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1 | AN ACT in relation to domestic violence.
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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 petitioner | ||||||||||||||||||||||||||
9 | has been
abused by a family or household member, as defined in | ||||||||||||||||||||||||||
10 | this Article, an
order of protection prohibiting such abuse | ||||||||||||||||||||||||||
11 | shall issue; provided that
petitioner must also satisfy the | ||||||||||||||||||||||||||
12 | requirements of one of the following
Sections, as appropriate: | ||||||||||||||||||||||||||
13 | Section 112A-17 on emergency orders, Section
112A-18 on interim | ||||||||||||||||||||||||||
14 | orders, or Section 112A-19 on
plenary orders.
Petitioner shall | ||||||||||||||||||||||||||
15 | not be denied an order of protection because petitioner or
| ||||||||||||||||||||||||||
16 | respondent is a minor. The court, when determining whether or | ||||||||||||||||||||||||||
17 | not to issue
an order of protection, shall not require physical | ||||||||||||||||||||||||||
18 | manifestations of abuse
on the person of the victim. | ||||||||||||||||||||||||||
19 | Modification and extension of prior orders of
protection shall | ||||||||||||||||||||||||||
20 | be in accordance with this Article. Whenever a court upon its | ||||||||||||||||||||||||||
21 | own motion or
upon the motion of any party determines that a | ||||||||||||||||||||||||||
22 | petitioner, respondent, or other
necessary party is not fluent | ||||||||||||||||||||||||||
23 | in English to the extent he or she will
sufficiently understand | ||||||||||||||||||||||||||
24 | an order of protection, the court shall order that the
order of | ||||||||||||||||||||||||||
25 | protection be translated into the language of that party. The | ||||||||||||||||||||||||||
26 | court
may determine a reasonable fee for the translation | ||||||||||||||||||||||||||
27 | services that shall be paid
out of the funds of the county or | ||||||||||||||||||||||||||
28 | assessed as court costs.
| ||||||||||||||||||||||||||
29 | (b) Remedies and standards. The remedies to be included in | ||||||||||||||||||||||||||
30 | an order of
protection shall be determined in accordance with | ||||||||||||||||||||||||||
31 | this Section and one of
the following Sections, as appropriate: | ||||||||||||||||||||||||||
32 | Section 112A-17 on
emergency orders,
Section 112A-18 on interim |
| |||||||
| |||||||
1 | orders, and Section 112A-19 on
plenary orders.
The remedies | ||||||
2 | listed in this subsection shall be in addition to other civil
| ||||||
3 | or criminal remedies available to petitioner.
| ||||||
4 | (1) Prohibition of abuse. Prohibit respondent's | ||||||
5 | harassment,
interference with personal liberty, | ||||||
6 | intimidation of a dependent, physical
abuse or willful | ||||||
7 | deprivation, as defined in this Article, if such abuse has
| ||||||
8 | occurred or otherwise appears likely to occur if not | ||||||
9 | prohibited.
| ||||||
10 | (2) Grant of exclusive possession of residence. | ||||||
11 | Prohibit respondent
from entering or remaining in any | ||||||
12 | residence or household of the petitioner,
including one | ||||||
13 | owned or leased by respondent, if petitioner has a right
to | ||||||
14 | occupancy thereof. The grant of exclusive possession of the | ||||||
15 | residence
shall not affect title to real property, nor | ||||||
16 | shall the court be limited by
the standard set forth in | ||||||
17 | Section 701 of the Illinois Marriage and
Dissolution of | ||||||
18 | Marriage Act.
| ||||||
19 | (A) Right to occupancy. A party has a right to | ||||||
20 | occupancy of a
residence or household if it is
solely | ||||||
21 | or jointly owned or leased by that party, that party's | ||||||
22 | spouse, a
person with a legal duty to support that | ||||||
23 | party or a minor child in that
party's care, or by any | ||||||
24 | person or entity other than the opposing party that
| ||||||
25 | authorizes that party's occupancy (e.g., a domestic | ||||||
26 | violence shelter).
Standards set forth in subparagraph | ||||||
27 | (B) shall not preclude equitable relief.
| ||||||
28 | (B) Presumption of hardships. If petitioner and | ||||||
29 | respondent
each has the right to occupancy of a | ||||||
30 | residence or household, the court
shall balance (i) the | ||||||
31 | hardships to respondent and any minor child or
| ||||||
32 | dependent adult in respondent's care resulting from | ||||||
33 | entry of this remedy with (ii)
the hardships to | ||||||
34 | petitioner and any minor child or dependent adult in
| ||||||
35 | petitioner's care resulting from continued exposure to | ||||||
36 | the risk of abuse (should
petitioner remain at the |
| |||||||
| |||||||
1 | residence or household) or from loss of possession
of | ||||||
2 | the residence or household (should petitioner leave to | ||||||
3 | avoid the risk
of abuse). When determining the balance | ||||||
4 | of hardships, the court shall also
take into account | ||||||
5 | the accessibility of the residence or household.
| ||||||
6 | Hardships need not be balanced if respondent does not | ||||||
7 | have a right to occupancy.
| ||||||
8 | The balance of hardships is presumed to favor | ||||||
9 | possession by
petitioner unless the presumption is | ||||||
10 | rebutted by a preponderance of the
evidence, showing | ||||||
11 | that the hardships to respondent substantially | ||||||
12 | outweigh
the hardships to petitioner and any minor | ||||||
13 | child or dependent adult in petitioner's
care. The | ||||||
14 | court, on the request of petitioner or on its own | ||||||
15 | motion,
may order respondent to provide suitable, | ||||||
16 | accessible, alternate housing
for petitioner instead | ||||||
17 | of
excluding respondent from a mutual residence or | ||||||
18 | household.
| ||||||
19 | (3) Stay away order and additional prohibitions.
Order | ||||||
20 | respondent to stay away from petitioner or any other person
| ||||||
21 | protected by the order of protection, or prohibit | ||||||
22 | respondent from entering
or remaining present at | ||||||
23 | petitioner's school, place of employment, or other
| ||||||
24 | specified places at times when petitioner is present, or | ||||||
25 | both, if
reasonable, given
the balance of hardships. | ||||||
26 | Hardships need not be balanced for the court
to enter a | ||||||
27 | stay away order or prohibit entry
if respondent has no | ||||||
28 | right to enter the premises.
| ||||||
29 | If an order of protection grants petitioner exclusive | ||||||
30 | possession
of the residence, or prohibits respondent from | ||||||
31 | entering the residence,
or orders respondent to stay away | ||||||
32 | from petitioner or other
protected persons, then the court | ||||||
33 | may allow respondent access to the
residence to remove | ||||||
34 | items of clothing and personal adornment
used exclusively | ||||||
35 | by respondent, medications, and other items as the court | ||||||
36 | directs.
