If you are a victim of domestic violence, an order of protection is an important tool to protect you from further harm. However, all orders of protection aren’t the same. Different types impose varying levels of restrictions on a defendant/respondent. Here are a few basics that can help you understand how the law works.
Types of Orders of Protection
Depending on the facts and circumstances of your case, you may be able to get one of three types of orders of protection. These are known as “stay away,” “no contact” and “refrain from” (also known as “usual terms”) orders of protection.
Stay Away
A stay away order of protection is used in clear-cut cases of abuse with physical violence, such as where a victim is hit, strangled, or chased with a weapon or there have been attempts or threats to do so. Absent mitigating circumstances, the defendant is removed from the home and is prohibited from getting within 100 feet of the victim.
Mitigating circumstances can include the victim continuing to live with the defendant/respondent without calling the police or taking other precautions that would be consistent with preventing what he or she alleges to have happened. For example, your spouse hits you and you don’t call the police nor do you immediately file for an order of protection with Family Court and, instead, continue to live with the defendant/respondent as though nothing happened for several days before going to Family Court.
No Contact
Where a victim alleges multiple instances of threats, abuse and/or harassment, the court may grant a no contact order of protection that prohibits the defendant/respondent from contacting or using a third party to contact the victim. This is often done in addition to the stay-away order.
Note that the defendant may still contact his or her children. However, if children were present during the violent acts, then the order of protection will likely extend to the children, even if the children were not threatened or harmed. The rationale is that the defendant disregarded the safety of the children and put them at risk of harm by being violent in front of them.
There may be a carve-out in the order with respect to contacting the victim to allow written communications regarding parenting time. Depending upon the children’s age, a third party may also be used when handing over children for visitation to avoid violating the order of protection.
Refrain From
A refrain from order of protection prohibits a defendant from engaging in behavior that could result in a stay-away or no-contact order if violated. This is used where the allegations are not of a tenor that requires removal from the home, such as if there was an isolated incident of abuse that wasn’t serious or past instances of disorderly conduct or reckless endangerment toward the victim.
Steps to Take If You’re in Danger
If you are assaulted by a person living with you, don’t waste time going to Family Court for an order of protection. Call the police right away, either in the moment or immediately after, so the police can see any injuries and the urgency of the matter. This will help you get an order of protection, albeit with Criminal Court.
If you didn’t contact the police, then file a petition requesting an order of protection in Family Court. You should do this as close in time to the incident as possible because you have to show that you fear additional harm will occur imminently. Delaying filing makes it less likely that you’ll get a stay-away or no contact order of protection, since it’s harder to argue you’re in imminent danger.
You should also consult with an attorney as soon as possible.
Allegations of violence, threats and harassment are serious matters. If you’re considering divorce, you should let your attorney know about any history of domestic violence. During the divorce, emotions can run high and make matters worse. Good legal advice is essential.
Contact us for a consultation to learn how we can help you.