A guide to the Illinois Domestic Violence Act.
Domestic violence--defined as violence or physical abuse in an intimate relationship in which one partner uses a pattern of assault and intimidating acts to assert power and control over the other (1)--is all too common in our nation. And the problem is particularly acute in Illinois.
An estimated six million American women are beaten each year by their boyfriends or husbands. (2) The Violence Prevention Center of Southwestern Illinois reports that Illinois ranks as the fourth most violent state in the country in incidence per capita. There were 114,921 reported cases of domestic violence in Illinois in 2006, with 44 percent of those crimes being committed by a spouse, ex-spouse, or common law spouse. (3)
This article provides an overview of the principle provisions of the Illinois Domestic Violence Act (IDVA, "the Act") and associated case law. It outlines the issues attorneys and pro se litigants face when trying to obtain or defend against an order of protection.
Domestic violence under the law: a brief history
Although domestic violence is committed by both men and women, it is most commonly an act of aggression by a man toward a woman. Under English common law, the "rule of thumb" allowed a husband to chastise his wife with an instrument of his choosing as long as it was no thicker than the width of his thumb. (4)
"Wife-beating" was not a criminal act until the late nineteenth century, and even then the criminal justice system continued to consider wife abuse a family matter in which criminal penalty was rarely warranted. (5) As recently as 1875, the Illinois Supreme Court in Trevior Slattery v The People of the State of Illinois (6) overturned a defendant's conviction for causing his wife to suffer a miscarriage by beating her.
In Slattery, the defendant was convicted and sentenced to three years in the penitentiary for beating his wife causing her to miscarry. The court ruled that the conviction could not be upheld because she had minimal scarring on her body and had suffered previous miscarriages. Although the defendant confessed to inflicting violence upon his wife, the court held that because he did not intend to cause a miscarriage and her miscarriage was not proven to be caused by his violent acts, a conviction could not be sustained. (7)
In the twentieth century, Illinois and other states began slowly to take domestic violence more seriously. A representative example is People v Jackson, (8) where the first district upheld the conviction of a defendant for killing his wife, even though a significant amount of time elapsed between the fight and her ultimate death. The court ruled that absent other evidence of external force to the wife's head, the beatings administered by the defendant upon his wife were presumed to have caused her death. (9)
This increased awareness of and responsiveness to domestic abuse led to the formation of an entire body of law designated to the subject. The Illinois Domestic Violence Act took effect in 1986. (10) The heart of the IDVA is the civil remedy of an order of protection for victims of abuse.
Orders of protection: what they are and whom they protect
An order of protection is tantamount to a restraining order in that it prohibits a party from having contact or communication with the petitioning party. The IDVA protects: 1) anyone abused by a family or household member; 2) any high-risk adult with disabilities who is abused, exploited, or neglected by a family member;11 3) any minor child or dependent adult abused by a family or household member, 4) any person who lives with a person who has been abused by a family or household member, and 5) persons who work at a private home or public shelter that is housing an abused person. (12)
A petition for an order of protection may be filed by a person who has been abused by a family or household member. It may also be filed by any person, related or otherwise, on behalf of a minor child or adult who, because of their age, health or inaccessibility, cannot file the petition on their own behalf. Any person may also file a petition for an order of protection on behalf of a high-risk adult with disabilities. (13)
Actionable forms of abuse
Before a victim of domestic violence can receive an order of protection, he or she must allege abuse. Abuse includes physical abuses as well as harassment, intimidation of a dependent, interference with personal liberty, and willful deprivation.
Physical abuse. Physical abuse has been held not only to encompass fighting but sexual abuse as well. (14) For instance, in In re T. H. and K. M., (15) a case emanating from a juvenile proceeding where the child was found to be abused and neglected, the first district affirmed the trial court's entry of an order of protection for physical abuse against a mother on behalf of a minor child. The mother was found to have sexually exploited the child by forcing her to have sex with men for money and confronting her after having been previously ordered to stay away.
