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


Allegations are contained in affidavit

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
Can include other household members
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”



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Personal property that Petitioner owns or
the parties own property jointly



Visitation
Physical Care and Control
Temporary Legal Custody
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




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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 residence


Petitioner or Respondent
Visitation

See 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
County
 Contact Sheriff to confirm service
 Proof 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 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
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 48


Most 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


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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
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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.
Download

DVLC-Order of Protection PowerPoint