Orders of Protection - Basics Lawyer Manual

An Order of Protection (OP) is a court order that protects a victim from abuse or contact by another person. 

According to the IDVA, a court shall issue an OP when a court finds the petitioner 1) has been abused 2) by a family or household member. 

The court may not require a physical manifestation in order to issue an OP. 750 ILCS 60/214(a)

Abuse

The IDVA defines abuse, and further defines many of the terms that are used to define abuse. 

Abuse includes:

• Physical abuse
  • Knowing or reckless use of physical force, confinement or restraint
  • Knowing, repeated and unnecessary sleep deprivation
  • Knowing or reckless conduct which creates an immediate risk of physical harm.
  • Sexual abuse
• Harassment 
  • Knowing conduct which is
    • Not necessary to accomplish a purpose that is reasonable under the circumstances; 
    • Would cause a reasonable person emotional distress; and 
    • Does cause emotional distress to the petitioner. 
  • Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
    • Creating a disturbance at petitioner's place of employment or school;
    • Repeatedly telephoning petitioner's place of employment, home or residence;
    • Repeatedly following petitioner about in a public place or places;
    • Repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner's windows;
    • Improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner's from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence; or
    • Threatening physical force, confinement or restraint on one or more occasions.
• Intimidation of a dependent 
  • Subjecting a person who is dependent because of age, health or disability to participation in or the witnessing of…
    • ...physical force against another or...
    • ...physical confinement or restraint of another…
  • ...which constitutes physical abuse as defined in this Act...
  • ...regardless of whether the abused person is a family or household member.
  • Does not include reasonable direction of a minor child by a parent or person in loco parentis.
• Interference with personal liberty
  • Committing or threatening physical abuse, harassment, intimidation or willful deprivation...
    • ….so as to compel another...
      • ….to engage in conduct from which she or he has a right to abstain or 
      • ….to refrain from conduct in which she or he has a right to engage.
• Willful deprivation
  • Wilfully denying a person who, because of age, health or disability requires
    • medication, 
    • medical care, 
    • shelter, 
    • accessible shelter or services, 
    • food, 
    • therapeutic device, or 
    • other physical assistance, 
  • ...and thereby exposing that person to the risk of physical, mental or emotional harm…
  • ...except with regard to medical care or treatment when the dependent person has expressed an intent to forgo such medical care or treatment.

750 ILCS 60/103(1 thru 15) 

Practice tip on harassment

Harassment is a common basis for a petition because often there is no physical abuse. Note that harassment has 3 elements, all of which must be proved. It can be difficult sometimes to prove emotional distress, especially because victims of abuse can exhibit a flat affect. Sometimes, judges will use the term “fear” instead of emotional distress. Clients might not initially think of their feelings as “fear” even if they are distressed. Part of counsel’s job is to prepare their client to articulate why the respondent’s behavior was distressing and how that distress manifested itself.

Note also that some types of abuse are presumed to cause emotional distress. This includes creating a disturbance at the petitioner’s place of work or school, repeatedly telephoning the petitioner at their home, place of employment, or school, repeatedly following the petitioner in public places, repeatedly keeping the petitioner under surveillance, improperly keeping a minor child from the petitioner, or threatening physical violence. (750 ILCS 60/103(7)).

Family or household member

Family or household member includes:

• Spouses, 
• Former spouses, 
• Parents, 
• Children, 
• Stepchildren and other persons related by blood or by present or prior marriage, 
• People who share or formerly shared a common dwelling,
• People who have or allegedly have a child in common, 
• People who share or allegedly share a blood relationship through a child, 
• People who have or have had a dating or engagement relationship (not a “casual acquaintanceship” or “ordinary fraternization”), 
• People with disabilities and their personal assistants, and 
• Caregivers as defined in 720 ILCS 5/12-4.4a(e).

750 ILCS 60/103(6)

Notice that the following types of people are not included in the statutory definition:

• Neighbors
• Landlord/tenant
• Co-workers
• Strangers
• Classmates
• Love triangles

Who may petition

The petition may be filed by the person who is being abused.  A petition may be e-filed online. Beginning in 2023, a petition may also be filed in person without requiring an e-filing exemption.

It may also be filed by any person on behalf of a minor child or an adult who has been abused and who, because of age, health, disability, or inaccessibility, cannot file the petition. 750 ILCS 60/201(b)

There is a separate provision for filing by people on behalf of people with disabilities who have been exploited or neglected, as well as provisions for foster parents, guardians, and adoptive parents, all of which exceed the scope of this manual.

Protected people

The OP does not only protect the person who was abused. It also protects:

• Any minor child or dependent adult in the care of such person; and
• Any person residing or employed at a private home or public shelter which is housing an abused family or household member.

750 ILCS 60/201(a thru c)

Again, high-risk people with disabilities, foster or adoptive parents, and guardians are listed in the statute but not addressed in this manual.

Note that the following types of people are not protected:

• Neighbors
• Landlord/tenant
• Co-workers
• Strangers
• Classmates
• Love triangles.