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90_HB1613
750 ILCS 60/214 from Ch. 40, par. 2312-14
Amends provisions regarding order of protection remedies
granted under the Illinois Domestic Violence Act of 1986.
Provides that no rights or responsibilities for a minor child
born outside of marriage attach to a putative father until a
father and child relationship has been established under, in
addition to the Illinois Parentage Act of 1984, any other
Illinois statute, any judicial, administrative, or other act
of another state or territory, or by any foreign nation
establishing the father and child relationship, any other
proceeding substantially in conformity with the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 (Pub. L. 104-193), or where both parties appeared in
open court or at an administrative hearing acknowledging
under oath or admitting by affirmation the existence of a
father and child relationship.
LRB9003936SMdv
LRB9003936SMdv
1 AN ACT to amend the Illinois Domestic Violence Act of
2 1986 by changing Section 214.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Illinois Domestic Violence Act of 1986 is
6 amended by changing Section 214 as follows:
7 (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
8 Sec. 214. Order of protection; remedies.
9 (a) Issuance of order. If the court finds that
10 petitioner has been abused by a family or household member or
11 that petitioner is a high-risk adult who has been abused,
12 neglected, or exploited, as defined in this Act, an order of
13 protection prohibiting the abuse, neglect, or exploitation
14 shall issue; provided that petitioner must also satisfy the
15 requirements of one of the following Sections, as
16 appropriate: Section 217 on emergency orders, Section 218 on
17 interim orders, or Section 219 on plenary orders. Petitioner
18 shall not be denied an order of protection because petitioner
19 or respondent is a minor. The court, when determining whether
20 or not to issue an order of protection, shall not require
21 physical manifestations of abuse on the person of the victim.
22 Modification and extension of prior orders of protection
23 shall be in accordance with this Act.
24 (b) Remedies and standards. The remedies to be included
25 in an order of protection shall be determined in accordance
26 with this Section and one of the following Sections, as
27 appropriate: Section 217 on emergency orders, Section 218 on
28 interim orders, and Section 219 on plenary orders. The
29 remedies listed in this subsection shall be in addition to
30 other civil or criminal remedies available to petitioner.
31 (1) Prohibition of abuse, neglect, or exploitation.
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1 Prohibit respondent's harassment, interference with
2 personal liberty, intimidation of a dependent, physical
3 abuse, or willful deprivation, neglect or exploitation,
4 as defined in this Act, or stalking of the petitioner, as
5 defined in Section 12-7.3 of the Criminal Code of 1961,
6 if such abuse, neglect, exploitation, or stalking has
7 occurred or otherwise appears likely to occur if not
8 prohibited.
9 (2) Grant of exclusive possession of residence.
10 Prohibit respondent from entering or remaining in any
11 residence or household of the petitioner, including one
12 owned or leased by respondent, if petitioner has a right
13 to occupancy thereof. The grant of exclusive possession
14 of the residence shall not affect title to real property,
15 nor shall the court be limited by the standard set forth
16 in Section 701 of the Illinois Marriage and Dissolution
17 of Marriage Act.
18 (A) Right to occupancy. A party has a right
19 to occupancy of a residence or household if it is
20 solely or jointly owned or leased by that party,
21 that party's spouse, a person with a legal duty to
22 support that party or a minor child in that party's
23 care, or by any person or entity other than the
24 opposing party that authorizes that party's
25 occupancy (e.g., a domestic violence shelter).
26 Standards set forth in subparagraph (B) shall not
27 preclude equitable relief.
28 (B) Presumption of hardships. If petitioner
29 and respondent each has the right to occupancy of a
30 residence or household, the court shall balance (i)
31 the hardships to respondent and any minor child or
32 dependent adult in respondent's care resulting from
33 entry of this remedy with (ii) the hardships to
34 petitioner and any minor child or dependent adult in
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1 petitioner's care resulting from continued exposure
2 to the risk of abuse (should petitioner remain at
3 the residence or household) or from loss of
4 possession of the residence or household (should
5 petitioner leave to avoid the risk of abuse). When
6 determining the balance of hardships, the court
7 shall also take into account the accessibility of
8 the residence or household. Hardships need not be
9 balanced if respondent does not have a right to
10 occupancy.
