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.
back to topWhat is the legal definition of domestic violence in New York?
This section defines domestic violence for the purposes of getting a family court (civil) 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 petition for an order of protection is called a "family offense petition.") The following crimes are considered to be family offenses when the victim and abuser are / were related by blood, marriage, in an intimate relationship, or they have a child in common:
- disorderly conduct
- harassment (1st or 2nd degree)
- aggravated harassment (2nd degree)
- stalking (1st, 2nd, 3rd or 4th degree)
- menacing (2nd or 3rd degree)
- reckless endangerment
- assault (2nd or 3rd degree)
- attempted assault
- criminal mischief
- sexual misconduct
- forcible touching
- sexual abuse (in the second or third degree)
- criminal obstruction of breathing or blood circulation
- strangulation (1st or 2nd degree).*
Please go to the NY Statutes
page to read the specific definitions of each of these crimes under the NY Penal Law.
A petition for an order of protection cannot
be dismissed or denied based only on the fact that the incident(s) you allege happened a while before you applied for the order.**
* NY Fam Ct Act § 812(1)
** NY Fam Ct Act § 551; NY Dom Rel Law § 240(3)(8)(e)
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 types of orders of protection are there? How long can they last?
There are two types of orders: a temporary ex parte order of protection and a final order of protection.
When you apply for an order of protection, the judge can issue a temporary order of protection if s/he believes there is "good cause" to do so.* The temporary order of protection usually lasts 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/her side. Based on the testimony and evidence, a judge will decide whether to issue a final order of protection. Note: The length of the temporary order of protection cannot be a factor in determining the length or issuance of any final order.***
A final order of protection may last up to 5 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 5 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.***
* NY Fam Ct Act § 828(1)(a)
** NY Fam Ct Act § 828(3)
*** NY Fam Ct Act § 842
**** NY Fam Ct Act § 827(a)(vii)
back to topHow can an order of protection help me?
An order of protection 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/her 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 your attorney's fees that you paid to get (or later enforce) the order;
- order the abuser to give up his/her guns and gun license (as part of a temporary order or as part of a final order);
- 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;
- give you temporary custody and arrange for visitation for the duration of the order of protection;
- make an order for temporary child support in an amount that is "sufficient to meet the needs of the child" even if the details about the income and assets of the abuser are unavailable. You do not have to show an immediate or emergency need for the support. (Note: If the abuser has employer-provided insurance, the judge can make an order that directs the employer to provide such insurance to your child)
- order the abuser to not do anything that creates an unreasonable risk to the health, safety or welfare of your child;
- 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 his/her undisputed personal belongings from the home with a police escort;
- order the abuser to participate in a batterer's educational program and to pay for it if s/he has the means to do so; and
- do anything else that is necessary for your protection.*
- Note: If you meet certain requirements, you can also ask the judge to terminate your rental lease with your landlord without financial penalty to you if you need to leave your rental unit to keep safe.** See our Housing Protections page for information on what you need to prove to get the judge to do this.
Whether or not a judge orders any or all of these things depends on the facts of your case.
* NY Fam Ct Act §§ 842, 842-a
** NY Fam Ct Act § 842 and NY RPL § 227-c(1)
back to topCan the abuser's gun be taken away as part of a temporary order of protection?
Yes. With a temporary order of protection, there are certain cases where the judge has the option of taking away the abuser's guns and gun license and there are certain cases where the judge is supposed to take away his/her guns and gun license.
The judge has the option to order that the abuser's guns / gun license be taken away if the judge finds that there is a "substantial risk" that the abuser may use or threaten to use a gun against you or anyone else on your order of protection (such as your children).*
The judge should take away the abuser's guns/ gun license if:
The order of protection must say that the abuser has to surrender his guns/ license
- the abuser has a prior conviction of a violent felony offense or
- the abuser has been convicted in the past of stalking or
- a judge found that the abuser "willfully" (purposefully) violated an order of protection in the past and, in committing such violation, the abuser caused you serious physical injury; or used or threatened to use a deadly weapon or dangerous instrument; or his/his behavior qualified as a violent felony offense.*
(usually a box is checked on page 2) for it to be illegal under NY state law. If the judge does not mention it in court, be sure to speak up and ask the judge to do this
if this is what you want.
If the judge does not check the appropriate box, then you may have to wait until you are given a permanent order to get his/her guns and gun license taken away.
* NY Family Court Act § 842-a(1)(b) & (2)(b)
** NY Family Court Act § 842-a(1)(a)
back to topCan the abuser's guns be taken away as part of a final order of protection?
With a final order of protection, there are certain cases where the judge has the option of taking away the abuser's guns/ gun license and there are certain cases where the judge is supposed to take away his guns/ gun license.
The order of protection must say that the abuser has to surrender his guns/ license
The judge has the option to take away his guns and gun license if the judge finds that there is a "substantial risk" that the abuser may use or threaten to use a gun against you or anyone else on your order of protection (such as your children).*
The judge is supposed to take away his guns and gun license when the judge believes that the conduct (acts) which resulted in your getting the order of protection was based upon the abuser:
(usually a box is checked on page 2) for it to be illegal under NY state law. If the judge does not mention it in court and you want the guns to be removed, be sure to speak up and ask the judge to do this.
: Your order of protection must be current for these laws to apply. Once it has expired, the abuser may be able to legally have guns again. Make sure you know when the order expires -- for orders issued in NY, the expiration date should be written on page two of your order of protection.
* NY Family Court Act §842-a(1)(b) & (2)(b)
** NY Family Court Act §842-a (2)(a)
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.* However, if you live in NY state but the abuser lives out of state, at least one of the abusive acts that you allege in your petition must have taken place in NY state for the court to be able to grant you an order of protection.** If the abuser threatens you on the phone, through texts or emails, these acts could be considered to have "taken place" in NY state if you receive the phone calls, texts or emails in NY.
* NY Fam Ct Act § 818
** NY Fam Ct Act §154(c)(1)
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