Using the Domestic Violence Statute in Illinois to Obtain an Order of Protection

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Author: Prairie State Legal Services, Inc.
Last updated: December 2006

The Forms 

Recently, many jurisdictions have begun adopting new, supposedly standard, forms.  A committee of chief judges in Illinois drafted a form for petitions and orders for Orders of Protection in Illinois.  The current versions of those forms are linked to in this information. Each circuit than decides whether or not they wish to adopt the new form.  It becomes confusing because sometimes these forms are referred to as the uniform or standard forms despite the fact that they have not been adopted in all jurisdictions.  To add to the confusion, the forms are being edited and some circuits are making their own changes to the form. This means that you should not assume that you may use the so-called standard forms from other jurisdictions or those linked to in this information

When you are filing a Petition for an Order of Protection make sure you check with the circuit clerk's office in your county and use the forms that they have available.  Make sure that if you do not know which forms you need to have filled out that you ask the clerk.  In addition to the Petition for an Order of Protection and the Emergency Order of Protection, you may need to fill out a LEADS sheet, a summons and a domestic relations cover sheet.

All eight (8) of the "uniform" forms are listed below under "Related Forms."

Introduction to the Domestic Violence Act

The Domestic Violence Act of 1986 750 ILCS 60/102 can be a useful tool in securing safety for your clients and their children.  The most important question you can ask yourself is whether or not this statute is going to advance or harm your client's case.  In cases where there has been real abuse (either physical/mental or emotional) this statute gives the victim some real relief that will provide him or her with physical safety.  Once s/he feels physically safe s/he may be more able to position himself or herself to bargain for other settlement issues.  On the other hand, if this statute is being solely used to gain an unfair advantage in a divorce proceeding that may cause irreparable damage to your client's divorce case and to your reputation.  Please note that a person can only get an Order of Protection against a person that is a family or household member.     

If you believe that an Order of Protection is appropriate in your case, you should then determine whether you are seeking an Order of Protection on its own or or in conjunction with some other court proceeding.  Since even a Plenary Order of Protection is a temporary order you may want to file a dissolution of marriage case or a paternity action to obtain more permanent relief with regard to custody, visitation and support.  In any case, if there are children involved you should prepare your Order of Protection case with an eye towards future litigation whether or not you are going to be immediately filing that litigation.  

There are three areas that must be looked at with each individual case when deciding whether or not to petition the court for an Order of Protection.  You must first know the law regarding domestic abuse in Illinois.  Second, you must know your client's personal history with his or her abuser in order to best represent your client.  And third, you should try to find out as much about the judge you will be appearing in front of as possible. 

The Law

In order to obtain an Order of Protection you must be able to prove to the court by a preponderance of the evidence that an abuse occurred.  The Petition for an Order of Protection must be verified.  Since the same petition will be used for both the Emergency and the Plenary Order of Protection make sure that you have a complete listing of the allegations of abuse.  There are many ways that you can organize the allegations in your petition.  Chronological order makes a lot of sense because it may show a pattern of actions or a pattern of escalating actions which add creditability to your client's story.  However, some clients may have a severe instance of abuse in the past but because of that incident they have modified their actions for safety purposes.  For example clients who were severely beaten a few years ago may only need to see a look in their abuser's eye or see the abuser lift his or her hand to be frightened.  In this instance it makes sense to give the judge the background information early on in the petition because it explains why a look or the raising of a fist is abuse.  Many practitioners like to add a sentence at the end of the petition stating that there have been other instances or many other instances of abuse in the past.  This is in case the client remembers an abusive instance after the petition is filed but before the Plenary Hearing he or she may be able testify to that instance of abuse.  If you have sufficient time to amend your petition to include the allegation you should do so but often the client suddenly remembers the abuse at the actual hearing or moments before the hearing.  Whether or not you will be able to actually get information in that is not specifically addressed in your original petition may depend on the judge you are practicing before. Nevertheless it is probably a good idea to put in a phrase that addresses other abuse that the client knows happens but can not remember the exact date and time of the abuse.   

