Avoiding Dismissal and Denial: Properly Drafting and Filing NY Family Court Order of Protection Petitions

The questions is a common one. “How do I get an Order of Protection in New York?” “Who can get a Restraining Order in NYC?” “Do you need a lawyer to get an Order of Protection?” Before answering these questions, know the following. Family Offense Petitions in New York Family Courts, pursuant to New York Family Court Act Article 8, are some of the most frequently dismissed petitions on technical grounds – most commonly, failure to state a cause of action, or “facial insufficiency.” This essentially means that the Petitioner, the person making the allegation and the one seeking an Order of Protection, aka, Restraining Order, has failed to allege facts that make out one of the many enumerated offenses that constitute a Family Offense. Simply, if you are frightened for your well-being to the point where you commence a legal action whether its in New York City or the Hudson Valley, you will either ensure it is done correctly or deal with the potentially tragic consequences of not engaging an NYC Order of Protection lawyer to ensure the same.

NY Family Court Orders of Protection: Court’s Initial Legal Standard and Review

A New York Family Court in a borough of New York City, Poughkeepsie, Carmel, White Plains, or New City considering an Order of Protection petition will, at first, assume all of the allegations contained therein are true, and determine if those allegations make out an enumerated offense. If they don’t, the Family Court Judge must dismiss the petition. While no New York Restraining Order attorney can guarantee a judge will sign off on every petition, those you draft on your own, as a petitioner, will often fail because of a lack of technical legal knowledge and a misconception about what constitutes a Family Offense. In non-legal terms, these petitions falter because you are not a Family Court and Criminal Court attorney with the relevant understanding of terms and processes contained in Article 8. On one hand making matters more complicated and on the other providing for a legal standard across relevant areas of law, Family Offense Petitions in New York Family Court are civil proceedings that rely directly on the New York Penal Law and criminal code at it’s core.

The New York Family Court Act, Article 8, lists the various Penal Law offenses that may serve as the foundation for a successful Family Offense Petition. This does not mean that such actions are essentially privately initiated criminal prosecutions. To the contrary, these proceedings are civil in nature, and come with no potential jail time as a direct result of the action barring a Contempt arrest stemming from a subsequent violation of a restraining order issued by any judge. Instead of jail and criminal charges, the most typical relief sought is an Order of Protection requiring the perpetrator of the act, the respondent, to stay away from and refrain from communicating with the accuser. Importantly, while many different Penal Law offenses are listed in Article 8, from Disorderly Conduct, Penal Law 240.20, to various serious felony charges, it makes no technical difference in the context of a Family Offense Petition whether the alleged offense is a felony punishable by decades in state prison or a violation that isn’t even a crime. All of the enumerated offenses are equally valid and carry the same legal weight with respect a successful Family Offense Petition.

NY Family Court Article 8 Petitions: The Importance of Drafting and Filing with Legal Counsel

As mentioned above, many petitioners who proceed without a lawyer, or with the help of non-lawyers at an agency such as the Department of Probation, fail to realize that “Harassment,” for example, does not mean any form of harassing behavior that one might refer to in everyday life, but it comes with a very detailed, statutory definition with various legal requirements that come with decades of case law from criminal courts’ interpretations. It is frequently the case that a person might file a Family Offense Petition and allege that their ex-boyfriend “left several messages telling me how selfish I am, and how he never wants to see me again.” In “regular” life this may seem like “harassing” behavior – this person might say to their friend, “my ex has been leaving me these messages and harassing me.” However, that doesn’t mean that that ex-boyfriend has committed the offense of Harassment in the Second Degree, as defined by Penal Law 240.26, or any other offense for that matter. Because this petitioner without a lawyer might not realize the legal requirements, she might not include other relevant facts that WOULD make the petition legally and facially sufficient. This distinction easily addressed with counsel can make the difference between a much-needed Order of Protection being in place for years, and a restraining order petition being denied or dismissed on Day One.

 

 

Because such seemingly minor, technical choices in the drafting of a Family Offense Petition can have drastic ramifications for the safety and well-being of you and your loved ones, it is not merely beneficial but critically important to have an attorney representing you in drafting, filing and representing you in a Family Offense Petition. With knowledge of the relevant New York Family Law and New York Penal Law, the Family Court, criminal lawyers and former Manhattan Assistant District Attorneys at Crotty Saland PC can best protect your interests, rights and safety as both a petitioner and respondent in all Family Offense matters throughout New York City, Rockland County, Westchester County and the Hudson Valley.