|
(d) A person addicted to narcotics;
|
(e) A person who has been a patient of a mental institution |
within the
past 5 years or has been adjudicated as a mental |
defective;
|
(f) A person whose mental condition is of such a nature |
that it poses
a clear and present danger to the applicant, any |
other person or persons or
the community;
|
For the purposes of this Section, "mental condition" means |
a state of
mind manifested by violent, suicidal, threatening or |
assaultive behavior.
|
(g) A person who is mentally retarded;
|
(h) A person who intentionally makes a false statement in |
the Firearm
Owner's Identification Card application;
|
(i) An alien who is unlawfully present in
the United States |
under the laws of the United States;
|
(i-5) An alien who has been admitted to the United States |
under a
non-immigrant visa (as that term is defined in Section |
101(a)(26) of the
Immigration and Nationality Act (8 U.S.C. |
1101(a)(26))), except that this
subsection (i-5) does not apply |
to any alien who has been lawfully admitted to
the United |
States under a non-immigrant visa if that alien is:
|
(1) admitted to the United States for lawful hunting or |
sporting purposes;
|
(2) an official representative of a foreign government |
who is:
|
(A) accredited to the United States Government or |
|
the Government's
mission to an international |
organization having its headquarters in the United
|
States; or
|
(B) en route to or from another country to which |
that alien is
accredited;
|
(3) an official of a foreign government or |
distinguished foreign visitor
who has been so designated by |
the Department of State;
|
(4) a foreign law enforcement officer of a friendly |
foreign government
entering the United States on official |
business; or
|
(5) one who has received a waiver from the Attorney |
General of the United
States pursuant to 18 U.S.C. |
922(y)(3);
|
(j) (Blank) A person who is subject to an existing order of |
protection prohibiting
him or her from possessing a firearm;
|
(k) A person who has been convicted within the past 5 years |
of battery,
assault, aggravated assault, violation of an order |
of protection, or a
substantially similar offense in another |
jurisdiction, in which a firearm was
used or possessed;
|
(l) A person who has been convicted of domestic battery or |
a substantially
similar offense in another jurisdiction |
committed on or after January 1,
1998;
|
(m) A person who has been convicted within the past 5 years |
of domestic
battery or a substantially similar offense in |
another jurisdiction committed
before January 1, 1998;
|
|
(n) A person who is prohibited from acquiring or possessing
|
firearms or firearm ammunition by any Illinois State statute or |
by federal
law;
|
(o) A minor subject to a petition filed under Section 5-520 |
of the
Juvenile Court Act of 1987 alleging that the minor is a |
delinquent minor for
the commission of an offense that if |
committed by an adult would be a felony;
or
|
(p) An adult who had been adjudicated a delinquent minor |
under the Juvenile
Court Act of 1987 for the commission of an |
offense that if committed by an
adult would be a felony.
|
(Source: P.A. 95-581, eff. 6-1-08.)
|
(430 ILCS 65/8.2 new) |
Sec. 8.2. Firearm Owner's Identification Card denial or |
revocation. The Department of State Police shall deny an |
application or shall revoke and seize a Firearm Owner's |
Identification Card previously issued under this Act if the |
Department finds that the applicant or person to whom such card |
was issued is or was at the time of issuance subject to an |
existing order of protection.
|
Section 10. The Code of Criminal Procedure of 1963 is |
amended by changing Section 112A-14 as follows:
|
(725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
|
Sec. 112A-14. Order of protection; remedies.
|
|
(a) Issuance of order. If the court finds that petitioner |
has been
abused by a family or household member, as defined in |
this Article, an
order of protection prohibiting such abuse |
shall issue; provided that
petitioner must also satisfy the |
requirements of one of the following
Sections, as appropriate: |
Section 112A-17 on emergency orders, Section
112A-18 on interim |
orders, or Section 112A-19 on
plenary orders.
Petitioner shall |
not be denied an order of protection because petitioner or
|
respondent is a minor. The court, when determining whether or |
not to issue
an order of protection, shall not require physical |
manifestations of abuse
on the person of the victim. |
Modification and extension of prior orders of
protection shall |
be in accordance with this Article.
|
(b) Remedies and standards. The remedies to be included in |
an order of
protection shall be determined in accordance with |
this Section and one of
the following Sections, as appropriate: |
Section 112A-17 on
emergency orders,
Section 112A-18 on interim |
orders, and Section 112A-19 on
plenary orders.
The remedies |
listed in this subsection shall be in addition to other civil
|
or criminal remedies available to petitioner.
|
(1) Prohibition of abuse. Prohibit respondent's |
harassment,
interference with personal liberty, |
intimidation of a dependent, physical
abuse or willful |
deprivation, as defined in this Article, if such abuse has
|
occurred or otherwise appears likely to occur if not |
prohibited.
|
|
(2) Grant of exclusive possession of residence. |
Prohibit respondent
from entering or remaining in any |
residence or household of the petitioner,
including one |
owned or leased by respondent, if petitioner has a right
to |
occupancy thereof. The grant of exclusive possession of the |
residence
shall not affect title to real property, nor |
shall the court be limited by
the standard set forth in |
Section 701 of the Illinois Marriage and
Dissolution of |
Marriage Act.
|
(A) Right to occupancy. A party has a right to |
occupancy of a
residence or household if it is
solely |
or jointly owned or leased by that party, that party's |
spouse, a
person with a legal duty to support that |
party or a minor child in that
party's care, or by any |
person or entity other than the opposing party that
|
authorizes that party's occupancy (e.g., a domestic |
violence shelter).
