Being served with an Emergency Order of Protection can be, at best, confusing and overwhelming, to say the least, when a person is in the middle of a divorce or embroiled in post-divorce custody and visitation issues. Therefore, if you have been served with an emergency order of protection, it is very important that you understand what your next steps will be, how this order might affect your pending divorce or custody arrangement, and what you can do to protect your rights.
The Emergency Order of Protection is a legal order issued by a court to protect an individual from harm or abuse. The person who asks for the order is known as the “petitioner.” The person against whom the order is issued is the “respondent.” Since an Order of Protection is in an emergency situation, the petitioner does not need to serve you, the respondent, with notice in advance. A judge may grant the order based on the testimony of the petitioner alone.
According to Illinois law, under the Illinois Domestic Violence Act-750 ILCS 60, an emergency order of protection may comprise a number of restrictions that include but are not limited to no contact whatsoever by you and between you and the petitioner. You are ordered to stay away from the petitioner’s home, workplace, or other locations. In some instances, being prohibited from seeing or contacting your children. Temporary custody or visitation rights in some circumstances.
The emergency order can only be in effect for no more than 21 days, at which time there is a hearing on whether to extend the order through what is called a plenary order of protection and could remain in place for up to two years or even longer.
Being served with an emergency order of protection is a shock. However, it is important to remain calm and take immediate action. Here’s what you should do:
First and foremost, read the order carefully to understand what is prohibited and what is expected of you. The order may include no-contact provisions, stay-away orders, and even temporary loss of custody or visitation. Any violation may constitute a criminal charge; thus, the necessity for upholding the letter and spirit of the order cannot be overemphasized.
This hearing is where you will also get to defend yourself, so start gathering any evidence that can prove your side of the story. That could be in the form of text messages, emails, social network correspondence, witness statements, or any other type of documentation that will show the interactions between you and the petitioner, along with the circumstances that resulted in the issuance of an order of protection.
The Court will schedule a hearing within 21 days of the issuance of the emergency order, and you are required to appear at that hearing to make your defense against the allegations. If you don’t appear, the court could grant a plenary order of protection in your absence, and that can be considerably longer in duration or may have increased severity in penalties.
One of the most helpful things you can do is consult with an attorney with experience in orders of protection. The attorney will help you understand exactly what the order means to you, represent you in court, and work to ensure your rights regarding custody or visitation of your children are preserved.
As with any case, a current emergency order of protection can have a significant impact on divorce or custody/visitation proceedings, but more especially on those that are pending. In other words, allegations of abuse and threats of harm are serious business in Illinois courts, particularly if the parties have children. Here are some of the ways an emergency order of protection might impact your divorce or custody case:
1. Temporary Changes to Custody and Visitation – With the issuance of an emergency order that includes provisions limiting or suspending your custody or visitation, you may be temporarily barred from seeing your children. The statute guiding Illinois Courts, 750 ILCS 5/602.7, refers to the “best interest of the child” standard in decision-making regarding parenting time and responsibilities. The court may temporarily deny or limit your parenting time pending a full hearing on the issue if the order of protection contains allegations of harm or endangerment. It will take effect only after the court has called on both parties to appear and be heard.
2. Effect on Divorce Proceedings – If you are in the process of divorcing, an emergency order of protection can complicate your case, especially if there are allegations of domestic violence. This is because the courts may give lengthier deliberations at the time of dividing property, ordering spousal maintenance, and making child custody orders when an order of protection is in place. There is a need for legal representation if one is to get a fair representation concerning any property, spousal, and child custody orders.
3. Risk of Plenary Order of Protection – Once the period of the emergency order has expired, the petitioner may ask for a plenary order of protection that may stay in place for as long as two years. A plenary order can significantly affect your future relations with your children, whether you have access to your house or even the final divorce settlement. This makes it all the more critical to attend the hearing and put up a good defense against the extension of the order.
The majority of orders of protection arise out of very heated divorce or custody battles, with many greatly exaggerated and some even completely fabricated. If you feel that the reason for this emergency order of protection is not based upon the truth of any claims, you will want to compile evidence and work with your attorney to develop a defense. The court will consider all evidence and testimony from the hearing; it is also your opportunity to tell your side of the story.
If the emergency order of protection limits your custody or visitation on a temporary basis, you should follow the order until the hearing. You risk serious consequences if you violate the order. You can, through your attorney, wish to make an argument before the court at the time of the hearing, and you should also be ready to demonstrate evidence of your capability to safely take care of your children.
Yes, this can affect such things as property division, spousal maintenance, and custody issues when a divorce is pending before the court. The courts take domestic violence seriously, and there may be a chance that a pending order of protection could make a difference in any decisions made by the judge. An attorney will protect your rights during divorce proceedings.
Any violation of the emergency order of protection is a serious offense and may even attract some criminal charges. As unfair or even based on false claims as one may feel the order is, one should bear and abide by the order until he is taken to court. The lawyer can assist one in contesting the order. However, once the order is violated, it further complicates the case for the person violating it and exposes them to possible legal penalties.
Under Illinois law, an emergency order of protection can last for as long as 21 days. A hearing will be held at that time, and the order can be extended as a plenary order of protection, which can last as long as two years. Because of this, it is of the utmost importance that one appear at this hearing and defend the order being issued.
One can contest an emergency order of protection during the hearing. You will be afforded a fair chance to present your evidence and defend yourself against the accusations. To this end, it is very important that one has an attorney who will represent their interests in court so that their side of the story is well represented and their rights are observed.
If you have been served with an emergency order of protection, get the legal help that you need immediately. At Keller Legal Services, we understand how this may impact your life, your family, and your divorce or custody case. We will walk you through the process and advocate for the protection of your rights. Contact our Chicago order of protection attorney at Keller Legal Services at 630-505-1515 to receive your free consultation. We serve clients in DuPage, Kane, and Will Counties and are ready to help you take control of your legal problems and protect your future.
