Orders
of protection are designed
to prevent domestic violence,
but they can also become part
of the gamesmanship of divorce.
This article discusses orders
of protection and how to represent
plaintiffs and defendants
in OP proceedings.
C an a parent be subject
to an order of protection
when the parent breaks a child's
pool stick because the 12-year-old
child played pool with his
friends rather than doing
his homework as instructed?
Yes, according to Peck v Otten.
1
After the breakup of a dating
relationship, do leaving notes
for, calling, and sending
roses to the former girlfriend
together constitute grounds
for an order of protection?
Yes, according to Shields
v Fry.
2
Yet far more threatening behavior
might not warrant an order
if the plaintiff is not a
"protected person"
under the law based on his
or her relationship with the
defendant.
The legislature created the
order of protection as a means
to protect the abused from
the abuser. But while orders
of protection have shielded
many abuse victims, the broad
language of their authorizing
statute, the Illinois Domestic
Violence Act ("IDVA"),
can also be used as a sword
with which litigants can attempt
to gain an advantage in civil
proceedings, usually divorce.
Divorce practitioners must
be well versed in the IDVA
to adequately represent abused
spouses and also to defend
against the use of the IDVA
as a weapon. This article
discusses the grounds under
which an order of protection
can be sought and offers pointers
for seeking and defending
against orders of protection.
Background
The statutory authority for
orders of protection is contained
in both the civil code (the
Illinois Domestic Violence
Act of 1986, 750 ILCS 60/101
et seq) and the criminal code
(725 ILCS 5/112A-1 et seq).
The criminal code substantially
tracks the language of the
civil provisions. For purposes
of this article, references
will be to the civil provisions
of the Illinois Domestic Violence
Act of 1986 (IDVA), though
the criminal code provisions
are identical or substantially
similar.
The IDVA states that its purpose
is to "[r]ecognize domestic
violence as a serious crime
against the individual and
society which produces family
disharmony in thousands of
Illinois families,"
3
and to "[r]ecognize that
the legal system has ineffectively
dealt with family violence
in the past, allowing abusers
to escape effective prosecution
or financial liability."
4
Initiating an order of protection
Orders of protection may be
initiated:
1. As an independent action,
usually bearing an "OP"
case designation thereafter
consolidated into the case
number of the divorce case;
2. In conjunction with another
civil proceeding, usually
a divorce case, therefore
adopting the case number of
the divorce case; or
3. In conjunction with a delinquency
petition or criminal prosecution.
5
Who is a protected
person under the statute?
A plaintiff must be a "protected
person" under the IDVA
to seek an order of protection,
as is illustrated by the following
hypotheticals.
Nick and Lisa. Nick's former
girlfriend, Lisa, is an avid
hunter who owns many firearms.
For several months after their
breakup, Lisa contacted Nick
via e-mail, fax, and a letter
hand-delivered to Nick at
work threatening to kill Nick
when she saw him again. Lisa,
however, neither during nor
after the dating relationship,
ever pointed a weapon at Nick.
Can Nick obtain an order of
protection against Lisa?
Nick and Sally. In contrast
to the above, Nick's co-worker,
Sally, whom he has lunch with
occasionally, pointed a gun
in Nick's face during an argument
after work and fired a warning
shot into the ground. Can
Nick obtain an order of protection
against Sally?
To answer these questions,
you as attorney must determine
whether the plaintiff is a
protected person as contemplated
by the statute. The statutory
language shows that the plaintiff
must be a family or household
member:
"Family or household
members" include spouses,
former spouses, parents, children,
stepchildren and other persons
related by blood or by present
or prior marriage, persons
who share or formerly shared
a common dwelling, persons
who have or allegedly have
a child in common, persons
who share or allegedly share
a blood relationship through
a child, persons who have
or have had a dating or engagement
relationship, persons with
disabilities and their personal
assistants, and caregivers
as defined in paragraph (3)
of subsection (b) of Section
12-21 of the Criminal Code
of 1961. For purposes of this
paragraph, neither a casual
acquaintanceship nor ordinary
fraternization between 2 individuals
in business or social contexts
shall be deemed to constitute
a dating relationship.
