Restraining Orders, Stay Away Orders and Orders of Protection in New York City and the Hudson Valley: Frequently Asked Questions Part II

Whether you have asked it of a New York Family Court attorney, criminal defense lawyer or merely thought it to yourself, if you are a victim of abuse you have likely pondered how you can get an Order of Protection. What steps must you take to keep your abuser away and how do you start the process of protecting yourself with the assistance of the court system? While not an easy answer, when boiled down to its core, there are generally two avenues you can pursue to secure a Restraining Order or Stay Away Order in New York. One begins in the New York Family Court and the other with the police or District Attorney. Not mutually exclusive, the former does not mandate an arrest while the latter requires law enforcement’s involvement. This blog entry, as a follow up to an earlier article addressing other questions, identifies frequently asked questions so you, as a petitioner in a Family Court Article 8 proceeding or complainant in a criminal case, can obtain the basic information you need to have informed conversations with the lawyer you ultimately retain.

If I get an Order of Protection against someone I live with will he or she have to move out?

If a Family Court or Criminal Court issues an Order of Protection in your favor and against a person with whom you live, he or she will have to move out of your shared home if the temporary or final Restraining Order is full. However, if the judge grants a limited Order of Protection, then the court may draft it in such a way that the defendant or respondent is permitted to live in the shared premises, but is unable to commit any crimes against or harass you. If this is an issue that you foresee, it is critical that you address this as early as possible with your Family Law attorney or Restraining Order lawyer.

Is an Order of Protection only valid in the county or city it was issued?

Whether you are a crime victim and the Manhattan District Attorney is prosecuting a defendant or you file an Article 8 petition in Brooklyn Family Court, an Order of Protection is valid everywhere in New York State. Moreover, any court issued Restraining Order should be given “Full Faith and Credit” regardless of the state. As such, assuming all requirements are met per that particular state’s rules (you might have to register the Restraining Order), your Order of Protection is just as effective there as it is in New York.

How long does an Order of Protection last in New York?

Questions about the length and duration of Orders of Protections, Restraining Orders and Stay Away Orders are routine whether they are issued from the Family Court or Criminal Court. Dealing first with Family Court, the parties can, without a finding of wrongdoing, agree to just about any duration two years or less. If there is a finding post-hearing, aka, trial, a Family Court Judge generally issues a Restraining Order for a period of two years, but aggravating factors could increase this time frame significantly.

In Criminal Court, the complainant and defendant don’t make the determination. Generally, the type of conviction or disposition dictates the length of an order of protection. For example, if the matter is considered domestic and the prosecution moves (offers) and ACD whereby the case is dismissed and sealed in twelve months, then the Order of Protection will likely be one year. If your victimizer is convicted of a felony, the Restraining Order will likely be no less than five years.

Will an Order of Protection show up on a background check?

The answer as to whether or not an Order of Protection will show up on a background check is not an easy one. In two words, it depends. If the Order of Protection was issued by a NY Criminal Court, then you should expect both a temporary and final Restraining Order will appear when a criminal background check is completed. A Family Court Order of Protection, however, is not part of a criminal proceeding. Therefore, until the records are made public, nothing may show. Keep in mind that in today’s age of free-flowing information, “may” is a key word. Whether you are a defendant or respondent, you should expect that an Order of Protection can “pop” under the right circumstances even if there is no final resolution or a finding of criminal liability.

Is it a crime if someone violates an Order of Protection?

The short answer is that if an Order of Protection is violated, then it is a crime irrespective of whether a Family Court, Criminal Court or Supreme Court judge issued the Restraining Order. This crime is Criminal Contempt and is either a misdemeanor or a felony. The police, such as the NYPD, can make an arrest and the District Attorney can prosecute an offender even without your permission or desire.  However, if the violation stems from a Family Court Order of Protection, you do have the option to file a violation of the Stay Away Order in Family Court if law enforcement is not notified. In this scenario there may be civil sanctions without an arrest. Ultimately, it is your decision as a victim / petitioner to make this determination in Family Court, but know that if law enforcement is involved there will likely be an arrest.

Can I drop an Order of Protection after a court issued the Restraining Order?

If you petition for, and the court grants, a New York Family Court Order of Protection then you can ultimately drop your Restraining Order. Depending on what occurs, it may be with or without “prejudice.” Before doing so, however, you should consult with your Family Court attorney. If your alleged abuser is charged with a crime and he finds him or herself in a criminal proceeding, then it is ultimately up to the judge to decide whether to maintain, limit or remove an Order of Protection. The District Attorney will also play a central role in this decision making process, but recognize you, as a complainant in New York Criminal Court, do not have the same rights as if you were a petitioner in a New York Family Court Act Article 8 proceeding.

Because there are countless questions and variables that can impact Orders of Protection in New York, it is imperative to pursue a Restraining Order in either Family or Criminal Court with your eyes “wide open.” Be smart and understand the differences between the two processes. Identify which court system is better for you and the advantages, as well as disadvantages, between the potential options. Ultimately, if you hire the right Family Court lawyer or criminal defense attorney, you can implement the best strategy for success.

Crotty Saland PC is a New York Family Court and Criminal Court law firm representing clients in all Restraining Order matters in New York City and the Hudson Valley. The Stay Away Order attorneys and former Assistant District Attorneys at Crotty Saland PC serve clients as petitioners, respondents, complainants and defendants.