Do You Need An Order Of Protection?

IF SOMEONE IS MAKING YOU FEEL SCARED OR UNSAFE, you may be able to get an Order of Protection or ‘OP’ (also called a ‘restraining order’) from a New York State Family Court, Criminal Court or both. The Supreme Court can also issue an OP if you are getting a divorce.

WHAT IS AN ORDER OF PROTECTION? (OP): An OP is a legal document meant to protect you from an abusive person. Only a judge can give an OP. No one else can, not even the police. OPs are free and there is no age requirement to get one.

HOW CAN AN ORDER OF PROTECTION PROTECT YOU? An OP from any court can limit the abusive person’s contact with you. It can order that person to:

Stop harassing, menacing, assaulting, threatening, intimidating, stalking or committing any criminal offense against you. Stay away from you and your child, home, school or workplace. Not contact you by phone e-mail, IM or through another person. Leave your home if the person lives with you.  Attend a batterers’ intervention, anger management or similar program. Pay you for any property damaged by the abusive person.  Comply with other conditions that help you feel safe. If you have a child with the abusive person, a Family Court Order of Protection could also order: The abusive person to stay away from the child, except for court-ordered visitation. It can order supervised visits, temporary custody, and child support. You must ask for each protection in your Order of Protection (OP). The judge will not include them automatically.

WHO CAN GET AN ORDER OF PROTECTION?

In Family Court: To request an OP from Family Court, you and the abusive person must be in a certain type of relationship. You must be:

Current or former dating/intimate partners (regardless of whether there was a sexual relationship). Married or divorced from each other. Parents of the same child. Related by blood or marriage. Only certain crimes or ‘family offenses’ will qualify you for a Family Court OP, such as harassment, assault, stalking, menacing, strangulation and sexual abuse.

In Criminal Court: Anyone who is the victim of a crime can file a report with the police. If the perpetrator is arrested for a crime against you, you may be able to get a Criminal Court OP.

HOW DO I GET AN ORDER OF PROTECTION?

In Family Court: Go to Family Court and file a ‘Family Offense Petition.’ You may receive a Temporary OP that same day. This OP is only enforceable after it is served on the abusive person. The police are legally required to help you serve your OP, but anyone other than you who is 18 or older can serve. It is your responsibility to have the OP served.

In Criminal Court: File a complaint at a police precinct, and ask to speak with the Domestic Violence Prevention Officer (DVPO). Once an arrest is made…The Assistant District Attorney (ADA) may bring charges. The ADA represents New York State and is not your lawyer. You should receive a Temporary OP once the abusive person is charged with a crime. You will be asked to sign a statement, or ‘corroborating affidavit,’ describing what happened. You may be asked to testify in court.

WHAT HAPPENS AFTER I GET A TEMPORARY ORDER OF PROTECTION? 

Family Court: In Family Court, you make the decisions about whether to drop the case, settle, or go to trial. You have the right to bring or request a lawyer. At a later court date, the judge may issue a Final Order of Protection. It will take more than one court appearance for you to receive a Final OP. It is important that you attend every court appearance.

Criminal Court: The ADA is the only person who can decide whether to drop the case once it has started. You can get Final OP if the abusive person pleads guilty or is found guilty. Even if you do not get an OP from Criminal Court, you may still be able to get one from Family Court.

Family and Criminal Court Order of Protections have the same power to protect you. Most OPs last between 1 and 5 years.

YOU HAVE THE POWER TO ENFORCE YOUR ORDER OF PROTECTION.

If the abusive person violates either a Family or Criminal Court OP, and you want an arrest to be made, you must call the police. If you have a Family Court OP, you can file a ‘Violation Petition.’ 

Important Tips: Carry a copy of your OP with you at all times and keep one in a safe place. Alert anyone you think should know about the OP including your school, work, or family. Save evidence of violations, including voicemail, texts, e-mails, etc. Call the police or your lawyer at any time there is a violation.

reference source for this post: Day One, www.dayoneny.org, 800.214.4150, info@dayoneny.org. Information provided is in accord with the laws of the State of New York. OP procedures may variety in different states. Day One is a New York based agency that offers free legal and social services, educational workshops and information to teens and young adults aged 24 and under who are experiencing intimate partner abuse.

Comments? Welcome. Dr. Thomas Jordan