Full Text of HB1106 95th General Assembly
HB1106 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 HB1106
Introduced , by Rep. Careen M Gordon SYNOPSIS AS INTRODUCED: |
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725 ILCS 5/112A-14 |
from Ch. 38, par. 112A-14 |
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Amends the Code of Criminal Procedure of 1963. Makes a technical change in the Section concerning the issuance of orders of protection.
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A BILL FOR
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HB1106 |
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LRB095 09700 RLC 29902 b |
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| AN ACT concerning criminal law.
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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
that
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| petitioner has been
abused by a family or household member, as | 10 |
| defined in this Article, an
order of protection prohibiting | 11 |
| such abuse shall issue; provided that
petitioner must also | 12 |
| satisfy the requirements of one of the following
Sections, as | 13 |
| appropriate: Section 112A-17 on emergency orders, Section
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| 112A-18 on interim orders, or Section 112A-19 on
plenary | 15 |
| orders.
Petitioner shall not be denied an order of protection | 16 |
| because petitioner or
respondent is a minor. The court, when | 17 |
| determining whether or not to issue
an order of protection, | 18 |
| shall not require physical manifestations of abuse
on the | 19 |
| person of the victim. Modification and extension of prior | 20 |
| orders of
protection shall 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 |
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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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| (12) Order for payment of support. Order
respondent to | 8 |
| pay temporary
support for the petitioner or any child in | 9 |
| the petitioner's care or
custody, when the respondent has a | 10 |
| legal obligation to support that person,
in accordance with | 11 |
| the Illinois Marriage and Dissolution
of Marriage Act, | 12 |
| which shall govern, among other matters, the amount of
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| support, payment through the clerk and withholding of | 14 |
| income to secure
payment. An order for child support may be | 15 |
| granted to a petitioner with
lawful physical care or | 16 |
| custody of a child, or an order or agreement for
physical | 17 |
| care or custody, prior to entry of an order for legal | 18 |
| custody.
Such a support order shall expire upon entry of a | 19 |
| valid order granting
legal custody to another, unless | 20 |
| otherwise provided in the custody order.
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| (13) Order for payment of losses. Order
respondent to | 22 |
| pay petitioner
for losses suffered as a direct result of | 23 |
| the abuse. Such losses shall
include, but not be limited | 24 |
| to, medical expenses, lost earnings or other
support, | 25 |
| repair or replacement of property damaged or taken, | 26 |
| reasonable
attorney's fees, court costs and moving or other |
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| travel expenses, including
additional reasonable expenses | 2 |
| for temporary shelter and restaurant meals.
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| (i) Losses affecting family needs. If a party is | 4 |
| entitled to seek
maintenance, child support or | 5 |
| property distribution from the other party
under the | 6 |
| Illinois Marriage and Dissolution of Marriage Act, as | 7 |
| now or
hereafter amended, the court may order | 8 |
| respondent to reimburse petitioner's
actual losses, to | 9 |
| the extent that such reimbursement would be | 10 |
| "appropriate
temporary relief", as authorized by | 11 |
| subsection (a)(3) of
Section 501 of that Act.
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| (ii) Recovery of expenses. In the case of an | 13 |
| improper concealment
or removal of a minor child, the | 14 |
| court may order respondent to pay the reasonable
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| expenses incurred or to be incurred in the search for | 16 |
| and recovery of the
minor child, including but not | 17 |
| 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 | 20 |
| from entering or
remaining in the residence or household | 21 |
| while the respondent is under the
influence of alcohol or | 22 |
| drugs and constitutes a threat to the safety and
well-being | 23 |
| of the petitioner or the petitioner's children.
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| (14.5) Prohibition of firearm possession. (a) When a | 25 |
| complaint is made
under a request for an order of | 26 |
| protection, that the respondent has threatened
or is likely |
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| to use firearms illegally against the petitioner, and the
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| respondent is present in court, or has failed to appear | 3 |
| after receiving actual
notice, the court shall examine on | 4 |
| oath the petitioner, and any witnesses who
may be produced. | 5 |
| 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 | 7 |
| protection the
requirement that any firearms in the
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| possession of the respondent, except as provided in | 9 |
| subsection (b), be turned
over to the local law enforcement | 10 |
| agency
for safekeeping. If the respondent fails to appear, | 11 |
| or refuses or fails to
surrender his or her firearms, the | 12 |
| court shall
issue a warrant for seizure of any firearm in | 13 |
| the possession of the respondent.
The period of safekeeping | 14 |
| shall be for a stated period of time not to exceed 2
years. | 15 |
| The firearm or firearms shall be returned to the respondent | 16 |
| at the end
of the stated period or at expiration of the | 17 |
| order of protection, whichever is
sooner.
(b) If the | 18 |
| respondent is a peace officer as defined in Section 2-13 of | 19 |
| the
Criminal Code of 1961, the court shall order that any | 20 |
| firearms used by the
respondent in the performance of his | 21 |
| or her duties as a peace officer be
surrendered to the | 22 |
| chief law enforcement executive of the agency in which the
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| respondent is employed, who shall retain the firearms for | 24 |
| safekeeping for the
stated period not to exceed 2 years as | 25 |
| set forth in the court order.
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| (15) Prohibition of access to records. If an order of |
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| protection
prohibits respondent from having contact with | 2 |
| the minor child,
or if petitioner's address is omitted | 3 |
| under subsection (b) of
Section 112A-5, or if necessary to | 4 |
| prevent abuse or wrongful removal or
concealment of a minor | 5 |
| child, the order shall deny respondent access to, and
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| prohibit respondent from inspecting, obtaining, or | 7 |
| attempting to
inspect or obtain, school or any other | 8 |
| records of the minor child
who is in the care of | 9 |
| petitioner.
