Most orders of protection issued by New York Family Courts pursuant to family offense cases are for a period of 2 years. Sometimes an orderof protection case is settled by the parties with the respondent (alleged abuser) agreeing to an order of protection without making any admission of wrongdoing. Orders of protection issued pursuant to this type of agreement are usually for a period of 1 year.
In some cases, the Family Court Judge or Referee can give the respondent “credit” for any time during which a temporary order of protection has been in effect. Also, the judge or referee can always issue a final order of protection in a family offense case for less than two years. This is usually done when the judge believes that the family offense involves acts or behavior which is annoying, but not abusive, and does not suggest safety risks.
Can Orders Of Protection From Family Court Ever be “too short”?
I have come up with this issue several times in appeals. Until recent years, once an order of protection expired, in order to get it renewed, a petitioner would , but the petitioner would have still have to file to extend the order of protection before it expired. The classic situation where extentions are granted without any violation would be where the respondent had severely assaulted the petitioner, was in jail when the order of protection was issued, and is now released from jail. I have seen no case where the trial court was reversed for ng the order of protection too short, except for cases whee the ocurt coud have issued a 5 year order of protection based upon “aggravating Circumstances” as discussed below, but instead etered orders that lasted less than 2 years I appealed and lost a case where the Family Court made an order of protection for only 23 months, even though the trial took over a year.
The Family Court May Issue A 5 Year Order Of Protection If There Are Aggravating Circumstances
In some circumstances, New York Family Courts can issue 5 year orders of protection. A 5 year order of protection requires the Family Court to make specific findings of fact, so 5 year orders of protection can not be granted on consent and without an admission of wrongdoing. There must be a trial or hearing in order for the court to give a 5 year order. The required findings of fact must make out what they call “aggravating circumstances”.
It is usually much more difficult to get a 5 year order of protection than a 2 year order of protection, so if you are the petitioner, you will probably want to retain a good family law attorney to prosecute your case.
If you are the respondent, you probably need a good lawyer even more than a petitioner does, especially if you are a father and the order of protection affects your relationship with your child or children and/ or visitation rights or visitation orders.
Aggravating circumstances are found when the family court finds that the respondent has committed one or more family offenses n the following situations:
- Where the perpetrator uses a weapon or other dangerous instrument
- Where the victim has suffered actual significant physical injury
- Where the respondent has previously been found to have violated orders of protection issued on behalf of the victim
- Where the respondent has commited acts which constitute a course of conduct which exposes you or a member of your household to physical injury or this course of conduct exposes you or a member of your household to physical injury or constitutes other behaviour that poses a real danger to your family (which includes a spouse,child or children) or other household members.
- Where the perpetrator has already been found guilty of committing crimes against the petitioner
Things To Watch For If You are Defending 5 Year Orders
It is important to note that a 5 year order of protecion cannot be made on consent. Instead, teh Court has to make written findings of fact which support the entry of the order based upon one or more of the statutory grounds stated above. If your client h not a US citizen he could be in a really dangerous situation if the petitioner is unwilling to accept a 2 year OP on consnent without any admission of wrongdoing, when the petition alleges aggravating circumstanes. Also, a court can make a finding of aggravating circumstances even if they are not pled in the petition.
Some judge have been known to “punish” a respondent who insists on going to trial by granting a 5 year order on sketchy grounds. The “course of conduct” grounds can often justify such a finding because it can be based upon the amorphous standard of “other conduct which causes a real danger”