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90_HB1613eng
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
HB1613 Engrossed LRB9003936SMdv
1 AN ACT in relation to domestic violence.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 2. The Criminal Code of 1961 is amended by
5 adding Section 12-6.3 as follows:
6 (720 ILCS 5/12-6.3 new)
7 Sec. 12-6.3. Interfering with the reporting of domestic
8 violence.
9 (a) A person commits the offense of interfering with the
10 reporting of domestic violence when, after having committed
11 an act of domestic violence, he or she prevents or attempts
12 to prevent the victim of or a witness to the act of domestic
13 violence from calling a 9-1-1 emergency telephone system,
14 obtaining medical assistance, or making a report to any law
15 enforcement official.
16 (b) For the purposes of this Section, the following
17 terms shall have the indicated meanings:
18 (1) "Domestic violence" shall have the meaning
19 ascribed to it in Section 112A-3 of the Code of Criminal
20 Procedure of 1963.
21 (2) "Family or household members" shall have the
22 meaning ascribed to it in Section 112A-3 of the Code of
23 Criminal Procedure of 1963.
24 (c) Sentence. Interfering with the reporting of
25 domestic violence is a Class A misdemeanor.
26 Section 5. The Illinois Domestic Violence Act of 1986 is
27 amended by changing Section 214 as follows:
28 (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
29 Sec. 214. Order of protection; remedies.
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1 (a) Issuance of order. If the court finds that
2 petitioner has been abused by a family or household member or
3 that petitioner is a high-risk adult who has been abused,
4 neglected, or exploited, as defined in this Act, an order of
5 protection prohibiting the abuse, neglect, or exploitation
6 shall issue; provided that petitioner must also satisfy the
7 requirements of one of the following Sections, as
8 appropriate: Section 217 on emergency orders, Section 218 on
9 interim orders, or Section 219 on plenary orders. Petitioner
10 shall not be denied an order of protection because petitioner
11 or respondent is a minor. The court, when determining whether
12 or not to issue an order of protection, shall not require
13 physical manifestations of abuse on the person of the victim.
14 Modification and extension of prior orders of protection
15 shall be in accordance with this Act.
16 (b) Remedies and standards. The remedies to be included
17 in an order of protection shall be determined in accordance
18 with this Section and one of the following Sections, as
19 appropriate: Section 217 on emergency orders, Section 218 on
20 interim orders, and Section 219 on plenary orders. The
21 remedies listed in this subsection shall be in addition to
22 other civil or criminal remedies available to petitioner.
23 (1) Prohibition of abuse, neglect, or exploitation.
24 Prohibit respondent's harassment, interference with
25 personal liberty, intimidation of a dependent, physical
26 abuse, or willful deprivation, neglect or exploitation,
27 as defined in this Act, or stalking of the petitioner, as
28 defined in Section 12-7.3 of the Criminal Code of 1961,
29 if such abuse, neglect, exploitation, or stalking has
30 occurred or otherwise appears likely to occur if not
31 prohibited.
32 (2) Grant of exclusive possession of residence.
33 Prohibit respondent from entering or remaining in any
34 residence or household of the petitioner, including one
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1 owned or leased by respondent, if petitioner has a right
2 to occupancy thereof. The grant of exclusive possession
3 of the residence shall not affect title to real property,
4 nor shall the court be limited by the standard set forth
5 in Section 701 of the Illinois Marriage and Dissolution
6 of Marriage Act.
7 (A) Right to occupancy. A party has a right
8 to occupancy of a residence or household if it is
9 solely or jointly owned or leased by that party,
10 that party's spouse, a person with a legal duty to
11 support that party or a minor child in that party's
12 care, or by any person or entity other than the
13 opposing party that authorizes that party's
14 occupancy (e.g., a domestic violence shelter).
15 Standards set forth in subparagraph (B) shall not
16 preclude equitable relief.
