Are you looking for a NYC Order of Protection Lawyer?
In New York State, while courts may issue orders of protection (also known as a “restraining order”) 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.
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” . 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. It typically orders the respondent to stay away from the petitioner, the petitioner’s home, work place, 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.
Alternatively, an Order of Protection may merely order the respondent to refrain from certain conduct including, assaulting, menacing, stalking, or harassing the alleged petitioner, make threats to 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 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can be issued to protect the petitioner until such time as a final order of protection is issued- or the case is withdrawn or dismissed.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 an order of protection for a term 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 the much lower standard of “fair preponderance of the evidence”.
However, violations of temporary or final orders of protection, even if they are civil orders and not criminal orders, are still orders that must be obeyed and can be considered contempt with possible jail time.
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 has been in effect for violations of orders of protection, which is incorporated in the New York City police ‘s handbook, called the Patrol Guide.
Also 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.
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”. Obviously a spouse or ex spouse counts, as does a romantic partner or former romantic partner.
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” case because the family court has jurisdiction to hear cases involving claims of violation of certain sections of the of the criminal law, which are called “family offenses”.
These family offenses include 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. 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, will generate a summons for the respondent to “appear” in court on a future date, and will authorize service of the papers.
While the temporary order of protection 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 tree 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.
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 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. Employers and potential employers (other than the police department, FBI, etc) are not supposed to have access, but it is believed that some employers may be 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 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.
Also 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 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.
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, hanging 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 you victims of domestic violence advice, help and referrals for free services such as helping you come up with a safety plan, assistance with housing problems, or giving you a referral for domestic violence counseling, so that you do not end up in a similar situation in the future.
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 or skype consultation.