Family Court Order of Protection in New York: How to File a Petition

   If you are a victim of domestic violence, harassment, threats, stalking, or abuse in New York, you may be able to ask Family Court for an Order of Protection. An Order of Protection is a court order that can restrict the conduct of another person and help protect you, your children, or other protected family or household members. In New York Family Court, these cases are commonly known as family offense proceedings. A family offense petition may be filed when the parties have a qualifying family, household, dating, or intimate relationship, and the respondent is accused of committing a family offense under the New York Family Court Act.  Family Court Orders of Protection can have serious consequences. They may affect housing, communication, custody, visitation, employment, immigration status, and related criminal matters. Whether you are seeking an Order of Protection or defending against a family offense petition, it is important to understand how the process works.

Who Can File for an Order of Protection in New York Family Court?

A person may file a Family Court petition for an Order of Protection against a respondent when the parties have a relationship covered by the Family Court Act. This may include:

• spouses or former spouses;
• people who have a child in common;
• parents and children;
• people related by blood or marriage;
• members of the same family or household;
• people who are or were in an intimate relationship; and
• current or former dating partners, depending on the nature of the relationship.

A petitioner does not necessarily need a police report or criminal arrest to request an Order of Protection in Family Court. Sometimes the police respond to a domestic violence incident but do not make an arrest. In other cases, a person may not want to start a criminal case but may still need court protection.  In those situations, the petitioner may file a family offense petition in Family Court and ask the Court to issue a temporary Order of Protection.

What Is a Family Offense Petition?

A family offense petition is the document that starts a Family Court case for an Order of Protection. The petition should explain the relationship between the petitioner and the respondent and describe the specific acts that allegedly justify court protection.  Family offenses may include conduct such as:

• assault;
• attempted assault;
• harassment;
• aggravated harassment;
• stalking;
• menacing;
• reckless endangerment;
• criminal mischief;
• disorderly conduct;
• sexual misconduct;
• forcible touching;
• sexual abuse;
• strangulation;
• criminal obstruction of breathing or blood circulation;
• identity theft;
• grand larceny; and
• coercion.

The petition should include specific facts, dates, locations, threats, injuries, prior incidents, text messages, emails, photographs, police involvement, prior Orders of Protection, and any other information that may help the Court understand why protection is being requested.

What Happens After the Petition Is Filed?

After the family offense petition is filed, the petitioner may appear before a Family Court Judge or Referee. The petitioner may be asked to testify under oath about the allegations and explain why an Order of Protection is necessary.  If the Court finds that the allegations are legally sufficient and that immediate protection may be appropriate, the Court may issue a temporary Order of Protection. The Court may also issue a summons directing the respondent to appear in Court.  The case is then usually adjourned for service of process on the respondent. The papers served on the respondent usually include:

• the family offense petition;
• the summons;
• the temporary Order of Protection; and
• any additional court notices or instructions.

A temporary Order of Protection may be issued before the respondent has appeared in Court. However, the respondent must be served and allowed to appear and respond to the allegations.

Limited Order of Protection vs. Full Stay-Away Order

A Family Court Order of Protection may be limited or full stay-away, depending on the allegations, the parties’ relationship, safety concerns, and the Court’s decision.  A limited Order of Protection may allow communication between the parties but prohibit the respondent from committing family offenses, threatening, harassing, intimidating, assaulting, stalking, or interfering with the petitioner or other protected persons. A full stay-away Order of Protection may prohibit the respondent from contacting the petitioner in any way, including in person, by phone, text message, email, social media, or through third parties. It may also require the respondent to stay away from the petitioner’s home, workplace, school, children, or other protected persons. If the parties live together, the Court may issue an exclusionary Order of Protection directing the respondent to leave the home. In some cases, law enforcement may be directed to assist with the respondent’s removal from the residence, even if the respondent owns or leases the home.

How Is the Order of Protection Served?

The petition, summons, and temporary Order of Protection must be properly served on the respondent. Service may be completed by law enforcement, such as the sheriff or police, by a professional process server, or by another adult over the age of 18 who is not a party to the case. The petitioner should not personally serve the respondent. After service is completed, the person who served the papers must complete an Affidavit of Service. The Affidavit of Service must be filed with the Court and presented on the next court date. The next court appearance is often called the return date or return of process date. At that appearance, the Court will determine whether the respondent was properly served.  If the respondent was not served, the Court may extend the temporary Order of Protection and adjourn the case to allow additional attempts at service.

