Orders of Protection in new York

In New York State a person actually has two ways to obtain an order of protection: through the Criminal Court system, or through the Family Court system.  There are specific circumstances that allow a person to obtain an order of protection in either court.  But sometimes, circumstances fit with both courts.  As a result a person can, potentially, seek and obtain an order of protection from both a criminal court and the Family Court for the same incident.

An order of protection is just what it sounds like.  It is a written order from a court that says one person is protected from another person.  In New York there are two kinds of protection orders.  The “stay away” order says the subject of the protection order must not have any contact at all with the listed victim or victims.  A “no harass” order says that the subject of the order and the victim can have contact, can be around each other and even live together, but the subject of the order can not harass, annoy, or commit any criminal offense against the victim.

Any person who is the victim of a crime in New York State can obtain an order of protection through a criminal court.  Victims of burglary, assault, rape, harassment, and other offenses are provided orders of protection that stay in effect while their case is proceeding through the court system, to provide protection for that victim from further injury by the accused.  If the accused is found guilty at the end of the case then the order of protection can be continued.  If the accused is found not guilty of the charges, the order of protection ends. 

So, in the Criminal Court system in New York, an order of protection is issued only once an arrest is made.  A person can’t just walk into a criminal court and request an order of protection against someone who they feel has done them wrong.  Not without first having the police make formal charges against that person.

In contrast, Family Courts in New York require no arrest for an order of protection to be issued.  The petitioner wanting the order of protection must be able to say what was done to them is one of the offenses specified by New York State’s Family Court Act, but an accusation of that offense is all that is needed for a temporary order of protection to be issued from Family Court.  For the order of protection to be continued past the Family Court proceeding, the accusations must be proven true in some part. 

In recent years New York State expanded the definition of who has access to Family Court services with the Expanded Family Court Access Bill.  Historically the only matters that could be brought before Family Court were ones involving married persons or those persons related by blood.  The Family Court now allows persons who are non-married, non-parent victims of domestic violence to file petitions with Family Court, regardless of whether they are currently, formerly or have at any point lived together or engaged in sexual relations.  The obvious example of this is a senior in high school whose boyfriend hits her.  Previously, the only place this victim could seek an order of protection was through a criminal court.  Now, she can bring petition in Family Court and have an order of protection issued to her there, even though she has never lived with or had sexual relations with her boyfriend.  This measure also allows access to Family Court previously denied to gay and lesbian couples.

In both circumstances, the victim’s family members along with their place of employment and school may be included in the order of protection at the request of the victim, the police, or an attorney.  Some orders of protection in New York are now even including a victim’s pets.

Nothing prohibits a victim from seeking an order of protection in both criminal and Family Court at the same time in New York.  If the offense alleged is one of domestic violence an arrest can be made by the police, sending the matter to a criminal court which will issue an order of protection for the victim.  The victim, or the victim’s attorney, can then also go to Family Court for the same offense, and the Family Court can issue an order of protection also.  The Family Court order of protection has broader scope than a criminal court order of protection, such as with matters involving child custody, child visitation, and so forth.  The stipulations on an order from the Family Court will supersede those of a local criminal court, because the Family Court is a superior court to local criminal courts.

New York State now has an Integrated Domestic Violence Court system.  This came about as a means to consolidate into one court those cases that were proceeding through both court systems.  It is an effort to simplify court cases for both the courts and the victim.  Now, victims of domestic violence who have a criminal case pending against their abuser, and who have also filed one or more petitions against that abuser in Family Court, can have their case handled in one place instead of in separate courts, and a single order of protection will be issued from that one court.  This is very beneficial to victims who otherwise would spend a lot of time and money, travelling between two courts and possibly paying two separate attorneys.  Anything that keeps the victim from being victimized again is a welcome improvement.