Know the Laws: New York
UPDATED October 29, 2012
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 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:
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
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:
* 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)
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
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:
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 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:
* NY Family Court Act §842-a(1)(b) & (2)(b)
** NY Family Court Act §842-a (2)(a)
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)