Mutual vs. Correlative Separate Orders of Protection
Published in Chicago Lawyer Magazine, February 2015
by Daniel R. Stefani
Recently the First District rendered an Opinion in In re Marriage of Kiferbaum. The court made an important clarification between mutual orders of protection which are totally prohibited by Section 215 of the Illinois Domestic Violence Act of 1986 (“IDVA”) and correlative separate orders of protection which are not favored but allowed if certain requirements are met.
In Kiferbaum, after a long history of litigation on several petitions for orders of protection filed by both parties, the husband filed a petition for order of protection and within approximately two weeks, the wife filed a petition for order of protection. Upon hearing on the “cross-petitions for order of protection”, the trial court granted husband’s petition for order of protection and set argument for husband’s motion to dismiss wife’s petition for order of protection at a later date. The trial court ultimately granted the husband’s motion to dismiss, finding that the IDVA does not permit mutual orders of protection and only allows for correlative orders of protection which are out-of-state mutual orders of protection that Illinois Courts give full faith and credit to as defined in an article written by Judge Celia Gamrath. See Celia Guzaldo Gamrath, Enforcing Orders of Protection Across State Lines, 88 Ill. B.J. 452 (2000) (Gamrath Article).
Wife appealed, in part, the order granting Husband’s motion to dismiss. The Appellate Court reversed the dismissal of Wife’s petition in part because the trial court erred in construing §215 of the IDVA and more specifically, the definition of correlative orders of protection, as set forth in the Gamrath Article. The issue decided by the Trial Court was never addressed at the appellate level and therefore, the Appellate Court gave it full consideration and analysis.
Section 215 of the IDVA provides in full:
§215 Mutual orders of protection; correlative separate orders. Mutual orders of protection are prohibited. Correlative separate orders of protection undermine the purposes of this Act and are prohibited unless both parties have properly filed written pleadings, proved past abuse by the other party, given prior written notice to the other party unless excused under Section 217, satisfied all prerequisites for the type of order and each remedy granted, and otherwise complied with this Act. In these cases, the court shall hear relevant evidence, make findings, and issue separate orders in accordance with Sections 214 and 221. The fact that correlative separate orders are issued shall not be a sufficient basis to deny any remedy to petitioner or to prove that the parties are equally at fault or equally endangered.” 750 ILCS 60/215.
The key determination for the court was the meaning of the terms “mutual order of protection” and “correlative order of protection”. The Appellate Court found that the statute failed to give a definition and thereafter found one Illinois case where the court considered Section 215 which was People v. Stiles. The Court did not find this case helpful to its decision so then turned its attention to the definition of “correlative” and “mutual”. As defined in Black’s Law Dictionary, “correlative” is defined as “related or corresponding” and “mutual” is “reciprocal”. Mutual orders of protection typically arise from a singular pleading and proceeding despite the fact that one party may or may not have asked for an order of protection. The problems with mutual orders of protection are many and include violating due process, as well as implementation by the parties and the police, and potentially exacerbating the violence and abuse against the abused party. A mutual order of protection is also less effective for enforcement purposes and can be used in future proceedings against the victim to the advantage of the abuser.
Correlative orders of protection are not the same as mutual orders because the plain language of the IDVA and the Code of Criminal Procedure provides for each type of order which indicated the Legislature’s clear intent. Both sections allow for such correlative orders of protection if a separate action is commenced and completed pursuant to the requirements of each statute.
The trial court relied, in part, on the Gamrath Article that stated “mutual orders of protection are prohibited under the IDVA, but out-of-state mutual orders of protection may be given full faith and credit that both parties submitted a written request for the order and it was issued upon the showing of mutual abuse. Such orders are known in Illinois as correlative orders of protection.” Gamrath defines mutual orders of protection as “orders entered against both parties requiring them to abide by the restraints and other forms of relief in the order”. From this the trial court defined correlative orders of protection as out-of-state mutual orders which may be given full faith and credit if certain conditions are met. Given that the husband’s and wife’s orders were not out-of-state orders of protection, they were not deemed to be correlative orders by the trial court. The plain language of Section 215 allows for correlative orders like that sought by the wife here, if both parties had filed written pleadings, proved past abuse by the other party, given prior written notice to the other party unless excused under Section 217, satisfied all prerequisites for the type of order and each remedy granted, and otherwise complied with the Act.
These correlative orders protect the court and the parties from the issue of both parties racing to the courthouse to bar the other party from seeking an order of protection. Clearly, if correlative orders were also prohibited, it would leave open the possibility that an abuser could foreclose the ability of the abused to obtain an order of protection from the court.