New York Orders of Protection and Restraining Order: Frequently Asked Questions Part I

New York Orders of Protection, also called Restraining Orders and Stay Away Orders, are critical tools to protect the beneficiary of such an order from alleged or convicted harassers, domestic abusers, stalkers and other victimizers. Irrespective of who an Order of Protection shields, there are many questions that those unfamiliar with both New York Family Court Law and New York Penal Law will need answered before retaining the right criminal lawyer or Family Court attorney to assist them in the respective Restraining Order process. First and foremost, who can get a Restraining Order in New York State? How can you get an Order of Protection in New York City and the Hudson Valley? What does a Stay Away Order actually do for the recipient? Simply, there are countless questions that any crime victim or domestic violence petitioner must address to determine if and how they can protect themselves with an Order of Protection and why he or she needs an attorney to facilitate the legal process. Addressed in this blog entry, as well as additional articles, these questions include:

  • What is an Order of Protection and Restraining Order?
  • Where do I go to file a petition for a New York Order of Protection?
  • How do I get a Family Court Order of Protection in New York?
  • Can anyone get an Order of Protection or Restraining Order?
  • Will the recipient of an Order of Protection have to move out of our home?
  • Is a Order of Protection issued in New York only valid in New York?
  • What is the duration or length of an Order of Protection?
  • Will an Order of Protection appear or show up on an employment or background check?
  • Is it a crime to violate an Order of Protection?
  • Can I drop an Order of Protection if I decide I do not want it anymore?

Only some of the relatively common questions asked by both petitioners in Family Court Order of Protection proceedings and victims in any number of New York’s Criminal Courts, it is critical to understand the different types of and processes involved in securing New York Restraining Orders, Stay Away Orders and Orders of Protection.

What is an Order of Protection? What is a Restraining Order?

As a preliminary matter, an Order of Protection is the same thing as a Restraining Order and Stay Away Order. If there is any difference it is name only as both the New York Criminal Courts and New York Family Courts, as well as criminal lawyers and Order of Protection attorneys, all refer to this document as an Order of Protection. That said, Orders of Protection are ordered by judges in both criminal cases and Family Court Article 8 proceedings. While each Restraining Order may have distinct requirements, they can be either “full” or “limited.” Until there is a resolution of the case, judges routinely issue Temporary Orders of Protection. Depending on the nature of either your Family Court Article 8 Offense Petition and / or the allegations contained in a felony or criminal court complaint, New York Orders of Protection can prohibit or limit any and all interactions by the defendant or respondent with the protected party or parties. This can include staying away from the victim or petitioner’s home, place of business, and school, having no contact directly, through third parties or on social media with him or her, and refraining from committing any crimes against the named individual(s). Additionally, a judge may mandate as part of an Order of Protection that a respondent / defendant move out of your shared home, adhere to orders of custody and not possess any firearms or guns.

Where do I go to file for and how do I obtain Family Court Order of Protection?  

If your concerns for safety involve a family member or person with whom you have or had an intimate relationship, you can file an Article 8 Family Offense Petition for an Order of Protection in the New York Family Court where you reside or that has a nexus to the harassment, stalking, assaultive behavior, etc. Although nothing precludes you from reporting criminal conduct to your local precinct or police department, to secure a Restraining Order from a New York Family Court you must do so in the following locations:

  • New York City: Manhattan, Brooklyn, Bronx, Queens and Staten Island each have their own respective Family Court.
  • Westchester County: Family Court in White Plains, New York
  • Rockland County: Family Court in New City, New York
  • Putnam County: Family Court in Carmel, New York
  • Dutchess County: Family Court in Poughkeepsie, New York

The laws and statutes do not differ from county to county, but there may be certain internal procedural differences between the courts and their clerks. Regardless, the jurisdiction of a particular Family Court extends beyond the borders of the county where it is located and is enforceable anywhere in New York or outside the state.

Can anyone get an Order of Protection?

If you are requesting an Order of Protection from a NY Family Court, then you, as a petitioner, must be related by blood to the respondent, have children in common, be married, or formerly married. Additionally, if you are or were involved in an intimate relationship – not necessarily sexual – with the other person, you could pursue a Restraining Order in a New York Family Court. No arrest nor prosecution are necessary to file an Article 8 Family Offense Petition in a New York Family Court.

Distinct from Family Court, you can also get a Stay Away Order in Criminal Court irrespective of your relationship with the other party. In this scenario, you are not retaining a Family Court lawyer, but a judge is issuing an order of protection with the request of the District Attorney upon the arrest and arraignment of a defendant. To be clear, there must be an arrest for a court to issue an Order of Protection in the criminal context. While you do not need your own lawyer in a criminal proceeding as a complainant, a victim advocate attorney can facilitate the end and goal you seek.

Only a fraction of the issues or questions addressed by those pursuing Orders of Protection, Restraining Orders and Stay Away Orders in either a New York Family or Criminal Court, further information is available on the website through the links contained herein.

Saland Law PC is a New York law firm representing clients in both Family Court and Criminal Court matters including those petitioning and responding to court issued Orders of Protection. Former Manhattan prosecutors, Saland Law PC’s attorneys represent clients throughout New York City and the Hudson Valley.

Contact Information