17 (B) Presumption of hardships. If petitioner
18 and respondent each has the right to occupancy of a
19 residence or household, the court shall balance (i)
20 the hardships to respondent and any minor child or
21 dependent adult in respondent's care resulting from
22 entry of this remedy with (ii) the hardships to
23 petitioner and any minor child or dependent adult in
24 petitioner's care resulting from continued exposure
25 to the risk of abuse (should petitioner remain at
26 the residence or household) or from loss of
27 possession of the residence or household (should
28 petitioner leave to avoid the risk of abuse). When
29 determining the balance of hardships, the court
30 shall also take into account the accessibility of
31 the residence or household. Hardships need not be
32 balanced if respondent does not have a right to
33 occupancy.
34 The balance of hardships is presumed to favor
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1 possession by petitioner unless the presumption is
2 rebutted by a preponderance of the evidence, showing
3 that the hardships to respondent substantially
4 outweigh the hardships to petitioner and any minor
5 child or dependent adult in petitioner's care. The
6 court, on the request of petitioner or on its own
7 motion, may order respondent to provide suitable,
8 accessible, alternate housing for petitioner instead
9 of excluding respondent from a mutual residence or
10 household.
11 (3) Stay away order and additional prohibitions.
12 Order respondent to stay away from petitioner or any
13 other person protected by the order of protection, or
14 prohibit respondent from entering or remaining present at
15 petitioner's school, place of employment, or other
16 specified places at times when petitioner is present, or
17 both, if reasonable, given the balance of hardships.
18 Hardships need not be balanced for the court to enter a
19 stay away order or prohibit entry if respondent has no
20 right to enter the premises.
21 If an order of protection grants petitioner
22 exclusive possession of the residence, or prohibits
23 respondent from entering the residence, or orders
24 respondent to stay away from petitioner or other
25 protected persons, then the court may allow respondent
26 access to the residence to remove items of clothing and
27 personal adornment used exclusively by respondent,
28 medications, and other items as the court directs. The
29 right to access shall be exercised on only one occasion
30 as the court directs and in the presence of an
31 agreed-upon adult third party or law enforcement officer.
32 (4) Counseling. Require or recommend the
33 respondent to undergo counseling for a specified duration
34 with a social worker, psychologist, clinical
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1 psychologist, psychiatrist, family service agency,
2 alcohol or substance abuse program, mental health center
3 guidance counselor, agency providing services to elders,
4 program designed for domestic violence abusers or any
5 other guidance service the court deems appropriate.
6 (5) Physical care and possession of the minor
7 child. In order to protect the minor child from abuse,
8 neglect, or unwarranted separation from the person who
9 has been the minor child's primary caretaker, or to
10 otherwise protect the well-being of the minor child, the
11 court may do either or both of the following: (i) grant
12 petitioner physical care or possession of the minor
13 child, or both, or (ii) order respondent to return a
14 minor child to, or not remove a minor child from, the
15 physical care of a parent or person in loco parentis.
16 If a court finds, after a hearing, that respondent
17 has committed abuse (as defined in Section 103) of a
18 minor 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,
23 the Illinois Marriage and Dissolution of Marriage Act,
24 the Illinois Parentage Act of 1984, and this State's
25 Uniform Child Custody Jurisdiction Act.
26 If a court finds, after a hearing, that respondent
27 has committed abuse (as defined in Section 103) of a
28 minor child, there shall be a rebuttable presumption that
29 awarding temporary legal custody to respondent would not
30 be in the child's best interest.
31 (7) Visitation. Determine the visitation rights,
32 if any, of respondent in any case in which the court
33 awards physical care or temporary legal custody of a
34 minor child to petitioner. The court shall restrict or
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1 deny respondent's visitation with a minor child if the
2 court finds that respondent has done or is likely to do
3 any of the following: (i) abuse or endanger the minor
4 child during visitation; (ii) use the visitation as an
5 opportunity to abuse or harass petitioner or petitioner's
6 family or household members; (iii) improperly conceal or
7 detain the minor child; or (iv) otherwise act in a manner
8 that is not in the best interests of the minor child.
9 The court shall not be limited by the standards set forth
10 in Section 607.1 of the Illinois Marriage and Dissolution
11 of Marriage Act. If the court grants visitation, the
12 order shall specify dates and times for the visitation to
13 take place or other specific parameters or conditions
14 that are appropriate. No order for visitation shall
15 refer merely to the term "reasonable visitation".
