Judiciary II - Criminal Law Committee
Filed: 03/04/04
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1 | AMENDMENT TO HOUSE BILL 4395
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2 | AMENDMENT NO. ______. Amend House Bill 4395 on page 3, | ||||||
3 | after line 31, by inserting the following:
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4 | "Section 8. The Civil No Contact Order Act is amended by | ||||||
5 | changing Sections 103, 202, 213, 214, 217, and 218 and by | ||||||
6 | adding Sections 204.3 and 218.5 as follows:
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7 | (740 ILCS 22/103)
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8 | Sec. 103. Definitions. As used in this Act:
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9 | "Abuse" means physical abuse, harassment, intimidation of | ||||||
10 | a dependent, or
interference with personal liberty.
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11 | "Civil no contact order" means an emergency order or | ||||||
12 | plenary order
granted under this Act, which includes a remedy | ||||||
13 | authorized by Section 213
of this Act.
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14 | "Non-consensual" means a lack of freely given agreement.
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15 | "Petitioner" means any named petitioner for the
no contact | ||||||
16 | order or any named victim of non-consensual sexual conduct or
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17 | non-consensual sexual penetration on whose behalf the
petition | ||||||
18 | is brought.
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19 | "Sexual conduct" means any intentional or knowing touching | ||||||
20 | or
fondling by the petitioner or the respondent, either | ||||||
21 | directly or through
clothing, of the sex organs, anus, or | ||||||
22 | breast of the petitioner or the
respondent, or any part of the | ||||||
23 | body of a child under 13 years of age, or
any transfer or | ||||||
24 | transmission of semen by the respondent upon any part of
the |
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1 | clothed or unclothed body of the petitioner, for the purpose of | ||||||
2 | sexual
gratification or arousal of the petitioner or the | ||||||
3 | respondent.
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4 | "Sexual penetration" means any contact, however slight, | ||||||
5 | between
the sex organ or anus of one person by an object, the | ||||||
6 | sex organ, mouth
or anus of another person, or any intrusion, | ||||||
7 | however slight, of any part
of the body of one person or of any | ||||||
8 | animal or object into the sex organ
or anus of another person, | ||||||
9 | including but not limited to cunnilingus,
fellatio or anal | ||||||
10 | penetration. Evidence of emission of semen is not
required to | ||||||
11 | prove sexual penetration.
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12 | "Stay away" means to refrain from both physical presence | ||||||
13 | and nonphysical contact with the petitioner directly, | ||||||
14 | indirectly, or through third parties who may or may not know of | ||||||
15 | the order. "Nonphysical contact" includes, but is not limited | ||||||
16 | to, telephone calls, mail, e-mail, fax, and written notes. | ||||||
17 | (Source: P.A. 93-236, eff. 1-1-04.)
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18 | (740 ILCS 22/202)
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19 | Sec. 202. Commencement of action; filing fees.
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20 | (a) An action for a civil no contact order is commenced:
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21 | (1) independently, by filing a petition for a civil no | ||||||
22 | contact order in any civil court,
unless specific courts | ||||||
23 | are designated by local rule or order; or
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24 | (2) in conjunction with a
delinquency
petition or a | ||||||
25 | criminal prosecution, by filing a petition for a civil no | ||||||
26 | contact
order under
the same case number as the delinquency | ||||||
27 | petition or criminal prosecution, to be
granted
during | ||||||
28 | pre-trial release of a defendant, with any dispositional | ||||||
29 | order issued
under Section
5-710 of the Juvenile Court Act | ||||||
30 | of 1987 or as a condition of release,
supervision,
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31 | conditional discharge, probation, periodic imprisonment, | ||||||
32 | parole, or mandatory
supervised
release, or in conjunction | ||||||
33 | with imprisonment or a bond forfeiture warrant,
provided |
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1 | that (i) the violation is alleged in an information, | ||||||
2 | complaint,
indictment, or
delinquency
petition on file and | ||||||
3 | the alleged victim is a person protected by this Act, and
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4 | (ii) the
petition, which is filed by the State's Attorney, | ||||||
5 | names a victim of the alleged
crime as a
petitioner.
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6 | (b) Withdrawal or dismissal of any petition for a
civil no | ||||||
7 | contact order
prior to adjudication where the petitioner is | ||||||
8 | represented by the State shall
operate as a dismissal without | ||||||
9 | prejudice. No action for a civil no contact
order shall be | ||||||
10 | dismissed because the respondent is being prosecuted for a | ||||||
11 | crime
against the petitioner. For any action commenced under | ||||||
12 | item (2) of subsection
(a) of
this Section, dismissal of the | ||||||
13 | conjoined case (or a finding of not guilty)
shall not require | ||||||
14 | dismissal of the action for a civil no contact order;
instead, | ||||||
15 | it may be treated as an independent action and, if necessary | ||||||
16 | and
appropriate, transferred to a different court or division.
