ORDERS OF PROTECTION
An Order of Protection is a court order which is issued in order to help prevent abuse, harassment, violence or stalking from continuing to occur. The victim in this case would seek an Order of Protection as a way of preventing the accused (a current or former spouse, partner or family member) from further acts of violence, threats or abuse.
If you are seeking to obtain an Order of Protection, an attorney will be invaluable in helping you. It can be confusing and complex to try to obtain an Order of Protection, and an attorney can help you by requesting the Order and representing you at a hearing to prove the necessity of this for your protection.
At Brian D. Perskin & Associates P.C., we are experienced in helping clients throughout New York who need assistance with an Order of Protection. We understand how important these orders are and that they are vital in order to help the victims of abuse, stalking and domestic violence.
We have over forty years of combined legal experience in helping families with divorce and family law issues, and we take on cases throughout Brooklyn, Bronx, Queens, New York and Manhattan. By consulting a New York divorce & family law attorney at our firm, you will get the honest and valid advice of a professional who actually cares about the outcome of your situation.
WHO CAN FILE FOR AN ORDER OF PROTECTION IN NEW YORK?
There are four basic requirements if you are hoping to file for an Order of Protection in a New York family court. If any of the following criteria apply to you, you may be able to file:
According to the New York Courts,
1) you are related to the respondent by blood or marriage; 2) you are or were legally married to the respondent; 3) you have a child with the respondent; or 4) you are or were in an intimate relationship with the respondent.
The last possible criteria involving an “intimate relationship” may seem subjective, but the courts will typically evaluate whether there was or wasn’t an intimate relationship based upon factors that can include: the type and nature of the relationship, the relationship regardless of whether it was sexual in nature, how frequent there were interactions between these people and the total length of the relationship as well. If you disagree with the court’s decision as to whether or not the relationship was “intimate” then you should speak with an attorney about your options. Casual relationships and minor acquaintances will not be considered for Orders of Protection.
WHAT CAN I ASK FOR IN MY PETITION?
According to the 5th Judicial District of the New York State Courts, there are seven factors commonly included as requests in the Orders of Protection petition. Your Order of Protection, if approved, could establish the following:
- Stay Away: This is the most common request of a protective order. Basically, it requires the respondent to stay away from the petitioner and the petitioner’s family. The “stay away” component of the order can apply to the petitioner’s place of work, their home, children’s school, etc.
- Refrain From: The order can require a respondent to refrain from certain actions. These are typically requested in response to the reason the order was originally filed. For example, if the order was filed because the respondent was verbally threatening, the petitioner can request that the verbal threatening stops.
- Collect Belongings: If you believe that the respondent is going to be at your residence and you do not wish to return home, then you can request that law enforcement return with you to your home to collect your belongings at an established date and time.
- Exclusion: This type of request, if permitted, will require that the respondent be “excluded” from the home if they currently reside with the petitioner. This is usually granted only in cases where the respondent presents a clear and present danger to the petitioner and their family.
- Temporary Child Support and Custody: While the petition is being reviewed, a petition can set up a temporary agreement for child support and child custody agreements until an order can be made final.
- Firearms: The court can restrict a respondent from their ability to use or carry a firearm. The court can do so by confiscating firearms or suspending a license.
- Five Year Order: The final thing that an individual can request in their order would be something called a “five year order.” Most commonly, protective orders last for two years. In some more severe cases (the court will determine based on aggravating circumstances), a five year order can be granted.
REFRAIN-FROM AND STAY-AWAY ORDERS OF PROTECTION IN NEW YORK
In New York, an Order of Protection will typically include one or both separate orders:
- Refrain-From Order: This Order prohibits the accused from engaging in certain behavior, such as threats, assault, harassment or violence toward the victim.
- Stay-Away Order: This Order prohibits the accused from coming within a certain distance of the victim as well as the victim’s residence and place of work. This may include provisions regarding staying away from children that the victim and the accused share.
TEMPORARY VS. FINAL ORDER OF PROTECTION
There are two main phases to the protective order process. Upon initial request for the order, a temporary order can be required. If the order is approved, then it will become final.
According to the New York Courts,
A temporary order of protection is issued on the day you file for an order of protection before the respondent is served with the papers. It only lasts until the next time that you are in court. The court usually will extend the temporary order at each court date until the case is over. If a final order of protection is issued, this occurs at the end of the case after the Judge finds that a family offense was committed or the respondent agrees. A final order lasts for two or five years.
The New York Courts also state that a final order of protection can require an additional three things. Those include:
- Restitution: If the respondent damaged any of your property (e.g. car, windows, furniture), the court can order the respondent to pay damages (“restitution”) up to $10,000. You will have to prove the value of what was damaged.
- Medical expenses: The court can order the respondent to pay for any medical expenses arising from the abuse.
- Participation in a Program: The court can order the respondent to participate in services, such as a batterer’s education program, or make referrals for drug or alcohol counseling.
NEED ASSISTANCE IN NEW YORK?
A lawyer at Brian D. Perskin & Associates P.C. will have the experience and knowledge necessary to help you with your Order of Protection. Additionally, our commitment to our clients means that we will fight to the end, doing whatever we can to assist you with your legal situation in a way that is best for you and for your family.
Interested in seeking or contesting an Order of Protection? Contact a New York family law attorney at Brian D. Perskin & Associates P.C. today!
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