|
|
|
HB3633 Engrossed |
- 2 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| (d) A person addicted to narcotics;
|
2 |
| (e) A person who has been a patient of a mental institution |
3 |
| within the
past 5 years;
|
4 |
| (f) A person whose mental condition is of such a nature |
5 |
| that it poses
a clear and present danger to the applicant, any |
6 |
| other person or persons or
the community;
|
7 |
| For the purposes of this Section, "mental condition" means |
8 |
| a state of
mind manifested by violent, suicidal, threatening or |
9 |
| assaultive behavior.
|
10 |
| (g) A person who is mentally retarded;
|
11 |
| (h) A person who intentionally makes a false statement in |
12 |
| the Firearm
Owner's Identification Card application;
|
13 |
| (i) An alien who is unlawfully present in
the United States |
14 |
| under the laws of the United States;
|
15 |
| (i-5) An alien who has been admitted to the United States |
16 |
| under a
non-immigrant visa (as that term is defined in Section |
17 |
| 101(a)(26) of the
Immigration and Nationality Act (8 U.S.C. |
18 |
| 1101(a)(26))), except that this
subsection (i-5) does not apply |
19 |
| to any alien who has been lawfully admitted to
the United |
20 |
| States under a non-immigrant visa if that alien is:
|
21 |
| (1) admitted to the United States for lawful hunting or |
22 |
| sporting purposes;
|
23 |
| (2) an official representative of a foreign government |
24 |
| who is:
|
25 |
| (A) accredited to the United States Government or |
26 |
| the Government's
mission to an international |
|
|
|
HB3633 Engrossed |
- 3 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| organization having its headquarters in the United
|
2 |
| States; or
|
3 |
| (B) en route to or from another country to which |
4 |
| that alien is
accredited;
|
5 |
| (3) an official of a foreign government or |
6 |
| distinguished foreign visitor
who has been so designated by |
7 |
| the Department of State;
|
8 |
| (4) a foreign law enforcement officer of a friendly |
9 |
| foreign government
entering the United States on official |
10 |
| business; or
|
11 |
| (5) one who has received a waiver from the Attorney |
12 |
| General of the United
States pursuant to 18 U.S.C. |
13 |
| 922(y)(3);
|
14 |
| (j) (Blank)
A person who is subject to an existing order of |
15 |
| protection prohibiting
him or her from possessing a firearm ;
|
16 |
| (k) A person who has been convicted within the past 5 years |
17 |
| of battery,
assault, aggravated assault, violation of an order |
18 |
| of protection, or a
substantially similar offense in another |
19 |
| jurisdiction, in which a firearm was
used or possessed;
|
20 |
| (l) A person who has been convicted of domestic battery or |
21 |
| a substantially
similar offense in another jurisdiction |
22 |
| committed on or after January 1,
1998;
|
23 |
| (m) A person who has been convicted within the past 5 years |
24 |
| of domestic
battery or a substantially similar offense in |
25 |
| another jurisdiction committed
before January 1, 1998;
|
26 |
| (n) A person who is prohibited from acquiring or possessing
|
|
|
|
HB3633 Engrossed |
- 4 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| firearms or firearm ammunition by any Illinois State statute or |
2 |
| by federal
law;
|
3 |
| (o) A minor subject to a petition filed under Section 5-520 |
4 |
| of the
Juvenile Court Act of 1987 alleging that the minor is a |
5 |
| delinquent minor for
the commission of an offense that if |
6 |
| committed by an adult would be a felony;
or
|
7 |
| (p) An adult who had been adjudicated a delinquent minor |
8 |
| under the Juvenile
Court Act of 1987 for the commission of an |
9 |
| offense that if committed by an
adult would be a felony.
|
10 |
| (Source: P.A. 92-854, eff. 12-5-02; 93-367, eff. 1-1-04 .)
|
11 |
| (430 ILCS 65/8.2 new) |
12 |
| Sec. 8.2. Firearm Owner's Identification Card denial or |
13 |
| revocation. The Department of State Police shall deny an |
14 |
| application or shall revoke and seize a Firearm Owner's |
15 |
| Identification Card previously issued under this Act if the |
16 |
| Department finds that the applicant or person to whom such card |
17 |
| was issued is or was at the time of issuance subject to an |
18 |
| existing order of protection.
|
19 |
| Section 10. The Code of Criminal Procedure of 1963 is |
20 |
| amended by changing Section 112A-14 as follows:
|
21 |
| (725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
|
22 |
| Sec. 112A-14. Order of protection; remedies.
|
23 |
| (a) Issuance of order. If the court finds that petitioner |
|
|
|
HB3633 Engrossed |
- 5 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| has been
abused by a family or household member, as defined in |
2 |
| this Article, an
order of protection prohibiting such abuse |
3 |
| shall issue; provided that
petitioner must also satisfy the |
4 |
| requirements of one of the following
Sections, as appropriate: |
5 |
| Section 112A-17 on emergency orders, Section
112A-18 on interim |
6 |
| orders, or Section 112A-19 on
plenary orders.
Petitioner shall |
7 |
| not be denied an order of protection because petitioner or
|
8 |
| respondent is a minor. The court, when determining whether or |
9 |
| not to issue
an order of protection, shall not require physical |
10 |
| manifestations of abuse
on the person of the victim. |
11 |
| Modification and extension of prior orders of
protection shall |
12 |
| be in accordance with this Article.
|
13 |
| (b) Remedies and standards. The remedies to be included in |
14 |
| an order of
protection shall be determined in accordance with |
15 |
| this Section and one of
the following Sections, as appropriate: |
16 |
| Section 112A-17 on
emergency orders,
Section 112A-18 on interim |
17 |
| orders, and Section 112A-19 on
plenary orders.
The remedies |
18 |
| listed in this subsection shall be in addition to other civil
|
19 |
| or criminal remedies available to petitioner.
|
20 |
| (1) Prohibition of abuse. Prohibit respondent's |
21 |
| harassment,
interference with personal liberty, |
22 |
| intimidation of a dependent, physical
abuse or willful |
23 |
| deprivation, as defined in this Article, if such abuse has
|
24 |
| occurred or otherwise appears likely to occur if not |
25 |
| prohibited.
|
26 |
| (2) Grant of exclusive possession of residence. |
|
|
|
HB3633 Engrossed |
- 6 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| Prohibit respondent
from entering or remaining in any |
2 |
| residence or household of the petitioner,
including one |
3 |
| owned or leased by respondent, if petitioner has a right
to |
4 |
| occupancy thereof. The grant of exclusive possession of the |
5 |
| residence
shall not affect title to real property, nor |
6 |
| shall the court be limited by
the standard set forth in |
7 |
| Section 701 of the Illinois Marriage and
Dissolution of |
8 |
| Marriage Act.
|
9 |
| (A) Right to occupancy. A party has a right to |
10 |
| occupancy of a
residence or household if it is
solely |
11 |
| or jointly owned or leased by that party, that party's |
12 |
| spouse, a
person with a legal duty to support that |
13 |
| party or a minor child in that
party's care, or by any |
14 |
| person or entity other than the opposing party that
|
15 |
| authorizes that party's occupancy (e.g., a domestic |
16 |
| violence shelter).
