The purpose of this article is to provide victims of domestic violence with the necessary information they may need to assist them in seeking in an order of protection in Family Court. While individuals may be granted an order of protection from Criminal Court, this post will only focus on obtaining an order of protection in Family Court.

Brief Overview

             An order of protection is a document issued by the Family Court which prohibits an individual from engaging in certain behaviors. The most extreme example of this would be a complete “stay-away” order of protection. What this means is that the offending party may be prohibited from going to the victims residence, school, business, place of employment, or any other location that the court specifically designates and prohibiting any contact with the victim by way of phone, text message, e-mail or any electronic means. Most “stay-away” orders of protection will further prohibit the offending party from engaging in family or criminal offenses, including but not limited to, assault, harassment, stalking, threats, intimidation, menacing and reckless endangerment.

The Family Court also has the ability to issue what are known as “refrain from” orders of protection. What this means is that the Family Court will issue an order which requires the offending party to “refrain from” certain behaviors. Such behaviors may include, but are not limited to, assault harassment, stalking, threats, intimidation, menacing and reckless endangerment.

How to Obtain an Order of Protection

When seeking an order of protection in Family Court you first must ensure that the court has the ability to hear your case. In order to file for an order of protection in Family Court your relationship with the offending party must fall into at least one of the following categories:

• Current or former spouse;
• Relation by blood or marriage;
• You and the individual have a child in common; or
• You and the individual have or have had an intimate relationship.

It must be noted that proving that you have or have had an intimate relationship with the offending party does not necessarily mean a sexual relationship. It depends on various factors, such as if you have lived together or have dated. If you allege that you are seeking an order of protection based on the intimate relationship with another individual, the court will decide if it has the ability to hear your case based on the nature of your relationship with the other party.

Once you have established that your relationship has fallen into one of the above listed categories, the next step is to fill out a petition, which in Family Court is referred to as a Family Offense Petition.

Significant Information to include in the Petition

The petition will provide the court with the relevant facts and circumstances surrounding your case and why you are requesting an order of protection. As such, it is important to provide the court with as much detailed facts as possible. As stated above, it is imperative that you include your relationship with the offending party. Additionally, some questions you would want to ask yourself in preparation for completing your petition are as follows:

• Details about the abuse, is it physical or emotional abuse or both?
• Has the abuse gotten any worse?
• Have you had any injuries or hospitalizations?
• Is there a history of abuse?
• Has the individual you are seeking protection from been arrested?
• Have you ever called the police or have any police reports?
• Does the individual own any guns or weapons?
• Has the individual ever threatened you with weapons?
• Has the individual threatened your life?
• Are you in fear for you safety, if so, why?
• Has the individual sent threatening messages (i.e. voice, text, e-mail)?
• Do you have children together, if so, have there been threats made to the children?
• If you have children together, have the children witnessed any violence?

The above questions are merely generalizations that you should think about when filling out your petition seeking an order of protection and is not all inclusive. If any or all apply to you, make sure to include details in your petition so that you have provided the court with as much information as possible. Also, it must be noted that while you do not need to hire counsel in order to file for an order of protection, we always recommend that you seek legal advice from an experienced attorney of your choice.

Points to Remember

When you are seeking an order of protection in Family Court, which is a civil matter, you will be required to face your abuser in court and they will be given an opportunity to respond to the allegations set forth within your petition. While the case is pending, the court will have the authority to issue a temporary order of protection which will have an expiration date. However, the temporary order of protection may be renewed if it is set to expire prior to the close of the case.

After what is called a fact finding hearing, where the judge will hear all the relevant facts and be provided with the pertinent evidence, the court will decide on the disposition of your case and determine if you are entitled to a permanent order of protection. If the court finds that you are entitled to a permanent order of protection, the court will designate the length of time that the order of protection will remain in place, which is based on the facts and circumstances of your case.

While an order of protection may be one way to protect a victim, it does not guarantee a victim’s safety. It is imperative that you implement a safety plan and seek out the assistance of Domestic Violence organizations, such as L.I. Against Domestic Violence at 631-666-8833.

Finally, the material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. If you have specific questions regarding this article, Hanna Kirkpatrick may be reached at 516-393-8259 or by e-mail at hkirkpatrick@jaspanllp.com.