An Order of Protection is a court order requiring a person to stay away from the person of another and/or refrain from committing certain specifics acts against another person. In New York, an order of protection may be issued in family court if the parties are considered family members, in criminal court during the course of a criminal case, or in supreme court as part of a pending divorce proceeding. This article will focus on the process of obtaining a family court order of protection in New York State.
In New York, family members have the unique ability to get orders of protection against another family member without having that person go through the criminal justice system. In New York, individuals that are considered family may petition for and receive a civil order of protection against another family member if a family offense was committed against the petitioner by said family member. Of course, the victim or alleged victim still has the right to seek a criminal prosecution in addition to or instead of seeking the civil order of protection. The civil order of protection has the same effect as a criminal order of protection even though the family court order of protection requires a lower standard of proof, “fair preponderance of the evidence,” than the criminal court’s “beyond a reasonable doubt” standard. Despite the name, a violation of a civil order of protection may subject the violator to arrest and criminal prosecution.
When a petitioner files an order of protection case in family court, the court will often immediately grant a temporary order of protection ex parte against the alleged offending party. Note that the temporary order of protection does not take effect until the alleged offending party is served with the summons and order. The alleged offending party will be served with the petition, the order and a summons that states the date and time that the parties shall have to appear in court.
How can a Court issue a temporary order of protection without having both sides present? The authority is given to the Courts under Section 828 of the Family Court Act. Under Section 828, the court may issue a temporary order of protection for “good cause shown.” When an allegation of abuse is corroborated by affidavits, medical or documentary proof, the court does not need a hearing to grant a temporary order of protection. But, when there is no evidence to support an allegation of abuse, the court should not issue a temporary order of protection. See Peters v. Peters, 100 A.D.2d 900, 901 (2nd Dept. 1984). A family offense is defined as conduct between family members that are crimes or violations under the New York Penal Law. Sections 812 and 821 of the Family Court Act set forth and enumerate the types of crimes or violations that would constitute a “family offense.” They are as follows: disorderly conduct, harassment, menacing, reckless endangerment, assault in the second degree, assault in the third degree, attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household.
Section 812 of the Family Court Act defines what it means to be a member of the same family or household. For purposes of a family offense proceeding, a family member can be any two people who are related to one another, who are (currently or formerly) legally married to one another, who have a child in common, or who have been in an intimate relationship, among other relationships. At trial in family court, the alleged victim has the burden of proving by a fair preponderance of the evidence that a family offense was committed against them in order for the court to issue a final order of protection.
If you’ve been served with or plan to file a family offense petition in New York, contact Guilford Law Group, PLLC for a consultation today.
By: William F. Guilford, Esq.