Guide To New York Family Court Orders Of Protection

police car responding to domestic violence complain

If you have a restraining order which has been filed against you in the New York City Family Court, you should be aware that these can be very serious cases with serious consequences.

 If you are trying to get a restraining order in family court, the district attorney will not be involved, so you should consider hiring an experienced attorney to help you prosecute the case.

In New York State, 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 issue orders of protection without any other case being filed. Family Court orders of protection are intended to prevent domestic violence, and threats of violence.

Orders of protection can sometimes save lives!

I am a family law attorney with over 25 years experience. However I am not taking new cases at this time and do not expect to be taking new cases in the foreseeable future.

Looking For A Lawyer With Experience Handling Restraining Orders ?

The Family Court can issue temporary child support orders in favor of the petitioner in 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 the courts to order forensic custody evaluations  in a custody case.

Because of the importance that New York Courts give to allegations of domestic violence, it is very important to retain an experienced attorney who has tried many cases which include a  restraining order.

Order Of Protection Terminology

A “stay away” or “full stay away” order of protection prohibits personal contact and may also prohibit all contact (including letters, telephone, emails, etc) between the petitioner and the respondent.  The party seeking a restraining order in Family Court is called the “petitioner’, while the party alleged to have violated the penal law is called the “respondent”. 

A restraining order or “stay away” order typically orders the respondent to stay away from the petitioner, the petitioner’s home, the petitioner’s children or other 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 alleged perpetrator of domestic violence from the home. Orders of protection 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, assault, menacing, stalking, or harassment of the alleged petitioner, threatening the petitioner, or destroying the petitioner’s property, without prohibiting contact. This is sometimes called a “usual terms” order. 

A final order of protection is granted after a court hearing (trial), or without a hearing on consent of both parties. A temporary  order of protection can be issued to protect the petitioner until a final order of protection is issued.

Final restraining orders are usually good for two years, unless there is an order on consent where the parties and the judge agree to less 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 5 year orders of protection. Although I have personally never seen it, the Family Court can also order the respondent into a batterer’s program. 

 parents having violent argument in front of small child

parents having violent argument in front of small child

Family Court Restraining Orders- Things You Must Know

Today, a victim of domestic violence which involves a family offense can proceed in both the criminal court and the family court at the same time. The victim of abuse can 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 family court, raises a number of legal, tactical, and strategic issues for both parties.

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.

While the respondent has significant rights, including the right  to  notice of the charges or allegations made against him, the right to conduct cross-examination of any witnesses who testify against him, and to make both an opening statement and a closing argument at trial,  order of protection cases in Family Court are still hard to win . 

This is because a  petitioner can actually get a restraining order without third party witnesses to the alleged abuse, and without having photographs, videos, medical records, or any evidence at all other than the petitioner’s own sworn testimony. However, if a victim of domestic violence has videos showing the abuse, photographs of injuries or medical records, it is very likely that the Family Court will issue a full stay away order of protection. 

Additionally, while the prosecutor or Assistant District Attorney (“ADA”) must prove a criminal case by the very high standard of “reasonable doubt”, in the Family Court, orders of protection are civil cases,  so the petitioner only has to prove his or her case by a much lower standard of proof, which is called a “fair preponderance of the evidence” (more likely than not).

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”.  While a spouse was definitely included , an ex spouse was not.

The law was also amended in 2008 to include parties who have an “intimate relationship” with the petitioner. A party who seeks an order of protection based upon an intimate relationship should spell out the nature of the relationship in the petition, although stating the relationship in general terms, such as “engagement relationship” or “dating partner” is sufficient. The “new” law does not define what is meant by an “intimate relationship” and the case law continues to evolve as to what is considered to be an “intimate relationship”. Obviously, a boyfriend/ girlfriend or dating partner counts as an intimate relationship, but not someone who just a coworker, neighbor, or who happens to go to the same church as the petitioner.

Commencing A Family Offense Action In Family Court

lawyers conferencing order of protection case on courthouse steps

lawyers conferencing order of protection case on courthouse steps

Under the Family Court Act, the family court has jurisdiction to hear cases involving claims of crimes which are also violations of certain specific sections of the criminal law, which are called “family offences”, and issue temporary and final civil orders of protection.

These crimes are mostly misdemeanors or violations, and include assault, sexual offense crimes, stalking, menacing, strangulation, obstruction of breathing, malicious destruction of property, harassment, and others.

“Harassment” is the most vague of all the family offenses. It includes a crime that used to be referred to as “harassment by telephone”, which is when someone contacts a person repeatedly by phone calls, text messages, or other means, for the sole purposed of annoying or alarming them, with no other legitimate purpose.

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. The filing process, if done in court, is simple and straightforward. The petition room has translators available, and  there are always petition clerks available who are notaries. If you file online, there are sample you can use. It is important, however, that your petition makes out one or more family offenses, as not every crime is considered to be a family offense.  

 Once the petition has been filed, the petitioner will “appear” in court, either in person or virtually, and the judge 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.

Anyone other than the petitioner who is over the age of 18 can serve the papers, and written instructions about how to fill out the documents proving service are included in the summons packet, but it is best to hire a process server, or the sheriff. If the alleged batterer lives in NYC, the sheriff will serve free of charge.

When the petitioner first sees the judge, the judge may issue an ex parte temporary restraining order excluding the respondent from the home (if the parties live together). The judge will have to be convinced that this is an emergency matter, to exclude someone from his or her home.  Since the respondent has not yet been served with any papers, he will not have an opportunity to object to the temporary order. 

However, the petitioner will be given only a short time to have the respondent served with the papers and the respondent will be entitled to contest the exclusion at a court hearing which will be scheduled within a few days.

Family Offense Cases And The Integrated Domestic Violence Part

domestic violence collage

domestic violence collage

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, child custody, 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.

Effects Of A Restraining Order

In New York, all Orders of protection, whether temporary or final, are registered in a computerized registry. Courts and law enforcement officers 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  have been able to access the registry anyway.

There can be serious potential immigration consequences of having a court make findings of domestic violence against someone who is not a US Citizen. Even Green Card holders can be affected by such a finding and may even be at risk of deportation.

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.

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 orders of protection were issued on consent and “without an admission of wrongdoing”.

Additionally, an order of protection filed by a custodial parent can include an order of protection in favor of a child or children, which may affect custody and visitation between the respondent and the child or children.

Legal Consequences Of Violations (Violations Are Crimes)

attorneys view of judge from the bench

attorneys view of judge from the bench

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 for civil contempt (violating a court order ) with up to 6 months of jail time for each incident of violation. However, it is rare that the Family Court will order any significant jail time for violations. 

By statute, certain violations of orders of protection can be prosecuted in the Criminal Court as felonies. Felony charges, especially ones involving domestic violence, often result in jail time. Penalties can go up to 7 years jail time for each  violation proven. 

If you are the victim of serious or repeated domestic abuse, or have a stalker, you should not just rely on a restraining order and you should consider taking other steps to protect yourself from danger, such as changing the locks on your home, changing your phone number, or, in the most dangerous situations, a safe address or even to 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 or free services such as assistance with housing problems, or domestic violence counseling. There are actually a number of resources that are available to victims of domestic violence, including special police officers trained in domestic violence dynamics, and, when funding permits, free attorneys in some cases.  On occasion, big law firms will take cases pro bono representing victims. They will typically send several attorneys to court, although they may be relatively young and inexperienced.