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17 | (c) No fee shall be
charged by the clerk of the court for | ||||||
18 | filing petitions or modifying or
certifying orders. No
fee
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19 | shall be charged by the sheriff for service by the sheriff of a
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20 | petition, rule, motion, or order in an action commenced under | ||||||
21 | this
Section.
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22 | (d) The court shall provide, through the office
of the | ||||||
23 | clerk of the court, simplified forms for
and clerical | ||||||
24 | assistance to
help with the writing and filing of a petition | ||||||
25 | under this Section by any
person not represented by counsel.
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26 | (Source: P.A. 93-236, eff. 1-1-04.)
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27 | (740 ILCS 22/204.3 new) | ||||||
28 | Sec. 204.3. Appointment of counsel. The court may appoint | ||||||
29 | counsel to represent the petitioner if the respondent is | ||||||
30 | represented by counsel.
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31 | (740 ILCS 22/213)
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32 | Sec. 213. Civil no contact order; remedy.
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1 | (a) If the court finds that the petitioner has been a | ||||||
2 | victim of
non-consensual sexual conduct or non-consensual | ||||||
3 | sexual penetration, a civil no
contact order shall issue; | ||||||
4 | provided that the petitioner must also satisfy the
requirements | ||||||
5 | of Section
214 on emergency orders or Section 215 on plenary | ||||||
6 | orders. The petitioner
shall not be denied a civil no contact | ||||||
7 | order because the petitioner or the
respondent is a minor. The | ||||||
8 | court, when
determining whether or not to issue a civil no | ||||||
9 | contact order, may not
require physical injury on the person of | ||||||
10 | the victim.
Modification and extension of prior civil no | ||||||
11 | contact orders shall be in
accordance with this Act.
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12 | (b) A civil no contact order shall order
one or more of the | ||||||
13 | following:
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14 | (1) order the respondent to stay away from the | ||||||
15 | petitioner; or
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16 | (2) other injunctive relief necessary or appropriate.
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17 | Order the respondent to stay away from
any other person
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18 | protected by the civil no contact order;
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19 | (3) prohibit the respondent
from abuse, as defined in | ||||||
20 | this Act, or stalking of the petitioner, as defined
in
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21 | Section 12-7.3 of the Criminal Code of 1961, if the abuse
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22 | or stalking has occurred or otherwise appears likely to | ||||||
23 | occur if not
prohibited; or
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24 | (4) prohibit the respondent
from
entering or remaining | ||||||
25 | present at the petitioner's school or place of
employment, | ||||||
26 | or both, or other specified places at times when the | ||||||
27 | petitioner is
present, if reasonable, given the balance of | ||||||
28 | hardships.
Hardships need not be balanced for the court to | ||||||
29 | enter a stay away
order or prohibit entry if the respondent | ||||||
30 | has no right to enter the
premises.
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31 | (c) Denial of a remedy may not be based, in whole or in | ||||||
32 | part, on
evidence that:
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33 | (1) the respondent has cause for any use of force, | ||||||
34 | unless that
cause satisfies the standards for justifiable |
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1 | use of force provided
by Article VII of the Criminal Code | ||||||
2 | of 1961;
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3 | (2) the respondent was voluntarily intoxicated;
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4 | (3) the petitioner acted in self-defense or defense of | ||||||
5 | another,
provided that, if the petitioner utilized force, | ||||||
6 | such force was
justifiable under Article VII of the | ||||||
7 | Criminal Code of 1961;
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8 | (4) the petitioner did not act in self-defense or | ||||||
9 | defense of
another;
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10 | (5) the petitioner left the residence or household to | ||||||
11 | avoid
further non-consensual sexual conduct or | ||||||
12 | non-consensual sexual penetration
by the respondent; or
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13 | (6) the petitioner did not leave the residence or | ||||||
14 | household to
avoid further non-consensual sexual conduct | ||||||
15 | or non-consensual sexual
penetration by the respondent.
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16 | (d) Monetary damages are not recoverable as a remedy.
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17 | (Source: P.A. 93-236, eff. 1-1-04.)
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18 | (740 ILCS 22/214)
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19 | Sec. 214. Emergency civil no contact order.
