Defending against an Order of Protection In Illinois is not easy. Illinois law makes Orders of Protection relatively simple to secure. An Illinois court need only find that abuse occurred to issue an order of protection.
“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 (emphasis mine)
The legal standard for determining whether abuse occurred is “the preponderance of the evidence” whether it was more than 50% likely that the abuse occurred.
“The standard of proof in such a proceeding is proof by a preponderance of the evidence” 750 ILCS 60/205(a)
“[T]he preponderance of evidence, otherwise referred to as the ‘more probably true than not true’ standard.” Holton v. Memorial Hosp., 679 NE 2d 1202 – Ill: Supreme Court 1997
Any instance of abuse that is more likely to have occurred than not will result in an order of protection being issued in an Illinois court.
The respondent in an Petition for Order of Protection will, of course, tell their own version of events but the respondent will also do their best to keep the petitioner’s proposed evidence out of court. After all, if there’s no evidence, there can be no preponderance of evidence.
The Petition for Order of Protection is a clunky, one-size-fits-all form.
The form is mostly checklists. This is hardly the best way to describe a, presumably, horrifying incident of abuse. Specifically, Page 4, Paragraph G gives the Petitioner exactly 6 lines to describe an incident of abuse with a maximum of 4 instances (unless you want to attach your own additional description).
The respondent to a Petition for Order of Protection may cleverly use the form’s limitations as a denial of due process (but it shouldn’t work, as I’ll show later).
No one shall be “deprived of life, liberty, or property, without due process of law” U.S. Const. amend. V, § 1, cl. 1
“The essence of procedural due process is meaningful notice and a meaningful opportunity to be heard” Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 799 (Ill. App. Ct. 2002)
How could those 4 sets of 6 lines on the form be “meaningful notice” or the full allegations of a Petition for an Order of Protection.
A respondent will be quick to object to any testimony that describes anything not written 4 sets of 6 lines. “Objection, your honor, testimony exceeds the four corners of the petition.”
This objection carries very little weight in the context of an Illinois Petition for Order of Protection. The written Petition for Order of Protection need only “reasonably inform” the Respondent.
“No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” 735 ILCS 5/2-612(b)
“The Code of Civil Procedure specifically recognizes that no complaint is bad in substance which reasonably informs the defendant of the nature of the claim that he or she is called upon to meet.” Chandler v. Illinois Cent. R. Co., 798 NE 2d 724 – Ill: Supreme Court 2003
Furthermore, an Illinois court is required to investigate beyond the written allegations per the Illinois Domestic Violence Act.
“(c) Relevant factors; findings.
(1) In determining whether to grant a specific remedy, other than payment of support, the court shall consider relevant factors, including but not limited to the following:
(i) the 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; and
(ii) the danger that any minor child will be abused or neglected or improperly relocated from the jurisdiction, improperly concealed within the State or improperly separated from the child’s primary caretaker.” 750 ILCS 60/214(c)(1)(i), (ii) (emphasis mine)
“[S]ection 214 of the Act specifically provides that, in determining whether to grant an order of protection, the trial court shall consider the nature, frequency, severity, pattern, and consequences of the respondent’s past abuse of the petitioner or any family or household member as well as the danger that any minor child will be abused or neglected. Therefore, the trial court was not only allowed to consider the evidence [not explicitly described in the Petition for Order of Protection] it was required to do so. For these reasons, we find that the trial court did not err in allowing [Petitioner] to testify about allegations that were not contained in her petition for an emergency order of protection.” Sandberg v. Brian B., 109 NE 3d 794 – Ill: Appellate Court, 2nd Dist. 2018
There will always be additional valid questions beyond the scope of the Petition for Order of Protection’s 4 lines or the attached affidavit
“We also reject respondent’s claim that the judge’s questioning was inappropriate because it sought information outside the four corners of petitioner’s affidavit, which was attached to her petition. As set forth above, this line of questioning was meant to clarify the events that unfolded during the parties’ relationship, including before and after it ended, and was relevant to adjudicating whether petitioner made a sufficient showing of abuse under the Act.” Carrillo v. Teran, 2022 IL App (1st) 210962 – Ill: Appellate Court, 1st Dist. 2022
Instead of relying on evidentiary concepts to defend against a Petition for Order of Protection, a Respondent to a Petition for Order of Protection should focus on their credibility and the Petitioner’s credibility. Tell your version of the events. Cross-examine the Petitioner to point out the flaws in their story. Under the preponderance of the evidence standard, there can only be one version of the events which are “more likely than not.”
An equally successful strategy is to point out to the judge that based on the conflicting testimony, both parties’ version of the events are not “more likely than not.” In the passion of the moment and the emotional reflection on that moment, credible details are lost forever. The legal result of this uncertainty is still the denial of the Petition For Order of Protection under the “preponderance of the evidence” standard.
A smart lawyer should defend a Petition for Order of Protection without being too smart. Tell your client’s story better than the Petitioner told their story. Sometimes, it is just that simple.
If you would like to speak with an experienced Illinois Order of Protection lawyer, contact my Chicago, Illinois family law office to schedule a free consultation.
