Resource for a Recourse: Online Resource Center for Survivors of Abuse

NEW YORK : Restraining Order & Order of Protection Information

TYPES OF PROTECTIVE ORDERS
BENEFITS
COSTS
VIOLATIONS

Under New York law, a "family offense" includes any of the following acts when between people who are married, separated, divorced, have a child in common, or are related by blood or marriage:

disorderly conduct
harassment
aggravated harassment
stalking
menacing
reckless endangerment
assault
attempted assault

Note: This does not cover people who were never married even if they are living together or same-sex couples, unless they legally share children. You can get Orders of Protection in both civil and criminal courts in New York. However, not everyone is eligible to apply in civil court.

Types of protective orders:

In Family Court, a Final Order of Protection may last up to five years, depending on the facts of your specific case. Usually the order will be granted for up to 1-2 years. But if the judge determines that there are aggravating circumstances (including serious physical injury, use of a weapon, repeat violations of orders, prior convictions of abuse, etc.), you can request that your order last for up to five years.

Family Court is a civil court. You can apply for an Order of Protection in Family court if you are legally married to, separated, or divorced from your abuser, or if you are related by blood or marriage, or if you have a child in common with your abuser. If you are eligible for Family Court, you can choose to go to Family Court or Criminal Court, or both at the same time.

Supreme Court is also a civil court. If you are getting a divorce, separation, or an annulment, you can request an Order of Protection at any time before the trial or settlement is final in Supreme Court. But getting changes in a Supreme Court order can be difficult and expensive. It might be a good idea to request that the Order include a provision that any future changes can be made in Family Court.

When you go to Family Court or Supreme Court to file for an Order of Protection, the judge may decide to issue you a temporary Order of Protection if s/he believes that you are in immediate danger. The temporary Order of Protection will last until you can have a full court hearing or other hearing. The abuser will have an opportunity to attend the full court hearing and present his side. Based on the testimony and evidence, a judge will decide whether to issue a permanent Order of Protection.

In Criminal Court, you may receive a Temporary Order of Protection at the time your abuser is arrested and then charged with a crime. You can get an Order for Protection, whether or not you are related to your abuser. However, an Order of Protection can only be issued after criminal charges are filed. If you are pressing charges against your abuser, the district attorney will handle the case. If charges are being made against you, you should get an attorney to defend you. The judge may issue an order of protection against a current or former same-sex partner if the abuser has been charged with a crime.

Note: If you are eligible for Family Court, you may want to consider the following factors in deciding between Family, Criminal Court, or both.

To get a criminal court order, there must have been an arrest or a criminal charge. (Check the Legal Statutes to read about the crimes of harassment, assault, stalking and others. Other crimes may also apply.)
It is often easier to get a Temporary (or emergency) Order of Protection from Family Court
A Family Court Order of Protection can do more than a criminal court order.
Criminal cases require a higher level of proof of what happened than civil court cases.
For a case to proceed in Family Court, you must follow the case through. In criminal court, the District Attorney can decide to follow a case through with or without your involvement.

BACK TO TOP

Benefits:

In an Order of Protection, a judge can set limits on your abuser's behavior. Among other things, judges in all courts (Criminal, Family, and Supreme) can:

order the abuser to stop abusing you and your children;
tell the abuser to leave and stay away from your home, your workplace, and your family;
direct the abuser to have no contact with you - including no phone calls, letters, or messages through other people;
order the abuser to stay away from the children, their babysitter, day care, or school; and
order the abuser to turn in all weapons.
order the abuser to not intentionally injure or kill, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the petitioner or a minor child residing in the household.

In addition, Family Court judges can:

decide issues related to custody, visitation, and child support;
order the abuser to pay for expenses related to the abuse such as medical care and property damage; and
decide on the division of certain kinds of personal property (things that you own).
order the abuser to participate in an educational program and to pay the costs thereof if the person has the means to do so

Whether or not a judge orders any or all of these things depends on the facts of your case.

While an Order of Protection cannot guarantee your safety, it can help because:

Police are likely to take your calls more seriously if you have an Order of Protection.
Your abuser can be arrested and put in jail if he violates an Order of Protection.
If you have left your home, an Order of Protection can make it easier for you to get the police to go with you to get your personal belongings.
If you are being stalked or harassed at work, an Order of Protection can protect you at your job.
Violations of certain provisions of an Order of Protection can result in your abuser being charged with a felony.

BACK TO TOP

Costs:

There are no fees to file a petition for an Order of Protection.

BACK TO TOP

Violations:

If your abuser violates the Order of Protection, you may contact the police (911) who may be required to arrest him. You may also file a petition claiming a violation in either the Family Court or the Criminal Court. The violation petition and a summons must be served upon your abuser, or the court may issue a warrant for his arrest. To file this petition, go to the clerk of court where you originally got your order.

When you are both before the court, the court holds a hearing to determine whether the abuser disobeyed the Order of Protection. If the court finds that the abuser violated the order, the court will hold a "dispositional hearing" to determine what action should be taken against the abuser. The Probation Department may be asked to investigate and make a recommendation to the court. The judge may order a period of probation, incarceration, a fine, or a change in the conditions in your Order of Protection.

BACK TO TOP