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This article covers 2023 changes to Illinois Restraining Order Laws. This article will also include a background of orders of protection and restraining orders, as well as the different types of restraining orders. This article is not intended to be exhaustive, but serves as a cursory overview of Illinois restraining orders.
This article covers 2023 changes to Illinois Restraining Order Laws. This article will also include a background of restraining orders and filing an order of protection, as well as the different types of restraining orders. This article is not intended to be exhaustive, but serves as a cursory overview of Illinois restraining orders.
Changes to Illinois Restraining Orders For 2023
Effective January 1, 2023, a petitioner seeking to file an Illinois order of protection will have the option to file online or in-person. "A court in a county with a population above 250,000 shall offer the option of a remote hearing to a petitioner for a protective order. The court has the discretion to grant or deny the request for a remote hearing. Each court shall determine the procedure for a remote hearing. The petitioner and respondent may appear remotely or in-person."
What Is An Order Of Protection Under Illinois Law?
An order of protection is a very focused order issued by the courts under The Illinois Domestic Violence Act (“IDVA”) 750 ILCS 60/102. Often when people think of restraining orders, they really mean an order of protection. Orders of protection issued by Illinois courts to prevent domestic violence from another family member or member of the household. An order of protection often comes with criminal penalties even though a civil court issued the order. Orders for protection are often more easily enforced than TROs and preliminary injunctions. It is important to note that both criminal and civil courts can be venues for orders of protections.
Who May Petition The Court For An Order Of Protection?
- The IDVA has an extensive list of who may file a petition (commonly known as the “petitioner’). The petitioner may file a case against a family member, a member of the household, caregiver, current or former boyfriend, current or former girlfriend, current or former spouse, current or former household roommate, or the other parent with whom the couple share a child.
- The IDVA states that a correctly filed petition for an order for protection may seek protection for any additional persons under the Act. 750 ILCS 60/201(b) listed below:
- The petitioner or the person whose behalf the petition was filed must be a “family member or household member” of the non-moving party (commonly known as the “respondent.) The term “family or household member includes:
- Spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior 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;
- Persons who have or have had a dating relationship or engagement relationship; and
- Persons with disabilities and their personal assistants and caregivers.
What Acts Are Barred With An Order Of Protection?
- The IDVA defines abuse with a broad stroke and is defined by 750 ILCS 60/103(1) as “physical abuse, harassment, intimidation, interference with personal liberty or willful deprivation.”
- The Idva Provides The Most Expedient Remedy For Exclusive Possession Of A Residence
- 750 ILCS 60/214(b) provides the remedy of exclusive possession to the petitioner and prevents the respondent “from entering or remaining in any residence, household, or premises of the petitioner, including one owned or leased by the respondent.”
- One can seek the remedy of temporary exclusive possession during divorce court proceedings under the IDMA 750 ILCS 5/501(c-2). However, the burden of the petitioner is a lower bar than that of the IDMA. If there is any allegation of abuse, it is best advised to pursue exclusive possession under the IDVA.
- The Civil No Contact Order Act, 740 ILCS 22/101, is not to be confused with restraining orders and orders of protection discussed above. The Civil No Contact Order Act is to provide a remedy for the aggrieved party who does not have the required relationship with the other party to pursue filing a petition under the IDVA.
What Is A Restraining Order Under Illinois Law?
A restraining order in Illinois is a rather broad term that covers orders issued by a civil court, mostly family law cases, to order a person to do or not do something. A common example is often seen in family court cases ordering a spouse to do something, like continuing paying the mortgage while the matter is pending in court. It is also common practice in family court cases to order an party to prevent doing something, like draining bank accounts.
There are three main types of restraining orders commonly used in Illinois family law cases.
- The first is a temporary restraining order or commonly known as a “TRO.”
- A TRO, and a preliminary injunction which will be discussed below following the discussion of a TRO, is temporary remedy that is designed to preserve the status quo before a court has the ability to hear the case on the merits.
- A TRO can be granted without notice if the court finds that there will be irreparable harm, and status quo will not be preserved without a court’s intervention.
- A TRO is dissolved after ten days, unless a court order extends the time period.
- A preliminary injunction is different from a TRO that notice is required for a preliminary injunction. The remedies are very similar and will be discussed below:
- Both are injunctions, which has been noted under Illinois law, to be an exceptional remedy and this remedy is not granted as a matter of right, but with great consideration that moving party’s right to this extraordinary remedy is clearly established.
- The first step to obtaining injunctive relief using a TRO or a preliminary injunction is the same; the moving party, or the commonly known as the “movant” must file a petition that is supported by an affidavit.
- The requirements for a TRO and preliminary injunction are the same under Illinois law and include the following standards to seek relief:
- The movant must demonstrate that the movant:
- Clearly possesses a right that needs protection;
- The movant will suffer immediate and irreparable harm unless injunctive relief is granted, whereas the loss of the non-moving party will relatively small if the injunctive relief is granted;
- There is no adequate at law, such as money damages, to make the movant whole; and
- The moving party has a high likelihood of prevailing on the merits.
- A plenary restraining order is an order that has become permanent after the court has heard the case on the merits.
- A TRO OFFERS IMMEDIATE AND SPECIALIZED RELIFE UNDER THE ILLINOIS MARRIAGE AND DISSOLUTION OF MARRIAGE ACT, COMMONLY CALLED THE “IDMA,”.
- A TRO can be used to prevent a the non-moving party from removing a child from the jurisdiction of the court;
- A TRO can also be used to prevent the non-moving party from hitting or interfering with the personal liberty of the moving party or of any child. There is a similar provision in the IDVA 750 ILCS 60/102(1).
- IN RE; MARRIAGE OF SLOMKA, 397 ILL.APP 3D 137, 922 N.E.2D 36, 337 ILL.DEC. 178, PROVIDES ILLINOIS LAW OF REQUIREMENTS FOR A PRELIMINARY INJUNCTION:
- As with the TRO, a preliminary injunction is an extraordinary remedy that applies to cases where an extraordinary emergency is at hand and serious harm would if the injunctive relief were not issued.
- The moving party must establish the they have a certain and ascertainable right that need protection;
- The moving party will suffer irreparable harm with the protection that the injunction can provide;
- There is no adequate remedy at law (example: money damages); and
- The moving party is likely to succeed on the merits of the case.
If you have any questions regarding new laws regarding protective orders or restraining orders in Illinois, please reach out to one of our experienced restraining order attorneys at (630) 324-6666.
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