Full Text of HB0009 95th General Assembly
HB0009enr 95TH GENERAL ASSEMBLY
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HB0009 Enrolled |
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LRB095 03424 RLC 23428 b |
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| AN ACT concerning orders of protection.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Code of Criminal Procedure of 1963 is | 5 |
| amended by changing Section 112A-14 as follows:
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| (725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
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| Sec. 112A-14. Order of protection; remedies.
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| (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
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| 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.
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| (b) Remedies and standards. The remedies to be included in | 22 |
| an order of
protection shall be determined in accordance with | 23 |
| this Section and one of
the following Sections, as appropriate: |
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| Section 112A-17 on
emergency orders,
Section 112A-18 on interim | 2 |
| orders, and Section 112A-19 on
plenary orders.
The remedies | 3 |
| listed in this subsection shall be in addition to other civil
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| or criminal remedies available to petitioner.
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| (1) Prohibition of abuse. Prohibit respondent's | 6 |
| harassment,
interference with personal liberty, | 7 |
| intimidation of a dependent, physical
abuse or willful | 8 |
| deprivation, as defined in this Article, if such abuse has
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| occurred or otherwise appears likely to occur if not | 10 |
| prohibited.
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| (2) Grant of exclusive possession of residence. | 12 |
| Prohibit respondent
from entering or remaining in any | 13 |
| residence or household of the petitioner,
including one | 14 |
| owned or leased by respondent, if petitioner has a right
to | 15 |
| occupancy thereof. The grant of exclusive possession of the | 16 |
| residence
shall not affect title to real property, nor | 17 |
| shall the court be limited by
the standard set forth in | 18 |
| Section 701 of the Illinois Marriage and
Dissolution of | 19 |
| Marriage Act.
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| (A) Right to occupancy. A party has a right to | 21 |
| occupancy of a
residence or household if it is
solely | 22 |
| or jointly owned or leased by that party, that party's | 23 |
| spouse, a
person with a legal duty to support that | 24 |
| party or a minor child in that
party's care, or by any | 25 |
| person or entity other than the opposing party that
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| authorizes that party's occupancy (e.g., a domestic |
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| violence shelter).
Standards set forth in subparagraph | 2 |
| (B) shall not preclude equitable relief.
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| (B) Presumption of hardships. If petitioner and | 4 |
| respondent
each has the right to occupancy of a | 5 |
| residence or household, the court
shall balance (i) the | 6 |
| hardships to respondent and any minor child or
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| dependent adult in respondent's care resulting from | 8 |
| entry of this remedy with (ii)
the hardships to | 9 |
| petitioner and any minor child or dependent adult in
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| petitioner's care resulting from continued exposure to | 11 |
| the risk of abuse (should
petitioner remain at the | 12 |
| residence or household) or from loss of possession
of | 13 |
| the residence or household (should petitioner leave to | 14 |
| avoid the risk
of abuse). When determining the balance | 15 |
| of hardships, the court shall also
take into account | 16 |
| the accessibility of the residence or household.
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| Hardships need not be balanced if respondent does not | 18 |
| have a right to occupancy.
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| The balance of hardships is presumed to favor | 20 |
| possession by
petitioner unless the presumption is | 21 |
| rebutted by a preponderance of the
evidence, showing | 22 |
| that the hardships to respondent substantially | 23 |
| outweigh
the hardships to petitioner and any minor | 24 |
| child or dependent adult in petitioner's
care. The | 25 |
| court, on the request of petitioner or on its own | 26 |
| motion,
may order respondent to provide suitable, |
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| accessible, alternate housing
for petitioner instead | 2 |
| of
excluding respondent from a mutual residence or | 3 |
| household.
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| (3) Stay away order and additional prohibitions.
Order | 5 |
| respondent to stay away from petitioner or any other person
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| protected by the order of protection, or prohibit | 7 |
| respondent from entering
or remaining present at | 8 |
| petitioner's school, place of employment, or other
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| specified places at times when petitioner is present, or | 10 |
| both, if
reasonable, given
the balance of hardships. | 11 |
| Hardships need not be balanced for the court
to enter a | 12 |
| stay away order or prohibit entry
if respondent has no | 13 |
| right to enter the premises.
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| If an order of protection grants petitioner exclusive | 15 |
| possession
of the residence, or prohibits respondent from | 16 |
| entering the residence,
or orders respondent to stay away | 17 |
| from petitioner or other
protected persons, then the court | 18 |
| may allow respondent access to the
residence to remove | 19 |
| items of clothing and personal adornment
used exclusively | 20 |
| by respondent, medications, and other items as the court | 21 |
| directs.
The right to access shall be exercised on only one | 22 |
| occasion as the court directs
and in the presence of an | 23 |
| agreed-upon adult third party or law enforcement officer.
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| (4) Counseling. Require or recommend the respondent to | 25 |
| undergo
counseling for a specified duration with a social | 26 |
| worker, psychologist,
clinical psychologist, psychiatrist, |
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| family service agency, alcohol or
substance abuse program, | 2 |
| mental health center guidance counselor, agency
providing | 3 |
| services to elders, program designed for domestic violence
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| abusers or any other guidance service the court deems | 5 |
| appropriate.
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| (5) Physical care and possession of the minor child. In | 7 |
| order to protect
the minor child from abuse, neglect, or | 8 |
| unwarranted separation from the person
who has been the | 9 |
| minor child's primary caretaker, or to otherwise protect | 10 |
| the
well-being of the minor child, the court may do either | 11 |
| or both of the following:
(i) grant petitioner physical | 12 |
| care or possession of the minor child, or both, or
(ii) | 13 |
| order respondent to return a minor child to, or not remove | 14 |
| a minor child
from, the physical care of a parent or person | 15 |
| in loco parentis.
