ORDERS OF PROTECTION Jennifer Payne LAF September 2017

ORDERS OF PROTECTION Jennifer Payne, LAF September 2017

Common Sources of Law 2 A. Illinois Domestic Violence Act of 1986 (IDVA) 750 ILCS 60/101 B. Stalking No Contract Order Act 740 ILCS 21 C. Civil No Contract Order 740 ILCS 22 D. Address Confidentiality Act 750 ILCS 60/101 E. UCCJEA (Uniform Child-Custody Jurisdiction and Enforcement Act) 750 ILCS 36/101 F. Illinois Long-Arm Statute 735 ILCS 5/2 -209

Orders of Protection - IDVA A civil order of protection is issued when a victim proves that she needs the order to stop “abuse. ” (“Abuse” is a term defined by the IDVA). You do not need to call the police or initiate a criminal case to obtain a civil OP

Examples of physical abuse: 4 Physical force; Being hit, slapped, or kicked Being forced to have sex when you do not want to or in a way you do not want Sleep deprivation Reckless conduct which creates an immediate risk of harm.

“Abuse” also includes 5 Harassment; Interference with personal liberty; and Intimidation of a dependent but not reasonable direction of a parent or guardian.

What is harassment? 3 elements that you must prove: Conduct that is unreasonable under the circumstances; that would cause a reasonable person emotional distress; and that does cause emotional distress.

Examples of harassment: Disturbing you at work or school; Repeated phone calls/texts; Repeatedly following you in public; Concealing or threatening to conceal your minor child; Repeatedly threatening physical force.

Who can be protected? Spouse Ex-spouse Parents Children Step-children Roommates Ex-roommates Current dating relationship Former dating relationship People related through a child People with disabilities and their personal caregivers *These are domestic relationships & includes same sex couples

Household members 9 Any person who lives in the same household as Petitioner can be a “protected person” in the OP; Remedies may be granted for household members, like protecting the person’s workplace; Any protected person can sign a criminal complaint for violation of an OP.

Who is not protected? 10 Neighbors Landlord/tenant Co-workers Strangers Classmates Love triangles

What remedies can I get? 11 Respondent can be prohibited from: Harassment; Interference with personal liberty Intimidation of a dependent (does not include reasonable, corporal punishment); Willful deprivation (victim is old or disabled and is being denied Rx, shelter, food, medical access); Stalking

Remedies (continued) 12 Petitioner can also seek: Exclusive possession of the home (orders Respondent out of the house) Stay away order (from places or people); Prohibition of entry (into residence while under the influence of drugs or alcohol) Prohibition of firearm possession (turn over to police for up to 2 years);

Child-related remedies 13 Physical care/possession of minor child Temporary custody; Visitation Do not remove or conceal the child Prohibition of access to records (school, medical) Child support Order to appear in court with the minor child

Remedies (continued) 14 Exclusive possession of personal property; Exclusive control of animals; Reimbursement for financial losses due to abuse (medical, earned income, repairs to property, temporary shelter, attorneys’ fees)

Where can I get an OP? 15

JURISDICTION/What state? 16 IL state courts have jurisdiction over: State residents Non-residents per the long -arm statute *UCCJEA for custody cases only, 750 ILCS 36/101

JURISDICTION of the child 17 UCCJEA, 750 ILCS 36/101 Home State of the child (where has the child lived for the last 6 months, even if the child is absent from this state but one of the parents still lives here). § 201, or A court of the home state has declined jurisdiction because this state is more convenient. (i. e. due to DV) § 207 A state can take temporary, emergency jurisdiction if the child is present in this state.

Jurisdiction of children questions 18 Where do the children currently reside? How long have they been here/there? Has anyone already been to court regarding custody or parentage of the children?

VENUE/What county? 19 A petition for OP can be filed in the county where: Petitioner resides Respondent resides Alleged abuse occurred Petitioner’s temporary residence if she fled abuse *exception for Exclusive Possession

DISTRICT/What Courthouse? In Cook County, you can file an OP petition at: the Domestic Violence Courthouse/555 W. Harrison; or your local suburban courthouse: Rolling Meadows; Skokie; Maybrook (located in Maywood); Bridgeview; Markham

Emergency Order of Protection 21 It is an ex parte order (Respondent is not present); Therefore, the court will NOT order: Respondent to undergo counseling; Temporary Custody of children; Temporary child support; Restitution for damage to property; or Payment of shelter costs Lasts only 21 days

Expiration Date, when is it? 22 EOP always 21 days (can be continued for service or by agreement); Up to 2 years for Plenary Order (POP)

Types of Service 23 1. Personal Service-in personam jurisdiction Sheriff Service – can get the status at www 5. cookcountysheriff. org or call 312 -603 -3365; or Special Process Server 2. Publication-in rem jurisdiction Order for Publication; Fax order to Law Bulletin at 312 -416 -0045 (ask for proof of publication from the Law Bulletin desk)

Exhibits 24 Photos Medical records Police reports Texts Facebook messages Voicemail messages Respondent’s Paystubs

Why get an order of protection? Without an order, the police need “probable cause” of a crime to make an arrest. With an order, the police need probable cause of a violation of the order of protection (VOOP) to arrest the abuser.

Criminal Order of Protection A criminal order of protection is issued when: the state is bringing criminal charges against the abuser; OR client seeks an EOP within 24 hours of obtaining a police report and the state agrees to bring criminal charges against the abuser.

27 OTHER PROTECTIVE ORDERS

Civil No Contact Orders 28 Survivor must prove one act of either: • • • Non-consensual sexual conduct (Intentional touching of sex organs/breasts); OR Non-consensual sexual penetration; OR Aiding or abetting commission of prohibited act Non-consensual = Lack of freely-given agreement (consent is more than “mere submission”) Burden of proof: Preponderance of the evidence *No need to prove a domestic relationship

Stalking No Contact Orders 29 “Stalking" means engaging in a course of conduct directed at a specific person, in which the actor knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety or the safety of a third person or suffer emotional distress. 740 ILCS 21/10. *No need to prove a domestic relationship

Examples of stalking 30 • • "Course of conduct“ means two 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 Threatens Communicates to or about a person Engages in other “contact” Interferes with or damages a person's property or pet

OP CNCO SNCO Relationship -Family member -Intimate partner None Elements “Abuse” or “harassment” One act of “nonconsensual sexual conduct” Two or more acts of “stalking” Physical or sexual abuse required? No Yes, there must be sexual touching No Best for: -Kids in common -Shared dwelling -Shared property -Property damage -one act of sexual abuse -SA hard to prove/ongoing unwanted contact Remedies: -Exclusive possession -temp custody/visits -child support -$ damages -FOID removal -stay away: --victim --her property --her RVA. -stay away -FOID removal