6
Comparison. In the scenarios
set forth above, Sally's conduct
was more immediately threatening
to Nick than was Lisa's, yet
Nick could only seek an order
of protection against Lisa,
based upon the definition
of family or household members
as set forth in 750 ILCS 60/103(6).
Though Sally's conduct may
constitute other criminal
offenses, Sally and Nick are
not household members or in
a dating relationship. Thus,
Nick cannot obtain an order
of protection against her.
In contrast, Nick was involved
in a dating relationship with
Lisa and, provided he has
grounds for an order of protection,
Lisa is a proper defendant
for an order of protection
action.
Elements of proof
Usually, a court must find
"abuse" or "harassment"
before it will grant an order
of protection. The IDPA defines
them as follows:
"Abuse" means physical
abuse, harassment, intimidation
of a dependent, interference
with personal liberty or willful
deprivation but does not include
reasonable direction of a
minor child by a parent or
person in loco parentis.
7
"Harassment" means
knowing conduct which is not
necessary to accomplish a
purpose that is reasonable
under the circumstances; would
cause a reasonable person
emotional distress; and does
cause emotional distress to
the petitioner. Unless the
presumption is rebutted by
a preponderance of the evidence,
the following types of conduct
shall be presumed to cause
emotional distress:
(i) creating a disturbance
at petitioner's place of employment
or school;
(ii) repeatedly telephoning
petitioner's place of employment,
home or residence;
(iii) repeatedly following
petitioner about in a public
place or places;
(iv) repeatedly keeping petitioner
under surveillance by remaining
present outside his or her
home, school, place of employment,
vehicle or other place occupied
by petitioner or by peering
in petitioner's windows;
(v) improperly concealing
a minor child from petitioner,
repeatedly threatening to
improperly remove a minor
child of petitioner's from
the jurisdiction or from the
physical care of petitioner,
repeatedly threatening to
conceal a minor child from
petitioner, or making a single
such threat following an actual
or attempted improper removal
or concealment, unless respondent
was fleeing an incident or
pattern of domestic violence;
or
(vi) threatening physical
force, confinement or restraint
on one or more occasions.
8
Though findings of abuse and
harassment are usually central
to an order-of-protection
proceeding, the IDVA also
prohibits other types of conduct,
including interference with
personal liberty, intimidation
of a dependent, and neglect.
Consider the following
hypotheticals:
George and Rhonda. George
came home drunk several hours
later than usual on Wednesday
nights. Rhonda and George
argued about George's tardiness
and drunkenness. During the
argument George:
1. Threatened to take the
license plates off of Rhonda's
vehicle so she could not leave;
2. Threatened to throw her
and her child out of the residence;
3. Threatened to take the
child away from Rhonda where
she could not find him;
4. Threatened to tape Rhonda's
mouth if she did not "shut
up."
George has never been charged
with a crime. George has also
never pushed, punched, or
otherwise physically harmed
Rhonda. Can Rhonda petition
for an order of protection?
Yes. George's conduct is "harassment"
according to the IDVA. With
respect to threatening to
conceal the minor child from
the mother, George's conduct
is presumed to be harassment
under 750 ILCS 60/103(7)(v).
George's threat to tape Rhonda's
mouth is also presumed to
be harassment pursuant to
750 ILCS 60/103(7)(vi).
Susy and Mike. Susy and her
husband Mike have been separated
for six months. Susy resides
in the former marital residence
with their daughter, a high
school senior.
On Monday, Mike drove his
truck to and sat in front
of the house for 30 minutes.
On Tuesday he drove by the
house very slowly on two separate
occasions. On Friday, as Susy
was driving home, Mike pulled
in front of her and hit the
brakes. The following Monday
he again drove slowly by the
house and sat in his truck
on the street out front for
about 20 minutes.
