Public Act 90-0118 of the 90th General Assembly
Public Act 90-0118
HB1613 Enrolled LRB9003936SMdv
AN ACT in relation to domestic violence.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 2. The Criminal Code of 1961 is amended by
adding Section 12-6.3 as follows:
(720 ILCS 5/12-6.3 new)
Sec. 12-6.3. Interfering with the reporting of domestic
violence.
(a) A person commits the offense of interfering with the
reporting of domestic violence when, after having committed
an act of domestic violence, he or she prevents or attempts
to prevent the victim of or a witness to the act of domestic
violence from calling a 9-1-1 emergency telephone system,
obtaining medical assistance, or making a report to any law
enforcement official.
(b) For the purposes of this Section, the following
terms shall have the indicated meanings:
(1) "Domestic violence" shall have the meaning
ascribed to it in Section 112A-3 of the Code of Criminal
Procedure of 1963.
(2) "Family or household members" shall have the
meaning ascribed to it in Section 112A-3 of the Code of
Criminal Procedure of 1963.
(c) Sentence. Interfering with the reporting of
domestic violence is a Class A misdemeanor.
Section 5. The Illinois Domestic Violence Act of 1986 is
amended by changing Section 214 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 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.
(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 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.
(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 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 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 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. 88-45; 89-367, eff. 1-1-96.)