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Who Can Get an Order of Protection?

Family Court can only be used to get an order of protection if the victim is "related" to the abuser or has a child with the abuser (FCA §812 1. & §822). The following relationships qualify:

• Persons related by blood or marriage
• Former spouses
• Unmarried couples if they have a child together.
• Persons that are or have been in an “intimate relationship”
  • An intimate relationship does not necessarily mean a sexual relationship. However, an intimate relationship is more than a casual or social relationship. The court will decide whether the relationship is intimate based on the facts about the relationship and how long the relationship has lasted.
    http://www.courts.state.ny.us/courthelp/faqs/domesticviolence.html

What is an Order of Protection?

An order of protection is a legal document that protects you from an abuser. You can ask for an order of protection if you have been abused or threatened. Please be aware that the person who is being abusive to you may decide to disobey the judge's order to stay away from you or to stop being abusive. However, if you have an Order of Protection, the police may arrest the abuser for violating the order.

A Family Court Order of Protection can order the person accused of abuse to do any of the following (FCA§841 &§842):

• Stay away from you and other household members needing protection
• stay away from your home, workplace, child’s school or any other place required by the court
• Leave your home
• refrain from offensive conduct, the perpetration of which would result in greater penalty than if there was no order
• pay your lawyer fees or restitution for damages caused
• allow you to retrieve your personal property, with police, from premises in his possession
• stop contacting you - by phone in writing or through other people
• participate in a batterer's intervention program
• give up guns and revoke handgun permits

The court should consider prior incidents of abuse, alcohol or drug use, compliance with any past orders, and the severity of the abuse or threats, in deciding which conditions are needed for your protection.

  Who Can Get an Order of Protection?

Family Court can only be used to get an order of protection if the victim is "related" to the abuser or has a child with the abuser (FCA §812 1. & §822). The following relationships qualify:

• Persons related by blood or marriage
• Former spouses
• Unmarried couples if they have a child together.
• Persons that are or have been in an “intimate relationship”
  • An intimate relationship does not necessarily mean a sexual relationship. However, an intimate relationship is more than a casual or social relationship. The court will decide whether the relationship is intimate based on the facts about the relationship and how long the relationship has lasted.
    http://www.courts.state.ny.us/courthelp/faqs/domesticviolence.html

What is an Order of Protection?

An order of protection is a legal document that protects you from an abuser. You can ask for an order of protection if you have been abused or threatened. Please be aware that the person who is being abusive to you may decide to disobey the judge's order to stay away from you or to stop being abusive. However, if you have an Order of Protection, the police may arrest the abuser for violating the order.

A Family Court Order of Protection can order the person accused of abuse to do any of the following (FCA§841 &§842):

• Stay away from you and other household members needing protection
• stay away from your home, workplace, child’s school or any other place required by the court
• Leave your home
• refrain from offensive conduct, the perpetration of which would result in greater penalty than if there was no order
• pay your lawyer fees or restitution for damages caused
• allow you to retrieve your personal property, with police, from premises in his possession
• stop contacting you - by phone in writing or through other people
• participate in a batterer's intervention program
• give up guns and revoke handgun permits

The court should consider prior incidents of abuse, alcohol or drug use, compliance with any past orders, and the severity of the abuse or threats, in deciding which conditions are needed for your protection.

How do I get an Order of Protection?

To obtain an order of protection you would be best served to go to either the Family Court or the Probation Department. The Probation Department helps individuals to fill out the order of protection petitions.

Once you have filed the petition, you will appear in court. A judge will review the petition and decide whether or not your case warrants a temporary order of protection. The initial order is only temporary because the other party is not present when it is obtained. Because of this, you will be told to return to court. On that date, both you and the other party will appear in court, and if you cannot settle the issue, you will be given the opportunity to get an attorney and a date for trial will be set.

In Family Offense proceedings, both parties have the right to be represented by a lawyer, whether they are able to afford one or not (See FCA §262 a. ii.). If a petitioner or a respondent cannot afford to hire a lawyer, they can ask the court to appoint a lawyer free of charge. Either party can request an adjournment (delay of proceedings) to allow them time to obtain representation.

What Kind of Abuse Allows Me to Get an Order of Protection?

The best way to find out whether a court would give you an order of protection is to talk to a lawyer or a domestic violence agency in your area. The family court clerk may also be able to help you determine which “Family Offense” the abuser committed when you go to fill out a petition. All you have to do is describe what the abuser did. Your petition should not be rejected by the clerk.

You can get an Order of Protection if the court believes the abuser has done something that would fit in the list of "enumerated crimes," even if the abuser was never charged with a crime (see FCA §812 & §821).

This list includes:

• Disorderly Conduct
• Menacing
• Harassment
• Reckless Endangerment
• Assault
• Attempted Assault
• Stalking

• Criminal mischief

How long does a permanent Order of Protection last?

An order of protection can be in place for up to two years. In certain circumstances they can be up to five years.

Does the abuser have to be convicted of a crime for me to get an Order of Protection?

No. You can get an Order of Protection in Family Court even if the abuser was never arrested, charged, or convicted of a crime.

Can the Order of Protection force me to do anything?

No, the Order of Protection cannot make you do anything. Your abuser is responsible for making sure he or she obeys the order.

What happens if my abuser does not obey the order of protection?

If your abuser violates the order of protection you should call the police. To enforce your order of protection, you must call the police. As long as your abuser knows about the order of protection and was served with a copy of the order by the police or while in Court, the abuser should be arrested by the police. If you have a Family Court order of protection, you can go to Family Court and file a violation petition, but do not do this if you also want the person to be arrested. Calling the police and filing a violation petition could both result in the abuser being arrested, but if you do both they could conflict and the person may not be punished.

It is important to keep a copy of the order of protection with you at all times. You should also keep extra copies in your home and give them to family members and your domestic violence worker, if you have one. Remember, an order of protection is not a guarantee against further violence. You should have a safety plan along with your order of protection.

Can I change my order of protection?

If your situation changes you should ask the Court to change your order of protection. You can ask for a modification if your situation is getting worse, or if you want to mend your relationship with your partner.

To modify your order of protection in Family Court, you should file a modification petition. To do so in Criminal Court, you should speak with the Assistant District Attorney who handled your case.

Forms and information about orders of protection are available at the New York Office of Court Administration web site. Visit them on the web at:
http://www.nycourts.gov/forms/familycourt/general.shtml

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Legal Assistance of Western New York, Inc.

This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer.  Receiving this information does not make you a client of our office.

Rev. 7/28/2009