When an ex-spouse is intent on harassing you…they usually find willing helpers in their current spouse or love interest and their various family members. Nothing is worse than a gang of malingerers plotting to make you miserable while you’re going through or have gone through a divorce.
How do you get your ex’s new wife/husband/girlfriend/boyfriend, their family, their friends to leave you alone?
Protecting yourself from an ex’s friends and family is completely different from protecting yourself from your ex.
You can get an order of protection relatively easily against your ex whereas you must get a stalking no contact order against your ex’s friends and family.
The distinction between an order of protection versus a stalking no contact order in Illinois is whether the parties did or did not have a “intimate relationship protected by the [Illinois Domestic Violence] Act.” ALISON C. v. Westcott, 798 NE 2d 813 – Ill: Appellate Court, 2nd Dist. 2003
The difference between the two protections can be both profound and trivial.
Who Can Be Protected From By An Order Of Protection In Illinois?
An order of protection is a tool to protect people from abusive family members and people they live with, and/or had a dating relationship with. The perpetrators of the harassment is what distinguishes “domestic violence” from assault, battery, harassment and/or stalking.
The Illinois Domestic Violence Act is for “any person abused by a family or household member” 750 ILCS 60/201(a)(i)
“”Family or household members” include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers” 750 ILCS 60/103(6)
You can get an order of protection against your ex but it is unlikely that your ex’s family and friends would qualify if they never lived with you or dated you.
Harassment from a non-family member, non-romantic friend or someone you never lived with is not domestic violence and is, therefore, not covered by the Illinois Domestic Violence Axt.
Domestic violence is taken very seriously in Illinois.
“[D]omestic violence [is] a serious crime against the individual and society which produces family disharmony in thousands of Illinois families, promotes a pattern of escalating violence which frequently culminates in intra-family homicide, and creates an emotional atmosphere that is not conducive to healthy childhood development.” 750 ILCS 60/102(1)
“Domestic violence” is taken so seriously that almost anything is considered domestic violence and, thus, worthy of an order of protection.
Domestic violence under the Illinois Domestic Violence Act is merely “abuse” 750 ILCS 60/201(a)(i)
“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.” 750 ILCS 60/103(1)
Almost anything qualifies as harassment which would, subsequently, qualify as “abuse”…which would then merit an order of protection.
“’Harassment’ means knowing conduct which is not necessary to accomplish a purpose which 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 from an incident or pattern of domestic violence; or
(vi) threatening physical force, confinement or restraint on one or more occasions.” 725 ILCS 5/112A-3(b)(4)
If actual harassment does not happen, the threat of harassment can still qualify as abuse because most threats are an “interference with personal liberty.”
“Interference with personal liberty” means committing or threatening physical abuse, harassment, intimidation or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.” 750 ILCS 60/103(9)
Under the Illinois Domestic Violence Act, a mere “proof by a preponderance of the evidence [will suffice to establish a finding of abuse]” 750 ILCS 60/205(a)
The rules of evidence must be used to meet that standard of proof. “Any proceeding to obtain, modify, reopen or appeal an order of protection, whether commenced alone or in conjunction with a civil or criminal proceeding, shall be governed by the rules of civil procedure of this State.” 750 ILCS 60/205(a)
Proving abuse is easy. The victim can just testify to what happened to them. Little to no corroborative evidence is needed, especially under a preponderance standard.
Once an order of protection is issued…no more of the (very loosely termed) abuse is allowed.
“The remedies to be included in an order of protection shall be determined…as appropriate
Prohibition of abuse, neglect, or exploitation. Prohibit respondent’s harassment, interference with personal liberty, intimidation of a dependent, physical abuse, or willful deprivation, neglect or exploitation, as defined in this Act, or stalking of the petitioner, as defined in Section 12-7.3 of the Criminal Code of 2012, if such abuse, neglect, exploitation, or stalking has occurred or otherwise appears likely to occur if not prohibited.” 750 ILCS 60/214(b)(1)
If abuse from the relative/household member still happens, the abuse is now a crime.
“Violation of an order of protection is a Class 4 felony if the defendant has any prior conviction under this Code for domestic battery (Section 12-3.2) or violation of an order of protection (Section 12-3.4 or 12-30) or any prior conviction under the law of another jurisdiction for an offense that could be charged in this State as a domestic battery or violation of an order of protection.” 720 ILCS 5/12-3.4(d)
“For a Class 4 felony:…The sentence of imprisonment shall be a determinate sentence of not less than one year and not more than 3 years.” 730 § 5/5-4.5-45 5/5-4.5-45
Getting Protection From An Ex’s Friends And Family In Illinois
The above protections offered by the Illinois Domestic Violence are not available if you are being subject to harassment from people who you are not related to, do not live with or did not have a romantic relationship with. Instead, protection from an ex’s friends and family are available via the Illinois Stalking No Contact Act.
