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Know the Laws: New York

UPDATED April 20, 2017

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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.

Who can get an order of protection

back to topCan I get an order of protection?

You can apply for an order of protection if you are legally married to, separated from, or divorced from the abuser, if you are related to the abuser by blood or marriage, if you have a child in common with the abuser, or if you are/ were in an intimate relationship with him/her (including same-sex partners).*  Even if the abuser has committed a crime against you and you have an order of protection from criminal court, you can still apply for a civil, family court order of protection since both courts have what is called "concurrent jurisdiction."**

Note: An order of protection can also be issued in supreme court,*** which is the court in NY state where divorces (and other civil matters) are filed and litigated.  (However, throughout this section we generally refer to them as family court orders of protection).  You can request an order of protection at any time before trial or before a settlement is final in the divorce.  However, getting changes made to a supreme court order can be difficult and expensive.  It might be a good idea to request that the order include a provision that any future changes can be made in family court. 

* NY Fam Ct Act § 812(1)
** NY Fam Ct Act § 115(e)
*** NY Dom Rel Law § 240(3)

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back to topCan I get an order of protection against a same-sex partner?

In New York, you may apply for an order of protection against a current or former same-sex partner as long as the relationship meets the requirements listed in Can I get an order of protection?  You must also be the victim of an act of domestic violence, which is explained here What is the legal definition of domestic violence ("family offenses") in New York?

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back to topHow much does it cost to get an order of protection?

There are no fees to file a petition for an order of protection.

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back to topI am a minor. Can I get an order of protection without the help of an adult?

You may be able to get an order of protection on your own in family court – the main law covering family court orders of protection doesn’t have any specific rules for minors. (For information on who is eligible to file in family court, see Can I get an order of protection?)

Various scenarios might happen:

  • The judge might allow you to have a hearing without the help of an adult.
  • The judge may want to appoint either a guardian ad litem or an attorney (formerly called a "law guardian") to help you with your case. 
  • The judge might order that your parent(s) be involved. If getting your parent(s) involved would put you in danger, be sure to let the judge know, and request that the judge appoint you an attorney instead.

You may want to contact a domestic violence organization or legal resource in your area for assistance and support - see our NY Where to Find Help page.  

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back to topCan I bring a friend or other person with me for support?

Most likely, yes.  The law says that if you are the petitioner in an order of protection case, you are allowed to have a friend, relative, counselor or social worker present in the court room with you for support - even if you are represented by a lawyer.  That person cannot participate in the court case as a lawyer could unless the judge decides on his/her own to question that person.* 

If you are the respondent in an order of protection case, you also have the same right to bring someone with you for support but only if you do not have a lawyer representing you.  The judge does have the right to exclude this person from the courtroom however if the judge finds it "undesirable" to have the person there.*

* NY Fam Ct Act § 838

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back to topDo I need to have an attorney?

You do not have to have an attorney at the hearing but you may want one, especially if you think the abuser will have a lawyer.

The court should advise both you and the abuser that you each have a right to hire a lawyer to represent you and that if you cannot afford to hire a lawyer, you can ask the court to assign a lawyer to represent you for free (if you are a low-income person.)*  In order to qualify for a free court-appointed lawyer, you must meet certain income requirements and the judge may ask you to produce paystubs or other proof of your income.  Do not be afraid to speak up and ask for an attorney even if the judge does not ask you if you want one appointed.

Even if you choose to proceed without an attorney or if the court delays in appointing an attorney for you, we recommended that you consult with an attorney to make sure that your legal rights are protected.  For more information on domestic violence agencies and legal assistance in your area, please go to NY Where to Find Help.

* NY Fam Ct Act §262(a)(ii)

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