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Orders of Protection & Restraining Orders

NY Family Court Order of Protection: Background

In New York State, you need not file a criminal court complaint, seek an arrest and meet with the District Attorney to ultimately have a court issue you a restraining order or order of protection against another person. Similarly, the local sheriff or police do not need an arrest warrant to serve you with an order of protection. New York’s Family Court Act offers a petitioner (much like a crime victim in the criminal context) the ability to obtain an order of protection in limited circumstances.  As your Family Court lawyer or order of protection attorney can explain, these restraining orders are no less viable than their criminal counterparts and offer the same level of protection.  That means, a court can provide a petitioner a full stay away order mandating that the respondent (like a criminal defendant) can’t have any contact with him or her whether they reside or work in Manhattan, Brooklyn, Queens, Bronx or any other jurisdiction throughout the State of New York or New York City. If a Family Court order of protection is violated, the respondent can be arrested by the police and charged with Criminal Contempt as either a misdemeanor or felony. A conviction can lead to jail or even time in a New York State prison. Make no mistake. Family Court orders of protection are very powerful tools both for those seeking their security and for law enforcement if needed. Similarly, individuals hauled into a New York Family Court need to protect themselves from a wrongful assault on their character, a “record” relating to the restraining order and other collateral consequences. Even worse, if the petitioner also makes a criminal complaint, that person can find him or herself battling both the Family Court and the Criminal Court in the Integrated Domestic Violence Court that sits in every county.

Understanding the Order of Protection

If your former spouse, sibling or even short term girlfriend or boyfriend whom you had an intimate relationship with is harassing you or committing some other offense that violates the Family Court Act (called a family offense), you can get either a limited or full order of protection. However, merely because you want one does not mean a judge will grant you one. Upon arriving in Manhattan, Brooklyn, Queens or Bronx Family Court, you must draft and submit a petition. This is very similar to a formal complaint filed with the police, but differs in that you must personally go before a judge. It is wise and prudent to first discuss your basis and cause to make the request with your attorney. In fact, instead of writing out the petition by hand without any guidance when you get to court, it is best to seek counsel so that he or she can draft your petition in advance. An experienced Family Court attorney can set forth all the factors in a clear and concise way to maximize the likelihood the judge will grant your petition and issue an order of protection. Also, if you fail to address all the prior abuse, you may be precluded from later asserting these claims.

After submitting your petition you will see a judge who will take your statement and review your papers. At that time, the judge will either grant your request or deny your request. There must be good cause for the judge to provide you an order of protection. If the judge does so, you will have a temporary order of protection until there is a trial or hearing. Either way, you will be given a date to return and will be required to serve the respondent so that he or she comes to court on the date the judge mandates.

Types of Family Court Orders of Protection

Just like in a NYC Criminal Court, Supreme Court, County Court or local Justice Court, a judge can issue or grant a full or limited order of protection in Family Court. The full order of protection is a complete stay away. That means no contact at all in any capacity directly, indirectly or from a third party. No calls, texts, visits…nothing. The limited order allows for “normal” contact. That is, regular every day reasonable contact. However, should you harass, threaten or assault that person (or if that person does this to you), there will not only be a potential criminal charge for the actions, but a Criminal Contempt charge for violating the order. Again, the former category - the full order of protection - prohibits any contact at all while the latter limited order has certain conduct which is prohibited. Make sure you fully understand the parameters and review them with your lawyer. It is no defense to violating and order of protection because you didn’t realize the extent of the protection offered to the petitioner.

Resolving and Finalizing a Family Court Petition for an Order of Protection

No two cases are the same. Each case requires a unique analysis and advocacy before a judge. Generally, you can fight the case and ask for a trial or you can accept an order of protection in favor of the petitioner on consent without any finding of fact. Alternatively, the respondent can drop the order. This is much different than criminal court where the prosecution has the reigns of the restraining order and the criminal case. While the fact that you will have more control as a petitioner is one reason why some people decide Family Court is better than going to the police to get an order of protection, there are other concerns or issues they may impact your decision that you should discuss further with your attorney.

Whether you are a petitioner or respondent, it is essential to have skilled legal representation. The last thing you want to do is file or respond to an order of protection improperly especially where the other side has his or her own counsel. Because the Family Court is inundated with cases, hiring an attorney can potentially expedite a resolution or play to your strengths and your adversary’s weakness.

Protect yourself. Protect your name. Don’t wait until you are in court to commence your defense or get your petition in order. Educate yourself on the law and let Saland Law’s experience work for you.

Call the New York order of protection lawyers and former New York City prosecutors at (212) 312-7129 or contact us online to aid you in securing a restraining order or to defend you against a wrongful granting of an order of protection.

New York Criminal Lawyer Blog - Orders of Protection
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