Orders of protection are for people in fear of another person…whom they were in a relationship with or shared a home with? Confronting someone you are both that close to and in fear of is overwhelming.
Illinois law allows that the first time a victim of abuse is in court, the victim can testify without the alleged abuser there. The victim need not even notify the alleged abuser of their intent to secure an initial, emergency order of protection.
This “petition by surprise” allows the petitioner immediate protection where notice might provide a final opportunity for the respondent to harass or abuse the petitioner before an order of protection is entered.
Presenting anything in court without notice and without the respondent present is referred to as “ex parte.”
What Does Ex Parte Mean?
Ex parte means “Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest” Black’s Law Dictionary (11th ed. 2019)
“One of the most fundamental norms in our judicial system is that courts need to hear from both parties on a legal issue before granting any form of legal relief. Nevertheless, rules of civil procedure permit a vulnerable party to appear in court ex parte (without prior notice to the other party), to obtain a temporary order prohibiting a wrongful action about to be taken that will cause irreparable harm.” Debra Pogrund Stark & Jessica Choplin, Seeing the Wrecking Ball in Motion: Ex Parte Protection Orders and the Realities of Domestic Violence, 2017 U. Ill. L. Rev. ___ (2017)
Parties seeking protection need to know that they can proceed to court without initial confrontation. Respondents to those petitions need to know what rights they have once the ex parte evidence has been offered.
Getting An Ex Parte Hearing On A Petition For Order Of Protection In Illinois
Ex parte hearings are granted in emergency petitions for orders of protection.
“An emergency order of protection shall issue if petitioner satisfies the requirements of this subsection for one or more of the requested remedies. For each remedy requested, the petitioner shall establish that:
(1) The court has jurisdiction under Section 208;
(2) The requirements of Section 214 are satisfied; and
(3) There is good cause to grant the remedy, regardless of prior service of process or of notice upon the respondent.” 750 ILCS 60/217(a)(emphasis mine)
The ex parte hearing, likely, won’t look like much of a hearing at all. The judge will simply read the petition and the accompanied affidavit. The court may ask a few follow up questions but the court does not expect the petitioner to “put on a show”…they’ve been through enough already.
“When a verified petition for an emergency order of protection in accordance with the requirements of Sections 203 and 217 is presented to the court, 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)
In order to preserve the ex parte nature of the hearing, the petition must emphasize the exigent circumstances.
“[T]he petitioner’s burden of showing good cause to justify the issuance of an ex-parte emergency order of protection…[should have an] emphasis on the showing of exigent circumstances, rather than the manner in which good cause was shown.” Whitten v. Whitten, 686 NE 2d 19 – Ill: Appellate Court, 3rd Dist. 1997
Exigent circumstances are “a situation that demands unusual or immediate action and that may allow people to circumvent usual procedures.” Black’s Law Dictionary (11th ed. 2019)
In other words, the court can issue an emergency order without notice if there’s a finding of an immediate risk of harm (note: just the risk of harm, not actual harm).
The respondent will get their day in court, just not on that first day. Emergency orders of protection only last for 14-21 days.
“Emergency orders issued under Section 217 shall be effective for not less than 14 nor more than 21 days” 750 ILCS 60/220
Emergency orders will be extended every 21 days until the order is actually served upon the respondent.
The respondent must be served in order for a plenary order of protection lasting up to two years to be entered.
“A plenary order of protection shall issue if petitioner has served notice of the hearing for that order on respondent, in accordance with Section 211, and satisfies the requirements of this Section for one or more of the requested remedies.” 750 ILCS 60/219
If you’re the petitioner, you can get immediate protection without notifying the abuser. If you’re the respondent, you’ll get your chance to defend yourself within a few weeks.The respondent to an emergency order of protection may currently be in an ongoing divorce action with the petitioner and be represented by counsel. In that more formal legal situation, is a respondent entitled to notice for an emergency petition for an order of protection? No!
Ex Parte Hearings For Emergency Orders Of Protection Are Not A Violation Of Due Process
Even attorneys of record in an underlying action such as divorce are not entitled to notice if the emergency motion’s alleged exigent circumstances are sufficient.
“There is no procedural due process defect in obtaining an emergency order of protection without notice to a respondent, when the petition for the emergency protection order is supported by affidavits that demonstrate exigent circumstances justifying entry of an emergency order without prior notice” Sanders v. Shephard, 541 NE 2d 1150 – Ill: Appellate Court, 1st Dist. 1989
“[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….the Illinois Domestic Violence Act does require prior notice of a hearing with respect to a petition for plenary order of protection” Sanders v. Shephard, 541 NE 2d 1150 – Ill: Appellate Court, 1st Dist. 1989 (Citations Omitted)
Ex parte testimony is powerful but because its effect only lasts 14-21 days, it doesn’t rise to a violation of due process.
Ex Parte Testimony Can Only Be Used At the Ex Parte Hearing For An Order Of Protection In Illinois
In an ex parte hearing, the petitioner can say anything without being contradicted by the respondent. This freedom to testify uninterrupted should not bleed over into a subsequent interim or plenary order of protection hearing.
