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.