Orders of Protection: When Should Victims Apply for One?

With exceptional experience behind her, Wendy speaks with Lawyer Monthly about Orders of Protection, when people should apply for them, how they can do so, the process and outcomes involved.

During her observations as a Court law clerk intern for the late Honorable Judge, Willard Lassers, in the Domestic Relations Division of the Circuit Court of Cook County, Wendy assisted in case development, and documentation which gave her a behind the scenes view into some very traumatic times in people’s lives. Shocked at how often people were not getting proper counsel to get through very critical processes, Wendy began her journey into family law.

The Illinois Domestic Violence Act was passed by the Illinois Legislature in 1982 and was updated in 2012.  It is under the Illinois Domestic Violence Act (hereafter “IDVA”) for which we petition for Orders of Protection (or, the “Order”).  It can be found in Chapter 750 Illinois Compiled Statutes (ILCS) Section 60/103 et seq.).

The IDVA is intended to protect a person abused by a family or household member, a high-risk adult with disabilities who is abused, neglected, or exploited by a family or household member, any minor child or dependent in the care of such person, and any person residing or employed at a private home or public shelter which is housing an abused family or household member.

The term “abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.

An Order of Protection may be filed by a person who has been abused by a family or household member, or filed by any person on behalf of a minor child or any adult who has been abused by a family or household member and due to age, health, disability, or inaccessibility, who cannot file the petition themselves. It can also be filed by any person on behalf of a high risk adult with disabilities who has been abused, neglected, or exploited by a family or household member. [1]

The term “abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation. “Family” or “household member” includes spouses, parents, children, stepchildren, and other persons related by blood or by present or prior marriage, persons who have or allegedly have a child in common or share a blood relationship through a child, persons who have or had a dating or engagement relationship, and persons with disabilities and their personal assistants, and caregivers. [2]

Actions which are sufficient for the Court to grant an Order of Protection cover a wide range of behaviors.

The issue of what constitutes a shared household has been interpreted by the Courts over the years and the Courts have been more lenient in recent times in interpreting this issue. In the case of Glatzer v. Fabianich, the Court found that a same sex couple living together for as little as seven days constituted the sharing of a “common dwelling” under the Domestic Violence Act. [3]

Once the standing requirement is met, the next question is what actions constitute domestic violence. Under the IDVA, a domestic violence action requires a finding of “abuse” to apply for an Order of Protection.

Actions which are sufficient for the Court to grant an Order of Protection cover a wide range of behaviors. Initially, we consider “physical abuse”. “Physical abuse” includes any of these following actions: (i) knowing or reckless use of physical force, confinement or restraint; (ii) knowing repeated and unnecessary sleep deprivation; or (iii) knowing or reckless conduct which creates an immediate risk of physical harm and sexual abuse. [4]

Representing clients in this field can be difficult. There are clients who are so abused that they do not want to recognize the above conduct as abusive.

Other behavior which is sufficient for the Court to grant an Order of Protection is “harassment”. The IDVA defines this very broadly as conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances, would cause a reasonable person distress, and does cause emotional distress to the petitioner.  The IDVA gives 6 examples (meant to be illustrative and not all inclusive) of harassment.  Those examples include:  creating a disturbance at the victim’s place of work or school, repeatedly telephoning the victim’s place of work, home, or residence, repeatedly following the victim about in a public place or places, repeatedly keeping the victim  under surveillance by remaining present outside his or her home school, work, car or other place occupied by the victim,  peering through the victim’s windows, various forms of concealing or threatening to conceal a minor child from the petitioner, and threatening physical force, confinement, or restraint of one or more occasions. This also covers a wide range of behaviors. [5]

The Interference with Personal Liberty of Another is also conduct which meets the criteria under the IDVA. This is defined as committing or threatening physical abuse, harassment, intimidation or willful deprivation, so as to compel another to engage in conduct from which she or he has a right to do, abstain or to refrain from doing.  Lastly, there is willful deprivation which is defined as willfully denying a person, who, because of age, health or disability, requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device or other physical assistance and thereby exposing that person to the risk of physical, mental or emotional harm.

Evidence of abuse is necessary to obtain an emergency, interim, or plenary order of protection.