A “court should have considered only the evidence presented at the later hearing, where both parties were present, before determining whether petitioner met her burden of proving by a preponderance of the evidence that respondent had abused her.” People ex rel. Minteer v. Kozin, 697 NE 2d 891 – Ill: Appellate Court, 1st Dist., 4th Div. 1998
“[E]vidence [presented] during the ex parte hearing should not have been considered to relieve petitioner of her burden of proving by a preponderance of the evidence that respondent had abused her.” People ex rel. Minteer v. Kozin, 697 NE 2d 891 – Ill: Appellate Court, 1st Dist., 4th Div. 1998
Other jurisdictions have memorialized the concept that ex parte testimony can only be used at the ex parte hearing. The Supreme Court of North Carolina held that the findings of fact and other proceedings of a judge who hears an ex parte application for an interlocutory injunction are not proper matters for the consideration of the court in passing on issues determinable at the final hearing. Huskins v. Yancey Hospital, Inc. (1953), 238 N.C. 357, 78 S.E.2d 116,
Furthermore, an attorney representing an petitioner in an ex parte hearing has an additional duty to verify the veracity of their client’s testimony.
“Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.” Ill. R. Prof’l Conduct (2010) R. 3.3, cmt. 14
Finally, ex parte hearings cannot allow for additional relief beyond the prohibition of contact of the respondent (and other possible protected parties) by the petitioner.
“The counseling, payment of support, payment of shelter services, and payment of losses remedies…may be granted only if respondent has been personally served with process, has answered or has made a general appearance.” 750 ILCS 60/210(d)
Ex Parte Hearings In A Criminal Order Of Protection In Illinois
Orders of protection pursued by the state’s attorney that are associated with a domestic violence charge have the same fundamental structure as the civil process I’ve described above. An ex parte hearing in a criminally based petition for order of protection will be allowed if it meets the statutory requirements.
“(a) The petitioner may request expedited consideration of the petition for an ex parte protective order. The court shall consider the request on an expedited basis without requiring the respondent’s presence or requiring notice to the respondent.
(b) Issuance of ex parte protective orders in cases involving domestic violence. An ex parte domestic violence order of protection shall be issued if petitioner satisfies the requirements of this subsection (b) for one or more of the requested remedies. For each remedy requested, petitioner shall establish that:
(1) the court has jurisdiction under Section 112A-9 of this Code;
(2) the requirements of subsection (a) of Section 112A-11.5 of this Code are satisfied; and
(3) there is good cause to grant the remedy, regardless of prior service of process or notice upon the respondent, because:
(A) for the remedy of prohibition of abuse described in paragraph (1) of subsection (b) of Section 112A-14 of this Code; stay away order and additional prohibitions described in paragraph (3) of subsection (b) of Section 112A-14 of this Code; removal or concealment of minor child described in paragraph (8) of subsection (b) of Section 112A-14 of this Code; order to appear described in paragraph (9) of subsection (b) of Section 112A-14 of this Code; physical care and possession of the minor child described in paragraph (5) of subsection (b) of Section 112A-14 of this Code; protection of property described in paragraph (11) of subsection (b) of Section 112A-14 of this Code; prohibition of entry described in paragraph (14) of subsection (b) of Section 112A-14 of this Code; prohibition of firearm possession described in paragraph (14.5) of subsection (b) of Section 112A-14 of this Code; prohibition of access to records described in paragraph (15) of subsection (b) of Section 112A-14 of this Code; injunctive relief described in paragraph (16) of subsection (b) of Section 112A-14 of this Code; and telephone services described in paragraph (18) of subsection (b) of Section 112A-14 of this Code, 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;
(B) for the remedy of grant of exclusive possession of residence described in paragraph (2) of subsection (b) of Section 112A-14 of this Code; the immediate danger of further abuse of the petitioner by the respondent, if the petitioner chooses or had chosen to remain in the residence or household while the respondent was given any prior notice or greater notice than was actually given of the petitioner’s efforts to obtain judicial relief outweighs the hardships to the respondent of an emergency order granting the petitioner exclusive possession of the residence or household; and the remedy shall not be denied because the petitioner has or could obtain temporary shelter elsewhere while prior notice is given to the respondent, unless the hardship to the respondent from exclusion from the home substantially outweigh the hardship to the petitioner; or
(C) for the remedy of possession of personal property described in paragraph (10) of subsection (b) of Section 112A-14 of this Code; improper disposition of the personal property 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 or the petitioner has an immediate and pressing need for the possession of that property.
If you are pursuing a criminally-based order of protection, I would defer to your State’s Attorney.
If you are defending a criminally-based order of protection, I would defer to your criminal defense attorney.
If you’d like to learn more about how civil orders of protection work both within divorce and on their own, contact my Chicago, Illinois family law firm to schedule a consultation with an experienced Illinois order of protection lawyer.
FAQ
How long does an emergency order of protection last in Illinois?
14 to 21 days or by agreement of the parties.
Can you get an order of protection without notifying the other party in Illinois?
Yes. So long as your petition properly establishes the risk of immediate harm. Note: only the risk of harm is necessary to describe not actual harm.
What happens after an ex parte hearing in Illinois?
An order of protection may be issued on an emergency basis but the emergency order of protection will only last until the respondent is served and has the opportunity to participate in a plenary hearing where the previously tendered ex parte evidence will not be considered.
