.
22        Order  respondent  to  stay  away  from petitioner or any
23        other person protected by the  order  of  protection,  or
24        prohibit respondent from entering or remaining present at
25        petitioner's   school,  place  of  employment,  or  other
26        specified places at times when petitioner is present,  or
27        both,  if  reasonable,  given  the  balance of hardships.
28        Hardships need not be balanced for the court to  enter  a
29        stay  away  order  or prohibit entry if respondent has no
30        right to enter the premises.
31             If  an  order  of   protection   grants   petitioner
32        exclusive  possession  of  the  residence,  or  prohibits
33        respondent   from   entering  the  residence,  or  orders
34        respondent  to  stay  away  from  petitioner   or   other
 
                            -17-     LRB093 04569 RLC 11819 b
 1        protected  persons,  then  the court may allow respondent
 2        access to the residence to remove items of  clothing  and
 3        personal   adornment   used  exclusively  by  respondent,
 4        medications, and other items as the  court  directs.  The
 5        right  to  access shall be exercised on only one occasion
 6        as  the  court  directs  and  in  the  presence   of   an
 7        agreed-upon adult third party or law enforcement officer.
 8             (4)  Counseling.     Require    or   recommend   the
 9        respondent to undergo counseling for a specified duration
10        with   a   social    worker,    psychologist,    clinical
11        psychologist,   psychiatrist,   family   service  agency,
12        alcohol or substance abuse program, mental health  center
13        guidance  counselor, agency providing services to elders,
14        program designed for domestic  violence  abusers  or  any
15        other guidance service the court deems appropriate.
16             (5)  Physical  care  and  possession  of  the  minor
17        child.   In  order to protect the minor child from abuse,
18        neglect, or unwarranted separation from  the  person  who
19        has  been  the  minor  child's  primary  caretaker, or to
20        otherwise protect the well-being of the minor child,  the
21        court  may  do either or both of the following: (i) grant
22        petitioner physical  care  or  possession  of  the  minor
23        child,  or  both,  or  (ii)  order respondent to return a
24        minor child to, or not remove a  minor  child  from,  the
25        physical care of a parent or person in loco parentis.
26             If  a  court finds, after a hearing, that respondent
27        has committed abuse (as defined  in  Section  103)  of  a
28        minor child, there shall be a rebuttable presumption that
29        awarding  physical care to respondent would not be in the
30        minor child's best interest.
31             (6)  Temporary legal custody. Award temporary  legal
32        custody  to  petitioner  in accordance with this Section,
33        the Illinois Marriage and Dissolution  of  Marriage  Act,
34        the  Illinois  Parentage  Act  of  1984, and this State's
 
                            -18-     LRB093 04569 RLC 11819 b
 1        Uniform Child Custody Jurisdiction Act.
 2             If a court finds, after a hearing,  that  respondent
 3        has  committed  abuse  (as  defined  in Section 103) of a
 4        minor child, there shall be a rebuttable presumption that
 5        awarding temporary legal custody to respondent would  not
 6        be in the child's best interest.
 7             (7)  Visitation.   Determine  the visitation rights,
 8        if any, of respondent in any  case  in  which  the  court
 9        awards  physical  care  or  temporary  legal custody of a
10        minor child to petitioner.  The court shall  restrict  or
11        deny  respondent's  visitation  with a minor child if the
12        court finds that respondent has done or is likely  to  do
13        any  of  the  following:  (i) abuse or endanger the minor
14        child during visitation; (ii) use the  visitation  as  an
15        opportunity to abuse or harass petitioner or petitioner's
16        family  or household members; (iii) improperly conceal or
17        detain the minor child; or (iv) otherwise act in a manner
18        that is not in the best interests  of  the  minor  child.
19        The court shall not be limited by the standards set forth
20        in Section 607.1 of the Illinois Marriage and Dissolution
21        of  Marriage  Act.   If  the court grants visitation, the
22        order shall specify dates and times for the visitation to
23        take place or other  specific  parameters  or  conditions
24        that  are  appropriate.   No  order  for visitation shall
25        refer merely to the term "reasonable visitation".
26             Petitioner may deny respondent access to  the  minor
27        child   if,   when  respondent  arrives  for  visitation,
28        respondent is under the influence of drugs or alcohol and
29        constitutes a threat to  the  safety  and  well-being  of
30        petitioner  or petitioner's minor children or is behaving
31        in a violent or abusive manner.
32             If necessary to protect any member  of  petitioner's
33        family  or  household from future abuse, respondent shall
34        be prohibited from coming to  petitioner's  residence  to
 
