Insights about Orders of Protection/Restraining Order
The penalties for violating an Order of Protection could be quite severe, so it’s important that you’re completely informed on the intricacies of Orders of Protection in New York.
What is an Order of Protection?An Order of Protection is a legal document that a Judge issues ordering that someone follow specific rules pertaining to their behavior and things they can and cannot do. Initially, a Temporary Order of Protection may be issued to maintain peace and insure protection of the complaining witness (the victim) prior to all facts being brought to light and the case brought to Court. This Order does not necessarily mean that you've been found guilty of anything at all. Orders of Protection are granted by either a family court or a criminal court. They are granted in cases like domestic violence, assault, harassment, stalking, reckless endangerment, or menacing. Orders of Protection issued by family court are in cases where the parties are or have been in intimate relationships or are related by marriage or blood. The ones issued by criminal court, on the other hand, could be for cases where the parties are known to one another and also for cases where they are strangers to one another. After a Judge has heard the case and determines that an offense has been committed, a final Order of Protection will be ordered. Every order will expire after a certain amount of time (In New York usually it will last for one year and in certain circumstances for 5 years), but that does not mean that they cannot be extended or renewed under certain circumstances.
What Should I Do if I've Been Issued an Order of Protection?Follow it to the very best of your ability. As long as you were present when it was issued or you have been served with the Order, it will be enforced. If it says you must stay away from a person, stay away from them--even if they're enticing you to be near them or you have a strong reason to contact them, do not do it. Some of the examples of restrictions set in an Order of Protection are stay away from the complaining witness, move out of the shared home with the complaining witness, surrender firearm, and refrain from contacting the complaining witness or visiting the complaining witness' place of employment or home.
What Happens if I Break an Order of Protection?Whether the Order of Protection is issued by a family court or a criminal court, it is a court order. If you fail to follow the Judge's conditions set in the order, you are in Contempt of Court. Police can make immediate arrests if they have reason to believe you have violated your Order. On certain occasions they might give you a chance to surrender on your own to the police station. Violating an Order of Protection is a crime of its own and you can separately be prosecuted for that violation and face fines and/or jail time. Such violations are not taken lightly, so taking care to follow your Orders to the best of your ability is imperative. It's important to note that Orders of Protection can extend beyond borders and boundaries, so even if you or the victim move away, it is still possible for the Order to still be enforced. If you find yourself in a situation where you have possibly violated an Order of Protection call our offices as soon as possible to speak with a criminal defense attorney who could best explain the consequences to you and represent you in defending your rights.
How Do I Have an Order of Protection Vacated?The complaining witness has no power to remove the order or to give you permission to engage in behavior that is restricted under the Order of Protection. The only person with authority to vacate the Order of Protection or make changes to the restrictions set in the Order is the judge. If a complaining witness no longer wants an order of protection against you, his or her recourse is to speak with the District Attorney on the case and/or speak with your attorney (in a criminal case), or his or her own attorney (in a family case). Your attorney could raise the issue before the judge and make the court aware of the need for vacating the Order or the need for making changes to it. While the ultimate decision resides with the judge, vacating an Order of Protection while a case is pending before the court is very unlikely. However, making changes to it in extreme circumstances is more likely.