Navigating legal concerns can be overwhelming and daunting, especially when it involves personal safety and protection. In New York, one effective legal measure for safeguarding oneself from potential harm is obtaining an order of protection. Whether you are facing domestic violence, harassment, or any other form of abuse, understanding the process of obtaining an order of protection is crucial. This article will guide you through the steps required to secure an order of protection in New York, ensuring your safety and peace of mind.
When it comes to legal matters as sensitive as obtaining an order of protection, seeking the guidance and support of a skilled New York family law attorney can be crucial. An experienced attorney possesses extensive knowledge and experience in handling cases related to domestic violence and protective orders. At The Law Office of Ryan Besinque, divorce lawyer Ryan Besinque and our New York family lawyers are well-versed in the legal intricacies of New York state laws and can provide you with the experienced guidance necessary to handle the court system effectively. From explaining the different types of orders available to strategizing your case and representing your interests in court, our team can significantly increase your chances of obtaining an order of protection, ensuring your safety and well-being. Call us today at (929) 251-4477 to schedule a consultation.
Understanding Orders of Protection in New York
An Order of Protection, also known as a restraining order, is a legal tool designed to protect people from physical violence, harassment, stalking, and other forms of threats or abuse. The purpose of an Order of Protection is to provide a sense of safety and security to the person under threat by legally prohibiting the offender from engaging in specific actions, such as contacting the victim, coming near their home or workplace, and possessing firearms.
Orders of Protection in New York typically include multiple conditions and restrictions, which can be tailored to fit the specific situation and needs of the victim. Violating an Order of Protection is considered a crime and can result in serious penalties, such as fines or imprisonment.
Types of Orders of Protection
When deciding whether to pursue a Family Court petition, file criminal charges, or take both routes, it’s important to understand the distinctions between the types of protection orders.
Family Court Order of Protection
In Family Court, obtaining a temporary or emergency order of protection is generally easier compared to the process in criminal court. The focus in Family Court is on the domestic aspect, with the case being between you and the respondent. The burden of proof required is lower, relying on the “preponderance of the evidence” standard. Your presence and active participation in court are necessary.
While records are kept private, the courtrooms themselves are open to the public. Additionally, you have the option to withdraw your petition and halt the case if you choose to do so. Ultimately, the Family Court can issue a final order of protection that the respondent must abide by.
Criminal Court Order of Protection
On the other hand, criminal court cases involve charges that must be filed by the police or District Attorney. The case in criminal court is between the People of the State of New York and the defendant, focusing on criminal actions. The burden of proof required in criminal court is higher, necessitating proof “beyond a reasonable doubt.”
If there is sufficient evidence of the crime, the District Attorney may handle the case without your direct involvement. Records and courtrooms in criminal court are open to the public. Unlike in Family Court, once the case is initiated, you cannot personally terminate it. Only the District Attorney possesses the authority to withdraw the case. While an order of protection can be issued in criminal court, the case can also lead to criminal convictions and potential imprisonment for the defendant.
Supreme Court Order of Protection
As part of an ongoing divorce proceeding, it is possible to obtain a Supreme Court order of protection.
If you are currently involved in a divorce case and wish to seek an order of protection, there are a couple of ways to make your request. You can submit a written request through a Motion or an Order to Show Cause, or you can make an oral request during a court appearance. If you have legal representation, your attorney can submit the request on your behalf, either in writing or orally. Ultimately, it is up to the judge to determine whether to issue the order of protection and to specify the terms and conditions that will be included in the order.
| Types of Orders of Protection | Description |
|---|---|
| Family Court Order of Protection | Obtained in Family Court, this type of order focuses on domestic aspects and involves a case between the petitioner and the respondent. The burden of proof is lower, relying on the “preponderance of the evidence” standard. |
| Criminal Court Order of Protection | In criminal court cases, this type of order is filed by the police or District Attorney on behalf of the state. It focuses on criminal actions and requires a higher burden of proof, “beyond a reasonable doubt.” The case may lead to criminal convictions and potential imprisonment. |
| Supreme Court Order of Protection | As part of an ongoing divorce proceeding, a Supreme Court order of protection can be obtained. It can be requested in writing or orally during a court appearance, and the judge has the authority to determine whether to issue the order and specify its terms and conditions. |
Eligibility Requirements for Obtaining an Order of Protection
To be eligible for an Order of Protection in New York, the victim must have a specific relationship with the abuser or be a witness in a criminal case where the abuser is a defendant. The eligible relationships include, but are not limited to:
- Current or former spouses
- Individuals who share a child
- Blood relatives
- Individuals who have or have had an intimate relationship (whether or not they live together)
In addition to establishing an eligible relationship, the victim must also demonstrate that the abuser committed a “family offense,” which includes a wide range of abusive, threatening, or violent behaviors, such as assault, harassment, stalking, and reckless endangerment.
