Since 1981, the law firm of Schiller DuCanto & Fleck has been a leading family law firm in the state of Illinois. The Land of Lincoln, of course, is the home of Chicago, the third-largest city and third-largest metropolitan area in America, and with nearly 13 million people making their home in the state, the distinct laws of the state are often notable. One such instance is a clarification on a well-known legal feature: the restraining order, which is a concept writers have used and abused in works of fiction to such an extent that most laypeople greatly misunderstand it. In addition to restraining orders, Illinois law also contains a provision called an order of protection, a similar but not identical mechanism. Its name may not conjure up the same visions of 100-foot radii as its more famous counterpart, but it can still be an effective means of protecting vulnerable people. In today’s post, we’ll explain the difference between the restraining order and the order of protection in Illinois law.
All fifty states plus the District of Columbia have some form of law we can broadly call a restraining order. The names vary from state to state. In Mississippi, for instance, the order is called a “peace bond,” while in California, home of Hollywood, the term “restraining order” spreads beyond California law through forms of entertainment. A restraining order, simply put, is an order from a civil court that requires the subject to cease contact with the person who filed the order and maintain physical distance—generally 50 or 100 feet. State courts use these injunctions against alleged abusers and stalkers.
The laws of Illinois contain provisions for several specific injunctions that we can understand as restraining orders. One of these is a firearms restraining order, or FRO, and is one of the only times the familiar term “restraining order” appears in our state’s legislation. This provision of the Firearms Restraining Order Act came into effect as recently as January 1st, 2019. This injunction prevents the subject from purchasing, receiving, or otherwise possessing a firearm for the duration of the order. While this is a powerful and restrictive order, the law limits who can invoke that power: only law enforcement officers or members of the respondent’s immediate family or household can petition the court for this order. An emergency order can last for up to 14 days, and subsequent to a hearing, an extended order can last up to six months.
Additionally, Illinois law includes a civil no-contact order for victims of sexual assault or non-consensual sexual conduct. This order prohibits the respondent from having any contact with their alleged victim, including electronic contact or attempts to contact through a third party. The order also requires the respondent to maintain a prescribed distance from the alleged victim and their property.
In the event of antisocial behavior that could cause a person to fear for their safety or otherwise cause emotional trauma, Illinois law provides for a stalking no-contact order. As with firearms and civil no-contact orders, a stalking no-contact order typically begins with a short-term emergency order followed by a plenary order, in which the court may set a long-term duration for an extended order—in this instance, up to two years.
Illinois is a state that takes matters of domestic violence or the threat of domestic violence particularly seriously. The Illinois Domestic Violence Act allows family members, household members, or people who have a child in common to file an order of protection against a subject. This injunction provides significant protections to victims of domestic violence, people with physical or mental disabilities, and other vulnerable groups.
These protections go beyond what restraining orders afford in many other states. An order of protection in Illinois can force subjects to vacate a residence they share with the person who filed the order, prohibit all in-person, electronic, and third-party contact, and even prohibit contact with family members and cohabitants of the victim.
Orders of protection come in three phases, unlike restraining orders which only have emergency and plenary forms. As with other orders, an order of protection for domestic violence begins with an emergency order, which can last from 14 to 21 days. This goes into effect with a judge’s enactment of the order. Following this, the court must serve the subject or respondent with notice of the order. After this, the order of protection enters an interim phase which sets it apart from other orders. Following a court hearing, the court will issue a plenary order of protection, which could last for years and is also eligible for renewal after its initial expiry.
What most distinguishes the difference between a restraining order and an order of protection in Illinois is the severity of consequences. Violating an order of protection for domestic violence is a Class A misdemeanor in Illinois—one that could carry up to 364 days of jail time and fines. A second violation of that order of protection carries a mandatory minimum sentence of 24 hours in jail, and in many cases, this violation could be tried as a felony.
If you’ve been the victim of domestic violence in Illinois, you can file for an order of protection by reporting to the circuit court nearest your own home, the home of the abuser, or the site of the incident. Complete and file a formal petition, which a judge will review before issuing the order. The judge may also wish to discuss some points of the petition with you. If the court issues the order of protection, it will go into effect as an emergency order until law enforcement or a process server notifies the respondent.
A hearing for a plenary order of protection can be challenging. However, attending this hearing is mandatory—failing to appear will cancel the order. You may wish to secure the services of a domestic violence lawyer in the Chicago area for this stage. The firm of Schiller DuCanto & Fleck is eminently experienced in issues of family law such as domestic violence and orders of protection. Our attorneys will be able to help you and your loved ones remain safe in the face of further threats of abuse.