TALKING OF STALKING & OTHER TYPES OF ORDERS OF PROTECTION IN ILLINOIS:
WHAT TO KNOW & DO ABOUT THEM

An order of protection sounds like a scary document. It reeks of authority. If you get served with an order of protection or are accused of violating an order of protection, basically the government is saying “Hey dirtbag, stop acting that way.” It can feel like they’re putting the cart before the horse. Like you’re already found guilty. Someone can just go into court and get this emergency order against you? Unfortunately, the answer is: yes. But there is a solution. You don’t have to fight it alone. You need someone who will listen to you and your side of the story. You need an experienced criminal defense attorney.

Given the range of emotions this process will put you through, you’re naturally going to have a lot of questions. Who can get one against you? How can they do this? What’s the process?  What does it Do? How Long Does it Last? What happens if you don’t follow it? Probably most importantly, how can you challenge an order of protection or violation of an order of protection?

There are four general types of Orders of Protections, commonly referred to as restraining orders, in Illinois. An Order of Protection issued under the Illinois Domestic Violence Act. An Order of Protection issued under the Illinois No Stalking Act. A Civil No Contact Order. Finally, the newly created, nationally controversial Firearm Restraining Order.

TYPES OF ORDERS OF PROTECTION

DOMESTIC VIOLENCE ORDERS OF PROTECTION

Who May Obtain:

An order of protection issued under the Illinois Domestic Violence Act can only be obtained by a “family or household member.” Illinois law defines “family or household member” as: 750 ILCS 60/103 

  • Spouses & former spouses
  •  Parents
  •  Children
  • Stepchildren
  • other persons related by blood or by present or prior marriage
  •  Roommates & ex-roommates
  •  People 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
    • neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship.
  •  persons with disabilities and their personal assistants, and caregivers
    • high-risk adult with disabilities includes any person who has the responsibility for a high-risk adult as a result of a family relationship or who has assumed responsibility for all or a portion of the care of a high-risk adult with disabilities voluntarily, or by express or implied contract, or by court order.

These types of orders most commonly exist between people who are dating, have children together, or are significant others. The law defines dating as an “established relationship with a significant romantic focus.”People v. Howard, 2012 Il App (3d) 10095. Further, it covers your exes. And there’s no time limit. Dated 10 years ago? They can still get an order of protection under the Illinois Domestic Violence Act.  As shown above as well, the act does not limit protection to only romantic type relationships. It covers in-laws, cousins, uncles, aunts, and roommates & ex-roommates. The types of people who can obtain an order of protection are actually quite broad.

Duration: 

Emergency Orders: not less than 14 nor more than 21 days. 750 ILCS 60/220(a)(a)(1).

*If there is a criminal case connected to the order of protection, duration can last length of court proceedings.

Final/Plenary Orders: not to exceed 2 years

Proof: 

In order to obtain an emergency order of protection, the petitioner needs to file a petition and go in front of a Judge (without the other party’s presence) and put forth evidence of abuse by the other party. Keep in mind that this evidence can simply be the word of the petitioner. Abuse is defined under the Illinois Domestic Violence Act as “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.” 750 ILCS 60/22.  After the other party is served, the allegations in the petition must be proven at a hearing in front of a judge wherein this evidence is proven by a preponderance of the evidence.

NO STALKING ORDER OF PROTECTION 

Stalking is defined in the Stalking No Contact Order Act as “engaging in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety, the safety of a workplace, school, or place of worship, or the safety of a third person or suffer emotional distress.” 740 ILCS 21/10.

No stalking orders exist for people who do not have a family household relationship. Instead, the focus is the course of conduct of one person directed against another. The Stalking Act describes course of conduct as “2 or more acts, including but not limited to acts in which a respondent directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, or threatens a person, workplace, school, or place of worship, engages in other contact, or interferes with or damages a person’s property or pet. A course of conduct may include contact via electronic communications.” Not only must there be a course of conduct, this course of conduct has to cause a reasonable person to feel emotional distress or fear. Emotional distress is defined as “significant mental suffering, anxiety or alarm.” 740 ILCS 21/10.

Duration: 740 ILCS 21/105

Emergency Orders: not less than 14 nor more than 21 days.

*If there is a criminal case connected to the order of protection, duration can last length of court proceedings.

Final/Plenary Orders: not to exceed 2 years

Proof:

Just like an order of protection under the Illinois Domestic Violence Act, to obtain a No Stalking Order, the petitioner needs to file a petition and go in front of a Judge (without the other party’s presence) and put forth evidence of abuse by the other party. After the other party is served, the allegations of stalking in the petition have to be proven at a hearing in front of a judge wherein this evidence is proven by a preponderance of the evidence.

CIVIL NO CONTACT ORDER 

Who May Obtain: 

Civil No Contact orders protect victims of  “non consensual sexual conduct or non consensual sexual penetration.” 740 ILCS 22/201. A victim of sexual assault, or their family member, mnay obtain this order independently through the civil courts or in combination with a criminal case. 740 ILCS 22/202. What this means is that you do not have to be charged criminally with the alleged conduct in order for an alleged victim to obtain one of these orders of protection.

Proof:

Just like an order of protection under the Illinois Domestic Violence Act & a No Stalking Order, the petitioner needs to file a petition in the circuit court and go in front of a Judge (without the other party’s presence) and put forth evidence of non consensual sexaul conduct or non consensual sexual penetration by the other party. After the other party is served, the allegations in the petition have to be proven at a hearing in front of a judge wherein this evidence is proven by a preponderance of the evidence. However, for these types of orders of protection the Judge can allow the petitioner to testify in their private chambers outside of the courtroom. 740 ILCS 22/215.5.

Duration: 740 ILCS 22/216

Emergency Orders: not less than 14 nor more than 21 days.

*If there is a criminal case connected to the order of protection, duration can last length of court proceedings.

Final/Plenary Orders: not to exceed 2 years.