The Process of Applying for an Order of Protection
Navigating the legal process to obtain an order of protection can be a daunting task, but it is crucial for ensuring your safety and well-being. By following a few essential steps, you can take the necessary actions to file a petition, present your case, and potentially obtain the protection you need. Let’s explore each step in more detail:
- Go to court in the county where you or the respondent live or where the incidents occurred. Consider not filing in your current county if you’re in a confidential location different from the respondent’s county. Find the courthouse using NY Courthouse Locations. Note: Address Confidentiality Program (ACP) helps keep your address confidential when filing court petitions.
- Fill out the family offense petition carefully. You’re the “Petitioner” and the abuser is the “Respondent.” Mention details of the abuse, including dates, injuries, and specific threats. Use descriptive language. If you want to keep your address confidential, inform the court or register for the ACP.
- The judge reviews your petition. Submit it to the court clerk who will present it to the judge. The judge may issue a summons or arrest warrant for the respondent and can grant temporary orders of protection and custody. The judge can also order temporary child support.
- Follow the court’s instructions for serving the respondent with the summons, petition, and order of protection. You can use the police or Sheriff’s office for service. Keep track of the service using the affidavit provided by the server. Make sure it is notarized.
- Attend all court dates. If you can’t attend, contact the court clerk for a continuance or adjournment. If the case doesn’t settle, it goes to a hearing. At the hearing, present evidence, testify and consult with a lawyer if needed. If the respondent doesn’t attend, the court may issue a default judgment. Temporary orders may expire, so check for updates at each court date. If you win the case, the judge will issue a final order of protection.
How Long Does It Take for an Order of Protection to be Served?
Securing an Order of Protection is a crucial step for those seeking safety from harm or threats. Upon deciding that an Order of Protection is necessary, the question arises: how quickly can it be served?
The timeline for serving an Order of Protection can vary, but the process is designed to prioritize the safety of the petitioner. If the defendant is present in court when the judge issues the Order, it can be served immediately. However, if the defendant is not present, the Order must be delivered by someone other than the petitioner, who is over 18 years old. This could be a family member uninvolved in the case, a friend, or a professional process server.
In New York City, the Sheriff’s Office is responsible for serving Orders of Protection during their regular business hours. After hours, the NYPD steps in to assist, ensuring that no time is wasted in these critical situations. Importantly, this service is provided free of charge, reflecting the system’s commitment to accessibility and support for victims of crime.
To ensure due process, the law requires that the Order of Protection be served at least 24 hours before the next court date. This stipulation allows the defendant to be aware of the Order and to prepare for the subsequent legal proceedings.
Preparing for the Order of Protection Hearing
Preparing for an Order of Protection hearing can be a daunting and emotionally difficult task. The process involves understanding the legal standard of proof, gathering evidence to support your case, and potentially consulting with an attorney or advocate to guide you through the process. This section provides a comprehensive guide on how to prepare for an Order of Protection hearing and thereby increase your chances of obtaining the protection you need.
Understanding the Legal Standard of Proof
Before preparing your case for an Order of Protection hearing, it is crucial to understand the legal standard of proof required in your jurisdiction. An Order of Protection is a court order designed to protect a person from harassment, abuse, or threats by someone else. In most jurisdictions, the petitioner (person seeking protection) must prove by a preponderance of the evidence that the respondent (person alleged to have caused harm) has engaged in specific abusive or threatening behavior.
A preponderance of the evidence standard means that it is more likely than not that the allegations against the respondent are true. To put it simply, the evidence must show that there is a greater than 50% chance that the respondent has engaged in abusive or threatening behavior. Understanding this legal standard is essential to help you gather the appropriate evidence and present your case effectively at the hearing.
Gathering Evidence to Support Your Case
Collecting and presenting relevant and compelling evidence is critical to proving your case in an Order of Protection hearing. This evidence can take various forms, including documentation, witness testimonies, and expert opinions. However, the crucial aspect is to provide sufficient proof to meet the legal standard previously discussed.
Documentation
Police reports and medical records are critical pieces of evidence that can corroborate your allegations. These documents can serve as objective and independent accounts of the incidents you report and any related injuries. They can also provide critical information about the time, location, and potential witnesses of these incidents.
