New York Family Court Act Article 8, Section 842: Orders of Protection

The Family Court presiding over a Family Offense petition under Article 8, Section 842 of the New York Family Court Act may issue an Order of Protection against the respondent in the proceeding who is being accused of committing a criminal or quasi-criminal offense against a family member or intimate relation. An order of protection, sometimes referred to as a restraining order, usually requires that one party have no contact whatsoever with the other, and stay away from the other person's home, work, school, etc. This prohibition includes any contact or attempted contact by phone, Facebook, Instagram, Twitter, fax, email, or even contact through third parties, such as a mutual friend or another family member.

Violating an Order or Protection

If the terms of a Family Court order of protection are violated, just as with an order of protection issued by a criminal court, the respondent or the person who was prohibited from making the contact can be arrested by the police and charged with Criminal Contempt as either a misdemeanor or felony. A Contempt conviction can lead to jail or even time in a state's prison. The restricted party can also be brought back before the Family Court and held in civil contempt and jailed for a period of time.

Requesting an Order of Protection

Orders of protection on a Family Offense petition are typically issued when the filing party first goes to court, without the person against whom the order is being issued present. This is referred to as an "ex parte" application or petition for an order of protection and is routinely done with an attorney. This means that only one side is there, in this case the petitioner, and the respondent has not opportunity to be heard. This is allowed for purely practical considerations, such as the inability of one party to force the other party to appear on a certain date and time. However, the issuance of the order of protection alone is not enough for it to go into effect and prohibit the respondent from having contact with the petitioner.

For the order of protection to be effective, it must first be personally served on the respondent, meaning it is physically handed to the respondent by a person other than the petitioner. The judge who issued the order of protection will also schedule an initial hearing for all parties to attend. That summons must also be served on the respondent in the same way as the Order of Protection.

First Court Appearances Post-Service of an Order of Protection

At the first hearing, or a subsequent hearing, the person being accused with a crime or violation can admit the allegations and agree to a long-term order of protection, or deny the allegations, in which case the Court will schedule a fact-finding trial or "Hearing." At that hearing the accuser has the burden of presenting evidence that the other person committed the offense, which can be nothing more than their own word and testimony. The respondent will have an opportunity to challenge that evidence and present evidence of their own, much like at a criminal trial.

Whether you are seeking an order of protection as a petitioner or a defending yourself against a restraining order in New York as a responded, the New York Family Court lawyers and former Manhattan prosecutors have both the experience and knowledge to put you in the best place to secure the safety you need or challenge wrongful allegations that can have embarrassing and detrimental consequences to your career and livelihood.

Call the New York family law lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.

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