Orders of protection are scary in multiple ways. The people asking for protection from their romantic partner usually also rely on that romantic partner for financial support.
One of the purposes of the Illinois Domestic Violence Act is to “address any related issues of child custody and economic support, so that victims are not trapped in abusive situations by fear of retaliation, loss of a child, financial dependence, or loss of accessible housing or services” 750 ILCS 60/102(4)
The Illinois Domestic Violence Act specifically provides for child support within an order of protection.
“Order for payment of support. Order respondent to pay temporary support for the petitioner or any child in the petitioner’s care or over whom the petitioner has been allocated parental responsibility, when the respondent has a legal obligation to support that person, in accordance with the Illinois Marriage and Dissolution of Marriage Act, which shall govern, among other matters, the amount of support, payment through the clerk and withholding of income to secure payment. An order for child support may be granted to a petitioner with lawful physical care of a child, or an order or agreement for physical care of a child, prior to entry of an order allocating significant decision-making responsibility. Such a support order shall expire upon entry of a valid order allocating parental responsibility differently and vacating the petitioner’s significant decision-making authority, unless otherwise provided in the order.” 750 ILCS 60/214(b)(12)
“This provision [750 ILCS 60/214(b)(12)] is straightforward and unambiguous. It expressly authorizes courts entering orders of protection to order the respondent to pay temporary child support when the respondent has a ‘legal obligation to support that person.’” Martinez v. Leon, 2024 IL App (1st) 231058
In addition to child support, the Illinois Domestic Violence Act allows for a variety of other forms of support.
An order of protection can also “[o]rder respondent to pay petitioner for losses suffered as a direct result of the abuse, neglect, or exploitation. Such losses shall include, but not be limited to, medical expenses, lost earnings or other support, repair or replacement of property damaged or taken, reasonable attorney’s fees, court costs and moving or other travel expenses, including additional reasonable expenses for temporary shelter and restaurant meals… If a party is entitled to seek maintenance, child support or property distribution from the other party under the Illinois Marriage and Dissolution of Marriage Act, as now or hereafter amended, the court may order respondent to reimburse petitioner’s actual losses, to the extent that such reimbursement would be ‘appropriate temporary relief’, as authorized by subsection (a)(3) of Section 501 of that Act.” 750 ILCS 60/214(b)(13)
Notice And Child Support In An Illinois Order Of Protection
Getting child support when you get an order of protection is not simply done by asking for child support at the hearing.
The petition for order of protection must be physically served upon the respondent in order to request child support in an order of protection case.
“Remedies requiring actual notice. The counseling, payment of support, payment of shelter services, and payment of losses remedies provided by paragraphs 4, 12, 13, and 16 of subsection” 750 ILCS 60/210
Actual notice can be provided if the boxes # 12 and/or # 13 are checked on the statewide Petition For Order Of Protection form.
Respondents in orders of protection cases are notorious for not appearing. That will only lead to a default if the Respondent had been properly served.
“A plenary order of protection may be entered by default as follows:(1) For any of the remedies sought in the petition, if respondent has been served or given notice in accordance with [actual service requirements] and if respondent then fails to appear as directed or fails to appear on any subsequent appearance or hearing date agreed to by the parties or set by the court” 750 ILCS 60/210(f)
Orders of protection in bigger Illinois counties are typically heard in Zoom court.
“A court in a county with a population above 250,000 shall offer the option of a remote hearing to a petitioner for an order of protection. The court has the discretion to grant or deny the request for a remote hearing.” 750 ILCS 60/212(d)
If the Respondent was not properly served but the Respondent still appears in Zoom court (very common) the Respondent will be deemed properly served.
“Where respondent in a protective order case (defined as a proceeding arising under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq.), Code of Criminal Procedure (725 ILCS 5/112a-1.5 to 112a-31), Civil No Contact Order Act (740 ILCS 22/101 to 302), or Stalking No Contact Order Act (740 ILCS 21/1 to 135)) appears in any court proceeding by telephone or video conference, respondent shall be considered personally served, and no further service of process shall be required, provided the operative terms of the protective order are read to respondent in open court during the remote court appearance.” ” Ill. S. Ct. R. 102.1(a)
Why Doesn’t Child Support Get Set In A Later Divorce or Parentage Case?
For example, in Cook County, orders of protection when there is no underlying divorce or parentage case get heard in the domestic violence division.
Domestic Violence Division judges can transfer orders of protection to the Domestic Relations Division where child support issues are more commonly heard.
“A judge presiding over an independent order of protection case related to a case pending in the Domestic Relations Division may directly transfer the case to the Presiding Judge of the Domestic Relations Division for assignment.” Ill. R. Cir. Ct. Cook Cnty. 22.4
That transfer usually requires a case to be filed in the Domestic Relations Division. But, even before the transfer, the Domestic Violence judge must make some specific findings and rulings before the transfer.
A domestic violence judge as a default must hear the petition for order of protection and grant appropriate relief.
“A petition for an order of protection shall be treated as an expedited proceeding, and no court shall transfer or otherwise decline to decide all or part of such petition except as otherwise provided herein.” 750 ILCS 60/212(a)
However, a domestic violence judge can transfer some child support matters.
“Any court or a division thereof which ordinarily does not decide matters of child custody and family support may decline to decide contested issues of physical care, custody, visitation, or family support unless a decision on one or more of those contested issues is necessary to avoid the risk of abuse, neglect, removal from the State or concealment within the State of the child or of separation of the child from the primary caretaker. If the court or division thereof has declined to decide any or all of these issues, then it shall transfer all undecided issues to the appropriate court or division.” 750 ILCS 60/212(b)
Is a domestic violence court able to punt on support issues? Not really.
“Three things are clear from this provision [750 ILCS 60/212(b)]. First, even if the court entering the order of protection would not usually decide child-support issues, it still has the authority to do so when asked to include temporary child support as a remedy in an order of protection. Second, the court only has discretion not to decide “contested issues,” meaning that it is required to decide any uncontested issues involving temporary child support. Third, even when temporary child support is contested, the court must still decide the issue if necessary to protect the child from abuse, neglect, removal from the state, concealment, or separation.” Martinez v. Leon, 2024 IL App (1st) 231058
Child support must be ordered by a Domestic Violence court if the Respondent is defaulted and the issue is, therefore, uncontested.
Even if a Domestic Violence court wants to transfer the child support issue to the Domestic Relations division, the court must decide if a child support order is unnecessary at this time to “avoid the risk of abuse [or] neglect.”
If the Domestic Violence court still balks at ordering child support, the domestic violence court must specifically reserve the issue when transferring the case to the domestic relations division.
“If the court transfers or otherwise declines to decide any issue, judgment on that issue shall be expressly reserved and ruling on other issues shall not be delayed or declined.” 750 ILCS 60/212(c)
“[S]ection 212 is clear that, when a court is asked to order temporary child support as part of an order of protection, must either decide that request itself or reserve a decision and transfer the issue to another court for resolution. If the court is unable to effectuate a transfer for whatever reason, then the only option it has left is to decide the issue itself” Martinez v. Leon, 2024 IL App (1st) 231058
Ask for child support and/or maintenance in your Petition for an Order Of Protection. Otherwise, you will be waiting months for that support when you are finally heard in the Domestic Relations division of your Illinois county. Domestic Violence courts operate on an expedited basis. Temporary child support will be granted much faster via an order of protection than the protracted system in Domestic Relations which allows for time to answer the motion, exchange of financial affidavits and a full non-emergency hearing.
To learn more, contact my Chicago, Illinois family law firm to discuss all your options with an experienced Illinois divorce attorney.
