In this article we explain Illinois Orders of Protection, including: what is an Order of Protection and how is it different from a restraining order?, who can file an Order of Protection?, how do Illinois courts decide whether to issue an Order of Protection?, and how to enforce an Order of Protection.
Orders of protection are court orders that can protect one family member or household member from the actions another. They are governed by the Illinois Domestic Violence Act.
Courts will grant an Order of Protection if the petitioner proves three elements:
A restraining order is a broad term used to generally cover orders from a civil court requiring one of the parties to take certain actions or refrain from taking certain actions. Orders of Protection are the correct term for what most people mean when they talk about “restraining order.” Orders of Protection have the specific purpose of preventing domestic abuse. They tend to be more easily enforceable and have stiffer penalties than typical civil injunctions.
A petition for an order of protection in Illinois can only be successfully obtained by:
One of the key limitations on who can file a petition for an order of protection is that the petitioner (or the person on whose behalf the petitioner is filing the petition) must be a family member or household member of the person against whom the order of protection is being sought (the “respondent”). Illinois courts construe the term “family member” liberally.
Any family member or household member can be named as the respondent, even if the respondent is a minor.
The Illinois Domestic Violence Act defines “family or household member” as:
In determining whether the petitioner and respondent have a dating or engagement relationship so as to make the petitioner eligible for an order of protection, the court will weigh the following factors:
Individuals who may not file a petition for an order of protection may be able to file a petition for a Stalking No Contact Order.
In order for Illinois courts to issue an Order of Protection, the respondent must have engaged in “abuse” or must have “neglected” or “exploited” a “high-risk” disabled adult. The definition of “abuse” for the purposes of Orders of Protection is much broader than just physical attacks. For a full discussion on what constitutes “abuse” for the purposes of Illinois Orders of Protection, check out our article: What Constitutes “Abuse” for the Purpose of an Order of Protection in Illinois? To learn more about “neglect” and “exploitation” of disabled adults for the purposes of Illinois Orders of Protection, read our article: Illinois Orders of Protection for Neglect or Exploitation of a Disabled Adult.
Minor children of the petitioner and anyone who lives with the petitioner can be included as additional protected parties in the order of protection. In addition, protection can also extend to anyone residing or employed at a public shelter or private home at which an abused family or household member is residing.
Judges have the discretion to prohibit a broad range of behaviors, including:
For a deeper discussion on remedies for Illinois orders of protection, check out our article: Remedies for Illinois Orders of Protection Explained.
There are three basic types of Orders of Protection in Illinois: Emergency Orders of Protection, Interim Orders of Protection, and Plenary Orders of Protection. Emergency Orders of Protection are intended to cover the time period before a respondent can be properly served with process. Interim Orders of Protection are intended to cover the period between service of process and a final hearing on the merits of the case. Plenary Orders of Protection are the final orders that the court enters after a full hearing. For a deeper discussion on Emergency Orders of Protection and Interim Orders of Protection, check out our article: Illinois Emergency Orders of Protection and Interim Orders of Protection Explained.
Illinois courts consider the following factors when determining whether to grant an Order of Protection and deciding which remedy is appropriate:
When an Illinois court issues an Order of Protection, the court must include the following specific findings in the order or in the court record:
Illinois courts are not permitted to deny Orders of Protection for any of the following reasons:
Proceedings for Orders of Protection follow the Illinois Rules of Civil Procedure, even if the Order of Protection proceeding is connected to a criminal matter. You can learn more about the civil litigation process here.
Order of Protection proceedings differ from typical civil proceedings in a few respects. First, unlike most civil litigation proceedings, there is no right to a jury trial in an Order of Protection proceeding. Second, Illinois courts treat Order of Protection proceedings as expedited proceedings. This means that continuances are only granted for good cause and are kept to a shorter duration than in other proceedings. If a continuance is necessary for the court to decide on some but not all of petitioner’s requested remedies, the court will reserve judgment on the issues requiring a continuance, but will not delay hearing and ruling on other issues.
The standard of proof required is “a preponderance of the evidence,” the default standard of proof in civil litigation proceedings, which requires the party with the burden of proof to show that the allegations giving rise to a cause of action are more likely than not to be true.
Generally, in Illinois, each party bears its own attorney fees. However, in an Order of Protection proceeding, if either side is found to have made untrue allegations or denials without reasonable cause, the party making the untrue allegation or denial will be responsible for paying reasonable attorney fees and other reasonable expenses incurred by the other party as a result of the untrue statements. In order to be awarded attorney fees and other expenses, the party seeking recovery must file a motion within 30 days of judgment.
How Long Will an Illinois Order of Protection Be Effective?
The permitted duration of an Illinois Order of Protection depends on whether the order is an Emergency Order of Protection, Interim Order of Protection, or Plenary Order of Protection:
An emergency, interim, or plenary order of protection may be reconsidered by the court and reheard if the respondent files a verified petition alleging:
If the original Order of Protection granted the petitioner exclusive possession of a shared residence, the court must set the rehearing date within 14 days of the petition for rehearing.
The general rule for modifying Illinois plenary Orders of Protection is that the party seeking to modify the order more than 30 days after it has been entered must show that there have been changes in the law or the facts that have occurred after the original order, which warrant modification. Further abuse by the respondent is sufficient to warrant a modification. Remedies dealing with allocation of parental time and responsibility or payment of maintenance or child support may be modified through the provisions of the Illinois Marriage and Dissolution of Marriage Act. You can learn more about such modifications here: Illinois Child Support Modification Explained.
Illinois Orders of Protection can be enforced in several ways:
O'Flaherty Law is happy to meet with you by phone or at our office locations in: