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Orders of Protection Attorneys in Huntley, IL
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Contentious domestic relations matters, such as divorce and paternity, may include a component of domestic violence. Often charges are brought against one of the parties. Three of the most frequent charges include: domestic battery, the unlawful interference with the reporting of domestic violence, and violation of an order of protection. Generally, these are Class A misdemeanors punishable for up to one year in county jail and/or a fine not to exceed $2,500. However, in some circumstances, the charges may be enhanced and charged as a felony thereby having a greater punishment.
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Domestic Violence, Orders of Protection & Other Protective Orders
Orders of protection and protective orders, sometimes referred to as “restraining orders,” are available to survivors of violence, stalking, or abuse. These orders are put in place to protect victims from further abuse.
There are four types of orders of protection and other protective orders:
- An order of protection protects a victim of abuse from their abuser, but only if their abuser is a family or household member.
- A stalking no contact order protects a victim of stalking from their stalker.
- A civil no contact order protects a victim of non-consensual sexual contact or penetration from their perpetrator.
- A firearms restraining order prohibits a person who is a danger to themselves or others from purchasing, possessing, or receiving a firearm, but can only be obtained by a family member.
A person is prohibited from obtaining a stalking no contact order or a civil no contact order if they qualify for an order of protection. Because stalking and non-consensual sexual contact are both forms of abuse, a person can never obtain a stalking no contact order or civil no contact order against a family or household member, and must instead obtain an order of protection.
The effect of a protective order, except for a firearms restraining order, may provide for the perpetrator to stay away from their victim, to stay away from their victim’s house, to have no contact with their victim, or to transfer schools if both the victim and the perpetrator are minors attending the same school. Stalking no contact orders and orders of protection may also prohibit the perpetrator from possessing a FOID Card, or from possessing or purchasing firearms. Orders of protections can also provide for exclusive possession of a residence, custody and visitation with children, and access to and possession of property, among other remedies. Firearms restraining orders can only prohibit a person from purchasing, possessing, or receiving a firearm, and can provide no additional protective measures.
A person requests a protective order by filing a petition with the court, such as a petition for order of protection. Each type of protective order may be obtained ex parte (without notice to the other party) where an emergency exists, except for firearms restraining orders, though the court may conclude that an emergency exists if further abuse would be likely to occur if the perpetrator were given any prior notice of the efforts to obtain the protective order. The court may grant an emergency firearms restraining order if a person poses an immediate and present danger to themselves or others by purchasing, possessing, or receiving a firearm. These emergency orders may last for a period of up to 21 days, except for emergency firearms restraining orders which last for a period of up to 14 days, at which time the court may hold a hearing on the petition.
After hearing, final protective orders, or “plenary” order, may be entered for a period of up to two years, except for firearms restraining orders which may last for a period of six months. The court may only hold a hearing and issue a plenary order if the perpetrator has been formally notified of the pending petition for a protective order. A party violating any type of protective order may be subject to criminal prosecution.
Orders of Protection
The Illinois Domestic Violence Act provides that a victim of abuse may obtain an order of protection against another individual who is a family or household member. Abuse includes:
- Physical abuse
- Sexual abuse
- Interference with personal liberty
- Intimidation of a dependent
- Willful deprivation of a child
Family or household members include people who are related by blood, are related by present or prior marriage (including step-siblings and in-laws), have a child in common, have had a dating or engagement relationship, or have shared a common dwelling (a roommate). The effect of an order of protection may provide for the abuser to stay away from their victim, exclusive possession of a residence, custody and visitation with children, and access to and possession of property. An order of protection does not divide or determine who the property or residence belongs to, but merely who is able to retain possession of it until the termination or modification of the order.
Similarly, an order of protection cannot create a permanent modification of custody or visitation. Unless a parent separately petitions for a permanent modification of custody or visitation during the time that the order is in effect, both custody and visitation will revert upon expiration of the order. Similar to a firearms restraining order, an order of protection can prohibit an abuser from possessing a FOID Card or firearms, and permits the court enter a warrant for the seizure of the abuser’s firearms.
Stalking No Contact Orders
The Illinois Stalking No Contact Order Act provides that a victim of stalking may obtain a stalking no contact order against their stalker. The Stalking No Contact Order Act defines stalking as a course of conduct directed at a specific person, if the stalker knows or should know that their course of conduct would cause a reasonable person to fear for the safety of themselves, their workplace, their school, their place of worship, or of a third party, or that their course of conduct would cause a reasonable person to suffer emotional distress.
Behavior is only a course of conduct where there are two or more acts in which the person follows, monitors, observes, surveils, or threatens a person, workplace, school, or place of worship, engages in other contact, or interferes with or damages a person’s property or pet. A course of conduct includes any incident in which the person directly, indirectly, or through third parties engages in this type of behavior, by any action, method, device, or means, including contact via electronic communication. Similar to a firearms restraining order, a stalking no contact order can prohibit a stalker from possessing a FOID Card or firearms, and permits the court enter a warrant for the seizure of the stalker’s firearms.
Civil No Contact Orders
The Illinois Civil No Contact Order Act provides that a victim of non-consensual sexual conduct or non-consensual sexual penetration may obtain a civil no contact order against their perpetrator. The Civil No Contact Order Act defines sexual conduct as any intentional or knowing touching or fondling by either person, of the sex organs, anus, or breast of either person, or the intentional or knowing touching or fondling of any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of either person, whether directly or indirectly (through clothing), including any transfer or transmission of semen by the perpetrator upon any part of the clothed or unclothed body of the victim. Sexual penetration is any contact or intrusion, however slight, between the sex organ or anus of one person by any object or animal, or the sex organ, mouth or anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration.
Firearms Restraining Orders
The Illinois Firearms Restraining Order Act provides that a family member or law enforcement officer may obtain a firearms restraining order against a person who poses a significant danger of causing personal injury to himself, herself, or another in the near future by having in his or her custody or control, purchasing, possessing, or receiving a firearm.
The Illinois Firearms Restraining Order Act defines a family member as a spouse, parent, child, or step-child, any other person related by blood or present marriage, or a person who shares a common dwelling (a roommate). A person petitioning for a firearms restraining order is required to make a good faith effort to provide notice to any and all intimate partners of the respondent. The notice must include that the petitioner intends to petition the court for a 6-month firearms restraining order and/or an emergency firearms restraining order, as applicable.
“Intimate partner” means a spouse, former spouse, people with a child in common, people who have had a dating or engagement relationship. Similar to a firearms restraining order, stalking no contact orders and orders of protection may prohibit a person from purchasing, possessing, or receiving a firearm, require them to surrender their FOID Card, and grant the court the authority to issue a warrant for the seizure of firearms. However, a firearms restraining order further requires a person to surrender their concealed carry license, and also authorizes the court to issue a warrant to search the person’s residence and other locations for firearms. The difference between these two types of warrants is that a warrant for the seizure of firearms only allows law enforcement to seize firearms from a specific location, and if the firearms are not present at that location then law enforcement may not continue searching for firearms, whereas a search warrant would allow them to continue searching other locations.
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