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Legal Information: New York

Restraining Orders

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November 9, 2020

Step 3: A judge will review your petition.

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.1  Furthermore, the judge may issue temporary custody during the term of the order of protection to either parent or an “appropriate relative.”1

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)

1 See NY Fam Ct Act § 842(j)