Orders of Protection
We can help you protect yourself and your family with an Order of Protection
There is widespread confusion about Orders of Protection (commonly referred to as a restraining order) and what our courts have the power to order. Our Lawyers at M. Scott Gordon & Associates can provide some context to the issue of obtaining an order of protection and protect you against threats of bodily harm.
Not too many years ago, our courts had limited power or desire to get involved in situations with allegations of violence or abuse. Most local police departments would not respond to domestic violence calls, because it was considered a “family problem.” The police and courts expected couples to work it out among themselves, and they did not recognize elderly abuse as a problem. Until recently, nobody wanted to speak of this “private” violence, and is why statistics of domestic abuse are now soaring. Our attorneys understand that 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. It allows a person, such as a spouse or significant other, to immediately go to court and obtain an order of protection. The petition can be filed with or without notice to the other party, and the judge can issue the order right away. The party named in the order of protection may not be given notice if the judge believes that harm would come to the applicant if the party were so notified.
The Domestic Violence Act covers the abuse of any family or household member by anyone in that household or by anyone in a home or shelter where a family is housed. Our courts include in the definition people who are or were in an intimate relationship with the other party, such as girlfriends, boyfriends and former spouses. In addition, the act provides for a Order to Protection to cover “high-risk adults,” such as those with disabilities, more than 18 with a physical or mental problem that prevents them from seeking and obtaining protection. Your lawyer can advise you about how the act may apply to your circumstances. An attorney can also advise you about how an Order of Protection may affect other aspects of a divorce, such as child custody and parenting time.
What is considered abuse in the eyes of the law?
Abuse can be any of the following:
- Physical abuse. Physical abuse occurs when a person recklessly employs force, restraint or sleep deprivation or exhibits “conduct that creates the imminent risk of harm.” In many ways, physical abuse is the easiest type of abuse to understand.
- Harassment. Harassment refers to conduct that has no purpose except to cause emotional distress. Creating a disturbance at a person’s school or work, repeated telephone calls to someone’s place of employment or home, “stalking,” improperly concealing or repeatedly threatening to conceal a minor child or to take that minor to another state and threatening physical violence, force or restraint are all actions included under the category of harassment.
- Intimidation of a dependent. Individuals, dependent due to age, health or disability and are subjected to or witness “physical abuse” are covered by the Illinois Domestic Violence Act, even if they are not family or household members.
- Willful deprivation. Denying a person medication, medical care, shelter, food and other essentials required due to age, health or disability is considered willful deprivation.
- Interference with personal liberty. Engaging in or threatening physical abuse, harassment, intimidation or willful deprivation to prevent another person from doing what they want is an interference with personal liberty.
Many people hesitate to seek help from an attorney and the courts for an Order of Protection because they believe the process may take too long. This is unfortunate because one of the most useful features of the Illinois Domestic Violence Act is that it is quick and easy to initiate, and it yields immediate results. For example, “Mary” recently telephoned our office after her husband 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. Mary’s husband denied having a gun, and the police searched the house. When the weapon was found (loaded), 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, they can only remedy the immediate problem. Eventually, her husband came home and she felt rightfully insecure for herself and her children.
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. Because 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 grants an order or protection ex parte, meaning that the order was entered without her husband having notice. The sheriff 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 occurs within 21 days, at which time there is a hearing on the petition. At this point, Mary’s husband is given an opportunity to respond to the allegations made against him. If he cannot rebut the allegations (or fails to come to court), the court issues an order of protection that can last up to two years and can be extended if necessary.
What protection is a victim given by the court order?
The court has the power to enter an order accomplishing one or more of the following:
- prohibiting abuse or neglect of a person or the exploitation of a disabled adult (for example, misuse of the adult’s assets);
- granting exclusive possession of the parties’ residence;
- prohibiting the offender from contacting the victim;
- providing for the physical care of any minor children;
- allowing visitation with the minor children, if any;
- granting exclusive possession of personal property;
- prohibiting firearm possession;
- ordering payment to the victim for any losses or expenses, including attorney fees; and
- ordering other remedies.
The most frequent question we are asked by our clients is if they can get exclusive possession of their residences. The answer is fact-specific because the Illinois Domestic Violence Act requires the judge hearing the petition to “balance the hardships” between the parties. The court looks at 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 impacts each. Exclusive possession “is presumed to favor” the victim, and this is a real advantage when this remedy is sought.
Of course, once the court issues an order of protection, there is no guarantee that the abuser will not violate it. Though the victim notifies the police of the order, they do not place guards outside the victim’s home. However, there are two things to keep in mind. One, the Illinois Domestic Violence Act recognizes that some victims are in hiding, and the court accommodates this wish and does 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 them. This is unfortunate, as many of these perceptions are rooted in the past and are no longer founded.
Our attorneys can help protect you with an Order of Protection
For more information about how to file an order of protection, email our attorneys at M. Scott Gordon & Associates or call our Chicago office at 312.360.0250 or our Skokie office at 847.329.0101 to help you with your case.