In New York, while courts may issue orders of protection as part of a divorce or a criminal court case, the Family Court can also issue orders of protection without any other case being filed. In Family Court the person seeking the order is called the “petitioner”, while the person against whom the order is sought is called the “respondent”. A “stay away” or “full stay away” order of protection prohibits in person contact and may also prohibit all contact (including letters, telephone, emails, etc) between the petitioner and the respondent. When the parties reside in the same household, a “stay away” order is called an “exclusion order” because it excludes the respondent from the home. In deciding whether to grant an exclusion order, Courts often find it irrelevant who owns the home, whose name the lease is in, or who pays the rent or mortgage.
Alternatively, an Order of Protection may merely order the respondent to refrain from assaulting, menacing, stalking, or harassing the alleged petitioner, without prohibiting contact. This is sometimes known in the Family Court as an order “on the usual terms and conditions”.
A final order of protection is granted after a hearing (trial), or without a hearing on consent of both parties. A temporary order of protection can be issued to protect the petitioner until such time as a final order of protection is issued- or the case is withdrawn or dismissed. Final orders of protection are usually good for two years, unless there is an order on consent where the parties and the judge agree to a lesser period of time. If the Court finds “aggravating circumstances” (e.g. use of a weapon) it can issue an Order of Protection for up to 5 years.
Years ago a victim of certain domestic violence crimes was required to choose whether to proceed in the Family Court or to prosecute the crime in the criminal court. The law has since been changed, and today a victim of domestic violence can, and often does, proceed in both the criminal court and the Family court at the same time. The victim can even get separate orders of protection from each court. Until 2008, the Family Court’s power to grant orders of protection was limited to situations where the parties were either related to each other by blood or marriage, had children in common, or lived in the same household. This has now been changed to include parties who have an “intimate relationship” with one another. The new law does not define what is meant by an “intimate relationship” and it case law is ongoing as to what is and is not considered to be an “intimate relationship”.
THE INTEGRATED DOMESTIC VIOLENCE PART
As part of the “one family – one court” initiative, cases involving allegations of domestic violence may be referred to special courts where all cases (such as a divorce or a criminal case) involving the same family are heard by one judge. In New York City these special courts (knownas “IDV parts”) have been set up in all 5 counties
EFFECT OF ORDERS OF PROTECTION
If the Family Court finds that there has been a violation of either a final or a temporary order of protection, it can punish the violator as civil contempt with up to 6 months of jail time for each incident of violation. In New York, all Orders of protection, whether temporary or final, are registered in a computerized registry. Courts, the Police, and Probation Departments have access to the registry. Traditionally, police in New York have had practically total discretion as to whether or not to make arrests or to merely issue warnings. However at present the NYC police rules have a “must arrest” policy for violations of outstanding orders of protection. By statute certain violations of orders of protection can be prosecuted in the Criminal Court as felonies, carrying penalties of up to seven years jail time.
Also by statute, Courts are required to consider proven incidents of domestic violence as a factor in deciding child custody or divorce cases. This provision does not apply where there has been an order of protection on consent and “without an admission of wrongdoing”.
Orders of protection cases can be very serious, and whether you are the petitioner or the respondent, you should consider hiring an experienced family law attorney to represent you.
Disclaimer: The information on this website is intended to show general principles, and should not be relied upon for decision making without consultation with an experienced Divorce Lawyer or Family Law attorney as to your particular situation. Contact via email does not establish an attorney-client relationship.