Domestic Violence and the Process of Getting an Order of Protection
- POSTED: August 08, 2018
- Family Law
Domestic Violence and the Process of Getting an Order of Protection
by: Michelle McCabe-Szczepanski, Esq.
Domestic violence plagues many homes throughout our community. In Broome County, law enforcement responds to 550-600 domestic incidents each month. Domestic violence is more than physical abuse. Verbal abuse, emotional abuse, psychological abuse, sexual abuse, threats of future abuse, harassment, and stalking, are all forms of domestic violence. The best way to get yourself out of an abusive relationship is with knowledge. Knowing how to get an order of protection for you and your family is one of the best steps you can take to stop domestic violence. This article will discuss how to obtain an order of protection and what can be expected throughout the process.
What is an order of protection?
An order of protection is a court ordered document that can help protect you from domestic violence. There are several things a court can do with an order of protection. First, the judge can order the abuser to stop abusing, harassing, or threatening you, your children, and your pets. Second, the judge can order the abuser to stay away from you and your family, your home, and your place of work. Third, the judge can order the abuser to have no contact with you; this includes phone calls, text messages, social media contact, letters, contacting you through other people, etc. Finally, the judge can order the abuser to surrender any and all firearms and pistol permits, and can prohibit the abuser from purchasing firearms. Once an order of protection is in place, only the judge can change it.
Where can you file a petition for an order of protection?
A petition for an order of protection can be filed in Family Court, criminal court, or Supreme Court. To obtain an order of protection in Family Court, you have to be legally married to the abuser or divorced from the abuser, related to the abuser by blood or have a child(ren) with the abuser, or be in or have been in an intimate relationship (sexual or non-sexual) with the abuser. A Family Court order of protection can be issued for up to five years. In criminal court, you can file for an order of protection if the abuser has been arrested for a crime, even if you are not a member of his/her family or household. In criminal court, you can request an order of protection or the police or an assistant district attorney may do so. Depending on the circumstances, a permanent criminal order of protection can be issued for two to eight years. Finally, in Supreme Court, if you or your attorney request an order of protection before a divorce, separation, or annulment proceeding has settled, the court may issue one. In Supreme Court, when an order of protection is part of a divorce, it is permanent and will not expire. While all of these courts can issue orders of protection, Family Court is the best option if you need protection right away.
How do you file a petition for an order of protection in Family Court?
A petition for an order of protection in Family Court is called a Family Offense Petition. In Broome County, you have to fill out both the petition and a General Intake Form. You can either go to Family Court or retrieve the forms from the website at, https://www.nycourts.gov/courts/6jd/broome/family/forms.shtml. Before picking up or filling out a Family Offense Petition, it is important to talk to an attorney who can help you through this process and represent you in court. You can also ask to speak with a domestic violence advocate when you get to Family Court. Advocates can answer questions, explain how things work and what to expect, and can even go to court with you so you do not have to go alone. However, advocates cannot speak on your behalf in court, only an attorney can do that.
What should your petition say?
If you have an attorney or a domestic violence advocate, he/she can help you fill out the petition. If no one is helping you, be as detailed as possible. On the petition you are the petitioner and the abuser is the respondent. The forms will ask about you and respondent and why you need an order of protection. Be sure to tell the court if you would like your address to be kept a secret. The petition will provide you with a list of offenses and ask which of them the respondent committed against you, your child(ren), or you and your child(ren). If you do not know what the listed offenses are, ask an attorney, the domestic violence advocate, or the court clerk. The petition will then ask you to describe the incident(s). In your description include any and all injuries (including bruises and cuts), the date, time, and place of the incident(s), and whether the respondent used or threatened to use a weapon. The petition will next ask if you have filed a criminal complaint. If you have, include that information as well. Next, the petition will ask if the respondent has acted in a dangerous or threatening manner in the past. If he/she has, include all of the details you can remember from the past incident(s). Additionally, the petition will ask whether the respondent has violated a current order of protection. The petition will also ask whether the respondent owns a gun or has access to a gun, has a gun license or pistol permit, whether he/she has a gun license or pistol permit pending, and whether he/she carries a weapon for his/her job. If the respondent threatened to hurt you or your family in the future, be sure to explain that threat in the petition as well. Next, the petition will ask if there are any pending court cases between you and the respondent, and whether the respondent has any criminal convictions. You will also be asked to list all the children that reside with you and whether and how they were negatively impacted by the respondent’s family offense(s). Additionally, the petition will ask you to list the pets you have in your home and whether the respondent injured or threatened to injure your pets. You will also be asked whether you have made a previous application to the court for the relief you are requesting in the current petition. Finally, you will be asked to select from a list the relief you are seeking. If you do not know what the relief options are, ask an attorney, the domestic violence advocate, or the court clerk. Once you have completed the forms bring them to Family Court to be filed. The court clerk will advise on anything further.
What will the court do?
Once you have filed the petition, the judge will likely want to speak with you to determine whether or not to issue a temporary (or emergency) order of protection. The respondent will be contacted and invited to court on the emergency family offense hearing. If the judge gives you a temporary order, it will likely last until the next court date. If your court date gets delayed and your order of protection is about to expire, make sure you ask your attorney or the court for an extension until you are able to go to court. Be sure to tell the judge if you want the respondent removed from the home.
How are the papers served?
Before the temporary order of protection becomes effective, respondent must be personally served (given or handed) with the papers. The police, a friend or family member, age 18 or older, or a process server can serve the papers, but you may never do so yourself. The papers for an order of protection must be served at least 24 hours before the court date. Whoever serves the respondent should complete an Affidavit of Service and have it notarized. If the police serve the respondent they should give you a statement of service.
What happens when you come back to court on the next court date?
If the respondent comes to court, he/she can agree or consent to the Final Order of Protection. An order on consent has the same effect and will provide the same protection as an order of protection after a fact finding hearing (trial). If the respondent does not agree to the order of protection your case will go to trial. A trial may take several court dates before it is resolved, so make sure that the temporary order of protection is being extended until a final decision is made. If the respondent does not come to court you will be asked to show the judge that the respondent was properly served. If the court finds that the respondent was properly served it may adjourn to give the respondent additional time or to allow you to return with witnesses. The court may also decide to have a hearing to determine if a family offense has occurred. If the court finds there was a family offense it will issue a Final Order of Protection. The court can send the order to the respondent or the police may serve the final order. It is important that the respondent know there is a Final Order of Protection and what it says.
What if the respondent violates the order of protection?
If the respondent violates the order of protection, call 911 and present the order to the police. The respondent does not have to hit you or your family to violate the order. If the respondent comes to your home and the order says stay away, you can and should call the police. If the respondent sends you threatening text messages, or simply continues to message you when the order says no contact, you can and should call the police. Additionally, if the respondent violates the order of protection you can file a violation of the order in Family Court. You can choose to call the police, file a violation, or do both.
If you need help getting away from the respondent, in Broome County contact the Crime Victims 24-hour hotline at 607-722-4256, Rise-NY 24-hour hotline at 607-754-4340, and/or the YWCA at 607-722-034; in Tioga County contact A New Hope 24-hour hotline at 607-687-6866; and/or call the New York State Domestic Violence and Sexual Violence 24-hour hotline at 1-800-942-6906 (English) or 1-800-942-6908 (Spanish).
You do not have to go through this alone. The family law attorneys at Levene Gouldin & Thompson can help you prepare your petition and offer you guidance and assistance in this trying time.