Standards set forth in subparagraph |
17 |
| (B) shall not preclude equitable relief.
|
18 |
| (B) Presumption of hardships. If petitioner and |
19 |
| respondent
each has the right to occupancy of a |
20 |
| residence or household, the court
shall balance (i) the |
21 |
| hardships to respondent and any minor child or
|
22 |
| dependent adult in respondent's care resulting from |
23 |
| entry of this remedy with (ii)
the hardships to |
24 |
| petitioner and any minor child or dependent adult in
|
25 |
| petitioner's care resulting from continued exposure to |
26 |
| the risk of abuse (should
petitioner remain at the |
|
|
|
HB3633 Engrossed |
- 7 - |
LRB095 03835 RLC 23866 b |
|
|
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 |
|
|
|
HB3633 Engrossed |
- 8 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| stay away order or prohibit entry
if respondent has no |
2 |
| right to enter the premises.
|
3 |
| If an order of protection grants petitioner exclusive |
4 |
| possession
of the residence, or prohibits respondent from |
5 |
| entering the residence,
or orders respondent to stay away |
6 |
| from petitioner or other
protected persons, then the court |
7 |
| may allow respondent access to the
residence to remove |
8 |
| items of clothing and personal adornment
used exclusively |
9 |
| by respondent, medications, and other items as the court |
10 |
| directs.
The right to access shall be exercised on only one |
11 |
| occasion as the court directs
and in the presence of an |
12 |
| agreed-upon adult third party or law enforcement officer.
|
13 |
| (4) Counseling. Require or recommend the respondent to |
14 |
| undergo
counseling for a specified duration with a social |
15 |
| worker, psychologist,
clinical psychologist, psychiatrist, |
16 |
| family service agency, alcohol or
substance abuse program, |
17 |
| mental health center guidance counselor, agency
providing |
18 |
| services to elders, program designed for domestic violence
|
19 |
| abusers or any other guidance service the court deems |
20 |
| appropriate.
|
21 |
| (5) Physical care and possession of the minor child. In |
22 |
| order to protect
the minor child from abuse, neglect, or |
23 |
| unwarranted separation from the person
who has been the |
24 |
| minor child's primary caretaker, or to otherwise protect |
25 |
| the
well-being of the minor child, the court may do either |
26 |
| or both of the following:
(i) grant petitioner physical |
|
|
|
HB3633 Engrossed |
- 9 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| care or possession of the minor child, or both, or
(ii) |
2 |
| order respondent to return a minor child to, or not remove |
3 |
| a minor child
from, the physical care of a parent or person |
4 |
| in loco parentis.
|
5 |
| If a court finds, after a hearing, that respondent has |
6 |
| committed abuse
(as defined in Section 112A-3) of a minor |
7 |
| child, there shall be a
rebuttable presumption that |
8 |
| awarding physical care to respondent would not
be in the |
9 |
| minor child's best interest.
|
10 |
| (6) Temporary legal custody.
Award temporary legal |
11 |
| custody to petitioner in accordance with this Section,
the |
12 |
| Illinois Marriage
and Dissolution of Marriage Act, the |
13 |
| Illinois Parentage Act of 1984,
and this State's Uniform |
14 |
| Child-Custody
Jurisdiction and Enforcement Act.
|
15 |
| If a court finds, after a hearing, that respondent
has |
16 |
| committed abuse (as defined in Section 112A-3) of a
minor |
17 |
| child, there shall be a rebuttable presumption that |
18 |
| awarding
temporary legal custody to respondent would not be |
19 |
| in the
child's best interest.
|
20 |
| (7) Visitation. Determine the
visitation rights, if |
21 |
| any, of respondent in any case in which the court
awards |
22 |
| physical care or temporary legal custody of a minor child |
23 |
| to
petitioner. The court shall restrict or deny |
24 |
| respondent's visitation with
a minor child if
the court |
25 |
| finds that respondent has done or is likely to do any of |
26 |
| the
following: (i) abuse or endanger the minor child during |
|
|
|
HB3633 Engrossed |
- 10 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| visitation; (ii) use the
visitation as an opportunity to |
2 |
| abuse or harass petitioner or
petitioner's family or |
3 |
| household members; (iii) improperly conceal or
detain the |
4 |
| minor child; or (iv) otherwise act in a manner that is not |
5 |
| in
the best interests of the minor child. The court shall |
6 |
| not be limited by the
standards set forth in Section 607.1 |
7 |
| of the Illinois Marriage and
Dissolution of Marriage Act. |
8 |
| If the court grants visitation, the order
shall specify |
9 |
| dates and times for the visitation to take place or other
|
10 |
| specific parameters or conditions that are appropriate. No |
11 |
| order for
visitation shall refer merely to the term |
12 |
| "reasonable visitation".
|
13 |
| Petitioner may deny respondent access to the minor |
14 |
| child if, when
respondent arrives for visitation, |
15 |
| respondent is under the influence of drugs
or alcohol and |
16 |
| constitutes a threat to the safety and well-being of
|
17 |
| petitioner or petitioner's minor children or is behaving in |
18 |
| a violent or abusive manner.
|
19 |
| If necessary to protect any member of petitioner's |
20 |
| family or
household from future abuse, respondent shall be |
21 |
| prohibited from coming to
petitioner's residence to meet |
22 |
| the minor child for visitation, and the
parties shall |
23 |
| submit to the court their recommendations for reasonable
|
24 |
| alternative arrangements for visitation. A person may be |
25 |
| approved to
supervise visitation only after filing an |
26 |
| affidavit accepting
that responsibility and acknowledging |
|
|
|
HB3633 Engrossed |
- 11 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| accountability to the court.
|
2 |
| (8) Removal or concealment of minor child.
