By: Akanksha A. Panicker
As mentioned in the earlier article, an Order of Protection is merely a document issued by the court to limit the harmful or threatening behavior of a person to another. It is used to address safety issues, including domestic violence.
Orders of Protection may be full or limited. This means that an individual can get a temporary Order of Protection, which will be issued on the day of filing for the order by the complainant and lasts till the next court date [although it may be subject to extension] or may get a final Order of Protection. A final Order of Protection is issued upon the conviction of the individual by plea or after a trial and required that the judge find the offense committed
It must be kept in mind that the degrees of protection afforded to an individual will vary across cases. One might be awarded a full Order of Protection, wherein the perpetrator is forced to stay completely away from the individual and their home, or a limited Order of Protection may be given where the subject is allowed to maintain highly restricted contact with the victim. One can get an Order of Protection from a Family Court, a court that hears criminal cases, and a Supreme Court.
Being in an intimate partner relationship or a victim of domestic violence will qualify for a case in a Family Court. This must be initiated by filing a Family Offense Petition in order to ask the court for an Order of Protection. The filing of a petition here will be free, as a Family Court Order of Protection is issued as part of a civil proceeding to stop the violence that is occurring within the family or within an intimate relationship The person who files the petition is called the Petitioner (domestic violence victim). The person that the petition is filed against is called the Respondent (accused abuser). However, it is required to file the petition in person at the courthouse, unless the individual is working with a domestic violence advocate group.
A requirement to obtain an Order of Protection in family court is to have a relationship that classified as a current or former spouse, any individual with whom a child has been had, a family member relationship through marriage or consanguinity, or any individual who falls under the heading of an intimate relationship. This does not necessarily mean a sexual relationship, and the court will consider the frequency or longevity of the relationship.
It is required in a case in Family Court to list the ‘family offenses’ – acts of crimes that the Respondent committed, like assault, harassment, or stalking in detail, and to further explain the reliefs that might be sought. Specific details about reliefs need to be clarified, whether it is a requirement of the respondent to move out of the home, to stay away from the children and follow custody orders, or even pay child support.
After the petition has been filed, the petitioner will present their narrative before a judge in the absence of the respondent, whereupon the judge will decide whether a temporary Order of Protection is necessary to be granted. The temporary order must be served upon the respondent before it takes effect.
Most criminal domestic violence cases start with an arrest and criminal charges for Domestic Violence Acts. In a criminal court Order of Protection, an Assistant District Attorney will request for the order on the behalf of the petitioner. The main difference between the Family Court Order of Protection and that of the Criminal Court is that an intimate or personal relationship is not necessary herein. The person charged need not have a special relationship with the petitioner, and the decision of the judge rests solely on them. The terms and conditions of this order will also be delineated on a case-wise basis. It must be kept in mind that a Criminal Court case requires a higher level of proof (beyond a reasonable doubt)
A criminal domestic violence case can also start by going to the police or the district attorney to report a crime. The police can charge the other person with a crime and during any of the court appearances in Criminal Court, the court can issue an Order of Protection. New York has a mandatory arrest policy for domestic violence cases, even if asked not to make an arrest. Of course, this is not held to be the case if there is no Order of Protection or the abuser commits a misdemeanor crime.
Upon conviction, a final Order of Protection may be ordered alongside counseling, conditional discharge, a fine, probation, and even imprisonment. Restitution may also be ordered to cover the cost of medical facilities.
A Supreme Court Order of Protection will be issued as part of an ongoing divorce or criminal proceeding, but only if a written request is provided by a Motion or Order to Show Cause. This may also be through an oral request at a court appearance by the party or the representative attorney.
[2.0] OTHER ORDERS OF PROTECTION
It must also be remembered that an Order of Protection need not necessarily come by way of one party alone. Mutual Orders of Protection and Consent Orders of Protection allow for a more flexible manner in ensuring restrictions on hitherto intimate partner relationships
A mutual Order of Protection may also be granted in case both parties have filed Ex-Parte Orders against each other. When this happens, it’s required that both parties abide by the provisions in the order. Either individual can be arrested if the police have probable cause to believe that the terms of the order have been violated. Both parties may have restrictions in any type of verbal or direct abuse, violent reactions and attempts to coerce or manipulate. The protected party may tell the partner to leave the house, work, family, or another private residence.
By law, a mutual Order of Protection can only be granted if both parties have filed Ex-Parte orders against each other
[2.2] CONSENT ORDERS OF PROTECTION
When both partners agree to the terms and provisions of the order, an Order of Protection may be granted by consent. This does not mean that the alleged perpetrator agrees to the allegations of abuse against them but only means that the respondent and petitioner can circumvent the detailing of violence and abuse to the judge that is done in an evidentiary capacity. The judge will not make a finding on the occurrence of abuse but will sign the Order of Protection and grant it enforceability.
A Consent Order of Protection cannot be used as evidence in future legal proceedings. What this means is that since the finding of abuse was not a criterion in the ruling, the consent Order of Protection cannot be held convincing evidence in cased of divorce, child custody, or criminal prosecution. Order without a finding [which is on consent] will have the same effect and will protect an individual in the same matter as an order after a trial would. Upon violation, the respondent can still be arrested.
On order without a finding (on consent) has the same effect and will protect you the same way that order after a trial would. If the order is violated, the respondent can be arrested. However, order on consent does not establish that the respondent did anything wrong for use in other proceedings, such as custody or visitation.
For more information on serving orders of protection, contact our order of protection process service (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST. If you found this article helpful, please consider donating. Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us! We also invite you to check out Why Have An Order Of Protection
1. NY Fam Ct Act § 828(1)(a)
2. Held in Family court.
3.N.Y. Fam. Ct. Act § 551; N.Y. Dom. Rel. Law § 240(3)(8)(e).
4.F.C.A. §§ 812, 818, 821 Form 8
5. Family Court Act ‘812(5); Form 8-1 Criminal Procedure Law ‘530.11(2-a)]