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| If a court finds, after a hearing, that respondent has | 17 |
| committed abuse
(as defined in Section 112A-3) of a minor | 18 |
| child, there shall be a
rebuttable presumption that | 19 |
| awarding physical care to respondent would not
be in the | 20 |
| minor child's best interest.
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| (6) Temporary legal custody.
Award temporary legal | 22 |
| custody to petitioner in accordance with this Section,
the | 23 |
| Illinois Marriage
and Dissolution of Marriage Act, the | 24 |
| Illinois Parentage Act of 1984,
and this State's Uniform | 25 |
| Child-Custody
Jurisdiction and Enforcement Act.
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| If a court finds, after a hearing, that respondent
has |
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| committed abuse (as defined in Section 112A-3) of a
minor | 2 |
| child, there shall be a rebuttable presumption that | 3 |
| awarding
temporary legal custody to respondent would not be | 4 |
| in the
child's best interest.
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| (7) Visitation. Determine the
visitation rights, if | 6 |
| any, of respondent in any case in which the court
awards | 7 |
| physical care or temporary legal custody of a minor child | 8 |
| to
petitioner. The court shall restrict or deny | 9 |
| respondent's visitation with
a minor child if
the court | 10 |
| finds that respondent has done or is likely to do any of | 11 |
| the
following: (i) abuse or endanger the minor child during | 12 |
| visitation; (ii) use the
visitation as an opportunity to | 13 |
| abuse or harass petitioner or
petitioner's family or | 14 |
| household members; (iii) improperly conceal or
detain the | 15 |
| minor child; or (iv) otherwise act in a manner that is not | 16 |
| in
the best interests of the minor child. The court shall | 17 |
| not be limited by the
standards set forth in Section 607.1 | 18 |
| of the Illinois Marriage and
Dissolution of Marriage Act. | 19 |
| If the court grants visitation, the order
shall specify | 20 |
| dates and times for the visitation to take place or other
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| specific parameters or conditions that are appropriate. No | 22 |
| order for
visitation shall refer merely to the term | 23 |
| "reasonable visitation".
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| Petitioner may deny respondent access to the minor | 25 |
| child if, when
respondent arrives for visitation, | 26 |
| respondent is under the influence of drugs
or alcohol and |
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| constitutes a threat to the safety and well-being of
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| petitioner or petitioner's minor children or is behaving in | 3 |
| a violent or abusive manner.
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| If necessary to protect any member of petitioner's | 5 |
| family or
household from future abuse, respondent shall be | 6 |
| prohibited from coming to
petitioner's residence to meet | 7 |
| the minor child for visitation, and the
parties shall | 8 |
| submit to the court their recommendations for reasonable
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| alternative arrangements for visitation. A person may be | 10 |
| approved to
supervise visitation only after filing an | 11 |
| affidavit accepting
that responsibility and acknowledging | 12 |
| accountability to the court.
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| (8) Removal or concealment of minor child.
Prohibit | 14 |
| respondent from
removing a minor child from the State or | 15 |
| concealing the child within the
State.
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| (9) Order to appear. Order the respondent to
appear in | 17 |
| court, alone
or with a minor child, to prevent abuse, | 18 |
| neglect, removal or concealment of
the child, to return the | 19 |
| child to the custody or care of the petitioner or
to permit | 20 |
| any court-ordered interview or examination of the child or | 21 |
| the
respondent.
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| (10) Possession of personal property. Grant petitioner | 23 |
| exclusive
possession of personal property and, if | 24 |
| respondent has possession or
control, direct respondent to | 25 |
| promptly make it available to petitioner, if:
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| (i) petitioner, but not respondent, owns the |
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| property; or
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| (ii) the parties own the property jointly; sharing | 3 |
| it would risk
abuse of petitioner by respondent or is | 4 |
| impracticable; and the balance of
hardships favors | 5 |
| temporary possession by petitioner.
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| If petitioner's sole claim to ownership of the property | 7 |
| is that it is
marital property, the court may award | 8 |
| petitioner temporary possession
thereof under the | 9 |
| standards of subparagraph (ii) of this paragraph only if
a | 10 |
| proper proceeding has been filed under the Illinois | 11 |
| Marriage and
Dissolution of Marriage Act, as now or | 12 |
| hereafter amended.
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| No order under this provision shall affect title to | 14 |
| property.
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| (11) Protection of property. Forbid the respondent | 16 |
| from taking,
transferring, encumbering, concealing, | 17 |
| damaging or otherwise disposing of
any real or personal | 18 |
| property, except as explicitly authorized by the
court, if:
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| (i) petitioner, but not respondent, owns the | 20 |
| property; or
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| (ii) the parties own the property jointly,
and the | 22 |
| balance of hardships favors granting this remedy.
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| If petitioner's sole claim to ownership of the property | 24 |
| is that it is
marital property, the court may grant | 25 |
| petitioner relief under subparagraph
(ii) of this | 26 |
| paragraph only if a proper proceeding has been filed under |
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| the
Illinois Marriage and Dissolution of Marriage Act, as | 2 |
| now or hereafter amended.
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| The court may further prohibit respondent from | 4 |
| improperly using the
financial or other resources of an | 5 |
| aged member of the family or household
for the profit or | 6 |
| advantage of respondent or of any other person.
