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Domestic violence and abuse is more prevalent in our society than many of us want to admit. Domestic abuse goes beyond physical contact. It includes controlling behaviors, mental cruelty, and harassment via phone, email or other means of communication. To confront these issues, the Illinois Domestic Violence Act (“IDVA”) allows any person, including a minor child, who has been abused by a family or household member to file a petition for an order of protection.
For the purposes of the IDVA, “family or household members” includes, among others, spouses, former spouses, parents, children, stepchildren, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, and persons who have or have had a dating relationship or been engaged.
Under the IDVA, the term “abuse” goes beyond physical abuse and includes harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation. The term “abuse” does not apply to reasonable direction of a minor child by a parent or a person with parental status.
There are three types of orders of protection: emergency, interim, and plenary. The emergency order of protection can be issued quickly, without notice to the respondent in certain circumstances, such as when there would be a risk of further abuse if the respondent were given notice that the petitioner was seeking an order of protection. An emergency order of protection is only be effective for 14-21 days. An interim order of protection lasts 30 days, but unlike the emergency order, the respondent must be given notice of the petition and a hearing. Finally, a plenary order of protection may last up to two years and also requires notice and hearing for the respondent.
If the court finds that the petitioner has been abused, an order of protection will be issued. The remedies provided by an order of protection may include the prohibition of further abuse or neglect, exclusive possession of the residence, a stay away order, counseling, physical care and possession of the minor child, temporary legal custody, visitation restrictions, prohibition on the removal of the child from Illinois, an order to appear, possession or protection of personal property, an order that certain payments be made, prohibition on entry, and several other remedies.
In determining whether to grant one of these remedies, the court must consider several factors. While there are some variations for specific remedies, the factors the court must consider are generally as follows: the nature, frequency, severity and consequences of the respondent’s past abuse or neglect, the likelihood of danger of future abuse, and the danger that any child will be abused, neglected, or improperly removed from Illinois or concealed within Illinois. In the case of an emergency order of protection, the judge is not required to consider all of these factors if he or she believes that the contents of the petition and the testimony of the petitioner sufficiently indicate abuse by the respondent and support the granting of relief.
The violation of an order of protection will make the respondent subject to both criminal and civil liability. As such, all orders of protection should be taken very seriously.
Beyond orders of protections, domestic violence or abuse plays a part in other family law cases such as divorces or parentage actions since domestic violence is a factor a court can consider when making determinations of custody and visitation. IF you have been a victim of domestic violence or have been accused of domestic violence, you will want to receive competent legal advice regarding your rights, the court procedures and how to protect yourself. We can be your advocates and guides.
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