What is an Order of Protection and how long does it last?
Is it helpful to have an Order of Protection?
Who is eligible to get an Order of Protection and in which court?
How much does it cost to get an Order of Protection?
A basic overview of the steps for getting an Order of Protection
Do I need to have an attorney?
What happens if an abuser violates the Order of Protection?
An Order of Protection is a court order that is designed to stop violent and harassing behavior and to protect an individual and their family from an abuser. In New York, one can get an Order of Protection in Family Court or Criminal Court. A permanent Order of Protection can last up to 5 years. Usually, an order will be granted for 1 or 2 years. But if it is found that there are really aggravating circumstances such as serious physical injury, use of a weapon, repeated violations of Orders, or prior convictions of abuse, then one can request that your Order of Protection be granted for up to 5 years.
When one goes to Family Court or Supreme Court to file for an Order of Protection, the judge may decide to issue a temporary Order of Protection if they believe that there is immediate danger. The temporary Order of Protection will last until one gets a full court hearing. The abuser will also have an opportunity to attend the full court hearing and present his/her side. Based on the testimony and evidence that is provided at the hearing, the judge decides whether or not to issue a permanent Order of Protection. In Criminal Court, you may receive a temporary Order of Protection at the time when one’s abuser is arrested or is charged with a crime. Please review the section on Criminal Law for more details.
An Order of Protection protects an individual by putting restrictions on the abuser’s behavior. Judges in all courts (Family, Criminal, and Supreme) can:
- Order the abuser to stop abusing you and your children;
- Order the abuser to leave and stay away from your home, your workplace, and your family;
- Order the abuser to have no contact with you, which includes no phone calls, letters, or even messages through other parties;
- Order the abuser to stay away from the children, their babysitter, day care, or school; and,
- Order the abuser to turn in all weapons.
Additionally, Family Court judges can:
- Decide issues related to custody, visitation and child support;
- Order the abuser to pay for expenses that may be consequences of the abuse, e.g. medical care, property damage, etc.; and,
- Decide on the division of certain types of personal property (things that you own).
Please note that whether or not a judge actually orders any or all of these things depends on the specific facts of your case. An Order of Protection cannot fully guarantee that one will be completely safe from one’s abuser. However, it can be a useful strategy in the following ways:
- When calling the police, your request may have a greater impact if you have an Order of Protection;
- If the abuser violates an Order of Protection, s/he can be arrested and put in jail. In fact, under certain circumstances, police may be required to make an arrest;
- If you have left home, an Order of Protection can make it easier to get the police to accompany you to get your personal belongings;
- If you are being stalked or harassed at work, an Order or Protection can help to protect you at your job; and,
- Violations of certain provisions of an Order of Protection can result in a felony charge against the abuser.
It is possible to obtain Orders of Protection in both civil and criminal courts in New York. However, everyone is not 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 to your abuser through blood or marriage, or if you happen to have a child in common. If you are eligible for Family Court, you are also eligible for Criminal Court and can choose to go to one or both at the same time.
Supreme Court – Supreme Court is also a civil court. If you are getting a divorce, separation, or an annulment, you can request an Order of Protection any time before the trial or settlement is final in Supreme Court. When an Order of Protection is part of a divorce order from Supreme Court, it is permanent and it will not expire. However, making changes to a Supreme Court order can be difficult and expensive.
Criminal Court – Criminal court can grant an Order of Protection, regardless of whether or not one is related to the abuser. However, an Order of Protection can be issued only after criminal charges have been filed. If you are pressing charges against your abuser, the district attorney will handle the case. Criminal Court is where one can file for an Order of Protection against a current or former same-sex partner if the abuser has been charged with a crime.
If you are eligible for Family Court (and consequently Criminal Court), then you may want to consider the following factors to decide between the two or both:
- To get a Criminal Court Order, there had to have been an arrest or a criminal charge. Click here for more information on Criminal Law;
- It is often easier to get a temporary or emergency Order of Protection from Family Court;
- A Family Court order can do more than a Criminal Court Order;
- Criminal Court cases demand a higher standard or evidence with regards to what happened compared to Civil Court cases and may take a longer time to be resolved; and,
- In Family Court, a case can only proceed if one follows it through. In Criminal Court, the District Attorney can decide to pursue a case with or without the victim’s involvement.