16 Petitioner may deny respondent access to the minor
17 child if, when respondent arrives for visitation,
18 respondent is under the influence of drugs or alcohol and
19 constitutes a threat to the safety and well-being of
20 petitioner or petitioner's minor children or is behaving
21 in a violent or abusive manner.
22 If necessary to protect any member of petitioner's
23 family or household from future abuse, respondent shall
24 be prohibited from coming to petitioner's residence to
25 meet the minor child for visitation, and the parties
26 shall submit to the court their recommendations for
27 reasonable alternative arrangements for visitation. A
28 person may be approved to supervise visitation only after
29 filing an affidavit accepting that responsibility and
30 acknowledging accountability to the court.
31 (8) Removal or concealment of minor child. Prohibit
32 respondent from removing a minor child from the State or
33 concealing the child within the State.
34 (9) Order to appear. Order the respondent to
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1 appear in court, alone or with a minor child, to prevent
2 abuse, neglect, removal or concealment of the child, to
3 return the child to the custody or care of the petitioner
4 or to permit any court-ordered interview or examination
5 of the child or the respondent.
6 (10) Possession of personal property. Grant
7 petitioner exclusive possession of personal property and,
8 if respondent has possession or control, direct
9 respondent to promptly make it available to petitioner,
10 if:
11 (i) petitioner, but not respondent, owns the
12 property; or
13 (ii) the parties own the property jointly;
14 sharing it would risk abuse of petitioner by
15 respondent or is impracticable; and the balance of
16 hardships favors temporary possession by petitioner.
17 If petitioner's sole claim to ownership of the
18 property is that it is marital property, the court may
19 award petitioner temporary possession thereof under the
20 standards of subparagraph (ii) of this paragraph only if
21 a proper proceeding has been filed under the Illinois
22 Marriage and Dissolution of Marriage Act, as now or
23 hereafter amended.
24 No order under this provision shall affect title to
25 property.
26 (11) Protection of property. Forbid the respondent
27 from taking, transferring, encumbering, concealing,
28 damaging or otherwise disposing of any real or personal
29 property, except as explicitly authorized by the court,
30 if:
31 (i) petitioner, but not respondent, owns the
32 property; or
33 (ii) the parties own the property jointly, and
34 the balance of hardships favors granting this
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1 remedy.
2 If petitioner's sole claim to ownership of the
3 property is that it is marital property, the court may
4 grant petitioner relief under subparagraph (ii) of this
5 paragraph only if a proper proceeding has been filed
6 under the Illinois Marriage and Dissolution of Marriage
7 Act, as now or hereafter amended.
8 The court may further prohibit respondent from
9 improperly using the financial or other resources of an
10 aged member of the family or household for the profit or
11 advantage of respondent or of any other person.
12 (12) Order for payment of support. Order
13 respondent to pay temporary support for the petitioner or
14 any child in the petitioner's care or custody, when the
15 respondent has a legal obligation to support that person,
16 in accordance with the Illinois Marriage and Dissolution
17 of Marriage Act, which shall govern, among other matters,
18 the amount of support, payment through the clerk and
19 withholding of income to secure payment. An order for
20 child support may be granted to a petitioner with lawful
21 physical care or custody of a child, or an order or
22 agreement for physical care or custody, prior to entry of
23 an order for legal custody. Such a support order shall
24 expire upon entry of a valid order granting legal custody
25 to another, unless otherwise provided in the custody
26 order.
27 (13) Order for payment of losses. Order respondent
28 to pay petitioner for losses suffered as a direct result
29 of the abuse, neglect, or exploitation. Such losses
30 shall include, but not be limited to, medical expenses,
31 lost earnings or other support, repair or replacement of
32 property damaged or taken, reasonable attorney's fees,
33 court costs and moving or other travel expenses,
34 including additional reasonable expenses for temporary
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1 shelter and restaurant meals.
2 (i) Losses affecting family needs. If a party
3 is entitled to seek maintenance, child support or
4 property distribution from the other party under the
5 Illinois Marriage and Dissolution of Marriage Act,
6 as now or hereafter amended, the court may order
7 respondent to reimburse petitioner's actual losses,
8 to the extent that such reimbursement would be
9 "appropriate temporary relief", as authorized by
10 subsection (a)(3) of Section 501 of that Act.
