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Orders of Protection

June 9, 2016

An order of protection is a court order directing an individual to stay away and refrain from communicating with another, or to refrain from “offensive conduct” toward another.  

The latter is sometimes referred to as a “Level-2” order of protection, which is less severe than a full stay-away order of protection because it does not strictly prohibit continued contact between the parties, though the person against whom a Level-2 order is issued is still well-advised to keep his or her distance from the protected party given the legal implications of an actual or perceived violation of the order.   

How Are Orders of Protection Issued?

  • An order of protection may be issued by a criminal court after a criminal defendant has been charged with a crime. Until the criminal charges are resolved, the court may impose a temporary order of protection as a condition of the criminal defendant’s release and/or bail. After disposition, the court may issue an order of protection for up to ten (10) years.
  • An order of protection may be issued by Family Court in connection with a “Family Offense Proceeding” under Article 8 of the Family Court Act. A Family Offense Proceeding is initiated by the filing of a petition in Family Court alleging that the respondent (the party against whom the petitioner is seeking protection) has committed one or more of certain listed offenses, which are described in more detail below. Family Offense Proceedings are not criminal proceedings. However, the petitioner may still pursue criminal charges at his or her election. Family Court is also authorized, with the petitioner’s consent, to transfer a Family Offense Proceeding to a criminal court for prosecution. 
  • An order of protection may be issued by Supreme Court in a pending divorce action under the Domestic Relations Law. In this case, the party who is seeking the order makes a request to the court by filing a motion, or if immediate protection is required, an emergency Order to Show Cause. In both the Family and Supreme Court contexts, the court is authorized to issue a temporary order of protection on an ex-parte basis (without the other party’s prior knowledge) where the circumstances are such that putting the other party on notice of the application may jeopardize the immediate safety of the person who is seeking the order. 

Family Offense Proceedings

In order to apply for an order of protection in Family Court, the parties must be related by blood or marriage, married or formerly married, have a child in common, or otherwise be or have been involved in an “intimate” sexual or non-sexual relationship. The petitioner must also allege facts which, if true, would constitute one of various listed criminal offenses, including harassment, sexual misconduct, stalking, criminal mischief (vandalism or destruction of property), menacing, assault, identity theft and grand larceny.  In order to obtain an order of protection, only one ground is required; however, it is always best to allege as many applicable grounds as possible.

In a situation where the petitioner is in need of immediate protection, he or she can file a family offense petition in Family Court and appear in front of a judge that same day, who will determine whether sufficient grounds exist for issuing an ex-parte temporary order.  If an ex-parte order of protection is issued, law enforcement will personally serve the respondent with the temporary order of protection, a copy of the underlying family offense petition and a notice to appear in court, usually within 2-3 business days, to answer the petition. At the so-called “initial appearance,” the Court will determine whether to continue the temporary order of protection until it can conduct a hearing. 

Ultimately, the burden of proof rests with the person who is seeking the order of protection. If the respondent will not consent to an order of protection, the petitioner will need to prove at a fact-finding hearing, through testimony and documentary evidence such as police reports, text messages, photographs, etc., that the respondent has committed at least one of the family offenses alleged. If the petitioner carries his or her burden, the court may issue an order of protection for a period of up to two (2) years, or five (5) years upon a finding of the existence of aggravating circumstances.

Once an order of protection is entered, even on a temporary basis, it must be followed. The potential consequences for violating an order of protection are serious. In the case of a complete stay-away order of protection, even sending a simple text message can give rise to a charge for Criminal Contempt in the Second Degree, which is a Class A misdemeanor punishable by up to a year in prison.