In addition to official records, other documents that can provide essential evidence are written correspondence, text messages, emails, voicemails, or social media posts that demonstrate threatening, abusive, or manipulative behavior from the respondent. These pieces of evidence need to be organized and presented clearly and concisely during the hearing.
Witness Testimonies
Witnesses, such as friends, family members, coworkers, or neighbors, can provide valuable firsthand accounts of the alleged abusive behavior. These testimonies can strengthen your case by providing additional context and supporting your version of events. It is essential to identify potential witnesses, help them understand the importance of their testimony, and prepare them for the hearing process by discussing their expected testimony.
Understanding the Court’s Decision and Final Order of Protection
After a hearing for an order of protection, the judge will make a decision based on the evidence and testimony presented by both parties. If the judge determines that there is sufficient proof that the respondent (the person against whom the order is sought) committed acts of domestic violence, abuse, harassment, or other such acts, the judge will issue a final order of protection.
The final order of protection (or restraining order) is a court order that mandates the respondent to abide by specific terms and conditions. These terms and conditions often include restrictions on contacting the petitioner (the person seeking the order of protection), mandatory counseling or therapy, and compliance with custody or visitation arrangements.
Duration and Conditions of the Final Order
The duration of a final order of protection varies based on the severity of the circumstances and prevailing state laws. Some orders may last for a few months, while others can extend for multiple years. In addition to laying out the duration, the order will also outline specific conditions that the respondent must follow. Common conditions in a final order of protection include:
- No Contact: The respondent must refrain from making any contact – direct or indirect – with the petitioner. This typically includes phone calls, texts, emails, and any form of communication through social media or third parties.
- Stay Away: The respondent must maintain a specified distance from the petitioner’s residence, place of employment, and any other place they frequent. The exact distance varies by case and jurisdiction.
- Counseling or Treatment: The respondent may be ordered to attend counseling, anger management, or substance abuse treatment programs to address the underlying issues that led to the abusive behavior.
- Weapons Restriction: The respondent may be required to surrender their firearms and avoid purchasing or possessing any weapons during the duration of the order.
Modifying or Extending an Order of Protection
Circumstances may change during the period of the final order of protection, necessitating modifications or extensions. If either party wants to change the terms of the order, they must petition the court to make the necessary modifications. The process typically involves providing a valid reason and proof supporting the requested changes, followed by a court hearing where both parties can present their cases.
Similarly, if the petitioner feels threatened or unsafe as the expiration of the order approaches, they can request an extension. Extensions are not guaranteed and will be decided by the judge based on the evidence presented during the extension hearing.
Do Restraining Orders Go on Your Record?
When considering the implications of a restraining order, it’s crucial to understand the distinctions between how these orders are recorded based on the court in which they’re issued. Restraining orders, also known as Orders of Protection, can be issued in different legal contexts, each affecting whether they appear on your personal record.
If an Order of Protection is issued in Family Court, it generally will not appear on a criminal background check. This is because Family Court proceedings, including any restraining orders issued therein, are not classified as criminal cases. Therefore, such orders are not part of your criminal record and are usually confidential.
On the other hand, if a restraining order is issued as part of a criminal case, the situation changes significantly. These orders are considered public records. As a result, they are accessible through criminal background checks and can be seen by employers, landlords, and others who may conduct such checks.
It’s important for individuals to be aware of these distinctions, as the presence of a restraining order on a criminal record can have long-term personal and professional consequences. Understanding where and how these orders are issued can help in managing or contesting their presence on your record.
Seeking the Legal Help of an Experienced Family Law Attorney
Understanding the process and requirements for obtaining an order of protection in New York is crucial for anyone seeking to protect themselves or their loved ones from domestic violence, harassment, or other forms of abuse. It is necessary to keep the steps involved in winning an order of protection in New York and the key factors to consider when pursuing this legal remedy in mind to ensure the best possible outcome.
While navigating the legal system can be complex and overwhelming, enlisting the assistance of a New York family law attorney can greatly increase your chances of success. An experienced attorney can guide you through each step of the process, ensuring that your rights are protected, and help you build a strong case for obtaining the order of protection you need.
At The Law Office of Ryan Besinque, our team of New York family law attorneys may be able to help you gather and organize the necessary evidence, such as police reports, medical records, witness statements, and any other relevant documentation, to strengthen your case. Our team can effectively represent you in court, presenting your case persuasively and advocating for your interests. Contact us today at (929) 251-4477 to schedule a consultation.