The right to access shall be exercised on only one |
| |||||||
| |||||||
1 | occasion as the court directs
and in the presence of an | ||||||
2 | agreed-upon adult third party or law enforcement officer.
| ||||||
3 | (4) Counseling. Require or recommend the respondent to | ||||||
4 | undergo
counseling for a specified duration with a social | ||||||
5 | worker, psychologist,
clinical psychologist, psychiatrist, | ||||||
6 | family service agency, alcohol or
substance abuse program, | ||||||
7 | mental health center guidance counselor, agency
providing | ||||||
8 | services to elders, program designed for domestic violence
| ||||||
9 | abusers or any other guidance service the court deems | ||||||
10 | appropriate.
| ||||||
11 | (5) Physical care and possession of the minor child. In | ||||||
12 | order to protect
the minor child from abuse, neglect, or | ||||||
13 | unwarranted separation from the person
who has been the | ||||||
14 | minor child's primary caretaker, or to otherwise protect | ||||||
15 | the
well-being of the minor child, the court may do either | ||||||
16 | or both of the following:
(i) grant petitioner physical | ||||||
17 | care or possession of the minor child, or both, or
(ii) | ||||||
18 | order respondent to return a minor child to, or not remove | ||||||
19 | a minor child
from, the physical care of a parent or person | ||||||
20 | in loco parentis.
| ||||||
21 | If a court finds, after a hearing, that respondent has | ||||||
22 | committed abuse
(as defined in Section 112A-3) of a minor | ||||||
23 | child, there shall be a
rebuttable presumption that | ||||||
24 | awarding physical care to respondent would not
be in the | ||||||
25 | minor child's best interest.
| ||||||
26 | (6) Temporary legal custody.
Award temporary legal | ||||||
27 | custody to petitioner in accordance with this Section,
the | ||||||
28 | Illinois Marriage
and Dissolution of Marriage Act, the | ||||||
29 | Illinois Parentage Act of 1984,
and this State's Uniform | ||||||
30 | Child-Custody
Jurisdiction and Enforcement Act.
| ||||||
31 | If a court finds, after a hearing, that respondent
has | ||||||
32 | committed abuse (as defined in Section 112A-3) of a
minor | ||||||
33 | child, there shall be a rebuttable presumption that | ||||||
34 | awarding
temporary legal custody to respondent would not be | ||||||
35 | in the
child's best interest.
| ||||||
36 | (7) Visitation. Determine the
visitation rights, if |
| |||||||
| |||||||
1 | any, of respondent in any case in which the court
awards | ||||||
2 | physical care or temporary legal custody of a minor child | ||||||
3 | to
petitioner. The court shall restrict or deny | ||||||
4 | respondent's visitation with
a minor child if
the court | ||||||
5 | finds that respondent has done or is likely to do any of | ||||||
6 | the
following: (i) abuse or endanger the minor child during | ||||||
7 | visitation; (ii) use the
visitation as an opportunity to | ||||||
8 | abuse or harass petitioner or
petitioner's family or | ||||||
9 | household members; (iii) improperly conceal or
detain the | ||||||
10 | minor child; or (iv) otherwise act in a manner that is not | ||||||
11 | in
the best interests of the minor child. The court shall | ||||||
12 | not be limited by the
standards set forth in Section 607.1 | ||||||
13 | of the Illinois Marriage and
Dissolution of Marriage Act. | ||||||
14 | If the court grants visitation, the order
shall specify | ||||||
15 | dates and times for the visitation to take place or other
| ||||||
16 | specific parameters or conditions that are appropriate. No | ||||||
17 | order for
visitation shall refer merely to the term | ||||||
18 | "reasonable visitation".
| ||||||
19 | Petitioner may deny respondent access to the minor | ||||||
20 | child if, when
respondent arrives for visitation, | ||||||
21 | respondent is under the influence of drugs
or alcohol and | ||||||
22 | constitutes a threat to the safety and well-being of
| ||||||
23 | petitioner or petitioner's minor children or is behaving in | ||||||
24 | a violent or abusive manner.
| ||||||
25 | If necessary to protect any member of petitioner's | ||||||
26 | family or
household from future abuse, respondent shall be | ||||||
27 | prohibited from coming to
petitioner's residence to meet | ||||||
28 | the minor child for visitation, and the
parties shall | ||||||
29 | submit to the court their recommendations for reasonable
| ||||||
30 | alternative arrangements for visitation. A person may be | ||||||
31 | approved to
supervise visitation only after filing an | ||||||
32 | affidavit accepting
that responsibility and acknowledging | ||||||
33 | accountability to the court.
| ||||||
34 | (8) Removal or concealment of minor child.
Prohibit | ||||||
35 | respondent from
removing a minor child from the State or | ||||||
36 | concealing the child within the
State.
|
| |||||||
| |||||||
1 | (9) Order to appear. Order the respondent to
appear in | ||||||
2 | court, alone
or with a minor child, to prevent abuse, | ||||||
3 | neglect, removal or concealment of
the child, to return the | ||||||
4 | child to the custody or care of the petitioner or
to permit | ||||||
5 | any court-ordered interview or examination of the child or | ||||||
6 | the
respondent.
| ||||||
7 | (10) Possession of personal property. Grant petitioner | ||||||
8 | exclusive
possession of personal property and, if | ||||||
9 | respondent has possession or
control, direct respondent to | ||||||
10 | promptly make it available to petitioner, if:
| ||||||
11 | (i) petitioner, but not respondent, owns the | ||||||
12 | property; or
| ||||||
13 | (ii) the parties own the property jointly; sharing | ||||||
14 | it would risk
abuse of petitioner by respondent or is | ||||||
15 | impracticable; and the balance of
hardships favors | ||||||
16 | temporary possession by petitioner.
| ||||||
17 | If petitioner's sole claim to ownership of the property | ||||||
18 | is that it is
marital property, the court may award | ||||||
19 | petitioner temporary possession
thereof under the | ||||||
20 | standards of subparagraph (ii) of this paragraph only if
a | ||||||
21 | proper proceeding has been filed under the Illinois | ||||||
22 | Marriage and
Dissolution of Marriage Act, as now or | ||||||
23 | hereafter amended.
| ||||||
24 | No order under this provision shall affect title to | ||||||
25 | property.
| ||||||
26 | (11) Protection of property. Forbid the respondent | ||||||
27 | from taking,
transferring, encumbering, concealing, | ||||||
28 | damaging or otherwise disposing of
any real or personal | ||||||
29 | property, except as explicitly authorized by the
court, if:
| ||||||
30 | (i) petitioner, but not respondent, owns the | ||||||
31 | property; or
| ||||||
32 | (ii) the parties own the property jointly,
and the | ||||||
33 | balance of hardships favors granting this remedy.
| ||||||
34 | If petitioner's sole claim to ownership of the property | ||||||
35 | is that it is
marital property, the court may grant | ||||||
36 | petitioner relief under subparagraph
(ii) of this |
| |||||||
| |||||||
1 | paragraph only if a proper proceeding has been filed under | ||||||
2 | the
Illinois Marriage and Dissolution of Marriage Act, as | ||||||
3 | now or hereafter amended.
| ||||||
4 | The court may further prohibit respondent from | ||||||
5 | improperly using the
financial or other resources of an | ||||||
6 | aged member of the family or household
for the profit or | ||||||
7 | advantage of respondent or of any other person.
| ||||||
8 | (12) Order for payment of support. Order
respondent to | ||||||
9 | pay temporary
support for the petitioner or any child in | ||||||
10 | the petitioner's care or
custody, when the respondent has a | ||||||
11 | legal obligation to support that person,
in accordance with | ||||||
12 | the Illinois Marriage and Dissolution
of Marriage Act, | ||||||
13 | which shall govern, among other matters, the amount of
| ||||||
14 | support, payment through the clerk and withholding of | ||||||
15 | income to secure
payment. An order for child support may be | ||||||
16 | granted to a petitioner with
lawful physical care or | ||||||
17 | custody of a child, or an order or agreement for
physical | ||||||
18 | care or custody, prior to entry of an order for legal | ||||||
19 | custody.
Such a support order shall expire upon entry of a | ||||||
20 | valid order granting
legal custody to another, unless | ||||||
21 | otherwise provided in the custody order.
| ||||||
22 | (13) Order for payment of losses. Order
respondent to | ||||||
23 | pay petitioner
for losses suffered as a direct result of | ||||||
24 | the abuse. Such losses shall
include, but not be limited | ||||||
25 | to, medical expenses, lost earnings or other
support, | ||||||
26 | repair or replacement of property damaged or taken, | ||||||
27 | reasonable
attorney's fees, court costs and moving or other | ||||||
28 | travel expenses, including
additional reasonable expenses | ||||||
29 | for temporary shelter and restaurant meals.
| ||||||
30 | (i) Losses affecting family needs. If a party is | ||||||
31 | entitled to seek
maintenance, child support or | ||||||
32 | property distribution from the other party
under the | ||||||
33 | Illinois Marriage and Dissolution of Marriage Act, as | ||||||
34 | now or
hereafter amended, the court may order | ||||||
35 | respondent to reimburse petitioner's
actual losses, to | ||||||
36 | the extent that such reimbursement would be |
| |||||||
| |||||||
1 | "appropriate
temporary relief", as authorized by | ||||||
2 | subsection (a)(3) of
Section 501 of that Act.
| ||||||
3 | (ii) Recovery of expenses. In the case of an | ||||||
4 | improper concealment
or removal of a minor child, the | ||||||
5 | court may order respondent to pay the reasonable
| ||||||
6 | expenses incurred or to be incurred in the search for | ||||||
7 | and recovery of the
minor child, including but not | ||||||
8 | limited to legal fees, court costs, private
| ||||||
9 | investigator fees, and travel costs.
| ||||||
10 | (14) Prohibition of entry. Prohibit the respondent | ||||||
11 | from entering or
remaining in the residence or household | ||||||
12 | while the respondent is under the
influence of alcohol or | ||||||
13 | drugs and constitutes a threat to the safety and
well-being | ||||||
14 | of the petitioner or the petitioner's children.
| ||||||
15 | (14.5) Prohibition of firearm possession. (a) Prohibit | ||||||
16 | the respondent from
possessing any firearms during the | ||||||
17 | period of the order of protection. The
court
When a | ||||||
18 | complaint is made
under a request for an order of | ||||||
19 | protection, that the respondent has threatened
or is likely | ||||||
20 | to use firearms illegally against the petitioner, and the
| ||||||
21 | respondent is present in court, or has failed to appear | ||||||
22 | after receiving actual
notice, the court shall examine on | ||||||
23 | oath the petitioner, and any witnesses who
may be produced. | ||||||
24 | If the court is satisfied that there is any danger of the
| ||||||
25 | illegal use of firearms, it shall include in the order of | ||||||
26 | protection the
requirement that any firearms in the
| ||||||
27 | possession of the respondent, except as provided in | ||||||
28 | subsection (b), be turned
over to the local law enforcement | ||||||
29 | agency
for safekeeping during the period of the order of | ||||||
30 | protection . If the respondent fails to appear, or refuses | ||||||
31 | or fails to
surrender his or her firearms, the court shall
| ||||||
32 | issue a warrant for seizure of any firearm in the | ||||||
33 | possession of the respondent.
The period of safekeeping | ||||||
34 | shall be for the duration of the order of protection
a | ||||||
35 | stated period of time not to exceed 2
years . The firearm or | ||||||
36 | firearms shall be returned to the respondent at the end
of |
| |||||||
| |||||||
1 | the stated period or at expiration of the order of | ||||||
2 | protection , whichever is
sooner .
(b) If the respondent is a | ||||||
3 | peace officer as defined in Section 2-13 of the
Criminal | ||||||
4 | Code of 1961, the court shall order that any firearms used | ||||||
5 | by the
respondent in the performance of his or her duties | ||||||
6 | as a peace officer be
surrendered to the chief law | ||||||
7 | enforcement executive of the agency in which the
respondent | ||||||
8 | is employed, who shall retain the firearms for safekeeping | ||||||
9 | for the duration of the order of protection
stated period | ||||||
10 | not to exceed 2 years as set forth in the court order .
| ||||||
11 | (15) Prohibition of access to records. If an order of | ||||||
12 | protection
prohibits respondent from having contact with | ||||||
13 | the minor child,
or if petitioner's address is omitted | ||||||
14 | under subsection (b) of
Section 112A-5, or if necessary to | ||||||
15 | prevent abuse or wrongful removal or
concealment of a minor | ||||||
16 | child, the order shall deny respondent access to, and
| ||||||
17 | prohibit respondent from inspecting, obtaining, or | ||||||
18 | attempting to
inspect or obtain, school or any other | ||||||
19 | records of the minor child
who is in the care of | ||||||
20 | petitioner.
| ||||||
21 | (16) Order for payment of shelter services. Order | ||||||
22 | respondent to
reimburse a shelter providing temporary | ||||||
23 | housing and counseling services to
the petitioner for the | ||||||
24 | cost of the services, as certified by the shelter
and | ||||||
25 | deemed reasonable by the court.
| ||||||
26 | (17) Order for injunctive relief. Enter injunctive | ||||||
27 | relief necessary
or appropriate to prevent further abuse of | ||||||
28 | a family or household member or
to effectuate one of the | ||||||
29 | granted remedies, if supported by the balance of
hardships. | ||||||
30 | If the harm to be prevented by the injunction is abuse or | ||||||
31 | any
other harm that one of the remedies listed in | ||||||
32 | paragraphs (1) through (16)
of this subsection is designed | ||||||
33 | to prevent, no further evidence is necessary
to establish | ||||||
34 | that the harm is an irreparable injury.
| ||||||
35 | (c) Relevant factors; findings.
| ||||||
36 | (1) In determining whether to grant a
specific remedy, |
| |||||||
| |||||||
1 | other than payment of support, the
court shall consider | ||||||
2 | relevant factors, including but not limited to the
| ||||||
3 | following:
| ||||||
4 | (i) the nature, frequency, severity, pattern and | ||||||
5 | consequences of the
respondent's past abuse of the | ||||||
6 | petitioner or any family or household
member, | ||||||
7 | including the concealment of his or her location in | ||||||
8 | order to evade
service of process or notice, and the | ||||||
9 | likelihood of danger of future abuse to
petitioner or
| ||||||
10 | any member of petitioner's or respondent's family or | ||||||
11 | household; and
| ||||||
12 | (ii) the danger that any minor child will be abused | ||||||
13 | or neglected or
improperly removed from the | ||||||
14 | jurisdiction, improperly concealed within the
State or | ||||||
15 | improperly separated from the child's primary | ||||||
16 | caretaker.
| ||||||
17 | (2) In comparing relative hardships resulting to the | ||||||
18 | parties from loss
of possession of the family home, the | ||||||
19 | court shall consider relevant
factors, including but not | ||||||
20 | limited to the following:
| ||||||
21 | (i) availability, accessibility, cost, safety, | ||||||
22 | adequacy, location and other
characteristics of | ||||||
23 | alternate housing for each party and any minor child or
| ||||||
24 | dependent adult in the party's care;
| ||||||
25 | (ii) the effect on the party's employment; and
| ||||||
26 | (iii) the effect on the relationship of the party, | ||||||
27 | and any minor
child or dependent adult in the party's | ||||||
28 | care, to family, school, church
and community.
| ||||||
29 | (3) Subject to the exceptions set forth in paragraph | ||||||
30 | (4) of this
subsection, the court shall make its findings | ||||||
31 | in an official record or in
writing, and shall at a minimum | ||||||
32 | set forth the following:
| ||||||
33 | (i) That the court has considered the applicable | ||||||
34 | relevant factors
described in paragraphs (1) and (2) of | ||||||
35 | this subsection.
| ||||||
36 | (ii) Whether the conduct or actions of respondent, |
| |||||||
| |||||||
1 | unless
prohibited, will likely cause irreparable harm | ||||||
2 | or continued abuse.
| ||||||
3 | (iii) Whether it is necessary to grant the | ||||||
4 | requested relief in order
to protect petitioner or | ||||||
5 | other alleged abused persons.
| ||||||
6 | (4) For purposes of issuing an ex parte emergency order | ||||||
7 | of protection,
the court, as an alternative to or as a | ||||||
8 | supplement to making the findings
described in paragraphs | ||||||
9 | (c)(3)(i) through (c)(3)(iii) of this subsection, may use
| ||||||
10 | the following procedure:
| ||||||
11 | When a verified petition for an emergency order of | ||||||
12 | protection in
accordance with the requirements of Sections | ||||||
13 | 112A-5 and 112A-17 is
presented to the court, the court | ||||||
14 | shall examine petitioner on oath or
affirmation. An | ||||||
15 | emergency order of protection shall be issued by the court
| ||||||
16 | if it appears from the contents of the petition and the | ||||||
17 | examination of
petitioner that the averments are | ||||||
18 | sufficient to indicate abuse by
respondent and to support | ||||||
19 | the granting of relief under the issuance of the
emergency | ||||||
20 | order of protection.
| ||||||
21 | (5) Never married parties. No rights or | ||||||
22 | responsibilities for a minor
child born outside of marriage | ||||||
23 | attach to a putative father until a father and
child | ||||||
24 | relationship has been established under the Illinois | ||||||
25 | Parentage Act of
1984. Absent such an adjudication, no | ||||||
26 | putative father shall be granted
temporary custody of the | ||||||
27 | minor child, visitation with the minor child, or
physical | ||||||
28 | care
and possession of the minor child, nor shall
an order | ||||||
29 | of payment for support of the minor child be entered.
| ||||||
30 | (d) Balance of hardships; findings. If the court finds that | ||||||
31 | the balance
of hardships does not support the granting of a | ||||||
32 | remedy governed by
paragraph (2), (3), (10), (11), or (16) of
| ||||||
33 | subsection (b) of this Section,
which may require such | ||||||
34 | balancing, the court's findings shall so
indicate and shall | ||||||
35 | include a finding as to whether granting the remedy will
result | ||||||
36 | in hardship to respondent that would substantially outweigh the |
| |||||||
| |||||||
1 | hardship
to petitioner
from denial of the remedy. The findings | ||||||
2 | shall be an official record or in
writing.
| ||||||
3 | (e) Denial of remedies. Denial of any remedy shall not be | ||||||
4 | based, in
whole or in part, on evidence that:
| ||||||
5 | (1) Respondent has cause for any use of force, unless | ||||||
6 | that cause
satisfies the standards for justifiable use of | ||||||
7 | force provided by Article
VII of the Criminal Code of 1961;
| ||||||
8 | (2) Respondent was voluntarily intoxicated;
| ||||||
9 | (3) Petitioner acted in self-defense or defense of | ||||||
10 | another, provided
that, if petitioner utilized force, such | ||||||
11 | force was justifiable under
Article VII of the Criminal | ||||||
12 | Code of 1961;
| ||||||
13 | (4) Petitioner did not act in self-defense or defense | ||||||
14 | of another;
| ||||||
15 | (5) Petitioner left the residence or household to avoid | ||||||
16 | further abuse
by respondent;
| ||||||
17 | (6) Petitioner did not leave the residence or household | ||||||
18 | to avoid further
abuse by respondent;
| ||||||
19 | (7) Conduct by any family or household member excused | ||||||
20 | the abuse by
respondent, unless that same conduct would | ||||||
21 | have excused such abuse if the
parties had not been family | ||||||
22 | or household members.
| ||||||
23 | (Source: P.A. 93-108, eff. 1-1-04.)
| ||||||
24 | Section 10. The Illinois Domestic Violence Act of 1986 is | ||||||
25 | amended by
changing Section 214 as follows:
| ||||||
26 | (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
| ||||||
27 | Sec. 214. Order of protection; remedies.
| ||||||
28 | (a) Issuance of order. If the court finds that petitioner | ||||||
29 | has been
abused by a family or household member or that | ||||||
30 | petitioner is a high-risk
adult who has been abused, neglected, | ||||||
31 | or exploited, as defined in this Act,
an order of protection | ||||||
32 | prohibiting the abuse, neglect, or exploitation
shall issue; | ||||||
33 | provided that petitioner must also satisfy the requirements of
| ||||||
34 | one of the following Sections, as appropriate: Section 217 on |
| |||||||
| |||||||
1 | emergency
orders, Section 218 on interim orders, or Section 219 | ||||||
2 | on plenary orders.
