Public Act 90-0392 of the 90th General Assembly
Public Act 90-0392
HB1589 Enrolled LRB9004567SMdv
AN ACT in relation to emergency orders of protection,
amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Code of Criminal Procedure of 1963 is
amended by changing Sections 112A-17, 112A-22, and 112A-28 as
follows:
(725 ILCS 5/112A-17) (from Ch. 38, par. 112A-17)
Sec. 112A-17. Emergency order of protection.
(a) Prerequisites. An emergency order of protection
shall issue if petitioner satisfies the requirements of this
subsection for one or more of the requested remedies. For
each remedy requested, petitioner shall establish that:
(1) The court has jurisdiction under Section
112A-9;
(2) The requirements of Section 112A-14 are
satisfied; and
(3) There is good cause to grant the remedy,
regardless of prior service of process or of notice upon
the respondent, because:
(i) For the remedies of "prohibition of abuse"
described in Section 112A-14(b)(1), "stay away order
and additional prohibitions" described in Section
112A-14(b)(3), "removal or concealment of minor
child" described in Section 112A-14(b)(8), "order to
appear" described in Section 112A-14(b)(9),
"physical care and possession of the minor child"
described in Section 112A-14(b)(5), "protection of
property" described in Section 112A-14(b)(11),
"prohibition of entry" described in Section
112A-14(b)(14), "prohibition of access to records"
described in Section 112A-14(b)(15), and "injunctive
relief" described in Section 112A-14(b)(16), the
harm which that remedy is intended to prevent would
be likely to occur if the respondent were given any
prior notice, or greater notice than was actually
given, of the petitioner's efforts to obtain
judicial relief;
(ii) For the remedy of "grant of exclusive
possession of residence" described in Section
112A-14(b)(2), the immediate danger of further abuse
of petitioner by respondent, if petitioner chooses
or had chosen to remain in the residence or
household while respondent was given any prior
notice or greater notice than was actually given of
petitioner's efforts to obtain judicial relief,
outweighs the hardships to respondent of an
emergency order granting petitioner exclusive
possession of the residence or household. This
remedy shall not be denied because petitioner has or
could obtain temporary shelter elsewhere while prior
notice is given to respondent, unless the hardships
to respondent from exclusion from the home
substantially outweigh those to petitioner.
(iii) For the remedy of "possession of
personal property" described in Section
112A-14(b)(10), improper disposition of the personal
property would be likely to occur if respondent were
given any prior notice, or greater notice than was
actually given, of petitioner's efforts to obtain
judicial relief, or petitioner has an immediate and
pressing need for possession of that property.
An emergency order may not include the counseling, legal
custody, payment of support or monetary compensation
remedies.
(b) Appearance by respondent. If respondent appears in
court for this hearing for an emergency order, he or she may
elect to file a general appearance and testify. Any
resulting order may be an emergency order, governed by this
Section. Notwithstanding the requirements of this Section,
if all requirements of Section 112A-18 have been met, the
Court may issue a 30-day interim order.
(c) Emergency orders: court holidays and evenings.
(1) Prerequisites. When the court is unavailable
at the close of business, the petitioner may file a
petition for a 21-day emergency order before any
available circuit judge or associate judge who may grant
relief under this Article. If the judge finds that there
is an immediate and present danger of abuse to petitioner
and that petitioner has satisfied the prerequisites set
forth in subsection (a) of Section 112A-17, that judge
may issue an emergency order of protection.
(1.5) Issuance of order. The chief judge of the
circuit court may designate for each county in the
circuit at least one judge to be reasonably available to
issue orally, by telephone, by facsimile, or otherwise,
an emergency order of protection at all times, whether or
not the court is in session.
(2) Certification and transfer. Any order issued
under this Section and any documentation in support
thereof shall be certified on the next court day to the
appropriate court. The clerk of that court shall
immediately assign a case number, file the petition,
order and other documents with the court and enter the
order of record and file it with the sheriff for service,
in accordance with Section 112A-22. Filing the petition
shall commence proceedings for further relief, under
Section 112A-2. Failure to comply with the requirements
of this subsection shall not affect the validity of the
order.
(Source: P.A. 87-1186.)
(725 ILCS 5/112A-22) (from Ch. 38, par. 112A-22)
Sec. 112A-22. Notice of orders.
(a) Entry and issuance. Upon issuance of any order of
protection, the clerk shall immediately, or on the next court
day if an emergency order is issued in accordance with
subsection (c) of Section 112A-17, (i) enter the order on the
record and file it in accordance with the circuit court
procedures and (ii) provide a file stamped copy of the order
to respondent, if present, and to petitioner.
(b) Filing with sheriff. The clerk of the issuing judge
shall, or the petitioner may, on the same day that an order
of protection is issued, file a copy of that order with the
sheriff or other law enforcement officials charged with
maintaining Department of State Police records or charged
with serving the order upon respondent. If the order was
issued in accordance with subsection (c) of Section 112A-17,
the clerk shall on the next court day, file a certified copy
of the order with the Sheriff or other law enforcement
officials charged with maintaining Department of State Police
records.