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20 | (a) An emergency civil no contact order shall issue if
the | ||||||
21 | petitioner satisfies the requirements of this subsection (a). | ||||||
22 | The
petitioner
shall establish that:
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23 | (1) the court has jurisdiction under Section 206
208 ;
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24 | (2) the requirements of Section 213 are satisfied; and
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25 | (3) there is good cause to grant the remedy, regardless | ||||||
26 | of
prior service of process or of notice upon the | ||||||
27 | respondent, because
the harm which that remedy is intended | ||||||
28 | to
prevent would be likely to occur if the respondent were | ||||||
29 | given
any prior notice, or greater notice than was actually | ||||||
30 | given, of
the petitioner's efforts to obtain judicial | ||||||
31 | relief.
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32 | An emergency civil no contact order shall be issued by the | ||||||
33 | court if it appears from the contents of the petition and the |
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1 | examination of the petitioner that the averments are sufficient | ||||||
2 | to indicate nonconsensual sexual penetration by the respondent | ||||||
3 | and to support the granting of relief under the issuance of the | ||||||
4 | civil no contact order.
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5 | An emergency civil no contact order shall be issued if the | ||||||
6 | court finds that subsections (1), (2), and (3) above are met.
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7 | (b) If the respondent appears in court for
this hearing for | ||||||
8 | an emergency order, he or she may elect to file a
general | ||||||
9 | appearance and testify. Any resulting order may be an emergency
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10 | order, governed by this Section. Notwithstanding the | ||||||
11 | requirements of
this Section, if all requirements of Section | ||||||
12 | 215 have been met, the
court may issue a plenary order.
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13 | (c) Emergency orders; court holidays and evenings.
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14 | (1) When the court is unavailable at the close
of | ||||||
15 | business, the petitioner may file a petition for a 21-day
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16 | emergency order before any available circuit judge or | ||||||
17 | associate
judge who may grant relief under this Act. If the | ||||||
18 | judge finds that
there is an immediate and present danger | ||||||
19 | of
abuse against the petitioner and
that the petitioner has | ||||||
20 | satisfied the prerequisites set forth in
subsection (a), | ||||||
21 | that judge may issue an emergency
civil no contact order.
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22 | (2) The chief judge of the circuit court
may designate | ||||||
23 | for each county in the circuit at least one judge to
be | ||||||
24 | reasonably available to issue orally, by telephone, by | ||||||
25 | facsimile,
or otherwise, an emergency civil no contact | ||||||
26 | order at all times, whether
or not the court is in session.
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27 | (3) Any order issued under this
Section and any | ||||||
28 | documentation in support of the order shall be certified
on | ||||||
29 | the next court day to the appropriate court. The clerk of | ||||||
30 | that
court shall immediately assign a case number, file the | ||||||
31 | petition,
order, and other documents with the court, and | ||||||
32 | enter the order of
record and file it with the sheriff for | ||||||
33 | service, in accordance with
Section 222. Filing the | ||||||
34 | petition shall commence proceedings for
further relief |
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1 | under Section 202. Failure to comply with the
requirements | ||||||
2 | of this paragraph (3) does not affect the validity of the
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3 | order.
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4 | (Source: P.A. 93-236, eff. 1-1-04.)
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5 | (740 ILCS 22/217)
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6 | Sec. 217. Contents of orders.
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7 | (a) Any civil no contact order shall describe each remedy | ||||||
8 | granted by
the court, in reasonable detail and
not by reference | ||||||
9 | to any other document, so that the respondent may
clearly | ||||||
10 | understand what he or she must do or refrain from doing.
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11 | (b) A civil no contact order shall further state the | ||||||
12 | following:
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13 | (1) The name of each petitioner that the court finds | ||||||
14 | was the victim of
non-consensual sexual conduct or | ||||||
15 | non-consensual sexual penetration by the
respondent and
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16 | the name of each other person protected by the order and | ||||||
17 | that the
person is protected by this Act .
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18 | (2) The date and time the civil no contact order was | ||||||
19 | issued,
whether it is an emergency or plenary order, and | ||||||
20 | the
duration of the order.
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21 | (3) The date, time, and place for any scheduled hearing | ||||||
22 | for
extension of that civil no contact order or for another | ||||||
23 | order of
greater duration or scope.
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24 | (4) For each remedy in an emergency civil no contact | ||||||
25 | order, the
reason for entering that remedy without prior | ||||||
26 | notice to the respondent
or greater notice than was | ||||||
27 | actually given.
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28 | (5) For emergency civil no contact orders, that the | ||||||
29 | respondent may petition the court, in accordance with | ||||||
30 | Section 218.5, to reopen the order if he or she did not | ||||||
31 | receive actual prior notice of the hearing as required | ||||||
32 | under Section 209 of this Act and if the respondent alleges | ||||||
33 | that he or she had a meritorious defense to the order or |
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1 | that the order or its remedy is not authorized by this Act.
