Frequently Asked Questions Regarding Orders of Protection in Illinois Civil or Criminal Court

What is an Order of Protection (OP)?

 

Why Should a Victim File for an Order of Protection?

 

Who can Apply for an Order of Protection?

 

What Can an Order of Protection Do for Me? (What Remedies Can I Ask For?)

 

How Can My Children be Protected with an Order of Protection if the Abuser is Their Other Parent?

 

Are there Additional Protections for Individuals with Disabilities?

 

Can I Get Free Help in Filling Out My Order of Protection and Going to Court?

 

Are there any Filing or Service Charges to get an Order of Protection?

 

Where Do I Go to Get an Order of Protection?

 

How do I file for an Emergency Order of Protection?

 

What Happens after the Court gives me an Emergency Order of Protection?

 

How Long is an Order of Protection in Effect?

 

How do I Change Some of the Items in My Order of Protection After the Judge Issues It?

 

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An Order of Protection (OP) is a court order that is designed to help protect Victims from abuse by a family or household members. An OP is a legal document that a Judge signs which orders the Abuser to stop the abusive behavior, and an OP can order the Abuser to do certain activities like return your children, property, or pay child support. Civil courts are more willing to give a Victim help regarding child custody issues, like child support and visitation, than criminal courts.

The Victim in an Order of Protection is called the Petitioner, and the Abuser is called the Respondent.

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Most Abusers become more violent over time, and beatings tend to become more frequent and more severe. Research has shown that children raised in violent homes are affected negatively by Domestic Violence. An Order of Protection is a legal tool that a Victim can use to try to become safer. In an OP the Victim tells the Court and the Police that the abuse has happened and the Victim and the children need protection. When the Victim files for an OP, the Victim is asking that any future abuse stop. A Victim is also telling the Abuser that the abuse is not a secret, and that the Victim will reach out for help to the Court if the abuse continues.

The Abuser will not go to jail when an Order of Protection is issued unless the Abuser violates the Order. If the Abuser complies with the Order, the Abuser will not have a criminal record as a result of you filing for an OP.

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The Abuser must be:

1. Your Spouse or former Spouse,
2. Your parent or your child or stepchild,
3. Other persons related to you by blood or by present or prior marriage,
4. Persons you share or previously shared a common dwelling,
5. Persons you have or allegedly share a blood relationship through a child,
6. Persons you have or have had a dating relationship, or
7. Persons with disabilities and their personal assistants.

Anyone who is abused by a family or household member may become a Petitioner and request an Order of Protection in Court. Most OP’s are obtained by women who have been abused by their husbands and boyfriends. Also, Orders of Protection are available for abused children, elderly parents, roommates, ex-spouses, siblings, and others who meet the expanded definition of eligibility.

Click here to read Who is Eligible under the Law to ask for an Order of Protection in Civil Court. Click here to read Who is Eligible in Criminal Court if a criminal case has been filed against the Abuser.

For a Victim to apply for an Order of Protection, the Abuser must have either:

1.  Abused you:

Abuse is defined as Physical Abuse, Harassment, Intimidation of a Dependent, Interference with Personal Liberty, or Willful Deprivation.

• Physical Abuse includes sexual abuse, and also is defined as a knowing and reckless use of physical force, confinement or restraint. Also, it includes repeated sleep deprivation, etc.
  
  Under the law, Physical Abuse is also defined as conduct that creates an immediate risk of physical harm. So while Physical Abuse clearly includes striking a Victim with hands or feet, or attacking a Victim with some object used as a weapon, it also includes conduct by the Abuser that creates an immediate risk of physical harm. Examples are the Abuser driving at a dangerous speed with the Victim in the car or threatening the Victim by the use of objects.

2.  Harassed you:

Harassment is defined as conduct by the Abuser that would cause a reasonable person distress. The law presumes that the following behavior would cause emotional distress:

• Creating a disturbance at the Victim’s place of employment or school,
• Repeatedly telephoning Victim’s place of employment, home or residence,
• Repeatedly following the Victim about in a public place or keeping the Victim under surveillance by remaining outside the Victim’s home, school, employment, vehicle, or by peering into Victim’s windows,
• Improperly concealing a minor child from the Victim or repeatedly threatening to do so, or
• Threatening a Victim with physical force, confinement or restraint on one or more occasions.