Prohibit |
3 |
| respondent from
removing a minor child from the State or |
4 |
| concealing the child within the
State.
|
5 |
| (9) Order to appear. Order the respondent to
appear in |
6 |
| court, alone
or with a minor child, to prevent abuse, |
7 |
| neglect, removal or concealment of
the child, to return the |
8 |
| child to the custody or care of the petitioner or
to permit |
9 |
| any court-ordered interview or examination of the child or |
10 |
| the
respondent.
|
11 |
| (10) Possession of personal property. Grant petitioner |
12 |
| exclusive
possession of personal property and, if |
13 |
| respondent has possession or
control, direct respondent to |
14 |
| promptly make it available to petitioner, if:
|
15 |
| (i) petitioner, but not respondent, owns the |
16 |
| property; or
|
17 |
| (ii) the parties own the property jointly; sharing |
18 |
| it would risk
abuse of petitioner by respondent or is |
19 |
| impracticable; and the balance of
hardships favors |
20 |
| temporary possession by petitioner.
|
21 |
| If petitioner's sole claim to ownership of the property |
22 |
| is that it is
marital property, the court may award |
23 |
| petitioner temporary possession
thereof under the |
24 |
| standards of subparagraph (ii) of this paragraph only if
a |
25 |
| proper proceeding has been filed under the Illinois |
26 |
| Marriage and
Dissolution of Marriage Act, as now or |
|
|
|
HB3633 Engrossed |
- 12 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| hereafter amended.
|
2 |
| No order under this provision shall affect title to |
3 |
| property.
|
4 |
| (11) Protection of property. Forbid the respondent |
5 |
| from taking,
transferring, encumbering, concealing, |
6 |
| damaging or otherwise disposing of
any real or personal |
7 |
| property, except as explicitly authorized by the
court, if:
|
8 |
| (i) petitioner, but not respondent, owns the |
9 |
| property; or
|
10 |
| (ii) the parties own the property jointly,
and the |
11 |
| balance of hardships favors granting this remedy.
|
12 |
| If petitioner's sole claim to ownership of the property |
13 |
| is that it is
marital property, the court may grant |
14 |
| petitioner relief under subparagraph
(ii) of this |
15 |
| paragraph only if a proper proceeding has been filed under |
16 |
| the
Illinois Marriage and Dissolution of Marriage Act, as |
17 |
| now or hereafter amended.
|
18 |
| The court may further prohibit respondent from |
19 |
| improperly using the
financial or other resources of an |
20 |
| aged member of the family or household
for the profit or |
21 |
| advantage of respondent or of any other person.
|
22 |
| (12) Order for payment of support. Order
respondent to |
23 |
| pay temporary
support for the petitioner or any child in |
24 |
| the petitioner's care or
custody, when the respondent has a |
25 |
| legal obligation to support that person,
in accordance with |
26 |
| the Illinois Marriage and Dissolution
of Marriage Act, |
|
|
|
HB3633 Engrossed |
- 13 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| which shall govern, among other matters, the amount of
|
2 |
| support, payment through the clerk and withholding of |
3 |
| income to secure
payment. An order for child support may be |
4 |
| granted to a petitioner with
lawful physical care or |
5 |
| custody of a child, or an order or agreement for
physical |
6 |
| care or custody, prior to entry of an order for legal |
7 |
| custody.
Such a support order shall expire upon entry of a |
8 |
| valid order granting
legal custody to another, unless |
9 |
| otherwise provided in the custody order.
|
10 |
| (13) Order for payment of losses. Order
respondent to |
11 |
| pay petitioner
for losses suffered as a direct result of |
12 |
| the abuse. Such losses shall
include, but not be limited |
13 |
| to, medical expenses, lost earnings or other
support, |
14 |
| repair or replacement of property damaged or taken, |
15 |
| reasonable
attorney's fees, court costs and moving or other |
16 |
| travel expenses, including
additional reasonable expenses |
17 |
| for temporary shelter and restaurant meals.
|
18 |
| (i) Losses affecting family needs. If a party is |
19 |
| entitled to seek
maintenance, child support or |
20 |
| property distribution from the other party
under the |
21 |
| Illinois Marriage and Dissolution of Marriage Act, as |
22 |
| now or
hereafter amended, the court may order |
23 |
| respondent to reimburse petitioner's
actual losses, to |
24 |
| the extent that such reimbursement would be |
25 |
| "appropriate
temporary relief", as authorized by |
26 |
| subsection (a)(3) of
Section 501 of that Act.
|
|
|
|
HB3633 Engrossed |
- 14 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| (ii) Recovery of expenses. In the case of an |
2 |
| improper concealment
or removal of a minor child, the |
3 |
| court may order respondent to pay the reasonable
|
4 |
| expenses incurred or to be incurred in the search for |
5 |
| and recovery of the
minor child, including but not |
6 |
| limited to legal fees, court costs, private
|
7 |
| investigator fees, and travel costs.
|
8 |
| (14) Prohibition of entry. Prohibit the respondent |
9 |
| from entering or
remaining in the residence or household |
10 |
| while the respondent is under the
influence of alcohol or |
11 |
| drugs and constitutes a threat to the safety and
well-being |
12 |
| of the petitioner or the petitioner's children.
|
13 |
| (14.5) Prohibition of firearm possession. (a) When a |
14 |
| complaint is made
under a request for an order of |
15 |
| protection, that the respondent has threatened
or is likely |
16 |
| to use firearms illegally against the petitioner, and the
|
17 |
| respondent is present in court, or has failed to appear |
18 |
| after receiving actual
notice, the court shall examine on |
19 |
| oath the petitioner, and any witnesses who
may be produced. |
20 |
| If the court is satisfied that there is any danger of the
|
21 |
| illegal use of firearms, it shall include in the order of |
22 |
| protection the
requirement that any firearms and any |
23 |
| Firearm Owner's Identification Card in the
possession of |
24 |
| the respondent, except as provided in subsection (b), be |
25 |
| turned
over to the local law enforcement agency
for |
26 |
| safekeeping. If the respondent fails to appear, or refuses |
|
|
|
HB3633 Engrossed |
- 15 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| or fails to
surrender his or her firearms or Firearm |
2 |
| Owner's Identification Card , the court shall
issue a |
3 |
| warrant for seizure of any firearm and any Firearm Owner's |
4 |
| Identification Card in the possession of the respondent.
|
5 |
| The period of safekeeping shall be for a stated period of |
6 |
| time not to exceed 2
years. The firearm or firearms and any |
7 |
| Firearm Owner's Identification Card shall be returned to |
8 |
| the respondent at the end
of the stated period or at |
9 |
| expiration of the order of protection, whichever is
sooner.
|
10 |
| (b) If the respondent is a peace officer as defined in |
11 |
| Section 2-13 of the
Criminal Code of 1961, the court shall |
12 |
| order that any firearms used by the
respondent in the |
13 |
| performance of his or her duties as a peace officer be
|
14 |
| surrendered to the chief law enforcement executive of the |
15 |
| agency in which the
respondent is employed, who shall |
16 |
| retain the firearms for safekeeping for the
stated period |
17 |
| not to exceed 2 years as set forth in the court order.
