The Illinois Domestic Violence Act (IDVA) was enacted in 1982. It enabled protection to a greater class of persons who have been abused by a family or household member. Under the Act, survivors of domestic abuse such as “persons related by blood or marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, and persons who have or have had a dating or engagement relationship” could now be warranted safety under the law.
With an Order of Protection, a victim can ask a judge to protect them from an abuser. For example, a judge can order the abuser to:
- Stop abusive acts;
- Stay away from the victim and other people protected by the order;
- Stop contacting the victim via telephone calls, mail, email, written notes, or third parties;
- Stay away from the victim’s home, school, or work;
- Attend counseling;
- Pay child support;
- Return or stay away from the property; and
- Move out of a home they share with the victim
The IDVA allows three different types of protective orders. These are available depending on the type of protection needed:
Emergency Order of Protection
In cases where there is sufficient proof of urgent circumstances, an emergency order of protection is applicable. Most notably, an emergency order of protection can be issued without prior notice to the respondent such as an abuser. Under the IDVA, this type of protection requires the establishment of “immediate danger of further abuse…” and a balancing test between the hardship placed on the respondent versus the danger of future abuse to the petitioner.
For an emergency order of protection to be warranted, the petitioner must establish that the court has jurisdiction; that abuse by a family or household member has occurred; and that good cause to grant the remedy without notice exists because prior notice likely would result in the harm that the remedy is intended to prevent.
An emergency order is effective for not less than fourteen nor more than twenty-one days and can be extended one or more times. If the motion for extension is uncontested and no modification is requested, the order may be extended. Extensions must be obtained in open court based on the petitioner’s verified motion or affidavit stating that there has been no change in the relevant circumstances since entry of the order.
Recently, two Public Acts went into effect in 2020 that affect emergency orders of protection. Public Act 101-2552 provided that when a petition for an emergency order of protection is filed, it shall not be publicly available until it had been served. Public Act 101-5083 automated the process for filing a certified copy of the emergency order with the sheriff or appropriate law enforcement official.
Thirty-Day Interim Order of Protection
In cases where the respondent has been served with notice of the hearing or has filed a general appearance, or the petitioner is attempting to complete the required service process, a thirty-day interim order of protection is applicable.
For an interim order of protection to be warranted, the petitioner must establish the same prerequisites as required for an emergency order (abuse and jurisdiction). Moreover, an interim order may not require counseling, payment of support, or monetary compensation remedies.
An interim order is effective for up to thirty days and may be extended one or more times in open court.
Plenary Order of Protection
In cases where the respondent has been served with a notice of hearing or filed a general appearance and the petitioner has established that: the court has jurisdiction, a family member has been abused, and the respondent has answered or is in default, a plenary order of protection is applicable.
Under the IDVA, a plenary order of protection may be entered by default as follows:
(1) For any of the remedies sought in the petition, if respondent has been served or given notice in accordance with subsection (a) and if respondent then fails to appear as directed or fails to appear on any subsequent appearance or hearing date agreed to by the parties or set by the court; or
(2) For any of the remedies provided in accordance with subsection (e), if respondent fails to answer or appear in accordance with the date set in the publication notice or the hearing date indicated on the service of a household member.
A plenary order of protection must be sought by petition and shall be valid for a fixed period of time, not to exceed two years. Similarly, to emergency and interim orders, a plenary order of protection can be extended one or more times.
If you believe you are in need of an Order of Protection, let the experienced attorneys at the Lake County law firm of Johnston Tomei Lenczycki & Goldberg LLC help you with any concerns you may have. Call us today at (847) 549-0600 or email us at email@example.com to schedule a free consultation.
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