Orders of Protection in New York Family Court: How They Work

An order of protection is a court order directing one person to stop certain conduct toward another, and in many cases to stay away entirely. In Suffolk County they are issued every day in Family Court, in criminal court, and in Supreme Court divorces. This article covers the Family Court version, which is the one most people can start on their own and the one that most often overlaps with a custody case.

Who can ask Family Court for an order of protection

Family Court handles what the law calls family offenses: specified acts, such as harassment, menacing, assault, stalking, strangulation, and criminal mischief, committed between people who are related or in a close relationship. That includes current and former spouses, people who share a child, relatives by blood or marriage, and people who are or were in an intimate relationship, whether or not they ever lived together. If the person is a stranger, a neighbor, or a coworker, Family Court is not the right forum; that case belongs in criminal court.

Family Court versus criminal court

The same incident can produce two cases. If the police were called and made an arrest, the criminal court will usually issue its own order of protection as a condition of release. A Family Court case is separate and is controlled by the person seeking protection rather than by the District Attorney. You can have both at once, and many Suffolk County clients do. The standard of proof in Family Court is lower, the case is civil, and the focus is on protection going forward rather than on punishment.

Step one: the family offense petition

The case starts with a petition filed in Family Court in Central Islip or Riverhead. It describes the relationship, the specific incidents with dates, and what relief you are asking for. The more specific the petition, the stronger the case: what was said, what was done, who saw it, whether there are messages, photographs, or medical records. The petition is sworn, so it has to be accurate.

On the day you file, the petition is reviewed by a judge, usually within hours. If the allegations are sufficient, the court issues a temporary order of protection without the other party being present. That order takes effect as soon as it is served on the respondent.

What the order can require

The court tailors the terms to the situation. A refrain from order directs the respondent to stop the harmful conduct but allows contact. A full stay away order bars all contact, direct or indirect, and keeps the respondent away from your home, your job, and the children's school. Orders commonly also:

• Exclude the respondent from the home, even if their name is on the lease or deed
• Set temporary custody and a parenting schedule, or direct that exchanges happen through a third party
• Require the respondent to surrender firearms and suspend any firearms license
• Direct the respondent to pay temporary support or to keep paying the mortgage or rent
• Order the respondent into a batterer's program, counseling, or substance abuse treatment
• Protect pets and personal property

The return date and the hearing

The temporary order comes with a date for both parties to appear. On that first date the court confirms service, addresses whether either party needs assigned counsel, and may extend the temporary order. The respondent can consent to a final order without admitting the allegations, which resolves many cases, or deny them, in which case the court schedules a fact finding hearing. At the hearing you testify, present your evidence, and the respondent has the chance to cross examine and present a defense. If the court finds that a family offense occurred, it issues a final order of protection and sets its terms.

How long an order lasts

A temporary order lasts until the next court date and is routinely extended while the case is pending. A final Family Court order typically lasts up to two years, or up to five years when the court finds aggravating circumstances such as physical injury, use of a weapon, a prior violation, or a history of similar conduct. Orders can be extended on a showing of good cause before they expire.

What happens if the order is violated

A violation of an order of protection is both a Family Court matter and a crime. If the respondent contacts you, shows up where the order says they cannot, or otherwise breaks the terms, you can call the police, who can arrest for criminal contempt, and you can file a violation petition in Family Court. Family Court can extend the order, add terms, and in willful cases commit the respondent to jail for up to six months. Keep a copy of the order with you and give a copy to the children's school and to your employer if the order covers those places.

If you are the respondent

Being served with a temporary order is serious. It can remove you from your home and from your children on the strength of a petition you have not yet had a chance to answer. Do not contact the petitioner, even to explain, even through a friend, even if they contact you first; that is a violation regardless of who started it. Appear on the return date, bring your own evidence, and get a lawyer. A final order of protection appears in background checks, affects firearms rights, and will be weighed in any custody case. Consenting to one without advice is a mistake people regret for years.

Orders of protection and custody

A family offense finding is a factor the court must consider in any custody decision, and a pending order of protection shapes the parenting schedule while both cases are open. In Suffolk County the family offense case and the custody case are usually heard together by the same judge. The petitioner should expect the respondent to raise the children, and the respondent should expect the order to be used in the custody case. A lawyer who handles both, as this firm does, keeps the two cases consistent. See the firm's orders of protection page for how representation works.