Order of protection proofs

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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What Do I Need To Prove To Get An Order Of Protection In Illinois?

Order of protection proofs

Illinois courts are happy to grant orders of protection. Orders of protection prevent possible tragedies with little harm to the parties who are under the order of protection. Still, the courts must review sufficient evidence in order to issue an order of protection.

“Although the Illinois Domestic Violence Act of 1986 is to be construed liberally to protect victims of domestic violence, help them avoid further abuse, and to expand the remedies for victims of domestic violence including, when necessary, physical separation of the parties there must be some evidence in the record to support the relief requested.” In re Marriage of Healy, 635 NE 2d 666 – Ill: Appellate Court, 1st Dist., 2nd Div. 1994 (citations and quotations omitted)(emphasis mine)

What must be proven in order for an Illinois court to grant 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

There needs to be a finding that the petitioner was “abused by a family or household member” for an order of protection to issue.

Abuse has 4 different possible forms in an Illinois Petition For Order Of Protection.

“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)

Harassment, intimidation, interference with personal liberty, each have their own definition.

“Harassment” means knowing conduct which is not necessary to accomplish a purpose that 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 an incident or pattern of domestic violence; or(vi) threatening physical force, confinement or restraint on one or more occasions.” 750 ILCS 60/103(7)

These are pretty specific instances described as harassment. Any testimony to an incidence such as these will be sufficient evidence for a finding of “harassment” thereby allowing the court to issue an order of protection.

After testimony to one of these specific incidents of harassment is taken, the Respondent must rebut the testimony by a preponderance of the evidence.

“’Intimidation of a dependent’ means subjecting a person who is dependent because of age, health or disability to participation in or the witnessing of: physical force against another or physical confinement or restraint of another which constitutes physical abuse as defined in this Act, regardless of whether the abused person is a family or household member.” 750 ILCS 60/103(10)

If a young, old, disabled or sick household member sees violence committed on anyone, that is “intimidation of a dependent” and sufficient evidence to warrant the issuance of an order of protection.

“’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 103(9)

A finding of “Interference with personal liberty” requires that the respondent did something that made the petitioner do something they wouldn’t have done or refrain from doing something they would have done. Virtually any threat would satisfy a finding of interference with personal liberty.

“’Willful deprivation’ means willfully denying a person who because of age, health or disability requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device, or other physical assistance, and thereby exposing that person to the risk of physical, mental or emotional harm, except with regard to medical care or treatment when the dependent person has expressed an intent to forgo such medical care or treatment.”750 ILCS 60/103(15)

Willful deprivation is denying food, shelter or medicine. Emptying a refrigerator, hiding medicine or locking someone out of the house would result in a finding of willful deprivation.

What Is The Standard Of Proof In A Hearing For An Emergency Petition For Order Of Protection?

Almost all Petitions For Order Of Protection start as an Emergency Petition For Order Of Protection. After all, the petitioner needs protection now…not on the court’s next available date for presentment of motions (usually a month away)

“An emergency order of protection shall issue if petitioner satisfies the requirements of this subsection for one or more of the requested remedies. For each remedy requested, petitioner shall establish that:…The requirements of Section 214 are satisfied; and…There is good cause to grant the remedy, regardless of prior service of process or of notice upon the respondent” 750 ILCS 60/217

The court then reviews the petition and asks the petitioner some questions without the respondent present…and usually grants the emergency order of protection.

“When a verified petition for an emergency order of protection in accordance with the requirements of Sections 203 and 217 is presented to the court, the court shall examine petitioner on oath or affirmation. An emergency order of protection shall be issued by the court if it appears from the contents of the petition and the examination of petitioner that the averments are sufficient to indicate abuse by respondent and to support the granting of relief under the issuance of the emergency order of protection.” 750 ILCS 60/214(c)(4)

“The standard of proof in such a proceeding is proof by a preponderance of the evidence” 750 ILCS 60/205(a)

When the “standard of proof is only a preponderance of the evidence, [a Petitioner] must prove that it is more probably true than not true that [Respondent] was guilty of such acts of [abuse].” In re Marriage of Gordon, 599 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 1992

When only the accuser is testifying how could it NOT be more likely than not that the “averments” (fancy word for accusation) are true?

