Table of Contents
Introduction
As someone who has been through the challenges of navigating the legal system, I understand how daunting it can be to seek legal protection in the wake of domestic violence or other forms of abuse. Orders of Protection (also known as restraining orders) are a crucial resource to safeguard your physical and emotional well-being, and it’s essential to understand how they work in the New York Family Court. In this comprehensive guide, I’ll walk you through the ins and outs of the process from the types of orders available to the process of obtaining one, and what to do if the order is violated. So, let’s jump in and take control of your safety and peace of mind.
What is an Order of Protection (“Restraining Order”)?
An Order of Protection, also known as a restraining order, is a legal document issued by a judge to protect one person from another who is causing harm, abuse, harassment, or intimidation. It sets boundaries and restrictions on the behavior of the person causing harm, ensuring the safety and well-being of the victim.
Types of Orders
There are three main types of Orders available in New York:
- Family Court Order of Protection: This type of order is issued as part of a civil proceeding to stop violence within a family or intimate relationship (domestic partner, dating, or formerly dating). Eligibility for this type of order requires a specific relationship with the respondent, such as being current or former spouses, having a child in common, being related by blood or marriage, or having an intimate relationship.
- Criminal Court Order of Protection: This type of order is requested by an Assistant District Attorney on your behalf during criminal proceedings. You don’t need to have an intimate or personal relationship with the person charged with the offense. The judge decides whether to issue an order of protection, as well as the terms and conditions.
- Supreme Court Order of Protection: A Supreme Court order can be issued as part of an ongoing divorce or criminal proceedings.
Orders can be either temporary or final, and may be full or limited:
- Temporary Order of Protection: Issued on the day you file for an order of protection and lasts until the next court date, at which point it may be extended.
- Final Order of Protection: Issued at the end of the case, after the judge finds that a family offense was committed or the respondent agrees. A final order typically lasts for two or five years.
- Full Order of Protection: Requires the subject of the order to stay completely away from you, your home, job, and school, and not to abuse, harass, or threaten you.
- Limited Order of Protection: Allows the subject of the order to maintain contact with you, but prohibits abuse, harassment, or threats.
How to Obtain an Order in Family Court
To obtain an Order from the Family Court, you must file a family offense petition with the Family Court clerk. A lawyer can guide you through this process, or you can file alone. You need to be specific as to the type of conduct and the date that it occurred. You cannot merely say that your spouse was mean or yelled.
You will need to include specific examples, such as “On June 1, 2023, my spouse screamed in my face, in front of the children, call me a useless b*t*h.” If your spouse cursed at you, please use the specific curse (I can’t put the curses in this blog, or the search engines will flag this website.) Or “On May 30, 2023, my spouse slapped me across the face.” Even damage to property can be considered: “My spouse in a rage at me, punched a hole in the wall.”
Also, excessive phone calls or text messages can be a basis for seeking an order. For example, abusive texts, or calls. Or even excessive calls or text messages.
After filing the petition, a judge will review your case and determine whether there is good cause to issue a temporary order. A future court date will be scheduled to determine if the order of protection should be made permanent.
Process of Serving Family Court Orders
Once the order is issued, it must be served to the respondent by someone other than yourself. The Sheriff’s Office, the NYPD, or an individual over 18 years old, who is not a party to the case, can serve the order. The order of protection is not in effect until it has been served.
A Violation of an Order of Protection
If the respondent violates the order of protection, it is crucial to report the violation to the police. A violation of an order of protection is taken very seriously by the police and the courts. If it’s an emergency, call 911, and the respondent will be arrested. In a non-emergency, you may file a violation of the order of protection by going to a police precinct or returning to Family Court. A violation can be both a criminal violation and a civil violation. In other words, the respondent can be arrested and prosecuted, and a Family Court petition for a violation can be filed as well. The respondent would then have to answer in two different courts.
When to Seek a Criminal Court Order
If you have been threatened or harmed by another person, you can report the crime to the police, who may charge the offender with a crime. During any court appearances in Criminal Court, the judge can issue an Order of Protection. The District Attorney prosecutes the defendant, and you may participate in the case as a witness.
Obtaining a Supreme Court Order
A Supreme Court Order of Protection can be issued as part of a divorce or criminal proceeding. To request an order of protection during an ongoing divorce case, you must make a written or oral request to the judge. If an attorney is representing you, they can make the request on your behalf.
Duration and Modification of Orders of Protection
Temporary Orders of Protection are issued while the case is open and can be renewed as the case continues. At the end of the case, a permanent Order of Protection is typically issued for one to five years. Either party can request that the court modify the order, and the court may make changes based on the circumstances.
Legal Assistance and Resources
Both petitioners and respondents in family offense cases are entitled to court-appointed attorneys if they cannot afford one. Only the judge can decide if you qualify for an attorney. Additionally, numerous resources are available to help you navigate the process of obtaining an Order of Protection, such as the New York Office of Court Administration website.
Conclusion
Obtaining an Order of Protection in the New York Family Court can be a critical step in ensuring your safety and well-being. Understanding the types of orders available, the process of obtaining one, and what to do if the order is violated is essential for taking control of your situation. Call Port and Sava for a free 15 Minute Telephone Consultation (516) 352-2999
