This article is intended to give general information only about New York Law, and is not intended to provide actual legal advice. For legal advice you must have a full consultation with a licensed New York State attorney who has experience handling order of protection cases.
Filing an Order of Protection in New York Family Court on Behalf of a Child or Minor
When a child is in danger or experiencing abuse, it is important to take immediate action to ensure their safety. One option is to file an order of protection in family court on behalf of the child. This article will discuss the process of filing an order of protection on behalf of a child, including who can file, the legal grounds for filing, the role of the child in the process, the advantages and disadvantages of filing an order of protection, and statistics related to the number of orders of protection filed in family court on behalf of children in New York.
Who Can File an Order of Protection on Behalf of a Child?
In New York, any person who has legal custody of a child or who is authorized to make decisions regarding the child’s welfare can file a family offense petition and request an order of protection on behalf of the child. This includes parents, guardians, and foster parents.
Who Signs the Petition?
The person who files the family offense petition is called the petitioner. If the child is under the age of 18, the petitioner must sign the petition on the child’s behalf. If the child is 18 or older, they can sign the petition themselves. However, if the child is not capable of signing due to mental or physical incapacity, the petitioner may sign on their behalf.
Legal Grounds for Filing an Order of Protection on Behalf of a Child
The legal grounds for filing an order of protection on behalf of a child in New York are similar to those for adults. The petitioner must show that the child has been the victim of a family offense, which includes acts such as assault, harassment, stalking, and sexual abuse. In addition, the petitioner must show that there is a likelihood that the child will be the victim of a family offense in the future if the court does not issue an order of protection.
Will the Child be Assigned Their Own Lawyer?
In some cases, the family court may appoint a lawyer to represent the child’s interests. If the child is an infant or very young and not yet verbal, the family court may not assign the child an attorney. The role of the child’s attorney is to advocate for the child’s wishes and best interests and ensure that the child’s rights are protected.
Will the Child Have to Testify in Court?
In some cases, the child may be required to testify in court. However, the court will take steps to ensure that the child is protected and that their testimony is given in a safe and supportive environment. For example, the child may be allowed to testify outside of the courtroom or may be permitted to testify via closed-circuit television. In addition, the court may appoint a special advocate to assist the child in the process and ensure that their rights are protected.
Advantages and Disadvantages of Filing an Order of Protection on Behalf of a Child
One advantage of filing an order of protection on behalf of a child is that it can provide immediate protection for the child. Once a temporary order is issued, the respondent (the person against whom the order is filed) may be legally required to stay away from the child and refrain from any contact or communication with the child. In addition, the order may provide for temporary custody or visitation arrangements to ensure the child’s safety.
One disadvantage of filing an order of protection is that it can be a lengthy and complicated process. It requires the petitioner to provide evidence of the family offense and the likelihood of future offenses. In addition, the respondent has the right to contest the order and present their own evidence and witnesses. This can result in a lengthy and contentious court battle.
In many cases, a child will be reluctant or even unable to testify against a parent or guardian, even over closed circuit television. Unless there are other witnesses of the abuse or neglect, or video tapes, it may be impossible to get an order of protection from the family court because of the hearsay rule.
An order of protection can have long-term consequences for the parties involved. If the respondent is found to have committed the family offense, it can impact their ability to obtain child custody or visitation rights in the future. It can also impact their ability to obtain employment or housing, as the order will appear on their record. Depending on the relationship between the petitioner and the respondent and the severity of the issues, the petitioner may not care about consequences to the respondent.
Calling the Neglect and Abuse Hotline vs. Filing an Order of Protection
In some cases, people may choose to call the New York State Child Abuse Hotline to report abuse or neglect of a child. While this is certainly an option, filing an order of protection in family court can provide more immediate and targeted protection for the child. The family court process allows the court to issue a court order that specifically prohibits the respondent from contacting or communicating with the child. In addition, the court can provide for temporary custody or visitation arrangements to ensure the child’s safety.
On the other hand, if child welfare gets involved investigating allegations of child neglect or abuse, the abuser will likely be intimidated and will may stop whatever he or she was doing to the child. If a child neglect case is filed, the family court can enter all appropriate orders, which include temporary orders of protection. Additionally, there are special evidentiary rules in child neglect or abuse cases which allows the testimony of the child in evidence without requiring the child to testify.
Statistics Related to Orders of Protection Filed in Family Court on Behalf of Children
According to the New York State Unified Court System, there were 17,347 family offense cases filed in family court in 2020. Of those cases, 9,220 included a request for an order of protection. While the court system does not specifically track the number of orders of protection filed on behalf of children, it is likely that a significant percentage of these cases involved children as the victims of family offenses.
Conclusion
Filing an order of protection in family court on behalf of a child can provide immediate and targeted protection for a child who is experiencing abuse or neglect. While the process can be complicated and time-consuming, it can provide the necessary legal framework to ensure the safety of the child. It is important to remember that there are resources available to help individuals navigate the court system, including legal services, victim advocates, and other support services.