(c) Service by sheriff. Unless respondent was present
in court when the order was issued, the sheriff, other law
enforcement official or special process server shall promptly
serve that order upon respondent and file proof of such
service, in the manner provided for service of process in
civil proceedings. If process has not yet been served upon
the respondent, it shall be served with the order.
(c-5) If the person against whom the order of protection
is issued is arrested and the written order is issued in
accordance with subsection (c) of Section 112A-17 and
received by the custodial law enforcement agency before the
respondent or arrestee is released from custody, the
custodial law enforcement agent shall promptly serve the
order upon the respondent or arrestee before the respondent
or arrestee is released from custody. In no event shall
detention of the respondent or arrestee be extended for
hearing on the petition for order of protection or receipt of
the order issued under Section 112A-17 of this Code.
(d) Extensions, modifications and revocations. Any
order extending, modifying or revoking any order of
protection shall be promptly recorded, issued and served as
provided in this Section.
(Source: P.A. 87-1186.)
(725 ILCS 5/112A-28) (from Ch. 38, par. 112A-28)
Sec. 112A-28. Data maintenance by law enforcement
agencies.
(a) All sheriffs shall furnish to the Department of
State Police, daily, in the form and detail the Department
requires, copies of any recorded orders of protection issued
by the court and transmitted to the sheriff by the clerk of
the court pursuant to subsection (b) of Section 112A-22 of
this Act. Each order of protection shall be entered in the
Law Enforcement Automated Data System on the same day it is
issued by the court. If an emergency order of protection was
issued in accordance with subsection (c) of Section 112A-17,
the order shall be entered in the Law Enforcement Automated
Data System as soon as possible after receipt from the clerk.
(b) The Department of State Police shall maintain a
complete and systematic record and index of all valid and
recorded orders of protection issued pursuant to this Act.
The data shall be used to inform all dispatchers and law
enforcement officers at the scene of an alleged incident of
abuse or violation of an order of protection of any recorded
prior incident of abuse involving the abused party and the
effective dates and terms of any recorded order of
protection.
(c) The data, records and transmittals required under
this Section shall pertain to any valid emergency, interim or
plenary order of protection, whether issued in a civil or
criminal proceeding.
(Source: P.A. 87-1186.)
Section 10. The Illinois Domestic Violence Act of 1986
is amended by changing Sections 217, 222, and 302 as follows:
(750 ILCS 60/217) (from Ch. 40, par. 2312-17)
Sec. 217. Emergency order of protection.
(a) Prerequisites. An emergency order of protection
shall issue if petitioner satisfies the requirements of this
subsection for one or more of the requested remedies. For
each remedy requested, petitioner shall establish that:
(1) The court has jurisdiction under Section 208;
(2) The requirements of Section 214 are satisfied;
and
(3) There is good cause to grant the remedy,
regardless of prior service of process or of notice upon
the respondent, because:
(i) For the remedies of "prohibition of
abuse" described in Section 214(b)(1), "stay away
order and additional prohibitions" described in
Section 214(b)(3), "removal or concealment of minor
child" described in Section 214(b)(8), "order to
appear" described in Section 214(b)(9), "physical
care and possession of the minor child" described in
Section 214(b)(5), "protection of property"
described in Section 214(b)(11), "prohibition of
entry" described in Section 214(b)(14), "prohibition
of access to records" described in Section
214(b)(15), and "injunctive relief" described in
Section 214(b)(16), the harm which that remedy is
intended to prevent would be likely to occur if the
respondent were given any prior notice, or greater
notice than was actually given, of the petitioner's
efforts to obtain judicial relief;
(ii) For the remedy of "grant of exclusive
possession of residence" described in Section
214(b)(2), the immediate danger of further abuse of
petitioner by respondent, if petitioner chooses or
had chosen to remain in the residence or household
while respondent was given any prior notice or
greater notice than was actually given of
petitioner's efforts to obtain judicial relief,
outweighs the hardships to respondent of an
emergency order granting petitioner exclusive
possession of the residence or household. This
remedy shall not be denied because petitioner has or
could obtain temporary shelter elsewhere while prior
notice is given to respondent, unless the hardships
to respondent from exclusion from the home
substantially outweigh those to petitioner;
(iii) For the remedy of "possession of
personal property" described in Section 214(b)(10),
improper disposition of the personal property would
be likely to occur if respondent were given any
prior notice, or greater notice than was actually
given, of petitioner's efforts to obtain judicial
relief, or petitioner has an immediate and pressing
need for possession of that property.
An emergency order may not include the counseling, legal
custody, payment of support or monetary compensation
remedies.
(b) Appearance by respondent. If respondent appears in
court for this hearing for an emergency order, he or she may
elect to file a general appearance and testify. Any resulting
order may be an emergency order, governed by this Section.
Notwithstanding the requirements of this Section, if all
requirements of Section 218 have been met, the court may
issue a 30-day interim order.
(c) Emergency orders: court holidays and evenings.
