Orders of Protections/Family Offense Proceeding (O Petitions)
Orders of Protections can be issued by the Family Court to protect people from domestic violence, harassment, and stalking. Orders of Protections are sometimes necessary to protect a person who is suffering abuse at the hands of a family member. Unfortunately, Orders of Protection are sometimes also used maliciously by one person to try to gain the upper hand in a custody proceeding or a divorce.
Simon & Milner, as experienced Family Law attorneys have participated in many Family Offense Proceedings. We are committed to fighting hard to get you an Order of Protection when it is necessary for your safety. By the same token, we are equally committed to vigorously defending you in a Family Offense Proceeding if you have been wrongfully accused of committing a Family Offense.
What Exactly is an Order of Protection?
An Order of Protection is an Order issued by the Family Court which orders a specific person to obey certain conditions and/or stay a certain distance away from another person or persons. Violation of an Order of Protection is a serious crime under New York State Law, a violation of which can result in significant jail time. Once you have an Order of Protection, you only need to call the Police to report a violation of the Order and the Police are obligated to arrest that person. It can be a very valuable tool in preventing domestic violence.
Can I get an Order of Protection against anyone in Family Court?
No. In Family Court you may only seek Orders of Protection against the following persons:
- Persons to whom you are related by consanguinity (blood relative) or affinity (related by marriage or adoption).
- Person you are legally married to.
- Person you were formally married to.
- Persons with whom you have a child in common.
- Persons with whom you are or were in an intimate relationship.
- “Intimate Relationship” does not have to mean that you were dating or involved in any type of sexual relationship. It is open to interpretation by the Court but could include close friends, roommates, neighbors, etc…
If you need an Order of Protection against any other person you must go to the Criminal Court to request one.
How do I qualify for an Order of Protection?
In order to receive an Order of Protection against someone you must prove that they committed a Family Offense. Under New York State law a Family Offense is defined as:
• Disorderly Conduct.
• Harassment in the 1st or 2nd degree.
• Aggravated Harassment in the 2nd degree.
• Menacing in the 2nd or 3rd degree.
• Reckless Endangerment in the 1st or 2nd degree.
• Assault in the 2nd or 3rd degree.
• Attempted Assault.
• Stalking in the 1st, 2nd, 3rd or 4th degree.
• Criminal Mischief.
How do I get an Order of Protection?
Just like any other case in Family Court, an Order of Protection is requested by filing a Petition in the Family Court. It is essential that the Family Offense Petition is filled out properly otherwise there is a great likelihood you will be unsuccessful in your request for a Family Offense Petition. The Petition must be detailed and be very specific as to what happened and when it happened.
It is very important that you have an experienced Family Law Attorney prepare a Family Offense Petition for you. At Simon & Milner we will prepare the petition with you here in our office and accompany you to Family Court so that the Petition can be filed and the process started as quickly as possible.
IF YOU FEEL YOUR LIFE IS IN IMMINENT DANGER, YOU SHOULD CALL 911 AND/OR GO TO THE FAMILY COURT FOR AN ORDER OF PROTECTION IMMEDIATELY. In such a case, an attorney will be able to ask the Court to amend your petition at a later time.
In Family Court, when you file a Family Offense Petition you are immediately sent to go before a Judge who has the power to issue a Temporary Order of Protection on an immediate “ex parte” basis. Ex parte means without the other party being present.
If the allegations in your petition are severe enough the Court can grant you a Temporary Order of Protection immediately upon the filing of the Family Offense Petition. As soon as you file the Petition you will be sent to see a Judge who will review the Petition and determine if a Temporary Order of Protection is appropriate.
The Temporary Order of Protection will protect you between the time of your first court appearance and the time the other party is ordered to come to Court.
If you cannot prove the allegations in your petition the petition will be dismissed and the Temporary Order of Protection will be vacated (cancelled).How does a Family Offense case proceed?
The first appearance of both parties is called an arraignment. Just like in criminal court the Respondent will be advised of the allegations against him, offered the opportunity to hire a lawyer and will be asked to admit or deny the allegations. If there are children involved in the Family Offense allegations a law guardian will be assigned by the Court to represent the interests of the children.
