An order of protection is a court order prohibiting an allegedly dangerous defendant from engaging in certain specified conduct toward the accuser. A court will grant an order of protection in cases of domestic violence. However, the restrictions on the defendant will vary depending on the circumstances and type of order. If you are a victim of domestic violence, you should file a petition for an order of protection as provided under New York law.
How to Get an Order of Protection
You must file a petition for an order of protection in Family Court. Alternatively, you can call the police at the time of the incident, which means the case will go to Criminal Court.
If you don’t call the police and end up filing a petition with Family Court, you must do this as close in time as possible to the incident, since you must show that you fear additional harm will occur imminently. A delay in filing counteracts your argument that you are afraid. Equally important is to take care not to do anything that undermines your claims in your petition such as staying in the home with the domestic abuser after the incident that is the basis for your request for an Order of Protection.
Note that if you file in Criminal Court and are also in the process of divorcing or have a child custody matter pending, parts of your case may end up in different courts. For example, if you have a custody matter in Family Court, file for divorce in Supreme Court and obtain the order of protection in Criminal Court, you will likely be able to consolidate your cases in the Integrated Domestic Violence Part, as discussed in another post.
Information to Include in the Petition
There are three types of orders of protection – a “stay away,” “no contact,” and “refrain from.” In each case, you must provide a detailed account of the events giving rise to the domestic violence to support your petition. This includes the date and time of the actions, description of what occurred and any relevant past conduct.
Additional Requirements
To obtain a stay away or no contact order of protection, you must demonstrate that there is an immediate threat of physical harm. Only then can the court require the defendant to vacate the shared residence. The court will consider the allegations and weigh them against the strong remedy of forcing someone from their home. Courts recognize that a person may not have somewhere else to go. Further, many couples have fights that turn physical, especially in divorce and custody situations. A court may conclude that certain incidents by themselves may not constitute abuse or warrant a stay away or no contact order of protection. The court will decide based on all the circumstances.
If you are considering divorce, contact us to learn how we can help protect your rights and advocate for your best interests.