Since no one ever knows when or if the abuse will escalate or continue, if any of the above conduct set forth below are occurring in the household, it’s time to consider an Order of Protection. The IDVA is drafted in such a way as to allow an individual to obtain an Order of Protection to prevent the harm of physical abuse and/or to prevent continued or escalated imminent harm and/or physical abuse.   A person who is experiencing any of the above conduct, should give serious consideration to obtaining an Order of Protection.

 

Representing clients in this field can be difficult. There are clients who are so abused that they do not want to recognize the above conduct as abusive. Or there are others who are in denial and/or are embarrassed and humiliated by an abusive spouse and do not want to publicize the event. Over the years, I have found persons in this category include many professional persons. Others are afraid pursuing an Order of Protection will harm the spouse or ex-spouse or will cause them to lose their job, which will impact on child support and/or maintenance.  Often times it also takes a long time for a client or prospective client to open up and relay the abusive conduct. An experienced attorney must ask the right questions in the right manner for each person and if the signs are there, they need to pursue the matter in an empathetic and patient manner to promote the individual to open up about the abuse. However, even if the attorney is able to do that, often times the individual will not pursue the matter for the reasons set forth above.

The case can be filed in any county where the petitioner resides, respondent resides, the alleged abuse occurred, or where the petitioner is temporarily located

The process to obtain an Emergency Order of Protection involves the preparation of an Emergency Petition for the Order, which also sets forth the specific factual allegations which warrant the finding of abuse by a Judge under the Domestic Violence Act. The attorney must also prepare a proposed emergency Order of Protection, a summons for the Respondent and complete other necessary forms.  The Petition must also include the remedies being requested of the Court, some of which are not available at hearings for Emergency Orders of Protection, but all remedies you want to pursue should be included here.  Child custody and child support are two of the remedies not available in emergency orders, (only possession of the minor children is available). However, you should still request this remedy in order for the Court to hear it at the hearing on the interim and plenary order. [6]

Evidence of abuse, as discussed above, is necessary to obtain an emergency, interim, or plenary Order of Protection.  Good evidence can be marks on a person’s body proving an act of physical abuse occurred. A person should be encouraged to take pictures of these marks.  For such injury and other injuries, the individual should also be encouraged to obtain emergency care and/or care of a doctor and then there will be medical records as well as potential professional testimony available. Mental injury is more difficult to prove, but going to a mental health professional can also be utilized. Inquire if there are witnesses or cameras in public places where incidents took place.  It is also important to encourage clients or potential clients to call the police at the time of the incident and try to press criminal charges. An arrest of domestic battery will require the case to be prosecuted by the State, and the State will be obtaining evidence to support the incident of abuse as well.

Orders of Protection, whether emergency, interim, or plenary, are not supposed to be used as a vehicle to obtain custody.

In order for the Court to determine that the matter is an emergency, it is necessary to proceed within a very short period of time after the alleged incident of abuse occurs. It is recommended that it be pursued no more than a week after the incident, if possible; otherwise there is a risk that that Court will find that the matter is not an emergency and/or that there is no factual basis to believe that imminent harm and/or risk of further harm is warranted.

The case can be filed in any county where the petitioner resides, respondent resides, the alleged abuse occurred, or where the petitioner is temporarily located if they left the residence to avoid further abuse and could not obtain safe, accessible, and adequate temporary housing in the county of that residence. [7] The rules of civil procedure are applicable in Order of Protection proceedings.[8]

 

In most cases, prior notice to the abuser is not provided for the emergency hearing and the hearing will be on an ex-parte basis. The rule is that if prior notice will cause a jeopardy of harm or injury to the petitioner or other person sought to be protected, then notice is excused. [9]The petitioning party needs to be present for the emergency hearing and will have to be prepared to testify as to the factual allegations which serve as a basis for the Court to find abuse under the IDVA for the Court to issue the Emergency Order of Protection. The abuser will have to be served with summons by a sheriff, or in some cases, by a process server if approved by the Court. The Emergency Order may provide for exclusive possession of the household or residence by the petitioning party, if the Court determines that the presumption of hardships favors the granting of exclusive possession and it is necessary to protect the individual and/or children from further abuse. The Court will require the return date for the hearing on the further extension of the Emergency Order of Protection to be within 21 days of the entry of the Emergency Order of Protection. Until the alleged abuser is served with the Order, the Court will have to continue the Emergency Order of Protection for an additional 21 days. Once the alleged abuser is served, that person can request a rehearing as early as within two business days or wait until the case comes up for hearing on a Plenary Order of Protection. The Court can also grant an Interim Order of Protection for 30 days, or it can be granted by agreement of the parties once the alleged abuser has been served and appears but is either not ready to participate in a Plenary hearing or for some other reason is not able to proceed to a Plenary hearing.

