If you are facing violent or abusive behavior from a family member, you may be entitled to a protective order—commonly referred to as an Order of Protection. New York courts can issue an Order of Protection to limit the behavior of an “intimate partner” who harms or threatens to harm a family member. A court may direct, among other things, that the other party: stay away from you and others; have no contact; move out of your home; follow custody orders; pay child support; give up guns; and refrain from injuring, threatening or harassing you or your family. Once an Order of Protection has been issued, the violation of that order can result in immediate arrest and imprisonment. Orders of Protection generally last for one year, but courts can extend them up to five years depending on the circumstances of the case.
What Courts Can Issue Orders of Protection?
NY Supreme Court: In divorce cases, the Supreme Court has authority to grant a civil Order of Protection in accordance with Domestic Relations Law §§ 240 and 252, including a “temporary order of protection.” In order to obtain this relief, a party must file an Order to Show Cause or Notice of Motion in Supreme Court. Orders to Show Cause for Orders of Protection can be filed on an ex parte basis without giving the other party prior notice.
Family Court:New York Family Courts may also issue civil Orders of Protection. A party seeking an Order of Protection in Family Court must commence a Family Offense Petition. In a Family Offense Petition, a party can obtain a Temporary Order of Protection without providing notice to the alleged perpetrator. The Family Offense Petition is then served on the Respondent, who has an opportunity to answer and oppose the relief. A final Order of Protection is not entered until after an evidentiary hearing .
Criminal Court: New York criminal courts also have the authority to issue criminal Orders of Protection in connection with criminal proceedings.
Who Can Seek an Order of Protection?
In civil cases, the party seeking an Order of Protection must have an “intimate relationship” with the alleged abuser, such as husband, wife, spouse, boyfriend, girlfriend, or blood relative. The failure to establish an “intimate relationship” will result in the dismissal of the application for an Order of Protection.
What Must be Proven to Obtain an Order of Protection?
The party seeking an Order of Protection must establish that the alleged abuser committed a “family offense.” The law defines a family offense as conduct that violates certain criminal statutes including:
· Disorderly conduct
· Menacing in the second or third degree
· Harassment in the first or second degree
· Reckless endangerment
· Aggravated harassment in the second degree
· Assault in the second or third degree
· Attempted assault
· Criminal mischief
· Sexual misconduct
· Sexual abuse in the second or third degree
· Forcible touching
· Criminal obstruction of breathing or circulation
· Identity theft in 1st, 2nd or 3rd degree
· Grand larceny in 1st, 2nd, 3rd or 4th degree
· Coercion in 2nd degree
· Unlawful dissemination or publication of intimate image(s)
In order to prevail on an application for an Order of Protection, it is vital that the drafter of the Family Offense Petition or Order to Show Cause know the various elements of the penal statutes listed above, and that sufficient facts are alleged to establish the commission of a Family Offense. You can rely on The Law Offices of Andrew T. Coyle to competently represent you in connection with Order of Protection proceedings. Andrew has experience litigating Order of Protection applications in both Supreme Court and Family Court.