There are many situations where one or more family members may need to receive protection from domestic abuse. While domestic violence may be a factor in divorce or child custody proceedings, it can also affect former spouses, couples who used to be in a relationship or who share a child, or people who live in the same household. Those who have been the victims of abuse or who fear for the safety of themselves or their loved ones can request an order of protection. When doing so, they will need to understand their rights, the procedures that will be followed, and the ways this type of order will affect them and their family members.
The attorneys of Weiss-Kunz & Oliver, LLC understand the importance of ensuring that family members are safe from harm, and we are dedicated to helping our clients take the necessary measures to protect against abuse. If you are looking to escape an abusive situation, or if you believe that you need protection as you pursue a divorce or address child custody issues, we can advise you of your options. We will make sure you file the proper petitions and follow the correct legal procedures, and we will provide you with representation during court hearings to ensure that you will receive the protection you need.
When Are Orders of Protection Appropriate?
A person may ask for an order of protection (which is commonly referred to as a restraining order) in cases where they or their family members have experienced domestic abuse committed by a family member or a person in their household. A person can file a petition for an order of protection for themselves or on behalf of a minor child or an adult with disabilities who is unable to file a petition on their own. These requests may be filed as part of an ongoing divorce or family law case or in a separate legal proceeding.
An order of protection may be needed to address multiple forms of abuse. These could include physical abuse in which a person has inflicted injuries on a member of their family or household, as well as harassment involving threats of violence, speech or actions meant to intimidate a person, causing disturbances at a person’s workplace or school, repeatedly phoning or contacting a person, or other actions that may cause emotional distress. Other abusive actions may include interfering with a family member’s personal liberty, such as by keeping a child confined in a room for an unreasonable amount of time, or willful deprivation of food, medical care, or other forms of assistance.
A victim of stalking may also be able to ask for an order of protection that will prohibit a person from contacting them or engaging in this type of harassing behavior. Stalking involves a course of conduct in which a person engages in at least two acts or types of behavior where they follow, observe, or threaten someone else. Stalking may involve actions such as following a person as they travel to and from work or school, observing them while they are in their home or other locations, contacting them repeatedly through phone calls or electronic messages, vandalizing their property, injuring their pet, or monitoring their communications.
Types of Orders of Protection
Most of the time, a victim of domestic abuse will file a petition for an emergency order of protection. This is also known as a temporary or “ex parte” order of protection, and a person can request a hearing before a judge where they will provide reasons for why the order is necessary. The respondent to the order does not need to be present at this hearing, and they will usually be notified after the order has been issued.
An emergency order of protection will last for between 14 and 21 days, and during this time, a hearing will be scheduled to determine whether more permanent solutions are needed. If necessary, an interim order of protection may be issued for up to 30 days, ensuring that protections will remain in place until a hearing can be held.
During an order of protection hearing, the petitioner and respondent will both appear, and they may present evidence showing why continued protections are or are not needed. Based on this evidence and the testimony from both parties or any other witnesses, a judge may choose to issue a plenary order of protection. This type of order can last for up to two years. If a respondent does not file a court appearance after the issuance of an emergency order of protection, or if they fail to show up to the order of protection hearing, a default judgment may be entered, and a plenary order may be issued.
Terms of an Order of Protection
There are a number of “remedies” that may be included in an order of protection. A judge will determine what measures are necessary to prevent any further acts of abuse and ensure that the petitioner and their family members are safe from harm. These remedies may include:
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Prohibition of abuse – The respondent will be ordered to refrain from committing any further acts of abuse, harassment, interference with personal liberty, willful deprivation, harassment, or stalking. In cases involving a disabled adult, the respondent may be prohibited from committing any acts of exploitation involving the misuse of the petitioner’s assets or financial resources.
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Prohibition of removal or concealment – An order of protection may state that the respondent is not allowed to take their child out of the state of Illinois or conceal the child within the state of Illinois in a location that is unknown to the child’s other parent.
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Protection of property – The respondent may be prohibited from taking, concealing, damaging, or destroying any property owned by the petitioner or jointly owned by both parties.