11 (ii) Recovery of expenses. In the case of an
12 improper concealment or removal of a minor child,
13 the court may order respondent to pay the reasonable
14 expenses incurred or to be incurred in the search
15 for and recovery of the minor child, including but
16 not limited to legal fees, court costs, private
17 investigator fees, and travel costs.
18 (14) Prohibition of entry. Prohibit the respondent
19 from entering or remaining in the residence or household
20 while the respondent is under the influence of alcohol or
21 drugs and constitutes a threat to the safety and
22 well-being of the petitioner or the petitioner's
23 children.
24 (14.5) Prohibition of firearm possession. (a) When
25 a complaint is made under a request for an order of
26 protection, that the respondent has threatened or is
27 likely to use firearms illegally against the petitioner,
28 and the respondent is present in court, or has failed to
29 appear after receiving actual notice, the court shall
30 examine on oath the petitioner, and any witnesses who may
31 be produced. If the court is satisfied that there is any
32 danger of the illegal use of firearms, it shall issue an
33 order that any firearms in the possession of the
34 respondent, except as provided in subsection (b), be
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1 turned over to the local law enforcement agency for
2 safekeeping. If the respondent has failed to appear, the
3 court shall issue a warrant for seizure of any firearm in
4 the possession of the respondent. The period of
5 safekeeping shall be for a stated period of time not to
6 exceed 2 years. The firearm or firearms shall be
7 returned to the respondent at the end of the stated
8 period or at expiration of the order of protection,
9 whichever is sooner. (b) If the respondent is a
10 peace officer as defined in Section 2-13 of the Criminal
11 Code of 1961, the court shall order that any firearms
12 used by the respondent in the performance of his or her
13 duties as a peace officer be surrendered to the chief law
14 enforcement executive of the agency in which the
15 respondent is employed, who shall retain the firearms for
16 safekeeping for the stated period not to exceed 2 years
17 as set forth in the court order.
18 (15) Prohibition of access to records. If an order
19 of protection prohibits respondent from having contact
20 with the minor child, or if petitioner's address is
21 omitted under subsection (b) of Section 203, or if
22 necessary to prevent abuse or wrongful removal or
23 concealment of a minor child, the order shall deny
24 respondent access to, and prohibit respondent from
25 inspecting, obtaining, or attempting to inspect or
26 obtain, school or any other records of the minor child
27 who is in the care of petitioner.
28 (16) Order for payment of shelter services. Order
29 respondent to reimburse a shelter providing temporary
30 housing and counseling services to the petitioner for the
31 cost of the services, as certified by the shelter and
32 deemed reasonable by the court.
33 (17) Order for injunctive relief. Enter injunctive
34 relief necessary or appropriate to prevent further abuse
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1 of a family or household member or further abuse,
2 neglect, or exploitation of a high-risk adult with
3 disabilities or to effectuate one of the granted
4 remedies, if supported by the balance of hardships. If
5 the harm to be prevented by the injunction is abuse or
6 any other harm that one of the remedies listed in
7 paragraphs (1) through (16) of this subsection is
8 designed to prevent, no further evidence is necessary
9 that the harm is an irreparable injury.
10 (c) Relevant factors; findings.
11 (1) In determining whether to grant a specific
12 remedy, other than payment of support, the court shall
13 consider relevant factors, including but not limited to
14 the following:
15 (i) the nature, frequency, severity, pattern
16 and consequences of the respondent's past abuse,
17 neglect or exploitation of the petitioner or any
18 family or household member, including the
19 concealment of his or her location in order to evade
20 service of process or notice, and the likelihood of
21 danger of future abuse, neglect, or exploitation to
22 petitioner or any member of petitioner's or
23 respondent's family or household; and
24 (ii) the danger that any minor child will be
25 abused or neglected or improperly removed from the
26 jurisdiction, improperly concealed within the State
27 or improperly separated from the child's primary
28 caretaker.
29 (2) In comparing relative hardships resulting to
30 the parties from loss of possession of the family home,
31 the court shall consider relevant factors, including but
32 not limited to the following:
33 (i) availability, accessibility, cost, safety,
34 adequacy, location and other characteristics of
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1 alternate housing for each party and any minor child
2 or dependent adult in the party's care;
3 (ii) the effect on the party's employment; and
4 (iii) the effect on the relationship of the
5 party, and any minor child or dependent adult in the
6 party's care, to family, school, church and
7 community.
