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What Are The Requirements To Obtain An Order Of Protection?

Domestic violence in Illinois is a serious problem, sometimes an order of protection is needed. But it is not just the state of Illinois that has a considerable domestic violence issue as a very real public health concern. Domestic violence is rampant across the entire nation. The causes of domestic violence, and some other details, are disputed. The final effects of domestic violence are both undisputed and chilling.

The Illinois Coalition Against Domestic Violence indicates that while these egregious acts can happen to either gender, women are the most vulnerable group to suffer abuse. In 2007 alone, of all the female homicide victims reported 45% of them lost their lives at the hands of their intimate partners.

This is compared to 5 percent of males that were murdered by their intimate counterparts. Statistically across the nation, four people, three women, and one man are murdered by an intimate partner every day. For the most part, Cook County judges do their best to intervene in such situations and stop domestic violence before it escalates to this point.

However, it’s complicated. Alleged victims clearly have rights in these situations. But alleged abusers have rights as well. Additionally, there are no statistics on the number of people who fabricate or exaggerate such allegations in order to gain an advantage in a divorce or other proceeding. Such instances are almost certainly extremely rare. But they happen.

So, the requirements to obtain a protective order in Illinois are tailored to protect the rights of both parties. These requirements include a somewhat narrow definition of “domestic violence,” limited categories of people who can request such relief, and a well-established process of dealing with these matters.

If you have been a victim of domestic violence, as defined in Illinois, and are eligible to request a protective order, it’s usually best to work with a Naperville protective order attorney to obtain such relief.

A lawyer’s presence gives legitimacy to the request. Furthermore, an order of protection is not just a piece of paper. It is a legally enforceable court order. Police officers who hesitate to respond to domestic disturbance calls often feel differently about these situations if an alleged abuser ignored a judge’s order. Furthermore, a protective order gives schools, employers, churches, daycares, and other third-party entities official notice of the problem.

Likewise, if you have been accused of domestic violence, you need a strong advocate to stand up for your legal rights. These allegations have significant direct and collateral consequences. Usually, the only way to minimize or eliminate these consequences is to challenge the allegations in court.

Domestic Violence in Illinois

There is no universally-accepted definition of domestic violence. That’s one reason many people cast aspersions on domestic violence statistics. As mentioned, the definition of such conduct in Illinois is rather narrow.

  • Physical Abuse: Pretty much any unwanted physical force could constitute physical abuse, whether or not it causes serious injury. Examples include sexual abuse, which basically means unconsented sexual contact, physical force, including unwanted restraint or confinement, certain kinds of sleep deprivation, and the catch-all “behavior which creates an immediate risk of physical harm.”
  • Harassment: In Illinois, harassment is any unnecessary conduct that causes emotional distress. Sometimes, a one-time event, like creating a disturbance at work, is sufficient. Generally, however, alleged victims must establish a pattern of harassment. That could mean making unnecessary phone calls, shadowing, spying, and making threats. The complained-of harassment could be a single issue or a combination of several types of conduct.

Domestic abuse could also involve intimidating a dependent, interfering with personal liberty, or willfully depriving the alleged victim of basic needs and therefore placing that person at risk for mental, emotional, or physical harm.

This definition usually excludes verbal and emotional abuse. Such conduct is usually relevant in a divorce or other family law proceeding. Judges have broad discretion to enter orders which limit or prohibit such conduct. But they usually don’t have this discretion in a standalone protective order claim.

Eligible Persons

The vast majority of alleged victims and alleged abusers are currently-married spouses. However, protection could also apply to any other household member. This category includes:

  • Parent or step-parent.
  • Current or former dating partner.
  • Child or step-child.
  • Current or former roommate.
  • Anyone related by blood or marriage.
  • Current or former caregiver of a disabled person.

Some of these categories are subjective. For example, sharing a meal probably does not make two people “dating partners.”

If an alleged victim does not fit into any of these categories, our Naperville protective order attorneys usually refer them to local law enforcement authorities.

Protections Available

The definition of domestic violence is rather narrow in Illinois. But the available protections are rather broad. They include:

  • Keep-Away Orders: The backbone of any protective order is a keep-away order. These orders usually prohibit the alleged abuser from confronting the alleged victim in public. These orders usually contain references to specific places, such as a workplace, school, or pretty much any other place the alleged victim requests and the judge approves.
  • Substance Use Restrictions: If the alleged abuser is under the influence of alcohol, drugs, or another substance to the extent that s/he could endanger the alleged victim or the alleged victim’s children, the alleged abuser must leave the premises and stay away from them. The “endangerment” requirement is not well-defined, but it is probably above the level of legal intoxication.
  • Personal Conduct Orders: Largely depending on the facts, a judge could order an alleged abuser to surrender owned firearms, prohibit an alleged abuser from accessing school or daycare records, and direct an alleged abuser to reimburse an alleged victim for certain expenses, mostly counseling expenses.

These orders are available if a judge believes the alleged victim would suffer harm if the court did not enter appropriate orders. The same standard applies to the issuance of ex parte (emergency) protective orders.

Additionally, a protective order may exclude an alleged abuser from a shared residence, if an immediate danger of further abuse outweighs the harm inflicted upon the alleged abuser. Similarly, a judge may award exclusive use of personal property, such as a vehicle in the alleged abuser’s name, if the alleged victim has a pressing or immediate need for such property.

Protective Order Procedure

Before we get to the procedural aspects of a protective order application, we should cover some jurisdictional issues.

Frequently, alleged victims immediately relocate after an abuse incident. Also, alleged abusers and alleged victims don’t always live together. So, for the most part, alleged victims may file protective order requests in the county where they reside, the county where the alleged abuser resides, or a county where alleged victims have temporarily fled.

Kick-out orders that exclude an alleged abuser from a shared residence are the primary exception. Such requests must normally be filed in the county where the residence is located.

Technically, there is no statute of limitations in these matters. The domestic violence could have occurred the previous week, the previous month, or the previous decade. However, the longer an alleged victim waits to file, the less likely a judge is to grant relief.

Emergency Order

As mentioned, a judge may issue a protective order based solely on the alleged victim’s affidavit if the alleged victim would be in additional danger if the alleged abuser knew about the proceeding.

Alleged abusers may request emergency orders 24/7/365. Usually, a judge or magistrate either grants or denies the application on the spot. An issued emergency order is usually effective for twenty-one days. The time period could be shorter if the evidence is weak. If the evidence is so weak that the alleged victim doesn’t qualify for an emergency order, the court promptly sets a hearing date. That date is usually two weeks out.

Interim Order

Upon proof of service, the judge may extend the protective order for an additional thirty days. So, both alleged victims and alleged abusers have time to prepare for the next step, which is a full hearing for a plenary protective order.

A judge could hold a brief evidence hearing at this stage if the alleged abuser and/or the alleged abuser’s Naperville protective order lawyer appears at the designated date, time, and place. Usually, judges limit these hearings to more extreme matters, such as kick-out orders and personal property exclusions.

Plenary Order

Following a full hearing, in which the judge gives both sides the opportunity to present evidence, challenge evidence, and make legal arguments, the judge may extend all or part of the protective order for up to two years. Plenary orders may be renewed an unlimited number of times, as long as the judge approves the renewal after a hearing.

Evidence in protective order matters includes witness testimony, medical records, educational records, and police records. So, keeping sound and detailed accounts and documents of your abuse can be critical to getting the protective order you need from your abuser.

Contact a Diligent Kane County Family Law Attorney

Both parties have significant legal rights in protective order matters. For a free consultation with an experienced Naperville protective order attorney, contact Keller Legal Services by calling 630-505-1515. Convenient payment plans are available.