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Stay away and no contact order – The respondent may be ordered to stay away from the respondent, their children, or anyone else named in the order. They may be required to stay a certain distance away, and this prohibition will apply at a person’s home, school, workplace, or any other public or private location. The respondent may also be prohibited from contacting the petitioner or others named in the order. This will include a restriction on phone calls, emails, text messages, or other forms of direct communication, as well as activities such as sending written notes or asking friends or family members to deliver messages.
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Exclusive possession of residence – If the petitioner and respondent share a residence, the petitioner may be given the exclusive right to live in the home, and the respondent may be prohibited from entering or remaining in the building. When addressing this issue, the court will weigh the hardship that this type of restriction would impose on both the petitioner and the respondent, as well as their dependent children. In most cases, the petitioner will be presumed to have the right to possession of a mutual residence, although the respondent may be granted possession if they can provide evidence showing that their hardships would significantly outweigh the hardships of the petitioner. If necessary, a judge may require the respondent to find alternative housing options for the petitioner.
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Possession of other property and pets – The petitioner may be given exclusive possession of property that is jointly owned by the parties, such as a vehicle or household items. If the respondent currently possesses any property owned by the petitioner or any other property that the court has awarded to the other party, they may be required to turn over this property. The petitioner may also be granted the right to care, custody, and control of any family pets, and the respondent may be prohibited from taking or harming these animals.
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Child custody – A judge may grant physical care and possession of a couple’s children to the petitioner, including the temporary right to significant decision-making responsibilities (legal custody). An order of protection may also include provisions for dividing parenting time between the petitioner and respondent. If the judge believes a child would be at risk of abuse or other forms of harm, they may deny parenting time to the respondent, or they may require that the respondent’s parenting time be supervised.
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Access to records – If an order of protection prohibits the respondent from having contact with a child, it may also deny them access to the child’s school or medical records.
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Counseling – The respondent may be required to undergo psychological or psychiatric treatment to address domestic abuse or other mental health issues, as well as treatment for any related substance abuse issues. A person may need to report to a social worker regularly, receive assessment through an abuse intervention program, and comply with all requirements during an approved course of treatment.
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Support – If the petitioner does not have the financial resources to meet the needs of themselves and their children or other dependants, the respondent may be required to pay ongoing support. This may take the form of child support or spousal support, or the respondent may be required to provide for other needs, such as paying housing costs for a family residence.
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Compensation – The respondent may be required to pay for any costs incurred by the petitioner as a result of domestic abuse. This may include medical expenses, repairs or replacement of damaged property, loss of income, transportation and moving expenses, costs related to temporary shelter, attorney’s fees, and court costs.
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Weapons possession – During the time that an order of protection is in effect, the respondent will usually be prohibited from owning or possessing any firearms. They will be required to turn over their Firearm Owner’s Identification (FOID) card, and any firearms they own may be seized by local law enforcement officials and held for safekeeping.
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Telephone service – The petitioner may request to transfer cell phone service for themselves and their minor children to their own account, and a wireless service provider will be required to terminate the respondent’s ability to access and use this service. The petitioner may continue to use their current phone numbers, or service may be transferred to new phone numbers to ensure that the petitioner can maintain safety and confidentiality.
Contact Our Elmhurst Order of Protection Lawyers
If you have been the victim of domestic violence or abuse, an order of protection may be needed to ensure that you and your children are safe from harm and allow you to leave your current situation. In some cases, a petition for an order of protection may be filed as part of your divorce proceedings, or you may ask for protection based on abusive or harassing behavior by an ex-spouse, a former partner, or a person you have dated. The compassionate, dedicated lawyers at Weiss-Kunz & Oliver, LLC can help you understand your options, and we will provide you with representation to help you show that these protections are needed. To get legal help with issues related to domestic abuse and orders of protection, contact our DuPage County family law attorneys today by calling [[phone]].
Sources:
https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2100
https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3123&ChapterID=57
https://www.ilga.gov/legislation/ilcs/documents/075000050K603.10.htm