11 The balance of hardships is presumed to favor
12 possession by petitioner unless the presumption is
13 rebutted by a preponderance of the evidence, showing
14 that the hardships to respondent substantially
15 outweigh the hardships to petitioner and any minor
16 child or dependent adult in petitioner's care. The
17 court, on the request of petitioner or on its own
18 motion, may order respondent to provide suitable,
19 accessible, alternate housing for petitioner instead
20 of excluding respondent from a mutual residence or
21 household.
22 (3) Stay away order and additional prohibitions.
23 Order respondent to stay away from petitioner or any
24 other person protected by the order of protection, or
25 prohibit respondent from entering or remaining present at
26 petitioner's school, place of employment, or other
27 specified places at times when petitioner is present, or
28 both, if reasonable, given the balance of hardships.
29 Hardships need not be balanced for the court to enter a
30 stay away order or prohibit entry if respondent has no
31 right to enter the premises.
32 If an order of protection grants petitioner
33 exclusive possession of the residence, or prohibits
34 respondent from entering the residence, or orders
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1 respondent to stay away from petitioner or other
2 protected persons, then the court may allow respondent
3 access to the residence to remove items of clothing and
4 personal adornment used exclusively by respondent,
5 medications, and other items as the court directs. The
6 right to access shall be exercised on only one occasion
7 as the court directs and in the presence of an
8 agreed-upon adult third party or law enforcement officer.
9 (4) Counseling. Require or recommend the
10 respondent to undergo counseling for a specified duration
11 with a social worker, psychologist, clinical
12 psychologist, psychiatrist, family service agency,
13 alcohol or substance abuse program, mental health center
14 guidance counselor, agency providing services to elders,
15 program designed for domestic violence abusers or any
16 other guidance service the court deems appropriate.
17 (5) Physical care and possession of the minor
18 child. In order to protect the minor child from abuse,
19 neglect, or unwarranted separation from the person who
20 has been the minor child's primary caretaker, or to
21 otherwise protect the well-being of the minor child, the
22 court may do either or both of the following: (i) grant
23 petitioner physical care or possession of the minor
24 child, or both, or (ii) order respondent to return a
25 minor child to, or not remove a minor child from, the
26 physical care of a parent or person in loco parentis.
27 If a court finds, after a hearing, that respondent
28 has committed abuse (as defined in Section 103) of a
29 minor child, there shall be a rebuttable presumption that
30 awarding physical care to respondent would not be in the
31 minor child's best interest.
32 (6) Temporary legal custody. Award temporary legal
33 custody to petitioner in accordance with this Section,
34 the Illinois Marriage and Dissolution of Marriage Act,
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1 the Illinois Parentage Act of 1984, and this State's
2 Uniform Child Custody Jurisdiction Act.
3 If a court finds, after a hearing, that respondent
4 has committed abuse (as defined in Section 103) of a
5 minor child, there shall be a rebuttable presumption that
6 awarding temporary legal custody to respondent would not
7 be in the child's best interest.
8 (7) Visitation. Determine the visitation rights,
9 if any, of respondent in any case in which the court
10 awards physical care or temporary legal custody of a
11 minor child to petitioner. The court shall restrict or
12 deny respondent's visitation with a minor child if the
13 court finds that respondent has done or is likely to do
14 any of the following: (i) abuse or endanger the minor
15 child during visitation; (ii) use the visitation as an
16 opportunity to abuse or harass petitioner or petitioner's
17 family or household members; (iii) improperly conceal or
18 detain the minor child; or (iv) otherwise act in a manner
19 that is not in the best interests of the minor child.
20 The court shall not be limited by the standards set forth
21 in Section 607.1 of the Illinois Marriage and Dissolution
22 of Marriage Act. If the court grants visitation, the
23 order shall specify dates and times for the visitation to
24 take place or other specific parameters or conditions
25 that are appropriate. No order for visitation shall
26 refer merely to the term "reasonable visitation".