|
18 |
| (15) Prohibition of access to records. If an order of |
19 |
| protection
prohibits respondent from having contact with |
20 |
| the minor child,
or if petitioner's address is omitted |
21 |
| under subsection (b) of
Section 112A-5, or if necessary to |
22 |
| prevent abuse or wrongful removal or
concealment of a minor |
23 |
| child, the order shall deny respondent access to, and
|
24 |
| prohibit respondent from inspecting, obtaining, or |
25 |
| attempting to
inspect or obtain, school or any other |
26 |
| records of the minor child
who is in the care of |
|
|
|
HB3633 Engrossed |
- 16 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| petitioner.
|
2 |
| (16) Order for payment of shelter services. Order |
3 |
| respondent to
reimburse a shelter providing temporary |
4 |
| housing and counseling services to
the petitioner for the |
5 |
| cost of the services, as certified by the shelter
and |
6 |
| deemed reasonable by the court.
|
7 |
| (17) Order for injunctive relief. Enter injunctive |
8 |
| relief necessary
or appropriate to prevent further abuse of |
9 |
| a family or household member or
to effectuate one of the |
10 |
| granted remedies, if supported by the balance of
hardships. |
11 |
| If the harm to be prevented by the injunction is abuse or |
12 |
| any
other harm that one of the remedies listed in |
13 |
| paragraphs (1) through (16)
of this subsection is designed |
14 |
| to prevent, no further evidence is necessary
to establish |
15 |
| that the harm is an irreparable injury.
|
16 |
| (c) Relevant factors; findings.
|
17 |
| (1) In determining whether to grant a
specific remedy, |
18 |
| other than payment of support, the
court shall consider |
19 |
| relevant factors, including but not limited to the
|
20 |
| following:
|
21 |
| (i) the nature, frequency, severity, pattern and |
22 |
| consequences of the
respondent's past abuse of the |
23 |
| petitioner or any family or household
member, |
24 |
| including the concealment of his or her location in |
25 |
| order to evade
service of process or notice, and the |
26 |
| likelihood of danger of future abuse to
petitioner or
|
|
|
|
HB3633 Engrossed |
- 17 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| any member of petitioner's or respondent's family or |
2 |
| household; and
|
3 |
| (ii) the danger that any minor child will be abused |
4 |
| or neglected or
improperly removed from the |
5 |
| jurisdiction, improperly concealed within the
State or |
6 |
| improperly separated from the child's primary |
7 |
| caretaker.
|
8 |
| (2) In comparing relative hardships resulting to the |
9 |
| parties from loss
of possession of the family home, the |
10 |
| court shall consider relevant
factors, including but not |
11 |
| limited to the following:
|
12 |
| (i) availability, accessibility, cost, safety, |
13 |
| adequacy, location and other
characteristics of |
14 |
| alternate housing for each party and any minor child or
|
15 |
| dependent adult in the party's care;
|
16 |
| (ii) the effect on the party's employment; and
|
17 |
| (iii) the effect on the relationship of the party, |
18 |
| and any minor
child or dependent adult in the party's |
19 |
| care, to family, school, church
and community.
|
20 |
| (3) Subject to the exceptions set forth in paragraph |
21 |
| (4) of this
subsection, the court shall make its findings |
22 |
| in an official record or in
writing, and shall at a minimum |
23 |
| set forth the following:
|
24 |
| (i) That the court has considered the applicable |
25 |
| relevant factors
described in paragraphs (1) and (2) of |
26 |
| this subsection.
|
|
|
|
HB3633 Engrossed |
- 18 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| (ii) Whether the conduct or actions of respondent, |
2 |
| unless
prohibited, will likely cause irreparable harm |
3 |
| or continued abuse.
|
4 |
| (iii) Whether it is necessary to grant the |
5 |
| requested relief in order
to protect petitioner or |
6 |
| other alleged abused persons.
|
7 |
| (4) For purposes of issuing an ex parte emergency order |
8 |
| of protection,
the court, as an alternative to or as a |
9 |
| supplement to making the findings
described in paragraphs |
10 |
| (c)(3)(i) through (c)(3)(iii) of this subsection, may use
|
11 |
| the following procedure:
|
12 |
| When a verified petition for an emergency order of |
13 |
| protection in
accordance with the requirements of Sections |
14 |
| 112A-5 and 112A-17 is
presented to the court, the court |
15 |
| shall examine petitioner on oath or
affirmation. An |
16 |
| emergency order of protection shall be issued by the court
|
17 |
| if it appears from the contents of the petition and the |
18 |
| examination of
petitioner that the averments are |
19 |
| sufficient to indicate abuse by
respondent and to support |
20 |
| the granting of relief under the issuance of the
emergency |
21 |
| order of protection.
|
22 |
| (5) Never married parties. No rights or |
23 |
| responsibilities for a minor
child born outside of marriage |
24 |
| attach to a putative father until a father and
child |
25 |
| relationship has been established under the Illinois |
26 |
| Parentage Act of
1984. Absent such an adjudication, no |
|
|
|
HB3633 Engrossed |
- 19 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| putative father shall be granted
temporary custody of the |
2 |
| minor child, visitation with the minor child, or
physical |
3 |
| care
and possession of the minor child, nor shall
an order |
4 |
| of payment for support of the minor child be entered.
|
5 |
| (d) Balance of hardships; findings. If the court finds that |
6 |
| the balance
of hardships does not support the granting of a |
7 |
| remedy governed by
paragraph (2), (3), (10), (11), or (16) of
|
8 |
| subsection (b) of this Section,
which may require such |
9 |
| balancing, the court's findings shall so
indicate and shall |
10 |
| include a finding as to whether granting the remedy will
result |
11 |
| in hardship to respondent that would substantially outweigh the |
12 |
| hardship
to petitioner
from denial of the remedy. The findings |
13 |
| shall be an official record or in
writing.
|
14 |
| (e) Denial of remedies. Denial of any remedy shall not be |
15 |
| based, in
whole or in part, on evidence that:
|
16 |
| (1) Respondent has cause for any use of force, unless |
17 |
| that cause
satisfies the standards for justifiable use of |
18 |
| force provided by Article
VII of the Criminal Code of 1961;
|
19 |
| (2) Respondent was voluntarily intoxicated;
|
20 |
| (3) Petitioner acted in self-defense or defense of |
21 |
| another, provided
that, if petitioner utilized force, such |
22 |
| force was justifiable under
Article VII of the Criminal |
23 |
| Code of 1961;
|
24 |
| (4) Petitioner did not act in self-defense or defense |
25 |
| of another;
|
26 |
| (5) Petitioner left the residence or household to avoid |
|
|
|
HB3633 Engrossed |
- 20 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| further abuse
by respondent;
|
2 |
| (6) Petitioner did not leave the residence or household |
3 |
| to avoid further
abuse by respondent;
|
4 |
| (7) Conduct by any family or household member excused |
5 |
| the abuse by
respondent, unless that same conduct would |
6 |
| have excused such abuse if the
parties had not been family |
7 |
| or household members.
