There are two types of family court protection orders: (1) temporary ex parte orders; and (2) final orders of protection. When a victim applies for an order of protection, a judge may issue a temporary order of protection if he or she believes there is “good cause” to do so.1 A temporary order usually lasts until a victim can have a full court hearing, which may not happen for many court dates. If the hearing does not occur on the first date a victim returns to court, the judge may extend the order of protection from court date to court date.2 On the date of the hearing, the abuser will have an opportunity to attend the full court hearing and present his or her side. The judge then evaluates the evidence and decides whether to issue a final order of protection.3 A judge usually grants an order for up to two years, unless he or she determines the existence of one or more “aggravating circumstances,” which could cause the order to last for up to five years. Such circumstances include: (1) physical injury or serious injury; (2) the use of a dangerous instrument; (3) history of repeated violations of prior orders of protection by the abuser; (4) prior convictions for crimes against the victim by the abuser; (5) the exposure of any family or household member to physical injury by the abuser; and (6) prior incidents and behaviors of the abuser that make the judge believe the abuser is an immediate/ongoing danger to the victim and any members of his or her family/household.4
b. Text of Statute - N.Y. Court Family Court Act (“N.Y. F.C.A.”) § 812 - Procedures for family offense proceedings.
1) Jurisdiction. The family court and criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child, or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant’s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. For purposes of this article, “disorderly conduct” includes disorderly conduct not in a public place. For purposes of this article, “members of the same family or household” shall mean the following:
(1) persons related by consanguinity or affinity;
(2) persons legally married to one another;
(3) persons formerly married to one another regardless of whether they still reside in the same household;
(4) persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and
(5) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute and “intimate relationship.”
2) Information to petitioner or complainant. The chief administrator of the courts shall designate the appropriate persons, including, but not limited to district attorneys, criminal and family court clerks, corporation counsels, county attorneys, victims assistance unit staff, probation officers, warrant officers, sheriffs, police officers or any other law enforcement officials, to inform any petitioner or complainant bringing a proceeding under this article, before such proceeding is commenced, of the procedures available for the institution of family offense proceedings, including but not limited to the following:
(1) That there is concurrent jurisdiction with respect to family offenses in both family court and the criminal courts;
(2) That a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection. Referrals for counseling or counseling services, are available through probation for this purpose;
(3) That a proceeding in the criminal courts is for the purpose of prosecution of the offender and can result in a criminal conviction of the offender;
(4) That a proceeding or action subject to the provisions of this section is initiated at the time of the filing of an accusatory instrument or family court petition, not at the time of arrest, or request for arrest, if any;
(5) That an arrest may precede the commencement of a family court or a criminal court proceeding, but an arrest is not a requirement for commencing either proceeding; provided, however, that the arrest of an alleged offender shall be made under the circumstances described in subdivision four of section 140.10 of the criminal procedure law;
(6) That notwithstanding a complainant’s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.
3) Official responsibility. No official or other person designated pursuant to subdivision two of this section shall discourage or prevent any person who wishes to file a petition or sign a complaint from having access to any court for that purpose.
4) Official forms. The chief administrator of the courts shall prescribe an appropriate form to implement subdivision two of this section.