3.  Caused Intimidation of a Dependent:

This is defined as forcing a person who is dependant because of age, health or disability to participate in or be a witness to physical force, confinement or restraint of another, regardless of whether the abused person is a family or household member.

4.  Caused Interference with your Personal Liberty:

This is defined as an Abuser committing or threatening to commit physical abuse, harassment, etc. to a Victim to make the Victim do what the Abuser wants.

5.  Caused Willful Deprivation:

 

This also applies to Victims who are dependent because of age, health, or disability. The law prohibits denying these persons medication, medical care, shelter, food, therapeutic devices, etc. if it would expose that person to a risk of physical, mental or emotional harm.

Read Illinois Law in Civil Court and Criminal Court that Defines the Conduct that is Prohibited by the Illinois Domestic Violence Act which allows a Victim to file for an Order of Protection.

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The Illinois Domestic Violence Act was written in an attempt to have the Court help Victims handle the many issues surrounding family safety. In an Order of Protection, the Judge can order a number of Remedies for your safety, both in civil court and in criminal court, including:

1. Forbid any further abuse, neglect or exploitation.
2. Order the Abuser not to enter the shared home for a period of time. This is often called a vacate order or an exclusive possession order.
3. Order the Abuser to stay away from person or persons protected by the order or prohibit the Abuser from entering or remaining in a specified place.
4. Require or recommend counseling for the Abuser.
5. Award physical care and possession of minor child.
6. Award temporary legal custody.
7. Determine visitation.
8. Prohibit the Abuser from removing the child from the state or concealing the child within the state.
9. Order the Abuser to appear in court alone, or with the child.
10. Grant possession of personal property to the Victim.
11. Forbid the Abuser from taking, transferring or destroying the Victim’s property.
12. Order the Abuser to pay temporary support to the Victim and/or children.
13. Order the Abuser to pay the Victim for losses suffered as a direct result of the abuse (medical and dental expenses, repair/replace damaged property, attorney’s fees, court costs, etc.)
14. Prohibit the Abuser from entering or remaining in the residence or household while the Abuser is under the influence of alcohol or drugs.
15. Prohibit the Abuser from any illegal possession of firearms.
16. Prohibit the Abuser access to school records if the Abuser is prohibited contact with a minor child.
17. Order the Abuser to reimburse a DV Program providing temporary shelter and counseling to Petitioner.
18. Order injunctive relief as necessary or appropriate to prevent further abuse.

The Remedies in Illinois Law that are Available to Victims in an Order of Protection are the same in civil court or criminal court.

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There are some remedies available to the Victim in an Order of Protection to keep your children safe.

Children who grow up in violent homes come to believe that violence is normal. An OP can grant you temporary custody of your children and order the Abuser to return the children to you, if the Abuser took them away.

Illinois law regarding Temporary Legal Custody of Children in an Order of Protection is the same in Civil Court or Criminal Court.

You can request that the Court allow the Abuser to have visitation with the children only during specific times and under specific circumstances such as no drug or alcohol use during the visitation.

Illinois law regarding Visitation of Children in an Order of Protection is the same in Civil Court or Criminal Court.

You can request that the Court state in the Order of Protection that the Abuser is ordered to pay Temporary Child Support during the time the OP is in effect. The other Parent of your child has the legal duty to help support the child, even if you were not married to each other. You may need to establish Paternity before you can have child support ordered, if you were not married.

Illinois law regarding Temporary Child Support in an Order of Protection is the same in Civil Court or Criminal Court, however it is usually easier to obtain child support in an Order of Protection in civil court rather than in criminal court.

If Paternity of your child has not been established, click here for more information on the Paternity of Children.

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Any person may file an Order of Protection on behalf of a high-risk adult with disabilities who has been abused, neglected or exploited by a family or household member. Regarding high-risk adults with disabilities, the "family or household member" definition includes any person who has the responsibility for a high-risk adult.

A person may be an adult with disabilities even though he or she has never been adjudicated an incompetent adult. However, high-risk adults with disabilities are particularly vulnerable to crimes of domestic violence because of impairments in their ability to seek protection.