Standards set forth in subparagraph |
(B) shall not preclude equitable relief.
|
(B) Presumption of hardships. If petitioner and |
respondent
each has the right to occupancy of a |
residence or household, the court
shall balance (i) the |
hardships to respondent and any minor child or
|
dependent adult in respondent's care resulting from |
entry of this remedy with (ii)
the hardships to |
petitioner and any minor child or dependent adult in
|
petitioner's care resulting from continued exposure to |
|
the risk of abuse (should
petitioner remain at the |
residence or household) or from loss of possession
of |
the residence or household (should petitioner leave to |
avoid the risk
of abuse). When determining the balance |
of hardships, the court shall also
take into account |
the accessibility of the residence or household.
|
Hardships need not be balanced if respondent does not |
have a right to occupancy.
|
The balance of hardships is presumed to favor |
possession by
petitioner unless the presumption is |
rebutted by a preponderance of the
evidence, showing |
that the hardships to respondent substantially |
outweigh
the hardships to petitioner and any minor |
child or dependent adult in petitioner's
care. The |
court, on the request of petitioner or on its own |
motion,
may order respondent to provide suitable, |
accessible, alternate housing
for petitioner instead |
of
excluding respondent from a mutual residence or |
household.
|
(3) Stay away order and additional prohibitions.
Order |
respondent to stay away from petitioner or any other person
|
protected by the order of protection, or prohibit |
respondent from entering
or remaining present at |
petitioner's school, place of employment, or other
|
specified places at times when petitioner is present, or |
both, if
reasonable, given
the balance of hardships. |
|
Hardships need not be balanced for the court
to enter a |
stay away order or prohibit entry
if respondent has no |
right to enter the premises.
|
If an order of protection grants petitioner exclusive |
possession
of the residence, or prohibits respondent from |
entering the residence,
or orders respondent to stay away |
from petitioner or other
protected persons, then the court |
may allow respondent access to the
residence to remove |
items of clothing and personal adornment
used exclusively |
by respondent, medications, and other items as the court |
directs.
The right to access shall be exercised on only one |
occasion as the court directs
and in the presence of an |
agreed-upon adult third party or law enforcement officer.
|
(4) Counseling. Require or recommend the respondent to |
undergo
counseling for a specified duration with a social |
worker, psychologist,
clinical psychologist, psychiatrist, |
family service agency, alcohol or
substance abuse program, |
mental health center guidance counselor, agency
providing |
services to elders, program designed for domestic violence
|
abusers or any other guidance service the court deems |
appropriate. The court may order the respondent in any |
intimate partner relationship to report to an Illinois |
Department of Human Services protocol approved partner |
abuse intervention program for an assessment and to follow |
all recommended treatment.
|
(5) Physical care and possession of the minor child. In |
|
order to protect
the minor child from abuse, neglect, or |
unwarranted separation from the person
who has been the |
minor child's primary caretaker, or to otherwise protect |
the
well-being of the minor child, the court may do either |
or both of the following:
(i) grant petitioner physical |
care or possession of the minor child, or both, or
(ii) |
order respondent to return a minor child to, or not remove |
a minor child
from, the physical care of a parent or person |
in loco parentis.
|
If a court finds, after a hearing, that respondent has |
committed abuse
(as defined in Section 112A-3) of a minor |
child, there shall be a
rebuttable presumption that |
awarding physical care to respondent would not
be in the |
minor child's best interest.
|
(6) Temporary legal custody.
Award temporary legal |
custody to petitioner in accordance with this Section,
the |
Illinois Marriage
and Dissolution of Marriage Act, the |
Illinois Parentage Act of 1984,
and this State's Uniform |
Child-Custody
Jurisdiction and Enforcement Act.
|
If a court finds, after a hearing, that respondent
has |
committed abuse (as defined in Section 112A-3) of a
minor |
child, there shall be a rebuttable presumption that |
awarding
temporary legal custody to respondent would not be |
in the
child's best interest.
|
(7) Visitation. Determine the
visitation rights, if |
any, of respondent in any case in which the court
awards |
|
physical care or temporary legal custody of a minor child |
to
petitioner. The court shall restrict or deny |
respondent's visitation with
a minor child if
the court |
finds that respondent has done or is likely to do any of |
the
following: (i) abuse or endanger the minor child during |
visitation; (ii) use the
visitation as an opportunity to |
abuse or harass petitioner or
petitioner's family or |
household members; (iii) improperly conceal or
detain the |
minor child; or (iv) otherwise act in a manner that is not |
in
the best interests of the minor child. The court shall |
not be limited by the
standards set forth in Section 607.1 |
of the Illinois Marriage and
Dissolution of Marriage Act. |
If the court grants visitation, the order
shall specify |
dates and times for the visitation to take place or other
|
specific parameters or conditions that are appropriate. No |
order for
visitation shall refer merely to the term |
"reasonable visitation".
|
Petitioner may deny respondent access to the minor |
child if, when
respondent arrives for visitation, |
respondent is under the influence of drugs
or alcohol and |
constitutes a threat to the safety and well-being of
|
petitioner or petitioner's minor children or is behaving in |
a violent or abusive manner.
|
If necessary to protect any member of petitioner's |
family or
household from future abuse, respondent shall be |
prohibited from coming to
petitioner's residence to meet |
|
the minor child for visitation, and the
parties shall |
submit to the court their recommendations for reasonable
|
alternative arrangements for visitation. A person may be |
approved to
supervise visitation only after filing an |
affidavit accepting
that responsibility and acknowledging |
accountability to the court.
|
(8) Removal or concealment of minor child.