Petitioner shall not be denied an order of | ||||||
3 | protection because petitioner or
respondent is a minor. The | ||||||
4 | court, when determining whether or not to issue
an order of | ||||||
5 | protection, shall not require physical manifestations of abuse
| ||||||
6 | on the person of the victim. Modification and extension of | ||||||
7 | prior
orders of protection shall be in accordance with this | ||||||
8 | Act. Whenever a court upon its own motion or
upon the motion of | ||||||
9 | any party determines that a petitioner, respondent, or other
| ||||||
10 | necessary party is not fluent in English to the extent he or | ||||||
11 | she will
sufficiently understand an order of protection, the | ||||||
12 | court shall order that the
order of protection be translated | ||||||
13 | into the language of that party. The court
may determine a | ||||||
14 | reasonable fee for the translation services that shall be paid
| ||||||
15 | out of the funds of the county or assessed as court costs.
| ||||||
16 | (b) Remedies and standards. The remedies to be included in | ||||||
17 | an order of
protection shall be determined in accordance with | ||||||
18 | this Section and one of
the following Sections, as appropriate: | ||||||
19 | Section 217 on emergency orders,
Section 218 on interim orders, | ||||||
20 | and Section 219 on plenary orders. The
remedies listed in this | ||||||
21 | subsection shall be in addition to other civil or
criminal | ||||||
22 | remedies available to petitioner.
| ||||||
23 | (1) Prohibition of abuse, neglect, or exploitation. | ||||||
24 | Prohibit
respondent's harassment, interference with | ||||||
25 | personal liberty, intimidation
of a dependent, physical | ||||||
26 | abuse, or willful deprivation, neglect or
exploitation, as | ||||||
27 | defined in this Act, or stalking of the petitioner, as | ||||||
28 | defined
in Section 12-7.3 of the Criminal Code of 1961, if | ||||||
29 | such abuse, neglect,
exploitation, or stalking has | ||||||
30 | occurred or otherwise appears likely to occur if
not | ||||||
31 | prohibited.
| ||||||
32 | (2) Grant of exclusive possession of residence. | ||||||
33 | Prohibit respondent from
entering or remaining in any | ||||||
34 | residence or household of the petitioner,
including one | ||||||
35 | owned or leased by respondent, if petitioner has a right to
| ||||||
36 | occupancy thereof. The grant of exclusive possession of the |
| |||||||
| |||||||
1 | residence shall not
affect title to real property, nor | ||||||
2 | shall the court be limited by the standard
set forth in | ||||||
3 | Section 701 of the Illinois Marriage and Dissolution of | ||||||
4 | Marriage
Act.
| ||||||
5 | (A) Right to occupancy. A party has a right to | ||||||
6 | occupancy of a
residence or household if it is solely | ||||||
7 | or jointly owned or leased by that
party, that party's | ||||||
8 | spouse, a person with a legal duty to support that | ||||||
9 | party or
a minor child in that party's care, or by any | ||||||
10 | person or entity other than the
opposing party that | ||||||
11 | authorizes that party's occupancy (e.g., a domestic
| ||||||
12 | violence shelter). Standards set forth in subparagraph | ||||||
13 | (B) shall not preclude
equitable relief.
| ||||||
14 | (B) Presumption of hardships. If petitioner and | ||||||
15 | respondent
each has the right to occupancy of a | ||||||
16 | residence or household, the court
shall balance (i) the | ||||||
17 | hardships to respondent and any minor child or
| ||||||
18 | dependent adult in respondent's care resulting from | ||||||
19 | entry of this remedy with
(ii) the hardships to | ||||||
20 | petitioner and any minor child or dependent adult in
| ||||||
21 | petitioner's care resulting from continued exposure to | ||||||
22 | the risk of abuse
(should petitioner remain at the | ||||||
23 | residence or household) or from loss of
possession of | ||||||
24 | the residence or household (should petitioner leave to | ||||||
25 | avoid the
risk of abuse). When determining the balance | ||||||
26 | of hardships, the court shall
also take into account | ||||||
27 | the accessibility of the residence or household.
| ||||||
28 | Hardships need not be balanced if respondent does not | ||||||
29 | have a right to
occupancy.
| ||||||
30 | The balance of hardships is presumed to favor | ||||||
31 | possession by
petitioner unless the presumption is | ||||||
32 | rebutted by a preponderance of the
evidence, showing | ||||||
33 | that the hardships to respondent substantially | ||||||
34 | outweigh
the hardships to petitioner and any minor | ||||||
35 | child or dependent adult in
petitioner's care. The | ||||||
36 | court, on the request of petitioner or on its own
|
| |||||||
| |||||||
1 | motion, may order respondent to provide suitable, | ||||||
2 | accessible, alternate housing
for petitioner instead | ||||||
3 | of excluding respondent from a mutual residence or
| ||||||
4 | household.
| ||||||
5 | (3) Stay away order and additional prohibitions.
Order | ||||||
6 | respondent to stay away from petitioner or any other person
| ||||||
7 | protected by the order of protection, or prohibit | ||||||
8 | respondent from entering
or remaining present at | ||||||
9 | petitioner's school, place of employment, or other
| ||||||
10 | specified places at times when petitioner is present, or | ||||||
11 | both, if
reasonable, given the balance of hardships. | ||||||
12 | Hardships need not be balanced for
the court to enter a | ||||||
13 | stay away order or prohibit entry if respondent has no
| ||||||
14 | right to enter the premises.
| ||||||
15 | If an order of protection grants petitioner exclusive | ||||||
16 | possession
of the residence, or prohibits respondent from | ||||||
17 | entering the residence,
or orders respondent to stay away | ||||||
18 | from petitioner or other
protected persons, then the court | ||||||
19 | may allow respondent access to the
residence to remove | ||||||
20 | items of clothing and personal adornment
used exclusively | ||||||
21 | by respondent, medications, and other items as the court
| ||||||
22 | directs. The right to access shall be exercised on only one | ||||||
23 | occasion as the
court directs and in the presence of an | ||||||
24 | agreed-upon adult third party or law
enforcement officer.
| ||||||
25 | (4) Counseling. Require or recommend the respondent to | ||||||
26 | undergo
counseling for a specified duration with a social | ||||||
27 | worker, psychologist,
clinical psychologist, psychiatrist, | ||||||
28 | family service agency, alcohol or
substance abuse program, | ||||||
29 | mental health center guidance counselor, agency
providing | ||||||
30 | services to elders, program designed for domestic violence
| ||||||
31 | abusers or any other guidance service the court deems | ||||||
32 | appropriate.