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Yes, free help is available to assist you in getting an Order of Protection.

If you cannot find an Attorney, most Illinois Domestic Violence Programs have Domestic Abuse Court Advocates who are non-attorneys that have specialized knowledge on how to file an Order of Protection in Court.

Click here to read the law on the role of the Domestic Abuse Advocates in Court.

Many times these Court Advocates also work with the Victim and her Attorney to explain the dynamics of domestic violence and provide support to the Victim in the court process. The Advocate provides the Victim’s attorney help in preparing the Victim for court and gathering reports and other evidence. The Court Advocate also provides social service information, transportation, and emotional support to the Victim.

Click here to see a List of Domestic Violence Programs in your area.

Clerks of the Court are required by the Illinois Domestic Violence Act to provide simplified forms and clerical assistance to domestic violence victims who do not have attorneys.

Click here to read the Illinois law that requires Clerks to provide clerical assistance.

Some Legal Services for the Low Income Programs across Illinois provide free help in obtaining Orders of Protection. In some counties, there are a limited number of private Attorneys who handle cases free.

Click here to view the List of Illinois Legal Services Programs or to see a List of Pro Bono (free) Attorneys that might be available in a limited number of areas.

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Illinois law states there is no filing fee with the Court or fee to serve the Abuser the Order of Protection by the sheriff. There also should be no charge for certifying the Order.

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An Order of Protection can be obtained in either Civil Court or Criminal Court in Illinois. Basically, there are three ways to obtain an Order of Protection:

1. Criminal Court,
2. Civil Court in an action by itself, or
3. Civil Court in connection with a divorce, child support, parentage or other case.

In Criminal Court, if the State’s Attorney’s office is prosecuting the Abuser for a crime, you can ask for an Order of Protection. For example, if the Abuser hits or threatens you, and the State’s Attorney’s office files a domestic battery charge, then you can request they help you obtain an Order of Protection also.

If the Abuser has not been arrested, you should go to the Police Department or the State’s Attorney’s office and tell them you would like criminal charges filed against the Abuser. You should also tell them you want to have an OP filed. (In the Chicago area, ask for a Warrant Officer if criminal charges are not yet filed against the Abuser.) It may be difficult to get child custody, visitation, or child support issues covered in the OP if it is handled in Criminal Court.

If there are criminal charges against the Abuser involving you, you should ask the State’s Attorney’s office to help you get an Order of Protection in that criminal case. However, if there are no criminal charges pending against the Abuser, you can file for an OP in civil court in the Circuit Clerk’s office at the Courthouse.

The Petition for an OP in civil court can be filed at the Circuit Clerk’s office by itself. It is free to file the form in the Clerk’s office. You do not have to file for a divorce or even be married to the Abuser to ask for an OP. It is usually much easier to obtain temporary custody and child support in an OP in Civil Court than in Criminal Court. If you do not have an attorney, contact the closest Domestic Violence Program and speak to a Court Advocate. Some Circuit Clerks at the Courthouse help victims complete OP forms.

Click here to read the Illinois laws that allow Court Advocates and Circuit Clerks at the Courthouse help victims in filling out OP forms.

In Civil Court, the answer is "Yes." An OP can qualify to be added to some other civil case including divorce, paternity, and support cases. Click here to view the Illinois law for the types of Civil Court Cases to which an Order of Protection may be added.

In Criminal Court, the answer is "No." An OP is commenced in conjunction with a delinquency petition or a criminal prosecution. View the Illinois law regarding the filing of an OP in Criminal Court Cases.

If you are filing for an OP in Civil Court, you should file a Petition for an Order of Protection in one of the following counties:

• Where you live, or
• Where the Abuser lives, or
• Where the abuse happened, or
• Where you had to flee to seek shelter.

Where to file the Civil Petition is known as "Venue" and is covered under the Illinois Domestic Violence Act

In Criminal Court, the Petition for an Order of Protection is filed in the county in which the criminal case is filed.

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Obtain a Petition for an Order of Protection from your attorney, a Court Advocate at a Domestic Violence program, or a Circuit Court Clerk at the Courthouse. You will be asked to list the most recent act of abusive or threatening behavior and any history of such behavior. You should describe in detail any injuries you received, any weapons used, and if anyone else was present, including children.

