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:
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.
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.
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:
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.
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:
Stay-away orders can prohibit indirect contact with protected parties, such as:
Stay-away orders will not penalize unintentional contact.
In addition to exclusive possession of a residence and stay-away orders, Illinois courts may include the following remedies in an order of protection: