Orders of Protection

An order of protection is a court order signed by a judge or referee that directs an individual to refrain from specific offensive acts and/or behaviors against another person. It is specifically designed to protect an individual from harm without having to resort to self help. An order of protection is usually based upon allegations of domestic violence by one family member against another. By far, the most common scenario involves allegations of domestic violence between spouses, domestic partners, those in an intimate relationship and persons who have a child in common.

There are basically two types of protective orders, limited and full orders of protection. If a full order of protection is issued, it will direct the offending party to stay away from another person or place as well as directing that individual to refrain from any and all communication with the other party. If a limited order of protection is granted, the offending party can typically have contact with the other party but must refrain from certain specific offensive acts.

An order of protection may be part of a criminal proceeding or part of a civil proceeding in Supreme or Family Court. The failure to obey an order of protection can result in immediate arrest and possible incarceration.

If you and/or your child is a victim of domestic violence and seek a protective order against your abuser, or if an order of protection has been wrongfully issued against you, we can help. At the Law Offices of David Smoren, PLLC we have assisted many individuals and families in obtaining an order or protection in the context of family court proceeding and matrimonial actions. In addition, we have successfully defended many individuals who have been wrongfully issued an order of protection in criminal and family court proceedings.

Call us today for a free phone consultation or to arrange for a comprehensive office consultation to discuss your options or simply post a comment or question on the contact form.

Orders of Protection – The Basics

Orders of protection can be requested in Family Court or in Criminal Court, or both. The Supreme Court also has the authority to issue an order of protection as well, typically in the context of a divorce proceeding and at the request of one of the parties.

Criminal court orders of protection, unlike Family Court orders are typically requested by the district attorney on behalf of an individual as a result of an arrest and pending criminal charges, whereas it is typically the accuser acting as the petitioner that requests such an order in the Family Court.

An order of protection issued by Family or Supreme Court can contain one or more of the following provisions:

• Ordering someone to stay away from a specific location such as the home, school, business or place of employment of the parent, child, or any other person.
• Permitting child visitation at specific times or places so that visitation can occur which would otherwise violate the order of protection.
• Ordering someone not to commit a family offense as defined in subdivision one of section 530.11 of the criminal procedure law, or any criminal offense against the other parent, family member, or child, or from harassing, intimidating or threatening such persons.

Allowing a person to enter their residence at a specific time to remove personal belongings without it being a violation of the order of protection.

• Refraining from acts that would create an unreasonable risk to the welfare, health or safety of a child.
• Payment of reasonable attorney fees and related costs which were necessary to obtain or enforce the order of protection.
• Any other conditions which the court deems necessary to further the purposes of protection.

Supreme Court – Civil Actions

Orders of protection in Supreme Court actions are authorized by two sections of the Domestic Relations Law. Section 240 subsection 3 (DRL § 240(3), and Section 252, (DRL §252) authorizes the court to issue an order of protection in actions or proceedings seeking custody or visitation of any child of the marriage, or as ancillary relief in an action for divorce, a judicial separation, or an annulment action.

The Supreme Court is a civil court and the petitioner bears the burden of proof by a preponderance of the evidence. There is no right to a jury trial in a family offense proceeding, nor is there a right to invoke the 5th Amendment privilege against self-incrimination; the refusal to testify will result in a negative inference being drawn.

The supreme court can issue a final order or protection for up to two years and if aggravating circumstances exist or if it is found that that an existing order of protection was violated, the duration of the order of protection can be increased up to five years. When a child is involved the order can remain in place until that child is 18 years old.

Family Court – Orders of Protection

An application seeking an order of protection in Family Court is brought by filing a petition. The proceeding that follows is known as a “Family Offense Proceeding” and is governed by Article 8 of the Family Court Act. (FCA Art. 8). There is no filing fee in Family Court, the person seeking the Order is known as the petitioner and the alleged offending party is known as the respondent.

To bring a family offense petition in Family Court the parties must fall under one of the four following categories:

• They must be related by blood (consanguinity) or by marriage (affinity)
• They are currently married
• They are formerly married regardless if they live in the same household
• They have a child in common
• They are not related by blood or marriage, but have been in an intimate relationship, regardless if they lived together.

If the parties do not fall into one of these categories, the Family Court will not have jurisdiction and the petition can be dismissed.

Like Supreme Court, the burden of proof is the preponderance of the evidence and there is no right to a jury trial.

An order of protection issued by Family Court can last for up to two years. If aggravated circumstances are found, the court has the authority to issue an order of protection for up to five years and up to the age of 18 if a child is involved.