Go through all the remedies listed on the Petition and chose the ones that will provide safety for you and your children.

You will need to go to Court and a Judge will review your Petition for an Order of Protection. The Judge will decide whether an Order will be issued and what remedies will be included in the Order.

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If the Court grants you an Emergency Order of Protection and the Abuser is not present in the Courtroom, a copy will be given to the Sheriff’s office. The Sheriff’s office should immediately attempt to serve the Abuser with the Order. Of course, how long it takes for the Order to be served on the Abuser will vary in individual circumstances. The Emergency Order of Protection is not effective until the Abuser is served with the Order.

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An Emergency Order of Protection that you receive at your first court appearance will usually last no more than 21 days. You must return to the Court if you want your OP to last longer. When you return to Court, the Judge will decide how long the OP will last up to a maximum of two years.

If the Abuser does not get served with the OP, then the Judge can extend the OP to allow for more time for service by the Sheriff’s office.

There are three types of Orders of Protection:

1. Emergency Order of Protection

   If you believe that harm will occur to you if the Abuser knew you would be seeking an OP, you are eligible to request an OP without giving any notice to the Abuser.

   An Emergency Order of Protection may be obtained just on your testimony and court appearance alone; that is, the abuser is not there to tell his side of the story. Before issuing an Emergency OP, the Judge must find that there is good cause to grant it without first notifying the Abuser, and the Judge must apply different standards before granting individual remedies (for example, that you would likely be harmed if the Abuser knew you were seeking legal protection).

   Emergency Orders of Protection can last for not less than 14 nor more than 21 days. The Emergency Order can be extended one or more times for additional 14-21 day periods. The Judge can award you "physical care" or possession of your child. Also, the Order can contain all the remedies except those ordering the abuser to attend counseling or to pay any money.

   It is always up to the Judge how long the Emergency Order of Protection will be in effect. The law states the Court can order that it be effective for up to 30 days.

    

2. Interim Order of Protection

   An Interim Order of Protection can be obtained in cases where the Abuser has been notified of the court hearing but has not necessarily been personally served with all the legal papers. Interim Orders of Protection are good for up to 30 days, and can be extended one or more times.

   Interim Orders of Protection can contain all the remedies, although the ones ordering the Abuser to attending counseling or to pay money are available only when the Abuser has been personally served or has filed a general appearance with the court meaning the Abuser has received a copy of your written request for the Order and has indicated to the court he knows of the hearing and plans to be there.

   Please note that it is always up to the Judge how long the Interim Order of Protection will be in effect. The law states the Court can order that it be effective for up to 30 days.

    

3. Plenary Order of Protection

   A Plenary, or full Order of Protection, is available when all the legal requirements of notice, service, etc. for the Abuser have been satisfied.

   All the remedies in the law can be requested. A Plenary Order of Protection can last up to two years from the date the Judge signs it. The Order can be extended by the Judge after it expires if the abuse has continued during the two year period.

   Please note that it is always up to the Judge how long the Plenary Order of Protection will be in effect. For example, if the Abuser is convicted of a crime and sentenced to six months probation, the Judge might issue a Plenary Order to last for six months only.

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ONLY THE JUDGE CAN AMEND YOUR ORDER OF PROTECTION.

If you want to add or remove something in your OP after the Judge has signed it, you must return to Court. If you have an Attorney you should contact them. Or, the Clerk’s office or the Court Advocate at the DV Program closest to you may be able to help you.

There is no automatic change to your OP just because the Abuser wants to have contact with you or you have changed your mind on some of the items in your OP. If you want to add a Remedy or change an existing one, then you should file a Modification of OP form and give your reasons.

For example, if you want to request restricted visitation of the children because of safety concerns, you should file the Modification of OP form. Also, if you decide you want to have some contact with the Abuser, the Modification form should be filed in Court and brought in front of the Judge. If this is not done, each contact the Abuser has with you can be charged as a violation of the OP.

If you need to have your Order of Protection modified, contact your attorney, Court Advocate, or Circuit Court Clerk at the Courthouse for a form and the procedure for filing.

No change to the original Order of Protection is effective until the Judge orders the change in Court.