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What is an order of protection, and what does it do for me?

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 are afraid of being abused. It can require your abuser to do any of the following:

• Stay away from you and any other household members (such as children) who the court decides needs protection

• Stay away from (or leave) your home, workplace, or child’s school or any other place required by the court

• Pay for your lawyer or for damages caused to you

• Allow you to collect your things, with police protection, from their place

• Stop calling or writing to you

• Go to a Batterers Intervention Program or drug/alcohol counseling

• Give up any guns

 

What types of orders of protection are there?

There are two different orders of protection that can be issued, one by Family Court and one by Criminal Court.

 

What is a Family Court order of protection?

A Family Court order of protection protects you from an abusive family member.
The abuser must be:

• Your spouse

• Former spouse

• Someone you are related to by blood or marriage

• Someone you have a child with

• Someone you are or have been in an “intimate relationship.”

o        An intimate relationship does not necessarily mean a sexual relationship. However, an intimate relationship is more than a casual or social relationship.

o        The court will decide whether the relationship is intimate based on the facts about the relationship and how long the relationship has lasted

 

What is a Criminal Court order of protection?

A Criminal Court order of protection protects you from an abuser whom you are not related to.

 

How do I get an order of protection?

In order to get a Criminal Court order of protection, the District Attorney must ask for a warrant or an arrest must be made.

 

To get a Family Court 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.

 

How long does a permanent order of protection last for?

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

 

How does the court decide what protection I need?

The court should look at any previous acts of abuse, alcohol or drug use, how your abuser has obeyed any past orders, and the seriousness of the abuse or threats when deciding what conditions are needed for your protection

 

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 it is obeyed.

 

How do I make sure my order of protection is obeyed?

In order 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 your abuser violates the order of protection you can call the police and report the violation. If you have a Family Court order of protection, you can go to Family Court and file a violation petition.

It is important to keep a copy of the order of protection with you at all times. 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 as well as an 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 change if your situation is getting worse, or if you want to fix your relationship with your partner. The Court will decide whether or not to change your order of protection. To do this in Family Court, you should file a modification petition. In Criminal Court, you should speak with the Assistant District Attorney who handled your case if you wish to change your order of protection.

 

Forms and information about orders of protection are available at the NY 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 about 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.