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| (11.5) Protection of animals. Grant the petitioner the | 8 |
| exclusive care, custody, or control of any animal owned, | 9 |
| possessed, leased, kept, or held by either the petitioner | 10 |
| or the respondent or a minor child residing in the | 11 |
| residence or household of either the petitioner or the | 12 |
| respondent and order the respondent to stay away from the | 13 |
| animal and forbid the respondent from taking, | 14 |
| transferring, encumbering, concealing, harming, or | 15 |
| otherwise disposing of the animal.
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| (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
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| 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 |
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| 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.
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| (13) Order for payment of losses. Order
respondent to | 5 |
| pay petitioner
for losses suffered as a direct result of | 6 |
| the abuse. Such losses shall
include, but not be limited | 7 |
| to, medical expenses, lost earnings or other
support, | 8 |
| repair or replacement of property damaged or taken, | 9 |
| reasonable
attorney's fees, court costs and moving or other | 10 |
| travel expenses, including
additional reasonable expenses | 11 |
| for temporary shelter and restaurant meals.
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| (i) Losses affecting family needs. If a party is | 13 |
| entitled to seek
maintenance, child support or | 14 |
| property distribution from the other party
under the | 15 |
| Illinois Marriage and Dissolution of Marriage Act, as | 16 |
| now or
hereafter amended, the court may order | 17 |
| respondent to reimburse petitioner's
actual losses, to | 18 |
| the extent that such reimbursement would be | 19 |
| "appropriate
temporary relief", as authorized by | 20 |
| subsection (a)(3) of
Section 501 of that Act.
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| (ii) Recovery of expenses. In the case of an | 22 |
| improper concealment
or removal of a minor child, the | 23 |
| court may order respondent to pay the reasonable
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| expenses incurred or to be incurred in the search for | 25 |
| and recovery of the
minor child, including but not | 26 |
| limited to legal fees, court costs, private
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| investigator fees, and travel costs.
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| (14) Prohibition of entry. Prohibit the respondent | 3 |
| from entering or
remaining in the residence or household | 4 |
| while the respondent is under the
influence of alcohol or | 5 |
| drugs and constitutes a threat to the safety and
well-being | 6 |
| of the petitioner or the petitioner's children.
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| (14.5) Prohibition of firearm possession. (a) When a | 8 |
| complaint is made
under a request for an order of | 9 |
| protection, that the respondent has threatened
or is likely | 10 |
| to use firearms illegally against the petitioner, and the
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| respondent is present in court, or has failed to appear | 12 |
| after receiving actual
notice, the court shall examine on | 13 |
| oath the petitioner, and any witnesses who
may be produced. | 14 |
| If the court is satisfied that there is any danger of the
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| illegal use of firearms, it shall include in the order of | 16 |
| protection the
requirement that any firearms in the
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| possession of the respondent, except as provided in | 18 |
| subsection (b), be turned
over to the local law enforcement | 19 |
| agency
for safekeeping. If the respondent fails to appear, | 20 |
| or refuses or fails to
surrender his or her firearms, the | 21 |
| court shall
issue a warrant for seizure of any firearm in | 22 |
| the possession of the respondent.
The period of safekeeping | 23 |
| shall be for a stated period of time not to exceed 2
years. | 24 |
| The firearm or firearms shall be returned to the respondent | 25 |
| at the end
of the stated period or at expiration of the | 26 |
| order of protection, whichever is
sooner.
(b) If the |
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| respondent is a peace officer as defined in Section 2-13 of | 2 |
| the
Criminal Code of 1961, the court shall order that any | 3 |
| firearms used by the
respondent in the performance of his | 4 |
| or her duties as a peace officer be
surrendered to the | 5 |
| chief law enforcement executive of the agency in which the
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| respondent is employed, who shall retain the firearms for | 7 |
| safekeeping for the
stated period not to exceed 2 years as | 8 |
| set forth in the court order.
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| (15) Prohibition of access to records. If an order of | 10 |
| protection
prohibits respondent from having contact with | 11 |
| the minor child,
or if petitioner's address is omitted | 12 |
| under subsection (b) of
Section 112A-5, or if necessary to | 13 |
| prevent abuse or wrongful removal or
concealment of a minor | 14 |
| child, the order shall deny respondent access to, and
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| prohibit respondent from inspecting, obtaining, or | 16 |
| attempting to
inspect or obtain, school or any other | 17 |
| records of the minor child
who is in the care of | 18 |
| petitioner.
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| (16) Order for payment of shelter services. Order | 20 |
| respondent to
reimburse a shelter providing temporary | 21 |
| housing and counseling services to
the petitioner for the | 22 |
| cost of the services, as certified by the shelter
and | 23 |
| deemed reasonable by the court.
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| (17) Order for injunctive relief. Enter injunctive | 25 |
| relief necessary
or appropriate to prevent further abuse of | 26 |
| a family or household member or
to effectuate one of the |
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| granted remedies, if supported by the balance of
hardships. | 2 |
| If the harm to be prevented by the injunction is abuse or | 3 |
| any
other harm that one of the remedies listed in | 4 |
| paragraphs (1) through (16)
of this subsection is designed | 5 |
| to prevent, no further evidence is necessary
to establish | 6 |
| that the harm is an irreparable injury.
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| (c) Relevant factors; findings.
