In this article we explain Illinois Orders of Protection, including: what is an Order of Protection and how is it different from a restraining order?, who can file an Order of Protection?, how do Illinois courts decide whether to issue an Order of Protection?, and how to enforce an Order of Protection.
What is an Order of Protection?
Orders of protection are court orders that can protect one family member or household member from the actions another. They are governed by the Illinois Domestic Violence Act.
Courts will grant an Order of Protection if the petitioner proves three elements:
- That the petitioner (or a protected party on whose behalf the petition has been filed) is a “family or household member” of the respondent;
- That the respondent has “abused” the petitioner (or a protected party); and
- That the court has jurisdiction to hear the case. Check out our article, How to File a Petition for an Order of Protection in Illinois, for a discussion of jurisdiction.
What is the Difference Between an Order of Protection and a Restraining Order?
A restraining order is a broad term used to generally cover orders from a civil court requiring one of the parties to take certain actions or refrain from taking certain actions. Orders of Protection are the correct term for what most people mean when they talk about “restraining order.” Orders of Protection have the specific purpose of preventing domestic abuse. They tend to be more easily enforceable and have stiffer penalties than typical civil injunctions.
Who Can File a Petition for an Order of Protection in Illinois?
A petition for an order of protection in Illinois can only be successfully obtained by:
- Someone who has been “abused” by a family member or member of his or her household (note that “abuse” is a broad term that goes beyond physical attacks);
- Someone filing on behalf of a minor child or an adult who is unable to file the petition because of age, health, disability or inaccessibility and who has been abused by a family member or member of his or her household; or
- Someone filing on behalf of a “high-risk” adult with disabilities who has been abused, neglected, or exploited by a family member or member of his or her household.
One of the key limitations on who can file a petition for an order of protection is that the petitioner (or the person on whose behalf the petitioner is filing the petition) must be a family member or household member of the person against whom the order of protection is being sought (the “respondent”). Illinois courts construe the term “family member” liberally.
Any family member or household member can be named as the respondent, even if the respondent is a minor.
What is the Definition of Family or Household Member for Illinois Orders of Protection?
The Illinois Domestic Violence Act defines “family or household member” as:
- Spouses, former spouses, parents, children, stepchildren and anyone else related by blood or a current or past marriage;
- People who currently share or previously shared a common dwelling;
- People who actually or allegedly have a child in common or share a blood relationship through a child;
- People who are dating or who have dated or have been engaged; and
- People with disabilities and their caregivers and personal assistants
What Qualifies as a Dating or Engagement Relationship for Illinois Orders of Protection?
In determining whether the petitioner and respondent have a dating or engagement relationship so as to make the petitioner eligible for an order of protection, the court will weigh the following factors:
- How the petitioner and respondent met;
- How many times the petitioner and respondent went out together;
- Whether either the petitioner or the respondent considered the outing a date;
- Whether either party held out to the public that the petitioner and respondent were dating.
Individuals who may not file a petition for an order of protection may be able to file a petition for a Stalking No Contact Order.
Orders of Protection for “Abuse” and “Neglect” or “Exploitation” of a Disabled Adult
In order for Illinois courts to issue an Order of Protection, the respondent must have engaged in “abuse” or must have “neglected” or “exploited” a “high-risk” disabled adult. The definition of “abuse” for the purposes of Orders of Protection is much broader than just physical attacks. For a full discussion on what constitutes “abuse” for the purposes of Illinois Orders of Protection, check out ourarticle: What Constitutes “Abuse” for the Purpose of an Order of Protection in Illinois? To learn more about “neglect” and “exploitation” of disabled adults for the purposes of Illinois Orders of Protection, read ourarticle: Illinois Orders of Protection for Neglect or Exploitation of a Disabled Adult.
Who Can be a Protected Party in an Illinois Order of Protection?
Minor children of the petitioner and anyone who lives with the petitioner can be included as additional protected parties in the order of protection. In addition, protection can also extend to anyone residing or employed at a public shelter or private home at which an abused family or household member is residing.
What Types of Behavior Can an Order of Protection Prohibit?
Judges have the discretion to prohibit a broad range of behaviors, including:
- Prohibiting threats and “abuse,” which is defined as physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation;
- Preventing the respondent from entering a shared residence while under the influence of drugs or alcohol;
- Requiring the respondent to stay away from a protected party and/or certain specific locations such as a protected party’s school or work;
- Mandating that the respondent undergo counseling;
- Providing for allocation of parenting time and responsibility and child support;
- Adjudicating rights with respect to personal property and real estate; and
- Requiring or prohibiting other actions from the respondent based on the facts of the case.
For a deeper discussion on remedies for Illinois orders of protection, check out ourarticle: Remedies for Illinois Orders of Protection Explained.
What is the Difference Between an Emergency Order of Protection, an Interim Order of Protection, and a Plenary Order of Protection in Illinois?
There are three basic types of Orders of Protection in Illinois: Emergency Orders of Protection, Interim Orders of Protection, and Plenary Orders of Protection. Emergency Orders of Protection are intended to cover the time period before a respondent can be properly served with process. Interim Orders of Protection are intended to cover the period between service of process and a final hearing on the merits of the case. Plenary Orders of Protection are the final orders that the court enters after a full hearing. For a deeper discussion on Emergency Orders of Protection and Interim Orders of Protection, check out our article: Illinois Emergency Orders of Protection and Interim Orders of Protection Explained.
What Factors Do Courts Consider in Illinois Order of Protection Hearings?
