When two kids fight, the perpetrator kid will often claim that they had to abuse the other kid because of something the other kid did. As adults, scold the child by saying, “two wrongs don’t make a right” and appropriately punish the more recent wrongdoer. Punishing both children usually feels off-balance when one child has just been abused.
The same logic works when two parties file petitions for order of protection against each other. Only one order of protection between two parties based on the same incident can exist in Illinois at any given time.
Mutual Orders Of Protection Are Prohibited In Illinois
“Mutual orders of protection are prohibited.” 750 ILCS 60/215
“Mutual orders [of protection] send everyone the wrong message. They encourage society to trivialize the abuse, to consider the abuse too minor to determine the idenfity of the real abuser. At the same time, such orders also encourage people to blame the victim rather than hold the abuser accountable. People believe that the court would not have issued mutual orders if only one party was abusive, so both must have been at blame. Mutual orders reinforce all the misconceptions that justify having granted mutual orders in the first place.” Joan Zorza, What is Wrong with Mutual Orders of Protection?, 1 Fam. & Intimate Partner Violence Q. 127 (2008).
If two petitions for order of protection are filed before either is heard, an Illinois court can hear both but can only issue one order of protection against one party.
If you already filed a petition for an order of protection and the opposing side has filed their own petition for order of protection, you may file a motion to dismiss their petition.
“Defendant may, within the time for pleading, file a motion for dismissal of the action…That there is another action pending between the same parties for the same cause.” 735 ILCS 5/2-619(a)(3)
(I believe that both petitions for order of protection should be heard and the subsequent petition for order of protection should be treated as a counter-petition but I would be remiss if I did not suggest a motion to dismiss)
If you already have an order of protection and the opposing side files a petition for an order of protection, file a motion to dismiss based on the fact that this issue has already been heard and decided (also known as “res judicata”)
“Res judicata is an equitable doctrine designed to prevent multiple lawsuits between the same parties where the facts and issues are the same. Under the doctrine, a final judgment on the merits rendered by a court of competent jurisdiction operates to bar a subsequent suit between the same parties and involving the same cause of action.” Lutkauskas v. Ricker, 2015 IL 117090
Successive Orders Of Protection In Illinois
The bar against mutual orders of protection does not mean that the successful petitioner for an order of protection can now abuse the respondent without fear of reprisal because only one order of protection is ever allowed. If an additional, separate instance of alleged abuse occurs, an additional petition for order of protection may be filed and considered by the court. These additional orders of protection are called “correlative orders.”
“Unlike the flat prohibition of mutual orders, the statute allows for correlative orders where separate pleadings, notice and proof of abuse are provided by each party seeking an order of protection. The statute further requires that a separate order be issued in accordance with the other provisions of the Illinois Domestic Violence Act.” IN RE MARRIAGE OF KIFERBAUM AND KIFERBAUM, Ill: Appellate Court, 1st Dist., 2nd Div. 2013
Courts are very skeptical of a new petition for order of protection between the parties. The new petition will almost always be the respondent getting back at the original petitioner because any additional abuse by the respondent would warrant a violation of the order of protection NOT a new petition for order of protection. A petition for a correlative order must be very specific and satisfy every aspect of the Illinois Domestic Violence Act.
“The plain language of section 215 indicates that correlative orders of protection…may be issued and provides a clear roadmap for a party and the court to follow.” IN RE MARRIAGE OF KIFERBAUM AND KIFERBAUM, Ill: Appellate Court, 1st Dist., 2nd Div. 2013
“Correlative separate orders of protection undermine the purposes of this Act and are prohibited unless both parties have properly filed written pleadings, proved past abuse by the other party, given prior written notice to the other party unless excused under Section 217, satisfied all prerequisites for the type of order and each remedy granted, and otherwise complied with this Act.” 750 ILCS 60/215
“[T]his process [of obtaining a correlative order] alleviates many of the important concerns that require prohibition of mutual orders. This also protects the court and the parties from the issue…of a race to the courthouse to bar an adversary from seeking an order of protection. If correlative orders of protection were also flatly prohibited, it would leave open the possibility that an abuser could foreclose the ability of the abused to receive protection by the court and law enforcement not only physically, but in legal proceedings. This conclusion would run completely against the purposes of the Illinois Domestic Violence Act.” IN RE MARRIAGE OF KIFERBAUM AND KIFERBAUM, Ill: Appellate Court, 1st Dist., 2nd Div. 2013
“In these cases [of correlative orders], the court shall hear relevant evidence, make findings, and issue separate orders in accordance with Sections 214 and 221. The fact that correlative separate orders are issued shall not be a sufficient basis to deny any remedy to petitioner or to prove that the parties are equally at fault or equally endangered.” 750 ILCS 60/215
In conclusion, competing orders of protection are allowed if they are based on different facts but they are discouraged and subject to much closer scrutiny.
