LEGAL GUIDE
Written by attorney Thomas Arthur Kenniff | Jan 27, 2011

Understanding Orders of Protection in New York

New York recognizes both “temporary" and “permanent" orders of protection. A temporary order of protection refers to an order that remains in place while a case is still pending i.e., before a defendant has went to trial and been either acquitted or convicted, or has pled guilty as part of a bargained for plea. Temporary orders of protection are often issued by courts at arraignment, usually in favor of a crime victim, their family members, or a witness in a case. These orders may remain in effect, or be extended, for the lenght of a case.

Permanent orders of protection have the same intent and purpose as temporary orders, the significant difference being that permanent orders of protection can only be issued at the time of sentencing after a defendant has been found guilty of an offense.

Judges have a great deal of discretion over the restrictions contained in the orders of protection they issue. However, the most significant distinction is whether or not an order of protection contains a stay away provision. “Stay away" orders require a defendant to avoid any contact with a protected person, including not only physical contact but also, communications by telephone, mail, email or any other means. A stay away order often has particular impact on a defendant who shares a residence with the protected person, as the provisions of such an order will typically require the defendant to vacate the shared residence for as long as the order remains in effect and regardless of whether the defendant has an ownership interest in the residence.

Less restrictive orders of protection contain only “refrain from" provisions which generally mean that a defendant can have contact with a protected person, so long as that contact is benign and not for the purpose of threatening or committing any criminal acts against the protected person.

Additional provisions that are often included in both stay away and refrain from orders of protection may forbid a defendant from possessing firearms while an order of protection remains in effect and require a defendant to surrender any firearms in his possession.

In addition to the use of orders of protection in the criminal court system, the orders are frequently used in the Family Court System. New York State Family Courts and Criminal Courts have concurrent jurisdiction over family offense proceedings. Concurrent jurisdiction means the courts share authority over the cases. In this situation, the courts have concurrent jurisdiction because of the nature of the issues—family offenses.

A family offense is a criminal act committed between members of a family or similar relationship. It includes people related by blood or marriage, people with children in common, as well those who either reside together or have been in an “intimate relationship." The law includes disorderly conduct, harassment, menacing, reckless endangerment, assault, and stalking. These actions constitute a family offense. Proposed legislation may add various sexual offenses to the included conduct.

The concurrent jurisdiction between the family courts and criminal courts allows for civil and/or criminal ramifications when an order of protection is violated. The individual filing for an order of protection has the choice whether to file in family court, criminal court, or both. A violation of such an order may lead to a criminal contempt charge. In addition, the underlying offense (assault, harassment, etc.) may be upgraded to the higher degree. This may have serious consequences in terms of penalties.

Orders of protection are often times issued at an ex parte hearing. An ex parte hearing is one conducted at the request of only one party, attended by only one party, and without any input from the other party.

When an order of protection is issued by such method, the defendant (or “respondent" if in a family court case) can demand a prompt hearing to determine whether the order is valid.

Though an issuance of an order of protection is “not a finding of wrongdoing," there may be serious consequences involved in such an order, including displacement from ones home and family. Because orders of protection often forbid the possession of firearms and firearm licenses, they can result in the loss or suspension from employment for individuals required to possess firearms as part of their employment.

Most significantly an order of protection can form the basis of subsequent criminal charges, which are often more serious than the underlying offense that warranted the issuance of the order of protection in the first place. While orders of protection can serve a useful purpose, they are sometimes abused by vindictive complainants seeking to gain leverage in collateral proceedings such as divorce or matrimonial cases.

Just because a judge may have issued an order of protection without your knowledge or input, does not mean you are not entitled to your day in court.

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