|Know the Consequences of Getting an Order of Protection||
Last updated: January 2008
The Illinois Domestic Violence Act (the "Act") lets you get an Order of Protection against your abuser. You can do this in criminal or civil court. There are differences between the effects and results of criminal and civil Orders of Protection. This article will explain those differences and help you to decide what kind of Order of Protection to get.
The main purpose in any criminal case is to protect society from someone who is dangerous. The State is the party who starts the case because they think someone has committed a crime. The defendant is the other party. It must be punishable by prison time. Examples are rape, murder and robbery.
In a criminal proceeding, the defendant is presumed to be innocent. The State must prove the defendant is guilty "beyond a reasonable doubt" (almost 100% certainty). If the State doesn't, then the defendant is set free and the case ends.
To get an Order of Protection in criminal court, the abuser must have allegedly committed a crime against you. This could be assault, battery, stalking or some other offense. The criminal court will not grant you an Order of Protection unless you testify against the abuser. So you must come to court to get the Order of Protection, and again to testify (in the criminal case).
The Order of Protection is valid for as long as you participate in the criminal case. The State does not have to win the case for you to get the Order of Protection. But you cannot drop or withdraw the charges if you want to keep it.
The advantage of criminal court is that the abuser cannot "countersue" you (for divorce, paternity, custody, etc.). Once the Order of Protection is granted, there cannot be any other legal "surprises." The abuser can always hire an attorney and start a case in civil court. But that will involve a new legal proceeding, when the abuser may still end up in jail from the criminal one!
The Order of Protection obtained in criminal court does not give you everything. The criminal court will not make child custody decisions. It will only allow you to have "possession" of the children. It will also not decide child support issues or order counseling for the abuser. And once the criminal case against the abuser is finished, the Order of Protection usually expires. At that point, you may not be legally protected any longer.
The most common purpose in a civil proceeding is to solve a problem between two (or more) people. The action is brought by one citizen against another citizen. The person who brings the case is the plaintiff. The other person is the defendant. Examples are contract disputes, landlord-tenant issues, child support cases and divorce.
In a civil proceeding, neither party may be clearly incorrect or "guilty." The plaintiff must prove by a "preponderance of the evidence" (a little over 50% certainty) that he or she is right. In a civil proceeding, the defendant can (and must) bring any and all other actions that he might have against the plaintiff. This is called countersuing.
An Order of Protection in civil court can be obtained in one of two basic ways:
Usually, you will first get an Emergency Order of Protection (which lasts from 14-21 days) and plan to return to court at a later date. Then the abuser will be notified and told to come to court at that later date.
When you and the abuser go to court, there are basically three things that can happen concerning the Order of Protection:
A full hearing on the Order of Protection will take place at this court date. Hopefully, this is where you will get a Plenary Order of Protection.
In general, you do not need extensive serious physical harm to get an Order of Protection in civil court. Also, there is no need for an underlying criminal act. So you can more easily get an Order of Protection in civil court for mental abuse, insults, threats of physical abuse, repeated calling, etc.
If you try to get an Order of Protection along with another civil proceeding, you probably know the abuser's position on the other issues. But when you try to get one by itself, you may find yourself confronting other legal issues. You may not have considered these issues and may not have the necessary knowledge to deal with them.
Example 1: You have a child with the abuser, but are not married, and you just want to get an Order of Protection. When the abuser finds out about it, he may decide to ask the court for a paternity test. Once the test proves the child is his, you may have to share custody with him. He may also try to get sole custody, in which case you would have to pay child support to him.
Example 2: You want to get an Order of Protection against your husband, who is the father of your child (or children). In retaliation, he files for divorce and also tries to get custody of the child (or children).
Even if you win your cases against the abuser, you can be in court for a long time. This may be another way for the abuser to torment or exercise power over you.
Another disadvantage is that the Order of Protection is just a yellow piece of paper that says the abuser can't act a certain way. Unless there is a bigger threat, like jail, many abusers may not "care" about the Order of Protection.
In an Order of Protection case in civil court, the abuser can "retaliate" by starting a case against you. You may instead want to take a different approach. For example, you could file for the Order of Protection along with a paternity, divorce and/or custody proceeding.
Or, you might still decide to go ahead and obtain an Order of Protection only. The important part is that you make the decision yourself. You should be fully aware of the consequences and be ready, and not surprised, if a case is started against you.
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