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Legal Information: New York

Restraining Orders

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November 9, 2020

Can the abuser have a gun?

Once you get a protection order, there may be laws that prohibit the respondent from having a gun in his/her possession.  There are a few places where you can find this information:

  • first, read the questions on this page to see if judges in New York have to power to remove guns as part of a temporary or final order;
  • second, go to our State Gun Laws section to read about your state’s specific gun-related laws; and
  • third you can read our Federal Gun Laws section to understand the federal laws that apply to all states.

You can read more about keeping an abuser from accessing guns on the National Domestic Violence and Firearms Resource Center’s website

What should I do when I leave the courthouse?

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.

  • Review the order before you leave the courthouse.  If something is wrong or missing, ask the clerk to correct the order before you leave.
  • If you are concerned that the abuser will harass you when you leave the courthouse, ask the court officer if s/he would escort you to the door of the building.  If you are afraid the abuser may follow you once you leave the courthouse, explain this to the court officer.  The court officer might hold the abuser there for a few minutes while you leave so that you can get a head start, which would make it difficult for the abuser to trail you.  This could be especially important if you are living in a shelter or confidential location and you do not want the abuser to know where you are staying.
  • Make several copies of the protective order as soon as possible.
  • Keep a copy of the order with you at all times.
  • Leave copies of the order at your work place, at your home, at the children’s school or daycare, in your car, with a sympathetic neighbor, and so on.
  • Give a copy to the security guard or person at the front desk where you live and/or work along with a photo of the abuser.
  • Give a copy of the order to anyone who is named in and protected by the order.
  • If the court has not given you an extra copy for your local law enforcement agency, take one of your extra copies and deliver it to them.
  • You may wish to consider changing your locks (if permitted by law) and your phone number.  In some counties, there might be a domestic violence agency that would change your locks for free if you have an order of protection.  For example, Safe Horizon in NYC has such a program called Project Safe. 

Note: If you need the order of protection to be translated into a different language, this may be possible. Under New York law, if you used a court interpreter in the court proceedings, then the order of protection is supposed to be translated into your language.1

Ongoing safety planning is important after receiving the order. People can do a number of things to increase their safety during violent incidents, when preparing to leave an abusive relationship, and when they are at home, work, and school.  Many batterers obey protective orders, but some do not.  It is important to build on the things you have already been doing to keep yourself safe.  Click on the following link for suggestions on Safety Tips.  Advocates at local resource centers can also assist you in designing a safety plan and can provide other forms of support as well.

1 NY Fam Ct Act § 169

What can I do if the abuser violates the order of protection?

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.1  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.”1  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.2 

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:

  1. 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); or
  2. the willful violation involves one of the following:

1 NY CPL §140.10(b)(ii)
2 NY Fam Ct Act § 846
3 NY Fam Ct Act § 846-a(3)

Can I modify (change) or extend my order?

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.1 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.2

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.3

1 NY Fam Ct Act § 154-c(2)
2 NY Fam Ct Act § 154-d(2)
3 NY Fam Ct Act § 842

Can I violate my own order?

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.1

1 NY Fam Ct Act §§ 842, 846(a-1)

What happens if I move? Is my order still enforceable?

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.