8 (3) Subject to the exceptions set forth in
9 paragraph (4) of this subsection, the court shall make
10 its findings in an official record or in writing, and
11 shall at a minimum set forth the following:
12 (i) That the court has considered the
13 applicable relevant factors described in paragraphs
14 (1) and (2) of this subsection.
15 (ii) Whether the conduct or actions of
16 respondent, unless prohibited, will likely cause
17 irreparable harm or continued abuse.
18 (iii) Whether it is necessary to grant the
19 requested relief in order to protect petitioner or
20 other alleged abused persons.
21 (4) For purposes of issuing an ex parte emergency
22 order of protection, the court, as an alternative to or
23 as a supplement to making the findings described in
24 paragraphs (c)(3)(i) through (c)(3)(iii) of this
25 subsection, may use the following procedure:
26 When a verified petition for an emergency order of
27 protection in accordance with the requirements of
28 Sections 203 and 217 is presented to the court, the court
29 shall examine petitioner on oath or affirmation. An
30 emergency order of protection shall be issued by the
31 court if it appears from the contents of the petition and
32 the examination of petitioner that the averments are
33 sufficient to indicate abuse by respondent and to support
34 the granting of relief under the issuance of the
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1 emergency order of protection.
2 (5) Never married parties. No rights or
3 responsibilities for a minor child born outside of
4 marriage attach to a putative father until a father and
5 child relationship has been established under the
6 Illinois Parentage Act of 1984, the Illinois Public Aid
7 Code, Section 12 of the Vital Records Act, the Juvenile
8 Court Act of 1987, the Probate Act of 1985, the Revised
9 Uniform Reciprocal Enforcement of Support Act, the
10 Uniform Interstate Family Support Act, the Expedited
11 Child Support Act of 1990, any judicial, administrative,
12 or other act of another state or territory, any other
13 Illinois statute, or by any foreign nation establishing
14 the father and child relationship, any other proceeding
15 substantially in conformity with the Personal
16 Responsibility and Work Opportunity Reconciliation Act of
17 1996 (Pub. L. 104-193), or where both parties appeared in
18 open court or at an administrative hearing acknowledging
19 under oath or admitting by affirmation the existence of
20 a father and child relationship. Absent such an
21 adjudication, finding, or acknowledgement, no putative
22 father shall be granted temporary custody of the minor
23 child, visitation with the minor child, or physical care
24 and possession of the minor child, nor shall an order of
25 payment for support of the minor child be entered.
26 (d) Balance of hardships; findings. If the court finds
27 that the balance of hardships does not support the granting
28 of a remedy governed by paragraph (2), (3), (10), (11), or
29 (16) of subsection (b) of this Section, which may require
30 such balancing, the court's findings shall so indicate and
31 shall include a finding as to whether granting the remedy
32 will result in hardship to respondent that would
33 substantially outweigh the hardship to petitioner from denial
34 of the remedy. The findings shall be an official record or in
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1 writing.
2 (e) Denial of remedies. Denial of any remedy shall not
3 be based, in whole or in part, on evidence that:
4 (1) Respondent has cause for any use of force,
5 unless that cause satisfies the standards for justifiable
6 use of force provided by Article VII of the Criminal Code
7 of 1961;
8 (2) Respondent was voluntarily intoxicated;
9 (3) Petitioner acted in self-defense or defense of
10 another, provided that, if petitioner utilized force,
11 such force was justifiable under Article VII of the
12 Criminal Code of 1961;
13 (4) Petitioner did not act in self-defense or
14 defense of another;
15 (5) Petitioner left the residence or household to
16 avoid further abuse, neglect, or exploitation by
17 respondent;
18 (6) Petitioner did not leave the residence or
19 household to avoid further abuse, neglect, or
20 exploitation by respondent;
21 (7) Conduct by any family or household member
22 excused the abuse, neglect, or exploitation by
23 respondent, unless that same conduct would have excused
24 such abuse, neglect, or exploitation if the parties had
25 not been family or household members.
26 (Source: P.A. 88-45; 89-367, eff. 1-1-96.)