Duly served OP: When is an OP considered to be in effect?
Regardless of the court of issuance, an OP is considered to be in effect when the enjoined party (defendant or respondent) is served with the order.
- Being served means that the enjoined party was either:
- Present in court and advised by the court of its issuance and the contents of the order, or
- Present in court and personally served in court, or
- Personally served by the police or someone else who must be 18 years of age or older, other than the protected party.
- Personal service includes friends, family members, probation officer, co-workers, professional process servers, etc.
- The words duly served indicate that proper service was made.
- When law enforcement serves an OP on a defendant or respondent, New York State law requires that notice of service be entered into the Order of Protection Registry as soon as possible.
- This gives notice to others that the order is in effect and arrest can be made for any violation.
- In Family Court, such proof of service can allow a final order to be provided if the respondent does not appear as summoned.
- A person other than a police officer who serves an order upon a defendant or respondent must provide a signed notarized affidavit of service to the court to verify service. The court will then add proof of service to the registry to show that the order is in effect.
A foreign, or out-of-state, OP is a court order that is issued by an American court other than a court located within New York State, including:
- Any state, county, or local court of other states;
- Any Indian tribal court located within the United States;
- Any court within the District of Columbia; and
- Any court of a commonwealth, territory, or possession of the United States:
- American Samoa,
- Northern Mariana Islands,
- Puerto Rico, and
- The U.S. Virgin Islands.
Note: “Foreign” OPs do not include OPs from foreign countries, including Canada and Mexico.
The federal term “protection order,” as defined in Section 2265(5) of Title 18 of the United States Code, includes:
(A) any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil or criminal court whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection; and
(B) any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction pursuant to State, tribal, territorial, or local law authorizing the issuance of protection orders, restraining orders, or injunctions for the protection of victims of domestic violence, sexual assault, dating violence, or stalking.