This case illustrates how statutes must be construed in pari materia (i.e., with reference to one another) to protect the best interest of the child. The IDVA allows for orders of protection to be filed in conjunction with proceedings under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), the Parentage Act, the Juvenile Court Act, the Probate Act and a criminal proceeding. (16)
Sometimes parental discipline can constitute physical abuse. Whitten v Whitten (17) is the principal case addressing physical discipline of a child as domestic violence. There, the court was presented with evidence of abuse by the minor child's father, including photographs of bruises on the child and testimony from the child's sister as to the gruesomeness of the beatings. The court held that the beatings exceeded reasonable discipline of the child and entered the order of protection.
Harassment. Second to physical abuse, harassment is the most common form in domestic violence court. Harassment does not require overt acts of violence but results from intentional acts that cause a reasonable person to feel anxious, worried, or uncomfortable. Petitioners requesting orders of protection based on harassment typically present evidence of the respondent's disturbing conduct, such as repeatedly telephoning, threatening, texting, or surveilling the petitioner.
Petitioners frequently make blanket allegations in court that they feel intimidated by a respondent in the hope of receiving an order of protection based on harassment. In re Marriage of Healey (18) explains what is and is not considered harassment.
The first district reversed the trial court's decision to enter an order of protection against the respondent husband on the grounds there was insufficient evidence to support a finding of harassment. The court held that although the petitioner alleged she was extremely fearful of the respondent, this charge was conclusory in nature. Because there was no evidence to show that the respondent's conduct was intentional or unnecessary to accomplish a reasonable purpose, the order of protection was not issued. (19)
Intimidation of a dependent. This category of abuse applies to persons who are dependent because of age, health, or disability. It involves subjecting a dependent person to participation in or the witnessing of physical force, confinement, or restraint of any other person. (20)
Interference with personal liberty. An order of protection is entered on the basis of interference with personal liberty if the respondent uses physical force, harassment, intimidation, or willful deprivation to compel the petitioner 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." (21) The Healey court also addresses this form of abuse.
The wife in that case testified that she was unable to eat or sleep. However, no evidence was presented that the husband had done any act that would lead to this result, and interference with personal liberty was not established.
Willful deprivation. This form of abuse is the denial of food, shelter, medication, or other physical assistance to those who, because of their age, health, or disability, are thereby exposed to physical, mental, or emotional harm. (22) Willful deprivation claims often arise in cases of child abandonment or where a parent leaves a child with a family or non-family member for extended periods without providing the basic necessities. These types of allegations can also be brought under the Juvenile Court Act.
Abuse by family or household members
For an order of protection to issue, a victim must be abused by a family or household member. People who share or shared a common dwelling or who have or allegedly have a child in common fall within the purview of being family or household members. (23)
Recently, the fourth district in Benjamin v McKinnon (24) ruled that former in-laws and their respective families are conjoined by the concept of collateral affinity. Collateral affinity is "the relationship of a spouse's relatives to the other spouse's blood relatives." (25) Benjamin suggests a rule of "once related, always related" for purposes of obtaining an order of protection.
"Family or household member" also includes those who have or had a dating or intimate relationship. In Alison C. v Westcott, (26) the respondent appealed the trial court's issuance of an order of protection because he contended that the parties were not in a dating relationship for purposes of the IDVA.
The court reversed the trial court and held that the parties only had one lunch date, spoke on the telephone once, and attended the same high school. (27) This was held not to be the type of serious courtship that came under the IDVA.
Types of orders of protection
The court can enter three types of orders of protection: emergency, interim, and plenary.
Emergency. Emergency orders of protection are valid for 14 to 21 days from the entry of the order. The petitioner must provide proof of exigent circumstances that warrant issuance of an emergency order without prior notice to the other party. (28)
Assistance in filling out petitions for orders of protection is provided from agencies such as the Violence Prevention Center of Southwestern Illinois for those persons unrepresented by counsel. If domestic abuse results in the filing of criminal charges or a juvenile action, a victim of abuse may be represented by the state's attorney in filing an order. (29)
Interim. Interim orders of protection are valid for up to 30 days. If the respondent has been served with process or entered a general appearance, an interim order of protection may issue. These orders are normally issued if service of process of the emergency order cannot be effected and the petitioner is diligently attempting to complete service.
Plenary. Plenary orders of protection are entered after all parties who are entitled to be present have been notified and either a full hearing is held or the respondent fails to appear. They are valid for a fixed period not to exceed two years.
Jurisdiction: where can an order of protection be filed?
