New York Criminal Lawyer Blog
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.
Very briefly, not ever person is able to go to Family Court to get an order of protection. The Family Court of Westchester County has jurisdiction over cases where a party resides or an incident occurs in Westchester County. Moreover, certain “crimes” are set forth in the Family Court Act. These offenses are New York Domestic Violence Crimes and include such crimes as Assault, Stalking, Menacing, Strangulation, Grand Larceny, Identity Theft, Criminal Mischief, and many other crimes including those involving sexual offenses. The difference between violating the New York Penal Law and being arrested for a criminal offense as opposed to violating Section 812 of the New York Family Court Act is that there really is no difference. The victim, whether it is you or you are the person defending against the allegations, in the former goes to the police to file a criminal court complaint while the latter files a petition as a petitioner in Family Court as a civil case. Again, the Family Court and Criminal Court may be separate, but they are not exclusive to one another. At times if a case is pending between the parties in both courts the Integrated Domestic Violence Court (IDV Court) can hear both cases and have jurisdiction over all matters.
Irrespective of whether you go to Family Court on your own or with counsel, you will be required to write out what the respondent (a defendant in the criminal context) did to violate the Family Court Act. You will need to identify the relationship you have with this person so a court can conclude you are covered by the Family Court Act. Upon drafting the petition you will then go before a judge who will swear you in and ask you under oath whether your petition is truthful. He or she may also inquire as to your relationship and some specifics as to what has transpired. If the judge believes you are honest, there is a familial or intimate relationship, and the accused committed certain offenses, the judge can then grant a temporary restraining order or order of protection. You will then be required to serve (through a process server) the respondent with your petition and the order so he or she can return to court on a future date. You, and your attorney should you retain one, will be present along with the respondent and his or her lawyer.
On the return date you will need to provide proof that the respondent was served with the order of protection. The judge will inquire whether there is a resolution or not. If there is not one, the judge may adjourn the case for a trial where evidence can be submitted and testimony given before the court so that a judge can make a final decision. Nothing precludes your counsel from attempting to come to an agreement before or after this initial court appearance.
Although the above is a very brief analysis of who can secure an order of protection in White Plains and how to do so in Westchester County Family Court, by no means is this a fully vetted and detailed examination of the law nor your particular case. It absolutely behooves you to either ask the Court for a free lawyer if you do not have the monies to retain an attorney or have counsel prior to going to Family Court. No only can he or she draft your petition to ensure its accuracy and completeness, but prepare you for questions you may be asked and explain the process. You may only get one opportunity to get this order of protection and you do not want to misstate facts, leave facts out or improperly convey what happened in a manner that will compromise your ability to get a restraining order. Moreover, your case may be one that is worthy of prosecution and this can be discussed with your attorney from a criminal law perspective.
Whether you are accused of a Domestic Violence crime or making allegations of the same, educate yourself on the law. Whether you are seeking an order of protection as a petitioner or you are a respondent who has been served with a restraining order, put yourself in the position to best protect your future. To learn more about New York Family Court orders of protection and New York Domestic Violence crimes, review the links found in this blog and reach out to the attorneys of your choice for a consultation.
Saland Law PC is a New York Family Court law firm assisting people in securing orders of protection and in response to service of a restraining order. Saland Law PC’s New York criminal lawyers served in the Manhattan District Attorney’s Office’s Domestic Violence Unit and represent those accused of these crimes in criminal court throughout Westchester, Rockland and other Hudson Valley Counties as well as throughout the City of New York.