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Articles Posted in NY Family Court Orders of Protection

In the State of New York, if you commit a crime the police can arrest you and a local District Attorney can prosecute you for your alleged illegal conduct. For example, if you ball up your fists and intentionally take a swing at another person’s face, it is likely you would find yourself in front of a judge charged with Third Degree Assault if you gave that person a “shiner.” While not available to all complainants or victims, if you were the recipient of that drubbing and you have an intimate or domestic relationship with your attacker, you may pursue another means to hold your attacker accountable while providing yourself with security and safety going forward. In lieu of or in addition to the criminal justice system, New York’s Family Court Act may be your answer and enable you to obtain an order of protection or restraining order.

As a preliminary matter, and one you should consult with your New York order of protection lawyer or Family Court attorney, you must have a domestic relationship (“member of the same family or household”) ranging from current or former boyfriend or girlfriend to sibling or spouse. Assuming the New York Family Court has jurisdiction over your matter, as a petitioner (similar to a complainant), you can file a petition for an order of protection by setting forth violations of Section 812 of the New York Family Court Act. This section sets forth the offenses, aka, crimes, your lawyer will use as the foundation of your petition. With this in mind, what are the offenses listed in Family Court Act 812 and how to they compare to their brethren offenses in the New York Penal Law?

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I need a restraining order. How do I get an order of protection? A simple question deserves a straightforward answer, but unfortunately, as your lawyer likely can attest to, the law is not always cooperative on that front. Certainly, if you are a victim of a crime and an order of protection is warranted, upon arrest and prosecution in New York, most judges will issue an order of protection. However, not all cases require the full force of the criminal justice system nor do complainants (you, the victim) want to pursue criminal charges. Enter the New York Family Court Act. The vehicle to secure an order of protection for those who are members of the same household or family, New York’s Family Court is where you would go to get a non-criminal order of protection.

Now that you know where you can go to get a restraining order in New York, the follow up question gets more complicated. Who can avail themselves of Family Court restraining order? The answer, if you noted above, are those petitioners (victims or complainants) who the court statutorily classifies as “members of the same household or family.”

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There are few worse things than being accused of a crime you did not commit. Even more upsetting is if the crime you are arrested for in New York involves an accusation of Domestic Violence, Assault and Child Endangerment. Sadly, when marriages go south and divorces get nasty, criminal lawyers see the ugly side of false claims, unnecessary arrests and orders of protections that are used not because they are genuinely needed, but one spouse wants to manipulate the system for his or her own gain.

Unfortunately for a recent client of the New York criminal lawyer at Crotty Saland PC, the above scenario played out where her spouse accused her of Third Degree Assault, NY PL 120.00, in front of their children. Not only was she charged with PL 120.00, but because the children were allegedly present she was also arrested for Endangering the Welfare of a Child, NY PL 260.10. Compounding matters well beyond these two class “A” misdemeanors, the court issued an order of protection in favor of her husband and children despite the fact that although unknown to the District Attorney’s Office at the time, the complainant fabricated the incident.

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Irrespective of whether you live in Yonkers, White Plains, Bedford, Mt. Kisco, Irvington, Somers, Scarsdale, Harrison or any other city, town, village or hamlet in the County of Westchester, if you desire an order of protection and you do not wish to pursue that restraining order through an arrest and prosecution by the Westchester County District Attorney’s Office, then depending on the nature of the relationship between you and the person you seek protection from, Westchester County Family Court is the answer. Westchester County orders of protection and restraining orders are available in Family Court under limited circumstances, but if you and the other party are family members or have an intimate relationship and the acts committed by that person violate the Family Court Act, a Family Court lawyer or Order of Protection attorney can potentially secure a restraining order for you with a duration as long as two and even five years. It is critically important to recognize, and something you should discuss with your Westchester County Restraining Order lawyer, that obtaining an order of protection in Family Court does not prevent you from pursuing criminal charges with your local police or the Westchester County Police.

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