Orders of Protection in Illinois: Inappropriate for Neglect Alone

In Illinois, courts are authorized to issue orders of protection under the Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq. ( “the Act”). The purpose of the Act is to support victims of domestic violence and to help them avoid further abuse. The Act aims to “reduce the abuser’s access to the victim. . . so that victims are not trapped in abusive situations” (750 ILCS 60/102(4)).

An order of protection can include a broad range of remedies, including but not limited to the following:

• Prohibit harassment, interference with personal liberty, physical abuse, or stalking;
• Prohibit intimidation of a dependent;
• Require an abuser to stay away from the victim’s home, car, or workplace;
• In cases where a child is a protected party, the order can require the abuser to stay away from the child’s school and after-school care facilities; and
• Restrict or deny visitation rights;

In cases where a child has been abused, a parent may file a petition for an order of protection against the other parent on behalf of a minor child. In order to obtain an order of protection, the parent seeking the order of protection (the “petitioner”) must prove that the other parent (the “respondent”) has abused the child, and that an order of protection is the appropriate remedy to prevent further abuse.

What happens if a parent doesn’t necessarily abuse a child, but simply neglects him? Can an order of protection be obtained against a parent who simply leaves a child unsupervised? As silly as it may sound, according to the Illinois Appellate Court, the answer is clearly no, unless of course the “neglect” was actually “abuse.”
Follow that? Of course you do. If not, allow me to explain.

In the case of In re the Marriage of Holtorf, 397 Ill. App. 3d 805, 922 N.E. 2d 1173 (2nd Dist. 2010), the Second District held that without more, a finding of neglect alone is not a proper basis for the issuance of an order of protection under the Act. In that case, a husband filed a petition for an emergency order of protection against his wife on behalf of the parties’ two minor children. The petition alleged that the wife left her children were alone in the car while she went into a store to steal things. She was subsequently arrested and charged with retail theft. After a hearing on the order of protection, the trial court found that the wife had neglected the children, granted the husband’s petition, and entered an order of protection against the wife. The wife subsequently filed a motion to vacate the plenary order of protection, alleging that the court erred in entering the order of protection solely on the basis of a finding of neglect.

The Appellate Court held that “the trial court erred in ruling that neglect was a proper basis for the issuance of the plenary order of protection.” Relying on strict statutory construction, the court held that, “when an act defines its own terms, those terms must be construed according to the act’s definitions.” In considering the history of the Act, the court found that the 1986 revision of the original Illinois Domestic Violence Act “made no allowance for neglect as a basis for the issuance of an order of protection.” Furthermore, the court held that “a petition for an order of protection may be filed only by a person who has been abused by a family or household member or by any person on behalf of a minor child or adult with disabilities abused by a family or household member.” (Emphasis added)

After drawing all of those distinctions between abuse and neglect, the court in Holtorf arrived at the obvious conclusion that, notwithstanding the trial court’s finding that leaving the kids alone in the car while going shoplifting was “neglect,” it was actually “abuse,” as defined under the Act. In particular, the Act defines abuse to include “knowing or reckless conduct which creates an immediate risk of physical harm.” 750 ILCS 60/103(14)(iii). It’s fairly clear that shoplifting could be considered reckless conduct, but what was the immediate risk of harm? Ostensibly, it was that the mother would get arrested and taken away, while the kids sat patiently in the car waiting for her to return. Following the court’s analysis, however, in the absence of that immediate risk of physical harm for her children, there would have been no abuse, only neglect. In that case, the order of protection would not have been proper.

To summarize, under Illinois law, neglect alone, without a finding of abuse, cannot give rise to an order of protection. Other legal remedies may be available in instances of neglect. For example, the court may consider restricting visitation under the Illinois Marriage and Dissolution of Marriage Act.

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