| ||||||
33 | (5) Physical care and possession of the minor child. In | ||||||
34 | order to protect
the minor child from abuse, neglect, or | ||||||
35 | unwarranted separation from the person
who has been the | ||||||
36 | minor child's primary caretaker, or to otherwise protect |
| |||||||
| |||||||
1 | the
well-being of the minor child, the court may do either | ||||||
2 | or both of the
following: (i) grant petitioner physical | ||||||
3 | care or possession of the minor child,
or both, or (ii) | ||||||
4 | order respondent to return a minor child to, or not remove | ||||||
5 | a
minor child from, the physical care of a parent or person | ||||||
6 | in loco parentis.
| ||||||
7 | If a court finds, after a hearing, that respondent has | ||||||
8 | committed abuse
(as defined in Section 103) of a minor | ||||||
9 | child, there shall be a
rebuttable presumption that | ||||||
10 | awarding physical care to respondent would not
be in the | ||||||
11 | minor child's best interest.
| ||||||
12 | (6) Temporary legal custody. Award temporary legal | ||||||
13 | custody to petitioner
in accordance with this Section, the | ||||||
14 | Illinois Marriage and Dissolution of
Marriage Act, the | ||||||
15 | Illinois Parentage Act of 1984, and this State's Uniform
| ||||||
16 | Child-Custody Jurisdiction and Enforcement Act.
| ||||||
17 | If a court finds, after a hearing, that respondent has | ||||||
18 | committed abuse (as
defined in Section 103) of a minor | ||||||
19 | child, there shall be a rebuttable
presumption that | ||||||
20 | awarding temporary legal custody to respondent would not be | ||||||
21 | in
the child's best interest.
| ||||||
22 | (7) Visitation. Determine the visitation rights, if | ||||||
23 | any, of respondent in
any case in which the court awards | ||||||
24 | physical care or temporary legal custody of
a minor child | ||||||
25 | to petitioner. The court shall restrict or deny | ||||||
26 | respondent's
visitation with a minor child if the court | ||||||
27 | finds that respondent has done or is
likely to do any of | ||||||
28 | the following: (i) abuse or endanger the minor child during
| ||||||
29 | visitation; (ii) use the visitation as an opportunity to | ||||||
30 | abuse or harass
petitioner or petitioner's family or | ||||||
31 | household members; (iii) improperly
conceal or detain the | ||||||
32 | minor child; or (iv) otherwise act in a manner that is
not | ||||||
33 | in the best interests of the minor child. The court shall | ||||||
34 | not be limited
by the standards set forth in Section 607.1 | ||||||
35 | of the Illinois Marriage and
Dissolution of Marriage Act. | ||||||
36 | If the court grants visitation, the order shall
specify |
| |||||||
| |||||||
1 | dates and times for the visitation to take place or other | ||||||
2 | specific
parameters or conditions that are appropriate. No | ||||||
3 | order for visitation shall
refer merely to the term | ||||||
4 | "reasonable visitation".
| ||||||
5 | Petitioner may deny respondent access to the minor | ||||||
6 | child if, when
respondent arrives for visitation, | ||||||
7 | respondent is under the influence of drugs
or alcohol and | ||||||
8 | constitutes a threat to the safety and well-being of
| ||||||
9 | petitioner or petitioner's minor children or is behaving in | ||||||
10 | a violent or
abusive manner.
| ||||||
11 | If necessary to protect any member of petitioner's | ||||||
12 | family or
household from future abuse, respondent shall be | ||||||
13 | prohibited from coming to
petitioner's residence to meet | ||||||
14 | the minor child for visitation, and the
parties shall | ||||||
15 | submit to the court their recommendations for reasonable
| ||||||
16 | alternative arrangements for visitation. A person may be | ||||||
17 | approved to
supervise visitation only after filing an | ||||||
18 | affidavit accepting
that responsibility and acknowledging | ||||||
19 | accountability to the court.
| ||||||
20 | (8) Removal or concealment of minor child. Prohibit | ||||||
21 | respondent from
removing a minor child from the State or | ||||||
22 | concealing the child within the State.
| ||||||
23 | (9) Order to appear. Order the respondent to appear in | ||||||
24 | court, alone
or with a minor child, to prevent abuse, | ||||||
25 | neglect, removal or concealment of
the child, to return the | ||||||
26 | child to the custody or care of the petitioner or
to permit | ||||||
27 | any court-ordered interview or examination of the child or | ||||||
28 | the
respondent.
| ||||||
29 | (10) Possession of personal property. Grant petitioner | ||||||
30 | exclusive
possession of personal property and, if | ||||||
31 | respondent has possession or
control, direct respondent to | ||||||
32 | promptly make it available to petitioner, if:
| ||||||
33 | (i) petitioner, but not respondent, owns the | ||||||
34 | property; or
| ||||||
35 | (ii) the parties own the property jointly; sharing | ||||||
36 | it would risk
abuse of petitioner by respondent or is |
| |||||||
| |||||||
1 | impracticable; and the balance of
hardships favors | ||||||
2 | temporary possession by petitioner.
| ||||||
3 | If petitioner's sole claim to ownership of the property | ||||||
4 | is that it is
marital property, the court may award | ||||||
5 | petitioner temporary possession
thereof under the | ||||||
6 | standards of subparagraph (ii) of this paragraph only if
a | ||||||
7 | proper proceeding has been filed under the Illinois | ||||||
8 | Marriage and
Dissolution of Marriage Act, as now or | ||||||
9 | hereafter amended.
| ||||||
10 | No order under this provision shall affect title to | ||||||
11 | property.
| ||||||
12 | (11) Protection of property. Forbid the respondent | ||||||
13 | from taking,
transferring, encumbering, concealing, | ||||||
14 | damaging or otherwise disposing of
any real or personal | ||||||
15 | property, except as explicitly authorized by the
court, if:
| ||||||
16 | (i) petitioner, but not respondent, owns the | ||||||
17 | property; or
| ||||||
18 | (ii) the parties own the property jointly,
and the | ||||||
19 | balance of hardships favors granting this remedy.
| ||||||
20 | If petitioner's sole claim to ownership of the property | ||||||
21 | is that it is
marital property, the court may grant | ||||||
22 | petitioner relief under subparagraph
(ii) of this | ||||||
23 | paragraph only if a proper proceeding has been filed under | ||||||
24 | the
Illinois Marriage and Dissolution of Marriage Act, as | ||||||
25 | now or hereafter amended.
| ||||||
26 | The court may further prohibit respondent from | ||||||
27 | improperly using the
financial or other resources of an | ||||||
28 | aged member of the family or household
for the profit or | ||||||
29 | advantage of respondent or of any other person.
| ||||||
30 | (12) Order for payment of support. Order respondent to | ||||||
31 | pay temporary
support for the petitioner or any child in | ||||||
32 | the petitioner's care or
custody, when the respondent has a | ||||||
33 | legal obligation to support that person,
in accordance with | ||||||
34 | the Illinois Marriage and Dissolution
of Marriage Act, | ||||||
35 | which shall govern, among other matters, the amount of
| ||||||
36 | support, payment through the clerk and withholding of |
| |||||||
| |||||||
1 | income to secure
payment. An order for child support may be | ||||||
2 | granted to a petitioner with
lawful physical care or | ||||||
3 | custody of a child, or an order or agreement for
physical | ||||||
4 | care or custody, prior to entry of an order for legal | ||||||
5 | custody.