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| (1) In determining whether to grant a
specific remedy, | 9 |
| other than payment of support, the
court shall consider | 10 |
| relevant factors, including but not limited to the
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| following:
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| (i) the nature, frequency, severity, pattern and | 13 |
| consequences of the
respondent's past abuse of the | 14 |
| petitioner or any family or household
member, | 15 |
| including the concealment of his or her location in | 16 |
| order to evade
service of process or notice, and the | 17 |
| likelihood of danger of future abuse to
petitioner or
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| any member of petitioner's or respondent's family or | 19 |
| household; and
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| (ii) the danger that any minor child will be abused | 21 |
| or neglected or
improperly removed from the | 22 |
| jurisdiction, improperly concealed within the
State or | 23 |
| improperly separated from the child's primary | 24 |
| caretaker.
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| (2) In comparing relative hardships resulting to the | 26 |
| parties from loss
of possession of the family home, the |
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| court shall consider relevant
factors, including but not | 2 |
| limited to the following:
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| (i) availability, accessibility, cost, safety, | 4 |
| adequacy, location and other
characteristics of | 5 |
| alternate housing for each party and any minor child or
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| dependent adult in the party's care;
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| (ii) the effect on the party's employment; and
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| (iii) the effect on the relationship of the party, | 9 |
| and any minor
child or dependent adult in the party's | 10 |
| care, to family, school, church
and community.
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| (3) Subject to the exceptions set forth in paragraph | 12 |
| (4) of this
subsection, the court shall make its findings | 13 |
| in an official record or in
writing, and shall at a minimum | 14 |
| set forth the following:
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| (i) That the court has considered the applicable | 16 |
| relevant factors
described in paragraphs (1) and (2) of | 17 |
| this subsection.
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| (ii) Whether the conduct or actions of respondent, | 19 |
| unless
prohibited, will likely cause irreparable harm | 20 |
| or continued abuse.
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| (iii) Whether it is necessary to grant the | 22 |
| requested relief in order
to protect petitioner or | 23 |
| other alleged abused persons.
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| (4) For purposes of issuing an ex parte emergency order | 25 |
| of protection,
the court, as an alternative to or as a | 26 |
| supplement to making the findings
described in paragraphs |
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| (c)(3)(i) through (c)(3)(iii) of this subsection, may use
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| the following procedure:
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| When a verified petition for an emergency order of | 4 |
| protection in
accordance with the requirements of Sections | 5 |
| 112A-5 and 112A-17 is
presented to the court, the court | 6 |
| shall examine petitioner on oath or
affirmation. An | 7 |
| emergency order of protection shall be issued by the court
| 8 |
| if it appears from the contents of the petition and the | 9 |
| examination of
petitioner that the averments are | 10 |
| sufficient to indicate abuse by
respondent and to support | 11 |
| the granting of relief under the issuance of the
emergency | 12 |
| order of protection.
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| (5) Never married parties. No rights or | 14 |
| responsibilities for a minor
child born outside of marriage | 15 |
| attach to a putative father until a father and
child | 16 |
| relationship has been established under the Illinois | 17 |
| Parentage Act of
1984. Absent such an adjudication, no | 18 |
| putative father shall be granted
temporary custody of the | 19 |
| minor child, visitation with the minor child, or
physical | 20 |
| care
and possession of the minor child, nor shall
an order | 21 |
| of payment for support of the minor child be entered.
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| (d) Balance of hardships; findings. If the court finds that | 23 |
| the balance
of hardships does not support the granting of a | 24 |
| remedy governed by
paragraph (2), (3), (10), (11), or (16) of
| 25 |
| subsection (b) of this Section,
which may require such | 26 |
| balancing, the court's findings shall so
indicate and shall |
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| include a finding as to whether granting the remedy will
result | 2 |
| in hardship to respondent that would substantially outweigh the | 3 |
| hardship
to petitioner
from denial of the remedy. The findings | 4 |
| shall be an official record or in
writing.
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| (e) Denial of remedies. Denial of any remedy shall not be | 6 |
| based, in
whole or in part, on evidence that:
| 7 |
| (1) Respondent has cause for any use of force, unless | 8 |
| that cause
satisfies the standards for justifiable use of | 9 |
| force provided by Article
VII of the Criminal Code of 1961;
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| (2) Respondent was voluntarily intoxicated;
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| (3) Petitioner acted in self-defense or defense of | 12 |
| another, provided
that, if petitioner utilized force, such | 13 |
| force was justifiable under
Article VII of the Criminal | 14 |
| Code of 1961;
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| (4) Petitioner did not act in self-defense or defense | 16 |
| of another;
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| (5) Petitioner left the residence or household to avoid | 18 |
| further abuse
by respondent;
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| (6) Petitioner did not leave the residence or household | 20 |
| to avoid further
abuse by respondent;
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| (7) Conduct by any family or household member excused | 22 |
| the abuse by
respondent, unless that same conduct would | 23 |
| have excused such abuse if the
parties had not been family | 24 |
| or household members.
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| (Source: P.A. 93-108, eff. 1-1-04.)
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LRB095 03424 RLC 23428 b |
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| Section 10. The Illinois Domestic Violence Act of 1986 is | 2 |
| amended by changing Section 214 as follows:
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| (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
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| Sec. 214. Order of protection; remedies.
| 5 |
| (a) Issuance of order. If the court finds that petitioner | 6 |
| has been
abused by a family or household member or that | 7 |
| petitioner is a high-risk
adult who has been abused, neglected, | 8 |
| or exploited, as defined in this Act,
an order of protection | 9 |
| prohibiting the abuse, neglect, or exploitation
shall issue; | 10 |
| provided that petitioner must also satisfy the requirements of
| 11 |
| one of the following Sections, as appropriate: Section 217 on | 12 |
| emergency
orders, Section 218 on interim orders, or Section 219 | 13 |
| on plenary orders.