Susy suffers from multiple
sclerosis. She fears that
these continuing incidents
are adversely affecting her
health. Can she seek an order
of protection against Mike?
Yes. Mike's conduct is presumed
to be harassment under 750
ILCS 60/103(7)(iv) because
his conduct is essentially
"keeping petitioner under
surveillance by remaining
present outside his or her
home."
Perhaps Mike had a legitimate
reason to be present on those
dates and times and for those
durations. However, his conduct
is presumed to be harassment
and would entitle Susy to
an order of protection against
Mike unless he offered evidence
to demonstrate the reasonableness
and necessity of his conduct.
The impact of orders of protection
on mediation of child custody
disputes
Mediation is often successful
in resolving custody and visitation
disputes. 750 ILCS 5/602.1(b)
requires parties with joint
parenting agreements to participate
in mediation or otherwise
resolve proposed changes,
disputes or alleged breaches
of the agreement before resorting
to court involvement. Many
counties in Illinois also
require mediation before a
custody determination.
However, many counties do
not refer cases to mediation
when there is an order of
protection. Also, many judges
will refuse to enter joint
parenting agreements in cases
involving an order of protection.
Thus, remember that while
an order of protection may
bring immediate temporary
relief to your divorcing client,
it may also make the case
ineligible for mediation.
Elimination of mediation puts
the case on the path of trial
and considerable expense rather
than amicable and cost-effective
settlement.
Furthermore, an order of protection
could limit settlement options.
For example, the plaintiff's
attorney will not be able
to offer joint custody to
the defendant in return for
some concession because joint
parenting is not an option
if the defendant is subject
to an order of protection.
The impact of orders of protection
in child custody determinations
Child custody is determined
by the eight factors set forth
in section 602 of the Illinois
Marriage and Dissolution of
Marriage Act (IMDMA). Factors
(6) and (7) are:
(6) the physical violence
or threat of physical violence
by the child's potential custodian,
whether directed against the
child or directed against
another person;
(7) the occurrence of ongoing
abuse as defined in Section
103 of the Illinois Domestic
Violence Act of 1986, whether
directed against the child
or directed against another
person.
9
750 ILCS 60/214 sets forth
the remedies allowable in
an order of protection, which
includes a grant of exclusive
possession of the residence.
A party with exclusive possession
of the marital residence gains
an advantage in a custody
determination.
Orders of protection have
even been used as a sword
for a de facto modification
of custody. In Peck v Otten,
a case referred to at the
beginning of this article,
the parties were divorced
in 1995. Custody was awarded
to the mother.
In March 2000, by agreed order,
custody was transferred to
the father. In March 2001,
the mother filed a petition
for an order of protection.
At the hearing, evidence showed
that the father told the child,
Cory, age 12, that he was
going out at 8 p.m. Cory was
to clean the house and finish
his homework.
The father returned home around
12:30 a.m. There was evidence
he had been drinking. When
the father arrived home he
discovered that Cory had not
cleaned the house or completed
his homework. The father woke
the child, grabbed the pool
cue that had been given to
the child and broke it. He
told Cory that if he did not
have time to do his homework
and the housework, then he
did not have time for playing
pool.
Orders of protection – a step-by-step
guide
The trial court held the father
committed abuse in the form
of harassment as defined by
the IDVA. The appellate court
upheld the trial court, holding
that the IDVA defined harassment
as "knowing conduct which
is not necessary to accomplish
a purpose that is reasonable
under the circumstances; would
cause a reasonable person
emotional distress; and does
cause emotional distress."
The appellate court opined
that the father's actions
were unnecessary and of such
a nature to cause a reasonable
person to feel emotional stress
and did, in fact, cause a
12-year-old emotional distress.
10
A strong dissent by Justice
Holdridge argued that the
record did not support the
majority's finding that the
father committed harassment
when he broke the child's
pool cue. The dissent argued
first that the father's conduct
fell within the statutory
exception for "a reasonable
direction of a minor child
by a parent." The object
of the father's actions, according
to the dissent, was to instill
in the child the importance
of homework and household
chores rather than recreational
activities. There was no evidence
that the child was struck
or even touched by the father.