FIREARM RESTRAINING ORDER

  • WHO MAY OBTAIN: 
    • A family member: spouse, parent, child, or step-child of the respondent, any other person related by blood or present marriage to the respondent, or a person who shares a common dwelling with the respondent. 430 ILCS 67/5. 
    • or law enforcement member may obtain a court order requiring the respondent to turn over any firearm in their possession & refrain from possessing firearms for the duration of the order. 430 ILCS 67/5. 
  • WHOSE GUNS DOES IT TAKE AWAY?
    • A person alleged in the petition to pose a danger of causing personal injury to himself, herself, or another by having in his or her custody and control, purchasing, possessing, or receiving a firearm. 430 ILCS 67/5
  • HOW TO OBTAIN ONE:
    • File a petition in your local circuit court.
    • At first, the order will be an “emergency” order, meaning it is temporary (14 days)
    • Then another hearing is held to determine if it extends 6 months.
  • EX PARTE/EMERGENCY ORDERS:
  • Emergency order:  430 ILCS 67/35
  • DONE WITHOUT THE RESPONDENT PRESENT
  • Pleading:
  • Petitioner must present evidence at a hearing/file affidavit/verified pleading that the respondent:
            • Poses and immediate & present danger of causing personal injury to himself or another
            • By having in his custody/control/possession a firearm.
            • Petition shall also describe the type, and location of any firearm or firearms presently believed by the petitioner to be possessed or controlled by the respondent.
            • Filing false petitioner will can result in perjury charges. 430 ILCS 67/35(a)(b)&(c). 
  • Issued if:
  • Judge finds “Probable Cause” to believe that the respondent poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing or receiving, a firearm.  430 ILCS 67/35(f).
  • HOW LONG:
  • 14 days
        • Hearing Must be Held Within 14 days. Extension of 14 days given to serve respondent. 430 ILCS 67/35(i)
        • At this hearing, it will be determined if a 6 month firearm restraining order will go into effect.
  •  6 MONTH ORDER: 430 ILCS 67/40
      • Respondent must be present. Petitioner must be present. Petitioner will the burden to prove their case. No party has a right to an attorney (meaning you won’t be given one for free) but are permitted to hire private counsel.
  • FACTORS CONSIDERED BY COURT AT HEARING TO DETERMINE IF ORDERED EXTENDED FOR 6 MONTHS:
  • 430 ILCS 67/4(e)
  • In determining whether to issue a firearms restraining order under this Section, the court shall consider evidence including, but not limited to, the following:
  • (1) The unlawful and reckless use, display, or brandishing of a firearm by the respondent.
  • (2) The history of use, attempted use, or threatened use of physical force by the respondent against another person.
  • (3) Any prior arrest of the respondent for a felony offense.
  • (4) Evidence of the abuse of controlled substances or alcohol by the respondent.
  • (5) A recent threat of violence or act of violence by the respondent directed toward himself, herself, or another.
  • (6) A violation of a Domestic Violence Order of Protection.
  • (7) A pattern of violent acts or violent threats, including, but not limited to, threats of violence or acts of violence by the respondent directed toward himself, herself, or another.
  • BURDEN: CLEAR & CONVINCING EVIDENCE:   430 ILCS 67/40(g)
    • Clear and convincing evidence is evidence that is highly and substantially more likely to be true than untrue.  Colorado v. New Mexico, 467 U.S. 310 (1984).
    • *Note: this is a higher standard of proof required than the other types of orders of protection. Clear and convincing evidence is less than beyond a reasonable doubt but higher than a preponderance of evidence (the standard for the other types of orders of protection).
  • If entered, the RESPONDENT MUST: 430 ILCS 67/40(h)
  • refrain from having in his or her custody or control, purchasing, possessing, or receiving additional firearms for the duration of the order; and
    • turn over to the local law enforcement agency any firearm or Firearm Owner’s Identification Card and concealed carry license in his or her possession. The local law enforcement agency shall immediately mail the card and concealed carry license to the Department of State Police Firearm Services Bureau for safekeeping. The firearm or firearms and Firearm Owner’s Identification Card and concealed carry license, if unexpired, shall be returned to the respondent after the firearms restraining order is terminated or expired.
    • If entered, the LAW ENFORCEMENT  CAN: 430 ILCS 67/40(g-5).
  • Get a search warrant allowing them to search the respondent’s home and other places where the court finds there is probable cause to believe he/she is likely to possess a firearm.
  • RENEWAL & TERMINATION OF ORDER: 430 ILCS 67/45
    • A person subject to a Firearm Restraining Order can petition to terminate the order one time during the 6 months period.
      • This must be done in writing
      • Must show by a preponderance of the evidence that they do not pose a danger of causing personal injury to himself or another in the near future by having access/possession of a firearm.
    • A petitioner may request a renewal:
      • At any time within 3 months of the expiration of the order.
      • Must show by clear and convincing evidence that the respondent continues to pose a danger of causing personal injury to himself or another in the near future by having access/possession of a firearm.

EFFECTS OF AN ORDER OF PROTECTION

If you are subject to an order of protection, there will be limitations on places you can go. Most often, the order of protection will prohibit you from going to the residence or work of the other party. Domestic Violence Orders of Protection can function as informal divorce decrees in many ways. These orders can give exclusive possession of a residence and other property, as well as custody of any children, to one party. However, any order in family court will override any prohibition or remedy granted in a Domestic Violence Order of Protection.

As with the Firearm Restraining order, individuals subject to a Domestic Violence or No Stalking order of protection must surrender any firearms within their possession, as well as their FOID card, upon being served with the order of protection. Further, a FOID card will be denied or revoked if you are subject to an existing order of protection and will be denied if you have been convicted of violating an order of protection within the last 5 years. 430 ILCS 65/4(a)(2)(vii). Additionally, a court can order the respondent to undergo counseling, such as psychotherapy, anger management, or domestic violence therapy.