|
8 |
| (Source: P.A. 93-108, eff. 1-1-04.)
|
9 |
| Section 15. The Illinois Domestic Violence Act of 1986 is |
10 |
| amended by changing Section 214 as follows:
|
11 |
| (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
|
12 |
| Sec. 214. Order of protection; remedies.
|
13 |
| (a) Issuance of order. If the court finds that petitioner |
14 |
| has been
abused by a family or household member or that |
15 |
| petitioner is a high-risk
adult who has been abused, neglected, |
16 |
| or exploited, as defined in this Act,
an order of protection |
17 |
| prohibiting the abuse, neglect, or exploitation
shall issue; |
18 |
| provided that petitioner must also satisfy the requirements of
|
19 |
| one of the following Sections, as appropriate: Section 217 on |
20 |
| emergency
orders, Section 218 on interim orders, or Section 219 |
21 |
| on plenary orders.
Petitioner shall not be denied an order of |
22 |
| protection because petitioner or
respondent is a minor. The |
23 |
| court, when determining whether or not to issue
an order of |
24 |
| protection, shall not require physical manifestations of abuse
|
|
|
|
HB3633 Engrossed |
- 21 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| on the person of the victim. Modification and extension of |
2 |
| prior
orders of protection shall be in accordance with this |
3 |
| Act.
|
4 |
| (b) Remedies and standards. The remedies to be included in |
5 |
| an order of
protection shall be determined in accordance with |
6 |
| this Section and one of
the following Sections, as appropriate: |
7 |
| Section 217 on emergency orders,
Section 218 on interim orders, |
8 |
| and Section 219 on plenary orders. The
remedies listed in this |
9 |
| subsection shall be in addition to other civil or
criminal |
10 |
| remedies available to petitioner.
|
11 |
| (1) Prohibition of abuse, neglect, or exploitation. |
12 |
| Prohibit
respondent's harassment, interference with |
13 |
| personal liberty, intimidation
of a dependent, physical |
14 |
| abuse, or willful deprivation, neglect or
exploitation, as |
15 |
| defined in this Act, or stalking of the petitioner, as |
16 |
| defined
in Section 12-7.3 of the Criminal Code of 1961, if |
17 |
| such abuse, neglect,
exploitation, or stalking has |
18 |
| occurred or otherwise appears likely to occur if
not |
19 |
| prohibited.
|
20 |
| (2) Grant of exclusive possession of residence. |
21 |
| Prohibit respondent from
entering or remaining in any |
22 |
| residence or household of the petitioner,
including one |
23 |
| owned or leased by respondent, if petitioner has a right to
|
24 |
| occupancy thereof. The grant of exclusive possession of the |
25 |
| residence shall not
affect title to real property, nor |
26 |
| shall the court be limited by the standard
set forth in |
|
|
|
HB3633 Engrossed |
- 22 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| Section 701 of the Illinois Marriage and Dissolution of |
2 |
| Marriage
Act.
|
3 |
| (A) Right to occupancy. A party has a right to |
4 |
| occupancy of a
residence or household if it is solely |
5 |
| or jointly owned or leased by that
party, that party's |
6 |
| spouse, a person with a legal duty to support that |
7 |
| party or
a minor child in that party's care, or by any |
8 |
| person or entity other than the
opposing party that |
9 |
| authorizes that party's occupancy (e.g., a domestic
|
10 |
| violence shelter). Standards set forth in subparagraph |
11 |
| (B) shall not preclude
equitable relief.
|
12 |
| (B) Presumption of hardships. If petitioner and |
13 |
| respondent
each has the right to occupancy of a |
14 |
| residence or household, the court
shall balance (i) the |
15 |
| hardships to respondent and any minor child or
|
16 |
| dependent adult in respondent's care resulting from |
17 |
| entry of this remedy with
(ii) the hardships to |
18 |
| petitioner and any minor child or dependent adult in
|
19 |
| petitioner's care resulting from continued exposure to |
20 |
| the risk of abuse
(should petitioner remain at the |
21 |
| residence or household) or from loss of
possession of |
22 |
| the residence or household (should petitioner leave to |
23 |
| avoid the
risk of abuse). When determining the balance |
24 |
| of hardships, the court shall
also take into account |
25 |
| the accessibility of the residence or household.
|
26 |
| Hardships need not be balanced if respondent does not |
|
|
|
HB3633 Engrossed |
- 23 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| have a right to
occupancy.
|
2 |
| The balance of hardships is presumed to favor |
3 |
| possession by
petitioner unless the presumption is |
4 |
| rebutted by a preponderance of the
evidence, showing |
5 |
| that the hardships to respondent substantially |
6 |
| outweigh
the hardships to petitioner and any minor |
7 |
| child or dependent adult in
petitioner's care. The |
8 |
| court, on the request of petitioner or on its own
|
9 |
| motion, may order respondent to provide suitable, |
10 |
| accessible, alternate housing
for petitioner instead |
11 |
| of excluding respondent from a mutual residence or
|
12 |
| household.
|
13 |
| (3) Stay away order and additional prohibitions.
Order |
14 |
| respondent to stay away from petitioner or any other person
|
15 |
| protected by the order of protection, or prohibit |
16 |
| respondent from entering
or remaining present at |
17 |
| petitioner's school, place of employment, or other
|
18 |
| specified places at times when petitioner is present, or |
19 |
| both, if
reasonable, given the balance of hardships. |
20 |
| Hardships need not be balanced for
the court to enter a |
21 |
| stay away order or prohibit entry if respondent has no
|
22 |
| right to enter the premises.
|
23 |
| If an order of protection grants petitioner exclusive |
24 |
| possession
of the residence, or prohibits respondent from |
25 |
| entering the residence,
or orders respondent to stay away |
26 |
| from petitioner or other
protected persons, then the court |
|
|
|
HB3633 Engrossed |
- 24 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| may allow respondent access to the
residence to remove |
2 |
| items of clothing and personal adornment
used exclusively |
3 |
| by respondent, medications, and other items as the court
|
4 |
| directs. The right to access shall be exercised on only one |
5 |
| occasion as the
court directs and in the presence of an |
6 |
| agreed-upon adult third party or law
enforcement officer.
