Know the Laws: New York
UPDATED April 1, 2016
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.
This section defines domestic violence for the purposes of getting a civil order of protection (which is often obtained 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:
Note: 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 § 812(1); NY Dom Rel Law § 240(3)(e)
An intimate relationship includes heterosexual and same-sex 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.*
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
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 (usually in family court), the judge can issue a temporary order of protection if s/he believes there is "good cause" to do so.* The temporary order 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, 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: If you need to file for an order of protection when the family court is closed, you can file for it in criminal court. The local criminal court can issue an ex parte temporary order that will last for no longer than 4 days. The order will generally be transferred to family court and the case would be scheduled for the next day that the family court is in session - and you must file your petition in family court on/before that date for your case to continue.***
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:
* NY Fam Ct Act § 828(1)(a)
** NY Fam Ct Act § 828(3)
*** NY Fam Ct Act § 154-d(1)
**** NY Fam Ct Act § 827(a)(vii)
An order of protection can:
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 (j); NY Dom Rel §§ 240(3)(a)(8), 252(1)(h)
*** NY Fam Ct Act § 842; NY RPL § 227-c(1)
Yes. With a temporary order of protection, there are certain cases where the judge is supposed to order that the abuser's guns are taken away and that his/her gun license is suspended.
The judge should take away the abuser's guns and suspend his/her gun license if any of the following exist:
The order of protection must say that the abuser has to surrender his/her guns / license (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)(a),(b)
Yes. With a final order of protection, there are certain cases where the judge is supposed to take away the abuser's guns and revoke his/her gun license.
The judge is supposed to take away the abuser's guns and revoke his/her gun license if the judge determines that either of the following are true:
The order of protection must say that the abuser has to surrender his guns/ license (usually a box is checked on page 2) for it to be illegal under NY state law (although it could still be illegal under federal law even if not written as a term of your order). 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.
* NY Family Court Act §842-a(2)(a),(b)
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)