Orders of Protection

Violations of Orders of Protection

It is a crime to violate a temporary or final order of protection. If the subject of the order of protection does not obey the order, then you can call the police. The police will probably arrest the individual for violating the order of protection. The individual does not have to hit or touch you to violate the order. If the individual comes to your home and the order says he/she can’t, then you (as the subject of the order or even a third person) can call the police. You also have the right to file a violation of the order in Family Court. Filing a violation in Family Court usually will not result in arrest of the individual who has violated the order. You can choose to go to Family or criminal Court, or both.

Criminal Procedure Law Sections 530.12 and 530.13 authorize criminal courts to issue orders of protection when a criminal action is pending involving a complaint charging any crime or violation between family members, or for “good cause,” or upon a conviction in a case in which an order of protection had been issued.  Orders of protection are usually issued in cases involving allegations of harassment, domestic violence, sexual misconduct, and/or assault. These Orders of the Court direct the accused to abide by an order of protection in favor of the complaining witness or victim. Sometimes this can be used against the accused who, although charged, is not guilty of a crime. Criminal courts do not issue orders of protection of behalf of places or entities, only on behalf of individuals.

If you have been charged with violation of an order(s) of protection, it is important to have competent legal defense.  These violations are for contempt of court and a judge may see fit to put you in jail or assess a heavy fine. A knowledgable criminal defense attorney may be able to persuade the judge that there are mitigating circumstances, perhaps a misunderstanding, and/or issues with the allegations or witness who alleges you violated the Court’s Order.

What is An order of Protection?

(Adopted from: http://www.courts.state.ny.us/faq/orderofprotection.shtml)

An order of protection is issued by the court to limit the behavior of someone who harms or threatens to harm another person. It is used to address various types of safety issues, including, but not limited to situations involving domestic violence. Family Courts, criminal courts, and Supreme Courts can all issue orders of protection.

As discussed above, a court may issue orders of protection in cases where there has been harassment or domestic violence. The order may be against a current or former spouse, party a person has had a child with, family member or person with whom one has had an intimate relationship.  Acts for which orders of protection may be issued include stalking, assault, attempted assault, menacing, reckless endangerment and disorderly conduct.  The order may prohibit the other party from committing any of above crimes.  The order may also require the party to move out of the house and to stay away from any of the places the complainant frequents such as job, gym or school.  The judge may extend the order to include the children and require that any visitation be under supervision.

A Court will usually mandate either a full or limited order of protection. A full order of protection is a document ordering a defendant to have “no contact whatsoever” with the subject of the order including but not limited to physically staying away from the person, the person’s home, and the person’s school or place of business. The Order will also instruct the defendant to refrain from communicating with the subject of the Order via mail, telephone, email, or any other form of electronic communication (text messages, instagram, facebook, myspace, etc.). Full orders of protection also preclude a defendant from utilizing a third party (for instance, a child, friend or colleague) from contacting the subject of the Order.

Limited orders of protection instruct people to refrain from “assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, disorderly conduct, criminal mischief, intimidation, threats, or any other criminal offense” against the subject(s) of the Order of Protection. Of course, the Penal Law already protects everyone from these offenses; the limited order of protection simply makes the offender subject to an additional charge. It is important to note that violating this order is the equivalent to disobeying the Court’s instructions/rules.

If you are the person against whom an order of protection is sought, it is important to follow the rules of the Court.  Even if the subject of the order relents, tries to contact you and invites you back, you must get the order lifted before violating any of the terms the Court set down otherwise you may be subject to arrest and additional criminal charges. An order of protection may direct the offending person not to injure, threaten or harass you, your family, or any other person(s) listed in the order. It may include, but is not limited to, directing him/her to:

  • stay away from you and your children
  • move out of your home
  • follow custody orders
  • pay child support
  • not have a gun

 

Family Court Orders of Protection

(Adopted from: http://www.courts.state.ny.us/faq/orderofprotection.shtml#q1)

A Family Court order of protection is issued as part of a civil proceeding. Its purpose is to stop violence within a family, or within an intimate relationship, and provide protection for those individuals affected. All Family Court proceedings are confidential.

To obtain an order of protection in the Family Court, your relationship to the other person must fall into one of the following categories:

  • Current or former spouse
  • Someone with whom you have a child in common
  • A family member to whom you are related by blood or marriage
  • Someone with whom you have or have had an “intimate relationship.” An intimate relationship does not have to be a sexual relationship. A relationship may be considered         intimate depending on factors such as how often you see each other, or how long you         have known each other. After a petition is filed, the court will decide if it is an intimate        relationship.

To start a proceeding in Family Court, you need to file a form called a Family Offense petition. The person filing the petition is called the “petitioner,” and the person the petition is filed against is called the “respondent.” You can contact the Family Court in your county for help completing and filing the petition. You may also wish to speak with an attorney or domestic violence advocate before filing.

(Compare with a Criminal Court Order of Protection)

A criminal court order of protection is issued as a condition of a defendant’s release and/or bail in a criminal case. A criminal court order of protection may only be issued against a person who has been charged with a crime.

Criminal cases are prosecuted for the State of New York by the district attorney. Although the district attorney may start a criminal case before a person is arrested, a criminal case usually begins with a person’s arrest. The person charged with abuse is called a “defendant.” The victim of abuse is called the “complaining witness.” There does not need to be a relationship between the complaining witness and the defendant.

In a criminal case, the district attorney requests an order of protection for the victim or complaining witness. The judge decides whether to issue the order of protection and what terms and conditions will be included in the order.

A Supreme Court order of protection can be issued as part of an ongoing divorce proceeding. If you have an ongoing divorce case and would like to request an order of protection, you may do so by making a written request by Motion or Order to Show Cause; or you may make an oral request at a court appearance. If you are represented by an attorney, your attorney may make the written or oral request for you. The judge decides whether to issue the order of protection and what terms and conditions will be included in the order.

It is a crime to violate an order of protection.  A violation of an order of protection may support a charge of Criminal Contempt in the Second Degree, a class A misdemeanor under Penal Law Section 215.50(3). Violating an order of protection involving violence may make you liable for the felony charge of Criminal Contempt in the First Degree (Penal Law Section 215.51(b)). Repeat violators of orders of protection can also be subject to felony charges under Penal Law Section 215.51(c). A person that violates a temporary order of protection can be subject to a revocation of their bail or liberty.

I want to remove an Order of Protection against my….

You cannot unilaterally remove an order of protection. Indeed, the protected person cannot nullify or cancel the order of protection without the Court.  The order of protection is an order from the Court, ordered by a judge and carrying the full force of law. Only a judge has the right to remove it or allow for exceptions to the previous Order.  If the protected person calls the defendant and asks the defendant to meet-up, the defendant has to expect that if s/he accepts the offer and it is reported (in some fashion or form), the defendant will likely be convicted of criminal contempt.

An Order of the Court must be carefully followed. There are no exceptions other than those the Court sets down. It does not matter who did what first and emotions will not mitigate a violation. A third party can observe and report conduct that violates an order. This third person may be a child a couple shared or it may be a family member but it could be a complete stranger reporting the violation. Once reported, usually, the police will act and arrest.