All state courts in Illinois have the power to issue orders of protection. They can be enforced against Illinois residents and non-residents who are subject to long-arm jurisdiction.30 An order of protection may be filed in any county where i) the alleged abuse occurred, ii) either the petitioner or the respondent resides,31 or iii) the petitioner has temporarily fled to seek refuge and avoid further abuse.
Article IV of the United States Constitution requires all states to afford full faith and credit to the judgments of every other state. (32) The Violence Against Women Act, enacted in 1994, mandates that full faith and credit be accorded to orders of protection issued within the United States and its territories. (33)
For these protection orders to be honored by other states they must be valid and enforceable. This means the issuing court must have jurisdiction over the parties and subject matter, and due process must be afforded to the respondent. (34)
A complication may arise when a respondent does not live in Illinois and has not maintained minimum contacts with the state pursuant to its long-arm jurisdiction requirements. It is well settled that although a nonresident respondent may actually receive notice and the contents of a pending action, such notice will not otherwise give Illinois courts original jurisdiction over his person if no basis for jurisdiction otherwise existed.35
Thus, if a petitioner is abused in Indiana by an Indiana resident, then flees to Illinois and obtains an emergency order of protection, it is up to the respondent to take steps within the applicable time to object to service and the personal jurisdiction of the Illinois courts if he does not have any connection to the state. Otherwise, if a respondent does not address this usurpation of due process, a two-year default judgment may be entered, subjecting a respondent to criminal misdemeanor charges of violating an order of protection.
750 ILCS 60/214 governs the various remedies that may be included in an order of protection. Section 214(b) contains 18 subsections containing the specific remedies that the court may grant. The following are some of the most common.
Exclusive possession of the residence and personal property. A petitioner may be granted exclusive possession if he or she has a right to occupy the residence. The right to occupy exists if i) if the property is solely or jointly owned or leased by the petitioner or his/her spouse or ii) the residence is owned by a person with a legal duty to support the petitioner or a minor child in the petitioner's care. (36)
Frequently, if not typically, both parties (e.g., marriage partners) have the right to occupy the residence. In such cases, the court balances the hardships in deciding who will receive exclusive possession. (37) The statute also provides that instead of granting exclusive possession, the court may order the respondent to pay for suitable alternate housing for the petitioner while the order of protection is in effect. (38)
The court can also grant a petitioner possession of personal property or order a respondent to turn over property solely owned by the petitioner. (39) If the parties own the property jointly, however, the court balances the hardships when awarding possession. If the parties are married and the petitioner's sole claim to ownership is based on marital status, the court may award temporary possession to the petitioner by balancing the hardships only if there is a pending divorce on file.
Stay-away orders and additional restrictions. Orders of protections are meant to keep an abuser away from the victim. "Stay away" not only prohibits the respondent from being in the petitioner's physical presence within the limits described below, it also forbids nonphysical contact via mail, fax, telephone calls, third parties, etc. (40)
In People v Mandic, (41) an order of protection was entered against the respondent to stay away from his ex-wife and children without specifying any particular location as off limits. The respondent was present in church at the same time his wife and children were worshiping and was, as a result, charged with and convicted of violating the order of protection. On appeal, the defendant argued that he had a right to be present at a public house of worship and that the trial court did not honor his right to be presumed innocent when it deemed any contact a violation of the stay-away provision of the order. (42)
The appellate court held that a stayaway order does not encompass aimless, unintentional, or accidental conduct. Factors to be considered in deciding whether the contact is unintentional are the size of the public area, the number of people present, the defendant's purpose for being present, the length of time spent there, and when the defendant knew or should have known the protected party would be present. (43) Because the defendant acted intentionally and entered the church after he was apprised that his family would be there, he was found to have violated the stay-away provision.
Children: temporary physical care, possession, and custody of minors; support and visitation. 750 ILCS 60/214(b) (5) permits the court to award temporary physical care and possession of a minor child to a petitioner to protect the child's well-being. Temporary physical care and possession can be awarded in all three types of orders of protection described above. The Act does not provide guidelines for awarding temporary care and possession, and courts generally rely on the best interest standard dictated in the IMDMA and related statutes.