Such a support order shall expire upon entry of a | ||||||
6 | valid order granting
legal custody to another, unless | ||||||
7 | otherwise provided in the custody order.
| ||||||
8 | (13) Order for payment of losses. Order respondent to | ||||||
9 | pay petitioner for
losses suffered as a direct result of | ||||||
10 | the abuse, neglect, or exploitation.
Such losses shall | ||||||
11 | include, but not be limited to, medical expenses, lost
| ||||||
12 | earnings or other support, repair or replacement of | ||||||
13 | property damaged or taken,
reasonable attorney's fees, | ||||||
14 | court costs and moving or other travel expenses,
including | ||||||
15 | additional reasonable expenses for temporary shelter and | ||||||
16 | restaurant
meals.
| ||||||
17 | (i) Losses affecting family needs. If a party is | ||||||
18 | entitled to seek
maintenance, child support or | ||||||
19 | property distribution from the other party
under the | ||||||
20 | Illinois Marriage and Dissolution of Marriage Act, as | ||||||
21 | now or
hereafter amended, the court may order | ||||||
22 | respondent to reimburse petitioner's
actual losses, to | ||||||
23 | the extent that such reimbursement would be | ||||||
24 | "appropriate
temporary relief", as authorized by | ||||||
25 | subsection (a)(3) of Section 501 of
that Act.
| ||||||
26 | (ii) Recovery of expenses. In the case of an | ||||||
27 | improper concealment
or removal of a minor child, the | ||||||
28 | court may order respondent to pay the
reasonable | ||||||
29 | expenses incurred or to be incurred in the search for | ||||||
30 | and recovery
of the minor child, including but not | ||||||
31 | limited to legal fees, court costs,
private | ||||||
32 | investigator fees, and travel costs.
| ||||||
33 | (14) Prohibition of entry. Prohibit the respondent | ||||||
34 | from entering or
remaining in the residence or household | ||||||
35 | while the respondent is under the
influence of alcohol or | ||||||
36 | drugs and constitutes a threat to the safety and
well-being |
| |||||||
| |||||||
1 | of the petitioner or the petitioner's children.
| ||||||
2 | (14.5) Prohibition of firearm possession.
| ||||||
3 | (a) Prohibit the respondent from possessing any | ||||||
4 | firearms during the
period of the order of protection. | ||||||
5 | The court
When a complaint is made
under a request for | ||||||
6 | an order of protection, that the respondent has | ||||||
7 | threatened
or is likely to use firearms illegally | ||||||
8 | against the petitioner, and the
respondent is present | ||||||
9 | in court, or has failed to appear after receiving | ||||||
10 | actual
notice, the court shall examine on oath the | ||||||
11 | petitioner, and any witnesses who
may be produced. If | ||||||
12 | the court is satisfied that there is any danger of the
| ||||||
13 | illegal use of firearms, it shall issue an order that | ||||||
14 | any firearms in the
possession of the respondent, | ||||||
15 | except as provided in subsection (b), be turned
over to | ||||||
16 | the local law enforcement agency
for safekeeping. If | ||||||
17 | the respondent has failed to appear, the court shall
| ||||||
18 | issue a warrant for seizure of any firearm in the | ||||||
19 | possession of the respondent.
The period of | ||||||
20 | safekeeping shall be for the duration of the order of | ||||||
21 | protection
a stated period of time not to exceed 2
| ||||||
22 | years . The firearm or firearms shall be returned to the | ||||||
23 | respondent at the end
of the stated period or at | ||||||
24 | expiration of the order of protection , whichever is
| ||||||
25 | sooner .
| ||||||
26 | (b) If the respondent is a peace officer as defined | ||||||
27 | in Section 2-13 of
the
Criminal Code of 1961, the court | ||||||
28 | shall order that any firearms used by the
respondent in | ||||||
29 | the performance of his or her duties as a
peace officer | ||||||
30 | be surrendered to
the chief law enforcement executive | ||||||
31 | of the agency in which the respondent is
employed, who | ||||||
32 | shall retain the firearms for safekeeping for the | ||||||
33 | duration of the order of protection
for the stated | ||||||
34 | period
not to exceed 2 years as set forth in the court | ||||||
35 | order .
| ||||||
36 | (15) Prohibition of access to records. If an order of |
| |||||||
| |||||||
1 | protection
prohibits respondent from having contact with | ||||||
2 | the minor child,
or if petitioner's address is omitted | ||||||
3 | under subsection (b) of
Section 203, or if necessary to | ||||||
4 | prevent abuse or wrongful removal or
concealment of a minor | ||||||
5 | child, the order shall deny respondent access to, and
| ||||||
6 | prohibit respondent from inspecting, obtaining, or | ||||||
7 | attempting to
inspect or obtain, school or any other | ||||||
8 | records of the minor child
who is in the care of | ||||||
9 | petitioner.
| ||||||
10 | (16) Order for payment of shelter services. Order | ||||||
11 | respondent to
reimburse a shelter providing temporary | ||||||
12 | housing and counseling services to
the petitioner for the | ||||||
13 | cost of the services, as certified by the shelter
and | ||||||
14 | deemed reasonable by the court.
| ||||||
15 | (17) Order for injunctive relief. Enter injunctive | ||||||
16 | relief necessary
or appropriate to prevent further abuse of | ||||||
17 | a family or household member
or further abuse, neglect, or | ||||||
18 | exploitation of a high-risk adult with
disabilities or to | ||||||
19 | effectuate one of the granted remedies, if supported by the
| ||||||
20 | balance of hardships. If the harm to be prevented by the | ||||||
21 | injunction is abuse
or any other harm that one of the | ||||||
22 | remedies listed in paragraphs (1) through
(16) of this | ||||||
23 | subsection is designed to prevent, no further evidence is
| ||||||
24 | necessary that the harm is an irreparable injury.
| ||||||
25 | (c) Relevant factors; findings.
