Know the Laws: New York
UPDATED January 19, 2010
An order of protection is a civil order that provides protection from someone who you are married to, separated from, divorced from, have a child in common with, are/were in an intimate/dating relationship with (including same sex couples) or are related to by blood or marriage.
- Basic information
- Can I get an order of protection?
- What are the steps for obtaining an order of protection?
- After the hearing
Basic information
back to topWhat is the legal definition of "family offense" in New York?
This section defines "family offense" for the purposes of getting an order of protection.
In family court, to get an order of protection, you must allege that the abuser committed one or more "family offenses" against you. The following crimes are considered to be family offenses when the victim and abuser are related by blood, marriage, in an intimate relationship, or they have a child in common:
- disorderly conduct
- harassment
- aggravated harassment
- stalking
- menacing
- reckless endangerment
- assault
- attempted assault
- criminal mischief
- sexual misconduct
- forcible touching
- sexual abuse in the third degree
- sexual abuse in the second degree.*
Note: A new law that came into effect in December 2009 added the last four crimes mentioned in the list above. Prior to this date, sexual crimes were not technically considered to be a "family offense" that could qualify you for an order of protection.
Please go to the NY Legal Statutes page to read the specific definitions of each of these acts.
* NY Fam Ct Act § 812(1)
back to topWhat is the legal definition of an "intimate relationship?"
A new law was passed in 2008 that says people who are/ were in an intimate relationship are eligible to get an order of protection in family court even if they have never lived together and are not related by blood or marriage. This includes same sex couples or heterosexual couples who are/ were dating but do not have a child in common. An "intimate" relationship does not have to mean a sexual one. To decide if a relationship is intimate, the judge will look at the nature (type) of the relationship, and how often and for how long the people in the relationship were in contact.*
Because this law is new, it is hard to predict exactly how the judge in your case will interpret the words "intimate relationship." Since judges can interpret the word "intimate" differently, a broad range of people may be able to file against each other that you might not expect. For example, in one case, a judge ruled that a man's new girlfriend could file against his ex-girlfriend who harassed her since both women had children with the man and the new girlfriend helped raise the ex-girlfriend's children.**
* NY Fam Ct Act § 812(1)(e)
** See R.M.W. v. G.M.M. & K.F. v. G.M.M, 2009 N.Y. Slip Op. 29038
back to topWhat is an order of protection? How long does it last?
An order of protection is a court order that is designed to stop violent and/or harassing behavior and to protect you and your children from an abuser. An order of protection can also force an abuser to stay away from you and your children and to have no communication with you. In NY, you can get an order in family court, criminal court, or supreme court.
Read: Who can get an Order of Protection and in which court - family, criminal or supreme?
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 2 years but if the judge determines that one or more "aggravating circumstances" exist, you can request that your order last for up to five years. Aggravating circumstances include physical injury or serious physical injury, the use of a dangerous instrument (including a weapon), a history of repeated violations of prior orders of protection by the abuser, prior convictions for crimes against you by the abuser, the exposure of any family or household member to physical injury by the abuser and prior incidents and behaviors of the abuser that make the judge believe the abuser is an immediate and ongoing danger to you or any member of your family or household.*
When you go to family court or civil 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, which may not happen for many court dates. If the hearing does not happen on the first date you return to court (the first "adjourn date"), usually the judge will extend the order of protection from court date to court date. On the hearing date, 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 (which includes criminal supreme court), you may receive a temporary order of protection after the abuser is arrested and formally charged with a crime. The order of protection might be mailed to you since it is likely that you will not be present for the criminal court date. Therefore, you might not even be aware that you have an order of protection until days after it is already issued. To be certain as to whether or not an order of protection was issued by the criminal court on your behalf, you may want to call the district attorney handling the case and ask as to whether one was issued. Since there will likely be multiple court dates before the case is settled or goes to trial, the criminal court order of protection can also be extended from court date to court date.
*NY Fam Ct Act § 827(a)(vii)
** NY Fam Ct Act § 550
back to topHow can an order of protection help me?
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 you, your home, your workplace, and your family (Note: the abuser can be removed from the home or ordered to stay away from the home that you were both living even if his name is on the lease or deed);
- direct the abuser to have no contact with you including no phone calls, letters, or messages through other people (called "third party contact");
- order the abuser to pay some or all of the costs of the order and getting it enforced;
- order the abuser to turn in all weapons; and/or
- order the abuser to not intentionally injure or kill, without justification, any pet that belongs to you or a minor child residing in the household.
In addition, family court judges can:
- decide issues related to custody, visitation, and child support for the duration of the order of protection;
- order the abuser to pay for expenses related to the abuse such as medical care and property damage;
- authorize the person leaving the home (whether it is you or the abuser) to retrieve their undisputed personal belongings from the home with a police escort; and
- order the abuser to participate in a batterer's educational program and to pay for it if he 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 could have the following advantages:
- An order of protection can make certain actions or behaviors illegal which would otherwise be legal (such as talking to you, driving by your home, etc.)
- 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 (violations of certain provisions of an order of protection can result in your abuser being charged with a felony.)
- 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.
back to topIn which county can I file for an order of protection?
You can file a petition in the county where the abuse took place, in the county where you live, or in the county where the abuser lives.*
* NY Fam Ct Act § 818