If the Respondent denies the allegations the Court will set the matter down for a trial at which the commission of a Family Offense must be proven by a “preponderance of the evidence.”
Are there different types of Orders of Protection?
Yes there are. The Court can issue Orders of Protection with varying degrees of restrictions based upon the nature and severity of the offense as well as the nature of the relationship between the parties.There are 2 major categories of Orders of Protection:•Stay-away Order of Protection
: A person is ordered to stay away from a specific person at their home, business, place of employment, school or wherever else they may be. In addition the person may also be ordered to refrain from any contact with that person whether by telephone, text message, face-book, letter, email, etc…
• These are issued for more serious Family Offenses.
• If you live with a person but a stay-away order of protection is issued against you, you are now excluded from your own residence. It doesn't matter if you do not have any other place to go.
• Limited Order of Protection
: A person is ordered to not commit acts of disorderly conduct, harassment, menacing, reckless endangerment, assault, or other offensive conduct against the person whom the Order of Protection is in favor of.
In addition to the above the Order of Protection may also contain additional provisions such as:
• Refrain from conduct that interferes with an existing Child custody order.
• Cooperate in receiving treatment or psychiatric diagnosis.
• Abstain from drinking alcohol or using illicit drugs in the presence of the protected person.
• Refrain from using corporal punishment on your child.
• Refrain from acts that tend to make the home an improper place for a child to reside.
I was just excluded from my own home. What about my stuff?
If the Court issues an Order directing you stay away from your own home, upon application by your attorney, the Court will issue an Order directing the Police Department to accompany you to your home at a specific day and time to retrieve your personal belongings.I have been Ordered to stay away from my spouse but they have custody of my children. What do I do?
An experienced Family Law attorney will recognize this issue and ensure that this fact be brought to the attention of the Judge issuing the Order of Protection. So long as the Family Offense Allegations do not concern the children, the Court will usually modify the Order of Protection to create an exception for “contact to effectuate Supreme & Family Court orders of visitation.” Essentially, you will be permitted an exception to go to a location from which you have been excluded or to make phone calls to a person you are not allowed to for the sole purpose of arranging pick up and drop off of your children as per a Court order.I received a stay-away order against my spouse. What if I don't want them coming to my home even to pick up the children?
In such a case, your attorney can ask the Court to require that pick-up and drop off of your children occur at a local police precinct. In such a case, the parent will only be permitted an exception under the Order of Protection to have contact with you at the local police precinct for the purposes of picking up and dropping off the children.If the Court finds I committed a Family Offense what will happen to me?
A “finding” of a Family Offense will be entered against you. A “finding” is not a criminal conviction but there is a record that you were found to have committed a family offense. This “finding” could be used against you later in a proceeding related to custody or a child protective proceeding (even one not related to this Order of Protection).
In general, upon the finding of a Family Offense the Family Court will issue a Final Order of Protection. The Final Order can be a full stay-away order of protection or a limited order of protection. (For more information on types of Orders of Protection click here
). The Court will also choose the duration of the Order of Protection, generally between 6 months and 2 years.
In addition to issuing the Order of Protection the Court has the power to do the following upon the finding of a Family Offense:
• Place the Respondent on Probation.
• Order the Respondent to participate in a batterer's education program.
• Order the Respondent to participate in a substance abuse program.
• Order the Respondent to pay restitution to the Petitioner of up to $10,000.00.
• Order the payment of child support to the Petitioner (only where Petitioner and Respondent have children in common).
• Set an order of custody.
• Award counsel fees to the Respondent.
• Order the Respondent to reimburse Petitioner for medical bills that resulted from his or her commission of a family offense.
• Suspend the Respondent's firearms licenses.
What if the Order of Protection is Violated?
If the Respondent violates the Order of Protection after it has been issued you can simply call the Police and ask that that person be arrested. They will be charged with criminal contempt and be forced to answer for their violation in the criminal court.
In the alternative you can file a violation petition in the Family Court alleging that the Respondent is in contempt of court for failure to obey the Order of Protection.
Obviously, for more immediate relief, you should simply dial 911 and report the violation.Any other Questions?
The law firm of Simon & Milner in Valley Stream, New York are here if you have questions about orders of protections. Call (516) 561-6622
or (800) 807-5616