HOW CAN I OBTAIN AN ORDER OF PROTECTION AGAINST THE ABUSER?
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If you or your children's physical or emotional safety is at risk, you should seek the advice of an attorney or the help of the Court immediately. Take immediate steps to remove yourself and your children from harm’s way. The Family Courts in each county in New York State are specially equipped to handle Order of Protection applications quickly and usually (if an immediate temporary relief is necessary) on the day that the application is received. The Summons, Petition and a Temporary Order of protection must be served on the Respondent. This can be arranged through a local police precinct, privately or with the professional process servers. The Family Court may order Sheriff Department to serve the papers on the Respondent. The case will be adjourned and the Respondent will be summoned to Family court to answer the Family offense petition. Upon consent or fact-finding hearing, the Judge may issue a permanent order of protection, limited or full stay-away for up to two years.
Sometimes, police refuses 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. Both Criminal Courts and Family Courts in the State of New York have a 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 a 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 resolve the case, or you may simply withdraw your petition. If police refuses 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. During the past several months, due to Covid-19 pandemic, Family Court works mostly in the virtual regime, with Court appearances by Skype or Microsoft Teams Meeting software, and petition submission by email or Electronic Data Delivery System (“EDDS”).
Disposition of a Family offense petition, lacking an agreement between 2 parties, will be made by a Family Court Judge upon a fact-finding hearing. New York Family Court has a jurisdiction over other types of petitions, besides a family offense petition, for example, it can adjudicate Custody and Visitations, Child Support, Child Abuse or Neglect, Paternity, etc.
Sometimes, following an arrest and arraignment at the Criminal court, there is also a Family offense petition filed in a Family Court, requiring a client to attend both courts for the duration of their respective matters. If children are present in the household, Criminal Court often times issues an Order of Protection covering the children as well, and making it subject to a Family Court order. In such a case, a Defendant, who wishes to maintain the relationship with his or her children must go to a Family Court and file Visitations petition, asking the Judge to set the visitations schedule with the children. Dependent on the circumstances of the underlying matter that caused the issuance of the initial order of protection, Judge may grant limited visitations, visitations supervised by the relatives or even an agency-supervised visitations.