|
7 |
| (4) Counseling. Require or recommend the respondent to |
8 |
| undergo
counseling for a specified duration with a social |
9 |
| worker, psychologist,
clinical psychologist, psychiatrist, |
10 |
| family service agency, alcohol or
substance abuse program, |
11 |
| mental health center guidance counselor, agency
providing |
12 |
| services to elders, program designed for domestic violence
|
13 |
| abusers or any other guidance service the court deems |
14 |
| appropriate.
|
15 |
| (5) Physical care and possession of the minor child. In |
16 |
| order to protect
the minor child from abuse, neglect, or |
17 |
| unwarranted separation from the person
who has been the |
18 |
| minor child's primary caretaker, or to otherwise protect |
19 |
| the
well-being of the minor child, the court may do either |
20 |
| or both of the
following: (i) grant petitioner physical |
21 |
| care or possession of the minor child,
or both, or (ii) |
22 |
| order respondent to return a minor child to, or not remove |
23 |
| a
minor child from, the physical care of a parent or person |
24 |
| in loco parentis.
|
25 |
| If a court finds, after a hearing, that respondent has |
26 |
| committed abuse
(as defined in Section 103) of a minor |
|
|
|
HB3633 Engrossed |
- 25 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| child, there shall be a
rebuttable presumption that |
2 |
| awarding physical care to respondent would not
be in the |
3 |
| minor child's best interest.
|
4 |
| (6) Temporary legal custody. Award temporary legal |
5 |
| custody to petitioner
in accordance with this Section, the |
6 |
| Illinois Marriage and Dissolution of
Marriage Act, the |
7 |
| Illinois Parentage Act of 1984, and this State's Uniform
|
8 |
| Child-Custody Jurisdiction and Enforcement Act.
|
9 |
| If a court finds, after a hearing, that respondent has |
10 |
| committed abuse (as
defined in Section 103) of a minor |
11 |
| child, there shall be a rebuttable
presumption that |
12 |
| awarding temporary legal custody to respondent would not be |
13 |
| in
the child's best interest.
|
14 |
| (7) Visitation. Determine the visitation rights, if |
15 |
| any, of respondent in
any case in which the court awards |
16 |
| physical care or temporary legal custody of
a minor child |
17 |
| to petitioner. The court shall restrict or deny |
18 |
| respondent's
visitation with a minor child if the court |
19 |
| finds that respondent has done or is
likely to do any of |
20 |
| the following: (i) abuse or endanger the minor child during
|
21 |
| visitation; (ii) use the visitation as an opportunity to |
22 |
| abuse or harass
petitioner or petitioner's family or |
23 |
| household members; (iii) improperly
conceal or detain the |
24 |
| minor child; or (iv) otherwise act in a manner that is
not |
25 |
| in the best interests of the minor child. The court shall |
26 |
| not be limited
by the standards set forth in Section 607.1 |
|
|
|
HB3633 Engrossed |
- 26 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| of the Illinois Marriage and
Dissolution of Marriage Act. |
2 |
| If the court grants visitation, the order shall
specify |
3 |
| dates and times for the visitation to take place or other |
4 |
| specific
parameters or conditions that are appropriate. No |
5 |
| order for visitation shall
refer merely to the term |
6 |
| "reasonable visitation".
|
7 |
| Petitioner may deny respondent access to the minor |
8 |
| child if, when
respondent arrives for visitation, |
9 |
| respondent is under the influence of drugs
or alcohol and |
10 |
| constitutes a threat to the safety and well-being of
|
11 |
| petitioner or petitioner's minor children or is behaving in |
12 |
| a violent or
abusive manner.
|
13 |
| If necessary to protect any member of petitioner's |
14 |
| family or
household from future abuse, respondent shall be |
15 |
| prohibited from coming to
petitioner's residence to meet |
16 |
| the minor child for visitation, and the
parties shall |
17 |
| submit to the court their recommendations for reasonable
|
18 |
| alternative arrangements for visitation. A person may be |
19 |
| approved to
supervise visitation only after filing an |
20 |
| affidavit accepting
that responsibility and acknowledging |
21 |
| accountability to the court.
|
22 |
| (8) Removal or concealment of minor child. Prohibit |
23 |
| respondent from
removing a minor child from the State or |
24 |
| concealing the child within the State.
|
25 |
| (9) Order to appear. Order the respondent to appear in |
26 |
| court, alone
or with a minor child, to prevent abuse, |
|
|
|
HB3633 Engrossed |
- 27 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| neglect, removal or concealment of
the child, to return the |
2 |
| child to the custody or care of the petitioner or
to permit |
3 |
| any court-ordered interview or examination of the child or |
4 |
| the
respondent.
|
5 |
| (10) Possession of personal property. Grant petitioner |
6 |
| exclusive
possession of personal property and, if |
7 |
| respondent has possession or
control, direct respondent to |
8 |
| promptly make it available to petitioner, if:
|
9 |
| (i) petitioner, but not respondent, owns the |
10 |
| property; or
|
11 |
| (ii) the parties own the property jointly; sharing |
12 |
| it would risk
abuse of petitioner by respondent or is |
13 |
| impracticable; and the balance of
hardships favors |
14 |
| temporary possession by petitioner.
|
15 |
| If petitioner's sole claim to ownership of the property |
16 |
| is that it is
marital property, the court may award |
17 |
| petitioner temporary possession
thereof under the |
18 |
| standards of subparagraph (ii) of this paragraph only if
a |
19 |
| proper proceeding has been filed under the Illinois |
20 |
| Marriage and
Dissolution of Marriage Act, as now or |
21 |
| hereafter amended.
|
22 |
| No order under this provision shall affect title to |
23 |
| property.
|
24 |
| (11) Protection of property. Forbid the respondent |
25 |
| from taking,
transferring, encumbering, concealing, |
26 |
| damaging or otherwise disposing of
any real or personal |
|
|
|
HB3633 Engrossed |
- 28 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| property, except as explicitly authorized by the
court, if:
|
2 |
| (i) petitioner, but not respondent, owns the |
3 |
| property; or
|
4 |
| (ii) the parties own the property jointly,
and the |
5 |
| balance of hardships favors granting this remedy.
|
6 |
| If petitioner's sole claim to ownership of the property |
7 |
| is that it is
marital property, the court may grant |
8 |
| petitioner relief under subparagraph
(ii) of this |
9 |
| paragraph only if a proper proceeding has been filed under |
10 |
| the
Illinois Marriage and Dissolution of Marriage Act, as |
11 |
| now or hereafter amended.
|
12 |
| The court may further prohibit respondent from |
13 |
| improperly using the
financial or other resources of an |
14 |
| aged member of the family or household
for the profit or |
15 |
| advantage of respondent or of any other person.
|
16 |
| (12) Order for payment of support. Order respondent to |
17 |
| pay temporary
support for the petitioner or any child in |
18 |
| the petitioner's care or
custody, when the respondent has a |
19 |
| legal obligation to support that person,
in accordance with |
20 |
| the Illinois Marriage and Dissolution
of Marriage Act, |
21 |
| which shall govern, among other matters, the amount of
|
22 |
| support, payment through the clerk and withholding of |
23 |
| income to secure
payment. An order for child support may be |
24 |
| granted to a petitioner with
lawful physical care or |
25 |
| custody of a child, or an order or agreement for
physical |
26 |
| care or custody, prior to entry of an order for legal |
|
|
|
HB3633 Engrossed |
- 29 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| custody.