Prohibit |
respondent from
removing a minor child from the State or |
concealing the child within the
State.
|
(9) Order to appear. Order the respondent to
appear in |
court, alone
or with a minor child, to prevent abuse, |
neglect, removal or concealment of
the child, to return the |
child to the custody or care of the petitioner or
to permit |
any court-ordered interview or examination of the child or |
the
respondent.
|
(10) Possession of personal property. Grant petitioner |
exclusive
possession of personal property and, if |
respondent has possession or
control, direct respondent to |
promptly make it available to petitioner, if:
|
(i) petitioner, but not respondent, owns the |
property; or
|
(ii) the parties own the property jointly; sharing |
it would risk
abuse of petitioner by respondent or is |
impracticable; and the balance of
hardships favors |
temporary possession by petitioner.
|
If petitioner's sole claim to ownership of the property |
|
is that it is
marital property, the court may award |
petitioner temporary possession
thereof under the |
standards of subparagraph (ii) of this paragraph only if
a |
proper proceeding has been filed under the Illinois |
Marriage and
Dissolution of Marriage Act, as now or |
hereafter amended.
|
No order under this provision shall affect title to |
property.
|
(11) Protection of property. Forbid the respondent |
from taking,
transferring, encumbering, concealing, |
damaging or otherwise disposing of
any real or personal |
property, except as explicitly authorized by the
court, if:
|
(i) petitioner, but not respondent, owns the |
property; or
|
(ii) the parties own the property jointly,
and the |
balance of hardships favors granting this remedy.
|
If petitioner's sole claim to ownership of the property |
is that it is
marital property, the court may grant |
petitioner relief under subparagraph
(ii) of this |
paragraph only if a proper proceeding has been filed under |
the
Illinois Marriage and Dissolution of Marriage Act, as |
now or hereafter amended.
|
The court may further prohibit respondent from |
improperly using the
financial or other resources of an |
aged member of the family or household
for the profit or |
advantage of respondent or of any other person.
|
|
(11.5) Protection of animals. Grant the petitioner the |
exclusive care, custody, or control of any animal owned, |
possessed, leased, kept, or held by either the petitioner |
or the respondent or a minor child residing in the |
residence or household of either the petitioner or the |
respondent and order the respondent to stay away from the |
animal and forbid the respondent from taking, |
transferring, encumbering, concealing, harming, or |
otherwise disposing of the animal.
|
(12) Order for payment of support. Order
respondent to |
pay temporary
support for the petitioner or any child in |
the petitioner's care or
custody, when the respondent has a |
legal obligation to support that person,
in accordance with |
the Illinois Marriage and Dissolution
of Marriage Act, |
which shall govern, among other matters, the amount of
|
support, payment through the clerk and withholding of |
income to secure
payment. An order for child support may be |
granted to a petitioner with
lawful physical care or |
custody of a child, or an order or agreement for
physical |
care or custody, prior to entry of an order for legal |
custody.
Such a support order shall expire upon entry of a |
valid order granting
legal custody to another, unless |
otherwise provided in the custody order.
|
(13) Order for payment of losses. Order
respondent to |
pay petitioner
for losses suffered as a direct result of |
the abuse. Such losses shall
include, but not be limited |
|
to, medical expenses, lost earnings or other
support, |
repair or replacement of property damaged or taken, |
reasonable
attorney's fees, court costs and moving or other |
travel expenses, including
additional reasonable expenses |
for temporary shelter and restaurant meals.
|
(i) Losses affecting family needs. If a party is |
entitled to seek
maintenance, child support or |
property distribution from the other party
under the |
Illinois Marriage and Dissolution of Marriage Act, as |
now or
hereafter amended, the court may order |
respondent to reimburse petitioner's
actual losses, to |
the extent that such reimbursement would be |
"appropriate
temporary relief", as authorized by |
subsection (a)(3) of
Section 501 of that Act.
|
(ii) Recovery of expenses. In the case of an |
improper concealment
or removal of a minor child, the |
court may order respondent to pay the reasonable
|
expenses incurred or to be incurred in the search for |
and recovery of the
minor child, including but not |
limited to legal fees, court costs, private
|
investigator fees, and travel costs.
|
(14) Prohibition of entry. Prohibit the respondent |
from entering or
remaining in the residence or household |
while the respondent is under the
influence of alcohol or |
drugs and constitutes a threat to the safety and
well-being |
of the petitioner or the petitioner's children.
|
|
(14.5) Prohibition of firearm possession. |
(a) When a complaint is made
under a request for an |
order of protection, that the respondent has |
threatened
or is likely to use firearms illegally |
against the petitioner, and the
respondent is present |
in court, or has failed to appear after receiving |
actual
notice, the court shall examine on oath the |
petitioner, and any witnesses who
may be produced. If |
the court is satisfied that there is any danger of the
|
illegal use of firearms, and the respondent is present |
in court, it shall issue an order that any firearms in |
the
possession of the respondent, except as provided in |
subsection (b), be turned
over to the local law |
enforcement agency
for safekeeping. If the court is |
satisfied that there is any danger of the illegal use |
of firearms, and the respondent is present in court, it |
shall issue an order that the respondent's Firearm |
Owner's Identification Card be turned over to the local |
law enforcement agency for safekeeping. If the court is |
satisfied that there is any danger of the illegal use |
of firearms, and if If the respondent is not present in |
court has failed to appear, the court shall
issue a |
warrant for seizure of the respondent's Firearm |
Owner's Identification Card and any firearm in the |
possession of the respondent, except as provided in |
subsection (b), be turned over to the local law |
|
enforcement agency for safekeeping.
The period of |
safekeeping shall be for a stated period of time not to |
exceed 2
years. The firearm or firearms shall be |
returned to the respondent at the end
of the stated |
period or at expiration of the order of protection, |
whichever is
sooner.
|
(b) If the respondent is a peace officer as defined |
in Section 2-13 of
the
Criminal Code of 1961, the court |
shall order that any firearms used by the
respondent in |
the performance of his or her duties as a
peace officer |
be surrendered to
the chief law enforcement executive |
of the agency in which the respondent is
employed, who |
shall retain the firearms for safekeeping for the |
stated period
not to exceed 2 years as set forth in the |
court order.
|
(c) Upon expiration of the period of safekeeping, |
if the firearms or Firearm Owner's Identification Card |
cannot be returned to respondent because respondent |
cannot be located, fails to respond to requests to |
retrieve the firearms, or is not lawfully eligible to |
possess a firearm, upon petition from the local law |
enforcement agency, the court may order the local law |
enforcement agency to destroy the firearms, use the |
firearms for training purposes, or for any other |
application as deemed appropriate by the local law |
enforcement agency; or that the firearms be turned over |
|
to a third party who is lawfully eligible to possess |
firearms, and who does not reside with respondent.
