Securing and Challenging NY Orders of Protection: The NYC Family Court Restraining Order and Some Recent Scenarios

In New York City and throughout the State of New York from Manhattan to every municipality both big and small, domestic violence rears its ugly head. Sometimes individuals seek protection from the police and prosecutors while other times individuals pursue orders of protections or restraining orders in New York’s Family Courts. The reasons vary just as much as the people who pursue an order of protection or restraining order. It may be that a complainant (in the Criminal Court criminal context) or petitioner (in the Family Court civil context) doesn’t want the other party arrested or does not want to cede control of their personal life and the trajectory of a case to a prosecutor. Whatever the reason or choice of venue, it behooves a petitioner who seeks a Family Court order of protection to speak with an attorney or lawyer versed in the Family Court Act before taking the steps to try to secure a restraining order. If your need for an order of protection is not immediate (ie, you don’t need to call 911 for example) and the person who you are seeking protection from is a “family member” then taking seeking counsel is likely a smart move for the long term viability of your order of protection.

Very briefly, and more fully addressed in Saland Law PC’s New York Family Court Order of Protection Information Page and New York Domestic Violence Crimes Page, those with intimate relationships both current and past, immediate family members and those related to you through marriage, fall within the grasp of the Family Court Act. If your sister, boyfriend, former fiance or stepfather commit certain acts (really crimes that could be prosecuted in a criminal court) against you, you could petition the court for an order of protection. Upon filing certain paperwork and appearing before a judge, a court has the authority to issues a temporary order of protection to be served upon the respondent (the family member) so that you both appear together in court. Ultimately, if there is an agreement between the parties, the matter can be resolved and, if not, a court will have a hearing or trial on whether or not a final order of protection will be issued for up to five years (this depends on what, if any, aggravating circumstances exist). It is critical to understand that nothing prevents the respondent from filing his or her own petition and seeking an order of protection against you. No matter the situation, if there is not an agreement these cases can last for months before there is a court rendered resolution.

Putting this background aside, recent Family Court order of protection cases handled by Saland Law PC lawyers are noteworthy and are illustrative of the restraining order process and how one gets such an order in NY. Without going into details about the individuals, one client had a former lover who initially refused to move out of our client’s apartment, became physically agrressive and repeatedly emailed our client despite requests to cease and desist. This particular matter involved our order of protection attorneys going to court repeatedly and conducting a trial whereby the judge issues a complete stay away order for two years. Another matter involved a former partner who dated our client for a mere three months. This individual continued to communicate through emails and phone calls with our client despite our client asking an attorney to serve a cease and desists. Matters escalated after the former date claimed an unsubstantiated pregnancy without any corroboration of any kind and came by our client’s office. Upon drafting our client’s petition to ensure its accuracy for a court to review, the court granted an appearance date and our client had the respondent served. Upon arriving in court, the respondent’s attorney and Saland Law PC negotiated a full stay away on our client’s behalf for sixteen months. Our client not only avoided a lengthy process and trial, our client also obtained a full stay away order.

Not all Saland Law PC’s clients, however, initiate the Family Court process for an order of protection. Sometimes the response is reactionary. In another matter, our client, a physician, had a long term relationship with a nurse. After breaking up with, the petitioner alleged a choking at the hands of our client. Adamantly denying the allegations, our client was able to provide our order of protection lawyers a video from the night of the allegation where the petitioner threatened our client with a large kitchen knife, sliced our client’s hand and then later sent a text apologizing for the actions and taking responsibility for the altercation. Further, our client rightfully noted the claimed abuse occurred four months earlier and was only made after our client finally terminated the relationship. In response to the filing of the petition by the former partner, Saland Law PC drafted our own client’s petition thereby making each party both petitioner and respondent (similar to victim and defendant). Upon speaking with the former partner’s attorney and confronting the attorney with texts and stills from the video, both parties agreed to drop their respective petitions.

Remember, every case is unique, but the above cases illustrate a few important facts in Family Court. Not only was it important to prepare each of our clients to speak with a judge and draft their petitions for an order of protection to ensure it reflected all conduct and was straight forward, but the above cases reflect three very different trajectories of a restraining order case in New York. One involved a trial where we secured an order of protection for a petitioner, one involved no trial and an acceptance by the respondent of an order of protection and the third involved a respondent who later became a petitioner after we challenged the allegations in the order of protection and filed for a restraining order with accurate facts. In that matter, each party agreed to mutually walk away from all legal proceedings.

Again, no two Family Court cases in NYC are the same whether it be in Brooklyn or Manhattan. Educate yourself on the Family Court Act and the process by which one secures (or defends oneself against) a petition for a restraining order or order of protection. Do you qualify? Is the other party considered “family”? Has a crime or violation of the Family Court Act been committed? What are the consequences of going to the Family Court as opposed to the police? Don’t fail to put the relevant facts in your petition or forget to add all of the allegations so you are not precluded later. Take the steps to ensure your safety or defend yourself against a misrepresentation.

To learn more about non-criminal orders of protection in Family Court, please follow the links found here or go directly to Saland Law PC’s New York Family Court page. To educate yourself about New York Domestic Violence laws in both the Family Court and Criminal Court, please review the content found on those pages as well.

Saland Law PC is a New York criminal defense and order of protection firm founded by two former Manhattan prosecutors.

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