Are You Looking For A Lawyer Who Has Experience Handling Restraining Orders?
In New York State, while courts may issue orders of protection (also known as a “restraining orders”) as part of a divorce or a criminal court case, the Family Court also has the authority to issue orders of protection without any other case being filed. Family Court orders of protection are intended to prevent violence, and threats of violence.
The Family Court also has the power to issue temporary child support orders in favor of the petitioner on an order of protection case even if no child support petition has been filed.
The existence of orders of protection is something that courts are required to look into in custody and child visitation cases, and the presence of domestic violence may require courts order to order forensic custody evaluations in a custody case.
Order Of Protection Terminology
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. Although the official name for these types of cases are “orders of protection”, they are known in most other states, and generally in the news, as “restraining orders” so I use these terms interchangeably.
A restraining order typically orders the respondent to stay away from the petitioner, the petitioner’s home, family members, business or workplace, school, and house of worship.
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. The order can also require the alleged offender to surrender any firearms in his possession to the police.
Alternatively, a restraining order may merely order the alleged abuser to refrain from certain conduct including, assaulting, menacing, stalking, or harassing the alleged petitioner, threatening the petitioner, or destroying the petitioner’s property, without prohibiting contact.
This is sometimes known in the Family Court as an order “on the usual terms and conditions”.
A final restraining order is granted after a court hearing (trial), or without a hearing on consent of both parties. A temporary restraining order 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 restraining orders 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 gun or other weapon or if the victim sustains serious physical injury) it can issue an order of protection for a duration of up to 5 years.
Years ago a victim of certain domestic violence crimes was required to choose either 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 which involves a family offense can, and often does, proceed in both the criminal court and the family court at the same time. The victim of abuse 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 or Assistant District Attorney (“ADA”) 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 a much lower standard of proof, which is called a “fair preponderance of the evidence” (more likely than not).
People often misunderstand what the word “proof” means in the law. “Proof” can just mean that the judge believes the testimony of the petitioner.
This means that a petitioner can get a restraining order without having any witnesses to the alleged abuse, and without having any photographs, videos, medical records, or any evidence other than the petitioner’s own sworn testimony, provided that the judge believes the testimony.
Courts will usually allow the respondent’s prior criminal record to be considered This highlights the necessity for respondents to have representation.
While the police department of the City of New York has traditionally had extremely wide discretion as to whether or not to make arrests, a “must arrest” policy is in effect for violations of restraining orders, which is incorporated in the New York City police Patrol Guide.
Every police precinct has a special officer, who is usually female, called a “Domestic Violence Officer”, who has special training about domestic violence incidents, and the special dynamics of domestic violence.
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, but the final decision of the Family Court can be appealed.
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 restraining orders was limited to situations where the parties were either related to each other through blood or marriage, where each was a parent of one or more children in common, or involved a family member or other household member.
Due to changes in the law, 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”. Obviously a spouse or ex spouse counts, as does a boyfriend girlfriend or dating partner or former dating partner. It does not include someone who is a complete stranger, but might include a co-worker or roommate.
Commencing a family offense action in family court (with or without a lawyer)
In New York State, an order of protection case in the family court is called a “family offense proceeding” because the family court has jurisdiction to hear cases involving claims of crimes which are also violations of certain sections of the of the criminal law, which are called “family offenses”.
These crimes include assault, sexual assault, stalking, menacing, strangulation or obstruction of breathing, malicious destruction of property, harassment, and others.
Cases are commenced when the petitioner files a Family Offense Petition. Usually a clerk in the Family Court petition room assists the petitioner in drawing up the paperwork, but sometimes the paperwork is prepared by a family law attorney. Once the petition has been filed the petitioner will “appear” in court, either in person or virtually, and the court will usually enter a temporary order of protection in favor of the petitioner, and will generate a summons for the respondent to “appear” in court on a future date, and will authorize service of the papers.
When the petitioner sees the judge, the court may issue an order excluding the respondent from the home (if the parties live together) without the respondent having any opportunity to object. This is called an “ex parte” order.
However, the petitioner will be given only a short time to have the respondent served with the papers and the respondent with be entitled to contest the exclusion at a court appearance which will be scheduled within a few days.
While the temporary order will “take effect” immediately, the court cannot punish the respondent for any violation of the order of protection if he or she has not yet been served with a copy of the petition.
The family court, upon request, will order service by the sheriff, free of charge in most circumstances. The petitioner is free to hire and use a private process server, or can have anyone who is over 18 and not a party to the action serve the papers on the respondent.
Restraining Orders And 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 Supreme Court parts 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 A Restraining Order
In New York, all Orders of protection, whether temporary or final, are registered in a computerized registry. Courts, law enforcement such as the Police, and Probation Departments have access to the registry.
Employers and potential employers (other than the police department, FBI, etc) are not supposed to have access, but it is believed that some employers have been able to access the registry.
There are also serious potential immigration consequences to having a court make findings of domestic violence against someone who is not a US Citizen, especially in the current administration. Even Green Card holders can be affected by such a finding.
Al,o 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”.
Legal Consequences Of Violations Of Restraining Orders
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 (violating a court order ) 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. A felony, especially one involving domestic violence, often results in jail time.
If you are the victim of serious or repeated domestic violence you should not totally rely on having an order of protection but should consider taking other steps to protect yourself, such as changing the locks on your home, changing your phone number, or in the most dangerous situations, moving to a confidential address or even a domestic violence shelter in a different area.
There are several organizations in New York City that provide victims of domestic violence advice and referrals for free services such as helping them come up with a safety plan, assistance with housing problems, or giving referrals for domestic violence counseling. the future. In some situations, these organizations may even provide free attorneys, however these are often new and d relatively inexperienced.
Orders of protection cases can be very serious. I have had many clients who were petitioners, and many who were respondents, , 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.