Orders of Protection and Restraining Orders

If you are in an emergency or life-threatening situation, you should call 911 immediately.

In New York, an “order of protection” is a legal term that refers to a protective order, commonly referred to as a restraining order, issued by the court as a means to help keep a person safe from further abuse or other harm or harassment. Depending on the scope of the order, an order of protection can deter someone who has been intimidating, harassing, threatening, or abusing you by prohibiting them from contacting you or coming near you, or it can limit their contact and define what contact is allowed.

An order of protection can be issued through criminal proceedings or through civil proceedings. Orders of protection can be sought by:

1. Victims of a Crime – An order of protection can be issued for anyone who feels they have been victims of a crime, whether or not they had a relationship with the alleged abuser. If a victim reports the crime to the police, a protective order may be issued during a court appearance. For a protective order to be issued in such a circumstance, the person accused of abuse must be charged with a crime. In New York State, district attorneys prosecute criminal cases and request such orders of protection from the court.

2. People Who Have Experienced Domestic Abuse, Threats, or Harassment – Orders of protection are commonly issued as part of a civil proceeding, in situations where a person has experienced domestic violence, any kind of abuse, harassment, or threat of abuse from a family member or someone they know intimately, regardless of whether anyone has been charged with a crime.

If any of the below apply to you, obtaining an order of protection might be right for you:

• If I am afraid of my spouse, partner, or other family member – No one should have to live in fear. If you are afraid of your spouse, partner, or family member and would like to get away from them, an order of protection may be an important part of that exit strategy.
• If my spouse is unsafe for our family – If your family’s safety is threatened, by a violent, disturbed, or otherwise abusive spouse, it may be advisable to obtain an order of protection to restrict their access to you and your family, or to keep your children safe from their abuse.
• If I am afraid to return home – If your home situation is unsafe because of a spouse, domestic partner, boyfriend/girlfriend, or a family member, an order of protection may be an option to restrict that person’s movements (i.e., their access to you and your home) and make your home safe again.
• If my spouse/boyfriend/partner is threatening/intimidating me – Someone doesn’t have to have laid a hand on you to make them a threat to you. If you are afraid because a partner has threatened or intimidated you, you don’t have to wait for them to follow through on their threats. You may be able to get an order of protection to help keep you safe.
• If my boyfriend harasses me/my girlfriend harasses me – If you have a partner or ex-partner who harasses you and you want the behavior to stop, an order of protection might ultimately be your shield against this type of abusive partner.

An order of protection can be obtained through a Criminal Court or through a Civil Court. While a criminal order of protection is issued in Criminal Court to someone charged with a crime, the more common orders of protection are both civil orders, or orders of protection issued by civil courts, which include Family Court (for domestic and family abuse) or the Supreme Court (as part of divorce proceedings).

An order of protection from Family Court or the Supreme Court provides the same degree of protection as a criminal court order of protection, but does not require criminal prosecution to be obtained or an arrest warrant to be served.

• Family Court – You can file a family offense petition with Family Court whether or not you have any other pending litigation. If you have already gone through divorce or legal separation proceedings, or if the person who has abused, threatened, or harassed you is a sibling or other family member, this is your most likely option.
• Supreme Court – If you have active divorce proceedings, you may obtain an order of protection through Supreme Court. To obtain a Supreme Court order of protection, you may make an oral request during a court appearance throughout divorce proceedings, or you can make a written request with a Motion or Order to Show Cause. Be sure to discuss your specific needs and circumstances with your family law attorney, who can make the request for you.

If you are filing a family offense petition in Family Court, you must establish that you have a relationship with the other person in one of the following categories:

• Spouse – You can be married, separated, or divorced from your spouse.
• Family Member – You can be related by blood or by marriage (e.g., sibling, parent, step-parent).
• Other Parent of Your Child – You can have a child together.
• Intimate Relationship – You can simply have (or have had) an intimate relationship with the other person. “Intimate” here can be a sexual relationship, a boyfriend/girlfriend/domestic partner, or other such intimate relationship, but “intimate” can also refer to an intimate nonsexual relationship that is more intimate than a relationship established in the workplace, a casual acquaintance, or an acquaintance through third parties. The court will determine if your relationship qualifies as intimate based on your level of contact and communication and how long you’ve known one another.

A family offense petition may be filed in your current county of residence, or it may be filed in the county where your abuser lives or where the (alleged) abuse occurred. If you are living in a confidential location in a different county from your abuser, it may be in your best interest not to file in your current county of residence to best preserve the confidentiality of your current location. Additionally, in the state of New York, victims can register with the Address Confidentiality Program (ACP) to attain help protecting address confidentiality.

Once you file a family offense petition, you can obtain a Temporary Order of Protection for the duration of the proceedings. To obtain a final Order of Protection, you must prove that the other party committed certain offenses against you.

Both parties are entitled to attorneys when it comes to petitioning Family Court for an order of protection, and if you don’t retain your own counsel, an attorney will be provided for you.

For peace of mind, and for the best possible outcome, it is advisable to have a qualified attorney experienced in family law to represent you through the process and build the strongest case possible to obtain your order of protection, to keep you safe.

If you feel someone has made a false accusation or wrongfully filed an order of protection against you, it’s in your best interest to work with a qualified attorney to best protect yourself from any of the collateral consequences associated with a restraining order. An experienced family law attorney can help you mount a strong defense to protect you from a wrongful attack on your character and on your record.

The duration of temporary orders of protection for family law cases can vary, but they can be renewed throughout the proceedings and expire when the family offense case is resolved. A final order of protection issued for family law cases may be issued for up to two years after the case is resolved – unless the court determines there were aggravating circumstances (such as a weapon, injury, violent history, or repeated violations, etc.), or if the behavior of the accused violated an existing protective order. If the court finds there were such aggravating circumstances, an order of protection from Family Court may be issued to last for up to five years.

Knowing how to defend an order of protection is as important as knowing how to attain one. While an order of protection is not a complete guarantee of safety, a violation of an order of protection can result in serious legal consequences. Regardless of which court issued the order – Criminal Court, Family Court, or the Supreme Court – it is a crime to violate an order of protection (temporary or final).

If the other person violates the order of protection, it is your right, and in your best interest, to involve the police. If you call the police, the violator will likely be arrested. You don’t have to be physically harmed by them for a violation to occur. A violation is any behavior that indicates the order is not being obeyed. For example, if they show up at your apartment in defiance of the order, they could be arrested.

If you need to secure an order of protection, or to challenge the wrongful issuance of a restraining order, contact our office at Rudyuk Law Firm, P.C., today to discuss your specific circumstances and determine the best course of action. Ksenia Rudyuk, principal attorney of Rudyuk Law Firm, will fight to ensure that you’re protected. You deserve to have a knowledgeable, skilled ally to work with you throughout the process, protecting your best interests and working to ensure that they stay protected.