Restraining Orders - What Are They and How Do I Get One?
Getting an Order of Protection in New York
If you have suffered from a family offense in New York, you are entitled to file a petition requesting an order of protection in Family Court pursuant to Article 8 of the NY Family Court Act (the “FCA”). Orders of protection often require offenders to vacate and remain away from the victim’s home, even if the parties have previously resided together. Article 8 proceedings can - and sometimes do – proceed simultaneously with Criminal Court proceedings. The main difference is that a Family Court domestic violence proceeding is intended to secure practical relief for the victim – such as a stay-away order – whereas a criminal proceeding is intended to punish the abuser.
If you need protection from an abusive family member, spouse or someone with whom you are in an intimate relationship, you will benefit from the assistance of an attorney in obtaining an order of protection against the abuser. The Family Court has specific procedures that are intended to provide victims of family offenses with practical help - particularly orders that protect them against further threats, harassment, verbal abuse and/or other acts of domestic violence. Typically, temporary orders of protection are entered the same day that the victim initially appears in court. Thereafter, hearing dates are scheduled to determine whether a final of protection will be issued.
Under Section 842 of the FCA, if a petitioner establishes by “a fair preponderance of the evidence” that a family offense was committed, a judge may enter a final order of protection with a duration of up to 2 two years. To obtain an order that lasts longer than two years, you must establish one of the statutory “aggravating circumstances”, which include: (1) any situation where the victim has suffered physical injury; (2) use of a “dangerous instrument” (such as a gun, knife, etc.); (3) a history of repeated violations of prior orders of protection; (4) respondent’s prior convictions for crimes against the victim; or (5) behaviors that present “an immediate and ongoing danger” to the victim or any member of the victim’s family or household.
Since 1995, the attorneys at Rapaport Law Firm have helped clients in New York in matters involving petitions for Orders of Protection. We understand how important these orders are and that they are vital in order to help the victims of abuse, stalking and domestic violence. We understand how essential it is that victims get protective orders that have the longest duration possible under the law.
What Relief You Can Request In Your Petition?
You should speak with an experienced New York domestic relations attorney about the types of relief that are most appropriate based on the circumstances of your case. Typically, the most important relief is an order directing that the respondent stay away from you and members of your family. You can ask that the respondent be directed to stay away from your home, place of work, school, and members of your household. The bottom line: the court must grant relief that is “reasonably necessary to provide meaningful protection to the petitioner and to eradicate the root of the family disturbance.” (Merola v. Merola, 536 NYS2d 842).
Who Can Request an Order of Protection in Family Court?
You can request an order of protection against someone in Family Court if you meet one of the relationship criteria set forth in Section 812 of the FCA:
- you are related to the respondent by blood or marriage;
- you are or were legally married to the respondent;
- you have a child with the respondent; or
- you are or were in an intimate relationship with the respondent.