Petitioner shall not be denied an order of | 14 |
| protection because petitioner or
respondent is a minor. The | 15 |
| court, when determining whether or not to issue
an order of | 16 |
| protection, shall not require physical manifestations of abuse
| 17 |
| on the person of the victim. Modification and extension of | 18 |
| prior
orders of protection shall be in accordance with this | 19 |
| Act.
| 20 |
| (b) Remedies and standards. The remedies to be included in | 21 |
| an order of
protection shall be determined in accordance with | 22 |
| this Section and one of
the following Sections, as appropriate: | 23 |
| Section 217 on emergency orders,
Section 218 on interim orders, | 24 |
| and Section 219 on plenary orders. The
remedies listed in this | 25 |
| subsection shall be in addition to other civil or
criminal |
|
|
|
HB0009 Enrolled |
- 18 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| remedies available to petitioner.
| 2 |
| (1) Prohibition of abuse, neglect, or exploitation. | 3 |
| Prohibit
respondent's harassment, interference with | 4 |
| personal liberty, intimidation
of a dependent, physical | 5 |
| abuse, or willful deprivation, neglect or
exploitation, as | 6 |
| defined in this Act, or stalking of the petitioner, as | 7 |
| defined
in Section 12-7.3 of the Criminal Code of 1961, if | 8 |
| such abuse, neglect,
exploitation, or stalking has | 9 |
| occurred or otherwise appears likely to occur if
not | 10 |
| prohibited.
| 11 |
| (2) Grant of exclusive possession of residence. | 12 |
| Prohibit respondent from
entering or remaining in any | 13 |
| residence or household of the petitioner,
including one | 14 |
| owned or leased by respondent, if petitioner has a right to
| 15 |
| occupancy thereof. The grant of exclusive possession of the | 16 |
| residence shall not
affect title to real property, nor | 17 |
| shall the court be limited by the standard
set forth in | 18 |
| Section 701 of the Illinois Marriage and Dissolution of | 19 |
| Marriage
Act.
| 20 |
| (A) Right to occupancy. A party has a right to | 21 |
| occupancy of a
residence or household if it is solely | 22 |
| or jointly owned or leased by that
party, that party's | 23 |
| spouse, a person with a legal duty to support that | 24 |
| party or
a minor child in that party's care, or by any | 25 |
| person or entity other than the
opposing party that | 26 |
| authorizes that party's occupancy (e.g., a domestic
|
|
|
|
HB0009 Enrolled |
- 19 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| violence shelter). Standards set forth in subparagraph | 2 |
| (B) shall not preclude
equitable relief.
| 3 |
| (B) Presumption of hardships. If petitioner and | 4 |
| respondent
each has the right to occupancy of a | 5 |
| residence or household, the court
shall balance (i) the | 6 |
| hardships to respondent and any minor child or
| 7 |
| dependent adult in respondent's care resulting from | 8 |
| entry of this remedy with
(ii) the hardships to | 9 |
| petitioner and any minor child or dependent adult in
| 10 |
| petitioner's care resulting from continued exposure to | 11 |
| the risk of abuse
(should petitioner remain at the | 12 |
| residence or household) or from loss of
possession of | 13 |
| the residence or household (should petitioner leave to | 14 |
| avoid the
risk of abuse). When determining the balance | 15 |
| of hardships, the court shall
also take into account | 16 |
| the accessibility of the residence or household.
| 17 |
| Hardships need not be balanced if respondent does not | 18 |
| have a right to
occupancy.
| 19 |
| The balance of hardships is presumed to favor | 20 |
| possession by
petitioner unless the presumption is | 21 |
| rebutted by a preponderance of the
evidence, showing | 22 |
| that the hardships to respondent substantially | 23 |
| outweigh
the hardships to petitioner and any minor | 24 |
| child or dependent adult in
petitioner's care. The | 25 |
| court, on the request of petitioner or on its own
| 26 |
| motion, may order respondent to provide suitable, |
|
|
|
HB0009 Enrolled |
- 20 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| accessible, alternate housing
for petitioner instead | 2 |
| of excluding respondent from a mutual residence or
| 3 |
| household.
| 4 |
| (3) Stay away order and additional prohibitions.
Order | 5 |
| respondent to stay away from petitioner or any other person
| 6 |
| protected by the order of protection, or prohibit | 7 |
| respondent from entering
or remaining present at | 8 |
| petitioner's school, place of employment, or other
| 9 |
| specified places at times when petitioner is present, or | 10 |
| both, if
reasonable, given the balance of hardships. | 11 |
| Hardships need not be balanced for
the court to enter a | 12 |
| stay away order or prohibit entry if respondent has no
| 13 |
| right to enter the premises.
| 14 |
| If an order of protection grants petitioner exclusive | 15 |
| possession
of the residence, or prohibits respondent from | 16 |
| entering the residence,
or orders respondent to stay away | 17 |
| from petitioner or other
protected persons, then the court | 18 |
| may allow respondent access to the
residence to remove | 19 |
| items of clothing and personal adornment
used exclusively | 20 |
| by respondent, medications, and other items as the court
| 21 |
| directs. The right to access shall be exercised on only one | 22 |
| occasion as the
court directs and in the presence of an | 23 |
| agreed-upon adult third party or law
enforcement officer.
| 24 |
| (4) Counseling. Require or recommend the respondent to | 25 |
| undergo
counseling for a specified duration with a social | 26 |
| worker, psychologist,
clinical psychologist, psychiatrist, |
|
|
|
HB0009 Enrolled |
- 21 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| family service agency, alcohol or
substance abuse program, | 2 |
| mental health center guidance counselor, agency
providing | 3 |
| services to elders, program designed for domestic violence
| 4 |
| abusers or any other guidance service the court deems | 5 |
| appropriate.
