Sometimes people need to be kept apart to keep them safe or to keep their children safe. Sometimes a person is so angry or has such a lack of control that they can’t make themselves stay away and the person they are threatening is not able to avoid them. When that happens, the judge may issue an order of protection against that person so that they are legally forbidden from being near the other person.

This is often seen in domestic violence cases, family law cases like divorce or custody battles, and in criminal court. These orders can help protect a person who feels unsafe or is afraid of a certain person, who wishes to do harm to them.

Here’s what you need to know about orders of protection in New York.

What is a New York Order of Protection?

An order of protection is a legal document that is issued by the court and signed by a judge. It limits or forbids the behavior of an individual who threatens to harm or harms another individual. This person can be an intimate partner, family member, friend, co-worker, acquaintance, or stranger.

The order of protection is designed to address safety issues such as those related to stalking, threats, and domestic violence. The Supreme Courts, criminal courts, and family courts all have the authority to issue orders of protection because it is not confined to just one area of law. It directs the offending person to adhere to specific requirements such as;

  • Not to harass, threaten, or injure the person who is named on the order, their family, or any other people who are named
  • Stay away from the person named on the order and their children – even if the offending person is a parent of the children
  • Stay away from the named person’s place of employment, school, church, or other places they frequent 
  • Stay away from their children’s school, church, extracurricular activities, etc.
  • Not call, email, text, contact on social media, etc. the named person, children, family
  • Move out of their home
  • Pay child support
  • Adhere to custody orders
  • Not possess a gun

How does an order of protection work in NY?

A judge signs the order of protection and the person who is the subject of it (whom the order is against) is required by law to comply with the terms. If they do not comply with the terms of the order they could be arrested and put in jail. When a person files for an order of protection against a person that person will be notified that they have an OP against them and will be given a copy. If it is a temporary OP then will be given a date to appear in court regarding the OP.

A temporary order of protection will remain in effect until the offender appears before a judge for a hearing at which time the order will be terminated or it will become permanent.

What are the grounds for an order of protection in New York?

The grounds for an order of protection issued by the family court are a variety of behaviors and actions that fall under the umbrella of “family offense.”  These offenses include:

  • Assault
  • Criminal mischief
  • Disorderly conduct
  • Stalking
  • Harassment
  • Reckless endangerment
  • Sexual abuse
  • Strangulation
  • Menacing 
  • Coercion 
  • Threats of harm to the person filing for the order, their children, family, or friends

How do you get an order of protection against someone in New York?

The court where you get an order of protection depends on the type of order you need. There are three courts that issue orders of protection:

  • Family Court – Issued as part of a civil proceeding and is intended to stop violence that is occurring within a family or intimate relationship while providing protection for the person who is requesting the order. The offending person must be:
    • Current spouse
    • Former spouse
    • A person who had a child with the person requesting the order
    • Someone related by marriage or blood
    • Current intimate relationship with the person requesting the order (not always sexual)
    • Former intimate relationship with the person requesting the order (not always sexual)
  • Criminal Court – Can only be issued against an individual who has criminal charges against them or has been convicted of a crime. It is often issued against a defendant as a condition of their release.
  • Supreme Court – Only issued as part of a divorce case that is ongoing.

What is the difference between a restraining order and an order of protection in NY?

In the state of New York, a restraining order is the same as an order of protection. There is absolutely no difference.

Does an order of protection go on your record in New York?

An order of protection may show up on your record but it depends on the type of order it is and which court issued it. If it was issued in Family Court, these cases are not criminal so a criminal background check will not show it. However, if it was issued in criminal court, it does become a public record. A criminal background check can reveal that you have or have had an order of protection against you.

What happens when you get an order of protection against someone?

When your request for an order of protection against someone is granted, it will go into effect right away. If the person you took it out against was not present when it was granted, they will be served the notice and a copy of the order. If it is a temporary restraining order, they will be issued a summons to appear in court so the judge can hear the case and determine whether to terminate the order or extend it.

Breaching an order of protection is an arrestable offense. A person breaches the order if they do not comply with the terms. That means, if a person is ordered to stay at least 50 feet from you and your home and they come to your door, they are breaching the order. 

What happens when someone gets an order of protection against you?

If someone gets an order of protection against you and you were not present when it was issued, you will receive notice of the order and a copy will be served to you. You will also receive a summons to appear in court for a hearing so the judge can review the case surrounding the order. 

You are required by law to comply with the order of protection. If you breach it in any way you could be arrested and spend time in jail. If you feel that the order is unfair, inaccurate, contains false information or accusations, or there is some reason it should not be valid, you need to talk to an attorney who can help you and may represent you at your hearing.

How long does an order of protection last in New York?

Temporary orders of protection can last a few days or weeks. Most orders are granted for around 6 months to a year. A final order of protection typically lasts for either two years or five years. The length usually depends on the circumstances surrounding the order of protection and why it was issued.

What conduct violates an order of protection in NY?

An order of protection is violated when any of the terms are breached by the offending person. For instance, if they are prohibited from contacting their former spouse or their spouse’s family and they call the former spouse’s sister, they have breached the OP. The terms of the order of protection are usually very clear and explicit, leaving little to no room for interpretation. 

What happens when you violate an order of protection in New York?

If the order is breached, the person could be charged with criminal contempt along with any other charges they may incur in the commission of that crime. They can be arrested and imprisoned or put in jail. Even if an order of protection is issued by a family court and is not a criminal OP, violating that order is a crime. So, even if the family court-issued OP will not show up on your criminal background check, your violation of it could.

How do you get around an order of protection?

Any party in the case may ask the court to change it or terminate the order of protection. It is important to note though that if an order of protection was issued by the criminal court, the family court is not able to change it unless the Criminal Court makes the Order of Protection subject to the Family Court.

Often an order of protection is modified for special circumstances such as allowing visitation with a child or if both parties work at the same place.

How do you get an order of protection against someone in New York?

There are different procedures for each court, so the first step is knowing which court you need to approach with your request. This is where an experienced family law attorney can help.

  • Family court – File a family offense petition with the family court clerk. After filing the petition, a judge will talk with you to see if there is good cause to grant the OP. If so, the judge will issue a temporary OP and set a court date later to determine if the order is to remain in place.
  • Criminal court – If the offending person was arrested and you are seeking an order of protection that is directly related to that situation (the crime they were arrested for was against you or your children and you want protection from them as a victim) then the judge may issue the OP when the defendant is arraigned. At that time, the order will be temporary, but it could be changed to a final OP when the defendant is sentenced or accepts a plea deal.
  • Supreme court – The judge in a divorce case can issue an order of protection as part of divorce proceedings. One or both spouses can request an OP at any point in the divorce.

If you are seeking to get an order of protection against someone or if someone has gotten an order of protection against you, you probably have questions. At the Litvak Law Firm, we will spend time with you, reviewing your case and discussing any issues surrounding it. We will work hard to ensure that your rights are always protected and that you have the best possible outcome for your case. Call today at 718-989-2908 for your free consultation and get the legal representation that you deserve.