Domestic violence protective orders are meant to be shields and not swords. In other words, the judge should grant a protective order to prevent domestic abuse, whether it is physical, mental, emotional, or otherwise. However, the judge should not grant a protective order just to punish the alleged abuser.
While the vast majority of protective orders are granted, as they should be, there are some safeguards in place to ensure that the order is narrowly tailored to protect alleged victims and limit its effect in other situations.
Clarifying the Relationship
The first step toward obtaining a protective order is demonstrating a protected relationship under 750 ILCS 60/103. Most alleged victims and alleged abusers are either spouses or former spouses, and in these cases, the relationship is fairly easy to establish. In other cases, the relationship is more nuanced:
- Dating Partners: A person may obtain a protective order against a current or former boyfriend or girlfriend. Despite the best efforts of lawmakers (105 ILCS 110/3.10 rather vaguely defines a “dating relationship” as “an ongoing social relationship of a romantic or intimate nature”), these relationships are inherently complex and change almost daily.
- Living Partners: How many nights must Person A spend in Person B’s residence for the two to be considered roommates? One night? Two? Ten?
- Common Law Spouse: Illinois does not recognize informal marriages for any purpose, but several other nearby states do acknowledge them. So, what if the alleged victim was the common-law spouse of the alleged abuser in Iowa, but the two no longer live together? Arguably, they are not “former spouses” for a protective order or any other purpose.
Some relationships require additional showings; for example, a person can obtain a protective order against a caregiver as long as the alleged victim is either elderly or disabled.
Prohibited Conduct
To obtain protective orders, alleged victims must reasonably fear for their safety. That element implies an imminent, physical threat.
So, assume that there is no such threat. Perhaps the alleged abuser has followed the alleged victim in a public place, created a disturbance at school or work, placed repeated and unwanted phone calls, or otherwise engaged in harassing or stalking activity. All these activities are prohibited conduct under the statute, but they may not constitute the imminent threat of violence required for a protective order.
A judge will probably still grant a protective order in these cases if there was at least one incident of physical violence — no matter how slight — or the alleged abuser has the capability to make a credible threat (e.g. has access to firearms or other weapons).
Motive and Requests
Some courts scrutinize protective order requests if there is an ongoing child custody proceeding. Although it is very rare, it is not unheard of for some unscrupulous alleged victims to exaggerate the facts in a protective order hearing to gain an advantage in a family law matter.
This scrutiny should be intensified if the protective order requests any unusual child custody provisions; for example, a “no contact” order if there is little or no evidence of physical violence against the child.
Contact Aggressive Attorneys
Protective orders exist to defend the weak and not punish the strong. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Adrian Williams)