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2 | (c) A civil no contact order shall include the following | ||||||
3 | notice,
printed in conspicuous type: "Any knowing violation of | ||||||
4 | a civil no contact
order is a Class A misdemeanor. Any second | ||||||
5 | or subsequent violation is a
Class 4 felony."
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6 | (Source: P.A. 93-236, eff. 1-1-04.)
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7 | (740 ILCS 22/218)
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8 | Sec. 218. Notice of orders.
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9 | (a) Upon issuance of any civil no contact order, the clerk | ||||||
10 | shall
immediately, or on the next court day if an emergency | ||||||
11 | order is issued in
accordance with subsection (c) of Section | ||||||
12 | 214:
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13 | (1) enter the order on the record and file it in | ||||||
14 | accordance with the
circuit court procedures; and
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15 | (2) provide a file stamped copy of the order to the | ||||||
16 | respondent, if
present, and to the petitioner.
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17 | (b) The clerk of the issuing judge shall, or the petitioner | ||||||
18 | may, on the
same day that a civil no contact order is issued, | ||||||
19 | file a certified copy of that
order with the sheriff or other | ||||||
20 | law enforcement officials charged with
maintaining Department | ||||||
21 | of State Police records or charged with serving the
order upon | ||||||
22 | the respondent. If the order was issued in accordance with
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23 | subsection (c) of Section 214, the clerk shall, on the next | ||||||
24 | court day, file a
certified copy of the order with the Sheriff | ||||||
25 | or other law enforcement officials
charged with maintaining | ||||||
26 | Department of State Police records.
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27 | (c) Unless the respondent was present in court when the | ||||||
28 | order was
issued, the sheriff, other law enforcement official, | ||||||
29 | or special process server
shall promptly serve that order upon | ||||||
30 | the respondent and file proof of such
service in the manner | ||||||
31 | provided for service of process in civil proceedings. If
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32 | process has not yet been served upon the respondent, it shall | ||||||
33 | be served with
the order or short form notification. A single |
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1 | fee may be charged for service
of an order obtained in civil | ||||||
2 | court, or for service of such an order together
with process, | ||||||
3 | unless waived or deferred under Section 208.
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4 | (d) If the person against whom the civil no contact order | ||||||
5 | is issued is
arrested and the written order is issued in | ||||||
6 | accordance with subsection (c) of
Section 214 and received by | ||||||
7 | the custodial law enforcement agency before
the respondent or | ||||||
8 | arrestee is released from custody, the custodial law
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9 | enforcement agent shall promptly serve the order upon the | ||||||
10 | respondent or
arrestee before the respondent or arrestee is | ||||||
11 | released from custody. In no
event shall detention of the | ||||||
12 | respondent or arrestee be extended for hearing
on the petition | ||||||
13 | for civil no contact order or receipt of the order issued under
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14 | Section 214 of this Act.
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15 | (e) Any order extending, modifying, or revoking any civil | ||||||
16 | no contact
order shall be promptly recorded, issued, and served | ||||||
17 | as provided in this
Section.
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18 | (f) Upon the request of the
petitioner, within 24 hours of | ||||||
19 | the issuance of a civil no contact order, the
clerk of the | ||||||
20 | issuing judge shall
send written notice of the order along with
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21 | a certified copy of the order to any school, college, or | ||||||
22 | university at which
the
petitioner is enrolled.
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23 | (Source: P.A. 93-236, eff. 1-1-04.)
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24 | (740 ILCS 22/218.5 new) | ||||||
25 | Sec. 218.5. Modification; reopening of orders. | ||||||
26 | (a) Except as otherwise provided in this Section, upon | ||||||
27 | motion by the petitioner, the court may modify an emergency or | ||||||
28 | plenary civil no contact order by altering the remedy, subject | ||||||
29 | to Section 213. | ||||||
30 | (b) After 30 days following entry of a plenary civil no | ||||||
31 | contact order, a court may modify that order only when a change | ||||||
32 | in the applicable law or facts since that plenary order was | ||||||
33 | entered warrants a modification of its terms.
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1 | (c) Upon 2 days' notice to the petitioner, or such shorter | ||||||
2 | notice as the court may prescribe, a respondent subject to an | ||||||
3 | emergency civil no contact order issued under this Act may | ||||||
4 | appear and petition the court to rehear the original or amended | ||||||
5 | petition. Any petition to rehear shall be verified and shall | ||||||
6 | allege the following:
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7 | (1) that the respondent did not receive prior notice of | ||||||
8 | the initial hearing in which the emergency order was | ||||||
9 | entered under Sections 209 and 214; and
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10 | (2) that the respondent had a meritorious defense to | ||||||
11 | the order or any of its remedies or that the order or any | ||||||
12 | of its remedies was not authorized by this Act. ".
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