My case started back in October, when my wife and the stepmother of my children abused my kids and then claimed herself the victim in the incident and blamed everything on me. I have 3 children, 2 daughters that currently live with me and a 1 year old son that lives with my wife. There is a order of protection for my wife against me, she also has my son with her and is living elsewhere. My eldest daughter, who is 18 years old, has a order of protection against her stepmother. I want to get the order of protection of my wife and son against me modified or removed. There are 2 cases in family and criminal court. How can I get all of the order of protections against me modified or removed? My wife and me want to get back together as a family, what do I need to do in order for all the order of protections against me removed? What type of hearing needs to be held in order for this to happen?
In Criminal Court the Judge has to agree but that likely won't happen unless the DA agrees. In Family Court you are entitled to an evidentiary hearing.
I am a former federal and State prosecutor and have been handling criminal defense and personal injury cases for over 19 years. The above answer, and any follow up comments or emails, is for informational purposes only and not meant as legal advice.
I presume the order of protection was issued in the context of a family offense proceed under Article 8 of the NYS Family Court Act. FCA 8844 states that: "For good cause shown, the family court may after hearing reconsider and modify any order issued under paragraphs (b), (c) and (d) of section eight hundred forty-one."
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Only the issuing judge can modify the criminal court order, which they won't unless the DA consents. It will be dismissed if the charges are dismissed or you are acquitted at trial. You are entitled to a hearing in criminal court.
Tread carefully. You are not permitted to have any contact with even if she consents. Be careful of making statements as to what her wishes are now, when you are banned from communicating with her. You will end up with new Contempt of court charges.
I am a former Brooklyn Criminal Court Deputy Bureau Chief with 20 years experience specializing in handling criminal cases. All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. Also, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication.
all the answers are good ones. as a practical matter most judges will leave such orders in place until the end of the case before them and let the parties resolve them if it is a family court matter. How the District Attorney will react if the case in is IDV Court varies a lot. During the proceeding many judges like to keep these Orders in effect until the air is cleared and the matter settled. It is for safety purposes and actually ensure that you do not have to deal with more charges yet. You really need to strategise with your attorney. .
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