What Is an Order of Protection and Where Can You Get One?
An order of protection is a set of conditions issued by a judge that restricts or prevents an abuser from specific behaviors. The order may require the abuser to refrain from certain behaviors or actions against a victim, their children and their pets. All judges in criminal, Family and Supreme Courts can order your partner to:
- stop abusing you, your children, and pets;
- leave and stay away from your home, your workplace, and your family (this is called a “stay-away” provision);
- have no contact with you. (Note: Whether or not it is specified in the order, “contact” may include phone calls, texts, social media posts, letters, e-mails, gifts, flowers, etc., or contacting you through other people.); and
- immediately surrender any firearms, surrender pistol permits, and prohibit the purchase of firearms. (Note: Even when the court does not specifically order the surrender of the firearm, most individuals issued an order of protection are prohibited from possessing or purchasing a firearm or ammunition under federal law.)
After a judge issues an order of protection, the abuser must be served with a copy unless they were present in court when it was issued. As soon as the abuser is served, the order of protection is in effect and only a judge can change it.
If the order includes a stay away provision and the abuser comes to your house, the abuser is violating the order and should be arrested. You may feel there is a good reason for them to be at your house, such as a child’s birthday, but being there puts them in violation of the order, and they should be arrested just for being there.
If you want changes to an order, you must request them from the court. If your order is from a criminal court, the District Attorney’s office may want to speak with you to determine whether you understand the potential risks of a change to the order, and to assess whether the abuser is pressuring you to have the order changed. Ultimately, the judge may or may not grant your request, based on the DA’s recommendation and the judge’s own opinion of the case. If your order is from the Family Court, you will likely need to make the request in writing and have the judge determine whether the order should be changed. The judge might also want to hear from you about your reasons for wanting the change. It is most important to remember that unless the judge changes the order in writing, the abuser will be in contempt of court if they violate any part of the order for any reason.
Orders of protection are valid in any state or territory in the country, no matter where they were issued. If the order has not expired and has the correct names of the people involved, the police should consider it valid and enforce it.
New York State Law recognizes that the only one who has to obey an order of protection is the abusive party. The law prohibits victims of domestic violence from being held in any way legally responsible for a violation of an order of protection issued by the court to protect them. Victims cannot be arrested, even if they have, or agree to have, contact or communication with the abuser who is the subject of the order of protection.
Where Do You Get an Order of Protection?
There are several types of courts that can issue orders of protection.
Family Court is a civil court with the goal of protecting you and your family. You can go to Family Court if you and the abuser are:
- Current or former spouses;
- Current or former intimate partners, including same sex couples and teens in dating relationships;
- Persons with a child in common, including adopted children;
- Persons related by marriage (in-laws, etc.); or
- Persons related by blood (siblings, parents, etc.).
Family Court judges can issue an order of protection and make decisions about custody, visitation, and child support. A judge may order the abuser to pay for expenses related to the abuse, such as medical care and property damage.
Going to court can be frustrating and confusing. A domestic violence advocate can be very helpful in explaining the process and supporting you. However, the advocate cannot speak on your behalf or represent you in court. Only an attorney can do that.
To get an order of protection:
You must file a family offense petition with the Family Court clerk. You are now called the “petitioner.” Let the court know if you want to keep your address a secret from your abuser. The judge can order that your actual address be marked “confidential” and all the legal mailings related to your case can be mailed to someone you trust (friend/relative/attorney), or you can choose the Clerk of the Family Court to be listed and the clerk will mail to your chosen address. If you participate in the NYS Address Confidentiality Program (ACP), you can use your ACP post office box – be sure to bring your ACP card to court.
- If you are requesting an order of protection, the judge will most likely want to talk to you.
- The judge will decide whether or not to issue a temporary order of protection. The abuser must be served with the temporary order of protection for it to be enforced by police. The temporary order extends at least to your next court date, which will be given to you by the court. Some courts issue temporary orders that are written to last a fixed period of time – for instance three months. These orders are helpful if your court appearance is delayed. If your order is set to expire at the first scheduled court date, and there is a delay of that date for some reason, it is important to ask your attorney or the court to request an extension of the order of protection so it will remain in effect until you do get into court.
- On the day you are due back in court, the abuser, now called the “respondent” in the order of protection, must come to court on that day, too. The judge may make the temporary order of protection permanent. If the abuser does not agree, or “consent,” to the permanent order of protection, or disputes what you said in your petition, the court will set a date for a “fact finding hearing.” There could be several appearances before you actually have the fact-finding hearing (also called a trial). Both of you will be required to be at that hearing, where the judge will decide whether to make the order permanent or dismiss the case. Both parties can bring an attorney to court at any time.
Family Court orders of protection can be issued for up to five years, depending on the circumstances.
Statewide Automated Victim Information and Notification (SAVIN-NY) is a free service that allows a victim with a Family Court order of protection to register to be notified when law enforcement reports the order has been served. You my register through NY-Alert at bit.ly/SAVIN-NY. You can choose to be notified by e-mail, text, iPhone/iPad App, telephone, fax or web query.
Criminal Court: You can apply for an order of protection in criminal court if the abuser has been arrested for a crime in which you are the victim or a witness, even if you are not a member of their family or household. In some locations, the criminal court may be your Town or Village Court, sometimes called Police Court. The police or assistant district attorney may request an order of protection from the court or you may make the request yourself. As in Family Court, this will be a temporary order until a permanent order is issued. A permanent criminal order of protection can be issued for 2 to 8 years, depending on the crime the abuser is convicted of.
Supreme Court is also a civil court. If you are getting a divorce, separation, or annulment, you can request an order of protection through your attorney at any time before the case is settled. When an order of protection is part of a divorce order from Supreme Court, it is permanent and will not expire. But getting changes in a Supreme Court order can be difficult and expensive. You may request that the order include a provision that any future changes can be made in Family Court.
You can have orders of protection from more than one court at the same time. For example, you might have an order of protection from criminal court, but you need decisions made about custody, visitation, or child support. In that case, you may want to get another order of protection in Family Court to deal with those issues. However, keep in mind that if the orders conflict in any way (for instance one directs the abuser to stay away from you, and one directs the abuser not to commit crimes against you) it can be difficult for police to know which order to enforce. If you have more than one order of protection and are confused, or if you don’t know if you should get another one, talk to an advocate.
How Do You Decide Which Court to Go To?
Be aware that sometimes the decision to use criminal court will be made without you. This can happen if the police respond to an incident and arrest the abuser.
Filing a petition in Family Court will not prevent you from pursuing a complaint in criminal court. To decide whether to go to Family Court, criminal court or both, you may want to think about the following:
It can be easier to get a temporary (or emergency) order of protection than going through criminal court.
Criminal charges must have been filed by the police or District Attorney.
Requires a lower level of proof (“preponderance of the evidence”).
Requires a higher level of proof (“beyond a reasonable doubt”).
Your participation is required.
The District Attorney may be able to proceed with the case without your participation if there is other evidence of the crime.
Records are private but the courtrooms are open to the public.
Records and courtrooms are open to the public.
When you go to court, it can take several hours for your case to come before a judge. Be prepared to spend as much time as necessary waiting, possibly the whole day, especially in Family Court. Some Family Courts have centers to watch your children while you are there. In courts without centers, you might want to bring another adult with you to wait with your child while you are in the courtroom. Some courts also have two separate waiting rooms, so you can sit in a different room from the abuser. A domestic violence advocate can often go to court with you. To make sure they are available, give the advocate as much notice as possible of your court date.