                            -19-     LRB093 04569 RLC 11819 b
 1        meet  the  minor  child  for  visitation, and the parties
 2        shall submit  to  the  court  their  recommendations  for
 3        reasonable  alternative  arrangements  for visitation.  A
 4        person may be approved to supervise visitation only after
 5        filing an affidavit  accepting  that  responsibility  and
 6        acknowledging accountability to the court.
 7             (8)  Removal or concealment of minor child. Prohibit
 8        respondent  from removing a minor child from the State or
 9        concealing the child within the State.
10             (9)  Order  to  appear.   Order  the  respondent  to
11        appear in court, alone or with a minor child, to  prevent
12        abuse,  neglect,  removal or concealment of the child, to
13        return the child to the custody or care of the petitioner
14        or to permit any court-ordered interview  or  examination
15        of the child or the respondent.
16             (10)  Possession   of   personal   property.   Grant
17        petitioner exclusive possession of personal property and,
18        if  respondent  has   possession   or   control,   direct
19        respondent  to  promptly make it available to petitioner,
20        if:
21                  (i)  petitioner, but not respondent,  owns  the
22             property; or
23                  (ii)  the  parties  own  the  property jointly;
24             sharing  it  would  risk  abuse  of  petitioner   by
25             respondent  or  is impracticable; and the balance of
26             hardships favors temporary possession by petitioner.
27             If petitioner's  sole  claim  to  ownership  of  the
28        property  is  that  it is marital property, the court may
29        award petitioner temporary possession thereof  under  the
30        standards  of subparagraph (ii) of this paragraph only if
31        a proper proceeding has been  filed  under  the  Illinois
32        Marriage  and  Dissolution  of  Marriage  Act,  as now or
33        hereafter amended.
34             No order under this provision shall affect title  to
 
                            -20-     LRB093 04569 RLC 11819 b
 1        property.
 2             (11)  Protection of property.  Forbid the respondent
 3        from   taking,   transferring,  encumbering,  concealing,
 4        damaging or otherwise disposing of any real  or  personal
 5        property,  except  as explicitly authorized by the court,
 6        if:
 7                  (i)  petitioner, but not respondent,  owns  the
 8             property; or
 9                  (ii)  the parties own the property jointly, and
10             the   balance  of  hardships  favors  granting  this
11             remedy.
12             If petitioner's  sole  claim  to  ownership  of  the
13        property  is  that  it is marital property, the court may
14        grant petitioner relief under subparagraph (ii)  of  this
15        paragraph  only  if  a  proper  proceeding has been filed
16        under the Illinois Marriage and Dissolution  of  Marriage
17        Act, as now or hereafter amended.
18             The  court  may  further  prohibit  respondent  from
19        improperly  using  the financial or other resources of an
20        aged member of the family or household for the profit  or
21        advantage of respondent or of any other person.
22             (12)  Order   for   payment   of   support.    Order
23        respondent to pay temporary support for the petitioner or
24        any  child  in the petitioner's care or custody, when the
25        respondent has a legal obligation to support that person,
26        in accordance with the Illinois Marriage and  Dissolution
27        of Marriage Act, which shall govern, among other matters,
28        the  amount  of  support,  payment  through the clerk and
29        withholding of income to secure payment.   An  order  for
30        child  support may be granted to a petitioner with lawful
31        physical care or custody of  a  child,  or  an  order  or
32        agreement for physical care or custody, prior to entry of
33        an  order  for legal custody.  Such a support order shall
34        expire upon entry of a valid order granting legal custody
 