Such a support order shall expire upon entry of a |
2 |
| valid order granting
legal custody to another, unless |
3 |
| otherwise provided in the custody order.
|
4 |
| (13) Order for payment of losses. Order respondent to |
5 |
| pay petitioner for
losses suffered as a direct result of |
6 |
| the abuse, neglect, or exploitation.
Such losses shall |
7 |
| include, but not be limited to, medical expenses, lost
|
8 |
| earnings or other support, repair or replacement of |
9 |
| property damaged or taken,
reasonable attorney's fees, |
10 |
| court costs and moving or other travel expenses,
including |
11 |
| additional reasonable expenses for temporary shelter and |
12 |
| restaurant
meals.
|
13 |
| (i) Losses affecting family needs. If a party is |
14 |
| entitled to seek
maintenance, child support or |
15 |
| property distribution from the other party
under the |
16 |
| Illinois Marriage and Dissolution of Marriage Act, as |
17 |
| now or
hereafter amended, the court may order |
18 |
| respondent to reimburse petitioner's
actual losses, to |
19 |
| the extent that such reimbursement would be |
20 |
| "appropriate
temporary relief", as authorized by |
21 |
| subsection (a)(3) of Section 501 of
that Act.
|
22 |
| (ii) Recovery of expenses. In the case of an |
23 |
| improper concealment
or removal of a minor child, the |
24 |
| court may order respondent to pay the
reasonable |
25 |
| expenses incurred or to be incurred in the search for |
26 |
| and recovery
of the minor child, including but not |
|
|
|
HB3633 Engrossed |
- 30 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| limited to legal fees, court costs,
private |
2 |
| investigator fees, and travel costs.
|
3 |
| (14) Prohibition of entry. Prohibit the respondent |
4 |
| from entering or
remaining in the residence or household |
5 |
| while the respondent is under the
influence of alcohol or |
6 |
| drugs and constitutes a threat to the safety and
well-being |
7 |
| of the petitioner or the petitioner's children.
|
8 |
| (14.5) Prohibition of firearm possession.
|
9 |
| (a) When a complaint is made
under a request for an |
10 |
| order of protection, that the respondent has |
11 |
| threatened
or is likely to use firearms illegally |
12 |
| against the petitioner, and the
respondent is present |
13 |
| in court, or has failed to appear after receiving |
14 |
| actual
notice, the court shall examine on oath the |
15 |
| petitioner, and any witnesses who
may be produced. If |
16 |
| the court is satisfied that there is any danger of the
|
17 |
| illegal use of firearms, it shall issue an order that |
18 |
| any firearms and any Firearm Owner's Identification |
19 |
| Card in the
possession of the respondent, except as |
20 |
| provided in subsection (b), be turned
over to the local |
21 |
| law enforcement agency
for safekeeping. If the |
22 |
| respondent has failed to appear, the court shall
issue |
23 |
| a warrant for seizure of any firearm and Firearm |
24 |
| Owner's Identification Card in the possession of the |
25 |
| respondent.
The period of safekeeping shall be for a |
26 |
| stated period of time not to exceed 2
years. The |
|
|
|
HB3633 Engrossed |
- 31 - |
LRB095 03835 RLC 23866 b |
|
|
1 |
| firearm or firearms and Firearm Owner's Identification |
2 |
| Card shall be returned to the respondent at the end
of |
3 |
| the stated period or at expiration of the order of |
4 |
| protection, whichever is
sooner.
|
5 |
| (b) If the respondent is a peace officer as defined |
6 |
| in Section 2-13 of
the
Criminal Code of 1961, the court |
7 |
| shall order that any firearms used by the
respondent in |
8 |
| the performance of his or her duties as a
peace officer |
9 |
| be surrendered to
the chief law enforcement executive |
10 |
| of the agency in which the respondent is
employed, who |
11 |
| shall retain the firearms for safekeeping for the |
12 |
| stated period
not to exceed 2 years as set forth in the |
13 |
| court order.
|
14 |
| (15) Prohibition of access to records. If an order of |
15 |
| protection
prohibits respondent from having contact with |
16 |
| the minor child,
or if petitioner's address is omitted |
17 |
| under subsection (b) of
Section 203, or if necessary to |
18 |
| prevent abuse or wrongful removal or
concealment of a minor |
19 |
| child, the order shall deny respondent access to, and
|
20 |
| prohibit respondent from inspecting, obtaining, or |
21 |
| attempting to
inspect or obtain, school or any other |
22 |
| records of the minor child
who is in the care of |
23 |
| petitioner.
|
24 |
| (16) Order for payment of shelter services. Order |
25 |
| respondent to
reimburse a shelter providing temporary |
26 |
| housing and counseling services to
the petitioner for the |
|
|
|
HB3633 Engrossed |
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LRB095 03835 RLC 23866 b |
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|
1 |
| cost of the services, as certified by the shelter
and |
2 |
| deemed reasonable by the court.
|
3 |
| (17) Order for injunctive relief. Enter injunctive |
4 |
| relief necessary
or appropriate to prevent further abuse of |
5 |
| a family or household member
or further abuse, neglect, or |
6 |
| exploitation of a high-risk adult with
disabilities or to |
7 |
| effectuate one of the granted remedies, if supported by the
|
8 |
| balance of hardships. If the harm to be prevented by the |
9 |
| injunction is abuse
or any other harm that one of the |
10 |
| remedies listed in paragraphs (1) through
(16) of this |
11 |
| subsection is designed to prevent, no further evidence is
|
12 |
| necessary that the harm is an irreparable injury.
|
13 |
| (c) Relevant factors; findings.
