Orders of protection can be obtained either through the criminal courts or through the civil courts.
A criminal order of protection is obtained through the underlying crime (usually assault or battery). The state’s attorney should provide you with the help you need in getting a criminal order of protection in conjunction with the prosecution of your abuser.
A civil order of protection is obtained through your own petition. An underlying crime may have happened but it was not reported or the police/prosecutor refused to press charges. You, however, can still proceed with a petition for an order of protection without the permission or cooperation of any government entity.
If there’s not an underlying divorce or parentage case, the petition for order of protection must be filed at 555 W. Harrison or one of the suburban district courts (Skokie, Rolling Meadows, Maywood, Bridgeview or Markham) in their respective Domestic Violence courts. If there is any kind of parentage or divorce case between you and your abuser, the petition for order of protection should be filed within your parentage or divorce case. If, for whatever reason, the petition for order of protection was filed at 555 W. Harrison or suburban district AND you have a parentage or divorce case open, anyone can bring that to the attention of the court and the court will remove the case from 555 W. Harrison’s court house or the suburban court house to the court house where your divorce or parentage case is pending.
Specifically, Rule 13.3(g) of the Cook County Local rules provides that:
“(i) When a petition for an order of protection is filed in the Richard J. Daley Center or the Domestic Violence Division at 555 West Harrison Street and there is a domestic relations matter pending in a suburban municipal district, the order of protection shall be consolidated with the pending domestic relations matter after the hearing on an emergency order of protection.
(ii) When a petition for an order of protection is filed in a suburban district and there is a domestic relations matter pending in the Richard J. Daley Center, the order of protection shall be consolidated with the pending domestic relations matter after the hearing on an emergency order of protection.
(iii) Notwithstanding any contrary provisions in these Rules, if a petition for an order of protection is filed in a district or in the Domestic Violence Division at 555 West Harrison Street at any time, the judge presiding over the petition in the district or 555 West Harrison Street shall have the discretion to retain the petition for the order of protection in the district or at 555 West Harrison Street until the petition is adjudicated by entry of an interim or plenary order of protection or order of dismissal, regardless of the subsequent filing of a domestic relations matter in another district.
(iv) Nothing in this section shall prevent any petitioner from filing a petition for an emergency order of protection in accordance with the provisions of the Illinois Domestic Violence Act.”
This is important because in my experience, Domestic Violence courts treat petitions for order of protection very differently than Domestic Relations courts.
Domestic Violence courts (like 555 W. Harrison) are exclusively preoccupied with resolving the issue of the order of protection. They want to know what happened and who it happened to. If there was violence, the threat of violence and any corroborating evidence (a photo of a bruise or the text of a threat) an order of protection is very likely to be issued.
In Domestic Relations court, the courts have a lot more to deal with than just your order of protection. The courts also have to deal with the underlying divorce and or parentage issues. If the parties have children, it’s almost impossible to completely implement an order of protection as the parties will have to exchange the children for parenting time on a regular basis. The courts (and the attorneys) will often veer the parties into a mutual stay away order which may be to your advantage or disadvantage. I’ll discuss this later as I elaborate on the rules.
If your abuser has not already filed an appearance in an underlying parentage or domestic relations case they must be served with the petition for an order of protection before a plenary (permanent) order of protection can be entered.
Until a final hearing on the order of protection is entered, the court may enter an ex parte (the accused not being there) temporary order of protection.
The allegations of an order of protection must be proven just like any other case. They require the testimony of the accuser and the presentment of any corroborating evidence (pictures, texts).
The court shall consider the following in issuing an order of protection:
“(i) The nature and severity, pattern and consequences of the respondent’s past abuse, neglect, exploitation of the petitioner or any family household member, including the concealment of his or her location in order to evade service of process notice, and the likelihood of danger of future abuse, neglect, or exploitation to petitioner or any member of petitioner’s or respondent’s family or household; and
(ii) the danger that any minor child will be abused or neglected or improperly relocated from the jurisdiction improperly concealed within the state or improperly separated from the child’s primary caretaker.”720 ILCS 60/281(c)(1)
Upon the issuance of an order of protection the terms of that order will be set. For couples, this primarily means that the accused is forbidden from entering the party’s residence. Often, couples share the marital home and to eject a person from the marital home requires the court to make “a balance of hardships.”
“If petitioner and respondent each has the right to occupancy of a residence or household, the court shall balance (i) the hardships to respondent and any minor child or dependent adult in respondent’s care resulting from entry of this remedy with (ii) the hardships to petitioner and any minor child or dependent adult in petitioner’s care resulting from continued exposure to the risk of abuse (should petitioner remain at the residence or household) or from loss of possession of the residence or household (should petitioner leave to avoid the risk of abuse). When determining the balance of hardships, the court shall also take into account the accessibility of the residence or household. Hardships need not be balanced if respondent does not have a right to occupancy.
The balance of hardship is presumed to favor possession by petitioner unless the presumption is rebutted by a preponderance of the evidence, showing that the hardships to respondent substantially outweigh the hardships to petitioner and any minor child or dependent adult in petitioner’s care. The court, on the request of petitioner or on its own motion, may order respondent to provide suitable, accessible, alternate housing for petitioner instead of excluding respondent from a mutual residence or household.”750 ILCS 60/214(b)(2)(B)
In making the consideration of this balance of hardships the court shall consider”
“(i)availability, accessibility, cost, safety, adequacy, location and other characteristics of alternate housing for each party and any minor child or dependent adults in the party’s care;
(ii) the effect on the party’s employment; and
(iii) the effect on the relationship of the party, and any minor child or dependent adult in the party’s care, to family, school, church and community.”750 ILCS 60/214(c)(2)
This balance of hardships is what makes the difference between Domestic Violence and Domestic Relations courts so crucial. A Domestic Relations court as it handles all aspects of your relationship is going to be much more careful about the balance of hardships. A Domestic Violence court is only focused on the incident at hand and is therefore less likely to consider the balance of hardships in essentially evicting your spouse/partner.
A Domestic Relations court will often prefer that the parties move past all these accusations and enter into a mutual stay away order. A mutual stay away order is not a formal order with any statutory backing. It’s just a hand-written order that forbids either party to contact the other.
So, if a party violated an order of protection you could call the police and the police would arrest the party for violating the order of protection. A totally different criminal judge would then adjudicate the violator.
But if a party violated a mutual stay away order the police would simply tell the violator to “get out of here” without any arrest. This would then allow you to bring the violator to your domestic relations judge on a contempt petition. The advantage of this is that you can better control the narrative of your case to your domestic relations judge by having all matters appear before the domestic relations judge and not split your case between criminal and domestic relations courts.
You can now see that petitioning for an order of protection is a matter of strategy depending on your goals. If you are fearful for your safety you should file a certain way and in a certain place. If your bigger concern is controlling a volatile partner and establishing boundaries then you should file a different way. Talk to a lawyer to adequately navigate this system to achieve your goals.