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Legal Information: New York

Restraining Orders

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April 12, 2019

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)