Am I Eligible to Receive an Order of Protection or Restraining Order: Domestic and Same Family Definitions in NY Family Court

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.”

Pursuant to New York Family Court Act Section 812, “members of the same family or household” include not merely those who are married or related by consanguinity or affinity. Instead, the scope of parties the Family Court can exert its jurisdiction over also include:

  • Former spouses even if they no longer reside together
  • Individuals with children in common whether formerly married or two people who merely had a one-night stand that resulted in a child
  • Current and former partners engaged in an “intimate relationship.” While it often is sexual, “intimate relationship[s]” need not be physical. However, they must be more than casual.

With the above in mind, your Family Court lawyer drafting and filing your petition for an order of protection or restraining order must articulate the nature of the relationship. Failure to do so is fatal to your petition. Dated for a month or two? Had a sexual relationship over a few weeks? Never lived together, but outside of a business or social context had a regular and ongoing relationship with the respondent? All of these types of relationships would likely qualify for an order of protection.

Each case before a New York Family Court judge, whether in Manhattan, Brooklyn, Queens, White Plains, New City, Carmel or Poughkeepsie, will rise and fall on the facts of that particular petition. While some relationships are clear by their nature such as married couples, former fiancés and siblings, others will mandate further vetting and description by your lawyer in your actual petition and potentially when you and your attorney appear in Family Court.

To learn more about Family Court such as the petition process, offenses or “crimes” covered by the New York Family Court Act, and parallel, but not mutually exclusive, Domestic Violence prosecutions in New York, click through the links here or go directly to Saland Law PC’s New York Domestic Violence Crimes and Laws information page. From there you can access further materials regarding restraining orders in New York.

Saland Law PC is a New York Family Court and restraining order law firm. The New York orders of protection lawyers and former Manhattan prosecutors represent both petitioners and respondents in Family Court proceedings throughout New York City and the Hudson Valley.

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