HB4681 93RD GENERAL ASSEMBLY

LRB093 18130 RLC 43822 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB4681

Introduced 2/4/2004, by Marlow H. Colvin - Maria Antonia Berrios - Linda Chapa LaVia - Harry Osterman

SYNOPSIS AS INTRODUCED:

725 ILCS 5/112A-17	from Ch. 38, par. 112A-17
750 ILCS 60/217	from Ch. 40, par. 2312-17

Amends the Domestic Violence: Order of Protection Article of the Code of Criminal Procedure of 1963 and the Illinois Domestic Violence Act of 1986. Provides that a person who is in immediate danger of domestic abuse may apply for a temporary emergency order of protection issued by a municipal police department or by a county sheriff's office if the person resides in a municipality that does not have a police department or resides in an unincorporated area. Establishes requirements for the issuance of the order and the type of remedies that may be granted. Provides that the order is effective for 3 business days.

FISCAL NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

A BILL FOR

AN ACT concerning domestic violence.

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

Section 5. The Code of Criminal Procedure of 1963 is amended by changing Section 112A-17 as follows:

(725 ILCS 5/112A-17) (from Ch. 38, par. 112A-17)

Sec. 112A-17. Emergency order of protection.

(a) Prerequisites. An emergency order of protection shall issue if petitioner satisfies the requirements of this subsection for one or more of the requested remedies. For each remedy requested, petitioner shall establish that:

(1) The court has jurisdiction under Section 112A-9;

(2) The requirements of Section 112A-14 are satisfied; and

(3) There is good cause to grant the remedy, regardless of prior service of process or of notice upon the respondent, because:

(i) For the remedies of "prohibition of abuse" described in Section 112A-14(b)(1), "stay away order and additional prohibitions" described in Section 112A-14(b)(3), "removal or concealment of minor child" described in Section 112A-14(b)(8), "order to appear" described in Section 112A-14(b)(9), "physical care and possession of the minor child" described in Section 112A-14(b)(5), "protection of property" described in Section 112A-14(b)(11), "prohibition of entry" described in Section 112A-14(b)(14), "prohibition of access to records" described in Section 112A-14(b)(15), and "injunctive relief" described in Section 112A-14(b)(16), the harm which that remedy is intended to prevent would be likely to occur if the respondent were given any prior notice, or greater notice than was actually given, of the petitioner's efforts to obtain judicial relief;

(ii) For the remedy of "grant of exclusive possession of residence" described in Section 112A-14(b)(2), the immediate danger of further abuse of petitioner by respondent, if petitioner chooses or had chosen to remain in the residence or household while respondent was given any prior notice or greater notice than was actually given of petitioner's efforts to obtain judicial relief, outweighs the hardships to respondent of an emergency order granting petitioner exclusive possession of the residence or household. This remedy shall not be denied because petitioner has or could obtain temporary shelter elsewhere while prior notice is given to respondent, unless the hardships to respondent from exclusion from the home substantially outweigh those to petitioner.

(iii) For the remedy of "possession of personal property" described in Section 112A-14(b)(10), improper disposition of the personal property would be likely to occur if respondent were given any prior notice, or greater notice than was actually given, of petitioner's efforts to obtain judicial relief, or petitioner has an immediate and pressing need for possession of that property.

An emergency order may not include the counseling, legal custody, payment of support or monetary compensation remedies.

(b) Appearance by respondent. If respondent appears in court for this hearing for an emergency order, he or she may elect to file a general appearance and testify. Any resulting order may be an emergency order, governed by this Section. Notwithstanding the requirements of this Section, if all requirements of Section 112A-18 have been met, the Court may issue a 30-day interim order.

(c) Emergency orders: court holidays and evenings.

(1) Prerequisites. When the court is unavailable at the close of business, the petitioner may file a petition for a 21-day emergency order before any available circuit judge or associate judge who may grant relief under this Article. If the judge finds that there is an immediate and present danger of abuse to petitioner and that petitioner has satisfied the prerequisites set forth in subsection (a) of Section 112A-17, that judge may issue an emergency order of protection.

(1.5) Issuance of order. The chief judge of the circuit court may designate for each county in the circuit at least one judge to be reasonably available to issue orally, by telephone, by facsimile, or otherwise, an emergency order of protection at all times, whether or not the court is in session.

(2) Certification and transfer. Any order issued under this Section and any documentation in support thereof shall be certified on the next court day to the appropriate court. The clerk of that court shall immediately assign a case number, file the petition, order and other documents with the court and enter the order of record and file it with the sheriff for service, in accordance with Section 112A-22. Filing the petition shall commence proceedings for further relief, under Section 112A-2. Failure to comply with the requirements of this subsection shall not affect the validity of the order.

