Illinois Orders of Protection
updated 23 October 2019
by Wes Cowell
Orders of Protection and Civil Restraining Orders are standard operating procedure in divorce and family court. They are created and defined by the Illinois Domestic Violence Act, 750 ILCS 60/101, et seq. Here's what you need to know.
Orders of Protection offer an accessible process that victims can navigate easily and for free. Orders of Protection automatically confer expanded authority to law enforcement to prevent further abuse. An Order of Protection creates a record for the perpetrator and prohibits the perpetrator from (lawfully) possessing a firearm, even for purposes of employment (a HUGE problem for police officers accused of abuse -- an Order of Protection means they lose their weapon and are either suspended or assigned to desk duty).
Abuse Defined: Orders of Protection are awarded in cases where the court finds the victim has been "abused." Abuse is defined in the law as:
physical abuse includes sexual abuse and means any of the following:
(i) knowing or reckless use of physical forced confinement or restraint;
(ii) knowing, repeated and unnecessary sleep deprivation; or
(iii) knowing or reckless conduct which creates an immediate risk of physical harm.
"Bodily Harm:" Criminally prosecuted cases of domestic battery have held that pain alone is sufficient to establish "bodily harm." There is no need to demonstrate bruising, no need to introduce into evidence pictures, x-rays, or other tell-tales of harm. All you need is the victim's testimony: "it hurt."
harassment means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
(i) creating a disturbance at petitioner's place of employment or school;
(ii) repeatedly telephoning petitioner's place of employment, home or residence;
(iii) repeatedly following petitioner about in a public place or places;
(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner's windows;
(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner's from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence; or (vi) threatening physical force, confinement or restraint on one or more occasions.
intimidation of a dependent means subjecting a person who is dependent because of age, health or disability to participation in or the witnessing of physical force against another or physical confinement or restraint of another which constitutes physical abuse as defined in this Act, regardless of whether the abused person is a family or household member.
interference with personal liberty means 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 abstain or to refrain from conduct in which she or he has a right to engage.
Duration: Orders of Protection come in three stages:
Emergency (14 - 21 days),
Interim (30 days), and
Plenary (2 years).
Emergency Orders of Protection: Emergency Orders of Protection may be obtained without giving notice to the other side. Orders of Protection are usually obtained in divorce or family court, in the Domestic Violence Court (if your county has one), or in connection with criminal prosecution for domestic abuse or domestic battery. Any judge in Illinois may enter an Emergency Order of Protection. So, if it's a holiday or after hours and you need an Order of Protection, fill out the forms, find the nearest judge, and plead your case -- any judge will do. Emergency Orders of Protection may last for between 14 and 21 days (750 ILCS 60/220(a)(1))
Interim Orders of Protection: Interim Orders of Protection pick up where Emergency Orders of Protection leave off. Interim Orders can be entered to protect the alleged victim but also to accomplish other things, like establishing support and bill-paying obligations and allowing the alleged abuser to do things that need to be done -- things like getting into the house to get clothes, work equipment, and other necessities -- and to hire an attorney and prepare for the hearing on the Plenary Order of Protection. Interim Orders of Protection may last for no more than 30 days. (750 ILCS 60/220(a)(2))
Plenary Orders of Protection: Plenary Orders of Protection may survive for up to two years.
Extensions: Any emergency, interim or plenary order may be extended one or more times, as required. It's not unusual for an Emergency Order of Protection to be continued half a dozen times before service of process is effectuated to move the case to the next stage.
Who May Obtain: You can't run down to the courthouse and get an Order of Protection against just anyone. If your taxi-driver or flight attendant gave you a good shove, that's a crime, but not grounds for an Order of Protection. If your neighbor keeps you under surveillance, that's a crime, but not grounds for an Order of Protection. If your employer touches you in ways you don't like, that's a crime, but not grounds for an Order of Protection.
Illinois law says you may take out an Order of Protection ONLY against a "family or household member." 750 ILCS 5/60/201. So, neighbors, taxi-drivers, bosses, drinking buddies, etc. don't count.
Fees: There is no fee to file a Petition for an Emergency Order of Protection -- the filing is free. The law says:
(b) Filing, certification, and service fees. No fee shall be charged by the clerk for filing, amending, vacating, certifying, or photocopying petitions or orders; or for issuing alias summons; or for any related filing service. No fee shall be charged by the sheriff for service by the sheriff of a petition, rule, motion, or order in an action commenced under this Section.
On the other hand, a defendant DOES have to pay a fee to file an Appearance in order to respond to the Order of Protection. This creates a legal imbalance, but the problem is not really that great. If the allegations in the Petition are true, then it is not unreasonable to require a Respondent to pay the usual filing fee to have a justiciable matter heard. If, however, the Petition is based on false statements, the law allows the Respondent to recover expenses and attorney's fees. The law says:
Sec. 226. Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney's fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal, as provided in Supreme Court Rule 137. The court may direct that a copy of an order entered under this Section be provided to the State's Attorney so that he or she may determine whether to prosecute for perjury. This Section shall not apply to proceedings heard in Criminal Court or to criminal contempt of court proceedings, whether heard in Civil or Criminal Court.
Expedited Process: Any action for an Order of Protection is an expedited proceeding. Continuances are allowed only for good cause and are kept to a minimum (reasonable) duration, taking into account the reasons for the continuance. If the continuance is necessary for some, but not all, of the remedies requested, hearing on the available remedies is not be delayed. 750 ILCS 60/213(b)
Serving of Process: You don't have to notify the other side that you're going to court to GET an Emergency Order of Protection; but you DO have to notify the other side of whatever happened in court after you've tried.
An Emergency Order of Protection doesn't do much good if the defendant isn't "served" with it. You can't just call up the defendant and say "Hey, I got an OP against you so leave me alone." The defendant must be "served" with a copy of the Order of Protection. 750 ILCS 60/211 lays out the requirements of "service." It says that, except for an Emergency Petition for an Order of Protection, you're supposed to follow Illinois Supreme Court Rules 11 (e-file service, personal service, US Mail, or third party courier) to serve Petitions and Rule 12 to serve notices of motions and other papers. (e-file service, e-mail, personal service, US Mail, or third party courier).
The Clerk of Court gives a copy of the Emergency Order of Protection to the Sheriff so the Sheriff may enter the information into the State Police LEADS system. In most counties, the Sheriff then assumes responsibility for serving the Respondent. There is no charge for service by Sheriff.
LEADS: The Law Enforcement Automated Data System allows police departments around the country to share information. The Clerk of Court gives a copy of an Emergency Order of Protection to the Sheriff. The Sheriff enters the information into the Illinois State Police LEADS system. Once the information is in that system, the Illinois State Police make sure the information is passed on to the other 49 State Police departments around the country. Those State Police departments, in turn, make sure that the information is available to their respective local police departments. So, when an Emergency Order of Protection is entered in Illinois, the local police in Maine, Hawaii, and everywhere else will be able to find it quickly.
Vacature of Emergency Orders: If you're a defendant and you win the fight against the Emergency Order of Protection, or if the Petitioner doesn't show up to court and the Petition is dismissed, be sure to have the Emergency Order of Protection "vacated." If you don't, it will hang out there on your record and will pop up in the future when you least want it to: like in job interviews. "Vacature" makes the Emergency Order of Protection null, void, it wipes your slate clean.
Civil Restraining Orders: Civil Restraining Orders offer fewer and less effective remedies against abuse. Usually they simply prohibit contact or association with the protected person -- what's known as a "no contact order." Authority for Civil Restraining Orders is found in the IMDMA at 750 ILCS 5/501(a):
Sec. 501. Temporary Relief. In all proceedings under this Act, temporary relief shall be as follows:
(a) Either party may petition or move for:
. . .
(2) a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:
. . .
iii) enjoining a party from striking or interfering with the personal liberty of the other party or of any child;
Finding of "Abuse" Mandates Order of Protection and Precludes Lesser Civil Restraining Order: If, after testimony is heard and evidence taken the court makes a finding that "abuse" has occurred, the court MUST enter a Plenary Order of Protection. The court does not have the discretion to enter the less severe remedy of a "restraining order." In Sanchez v. Torres, 2016 IL App (1st Dist.) 151189, after 17 years of unmarried connubial bliss and four children, Ellisa Sanchez tried to end her relationship with Juan Torres. Elisa and her sister testified to a five-and-a-half month-long pattern of physical, sexual, verbal and emotional abuse. Juan denied it all and claimed it was really Elisa who did the hitting. The trial took two days and the record was loaded with good, solid evidence, including photographs of bruises and injuries and evidence that Torres repeatedly violated the initial, Emergency Order of Protection.
The judge didn't want all the restrictions that come with a two-year plenary Order of Protection. After all, these parents had four kids together and they would just HAVE to communicate for the benefit of the children, right? Instead of an Order of Protection, the court entered a Civil Restraining Order that said: "[Juan] is prohibited from physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or stalking the petitioner."
Elisa appealed. The First District Appellate Court said:
Under section 214(a) of the Act, once the trial court finds that the petitioner has been abused, "an order of protection . . . shall issue." 750 ILCS 60/214.
. . .
A civil restraining order is simply no substitute for an order of protection. We hold that the Act mandates the issuance of an order of protection once the victim makes a showing of abuse.
Violation of Orders of Protection: A violation of an Order of Protection can incur criminal penalties, including immediate arrest without a warrant. 720 ILCS 5/12-3.4; 725 ILCS 5/112A-26. A first-time offense is usually a Class A misdemeanor, but in some circumstances can be a Class 4 Felony.