An order of protection is a court order requiring a person to do or not do certain things. The common thought is that an order of protection means a person cannot come within a certain distance of another person. While that may be true, it may not always be the case. Even when the order does specify that a person cannot approach another person, there is usually more to it.
A fan of the Law and Order series is going to be familiar with the above example. These are orders of protection issued by a criminal court as a condition of a defendant's release in a criminal case. A criminal order of protection can only be issued if a crime has been committed.
In cases related to areas of Family Law, an order of protection can also be issued by either Family Court or the New York Supreme Court. It is important to note that in New York State, divorce cases are heard in Supreme Court as opposed to Family Court.
These orders of protection can be granted during a civil case even if a person is not charged with a specific crime. The purpose of a Family or Supreme Court order of protection is to stop violence or abuse within a family or within an intimate relationship. You do not have to be married to petition for and obtain an order of protection against a person. The criteria for being able to receive an order of protection are that you have to be:
- A current or former spouse
- Someone with whom you have a child in common
- A family member, either a blood relative or through marriage
- Someone with whom you have an intimate relationship. An intimate relationship does not necessarily mean a sexual relationship, and the court, as a part of the hearing, will decide if the relationship qualifies as intimate and if an order of protection may be granted.
Supreme Court orders of protection may be issued as a part of an ongoing divorce and may be granted for similar reasons as a Family Court order.
There are two basic types of orders of protection.
- Stay-Away, or Full orders.
- Refrain-From, or Partial orders.
A Stay-Away order of protection is similar to the example at the beginning of this post. A person is being ordered to stay away from another person or people. This means they are not permitted to have any form of contact with the petitioner. A stay-away order not only means that the person cannot come within a certain distance but there can also be no contact either directly or through third parties. So even if the person is miles away, if they try to send a note through a friend, they can still be found to have violated the stay-away order.
A Refrain-From order or partial orders doesn't mean that a person must stay away. It may be the case that the parties involved may still be living together. A Refrain-From order of protection means a person must refrain from certain behaviors or actions, such as harassment, emotional abuse, or assault.
Orders of protection may also include other actions aside from the order to stay away or refrain from certain actions. In the case of a Family or Supreme Court order of protections, the order may also:
- Give custody of the children to the petitioner
- Provide provisions and guidelines for visitation
- Require the payment of spousal or child support
- Require the respondent to pay the petitioner's legal fees
- Require the respondent to attend some sort of anger management or abusive partner intervention program
- Include anything else that may be required to further protect the petitioner and children.
There may be cases where a Supreme Court order of protection may be permanent. However, in many cases, orders of protection are temporary. They may last only until the next court appearance. Family Court orders can be granted for up to two years unless there are aggravating circumstances, in which case, an order may be granted for up to five years.
If an order of protection is violated, as with other court orders, the person may be arrested or fined and charged with contempt of court. Depending on the type of order and violation, the person may be charged with criminal contempt or civil contempt of court. Criminal contempt can be charged if the person is found to have willfully and deliberately violated the court order in an attempt to either cause harm or even intimidate a person. The consequences of violating an order of protection may be jail time, fines, and further orders against them.
Orders of protection are designed to protect the petitioner from physical or psychological abuse. Orders are written specifically for the individual case, and depending on the issuing court, there may be differences between what can be granted and for how long. If you have any questions related to orders of protection, contact the Law Office of Anthony J. LoPresti. With over 30 years of experience, Mr. LoPresti has seen vast experience with orders of protection and can provide appropriate counsel and, if appropriate, begin the process of petitioning the court.