27 Petitioner may deny respondent access to the minor
28 child if, when respondent arrives for visitation,
29 respondent is under the influence of drugs or alcohol and
30 constitutes a threat to the safety and well-being of
31 petitioner or petitioner's minor children or is behaving
32 in a violent or abusive manner.
33 If necessary to protect any member of petitioner's
34 family or household from future abuse, respondent shall
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1 be prohibited from coming to petitioner's residence to
2 meet the minor child for visitation, and the parties
3 shall submit to the court their recommendations for
4 reasonable alternative arrangements for visitation. A
5 person may be approved to supervise visitation only after
6 filing an affidavit accepting that responsibility and
7 acknowledging accountability to the court.
8 (8) Removal or concealment of minor child. Prohibit
9 respondent from removing a minor child from the State or
10 concealing the child within the State.
11 (9) Order to appear. Order the respondent to
12 appear in court, alone or with a minor child, to prevent
13 abuse, neglect, removal or concealment of the child, to
14 return the child to the custody or care of the petitioner
15 or to permit any court-ordered interview or examination
16 of the child or the respondent.
17 (10) Possession of personal property. Grant
18 petitioner exclusive possession of personal property and,
19 if respondent has possession or control, direct
20 respondent to promptly make it available to petitioner,
21 if:
22 (i) petitioner, but not respondent, owns the
23 property; or
24 (ii) the parties own the property jointly;
25 sharing it would risk abuse of petitioner by
26 respondent or is impracticable; and the balance of
27 hardships favors temporary possession by petitioner.
28 If petitioner's sole claim to ownership of the
29 property is that it is marital property, the court may
30 award petitioner temporary possession thereof under the
31 standards of subparagraph (ii) of this paragraph only if
32 a proper proceeding has been filed under the Illinois
33 Marriage and Dissolution of Marriage Act, as now or
34 hereafter amended.
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1 No order under this provision shall affect title to
2 property.
3 (11) Protection of property. Forbid the respondent
4 from taking, transferring, encumbering, concealing,
5 damaging or otherwise disposing of any real or personal
6 property, except as explicitly authorized by the court,
7 if:
8 (i) petitioner, but not respondent, owns the
9 property; or
10 (ii) the parties own the property jointly, and
11 the balance of hardships favors granting this
12 remedy.
13 If petitioner's sole claim to ownership of the
14 property is that it is marital property, the court may
15 grant petitioner relief under subparagraph (ii) of this
16 paragraph only if a proper proceeding has been filed
17 under the Illinois Marriage and Dissolution of Marriage
18 Act, as now or hereafter amended.
19 The court may further prohibit respondent from
20 improperly using the financial or other resources of an
21 aged member of the family or household for the profit or
22 advantage of respondent or of any other person.
23 (12) Order for payment of support. Order
24 respondent to pay temporary support for the petitioner or
25 any child in the petitioner's care or custody, when the
26 respondent has a legal obligation to support that person,
27 in accordance with the Illinois Marriage and Dissolution
28 of Marriage Act, which shall govern, among other matters,
29 the amount of support, payment through the clerk and
30 withholding of income to secure payment. An order for
31 child support may be granted to a petitioner with lawful
32 physical care or custody of a child, or an order or
33 agreement for physical care or custody, prior to entry of
34 an order for legal custody. Such a support order shall
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1 expire upon entry of a valid order granting legal custody
2 to another, unless otherwise provided in the custody
3 order.
4 (13) Order for payment of losses. Order respondent
5 to pay petitioner for losses suffered as a direct result
6 of the abuse, neglect, or exploitation. Such losses
7 shall include, but not be limited to, medical expenses,
8 lost 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,
11 including additional reasonable expenses for temporary
12 shelter and restaurant meals.