                            -21-     LRB093 04569 RLC 11819 b
 1        to another, unless  otherwise  provided  in  the  custody
 2        order.
 3             (13)  Order  for payment of losses. Order respondent
 4        to pay petitioner for losses suffered as a direct  result
 5        of  the  abuse,  neglect,  or  exploitation.  Such losses
 6        shall include, but not be limited to,  medical  expenses,
 7        lost  earnings or other support, repair or replacement of
 8        property damaged or taken,  reasonable  attorney's  fees,
 9        court   costs   and  moving  or  other  travel  expenses,
10        including additional reasonable  expenses  for  temporary
11        shelter and restaurant meals.
12                  (i)  Losses affecting family needs.  If a party
13             is  entitled  to  seek maintenance, child support or
14             property distribution from the other party under the
15             Illinois Marriage and Dissolution of  Marriage  Act,
16             as  now  or  hereafter  amended, the court may order
17             respondent to reimburse petitioner's actual  losses,
18             to  the  extent  that  such  reimbursement  would be
19             "appropriate temporary  relief",  as  authorized  by
20             subsection (a)(3) of Section 501 of that Act.
21                  (ii)  Recovery  of expenses.  In the case of an
22             improper concealment or removal of  a  minor  child,
23             the court may order respondent to pay the reasonable
24             expenses  incurred  or  to be incurred in the search
25             for and recovery of the minor child,  including  but
26             not  limited  to  legal  fees,  court costs, private
27             investigator fees, and travel costs.
28             (14)  Prohibition of entry.  Prohibit the respondent
29        from entering or remaining in the residence or  household
30        while the respondent is under the influence of alcohol or
31        drugs   and  constitutes  a  threat  to  the  safety  and
32        well-being  of  the  petitioner   or   the   petitioner's
33        children.
34             (14.5)  Prohibition of firearm possession.
 
                            -22-     LRB093 04569 RLC 11819 b
 1                  (a)  Prohibit  the  respondent  from possessing
 2             any firearms during  the  period  of  the  order  of
 3             protection.   The  court  When  a  complaint is made
 4             under a request for an order of protection, that the
 5             respondent  has  threatened  or  is  likely  to  use
 6             firearms illegally against the petitioner,  and  the
 7             respondent  is  present  in  court, or has failed to
 8             appear after  receiving  actual  notice,  the  court
 9             shall  examine  on  oath  the  petitioner,  and  any
10             witnesses  who  may  be  produced.   If the court is
11             satisfied that there is any danger  of  the  illegal
12             use  of  firearms,  it shall issue an order that any
13             firearms in the possession of the respondent, except
14             as provided in subsection (b), be turned over to the
15             local law enforcement agency  for  safekeeping.   If
16             the respondent has failed to appear, the court shall
17             issue  a  warrant  for seizure of any firearm in the
18             possession  of  the  respondent.   The   period   of
19             safekeeping  shall  be for the duration of the order
20             of protection a stated period of time not to  exceed
21             2  years.  The firearm or firearms shall be returned
22             to the respondent at the end of the stated period or
23             at expiration of the order of protection,  whichever
24             is sooner.
25                  (b)  If  the  respondent  is a peace officer as
26             defined in Section 2-13  of  the  Criminal  Code  of
27             1961,  the  court shall order that any firearms used
28             by the respondent in the performance of his  or  her
29             duties  as  a  peace  officer  be surrendered to the
30             chief law enforcement executive  of  the  agency  in
31             which  the  respondent is employed, who shall retain
32             the firearms for safekeeping for the duration of the
33             order of protection for the  stated  period  not  to
34             exceed 2 years as set forth in the court order.
 