Courts may also award temporary custody to a petitioner. Unlike physical care and possession, temporary custody cannot be awarded in an emergency or interim order of protection. The Act provides that an award of temporary custody must be made in accordance with the Illinois Marriage and Dissolution of Marriage Act, the Parentage Act, and the Uniform Child Custody Jurisdiction and Enforcement Act. If parentage has been legally established, the respondent can be ordered to pay child support and may be granted visitation. (44)
A controversial provision in the statute governs parties who have a child in common but have never been married. The section provides that if the parentage of the putative father has not been established by statute or adjudicated by a court or administrative agency, he cannot be granted temporary care and possession, custody, or visitation. (45)
This provision may raise equal-protection concerns. For example, the statute provides that any person, related or not, can file a petition for an order of protection on behalf of an abused minor. If an emergency order is granted to a nonparent on behalf of a minor child and a subsequent plenary order is entered, nothing in the statute prevents the court from granting physical care and possession of that child to a nonparent for the duration of the order, which can be up to two years.
Thus, a complete stranger apparently has more rights under the IDVA than a father whose parentage has not been formally established. Although the IMDMA and related statutes can be read in unison with the IDVA to protect the best interests of the child, putative fathers are nevertheless at a distinct disadvantage when seeking orders of protection on behalf of their children.
Seizure of firearms. Mere ownership or possession of a firearm by a respondent subject to an order of protection is not in itself grounds for the court to seize it. Instead, there has to be an allegation that the respondent has threatened or is likely to use a firearm against the petitioner. (46)
Once the court has questioned the petitioner and any witnesses under oath and is satisfied that the respondent poses a threat of using a firearm, then the court shall order that all firearms in the respondent's possession be turned over to local law enforcement until the expiration of the order, but for a period not to exceed two years.
Only after that time can the firearm be returned to the respondent. For obvious reasons, this remedy has a particularly deleterious effect if the respondent is a law-enforcement officer.
On August 4, 2008, the "Cindy Bischof" legislation was signed into law in Illinois. Ms. Bischof, an Arlington Heights real estate broker, was killed by an ex-boyfriend who had violated an order of protection on at least two occasions. (47)
The law provides that when a person is charged with violating an order of protection, the court, after reviewing the accused criminal history and several other statutory factors, may order the respondent to undergo a riskassessment evaluation. Upon obtaining the evaluation results, the court may order the respondent to be placed under electronic surveillance to warn police of the proximity of the respondent to the victim. (48)
Other significant changes in the domestic violence laws are those related to stalking. Currently, victims of stalking can obtain orders of protection under the IDVA only if their perpetrators are family or household members. The new law, effective January 1, 2010, provides that a petition for a "stalking no contact order" can be filed when relief is not available under the IDVA. (49)
Thus, anyone who is a victim of stalking, which is behavior that includes but is not limited to following or surveilling a person, appearing at someone's home, work or school, sending unwanted texts or emails, etc., can commence a civil action against anyone, related or not, either independently or in conjunction with criminal prosecution, to prohibit such deleterious conduct. (50) "Stalking no contact orders," just as orders of protection under the IDVA, can also be issued on an emergency basis if the factual circumstances dictate that harm would occur if the offender received notice of the victim's request for judicial relief. (51)
Also, a bill pending in the House of Representatives at presstime (HB 3908) would add a new section to the IDVA, 750 ILCS 60/501. That provision would encourage judges presiding over domestic violence cases to obtain training on the subject and would authorize the state's attorney's office to develop or update protocols to educate domestic violence victims requesting orders of protection and direct them to accessible legal and counseling services. It also commissions them to develop protocols for assessing abusers with the propensity to commit escalating violence.
The aggressive response to domestic violence by lawmakers and law enforcement officials is commendable. Despite some imperfections, Illinois' domestic violence laws are expanding to protect victims of abuse and help offenders receive education and treatment that helps prevent recidivism.
(1.) American Bar Association, Division for Public Education, Know Your Rights, Domestic Violence, 1995, 2001, available at http://www.abanet.org/publiced/domviol.pdf.
(2.) Violence Prevention Center of Southwestern Illinois, Facts about Domestic Violence, statistics received Sept 2009, available at http://www.vpcswi.org/GetEducated/DomesticViolencefactsandstatistics/ tabid/83/Default.aspx.