DEFENDING AGAINST AN ORDER OF PROTECTION 

First, hire an experienced attorney. Fighting an order of protection by yourself is not only foolish, it’s dangerous. Taking on an order of protection by yourself can expose you to potential future criminal liability. Very often the petitioner alleges the other party committed a crime as a basis for the petition. It is also not uncommon for orders of protection to accompany already filed criminal charges, such as stalking or domestic battery.

An experienced attorney will be able to employ various defenses and strategies to protect a client’s rights when faced with this situation. Paramount among them is cross examination at a hearing. You need an attorney who will ask the right questions in an effective manner at a hearing. Prior to even going to a hearing, a lawyer will make sure that the order of protection was validly served on the client. If there is not proper service of the order of the protection, this will prevent a client from being charged with violating the order. That being said, it does not necessarily mean an order will not enter against a client. If the petitioner is unable to serve the other party, the can get a plenary/final order granted if they serve a member of the other party’s household or put notice in a newspaper/publication if:  “(1) the petitioner has made all reasonable efforts to accomplish actual service of process personally upon the respondent, but the respondent cannot be found to effect such service; and (2) the petitioner files an affidavit or presents sworn testimony as to those efforts.” 740 ILCS 21/60.

If the petition for a Domestic Violence order of protection requests the right to exclusive occupancy of the residence shared between the parties, the Court must balance the following factors:

  • the hardships to respondent and any minor child or dependent adult in respondent’s care resulting from entry of this remedy VS
  • the hardships to petitioner and any minor child or dependent adult in petitioner’s care resulting from continued exposure to the risk of abuse (should petitioner remain at the residence or household) or from loss of possession of the residence or household (should petitioner leave to avoid the risk of abuse).

The balance of hardships, however, is presumed in favor of the petitioner unless rebutted by the other party by a preponderance of the evidence. 750 ILCS 60/214(b)(2)(A). If you are facing a Domestic Violence Order of Protection requesting this remedy, you need a skilled attorney to show the court the presumption of hardship favors granting you the residence.

If petition alleges abuse between a parent and a child, an experienced defense attorney will present evidence that their client was exercising what is known as the defense of “reasonable parental discipline.” Parents have a right under the law to discipline their children and that can, and does, include physical acts of punishment. Keep in mind, the key word for this defense is “reasonable.” Spankings are probably going to pass muster, hitting your child with an electrical cord, not so much.

For defenses in No Stalking orders of protection, it is necessary to look at each specific allegation and examine its content, context, and frequency. An attorney will examine whether or not the accused person knew their conduct would cause emotional distress through these actions.

Very often clients who get served with an order of protection want to respond by serving the other party with their own order of protection. Unfortunately, orders of protections operate more like first come, first serve. The law prohibits what it call “Mutual Orders of Protections” for No Stalking and Domestic Violence orders of protection. 750 ILCS 60/215; 740 ILCS 21/85.

Penalties for Violating an Order of Protection:

Domestic Violence Order of Protection:

1st Offense- cl. A misdemeanor

2nd Offense- cl. 4 felony

No Stalking Order of Protection

1st Offense- cl. A misdemeanor

2nd Offense- cl. 4 felony

Civil No Contact Order 

1st Offense- cl. A misdemeanor

2nd Offense- cl. 4 felony

Firearms OP

Any violation: cl. A misdemeanor

CONCLUSION

Having an order of protection against you isn’t a good look. You’re basically one step away from becoming a criminal. Plus there’s the social stigma it carries. If you get served with any type of order of protection, don’t try and fight it alone. You need an experienced lawyer to challenge the types of accusations being made about you. At Robert Callahan & Associates, we handle all types of orders of protection on a routine basis.

Call us at 312-796-8330.