Petitions for orders of protection can be heard with only one person’s testimony. Furthermore, the standard of proof to grant an order of protection can be absurdly low, as only “abuse” in almost any form, can be established by one person’s biased description.
When an order of protection is granted by an Illinois court, one party to an intimate relationship (often a marriage) is left out of the house and may even be barred from seeing their own children. At this moment, all may seem lost. The order of protection is entered, the judge’s mind is made up and the Respondent has been labelled an “abuser.”
While there may be little to no chance of undoing an order of protection in its entirety, an order of protection can always be modified in order to allow a party back into their house, to see their children or even vacate the order of protection.
“A court’s authority to dissolve or modify a previously entered injunctive order exists in a dissolution proceeding just as in other civil proceedings.” In re Marriage of Fischer, 228 Ill.App.3d 482, 488, 170 Ill. Dec. 168, 592 N.E.2d 604, 608 (1992)
Modifying an order of protection in Illinois usually depends on what kind of order of protection is currently in place.
“[T]he Domestic Violence Act…provides for the entry of (1) an emergency order of protection (2) a 30-day interim order of protection; and (3) a plenary order of protection” In re Marriage of Gordon, 599 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 1992
Modifying An Emergency Or Interim Order Of Protection In Illinois
Emergency and interim orders of protection are, by their nature, temporary until a full and final hearing can determine if a long-term, plenary, order of protection should issue. Because of this, it is almost as easy to petition to modify an emergency or interim order of protection as it is to issue an emergency or interim order of protection.
“Upon 2 days’ notice to petitioner, in accordance with Section 211 of this Act, or such shorter notice as the court may prescribe, a respondent subject to an emergency or interim order of protection issued under this Act may appear and petition the court to re-hear the original or amended petition. Any petition to re-hear shall be verified and shall allege the following:(1) that respondent did not receive prior notice of the initial hearing in which the emergency, interim, or plenary order was entered under Sections 211 and 217; and(2) that respondent had a meritorious defense to the order or any of its remedies or that the order or any of its remedies was not authorized by this Act.” 750 ILCS 60/224(d)
The modification of an emergency or interim order of protection is mandatory but ONLY if the respondent did not have notice. Because of the huge advantage of getting a order of protection after an ex parte hearing with no counter-testimony, most emergency orders of protection and their subsequent interim orders of protection purposely did NOT comply with the notice requirements.
“[N]otice of hearings on petitions or motions shall be served in accordance with Supreme Court Rules 11 and 12” 750 ILCS 60/211
“Unless otherwise specified by rule or order of court, Ddocuments shall be served electronically.(1) Electronic service may be made… to the e-mail address(es) identified by the party’s appearance in the matter.” Ill. Sup. Ct. R. 11(b)
Petitions for emergency orders of protection are often the first filings between two parties. Therefore, the respondent does not have an appearance on file with a corresponding email where they can accept service.
“If a self-represented party does not have an e-mail address [on file]…service of documents may be made by one of the following alternative methods:…Delivering the document to the…party personally” Ill. Sup. Ct. R. 11(c)
The second requirement “that respondent had a meritorious defense to the order” is dependent on the facts. If the respondent did not abuse the other party or had a reason for doing so like self-defense, that must be proven at the subsequent hearing for modification of the order of protection.
These motions to modify an emergency or interim order of protection must be heard almost immediately if they involve access to a home. After all, most orders of protection leave the respondent homeless.
“In the event that the emergency or interim order granted petitioner exclusive possession and the petition of respondent seeks to re-open or vacate that grant, the court shall set a date for hearing within 14 days on all issues relating to exclusive possession. Under no circumstances shall a court continue a hearing concerning exclusive possession beyond the 14th day, except by agreement of the parties. Other issues raised by the pleadings may be consolidated for the hearing if neither party nor the court objects.” 750 ILCS 60/224(d)
“Any unnecessary delay—for a home study or for some other reason—thwarts the purpose of section 224(d) and may result in a denial of due process.” Wilson v. Jackson, 728 NE 2d 832 – Ill: Appellate Court, 3rd Dist. 2000
These time frames regarding hearings on motions to modify orders of protection must be followed.
“[I]in the case of this type of emergency order of protection issued under the Domestic Violence Act, the legislature has expressly set forth the timeline for scheduling a hearing on a motion for rehearing.” IN RE MARRIAGE OF PADILLA AND KOWALSKI, 124 NE 3d 969 – Ill: Appellate Court, 1st Dist., 5th Div. 2017
Modifying A Plenary Order Of Protection In Illinois
A plenary order of protection happens after a full hearing or agreement of the parties. The basis for modifying a plenary order of protection is severely limited by only new law or new facts.
“After 30 days following entry of a plenary order of protection, a court may modify that order only when changes in the applicable law or facts since that plenary order was entered warrant a modification of its terms.” 750 ILCS 60/224(c)
“Upon motion by petitioner or respondent, the court may modify any prior order of protection’s remedy for custody, visitation or payment of support in accordance with the relevant provisions of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 60/224(b)
“[W]e find the power to make such a change in the previously ordered visitation inherent in the trial court’s authority.” In re Marriage of Munger, 791 NE 2d 573 – Ill: Appellate Court, 4th Dist. 2003
Finally, if anyone can think of any other reasons to modify an Illinois order of protection the statute will not limit their creativity.
“This Section does not limit the means, otherwise available by law, for vacating or modifying orders of protection.” 750 ILCS 60/224
What If The Original Order Of Protection Did Not Go Far Enough?
Modifications of orders of protection are not just for the Respondent. The Petitioner can also ask that the order of protection be modified to include new remedies…usually because the Respondent is still abusing the Petitioner.
“[U]pon motion by petitioner, the court may modify an emergency, interim, or plenary order of protection:
(1) If respondent has abused petitioner since the hearing for that order, by adding or altering one or more remedies, as authorized by Section 214” 750 ILCS 60/224(a)
A Petitioner can also modify an order of protection if some kind of remedy was left out that should have been included.
“[The court can modify an order of protection]…by adding any remedy authorized by Section 214 which was:
(i) reserved in that order of protection;
(ii) not requested for inclusion in that order of protection; or
(iii) denied on procedural grounds, but not on the merits.” 750 ILCS 60/224(a)(2)
How Orders Of Protection Really Get Modified In An Illinois Divorce?
If an order of protection is issued to a person who is married to or has children with the petitioner, the order of protection case will be consolidated into the divorce or parentage case by local rule.
“When a petition for an order of protection is filed…there is a domestic relations matter pending….the order of protection shall be consolidated with the pending domestic relations matter after the hearing on an emergency order of protection.” Cook County Court Rules 13.3(i), (ii)
The divorce or parentage court judge has a lot more to deal with than just an order of protection. A divorce or parentage court judge has to make arrangements for maintenance, child support, division of assets and parenting time. Virtually all of which require some level of cooperation between the parties.
An Illinois divorce or parentage has complete power to offer the same remedies under the Illinois Marriage and Dissolution of Marriage via the court’s jurisdiction over the parties. So, an Illinois divorce or parentage court will not want an order of protection restraining that court as the court tries to come up with viable solutions for this now-broken family.
A divorce or parentage court’s subsequent orders (there will be lots of subsequent orders in a divorce case so contested that it began with an order of protection) will be the enforceable order and will thereby modify any prior order of protection.
“Where a domestic relations order has been entered, the trial court retains jurisdiction to enforce its order. ” Smithberg v. the Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 297-98 (Ill. 2000)(Citations Omitted)