Legal Memorandum: The court may not substitute an a civil restraining order for an order of protection

Issue: Under Illinois law, when the petitioner seeks a plenary order of protection, may the court instead issue a civil restraining order?

Area of Law: Litigation Practice & Procedure, Litigation Practice and Procedure
Keywords: ; Plenary Order of Protection; Protection; Civil; Restraining Order; Victim; Safety; Perpetrator; Domestic Violence Act
Jurisdiction: Illinois
Cited Cases: None
Cited Statutes: None
Date: 03/01/2016

A civil restraining order is simply no substitute for an order of protection. The Act mandates the issuance of an order of protection once the victim makes a showing of abuse.

A civil restraining order carries neither the same rights nor gravitas conferred by an order of protection. Under the Illinois Domestic Violence Act of 1986 (Act), once the trial court finds respondent has committed an abuse against petitioner, it "shall issue" an order of protection. [statref]750 ILCS 60/103(12), 214(a) (West 2012)[/statref].  "[S]hall issue" is a mandatory term requiring the trial court to enter an order of protection, which carries with it rights for the protected party. Section 214(b) provides for no less than 19 possible remedies available to the trial court "in addition to other civil or criminal remedies available to petitioner." [statref]750 ILCS 60/214(b) (West 2012)[/statref]. These remedies include: prohibiting abuse, neglect or exploitation; granting exclusive possession of a residence and/or personal property; forbidding damaging property ordering the respondent to stay away from the petitioner; requiring counseling, payment of support, or payment for shelter services; prohibiting owning a firearm; and granting injunctive relief to protect family members. Thus, the trial court has the ability to tailor an order of protection to address individual circumstances and needs, improve victim safety and hold the perpetrator accountable for his or her actions.

In any proceeding to obtain an order of protection, the inquiry centers on whether the petitioner has been abused. Best v. Best, […]