Family Court vs. Criminal Court Orders of Protection

Both Family Court and Criminal Court may issue Orders of Protection in New York domestic violence cases. In some cases, both courts may be involved at the same time.  A Criminal Court Order of Protection is usually issued in connection with a criminal prosecution. The prosecutor controls the criminal case, and the complainant is generally a witness rather than a party.  A Family Court Order of Protection is different. In Family Court, the petitioner is a party to the case. The petitioner may pursue the petition, withdraw the petition, agree to settle the case, or proceed to a fact-finding hearing.  Family Court can issue a limited or full stay-away Order of Protection. Once issued, the order must be obeyed. A violation of a Family Court Order of Protection may result in arrest, criminal charges, contempt proceedings, or other serious consequences.

What Happens at the First Court Appearance?

At the first court appearance after service, the Court will usually review proof of service and determine whether both parties are present.  The Court may also ask whether each party is represented by an attorney, intends to hire an attorney, or wishes to apply for court-appointed counsel if financially eligible.  If the respondent appears, the Court may continue, modify, or vacate the temporary Order of Protection. The Court may also discuss whether the parties are able to resolve the case by agreement or whether the case must be scheduled for a fact-finding hearing. If the respondent was not served, the Court may extend the temporary Order of Protection and adjourn the case to allow further attempts at service.

Can a Petitioner Withdraw a Family Offense Petition?

In Family Court, the petitioner may ask to withdraw the family offense petition. If the Court grants the request, the case may be dismissed, and the temporary Order of Protection may be vacated.  However, a petitioner should carefully consider safety concerns before withdrawing a petition. If there are related criminal charges, custody disputes, child protective matters, immigration concerns, or prior incidents of abuse, withdrawing the Family Court petition may not resolve every legal issue between the parties.

Can the Parties Resolve the Case by Agreement?

Yes. Many Family Court Order of Protection cases are resolved by agreement. In some cases, the respondent may agree to an Order of Protection without admitting wrongdoing. This allows the case to end without a fact-finding hearing while still providing court-ordered protection.  If the parties have children in common, the Court may also address parenting time. Depending on the circumstances, the Court may allow supervised or unsupervised visitation. If supervised visitation is ordered, the visits may take place through an agency or with a mutually acceptable third party, such as a trusted friend or relative, if approved by the Court.

What Happens at a Fact-Finding Hearing?

If the parties cannot resolve the case by agreement, the Court may schedule a fact-finding hearing. A fact-finding hearing is similar to a trial before a judge. At the hearing, each side may testify, call witnesses, cross-examine witnesses, and introduce relevant evidence. Evidence may include photographs, medical records, police reports, text messages, emails, voicemails, social media messages, prior Orders of Protection, and other documents or recordings.  After hearing testimony and reviewing the evidence, the Judge will decide whether the petitioner proved that the respondent committed a family offense. The burden of proof in a Family Court family offense case is fair preponderance of the evidence. This is a lower standard than proof beyond a reasonable doubt, which is used in criminal cases.

What Are the Possible Outcomes of a Family Offense Case?

The possible outcomes of a Family Court family offense petition may include:

• dismissal of the petition;
• withdrawal of the petition by the petitioner;
• an Order of Protection issued on consent without admission of wrongdoing;
• a finding after hearing that a family offense was committed; or
• a final Order of Protection issued by the Court.

A final Order of Protection may be limited or a full stay-away. In many cases, a final Order of Protection may last up to two years. In cases involving aggravating circumstances or other qualifying legal grounds, the Court may issue a longer order, including an order lasting up to five years.

Why Legal Representation May Be Important

Family Court Order of Protection cases can have significant legal and practical consequences. For the petitioner, the case may involve immediate safety, housing, child custody, financial support, and enforcement concerns. For the respondent, the case may affect where the respondent can live, whether the respondent can see the children, whether the respondent can communicate with family members, and whether related criminal exposure may arise.  An experienced New York Family Court attorney can help prepare or respond to a family offense petition, review evidence, negotiate a possible resolution, address custody or visitation issues, prepare for a fact-finding hearing, and protect the client’s rights throughout the case.

Speak With a New York Family Court Order of Protection Attorney

Family Court Order of Protection cases can affect personal safety, housing, custody, visitation, immigration, employment, and criminal exposure. Whether you are seeking an Order of Protection or defending against a family offense petition, it is important to understand your rights and the possible consequences. Sharifov & Associates, PLLC assists clients with Family Court Orders of Protection, family offense petitions, domestic violence cases, custody and visitation issues, and related criminal defense matters in New York.

If you have questions about a Family Court Order of Protection in New York, please contact our office for a detailed consultation.

Sharifov & Associates, PLLC
516-505-2300
718-368-2800
SharifovR@LawfirmSR.com

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