Obtaining an Order of Protection Danielle Parisi Ruffatto Domestic Violence Legal Clinic
Jan 05, 2016
Obtaining an Order of Protection
Danielle Parisi Ruffatto
Domestic Violence Legal Clinic
Danielle Parisi Ruffatto
Pro Bono Director
Domestic Violence Legal Clinic
555 W. Harrison, Suite 1900
Chicago, IL 60607
312-325-9155
Volunteer Shift Overview
An outline of a volunteer shift is on pages 4-5
Intake Sheet is for your use Training manual contains other
information about the paperwork, court representation, enforcement, and related issues, such as child support and visitation
Filing for an Order of Protection
Petition for Order of Protection Affidavit Summons Sheriff’s Information Sheet Domestic Relations Cover Sheet Emergency Order of Protection (draft)
Affidavit
Attached to the Petition and explains client’s relationship with Respondent, incidents of abuse, need for OP, and emergency nature of case
IDVA requires Petition to be “verified or accompanied by affidavit…”
Affidavit
First paragraph identifies nature of relationship, whether parties have any children in common, if they ever lived together, and when they separated
Affidavit
Incidents of abuse• List time, date, location, who was present• Presented in reverse chronological order
(sets out emergency nature of case)• Sample includes incidents of physical
abuse, telephone harassment, and summary of abuse history
Affidavit
Paragraph 2• IDVA allows court to prohibit specific acts
of abuse (Paragraph 1 of the OP), “if such abuse, neglect, or stalking has occurred or otherwise appears likely to occur if not prohibited.”
• In Smith v. Smith, all listed types of abuse have actually occurred
• Can state, “I am fearful that based on this behavior, he will stalk me.”
Affidavit
Paragraph 3• IDVA states and Emergency Order of
Protection shall issue if Petitioner establishes that the harm she seeks to prevent would be likely to occur if Respondent were given any/more notice
Necessary to establish need for Emergency Order of Protection
Petition Court form that alleges Petitioner’s need for an
Order of Protection (OP) and for the specific remedies requested
Signed by BOTH the Petitioner and the attorney Structure
Basic information about parties • Establishes statutory relationship, venue, and jurisdiction
over parties and minor children
Allegations made as to specific remedies Remedies requested
Petition
BASIC INFORMATION ABOUT PARTIES Petitioner and Respondent’s names and addresses
Confidential address OBO = On behalf of
Select the appropriate relationship box(es) Check box on pending cases “minor children”
Jurisdictional questions No “father and child relationship” Primary caretaker
Check all appropriate venue boxes
Petition
ALLEGATIONS Protected persons
Can include other household members Allegations are contained in affidavit
Usually put in between pages 2-3 Exclusive possession of a residence “Stay away” provision Prohibiting presence at other locations Counseling
Petition
Issues related to “minor children” Visitation Physical Care and Control Temporary Legal Custody
Personal property that Petitioner owns or the parties own property jointly Request exclusive possession if Respondent
has and Petitioner needs back Request protection for property that
Petitioner has that may be damaged or taken Pets
Petition Child support
See attached sheet on “Child Support” Expenses Alcohol or drugs (ONLY) Firearms
May involve additional considerations School and other records Other injunctive relief
“stay away” means no contact by any means An alternative is “no unlawful contact”
Disclosure box if address is confidential Additional allegations
Petition
REMEDIES REQUESTED
Largely follows the allegations section, except:
Access to the residencePetitioner or Respondent
VisitationSee attached Visitation Checklist and
Supervised Visitation handouts
Other paperwork required for filing
Domestic Relations Cover Sheet• Remember to include DOB and fill out bottom
Summons• Address where the Respondent can be served
(home, work) Sheriff’s Information Sheet
• Information on the Respondent• List your contact information
Emergency Order of Protection• Structure of Order matches that of “Remedies”
portion of Petition • “minor children” are not necessarily protected
persons/parties
Court Procedure
Conduct Court reporter
Emergency Order of Protection Hearing
Introduce self and client Ask introductory questions (or Judge may
ask) Ask about incidents of abuse
Most judges will allow leading questions (ex parte)
Generally, do not have to go through every incident
If incident relevant to specific remedy requested (ie, visitation being “reserved”), highlight the incident
Emergency Order of Protection
Ask about fear of future abuse and notice
Ask questions regarding remedies (ie, balancing hardships)
Petition Only
At the end of the EOP hearing, the Judge may: Grant an EOP, Deny and EOP but continue the matter for hearing on
the POP, OR Deny the EOP and dismiss the case
If the Judge does not enter the EOP and continues the case for hearing, would your client rather:
Proceed with the case, OR Withdraw the Petition so that the Respondent does not
receive notice
Service of Process
The Respondent will be served by the Sheriff Automatic, unless outside of Cook
CountyContact Sheriff to confirm serviceProof of Service will be sent to the
Clerk’s Office for inclusion in the court file.