                            -23-     LRB093 04569 RLC 11819 b
 1             (15)  Prohibition of access to records.  If an order
 2        of  protection  prohibits  respondent from having contact
 3        with the minor  child,  or  if  petitioner's  address  is
 4        omitted  under  subsection  (b)  of  Section  203,  or if
 5        necessary  to  prevent  abuse  or  wrongful  removal   or
 6        concealment  of  a  minor  child,  the  order  shall deny
 7        respondent  access  to,  and  prohibit  respondent   from
 8        inspecting,   obtaining,  or  attempting  to  inspect  or
 9        obtain, school or any other records of  the  minor  child
10        who is in the care of petitioner.
11             (16)  Order  for payment of shelter services.  Order
12        respondent to reimburse  a  shelter  providing  temporary
13        housing and counseling services to the petitioner for the
14        cost  of  the  services,  as certified by the shelter and
15        deemed reasonable by the court.
16             (17)  Order for injunctive relief.  Enter injunctive
17        relief necessary or appropriate to prevent further  abuse
18        of  a  family  or  household  member  or  further  abuse,
19        neglect,  or  exploitation  of  a  high-risk  adult  with
20        disabilities   or   to  effectuate  one  of  the  granted
21        remedies, if supported by the balance of  hardships.   If
22        the  harm  to  be prevented by the injunction is abuse or
23        any other  harm  that  one  of  the  remedies  listed  in
24        paragraphs   (1)  through  (16)  of  this  subsection  is
25        designed to prevent, no  further  evidence  is  necessary
26        that the harm is an irreparable injury.
27        (c)  Relevant factors; findings.
28             (1)  In  determining  whether  to  grant  a specific
29        remedy, other than payment of support,  the  court  shall
30        consider  relevant  factors, including but not limited to
31        the following:
32                  (i)  the nature, frequency,  severity,  pattern
33             and  consequences  of  the  respondent's past abuse,
34             neglect or exploitation of  the  petitioner  or  any
 
                            -24-     LRB093 04569 RLC 11819 b
 1             family    or   household   member,   including   the
 2             concealment of his or her location in order to evade
 3             service of process or notice, and the likelihood  of
 4             danger  of future abuse, neglect, or exploitation to
 5             petitioner  or  any  member   of   petitioner's   or
 6             respondent's family or household; and
 7                  (ii)  the  danger  that any minor child will be
 8             abused or neglected or improperly removed  from  the
 9             jurisdiction,  improperly concealed within the State
10             or improperly separated  from  the  child's  primary
11             caretaker.
12             (2)  In  comparing  relative  hardships resulting to
13        the parties from loss of possession of the  family  home,
14        the  court shall consider relevant factors, including but
15        not limited to the following:
16                  (i)  availability, accessibility, cost, safety,
17             adequacy,  location  and  other  characteristics  of
18             alternate housing for each party and any minor child
19             or dependent adult in the party's care;
20                  (ii)  the effect on the party's employment; and
21                  (iii)  the effect on the  relationship  of  the
22             party, and any minor child or dependent adult in the
23             party's   care,   to   family,  school,  church  and
24             community.
25             (3)  Subject  to  the  exceptions   set   forth   in
26        paragraph  (4)  of  this subsection, the court shall make
27        its findings in an official record  or  in  writing,  and
28        shall at a minimum set forth the following:
29                  (i)  That   the   court   has   considered  the
30             applicable relevant factors described in  paragraphs
31             (1) and (2) of this subsection.
32                  (ii)  Whether   the   conduct   or  actions  of
33             respondent, unless  prohibited,  will  likely  cause
34             irreparable harm or continued abuse.
 
