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)
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)
Yes. In New York, you may apply for an order of protection against a current or former same sex partner. Under NY law, you are eligible to file an order of protection against family or household members, which include:
There are no fees to file a petition for an order of protection.
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:
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.
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
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)
In family court, you can file your petition in the county where either you or the abuser lives, or where one of the family offenses (acts) alleged in your petition took place. However, one thing to consider is that if you are living in a domestic violence shelter or other confidential location that is in a different county than where the abuser lives and where the violence took place, you may not want to file your petition in the county where you are living. If you do, the abuser will likely figure out that you filed in that county because you are living in that county and it might be easier for the abuser to find you if he knows what county you are living in. To find the courthouse in your area, go to NY Courthouse Locations. Note: NY State has an Address Confidentiality Program ("ACP"), which helps a victim who registers with the program to keep his/her address confidential when filing court petitions. All mail is sent to the ACP and the ACP will send it to your actual (confidential) address. To register, click here.
If the incident was reported to the police, you may want to bring the police report to court, if possible. Remember to bring some form of identification (a driver's license or another picture I.D.).
At the courthouse, ask the clerk for the forms that you need to file. You can also find links to online court forms on our NY Download Court Forms page. You may be able to get help with this process through one of the domestic violence agencies listed on our NY State and Local Programs page.
In family court, the petition that you file for an order of protection is called a "family offense petition." Carefully fill out the petition. You will be the "Petitioner" and the abuser will be the "Respondent."
Many judges will automatically issue an immediate temporary ex parte order of protection on the first court date (also known as the "intake date"). Other times, the judge might issue only a summons for the other party to appear in court before issuing a temporary order or protection. If you feel that you need a temporary order to protect you right away, you should speak up and ask for one.
Read the petition for an order of protection carefully and ask questions if you don’t understand something. Describe in detail how the abuser (respondent) injured or threatened you. Explain when and where the abuse or threats occurred. You will usually be asked to include details about the most recent incident of violence as well as prior incidents. It is important to use descriptive language (slapping, hitting, grabbing, strangling, threatening, etc.) and include details about injuries or pain you suffered, dates of the incidents, and even the specific language of threats made by the abuser if possible. For example, instead of just saying "the Respondent physically abused me and I got hurt," it would be more informative to the judge to explain what happened, such as "the Respondent hit me in the face approximately 3 times with a closed fist causing me to get a black eye that lasted for a week."
Note: Do not sign the form until you have shown it to a clerk. The form might need to be signed in front of a notary public or a judge.
If you do not want to put your address on the forms, the court should have a way for you to keep it confidential. Be sure to bring this to the clerk's attention. Another possibility may be to register for NY State's Address Confidentiality Program ("ACP"). The ACP allows a victim who registers with the program to keep his/her address confidential when filing court petitions. All mail is sent to the ACP and the ACP will send it to your actual (confidential) address. To register, click here.
After you finish filling out your petition, bring it to the court clerk. The clerk will take it to a judge who may issue either a summons for the abuser to appear in court on a certain date, or a warrant for his or her arrest, depending upon the circumstances.
The judge may also issue a temporary order of protection and, if requested, the judge can also issue a temporary order of custody. The judge can also temporarily order child support in an amount sufficient to meet the needs of the child, without having to prove an immediate or emergency need for the money. The judge can make this order of temporary child support even if you do not know the respondent's income.* Furthermore, the judge may issue temporary custody during the term of the order of protection to either parent or an "appropriate relative."*
In order to get final order of protection, there are two possibilities. The first possibility is that the case will go to trial. During a trial, or hearing, both you and the abuser will have an opportunity to be heard (through testimony) and either party can present evidence in support of their case. The judge would then make his/her decision after hearing the evidence. In order to get a five year order of protection, the judge must make a "finding" that aggravating circumstances existed. The second possibility is that the parties (you and the abuser) come to an agreement or settlement under which the respondent (the abuser) consents to you having a final order of protection against him/her. An order of protection issued "on consent," as it may be called, is usually only given for up to two years since the respondent can usually consent to the order of protection without admitting any wrongdoing. If you believe that you can prove "aggravating circumstances," and you are willing to go through a trial, you can ask for a trial and try to seek a five-year order rather than agree to get an order on consent which would only last up to two years. (Check the section entitled What types of orders of protection are there? How long can they last? to read about aggravating circumstances)
* See NY Fam Ct Act § 842(j)
The court will give you instructions on how the summons, petition, and order of protection can be served on the abuser. The court should also tell you that you have the right to have the Police Department serve the summons, petition, and order. In many counties, you can also use the Sheriff's office instead of the police department - call your local Sheriff's office for their hours of operation and to make sure there is no fee involved. Note: NY state has an Order of Protection Notification System, which allows you to be notified by e-mail, text, iPhone/iPad app, telephone, fax or web query, when law enforcement serves your family court order of protection upon the abuser. For more information or to register, click here.
Service of process is important because an order of protection does not go into effect (is not valid) until it is served. Furthermore, the respondent (the abuser) has to be given notice of the court date since the respondent has the right to appear in court on the next court date.