“Under the Stalking No Contact Order Act…, a victim of stalking may seek a civil remedy requiring the stalker to stay away from him or her.” Piester v. Escobar, 36 NE 3d 344 – Ill: Appellate Court, 3rd Dist. 2015
“A petition for a stalking no contact order may be filed when relief is not available to the petitioner under the Illinois Domestic Violence Act.” 740 ILCS 21/15
Your ex’s friends, family and new love interest are not related to you, do not live with you and have not dated you (let’s hope not at least). So, you cannot get an order of protection under the Illinois Domestic Violence Act. Instead, you are left with the Illinois Stalking No Contact Act.
“A petition for a stalking no contact order may be filed…(1) by any person who is a victim of stalking” 740 ILCS 21/15
“Stalking” under the Illinois Stalking No Contact Act does NOT mean the same thing as stalking as we normally refer to it (following someone around). “Stalking” under the Illinois Stalking No Contact Act could mean any kind of behavior so long as the behavior is repeated and reasonably causes emotional distress.
“’Stalking’ means engaging in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety, the safety of a workplace, school, or place of worship, or the safety of a third person or suffer emotional distress.” 740 ILCS 21/10
This is a much higher standard than what an order of protection requires.
First, a one-time incident never qualifies as stalking. The behavior has to happen a few times to satisfy the requirement that the behavior be a “course of conduct.”
“’Course of conduct’ means 2 or more acts, including but not limited to acts in which a respondent directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, or threatens a person, workplace, school, or place of worship, engages in other contact, or interferes with or damages a person’s property or pet. A course of conduct may include contact via electronic communications.” 740 ILCS 21/10
Furthermore, you are going to have to prove emotional distress.
“’Emotional distress’ means significant mental suffering, anxiety or alarm.” 740 ILCS 21/10
That emotional distress cannot just be testimony that you suffered. The suffering has to be emotional distress that a reasonable person could and would suffer under the same circumstances.
‘”Reasonable person’ means a person in the petitioner’s circumstances with the petitioner’s knowledge of the respondent and the respondent’s prior acts.” 740 ILCS 21/10
Multiple instances of bad behavior that would provoke “significant mental suffering, anxiety or alarm” that another ‘normal’ person would also experience….that’s a lot to prove! And it all must be proven using the rules of evidence.
“Any proceeding to obtain, modify, reopen or appeal a stalking no contact order shall be governed by the rules of civil procedure of this State. The standard of proof in such a proceeding is proof by a preponderance of the evidence.” 740 ILCS 21/30
It’s not so difficult, though. “A victim does not need to contact her stalker to inform him or her that the contact is unwanted. Stalker’s contact must be nonconsensual. The focus is on whether the stalker’s behavior would cause a reasonable person to be fearful for her safety or to suffer emotional distress.” Piester v. Escobar, 36 NE 3d 344 – Ill: Appellate Court, 3rd Dist. 2015 (citations omitted)
Most “stalking” as applied by the Illinois Stalking No Contact Act involves communication: threats, social media posts, phone calls, etc.
This is still America, where you are allowed to say whatever you want.
“Stalking does not include an exercise of the right to free speech or assembly that is otherwise lawful” 740 ILCS 21/10
Harassing words are not covered by the first amendment right to freedom of speech, however.
“Words concerning surveilling, interfering, or harassing a person are not entitled to protection as free speech.” Piester v. Escobar, 36 NE 3d 344 – Ill: Appellate Court, 3rd Dist. 2015
If the court deems that it is more likely than not that the behavior happened and qualifies as stalking then a stocking no contact order shall issue.
“If the court finds that the petitioner has been a victim of stalking, a stalking no contact order shall issue” 740 ILCS 21/80
The language in the final no stalking order can be as narrow or as broad as the court deems appropriate.
“Any stalking no contact order shall describe each remedy granted by the court, in reasonable detail and not by reference to any other document, so that the respondent may clearly understand what he or she must do or refrain from doing.” 740 ILCS 21/110
If the person does the behavior which is forbidden by the stalking no contact order, they are guilty of a misdemeanor.
“An initial knowing violation of a stalking no contact order is a Class A misdemeanor.” 740 ILCS 21/125
If the “stalker” keeps violating the stalking no contact order, they are guilty of a felony.
“A second or subsequent knowing violation is a Class 4 felony.” 740 ILCS 21/125
If you have an ex who is harassing you, that’s bad. If you have your ex’s friends and family harassing you, that’s terrible. Contact my Chicago family law firm to speak to an experienced Illinois divorce attorney.