Orders of Protection (OPs) involving Members of the Same Family or Household
What is an Order of Protection (OP)?
An order of protection (OP):
- Is a court order issued by a judge.
- Because the OP is strictly a court order, only a judge can cancel or change the OP in any way.
- An OP is not an order between the people involved in the case. Neither the person protected by the OP nor the person required to obey the OP can invalidate the order or change it in any way.
- New York State Criminal Procedure Law § 140.10(4) provides “The protected party in whose favor the order of protection or temporary order of protection is issued may not be held to violate an order issued in his or her favor nor may such protected party be arrested for violating such order.”
- These bolded and capitalized words must appear in all New York OPs:
THIS ORDER OF PROTECTION WILL REMAIN IN EFFECT EVEN IF THE PROTECTED PARTY HAS, OR CONSENTS TO HAVE, CONTACT OR COMMUNICATION WITH THE PARTY AGAINST WHOM THE ORDER IS ISSUED. THIS ORDER OF PROTECTION CAN ONLY BE MODIFIED OR TERMINATED BY THE COURT. THE PROTECTED PARTY CANNOT BE HELD TO VIOLATE THIS ORDER NOR BE ARRESTED FOR VIOLATING THIS ORDER.
An order without these words is still valid, however.
- The words “a specified person” is one person. This specified person is known as the “enjoined party” because it is the person that the judge has ordered (enjoined) to obey what the OP requires and/or forbids.
- Since the enjoined party is the only person ordered to obey the OP, only the enjoined party can be arrested for violating any of the conditions of behavior set forth in the OP.
- For “a specified period of time” means that the OP will remain in effect during the time written in the order.
- “Another person” is the “protected party” that the judge names in the OP. This is the person that the judge determines to need protection from the enjoined person.
- Based on the facts of the case, the judge may decide to add to the OP or extend the conditions of behavior to include the protected party’s family members and/or companion animals or pets.*
Which New York Courts issue OPs?
In New York State, depending on the circumstances, persons can receive an OP against members of their family or household in:
- Criminal court, as part of a criminal prosecution in city, town, village, or County courts, or Supreme Court, criminal part,
- Civil court, through Family Court or Supreme Court, and
- Both criminal court and civil court at the same time.
- This can occur in cases involving the commission of designated family offenses as defined in New York State Criminal Procedure Law Section 530.11(1) and Family Court Act Section 812(1) where both courts have concurrent jurisdiction over the matter.
Under New York State Criminal Procedure Law Section 140.10(4)(b), police officers shall arrest the enjoined party for violating a duly served OP involving a family or household member whenever they have reasonable cause to believe that the enjoined party:
- Violated a “stay-away” provision of the OP, or
- Committed a family offense in violation of such OP.
- Police shall arrest even if the OP that was violated was from Family Court or the civil part of NYS Supreme Court.
- This is true even if the protected party also files a petition in Family Court for violation of a Family Court OP.
- Bottom line: For OP violations involving members of the same family or household, police are required to arrest for the appropriate degree of criminal contempt and bring the case to criminal court, regardless of whether or not the protected party files a petition in any civil court.
What are the “types” of OPs issued in New York courts?
In New York State, OPs are often described by what they prohibit and/or the time in which they can be enforced, including:
- “Stay-away” or “full” OPs (where the enjoined party must “stay away” from and have no contact with the protected party, along with other provisions)
- “Refrain from” or “limited” OPs (where the enjoined party may be allowed to have “contact” with the protected party but must refrain from committing any designated family offense or any criminal offense against the protected party)
- “Ex parte” temporary OPs (where the judge hears from only the protected party)
- “Final” OPs (after a hearing in which both parties have had the opportunity to be heard by the judge)
Which OPs are enforceable in New York State?
Federal and New York State laws provide police officers in New York State with the authority to enforce:
- Any OP, including an order on consent, issued by the family, criminal, or supreme courts of New York State;
- Any foreign (out-of-state) OP; and
- Any order defined within the federal term “protection order.”
What does Full Faith and Credit mean?
The full faith and credit provisions of Article IV of the United States Constitution and the federal Violence Against Women Act (VAWA) are the basis for the enforcement of any foreign OP in New York State.
- Per Section 2265(a) of Title 18 of the United States Code, “full faith and credit” means that police officers must enforce OPs issued by the courts of other states, Indian Tribes, or territories as if they were OPs issued by their own jurisdictions.
- Relevant New York laws for filing and enforcing foreign OPs are Criminal Procedure Law § 530.11(5) and Domestic Relations Law § 240 (3-c): A valid order of protection or temporary order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction shall be accorded full faith and credit and enforced as if it were issued by a court within the state for as long as the order remains in effect in the issuing jurisdiction in accordance with sections 2265 and 2266 of title 18 of the United States Code.
- An OP is to be given full faith and credit if:
- The court had jurisdiction over the parties and the matter under the law of the state where it was issued, and
- Sufficient reasonable notice and opportunity to be heard was given to the enjoined party to protect that person’s due process rights.
What are some names to describe OPs issued in other states?
Among the names that other states may use to describe OPs are:
- Restraining order
- No-contact order
- Injunction for protection
- Protection from abuse order
- Relief from abuse order
- Harassment order
- Stalking protection order
Enforcement of foreign OPs
Regardless of what the OP is called and the general appearance of the document, all foreign OPs are enforced as though they were issued by a court in New York State, if:
- There is reasonable cause to believe that the OP was violated in New York, and
- The OP appears valid on its face. This means:
- Personal service to defendant or defendant was present in court when order was issued
- Includes the names of the parties
- Includes date of issuance
- Includes date of expiration, which has not yet occurred
- Specifies terms and conditions against abuser
- Contains name of the issuing court
- Contains the signature of a judicial officer
A foreign OP is not required to:
- Be an “original” OP (a copy of the OP is OK)
- Have an original signature of the judge or issuing authority
- Have a raised seal or stamp on the order
- Be registered in the local court (or any other state court) in the enforcing jurisdiction
Law enforcement do not need to know the laws of the issuing jurisdiction to enforce a foreign OP. The OP is enforced as it is written, just the same as if it were a New York order.
- Any violation of a foreign OP in New York State is subject to arrest for the appropriate degree of criminal contempt in New York’s Penal Law.
- The foreign OP becomes a New York OP when it is violated in New York.
- A New York OP that is violated in another state is enforced just as if it were an OP issued by a judge from that other state.
OPs that generally do not qualify for full faith and credit protections are:
- Administrative OPs issued by police supervisors
- Military Protective Orders
- Mutual orders of protection
What are the New York Criminal Charges for Violating an OP?
- Criminal Contempt 2nd degree – Penal Law section 215.50 (3), class A misdemeanor
- Criminal Contempt 1st degree – Penal Law section 215.51, class E felony
- Aggravated Criminal Contempt – Penal Law section 215.52, class D felony
*For more information, please see the Animal Cruelty and Domestic Violence Infoguide.