Can I get a Restraining Order and How do I Apply for an Order of Protection: Protecting Yourself in NYC and NYS with a Stay Away Order

How do I get an Order of Protection in New York? Do I have to go to the police, such as the NYPD, to apply for a Restraining Order? What are the steps and  whatever they may be, am I eligible for a Stay Away Order? All reasonable questions, the answer to whether you are entitled to an Oder of Protection (“entitled” may or may not be the correct word in this context) and whether a judge will issue one depends on many factors. Before briefly addressing the answer to your questions in this blog entry, and discussing further with your attorney should you determine you are a candidate for a Restraining Order in New York, keep the following in mind. A Restraining Order, Stay Away Order and Order of Protection are different names for the same order issued by a court. No matter what you call this mechanism to protect you from another person, in the State and City of New York, there are generally two avenues to secure an Order of Protection. A Criminal Court Judge can issue a Restraining Order after the arrest and during the arraignment of a criminal defendant and Family Court Judge can issue an order in a civil proceeding pursuant to the New York State Family Court Act Article 8.

In not particular order, the first type of Order of Protection is granted by either a local Justice Court Judge in the Hudson Valley – Westchester, Rockland, Dutchess, etc. – or a New York City Criminal Court Judge. Less common, merely because there are not as many felony indictments as felony or misdemeanor arrests, a Supreme Court or County Court Judge, Criminal Term, can grant the same at a felony arraignment. These Restraining Orders are issued most often on the application of an Assistant District Attorney and while there needs to be a showing as to why a Stay Away Order is necessary, you need not know nor have any relationship with the accused / defendant. Certainly, Restraining Orders are issued with regularity in the Domestic Violence context, but if you are victimized by a stranger, a judge has the same authority to provide you with an Order of Protection. The key issues here are whether there is probable cause to arrest a particular person and, if so, whether you, a complainant, want to involve yourself and your abuser in the New York criminal justice system. Ultimately, assuming the former exists, you must determine whether you want the person arrested and to plead guilty to a violation or criminal offense (in some cases an Adjournment in Contemplation of Dismissal (ACD) is a viable disposition). While the District Attorney will dictate the case trajectory and disposition, if you are not “on board,” know that if the case is dismissed, the Restraining Order that had been in place from the arraignment through the criminal proceedings will cease to exist. Further, depending on the resolution – from ACD and violation to misdemeanor and felony – the final Order of Protection can last as little as six months or a year to multiple years.

  • New York State Domestic Violence Crimes, Arrests and Laws

Unlike a Criminal Court Order of Protection, only certain people are candidates for a Family Court Restraining Order in New York. While you must be a family member or have an intimate relationship, past or current, a Stay Away Order granted by a Family Court Judge has the same effect as one issued in the Criminal Courts. One benefit, however, is that the proceeding is not public in the same manner as those in the criminal justice system. Although a Family Court proceeding is a civil one, the basis for the issuance of a Restraining Order is found in the New York Penal Law. To that end, certain criminal offenses, not all, are parallel Family Offenses in New York Family Court Act Article 8, section 812. Is probable cause or an arrest required to secure such an order in Family Court? No. If a judge issues a final Order of Protection at the close of your case, will the respondent have a criminal conviction? No again.

Even though a Family Offense mimics a Penal Law crime, instead of an arrest being a prerequisite, your Family Court lawyer will draft a Family Offense Petition and file the same in the Family Court where you reside. Each county – Manhattan, Queens, Kings (Brooklyn), Westchester, Putnam, Dutchess, Rockland and Orange – has its own Family Court. Upon doing so, you and your attorney will appear before a Family Court Judge. He or she can grant a temporary Restraining Order in full or in part, deny the petition outright, or temporarily refuse to issue an Order of Protection. The Family Court Judge will then require that you serve the respondent with the Stay Away Order (or just a notice to appear in court) with a date to return. Ultimately, the respondent can accept the Order of Protection without an admission of wrongdoing or have a hearing which is the same thing as a non-jury trial. One potential benefit of a Family Court Order is that the parties can potentially agree to a specific length of time. While generally two years and five years with aggravating factors, a Family Court Order of Protection can last just about any length of time up to these periods.

Again, the above descriptions of Restraining Order eligibility in New York, how you can apply for or be the beneficiary of an Order of Protection, and the difference between Stay Away Orders issued in Family Court and Criminal Court, is by no means a substitute for a consultation with your Restraining Order attorney. Should you believe an Order of Protection is necessary, you should not wait for further victimization. Whether by way of an arrest and prosecution or a petition in Family Court, the ability to protect yourself is in your hands.

To learn more about the Order of Protection and Restraining Order process in Criminal and Family Court, applying for Family Court Orders pursuant to Article 8 of the Family Court Act, and your rights as a petitioner or respondent / complainant or defendant, review the provided links.

Saland Law PC is a law firm representing victims, defendants, petitioners and respondents in the Criminal and Family Courts throughout the City of New York and the Hudson Valley. Prior to representing clients in Order of Protection matters, the founding partners served as prosecutors in the Manhattan District Attorney’s Office.

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