As stated above, an Order of protection in family court is obtained by filing a family offense petition against the offending party. The petition will include a sworn affidavit of the petitioner constituting the facts of the matter. The petitioner typically alleges that the offending party (respondent) committed one or more family offenses within the following categories:

• Disorderly conduct 
• Harassment 
• Aggravated harassment 
• Menacing 
• Reckless endangerment 
• Assault or attempted assault 
• Stalking 
• Criminal mischief

On the same day the petition is filed, the petitioner will be heard by a judge or referee. If there is “good cause” demonstrated, the court will issue a temporary order of protection which depending on the allegations may be a full order or a limited order against the respondent. The temporary order of protection (TOP) remains in effect until the return date, which is the date the respondent is scheduled to appear in court.

If the order of protection is a full stay away order, the police department will usually assist in serving the respondent personally with the order, and if the parties are living together, the respondent will be allowed to gather some personal effects prior to being escorted from the home.

On the return date of the petition the respondent has the right to address the court as to allegations in the petition and if the order of protection excludes the respondent from the home, an expedited hearing date will be set to determine if circumstances exist requiring such exclusion.

The court will typically extend the duration of the TOP and may also modify the provisions of the Order as the case proceeds to conclusion. With most cases, there are four possible final resolutions:

• The petitioner withdraws the petition. 
• The respondent admits the allegations described in the petition and a final order is issued.
• The respondent without admitting the allegations in the petition consents to the entry of final order of protection. 
• The respondent denies the allegations in the petition and the case proceeds to a fact finding hearing (trial). If the allegations are not proven the matter will be dismissed. If the allegations are proven a dispositional hearing will be held.

If a dispositional hearing is held, the judge will issue a order which may include any of the following:

• Suspending judgment for 6 months. 
• Placing the respondent on probation for up to 1 year and requiring the respondent to participate in a batterer’s education program which may include alcohol and/or drug treatment, and require the respondent to pay the costs of the program.
• Requiring the respondent to pay restitution of up to $10,000.00. 
• Making a final order of protection that may be effective for up to 2 years, or up to 5 years with a finding by a judge of aggravating circumstances. 
• If a violation is proven, the order of protection can be modified, and the respondent sentenced for up to 6 months in jail for each act committed in violation of the order. 
• Depending upon the severity of the violation, the case may be transferred to a criminal court where the respondent may face a substantially longer jail sentence. 

When an order of protection is in effect, the person against whom the order is made may be charged in Family Court or in Criminal Court for violating the terms and conditions. An order of protection is an Order from a judge; it is not an agreement between individuals or domestic partners. The judge is the only person who can change or end an order of Protection. If a person violates the terms of an order of protection, that person may face family court or criminal court contempt charges which could include a jail sentence of up to six months. In a family offense proceeding, the Judge may also make decisions about short-term custody and visitation with a child.

Criminal Court Orders of Protection

The Criminal Court is authorized to issue an order of protection on behalf of virtually anybody against a defendant. However, it is up to the prosecutor to decide whether to bring charges and whether to seek such an order.

The burden of proof for all criminal matters, including cases involving an order of protection in criminal court, is proof beyond a reasonable doubt. This means it is substantially harder to obtain an order of protection in criminal court than it is in Supreme or Family Court.

There are no restrictions on the relationship between the parties; criminal court can grant an order of protection to complete strangers. In other words, if the supreme and family court lack jurisdiction based on an insufficiently close relationship between the parties, criminal court is the only option.

Those accused have a right to a trial by jury, and may invoke the 5th amendment right not to testify without any negative inference being drawn.

The above is an overview of the typical proceedings, courts and participants involved in actions that seek an order of protection. These matters should not be taken lightly. If you or your children are victims of domestic violence or have suffered harm as a result of a family member or intimate partner, don’t suffer in silence, we can help.

At the Law Offices of David Smoren, PLLC we have successfully handled many proceedings that have resulted in orders of protection stopping the abuse. We have also been very successfully in utilizing a family offense proceeding as a segue to reunify broken families by incorporating training and other specialized services as part of the order of protection.

While we have successfully represented petitioners in proceeding which seek an order of protection, we have also successfully represented countless individuals that have been wrongfully and intentionally accused of serious acts of violence and abuse. We have seen parents wrongly accused of violent acts in an attempt to gain an edge in a child custody dispute as well as cases involving individuals that were wrongfully accused in an attempt by someone to gain legal immigration status in the United States.

Call us today at 718 225-6700 for a free phone consultation or to arrange for a comprehensive office consultation to discuss your specific concerns, or simply post a comment or question on the contact form.