ORDERS OF PROTECTION

 What is an Order of Protection?

An order of protection is issued by the court to limit the behavior of someone who harms or threatens to harm another person. It is used to address various types of safety issues, including, but not limited to situations involving domestic violence. Family Courts, criminal courts, and Supreme Courts can all issue orders of protection. For information and hotline numbers for addressing situations involving domestic violence.

An order of protection may direct the offending person not to injure, threaten or harass you, your family, or any other person(s) listed in the order. It may include, but is not limited to, directing him/her to:

• stay away from you and your children
• move out of your home
• follow custody orders
• pay child support
• not have a gun

How do I obtain an Order of Protection?

Family Court order of protection is issued as part of a civil proceeding. Its purpose is to stop violence within a family, or within an intimate relationship, and provide protection for those individuals affected. All Family Court proceedings are confidential. To obtain an order of protection in the Family Court, your relationship to the other person must fall into one of the following categories:

• Current or former spouse
• Someone with whom you have a child in common
• A family member to whom you are related by blood or marriage
• Someone with whom you have or have had an “intimate relationship.” An intimate relationship does not have to be a sexual relationship. A relationship may be considered intimate depending on factors such as how often you see each other, or how long you have known each other. After a petition is filed, the court will decide if it is an intimate relationship.

To start a proceeding in Family Court, you need to file a form called a Family Offense Petition. The person filing the petition is called the “petitioner,” and the person the petition is filed against is called the “respondent.” You can contact the Family Court in your county for help completing and filing the petition. You may also wish to speak with an attorney or domestic violence advocate before filing.

Criminal Court Order of Protection is issued as a condition of a defendant’s release and/or bail in a criminal case. A criminal court order of protection may only be issued against a person who has been charged with a crime.

Criminal cases are prosecuted for the State of New York by the district attorney. Although the district attorney may start a criminal case before a person is arrested, a criminal case usually begins with a person’s arrest. The person charged with abuse is called a “defendant.” The victim of abuse is called the “complaining witness.” There does not need to be a relationship between the complaining witness and the defendant.

In a criminal case, the district attorney requests an order of protection for the victim or complaining witness. The judge decides whether to issue the order of protection and what terms and conditions will be included in the order.

What if I am the Subject of an Order of Protection?

If you are the subject of a restraining order, understand that it is a very serious matter that deserves your prompt attention. You do, however, have importantrights. If a person asks a court to issue a restraining order against you because of alleged domestic violence or other domestic conflict, you are entitled to be notified of the request, to have a court hearing, and to defend yourself.  You should never ignore a restraining order request. Instead, you should get information about your rights and options, consult with a lawyer, and participate in the court process. Once a restraining order is entered, you can be charged with a crime if the protected party accuses you of violating the order. If a permanent order is issued, you will be prohibited from possessing a firearm while the order is in effect, and the order will show up on background checks. You’ll want to take specific steps to deal with the prospect of having a restraining order issued against you. Here are some suggestions:

• gather any physical evidence relating to any incidents or events the petition refers to, such as clothing, photos, videos, and objects.
• assemble any documents or records that could relate to the case, such as letters, emails, phone and GPS records, computer records, and records that might show where you were at the time of an incident, and
• make a list of possible witnesses—include every person you think has information about the incident, the accusations or the petitioner—and obtain the witnesses’ contact information.

How might these items be useful? If the petitioner has made false accusations about an incident, you might have photos or videos of the event or a witness might be able to testify that you were not even there when the alleged incident took place. If the petitioner accuses you of calling or texting repeatedly, your phone records might show otherwise. If the petitioner states that you have driven by his or her home several times a day, your GPS records may enable you to disprove it. This kind of information is very important to bring to your attorney and the court’s attention.

If you are facing a petition for a restraining order, you should not:

• destroy evidence that you think could hurt you, as this may cast you in a suspicious light with the court and can lead to criminal charges
• try to talk to the petitioner or witnesses you expect will testify for the petitioner about the case, or have any contact with them (including text messages or email), or
• disobey or disregard a temporary restraining order in any way.

If you violate a temporary restraining order, the petitioner can bring that up in the hearing or even file a motion alleging a violation of the order, making it even harder for you to defend against the request for a permanent order.

If you and the petitioner have children together, the temporary restraining order may tell you not to have contact with the children (or to do so only under supervised conditions) until the court addresses the request for a restraining order at a hearing. You should not try to “get around” the order by going by the children’s school or visiting them at a relative’s home. Again, the petitioner can bring this up at the hearing or even file a motion alleging violation of the temporary restraining order.

Consult with an Attorney Immediately

As explained, restraining orders can happen quickly (temporary orders) and areusually followed soon by a full-blown hearing on a permanent order. Your ability to defend against a permanent order will depend on having a thorough understanding of the law in your state. Refuting accusations against you will require admissible evidence and relevant arguments. Having an experienced family law attorney on your side -- someone familiar with the law, the rules of evidence, and the sensitivities of the judge -- will greatly increase your chances of a favorable outcome.