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.
Domestic violence, or family violence, is violent, abusive, or intimidating behavior in a relationship. There are many types of domestic violence, including emotional, sexual, social, financial, spiritual, and physical abuse. For violence to be ‘domestic’, it doesn’t have to occur within the home, only within a relationship (with a family member or an intimate partner). It occurs when the abuser has power and control over the individual. This control or abuse can be expressed in different ways.
An order of protection is issued by the court to limit the behavior of someone who harms or threatens to harm another person. It is used to address various types of safety issues, including, but not limited to situations involving domestic violence New York State Unified Court System. (n.d.). Obtaining An Order of Protection. Retrieved August 30, 2020, from https://www.nycourts.gov/faq/orderofprotection.shtml
TEMPORARY PROTECTION ORDERS. After the Petition is filed, the judge must decide whether to issue a “Temporary Protection Order” based on the Petition. If this Temporary Protection Order is issued, it may include some or all of the following:
Order the victim’s home or work address, the phone number, or other related information deleted from all records filed with the court concerning the Protection Order.
Restrain the defendant from committing or threatening to commit acts of abuse, or from harassing, annoying, telephoning, contacting, or otherwise communicating directly or indirectly with the victim, victim’s minor children, or any other designated family or household member.
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 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.