Orders of Protection in Long Island
Obtaining protection order under NY Family Law
In New York State, Orders of Protections may be obtained in Supreme Court, Criminal Court and in Family Court. In Supreme Court, an Order of Protection may only be obtained when a matrimonial action is pending. In Family Court, an Order of Protection may only be obtained, when the parties involved are spouses or former spouses, parent and child, or “members of the same family or household.” More specifically, parties are members of the same family or household when:
- The persons are related by consanguinity or affinity;
- The persons are legally married to one another;
- The persons were formerly married to one another; or
- The persons have a child in common regardless whether such persons have been married or have lived together at any time.
Such incidents which would give rise to the need for an Order of Protection between two people having a relationship as enumerated above, is where one person assaulted, attempted to assault the other person, or engaged in disorderly conduct, harassment, stalking, menacing or reckless endangerment toward any such person.
After such an incident, the victim (the petitioner for purposes of the Court proceeding) can go to the Family Court in their county and fill out a petition (a form), where they should be as specific as possible, detailing the time, place and manner in which the offense occurred. The person committing of offense will be referred to as the respondent for purposes of the Court proceeding. For example, a party, seeking an Order of Protection against another, may put in his/her petition the following:
On March 25, 2008, at approximately 1:15 p.m., Respondent and I were engaged in an oral argument in the kitchen of our marital residence. The Respondent raised his left hand and struck me across the face with an open fist, hitting the right side of my cheek, leaving a red mark and bruising. This caused me to fear for my safety.
It is also important to list any medical treatment received as a result of the incident(s), or any police reports that were filed.
After the petitioner fills out the petition, they will go before a Judge of the Family Court, who may issue a temporary Order of Protection. This may occur without the Respondent having notice of the proceeding or being present. Therefore, the petitioner will usually be given a date to return to Court within a short period of time, wherein the Respondent will then be present, and a hearing for a permanent Order of Protection may be granted.
There are different types of Orders of Protections the petitioner may receive against the respondent. For example, if the incident is severe enough where the Court feels that the persons life is in danger, the Court may issue a “stay away” Order of Protection in which case the offender would have to remain a specific distance away from the petitioner, including staying away from the home, work place and/or school of the petitioner. In less severe cases, the Court may issue a “refrain from” Order of Protection, which includes, refrain from communication or any other contact by mail, telephone, e-mail, voice-mail or other means, and refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offence against the petitioner.
In virtually all cases, the respondent may also be ordered to surrender any and all handguns, pistols, revolvers, rifles, shotguns and other firearms or knives owned or possessed by the respondent.
A parent may also obtain an Order of Protection on behalf of the parties’ child(ren). Depending on the severity of the offense the Court may order a “Stay Away” from the home or school of the child(ren), and authorize a judicial determination of visitation, and may even award custody of the child(ren) to the other parent or appropriate relative during the term of the order of protection or until further Court order.
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