After being issued a temporary order of protection, you will need to return to court in order to obtain a final order of protection. On this date, a hearing will be held and the Judge will determine whether or not to issue a final order based on whether a family offense has occurred.
If the respondent does not come to court, the judge will make sure that he or she was properly served. If they were, you will be asked to explain the incidents that you allege in the Family Offense Petition. If the respondent does come to court, either he or she can agree to the order of protection, or they can disagree. If they don’t agree to it, the case will go to trial. During the trial, you will each have the opportunity to tell your story and present evidence to the Judge to support your case.
In New York State, domestic violence is defined by the New York Family Court Act 812 (1) as “assault, attempted assault by a respondent to his/her current or former spouse, parent, child or other member of the same family or household or engaged in disorderly conduct, harassment, stalking, menacing, or reckless endangerment toward any such person.”
The evidentiary standard is unspecified, but prior cases suggest that allegations need to be supported by a preponderance of evidence in order to have an order of protection approved. For instance, Machukas v. Wagner (1989) states: “In order to warrant issuance of protective order under CLS Family Ct. Act Art. 8, allegations must be supported by fair preponderance of Evidence.”
Recent cases have shown that New York courts have upheld high standards for evidence in family offense proceedings. Holman v. Beaulieu (Nov. 28, 2012), for example, upheld that a family offense must be established by a “fair preponderance of evidence.” The mother’s petition for sole custody of her child was denied because evidence at the hearing consisted of inconsistent out-of-court statements by the child and failed to satisfy the burden of proof.
If you need help determining what evidence is needed to obtain an order of protection, or if you are facing false allegations of abuse and need assistance opposing a protection order, an attorney from Brian D. Perskin & Associates P.C. can help you today.