What is the legal definition of domestic violence ("family offenses") in New York?
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:
- Disorderly conduct
- Harassment (1st degree, 2nd degree)
- Aggravated harassment (2nd degree)
- Stalking (1st degree, 2nd degree, 3rd degree, 4th degree)
- Menacing (2nd degree, 3rd degree)
- Reckless endangerment (1st degree, 2nd degree)
- Assault (2nd degree, 3rd degree)
- Attempted assault
- Criminal mischief (1st degree, 2nd degree, 3rd degree, 4th degree)
- Sexual misconduct
- Forcible touching
- Sexual abuse (2nd degree, 3rd degree)
- Strangulation (1st degree, 2nd degree)
- Criminal obstruction of breathing or blood circulation
- Identity theft (1st degree, 2nd degree, 3rd degree)
- Grand larceny (3rd degree, 4th degree)
- Coercion (2nd degree, 3rd degree) - Note: only subsections (1), (2), (3) of the crime of coercion in the third degree (NY Penal Law § 135.60) are included as a family offense.1
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.2
1 NY Fam Ct Act § 812(1)
2 NY Fam Ct Act § 812(1); NY Dom Rel Law § 240(3)(e)
What types of orders of protection are there? How long can they last?
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.1 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.2 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.3
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:
- physical injury or serious physical injury;
- the use of a dangerous instrument (including a weapon);
- a history of repeated violations of prior orders of protection by the abuser;
- prior convictions for crimes against you by the abuser;
- the exposure of any family or household member to physical injury by the abuser; or
- prior incidents and behaviors of the abuser that make the judge believe the abuser is an immediate and ongoing danger to you or any member of your family or household.4
1 NY Fam Ct Act § 828(1)(a)
2 NY Fam Ct Act § 828(3)
3 NY Fam Ct Act § 154-d(1)
4 NY Fam Ct Act § 827(a)(vii)
What is the legal definition of an "intimate relationship?"
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.1
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.2
1 NY Fam Ct Act § 812(1)(e)
2 See R.M.W. v. G.M.M. & K.F. v. G.M.M, 2009 N.Y. Slip Op. 29038
Can the abuser's gun be taken away as part of a temporary order of protection?
With a temporary order of protection, there are certain cases where the judge is supposed to order that the abuser’s firearms (including rifles and shotguns) 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 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 abuser has a prior conviction of a violent felony offense;
- the abuser has been convicted in the past of stalking; or
- a judge found that the abuser “willfully” (purposefully) violated an order of protection in the past and, in committing such violation, the abuser caused you serious physical injury; or used or threatened to use a deadly weapon or dangerous instrument; or his/her behavior qualified as a violent felony offense.1
If the judge does not check off the appropriate box or write in this gun restriction on the order, be sure to speak up and ask the judge to do this (if this is what you want). Otherwise, you may have to wait until you are given a permanent order to get his/her guns and gun license taken away.
1 NY Family Court Act § 842-a(1)(a), (1)(b)
What protections can I get in an order of protection?
An order of protection can:
- order the abuser to stop abusing you and your children;
- tell the abuser to leave and stay away from you, your home, your workplace, and your family; (Note: the abuser can be removed from the home or ordered to stay away from the home that you were both living even if his/her name is on the lease or deed);
- direct the abuser to have no contact with you including no phone calls, letters, or messages through other people (called “third party contact”);
- order the abuser to pay your attorney’s fees that you paid to get (or later enforce) the order;
- order the abuser to give up his/her guns (including rifles and shotguns) and gun license (as part of a temporary order or as part of a final order);
- order the abuser to not intentionally injure or kill, without justification, any pet that belongs to you or a minor child residing in the household;
- give you temporary custody and arrange for visitation for the duration of the order of protection;
- make an order for temporary child support in an amount that is “sufficient to meet the needs of the child” even if the details about the income and assets of the abuser are unavailable. You do not have to show an immediate or emergency need for the support; (Note: If the abuser has employer-provided insurance, the judge can make an order that directs the employer to provide such insurance to your child);
- order the abuser to not do anything that creates an unreasonable risk to the health, safety or welfare of your child;
- order the abuser to pay for expenses related to the abuse such as medical care and property damage;
- authorize the person leaving the home (whether it is you or the abuser) to retrieve his/her undisputed personal belongings from the home with a police escort;
- order the abuser to participate in a batterer’s educational program and to pay for it if s/he has the means to do so;1
- order the abuser to promptly return your and/or your minor child’s “identification documents” including passports, birth certificates, immigration documents, bank cards, etc.;2 and
- do anything else that is necessary for your protection.1
Whether or not a judge orders any or all of these things depends on the facts of your case.
1 NY Fam Ct Act §§ 842, 842-a
2 NY Fam Ct Act § 842 (j); NY Dom Rel §§ 240(3)(a)(8), 252(1)(h)
Can the abuser's guns be taken away as part of a final order of protection?
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 (including rifles and shotguns) and revoke his/her gun license if the judge determines that either of the following are true:
- 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
- the judge believes that the conduct (acts) which resulted in your getting the order of protection was based upon the abuser:
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.
1 NY Family Court Act §842-a(2)(a), (2)(b)
In which county can I file for an order of protection?
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.1 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.2 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.
1 NY Fam Ct Act § 818
2 NY Fam Ct Act §154(c)(1)
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.