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Family Court petition for an Order of Protection

Order of protection in Family and Criminal Court

Family Lawyer

If you are a victim of domestic violence, your rights in New York State are protected by law and you may apply to Court for Order of Protection. Domestic violence is a general term describing various crimes and offenses committed between the members of the same family or household, as this term is defined in the New York Family Court Act (“FCA”). This includes not only spouses or former spouses, parents, and children but also people who are involved in an intimate relationship, people who have a child in common, and even former boyfriends and girlfriends.
Sometimes, police refuse to make an arrest during a domestic violence investigation, however, they advise a victim to go to a Family Court and ask a Judge to issue an Order of Protection. In other cases, victims of domestic violence are unwilling to get the police involved, but they still need protection from the Court. In this case, any victim of domestic violence can petition the local Family Court for an Order of Protection against the abuser.
Once the petition is filed with the Court, the Petitioner will testify under oath before the Judge, regarding the allegations of the petition. If the Court is satisfied that the allegations warrant the initial issue of an Order of Protection, the Judge will issue Summons to appear in Court for the Respondent, as well as an Order of Protection and will adjourn the matter for the service of the process (Summons, Order of Protection, and Petition) upon the Respondent. Such an Order of Protection may be limited, allowing communications between the parties, but prohibiting further harassment or commission of new family offenses. Or, such Order of Protection may be full stay-away, prohibiting the Respondent to communicate with the protected petitioner in any shape or form. If the parties reside in the same home, such stay-away Order of Protection may specifically provide for the exclusion of the Respondent from the home, and direct police or sheriff to assist in such exclusion. Such exclusion may happen even if the Respondent owns or leases the very home he or she is excluded from.
The service of the Order of Protection and petition may be done by the Sheriff or may be done privately by the Petitioner. Any adult over 18 years of age, not a party to the case, can effectuate a service. Once the service is done, the person who conducted the service will execute an Affidavit of Service that must be presented to the Court at the next adjourned date (which is called “return of process”). There are professional Process service companies that can help to conduct the service.
Both Criminal Courts and Family Courts in the State of New York have concurrent jurisdiction over certain offenses designated as family offenses. The difference between proceedings in two courts is that in a Family court, you, the Petitioner is the party to the case, and you have control over the Court’s proceedings over the Respondent (the person who you allege committed family offenses against you). At any point, you may reach an agreement with the Respondent as to how to resolve the case, or you may simply withdraw your petition. If the police refuse to arrest a person you are complaining about, you may file a petition in Family Court. Family Court judge has the jurisdiction to issue an Order of Protection (stay-away or limited) that will have the same force and effect as the one issued by a Criminal Court Judge.
At the initial Court appearance, besides the submission of the proof of service, the Court will inquire from the parties whether they will represent themselves, whether they have retained attorneys or if they want the Court to appoint them a free lawyer if they qualify financially.
If the Petitioner at any point decides that he does not want an Order of Protection anymore, he can simply withdraw his petition, and all orders of protection will be vacated by operation of law, and the case will be dismissed. Also, if both parties agree to resolve the matter with voluntarily consenting to an Order of Protection, usually, without admission of any wrongdoing, they may do so, and the case will be finished with the Court’s issuing such Orders of Protection on consent. If the parties have children in common, the Judge may also allow for supervised or unsupervised visitations. If the supervised visitations are ordered, there should be a mutually acceptable third person present during the visitations with the children – usually a friend or a relative.
If the parties cannot agree on a disposition, such as voluntarily consenting to the Orders of Protection, the case will be adjourned for a fact-finding hearing. During that hearing before the Judge, the parties may present their witnesses and introduce other evidence. Usually, the parties themselves testify, but they may bring additional witnesses. All testimony and evidence should be material and relevant to the case. After listening to all testimony and considering all other evidence that was presented by the parties, the Judge will make his or her decision. The final possible outcomes of the Family offense petition usually will be a dismissal of the petition, or finding of the Court that the Family offense was committed. Such finding must be based on the fair preponderance of the evidence (please note, that it is a proof standard much lower than the standard of proof beyond the reasonable doubt that is used in the criminal case. If the Court finds that the family offense was committed, the Judge will issue an order of protection, limited or full stay-away for a period of one or two years in the majority of cases.
If you have questions regarding the Family Court Order of protection, please contact our office for a detailed consultation.
Sharifov & Associates, PLLC.  516-505-2300         718-368-2800