(1) Prerequisites. When the court is unavailable
at the close of business, the petitioner may file a
petition for a 21-day emergency order before any
available circuit judge or associate judge who may grant
relief under this Act. If the judge finds that there is
an immediate and present danger of abuse to petitioner
and that petitioner has satisfied the prerequisites set
forth in subsection (a) of Section 217, that judge may
issue an emergency order of protection.
(1.5) Issuance of order. The chief judge of the
circuit court may designate for each county in the
circuit at least one judge to be reasonably available to
issue orally, by telephone, by facsimile, or otherwise,
an emergency order of protection at all times, whether or
not the court is in session.
(2) Certification and transfer. Any order issued
under this Section and any documentation in support
thereof shall be certified on the next court day to the
appropriate court. The clerk of that court shall
immediately assign a case number, file the petition,
order and other documents with the court, and enter the
order of record and file it with the sheriff for service,
in accordance with Section 222. Filing the petition
shall commence proceedings for further relief under
Section 202. Failure to comply with the requirements of
this subsection shall not affect the validity of the
order.
(Source: P.A. 86-966; 87-1186.)
(750 ILCS 60/222) (from Ch. 40, par. 2312-22)
Sec. 222. Notice of orders.
(a) Entry and issuance. Upon issuance of any order of
protection, the clerk shall immediately, or on the next court
day if an emergency order is issued in accordance with
subsection (c) of Section 217, (i) enter the order on the
record and file it in accordance with the circuit court
procedures and (ii) provide a file stamped copy of the order
to respondent, if present, and to petitioner.
(b) Filing with sheriff. The clerk of the issuing judge
shall, or the petitioner may, on the same day that an order
of protection is issued, file a certified copy of that order
with the sheriff or other law enforcement officials charged
with maintaining Department of State Police records or
charged with serving the order upon respondent. If the order
was issued in accordance with subsection (c) of Section 217,
the clerk shall on the next court day, file a certified copy
of the order with the Sheriff or other law enforcement
officials charged with maintaining Department of State Police
records.
(c) Service by sheriff. Unless respondent was present
in court when the order was issued, the sheriff, other law
enforcement official or special process server shall promptly
serve that order upon respondent and file proof of such
service, in the manner provided for service of process in
civil proceedings. If process has not yet been served upon
the respondent, it shall be served with the order. A single
fee may be charged for service of an order obtained in civil
court, or for service of such an order together with process,
unless waived or deferred under Section 210.
(c-5) If the person against whom the order of protection
is issued is arrested and the written order is issued in
accordance with subsection (c) of Section 217 and received by
the custodial law enforcement agency before the respondent or
arrestee is released from custody, the custodial law
enforcement agent shall promptly serve the order upon the
respondent or arrestee before the respondent or arrestee is
released from custody. In no event shall detention of the
respondent or arrestee be extended for hearing on the
petition for order of protection or receipt of the order
issued under Section 217 of this Act.
(d) Extensions, modifications and revocations. Any
order extending, modifying or revoking any order of
protection shall be promptly recorded, issued and served as
provided in this Section.
(e) Notice to schools. Upon request the clerk of the
issuing judge shall file a certified copy of an order of
protection with the private school or schools or the
principal office of the public school district or districts
in which any children of the petitioner are enrolled.
(f) Disclosure by schools. After receiving a certified
copy of an order of protection that prohibits a respondent's
access to records, neither a public or private school nor its
employees shall allow a respondent access to a protected
child's records or release information in those records to
the respondent. The school shall file the copy of the order
of protection in the records of a child who is a protected
person under the order of protection.
(Source: P.A. 88-306; 89-106, eff. 7-7-95.)
(750 ILCS 60/302) (from Ch. 40, par. 2313-2)
Sec. 302. Data maintenance by law enforcement agencies.
(a) All sheriffs shall furnish to the Department of
State Police, on the same day as received, in the form and
detail the Department requires, copies of any recorded
emergency, interim, or plenary orders of protection issued
by the court and transmitted to the sheriff by the clerk of
the court pursuant to subsection (b) of Section 222 of this
Act. Each order of protection shall be entered in the Law
Enforcement Automated Data System on the same day it is
issued by the court. If an emergency order of protection was
issued in accordance with subsection (c) of Section 217, the
order shall be entered in the Law Enforcement Automated Data
System as soon as possible after receipt from the clerk.
(b) The Department of State Police shall maintain a
complete and systematic record and index of all valid and
recorded orders of protection issued pursuant to this Act.
The data shall be used to inform all dispatchers and law
enforcement officers at the scene of an alleged incident of
abuse, neglect, or exploitation or violation of an order of
protection of any recorded prior incident of abuse, neglect,
or exploitation involving the abused, neglected, or exploited
party and the effective dates and terms of any recorded order
of protection.
(c) The data, records and transmittals required under
this Section shall pertain to any valid emergency, interim or
plenary order of protection, whether issued in a civil or
criminal proceeding.
(Source: P.A. 86-542; 87-1186.)