Illinois courts consider the following factors when determining whether to grant an Order of Protection and deciding which remedy is appropriate:
- The nature, frequency, severity, pattern, and consequences of the respondent’s past abuse;
- Whether the respondent attempted to evade service of process;
- The likelihood of future abuse; and
- Future danger to any minor children.
What Findings Must an Illinois Court Make When Issuing an Order of Protection?
When an Illinois court issues an Order of Protection, the court must include the following specific findings in the order or in the court record:
- That the court has considered the relevant factors in making its decision;
- That the actions of the respondent will likely cause irreparable harm or continued abuse unless prohibited by the Order of Protection;
- That the Order of Protection is necessary to protect the petitioner or other protected parties.
What Reasons Are Illinois Courts NOT Allowed to Use To Deny an Order of Protection?
Illinois courts are not permitted to deny Orders of Protection for any of the following reasons:
- That the respondent had “cause” for use of force, unless the force would have been considered justified according to the Illinois Criminal Code;
- That the respondent was voluntarily intoxicated;
- That the petitioner used force that would be considered self-defense or defense of another under the Illinois Criminal Code;
- That the petitioner failed to act in self-defense or defense of another;
- That the petitioner left the residence or failed to do so to avoid further abuse;
- That the abuse was excused by the conduct of a family or household member unless the abuse would have been excused regardless of the relationship between the parties.
What Happens at an Illinois Order of Protection Hearing?
Proceedings for Orders of Protection follow the Illinois Rules of Civil Procedure, even if the Order of Protection proceeding is connected to a criminal matter. You can learn more about the civil litigation process here.
Order of Protection proceedings differ from typical civil proceedings in a few respects. First, unlike most civil litigation proceedings, there is no right to a jury trial in an Order of Protection proceeding. Second, Illinois courts treat Order of Protection proceedings as expedited proceedings. This means that continuances are only granted for good cause and are kept to a shorter duration than in other proceedings. If a continuance is necessary for the court to decide on some but not all of petitioner’s requested remedies, the court will reserve judgment on the issues requiring a continuance, but will not delay hearing and ruling on other issues.
The standard of proof required is “a preponderance of the evidence,” the default standard of proof in civil litigation proceedings, which requires the party with the burden of proof to show that the allegations giving rise to a cause of action are more likely than not to be true.
Who is Responsible for Attorney Fees in an Illinois Order of Protection Proceeding?
Generally, in Illinois, each party bears its own attorney fees. However, in an Order of Protection proceeding, if either side is found to have made untrue allegations or denials without reasonable cause, the party making the untrue allegation or denial will be responsible for paying reasonable attorney fees and other reasonable expenses incurred by the other party as a result of the untrue statements. In order to be awarded attorney fees and other expenses, the party seeking recovery must file a motion within 30 days of judgment.
How Long Will an Illinois Order of Protection Be Effective?
The permitted duration of an Illinois Order of Protection depends on whether the order is an Emergency Order of Protection, Interim Order of Protection, or Plenary Order of Protection:
- Emergency Orders of Protection: Effective for a minimum of 14 days and a maximum of 21 days.
- Interim Orders of Protection: Effective for up to 30 days.
- Plenary Orders of Protection: Plenary Orders of Protection are final orders issued after a hearing on the merits. The court will determine a time period for which they are effective up to 2 years. If the Order of Protection is entered in conjunction with a divorce or other civil case it can last for longer two years. Orders of Protection entered in conjunction with a divorce can remain effective for the duration of the final order of dissolution of marriage. Orders of Protection entered in conjunction with other civil cases can last for the duration of the case.
Rehearing of Illinois Orders of Protection
An emergency, interim, or plenary order of protection may be reconsidered by the court and reheard if the respondent files a verified petition alleging:
- That the respondent did not receive prior notice of the initial hearing; and
- That the respondent has a meritorious defense to the order of protection or any of the remedies granted therein.
If the original Order of Protection granted the petitioner exclusive possession of a shared residence, the court must set the rehearing date within 14 days of the petition for rehearing.
Modification of Illinois Orders of Protection
The general rule for modifying Illinois plenary Orders of Protection is that the party seeking to modify the order more than 30 days after it has been entered must show that there have been changes in the law or the facts that have occurred after the original order, which warrant modification. Further abuse by the respondent is sufficient to warrant a modification.Remedies dealing with allocation of parental time and responsibility or payment of maintenance or child support may be modified through the provisions of the Illinois Marriage and Dissolution of Marriage Act. You can learn more about such modifications here:Illinois Child Support Modification Explained.
How to Enforce an Illinois Order of Protection
Illinois Orders of Protection can be enforced in several ways:
- Civil cause of action for damages: If the act that constituted the violation of the Order of Protection causes monetary damage or otherwise would constitute a civil cause of action, the petitioner can sue the respondent in civil court in addition to any other methods of enforcement.
- Prosecution of the underlying criminal offense: If the act that constituted the violation of the Order of Protection was itself criminal in nature, the respondent must be prosecuted in criminal court for the underlying offense in addition to any other methods of enforcement.
- The independent crime of “Violation of Order of Protection”: Violation of an Order of Protection is in itself a crime. The first offense is a Class A misdemeanor. Any subsequent offenses are Class 4 felonies. Each violation is punished as a separate offense. The independent crime of Violation of Order of Protection can be prosecuted in addition to any underlying criminal offenses that are associated with the violation.
- Contempt of court: Finally, because the Order of Protection is a court order, a violation is punishable by contempt of court proceedings. You can read more about contempt proceedings here: Illinois Contempt of Court Proceedings Explained.
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