13 (i) Losses affecting family needs. If a party
14 is entitled to seek maintenance, child support or
15 property distribution from the other party under the
16 Illinois Marriage and Dissolution of Marriage Act,
17 as now or hereafter amended, the court may order
18 respondent to reimburse petitioner's actual losses,
19 to 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,
24 the court may order respondent to pay the reasonable
25 expenses incurred or to be incurred in the search
26 for and recovery of the minor child, including but
27 not limited to legal fees, court costs, private
28 investigator fees, and travel costs.
29 (14) Prohibition of entry. Prohibit the respondent
30 from entering or remaining in the residence or household
31 while the respondent is under the influence of alcohol or
32 drugs and constitutes a threat to the safety and
33 well-being of the petitioner or the petitioner's
34 children.
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1 (14.5) Prohibition of firearm possession. (a) When
2 a complaint is made under a request for an order of
3 protection, that the respondent has threatened or is
4 likely to use firearms illegally against the petitioner,
5 and the respondent is present in court, or has failed to
6 appear after receiving actual notice, the court shall
7 examine on oath the petitioner, and any witnesses who may
8 be produced. If the court is satisfied that there is any
9 danger of the illegal use of firearms, it shall issue an
10 order that any firearms in the possession of the
11 respondent, except as provided in subsection (b), be
12 turned over to the local law enforcement agency for
13 safekeeping. If the respondent has failed to appear, the
14 court shall issue a warrant for seizure of any firearm in
15 the possession of the respondent. The period of
16 safekeeping shall be for a stated period of time not to
17 exceed 2 years. The firearm or firearms shall be
18 returned to the respondent at the end of the stated
19 period or at expiration of the order of protection,
20 whichever is sooner. (b) If the respondent is a
21 peace officer as defined in Section 2-13 of the Criminal
22 Code of 1961, the court shall order that any firearms
23 used by the respondent in the performance of his or her
24 duties as a peace officer be surrendered to the chief law
25 enforcement executive of the agency in which the
26 respondent is employed, who shall retain the firearms for
27 safekeeping for the stated period not to exceed 2 years
28 as set forth in the court order.
29 (15) Prohibition of access to records. If an order
30 of protection prohibits respondent from having contact
31 with the minor child, or if petitioner's address is
32 omitted under subsection (b) of Section 203, or if
33 necessary to prevent abuse or wrongful removal or
34 concealment of a minor child, the order shall deny
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1 respondent access to, and prohibit respondent from
2 inspecting, obtaining, or attempting to inspect or
3 obtain, school or any other records of the minor child
4 who is in the care of petitioner.
5 (16) Order for payment of shelter services. Order
6 respondent to reimburse a shelter providing temporary
7 housing and counseling services to the petitioner for the
8 cost of the services, as certified by the shelter and
9 deemed reasonable by the court.
10 (17) Order for injunctive relief. Enter injunctive
11 relief necessary or appropriate to prevent further abuse
12 of a family or household member or further abuse,
13 neglect, or exploitation of a high-risk adult with
14 disabilities or to effectuate one of the granted
15 remedies, if supported by the balance of hardships. If
16 the harm to be prevented by the injunction is abuse or
17 any other harm that one of the remedies listed in
18 paragraphs (1) through (16) of this subsection is
19 designed to prevent, no further evidence is necessary
20 that the harm is an irreparable injury.
21 (c) Relevant factors; findings.
22 (1) In determining whether to grant a specific
23 remedy, other than payment of support, the court shall
24 consider relevant factors, including but not limited to
25 the following:
26 (i) the nature, frequency, severity, pattern
27 and consequences of the respondent's past abuse,
28 neglect or exploitation of the petitioner or any
29 family or household member, including the
30 concealment of his or her location in order to evade
31 service of process or notice, and the likelihood of
32 danger of future abuse, neglect, or exploitation to
33 petitioner or any member of petitioner's or
34 respondent's family or household; and
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1 (ii) the danger that any minor child will be
2 abused or neglected or improperly removed from the
3 jurisdiction, improperly concealed within the State
4 or improperly separated from the child's primary
5 caretaker.
