An order of protection – often referred to as a restraining order or OP – is intended to provide a wall of protection between an individual and someone who has harmed, harassed or threatened that person. In New York, threatening can include stalking.
These are court orders, so only a judge can vacate or terminate one, and only a judge can make changes to their existing terms. This isn’t to say that the parties to an order of protection don’t have options, however. They both have a right to petition the court and ask that an order of protection be lifted or modified. They just can’t unilaterally change the order themselves, even if they mutually agree that it’s not necessary anymore.
The Definition of an Order of Protection
These orders state the kind of – if any – contact can occur between one individual and another, and they set rules for that contact. For example, if they have children together, a divorced couple might have an order of protection because of domestic violence issues. The order might stipulate that the father can pick up the children from their mother’s home for parenting time, but he must remain in his vehicle at the curb and cannot approach the house.
An order of protection might also require that the father not approach her at her place of employment or that he remain a prescribed distance away from her should they happen to arrive at the same neutral location, such as a grocery store. The order can also set restraints on contact with the victim’s family members or even pets. Depending on the extent of the restraints, it might be referred to as a “stay away” or full order, or a “refrain from” or limited order.
An order of protection will almost invariably require that the individual with the order against him or her, often referred to as the “enjoined party,” not commit any additional crimes or engage in similar behavior involving the person whom the order protects.
Read More: How to Vacate an Order of Protection
Additional Provisions of an Order of Protection
OPs can also order restitution from the enjoined party. This might be the case if Jane discovered her boyfriend having dinner with another woman at a romantic restaurant, and she used a baseball bat to hit his car parked outside. Jane might be ordered to pay for the damages to his automobile.
She might be ordered to pay his medical bills if she also used the bat against him, and the court might order her to attend counseling as part of the OP to get her anger management issues under control.
The Process to Obtain an Order of Protection
In New York, an individual can request an order of protection from the family court, the criminal court or both. Applying through a criminal court is a relatively simple matter of reporting a crime at a police station and requesting an OP. The district attorney’s office will prosecute if it determines there’s a case, and the order of protection can be granted by the judge in any subsequent court appearance.
Victims can also file a family offense petition with the family court, but this option is restricted to those who have a close relationship with the perpetrator. They either are or were married, or they are or were in an intimate relationship. They can be related by blood or marriage or even simply have a child together. Casual acquaintanceships don’t qualify.
The family court will typically order a temporary order of protection until the matter can be sorted out, and the victim can establish that he did indeed harm them or threaten to harm them. The temporary order is “ex parte” – the enjoined party has not yet had an opportunity to deny the allegations. It’s based only on the victim’s allegations. A final OP isn’t ordered until the enjoined party is served with a copy of the temporary order that provides a court date, and both parties have appeared in court to state their respective cases.
New York Orders of Protection Expire
- Criminal court proceedings typically result in orders of protection that last five years. The date should be cited in the terms of the written order.
- A temporary OP issued by the family court will remain active and enforceable until the case is resolved at a final hearing. The court can renew or extend it if there’s a delay before the final hearing.
- Permanent restraining orders issued by the family court can last as little as one year or as long as five years. They can be extended by the protected party upon request for “good cause” or a valid reason.
The Protected Party’s Options for Vacating the OP
An OP that originates in a New York criminal court will remain in effect until it expires unless the charges are dropped or dismissed, so the protected party can drop the charges or decline to prosecute if they want the order to go away. It’s also possible that the district attorney will decline to prosecute for some other reason, and the OP would therefore be terminated. This isn’t likely, however, if they believe that the enjoined party continues to present a danger to the protected party.
As for family court, the protected party always retains the option of requesting that the court dismiss or withdraw the OP. This can be accomplished by requesting a hearing, the protected party can simply write a letter to the court. It’s important to state, however, that the OP is being vacated “without prejudice.” This allows the protected party to petition for a new OP in the future if the situation deteriorates and the enjoined party becomes a threat again.
The Enjoined Party’s Options
The enjoined party to the OP is subject to stricter rules and a greater burden of proof when it comes to vacating or dismissing it, and this makes sense. Although it’s possible to voluntarily agree to an OP in family court, it nonetheless restrains the party from certain activities. This can become a cumbersome and unpleasant burden.
An OP that’s granted through criminal court can only be vacated by filing a post-conviction motion and appearing in court to present a viable argument as to why it’s unfair or no longer serves its purpose. Success can depend on how long the order has been in place and the enjoined party having an unblemished criminal record during that time, as well as the enjoined party having established a change of circumstances that indicates they’re no longer a threat to the protected party. The enjoined party can be required to post a type of bond to be paid to the protected party should vacating the order result in harm.
As for a family court OP, it eventually will expire on its own-. The enjoined party can take up their argument again in court if the protected party seeks to petition for a new one. And, of course, the protected party can ask to vacate the order if they’ve peacefully resumed their relationship.
Simply consenting to have contact with the enjoined party or to disregard the order of protection isn’t sufficient.
- Crotty and Saland: Vacating an Order of Protection
- Legal Assistance of Western New York: Order of Protection in New York
- Law Offices of Jeffrey Lichtman: Modifying New York Restraining Orders
- New York State Office for the Prevention of Domestic Violence: Orders of Protection (OPs) involving Members of the Same Family or Household
- New York City Family Court: Domestic Violence (Family Offense)
- Justia US Law: Vacating or Modifying Preliminary Injunction or Temporary Restraining Order
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.