Step 1 – Choose which court to file in.
- In the previous section we discussed what comprises eligibility for each court. Once you have established your eligibility and decided which court(s) to go to, choose the appropriate courthouse located in the county where either you or your abuser lives or where the incident occurred. If you are in New York State, to find the appropriate courthouse in your area, go to http://www.nyed.uscourts.gov/General_Information/Courthouse_Locations/courthouse_locations.html;
- At the courthouse, ask the court clerk for the appropriate forms that you need to file; and,
- You should take with you a picture ID as well as copies of police reports, if there are any.
Step 2 – Fill out the forms.
- Fill out the petition for an Order of Protection. You will then be the Petitioner and your abuser will be the Respondent;
- If you need immediate protection through a temporary order you need to tell the clerk or judge that information;
- If you do not understand something on the petition, do not hesitate to ask. Your descriptions of the abuse, injuries, and/or threats should be detailed and specific. To the extent that it is possible, you should try and mention dates, times, places where the abuse occurred and so on. Try and use precise language such as ‘slapping’, ‘pushing’, ‘punching,’ etc. and also mention and describe the most recent incident of abuse;
- Do not sign the petition until you have shown it to the clerk. The Petition might need to be signed in front of a notary public or a judge; and,
- If you do not want to list your address on the Petition due to safety concerns, you should tell the clerk.
Step 3 – A Judge will review your petition.
- Once you have filed your petition, bring it to the court clerk, The clerk will take it to a judge who might issue either a Summons for your abuser to appear in court on a certain date or the judge may issue a warrant for his/her arrest, based on the case facts;
- The judge may issue a Temporary Order of Protection and a Temporary Order of Support, which will last until the court hearing. Once again, the judge will decide this based upon the case facts described in your petition; and,
- In order to get a Permanent Order of Protection, you will have to have to a full court hearing and your abuser will have an opportunity to be present at the hearing.
Step 4 – The Order needs to be served.
- The court should give you instructions on how the summons, petition, and Order of Protection can be served on or delivered to your abuser. The court will also inform you that you have the right to have the Police Department serve the summons, petition, and order. This is an important step, because for the Temporary Order of Protection to be in effect, the abuser needs to know that it has been issued as well as when to appear for the full court hearing.
Step 5 – The Hearing needs to occur.
- It is really important for you to attend the court hearing. If you absolutely cannot attend for some reason, you should contact the court clerk or tell your attorney (if you happen to have one) immediately and ask how you can get a continuance for a later court date. If you just do not show up, the judge can dismiss your case which would cancel any Temporary Orders of Protection;
- If the abuser (Respondent) does not attend the hearing, the judge may issue a ‘default judgment’ whereby you receive a Permanent Order of Protection in his absence. On the other hand, the judge may reschedule the hearing for another day; and,
- If you have a Temporary Order of Protection, it will expire on the day of the court hearing if the abuser shows up at the hearing. So if the abuser does not show up and the judge happens to reschedule the date of the hearing, make sure that your Temporary Order remains in effect until the next date.
The court should inform you and your abuser that you are both entitled to hire an attorney to represent your respective cases. If either of you cannot afford to hire an attorney, you may request the court to appoint you one at no cost. Although you do not have to have an attorney represent you at the hearing, it is good idea to consider it, especially if the abuser has legal representation for his/her side.
- If your abuser violates the Order of Protection, you should report the violation to the police by calling 911. As a result, the police may arrest your abuser;
- It is also possible to file a petition in either Family or Criminal Court claiming that a violation of the Order of Protection has occurred. The violation petition and a summons have to be served upon the abuser or the court may issue a warrant for arrest, depending on the facts/circumstances of the violation. To file a violation petition, you will need to go back to the clerk of the court where you originally filed to obtain your Order of Protection; and,
- The court may hold another hearing to determine whether the abuser violated the Order of Protection. If the court finds the abuser guilty of the violation, then a dispositional hearing will take place to determine what action should be taken against the abuser. The Probation Department can be asked to conduct an investigation and make a recommendation to the court based upon the findings of the investigation. Some of the possible courses of action against the abuser may be probation, incarceration, a fine, or a change in the conditions in your Order of Protection.