| 6 |
| (5) Physical care and possession of the minor child. In | 7 |
| order to protect
the minor child from abuse, neglect, or | 8 |
| unwarranted separation from the person
who has been the | 9 |
| minor child's primary caretaker, or to otherwise protect | 10 |
| the
well-being of the minor child, the court may do either | 11 |
| or both of the
following: (i) grant petitioner physical | 12 |
| care or possession of the minor child,
or both, or (ii) | 13 |
| order respondent to return a minor child to, or not remove | 14 |
| a
minor child from, the physical care of a parent or person | 15 |
| in loco parentis.
| 16 |
| If a court finds, after a hearing, that respondent has | 17 |
| committed abuse
(as defined in Section 103) of a minor | 18 |
| child, there shall be a
rebuttable presumption that | 19 |
| awarding physical care to respondent would not
be in the | 20 |
| minor child's best interest.
| 21 |
| (6) Temporary legal custody. Award temporary legal | 22 |
| custody to petitioner
in accordance with this Section, the | 23 |
| Illinois Marriage and Dissolution of
Marriage Act, the | 24 |
| Illinois Parentage Act of 1984, and this State's Uniform
| 25 |
| Child-Custody Jurisdiction and Enforcement Act.
| 26 |
| If a court finds, after a hearing, that respondent has |
|
|
|
HB0009 Enrolled |
- 22 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| committed abuse (as
defined in Section 103) of a minor | 2 |
| child, there shall be a rebuttable
presumption that | 3 |
| awarding temporary legal custody to respondent would not be | 4 |
| in
the child's best interest.
| 5 |
| (7) Visitation. Determine the visitation rights, if | 6 |
| any, of respondent in
any case in which the court awards | 7 |
| physical care or temporary legal custody of
a minor child | 8 |
| to petitioner. The court shall restrict or deny | 9 |
| respondent's
visitation with a minor child if the court | 10 |
| finds that respondent has done or is
likely to do any of | 11 |
| the following: (i) abuse or endanger the minor child during
| 12 |
| visitation; (ii) use the visitation as an opportunity to | 13 |
| abuse or harass
petitioner or petitioner's family or | 14 |
| household members; (iii) improperly
conceal or detain the | 15 |
| minor child; or (iv) otherwise act in a manner that is
not | 16 |
| in the best interests of the minor child. The court shall | 17 |
| not be limited
by the standards set forth in Section 607.1 | 18 |
| of the Illinois Marriage and
Dissolution of Marriage Act. | 19 |
| If the court grants visitation, the order shall
specify | 20 |
| dates and times for the visitation to take place or other | 21 |
| specific
parameters or conditions that are appropriate. No | 22 |
| order for visitation shall
refer merely to the term | 23 |
| "reasonable visitation".
| 24 |
| Petitioner may deny respondent access to the minor | 25 |
| child if, when
respondent arrives for visitation, | 26 |
| respondent is under the influence of drugs
or alcohol and |
|
|
|
HB0009 Enrolled |
- 23 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| constitutes a threat to the safety and well-being of
| 2 |
| petitioner or petitioner's minor children or is behaving in | 3 |
| a violent or
abusive manner.
| 4 |
| If necessary to protect any member of petitioner's | 5 |
| family or
household from future abuse, respondent shall be | 6 |
| prohibited from coming to
petitioner's residence to meet | 7 |
| the minor child for visitation, and the
parties shall | 8 |
| submit to the court their recommendations for reasonable
| 9 |
| alternative arrangements for visitation. A person may be | 10 |
| approved to
supervise visitation only after filing an | 11 |
| affidavit accepting
that responsibility and acknowledging | 12 |
| accountability to the court.
| 13 |
| (8) Removal or concealment of minor child. Prohibit | 14 |
| respondent from
removing a minor child from the State or | 15 |
| concealing the child within the State.
| 16 |
| (9) Order to appear. Order the respondent to appear in | 17 |
| court, alone
or with a minor child, to prevent abuse, | 18 |
| neglect, removal or concealment of
the child, to return the | 19 |
| child to the custody or care of the petitioner or
to permit | 20 |
| any court-ordered interview or examination of the child or | 21 |
| the
respondent.
| 22 |
| (10) Possession of personal property. Grant petitioner | 23 |
| exclusive
possession of personal property and, if | 24 |
| respondent has possession or
control, direct respondent to | 25 |
| promptly make it available to petitioner, if:
| 26 |
| (i) petitioner, but not respondent, owns the |
|
|
|
HB0009 Enrolled |
- 24 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| property; or
| 2 |
| (ii) the parties own the property jointly; sharing | 3 |
| it would risk
abuse of petitioner by respondent or is | 4 |
| impracticable; and the balance of
hardships favors | 5 |
| temporary possession by petitioner.
| 6 |
| If petitioner's sole claim to ownership of the property | 7 |
| is that it is
marital property, the court may award | 8 |
| petitioner temporary possession
thereof under the | 9 |
| standards of subparagraph (ii) of this paragraph only if
a | 10 |
| proper proceeding has been filed under the Illinois | 11 |
| Marriage and
Dissolution of Marriage Act, as now or | 12 |
| hereafter amended.
| 13 |
| No order under this provision shall affect title to | 14 |
| property.