 

When your client is in your office ask questions that get to the abuse.  Often clients will differentiate types of abuse.  Some may not consider being shoved or held down as abuse because they were not hit or struck.  Or they may not consider damage to personal items as abuse because there were no physical injuries to the client.  Or the client may not realize that under the statute emotional abuse is a recognized form of abuse. 

Find out whether objects were thrown and what objects they were.  Find out if anything was destroyed.  Often an abuser will punch holes in walls or rip doors off of hinges or break windows.  Another abusive behavior may be purposefully destroying the victims property especially if it has sentimental value.  Ask your client if any damage was done to his or her vehicle.  Also, ask about abusive behaviors towards any pets.  The abuser may be using threat of abuse to a family pet to maintain control because the abuser knows that the animal is more than a "pet" to his or her victims.  While property damage alone may not be enough to establish that an abuse occurred it can be used to show a pattern of violent behaviors and in many cases it is emotional abuse.       

Use the language of your client to draft a petition that tells his or her story.  If your client uses the word for the behavior when telling you the story, do not change it to a more "legal" sounding word unless you know that the word is not one commonly used for the behavior or it needs to be clarified.  For example, "punched" does not need to be changed to "struck" but "hauled off on" might need to be clarified.  Find out what names he or she was called. Keep in mind that sometimes clients are hesitant to say the exact name because they feel it is inappropriate to use such language in front of an attorney.  Assure your client that specific language is appropriate in this case and then write the name in your petition.  Words are powerful and if your client testifies that she was called "the B word" rather than "Bitch" it lessens the impact of the abusive name calling. 

Ask your client about specific threats.  Use that language to your advantage as well a threat that the abuser was going to "chop" the victim up and throw her pieces into the river is more powerful than the abuser is going to kill the victim and hide the body.   If the abuser is threatening to kill the victim and children if the victim files for divorce make sure that the allegations about the children are in the petition as well.   Please keep in mind that threats may be considered abuse but there is a difference between threatening to do something legal and threatening to do something illegal.  For example, if the abuser threatens that he or she was going to hire the best custody attorney around to make sure that he or she gets custody of the children this is not abuse because the person has a legal right to hire an attorney and fight for custody.  However, if the threat is that the person is going to take the children and hide them in Cuba so that the client will never see them again, this is a threat which he or she does not have a right to do and may be abusive.

If you are asking the court for an Emergency Order of Protection you will also need to prove to the court that if the abuser was given notice of the hearing that further abuse is likely to happen.  Since an Order of Protection is an extraordinary remedy be prepared to have your client answer this question, remember you are asking a judge to place restrictions on someone's freedom without notice.  It is an embarrassing to have a client on the stand who says that they are asking for the relief because their attorney told them to or because they want custody of the children and this is a quick an easy way to obtain custody.  Both of these answers will not only hurt your reputation as an attorney but also may have an adverse effect on the client in future dissolution of marriage or paternity proceedings.  The Third District in Wilson v. Jackson, 312 Ill.App.3d 1156, 728 N.E.2d 832, 245 Ill.Dec. 750, states that the Order of Protection is not to be used as a tool to gain advantage in a divorce or family case.  Most judges are aware of the potential for misuse of the statute and try to guard against improper action.    

It is important to take the time to read through the Order of Protection form to make sure all of the proper relief is requested.  The Uniform Order forms which many jurisdictions employ really break down the different types of relief.  When you are requesting relief remember to look at your client's situation.  If you are requesting that the victim be able to stay in the joint residence but you know the victim can not afford to stay in the residence without financial help make sure you request financial assistance. 

When faced with cases that involve children, the courts are concerned about people using the Order of Protection law to gain an unfair advantage in a custody hearing.  There is case law that specifically prohibits bringing an action for an Order of Protection for any reason other than for its intended purposes.  If there is abuse against the children than they should be specifically listed as protected persons in the Order of Protection.  If there is no abuse against the children they will be protected as household members. However, the Order of Protection law should not be used as a way to prevent a relationship between a parent and child if the parent does not pose a threat to the children.   

Be aware that due to the temporary nature of the Order of Protection relief (it is limited to two years by statute)  that any provision you obtain is only valid for the duration of the order.   Therefore, if your obtain child support in a Plenary Order of Protection it is only going to last up to the two years.  Similarly, temporary custody obtained through the order is only valid for the length of the order. 

