WHY HAVE AN ORDER OF PROTECTION?

.
[1.1] WHAT IS AN ORDER OF PROTECTION?

When a court issues an Order of Protection Domestic Relations Law § 240 (3-c): and the document is signed by a judge, it’s essentially a safeguard to protect an individual from harassment or abuse. Restrictions are thus imposed on the threatening partner’s behavior. For example, a judge can order said partner to cease abusive actions, leave and stay away from every residence or workplace or direct the threatening partner to have no contact at all with the aggrieved partner. This might also include decisions of custody, visitation, or child support as well as compensation for the expenses incurred by the abuse. An Order of Protection thus is a court order that tells one person what he/she cannot do to another person, or what contact is allowed. Sometimes an Order of Protection is also called a restraining order.

There is absolutely no fee for an Order of Protection. It must be renewed if applicable after one year, although once the order is issued, only a judge can change it. It is a crime to violate a temporary or final Order of Protection. If an individual violates the Order of Protection, it must be reported to the police. So, what exactly should be done in case of a violation of the Order of Protection?

In cases where there is be immediate danger of harm by the abuser, dialing the emergency number is the best course of action. However, if this is not the case, the injured party may file for a violation of the Order of Protection by going to a police precinct. If there is a Family court Order of Protection, the issue may be filed in Family Court as well as reported to the police. If the filing of a violation of the Order of Protection is only done in Family Court, the subject who violated the order might not be arrested.

It is criminal contempt 2nd degree – Penal Law section 215.50 (3), class A misdemeanor; Criminal Contempt 1st degree – Penal Law section 215.51, class E felony; Aggravated Criminal Contempt – Penal Law section 215.52, class D felony to disobey a temporary or final Order of Protection. This is called a violation of the Order of Protection. Depending on the facts, an abuser can go to jail for up to 7 years if convicted of criminal contempt.

[1.2] WHO QUALIFIES FOR AN ORDER OF PROTECTION?

An Order of Protection may be obtained by any individual N.Y. Crim. Pro. § 530.13 – Protection of Victims of Crimes, Other than Family Offenses seventeen years of age or older who has been abused by a spouse, a former spouse, any adult who has at any time resided with them N.Y. Fam. Ct. Act § 551; N.Y. Dom. Rel. Law § 240(3)(8)(e).[or had an intimate/dating relationship with,] an individual who has stalked them or someone who has had a child with them. If the individual has been threatened or harmed, they can call the police or go to the police station to report a crime. The police can charge the perpetrator with a crime and the court can issue an Order of Protection during any of their court appearances in Criminal Court.

The District Attorney prosecutes the defendant for the alleged crimes. It is not necessary for the aggrieved individual to participate in the case against the perpetrator other than as a witness so it’s not always necessary to have an attorney. The District Attorney’s office may have a ‘Victim-Witness Coordinator’ who could assist in the proceedings for the same. A victim can seek both Family Court and Criminal orders of protection at the same time.

One can also file a family offense petition in Family Court N.Y. Court Family Court Act (“N.Y. F.C.A.”) § 812 – Procedures for family offense proceedings.  to request an Order of Protection. However, a specific sort of relationship must be maintained in this case. Both individuals must have been current or former spouses, related by blood or marriage, or have a child together. They can also have had a current or former intimate relationship, referring to any relationship that is more than a casual relationship that one might share with any other people N.Y. Fam. Ct. Act § 812(1)(e)
.
During any of the court appearances, Family Court can issue a Temporary Order of Protection, even if there is no proof yet that the Respondent broke the law. Either person in a family offense case has the right to an attorney. An attorney will be assigned to represent either if he/she cannot afford one.

[2.1] THE PROCESS REQUIRED TO DECLARE ORDER FOR PROTECTION

The judge issues a temporary Order of Protection CPL § 530.13 Protection of victims of crimes, other than family offenses, or an ex-parte Order of Protection if they believe that there is an immediate or present danger of abuse. This petition may be filed at the courthouse in a county where either individual lives or where the abuse was committed N.Y. Fam. Ct. Act § 818.
.
If the ex-parte order is granted, the law enforcement officer in charge will locate the respondent and serve them, upon which they are required to abide by the conditions ordered by the judge. The ex-parte order thus declared will last until the hearing for the Full Order of Protection.

However, if there isn’t determined to be an immediate or present danger of abuse, a Notice of Hearing will be delivered rather than an ex-parte Order of Protection, which shall be served to the respondent in order to intimate them about the hearing to determine the putative Order of Protection. No restrictions or conditions will be placed on the respondent before the hearing.

What happens after the Ex-Parte Order?
Within 15 days of an Order of Protection, a Full Order of Protection is granted. However, it is required that the Ex Parte Order of Protection was served to the respondent at least 72 hours before the date (not counting weekends and holidays).

At the hearing, both parties must be present in order to present their testimony before a judge. Failure to do so would result in immediate dismissal if the neglect to show is on the side of the petitioner. It also means an automatic grant of the full Order of Protection to the petitioner if the respondent is absent.

[3.1] SERVING FAMILY OR SUPREME COURT ORDERS OF PROTECTION

Either party cannot serve their own Order of Protection. Orders of protection will be served in court by the judge if the defendant/respondent is present.  Experienced Process Servers are usually tasked with serving all Family or Supreme Court Order of Protection.  However, service may also be arranged through any individual who is over the age of 18 as long as they are not a party to the case. It is paramount that the Order of Protection is served as soon as possible and that an affidavit of service is obtained. This affidavit must be notarized and filed with the court in order to prevent delay and dismissal of the suit. This is especially important in a temporary order, which might not go into effect until served.

Orders of protection are issued by a judge to protect an individual from another person who is abusing, harassing, threatening, and/or intimidating them, or has committed a crime against them. It is highly recommended to take additional steps to ensure safety even past the Order of Protection, as it is not always the best option to prevent immediate harm caused by the abuser.

For information on serving orders of protection visit https://undisputedlegal.com/order-of-protection-process-service/ or call (800)774-6922 representatives are available Monday-Friday 8 am.-8 pm. EST.

Sources

1. 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

2. Domestic Relations Law § 240 (3-c):

3. Criminal Contempt 2nd degree – Penal Law section 215.50 (3), class A misdemeanor; Criminal Contempt 1st degree – Penal Law section 215.51, class E felony; Aggravated Criminal Contempt – Penal Law section 215.52, a class D felony

4. N.Y. Crim. Pro. § 530.13 – Protection of Victims of Crimes, Other than Family Offenses

5. N.Y. Fam. Ct. Act § 551; N.Y. Dom. Rel. Law § 240(3)(8)(e).

6. N.Y. Court Family Court Act (“N.Y. F.C.A.”) § 812 – Procedures for family offense proceedings.

7. N.Y. Fam. Ct. Act § 812(1)(e)

8. CPL § 530.13 Protection of victims of crimes, other than family offenses

9. N.Y. Fam. Ct. Act § 818.

 

 

This entry was posted in Domestic Violence and tagged , , , , on by .

BLOG DISCLAIMER

The information contained herein has been prepared in compliance with Section 107 of the Copyright Act. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works. The articles/Images contained herein serve as criticism, comment, news reporting, teaching, educational, and research-as examples of activities that qualify as fair use. Undisputed Legal Inc. is a Process Service Agency and “Not A Law Firm” therefore the articles/images contained herein are for educational purposes only, and not intended as legal advice.