| 15 |
| (11) Protection of property. Forbid the respondent | 16 |
| from taking,
transferring, encumbering, concealing, | 17 |
| damaging or otherwise disposing of
any real or personal | 18 |
| property, except as explicitly authorized by the
court, if:
| 19 |
| (i) petitioner, but not respondent, owns the | 20 |
| property; or
| 21 |
| (ii) the parties own the property jointly,
and the | 22 |
| balance of hardships favors granting this remedy.
| 23 |
| If petitioner's sole claim to ownership of the property | 24 |
| is that it is
marital property, the court may grant | 25 |
| petitioner relief under subparagraph
(ii) of this | 26 |
| paragraph only if a proper proceeding has been filed under |
|
|
|
HB0009 Enrolled |
- 25 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| the
Illinois Marriage and Dissolution of Marriage Act, as | 2 |
| now or hereafter amended.
| 3 |
| The court may further prohibit respondent from | 4 |
| improperly using the
financial or other resources of an | 5 |
| aged member of the family or household
for the profit or | 6 |
| advantage of respondent or of any other person.
| 7 |
| (11.5) Protection of animals. Grant the petitioner the | 8 |
| exclusive care, custody, or control of any animal owned, | 9 |
| possessed, leased, kept, or held by either the petitioner | 10 |
| or the respondent or a minor child residing in the | 11 |
| residence or household of either the petitioner or the | 12 |
| respondent and order the respondent to stay away from the | 13 |
| animal and forbid the respondent from taking, | 14 |
| transferring, encumbering, concealing, harming, or | 15 |
| otherwise disposing of the animal.
| 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 |
|
|
|
HB0009 Enrolled |
- 26 - |
LRB095 03424 RLC 23428 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 |
|
|
|
HB0009 Enrolled |
- 27 - |
LRB095 03424 RLC 23428 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 in the
possession of the respondent, | 19 |
| except as provided in subsection (b), be turned
over to | 20 |
| the local law enforcement agency
for safekeeping. If | 21 |
| the respondent has failed to appear, the court shall
| 22 |
| issue a warrant for seizure of any firearm in the | 23 |
| possession of the respondent.
The period of | 24 |
| safekeeping shall be for a stated period of time not to | 25 |
| exceed 2
years. The firearm or firearms shall be | 26 |
| returned to the respondent at the end
of the stated |
|
|
|
HB0009 Enrolled |
- 28 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| period or at expiration of the order of protection, | 2 |
| whichever is
sooner.
| 3 |
| (b) If the respondent is a peace officer as defined | 4 |
| in Section 2-13 of
the
Criminal Code of 1961, the court | 5 |
| shall order that any firearms used by the
respondent in | 6 |
| the performance of his or her duties as a
peace officer | 7 |
| be surrendered to
the chief law enforcement executive | 8 |
| of the agency in which the respondent is
employed, who | 9 |
| shall retain the firearms for safekeeping for the | 10 |
| stated period
not to exceed 2 years as set forth in the | 11 |
| court order.
| 12 |
| (15) Prohibition of access to records. If an order of | 13 |
| protection
prohibits respondent from having contact with | 14 |
| the minor child,
or if petitioner's address is omitted | 15 |
| under subsection (b) of
Section 203, or if necessary to | 16 |
| prevent abuse or wrongful removal or
concealment of a minor | 17 |
| child, the order shall deny respondent access to, and
| 18 |
| prohibit respondent from inspecting, obtaining, or | 19 |
| attempting to
inspect or obtain, school or any other | 20 |
| records of the minor child
who is in the care of | 21 |
| petitioner.
| 22 |
| (16) Order for payment of shelter services. Order | 23 |
| respondent to
reimburse a shelter providing temporary | 24 |
| housing and counseling services to
the petitioner for the | 25 |
| cost of the services, as certified by the shelter
and | 26 |
| deemed reasonable by the court.
|
|
|
|
HB0009 Enrolled |
- 29 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| (17) Order for injunctive relief. Enter injunctive | 2 |
| relief necessary
or appropriate to prevent further abuse of | 3 |
| a family or household member
or further abuse, neglect, or | 4 |
| exploitation of a high-risk adult with
disabilities or to | 5 |
| effectuate one of the granted remedies, if supported by the
| 6 |
| balance of hardships. If the harm to be prevented by the | 7 |
| injunction is abuse
or any other harm that one of the | 8 |
| remedies listed in paragraphs (1) through
(16) of this | 9 |
| subsection is designed to prevent, no further evidence is
| 10 |
| necessary that the harm is an irreparable injury.
| 11 |
| (c) Relevant factors; findings.
| 12 |
| (1) In determining whether to grant a specific remedy, | 13 |
| other than
payment of support, the court shall consider
| 14 |
| relevant factors, including but not limited to the | 15 |
| following:
| 16 |
| (i) the nature, frequency, severity, pattern and | 17 |
| consequences of the
respondent's past abuse, neglect | 18 |
| or exploitation of the petitioner or
any family or | 19 |
| household member, including the concealment of his or | 20 |
| her
location in order to evade service of process or | 21 |
| notice, and the likelihood of
danger of future abuse, | 22 |
| neglect, or exploitation to petitioner or any member of
| 23 |
| petitioner's or respondent's family or household; and
| 24 |
| (ii) the danger that any minor child will be abused | 25 |
| or neglected or
improperly removed from the | 26 |
| jurisdiction, improperly concealed within the
State or |
|
|
|
HB0009 Enrolled |
- 30 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| improperly separated from the child's primary | 2 |
| caretaker.