|
(15) Prohibition of access to records. If an order of |
protection
prohibits respondent from having contact with |
the minor child,
or if petitioner's address is omitted |
under subsection (b) of
Section 112A-5, or if necessary to |
prevent abuse or wrongful removal or
concealment of a minor |
child, the order shall deny respondent access to, and
|
prohibit respondent from inspecting, obtaining, or |
attempting to
inspect or obtain, school or any other |
records of the minor child
who is in the care of |
petitioner.
|
(16) Order for payment of shelter services. Order |
respondent to
reimburse a shelter providing temporary |
housing and counseling services to
the petitioner for the |
cost of the services, as certified by the shelter
and |
deemed reasonable by the court.
|
(17) Order for injunctive relief. Enter injunctive |
relief necessary
or appropriate to prevent further abuse of |
a family or household member or
to effectuate one of the |
granted remedies, if supported by the balance of
hardships. |
If the harm to be prevented by the injunction is abuse or |
any
other harm that one of the remedies listed in |
paragraphs (1) through (16)
of this subsection is designed |
to prevent, no further evidence is necessary
to establish |
that the harm is an irreparable injury.
|
|
(c) Relevant factors; findings.
|
(1) In determining whether to grant a
specific remedy, |
other than payment of support, the
court shall consider |
relevant factors, including but not limited to the
|
following:
|
(i) the nature, frequency, severity, pattern and |
consequences of the
respondent's past abuse of the |
petitioner or any family or household
member, |
including the concealment of his or her location in |
order to evade
service of process or notice, and the |
likelihood of danger of future abuse to
petitioner or
|
any member of petitioner's or respondent's family or |
household; and
|
(ii) the danger that any minor child will be abused |
or neglected or
improperly removed from the |
jurisdiction, improperly concealed within the
State or |
improperly separated from the child's primary |
caretaker.
|
(2) In comparing relative hardships resulting to the |
parties from loss
of possession of the family home, the |
court shall consider relevant
factors, including but not |
limited to the following:
|
(i) availability, accessibility, cost, safety, |
adequacy, location and other
characteristics of |
alternate housing for each party and any minor child or
|
dependent adult in the party's care;
|
|
(ii) the effect on the party's employment; and
|
(iii) the effect on the relationship of the party, |
and any minor
child or dependent adult in the party's |
care, to family, school, church
and community.
|
(3) Subject to the exceptions set forth in paragraph |
(4) of this
subsection, the court shall make its findings |
in an official record or in
writing, and shall at a minimum |
set forth the following:
|
(i) That the court has considered the applicable |
relevant factors
described in paragraphs (1) and (2) of |
this subsection.
|
(ii) Whether the conduct or actions of respondent, |
unless
prohibited, will likely cause irreparable harm |
or continued abuse.
|
(iii) Whether it is necessary to grant the |
requested relief in order
to protect petitioner or |
other alleged abused persons.
|
(4) For purposes of issuing an ex parte emergency order |
of protection,
the court, as an alternative to or as a |
supplement to making the findings
described in paragraphs |
(c)(3)(i) through (c)(3)(iii) of this subsection, may use
|
the following procedure:
|
When a verified petition for an emergency order of |
protection in
accordance with the requirements of Sections |
112A-5 and 112A-17 is
presented to the court, the court |
shall examine petitioner on oath or
affirmation. An |
|
emergency order of protection shall be issued by the court
|
if it appears from the contents of the petition and the |
examination of
petitioner that the averments are |
sufficient to indicate abuse by
respondent and to support |
the granting of relief under the issuance of the
emergency |
order of protection.
|
(5) Never married parties. No rights or |
responsibilities for a minor
child born outside of marriage |
attach to a putative father until a father and
child |
relationship has been established under the Illinois |
Parentage Act of
1984. Absent such an adjudication, no |
putative father shall be granted
temporary custody of the |
minor child, visitation with the minor child, or
physical |
care
and possession of the minor child, nor shall
an order |
of payment for support of the minor child be entered.
|
(d) Balance of hardships; findings. If the court finds that |
the balance
of hardships does not support the granting of a |
remedy governed by
paragraph (2), (3), (10), (11), or (16) of
|
subsection (b) of this Section,
which may require such |
balancing, the court's findings shall so
indicate and shall |
include a finding as to whether granting the remedy will
result |
in hardship to respondent that would substantially outweigh the |
hardship
to petitioner
from denial of the remedy. The findings |
shall be an official record or in
writing.
|
(e) Denial of remedies. Denial of any remedy shall not be |
based, in
whole or in part, on evidence that:
|
|
(1) Respondent has cause for any use of force, unless |
that cause
satisfies the standards for justifiable use of |
force provided by Article
VII of the Criminal Code of 1961;
|
(2) Respondent was voluntarily intoxicated;
|
(3) Petitioner acted in self-defense or defense of |
another, provided
that, if petitioner utilized force, such |
force was justifiable under
Article VII of the Criminal |
Code of 1961;
|
(4) Petitioner did not act in self-defense or defense |
of another;
|
(5) Petitioner left the residence or household to avoid |
further abuse
by respondent;
|
(6) Petitioner did not leave the residence or household |
to avoid further
abuse by respondent;
|
(7) Conduct by any family or household member excused |
the abuse by
respondent, unless that same conduct would |
have excused such abuse if the
parties had not been family |
or household members.
|
(Source: P.A. 95-234, eff. 1-1-08; 95-773, eff. 1-1-09.)
|
Section 15. The Illinois Domestic Violence Act of 1986 is |
amended by changing Sections 214 and 217 as follows:
|
(750 ILCS 60/214) (from Ch. 40, par. 2312-14)
|
Sec. 214. Order of protection; remedies.
|
(a) Issuance of order. If the court finds that petitioner |
|
has been
abused by a family or household member or that |
petitioner is a high-risk
adult who has been abused, neglected, |
or exploited, as defined in this Act,
an order of protection |
prohibiting the abuse, neglect, or exploitation
shall issue; |
provided that petitioner must also satisfy the requirements of
|
one of the following Sections, as appropriate: Section 217 on |
emergency
orders, Section 218 on interim orders, or Section 219 |
on plenary orders.
Petitioner shall not be denied an order of |
protection because petitioner or
respondent is a minor. The |
court, when determining whether or not to issue
an order of |
protection, shall not require physical manifestations of abuse
|
on the person of the victim. Modification and extension of |
prior
orders of protection shall be in accordance with this |
Act.
|
(b) Remedies and standards. The remedies to be included in |
an order of
protection shall be determined in accordance with |
this Section and one of
the following Sections, as appropriate: |
Section 217 on emergency orders,
Section 218 on interim orders, |
and Section 219 on plenary orders. The
remedies listed in this |
subsection shall be in addition to other civil or
criminal |
remedies available to petitioner.
|
(1) Prohibition of abuse, neglect, or exploitation. |
Prohibit
respondent's harassment, interference with |
personal liberty, intimidation
of a dependent, physical |
abuse, or willful deprivation, neglect or
exploitation, as |
defined in this Act, or stalking of the petitioner, as |
|
defined
in Section 12-7.3 of the Criminal Code of 1961, if |
such abuse, neglect,
exploitation, or stalking has |
occurred or otherwise appears likely to occur if
not |
prohibited.
|
(2) Grant of exclusive possession of residence. |
Prohibit respondent from
entering or remaining in any |
residence, or household, or premises of the petitioner,
|
including one owned or leased by respondent, if petitioner |
has a right to
occupancy thereof. The grant of exclusive |
possession of the residence, household, or premises shall |
not
affect title to real property, nor shall the court be |
limited by the standard
set forth in Section 701 of the |
Illinois Marriage and Dissolution of Marriage
Act.
|
(A) Right to occupancy. A party has a right to |
occupancy of a
residence or household if it is solely |
or jointly owned or leased by that
party, that party's |
spouse, a person with a legal duty to support that |
party or
a minor child in that party's care, or by any |
person or entity other than the
opposing party that |
authorizes that party's occupancy (e.g., a domestic
|
violence shelter). Standards set forth in subparagraph |
(B) shall not preclude
equitable relief.
|
(B) Presumption of hardships. If petitioner and |
respondent
each has the right to occupancy of a |
residence or household, the court
shall balance (i) the |
hardships to respondent and any minor child or
|
|
dependent adult in respondent's care resulting from |
entry of this remedy with
(ii) the hardships to |
petitioner and any minor child or dependent adult in
|
petitioner's care resulting from continued exposure to |
the risk of abuse
(should petitioner remain at the |
residence or household) or from loss of
possession of |
the residence or household (should petitioner leave to |
avoid the
risk of abuse). When determining the balance |
of hardships, the court shall
also take into account |
the accessibility of the residence or household.
|
Hardships need not be balanced if respondent does not |
have a right to
occupancy.
|
The balance of hardships is presumed to favor |
possession by
petitioner unless the presumption is |
rebutted by a preponderance of the
evidence, showing |
that the hardships to respondent substantially |
outweigh
the hardships to petitioner and any minor |
child or dependent adult in
petitioner's care. The |
court, on the request of petitioner or on its own
|
motion, may order respondent to provide suitable, |
accessible, alternate housing
for petitioner instead |
of excluding respondent from a mutual residence or
|
household.
|
(3) Stay away order and additional prohibitions.
Order |
respondent to stay away from petitioner or any other person
|
protected by the order of protection, or prohibit |
|
respondent from entering
or remaining present at |
petitioner's school, place of employment, or other
|
specified places at times when petitioner is present, or |
both, if
reasonable, given the balance of hardships. |
Hardships need not be balanced for
the court to enter a |
stay away order or prohibit entry if respondent has no
|
right to enter the premises.
|
If an order of protection grants petitioner exclusive |
possession
of the residence, or prohibits respondent from |
entering the residence,
or orders respondent to stay away |
from petitioner or other
protected persons, then the court |
may allow respondent access to the
residence to remove |
items of clothing and personal adornment
used exclusively |
by respondent, medications, and other items as the court
|
directs. The right to access shall be exercised on only one |
occasion as the
court directs and in the presence of an |
agreed-upon adult third party or law
enforcement officer.
|
(4) Counseling. Require or recommend the respondent to |
undergo
counseling for a specified duration with a social |
worker, psychologist,
clinical psychologist, psychiatrist, |
family service agency, alcohol or
substance abuse program, |
mental health center guidance counselor, agency
providing |
services to elders, program designed for domestic violence
|
abusers or any other guidance service the court deems |
appropriate. The Court may order the respondent in any |
intimate partner relationship to report to an Illinois |
|
Department of Human Services protocol approved partner |
abuse intervention program for an assessment and to follow |
all recommended treatment.
|
(5) Physical care and possession of the minor child. In |
order to protect
the minor child from abuse, neglect, or |
unwarranted separation from the person
who has been the |
minor child's primary caretaker, or to otherwise protect |
the
well-being of the minor child, the court may do either |
or both of the
following: (i) grant petitioner physical |
care or possession of the minor child,
or both, or (ii) |
order respondent to return a minor child to, or not remove |
a
minor child from, the physical care of a parent or person |
in loco parentis.
|
If a court finds, after a hearing, that respondent has |
committed abuse
(as defined in Section 103) of a minor |
child, there shall be a
rebuttable presumption that |
awarding physical care to respondent would not
be in the |
minor child's best interest.
|
(6) Temporary legal custody. Award temporary legal |
custody to petitioner
in accordance with this Section, the |
Illinois Marriage and Dissolution of
Marriage Act, the |
Illinois Parentage Act of 1984, and this State's Uniform
|
Child-Custody Jurisdiction and Enforcement Act.
|
If a court finds, after a hearing, that respondent has |
committed abuse (as
defined in Section 103) of a minor |
child, there shall be a rebuttable
presumption that |
|
awarding temporary legal custody to respondent would not be |
in
the child's best interest.
