Restraining Orders

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)