| ||||||
26 | (1) In determining whether to grant a specific remedy, | ||||||
27 | other than
payment of support, the court shall consider
| ||||||
28 | relevant factors, including but not limited to the | ||||||
29 | following:
| ||||||
30 | (i) the nature, frequency, severity, pattern and | ||||||
31 | consequences of the
respondent's past abuse, neglect | ||||||
32 | or exploitation of the petitioner or
any family or | ||||||
33 | household member, including the concealment of his or | ||||||
34 | her
location in order to evade service of process or | ||||||
35 | notice, and the likelihood of
danger of future abuse, | ||||||
36 | neglect, or exploitation to petitioner or any member of
|
| |||||||
| |||||||
1 | petitioner's or respondent's family or household; and
| ||||||
2 | (ii) the danger that any minor child will be abused | ||||||
3 | or neglected or
improperly removed from the | ||||||
4 | jurisdiction, improperly concealed within the
State or | ||||||
5 | improperly separated from the child's primary | ||||||
6 | caretaker.
| ||||||
7 | (2) In comparing relative hardships resulting to the | ||||||
8 | parties from loss
of possession of the family home, the | ||||||
9 | court shall consider relevant
factors, including but not | ||||||
10 | limited to the following:
| ||||||
11 | (i) availability, accessibility, cost, safety, | ||||||
12 | adequacy, location and
other characteristics of | ||||||
13 | alternate housing for each party and any minor child
or | ||||||
14 | dependent adult in the party's care;
| ||||||
15 | (ii) the effect on the party's employment; and
| ||||||
16 | (iii) the effect on the relationship of the party, | ||||||
17 | and any minor
child or dependent adult in the party's | ||||||
18 | care, to family, school, church
and community.
| ||||||
19 | (3) Subject to the exceptions set forth in paragraph | ||||||
20 | (4) of this
subsection, the court shall make its findings | ||||||
21 | in an official record or in
writing, and shall at a minimum | ||||||
22 | set forth the following:
| ||||||
23 | (i) That the court has considered the applicable | ||||||
24 | relevant factors
described in paragraphs (1) and (2) of | ||||||
25 | this subsection.
| ||||||
26 | (ii) Whether the conduct or actions of respondent, | ||||||
27 | unless
prohibited, will likely cause irreparable harm | ||||||
28 | or continued abuse.
| ||||||
29 | (iii) Whether it is necessary to grant the | ||||||
30 | requested relief in order
to protect petitioner or | ||||||
31 | other alleged abused persons.
| ||||||
32 | (4) For purposes of issuing an ex parte emergency order | ||||||
33 | of protection,
the court, as an alternative to or as a | ||||||
34 | supplement to making the findings
described in paragraphs | ||||||
35 | (c)(3)(i) through (c)(3)(iii) of this subsection, may
use | ||||||
36 | the following procedure:
|
| |||||||
| |||||||
1 | When a verified petition for an emergency order of | ||||||
2 | protection in
accordance with the requirements of Sections | ||||||
3 | 203 and 217 is
presented to the court, the court shall | ||||||
4 | examine petitioner on oath or
affirmation. An emergency | ||||||
5 | order of protection shall be issued by the court
if it | ||||||
6 | appears from the contents of the petition and the | ||||||
7 | examination of
petitioner that the averments are | ||||||
8 | sufficient to indicate abuse by
respondent and to support | ||||||
9 | the granting of relief under the issuance of the
emergency | ||||||
10 | order of protection.
| ||||||
11 | (5) Never married parties. No rights or | ||||||
12 | responsibilities for a minor
child born outside of marriage | ||||||
13 | attach to a putative father until a father and
child | ||||||
14 | relationship has been established under the Illinois | ||||||
15 | Parentage Act of
1984, the Illinois Public Aid Code, | ||||||
16 | Section 12 of the Vital Records Act, the
Juvenile Court Act | ||||||
17 | of 1987, the Probate Act of 1985, the Revised Uniform
| ||||||
18 | Reciprocal Enforcement of Support Act, the Uniform | ||||||
19 | Interstate Family Support
Act, the Expedited Child Support | ||||||
20 | Act of 1990, any judicial, administrative, or
other act of | ||||||
21 | another state or territory, any other Illinois statute, or | ||||||
22 | by any
foreign nation establishing the father and child | ||||||
23 | relationship, any other
proceeding substantially in | ||||||
24 | conformity with the Personal Responsibility and
Work | ||||||
25 | Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), | ||||||
26 | or where both
parties appeared in open court or at an | ||||||
27 | administrative hearing acknowledging
under
oath or | ||||||
28 | admitting by affirmation the existence of a father and | ||||||
29 | child
relationship.
Absent such an adjudication, finding, | ||||||
30 | or acknowledgement, no putative
father shall be granted
| ||||||
31 | temporary custody of the minor child, visitation with the | ||||||
32 | minor child, or
physical care and possession of the minor | ||||||
33 | child, nor shall an order of payment
for support of the | ||||||
34 | minor child be entered.
| ||||||
35 | (d) Balance of hardships; findings. If the court finds that | ||||||
36 | the balance
of hardships does not support the granting of a |
| |||||||
| |||||||
1 | remedy governed by
paragraph (2), (3), (10), (11), or (16) of | ||||||
2 | subsection (b) of this Section,
which may require such | ||||||
3 | balancing, the court's findings shall so
indicate and shall | ||||||
4 | include a finding as to whether granting the remedy will
result | ||||||
5 | in hardship to respondent that would substantially outweigh the | ||||||
6 | hardship
to petitioner from denial of the remedy. The findings | ||||||
7 | shall be an official
record or in writing.
| ||||||
8 | (e) Denial of remedies. Denial of any remedy shall not be | ||||||
9 | based, in
whole or in part, on evidence that:
| ||||||
10 | (1) Respondent has cause for any use of force, unless | ||||||
11 | that cause
satisfies the standards for justifiable use of | ||||||
12 | force provided by Article
VII of the Criminal Code of 1961;
| ||||||
13 | (2) Respondent was voluntarily intoxicated;
| ||||||
14 | (3) Petitioner acted in self-defense or defense of | ||||||
15 | another, provided
that, if petitioner utilized force, such | ||||||
16 | force was justifiable under
Article VII of the Criminal | ||||||
17 | Code of 1961;
| ||||||
18 | (4) Petitioner did not act in self-defense or defense | ||||||
19 | of another;
| ||||||
20 | (5) Petitioner left the residence or household to avoid | ||||||
21 | further abuse,
neglect, or exploitation by respondent;
| ||||||
22 | (6) Petitioner did not leave the residence or household | ||||||
23 | to avoid further
abuse, neglect, or exploitation by | ||||||
24 | respondent;
| ||||||
25 | (7) Conduct by any family or household member excused | ||||||
26 | the abuse,
neglect, or exploitation by respondent, unless | ||||||
27 | that same conduct would have
excused such abuse, neglect, | ||||||
28 | or exploitation if the parties had not been
family or | ||||||
29 | household members.
| ||||||
30 | (Source: P.A. 93-108, eff. 1-1-04.)
|