Obtaining an Order of Protection

1. Obtaining an Order of Protection Danielle Parisi Ruffatto Domestic Violence Legal Clinic

2. Danielle Parisi Ruffatto Pro Bono Director Domestic Violence Legal Clinic 555 W. Harrison, Suite 1900 Chicago, IL 60607 312-325-9155

3. 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

4. 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)

5. 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…”

6. Affidavit • First paragraph identifies nature of relationship, whether parties have any children in common, if they ever lived together, and when they separated

7. 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

8. 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 orotherwise 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.”

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. Petition REMEDIES REQUESTED Largely follows the allegations section, except: • Access to the residence • Petitioner or Respondent • Visitation • See attached Visitation Checklist and Supervised Visitation handouts

16. 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

17. Court Procedure • Conduct • Court reporter

18. 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

19. Emergency Order of Protection • Ask about fear of future abuse and notice • Ask questions regarding remedies (ie, balancing hardships)

20. 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

21. Service of Process • The Respondent will be served by the Sheriff • Automatic, unless outside of Cook County • Contact Sheriff to confirm service • Proof of Service will be sent to the Clerk’s Office for inclusion in the court file.

22. 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

23. 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

24. 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

25. Disposition Orders • Temporarily extend Emergency Orders and continue case • Get a copy from the Clerk when you arrive at court and fill it out • Put your contact information in the bottom left-hand corner • Remember to check boxes 1 AND 2 • 1 Extends EOP • 2 Sets future court date

26. 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.

27. 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 48 • Most judges will NOT require testimony about the abuse

28. 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

29. 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

30. Hearing • Direct Exam • Non-leading questions • Important to go through all incidents of abuse • Remember remedies (balancing tests)

31. 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.

32. 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)

33. 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

34. 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

35. 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.