In New York, a restraining order is termed an order of protection. This court order requires a person to engage in or not engage in certain types of activities. There are two types of orders of protection:
- Stay-away or full order: Requires the alleged offender to stay away from the protected person, people or animals. The offender may not contact the protected individuals directly or through third parties.
- Refrain from or limited order: Allows the parties to have contact but requires alleged offenders not to commit family offenses, acts that family members commit against one another. Examples include disorderly conduct or stalking, or criminal offenses that non-family members commit against each other, such as assault.
How a Protective Order Helps
An order of protection can require the alleged offender to:
- Not be in contact with protected persons, including children, and in proximity to places where the protected persons go, such as work or school.
- Not commit harmful acts, such as stalking a protected person.
- Surrender their firearms.
An order of protection can also allow the protected party to terminate a lease and have the opportunity to go to their residence with law enforcement personnel to retrieve their property.
An order of protection from Family Court may also:
- Award custody of children to the petitioner, the person who files for the order of protection.
- Provide conditions for visitation for a parent to spend time with their children.
- Require a party to pay child support or spousal support.
- Require the respondent, the person against whom the petition is filed, to pay the petitioner’s legal costs.
- Place the respondent under supervised probation.
- Require the respondent to pay a party’s medical costs.
- Require the respondent to attend abusive partner intervention program.
- Require any actions necessary to protect the petitioner and their children.
Types of Protective Orders
In New York, three different courts can issue orders of protection: Family Court, criminal court or Supreme Court. A Family Court order of protection is issued as part of a civil family law case. It is meant to stop violence in a family or intimate relationship and provide protection for affected individuals.
Family Court proceedings are confidential. In order to get an order of protection in Family Court, the relationship with the other person must fit into one of these categories:
- Current or former spouse.
- Person with whom the petitioner has a child in common.
- Family member to whom the petitioner is related by blood or marriage.
- Person with whom the petitioner has or has had an “intimate relationship.” Intimate here does not necessarily mean sexual. How often the parties visit and how long they have known each other are also factors. The court determines whether the relationship is intimate.
Starting a Proceeding to Obtain a Court Order
A petitioner starts a proceeding in Family Court by filing a Family Offense petition. A petitioner can contact the Family Court in their county for assistance with completing and filing the petition. They may want to speak with an attorney or domestic violence advocate before filing.
A criminal court issues a court order of protection as a condition of the defendant’s release and/or bail in a criminal case. The judge may issue such an order only against a person charged with a crime. A district attorney may start a criminal case before a person is arrested.
No Relationship Needed with Defendant
The victim of abuse in a criminal case is called the complaining witness. It is not necessary that there be a relationship between the complaining witness and the defendant. The district attorney will request the order of protection for the victim or complaining witness, and the judge decides whether to issue the order and what terms or conditions need to be in it.
Order of Protection as Part of a Divorce Proceeding
A Supreme Court can issue an order of protection as part of a divorce proceeding. A spouse requests an order of protection with a written request by motion or an order to show cause. They can also make an oral request at a court appearance.
If the person is represented by an attorney, the attorney can make the written or oral request on their behalf. The judge decides whether to issue the order of protection and what terms and conditions to include.
Grounds for an Order
There are different grounds for orders from the different courts. A Family Court judge can issue an order of protection if a family offense is committed. Family offenses include harassment, menacing, strangulation and criminal mischief.
After the petitioner files a Family Offense Petition with the Family Court clerk, a judge will ask to speak to the petitioner. If there is good cause, the judge will issue a temporary order of protection.
The petitioner and respondent will get a future court date to determine if the order of protection will remain in place. Both parties must be present at this court date. The respondent must be served with the order of protection by police for the order to be valid.
When an Offender Is Arrested
In criminal court, if the offender was arrested, the judge may issue an order of protection during the arraignment, the proceeding where the court charges the offender. The order is temporary until the case is resolved. The court may grant a final order of protection as part of the defendant’s plea deal or sentencing.
A Supreme Court judge may issue an order of protection as part of a divorce order. If the person against whom the order is issued violates the order, they could be arrested and charged with criminal contempt. That spouse can be brought back to court to face additional requirements or serve a term of incarceration.
Filing a Petition for a Protection Order
In a Family Offense petition, the petitioner should provide certain information:
- Residence of petitioner, unless this is strictly confidential.