Please remember that if you are using a friend, relative or a process server to serve the papers, that person has to be over 18 years of age. Since you are what is called a "party" to the case, you cannot serve the court papers yourself. The police are required by law to help with service and have to try more than once to find the respondent if they cannot find him/her on the first attempt.
It is important that no matter who serves the court papers, you ensure that the person who serves the papers fills out the affidavit of service that the court will give to you and that you bring the completed affidavit to court with you on your return court date. This is your proof that the respondent was served even if s/he doesn't show up in court. The affidavit of service usually asks for the time and date that the respondent was served as well as other identifying information about the respondent such as his/her physical appearance, etc. The affidavit of service must be notarized. If you are using the police or sheriff to serve the papers, they usually will fill out what is called an affirmation of service and it does not need to be notarized. If you have a question as to whether the form needs to be notarized, you should check with your local court clerk.
It is very important that you attend all of the court dates. If you find out you absolutely cannot attend, contact the court clerk immediately and ask how you can get a "continuance" or an "adjournment" for a later court date. If you do not attend, the judge may dismiss your case and any temporary orders of protection will stop being effective.
If the court case does not settle, it will go to a hearing (trial). At the hearing, you will be able to testify in court about the abuse and harassment you have experienced, present witnesses and other evidence to support your case. The abuser will be allowed to do the same. If you are not represented by a lawyer, you may want to consult with a lawyer before the hearing to understand what documents and evidence is legally admissible in court. You can also find tips on our Preparing Your Case page.
If the abuser does not attend the hearing, the court may issue a "default judgment" and you may receive an order of protection against him/her in his/her absence. The judge may hold what is called an "inquest," which is a one-sided trial where you present your evidence and testimony and the judge decides the case based on that alone. It is also possible that the judge may decide to reschedule the hearing for a different day.
If you have a temporary order of protection, it may expire on the next court date and another temporary one may be issued that is effective until the following court date. Be sure to look at the expiration date of the order before each court date so you know if the judge should be issuing another temporary order of protection on your return court date. If the judge does not mention that the order of protection is extended or continued, be sure to ask the judge if a new order is being issued on your behalf. Once the case goes to a hearing or trial, if you win your case, the judge would issue a final order of protection.
Here are some things you may want to consider doing. However, you will have to evaluate each one to see if it works for your situation.
Modifying an order
Once an order is issued, only a judge can change it. If you want to make changes to an order, you must request them from the court that issued the order (which is usually family court). The abuser and the attorney for the child, if there is one, would be notified and a hearing would be held where the judge would decide whether or not to grant the modification.* Speak with the clerk of court to complete a petition for a modification of your order - you can see the affidavit that you would file in family court on the NY Courts website.
Note: If you need to modify your order when the family court is closed, you might be able to do it at the local criminal court. However, you must prove to the judge that the existing order is insufficient to protect you, your child, or other members of the your family or household - you can see the affidavit that you would file in criminal court on the NY Courts website. The local criminal court can issue an ex parte temporary (modified) order that will last for no longer than 4 days. The order will generally be made returnable to family court on 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.**
Extending an order
You can file to extend an order of protection for "good cause" even if no new incidents of abuse have occurred. It can also be extended if the abuser consents to the extension.***
* NY Fam Ct Act § 154-c(2)
** NY Fam Ct Act § 154-d(2)
*** NY Fam Ct Act § 842
If the abuser violates the order of protection, you can report it to the police. Depending on the facts, the police may be required to arrest him/her according to what is commonly known as the Mandatory Arrest Law.* According to the Law, the police "shall arrest" a person who violates the part of the order of protection that orders the abuser to "stay away" from you or if the abuser commits one of the crimes that falls into the category of "family offenses."* The abuser can be arrested for contempt, for violating the court order, as well as for any other crime s/he may have committed when violating the order of protection.
Another option can be to file a violation/contempt petition in the court that issued the civil order of protection. The violation petition and a summons must be served upon the abuser, or the court may issue a warrant for his/her arrest. The judge will hold a hearing to determine if the order was violated and to decide what action should be taken against the abuser. The judge may order that s/he go to jail for up to 6 months, a change in the conditions in your order of protection, and that s/he pay your attorney's fees for the violation court case.**
In addition, the judge can order the abuser to immediately turn in his/her guns, revoke the abuser's gun license, and order that the respondent is ineligible to apply for a gun license (whether or not s/he currently has one). In order to do this, the judge must find that the abuser willfully failed to obey a temporary or final order of protection and:
* NY CPL §140.10(b)(ii)
** NY Fam Ct Act § 846
*** NY Fam Ct Act § 846-a(3)
No. A victim who has an order of protection (temporary or final) cannot violate his/her own order or be arrested for violating such order.*
* NY Fam Ct Act §§ 842, 846(a-1)
Your order of protection is enforceable in all states. If a person obtains an order of protection in one state and leaves that state, the law requires that all other states give “full faith and credit” to the order, meaning that it will be enforced just like it would be in NY. However, each state has its own laws and procedures. Some, like New York, have a computer system into which orders are entered and registered.
Any person with a valid order of protection (an order that has not expired) who relocates to another state may want to inquire at a court or law enforcement agency for instructions on the registration and enforcement of orders in that state.