The court must then issue written findings to make the order of protection viable.

“The trial court should abide by its statutory obligation to make specific findings prior to entering an order of protection under the Act.” In re Marriage of Henry, 696 NE 2d 1181 – Ill: Appellate Court, 2nd Dist. 1998

This easy victory only lasts for so long. “Emergency orders issued under Section 217 shall be effective for not less than 14 nor more than 21 days” 750 ILCS 60/220(a)(1)

In reality, emergency orders of protection get extended every 21 days until the Respondent is ready to defend themselves in a full hearing for plenary order of protection.

What Is The Standard Of Proof In A Hearing For A Plenary Petition For Order Of Protection?

“A plenary order of protection shall issue if petitioner has served notice of the hearing for that order on respondent, in accordance with Section 211, and satisfies the requirements of this Section for one or more of the requested remedies. For each remedy requested, petitioner must establish that:the court has jurisdiction under Section 208;(2) the requirements of Section 214 are satisfied;(3) a general appearance was made or filed by or for respondent or process was served on respondent in the manner required by Section 210; and(4) respondent has answered or is in default.” 750 ILCS 60/219

At the plenary hearing, the court is not allowed to consider what was said in the emergency ex parte hearing.

It is “improper for the trial court to consider the evidence heard at the ex parte hearing” People ex rel. Minteer v. Kozin, 697 NE 2d 891 – Ill: Appellate Court, 1st Dist., 4th Div. 1998

Full testimony from both parties with evidentiary objections from both parties will now properly allow the court to weigh the “preponderance of the evidence” which is the proper standard of proof.

The key to having the preponderance of the evidence sufficient to grant or deny an order of protection lies on credibility of the witnesses which can be buttressed by corroborating evidence.

Corroborating evidence is the variable that wins and loses hearings on Petitions For Orders Of Protection.

 To corroborate is “to add weight or credibility to a thing by additional and confirming facts or evidence.”  Black’s Law Dictionary (10th ed. 2014).

“What facts or evidence will serve as confirming or corroborative facts will necessarily vary depending on the facts to be corroborated.” In re Custody of Brunken, 487 NE 2d 397 – Ill: Appellate Court, 5th Dist. 1985

If the testimony is that the Respondent made harassing calls corroborate that testimony with a telephone call log.

If the testimony is that the Respondent hit the Petitioner, corroborate that testimony with a photo of a bruise.

If the testimony is that the Petitioner started the harassment, corroborate that with texts and other written communication.

Preponderance of evidence determines the issuance of an order of protection. Preponderance is “the quality or fact of being greater in number, quantity, or importance.” The Oxford English Dictionary (2022)

Corroboration increases the quality, number, quantity and importance of your evidence.

Should the petitioner be successful at the plenary hearing “[a] plenary order of protection entered under this Act shall be valid for a fixed period of time, not to exceed two years.” 750 ILCS 60/220(b)(.05)

Additional Proofs Needed For Additional Relief After An Order Of Protection Is Issued In Illinois

Every Order Of Protection provides relief that shall “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” 750 ILCS 60/214(b)(1)

Other relief may be requested that require additional findings.

In order to“[p]rohibit a respondent against whom an order of protection was issued from possessing any firearms during the duration of the order if the order” requires “a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.” 750 ILCS 60/214(b)(14.5)

Any other specific relief requires findings that “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)

Finally, the court must make findings that the specific relief ordered is not an undue hardship to the Respondent relative to the benefit accrued by the Petitioner.

“[T]he court’s findings shall so indicate and shall include a finding as to whether granting the remedy will result in hardship to respondent that would substantially outweigh the hardship to petitioner from denial of the remedy. The findings shall be an official record or in writing.” 750 ILCS 60/214(d)

All of this proof has to be brought forward to the court via the rules of evidence: foundation, authentication, testimony of personal knowledge, out-of-court statements that qualify under an exception to hearsay.

Even something as simple as “preponderance of evidence” wherein a decision is made based on whether the facts are more true than not has a multitude of layers and considerations. If you would like to speak with someone who understands and can effectively communicate the layers of Illinois divorce and family law, contact my Chicago, Illinois family law firm to schedule a free consultation.