Orders of protection are to prevent “abuse[] by a family or household member” 750 ILCS 60/201(a)(i)
Family and household members are usually seen every day. So, when the abuse needs to stop…the abuse needs to stop immediately.
Virtually every petition for order of protection starts as an emergency order of protection. The peculiar thing that distinguishes emergency orders of protection from other orders of protection is that emergency orders of protection can be heard on an “ex parte” basis.
Ex parte means “on or from one party only, usually without notice to or argument from the adverse party.” Black’s Law Dictionary (11th ed. 2019)
Usually, everything in a court of law requires the other party to be present. The entire Anglo-American legal system is based on this concept of notice being required before a court can make a decision. It’s called “due process”
“No state shall make or enforce any law…without due process of law” U.S. Const., amend. XIV
Due process is “law in its regular course of administration through courts of justice.” Black’s Law Dictionary (10th ed. 2014)
“At a minimum, due process requires that a deprivation of property cannot occur without providing notice and an opportunity for a hearing appropriate to the nature of the case.” In re Marriage of Beyer and Parkis, 753 NE 2d 1032 – Ill: Appellate Court, 1st Dist., 1st Div. 2001
These due process protections do NOT cover emergency orders of protection.
“[P]rocedural due process with respect to the issuance of an emergency protection order does not require prior notice to a respondent where there is a showing of exigent circumstances.” Sanders v. Shephard, 541 NE 2d 1150 – Ill: Appellate Court, 1st Dist. 1989
When you are terribly afraid of someone to the point where you need an order of protection against them, you do not need to send them a polite notice that you’ll be requesting that order of protection on an immediate basis.
“When…an emergency order of protection is sought in such a case on an ex parte application, then the procedure set forth in subsection (a) of Section 210 (other than in subsection (a)(2)) shall be followed.” 750 ILCS 60/210.1(a)
A summons still has to be issued and served in an emergency order of protection it just does not have to be served in advance of the hearing.
“Any action for an order of protection, whether commenced alone or in conjunction with another proceeding, is a distinct cause of action and requires that a separate summons be issued and served.” 750 ILCS 60/210(a)
If there is already a pending divorce or (God forbid) a criminal case then the respondent already has an appearance on file. Just regular email to the email on that appearance is sufficient notice.
“[E]xcept that in pending cases the following methods may be used:(1) By delivery of the summons to respondent personally in open court in pending civil or criminal cases.(2) By notice in accordance with Section 210.1 in civil cases in which the defendant has filed a general appearance.” 750 ILCS 60/210(a)
An order of protection hearing must be scheduled as soon as possible.
“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)
Scheduling a hearing as soon as possible means that the respondent (the person to whom the order of protection applies against) might not be able to be present for the hearing.
“Petitions for emergency remedies shall be granted or denied…regardless of respondent’s appearance or presence in court.” 750 ILCS 60/213(a)
If the respondent in the order of protection case decides to appear for the hearing on the emergency order of protection they may appear. But, the respondent is not required to appear for the hearing on an emergency order of protection to proceed.
“If the respondent appears in court for this hearing for an emergency order, he or she may elect to file a general appearance and testify.” 750 ILCS 60/217(b) (emphasis mine)
With no respondent to tell their side of the story, the court usually steps in to find out if an emergency order of protection is necessary.
“For purposes of issuing an ex parte emergency order of protection, the court…may use the following procedure:
When a verified petition for an emergency order of protection …the court shall examine petitioner on oath or affirmation. An emergency order of protection shall be issued by the court if it appears from the contents of the petition and the examination of petitioner that the averments are sufficient to indicate abuse by respondent and to support the granting of relief under the issuance of the emergency order of protection.” 750 ILCS 60/214(c)(4)
While it may seem weird for a judge to be asking questions instead of just listening and making a ruling, judicial questions are perfectly acceptable.
“A trial judge may question witnesses to elicit truth, clarify ambiguities in the witnesses’ testimony, or shed light on material issues. However, the trial court must not depart from its function as a judge and may not assume the role as an advocate for either party.” In re Tamesha T., 2014 IL App (1st) 132986
What Must Be Proven To Issue An Emergency Order Of Protection In Illinois?
The standard of proof for an emergency order of protection is identical to that required for a plenary (regular) order of protection.
“If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214
“Abuse” is practically anything.
“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)
Harassment is abuse and harassment’s statutory definition for the purposes of getting an order of protection is both broad and specific.
“Harassment” means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:(i) creating a disturbance at petitioner’s place of employment or school;(ii) repeatedly telephoning petitioner’s place of employment, home or residence;(iii) repeatedly following petitioner about in a public place or places;(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner’s windows;(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner’s from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence; or(vi) threatening physical force, confinement or restraint on one or more occasions.” 750 ILCS 60/103(7)
Once abuse and/or harassment have been alleged, a court must issue an order of protection if the court believes the abuse/harassment occurred based on the preponderance of the evidence.
