Remedies for Illinois Orders of Protection

Remedies for Illinois Orders of Protection

422346000
Updated on:
July 9, 2018

In this article, we will explain the different remedies that are available when Illinois courts issue Orders of Protection.  Orders of Protection are court orders intended to prevent abuse and harassment between family or household members.  For some foundational knowledge, check out our article: Illinois Orders of Protection Explained.   

When a petition for an Order of Protection is filed, Illinois courts have broad discretion regarding what remedies may be granted to the petitioner in order to prevent future abuse.  An Illinois court may order the following remedies when granting a Petition for Order of Protection:

Exclusive Possession of a Shared Residence

The court may prohibit the respondent from entering or remaining in the petitioner’s residence, even if the respondent owns or leases the residence.  In order for the court to order that the petitioner will have exclusive possession of the residence, the petitioner must have a right to occupancy of the residence, even if this right is jointly held with the respondent.  

Who has a Right of Occupancy in a Residence?

An individual has a “right of occupancy” of a residence if it is solely or jointly owned or leased by him or her, by his or spouse, by a person with a legal duty to support him or her or a minor child in his or her care, or by anyone other other than the opposing party that authorizes his or her occupancy.  Therefore, a petitioner for an order of protection may be granted exclusive possession of a residence even if the residence is solely owned by the respondent.  

How do Illinois Courts Determine Whether to Award Exclusive Possession of a Residence if Both Parties Have a Right of Occupancy?

When both parties to an order of protection have a right of occupancy in the residence, Illinois courts will apply a test known as “balancing the hardships.”  If the risk of future abuse outweighs the hardships the respondent will face if forced to leave the residence, the court will award exclusive possession of the residence to the petitioner.  Note that if the respondent does not have a right of occupancy, the court is not required to balance the hardships before awarding exclusive possession.

When balancing the hardships Illinois courts will weigh the following factors:

  • The availability, cost, safety, adequacy, location and other characteristics of alternate housing for each party and any minor children or other dependents in each party’s care;
  • The effect of relocation on each party’s employment;
  • The effect of relocation on each party’s and dependents’ relationships to family, school, church and community;

When courts balance the hardships, there is a presumption in favor of granting the petitioner exclusive possession.  The respondent may rebut this presumption by showing by a “preponderance of the evidence” that the respondent’s hardships related to relocation would substantially outweigh those of the petitioner and the petitioner’s dependents.  “Preponderance of the evidence” is the default evidentiary standard which simply requires a the showing of a 51% likelihood of truth to prove a case.  

If the court determines that the respondent will face a greater hardship due to relocation than the petitioner, the court may order the respondent to provide alternative housing for the petitioner.    

Stay-Away Orders

A “stay-away order” may prohibit the respondent from coming within a certain distance of the petitioner or the petitioner’s residence, work, school, or other specific locations.  The order may also prohibit the respondent from having contact with other protected parties, such as the petitioner’s minor children.  If the petitioner and respondent attend the same school, the court may order the respondent to change schools.  

In determining whether a respondent has violated a stay-away order by being in proximity to a protected party in a public area, the court will consider the following factors:

  • The size of the public area;
  • The number of people present;
  • The reason that the respondent was present;
  • The length of time that the respondent and petitioner were in proximity; and
  • Whether the respondent knew or should have known that the protected party was present.  

Stay-away orders can prohibit indirect contact with protected parties, such as:

  • Phone calls;
  • Mail;
  • E-mail;
  • Letters;
  • And contact through third parties.  

Stay-away orders will not penalize unintentional contact.    

Other Remedies for Illinois Orders of Protection

In addition to exclusive possession of a residence and stay-away orders, Illinois courts may include the following remedies in an order of protection:

  • Counseling:  The court may order that the respondent attend various forms of counseling for a particular time period.
  • Exclusive Possession of Personal Property: The court may award the petitioner exclusive possession of personal property that is owned by the petitioner or that is jointly owned by the petitioner and the respondent.  “Personal property” includes any property other than real estate.  In determining whether to award exclusive possession of personal property, courts will apply the balancing of hardships test discussed above.  
  • Parenting Time and Responsibilities:  The court may allocate parenting time and responsibilities, including restricting the respondent’s visitation rights.  Check out our article: Allocation of Parenting Time and Responsibility in Illinois Orders of Protection
  • Payment of Child Support or Maintenance: Orders of protection can include an order to pay any child support or maintenance that the law requires.  This remedy is only available after personal service and a hearing, and is not available for emergency orders of protection.   
  • Money Damages for Losses:  The court can order the respondent to pay petitioner for losses suffered as a direct result of abuse, neglect or exploitation, including attorney fees and court costs, moving expenses, medical expenses, lost wages, repair or replacement cost of damaged or stolen property, and expenses for temporary shelter and meals.  This remedy is only available after personal service and a hearing, and is not available for emergency orders of protection.  
  • Prohibition of Entry: An order of protection may prohibit the respondent from entering or remaining in a shared residence while the respondent is under the influence of alcohol or drugs.
  • Restrictions on Possession of Firearms: The court may prohibit or restrict the respondent from possessing firearms during the duration of the order.  This remedy requires personal service and a hearing, and is not available for emergency orders of protection.
  • Injunctions: The court may issue an injunction, which is an order requiring the respondent to take or refrain from a particular action.  The standard that the court uses in determining whether to issue an injunction is whether the injunction is necessary to prevent abuse or effect another remedy that has been ordered.  In issuing an injunction the court will apply the balancing of hardships test discussed above.

Presented By O'Flaherty Law

O'Flaherty Law is happy to meet with you by phone or at our offices in Downers Grove, Elmhurst, Naperville, St. Charles, Lake in the Hills and Tinley Park, Illinois.

Leave a Comment With Your Questions

Read more about

Orders of Protection

Remedies for Illinois Orders of Protection
Disclaimer: Our articles and comment responses do not constitute legal advice and are not intended to create an attorney-client relationship.

Please contact us to schedule a free consultation for legal advice specific to your situation.

order of protection remedies illinoisillinois restraining order remedies Exclusive Possession of a Shared ResidenceStay-Away Ordersorders of protection and child support illinoisorders of protection and child custody illinois

Subscribe to our mailing list

* indicates required

Here are some articles that may interest you

Categories