|
(7) Visitation. Determine the visitation rights, if |
any, of respondent in
any case in which the court awards |
physical care or temporary legal custody of
a minor child |
to petitioner. The court shall restrict or deny |
respondent's
visitation with a minor child if the court |
finds that respondent has done or is
likely to do any of |
the following: (i) abuse or endanger the minor child during
|
visitation; (ii) use the visitation as an opportunity to |
abuse or harass
petitioner or petitioner's family or |
household members; (iii) improperly
conceal or detain the |
minor child; or (iv) otherwise act in a manner that is
not |
in the best interests of the minor child. The court shall |
not be limited
by the standards set forth in Section 607.1 |
of the Illinois Marriage and
Dissolution of Marriage Act. |
If the court grants visitation, the order shall
specify |
dates and times for the visitation to take place or other |
specific
parameters or conditions that are appropriate. No |
order for visitation shall
refer merely to the term |
"reasonable visitation".
|
Petitioner may deny respondent access to the minor |
child if, when
respondent arrives for visitation, |
respondent is under the influence of drugs
or alcohol and |
constitutes a threat to the safety and well-being of
|
petitioner or petitioner's minor children or is behaving in |
|
a violent or
abusive manner.
|
If necessary to protect any member of petitioner's |
family or
household from future abuse, respondent shall be |
prohibited from coming to
petitioner's residence to meet |
the minor child for visitation, and the
parties shall |
submit to the court their recommendations for reasonable
|
alternative arrangements for visitation. A person may be |
approved to
supervise visitation only after filing an |
affidavit accepting
that responsibility and acknowledging |
accountability to the court.
|
(8) Removal or concealment of minor child. Prohibit |
respondent from
removing a minor child from the State or |
concealing the child within the State.
|
(9) Order to appear. Order the respondent to appear in |
court, alone
or with a minor child, to prevent abuse, |
neglect, removal or concealment of
the child, to return the |
child to the custody or care of the petitioner or
to permit |
any court-ordered interview or examination of the child or |
the
respondent.
|
(10) Possession of personal property. Grant petitioner |
exclusive
possession of personal property and, if |
respondent has possession or
control, direct respondent to |
promptly make it available to petitioner, if:
|
(i) petitioner, but not respondent, owns the |
property; or
|
(ii) the parties own the property jointly; sharing |
|
it would risk
abuse of petitioner by respondent or is |
impracticable; and the balance of
hardships favors |
temporary possession by petitioner.
|
If petitioner's sole claim to ownership of the property |
is that it is
marital property, the court may award |
petitioner temporary possession
thereof under the |
standards of subparagraph (ii) of this paragraph only if
a |
proper proceeding has been filed under the Illinois |
Marriage and
Dissolution of Marriage Act, as now or |
hereafter amended.
|
No order under this provision shall affect title to |
property.
|
(11) Protection of property. Forbid the respondent |
from taking,
transferring, encumbering, concealing, |
damaging or otherwise disposing of
any real or personal |
property, except as explicitly authorized by the
court, if:
|
(i) petitioner, but not respondent, owns the |
property; or
|
(ii) the parties own the property jointly,
and the |
balance of hardships favors granting this remedy.
|
If petitioner's sole claim to ownership of the property |
is that it is
marital property, the court may grant |
petitioner relief under subparagraph
(ii) of this |
paragraph only if a proper proceeding has been filed under |
the
Illinois Marriage and Dissolution of Marriage Act, as |
now or hereafter amended.
|
|
The court may further prohibit respondent from |
improperly using the
financial or other resources of an |
aged member of the family or household
for the profit or |
advantage of respondent or of any other person.
|
(11.5) Protection of animals. Grant the petitioner the |
exclusive care, custody, or control of any animal owned, |
possessed, leased, kept, or held by either the petitioner |
or the respondent or a minor child residing in the |
residence or household of either the petitioner or the |
respondent and order the respondent to stay away from the |
animal and forbid the respondent from taking, |
transferring, encumbering, concealing, harming, or |
otherwise disposing of the animal.
|
(12) Order for payment of support. Order respondent to |
pay temporary
support for the petitioner or any child in |
the petitioner's care or
custody, when the respondent has a |
legal obligation to support that person,
in accordance with |
the Illinois Marriage and Dissolution
of Marriage Act, |
which shall govern, among other matters, the amount of
|
support, payment through the clerk and withholding of |
income to secure
payment. An order for child support may be |
granted to a petitioner with
lawful physical care or |
custody of a child, or an order or agreement for
physical |
care or custody, prior to entry of an order for legal |
custody.
Such a support order shall expire upon entry of a |
valid order granting
legal custody to another, unless |
|
otherwise provided in the custody order.
|
(13) Order for payment of losses. Order respondent to |
pay petitioner for
losses suffered as a direct result of |
the abuse, neglect, or exploitation.
Such losses shall |
include, but not be limited to, medical expenses, lost
|
earnings or other support, repair or replacement of |
property damaged or taken,
reasonable attorney's fees, |
court costs and moving or other travel expenses,
including |
additional reasonable expenses for temporary shelter and |
restaurant
meals.
|
(i) Losses affecting family needs. If a party is |
entitled to seek
maintenance, child support or |
property distribution from the other party
under the |
Illinois Marriage and Dissolution of Marriage Act, as |
now or
hereafter amended, the court may order |
respondent to reimburse petitioner's
actual losses, to |
the extent that such reimbursement would be |
"appropriate
temporary relief", as authorized by |
subsection (a)(3) of Section 501 of
that Act.
|
(ii) Recovery of expenses. In the case of an |
improper concealment
or removal of a minor child, the |
court may order respondent to pay the
reasonable |
expenses incurred or to be incurred in the search for |
and recovery
of the minor child, including but not |
limited to legal fees, court costs,
private |
investigator fees, and travel costs.
|
|
(14) Prohibition of entry. Prohibit the respondent |
from entering or
remaining in the residence or household |
while the respondent is under the
influence of alcohol or |
drugs and constitutes a threat to the safety and
well-being |
of the petitioner or the petitioner's children.
|
(14.5) Prohibition of firearm possession.
|
(a) When a complaint is made
under a request for an |
order of protection, that the respondent has |
threatened
or is likely to use firearms illegally |
against the petitioner, and the
respondent is present |
in court, or has failed to appear after receiving |
actual
notice, the court shall examine on oath the |
petitioner, and any witnesses who
may be produced. If |
the court is satisfied that there is any danger of the
|
illegal use of firearms, it shall issue an order that |
any firearms and any Firearm Owner's Identification |
Card in the
possession of the respondent, except as |
provided in subsection (b), be turned
over to the local |
law enforcement agency
for safekeeping. If the |
respondent has failed to appear, the court shall
issue |
a warrant for seizure of any firearm and Firearm |
Owner's Identification Card in the possession of the |
respondent.
The period of safekeeping shall be for a |
stated period of time not to exceed 2
years. The |
firearm or firearms and Firearm Owner's Identification |
Card shall be returned to the respondent at the end
of |
|
the stated period or at expiration of the order of |
protection, whichever is
sooner.
|
(b) If the respondent is a peace officer as defined |
in Section 2-13 of
the
Criminal Code of 1961, the court |
shall order that any firearms used by the
respondent in |
the performance of his or her duties as a
peace officer |
be surrendered to
the chief law enforcement executive |
of the agency in which the respondent is
employed, who |
shall retain the firearms for safekeeping for the |
stated period
not to exceed 2 years as set forth in the |
court order.
|
(15) Prohibition of access to records. If an order of |
protection
prohibits respondent from having contact with |
the minor child,
or if petitioner's address is omitted |
under subsection (b) of
Section 203, or if necessary to |
prevent abuse or wrongful removal or
concealment of a minor |
child, the order shall deny respondent access to, and
|
prohibit respondent from inspecting, obtaining, or |
attempting to
inspect or obtain, school or any other |
records of the minor child
who is in the care of |
petitioner.
|
(16) Order for payment of shelter services. Order |
respondent to
reimburse a shelter providing temporary |
housing and counseling services to
the petitioner for the |
cost of the services, as certified by the shelter
and |
deemed reasonable by the court.
|
|
(17) Order for injunctive relief. Enter injunctive |
relief necessary
or appropriate to prevent further abuse of |
a family or household member
or further abuse, neglect, or |
exploitation of a high-risk adult with
disabilities or to |
effectuate one of the granted remedies, if supported by the
|
balance of hardships. If the harm to be prevented by the |
injunction is abuse
or any other harm that one of the |
remedies listed in paragraphs (1) through
(16) of this |
subsection is designed to prevent, no further evidence is
|
necessary that the harm is an irreparable injury.
|
(c) Relevant factors; findings.
|
(1) In determining whether to grant a specific remedy, |
other than
payment of support, the court shall consider
|
relevant factors, including but not limited to the |
following:
|
(i) the nature, frequency, severity, pattern and |
consequences of the
respondent's past abuse, neglect |
or exploitation of the petitioner or
any family or |
household member, including the concealment of his or |
her
location in order to evade service of process or |
notice, and the likelihood of
danger of future abuse, |
neglect, or exploitation to petitioner or any member of
|
petitioner's or respondent's family or household; and
|
(ii) the danger that any minor child will be abused |
or neglected or
improperly removed from the |
jurisdiction, improperly concealed within the
State or |
|
improperly separated from the child's primary |
caretaker.
|
(2) In comparing relative hardships resulting to the |
parties from loss
of possession of the family home, the |
court shall consider relevant
factors, including but not |
limited to the following:
|
(i) availability, accessibility, cost, safety, |
adequacy, location and
other characteristics of |
alternate housing for each party and any minor child
or |
dependent adult in the party's care;
|
(ii) the effect on the party's employment; and
|
(iii) the effect on the relationship of the party, |
and any minor
child or dependent adult in the party's |
care, to family, school, church
and community.
|
(3) Subject to the exceptions set forth in paragraph |
(4) of this
subsection, the court shall make its findings |
in an official record or in
writing, and shall at a minimum |
set forth the following:
|
(i) That the court has considered the applicable |
relevant factors
described in paragraphs (1) and (2) of |
this subsection.
|
(ii) Whether the conduct or actions of respondent, |
unless
prohibited, will likely cause irreparable harm |
or continued abuse.
|
(iii) Whether it is necessary to grant the |
requested relief in order
to protect petitioner or |
|
other alleged abused persons.
|
(4) For purposes of issuing an ex parte emergency order |
of protection,
the court, as an alternative to or as a |
supplement to making the findings
described in paragraphs |
(c)(3)(i) through (c)(3)(iii) of this subsection, may
use |
the following procedure:
|
When a verified petition for an emergency order of |
protection in
accordance with the requirements of Sections |
203 and 217 is
presented to the court, the court shall |
examine petitioner on oath or
affirmation. An emergency |
order of protection shall be issued by the court
if it |
appears from the contents of the petition and the |
examination of
petitioner that the averments are |
sufficient to indicate abuse by
respondent and to support |
the granting of relief under the issuance of the
emergency |
order of protection.
|
(5) Never married parties. No rights or |
responsibilities for a minor
child born outside of marriage |
attach to a putative father until a father and
child |
relationship has been established under the Illinois |
Parentage Act of
1984, the Illinois Public Aid Code, |
Section 12 of the Vital Records Act, the
Juvenile Court Act |
of 1987, the Probate Act of 1985, the Revised Uniform
|
Reciprocal Enforcement of Support Act, the Uniform |
Interstate Family Support
Act, the Expedited Child Support |
Act of 1990, any judicial, administrative, or
other act of |
|
another state or territory, any other Illinois statute, or |
by any
foreign nation establishing the father and child |
relationship, any other
proceeding substantially in |
conformity with the Personal Responsibility and
Work |
Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), |
or where both
parties appeared in open court or at an |
administrative hearing acknowledging
under
oath or |
admitting by affirmation the existence of a father and |
child
relationship.