|
14 |
| (1) In determining whether to grant a specific remedy, |
15 |
| other than
payment of support, the court shall consider
|
16 |
| relevant factors, including but not limited to the |
17 |
| following:
|
18 |
| (i) the nature, frequency, severity, pattern and |
19 |
| consequences of the
respondent's past abuse, neglect |
20 |
| or exploitation of the petitioner or
any family or |
21 |
| household member, including the concealment of his or |
22 |
| her
location in order to evade service of process or |
23 |
| notice, and the likelihood of
danger of future abuse, |
24 |
| neglect, or exploitation to petitioner or any member of
|
25 |
| petitioner's or respondent's family or household; and
|
26 |
| (ii) the danger that any minor child will be abused |
|
|
|
HB3633 Engrossed |
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LRB095 03835 RLC 23866 b |
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|
1 |
| or neglected or
improperly removed from the |
2 |
| jurisdiction, improperly concealed within the
State or |
3 |
| improperly separated from the child's primary |
4 |
| caretaker.
|
5 |
| (2) In comparing relative hardships resulting to the |
6 |
| parties from loss
of possession of the family home, the |
7 |
| court shall consider relevant
factors, including but not |
8 |
| limited to the following:
|
9 |
| (i) availability, accessibility, cost, safety, |
10 |
| adequacy, location and
other characteristics of |
11 |
| alternate housing for each party and any minor child
or |
12 |
| dependent adult in the party's care;
|
13 |
| (ii) the effect on the party's employment; and
|
14 |
| (iii) the effect on the relationship of the party, |
15 |
| and any minor
child or dependent adult in the party's |
16 |
| care, to family, school, church
and community.
|
17 |
| (3) Subject to the exceptions set forth in paragraph |
18 |
| (4) of this
subsection, the court shall make its findings |
19 |
| in an official record or in
writing, and shall at a minimum |
20 |
| set forth the following:
|
21 |
| (i) That the court has considered the applicable |
22 |
| relevant factors
described in paragraphs (1) and (2) of |
23 |
| this subsection.
|
24 |
| (ii) Whether the conduct or actions of respondent, |
25 |
| unless
prohibited, will likely cause irreparable harm |
26 |
| or continued abuse.
|
|
|
|
HB3633 Engrossed |
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LRB095 03835 RLC 23866 b |
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|
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| (iii) Whether it is necessary to grant the |
2 |
| requested relief in order
to protect petitioner or |
3 |
| other alleged abused persons.
|
4 |
| (4) For purposes of issuing an ex parte emergency order |
5 |
| of protection,
the court, as an alternative to or as a |
6 |
| supplement to making the findings
described in paragraphs |
7 |
| (c)(3)(i) through (c)(3)(iii) of this subsection, may
use |
8 |
| the following procedure:
|
9 |
| When a verified petition for an emergency order of |
10 |
| protection in
accordance with the requirements of Sections |
11 |
| 203 and 217 is
presented to the court, the court shall |
12 |
| examine petitioner on oath or
affirmation. An emergency |
13 |
| order of protection shall be issued by the court
if it |
14 |
| appears from the contents of the petition and the |
15 |
| examination of
petitioner that the averments are |
16 |
| sufficient to indicate abuse by
respondent and to support |
17 |
| the granting of relief under the issuance of the
emergency |
18 |
| order of protection.
|
19 |
| (5) Never married parties. No rights or |
20 |
| responsibilities for a minor
child born outside of marriage |
21 |
| attach to a putative father until a father and
child |
22 |
| relationship has been established under the Illinois |
23 |
| Parentage Act of
1984, the Illinois Public Aid Code, |
24 |
| Section 12 of the Vital Records Act, the
Juvenile Court Act |
25 |
| of 1987, the Probate Act of 1985, the Revised Uniform
|
26 |
| Reciprocal Enforcement of Support Act, the Uniform |
|
|
|
HB3633 Engrossed |
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LRB095 03835 RLC 23866 b |
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|
1 |
| Interstate Family Support
Act, the Expedited Child Support |
2 |
| Act of 1990, any judicial, administrative, or
other act of |
3 |
| another state or territory, any other Illinois statute, or |
4 |
| by any
foreign nation establishing the father and child |
5 |
| relationship, any other
proceeding substantially in |
6 |
| conformity with the Personal Responsibility and
Work |
7 |
| Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), |
8 |
| or where both
parties appeared in open court or at an |
9 |
| administrative hearing acknowledging
under
oath or |
10 |
| admitting by affirmation the existence of a father and |
11 |
| child
relationship.
Absent such an adjudication, finding, |
12 |
| or acknowledgement, no putative
father shall be granted
|
13 |
| temporary custody of the minor child, visitation with the |
14 |
| minor child, or
physical care and possession of the minor |
15 |
| child, nor shall an order of payment
for support of the |
16 |
| minor child be entered.
|
17 |
| (d) Balance of hardships; findings. If the court finds that |
18 |
| the balance
of hardships does not support the granting of a |
19 |
| remedy governed by
paragraph (2), (3), (10), (11), or (16) of |
20 |
| subsection (b) of this Section,
which may require such |
21 |
| balancing, the court's findings shall so
indicate and shall |
22 |
| include a finding as to whether granting the remedy will
result |
23 |
| in hardship to respondent that would substantially outweigh the |
24 |
| hardship
to petitioner from denial of the remedy. The findings |
25 |
| shall be an official
record or in writing.
|
26 |
| (e) Denial of remedies. Denial of any remedy shall not be |
|
|
|
HB3633 Engrossed |
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LRB095 03835 RLC 23866 b |
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|
1 |
| based, in
whole or in part, on evidence that:
|
2 |
| (1) Respondent has cause for any use of force, unless |
3 |
| that cause
satisfies the standards for justifiable use of |
4 |
| force provided by Article
VII of the Criminal Code of 1961;
|
5 |
| (2) Respondent was voluntarily intoxicated;
|
6 |
| (3) Petitioner acted in self-defense or defense of |
7 |
| another, provided
that, if petitioner utilized force, such |
8 |
| force was justifiable under
Article VII of the Criminal |
9 |
| Code of 1961;
|
10 |
| (4) Petitioner did not act in self-defense or defense |
11 |
| of another;
|
12 |
| (5) Petitioner left the residence or household to avoid |
13 |
| further abuse,
neglect, or exploitation by respondent;
|
14 |
| (6) Petitioner did not leave the residence or household |
15 |
| to avoid further
abuse, neglect, or exploitation by |
16 |
| respondent;
|
17 |
| (7) Conduct by any family or household member excused |
18 |
| the abuse,
neglect, or exploitation by respondent, unless |
19 |
| that same conduct would have
excused such abuse, neglect, |
20 |
| or exploitation if the parties had not been
family or |
21 |
| household members.
|
22 |
| (Source: P.A. 93-108, eff. 1-1-04.)
|