“The standard of proof in such a proceeding is proof by a preponderance of the evidence” 750 ILCS 60/205(a)
Preponderance of the evidence is a low standard. “[P]reponderance of the evidence…[is showing] allegations of abuse are more probably true than not.” In re Arthur H., 819 NE 2d 734 – Ill: Supreme Court 2004
When no one is there to rebut the allegations because the hearing is ex parte, a court is always going to find that there probably was some kind of abuse and/or harassment and, therefore, issue an emergency order of protection.
“If a petitioner shows [they were] abused within the meaning of the Act by a preponderance of the evidence, the trial court shall issue an order of protection.” Stapp v. Jansen, 2013 IL App (4th) 120513
The only limitation on an emergency order of protection’s issuance is whether it really needed to be heard without prior notice. While notice is required in other matters…a court hearing an order of protection can find notice to be an optional prerequisite based on the facts.
“An emergency order of protection shall issue if…There is good cause to grant the remedy, regardless of prior service of process or of notice upon the respondent, because…the harm which that remedy is intended to prevent would be likely to occur if the respondent were given any prior notice, or greater notice than was actually given, of the petitioner’s efforts to obtain judicial relief” 750 ILCS 60/217(a)(3)(i)
“Good cause” to issue an emergency order is, again, a low bar. While the petition for an emergency order of protection allows an affidavit to describe the emergent nature, simply testifying to that the order is needed on an emergency basis is enough.
“Given legislative direction to liberally construe the Act, and the fact that affidavits are not specifically required by the Act, we find that [a] petitioner’s verified petition, sworn testimony and pictures [can be] sufficient proof of exigent circumstances justifying the issuance of the emergency order of protection without prior notice to a respondent….[A p]etitioner’s showing of good cause [if] attested to and verified in [their] petition, [allows] the court [to find] sufficient basis to issue an emergency order of protection.” Whitten v. Whitten, 686 NE 2d 19 – Ill: Appellate Court, 3rd Dist. 1997
What Happens After An Emergency Order Of Protection Is Granted In Illinois?
Once issued, an emergency order of protection is secret. Even the respondent to an emergency order of protection cannot look it up.
“When a petition for an emergency order of protection is granted, the order and file shall not be public and shall only be accessible to the court, the petitioner, law enforcement, a domestic violence advocate or counselor, the counsel of record for either party, and the State’s Attorney for the county until the order is served on the respondent.” 750 ILCS 60/217(a-5)
The petitioner and law enforcement are aware of the emergency order protection so violation of the emergency order of protection is now a crime. The threat of arrest for violating an order of protection is the incentive to the respondent to the respondent to stay away from the petitioner.
“A violation of an order of protection order can incur criminal penalties, including immediate arrest without a warrant” Sanchez v. Torres, 48 NE 3d 271 – Ill: Appellate Court, 1st Dist., 2nd Div. 2016
If the respondent is not yet served with notice of the petition for order of protection, the police cannot yet arrest the respondent because the respondent has not knowingly violated the order of protection.
“The respondent commits the crime of violation of an order of protection pursuant to Section 12-3.4 or 12-30 of the Criminal Code of 1961 or the Criminal Code of 2012, by having knowingly violated: (i) remedies described in paragraphs (1), (2), (3), (14), or (14.5) of subsection (b) of Section 214 of this Act” 750 ILCS 60/223(a)
The police will inform the respondent of the order of protection and tell the respondent that they must stay away from the petitioner.
The respondent will soon be formally aware of the emergency order of protection as the summons for the emergency order of protection still must be served on the respondent.
An emergency order of protection only lasts 21 days.
“Unless re-opened or extended or voided by entry of an order of greater duration:(1) Emergency orders issued under Section 217 shall be effective for not less than 14 nor more than 21 days” 750 ILCS 60/220(a)
Emergency orders of protection can be extended beyond the 21 day period. “Any emergency, interim or plenary order may be extended one or more times, as required….If the motion for extension is uncontested and petitioner seeks no modification of the order, the order may be extended on the basis of petitioner’s motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested extension.” 750 ILCS 60/220(3)
Emergency orders of protection are often extended as the court waits for the respondent to be served so the respondent can properly defend their case. But, an emergency order cannot be extended as an emergency for a period of time greater than 21 days after the original 21 days. This means the petitioner will be going back to court regularly until the court hears the petition for the order of protection on a plenary basis.
A plenary order of protection hearing is the same as an emergency order of protection hearing except the respondent has the opportunity to appear and defend themselves.
“A plenary order of protection shall issue if petitioner has served notice of the hearing for that order on respondent,” 750 ILCS 60/219
Upon issuance of a plenary order of protection, the order will have an expiration date.
“A plenary order of protection entered under this Act shall be valid for a fixed period of time, not to exceed two years” 750 ILCS 60/220(b)
Hopefully, the respondent will have nothing to do with the petitioner after the plenary order expires. If the petitioner believes the plenary order should be extended beyond the expiration date, the petitioner may ask the court for an extension of the plenary order.
“Any…plenary order may be extended one or more times, as required” 750 ILCS 60/220(e)
If you need an emergency order of protection, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
