Persons covered by a Protection Order include the victim, minor children of the victim, and designated household or family members.These people will be referred to as “the victim”. The alleged abuser will be referred to as “the defendant”.
The Family Court of the State of New York has the authority to decide cases affecting the lives of children and families. The court has a wide range of powers to fit the needs of the people who come before it.
The Family Court Act gives the Family Court power to hear certain types of cases. Each case filed is given its own identifying number, called a “docket number.”
The docket number begins with a letter that identifies the type of case filed:
In a crisis situation, a call to the police is a good place to start. Many people complain that police do not take accusations of domestic violence seriously. That can be true in some circumstances, but on the whole, police are treating domestic violence situations more seriously, and police officers are receiving increased training on the subject.
The local state attorney or district attorney also may be able to offer some help. An increasing number of hospitals, crisis intervention programs, domestic violence shelters, and social service agencies have programs to help victims of domestic violence. Agencies offering help in cases of domestic violence might be found on any search engine under “Domestic Violence Help,” “Human Services Organizations,” or “Crisis Intervention.”
If one is working with an attorney in connection with a divorce, the attorney also should be able to initiate the appropriate legal proceedings.
In 1994 Congress enacted the Violence Against Women Act. The more formal title of the new law is the Civil Rights Remedies for Gender Motivated Violence Act. Prior to this statute, laws against domestic violence were almost exclusively at the state level.
The Violence Against Women Act allows a person to sue for damages if another person “commits a crime of violence motivated by gender.” The new law is part of the federal government’s civil rights statute. If the crime of violence constitutes a felony against the person or the property of the victim, the victim can sue the assailant for both compensatory damages and punitive damages.
Compensatory damages are designed to compensate the victim for the loss. The damages could include medical expenses, lost wages, pain, and suffering. Punitive damages are an added amount of damages not for the purpose of compensation but rather for the purpose of punishing the assailant and deterring future abusive conduct. Punitive damages, however, are still paid to the victim.
If your relationship to the abuser does not allow you to file a petition in Family Court you must seek relief in the Criminal Court. The procedure for obtaining an order of protection in Criminal Court is completely different than in Family Court. In Criminal Court the District Attorney, based on an arrest must bring a criminal case against your abuser in order for you to obtain an order of protection. The order will be temporary and you will receive it in the mail. If your abuser is convicted of the criminal offense against you, the temporary order of protection can be made “permanent”. For more information about a Criminal Court order of protection contact the Westchester County Domestic Violence & Child Abuse Bureau, or Attorney’s Office at (914) 995-3000.
In order to receive an order of protection from the Family Court the abuser must either be someone you are married to or divorced from; the parent of your child(ren); related to you by blood, such as a child, parent or sibling; or someone who you are or have been in an intimate relationship with, regardless of whether you have lived with the abuser or whether the relationship is of a sexual nature. Initially the order that you obtain in Family Court is temporary and only becomes effective once the alleged abuser (“abuser”) is served with it. You cannot serve the order of protection yourself. The order of protection must be served by either the police or anyone other than you who is over the age of 18.
On the same day that you receive the temporary order of protection you will get a future court date. On that date, both you and the abuser will have to go to court to appear before the judge. The abuser may either opt to admit to the allegations in the petition and consent to abide by the order or deny the allegations. If the abuser admits to the allegations in the petition and consents to abide by the order, the order will become “permanent” (meaning that the order will last for a fixed amount of time, usually one or three years). If the abuser denies the allegations a date will be set for a “fact finding hearing”, which resembles a trial. If after the fact finding hearing the court finds that the abuser did indeed commit the allegations in the petition, your order of protection will become “permanent” (meaning that the order will last for a fixed amount of time, usually one or three years). If after the fact finding hearing the court finds that the abuser did not commit the allegations, the case will be dismissed and the temporary order of protection will end. If the abuser is served and fails to appear in court the judge will either adjourn the case and schedule another time for the abuser to appear or will grant your petition in the abuser’s absence.
You must go to the Help Center (“Petition Room”) between 8:30-5:00 Mon.- Fri. After you tell the clerk at the front desk you are there, you will be given forms to fill out, including one to write down the incidents of violence. When your name is called, you will see a clerk who will write the petition based on the information you gave on the form.
There are no filing fees in Family Court.
What Should I Put on My Petition for an order of protection?
Write down as many details as possible. In order to obtain an order of protection you must state that a “family offense” occurred. Many actions are family offenses, such as when a person verbally, physically, emotionally, or sexually abuses you, or threatens to hurt you. Describe when each incident occurred, where it occurred, what happened, whether you were injured (bruises, cuts), and whether weapons were used. It is best to include the most recent incident, the first incident and the worst incident. If there was verbal abuse, tell the clerk the exact words the respondent used. Tell the clerk if there is criminal court involvement and if there were earlier orders of protection. Before you sign the petition, read it carefully and tell the petition clerk if anything important has been left out. Make sure the petition is accurate and fully states what you want to tell the Judge.
1) you are related to the respondent by blood or marriage;
2) you are or were legally married to the respondent;
3) you have a child with the respondent; or
4) you are or were in an intimate relationship with the respondent.
Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”.
The summons with notice, petition for an order of protection and temporary order of protection must be personally served (handed to) the respondent. Generally, this means hiring a professional process server agency. The process of how to determine which Process Server Agency to call, and then how to figure out if they’re the right fit for your case is sure to be an important one, and there can be no doubt that you want to get it right. There are a couple of things that you should keep in mind as you look for theProcess Server Agency that is right for you. First, your Process Server Agency should be familiar with divorce & family court documents. Taking advantage of a Free quote can be a great way to get a feel for what the process server agency can offer you, and whether or not they treat you as a person or case number. This idea of being more that a case number is important because it can change the way the Process Server Agency handles your case. This is so often the case because they have a feel for the struggles of that given area, and are invested in the well being of the people who seek out their help. If you’ve been less than impressed by a Process Server Agency, you should feel free to find a different Process Server Agency without feeling guilty. You are a person of worth, and your Process Server Agency should recognize this and treat you accordingly. Your case is individual, and your Process Server Agency should treat it as such. By using the knowledge and experience that they have gained in cases similar to yours, Your Process Server Agency should be able to give you useful information as you proceed through whatever legal steps your case requires. Any person over eighteen years old, except you, may serve these papers.