A Plenary hearing is a full, evidentiary hearing requiring due process to the accused. At the end of a full evidentiary hearing, if the Court finds by a preponderance of the evidence that the abuse occurred, the Court may enter a Plenary Order of Protection for a period of up to two years against the accused.[10]

Orders of Protection, whether emergency, interim, or plenary, are not supposed to be used as a vehicle to obtain or modify child custody. Unfortunately, the authority and ability of the Court to award “possession and control” of the minor children under an Emergency Order of Protection and to order custody in a Plenary Order of Protection, can have a long-term effect on later actions related to parental allocation between the parties in a dissolution of marriage, legal separation or parentage action. These orders often affect the eventual permanent Orders of Parental Allocation. Persons have abused and used Orders of Protection as a mere tactic to gain possession and control of the minor children at the beginning of a pre-decree dissolution or parentage action or to gain an advantage in a post decree action. The Illinois Courts have made clear that Orders of Protection are not to be used as a vehicle to obtain custody and are not a proper method of changing or determining child custody, now termed, “Parental Allocation”. [11]

A person served with a Petition for an Order of Protection should not ignore or take lightly the Petition and the Emergency Order, as there are far reaching effects of an Order of Protection being in place against a person. Once any type of an Order of Protection is entered, whether it be Emergency, Interim or Plenary, the Order is placed in the Law Enforcement Assistance Data Service, known as LEADS, a national data base used to provide information to law enforcement on individual “offenders”.  This data is available for any background checks the respondent may be subject to, for employment or other purposes. It can lead to an application for a Firearms Owner’s Identification Card being denied. It can affect the renewal or granting of professional licenses in areas where the respondent would be in charge of persons who would qualify as, “at risk”; such as, licenses for certain health care providers, licenses to carry a gun and security jobs, law enforcement jobs, certain driver jobs, and other types of employment. Criminal convictions of domestic abuse can also cause significant problems with such licenses and jobs.

When a criminal case is underlying, defending an Order of Protection can be more difficult.

Defending the Petition is essential to limit the impact it will have on your client’s life if you are representing the Respondent. Unfortunately, there are many situations where a spouse or ex- spouse, or the dad or mom in a paternity case, will provoke an incident and use it to improperly obtain an Order of Protection. When the allegations are trumped up or are not accurate, a contested hearing of the action needs to be pursued by the attorney representing the Respondent.  If a divorce or legal separation has not yet been filed, the filing of such an action will allow the attorney to pursue to consolidate the case into the divorce or legal separation action. In the venue of the domestic relations division, there are many more options than in Domestic Violence and criminal Court and they should be pursued. Domestic Violence and criminal Courts are not equipped to deal with parenting and other issues so critical to the life and livelihood of the Respondent and the issue of parental allocation in a divorce or legal separation case.   Particularly because the Respondent’s parenting issues are often impacted by the Order of Protection, it is necessary that the attorney takes a strong stance at the onset to force a trial or obtain an agreement to terminate, vacate, and / dismiss the Order of Protection. This kind of negotiation can also be in favor of a temporary restraining order which will govern the conduct of both parties and put your client back on an equal footing with the other spouse for parenting and other issues in the case. It may enable the Respondent to come back to the marital home and/or enable another peaceful status quo to be established which will not endanger the Respondent’s livelihood, professional license, parenting and other critical issues of the case. There are also times when marriage counseling and/or co-parenting or family counseling can be considered. This provides the parties to have an opportunity to explore resolutions and to finally deal with some of the underlying problems of the marriage as well as anger management issues, drug or alcohol treatment, and/or the need for therapy and counseling for the parent, spouse, and/or children involved. In some cases, this can also lead to reconciliation of the marriage or relationship.