- Relationship between the petitioner and the respondent, checking all applicable boxes, such as the petitioner and respondent lived together and have a child in common.
- Family offenses that the respondent committed, such as criminal mischief and strangulation, checking all the boxes that apply.
- Whether the petitioner has filed a criminal complaint concerning the incidents. If yes, the petitioner should provide the court, date, county, charges and status, if known.
- Children that live with the petitioner name, date of birth, residence and child’s relationship with the respondent, for each child.
- Family offenses that the respondent committed against the children, including the name of the children, offenses and dates.
- Whether respondent has acted in a way that petitioner considers dangerous or threatening to them, to the petitioner’s children or to any member of their family.
- Whether the respondent was found to have violated an order of protection against the petitioner or members of their family or household. The petitioner should describe these incidents.
- Whether the respondent owns or has access to guns. The petitioner should describe the weapons.
- Whether the respondent has a gun license or permit application pending, with a description of the license or application.
- Whether the respondent carries a gun on their job. If yes, there should be a description of why they do so.
- Whether the respondent threatened the petitioner, their children or members of their household with a gun or dangerous instrument or object, and a description of this incident.
- Whether there is a substantial risk that the respondent would use or threaten to use a firearm or dangerous instrument or object against the petitioner, their children or a member of their household for certain reasons. The petitioner should state the reasons.
- What court cases are pending between the petitioner and the respondent, with the court, county, docket or index number, nature of action and status.
- What criminal convictions the respondent has, specifying the date, crime, sentence and court.
- What pets live in the petitioner’s house, with the names and types of pets.
- Whether the respondent injured, or tried or threatened to injure pets in the household, with details as to the incidents.
- Certification that the petitioner has not made a previous application to a court or judge for the relief requested in the petition, except any relief requested, whether the relief was granted and the date of the relief.
The petitioner should clarify what they are requesting, such as asking the court to:
- Adjudge the respondent as having committed specific family offenses.
- Enter an order of protection.
- Enter a finding of aggravated circumstances.
- Enter a temporary order of child support.
- Order the parties to appear within seven business days of the filing of the petition for consideration of an order of temporary spousal support.
- Order other and further relief as the court seems just and proper.
It is not legally possible for the person protected under the order to violate the order of protection. This includes the person’s children and animals. Generally, it is recommended that parties protected by the order not contact the person against whom the order is issued.
Length of Order
A temporary order of protection lasts until the next court date. The court can extend the temporary order until the case is closed. A family court order of protection can last up to two years. Under aggravating circumstances, or if the court finds there has been a violation of the order, the family court order may last up to five years. Aggravating circumstances exist if:
- Protected people or animals suffered a physical injury.
- Respondent used a weapon or other dangerous instrument against a protected party.
- Respondent has a history of violating prior orders of protection.
- Respondent has been convicted of crimes against the victim in the past.
- There is exposure of any family or household member to physical injury or other behaviors that pose a danger to them, their family or other household members.
A final order of protection from criminal court can last up to eight years. It depends on the matter and what offense is committed. An order of protection from a Supreme Court as part of a divorce is permanent. It is a straightforward process to get an order of protection in New York if the circumstances warrant the order.
When Someone Violates an Order
If the person restricted by the order violates it, the parties protected by the order should call the police. The person restricted by the order does not have to strike the protected parties in order to violate the order.
The protected parties can also file a violation of the order in Family Court. This will not usually result in the arrest of the offender. Protected parties have the choice of going to Family Court, criminal court or both courts regarding the violation.
Integrated Domestic Violence Court
The Integrated Domestic Violence Court (IDV) helps families by bringing together different types of cases – criminal, family and divorce – to be heard by one judge. This court uses the “one family, one judge” approach for cases involving domestic violence in a family. The IDV court judge decides which cases are appropriate for the court.
- New York State Office for the Prevention of Domestic Violence: Orders of Protection
- NYCourts.Gov: Frequently Asked Questions, Obtaining an Order of Protection
- New York Police Department: Resources and Services, Orders of Protection
- NYCourts.Gov: 7th Judicial Circuit, Family Offense, O Petition
- NYCourts.Gov: 5th JD - Family Court, Domestic Violence (Family Offense)
- NYCourts.Gov: Family Offense Petition
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.