Absent such an adjudication, finding, |
or acknowledgement, no putative
father shall be granted
|
temporary custody of the minor child, visitation with the |
minor child, or
physical care and possession of the minor |
child, nor shall an order of payment
for support of the |
minor child be entered.
|
(d) Balance of hardships; findings. If the court finds that |
the balance
of hardships does not support the granting of a |
remedy governed by
paragraph (2), (3), (10), (11), or (16) of |
subsection (b) of this Section,
which may require such |
balancing, the court's findings shall so
indicate and shall |
include a finding as to whether granting the remedy will
result |
in hardship to respondent that would substantially outweigh the |
hardship
to petitioner from denial of the remedy. The findings |
shall be an official
record or in writing.
|
(e) Denial of remedies. Denial of any remedy shall not be |
based, in
whole or in part, on evidence that:
|
(1) Respondent has cause for any use of force, unless |
|
that cause
satisfies the standards for justifiable use of |
force provided by Article
VII of the Criminal Code of 1961;
|
(2) Respondent was voluntarily intoxicated;
|
(3) Petitioner acted in self-defense or defense of |
another, provided
that, if petitioner utilized force, such |
force was justifiable under
Article VII of the Criminal |
Code of 1961;
|
(4) Petitioner did not act in self-defense or defense |
of another;
|
(5) Petitioner left the residence or household to avoid |
further abuse,
neglect, or exploitation by respondent;
|
(6) Petitioner did not leave the residence or household |
to avoid further
abuse, neglect, or exploitation by |
respondent;
|
(7) Conduct by any family or household member excused |
the abuse,
neglect, or exploitation by respondent, unless |
that same conduct would have
excused such abuse, neglect, |
or exploitation if the parties had not been
family or |
household members.
|
(Source: P.A. 95-234, eff. 1-1-08; 95-773, eff. 1-1-09.)
|
(750 ILCS 60/217) (from Ch. 40, par. 2312-17)
|
Sec. 217. Emergency order of protection.
|
(a) Prerequisites. An emergency order of protection shall |
issue if
petitioner satisfies the requirements of this |
subsection for one or more of the
requested remedies. For each |
|
remedy requested, petitioner shall establish
that:
|
(1) The court has jurisdiction under Section 208;
|
(2) The requirements of Section 214 are satisfied; and
|
(3) There is good cause to grant the remedy, regardless |
of prior service
of process or of notice upon the |
respondent, because:
|
(i) For
the remedies of "prohibition of abuse" |
described in
Section 214(b)(1), "stay away order and |
additional prohibitions" described in
Section
|
214(b)(3), "removal or concealment of minor child" |
described in Section
214(b)(8), "order to appear" |
described in Section 214(b)(9), "physical
care and |
possession of the minor child" described in Section |
214(b)(5),
"protection of property" described in |
Section 214(b)(11), "prohibition
of entry" described |
in Section 214(b)(14), "prohibition of firearm |
possession" described in Section 214(b)(14.5), |
"prohibition of access to
records" described in |
Section 214(b)(15), and "injunctive relief"
described |
in Section 214(b)(16), the harm which that remedy
is |
intended to prevent would be likely to occur if the |
respondent were given
any prior notice, or greater |
notice than was actually given, of the
petitioner's |
efforts to obtain judicial relief;
|
(ii) For the remedy of "grant of exclusive |
possession of
residence" described in Section |
|
214(b)(2), the immediate danger of further
abuse of |
petitioner by respondent,
if petitioner chooses or had |
chosen to remain in the residence or household
while |
respondent was given any prior notice or greater notice |
than was
actually given of petitioner's efforts to |
obtain judicial relief,
outweighs the hardships to |
respondent of an emergency order
granting petitioner |
exclusive possession of the residence or household.
|
This remedy shall not be denied because petitioner has |
or could obtain
temporary shelter elsewhere while |
prior notice is given to respondent, unless
the
|
hardships to respondent from exclusion from the home |
substantially outweigh
those to petitioner;
|
(iii) For the remedy of "possession of personal |
property"
described in
Section 214(b)(10), improper |
disposition of the personal
property would be likely
to |
occur if respondent were given any prior notice, or |
greater notice than
was actually given, of |
petitioner's efforts to obtain judicial relief, or
|
petitioner has an immediate and pressing need for |
possession of that property.
|
An emergency order may not include the counseling, legal |
custody, payment
of support or monetary compensation remedies.
|
(b) Appearance by respondent.
If respondent appears in |
court for this hearing for an emergency order,
he or she may |
elect to file a general appearance and testify.
Any resulting |
|
order may be an emergency order, governed
by this Section.
|
Notwithstanding the requirements of this Section, if all |
requirements of
Section 218 have been met, the court may issue |
a 30-day interim order.
|
(c) Emergency orders: court holidays and evenings.
|
(1) Prerequisites. When the court is unavailable at the |
close of
business, the petitioner may file a petition for a |
21-day emergency order
before any available circuit judge |
or associate judge who may grant relief
under this Act. If |
the judge finds that there is an immediate and present
|
danger of abuse to petitioner and that petitioner has |
satisfied the
prerequisites set forth in subsection (a) of |
Section 217, that judge may
issue an emergency order of |
protection.
|
(1.5) Issuance of order. The chief judge of the circuit |
court
may designate for each county in the circuit at least |
one judge to be
reasonably available to
issue orally, by |
telephone, by facsimile, or otherwise, an emergency
order |
of protection at all times, whether or not the court is in |
session.
|
(2) Certification and transfer. Any order issued under |
this Section and
any documentation in support thereof shall |
be certified on the next court
day to the appropriate |
court. The clerk of that court shall immediately
assign a |
case number, file the petition, order and other documents |
with the
court, and enter the order of record and file it |