New York State Restraining Order Rules

By Lindsay Nixon

In New York, a restraining order is called an \"order for protection\" and it can be obtained through Family Courts or Criminal Courts. An order for protection generally orders that the alleged abuser (\"respondent\") refrain from coming in contact with the person claiming abuse (\"petitioner\"). However, in some instances, an order for protection can also permit the respondent to have visitation with his children. If an order for protection is violated, the respondent can be put on probation or sent to jail.

Obtaining Orders of Protection

A petitioner can obtain an order for protection against the respondent for stalking, menacing, harassment, aggravated harassment, assault, attempted assault, reckless endangerment, criminal mischief and disorderly conduct. In connection with actions for divorce, separation or annulment of a marriage, the court can enter an application for an order of protection or a temporary order of protection against either party to set forth reasonable conditions of behavior by either party. In all other instances, the petitioner must obtain an order of protection from the court. The petitioner can go to Family Court to obtain an order of protection against a former or current spouse, the mother or father of their child or any family member related by blood or marriage. An order of protection can also be granted by Family Court against a person whom the petitioner had a close, intimate relationship with. Intimate relationships do not have to be sexual but generally apply to homosexual couples and heterosexual couples that are dating and do not have children. If no prior relationship exists or the relationship is not intimate or familial, the petitioner can only obtain an order of protection by filing a complaint against the respondent in criminal court.

Restrictive Functions

Orders of protection are entered for the safety and benefit of the petitioner and any children or pets residing with the petitioner. In general, orders of protection require the respondent to refrain from contacting, harassing, threatening, stalking or harming the petitioner or any children or pets that reside with the petitioner. An order of protection can also order the respondent to stay away from home, school and the place of employment of the petitioner or any child residing with the petitioner, and to refrain from contacting the petitioner by mail, telephone, email, voice mail or any other communication device. In some instances, the order of protection will also require the respondent to surrender firearms and pay the petitioner's attorneys fees and costs associated with the order. ?????

Permission Functions

When the order of protection is attached to a divorce, separation or annulment of a marriage, it can also be used to permit activity such as child visitation or visitation to a residence to remove personal items.

Violations

If the respondent violates an order of protection, the petitioner can call police and have the respondent arrested. Alternatively, the petitioner can file a \"violation petition\" with the Family Court, speak to the district attorney's office or go to criminal court directly. Upon a showing that the respondent violated the order of protection, the judge can make changes in the order and put the respondent on probation or the judge can send the respondent to jail.

Federal Law

Federal law requires that orders of protection issued in New York be honored and enforced by all other states and U.S. territories if the respondent is an intimate partner of the petitioner. If the respondent is not an intimate partner of the petitioner but the respondent was afforded reasonable notice and an opportunity to be heard, the order of protection must still be enforced. Additionally, it is a federal offense to cross state lines in order to violate an order of protection.