Orders of Protection: an overview

Issuance of an order of protection is authorized by the Illinois Domestic Violence Act (750 ILCS 60/101 et seq). An order of protection is a legal and enforceable document, issued by a court, to protect abused or harassed family or household members from domestic violence.

Who may obtain an Order of Protection

Under the Domestic Violence Act, “family or household member”, who may obtain an order of protection includes spouses, former spouses, parents, children, stepchildren, persons who have or allegedly have a child in common, persons who have or have had a dating or engagement relationship, and persons with disabilities.

Behavior prohibited by an Order of Protection

The underlying purpose of an order of protection is to prohibit and make it illegal for an offender to abuse another family or household member. As defined in detail in Section 103 of the Domestic Violence Act, “abuse” includes:

• physical abuse
• harassment
• intimidation of a dependent
• interference with personal liberty
• willful deprivation

The types of behavior proscribed under each of the foregoing categories of abuse are extremely broad. For example, “physical abuse” prohibits not only striking a family member but also confinement, restraint or sleep deprivation of the protected person. Similarly, “harassment” includes diverse behaviors directed at protected persons such as: repeatedly calling them, stalking them, threatening them with physical violence and concealing or threatening to conceal a minor child from them.

Types of Orders of Protection

There are two types of Orders of Protection authorized by the Illinois Domestic Violence Act: criminal Orders of Protection and civil Orders of Protection. In a criminal proceeding, the State is the “plaintiff” and the abuser is the “defendant.” To obtain a criminal Order of Protection, the abuser must have allegedly committed a crime against the family member (i.e. assault, battery, stalking); and the State must prove that the defendant is guilty “beyond a reasonable doubt” (almost 100% certainty). An action for a civil Order of Protection is brought by one person against another person, either independently or in conjunction with another civil proceeding such actions for divorce or parentage. To obtain a civil Order of Protection, the petitioner must prove that alleged abuse has occurred by a “preponderance of the evidence (a little over 50% certainty.

Impact of an Order of Protection on Visitation

As part of an Order of Protection, a court mandated to restrict or deny an abuser’s visitation rights if the Court finds that the abuser has done or is likely to do any of the following:

• abuse or endanger the minor child during visitation
• use the visitation as an opportunity to abuse or harass the petitioner or petitioner’s family
• improperly conceal or detain the minor child
• act in any manner not in the child’s best interests

An Order of Protection which restricts the abuser’s visitation in accordance with the above findings takes precedence over any visitation which was previously entered for so long as the Order of Protection is in effect.

Penalties for Violations of an Order of Protection

A violation of any Order of Protection, whether issued in a civil or a criminal proceeding, may include one or more of the following: incarceration, payment of restitution, a fine, payment of attorneys’ fees and costs or community service. The type and severity of the penalty which is imposed will be dependant on the nature of the violation, previous violations, and any other aggravating or mitigating factor.