WHAT IS AN ORDER OF PROTECTION?
An Order of Protection is a Court Order prohibiting the person against whom the Order is issued (known as the “Respondent” in Family Court) from engaging in certain activities. The Family Court has concurrent jurisdiction with the criminal court; this means that an Order of Protection can be sought and obtained in both Family Court and criminal court depending on the individual facts and circumstances of the case.
An Order of Protection may direct a person to completely stay away from another person (often referred to as a “stay away” Order of Protection), to have no contact with another person (often referred to as a “no contact” Order of Protection), or simply to refrain from committing any Family Offenses or criminal offenses against another person (often referred to as a “refrain from” Order of Protection).
Depending on the facts and circumstances of the matter, a Court can order a number of different conditions of behavior that the Respondent must observe.
WHO CAN I OBTAIN AN ORDER OF PROTECTION AGAINST IN FAMILY COURT?
In New York, a person who has been the victim of certain types of offenses (“Family Offenses”) may seek an Order of Protection from the Family Court.
A person can obtain an Order of Protection in Family Court against a person who is:
- A current or former spouse;
- Someone that person has a child in common with;
- A family member to whom that person is related by blood or marriage;
- Someone with whom that person has or had an “intimate relationship”. (It should be noted that an intimate relationship does not have to be a sexual relationship. However, the person seeking an Order of Protection must prove that more than just a casual or social relationship existed. It is up to the Court to decide whether the facts and circumstances of the relationship are sufficient to constitute an “intimate relationship” for the purposes of the statute).
If the person against whom you wish to seek an Order of Protection against does not fall into one of these categories, you may not obtain an Order of Protection from the Family Court. However, you may be able to obtain an Order of Protection in criminal court by contacting your local Police Department.
WHAT ARE THE FAMILY OFFENSES?
An Order of Protection may be issued by the Family Court where a person falling into the above-noted categories (current or former spouse, child in common, family member, or “intimate relationship”) has committed a Family Offense against another person. This includes domestic violence.
The Family Offenses mirror the criminal law and the elements of each Family Offense are contained in the New York Family Court Act and the New York Penal Law. The Family Offenses are as follows:
- Disorderly conduct;
- Menacing in the second or third degree;
- Harassment in the first or second degree;
- Reckless endangerment in the first or second degree;
- Aggravated harassment in the second degree;
- Stalking in the first, second, third, or fourth degree;
- Assault in the second or third degree;
- Attempted assault;
- Criminal mischief;
- Sexual misconduct;
- Sexual abuse in the second or third degree;
- Forcible touching;
- Strangulation;
- Criminal obstruction of breathing or circulation.
The elements of each offense can be found in the NY Penal Law and Family Court Act.
In connection with the filing of your Family Offense Petition, you can also file petitions seeking temporary custody of your children, temporary child support, and/or temporary spousal maintenance, if applicable.
Westchester Matrimonial attorneys are well versed in the elements of each Family Offense and have extensive experience in drafting Family Offense Petitions (and petitions for temporary custody and support, where applicable), appearing in Court, and obtaining both temporary and final Family Court Orders of Protection on behalf of our clients. If you believe that a Family Offense has been committed against you, contact an experienced Westchester Matrimonial attorney today to discuss the facts and circumstances and to draft your Family Offense Petition.
WHAT HAPPENS AFTER I FILE MY FAMILY OFFENSE PETITION?
When you file a Family Offense Petition, the Court will schedule your case to be heard on the same day you filed, if possible. The first Court appearance after you file your Family Offense Petition, therefore, will most likely be on the same day you file the petition. The first Court appearance is an “ex parte” proceeding, which means that only you and your attorney will be present. The Respondent will not be present, at least at the first Court appearance.
At the first Court appearance, the Judge will review your petition and ask you and your attorney questions about the facts in the petition and the relief you are seeking. After hearing all of the reasons why you wish to obtain an Order of Protection, the Judge has the power to issue a temporary Order of Protection.
The Order of Protection you may receive on the day of filing will be temporary because it is only effective until the second Court appearance, at which the Respondent will have the opportunity to appear in Court and to admit or deny the allegations in the petition. The Court will schedule the second Court appearance (usually) within a week of the initial appearance.
If you obtain an Order of Protection at the first Court appearance, the Respondent must be served with a copy of the Order of Protection. The Order of Protection is not effective until it is served.
Your local Police Department may be able to effectuate service; ask your attorney whether this is an option in your city or town. If not available, a process server, or your friend or relative may effectuate service. You may not serve the Order of Protection yourself. Whoever effectuates service must complete an Affidavit of Service and file it with the Court before the next Court appearance.
After service is completed, the Respondent must obey the conditions of the Order of Protection. Until such time as the Order of Protection is modified or vacated by the Court, the terms of the Order of Protection will remain in effect.
At the second Court appearance, the Respondent has the right to appear and to admit or deny the allegations in your petition. The Respondent may agree to have an Order of Protection issued against him or her. Agreeing to an Order of Protection does not necessarily mean that the Respondent is admitting the allegations in the petition; it simply means that they will agree observe the conditions of an Order of Protection.
If the Respondent does NOT agree to have an Order of Protection issued against him or her on the conditions you requested in your initial petition, your case will be scheduled for a trial (known as a “fact finding hearing” in Family Court). If there is a fact finding hearing in your case, both you and the Respondent will have the opportunity to testify, call witnesses, and present evidence. Following the fact finding hearing, the Judge will decide whether an Order of Protection will be issued, the duration of the Order of Protection, and the terms and conditions of the Order of Protection. The Court has the authority to issue a final Order of Protection that may last for up to two years (5 years if a finding of “aggravated circumstances” is made).
WHAT HAPPENS IF AN ORDER OF PROTECTION IS VIOLATED?
An Order of Protection, whether it is temporary or permanent, is a Court Order. After an Order of Protection is issued, it must be served upon the Respondent. The Order of Protection must also be given to the local Police Department where the Respondent resides.
If an Order of Protection is violated, meaning that the Respondent has done something that they are prohibited from doing by the Order of Protection, the person who holds the Order of Protection against the Respondent has the right to call the police.
The person who holds the Order of Protection may also file a violation petition with the Family Court to alert the Court that the Respondent has violated the Order of Protection. Upon filing of the petition, the Court will schedule a Court date at which all parties must appear so that the Court may address the violation and order appropriate remedies.
Are you in need of a Family Court Order of Protection? Contact a knowledgeable Westchester Matrimonial Attorney today and we will support you throughout this process.