How To Try An Order Of Protection Case In NY Family Court

courtroom in family court

An order of protection, also known as a restraining order , or “protection order”, is a court order that is intended to protect someone from harm,  danger of harm, or harassment by another person. In New York, family courts have jurisdiction over cases of domestic violence, including orders of protection. This article will provide guidance for petitioners who are seeking an order of protection in a New York family court. It will discuss the types of evidence needed to prove the case, the role of the petitioner in making opening and closing statements, how to organize evidence for trial, and how to cross-examine the respondent and the respondent’s witnesses.

The Family Court will have jurisdiction to hear the case as long as the parties are either related by blood or marriage, are members of the same household, or have an “intimate relationship” which in most cases is a sexual or dating relationship.   Family Court does not charge any filing fee. The family court has interpreters readily available for Spanish, French, Chinese, Russian, and others, depending on the county where the case is heard. For other languages, the family court can order translators from a general pool. this pool covers practically all languages. 

All Family Courts, at least in NYC, have a self-help center to assist pro-se litigants.  This center includes attorneys who will spend up to an hour giving free legal advice, although they do not appear in court to represent litigants. Many litigants do qualify for free attorneys, which are assigned by the court.  Many litigants who can afford their own lawyers will prefer to hire private counsel, because they believe private counsel can best protect their interests. The court will respect  the decision of a party to retain private counsel. 

 In general, the staff members at the NYC Family Courts are very helpful. However, It is sometimes challenging to reach someone on the phone, or to reach the right person.  

Service Of The Petition

The petitioner must file a petition, and the respondent has to be served with a copy of the petition in order for the case to go forwards.  It is possible to file in the courthouse or file electronically. If the petitioner files in the courthouse, he or she will be assisted by a clerk, and a clerk will be available to notarize the petition.  Service can be done by anyone other than the petitioner as long as that person is at least 18 years of age. 

The petition must allege, and the petitioner must prove at trial, that the respondent committed one or more “family offenses” which are listed in the Family Court Act. These family offenses are certain specific crimes. However, the petitioner only has to prove  that the respondent committed a crime by a preponderance of the evidence, and does not have to prove a crime beyond a reasonable doubt. 

Typical crimes charged include stalking, cyberstalking, assault, attempted assault, menacing, malicious destruction of property, harassment, strangulation, and obstruction of breathing. There are various types of harassment, which include threats of violence and other actions which are done with the sole intent of harassing or alarming someone and have no other legitimate purpose. Cases of cyberstalking and workplace harassment have become more common in recent times. 

The family courts also try petitions alleging that protection orders have been violated. Although the Family Court can send a violator to jail for up to six months, this is quite rare. 

Types of Orders of Protection

In New York, there are several types of orders of protection that a petitioner can request. These include:

  1. Full Order of Protection: This type of order prohibits the respondent from committing any acts of violence or threatening behavior against the petitioner. It can also prohibit the respondent from contacting the petitioner or coming near their place of residence or employment.
  2. Limited Order of Protection: This type of order may limit the respondent’s contact with the petitioner to specific circumstances, such as child custody exchanges or court-ordered visitation.
  3. Stay-Away Order of Protection: This type of order prohibits the respondent from coming within a certain distance of the petitioner or their residence, school, place of worship, or workplace. 
  4. No-Offensive-Contact Order of Protection: This type of order allows the respondent to have contact with the petitioner, but prohibits them from committing any offensive or harassing acts against them.

Proving a Case for an Order of Protection

In order to obtain an order of protection, the petitioner must prove that he or she has been a victim of domestic violence, harassment, stalking, sexual assault, or any other act that creates fear in a person for their safety or well-being. The petitioner must provide evidence to support their claim, such as:

  1. Testimony of Witnesses: Witnesses who have personal knowledge of the incidents that led to the petition for the order of protection can provide testimony to support the petitioner’s case. This can include family members, friends, neighbors, and coworkers.
  2. Photographs and Videos: Photographs or videos of any injuries, damage to property, or other evidence of violence can support the petitioner’s case.
  3. Documentary Evidence: Any documents that support the petitioner’s claim, such as police reports, medical records, or emails and text messages, can be used as evidence in court, subject to evidentiary rules such as hearsay and the best evidence rule/ 
  4. Affidavits: An affidavit is a sworn statement by the petitioner or a witness that provides details about the incidents that led to the request for the order of protection. Affidavits are usually not allowed as they are considered to be hearsay.

Opening and Closing Statements

Even though there is no jury, a petitioner on a Family Court order of protection  case has the option to make an opening statement at the beginning of the trial, which provides an overview of the case and outlines the evidence that will be presented. This can be helpful in setting the tone for the trial and providing the judge with a clear understanding of the petitioner’s perspective.

Similarly, the petitioner can make a closing statement at the end of the trial, which summarizes the evidence and arguments presented and emphasizes why the order of protection should be granted. The closing statement is an opportunity for the petitioner to persuade the judge that they have met the burden of proof and that an order of protection is necessary.

Organizing Evidence for Trial

It is important for the petitioner to organize all the evidence in preparation for trial. This includes creating a list of witnesses, collecting any photographs or videos, and organizing any documentary evidence or affidavits. It can be helpful to create an outline of the case that includes the key points that will be made during the trial.

Cross-Examination

During the trial, the respondent and their witnesses may be called to testify.

. The petitioner or their attorney has the opportunity to cross-examine them, which involves asking questions to challenge their testimony and credibility.

When cross-examining the respondent or their witnesses, it is important to remain respectful and professional. Questions should be focused on the specific incidents that led to the request for the order of protection and should not stray into irrelevant or personal territory. Cross-examination can be an effective way to challenge the respondent’s version of events and to elicit information that supports the petitioner’s case.

The Role of the Judge

The judge in a New York family court has the responsibility of deciding whether to grant an order of protection based on the evidence presented at trial. The judge will consider the circumstances of the case, the evidence presented, and any applicable laws or precedents.

If the judge grants the order of protection, it will be in effect for a specific period of time, usually two years. The order will specify the types of behavior that the respondent is prohibited from engaging in and may include provisions for child custody, visitation, and child support.

Conclusion

Obtaining an order of protection in a New York family court can be a complex and difficult process. Petitioners must provide evidence to support their claim and present their case in a clear and organized manner. By following the guidelines outlined in this article, petitioners can improve their chances of obtaining an order of protection and protecting themselves from domestic  violence.