It was a demonstrative lesson.
Despite the spirited dissent,
an order of protection was
entered which transferred
possession of the child back
to the mother.
How to obtain an order of
protection
Each county has its own set
of forms and local rules.
The forms contain much of
the same requested information,
such as name, date of birth,
height and weight of the defendant,
driver's license number, address,
etc.
The key component for the
practitioner is the affidavit
setting forth the allegations.
Most courthouse forms do not
provide enough room to fully
state the facts. There is
no requirement in the IDVA
that the attorney limit the
verified petition for order
of protection to the forms
provided by the courts. It
is acceptable and good practice
to include as an exhibit a
typed, completed affidavit
as to the specific date and
time of each incident of abuse,
harassment, etc., and the
impact of each such incident
(such as bruising, frightening,
etc.) on the abused.
A good petition for an order
of protection will describe
each incident in great detail
as it relates to the definitions
of abuse, harassment, or any
other prohibited conduct under
the IDVA. Customarily, the
court will issue the emergency
order at the ex parte hearing
without testimony. However,
the client must be present
to testify, because some courts
will request testimony along
with the petition.
After service of the order
of protection, any witnesses
who saw the incidents of violence
or abuse should be asked to
attend or, if necessary, should
be brought to court by subpoena
by the plaintiff's attorney.
Most of the testimony about
what the other party said
should be admitted as non-hearsay
based on the hearsay exception
for admissions made by a party
opponent into evidence. Furthermore,
the testimony must be tailored
to prove the elements of harassment,
abuse, or other prohibited
conduct under the IDVA.
Pictures of bruises, damaged
property, etc., are useful
and should be offered into
evidence whenever possible.
Also helpful is any additional
third party testimony as to
arguments, damaged property,
bruises, medical records,
and the impact of defendant's
conduct on the plaintiff.
How to defend against
entry of an order of protection
Customarily, the emergency
order of protection is in
place for 21 days. On the
return date, the defendant
has an opportunity to argue
against the issuance of a
plenary order of protection.
One defense strategy is to
request an earlier hearing
date. Under 750 ILCS 60/224,
a defendant can request an
earlier date upon two days
notice.
If the plaintiff on the order
of protection is pro se, the
defendant can often defeat
the order by filing an earlier
hearing – a section 224 motion
– providing two days' notice.
If the plaintiff fails to
appear at the re-hearing because
of lack of proper legal representation
or reliance on the return
date of the original order,
the defendant could defeat
the order of protection by
default.
In addition, if there are
additional witnesses, such
as relatives, friends, neighbors,
bystanders, and police, the
plaintiff may not have an
opportunity to marshal those
witnesses to court if the
re-hearing is allowed on an
emergency basis under section
224.
The defendant's attorney must
carefully review the plaintiff's
affidavit and question the
defendant as to each sentence
of the affidavit. Each sentence,
and at times each word in
each sentence, must be taken
apart by the attorney and
the defendant to determine,
from the defendant's point
of view, what exactly happened.
Often, as with most contested
litigation, there are at least
two sides to the story. The
defendant may have testimony
or other evidence as to why
the conduct was not abuse
and harassment. The defendant
may have witnesses who can
testify that the conduct did
not occur or explain why the
conduct was reasonable.
For example, petitions often
allege that multiple telephone
calls by the defendant constitute
harassment. However, it is
impossible to determine whether
the calls are unreasonable,
and thus harassing, without
knowing their content.
11 Multiple telephone
calls that threaten the life
of the plaintiff would be
harassment under the statute.
On the other hand, multiple
calls made to facilitate visitation
to which the defendant is
entitled may well be reasonable.
It is a question of fact and
must be carefully examined
by the attorney and the client
in preparing for the hearing.
When interviewing your defendant
client, you must demand complete
truthfulness as to what happened
on the date or dates involved.