(d) Notwithstanding any other provision of this Article to the contrary, a person residing within a municipality that has a police department may make an application for a temporary emergency order of protection from the municipal police department for the granting of any of the remedies described in clauses (a)(3) (i),(ii), and (iii) of this Section. The order may be granted by the municipal police department if approved by the ranking law enforcement officer on duty at the time of the application; provided that the ranking law enforcement officer on duty has probable cause to belief that the person is in immediate danger of abuse and the harm to which the remedy is intended to prevent would likely occur before the time an emergency order of protection could be issued by the court. The order shall be effective for a period of 3 business days after its issuance by the municipal police department. If the person making application resides in a municipality that does not have a police department or resides in an unincorporated area, the person may apply for the order from the office of the county sheriff. That order must be approved by the ranking deputy sheriff on duty at the time of the application and meet the same requirements specified in this subsection (d) for the issuance of an order by a municipal police department.

(Source: P.A. 90-392, eff. 1-1-98.)

Section 10. The Illinois Domestic Violence Act of 1986 is amended by changing Section 217 as follows:

(750 ILCS 60/217) (from Ch. 40, par. 2312-17)

Sec. 217. Emergency order of protection.

(a) Prerequisites. An emergency order of protection shall issue if petitioner satisfies the requirements of this subsection for one or more of the requested remedies. For each remedy requested, petitioner shall establish that:

(1) The court has jurisdiction under Section 208;

(2) The requirements of Section 214 are satisfied; and

(3) There is good cause to grant the remedy, regardless of prior service of process or of notice upon the respondent, because:

(i) For the remedies of "prohibition of abuse" described in Section 214(b)(1), "stay away order and additional prohibitions" described in Section 214(b)(3), "removal or concealment of minor child" described in Section 214(b)(8), "order to appear" described in Section 214(b)(9), "physical care and possession of the minor child" described in Section 214(b)(5), "protection of property" described in Section 214(b)(11), "prohibition of entry" described in Section 214(b)(14), "prohibition of access to records" described in Section 214(b)(15), and "injunctive relief" described in Section 214(b)(16), the harm which that remedy is intended to prevent would be likely to occur if the respondent were given any prior notice, or greater notice than was actually given, of the petitioner's efforts to obtain judicial relief;

(ii) For the remedy of "grant of exclusive possession of residence" described in Section 214(b)(2), the immediate danger of further abuse of petitioner by respondent, if petitioner chooses or had chosen to remain in the residence or household while respondent was given any prior notice or greater notice than was actually given of petitioner's efforts to obtain judicial relief, outweighs the hardships to respondent of an emergency order granting petitioner exclusive possession of the residence or household. This remedy shall not be denied because petitioner has or could obtain temporary shelter elsewhere while prior notice is given to respondent, unless the hardships to respondent from exclusion from the home substantially outweigh those to petitioner;

(iii) For the remedy of "possession of personal property" described in Section 214(b)(10), improper disposition of the personal property would be likely to occur if respondent were given any prior notice, or greater notice than was actually given, of petitioner's efforts to obtain judicial relief, or petitioner has an immediate and pressing need for possession of that property.

An emergency order may not include the counseling, legal custody, payment of support or monetary compensation remedies.

(b) Appearance by respondent. If respondent appears in court for this hearing for an emergency order, he or she may elect to file a general appearance and testify. Any resulting order may be an emergency order, governed by this Section. Notwithstanding the requirements of this Section, if all requirements of Section 218 have been met, the court may issue a 30-day interim order.

(c) Emergency orders: court holidays and evenings.

(1) Prerequisites. When the court is unavailable at the close of business, the petitioner may file a petition for a 21-day emergency order before any available circuit judge or associate judge who may grant relief under this Act. If the judge finds that there is an immediate and present danger of abuse to petitioner and that petitioner has satisfied the prerequisites set forth in subsection (a) of Section 217, that judge may issue an emergency order of protection.

(1.5) Issuance of order. The chief judge of the circuit court may designate for each county in the circuit at least one judge to be reasonably available to issue orally, by telephone, by facsimile, or otherwise, an emergency order of protection at all times, whether or not the court is in session.

(2) Certification and transfer. Any order issued under this Section and any documentation in support thereof shall be certified on the next court day to the appropriate court. The clerk of that court shall immediately assign a case number, file the petition, order and other documents with the court, and enter the order of record and file it with the sheriff for service, in accordance with Section 222. Filing the petition shall commence proceedings for further relief under Section 202. Failure to comply with the requirements of this subsection shall not affect the validity of the order.

(d) Notwithstanding any other provision of this Act to the contrary, a person residing within a municipality that has a police department may make an application for a temporary emergency order of protection from the municipal police department for the granting of any of the remedies described in clauses (a)(3) (i),(ii), and (iii) of this Section. The order may be granted by the municipal police department if approved by the ranking law enforcement officer on duty at the time of the application; provided that the ranking law enforcement officer on duty has probable cause to belief that the person is in immediate danger of abuse and the harm to which the remedy is intended to prevent would likely occur before the time an emergency order of protection could be issued by the court. The order shall be effective for a period of 3 business days after its issuance by the municipal police department. If the person making application resides in a municipality that does not have a police department or resides in an unincorporated area, the person may apply for the order from the office of the county sheriff. That order must be approved by the ranking deputy sheriff on duty at the time of application and meet the same requirements specified in this subsection (d) for the issuance of an order by a municipal police department.

(Source: P.A. 90-392, eff. 1-1-98.)