Competing Orders Of Protection From Different States
Orders of protection from another state will be honored even if a competing order of protection exists.
The United States Constitution says that“Full Faith and Credit shall be given in each State to the…judicial Proceedings of every other State.” U.S. Const. art. IV, sec. 1.
Illinois state law also requires acknowledgment of out-of-state orders of protection.
An out of state order of protection is a foreign judgment. A“”foreign judgment” means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this State.” 735 ILCS 5/12-651
“A person entitled to protection under an order of protection issued by the court of another state, tribe, or United States territory or military tribunal may file a certified copy of the order of protection with the clerk of the court in a judicial circuit in which the person believes that enforcement may be necessary.” 750 ILCS 60/222.5(a)
Federal law reiterates the constitution and Illinois’ state law honoring out-of-state orders of protection.
“Any protection order issued that is consistent with subsection (b) of this section by the court of one State…shall be accorded full faith and credit by the court of another State…and enforced by the court and law enforcement personnel of the other State…as if it were the order of the enforcing State[].” 18 U.S.C. § 2265(a)
But federal law does not allow for competing orders of protection if a counter-petition was not properly filed in the original state’s order of protection action.
“A protection order issued by a State…against one who [has already] has petitioned, filed a complaint, or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if—
(1) no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or
(2) a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order.” 18 U.S.C. § 2265(c)
Federal law is the supreme law of the United States, so competing orders of protection must be filed in the original state as a counter-petition in order for a subsequent out-of-state order of protection to be honored. “State courts are not free to refuse enforcement of [a federal law].” Testa v. Katt, 330 US 386 – Supreme Court 1947
When A Competing Order Of Protection Is Granted In Illinois
Almost every petition for an order of protection starts as an emergency petition for order of protection. Emergency petitions can be brought before the court “ex parte,” without any notice to the other side. When the other side is not present to inform the court that an order of protection already exists, the subsequent petitioner has the duty to inform the court. For obvious reasons, the subsequent petitioner often forgets to mention the existing order of protection.
This subsequent, competing order of protection (while obtained fraudulently) will be good in the eyes of law enforcement.
“There shall be a presumption of validity where an order [of protection] is certified and appears authentic on its face.” 720 ILCS 5/12-3.4
The presumption of an order of protection’s validity can be overcome by bringing the initial order of protection to the court’s attention.
“[T]his presumption [that an order of protection is valid] may be overcome” People v. Stiles, 779 NE 2d 397 – Ill: Appellate Court, 1st Dist., 5th Div. 2002
Remember, mutual orders of protection are invalid but correlative orders of protection are valid. Even if the correlative order of protection is valid, it does not provide license to barge in on the other party and insist they have violated the order of protection.
“Assuming arguendo that [a second] order of protection was valid …the existence of that order in no way voided [the first] order of protection, which provided that [the second petitioner] was to have “no contact by any means” with [the first petitioner]. If [the second petitioner] wished to enforce the proscription, in his order of protection barring [the first petitioner] from [the second petitioner’s] favorite [location], [second petitioner] should have gone directly to a phone and called the police to remove [first petitioner]. [Second petitioner] was not free to violate the provisions of [first petitioner’s] order of protection.” People v. Stiles, 779 NE 2d 397 – Ill: Appellate Court, 1st Dist., 5th Div. 2002
When a subsequent, competing and now invalid order of protection is revealed to have been obtained fraudulently, the liar (or omitter of truth) will be forced to pay the other side’s attorney’s fees in relation to that subsequent, competing order of protection.
“If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137(a)
“The purpose of the rule is to penalize attorneys and parties who abuse the judicial process by filing frivolous or false matters without a basis in law or fact or for purposes of harassment.” In re Marriage of Petrik, 973 NE 2d 474 – Ill: Appellate Court, 2nd Dist. 2012
Fighting fire with fire is not acceptable in an Illinois divorce court. Orders of protection exist to keep people safe not to derail their former partners lives out of spite. Separating your lives should not involve listing a litany of past grievances in order to punish or even jail your spouse. That being said, intimate partner violence is so prevalent and terrifying that orders of protection must be considered seriously by any court that is petitioned.
To learn more about what an order of protection can and cannot do in your Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