                            -25-     LRB093 04569 RLC 11819 b
 1                  (iii)  Whether  it  is  necessary  to grant the
 2             requested relief in order to protect  petitioner  or
 3             other alleged abused persons.
 4             (4)  For  purposes  of issuing an ex parte emergency
 5        order of protection, the court, as an alternative  to  or
 6        as  a  supplement  to  making  the  findings described in
 7        paragraphs  (c)(3)(i)   through   (c)(3)(iii)   of   this
 8        subsection, may use the following procedure:
 9             When  a  verified petition for an emergency order of
10        protection  in  accordance  with  the   requirements   of
11        Sections 203 and 217 is presented to the court, the court
12        shall  examine  petitioner  on  oath  or affirmation.  An
13        emergency order of protection  shall  be  issued  by  the
14        court if it appears from the contents of the petition and
15        the  examination  of  petitioner  that  the averments are
16        sufficient to indicate abuse by respondent and to support
17        the  granting  of  relief  under  the  issuance  of   the
18        emergency order of protection.
19             (5)  Never    married   parties.    No   rights   or
20        responsibilities  for  a  minor  child  born  outside  of
21        marriage attach to a putative father until a  father  and
22        child   relationship   has  been  established  under  the
23        Illinois Parentage Act of 1984, the Illinois  Public  Aid
24        Code,  Section  12 of the Vital Records Act, the Juvenile
25        Court Act of 1987, the Probate Act of 1985,  the  Revised
26        Uniform   Reciprocal  Enforcement  of  Support  Act,  the
27        Uniform Interstate  Family  Support  Act,  the  Expedited
28        Child  Support Act of 1990, any judicial, administrative,
29        or other act of another state  or  territory,  any  other
30        Illinois  statute,  or by any foreign nation establishing
31        the father and child relationship, any  other  proceeding
32        substantially    in    conformity   with   the   Personal
33        Responsibility and Work Opportunity Reconciliation Act of
34        1996 (Pub. L. 104-193), or where both parties appeared in
 
                            -26-     LRB093 04569 RLC 11819 b
 1        open court or at an administrative hearing  acknowledging
 2        under   oath or admitting by affirmation the existence of
 3        a  father  and  child  relationship.   Absent   such   an
 4        adjudication,  finding,  or  acknowledgement, no putative
 5        father shall be granted temporary custody  of  the  minor
 6        child,  visitation with the minor child, or physical care
 7        and possession of the minor child, nor shall an order  of
 8        payment for support of the minor child be entered.
 9        (d)  Balance  of hardships; findings.  If the court finds
10    that the balance of hardships does not support  the  granting
11    of  a  remedy  governed by paragraph (2), (3), (10), (11), or
12    (16) of subsection (b) of this  Section,  which  may  require
13    such  balancing,  the  court's findings shall so indicate and
14    shall include a finding as to  whether  granting  the  remedy
15    will   result   in   hardship   to   respondent   that  would
16    substantially outweigh the hardship to petitioner from denial
17    of the remedy. The findings shall be an official record or in
18    writing.
19        (e)  Denial of remedies.  Denial of any remedy shall  not
20    be based, in whole or in part, on evidence that:
21             (1)  Respondent  has  cause  for  any  use of force,
22        unless that cause satisfies the standards for justifiable
23        use of force provided by Article VII of the Criminal Code
24        of 1961;
25             (2)  Respondent was voluntarily intoxicated;
26             (3)  Petitioner acted in self-defense or defense  of
27        another,  provided  that,  if  petitioner utilized force,
28        such force was  justifiable  under  Article  VII  of  the
29        Criminal Code of 1961;
30             (4)  Petitioner  did  not  act  in  self-defense  or
31        defense of another;
32             (5)  Petitioner  left  the residence or household to
33        avoid  further  abuse,  neglect,   or   exploitation   by
34        respondent;
 
                            -27-     LRB093 04569 RLC 11819 b
 1             (6)  Petitioner  did  not  leave  the  residence  or
 2        household   to   avoid   further   abuse,   neglect,   or
 3        exploitation by respondent;
 4             (7)  Conduct  by  any  family  or  household  member
 5        excused   the   abuse,   neglect,   or   exploitation  by
 6        respondent, unless that same conduct would  have  excused
 7        such  abuse,  neglect, or exploitation if the parties had
 8        not been family or household members.
 9    (Source: P.A. 89-367, eff. 1-1-96; 90-118, eff. 1-1-98.)