In order to obtain temporary custody of the children of the parties the party seeking custody must be able to prove that it is in the children's best interest that custody be awarded to the party.  This means that a full custody hearing may be heard in a hearing for a Plenary Order of Protection.  According to Illinois case law, any decision made by the judge with regard to temporary custody in the Order of Protection does not have a res judicata effect to custody provisions in a dissolution of marriage case. 

Know your Client

You need an understanding of what your client has been through in the past and an understanding of how your client is going to handle the pressure of the situation before you go into court to get an Order of Protection.  It is understandable that the demands of your practice and the emergency nature of this proceeding require you to act quickly but there are certain things that you want to know about your client before you step up to the bench.  Find out how your client defines abuse.  This is your client's story, let him or her tell it in a way that makes sense to him or her.   Certainly you do not want the victim to wander too far off topic or to bring in too much additional information but your job is to take the client's story and streamline it so that it fits within the law. However, you should remember that your job does not include creating a new story for the client.   Also, you need to have some idea how your client is going to handle the pressure of the courtroom.  Some people become overly passive or overly aggressive or they will cry through the entire proceeding.  If you can figure out how your client is going to handle the pressure you will be that much more effective in getting the story out of the client.  The good thing about the emergency order of protection is that you may have the opportunity to observe your client's courtroom demeanor  without the added pressure of the abuser watching them. 

You have to get a lot of highly emotional and sensitive information in a short period of time.  Remember not to underestimate the amount of courage it takes for someone to finally talk of what might have been years of abuse.  This may be especially difficult for victims of sexual abuse.  It has been suggested that in order to understand what we are asking these victims to do we should think of the most embarrassing sexual experience of our lives and then have to tell that story over and over in public. 

In an ideal world you will have plenty of time to get to know your client, build trust and then craft the perfect petition to play on the court's sympathy and give your client due justice.  However, in the real aworld, you may be asked to do all of these things after having an hour or less time to prepare your case.  Or in some cases, your client may have petitioned the court for the Emergency Order of Protection pro se and you will meet the client just before the plenary hearing.  Here are some suggestions for getting the information you need.:

  • Always ask if there are any more allegations of abuse not listed and/or if there is anything else missing from the petition;
  • Always ask what the other side is going to respond to the petition even if your client says it is not true.  I suggest doing this because it is the best way to find the weaknesses of your case.  For example, is the other party going to say that the victim was intoxicated or hit the abuser first? 
  • Ask your client if she or he have had any orders of protection against this same person in the past.  If you can get to the courthouse to check the file yourself, do so.  That way if there has been a history you have a response prepared when the judge says, "Oh I see you are representing Ms. Doe THIS time for her order of protection" you have a response. 

Know Your Court

You need to be aware of how your jurisdiction handles the domestic violence call.  In larger jurisdictions there may be a certain court that hears all the Order of Protection matters.  In some smaller jurisdictions, which may not have specialized courts, you may be in front of what ever judge is randomly assigned to your case.  Or you may be in front of the only judge in the jurisdiction.  A petition for an order of protection is an expedited proceeding so you may have a different judge hear the hearing for a plenary order of protection than who heard the emergency order of protection.     

The more you can learn about your jurisdiction and the way the judges handle the domestic violence cases the better service you are providing for your clients.  If you know that the judge will ask questions of your client you are doing the client a great service to be prepared to answer.  If you know that the judges in your jurisdiction tend to err on the side of over protection it is good to know what phrases the judge finds persuasive.  Or, in the alternative, if you are in a jurisdiction where it is tough to get an Order of Protection you will want to give your client the chance to be fully informed and ready to face the judge's scrutiny.   

For the Emergency Order of Protection hearing in some courtrooms, the judge allows the attorney to question the victim. Alternatively,  in other courtrooms, the judge will read the verified petition and then directly question the victim as to the allegations.  In most courtrooms an Emergency Order of Protection is a fairly routine and quick process.  The Hearing for the Plenary Order of Protection, where both sides are present and able to present testimony, is usually the more formal proceeding.

Printed from: www.illinoisprobono.org/index.cfm?fuseaction=home.dsp_Content&contentID=1328

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