6 (2) In comparing relative hardships resulting to
7 the parties from loss of possession of the family home,
8 the court shall consider relevant factors, including but
9 not limited to the following:
10 (i) availability, accessibility, cost, safety,
11 adequacy, location and other characteristics of
12 alternate housing for each party and any minor child
13 or dependent adult in the party's care;
14 (ii) the effect on the party's employment; and
15 (iii) the effect on the relationship of the
16 party, and any minor child or dependent adult in the
17 party's care, to family, school, church and
18 community.
19 (3) Subject to the exceptions set forth in
20 paragraph (4) of this subsection, the court shall make
21 its findings in an official record or in writing, and
22 shall at a minimum set forth the following:
23 (i) That the court has considered the
24 applicable relevant factors described in paragraphs
25 (1) and (2) of this subsection.
26 (ii) Whether the conduct or actions of
27 respondent, unless prohibited, will likely cause
28 irreparable harm or continued abuse.
29 (iii) Whether it is necessary to grant the
30 requested relief in order to protect petitioner or
31 other alleged abused persons.
32 (4) For purposes of issuing an ex parte emergency
33 order of protection, the court, as an alternative to or
34 as a supplement to making the findings described in
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1 paragraphs (c)(3)(i) through (c)(3)(iii) of this
2 subsection, may use the following procedure:
3 When a verified petition for an emergency order of
4 protection in accordance with the requirements of
5 Sections 203 and 217 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
8 court if it appears from the contents of the petition and
9 the 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
12 emergency order of protection.
13 (5) Never married parties. No rights or
14 responsibilities for a minor child born outside of
15 marriage attach to a putative father until a father and
16 child relationship has been established under the
17 Illinois Parentage Act of 1984, the Illinois Public Aid
18 Code, Section 12 of the Vital Records Act, the Juvenile
19 Court Act of 1987, the Probate Act of 1985, the Revised
20 Uniform Reciprocal Enforcement of Support Act, the
21 Uniform Interstate Family Support Act, the Expedited
22 Child Support Act of 1990, any judicial, administrative,
23 or other act of another state or territory, any other
24 Illinois statute, or by any foreign nation establishing
25 the father and child relationship, any other proceeding
26 substantially in conformity with the Personal
27 Responsibility and Work Opportunity Reconciliation Act of
28 1996 (Pub. L. 104-193), or where both parties appeared in
29 open court or at an administrative hearing acknowledging
30 under oath or admitting by affirmation the existence of
31 a father and child relationship. Absent such an
32 adjudication, finding, or acknowledgement, no putative
33 father shall be granted temporary custody of the minor
34 child, visitation with the minor child, or physical care
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1 and possession of the minor child, nor shall an order of
2 payment for support of the minor child be entered.
3 (d) Balance of hardships; findings. If the court finds
4 that the balance of hardships does not support the granting
5 of a remedy governed by paragraph (2), (3), (10), (11), or
6 (16) of subsection (b) of this Section, which may require
7 such balancing, the court's findings shall so indicate and
8 shall include a finding as to whether granting the remedy
9 will result in hardship to respondent that would
10 substantially outweigh the hardship to petitioner from denial
11 of the remedy. The findings shall be an official record or in
12 writing.
13 (e) Denial of remedies. Denial of any remedy shall not
14 be based, in whole or in part, on evidence that:
15 (1) Respondent has cause for any use of force,
16 unless that cause satisfies the standards for justifiable
17 use of force provided by Article VII of the Criminal Code
18 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,
22 such force was justifiable under Article VII of the
23 Criminal Code of 1961;
24 (4) Petitioner did not act in self-defense or
25 defense of another;
26 (5) Petitioner left the residence or household to
27 avoid further abuse, neglect, or exploitation by
28 respondent;
29 (6) Petitioner did not leave the residence or
30 household to avoid further abuse, neglect, or
31 exploitation by respondent;
32 (7) Conduct by any family or household member
33 excused the abuse, neglect, or exploitation by
34 respondent, unless that same conduct would have excused
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1 such abuse, neglect, or exploitation if the parties had
2 not been family or household members.
3 (Source: P.A. 88-45; 89-367, eff. 1-1-96.)