Emergency Orders of Protection (Restraining Orders) Under the Illinois Domestic Violence Act
The following is a brief overview of the concept of Emergency Order of Protection, also known as Restraining Orders. If you feel you need a restraining order to protect yourself, you should contact an attorney immediately.
Who is Covered by Emergency Orders of Protection (Restraining Orders)?Orders of Protection and Emergency Orders of Protection are governed by the Illinois Domestic Violence Act of 1986 ("IDVA"; see 750 ILCS 60/101 et. seq.). Under the IDVA, any person, minor, or person with disabilities who has been abused by a household or family member, or an adult on their behalf, can seek an Order Of Protection on an emergency basis. "Family or Household Member" includes not only spouses, former spouses, and other persons related by blood or marriage, but also people who share a dwelling, who have a child in common, share a blood relationship through a child, are dating or engaged, or are in a disabled/caregiver relationship. Additionally, additional household or family members can be named as protected parties in the Emergency Order of Protection.
What Can You Seek Protection Against?An Emergency Order of Protection prevents "abuse", which includes physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation or neglect (but does not include reasonable direction of a child by a parent.) "Harassment" is construed broadly as conduct that would cause a reasonable person emotional distress, and can include (but is not limited to) calling the victim names, yelling at or threatening the victim, using angry expressions or gestures with the victim, humiliating the victim either in public or private, accusing the victim of infidelity, breaking or throwing the victim's property, constantly telephoning or sending letters and cards to the victim, causing a disruption at the victims' school or work, or threatening to commit suicide if the victim ever leaves the relationship.
What Is The Process of Obtaining an Emergency Order of Protection?The first step is to file a Petition for an Emergency Order of Protection, which is processed on an expedited emergency basis. They are filed and immediately presented to the Judge who issues (or denies) the Petition based on sworn affidavits of the petitioner and any witnesses. It is an ex parte proceeding, which means that the respondent (the alleged abuser) is not present and/or not given notice. If the Judge grants the Petition, the Emergency Order of Protection is issued, which then must be served on the alleged abuser to become effective. Emergency Orders of Protection are valid for 14 to 21 days, after which time the parties would return for a hearing. At that time, the alleged abuser (and perhaps his/her lawyer) would then have an opportunity to present evidence or testimony opposing the Petition. The judge can then let the deny the Petition and vacate the Emergency Order, or grant the Petition and issue a plenary Order of Protection - valid for up to 2 years.
What Happens If There Is A Violation of the Order of Protection?If the respondent/alleged abuser violates an Order of Protection, it can be treated in one of a few ways: a criminal offense, a civil tort, or a contempt of court. If the manner in which the order of protection was violated was an independent crime (e.g., assault rather than telephone calls), the violation is an independent crime in and of itself and must be prosecuted by a criminal court even if the Order of Protection was issued by a civil court. If an alleged abuser violates the Order of Protection, he can be arrested and taken into custody on that basis.