Often, the defendant will
admit facts that make clear
an order of protection will
be granted. In that case,
the best strategy may be to
seek a deal, such as entry
of an injunction prohibiting
harassment, physical or verbal
abuse, or the like in connection
with the divorce case rather
than a plenary order of protection.
Another alternative would
be a plenary order of protection
that protects the plaintiff
but does not name the children
if there is no abuse or harassment
alleged against the children
in the petition.
Know when to deal
The Illinois Domestic Violence
Act of 1986 was a legislative
response to physical abuse
in families. The intent of
the IDVA is admirable. As
commendable as the IDVA is
as an anti-abuse law (the
shield) it is also used to
gain an advantage in divorce
and/or custody proceedings
(the sword).
It is important for the attorney,
regardless of whether he represents
the plaintiff or defendant,
to carefully review the statutory
provisions, carefully interview
the client as to each and
every allegation of the petition
for order of protection, and
to provide whatever witnesses
and other evidence are available
at the hearing in support
or defense of the order of
protection. In addition, as
with all civil litigation,
it is important to know when
to cut losses and make a deal.
•
1. 329 Ill App
3d 266, 768 NE2d 769 (3d D
2002).
2. 301 Ill App
3d 570, 703 NE2d 921 (4th
D 1998).
3. 750 ILCS 60/102(1).
4. 750 ILCS 60/102(3).
5. 750 ILCS 60/202.
6. 750 ILCS 60/103(6).
7. 750 ILCS 60/103(1).
8. 750 ILCS 60/103(7).
9. 750 ILCS 5/602(a)(6)
and (7).
10. Peck at 269,
768 NE2d at 771.
11. People v Karich,
293 Ill App 3d 135, 687 NE2d
1169 (2d D 1997).
Thomas J. Kasper is a partner
of Gitlin, Haaff & Kasper
in Woodstock. He concentrates
his practice in matrimonial
law. He also lectures and
writes on family law topics.
For more information see <
www.gitlin.com>
Orders
of protection – a step-by-step
guide
1. Counsel for the plaintiff
must draft the petition for
order of protection pursuant
to local court rules, IDVA
and county forms. Include
the specific affidavit of
the plaintiff setting forth
dates and times for each event.
Describe the impact of each
event upon plaintiff.
2. If immediate harm may befall
the plaintiff if notice is
given, schedule the hearing
as an emergency hearing. In
so doing, provide specific
allegations that justify proceeding
on an emergency ex parte basis.
3. Attend the initial hearing
(either ex parte or with notice
based on determination in
step 2). The plaintiff may
have to testify, but written
allegations are typically
sufficient for issuance of
an emergency order of protection
(lasting approximately three
weeks), which will include
a return date.
4. Immediately following the
hearing, the plaintiff's attorney
should deliver a copy to the
local sheriff for service
upon the defendant and entry
by the sheriff into the Law
Enforcement Agency Data System
("LEADS").
5. Upon being served with
an order of protection, the
defendant's attorney should
carefully interview the defendant.
The focus of the interview
must include a review of the
facts and a determination
by the attorney as to whether
any of the defendant's conduct,
based on the defendant's version
of the facts, constitutes
harassment, abuse, or other
conduct prohibited under the
IDVA. The defendant's attorney
should then determine whether
to request an earlier hearing
date under 750 ILCS 60/224(d).
6. At either the expedited
rehearing date or the return
date, the plaintiff will either
dismiss the order of protection
or a hearing will occur. The
court can either deny the
petition for a plenary order
of protection or enter a plenary
order with an expiration date
no more than two years from
the date of entry.
7. If a plenary order of protection
is entered, the plaintiff
should follow step 4 above.
If the petition for an order
of protection is denied, the
parties can return to their
pre-petition status quo.
8. If a plenary order of protection
is entered – even if the underlying
cause of action (e.g., a divorce)
is pending – and the defendant
seeks to appeal, he or she
must file the notice within
30 days of the entry of the
plenary order of protection,
because entry of a plenary
order of protection is a final
and appealable order.
