Orders of protection

order of protecgtion  lawyer in NYC

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In New York, while courts may issue orders of protection (also known as “restraining orders”) 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.

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Order of protection terminology

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” (who is also occasionally called the “protected party”). 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.

A “usual terms” order usually allows contact between the parties but orders the respondent to refrain from certain behaviour such as assault, menacing, stalking, harassment, etc, which is illegal anyway.

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can be issued to protect the petitioner until such time as a final order of protection is issued- or the case is withdrawn or dismissed.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 a Protection Order 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.

The possibility of a respondent having to defend two cases simultaneously, one in criminal court, and one in the family court, raises a number of legal, tactical, and strategic issues for both parties.

First of all, while the prosecutor must prove a case by the very high standard of “reasonable doubt”, in the Family Court, orders of protection are civil cases and not criminal cases, so the petitioner only has to prove her case by the much lower standard of “fair preponderance of the evidence”.

Secondly, while a criminal defendant cannot be required to testify, and his silence cannot be held against him, in a civil case, if a respondent chooses not to testify, the court can and almost always will draw what is called an “adverse inference” against him. There is also no jury in Family Court.

All of this means that, especially if you are the Respondent, you may not be well served by hiring a criminal defense attorney to represent you in the Family Court on an order of protection case, unless this attorney has also tried a large number of these cases in the Family Court and understands all of the nuances.

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 through 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 the case law continues to evolve as to what is and is not considered to be an “intimate relationship”.

The integrated domestic violence part

domestic violence collage

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 the same judge. In New York City these special courts (known as “IDV parts”) have been set up in all 5 counties.

My experience in these courts is limited largely to the Manhattan IDV Court, but from what I have seen IDV courts are much more likely to grant “family ACD’s” to the respondents than the regular Criminal Courts.

Effects of orders of protection

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.

Non Law Enforcement Employers and potential employers are not supposed to have access, but it is believed that some are able to access the registry. In NY State, there have been several unsuccessful attempts to make unauthorized access to the registry a crime.

There are also serious potential immigration consequences to having a court make findings against someone of domestic violence, if that person is not a US Citizen, especially in the current administration. Even Green Card holders can be affected by such a finding.

Also by statute, Courts are requid 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”.

Consequences of violations of orders of protection

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. 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.

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.

Finally, if you are not a US citizen, a final order of protection against you which includes findings by the court that you committed some kind of domestic violence against someone can have severe immigration consequences.

Orders of protection cases can be very serious, and whether you are the petitioner or the respondent, you should consider hiring an experienced attorney who is familiar with Protection Order cases to represent you. Call me today at (347)461-0760 for a free initial telephone consultation.

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