When people who are married (or just lived together) fight, one party usually moves out of the home they shared. Sometimes a party will move to another county in Illinois.
At this point, there’s a question of where the parties can file a petition for dissolution of marriage or a petition for an order of protection.
Where Do You File A Petition For An Order Of Protection In Illinois?
An order of protection can be filed in any county in Illinois where either party lives or where the incident occurred. So, that is anywhere from one to three possible Illinois counties that an order of protection could be filed.
“A petition for an order of protection may be filed in any county where (i) petitioner resides, (ii) respondent resides, (iii) the alleged abuse occurred or (iv) the petitioner is temporarily located if petitioner left petitioner’s residence to avoid further abuse and could not obtain safe, accessible, and adequate temporary housing in the county of that residence.” 750 ILCS 60/209(a)
If neither party resides in the county where the petition for order of protection was filed, either party can object because going to that county is inconvenient.
“If an order of protection is issued by a court in a county in which neither of the parties resides, the court may balance hardships to the parties and accordingly transfer any proceeding to extend, modify, re-open, vacate or enforce any such order to a county wherein a party resides.” 750 ILCS 60/209(a)
Even in the remote possibility that the order of protection was filed in a Illinois county where neither party lives, the objection to venue is waived if the objection not done timely.
“Objection to venue is waived if not made within such time as respondent’s response is due.” 750 ILCS 60/209(d)
What Happens If There Are Multiple Petitions For Orders Of Protection Pending
A party whose life is turned upside down may end up filing multiple orders of protection in multiple counties either out of confusion or the perception that multiple orders of protection mean they will gain enhanced protection. Multiple petitions for order of protection are not allowed and the subsequent petitions for order of protection should be dismissed.
“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)
“Section 2-619(a)(3) is designed to avoid duplicative litigation and is to be applied to carry out that purpose.” Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447 (Ill. 1986)
The court then gets to decide if the second petition for order of protection should be dismissed.
“When a party brings a motion under section 2–619(a)(3), the trial court has discretion to determine if a dismissal is warranted. A circuit court is not automatically required to dismiss or stay a proceeding under section 2–619(a)(3) even when the “same cause” and “same parties” requirements are met” Murugesh v. Kasilingam, 373 Ill. Dec. 550, 555 (Ill. App. Ct. 2013) (citations omitted)
“The factors that a court should consider in deciding whether a [dismissal] under section 2-619(a)(3) is warranted include: comity; the prevention of multiplicity, vexation, and harassment; the likelihood of obtaining complete relief in the foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum.” Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447-48 (Ill. 1986)
If you really want get a second order of protection dismissed, you can accuse the petitioner of forum shopping.
Forum shopping is “the practice of choosing the most favorable jurisdiction or court in which a claim might be heard.” Black’s Law Dictionary (11th ed. 2019)
“The judiciary has never favored this sort of shopping for a forum. It has sought to protect its own good name as well as to protect defendants …against the practice of seeking out soft spots in the judicial system in which to bring particular kinds of litigation.” Espinosa v. Norfolk & Western Ry. Co., 427 NE 2d 111 – Ill: Supreme Court 1981
Forum shopping is especially frowned upon when two jurisdictions can create two competing orders.
“[A]cceptance of jurisdiction and issuance of orders conflicting with those of [a different] County court was not only clearly erroneous, but that such action can only serve to diminish public respect for the judicial system of this State.” Peo. ex Rel. San. Dist. v. San. Dist, 54 Ill. 2d 442, 445 (Ill. 1973)
“It is entirely clear that the pendency before different judges of separate suits involving identical parties and issues is incompatible with the orderly and efficient administration of justice. It is equally clear that irrespective of the propriety of the [one County’s] order consolidating the proceedings, the refusal of the [latest] County court to abide by that order was improper. One circuit judge may not review or disregard the orders of another circuit judge in the judicial system of this State, and such action can only serve to diminish respect for and public confidence in our judiciary.” People ex Rel. Phillips Petrol. v. Gitchoff, 65 Ill. 2d 249, 257 (Ill. 1976)
Competing Orders Of Protection In Illinois
Usually, couples fighting will not only file multiple petitions for orders of protection but they will file orders of protection against each other.
An Illinois court can only grant one party an order of protection.
“Mutual orders of protection are prohibited.” 750 ILCS 60/215
Illinois courts can consider new petitions for orders of protection between two parties only if they are “correlative”
“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
“Correlative” is not defined by any Illinois statute but a correlative order of protection seems to stem from a separate incident of abuse than the original order of protection.
“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…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
Consolidating An Order Of Protection Into A Divorce In Illinois
People can and will be expected to do almost anything to protect their kids including filing multiple orders of protection. But, if a parent really wants to protect their kids…file a divorce or a parentage action where the children’s best interests can be properly explored and ruled upon.
“Obtaining an order of protection is not the proper procedure for resolving child custody or visitation issues…Those issues should be resolved under the Illinois Marriage and Dissolution of Marriage Act.” Radke v. Radke, 349 Ill.App.3d 264, 269, 812 N.E.2d 9, 13 (2004)
Filing a divorce in Illinois is governed by a divorce’s own venue rules.
“Venue. [Divorce] proceedings shall be had in the county where the plaintiff or defendant resides” 750 ILCS 5/104(a)
When there are two competing Illinois counties to conduct divorce or parentage proceedings within, courts pick the most “convenient” county.
Illinois divorce and parentage courts can decide venue based on “the convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive.” Kuhn v. Nicol, 2020 IL App (5th) 190225 – Ill: Appellate Court, 5th Dist. 2020
The order of protection is then, typically, consolidated into the divorce or parentage action under the local rule of the county deemed to be the appropriate venue. For example, Cook County’s order of protection consolidation rule is as follows:
“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)
Every Illinois county has a different rule for how to consolidate an order of protection into a divorce action. Some counties’ processes are so byzantine that they can effectively freeze or dismiss an order of protection if not consolidated properly.
If you are struggling with a petition for an order or protection in Illinois, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
