Orders of Protection (Family Offense)
In Fear of Danger
In New York, when a family member or someone with a “intimate relationship” puts someone in fear of immediate danger, that person may seek an order of protection by filing a family offense petition with their local family court.¹ A family offense petition is processed as an emergency application and will allow the person filing the application to see a Judge on that same day.
When filing a family offense petition, it’s important that the allegations are plead with specificity. This means that the petition should clearly state the details of the incidents, along with dates and times. In order for the petition to be granted and an order of protection to be issued the allegations must rise to the level of an applicable violation or crime under the New York Penal Code. (FCA Sec. 812)
Who is Considered a Family Member or Someone with an Intimate Relationship?
In order to qualify for an order of protection in the New York Family Courts, the Respondent (or person who committed the alleged violation and/or crime) must be a member of the same family, household or share an intimate relationship. This includes people who are biologically related or related through marriage. It also includes people who have formerly been married, regardless of whether they still reside in the same household, as well as people who have a child in common. An intimate relationship will also be found if the parties have been involved in an intimate or romantic relationship at any point, determined by the duration of the relationship and frequency of the parties’ interactions.
What is the Process for Filing a Family Offense Petition?
A litigant may petition the court self-represented or hire an attorney to file the application on his or her behalf. If the application is filed “pro se” the litigant will fill out forms in the courthouse and wait while the court clerk prepares the petition. In the event that an attorney files on behalf of a client, that attorney will prepare the documents in advance and file them in the courthouse. The court will direct the litigant and/or the attorney to a Judge’s part where the matter will be heard that day. Initially, the Respondent (or person who is the alleged perpetrator of the violation and/or crime) will not be notified. This is known as an ex parte, or one-sided, application. The litigant, with or without an attorney will wait for the Judge to call his or her case. The Judge will then review the petition’s allegations and give the Petitioner and/or attorney an opportunity to plead the case. The Judge will then make an immediate determination as to whether an order of protection will be issued.
The Judge may decide that there is no merits to the allegations and dismiss the petition right then and there. Oftentimes, if the allegations in the petition are not strong, the Judge may deny the initial request for an order of protection, but allow the underlying petition to stand. In those circumstances, a second court date will be scheduled. The Petitioner will be required to serve the petition and come back when the Respondent is present in order for the court to determine whether an order of protection is appropriate. In the event that the Judge finds an order of protection is appropriate he or she will decide the level of that order of protection. The lower level is known as a “refrain from” also known as a “usual terms order.” It does not restrict one person coming into contact with the other, but rather states that in the event that the respondent commits a violation or crime against the Petitioner that an immediate arrest will be made. The higher level order of protection is known as a “stay away” or full order of protection, which bans any communication or contact between the parties, including any third party contact. In the event that so much as a phone call or text message is sent, this will be seen as a violation of the terms and lead to an automatic arrest. In the event that either form of an order of protection are granted, it will be on a temporary basis, usually lasting through the next court date.
So long as the underlying petition is not dismissed, another court date will be issued and the Petitioner and/or their counsel will be tasked with having the Respondent served with the petition and/or the order of protection. As soon as the order of protection is served on the Respondent, it becomes active, so it should be done as quickly as possible. Once the petition is served, both parties will be required to appear at the next court date where the court will hear both sides of the story and attempt to settle the issue. In the event that the issue cannot be resolved, it will be set down for a hearing. It is the burden of the petitioner to prove the allegations are true and that they rise to the level of a crime or violation. While the Respondent has the right to plead his or her case, in fact he or she can choose to do nothing at all, just like in a criminal case. Following a hearing, the Judge will decide if a final order of protection should be granted and how long it should be in place. The length of an order of protection depends upon the severity of the Respondent’s actions. Generally, it may last one year, though there are certain factors that if met can extend it as long as five years.
What Happens if the Parties are Presently Residing Together?
In the event that the Petitioner and Respondent are residing together, the situation may require an immediate exclusion hearing. This will only apply if the Judge grants a full stay away order of protection. Because a person’s liberties are being challenged, an exclusion hearing must be scheduled immediately. The Respondent will generally be served by the NYPD and removed from the home temporarily, while the parties awaiting the exclusion hearing. The parties will then return within 24 to 72 hours in order for both sides to be heard as to whether the Respondent should remain excluded from the home.
Although an exclusion is inconvenient, even a lower level order of protection signifies that it’s not safe to live with or even communicate with the other party. After all, any allegation can lead to an arrest. I generally recommend that Respondents to a family offense proceeding avoid any contact with the Petitioner, regardless of whether he or she acknowledges the allegations to be true.
What Happens if there is a Violation of the Order of Protection?
While it may not seem fair, the Petitioner may still contact the Respondent even if there is an order of protection in place. However, any response may be considered a violation. The NYPD only needs an allegation to make and arrest, and will sort out a truth from a lie down the road. Violating an order of protection will not only lead to automatic issues in the family court matter, but will also lead to an impending criminal matter. It is extremely important that a Respondent takes no actions that could potentially be misconstrued as a violation of the order of protection. For this reason, family offense matters should never be navigated without the help of an attorney.
Filing family offense petitions should be reserved for serious threats of danger. The New York court system is inundated with court filings and Judges (or jurists) are not happy when someone files a frivolous petition. Family offense petitions should never be used as a weapon, but rather should be reserved for people who feel in danger of their immediate safety. Speaking with an experienced attorney can help you determine if your specific set of circumstances rise to the level of a family offense.
If you have questions about filing or defending a family offense, please feel free to contact my office for more information. You can schedule your free consultation by phone or directly through my website at your convenience.
Parties going through a divorce can also file in the Supreme Court