(3.) Domestic Violence Facts: Illinois" National Coalition Against Domestic Violence, available at http://www.ncadv.org/files/Illinois.pdf.
(4.) Wikipedia, The Free Encyclopedia, http://en.wikipedia.org/wiki/Rule_of_thumb.
(5.) Dawn Bradley Berry, JD, The Domestic Violence Sourcebook, pp 20-22 (Lowell House 3d ed 1995).
(6.) 76 Ill 217, 1875 WL 8176.
Judge Laninya A. Cason is an associate circuit judge in the 20th Judicial Circuit, St. Clair County, and former partner at Hinshaw & Culbertson in Belleville.
(8.) 64 Ill App 3d 1014, 380 NE2d 973 (1st D1978).
(10.) Jan Russell, A Practical Guide to the Illinois Domestic Violence Act, p 1 (Illinois State Bar Association 2003).
(11.) 750 ILCS 60/103(8) defines a high risk adult with disabilities as a person aged 18 or over whose physical or mental disability impairs his or her ability to seek an order of protection.
(12.) 750 ILCS 60/201(a)(i-iv).
(13.) 750 ILCS 60/201(b)(i-ii).
(15.) 354 Ill App 3d 301, 820 NE2d 977 (1st D 2004).
(16.) 750 ILCS 60/202(a)(2).
(17.) 292 Ill App 3d 780, 686 NE2d 19 (3d D 1997).
(18.) 263 Ill App 3d 596, 635 NE2d 666 (1st D 1994).
(19.) Id at 600, 635 NE2d at 670, relying on 750 ILCS 60/103(6).
(21.) 750 ILCS 60/103(9).
(22.) 750 ILCS 60/103(15).
(23.) 750 ILCS 60/103(6).
(24.) 379 Ill App 3d 1013, 887 NE2d 14 (4th D 2008).
(25.) Id at 1021, 887 NE2d at 21, quoting Black's Law Dictionary 63 (West 8th ed 2004).
(26.) 343 Ill App 3d 648, 798 NE2d 813 (2d D 2003).
(27.) Id at 653, 798 NE2d at 817.
(28.) Whitten at 785-86, 686 NE2d at 23.
(29.) 750 ILCS 60/202(a)(3).
(30.) 750 ILCS 60/208.
(31.) 750 ILCS 60/209(a).
(32.) US Const Art IV, [section] 1.
(33.) 18 USC [section]2265
(34.) Illinois Domestic Violence Act and other Significant Laws Affecting Domestic Violence," Illinois Coalition Against Domestic Violence Legal Institute, Revised June 2001 (Jan 2000 ed available at http://www.ilcadv.org/legal/tablepage1.htm).
(35.) See Bank of Edwardsville v Raffaelle, 381 Ill 486, 45 NE2d 651(1942) (rendering a judgment in personam based on constructive notice null and void if the court initially lacked jurisdiction).
(36.) 750 ILCS 60/214(b)(2)(A).
(37.) 750 ILCS 60/214(b)(2)(B) See also Woodv Wood, 284 Ill App 3d 718, 672 NE2d 385 (4th D 1996) (court held that although husband could sell the marital home to his parents even though wife had exclusive possession due to order of protection, parents could not evict wife because they were acting with the same intent as husband and therefore bound by the order).
(38.) 750 ILCS 60/214(b)(2)(B).
(39.) 740 ILCS 60/214(b)(10).
(40.) People v Olsson, 335 Ill App 3d 372 , 780 NE2d 816 (4th D 2002).
(41.) 325 Ill App 3d 544, 759 NE2d 138 (2d D 2001).
(43.) Id at 548-49, 759 NE2d at 143, citing People v Bailey, 167 Ill 2d 210, 657 NE2d 953 (1995).
(44.) 750 ILCS 60/214(b)(7) and (12).
(45.) 750 ILCS 60/214 (c)(5).
(46.) 750 ILCS 60/214(b)(14.5)(a).
(47.) http://archives.chicagotribune.com/2008/aug/08/opinion/ chi-0808edit1aug08.
(49.) 740 ILCS 21/15.
(50.) 740 ILCS 21/5, 21/20, 21/80.
(51.) 740 ILCS 21/95.
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|Author:||Cason, Laninya A.|
|Publication:||Illinois Bar Journal|
|Date:||May 1, 2010|
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