Return Court Dates
When you return to court, any of the following may occur:
Proceed to hearing on the Plenary Order of Protection,
Proceed to default prove up and request that a Plenary Order of Protection be entered by default,
Enter a Plenary Order of Protection by agreement, OR
Continue the case and extend the Emergency Order of Protection
Continuance
Although the case is set for hearing on the next (return) court date, it may be continued to allow for service, to set a hearing, or for the Respondent to obtain counsel.
If the matter is continued, the Emergency Order of Protection should be extended and the case continued in a Disposition Order
Appear in court, identify self, and ask for an extension
Continuance
No motion is required to request additional attempts be made to serve the Respondent, except for a special process server A Motion to Appoint Special Process Server
can be presented on the day of court Come downstairs after court to fill out an
alias summons at the Clerk’s Office
Disposition Orders
Temporarily extend Emergency Orders and continue case
Get a copy from the Clerk when you arrive at court and fill it outPut your contact information in the
bottom left-hand cornerRemember to check boxes 1 AND 2
• 1 Extends EOP
• 2 Sets future court date
Agreed Plenary Order
If the Respondent does appear (with or without counsel) and you can come to an agreement.
Draft Order and have both parties review and sign.
Step up and explain OP terms on the record.
Default Order of Protection
If the Respondent is not present and has been served, you can ask that he be held in default and a Plenary Order be entered.
Ask the Default Questions on page 48Most judges will NOT require
testimony about the abuse
Plenary Order of Protection Hearing
Client Preparation Be sure to have client review affidavit Explain what will happen in court
• Prepare the client to pause if there is an objection, to take their time, answer only the questions asked, always be truthful
• Stress the importance of controlling emotions in Court Ask client what she thinks the Respondent will say Practice some direct exam questions – for you and
the client Discuss any possible witnesses or evidence and
review the rules
Plenary Order of Protection Hearing Witnesses
Speak with personally • Make sure you know what they can and
will testify to
Make an oral motion to exclude prior to start of hearing
Hearing
Direct Exam Non-leading questions Important to go through all incidents of
abuse Remember remedies (balancing tests)
Hearing
Cross Exam- Use this opportunity to point out
inconsistencies- Be aware of the incidents the Respondent
did not dispute- Most judges at the DV courthouse will not
let a pro se Respondent directly question the Petitioner. They will serve as an intermediary.
Closing Argument
Opportunity to argue your clients need for an OP, and for the specific remedies requested
Point our errors in the Respondent’s case If admitted any abuse IDVA states OP shall
issue If did not talk about specific incidents of
alleged abuse at all– Point out any VOOPS (or, if none, that OP is
working)
Interim and Plenary Orders of Protection IOP and POP use the same form
IOP’s have a future status date POP’s expire without a court date
IOP’s are rarely used Set-up is similar to EOP, except that:
Plenary Orders must have expiration information on first AND last pages
Additional relief can be granted in POP, including visitation
Visitation Provisions
Safety considerations Make terms clear Allow some contact in emergencies
(only via email/text, through a third party)
Do not contradict other provisions
Orientation Dates
August 23, 2011 9:00 a.m.–11:30 a.m.
August 30, 2011 9:00 a.m.–11:30 a.m.
August 31, 2011 9:00 a.m.–11:30 a.m.