Overview of the Law

How to Get an Order Protection

Custody Information

Divorce Information

 

 

Overview of Order Protection:
(Adapted from www.Womenslaw.org)

 

What is the legal definition of "family offense" in New York?

Family offense includes any of the following acts when between people who are married, separated, divorced, have a child in common, or are related by blood or marriage:

  • Disorderly conduct
  • Harassment
  • Aggravated harassment
  • Stalking
  • Menacing
  • Reckless endangerment
  • Assault
  • Attempted assault

    -----------------------------------------------------------

What is an Order of Protection? How long does it last?

An Order of Protection is a court order that is designed to stop violent and harassing behavior and to protect you and your family from an abuser. In NY, you can get an order in Family Court, Criminal Court, or Supreme Court.

In Family Court, a Final Order of Protection may last up to five years, depending on the facts of your specific case. Usually the order will be granted for up to 1-2 years. But if the judge determines that there are aggravating circumstances (including serious physical injury, use of a weapon, repeat violations of orders, prior convictions of abuse, etc.), you can request that your order last for up to five years.

When you go to Family Court or Supreme Court to file for an Order of Protection, the judge may decide to issue you a temporary Order of Protection if s/he believes that you are in immediate danger. The temporary Order of Protection will last until you can have a full court hearing or other hearing. The abuser will have an opportunity to attend the full court hearing and present his side. Based on the testimony and evidence, a judge will decide whether to issue a permanent Order of Protection.

In Criminal Court, you may receive a temporary Order of Protection at the time your abuser is arrested and then charged with a crime.

---------------------------------------------------------------

How can an Order of Protection help me?

In an Order of Protection, a judge can set limits on your abuser’s behavior. Among other things, judges in all courts (Criminal, Family, and Supreme) can:

  • order the abuser to stop abusing you and your children;
  • tell the abuser to leave and stay away from your home, your workplace, and your family;
  • direct the abuser to have no contact with you—including no phone calls, letters, or messages through other people;
  • order the abuser to stay away from the children, their babysitter, day care, or school; and
  • order the abuser to turn in all weapons.
  • order the abuser to not intentionally injure or kill, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the petitioner or a minor child residing in the household.

While an Order of Protection cannot guarantee your safety, it can help because:

  • Police are likely to take your calls more seriously if you have an Order of Protection.
  • Your abuser can be arrested and put in jail if he violates an Order of Protection.
  • If you have left your home, an Order of Protection can make it easier for you to get the police to go with you to get your personal belongings.
  • If you are being stalked or harassed at work, an Order of Protection can protect you at your job.
  • Violations of certain provisions of an Order of Protection can result in your abuser being charged with a felony.


---------------------------------------------------------------

Who can get an Order of Protection and in which court?

You can get Orders of Protection in both civil and criminal courts in New York. However, not everyone is eligible to apply in civil court.

Family Court. Family Court is a civil court. You can apply for an Order of Protection in Family court if you are legally married to, separated, or divorced from your abuser, or if you are related by blood or marriage, or if you have a child in common with your abuser. If you are eligible for Family Court, you can choose to go to Family Court or Criminal Court, or both at the same time.

Criminal Court. You can get an Order for Protection, whether or not you are related to your abuser, in criminal court. However, an Order of Protection can only be issued after criminal charges are filed. If you are pressing charges against your abuser, the district attorney will handle the case. If charges are being made against you, you should get an attorney to defend you.

To get a criminal court order, there must have been an arrest or a criminal charge. It is often easier to get a Temporary (or emergency) Order of Protection from Family Court. A Family Court Order of Protection can do more than a criminal court order.


---------------------------------------------------------------

How much does it cost to get an Order of Protection?

There are no fees to file a petition for an Order of Protection in New York state.


---------------------------------------------------------------

What are the steps for getting an Order of Protection? (temporary or permanent)

Step 1:

  • Choose which court you want to file in
  • Once you decide which court, go the appropriate courthouse located in the county where either you or your abuser lives, or where the act took place. It is always better to speak to a lawyer before you try to file anything (To find the courthouse in your area, go to NY Courthouse Locations & Info.)
  • At the courthouse, ask the clerk for the forms that you need to file. You can also find links to online court forms on our Download Court Forms page.
  • Also, you can get help with this process through one of the domestic violence agencies listed on our NY Links & Resources page.
  • If the incident was reported to the police, you should bring the police report to court, if possible. Remember to bring some form of identification (a driver's license or another picture I.D.).

Step 2:

  • Fill out the forms
  • Carefully fill out the petition. You will be the "Petitioner" and your abuser will be the "Respondent."
  • If you need a temporary order to protect you right away, remember to tell the clerk or judge that.
  • Read the Petition for an Order of Protection carefully and ask questions if you don’t understand something. Describe in detail how the abuser (respondent) injured or threatened you. Explain when and where the abuse or threats occurred. Write briefly about the most recent incident of violence, using descriptive language (slapping, hitting, grabbing, strangling, threatening, etc.) that fits your situation. Be specific. Include details and dates, if possible.
  • Note: Do not sign the form until you have shown it to a clerk. The form might need to be signed in front of a notary public or a judge.
  • If you do not want to put your address on the forms, tell the clerk.

Step 3:

  • A judge will review your petition.
  • After you finish filling out your petition, bring it to the court clerk. The clerk will take it to a judge who may issue either a summons for your abuser to appear in court on a certain date, or a warrant for his or her arrest, depending upon the circumstances.
  • The judge may also issue a temporary Order of Protection and a temporary Order of Support, which will last until your full court hearing. A judge will decide this based on the facts you wrote in your petition.
  • In order to get a permanent Order of Protection, you will have to have to have a full court hearing and your abuser will have an opportunity to be present.

Step 4:

  • Service of process
  • The court will give you instructions on how the summons, petition, and Order of Protection can be served on (delivered to) your abuser. The court will also tell you that you have the right to have the Police Department serve the summons, petition, and Order.
  • This is important because your abuser needs to know if there is a temporary Order of Protection in place and when to show up for the full court hearing.
  • Please remember that a person has to be over 18 years old to receive service and you cannot serve someone yourself. The police are also required by law to help with service and have to try more than once.
  • An Order of Protection does not go into effect until it is served.

Step 5:

  • The Hearing
  • It is very important that you attend the court hearing. If you find out you absolutely cannot attend, contact the court clerk immediately and ask how you can get a "continuance" for a later court date. If you do not attend, the judge may dismiss your case and any temporary Orders of Protection will stop being effective.
  • At the hearing, you will be asked to testify in court about the abuse and harassment you have experienced. The abuser will also be allowed to present evidence and testify at the hearing.
  • If your abuser does not attend the hearing, the court may issue a "default judgment" and you may receive an Order of Protection against him in his absence. Or, the court may decide to reschedule the hearing for a different day.
  • If you have a temporary Order of Protection, it expires the day of the hearing if the abuser shows up. If the abuser does not show up, and the judge reschedules the hearing, be sure to confirm that your temporary order is still in effect.


---------------------------------------------------------------

FOR THE FOLLOWING QUESTIONS, CONTACT US SO WE CAN GUIDE YOU FROM HERE:

What should I do before the hearing to prepare my case?

What should I do on the day of the hearing?

What is the order of events in the courtroom?

What should I do when I leave the courthouse?

Do I need to have an attorney?

What if my abuser disobeys the Order of Protection?

What happens if I move or need to change my order?

 
© 1990 - 2008 Asian Women's Alliance for Kinship & Equality (AWAKE). All Rights Reserved.