NOTE: This article was updated to reflect 2020 changes in Illinois law with passage of Public Act 101-0285. These changes became effective on January 1st, amending the Illinois statute governing female genital mutilation.
Children may seek an order of protection against a parent under the Illinois Domestic Violence Act, found at 750 ILCS 60/1 et seq. An order of protection is commonly referred to as a restraining order.
To be entitled to an order of protection, the petitioner must show that he or she has been the victim of abuse or harassment by a family or household member.
If the parent has been charged with a criminal offense and the child is a victim, the State’s Attorney is permitted to file a petition for an order of protection on behalf of the child, naming the child as a protected party. For example, if the defendant is charged with domestic battery, a Class A misdemeanor, the State can seek an order of protection on the child’s behalf.
The order of protection can be extended to the end of the criminal case, to the point of a guilty plea or sentencing after trial. The order of protection can even be extended through a term of probation.
It is a matter of discretion for the State whether to seek an order of protection in criminal cases. However, where the child has suffered serious injury, it is almost a certainty that the State will file a petition for order of protection.
For example, in cases of aggravated battery to a child, the State will traditionally seek an order of protection for the child. Aggravated battery of a child is a Class 1 felony for which the sentence can be up to four years of probation or 4-15 years in the Department of Corrections.
But what if child wants an order of protection and there are no criminal charges against the parent? This situation occurs, but not frequently. In the experience of the author, judges will grant these orders only when the child resides with another parent, the respondent does not have joint custody, or the respondent has been absent for an extended period of time.
The reason a judge would be reluctant to grant an order of protection to a child is that parents have a legal right to discipline their children, and as long as it is reasonable, discipline can include physical acts. A parent who has slapped or spanked his or her child may be arrested for domestic battery, but the law provides a defense of reasonable discipline of a child.
Also, every parent has a right to reasonable visitation with their biological child, even if they are not currently on child support. The only way visitation can be denied is if there is a showing by clear and convincing evidence that doing so would endanger the child’s mental or physical welfare.
A petitioner seeking an order of protection must show abuse or harassment by a family or household member. The law defines abuse as the following:
“Abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis. See 750 ILCS 60/103(1).
In other words, Illinois law permits parents to discipline their children in a reasonable manner. So an unruly child in a power struggle with his or her parents is unlikely to get an order of protection to prevent discipline. Children must obey the rules of the house set by the parents, within reason.
The law defines a family or household member to includes step-parents, grandparents, and other persons with a familial or household relationship with the child. So a child would not be permitted to seek an order of protection against a step-parent or live-in parent for discipline either.
If a child suffers unreasonable discipline or abuse at the hands of a family or household member, however, an order of protection is appropriate. For example, it is a Class 1 felony for any parent or other guardian to permit female genital mutilation of a child. When a parent or guardian faces such charges, the State is extremely likely to request an order of protection on behalf of the abused child.