Petitions For Orders of Protection in Illinois are all the same. They are all on the same state-wide Petition For Order Of Protection form which has multiple lines stating on line 7
“An Order of Protection is needed because Respondent did these things: Date: Time: What happened:”
The instructions for this line say “In 7, start with what happened most recently. Enter the date and time and describe what happened. Be as specific about dates and times as you can. You can include any past abuse and any criminal convictions that resulted. If you don’t remember exact dates of things that happened long ago, just enter the month and year.”
Something bad must have happened recently for the petitioner to be asking for an order of protection now. What do all these prior instances of the respondent’s bad behavior have to do with this current incident.
The respondent will surely argue that these prior instances are irrelevant at best and prejudicial at worst.
Too bad, Respondent. The prior bad acts must be considered by an Illinois divorce or domestic violence court.
“[E]vidence of abuse is relevant to the determination of whether abuse occurred, whether it occurred 40 years ago or 5 years ago.” Richardson v. Booker, 2022 IL App (1st) 211055
“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
Once abuse is found, “the court shall make its findings in an official record or in writing, and shall at a minimum set forth the following:
That the court has considered the applicable relevant factors described in paragraphs (1) and (2) of this subsection.” 750 ILCS 60/214(c)(3)
Paragraph 1 of the subsection is as follows:
“[T]he nature, frequency, severity, pattern and consequences of the respondent’s past abuse, neglect or exploitation of the petitioner or any family or household member, including the concealment of his or her location in order to evade service of process or notice, and the likelihood of danger of future abuse, neglect, or exploitation to petitioner or any member of petitioner’s or respondent’s family or household.” 750 ILCS 60/214(c)(1)(i)(emphasis mine)
This consideration of past instances of abuse is mandatory!
“[T]he statute’s requirement [are] that the court set forth, in granting a specific remedy, that the court had considered the nature, frequency, severity, pattern, and consequences of the respondent’s past abuse.” Landmann v. Landmann, 133 NE 3d 117 – Ill: Appellate Court, 5th Dist. 2019
Without these findings regarding the prior bad acts, an appellate court will “reverse the entry of the order of protection on the basis that the trial court failed to meet its statutory obligation to make specific findings prior to entering an order of protection under the Act.” People ex rel. Minteer v. Kozin, 697 NE 2d 891 – Ill: Appellate Court, 1st Dist., 4th Div. 1998
The past instances of abuse are no less important than the most current instance of abuse even if the past instance of abuse had its own petition for an order of protection.
“The [Illinois Domestic Violence] Act does not provide that the court should assign less weight to instances of past abuse if the petitioner has already sought a remedy for that past abuse.” Richardson v. Booker, 2022 IL App (1st) 211055
It also does not matter if there has been a lull in alleged abuse.
“[T]here is no requirement that an order of protection should issue only if the respondent’s past abuse is ‘persistent.’” Richardson v. Booker, 2022 IL App (1st) 211055
Is There A Statute Of Limitations For Instances Of Abuse Considered In Illinois Orders Of Protection?
How far back can the court look at past instances of abuse?
“The [Illinois Domestic Violence] Act contains no statute of limitations for a petition for an order of protection.” A.A. v. Nita A., 2023 IL App (1st) 230011
However, the Illinois Domestic Violence act does provide that “[a]ny 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]ll civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” 735 ILCS 5/13-205
Based on this, five years may be the furthest back a court can look at an instance of abuse. But that is probably based on the most recent instance of abuse which still requires that the court make the same findings as discussed above regarding “the nature, frequency, severity, pattern and consequences of the respondent’s past abuse.” 750 ILCS 60/214(c)(1)(i)
Evidence of past abuse is coming in during a hearing on a Petition For An Order Of Protection. The best a respondent can do is keep past abuse evidence out using the Rules of Evidence and asking the court to consider any admitted evidence of past alleged abuses with speculation or less weight due to the allegations age. After all, 750 ILCS 60/214(c)(1)(i) requires the court to consider the “likelihood of danger of future abuse” and a months to years old allegation does not mean future abuse is likely.
Good luck with those counter-arguments and evidentiary objections. An Illinois divorce or domestic violence court only needs to find that one instance of abuse was more likely to have happened than not to have happened.
“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. The standard of proof in such a proceeding is proof by a preponderance of the evidence, whether the proceeding is heard in criminal or civil court.” (Emphasis added.) 750 ILCS 60/205(a)
For a Petitioner in a Petition For An Order of Protection to prove their case by a preponderance of the evidence a “petitioner’s abuse allegation [must be found] more likely true than not” Best v. Best, 860 NE 2d 240 – Ill: Supreme Court 2006
In the movie Friday, Smokey laments that his friend, Craig, has reminded Smokey of Smokey’s past misdeeds by saying, “Why you keep bringing up old [stuff]?!” In a Petition For An Order of Protection, the answer is “because I can.”