Orders of Protection & Restraining Orders In New York

by ECL Writer
What Is A Criminal Complaint?

You can get a restraining order or order of protection against someone in New York State without having to file a criminal court complaint, ask for an arrest and meet with the district attorney. The local sheriff or police can serve you with an order of protection without an arrest warrant, too. A petitioner (similar to a victim of a crime in a criminal setting) has the option to get an order of protection under certain conditions under the Family Court Act of New York. These restraining orders offer the same amount of protection as criminal restraining orders, as your order of protection or Family Court lawyer can explain.

This means that a court may grant a petitioner a full stay-away order stipulating that the respondent (such as a criminal defendant) is not permitted to communicate with the petitioner in any way, whether the respondent lives or works in Manhattan, Brooklyn, Queens, the Bronx, or any other area of the State of New York or New York City. The respondent may be detained by the police and prosecuted with criminal contempt as a misdemeanor or crime if a Family Court order of protection is broken. If found guilty, you could spend some time in jail or even a state prison in New York. Don’t be misled. Orders of protection from the Family Court are extremely effective instruments for both persons seeking security and, if necessary, police enforcement.

Similar to this, anyone brought before a New York Family Court must defend themselves against an unwarranted attack on their reputation, a “record” pertaining to the restraining order, and other unintended effects. Even worse, if the petitioner files a criminal complaint as well, he or she may find themselves in conflict with both the Family Court and the Criminal Court at the Integrated Domestic Violence Court, which is located in every county.

Understanding Order Of Protection

You can obtain a limited or full order of protection if your ex-spouse, sibling, or even a short-term romantic partner with whom you had an intimate relationship is harassing you or committing another crime that violates the Family Court Act (referred to as a family offense). Nevertheless, just because you request one does not guarantee that a judge will approve it. You must write and submit a petition before going to Family Court in Manhattan, Brooklyn, Queens, or the Bronx. This is quite comparable to making a formal complaint to the police, but it varies in that you have to appear in person before the court.

It is sage and judicious to first go over your justification for the request with your lawyer. In fact, it is preferable to get legal assistance so that he or she can construct your petition in advance rather than filling out the petition by hand without any guidance when you arrive at court. It is more likely that the judge will approve your petition and issue an order of protection if you work with an experienced Family Court attorney who can clearly and concisely lay out all the relevant information. Also, you might not be able to make these claims in the future if you don’t resolve all of the earlier misuses.

Following the submission of your petition, you will meet with the judge, who will hear your statement and examine your documents. The judge will next decide whether to grant your request or not. The judge must have good reason before issuing you a protective order. If the judge grants you a temporary order of protection, it will apply while your case is being tried or heard. In either case, the judge will assign you a return date and instruct you to serve the respondent so that they appear in court on the appointed day.

Types Of Family Court Order Of Protection

A judge can issue or grant a complete or limited order of protection in Family Court, just like they can in an NYC Criminal Court, Supreme Court, County Court, or municipal Justice Court. A total stay away is the order of protection in its entirety. That entails absolutely no communication in any way, whether it be directly, indirectly, or through a third party. Nothing—no calls, texts, visits, etc. The constrained order permits “normal” communication. That is consistent, reasonable communication on a daily basis. But, if you do harass, threaten, or assault that individual (or if they do this to you), you could also be charged with criminal contempt for breaking the order in addition to any potential criminal charges.

Once more, the full order of protection in the first group forbids all interaction, but the limited order in the second category just forbids specific behaviors. Make sure you comprehend the guidelines completely, then go over them with your attorney. You cannot use ignorance of the scope of the petitioner’s protection as an excuse for breaking a protection order.

Resolving And Finalizing A Family Court Petition For An Order Of Protection

Every case is unique. Each case necessitates a distinct evaluation and presentation before the judge. In general, you have two options: fight the case and demand a trial, or accept a consent order of protection in the petitioner’s favor without any factual findings. The respondent may also cancel the order. This is very dissimilar to criminal court, where the prosecution is in charge of both the criminal case and the restraining order.

There are other worries or issues that may influence your decision, which you should consider further with your lawyer. One reason why some people choose the Family Court over the police to obtain an order of protection is that they will have more control as the petitioner. It is crucial to have knowledgeable legal representation, whether you are the petitioner or the responder. The last thing you want to do is inappropriately file or react to an order of protection, especially if the opposing party has legal representation. Due to the overwhelming volume of cases in the Family Court, retaining legal counsel may speed up a resolution or allow you to capitalize on your opponent’s weaknesses.

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