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| (16) Order for payment of shelter services. Order | 11 |
| respondent to
reimburse a shelter providing temporary | 12 |
| housing and counseling services to
the petitioner for the | 13 |
| cost of the services, as certified by the shelter
and | 14 |
| deemed reasonable by the court.
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| (17) Order for injunctive relief. Enter injunctive | 16 |
| relief necessary
or appropriate to prevent further abuse of | 17 |
| a family or household member or
to effectuate one of the | 18 |
| granted remedies, if supported by the balance of
hardships. | 19 |
| If the harm to be prevented by the injunction is abuse or | 20 |
| any
other harm that one of the remedies listed in | 21 |
| paragraphs (1) through (16)
of this subsection is designed | 22 |
| to prevent, no further evidence is necessary
to establish | 23 |
| 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, | 26 |
| other than payment of support, the
court shall consider |
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| relevant factors, including but not limited to the
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| following:
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| (i) the nature, frequency, severity, pattern and | 4 |
| consequences of the
respondent's past abuse of the | 5 |
| petitioner or any family or household
member, | 6 |
| including the concealment of his or her location in | 7 |
| order to evade
service of process or notice, and the | 8 |
| likelihood of danger of future abuse to
petitioner or
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| any member of petitioner's or respondent's family or | 10 |
| household; and
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| (ii) the danger that any minor child will be abused | 12 |
| or neglected or
improperly removed from the | 13 |
| jurisdiction, improperly concealed within the
State or | 14 |
| improperly separated from the child's primary | 15 |
| caretaker.
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| (2) In comparing relative hardships resulting to the | 17 |
| parties from loss
of possession of the family home, the | 18 |
| court shall consider relevant
factors, including but not | 19 |
| limited to the following:
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| (i) availability, accessibility, cost, safety, | 21 |
| adequacy, location and other
characteristics of | 22 |
| 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, | 26 |
| and any minor
child or dependent adult in the party's |
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| care, to family, school, church
and community.
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| (3) Subject to the exceptions set forth in paragraph | 3 |
| (4) of this
subsection, the court shall make its findings | 4 |
| in an official record or in
writing, and shall at a minimum | 5 |
| set forth the following:
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| (i) That the court has considered the applicable | 7 |
| relevant factors
described in paragraphs (1) and (2) of | 8 |
| this subsection.
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| (ii) Whether the conduct or actions of respondent, | 10 |
| unless
prohibited, will likely cause irreparable harm | 11 |
| or continued abuse.
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| (iii) Whether it is necessary to grant the | 13 |
| requested relief in order
to protect petitioner or | 14 |
| other alleged abused persons.
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| (4) For purposes of issuing an ex parte emergency order | 16 |
| of protection,
the court, as an alternative to or as a | 17 |
| supplement to making the findings
described in paragraphs | 18 |
| (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 | 21 |
| protection in
accordance with the requirements of Sections | 22 |
| 112A-5 and 112A-17 is
presented to the court, the court | 23 |
| shall examine petitioner on oath or
affirmation. An | 24 |
| emergency order of protection shall be issued by the court
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| if it appears from the contents of the petition and the | 26 |
| examination of
petitioner that the averments are |
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| sufficient to indicate abuse by
respondent and to support | 2 |
| the granting of relief under the issuance of the
emergency | 3 |
| order of protection.
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| (5) Never married parties. No rights or | 5 |
| responsibilities for a minor
child born outside of marriage | 6 |
| attach to a putative father until a father and
child | 7 |
| relationship has been established under the Illinois | 8 |
| Parentage Act of
1984. Absent such an adjudication, no | 9 |
| putative father shall be granted
temporary custody of the | 10 |
| minor child, visitation with the minor child, or
physical | 11 |
| care
and possession of the minor child, nor shall
an order | 12 |
| of payment for support of the minor child be entered.
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| (d) Balance of hardships; findings. If the court finds that | 14 |
| the balance
of hardships does not support the granting of a | 15 |
| remedy governed by
paragraph (2), (3), (10), (11), or (16) of
| 16 |
| subsection (b) of this Section,
which may require such | 17 |
| balancing, the court's findings shall so
indicate and shall | 18 |
| include a finding as to whether granting the remedy will
result | 19 |
| in hardship to respondent that would substantially outweigh the | 20 |
| hardship
to petitioner
from denial of the remedy. The findings | 21 |
| shall be an official record or in
writing.
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| (e) Denial of remedies. Denial of any remedy shall not be | 23 |
| based, in
whole or in part, on evidence that:
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| (1) Respondent has cause for any use of force, unless | 25 |
| that cause
satisfies the standards for justifiable use of | 26 |
| 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 | 3 |
| another, provided
that, if petitioner utilized force, such | 4 |
| force was justifiable under
Article VII of the Criminal | 5 |
| Code of 1961;
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| (4) Petitioner did not act in self-defense or defense | 7 |
| of another;
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| (5) Petitioner left the residence or household to avoid | 9 |
| further abuse
by respondent;
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| (6) Petitioner did not leave the residence or household | 11 |
| to avoid further
abuse by respondent;
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| (7) Conduct by any family or household member excused | 13 |
| the abuse by
respondent, unless that same conduct would | 14 |
| have excused such abuse if the
parties had not been family | 15 |
| or household members.
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| (Source: P.A. 93-108, eff. 1-1-04.)
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