In New York, you do not have to go to Criminal Court to obtain an Order of Protection against another person. The Family Court Act allows Petitioners to seek Orders of Protection in a civil proceeding in Family Court without involving the office of the District Attorney. Orders of Protection from both Family and Criminal Court offer the same level of protection.
Family Court can be a worthwhile option because it offers the Petitioner more control than they would have in Criminal Court. In Family Court, the Petitioner can decide to drop the case at any time, but in Criminal Court it is the Prosecutor who decides whether or not to continue. Additionally, Family Court requires a lower standard of proof than Criminal Court. If a Family Court Order of Protection is violated, the Respondent can be arrested and charged with criminal contempt and may be sentenced to jail time.
A Petition can be filed with Family Court ONLY if the Respondent 1) committed a Family Offense and 2) the Petitioner and Respondent have a qualifying Relationship.Family Offenses
In order to get a Family Court Order of Protection, you must allege a specific Family Offense in your Petition. Not all crimes committed are Family Offenses. To get an Order of Protection you must allege one of the specific offenses listed below:
- Disorderly conduct
- Menacing in the 2nd or 3rd degree
- Harassment in the 1st or 2nd degree
- Aggravated harassment in the 2nd degree
- Assault in the 2nd or 3rd degree
- Sexual misconduct
- Sexual abuse in the 2nd or 3rd degree
- Identity theft in 1st, 2nd or 3rd degree
- Coercion in 2nd degree
- Reckless endangerment
- Criminal mischief
- Attempted assault
- Criminal obstruction of breathing
- Forcible touching
- Grand larceny in 3rd or 4th degree
If you cannot allege one of these specific offenses, Family Court may not be the right forum for you. You may still have a case in Criminal Court and may be able to seek a Criminal Order of Protection. If you can allege one of these offenses, you still need to have a relationship that meets the criteria listed below to seek an Order of Protection in Family Court.Relationships
In order to get a Family Court Order of Protection, the Petitioner and Respondent must have a relationship that meets one or more of four criteria:
- They are related by blood or marriage OR
- They are or were legally married OR
- They have a child together OR
- They have or had an intimate relationship (The relationship does not need to be sexual, though that would qualify. The Court will decide if the relationship is “intimate” by examining several factors.)
Though the list of criteria seems short, it encompasses a variety of different relationships in its application. The following sample relationships could all fall under the jurisdiction of Family Court:
- an uncle smashed your cell phone
- an ex-wife won’t stop texting you
- your child’s father leaves threatening posts on Facebook
- your girlfriend slashed your tires
- your ex-boyfriend repeatedly shows up at your place of work
Please contact The Law Offices of Andrew J. Gilbride, Esq. if you have questions about whether your relationship meets the criteria for Family Court. We can help you make that determination and draft a Petition that will be best received by the Court and will maximize your success. If you do not meet the above criteria, you may still have a criminal case and should see our section on Criminal Court.Filing the Petition
If there has been a Family Offense and you and the Petitioner have a qualifying relationship, you may file a Petition for an Order of Protection in Family Court.
While Family Court is a user-friendly Court, there is a downside to filing a Petition without the assistance of professional counsel. Many Petitioners are unfamiliar with Family Court and are unsure of what to include in their Petition. A Judge may dismiss or deny a Petition that does not allege the facts necessary to warrant granting an Order of Protection or for not properly alleging the violation of a family offense. Furthermore, if the Petitioner fails to include all prior incidents, the Petitioner may be barred from bringing those claims in the future. Please contact The Law Offices of Andrew J. Gilbride, Esq. and let us use our knowledge and experience to help you draft a Petition that maximizes your success.Types of Orders of Protection Stay Away
After your initial filing, the Court will make a determination as to the severity of the allegations and issue a Temporary Order usually that day. A Stay Away Order of Protection is the more severe of the Orders. If you and the Respondent are living together, the Respondent must immediately leave the home and stay away. A Stay Away Order provides a more complete level of protection because it means that the Respondent is to have no contact with you whatsoever, including texts or calls, unless it involves a minor child of the parties.
Additionally, the Respondent is ordered to refrain from committing any of the Family offenses listed above and the Order may be extended to other family members.Refrain
A Refrain Order does not limit contact so completely. This Order of Protection is the same as above except there is no prohibition against living together, a Respondent is not forced from the home and the parties can still communicate. This does not mean that the Respondent can harass or threaten the Petitioner or engage in any of the Family Offenses listed above. Instead, it means that the Petitioner and Respondent are allowed “normal” contact and the Respondent is ordered to refrain from committing any of the Family Offenses.
If either type of Order is violated, the Respondent can be arrested and charged with criminal contempt and may face jail time.False Accusations
The legal standard used in determining the validity of an Order of Protection Petition is by a “preponderance of the evidence” a lesser standard than the criminal standard “beyond a reasonable doubt”. The Court often times relies on their own determination as to the credibility of the parties and makes a judgment call.
The unfortunate unwanted use of the Order of Protection Petition attempting to get an Stay Away Order to achieve the Supreme Court Divorce determination granting one party “exclusive use and occupancy of the home” have led to outlandish unsupported and patently false accusations.
Whether you are the victim or alleged perpetrator, Orders of Protection can have dramatic ramifications as to the way you live your life. There are complex interpretations needed in regards to the legal standards, admissibility of evidence and most importantly safety.
Please contact The Law Offices of Andrew J. Gilbride, Esq. and allow us the opportunity to discuss your current situation, present options and alternatives and represent your interests.