Orders of Protection
Filing Orders of Protection in Chicago
There is widespread confusion about “orders of protection” and what our courts have the power to order. First, it should be remembered that not too many years ago, our courts had limited power or desire to get involved in many situations in which there are allegations of violence or abuse. Also, most local police departments would not respond to domestic violence calls, because it was considered a “family problem.” Couples were to work it out amongst themselves, and abuse of the elderly was not even recognized. The problem was that nobody wanted to speak of this “private” violence, which is why statistics of domestic abuse are soaring, while abuse may be up, the reason for the upturn is rooted in an increased willingness to report and monitor the problem.
In 1986, our state passed the Illinois Domestic Violence Act of 1986 (the “Act”). It allows a person (like a spouse) immediately to go into Court and obtain an Order of Protection. The petition filed can be with or without notice to the other party, and the Judge can issue an Order right away. If the other party is not given notice, an Order of Protection will be issued if the judge believes that the harm alleged would be likely to occur if the notice were given. Here’s how it works.
What is covered by the Act? Essentially, it is the “abuse” of a “family or household member” by anyone in that household, or in a home or shelter where a family is housed. Our courts do include in the definition, people who or were in an intimate relationship with the other party, such as girlfriends/boyfriends, former spouses, etc. In addition, the Act protects “high-risk adults” with disabilities, who can be anyone more than 18 that has a physical or mental problem that prevents him or her from seeking and obtaining protection.
What is “abuse” in the eyes of the law? “Abuse” can be:
- Physical abuse. This is where one knowingly or recklessly uses force, restraint, sleep deprivation or, “conduct that creates the imminent risk of harm.” In many ways, this is the easiest type of abuse to understand.
- Harassment. Conduct that has no purpose but to cause emotional distress. Actions included in this category are: creating a disturbance at a person’s school or work; repeated telephone calls to someone at work or their home; “stalking”; improperly concealing or repeatedly threatening to conceal a minor child or to take that minor to another state; or threatening physical violence, force or restraint.
- Intimidation of a dependent. Persons who are dependent due to age, health, or disability, and who are subjected to or witness, “physical abuse,” are covered by the Act, even if they are not a family or household member.
- Willful deprivation. Willfully denying a person who, due to age, health, or disability, requires medication, medical care, shelter, food, and other essentials.
- Interference with personal liberty. Engaging in or threatening physical abuse, harassment, intimidation, or willful deprivation, which causes another person to do (or not do) something which they want (or do not want) to do.
The Act is useful. Many people hesitate to go to an attorney and the courts for help because they believe it will be a long process until any help is provided. This is unfortunate because one of the most useful features of the Act is that it is quick and easy to initiate, and yields immediate results. For example, “Mary” recently telephoned my office after her husband had pointed a loaded gun at her head, threatened to kill her, and held her captive in her own home. Eventually, he put the gun away and she called the police, who searched the house after he denied having a gun. The weapon was found (loaded) and the husband was arrested. The first lesson of this episode is that the police do respond to domestic violence calls, and take them quite seriously.
However, while Mary made the best decision to call the police first, the police can only remedy the immediate problem. Eventually, her husband came home and she felt rightfully insecure for herself and her children. What can she do now?
What are the mechanics of asking for an Order of Protection?
Mary’s next step was to call an attorney who assisted her in filing an Emergency Petition with the Court for an Order of Protection (an “Order”). Since it was filed as an emergency, the Court could hear it immediately. If Mary meets one of the criteria for an Order (which she certainly does), the Court will grant an Order of Protection ex parte, which means that the Order was entered without her husband having notice. The sheriff then makes service of the Order a top priority, as required by the statute. Once Mary’s husband receives notice of the Order, he cannot enter the home or have any contact with Mary or the children until the next Court date.
The second Court appearance is in no more than 21 days, at which date a hearing on the Petition is scheduled. At this point, Mary’s husband is given an opportunity to respond to the charges made against him. If he is unable to rebut the charges (or fails to come to court), the Court will then issue an Order of Protection which can last up to 2 years (and can be extended if necessary).
What “Protection” is a victim given by the Court Order?
Specifically, the Court has the power to enter an Order that accomplishes one or more of the following:
- prohibit “abuse” or “neglect” of a person or the exploitation of a disabled adult (example: misuse of the adult’s assets);
- grant exclusive possession of the parties’ residence;
- prohibit the offender from contacting the victim;
- physical care of any minor children;
- visitation with the minor children (if any);
- exclusive possession of personal property;
- prohibit firearm possession;
- order payment to the victim for any losses or expenses (including attorney’s fees); and
- other remedies.
The most frequent question I am asked by my clients is whether they can get exclusive possession of their residence. The answer is fact-specific because the Act requires the judge hearing the Petition to, “balance the hardships” between the parties. The court looks to the hardship for the victim, the alleged abuser, any minor children, and any dependent adults in the household and how the granting of exclusive possession will impact each. Exclusive possession, “is presumed to favor” the victim, and this is a real advantage when this remedy is sought.
Of course, once an Order of Protection is entered, there is no guarantee that the abuser will not violate it; the police are immediately notified of the Order, but guards are not placed outside the victim’s home. However, there are two things to keep in mind. One, the Act recognizes that some victims are in hiding, and the Court will accommodate this wish and not reveal a victim’s whereabouts. Two, violation of the Order is considered contempt of Court and can, in certain circumstances, be a crime. This provides substantial teeth to the law and acts as a deterrent in most cases.
Many victims of domestic abuse are either unaware of the legal remedies at their disposal or do not trust the court system enough to use it. This is unfortunate, as many of these perceptions are rooted in the past and are no longer founded.
Our Attorneys are here to help protect you
For more information about how to file an order of protection, email our Chicago Divorce Attorneys or call our Chicago office at (312) 360-0250 or our Skokie office at 847.329.0101 to help you with your case.