5) Notice. Every police officer, peace officer or district attorney investigating a family offense under this article shall advise the victim of the availability of a shelter or other services in the community, and shall immediately give the victim written notice of the legal rights and remedies available to a victim of a family offense under the relevant provisions of the criminal procedure law, the family court act, and the domestic relations law. Such notice shall be available in English and Spanish, and, if necessary, shall be delivered orally and shall include but not be limited to the following statement: “If you are the victim of domestic violence, you may request that the officer assist you in providing for your safety and that of your children, including providing information on how to obtain a temporary order of protection. You may also request that the officer assist you in obtaining your essential personal effects and locating and taking you, or assist in making arrangement to take you, and your children to a safe place within such officer’s jurisdiction, including, but not limited to, a domestic violence program, a family member’s or a friend’s residence, or a similar place of safety. When the officer’s jurisdiction is more than a single county, you may ask the officer to take you or make arrangements to take you and your children to a place of safety in the county where the incident occurred. If you or your children are in need of medical treatment, you have the right to request that the officer assist you in obtaining such medical treatment. You may request a copy of any incident reports at no cost from the law enforcement agency. You have the right to seek legal counsel of your own choosing and if you proceed in family court and if it is determined that you cannot afford an attorney, one must be appointed to represent you without cost to you. You may ask the district attorney or law enforcement officer to file a criminal complaint. You also have the right to file a petition in the family court when a family offense has been committed against you. You have the right to have your petition and request for an order of protection filed on the same day you appear in court, and such request must be heard that same day or the next day court is in session. Either court may issue an order of protection from conduct constituting a family offense which could include, among other provisions, an order for the respondent or defendant to stay away from you and your children. The family court may also order the payment of temporary child support and award temporary custody of your children. If the family court is not in session, you may seek immediate assistance from the criminal court in obtaining an order of protection.
Research is ongoing. My search of New York cases citing this statute did not reveal any cases that are factually relevant or analogous to WMC’s target situations.
d. Practice Pointers
To get an order of protection in family court, the victim must allege that the abuser committed one or more “family offenses” against him or her in a “family offense petition,” in situations where the victim and the abuser are/were related by blood, marriage, in an intimate relationship, or have a child in common: (1) disorderly conduct; (2) harassment (first or second degree); (3) aggravated harassment (second degree); (4) stalking (first, second, third, or fourth degree); (5) menacing (second or third degree); (6) reckless endangerment; (7) assault (second or third degree); (8) attempted assault; (9) criminal mischief; (10) sexual misconduct; (11) forcible touching; (12) sexual abuse (in the second or third degree); (13) criminal obstruction of breathing or blood circulation; (14) strangulation (first or second degree).5
In 2008, the New York legislature passed a law stating that those who are/were in an intimate relationship would be eligible for an order of protection in family court even if they have not lived together and were not related by blood or marriage. This includes same-sex couples or heterosexual couples who are/were dating but have no child in common. An “intimate” relationship need not be sexual; the judge considers the nature of the relationship and the length of time/frequency of contact between the parties.6
The New York legislature passed another law in August 2010, which provides that a petition for an order of protection cannot be dismissed or denied based solely on the fact that the incident(s) the victim alleged happened long before he or she applied for the order.7 The law applies to any new petitions filed after 8/13/2010 or any cases filed before 8/13/2010 that were still pending in court on that date.
A victim can file a petition in the county where the abuse occurred, in the county where he or she lives, or in the county where the abuser lives.8 But if the victim lives in New York, and the abuser lives out of state, the victim must identify at least one of the abusive acts in her petition that occurred in New York for the court to be able to grant an order of protection.9 If the abuser threatens the victim on the phone, or through text messages or emails, these acts may be considered as having “taken place” in New York if the victim received the phone calls, texts or emails while in New York.
In family court, both parties have the right to an attorney.
An order of protection from another state is still enforceable in New York. A victim can register his or her out-of-state order of protection in New York with assistance from a local Family Court, Criminal Court or police station.10
- 1. N.Y. Fam. Ct. Act § 828(1)(a).
- 2. N.Y. Fam. Ct. Act § 828(3).
- 3. N.Y. Fam. Ct. Act § 842.
- 4. N.Y. Fam. Ct. Act § 827(a)(vii).
- 5. N.Y. Fam. Ct. Act § 812(1).
- 6. N.Y. Fam. Ct. Act § 812(1)(e).
- 7. N.Y. Fam. Ct. Act § 551; N.Y. Dom. Rel. Law § 240(3)(8)(e).
- 8. N.Y. Fam. Ct. Act § 818.
- 9. N.Y. Fam. Ct. Act § 154(c)(1).
- 10. See New York Unified Court System, New York Court Help, available at http://www.courts.state.ny.us/courthelp/faqs/domesticviolence.html (last visited Apr. 28, 2012).