When a criminal case is underlying, defending an Order of Protection can be more difficult. In a criminal case, the burden of proof is beyond a reasonable doubt, contrasted to an Order which is only a preponderance of the evidence.  An attorney should not have their client testify in an Order of Protection hearing when there is a criminal case pending, since it is much easier to obtain a finding of abuse in the civil order of protection hearing, than in the criminal case and you may be jeopardizing your client’s interests in the criminal case to allow such testimony in the civil case. In the criminal case, if the case cannot be dismissed, and particularly if the Respondent is guilty, one can explore the reduction of the charge to a misdemeanor battery or other lower misdemeanor charge and the Respondent can agree to a plea of guilty and to go to anger management and/or other therapy and obtain supervision, which is not available in a domestic battery case and will not jeopardize the Respondent’s professional license or job.

The most important qualities to look for when seeking an attorney to represent you to either seek an Order of Protection or defend against one are extensive experience in family law litigation, in general, and in dealing with litigation of Orders of Protection in particular. The extensive experience in family law and in representing clients in order of protection litigation should provide the attorney with the ability to determine the best strategy for the client under the specific individual circumstances. There are many options and a client needs this kind of highly experienced professional to assist in the determination, and execute what is needed to carry it out to represent the client’s best interests.

If you are representing the petitioner, you need to take a strong stance to best protect your client from any further abuse or jeopardy to them and/or the children involved.

To achieve the best results for your client you need to know what the reasonable goals of the individual client are, after you have educated the client as to what can reasonably be accomplished. An attorney also needs to remain flexible throughout the process while also being empathetic, objective, and directive with the client to properly guide the client. This is the case whether it regards preparing and going to trial or pursuing negotiations for a restraining order, or other solutions and remedies to meet the often-changing nature of the situation as it unfolds, while being always ever conscious of the impact the Order of Protection will have on parenting and all other issues involved in a divorce or legal separation.

If you are representing the Petitioner, you need to take a strong stance to best protect your client from any further abuse or jeopardy to them and/or the children involved.  If there is clear and repeated abuse, a restraining order may not be appropriate and going to trial and obtaining a Plenary Order of Protection may be what is needed to best protect the interests of your client and the children involved, as well as other remedies in domestic relations divisions, particularly if drugs or alcohol abuse is also involved.

[1] 750 ILCS 60/201.

[2] 750 ILCS 60/103 and 201.

[3] Glater v. Fabianich, 252 Ill. App. 3d 372, 625 N.E. 2d 96 (1st Dist. 1993.

[4] 750 ILCS 60/103.

 

[5] 750 ILCS 60/103

[6] 750 ILCS 60/202, 203, 210 et seq.

[7] 750 ILCS 60/209.

[8] 750 ILCS 60/205.

[9] 750 ILCS 60/217.

[10] 750 ILCS 60/210-219.

[11] In Re: Marriage of Paclik, 371 Ill. App. 3d 890, 864 N.E. 2d 274, (5th Dist. 2007), Radke ex. Rel. Radke v. Radke, 349 Ill. App. 3d 264, 812 N.E. 2d 9 (3rd Dist.  2004) with many recent relevant opinions as unpublished under Rule 23-ie.  In Re; Marriage of Yost, 2018 IL App (4th) 180283-U, 2018, Ibisevic v. Ibisevic 2016 IL App. (2d) 151179-U, 2016

 

Wendy R Morgan
Founder
The Law FIRM of Wendy R Morgan
www.wendymorgan.com

 

Wendy R. Morgan is the Founder, Owner, and CEO of The Law Firm of Wendy R. Morgan, established in 1981. Judges and attorneys have praised Wendy for her ardent advocacy and her ability to “find the angle” in even the most difficult and complex cases and when all other lawyers fail. Wendy is an expert and experienced litigation attorney. Wendy is also an extremely skilled negotiator; successfully negotiating favorable settlements for untold numbers of clients over the years. Wendy is also known for her compassion for her clients and the ability to know what they need and how to successfully strategize to accomplish their goals.

 

 

Divorce and other family issues can turn a person’s world upside down.  The fight determines how life is going to be when it’s all over.  It is a very difficult time and proper support is critical. This means educating clients about every option at their fingertips and then helping them to make the best, most educated decision for themselves and their families. Detailed evaluation and full disclosure are so important when someone is about to start the process of going through a divorce, order of protection or other family law issues. Wendy offers clients a complete analysis of their case to provide them a full understanding of all of their rights, choices, and possible outcomes that helps drive costs down. The firm also takes pride in an ability to take on emergency and extremely complex cases and situations to find reasonable solutions and assist in determining a status quo for the situation at hand. 

 

 

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