| 3 |
| (2) In comparing relative hardships resulting to the | 4 |
| parties from loss
of possession of the family home, the | 5 |
| court shall consider relevant
factors, including but not | 6 |
| limited to the following:
| 7 |
| (i) availability, accessibility, cost, safety, | 8 |
| adequacy, location and
other characteristics of | 9 |
| alternate housing for each party and any minor child
or | 10 |
| dependent adult in the party's care;
| 11 |
| (ii) the effect on the party's employment; and
| 12 |
| (iii) the effect on the relationship of the party, | 13 |
| and any minor
child or dependent adult in the party's | 14 |
| care, to family, school, church
and community.
| 15 |
| (3) Subject to the exceptions set forth in paragraph | 16 |
| (4) of this
subsection, the court shall make its findings | 17 |
| in an official record or in
writing, and shall at a minimum | 18 |
| set forth the following:
| 19 |
| (i) That the court has considered the applicable | 20 |
| relevant factors
described in paragraphs (1) and (2) of | 21 |
| this subsection.
| 22 |
| (ii) Whether the conduct or actions of respondent, | 23 |
| unless
prohibited, will likely cause irreparable harm | 24 |
| or continued abuse.
| 25 |
| (iii) Whether it is necessary to grant the | 26 |
| requested relief in order
to protect petitioner or |
|
|
|
HB0009 Enrolled |
- 31 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| other alleged abused persons.
| 2 |
| (4) For purposes of issuing an ex parte emergency order | 3 |
| of protection,
the court, as an alternative to or as a | 4 |
| supplement to making the findings
described in paragraphs | 5 |
| (c)(3)(i) through (c)(3)(iii) of this subsection, may
use | 6 |
| the following procedure:
| 7 |
| When a verified petition for an emergency order of | 8 |
| protection in
accordance with the requirements of Sections | 9 |
| 203 and 217 is
presented to the court, the court shall | 10 |
| examine petitioner on oath or
affirmation. An emergency | 11 |
| order of protection shall be issued by the court
if it | 12 |
| appears from the contents of the petition and the | 13 |
| examination of
petitioner that the averments are | 14 |
| sufficient to indicate abuse by
respondent and to support | 15 |
| the granting of relief under the issuance of the
emergency | 16 |
| order of protection.
| 17 |
| (5) Never married parties. No rights or | 18 |
| responsibilities for a minor
child born outside of marriage | 19 |
| attach to a putative father until a father and
child | 20 |
| relationship has been established under the Illinois | 21 |
| Parentage Act of
1984, the Illinois Public Aid Code, | 22 |
| Section 12 of the Vital Records Act, the
Juvenile Court Act | 23 |
| of 1987, the Probate Act of 1985, the Revised Uniform
| 24 |
| Reciprocal Enforcement of Support Act, the Uniform | 25 |
| Interstate Family Support
Act, the Expedited Child Support | 26 |
| Act of 1990, any judicial, administrative, or
other act of |
|
|
|
HB0009 Enrolled |
- 32 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| another state or territory, any other Illinois statute, or | 2 |
| by any
foreign nation establishing the father and child | 3 |
| relationship, any other
proceeding substantially in | 4 |
| conformity with the Personal Responsibility and
Work | 5 |
| Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), | 6 |
| or where both
parties appeared in open court or at an | 7 |
| administrative hearing acknowledging
under
oath or | 8 |
| admitting by affirmation the existence of a father and | 9 |
| child
relationship.
Absent such an adjudication, finding, | 10 |
| or acknowledgement, no putative
father shall be granted
| 11 |
| temporary custody of the minor child, visitation with the | 12 |
| minor child, or
physical care and possession of the minor | 13 |
| child, nor shall an order of payment
for support of the | 14 |
| minor child be entered.
| 15 |
| (d) Balance of hardships; findings. If the court finds that | 16 |
| the balance
of hardships does not support the granting of a | 17 |
| remedy governed by
paragraph (2), (3), (10), (11), or (16) of | 18 |
| subsection (b) of this Section,
which may require such | 19 |
| balancing, the court's findings shall so
indicate and shall | 20 |
| include a finding as to whether granting the remedy will
result | 21 |
| in hardship to respondent that would substantially outweigh the | 22 |
| hardship
to petitioner from denial of the remedy. The findings | 23 |
| shall be an official
record or in writing.
| 24 |
| (e) Denial of remedies. Denial of any remedy shall not be | 25 |
| based, in
whole or in part, on evidence that:
| 26 |
| (1) Respondent has cause for any use of force, unless |
|
|
|
HB0009 Enrolled |
- 33 - |
LRB095 03424 RLC 23428 b |
|
| 1 |
| that cause
satisfies the standards for justifiable use of | 2 |
| force provided by Article
VII of the Criminal Code of 1961;
| 3 |
| (2) Respondent was voluntarily intoxicated;
| 4 |
| (3) Petitioner acted in self-defense or defense of | 5 |
| another, provided
that, if petitioner utilized force, such | 6 |
| force was justifiable under
Article VII of the Criminal | 7 |
| Code of 1961;
| 8 |
| (4) Petitioner did not act in self-defense or defense | 9 |
| of another;
| 10 |
| (5) Petitioner left the residence or household to avoid | 11 |
| further abuse,
neglect, or exploitation by respondent;
| 12 |
| (6) Petitioner did not leave the residence or household | 13 |
| to avoid further
abuse, neglect, or exploitation by | 14 |
| respondent;
| 15 |
| (7) Conduct by any family or household member excused | 16 |
| the abuse,
neglect, or exploitation by respondent, unless | 17 |
| that same conduct would have
excused such abuse, neglect, | 18 |
| or exploitation if the parties had not been
family or | 19 |
| household members.
| 20 |
| (Source: P.A. 93-108, eff. 1-1-04.)
|
|